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LEGAL SCIENCES
INTERNATIONAL LEGAL GUARANTEES OF THE SOCIAL SECURITY AND SOCIAL PROTECTION'S RIGHT Shchukina N.V. (Republic of Moldova) Email: [email protected]
Shchukina Natalia Victorovna - PhD in Legal Sciences, Associate Professor, Chair of Entrepreneurial and Labor Law, TRANSDNISTREAN STATE UNIVERSITY, TIRASPOL, REPUBLIC OF MOLDOVA
Abstract: the article deals with the constitutional right to social security and the right to social protection. The author reveals the differences and makes an attempt to reveal the relationship between the right to social security and the right to social protection within the framework of the Constitutional law science based on the norms of international law. Particular attention is paid to the norms of ILO conventions and recommendations. A number of proposals concerning additions to the current social legislation of Moldova are formulated.
Keywords: the constitutional right to social security, the right to social protection, social guarantees, the social rights' protection.
МЕЖДУНАРОДНО-ПРАВОВЫЕ ГАРАНТИИ ОБЕСПЕЧЕНИЯ ПРАВА НА СОЦИАЛЬНОЕ ОБЕСПЕЧЕНИЕ И СОЦИАЛЬНУЮ ЗАЩИТУ Щукина Н.В. (Республика Молдова)
Щукина Наталья Викторовна - кандидат юридических наук, доцент, заведующая кафедрой, кафедра предпринимательского и трудового права, Приднестровский государственный университет им. Т.Г. Шевченко, г. Тирасполь, Республика Молдова
Аннотация: в статье рассматриваются конституционное право на социальное обеспечение и право на социальную защиту. Автор раскрывает различия и делает попытку выявить соотношение права на социальное обеспечение и права на социальную защиту в рамках науки конституционного права на основе норм международного права. Особое внимание уделено гарантиям реализации и защиты рассматриваемых прав человека с учетом международно-правовых гарантий. Формулируется ряд предложений по внесению дополнений в действующее социальное законодательство Молдовы.
Ключевые слова: конституционное право на социальное обеспечение, право на социальную защиту, социальные гарантии, защита социальных прав.
Indisputable principle of a democratic society is that each person is obliged to provide his existence himself. But in any society there live people who from a birth, owing to illness or an old age are not in a condition to do it. Insufficiently enterprising people, persons with the limited physical abibilities, citizens having many children often appear requiring, invalid people demand leaving and treatment etc. Society cannot leave such people to the mercy of fate that is why it creates the state system of their maintenance with material benefits at the expense of a society. Human solidarity and humanism are realized in this actions. Therefore at level of the main law of the state - Constitution the right to social security and protection (the item 47, Republic Moldova Constitution) is fixed as one of the basic social human rights. According to the Constitution, everyone is guaranteed social security on age, in case of illness, physical inability, loss of the supporter, for education of children and in other cases established by the law. Each of these cases (social risks) is characterised by loss of earnings or its insufficiency for life-support of the person and invalid members of his family.
The right to social security and protection concerns a category of the economic and social rights (often they are named the rights of "the second generation") which provide freedom of the person in economic and social spheres and give the chance to protect the vital interests. Special character of these rights distinguishes them from the classical rights (personal and political) first of all, on degree of guarantee and to the specific mechanism of legal protection. Direct acting of the economic and social rights frequently objectively appears rather relative as only their one constitutional fastening and instructions in the international certificates are not enough for realisation of such rights. Therefore possibilities of protection of such rights appreciably depends on how the maintenance of these rights is regulated (is concretised) in the branch legislation.
Besides, realisation of many social rights is impossible without corresponding financial expenses from the states. Financial possibilities of the state to provide full realisation of these rights, existing of necessary financial resources are basis for definition of the concrete maintenance of these rights. For this reason, in the International pact of economic, social and cultural rights the duty of each state participating in the Pact is underlined. It concerns taking maximum measures providing full realisation of the rights recognised in the Pact by all appropriate ways, including and acceptance of corresponding acts. The analysis of the majority of the international acts shows that level of social security established by them should be considered as wished for the state ratifying the given act.
It is possible to consider the right to social protection from constitutional positions as the most general legal category including all kinds of social security, and also a guarantee of their giving. In most general view in the legal literature social protection is considered in a broad sense, as state activity of realizing of the purposes and priority problems of social policy, and set of legislatively fixed economic, legal and social guarantees, providing to each member of society observance of the major social rights; in narrow sense as a complex of purposeful concrete actions of economic, legal and organizational character for support of the most vulnerable levels of population [1].
