The fundamental right of social assistance: A global, a regional (Europe and Africa) and a national perspective (Germany, the Netherlands and South Africa)
| Published date | 01 September 2019 |
| DOI | 10.1177/1388262719867337 |
| Date | 01 September 2019 |
| Subject Matter | Articles |
Article
The fundamental right of
social assistance: A global,
a regional (Europe and
Africa) and a national
perspective (Germany,
the Netherlands
and South Africa)
Gijsbert Vonk
University of Groningen, the Netherlands
Marius Olivier
North-West University, South Africa; University of Western Australia, South Africa
Abstract
This article gives a broad overview of the fundamental right of social assistance. The central
question is to what extent the fundamental right to social assistance can count on universal rec-
ognition and what legal consequences are drawn from this right when it is invoked in national
courts. In order to answer this question, we have looked at this right from a global, a regional
(Europe and Africa) and a national perspective (Germany, the Netherlands and South Africa). On
the basis of this study we discern a broad synergy in the normative context, not only transgressing
through but also operating above the national constitutional jurisdictions. It is observed that from a
legal perspective the added value of this right lies in the possibility for an individual to address
structural shortcomings in the existing architecture of social assistance schemes. This possibility
places courts in the position to critically review the system in the light of human rights
requirements.
Keywords
social assistance, guaranteed minimum income, socio-economic fundamental rights, constitutions,
justiciability
Corresponding author:
Gijsbert Vonk, Department of Administrative Law and Public Administration, University of Groningen, Postbus 716, 9700
AS Groningen, the Netherlands.
E-mail: g.j.vonk@rug.nl
European Journal of Social Security
2019, Vol. 21(3) 219–240
ªThe Author(s) 2019
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DOI: 10.1177/1388262719867337
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Introduction
Is social assistance a human right? Yes, it is. Sometimes it is seen as part of the right to social
security or some other fundamental right, but equally often it is formulated as a separate, inde-
pendent right. In essence, it regards an obligation on the part of the state to provide minimum
protection to needy persons who are unable to take care of themselves in any other way.
Over the past decades, more attention has been paid to the human right to social security.
1
But,
the fundamental right of social assistance has hardly been the subject of any separate academic
interest.
2
The purpose of this article is to break this silence by giving a broad overview of the
position, content and functioning of the fundamental right to social assistance. We are in particular
interested in the question of whether the fundamental right to social assistance has gained universal
recognition and what the legal consequences are when this right is invoked before the national
courts.
In order to answer this question, we will look at the fundamental right of social assistance in a
global, a regional and a national context. As the space available to us in this issue of the journal is
not unlimited, we had to narrow the focus of our investigation. We have chosen to pay attention to
two very different regions in which the fundamental right of social assistance plays a vibrant role,
i.e. Europe (which has a long-standing tradition of income support programmes for needy citizens)
and Africa (where such programmes are now increasingly being introduced). As far as Europe is
concerned, the situation of two countries will be contrasted: Germany which has developed robust
constitutional guarantees and the Netherlands where such guarantees are mostly toothless in
practice. As for Africa, we will look specifically at the situation in the Republic of South Africa,
where the constitution guarantees a right to access appropriate social assistance and where the
Constitutional Court has been active in promoting social assistance rights.
We start off by giving a very brief overview of the place of social assistance in our social
security systems and the major policy frameworks for social assist ance in the two continents
(Section 2 ‘Setting the scene: the function of social assistance in the wider context of the welfare
state and social protection’) . Then we present an overview of global and regional clause s in
fundamental rights catalogues that recognise the right to social assistance (Section 3 ‘The place
of the fundamental right of social assistance’). Next, we zoom in on the legal nature of the
governmental obligations created by the fundamental right to social assistance (Section 4 ‘Legal
nature of the fundamental right of social assistance’). This is followed by an exploration of the
substantive meaning of the fundamental right to social assistance, as elaborated by international
supervisory bodies, in particular the European Committee for Social Rights (ECSR Section 5
‘Substantive meaning of the fundamental right of social assistance’). We then address the appli-
cation of the fundamental right in the three selected countries: Germany (Section 6.1), the Nether-
lands (Section 6.2) and South Africa (Section 6.3). We conclude by answering the central research
question raised above (Section 7 ‘Conclusions’).
1. Cf. inter alia Heredero (2007), Riedel (2007), the respective contributions of Eberhard Eichenhofer, Lieneke Sling-
enberg, George Katrougalos, Ida Elisabeth Koch and Frans Pennings in Pennings and Vonk (2015), and Leijten (2018).
2. Thereare some exceptions. For example Sep ´
ulveda and Nyst (2012). Other relevant publications are often written from
the perspective of national doctrine, for example Germany and South Africa, which established strong constitutional
guarantees. Cf. infra Section 6.
220 European Journal of Social Security 21(3)
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