4. Conclusion
In a field congested by standards and existing actors, it appears at first glance that the right to social security may simply provide a supporting and affirming role. However, the above analysis indicates that the right to social security may have a much more substantial role to play since it not only greatly extends the reach of the international legal framework and mandates a system of accountability, but may require new approaches in the field of social security.
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References
Wouter van Ginneken, Extending social security coverage: Policies for Developing Countries, (ESS-Paper No.13, 2003), at 2.
International Labour Office, Social Security: A New Consensus (International Labour Office, 2001) at 19.
See, for example, International Labour Office, Social Security: A New Consensus, ibid. and Emmanuel Reynaud, The extension of social security coverage: The approach of the International Labour Office, (ESS-Paper No. 3, 2002).
See: Philip Alston and James Heenan, ‘Shrinking the International Labor Code: An Unintended Consequence of the 1998 ILO Declaration on Fundamental Principles and Rights at Work’, 36 (2004) New York University Journal of International Law and Politics, 221–264.
Amartya Sen, ‘Work and Rights’ 139 (2000) 2 International Labour Review 119–128 at 120.
In the case of remedies for violations, the Committee has indicated to States it will require them to justify their absence in the domestic legal system. See: Committee on Economic, Social and Cultural Rights, General Comment 9, The domestic application of the Covenant (Nineteenth session, 1998), U.N. Doc. E/C.12/1998/24 (1998).
Amartya Sen, supra note 5, at 121.
The United Nations Economic and Social Council encouraged the Committee to ‘continue using that mechanism to develop a fuller appreciation of the obligations of State Parties under the Covenant.’ Economic and Social Council Resolution 1990/45, para. 10.
See: Question of the realization in all countries of the economic, social and cultural rights contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights and study of special problems which the developing countries face in their efforts to achieve these human rights, Commission on Human Rights, resolution 2003/18, para. 11(a)(ii). Alston and Heenan also make a pertinent point about the value of expert development of human rights standards at the international level: ‘creating ‘Habermasian’ dialogues that lead to’ shared convictions’ and common standards is not always possible at the international level, nor perhaps even desirable if the result is an unwieldy heterogeneity or the emasculation of the content of human rights through the over-representation of nondemocratic polities.’ See: Philip Alston and James Heenan, supra note 4, at 251.
See: Malcolm Langford, ‘Ambition that overleaps itself? A Response to Stephen Tully’s ‘Critique’ of the General Comment on the Right to Water’, 26 (2006) 3 Netherlands Quarterly of Human Rights, and Matthew Craven, ‘Assessment of the Progress on Adjudication of Economic, Social and Cultural Rights’, in John Squires, Malcolm Langford and Bret Thiele (eds.), The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (Australian Human Rights Centre, Distributed by UNSW Press, 2005), 27–42.
See: Malcolm Langford, Ambition that overleaps itself?, ibid.
See: Lucie Lamarche, ‘The Right to Social Security in the International Covenant on Economic, Social and Cultural Rights’, in Audrey Chapman and Sage Russell (eds.), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Intersentia, 2002), 87–114 and Malcolm Langford, Aoife Nolan and Bret Thiele, Litigating Economic, Social and Cultural Rights: Legal Practitioners Dossier (Revised) (Centre on Housing Rights and Evictions, 2006). See also discussion of the South African context by Sandra Liebenberg, ‘The right to social assistance: The implications of Grootboom for policy reform in South Africa’ 17 (2002) 2 South African Journal on Human Rights, 232.
Amartya Sen, supra note 5, at 124.
See: Malcolm Langford and Bret Thiele, supra ‘Introduction’ in Road to a Remedy, note 10.
Chantal Euzéby, ‘Rethinking social security in the European Union’ 57 (2004) 1 International Social Security Review, 85–103.
Committee on Economic, Social and Cultural Rights, General Comment No. 5, Persons with disabilities, (Eleventh session, 1994), U.N. Doc E/1995/22 at 19 (1995), para. 28.
