Adequate legal and institutional framework and long-term social protection strategies

A human rights-based approach to social protection requires grounding social protection systems in a strong legal and institutional framework. This should ensure both programme stability and the recognition of beneficiaries as rights holders. The need to provide for strong legal frameworks that clearly lay out entitlements, rights and obligations is provided for in Recommendation No. 202 (paras 3b and 7).

In particular, enshrinement in law along with a long-term national action plan for social protection greatly increases the guarantees of social protection for all, and especially for the most disadvantaged and vulnerable groups. It also helps ensure that social protection measures are guarded from political manipulation and that they receive lasting commitment from state authorities, regardless of change of government leaders. An adequate legal framework is one that includes:

• precise eligibility requirements for social protection programmes;
• mechanisms to ensure transparency and access to information about available programmes;
• definition of the various roles and responsibilities of all those involved in implementing the programmes at different levels of government;
• articulation of the long-term financial requirements, ensuring adequacy and predictability of benefits;
• accessible complaints and appeal mechanisms; and
• participation channels for beneficiaries.

A clear institutional framework is essential to enable rights holders to identify duty bearers in charge of specific responsibilities. The institutional framework should facilitate the adequate delivery of social security systems and be administer in a sound, transparent and accountable manner in particular in such a way to allow for financial sustainability in the long-run (ILO Convention No. 102, Articles 71 and 72 and Recommendation No. 202, paras 3j, k, and n).

One key element of an effective institutional framework is a functional financial governance structure. Based on the principles of good governance, set out in ILO Convention No. 102 (Art. 71), the following principles have been identified by the ILO Committee of Experts on the Application of Conventions and Recommendations (2011, pp. 180-199):

1. Social security financing should be sustainable, based on the principle of sustainable financing, and under the general responsibility of the State.
2. Social security funds should be protected to the best extent possible against mismanagement, cyclical fluctuations and market failures.
3. The purchasing power of benefits in payment should be maintained by adjusting them to the costs of living.
4. Financial deficits in relation to social security should be obviated in the long term, through the establishment by the State of a funding plan to assure such solvency.

ILO Recommendation No. 202 (paras 3j, 3k, 11, 12) further specified that national social protection floors should be financed by national resources, yet countries with insufficient economic and fiscal capacities may seek international support to guarantee a basic level of social security for all.

For more on the obligation to adopt and implement a national social security strategy and plan of action under Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), see General Comment 19 of the Committee on Economic, Social and Cultural Rights.

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