49
on a contributory system, this is a component of social security that aims to cover subsistence needs
of those who can no longer work, when the contingency of survival beyond a prescribed age is met.
In such cases, the old age pension is a form of deferred salary for a worker, an acquired right after
the accumulation of contributions and time worked.
186. In General Comment No. 19 on “the right to social security” the CESCR has established that
this right encompasses the right to access and maintain benefits, whether in cash or in kind, without
discrimination, in order to secure protection, inter alia (infra para. 187) from a lack of work-related
income owing to old age.195
187. Similarly, General Comment No. 19 of the CESCR has established the regulatory content of the
right to social security,196 emphasizing that it includes the right not to be subject to arbitrary and
unreasonable restrictions of existing social security coverage, whether obtained publicly or privately,
as well as the right to equal enjoyment of adequate protection from social risks and contingencies.
As fundamental elements of this right it established the following:
a) Availability: The right to social security requires, for its implementation, that a system, whether
composed of a single scheme or variety of schemes, is available and in place to ensure that benefits
are provided for the relevant social risks and contingencies. The system should be established under
domestic law, and public authorities must take responsibility for the effective administration or
supervision of the system. The schemes should also be sustainable, including those concerning
provision of pensions, in order to ensure that the right can be realized for present and future
generations.
b) Social risks and contingencies: The social security system should provide for the coverage of the
following nine principal branches of social security, namely: i) health care; ii) sickness; iii) old age;
iv) unemployment; v) employment injury; vi) family and child support; vii) maternity; viii) disability,
and ix) survivors and orphans. In relation to health care, States Parties have the obligation to
guarantee that health systems are established to provide adequate access to health services for all; 197
such services must be affordable.198 Regarding old age, States Parties should take appropriate
measures to establish social security schemes that provide benefits to older persons, starting at a
available at: https://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/documents/publication/wcms_067592.pdf Also, the ILO’s
Committee of Experts concluded that the case law of various Constitutional Courts in Latin America establish the right to social
security through seven fundamental concepts: “[1] the right to social security is a fundamental right; [2] the right to social
security has the dual purpose to protect individuals and improve their quality of life; [3] the right to social security permits
the recognition of social security as an institutional guarantee; [4] the concept of social security refers to all means of
institutional protection against the risks that threaten the ability and opportunity of people and their families to generate
sufficient income to have a decent human existence; [5] social security has as its own responsibility the integral coverage of
the negative consequences produced by social contingencies; [6] national social security institutions have the duty to calculate
benefits correctly and to grant benefits in full, respecting the principle of legitimate expectations of a beneficiary, and [7] on
the basis of the urgency of each case and social solidarity, individuals who are not covered by the social security system may
be entitled to social security benefits.” Cf. International Labour Conference, 100th Session, 2011, General Survey concerning
social security instruments in light of the 2008 Declaration on Social Justice for a Fair Globalization, Report of the Committee
of Experts on the Application of Conventions and Recommendations (Articles 19, 22 and 35 of the Constitution), Report III
(Part 1B), p. 131, para. 281.
195
Cf. UN, Committee on Economic, Social and Cultural Rights, General Comment No. 19. The right to social security
(Article 9), February 4, 2008, para. 2.
196
Cf. UN, Committee on Economic, Social and Cultural Rights, General Comment No. 19. The right to social security
(Article 9), February 4, 2008, paras. 9 to 28.
197
General Comment Nº 14 (2000). The right to the highest attainable standard of health (Art. 12). Coverage must include
any condition of morbidity, regardless of its causes, pregnancy and childbirth and its consequences, general medical care and
hospitalization.
198
See paragraph 4 supra and paragraphs 23 to 27 infra.