Committee on Economic, Social and Cultural Rights, General comment No. 6, The economic, social and cultural rights of older persons, (Thirteenth session, 1995), U.N. Doc. E/1996/22 at 20 (1996).
See: Martin Scheinin, ‘The Right to Social Security’, in Asbjørn Eide, Catarina Krause, Allan Rosas (eds.) Economic, Social and Cultural Rights (Martinus Nijhoff Publishers, 2001) 211–221, at 215.
Roger Beattie, ‘Social Protection for all: But how?’ 139 (2000) 2 International Labour Review, 129 at 137.
She states: ‘[S]ocial security, as a human right and not a commodity, relies on collective funding. This can be of different types: public, professional community, private (if risks are assessed on the basis of a determined group and benefits paid to this group) or even mixed. In all cases, it is a basic and minimal requirement of the right that it be supervised by an independent, participatory and regulated body.’ Lamarche, supra Sage Russell (eds.), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Intersentia, 2002), 87–114 note 12, at 103.
Articles 71 and 72. In particular, contributions must be affordable, the public authority must regulate the system, beneficiaries must be able to participate in the system and have the right to appeal decisions negatively affecting them. See: Lamarche, Sage Russell (eds.), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Intersentia, 2002), 87–114 ibid, at 94.
Emmanuel Reynaud, supra note 3.
Wouter van Ginneken, supra note 1.
See: Peter Koehler, Hans Zacher in collaboration with Martin Partington, The Evolution of Social Insurance 1881–1981: Studies of Germany, France, Great Britain, Austria and Switzerland (Frances Pinter, 1982).
See: Emmanuel Reynaud, supra note 3, at 1. See also: An Maes, ‘Informal economic and social security in sub-Saharan Africa’ 56 (2003) 3–4 International Social Security Review, 39–58.
Emmanuel Reynaud, supra note 3, at 3.
Reynaud, ibid, states at 4: ‘The extension of social protection calls for a dynamic approach. The process involved is long, and the ultimate aim is to build a generalized national social security system in order to guarantee to all a secure income and access to health care at a level corresponding to the economic capacity and political will of the country. Moreover, it is essential from the outset to provide for linkages and bridges between the arrangements designed for uncovered categories and other social protection mechanisms.’ For the German experience see: Detlev Zoellner, ‘Germany’, in Peter Koehler, Hans Zacher and Martin Partington, supra note 27, 1–92.
ILO, Introduction to Social Security, (ILO, 1984, 3rd edition), at 2–3.
Quote from the Gotha Programme in Detlev Zoellner, supra Hans Zacher and Martin Partington, The Evolution of Social Insurance 1881–1981: Studies of Germany, France, Great Britain, Austria and Switzerland (Frances Pinter, 1982), 1–92 note 30, at 12. However, it is difficult draw generalisations from the German experience. Bismarck’s social security reforms can be largely understood as a way to justify restrictions on the labour movement and remove worker support for the political arms of the labour movement.
See: COHRE, Listening to the Poor: Housing Rights in Nairobi, Kenya (COHRE, 2005) at chapter 5. Available at www.cohre.org/kenya.
For a review see: Johannes Jutting, ‘Social security systems in low-income countries: Concepts, Constraints and the need for cooperation’ 53 (2000) 4 International Social Security Review, 3–24.
See: Deborah Kasente, ‘Gender and social security reform in Africa’ 53 (2000) 3 International Social Security Review, 27–41 and COHRE, Women’s Inheritance Rights in Africa (COHRE, 2004).
