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.
is a professor at the Faculty of Political Science and Law of the University of Québec in Montreal, Canada.
ILO and the right to social security: implicit assumptions about women
The twentieth century witnessed the development of national social security and social protection mechanisms aimed at providing economic, social and public answers to address social risks. Social security schemes were based on the assumption that either women were to behave like male workers in the industrial sector, and get a job, or would be considered as wives of such male workers. Only under these conditions would they benefit from social security schemes. The unstated meaning of such assumptions was that women were first and foremost dependants carrying out the bulk of domestic and unpaid work. Unless women were formally employed or were widows, they were not rights holders in any meaningful sense independent of male relatives and/or their families. The only, but nevertheless important, explicit protection granted to women at the time was maternity related. The International Labour Organization’s (ILO) Social Security (Minimum Standards) Convention, 1952 (No. 102) captures this discriminatory dynamic and has since been criticized for it. ILO Convention No. 102 also provided only marginal protection to persons and to families living in less and non-industrialized countries where the informal sector and informal economy prevail and where women were clearly invisible. In fact, social security programmes that were developed according to the principles of ILO Convention No. 102 were rarely universal, neither did they adequately address all women’s needs, nor fully respect the principle of gender equality.
We have recently witnessed a global change in social and development policy, which is largely premised on the recognition of the role of women in a global economy. Razavi (2011) suggests that this new economy calls for human and social ‘investments in women’. For these reasons, the current global social policy agenda aims to fight against women’s poverty, extreme poverty and social exclusion. Some, however, are sceptical. Is the global fight against women’s poverty grounded in risk management theories (poor and extremely poor women, as mothers and as women, are a bad risk for the global economy) or is it inspired by the need to promote women’s rights?
Social security and social protection are rooted in a human and women’s rights framework which is embedded in many international human rights instruments. Fredman (2009) suggests that substantive gender equality is a multidimensional concept pursuing the four overlapping aims of redistribution, recognition, transformation and participation. Such dimensions should en-gender all of women’s human rights, including their right to social security and social protection. Applying this conceptualization of gender equality means considering equality as a multifaceted norm that factors the gender dimension into all rights. As I will try to explain in the coming paragraphs, my hypothesis is that the heritage of the ILO with regard to social security still constitutes a significant obstacle to the en-gendering of the right to social security.
ILO Recommendation No. 202 (2012) on social protection floors: We’ve come a long way, but …
In 2001, the International Labour Conference acknowledged the need to root social security mechanisms in a human rights framework. More than a decade separates the report Social Security—A New Consensus, adopted by the International Labour Conference in 2001, and the adoption of ILO Recommendation No. 2021
by the Conference in 2012.2
During this decade, significant efforts were made all over the world to address poverty. Cash transfer programmes (sometimes conditional), employment guarantee programmes, tax incentives and universal basic income security measures, among others were introduced and tested (see for example UNDP 2011, and ISSA 2013). Also, some of the UN human rights treaty monitoring bodies began to assess those programmes from a gender equality perspective (for a detailed analysis of the General Observations adopted by some human rights committees in regard of women’s right to social security, see Goldblatt and Lamarche, forthcoming). They sought to understand how these ‘new’ programmes might negatively impact on women, sometimes by overburdening them with correlative duties as mothers.
In a context of such rich empirical attention being given to women’s access to social protection, one could reasonably expect that the ongoing work that led to the adoption in 2012 of ILO Recommendation No. 202 would reflect upon the risks of social protection programmes that may not be designed within a women’s rights framework. One could imagine that the Recommendation would also consider the special needs of women, but without oversimplifying the issue of the relationship of women to the informal sector economy and to unpaid and domestic productive and reproductive activities. Unfortunately, the ILO itself recognized that this was not the case (see ILO 2012, paragraph 30) . On the contrary, women were to be considered as belonging to the anonymous and un-gendered sub-group of the poor and extremely poor.
In the 2011 debate leading to the final adoption of the Recommendation No. 202, the idea of en-gendering social protection received scant attention on the part of the International Labour Conference. In fact, the CEACR Report,3
which provides a general survey of then existing social security instruments, gives the impression that the Committee was assuming a different kind of strategy, not a possible Recommendation, would be necessary in order to address the gender deficit associated with social security and social protection standards.
Only in a footnote included in the Report do we find a quote from the United Nations Chief Executives Board for Coordination (UN CEB) that obliquely suggests what an engendering process of the right to social security may look like. It suggests that a social protection floor should consist of two main elements that help to realize respective human rights: (1) services: geographical and financial access to essential services (such as water and sanitation, health, and education); and (2) transfers: a basic set of essential social transfers, in cash and in kind, paid to the poor and vulnerable to provide a minimum income security and access to essential services, including health care. This analysis is surprisingly gender blind when one considers the well-established and positive causal link between women’s rights, including their right to equality, and free and accessible public services such as daycare, reproductive health services, transportation, education, and so on. Clearly, women, and especially poor women around the world need good, reliable and accessible public services to live in dignity as women. And if the connection between public services and women’s right to basic health services is an obvious positive development in regard of women’s rights, it is nevertheless an incomplete acknowledgment of what a genderized right to social security and protection means.