International Social Security Association defines social security as any programme of social protection established by legislation, or any other mandatory arrangement, that provides individuals with a degree of income security when faced with the contingencies of old age, survivorship, incapacity, disability, unemployment or rearing children. It may also offer access to curative or preventive medical care. As defined by the International Social Security Association, social security can include social insurance programmes, social assistance programmes, universal programmes, mutual benefit schemes, national provident funds, and other arrangements including market-oriented approaches that, in accordance with national law or practice, form part of a country's social security system [6].
The ILO makes the following definition of social security: « ... the help rendered by a society to the members by means of the state measures, accepted for their protection against financial and social difficulties which otherwise can take place as a result of the termination of receipt or considerable reduction of incomes in connection with illness, an industrial trauma, physical inability, an old age and death; medical aid rendering; and payment of grants to large families» [8, p. 3].
Social security and social protection are those questions in which the state still keeps control even in European countries. Each country is free in formation of its own system of social security. In this connection there are a lot of distinctions between national systems which affect the right of people to social security, in case of change of a living place.
However in the conditions of globalisation and integration processes in Europe and the world, acceptance at the international level of legal certificates of the universal character fixing the rights to social protection is inevitable. Therefore today there is a number of the international legal tools which are induced by contracting parties to change the legislation to soften negative consequences of change of a living place and to provide in social security questions the equal relation to citizens and noncitizens of the state.
One of the basic forms of co-operation in the field of protection of the social and economic rights and freedoms of the person is working out the international agreements containing certain standards concerning a legal status of the individual and the obligation of the states to adhere to the given standards within the limits of the internal law.
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The development of social security has been supported by various international conventions and instruments, and the recognition of social security as a basic human right was enshrined in the 1948 Universal Declaration of Human Rights. Article 22 of the Universal Declaration of Human Rights states: "Everyone, as a member of society, has the right to social security" and Article 25 formulates it in a more precise way as ".the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control". But almost 60 years after its adoption, this right remains a dream for 80 per cent of the global population, who are still without access to social security. We know that to many, even a basic set of benefits could make the difference between a liveable and a miserable life, often between life and premature death. Millions of children under five die every year because they have no access to adequate health care and there is no income to secure their food [2, p. 9].
The specified problems of realisation of the fundamental right to social security stir up states' activity at the international level concerning possible ways of overcoming current situation in social sphere.
The social importance of social security systems for society is now widely accepted. However, there is less unanimity regarding the economic importance of social security systems. Regardless, that social security systems should be understood as a productive factor in economic development is a view that is gaining ground.
When arguing the case for the economic importance of social security provision, European social security history is particularly instructive. Many European countries introduced social security programmes early in their development; before they were rich societies. European history also shows that efficient economies and efficient social security systems can grow hand-in-hand, and that the latter is not a brake on the former. Clearly, all countries must develop their social security systems according to their own socio-economic needs and circumstances. Nonetheless, on the basis of European experience, the message for developing countries is a clear one: effective and efficient social security systems are key to long term social and economic development [6].
Social protection in the majority of the European states is considered today as a basis of constructing a modern society. The central role in the European states at formation of bases of legal regulation and definition of the basic directions of social policy is played by social "safety". Even recent radical changes of social and economic realities in Europe have not called into question necessity of preservation of social protection and protection of members of a society against social risks.
Development of the social legislation including its reduction in conformity with norms of international law in Republic of Moldova is caused by a modern political and economic situation, and also the integration processes occurring in relation to Europe.
All these factors testify to necessity of reduction of the national legislation of the state for conformity with the conventional principles and norms of international law. The conventional principles and norms of international law and the international contracts of Republic Moldova given in article 4 and article 8 of RM Constitution are admitted as a basis for construction of relations with other states and fix obligations on reduction of the national legislation in conformity with norms of the ratified international contracts and agreements. Therefore the legal analysis of some international legal certificates in the field of social security is considered to be interesting.
The Declaration of human rights (1948) recognises non-limitation of social human rights and fixes that realisation of the granted right should guarantee to the person and his family worthy living conditions, i.e. to guarantee possibility to satisfy basic needs in clothes, food, dwelling, in the services guaranteeing health of the person. In spite of the fact that the Declaration is the certificate about intentions and it does not cause legal obligations for the state, joining to it has a great value for the state, and specialised international legal certificates concretise and detail Declaration positions. Therefore the great value has «the International pact of the economic, social and cultural rights» (1967). The Pact as well as the Declaration of 1948 fixes the right to social security and protection, but supplements it with right to the state social insurance, also fixes guarantees of this right, in particular guarantees of worthy living conditions. Besides, the Pact admits that «the ideal of the free human person, free for fear and need, can be carried out, only if such conditions at which everyone can use the economic, social and cultural rights» are created.
