Address at the Yearly Conference of the European Institute of Social Security (EISS)
Ljubljana, 29.9.2011 | speech
Address by Dr Danilo Türk, President of the Republic of Slovenia, at the Yearly Conference of the European Institute of Social Security (EISS) entitled "Fundamental Social Rights as Human Rights"
Ljubljana, 29 September 2011
Thank you, Professor Dr Grega Strban for inviting me to speak. I received this invitation with a degree of surprise, because normally, at present, I am invited to speak at meetings in an inaugural sense, to offer only a few general thoughts. But sometimes it happens that I am invited to speak as a former professor. When I am invited by my former Alma Mater and my former law school, which is my "natural environment", I cannot take this invitation as a routine occasion. I take it as an invitation to a critical discussion. Our discussion has to be critical, because we live in a time when things change, as we have heard from President of the European Institute of Social Security, Professor Dr Jos Berghman. Questions of why, what, how and with what effect things ought to change, happen to be among the central questions of social transformation and also of political tensions in the era in which we live.
We are discussing a matter, which is both demanding and important socially, and also difficult politically. Issues of social welfare, social status and the social situation in general are among the most sensitive political questions in any society, in particularly in a country like Slovenia, which has a constitution that defines the state as a "social state". Slovenia is not only a democratic republic, it is not only a state governed by the rule of law, but it also tries to be a social state. Here we have a very fundamental challenge and it is not surprising, therefore, that the title of my talk, which was suggested to me and which I accepted without any amendments, is "Fundamental social rights as human rights".
However, one can ask, why is this equation necessary, why does one have to talk about fundamental social rights as human rights? The answer could be, well, we talk about something axiomatic: Fundamental social rights are human rights and therefore there is nothing to discuss. We simply have to look at the instruments of human rights and we shall see what human rights are and therefore we only have to work in the context of implementation. But then, obviously, we live at the time when things change and when everything is questioned, including the nature of social rights.
My first hypothesis is that if one talks about social rights as human rights, one has to ask also the question of whether the regulatory function of the state is properly understood and properly developed. We have lived through a long period of time when deregulation was the order of the day and the regulatory function of the state was questioned as a matter of principle. Now I think we have to put the question differently –whether the time has not come for a reassertion of the regulatory function of the state? I believe that the problems of today cannot be resolved without a stronger role of state regulation, without a more careful look on management of global finance and without regulation, particularly effecting the social situation of the people.
State, we have to understand, is not only organised power, which may become an enemy of freedom. State is also organized legitimacy, it is a repository of values of the society, it is a protector of common good. I think it is not superfluous to make these basic points at the beginning of our conference. We have to ask ourselves, what kind of state do we want, what kind of regulatory function do we expect from the state and what has to be done globally. After all, the international community is primarily a community of states and although states have been weakened in the recent decades, that does not mean that they have abandoned or perhaps even lost the regulatory function or their right to regulate. This is one of the fundamental questions, which does not address directly the core of the problem of social rights as human rights, but it is important for every solution that a debate on social rights might produce. The regulatory role of the state will matter.
Let me now proceed to the question of social rights as human rights more directly. Human rights are important in this context because human rights are a barrier against all kinds of abuse: They have been a barrier against the abuse by state – the 20th century has shown how powerful the state can be as a violator of human rights. We have to look at other violators as well. Sometimes state and state regulation must be seen as a barrier against violations produced by non-state actors. We have seen this in the most dramatic sense in wars, especially in the wars in the Balkans, where most of the most terrible abuses of human rights and humanitarian law were committed by non-state actors and the absence of state was felt dramatic. But, of course, there are much less dramatic situations, which have to be looked at, and we have to understand that state and human rights can be allies and can work together for protection of human beings and human dignity.
When I first saw the proposed title, Fundamental Social Rights as Human Rights, this reminded me of the Beijing conference on women’s rights in 1995, when the slogan of the conference, first coined by the civil society organisations and later accepted by the conference as a whole, was "Women’s rights are human rights". This was a very powerful slogan, because it explained that women’s rights are not separated from human rights and reminded us that, in fact, human rights belong to all and that gender discrimination is a fundamental violation of human rights. Therefore, in terms of mobilising potential, I believe that reminding ourselves of the fact that social rights are human rights can be very useful.
Let us recall at this point that the Universal Declaration of Human Rights (1948) has an extensive part of its text devoted to economic and social rights and let us ask ourselves why that is the case. Very briefly, article 17 – the right to own property, article 22 – the right to social security, article 23 – the right to work, article 24 – the right to rest and leisure, article 25 – the right to an adequate standard of living, article 26 – the right to education, article 27 – participation in cultural life, and article 28 – the right or every human person to a such a social and international order in which all human rights can be fully realised. Can you imagine the depth of ambition, which has motivated the authors of this article 28 – the right to a social and international order, in which all human rights can be fully realised?
