Saturday, September 23, 2017

Francesco Seatzu

Excerpted from: Francesco Seatzu, The Right to Social Security under Article 9 of the International Covenant on Economic, Social and Cultural Rights, 28 Chinese (Taiwan) Yearbook of International Law and Affairs 191 (2010) (35 Footnotes)

[Editor's Note: United States remains one of seven countries that have not ratified the International Covenant on Economic, Social and Cultural Rights. Without ratification the United States has no obligation under the treaty.]

      On February 2008, the United Nations (UN) Committee on Economic, Social and Cultural Rights (CESCR or Committee) managed to agree on General Comment No. 19 (Comment) outlining the content of the right, the corresponding duties, as well as the potential violations of the human right outlined in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR or Covenant). Hence the Committee has for the first time adopted a general comment on Article 9, which stresses, from the outset, its concern about the very low levels of access to social security with a wide majority of the world population currently lacking access to formal social security, and also regulates the human dimension to the right to social security. This is presently the most authoritative interpretation of the right to social security within the UN human rights system and reflects the current state of international law. Nevertheless, it should be kept in mind that the CESCR has finalized before then two other general comments on thematic issues strictly related to the right to social security, General Comments Nos. 14 and 18, dealing with the right to the highest attainable standard of health, and the right to work, respectively. The general comments should be interpreted in a coherent manner by taking into account the fact that the right to social security cuts across a number of provisions of the ICESCR--e.g. provisions on the right to just and favorable conditions of work, to adequate standard of physical and mental health, adequate standard of living, etc.--even though it is openly indicated only in Articles 9 and 10 of the ICESCR. A confirmation of the cross-cutting character of the right to social security is found in paragraph 28 of the Comment which succinctly recognizes that “[t]he right to social security plays an important role in supporting the realization of many of the rights in the Covenant.” Significantly, the same paragraph also states that “other measures are necessary to complement the right to social security.”

      Article 9 of the ICESCR recognizes the right of everyone to “social security, including social insurance.” A systematic research reveals that quite a number of other international human rights instruments incorporate norms which deal with the right to social security. Among them are Article 5(e)(iv) of the International Convention on the Elimination of All Forms of Racial Discrimination; Article 11(1)(e) of the Convention on the Elimination of All Forms of Discrimination against Women; Article 26 of the Convention on the Rights of the Child; Article 16 of the American Declaration of the Rights and Duties of Man; and Articles 12, 13 and 14 of the European Social Charter.

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      From the wording of Article 9 of the ICESCR, the right to social security--to be understood as the right to receive adequate economic benefits during the typical phases of unemployment due to the objective impossibility to work--is directed, above all, to workers. Self evidently, the formal passive subject is the state, or rather the legislatures and the public administrations of individual states parties. Nevertheless, the substantive passive subject is the entirety of employers and employees (where a mutual insurance scheme characteristic of social security benefits is adopted). In case of illness, old age, accident, maternity, disability, or involuntary unemployment, the employee has the right to receive, without working, income sufficient to meet his or her needs. This is also confirmed by a systematic interpretation of Article 9 of the ICESCR which evaluates that it is preceded by Articles 7 and 8 respectively dealing with the rights to work and to form trade unions. A teleological reading of Article 9 indicates that it pursues the aim of more distributive equality among all individuals who belong to states parties. In other terms, states parties must guarantee all individuals the substantive conditions they need to lead free and dignified lives, even during periods of illness, disability and unemployment. Therefore, unsurprisingly, paragraphs 35 to 39 of General Comment No. 19 stress that the right to social security is also directed to those individuals who are not otherwise qualified as workers. In other words, they indicate that these individuals are also entitled to receive social services and benefits to satisfy their needs in the event of illness, disability, accident, old age, involuntary unemployment, or maternity. All such individuals who are in a condition of particular need, are entitled to receive sufficient social benefits to care for their necessities, according to paragraphs 12 to 22 of the Comment.

