Article 26: Right to benefit from social security

Overview of Article 26

Article 26 deals with the right of the child to benefit from social security and social insurance[1]. As underlined by the CRC Committee, this right is important in itself and plays a key instrumental role in the realization of other CRC rights [1-4]. It guarantees the financial and other support of the child provided by the State in all cases in which the adults responsible for the child are not in the position to provide for the child, because they are unemployed or for other reasons, such as illness, disability, childbearing, old age, widowhood, orphanhood and so on.

Contrary to other international legal provisions dealing with the issue of social security, Article 26 does not guarantee the rights to social security, but the right to ‘benefit from’ social security. The use of this expression is due to a proposal of the ILO delegation, that during the drafting of the CRC underlined that the recognition to children of the ‘right to social security’ would not mirror the real position of the child in relation to their entitlement to social security benefits. Parents and/or legal guardians hold the rights to receive benefits “by the reason of their responsibility for the maintenance of the child” based on Article 18 [5-6]. Therefore, the position of dependency of the child towards their parents or legal guardians and their entitlement to social security had been more adequately reflected by recognizing to the child right to ‘benefit from’ social security and not the rights to social security.

Nevertheless, Article 26(2) ensures that applications for benefits can be ‘made by or on behalf of the child’. Furthermore, in the general guidelines for the periodic reports, the CRC Committee asks States Parties to describe in their reports the circumstances and the conditions under which children are authorized to apply themselves directly or through a legal representative for social security benefits [5, 7].

With reference to the implementation of Article 26, it is worth underlining that it is subject to the provision of CRC Article 4, which provides, that States Parties are obliged to “undertake all appropriate, legislative, administrative, and other measures to the maximum of the available resources and where applicable within the framework of the international cooperation”[8]. Therefore, the right of the child to benefit from “social security is not an immediate States Parties’ obligation, but one of progressive achievement” [1, 5]. So far, the Committee has not provided yet a comprehensive clarification of Article 26 by way of general comments, nor through the concluding observations on reports of States Parties [1]. Therefore, the specific and technical meaning of ‘social security’ need to be identified in a large number of universal and regional treaties dedicated to the right to social security. In these treaties ‘social security’ is composed of the nine traditional branches identified by the ILO Convention 102 on Minimum Standards, namely: health, care, sickness, unemployment, employment injury, family, maternity, invalidity and survivor’s benefits and a social security system should comply with the following four principles identified by the (Revised) European Social Charter (1996):

1. The social security system should be set up or maintained;
2. A minimum level should be defined for each social security system;
3. The principle of progressive improvement of the system should apply;
4. Equality of treatment should be ensured for nationals of other contracting States, along with “granting, maintenance and resumption of social security rights” [1].

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[1] ‘Social security’ and ‘social insurance’ are used more of less as corresponding concepts. 

Article 26 Indicator Tables

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