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II. Obligations arising from human rights standards

4. Right to social security

Everyone has the right to social security, including social insurance. This right applies equally to all without discrimination, including people who use drugs, people dependent on illicit drug economies, people in prisons and other places of detention or closed settings, and people who have been arrested for, charged with, or convicted of drug-related offences.

In accordance with this right, States should:

i. Take steps, to the maximum of available resources, to establish and progressively expand comprehensive social security systems that equally guarantee legal entitlements – including universal access to health care, housing, education, and basic income security – to the aforementioned individuals and groups, while also ensuring that particularly marginalised or vulnerable groups can effectively exercise and realise these human rights on an equal basis with others.

ii. Prevent and remedy the denial of social assistance to persons on the basis of drug dependence, which is impermissible discrimination.

iii. If in a position to assist other States, facilitate the realisation of the right to social security and related entitlements, including through the provision of economic and technical assistance.

Commentary:

The right to social security, including social insurance, is enshrined in numerous international and regional treaties.[291] It includes the right not to be subject to arbitrary and unreasonable restrictions of existing social security coverage and the right to equal enjoyment of adequate protection from social risks and contingencies.[292]

Recognising the importance of social security in preventing and reducing poverty and social exclusion, the Committee on Economic, Social and Cultural Rights emphasises States’ obligations to ensure that social security systems cover everybody, but especially ‘those individuals and groups who traditionally face difficulties in exercising this right, in particular women, the unemployed … minority groups … prisoners and detainees’.[293] Numerous human rights mechanisms, including the Human Rights Council, the Committee on Economic, Social and Cultural Rights, and the Special Rapporteur on extreme poverty and human rights, recommend the establishment of social protection floors comprising a set of basic social security guarantees in cash and in kind, in line with a previous recommendation of the International Labour Organization.[294] The implementation of nationally appropriate social protection systems and measures for all, including floors, is also among the targets of the Sustainable Development Goals.[295]

In some jurisdictions, identification as a person who uses drugs or who has been in detention or holds a conviction for a drug-related offence poses considerable obstacles to obtaining social security and other government benefits.[296] However, as the Committee on Economic, Social and Cultural Rights has explained, the right to social security requires that qualifying conditions for benefits be reasonable, proportionate, and transparent and that the withdrawal, reduction, or suspension of benefits be circumscribed, based on reasonable grounds, subject to due process and provided for in national law.[297] The Committee has expressed concern that conditioning welfare benefits on drug testing is neither reasonable nor proportionate, lacks a credible evidence base, may deepen stigma, and may drive people who use drugs away from treatment.[298] The Special Rapporteur on extreme poverty and human rights has affirmed that conditioning welfare benefits on drug testing is neither reasonable nor proportionate.[299]

The Working Group of Experts on People of African Descent has raised concern about racial bias in the application of criminal justice policies enacted as part of drug control efforts, resulting in longer prison sentences and higher conviction rates, and the deep collateral damage on people of African descent. People with low-level, non-violent criminal records can be denied access to social housing, safety net programmes, and welfare assistance. Those with felony drug records are fully or partially excluded from food assistance in some jurisdictions.[300]

  • 291. ^

    Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), arts. 22, 25(1); International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 9; Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180 (1979), arts. 11(1)(e), 14(2)(c); Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 26; Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106 (2006), art. 28; International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106A (XX) (1965), art. 5(e)(iv); American Declaration of the Rights and Duties of Man (1948), art. 16; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, O.A.S. Treaty Series No. 69 (1988), art. 9; European Social Charter (Revised), ETS No. 163 (1996), arts. 12, 13, 14; Arab Charter on Human Rights (2004), art. 36; see also International Labour Conference, Report of the Committee on Social Security, Resolutions and Conclusions concerning Social Security (2001); Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security, UN Doc. E/C.12/GC/19 (2008); UN General Assembly, Resolution 61/295: United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007).

  • 292. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security, UN Doc. E/C.12/GC/19 (2008), para. 9.

  • 293. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security, UN Doc. E/C.12/GC/19 (2008), para. 31.

  • 294. ^

    International Labour Organization, Social Protection Floors Recommendation, No. 202 (2012); Committee on Economic, Social and Cultural Rights, Statement on Social Protection Floors: An Essential Element of the Right to Social Security and of the Sustainable Development Goals, UN Doc. E/C.12/54/3 (2015), paras. 1, 2; Report of the Special Rapporteur on Extreme Poverty and Human Rights Philip Alston on the Implementation of the Right to Social Protection through the Adoption of Social Protection Floors, UN Doc. A/69/297 (2014); Human Rights Council, Guiding Principles on Extreme Poverty and Human Rights, UN Doc. A/HRC/21/L.20 (2012), para. 86(b); United Nations, ‘Statement by 17 Special Procedures mandate-holders of the Human Rights Council on the Post-2015 Development Agenda, grounding development priorities in human rights’, 10 December 2017, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22515&LangID=E.

  • 295. ^

    Sustainable Development Goal 1.3 and indicator 1.3.1; see also UN Development Programme, Beyond Recovery: Towards 2030 (2020).

  • 296. ^

    Report of the UN High Commissioner for Human Rights: Study on the Impact of the World Drug Problem on the Enjoyment of Human Rights, UN Doc. A/HRC/30/65 (2015), para. 50.

  • 297. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security, UN Doc. E/C.12/GC/19 (2008), para. 24.

  • 298. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Australia, UN Doc. C.12/AUS/CO/5 (2017), para. 43.

  • 299. ^

    Communication from Philip Alston, Special Rapporteur on Extreme Poverty and Human Rights, Reference No. OL AUS 17/10/2017 (2017).

  • 300. ^

    Report of the Working Group of Experts on People of African Descent: Visit to the United States of America, UN Doc. A/HRC/33/61/Add.2 (2016), paras. 33, 71, 74.

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