With the aim of testing the practical value of the state obligations and responsibility theor
ies, the right to social security has been selected as a basis for the analysis. Right to social security is one of the central elements of social protection, where all different parties and duty holders in the society are involved.
The concept of the social security is one of the most difficult areas of social rights as it creates system of benefits that persons are entitled to. Also, the definition of “social security”
differs. The division proposed by T. Annus and B. Aaviksoo shows best the dichotomy of so
cial security and social assistance176.
Table 8: Social protection
Social protection
Public protection against social risks. Public benefits and support can be provided as subjective rights (includ
ing constitutional rights) as well as under discretion.
Social security
Guaranteed income in the event of social risks
Social assistance support for subsistence
Insurance benefits Public benefits Monetary assistance Social services
Liberal welfare state is based on a unwritten doctrine: every adult (who is not aged nor tied down by family work) has the possibility and responsibility for earning an income by
176Annus & Aaviksoo, 2002, p 8
work and thus of satisfying his needs and those of his family.177
It is however selfevident that this principle has number of exceptions and problems. The rule provides a system that does not meet different social problems such as when the possibil
ity to engage in gainful employment is absent; when the physical capacity for work is absent;
when the income earned is too small or is no longer obtained; when the family is too big and the number of breadwinners too small; when the family needs more services than the mem
bers providing the services can offer; when the parents die or become incapable of working;
when parents do not perform their tasks properly; when the goods (or commodities or ser
vices) which are needed in order to satisfy the needs are not available; when those goods are too expensive; when the satisfaction of certain needs – such as in the event of illness – no longer bears any relationship to the ability to perform etc.
There are also imperfections, hazards and violations in the implementation of the basic doctrine which do not allow the implementation of personal rights. The classical field of inad
equacy of implementation is the work conditions, wages earned for work. The situation of families is unequal. Countering these hazards and deficits is the responsibility of the state.178
The state has here both internal and external possibilities for intervening. Internal inter
vention gives order to the relationships and processes by which they are implemented.
Examples are labour law, collective agreements, equal rights of man and women, protection of children. Second range of obligations relates to external solutions – compensating for defi
cits in income and maintenance (income replacement, unemployment benefits, invalidity benefits, oldage benefits etc.) and supplementing on family income (child allowances) and guaranteeing services.
177Zacher, 1987. In substance, this is an expression of liberty and it includes a variety of different civil and polit
ical as well as social and economic rights which guarantee that income could be earned by work – right to education, freedom of property, freedom to found a family, freedoms which secure autonomy and privacy of persons, right to equality etc. See Zacher, 2002, p 78.
178For a list of examples see Kause, 1987, p 3151; see also Zacher, 2002, p 811.
Table 9: Economic and social rights in various multilateral treaties.
Right UDHR ICESCR CRC ESC 1961 and ESC Revised ACHPR AmCHR, add prot Right to adequate
standard of living
Art. 25 Art. 11(1) Also right to improve
ment of living conditions.
Art. 27 ESC art. 4(1) (for workers and their families); ESC Revised art.
30 (protection against poverty and social exclusion).
Right to housing Art. 25 Art. 11(1) ESC Revised art. 31
Right to food Art. 25 Art. 11(1) Art. 12
Right to clothing Art. 25 Art. 11(1)
Right to health Art. 12 Art. 24 ESC art. 11 (right to the protec
tion of)
Art. 16 Art. 10 Right to medical
care
Art. 25 Art. 24 ESC art. 13 (right to medical as
sistance)
Right to property Art. 17 1* Art. 14 2**
Right to protection of intellectual prop
erty rights
Art. 27(2) Art. 15(1)(c) Art. 14(c)
Right to social secur
Art. 26 ESC art.12 (art. 14 social welfare services) + art. 13 (social assist
ance)
Art. 9
Right of the family Art. 16 Art. 10(1) ESC art. 16 Art. 18 Art. 15
* ECHR, Prot. 1 art 1 includes the right to property
** AmCHR, art. 21 includes right to property
Economic and social rights are closely connected to the property. The right to property however can not be enjoyed on equal basis. Hence, it has to be supplemented by at least two other rights: right to work and right to social security. The right to social security is essential when the a person does not have necessary property available or is not able to secure his or her adequate standard of living though work.179
The systems of social protection in different countries are not only different in their effect but also differ in their organization and funding, according to the cultural, historic and institu
tional backgrounds of the countries in which they are established. However, all social protection systems have one common characteristic – they protect all those in need of assist
ance, whether temporary through illness or the loss of employment or for longer periods as a
179It has been stressed, that right to social security should not be viewed as a matter of charity but as a unilateral right for the individuals concerned. Eide and Eide, 1999 p 534
result of the termination of paid employment, permanent disability or the need to take care of children, regardless of income levels.180
In relation to social security, the following issues have to be dealt with:
– Material scope i.e. the risks covered;
– Personal scope;
– Conditions for entitlement
– Benefits and their adequacy, calculation method, period of entitlement.
– Practical administration: financing the system;
– Right to appeal Risks
Right to social security includes all social policy questions that have the aim of providing security for different social risks and help the individual the capability in continuing the nor
mal life when these risks appear. The are several traditional social risks that have to be covered by the social security system of the states. It has to be noted, that the risks covered by different instruments differ. There nine common risks are unemployment, sickness, maternity, work injury and occupational decease, incapacity to work, old age, health, family, survival.
There is no coverage of the risk of need or poverty as such. Coverage of this risk is typically referred to as “social assistance” whereas the primary focus of the social security is “social in
surance”.
The common nominator of all these risks is that it limits the means of the individual and the family to continue selfsufficient life. Most of these risks are unexpected (although this is not a decisive element in deciding over some risks).181
Coverage
International instruments allow states to chose whom to provide the protection. Social se
curity systems were traditionally designed for substituting income for workers and their families. This understanding has however developed and the tendency today in international
180Social protection in ESC, 2000 p 1516
181Tuori, 2000, p 89
law is to aim for universal coverage.
This is specially so when looking at European Social Charter. Similar tendencies are also seen in ILO system and thus also in UN system. It has to be noted however that the personal scope of a benefit depends on its type and aim.
Benefits
Social security is meant to substitute loss of income. As the loss of income could vary in its length, the system included shortterm benefits (unemployment, sickness, maternity), long
term benefits (old age and survival) and benefits in between (work injury and incapacity).
Some of the benefits are also designed to cover certain costs (housing, studies, single parent
hood). Some benefits are combined with social assistance and provide access to services (health care, rehabilitation etc.).
Benefits can take number of forms. They may be periodic or lumpsum benefits, periodic benefits are paid regularly whereas lumpsum benefits are oneoff payments. Calculation method used for cash benefits may be: earningsrelated, flatrate benefits and means tested be
nefits. The minimum amounts of the benefit are based on the “standard beneficiary”. At the time of creation of the instruments in 1950s and 1960s, the standard beneficiary was defined on the basis of the typical family model.
International instruments set periods below which the maximum duration of the benefit may not fall. The duration of the concrete benefit depends on the type.
Practical administration
The traditional understanding is that the financing principle of the benefits should be solidarity i.e. the system is financed through contributions. Contributions are then redistrib
uted in vertical and horizontal (meaning also the redistribution between generations). The funds are administered by collective funds. The level of contributions is not defined by the in
ternational instruments except stating that they should not leave person in hardship.
The minimum level of benefits is provided for in international instruments. The benefit is usually dependent on average wage and poverty line. Some of the benefits include
cost-com-pensation system and are either universal or means-tested.