A critique on the South African Governments White Paper on Social Welfare stated: ‘Compared to the relative space that is devoted to women and other special groups it is in fact rather astonishing how little is said about men as a social group.... Despite mentioning family violence against women and children, a problem that is highly prevalent in South Africa, the report does not discuss how this might be caused by specific conceptions of male behaviour. There is no thorough discussion of male negligence and neglect (refusal to pay child support for example) and the abandonment of wives and children.’ See: Selma Sevenhuijsen, Vivienne Bozalek, Amanda Gouws and Marie Minaar-McDonald, ‘South African social Welfare Policy: An analysis through the Ethic of Care’, Paper, University of Utrecht, The Netherlands, 2003 at 16 quoted in Rune Ervik, Global Normative Standards and National Solutions for Pension Provision: The World Bank, ILO, Norway and South Africa in Comparative Perspective, Working Paper 8-2003, Stein Rokkan Centre for Social Studies, April 2003.
Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of States parties’ obligations, (Fifth session, 1990), U.N. Doc. E/1991/23, annex III at 86 (1991), para. 10.
The Committee states: ‘By the same token, it must be noted that any assessment as to whether a State has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned. Article 2 (1) obligates each State party to take the necessary steps “to the maximum of its available resources”. In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.’ General Comment No. 3, ibid, para. 10.
See, for example, Committee on Economic, Social and Cultural Rights, General Comment 15, The right to water (Twenty-ninth session, 2003), U.N. Doc. E/C.12/2002/11 (2003).
See interview with Colin Gonsalves in Malcolm Langford, Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies (COHRE, 2003), chapter 3.
Letter from Asian Human Rights Commission to UNICEF, dated 15 March 2005 (on file with author).
People’s Union for Civil Liberties v Union of India, No. 196 of 2001, Interim Order of 2 May 2003.
See, for example, Rick van der Ploeg, Pros and Cons of Basic Income, presented at ‘Basic income versus subsidized employment’ of the 6th B.I.E.N. International Congress 1996, United Nations Office at Vienna, 12–14 September 1996.
Emmanuel Reynaud, supra note 3, at 5.
See: Johannes Jutting, supra note 35 and Reynaud, supra note 3.
Johannes Jutting, supra note 35, at 7.
ILO, supra note 2, at 13.
Jutting, supra note 35.
See: Linda Luckhaus, ‘Equal Treatment, social protection and income security for women’ 139 (2000) 2 International Labour Review, 149.
Ibid., at 153.
‘[A]lthough article 26 [right to equality and non-discrimination] requires that legislation should prohibit discrimination, it does not of itself contain any obligation with respect to the matters that may be provided for by legislation. Thus it does not, for example, require any State to enact legislation to provide for social security. However, when such legislation is adopted in the exercise of a State’s sovereign power, then such legislation must comply with article 26 of the Covenant.’ See the following decisions of the UN Human Rights Committee: Zwaan-de Vries v the Netherlands, Communication No. 182/1984, (9 April 1987) at para. 12.4.
Concluding observations of the Committee on Economic, Social and Cultural Rights: Canada, 10/12/98, E/C.12/1/Add.31, para. 23.
For example, in Taylor v United Kingdom Case-382/98, 16 December 1999, the European Court of Justice ruled that the lower-age threshold for a winter fuel benefit discriminated against elderly men.
In its General Comment No. 15 on Right to Water, the Committee on Economic, Social and Cultural Rights states: The obligation of States parties to guarantee that the right to water is enjoyed without discrimination (art. 2, para. 2), and equally between men and women (art. 3), pervades all of the Covenant obligations. The Covenant thus proscribes any discrimination on the grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation and civil, political, social or other status, which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to water. The Committee recalls paragraph 12 of General Comment No. 3 (1990), which states that even in times of severe resource constraints, the vulnerable members of society must be protected by the adoption of relatively low-cost targeted programmes. See: General Comment No. 15, supra note 40, para. 13.
The Human Rights Committee has commented: [T]he principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population.’ Human Rights Committee, General Comment No. 18: Non-discrimination (1989), para. 10.
Eldridge v British Columbia (Attorney General) [1997] 3 S.C.R., para. 78.
Ibid.
General Comment No. 5, supra note 16, para. 9.
Shoba Arun and T.G. Arun, ‘Gender issues in social security policy of developing countries: Lessons from the Kerala experience’ 54 (2000) 4 International Social Security Review, 93–110, at 98.