Access to social protection for all has been at the heart of a debate inside the ILO for over a decade (see Beattie 2000) and was clearly the object of a consensus in 2011. Nevertheless the Drafting Committee took the project of engendering social security in another direction: the minimalist one.
What is in Recommendation No. 202?
A basic social protection floor is, according to Article 3 of Recommendation No. 202,4
governed by eighteen principles. The principles are largely drawn from the text of General Comment No. 19
on the Right to Social Security adopted by the UN Committee on Economic, Social and Cultural Rights in 2008. Non-discrimination, gender equality and responsiveness to special needs, presented in an amalgamated and undefined way in paragraph (d) of Article 3 constitute one of those principles.
Article 4 is the backbone of Recommendation No. 202. States, as members of the ILO, are to establish (as quickly as possible) and maintain a social protection floor comprising basic social security guarantees. Such guarantees should “ensure at a minimum, access to essential health care, basic income security and access to goods and services, defined as necessary at the national level”.
Article 4 is silent about the principle established in article 3(n) of the Recommendation which requires, as a principle, access to high quality public services. Considering, again, the essential relation of women to public services of quality, this omission can be considered a missed opportunity. Accordingly, a reasonable interpretation of both article 3(n) and 4 of the Recommendation could be that the availability of a basic income guarantees access to essential services through the market.
The CESCR’s General Comment No. 19 does not consider public services as the only and exclusive way to protect, to promote and to fulfil the right to social security. Yet, a gender analysis of such a right shows, without a doubt, the relevance of such public delivery from a gender perspective.
Article 5 of the Recommendation defines the core content of a national social protection floor programme which must include: essential health care (defined as a set of goods and services—not necessarily public) including maternity care (paragraph (a)); basic income security for children providing access to nutrition, education, care and other necessary goods and services, as defined nationally (paragraph (b)); basic income security for persons in active age incapable of earning sufficient income, in particular in cases of sickness, unemployment, maternity and disability (paragraph(c)); and basic income security for older persons.
However, there are concerns around Recommendation No. 202 that should elicit greater condemnation. In particular, it neglects to take explicitly into account what it means to be a poor woman. This is because ILO Recommendation No. 202 amalgamates all poor persons into one category that can be broadly described as the ‘vulnerable ones’. By doing so, the Recommendation obliterates not only the specific burden that women carry in a global economy that significantly aggravates their care giver’s responsibilities but also, it affirms their role as poor women, which is to manage the risk of household poverty. Rather than contributing to the en-gendering of women’s rights, including their right to social security, ILO Recommendation No. 202 implicitly confirms the fact that poor women have poor rights … and a ton of responsibilities.
Why is it that the recent understanding by some UN human rights treaty bodies—such as CEDAW or the Economic, Social and Cultural Rights Committee—of the right of women to social security and social protection is not reflected in the work of a specialized agency like the ILO, but for a list of principles enumerated in Article 3 of the Recommendation?
ILO needs a gender lens
For the ILO, contributory social insurance regimes are still the dominant paradigm and formal sector employment remains the reference model. In other words, ILO Recommendation No. 202 just makes women differently invisible. The idea of analysing the impact of the new cash and in kind social transfer programmes (as basic anti-poverty measures) on women and providing direction for them, seems to be beyond the reach of the standard-setting function and capacity of the ILO. There is a political barrier to the consideration of a multifaceted vision of gender equality which reveals the limits of mainstreaming gender inside the institution.
ILO Recommendation No. 202 is neither gender inclusive nor gender specific. It does not address, apart from one important issue—free pre-natal and post-natal medical care5
—the structural inequalities that women are victims of in a globalized and ‘new’ economy. Further, it assumes that poor women should simply be treated like poor men, with a bit of financial help.
Yet, as the work of Special Rapporteur Sepúlveda Carmona has shown (2012), women are not equally situated in relation to men even with regard, for example, to universal basic cash transfers. Violence, racism, corruption, intra-household dynamics and dominant local power relations negatively impact on women’s access to such benefits. Mainstreaming a gender approach into the implementation process of ILO Recommendation No. 202—namely by providing a genderized follow-up mechanism—would also make an unaddressed issue even more obvious: The Recommendation does not talk at all about care and domestic responsibilities.
