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The Compatibility between ILO Recommendation 202 on Social Protection Floors and the ICESCR

5 May 2014


The Compatibility between ILO Recommendation 202 on Social Protection Floors and the ICESCR
This contribution is published as part of the UNRISD resource platform for practitioners and policy makers Linking Social Protection and Human Rights. This part of the platform is a collection of expert contributions and commentary from advocates, practitioners, policy makers and academics sharing practical guidance and thought-provoking commentary on their experiences with a human rights approach to social protection. Please share your thoughts on this article in the comments space below.

Francine Mestrum’s research concerns social development, poverty and inequality, social protection, globalisation and alternatives. She has worked at the universities of Ghent, Antwerp en Brussels (ULB) and at different European institutions.

Are R.202 and the ICESCR compatible?


It is undeniably relevant to consider the compatibility of the International Labour Organization’s (ILO) Recommendation No. 202 and the International Covenant on Economic, Social and Cultural Rights (ICESCR), given that the ICESRC is very demanding, covering not only social security and its main nine branches, but also questions like work and working conditions, education, food, shelter and clothing. ILO Recommendation 202 (R.202) is seen as a minimum requirement for social protection measures that all developing countries should be able to take in the short term.

R.202:
    “…The guarantees should ensure at a minimum that, over the life cycle, all in need have access to essential health care and to basic income security which together secure effective access to goods and services defined as necessary at the national level.” (§ 4)

    “ The social protection floors … should comprise at least the following basic social security guarantees: … access to a nationally defined set of goods and services … basic income security for children … for persons in active age who are unable to earn sufficient income … for older persons.” (§ 5)

ICESRC:

General Comment 19 on Article 9 on the right to social security speaks of:
    “Nine principal branches to be provided: health care, sickness, old age, unemployment, employment injury, family and child support, maternity, disability, survivors and orphans.” (§ 59)

At the level of discourse, these provisions are perfectly compatible, since ICESCR does not say anything about the level of protection or whether it should go beyond the “minimum” required by the ILO.

As for compatibility with Article 11 of ICESCR:
    “1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing …
    2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger …”

There is no General Comment on what an “adequate standard of living” means. R.202 does not mention food, clothing, housing, though Article 8b says that social security that should “allow for a life in dignity”.

The difficulty in assessing the compatibility of the two documents lies in the use of vague and subjective terms such as “minimum”, “adequate”, “dignity”, “essential”. All depends on the content one gives to these terms, but a priori there is no reason to think there is any incompatibility, not in general and not relative to the human rights standards of accessibility, adaptability, acceptability and adequacy (also known as the 4As).

A preparatory document1 on R.202 states: “This report adopts a pragmatic position on definitions. The term ‘minimum income security’, ‘essential health care’, ‘adequate social security’ and other similar terms are set out only for the purpose of national social protection floors, and their definitions are left to the determination of member states.” Moreover, R.202 puts its social protection floors in the framework of its Convention 102 of 1952, which concerns the minimum standards of social security and is more complete than R.202.

If one combines these statements with General Comments 13, 14 and 19 on the ICESCR, relative to the right to education, the right to the highest attainable standard of health and the right to social security, one sees that all mention “minimum core obligations”. They refer to “minimum essential levels” of each of the rights enunciated in the Covenant: access to health facilities, minimum essential food and freedom from hunger; access to basic shelter and water; essential drugs; national public health strategies.As for the right to social security, a minimum of the nine branches of social security are mentioned.

At this discursive level, one can conclude that ICESCR is more complete than R.202, but the mention of “core obligations” as well as the use of vague and subjective words do not permit any conclusion in terms of incompatibility. Both texts leave room for flexible interpretation.

Problems at the level of implementation?


However, problems may arise at the level of implementation of R.202 which may point to difficulties in complying with ICESCR.

Since much leeway is given to member states for interpretation of the terms “adequate”,“minimum”, “basic”, “essential”and so forth, and since these terms have no clear meaning, they may be interpreted in many divergent ways, leaving behind the requirements of ICESCR and not leading to “a life in dignity”.

What R.202 prescribes, in order to be compatible with ICESRC, probably goes further than estimated minimum financial requirements.2 It is clear that a “life in dignity” with “basic income security” should mean an income allowing people to escape poverty, and thus beyond the most generous conditional cash transfers or other non-contributive allowances currently in existence. This would mean serious financial constraints for the poorest developing countries, especially to comply with the human rights requirement of accessibility.