The high ambition level of the Universal Declaration of Human Rights can be explained. The period after the World War II was a period of an intense fear from abuse of human rights, it was a period when the war, which had only been over a few years earlier, produced a strong urge to change the society, to make it better. The program embodied in the Universal Declaration of Human Rights became an expression of that special atmosphere. If we look at this text from today’s point of view, we would see that much has been done and that the systems of social security, in particular in Europe, have progressed. In addition we also can see that much of the logic and the content of the Universal Declaration of Human Rights is being questioned by the development of the last 20 or 30 years.
Obviously, the Universal Declaration of Human Rights was only the beginning. There were subsequent international instruments. It is useful to recall some of the fundamentals of the legal regulation at the global level. I am sure that you will discuss the questions of regulation at the level of the European Union, at the European Court of Justice, and the national systems in more detail later. At the beginning of this discussion it is useful to recall some of the fundamentals from the International Covenant on Economic, Social and Cultural Rights, an international treaty, which attempts to define economic, social and cultural rights in strictly legal terms and which provides the platform for implementation to be accomplished through legal means.
The International Covenant on Economic, Social and Cultural Rights has at present 160 state parties. A very large number of states around the world have ratified the Covenant. Obviously there were reservations attached to those ratifications. In addition it is necessary to understand that not all states have acceded to the Covenant in good faith. Nevertheless, the Covenant is a very important legal statement, which explains a great deal about how to approach the questions of social security in general.
The Covenant says that obligations resulting from the identification of economic, social and cultural rights have to be realised progressively. That provision makes the Covenant on Economic, Social and Cultural Rights fundamentally different from the International Covenant on Civil and Political Rights, which requires immediate and full realisation of the rights enshrined in that covenant.
The fact that the Universal Declaration of Human Rights (1948) received its implementation mechanism in two different covenants (1966), one dealing with civil and political rights and the other with economic, social and cultural rights, was unfortunate. It was understandable both for political and legal reasons, but it was unfortunate because it contributed to the belief that economic and social rights are fundamentally different from civil and political rights and that therefore they have to be considered as something softer, something progressive, something that may or may not be carried out completely.
Therefore, when the Covenant on Economic, Social and Cultural Rights started its life as a treaty in 1976, it was not yet clear how this basic difference will be interpreted – progressive realisation vis-à-vis an immediate realisation. It took another 15 years before an authoritative interpretation emerged. That happened only after the establishment of the Committee on Economic, Social and Cultural Rights, a separate expert implementation body, which produced its first general comment on the nature of obligations in the Covenant in 1990. This general comment is useful, because it explains several things, which are important in any discussion on changes in the area of social rights.
First, the general comment explains that the obligations of conduct (progressive realisation) and the obligations of result are not necessarily as different as it looks at the first glance. The obligations of conduct themselves include a very firm, definitive obligation of result – the obligation of non-discrimination. So everything that is done, everything that happens, every reform, every change that occurs has to be done in a manner, which does not produce any form of discrimination.
The concept of non-discrimination invites further questions, because discrimination in actual reality, in actual practice can very easily occur. For a legal analyst, for a judge, for example, or for a legislator it is not easy to distinguish between the reasonable differentiations, which must be accepted, because no two situations are exactly the same, and unacceptable discrimination, which is a very firm ingredient, a very firm basic legal prohibition in all human rights law, including the law of economic, social and cultural rights.
So the Committee on Economic, Social and Cultural Rights provided a framework, which I think all those thinking about reforms in the area of economic, social and cultural rights have to constantly keep in mind. Let us make sure that every change is done in a manner, which would protect people from discrimination and let us be very careful about non-discrimination. This is the lesson No. 1.
Lesson No. 2 relates to the question what does it mean to carry out, to implement the economic and social rights progressively. The Covenant itself says that states are expected to "take steps", in other words they are not expecting progress to happen without their own active role. Furthermore, they have to act to the maximum of their available resources. In other words, there has to be an intense, strong effort, it doesn’t suffice to say that the resources are limited and therefore action can be delayed. The resources have to be used to the maximum and states have to keep in mind, as the Covenant says, achieving full realisation of economic, social and cultural rights progressively.
Obviously, there is a question of judgement involved in all this all the time. But the Committee on Economic, Social and Cultural Rights provided a good framework for thinking about change in social rights. When changes are necessary, they have to be carried out with a clear understanding that eventually social rights have to be fully realised, that one talks about human needs, which are fundamental. They require full realisation, which can happen in different ways. It can happen with a delay, but that objective of full realisation has to be kept in mind by the legislators and all others who are involved in the process of change.
The committee also accepted that there may be situations where retrogressive measures are necessary. The economic situation may occasionally or even for a longer time call for retrogressive measures. But the committee explained that any deliberately retrogressive measures would require the most careful consideration and would need to be fully justified, first, by reference to the totality of rights, provided for in the Covenant and, second, in the context to the full use of the maximum of available resources.