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According to the Declaration of social progress and development of the United Nations (December, 11th, 1969) results of social progress and development should be equally directed on performance of such main objectives, as: granting of all-round social security and services of social guardianship, creation and improvement of social security and insurance system for those persons who in view of illness, or old age temporarily or constantly cannot earn on a life, and also on maintenance of an appropriate standard of living for such persons, their families and dependents; protection of the rights of mother and the child; care of education and health of children; protection of the rights and maintenance of well-being of children, aged and invalids; maintenance of protection of the people, suffering physical and intellectual lacks; carrying out actions in the field of social protection which would allow to eliminate the conditions generating criminality, offences and especially juvenile delinquency [13, p. 348-356].
The basic specialised act of international law in sphere of legal regulation of socio-labour relations is the European social charter signed by Republic Moldova on November, 3rd, 1998. Recognizing social protection as the basic social right, the European social charter promotes its strengthening, establishing a minimum of guarantees at the European level. In this fact the main role is played by the control mechanism of the Charter. Based on consideration of national reports, it allows to carry out the regular legal analysis of performance by the states of the Charter positions. The Charter assigns to the states which have signed it, obligations on acceptance of the measures directed on maintenance of effective realisation of the right to social security, in particular creation and maintenance of system of social security at satisfactory level, at least on such which is required for ILO Convention № 102 ratification about the minimum norms of social security; looking forward to gradual lifting of system of social security on higher level. By means of conclusion of corresponding bilateral and multilateral agreements the states which have signed the Charter, undertake to provide:
a) an identical mode for its citizens and citizens of other Contracting parties concerning the rights to social security, including preservation of the privileges given by the legislation on social security, irrespective of any movement of the protected person between territories of the contracting parties;
b) granting, preservation and restoration of the rights to social security by such means, as summation of the periods of insurance or the working experience, according to the legislation of each of Contracting parties (item 12 of the European social charter) [16].
Creation of necessary conditions for realisation of the right to social security remains one of priority directions of a policy of the Council of Europe in social and economic sphere that has found reflexion in the Recommendation of Parliamentary Assembly 1487 (2000) "Development of new social system", containing an appeal to more active regulation of market economy with a view of strengthening of the population's economic safety and improvement of its social security. The European social charter is "a reference point for the basic social rights and one of corner stones of the European social model" [10].
The right to social security is fixed in article 12 of the European social charter. According to comments to the Charter, social security assumes grant or pension payment in connection with certain events or circumstances - illness, invalidity, pregnancy, the family expenses connected with the maintenance of children, unemployment, an old age, death, widowhood, accidents on work and professional diseases. Giving concrete pensions and grants can be based on payment of insurance payments or not depend on them, and also have the mixed character. Sometimes granting of pensions and grants can be caused by presence of the corresponding resources. Within the limits of social security system acting of an equal mode and special modes depending on employment categories, in particular for the persons working on hiring, is supposed [3, p. 518].
Social security, which includes universal schemes as well as professional ones, includes contributory, non-contributory and combined allowances related to certain risks. These are benefits granted in the event of risks which arise but they are not intended to compensate for a potential state of need which could result from the risk itself. Article 12 p.1 guarantees the right to social security to workers and their dependents including the self-employed. States must ensure this right through the existence of a social security system established by law and functioning in practice.
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Each country is free to define its own social security system. The European Social Charter neither imposes a common model, nor seeks to harmonise social security legislation but rather to lay down minimum common standards.
In particular, according to the European committee on the social rights, insignificance of payments is capable to generate doubts in the fact of observance of the given point. Data on social security directions, ways of financing, number of persons on which the given system, conditions of its functioning extends contains in national reports of the state-participants of the Charter. The committee on the social rights has noticed that recently the states aspire to limit growth of expenses on social security in connection with increase in a share of elderly persons in an aggregate number of the population and certain recession in economy. The corresponding facts have not been qualified as the Charter infringement, however the similar tendency has been recognised as disturbing [3, p. 537].
Article 12 p. 2 obliges states to establish and maintain a social security system which is least equal to that required for ratification of the European Code of Social Security, 6 November 1990 [14].