See generally: Linda Luckhaus, supra note 50.
See: Malcolm Langford, ‘The Gender Wage Gap in the 1990’s’ (1995) 34 Australian Economic Papers, 62–85.
Ibid.
See: Linda Luckhaus, supra note 50, at 168–169.
Ibid. at 169.
Ibid. at 165.
Ibid. at 158.
For an overview, see: Shoba Arun and T.G. Arun, supra note 61.
See: Linda Luckhaus, supra note 50, at 164.
See: Martin Scheinin and Catarina Krause, ‘The meaning of article 1 of the First Protocol for social security rights in the light of the Gaygusuz judgement’, in Stefaan Van den Bogaert (ed.), Social Security, Non-discrimination and Property (Antwerpen-Apeldoorn, 1997), 59–73 and Martin Scheinin and Catarina Krause, ‘The Right not to be Discriminated Against: The Case of Social Security’, in Theodore S. Orlin et al. (eds.), The Jurisprudence of Human Rights: A Comparative Interpretive Approach (Turku: Åbo Akademi University Institute for Human Rights, 2000), 253–286, at 265.
Gueye et al v France, Human Rights Committee, Communication No. 196/1983 (3 April 1989).
Martin Scheinin and Catarina Krause, supra note 71, at 262.
Decision of the Constitutional Court of Spain, Case No. 130/1995, (1995) 3 Bulletin on Constitutional Case Law 366, quoted in Nihal Jayawickrama, The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, 2002).
R ex parte Adam and others v Secretary of State for the Home Department [2004] EWCA Civ. 540.
Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 (6) BCLR 569 (CC).
V v Einwohnergemeinde X und Regierungsrat des Kantons Bern (BGE/ATF 121 I 367, Federal Court of Switzerland, of 27 October 1995).
For a review see: Martin Scheinin and Catarina Krause, supra note 71, at 269–277.
See: Simon Roberts, ‘Migration and social security: Parochialism in the global village’, presented at The Year 2000 International Research Conference on Social Security, Helsinki, 25–27 September 2000 at 8.
See: FIDH v France, Complaint No. 14, European Committee on Social Rights. For a comment on the implications of this decision, see: Malcolm Langford, ‘Gathering Steam? A Review of Recent Cases from the European Committee on Social Rights’, 2 (2005) 2 Housing & ESC Rights Law Quarterly, 4–6.
Committee on Economic, Social and Cultural Rights, General Comment 14, The right to the highest attainable standard of health (Twenty-second session, 2000), U.N. Doc. E/C.12/2000/4 (2000), para. 34.
See: Malcolm Langford, supra note 82.
For an overview of the debate on pension reform see sources listed in: Monika Queisser, ‘Pension reform and international organizations: From conflict to convergence’ 53 (2000) 2 International Social Security Review 2, in particular debates between McGillivray and Beattie with Estelle James and Robert Holzmann.
Paul Hunt, The international human rights treaty obligations of State parties in the context of service provision, Submission to UN Committee on the Rights of the Child, Day of Discussion on The Private Sector as Service Provider and Its Role in Implementing Child Rights, Office of the High Commissioner for Human Rights, Palais Wilson, Geneva, 20 September 2002 at 2. Available at www.crin.org/docs/resources/treaties/ crc.31/Paul_Hunt-Legal-Obligations.pdf.
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General Comment No. 3, supra note 38, para. 9.
STTK ry and Tehy ry v Finland, Complaint No. 10, para. 20.
Sen, supra note 5, at 120–121.
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Langford, M. (2007). The Right to Social Security and Implications for Law, Policy and Practice. In: Riedel, E. (eds) Social Security as a Human Right. Veröffentlichungen des Instituts für Deutsches, Europäisches und Internationales Medizinrecht, Gesundheitsrecht und Bioethik der Universitäten Heidelberg und Mannheim, vol 26. Springer, Berlin, Heidelberg . https://doi.org/10.1007/978-3-540-31469-1_3
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