      Paragraphs 9 and 10 of General Comment No. 19 implicitly suggest that a reading of Article 9 of the ICESCR, which is indeed a rather laconic provision, does not reflect any specific model of social protection nor does it reflect any binding indication concerning the technical instruments to be adopted to achieve the defined aims. Notwithstanding that the benefits, which are the true object of the subject right, are implicitly defined therein as “social security benefits,” the inherent reference in this provision to national practices and laws to achieve the objectives and the reference in Article 9 to “social insurance” reflect the intention to leave states parties free to organize the scheme of social protection as they consider appropriate, as stated in paragraphs 47 to 51 of the General Comment.

      Various paragraphs of the Comment confirm that Article 9 requires states parties to maintain social security at a satisfactory level, defined as at least the level required by the ILO Convention No. 102. This convention provides for the progressive insertion of nine recognised branches of social security: sickness benefits; medical care; invalidity benefit; unemployment benefit; employment injury benefit; old-age benefit; survivors' benefit; maternity benefit and family benefit. Briefly, Members to the ILO Convention No. 102 are demanded to accept obligations regarding a minimum of three branches of social security. Members should supply those branches to a minimum number of persons. Normally, states may provide for one of four alternative groups: 50 per cent of all employees (Group 1); classes of the economically active population which constitute at least 20 per cent of all residents (Group 2); all residents who lack the means to live in decency and health (Group 3); and a percentage of residents (Group 4). Nevertheless, all four alternatives are not available for each benefit. Benefits provided under these branches must satisfy a certain minimum level. The minimum levels of income-replacement benefits range between 40 to 50 per cent of previous or average earnings. These levels are understood to be sufficient to “maintain the family of the beneficiary in health and decency.”

      As several paragraphs of the Comment firmly establish, having the ILO Convention No. 102 at the core of Article 9 of the Covenant confirms a number of significant issues. First, it confirms that social security should be defined under the ICESCR in accordance with the ILO's definition of social security. Consequently, social security in international law does not embrace social assistance. Rather, there are nine branches of social security which respond to an erosion of earning power occurring in nine situations. However, Article 9 of the ICESCR does not refer to any of these branches. Second, with the exclusion of the family benefit, social security benefits aim to supply a replacement income which is normally sufficient to at least guarantee a minimum standard of living. Third, although social security may be supplied privately, states remain ultimately responsible for their duties as per the ILO Convention No. 102. Fourth, individuals must have a right of appeal in respect to the “refusal of the benefit or complaint as to its quality or quantity” unless the claim “is settled by a special tribunal established to deal with social security questions and on which the persons protected are represented.” Fifth, the reference to the ILO Convention No. 102 corroborates that Article 9 of the ICESCR allows conditions to be attached to social security benefits. Finally, the reference to the ILO Convention No. 102 for the definition and characterization of the right to a system of social security under Article 9 of the Covenant confirms that states parties to this provision may adopt waiting periods vis-à-vis certain branches. Therefore, it is clear that under this system, the branches, levels and beneficiaries of social security may vary between states parties. This reference sits contentedly with the implicit reference in the text of Article 9 to the faculty of states parties to operate in accordance with national practices and laws.