The given document establishes the protection minimum levels, which contracting parties are obliged to observe concerning payment of pensions and grants. During ratification of the Code the states should recognise obligatory for themselves positions of at least six of its nine parts: medical services (II), grants in connection with illness (III), unemployment benefits (IV), pensions on age (V), grants (pension) in connection with accidents on manufacture and professional diseases (VI), family grants (VII), maternity and birth benefits (VIII), grants (pension) on physical inabilities (IX), grants (pension) on the occasion of loss of the supporter (X).
Point 3 of article 12 of the Charter obliges the states to achieve gradual lifting of system of social security on higher level. This norm is among "evolutionary" norms, therefore in national reports the state-participants should produce the evidence that they carry out real actions for perfection of the given system, instead referring to earlier reached results. Thus the increase in the size of the grants, caused by growth of cost of life, cannot be considered as improvement of social security system. At the same time, according to Committee on the social rights, the fact of ratification of the European code of social security testifies to determination of the state to raise the level of its own system.
The law regulating the state system of social insurance of Republic Moldova partially reproduces positions of the Charter and other international legal certificates in the field of social security and gives to citizens the right to grants in connection with the invalidity of himself, and necessity of taking care for ill child, grants on motherhood, a sum in connection with a birth of the child, the children's allowance till three years. These grants have the purpose to give the state support to families with juvenile children and, first of all, to mothers - in practice more often they use the right to the mentioned grants though under certain circumstances (except the grant on motherhood) other persons who are actually carrying out care by children have the right to their reception also.
The right to social insurance within the limits of labour and connected with labour relations is the major legal guarantee. The labour code of Republic of Moldova guarantees the right to paid medical holidays to all workers who have temporarily lost work capacity (item 194 of Labour code RM).
The insurance experience in the state system of social insurance is estimated by summation of all insurance periods which contain also the periods of reception of temporary disablement allowances, on pregnancy and sorts, on unemployment during which insurance payments for addressees of grants were brought from corresponding funds. Therefore and medical holidays are also included in the insurance experience of all workers.
In the Charter the right to use social services (article 14) is also fixed. According to the European committee on the social rights, in given article the subjective right which is subject to judicial protection is fixed. The given article assumes presence both universal, and specialised services for more vulnerable levels of population (children; older persons; invalids; the young men who are in constrained circumstances; women who have suffered from violence; alcoholics; addicts; offenders; the former prisoners; migrants; refugees).
According to standards of the Council of Europe in social security sphere the principle of non-discrimination operates and it finds reflexion in a number of documents. According to point 4 of
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article 12 of the European social charter, the state-participant by the conclusion of bilateral and multilateral agreements or use of other means take the measures directed on maintenance: (a) an identical mode for the citizens and for citizens of other Parties concerning the rights in the field of social security, including the right to preservation of pensions or the grants given according to the legislation on social security, without dependence from what movement are carried out by the person on whom protection, within territory of Contracting parties extends; (b) grantings, preservation and restoration of the rights in the field of social security by means of summation of the insurance periods or the seniority according to the legislation of each of the Parties.
As it is marked in the comments, the given measures are directed on maintenance of mobility of a labour and protection of foreign workers [3, p.518]. These positions extend not only on the persons living in territory of the Contracting party, but also on those who lived in this country earlier and has got the right to old-age pension reception. The state cannot give social benefits or pensions only to the citizens or to establish the additional restrictions extending exclusively on foreigners, except the right to demand observance of the established period of residing as conditions for reception of grants or the pensions which are not dependent on the size of an insurance payment that is provided in the Appendix to the Charter. Republic Moldova as the state which has signed the European social charter conducts the social policy directed on strengthening of social protection of citizens of the state, and also foreign citizens, who got the right to social security in Republic Moldova.
Among sources of international legal regulation of relations on social security the important place is occupied with conventions and recommendations of the International labour organization. The republic Moldova as a member ILO gives a great attention to reduction of the national legislation in conformity with positions of the specified international legal acts. Numerous conventions and recommendations concern number of acts where the rights in social security sphere are fixed ILO. In conventions of the ILO on social security standards of structurization, administrations and financings of social benefits are defined and it is important for reforming of the national legislation. Without stopping on discussing the maintenance of conventions, we will turn to the substantive provisions important for the internal legislation.
For example, in the ILO Convention № 102 (1954) «About the minimum norms of social security» devoted to the minimum standards of social security, common principles of development of all sectors of social security are defined. Thus that essential flexibility in structurization of schemes of social security taking into account the state interests and a choice is given to the states, substantive provisions of these principles demand, that: any allowance was paid regularly «throughout all period of an emergency situation» in connection with which this grant should be paid; the grant replaced the previous income to certain level; expenses for payment of grants and management became covered in common at the expense of paid grants or taxes; paid for the account of employers insurance payments did not exceed 50 percent from the general expenses of the scheme; the state has incurred at least the general responsibility for appropriate payment of grants and management of the scheme; representatives of socially protected persons took part in management of the scheme, or, at least, have been connected with it at consultative level [7, p. 20].