Again, this is very relevant to any contemplation of change. Retrogressive measures may be necessary in light of worsening or deteriorating economic and social situation. But even if that has to happen, then there has to be a concern about justification for the change and in an attempt to justify that retrogressive change, one has to look at the totality of rights provided by the Covenant on Economic, Social and Cultural Rights.
What exactly that means remains open. And I think that in a discussion on change one has to pay attention not to take a limited view of social rights, a view based, for example, on Article 9 of the Covenant on Economic, Social and Cultural Rights, but rather to see the totality of that segment of human rights and see what kind of effect does the retrogressive change produce.
These are some of the fundamental elements of interpretation of human rights, the right to social security among others, and I believe that it is meaningful to remind ourselves that the international community has produced certain basic criteria for discussions on change and that those basic criteria, if carefully analysed, provide a good guidance to any discussion on change.
Social rights are human rights and an authoritative international interpretation, which has explained this, already exists. The Covenant on Economic, Social and Cultural Rights has seen a long period of implementation by now. As I said, it entered into force in 1976, and the Committee on Economic, Social and Cultural Rights produced a number of further general comments. The one that I quoted was produced in 1990, at a relatively early stage. But then, more recently, in the year 2008, the Committee produced a general comment No. 19. That was at the time when the Covenant already had about 160 ratifications, and that general comment is specifically focused on the right to social security.
This right is enshrined in Article 9 of the Covenant, which says: "The state parties to the present Covenant recognise the right of everyone to social security including social insurance".
The general comment on the right to social security is much more extensive, it consists of a text of about 30 pages, in which the Committee very carefully analysed its own experience with reporting on issues of social security by the state parties. Based on that it provided a rather systematic framework for interpretation of this very short article and for the possible changes in legal regulation in this area. The Committee also explained that the right to social security has been strongly affirmed in international law.
I would like to draw your attention to the fact that the Committee identified a set of topics, which are of particular importance in the application of Article 9 of the Covenant. Each of them is relevant to a discussion on change in the area of fundamental social rights. This does not apply only to the right to social security in the narrow interpretation of that right, but has a more general scope of interpretation and application, relevant to social rights.
The topics of broad application, which are of special importance, are the following: non-discrimination and gender equality come first.
Then, special focus has to be placed on the needs of inadequately protected workers. They are identified as a particularly vulnerable group. Those are part-time workers, self-employed workers, casual workers and home workers. People involved in informal economy, indigenous peoples and minority groups, non-nationals and internally displaced people and migrants also require special attention.
This identification of which a legislator or an analyst has to keep in mind when discussing the questions of changes of fundamental social rights represents a useful tool. They are only a beginning, obviously, in a sophisticated debate on, say, changes in national legislation, but they should not be neglected, because if they are, they are likely to lead to violations of the Covenant on Economic, Social and Cultural Rights and that’s an effect, which should be avoided.
I referred to the Covenant on Economic, Social and Cultural because of the importance of that international treaty, which has 160 state parties, a well developed system of interpretation and a very wealthy experience in implementation. I believe that the Covenant has to be kept in mind also in the European context, where the national systems of social rights are more sophisticated than in other parts of the world. They are more developed, but they are still subject to the same legal framework as those in other parts of the world.
What I would like to say by way of conclusion relates to our own national system in Slovenia. Slovenia is a state party to the Covenant on Economic, Social and Cultural rights and of other instruments, which will be discussed later during this conference. Therefore it has to take implementation of these international instruments seriously. It has to take the quoted priorities as important in any discussion on changes of social rights. But in addition to that Slovenia has another concern, which I believe exists in many other countries in Europe and which I hope will be given appropriate attention during this conference.
That problem is coherence of the social system. We have developed a set of regulations over time, which benefit different people and have a positive cumulative effect. When changes occur, we have to be careful not to produce something incoherent. Perhaps the process of change should attempt to improve coherence. Sometimes this can lead to very technical, very practical instruments.
We in Slovenia talk a great deal about the consolidation of our information basis for the entire process of changing legislation or implementation of the existing legislation. It would be interesting to learn how a fully IT supported system will work. Great hopes have been placed in the expectation that a better and more consolidated system of information would provide a better picture. But we have realised also that such a system is difficult to put in place.
It will be interesting to hear from participants from other countries on how does one ensure coherence and transparency of the system as a whole. In addition, how does one eliminate duplication and the belief that the social benefits that were put in place in fact produce the opposite effect because they diminish the incentive for people to engage in productive work? These arguments are very common in Slovenia and I believe in the politics in other countries as well. And they go beyond the whole concept of human rights, they are mainly concerned with the question of how does one produce effectiveness and coherence in the policy of social security.
Coherence of the system, its transparency and credibility are necessary to provide the answers to the questions of its viability and its necessity. This is of priority importance today. Technical arrangements, such as the IT basis of the social security system, have to be devised with an awareness of the priorities of social security as a human right enshrined in the international legal instruments, such as the International Covenant on Economic, Social and Cultural Rights.
This is a thought with which I would like to conclude my remarks. Thank you for your attention.