Now compare the above with the following obligations under international law:
“The right to social security is of central importance for ensuring that everyone is able to live a life in human dignity without the fear of losing income or other support that is essential for maintaining an adequate standard of living, accessing health care and caring for children and other dependents. Article 9 of the International Covenant on Economic, Social and Cultural Rights provides that, ‘The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.”
"Article 2(2) proscribes discrimination on ground of nationality and the Committee notes that the Covenant contains no express jurisdictional limitation. Where non-nationals, including migrant workers, have contributed to a social security scheme, they should be able to benefit from that contribution. Where such a worker leaves the country, restrictions on retrieving contributions (or benefits) should not be unreasonable. Non-nationals should also be able to access non-contributory schemes for income and family support, and access to health care and any restrictions must be proportionate and reasonable. "
Paragraph 28, Draft General Comment 20 from the Committee on Economic, Social, and Cultural Rights - Article 9, The Right to Social Security - 2006
“Under the Convention, differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim."
Article 2:
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 22:
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
Article 2(2): The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 9: The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.
“Moreover, any deliberately retrogressive measures […] would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.”
(the nature of States parties obligations (Art. 2 par.1):.14/12/90. CESCR General comment 3)
Case Study
Helen is a New Zealand citizen residing as a permanent resident in Australia. She had lived and worked in Australia for 25 years from the age of 16 years. In 2000, Helen left Australia to work overseas for three years, returning in 2003. In 2006, she became seriously ill and had to leave work. As a New Zealand citizen who was absent from Australia at the time the law changed in 2001, Helen is not eligible to claim any social security payments.
(Excerpt from the 2008 NGO CESCR shadow report on Australia – Freedom Respect Equality Dignity: Action, page 75. Case study provided by Welfare Rights Centre, Sydney)
Article 1(3):
Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.
Article 2(1)(a):
Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation
Article 5e(iv): The right to public health, medical care, social security and social services;
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