In the mentioned convention one of the social security purposes - is the prevention of an impoverishment of the population is also fixed. Subsequently substantive statements of Convention №102 have been taken as a principle by the European code of social security accepted in Strasbourg on April, 16th, 1964; the Convention № 127 (1967) «About grants in case of an old age, physical inability, losses of the supporter». The important position of the given convention is fastening of the right to the grant not only for workers, but also all other citizens who have become invalid; the United Nations Convention on the rights of the child fixes the social and economic status of the child, guaranteeing protection from the state. Concept of the child has a great value in the convention- any person who has not reached 18 years [11]; the Convention № 100 about equal compensation for equal work for men and women and other ILO acts.
In Moldova, social security and social assistance have been the core systems to provide income security and poverty reduction for the elderly, disabled and survivors. The social security system, however, are facing new challenges such as pension reform to ensure the long-term sustainability and
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policy coordination for ensuring the right to social security for growing migrant workers. ILO is ready to consult Moldavian legislative bodies in the framework of rendering assistance to the states on modification of social legislation [9]. ILO's technical assistance will focus on building capacity of the government, social security institutions and social partners to appreciate the key problems and issues in social security and to develop sound policies based on social dialogue process [5].
The majority of the modern states proclaim itself as social that predetermines creation of conditions for maintenance of worthy human life, including by carrying out of effective social policy. Protection of the social rights of citizens is considered as one of the main elements of such activity. Legal mechanisms and procedures of prevention of infringements of these rights are not enough for maintenance of the given category of the rights. The versatile creative activity of the state directed on realisation of social policy on the basis of development of economy, increase of standard of living of the population is necessary. In our opinion the complex mechanism of protection of the social rights of the population, should combine economic, political, legal, administrative means and guarantee minimisation of cases of infringement of human rights.
Priority directions of formation and effective functioning of such complex are increase of efficiency of social state policy, granting of effective guarantees of constitutional rights of citizen in the field of work, employment, social security, education, health protection, improvement of a financial position and living conditions of people etc.
Activity of the states in this direction is complicated today by conditions of world financial and economic crisis. Sharp decrease in manufacture, mass lay-offs of workers, falling of real level of a payment and social benefits, growth of uncertainty of people in future, threats of social explosion have already become crisis' consequences. Though crisis in different degree has mentioned the countries of the world and economy branch, its scales, depth and duration of influence on all inhabitants of a planet has, undoubtedly, global character [12]. Therefore at this conjuncture acceptance of the consolidated decisions in social security and social protection sphere and along with accurate observance of positions of already accepted international legal certificates is very important. Development of mechanisms of the co-ordinated actions of the states in the conditions of an economic crisis is also actual. Principle of conformity of level of social security to varying economic and social conditions, maintenance of base needs even if they vary under the maintenance and the nature in the different countries should be defining in this activity.
The concept of Dynamic Social Security which was suggested by International Social security Association promotes the innovative use of integrated, proactive and forward-looking social security policies with the near-term aim of building high-performing social security organizations [6]. It's important to note, that effective and well governed organizations are vital for social security's credibility and, ultimately, its sustainability. Building on this first step, the longer-term aim of Dynamic Social Security is to contribute to providing universal access, at least, to basic cash benefits and primary health care in all countries.
Throughout its history, social security has never stopped adapting. However, today, after more than a century of existence, the challenge remains one of making the right to 'social security for all' a reality.
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EXTRATERRITORIALITY OF ANTIMONOPOLY LEGISLATION Tsareva A.F. (Russian Federation) Email: [email protected]
Tsareva Aleksandra Fedorovna - Bachelor of Law, LAW FACULTY,
SAINT-PETERSBURG STATE UNIVERSITY, SAINT- PETERSBURG
Abstract: a new federal law "On protection of competition" was passed in 2006, it contained provision about exterritorial application of competition law. Such practice ofprotection of national markets from anticompetition agreements made abroad is known to many states. Nowadays Russia does not possess such mechanism, however, practice of FAS gradually develops it. Moreover, there is an almost lack of international treaties against monopolies that include exterritorial application of Russian competition legislation.
Keywords: extraterritoriality, competition law, antimonopoly legislation.