      General Comment No. 19, quite obviously, given its provenance, goes into detail in discussing indicators and benchmarks by which the adequacy of social security provided under Article 9 of the ICESCR should be assessed. First, it states in various paragraphs that indicators should address the various elements of social security (such as coverage of social risks and contingencies, adequacy, accessibility and affordability). Paragraph 75 of the Comment explains that the indicators must be disaggregated on the prohibited grounds of discrimination, and encompass “all persons residing in the territorial jurisdiction of the state party or under its control.”Nevertheless, it is rather difficult to discern specific standards from the CESCR's concluding observations. This is quite surprising as Article 9 of the Covenant contains its own set of technical standards designed to guarantee the right to social security. Occasionally, the CESCR has shown concern when solely a very small percentage of the population (15%) is covered by social security plans and also when there is a substantial disparity in the coverage of non-resident (including migrant workers and internally displaced persons) and resident workers, as well as in the coverage of workers employed in the formal sector and self-employed workers (including small farmers, and their families) or workers in rural and urban areas. Second, once again paragraph 75 identifies proper indicators from the ongoing work of the ILO, World Health Organization and International Social Security Association, as being the tests for determining the adequacy of social security benefits. Moreover, indicators are normally sought by making reference to minimum and average wages. Alternative bases of comparison occasionally referred to include household consumption data, the level of old-age and unemployed insurance and consumer prices index. Third, the Committee has also focused on the relationship between social assistance and minimum wages. This means that where cuts in social assistance, services and programmes has had a significantly harsh impact on women, in particular single mothers, who are the majority of the poor, the Committee should seek assurance that individual basic needs may be encountered. States parties are invited to use these indicators for the right to social security so as to set up suitable national benchmarks. Paragraph 76 of the Comment explains, at the end, that: “When setting benchmarks and preparing their reports, states parties should utilize the extensive information and advisory services of the United Nations specialized agencies and programmes.”

      It is also worth mentioning that retrogressive measures are, at least in principle, unacceptable in terms of Article 9 of the ICESCR. Paragraph 42 of the Comment briefly explains that “[t]here is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under the Covenant.”Rebus sic stantibus, it follows that states parties have the burden of demonstrating in their periodic reports to the CESCR that these measures have been established after the most cautious examination of all alternatives and that they are accordingly acceptable by reference to the entirety of the rights encompassed in the Covenant, in the context of the full employment of the maximum of their available resources. This also explains why the Committee often insists on evaluating the suitability of any measures taken in pursuit of such aims. To this end, it requests information on the nature, extent and outcomes of changes, the necessity of reform, the adequacy of the reform in the specific situation and the existence of social assistance measures for those consequently in need. Paragraph 42 of the Comment concludes by allowing the CESCR to enquire, inter alia, the existence of a real participation of concerned groups in analyzing the proposed alternatives and measures, the availability of an autonomous review of the measures at the national level and the impact of these measures on the realization of the right to social security. Clearly enough, this demonstrates the narrow discretion granted to states parties in realizing the right to social security and shows that this right cannot be interpreted so as to respond to the economic needs incumbent on individual states. An indirect confirmation of this is in paragraph 28 of the Comment which provides that “the adoption of measures to realize other rights in the Covenant will not in itself act as a substitute for the creation of social security schemes.”Finally, General Comment No. 19 addresses in several paragraphs the primary responsibility to ensure that the right to social security lies with the state. First, paragraph 47 emphasizes that states parties have the duty to “adopt the necessary measures ... towards the full realization of the right to social security.”Second, paragraph 50 stipulates that “States parties are also obliged to provide the right to social security when individuals or a group are unable, on grounds reasonably considered to be beyond their control, to realize that right themselves, within the existing social security system with the means at their disposal.”Third, the same paragraph indicates that “States parties will need to establish non-contributory schemes or other social assistance measures to provide support to those individuals and groups who are unable to make sufficient contributions for their own protection.”Nevertheless the extraterritorial duties of states, have also been stressed by, inter alia, the Committee. They comprise the duties to respect, protect, and fulfill the right to social security of citizens in other countries. Paragraph 54 of the Comment clarifies that states “should extraterritorially protect the right to social security by preventing their own citizens and national entities from violating this right in other countries.”

      This signifies that states must, at the very least, endeavor to guarantee that their own policy choices (e.g., lending policies and credit agreements) do not negatively affect the right to social security of citizens in other countries. Besides respect-bound duties, states parties are also obliged to ensure that private actors from their own country do not contribute to the violation of the right to social security in other countries. The duty to respect requires the state, according to paragraph 56 of the Comment, to cooperate internationally to “ensure that the right to social security is given due attention in international agreements and, to that end, should consider the development of further legal instruments.”In other words, states parties should cooperate in creating an environment where the right to social security may be implemented.

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