Like many others, I moderately celebrated the adoption of ILO Recommendation No. 202. After all, it is the best answer so far to the call for social protection for all. My main concern, that being said, concerns the narrative about women that accompanies this Recommendation. Women’s vulnerability is a cause and a consequence of the violations of all their human rights. And women’s poverty and extreme poverty, when seen mainly as an obstacle to the investment in the human capital they carry, will produce a strategy that only partially addresses their right to equality. It makes them lightly visible, or visible in as much as the economy absolutely needs functional families and households that can engage with the market economy. Poor women are then seen as responsible for this functionality and as a consequence, responsibility is put ahead of rights. But women’s right to social security and to social protection is about more than their newly assigned role in the global economy. It is also about acknowledging how their need for public services is different to that of men, how necessary their caring role is (not only in the family but in the community as well) and how such realities make them especially vulnerable. In other words, I’m still waiting for women to be made effectively visible in the debate about social security and social protection.
Only ILO Conventions are binding for Member states. Recommendations are not. Within the ILO normative framework, a Recommendation can have different functions. It can explain a norm laid down in a Convention; it can also contain richer commitments to be incorporated in future Conventions. Finally, a Recommendation can also play the role of "second best" where the adoption of a Convention was not possible. I suggest that this is the case with Recommendation No. 202.
The ILO Report Social Security—A New Consensus
opened the way to the creation of the tripartite Committee for the Recurrent Discussion on Social Protection Floor
(International Labour Conference, 101st Session, Geneva, International Labour Organization, 2012). The creation of this Committee was preceded by the submission to the International Labour Conference of the Report of the Committee of Experts on the Application of Conventions and Recommendations [CEACR]—General Survey Concerning Social Security Instruments in Light of the 2008 Declaration on Social Justice for a Fair Globalization: Social Security and the Rule of Law
(International Labour Conference, 100th Session, Report III (Part 1B),
Geneva, International Labour Organization, 2011). This Report underlined the urgent need to look at social protection from a human rights perspective as well as from the perspective of the added value of a human rights framework. In 2012, the Committee for the Recurrent Discussion on Social Protection Floor
submitted to the Conference the text of a Recommendation to be adopted by it. Recommendation No. 202 on social protection floors was adopted by the Conference in 2012.
See footnote 2.
I am not in this comment considering Part III of the Recommendation entitled "National Strategies for the Extension of Social Security", Articles 13 and ff.
Article 8 (a) of Recommendation No. 202 reads as follows : "8. When defining the basic social security guarantees, Members should give due consideration to the following: (a) persons in need of health care should not face hardship and an increased risk of poverty
due to the financial consequences of accessing essential health care. Free prenatal and postnatal medical care for the most vulnerable should also be considered." (emphasis added).
Beattie, Roger. 2000. "Social Protection for All: But How?" International Labour Review
Fredman, Sandra. 2009. "Engendering Socio-Economic Rights." South African Journal of Human Rights
Goldblatt, Beth and Lucie Lamarche. Forthcoming. "Introduction: Interpreting and Advancing Women’s Rights to Social Security and Social Protection" in Interpreting and Advancing Women’s Rights to Social Security and Social Protection
, edited by Beth Goldblatt and Lucie Lamarche. Oxford: Hart Publishing.
International Labour Office, 2001. Social Security: A New Consensus
. Geneva: ILO.
International Labour Office. 2011. Report III (Part 1B): Report of the Committee of Experts on the Application of Conventions and Recommendations—General Survey Concerning Social Security Instruments in Light of the 2008 Declaration on Social Justice for a Fair Globalization: Social Security and the Rule of Law
. Geneva: ILO.
International Labour Office. 2012. Social Security for all. Building Social Protection Floors and Comprehensive Social Security Systems. The Strategy of the International Labour Organization.
International Social Security Association (ISSA). 2013. Social Security Coverage Extension in the BRICs: A Comparative Study on the Extension of Coverage in Brazil, the Russian Federation, India, China and South Africa.
Razavi, S. 2011. Engendering Social Security and Protection, Challenges for Making Social Security and Protection Gender Equitable
. International Policy Analysis, Berlin, Friedrich-Ebert–Stiftung.
Sepúlveda Carmona, Magdalena. 2012. Final Draft of the Guiding Principles on Extreme Poverty and Human Rights, submitted by the Special Rapporteur on Extreme Poverty and Human Rights, Magdalena Sepúlveda Carmona
18 July, UN Doc. No. A/HRC/21/39.
UNDP/ILO. 2011. "Successful Social Protection Floor Experiences." Volume 28 in the series Sharing Innovative Experiences
. New York: UNDP.
ABOUT THE AUTHOR
Lucie Lamarche is a professor at the Faculty of Political Science and Law of the University of Québec in Montreal, Canada. Between 2007 and 2013, she was the Director of the Human Rights Research and Education Centre of the University of Ottawa, Canada. She holds a Ph.d. from ULB (Brussels, 1994) and was Jean Monnet Fellow of the European University Institute (1998-99). She has published extensively on international economic and social rights, labour and social law and women’s rights. With Professor Beth Goldblatt (UNSW Law, Australia) she has recently co-edited a book which will soon be available from Hart Publishing: Women's Rights to Social Security and Social Protection.