Universality of Protection
States parties to major human rights instruments related to economic, social and cultural rights such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) have an immediate minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of all economic, social and cultural rights such as the right to social security and the right to health for all members of society. These minimum essential levels are those which are crucial to securing an adequate standard of living through basic subsistence, essential primary health care, basic shelter and housing, and basic forms of education for all members of society. The ILO Social Security (Minimum Standards) Convention, 1952 (No. 102) provides detailed guidance for the definition of the content of the right to social security under the ICESCR and regional instruments in various parts of the world. The basic social security guarantees constituting national social protection floors, according to the ILO Social Protection Floors Recommendation, 2012 (No. 202) can be considered as reflecting the minimum core content of the right to social security.
Even during times of severe resource constraints, when available resources are demonstrably inadequate, the obligation remains for States parties to demonstrate that every effort has been made to use all resources that are at its disposal in an effort to satisfy, as matter of priority, minimum essential levels and to protect the most disadvantaged and marginalized members or groups of society by adopting relatively low-cost, targeted programmes.
According to the Committee on Economic Social and Cultural Rights, the ICESCR requires States parties:
(a) To ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education. If a State party cannot provide this minimum level for all risks and contingencies within its maximum available resources, the Committee recommends that the State party, after a wide process of consultation, select a core group of social risks and contingencies;
(b) To ensure the right of access to social security systems or schemes on a non-discriminatory basis, especially for disadvantaged and marginalized individuals and groups;
(c) To respect existing social security schemes and protect them from unreasonable interference;
(d) To adopt and implement a national social security strategy and plan of action;
(e) To take targeted steps to implement social security schemes, particularly those that protect disadvantaged and marginalized individuals and groups;
(f) To monitor the extent of the realization of the right to social security (CESCR General Comment 19 para 59).
The Committee has noted that “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 disposal in an effort to satisfy, as a matter of priority, these minimum obligations” (General Comment 19 para 60).
Progressive realization of the right to social protection
The concept of “progressive realization” describes a central aspect of States’ obligations to recognize and protect economic, social and cultural rights under international treaties. This principle is recognized both by the ICESCR and by ILO social security instruments. In terms of the right to social security, it means that States parties have an obligation to take appropriate measures to the maximum of their available resources towards the full realization of the right to social security. The ILO Social Protection Floors Recommendation reiterates the commitment to universal protection, but recognizes that this objective may be reached progressively, giving priority to the implementation of social protection floors as a starting point for those countries that do not have a minimum level of social security guarantees (para 13, 1a). ILO’s Convention No. 102 also sets out the principle of progressive realization in allowing States to initially accept obligations under three of the nine branches of social security, while providing that Members should subsequently accept other branches and move gradually towards the full achievement of the Convention (Article 3).
Referring to their available resource is therefore an acknowledgement of the fact that realization of these rights can be hampered by a lack of resources. Equally, it means that a State’s compliance with its obligation to take appropriate measures is assessed with the consideration of resources—financial and others—available to it.
Although minimum essential levels of social protection such as those provided through national social protection floors should be financed by national resources to the extent possible (Recommendation No. 202, para. 12), “available” resources are not only the resources within a State, but also those available from the international community through international assistance. States that do not possess the necessary resources are obliged to seek assistance to ensure, at the very least, minimum essential levels of enjoyment of social protection. Measures taken should be as expeditious and effective as possible.
Resource constraints prompt many States to target the provision of social security benefits on specific groups of the population, generally the poorest. From a rights-based perspective, targeting should only be an instrument toward the progressive realization of universal coverage. When targeting becomes unavoidable because of resource constraints, the targeting mechanism should abide by the principles of equality and non-discrimination. This means, for example, that the eligibility criteria should be objective, reasonable and transparent, and that stigmatization of beneficiaries should be avoided.
According to the Committee on Economic, Social and Cultural Rights (Committee), there is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under the ICESCR. The Committee noted that, when adopting retrogressive measures, states must demonstrate that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant, in the context of the full use of the maximum available resources. If a State uses “resource constraints” as an explanation for any retrogressive measure, the Committee on Economic, Social and Cultural Rights will assess the situation considering, inter alia, the country’s level of development, the severity of the breach, whether the situation concerned the enjoyment of the essential levels of human rights and whether or not the state had identified low-cost options or sought international assistance. The Office of the High Commissioner for Human Rights writes that the ICESCR “implies a prohibition of measures that would diminish realization of the rights guaranteed by the Covenant, except when justified by certain strict criteria.” Retrogressive measures are those that would lead to a reversal in the enjoyment of rights recognized in the ICESCR. States are responsible for ensuring that their policy does not reduce access to social security.