The international evolution of the right of children to social security

• Date: 01 January 2015
• DOI: 10.10520/EJC197713
• Pages: 484-503
• Published date: 01 January 2015
• Author: Gugulethu Nkosi

The international evolution of the right

of children to social security

Gugulethu Nkosi*

Abstract

This article seeks to provide an analysis of the right of children to soc ial security as

provided for in the various international legal instruments, and as assimilated in other legal

documents. Furthermore, it argues that scarcity of resources prevents children from

enjoying socio-econom ic rights, including the right to social security adopted through

international instruments and entrenched in domestic laws. The Convention on the Rights

of a Child provides for the right to social security in the event of lack of resources to benefit

the child. So does the International Covenant on Economic, Social and Cultural Rights and

the African Charter on the Rights and Welfare of the Child. In all the said legal instruments,

the clauses on social security do not explicitly presc ribe the rights that ought to be

promoted through it. However, since the jurisprudence on socio-economic rights

emphasises the view that socio-economic rights are interrelated, interdependent and

indivisible, it can also be safely said that through social security, beneficiaries, that is

children, should be able to enj oy access to other socio-econom ic rights in general.

Therefore, the significance of the right to social security as a m eans to address pover ty

and facilitate the development of children is explored.

1 Introduction and historical background

Early systems of what today is known as social security can be traced back to

Europe’s Middle Ages. The prevalent notion during t his era was that of charity,

and this was a formal intervention aimed at assisting the poor. It was generally

1

the church that carried out this special duty of providing care to the needy, which

mainly included widows, orphans, and the disabled. As early as the Middle Ages,

2

B Proc LLB (UDW now UKZN), LLM (Wits). Senior Lecturer, Department of Jurisprudence,

*

University of South Africa (Unisa). The author sincerely appreci ates the useful comments of Dr

Shighughudwana Mashele on this article.

Brodman JW ‘Charity and welfare: Hospitals and the poor in medieval Catalonia’ available at

1

http://libro.uca.edu/charitycw1 (accessed 2014-06-10).

Ibid.

2

The international evolution of the right of children to social security 485

there exited the realisation that poverty was not merely an economic need, but

was a ‘form of degradation that rendered the individual vulnerable or dependent’.3

It was during this period that the status of the poor was defined and they were

afforded certain legal rights. The needy were normally offered basic assistance

in the form of food and shelter. Other benefits extended to the poor included

exemption from paying certain fees, and sometimes the provision of free counsel

during law suits.4

Charity measures were later prom ulgated into laws. The first codified laws

were passed by the English: the so-called ‘Poor Laws’. They were a systematic

5

codification of laws spec ifically aimed at providing relief to the poor. Like the

charitable interventions of the Middle Ages, the provisions of the first Poor Laws

were largely influenced by the doctrines of the church. For the English, the

influence of the church lingered even after the demise of its influence and the

erosion of Christian values. T his was due to the fact that they were passe d just

subsequent to the fall of the monasteries and Christian values that were

nevertheless still dominant. The ‘Poor Laws’ were passed between 1552 and

6

1597. In 1601, another ‘Poor Law’ was passed. The 1601 Poor Law harmonised

the earlier ‘Poor Laws’ and created a uniform national system aimed at providing

for the poor. This group of laws, particularly the 1601 Poor Law, became

7

influential within the Western community, mainly in Europe and the United States

of America, and were adopted by various countries in their domestic regulatory

frameworks. Later, the ‘Poor Laws’ were used as the basis for drafting la ws to

regulate social security benefits.8

Although children benefited from the charity interventions and the measures set

by the state under the ‘Poor Laws’, the protection derived was general and therefore

inadequate. During this period, children as a class did not have specific rights and

therefore had no specific entitlements that could be claimed. Benefits arising from

charity could not be claimed, although they could be derived at the mercy of the

benefactor. Even with the ‘Poor Laws’ in place, these laws were designed more to

regulate social assistance measures than to entrench enforceable human rights.

The ideology of children’s entitlement to social security rights emerged later.

It first received attention f rom the international community after the end of the

First World War, in reaction to the catastrophes of the war. Prior to that, theories

on the legal standing of children clearly reveal children’s lack of autonomy. They

Ibid.

3

Ibid.

4

The earlier cluster of poor laws included: The Poor Law – 1552 Act; The Poor Law -1563 Act; The

5

Poor Law – 1572 Act; The Poor Law – 1576 Act; The Poor Law –1597 Act; and the 1601 Poor Law.

The Poor Law, available at http://www.elizabethan-era.org.uk/the-poor-law (accessed 2014-06-10).

6

Ibid.

7

Sellers The Danish poor relief system (1904) 14.

8