The Right to Social Security: Navigating the Narrow Passage Between Virus Suppression and Economy Resuscitation

[Dhevy Sivaprakasam is an International Associate Legal Adviser for International Commission of Jurists, Asia and Pacific Programme. Twitter: @Dhevy_Siva. Dilfuza Kurolova is a Legal Consultant for International Commission of Jurists, Europe and Central Asia Programme. Twitter: @kurolova_d.]

As the initial shock of disorientation caused by COVID-19 wanes, across the world we will struggle to resettle into a nebulous new reality. Unsettling questions loom. How will the virus impact on economies, and what will that mean for our standard of living, and that of people from different segments of societies around the world? How many jobs will be lost, and can they be replaced? Who will suffer most, and how can governments assist them to weather the storm? When will economies recover – will they recover and what will such recoveries look like? And at the center of all these concerns: can our governments and leaders around the world be trusted to patch cracks in time before millions topple through them? 

The global economy now looks set to contract more significantly from the “Great Lockdown” than the 2008 financial crisis, with reverberating shocks on national economies and the economic security – and vulnerability – of millions if not billions of individuals. Unemployment and underemployment are expected to increase significantly across countries, regardless of development or income levels. Governments no doubt face enormous challenges in meeting both social expectations and their international legal obligations. As political philosopher John Gray has noted, “Governments everywhere are struggling through the narrow passage between suppressing the virus and crashing the economy. Many will stumble and fall.”

From the perspective of international human rights law, these questions can only be answered with reference to the obligations of States to realize the right to social security and social assistance in the broader context of the right to an adequate standard of living. At the dawn of the modern human rights era, the Universal Declaration of Human Rights (UDHR), encapsulated the aim of eliminating “freedom from want”. The rights that emerged were of course later developed in the legal instrument of the International Covenant on Economic, Social and Cultural Rights (ICESCR). When considering the need for and adequacy of stimulus packages, social safety nets and economic recovery plans to combat COVID-19, these rights must therefore be at the center of the conversation.

From this perspective, a State’s ability to overcome economic crises induced by COVID-19 will be defined by how successfully they guarantee in law and ensure in practice the rights to social security and an adequate standard of living for all persons without discrimination. Previous pandemics and crises illustrate this well. 

As the International Labour Organization (ILO) noted, lessons from previous economic crises have indicated that having effective social security infrastructure in place is a “powerful stabilizer of economies and societies”. The Ebola outbreak, for example, revealed that inadequate social protection mechanisms increased income insecurity in already vulnerable populations and enlarged the poverty gap. 

Moreover, in the wake of the 2008 financial crisis, ILO’s Social Protection Floors Recommendation (No. 202) was adopted, with States globally committing to establish and maintain national floors of social protection to enhance and extend social security for their populations. This has also become a repeated refrain in the Concluding Observations to States of the UN Committee on Economic, Social and Cultural Rights (CESCR) – the body mandated to provide authoritative guidance to States Parties to the ICESCR.       

What is the right to social security and what does it mean?

Article 9 of the ICESCR entrenches “the right of everyone to social security, including social insurance.” In General Comment No. 19, the CESCR pointed to the importance of social security to alleviate poverty, protect against social exclusion and strengthen social cohesion “through its redistributive character”. It identified the scope of the right broadly as encompassing: 

• the right to “access and maintain benefits, whether in cash or in kind, without discrimination”; 
• the right not to be “subject to arbitrary and unreasonable restrictions of existing social security coverage”; and
• the right to “adequate protection from social risks and contingencies”.

States must therefore refrain from directly or indirectly interfering with the right to social security, including by ensuring that third-party private actors such as businesses do not interfere with the enjoyment of this right. This squares with the emphasis on the duty to protect economic, social and cultural rights (ESCR) in the UN Guiding Principles on Business and Human Rights. Moreover, States must adopt necessary measures to facilitate individuals’ enjoyment of the right to social security, including by the provision of direct assistance through grants and transfers, and promote social protection measures to all individuals. 

As with other rights under the ICESCR, the right to social security obliges States to ensure that social security measures are: available (in terms of domestic law); adequate (to ensure an adequate standard of living); and accessible (physically and economically without discrimination).

States that are not parties to the ICESCR are bound to respect to the right to social security, if not the precise CESCR jurisprudence, pursuant to articles 22 and 25 of the UDHR and other international instruments that may be applicable to them. Indeed almost all States are party to the Convention on the Rights of the Child, which provides, among other things that every child has “the right to benefit from social security, including social insurance” which States must take  “necessary measures” to achieve.

What does the right to social security mean in the context of COVID-19?

The COVID-19 crisis is magnifying existing inequality and exacerbating existing poverty globally. Differences in wealth and income levels are reflected in differing strategies and precautionary measures undertaken by States to prevent COVID-19 transmission and combat concomitant social and economic challenges. The economic implications of the outbreak are already coming to bear more severely on vulnerable populations across countries, regardless of their level of development. From South Africa to India and across the world, many people are struggling to afford food, housing and other basic essentials during extended lockdown periods which they could not have predicted or saved for. 

Government responses have been varied and have often been inadequate. The UN Special Rapporteur on Extreme Poverty and Human Rights, Philip Alston sharply observed that “in a moral failing of epic proportions, most States are doing all too little to protect those most vulnerable to this pandemic”, focusing instead on protecting the economic interests of the richest groups in society. He also noted that while crucial steps had been taken by most governments to combat the crisis, “for the most part support measures have been utterly inadequate and the most vulnerable populations have been neglected”.

Moreover, in its Statement on COVID-19, the CESCR is clear about States’ obligations in terms of the right to social security during the pandemic. It indicates that States are required to:

• Implement targeted programmes to “protect jobs, wages and benefits of all workers”;
• Provide “social relief and income-support programmes to ensure income and food security to all those in need”; and
• Take “specially tailored measures to protect the health and livelihoods of vulnerable minority groups”.

The resources required to fulfill these obligations are no doubt substantial at a time when the strains on States’ budgets are already pronounced. States are required to respect, protect and fulfil the right to social security by taking steps to the maximum of a State’s available resources towards progressive realization of the right – including through international assistance and co-operation. These steps must be deliberate, targeted and exercised with discrimination. In the context of COVID-19, the CESCR has doubled down on the force of this obligation indicating that “extraordinary mobilization of resources” is required to expand States’ existing pools of resources.

What is to be done?

As the President of South Africa noted when announcing a stimulus package amounting to 10% of the country’s GDP, “the world we live in will never be the same”. States are urged to remember crucial lessons from crises past in facing one of their most formidable challenges ahead posed by COVID-19. As data compiled by the ILO shows, though many States have taken some social protection measures, a mere 17% of them have introduced a “special allowance/grant” for COVID-19 relief and only 13% of States have introduced measures to support unemployed people directly. It would seem that Special Rapporteur Alston is correct that such responses are, on average, “utterly inadequate”.

COVID-19 looks set to exacerbate fissures of wealth and income inequality not only within nations but also between them, which will imperil stability and peace for generations to come. Governments will be required to not only concentrate on providing social protection for their inhabitants, but those beyond their borders through international co-operation and assistance. In navigating the narrow passage between virus suppression and economy resuscitation, States are obliged to do so in human rights compliant manner, including by ensuring the right to social security of all people.