Major compatibility problems do not derive from ICESCR, but from directives at other levels, imposed or recommended by, for instance, financial organizations. They concern:
  • The role of the state: ICESCR as well as R.202 give a clear role to the state. R.202: “Basic social security guarantees should be established by law” (§ 7); “Recognizing the overall and primary responsibility of the state in giving effect to this recommendation” (§ 3). As for ICESCR, states are obliged to respect, protect and fulfil human rights.
    Many World Bank documents question these state obligations; according to its World Development Report 1997, social insurance is best taken care of by the market, whereas states remain responsible for poverty reduction. The latest World Bank document on social protection3 emphasizes that social protection is only meant for the poor and should be carefully targeted. Its new strategy,4 adopted at its Annual Meeting in autumn 2013, does not speak of social protection any more, but only of eradicating extreme poverty. The question then is: Can one achieve a “life in dignity” when policies do not go beyond this?
  • Universality versus targeting: More in general, there may be a possible contradiction between universality as posited by R.202 and ICESCR, and the persistent targeting approaches of the World Bank; even R.202 is rather ambiguous and does not exclude targeting for those “in need”. This is one point where R.202 might be in contradiction with the universalism of ICESCR. The selection of beneficiaries for targeting is almost always arbitrary and even the definition of criteria for the cut-off point for income or deprivation is arbitrary and can be said to be discriminatory. Only if one works with broad categories like gender, age or region can one avoid this.
  • Workers' rights: Another question concerns decent work as defined by the ILO. The yearly World Bank Report Doing Business leads to serious questions about its compatibility with the ILO and with ICESCR. ICESCR does mention the rights of workers. R.202 says that,
    “members should ensure coordination with other policies that enhance formal employment, income generation, education, literacy, vocational training, skills and employability, that reduce precariousness, and that promote secure work, entrepreneurship and sustainable enterprises within a decent work framework.”(§ 10.c)
    In a preparatory document5 to the International Labour Conference it says “Consensus concerning social security is underpinned by the decent work agenda including its four pillars: employment, social dialogue, social protection and standards and fundamental rights,” (point 4) This wording is stronger than in the Recommendation. It also says that “collective bargaining and freedom of association play an important role in helping employers and workers negotiate social security provisions … agreements should be in the framework of a state regulatory framework.” (point 24)

    These are points that have never been accepted by the World Bank, as can be seen in its Doing Business Report 2013 report, even if its World Development Report 2013 on labour seems to have some openings.
    While there may be doubt about the compatibility of the informal rules of the World Bank and R.202, there certainly is a contradiction with ICESCR. The World Bank’s views on the state are more oriented toward protecting markets than toward protecting people.
  • Dispute settlement: A final point of incompatibility concerns investment and trade agreements that now almost always contain a rule concerning dispute settlement and international arbitrage. This means that whenever a corporation thinks a national rule may harm its interests, it should not turn to the national jurisdictions, but can take its cause to an international arbitration procedure. This has happened in the past with social and environmental rules and in the case for the de-privatization of water. The same thing might happen in the case of states trying to introduce generous social protection systems, recognizing workers rights or with preventive health policies, in order to provide all people with “a life in dignity”.
    States might want to avoid conflicts with financial organizations and the risks involved in international dispute settlements. This might lead to a very minimal implementation of R.202. While R.202 is not by definition incompatible with ICESCR, it would lead to under-implementation, not fulfilling ICESCR.

FOOTNOTES
1 ILO. 2012. Social Protection Floors for social justice and a fair globalization, Report IV, document ILC.101/IV/1, point 7, p. 3. Geneva, ILO.

2 ILO. 2008. Can low-income countries afford basic social security? Social Security Policy Briefing Paper 3. Geneva, ILO.

3 World Bank. 2012. Resilience, Equity and Opportunity, Washington, The World Bank.

4 World Bank. 2013. World Bank Group Strategy, doc.DC2013-009, Development Committee, 18 September. Washington, The World Bank.

5 ILO. 2011. Conclusions concerning the recurrent discussion on social protection (Social security), point 4: Resolutions adopted by ILC at its 100th session. Geneva, ILO.

ABOUT THE AUTHOR
    Francine Mestrum’s research concerns social development, poverty and inequality, social protection, globalisation and alternatives. She has worked at the universities of Ghent, Antwerp en Brussels (ULB) and at different European institutions. She is a member of the board of CETRI (Centre Tricontinental) which she represents at the International Council of the World Social Forum. She coordinates the global network of Global Social Justice. Her most recent (e-)book is ‘Building another World. Re-thinking social protection’. She has a PhD in social sciences and is based in Brussels and México D.F.

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This article reflects the views of the author(s) and does not necessarily represent those of the United Nations Research Institute for Social Development.