As the general legal framework and other legal aspects of the right to social security will be discussed in other papers I will focus on aspects of the legal implication of equal treatment regarding this specific right considering as examples the principle of non-discrimination on the grounds of gender and nationality.

The principle of non-discrimination is not only a human right of its own，classified as “civil right” in the framework of international and regional human rights treaties1608902，but plays also a role of utmost importance in interaction with all human rights1608903，independent of their civil，political，economic，cultural or social nature. Furthermore there are a range of United Nations human rights treaties specifically intended to combat discrimination.1608904

Discrimination on grounds of gender，race，ethnicity，age，disability，national origin and other factors places particular groups on the edge of society “often adding to the inequalities already experienced by vulnerable and marginalized groups”1608905. By its very nature the right to social security as a mean to compensate for personal incapacity or social inequality emerging from discrimination becomes especially vital with regard to vulnerable and marginalized groups. Therefore the principle of non-discrimination in access to social benefits and social assistance is among the most fundamental fragments of the right to social security1608906.

With regard to gender equality for example，in social security legislation，especially if based on individual contribution respective to an employment contract，must take into account the different roles men and women traditionally played in the working field. In view of the fact that the majority of part time workers are women or that women often even completely stay outside the formal labour market taking care of the family，benefits earned on insurance type security systems often favour men.1608907 Failure to pay regard to such factual differences may lead to indirect discrimination. Taking into account such circumstances the Committee on the Elimination of Discrimination against Women with regard to Art 11（1） （e）1608908 as well as the European Committee of Social Rights with respect to Art I of the Additional Protocol as also Art 12（1） ESC1608909 demands state parties to review existing social security systems particularly with regard to atypical forms of employments to eliminate any form of unequal treatment particularly in the form of indirect discrimination.

On the other hand social security legislation that once legitimately distinguished between men and women may become discriminatory over time because the factual situation of men and women in the employment market is also developing.1608910 This became evident as the Human Rights Committee under its individual complaint mechanism adopted its view in three Dutch cases relating to social security. In two of the three cases the Committee saw a violation of Article 26 CCPR in the fact that under the Dutch Unemployment Benefit Act a married woman，in order to receive the particular benefits，had to prove that she was the “breadwinner” of the household-a condition that did not apply to married men.1608911

This does not only show that the non-discrimination requirement calls for continuous review of existing social security legislation to account for social developments，these cases can also be regarded as major step in international human rights law as the non-discrimination clause in Art 26 CCPR was determined to be applicable also in relation to the enjoyment of economic，social and cultural rights.1608912

Even though discrimination on ground of gender has been the area in which Art 26 CCPR has been applied most often，it has to be mentioned that all the prohibited grounds for discrimination of Art 261608913 may be applied also in the field of social and economic rights and social security. This was illustrated for example in a far reaching decision of the Human Rights Committee against France based on discrimination on the ground of nationality，falling into the category of “other status” in the terms of the treaty provision.1608914 The Committee found a violation of Art 26 since French legislation granted lower pensions to retired Senegalese soldiers of the French army than to French citizens in an equal position. This case is particularly significant as the raison d’être of the decision is that a differentiation between nationals and non-nationals with regard to pension schemes is illegitimate under Art 26 CCPR.1608915

On the European level a case concerning Austria has to be mentioned. Although there is a manifest difference between Art 26 CCPR and Art 14 ECHR，as the latter is limited to prohibiting discrimination in the enjoyment of the rights and freedoms otherwise protected by the Convention，the European Commission and the Court of Human Rights established in Gaygusuz v. Austria1608916 （although not for the first time） that it is sufficient if a link to another substantive article can be established without finding a separate violation of the other provision.1608917 Austrian law at this time did not grant the claimant，a migrant worker with Turkish citizenship，a right to social assistance benefits，paid after the expiration of the maximum period of income based unemployment benefits as opposing to Austrian citizens，which had this individual right. The Court found a violation of Art 14 on the ground of nationality in connection with the property provision in Art 1 of Protocol No.1 emphasizing the nature of the right to emergency assistance as a pecuniary right in itself.

As to the obligation of equal treatment between nationals and non-nationals with regard to economic，social and cultural rights，which is frequently flouted by states，the European Social Charter and its revised form of 1996 are only of limited impact concerning social security （Art 12） and social assistance （Art 13）.1608918 Both provisions include explicitly the obligation of equal treatment but only between nationals of Contracting Parties.

With regard to the principle of equal treatment between men and women in social security in European Community law two Directives have to be mentioned. Directive 79/7/EEC1608919 which applies to equal treatment regarding statutory social security schemes and Directive 86/378/EEC1608920 （as amended by Directive 96/97/EC1608921） which applies to equal treatment regarding occupational social security schemes. However，there are a number of exceptions to the principle of equal treatment，as for example pensionable ages for men and women for the purpose of granting old-age and retirement pensions （and the possible consequences thereof for other benefits） are currently excluded from the scope of the Directives.1608922 A lower retirement age for women than those for men has initially been founded on the double work burden by women，but taking into account social developments this can often be considered as a disadvantage as it leads to an uncompetitive position of women in the labour market and can result in lower pensions for women than for men. Various international treaty monitoring bodies have expressed concerns about differing pensionable ages regarding their potential discriminatory effects.1608923 European Community law contains therefore a certain ambiguity concerning different retirement ages which led to a restrictive interpretation of the exception rules by the European Court of Justice，1608924 for example in the Barber Case and did not allow states to maintain different ages of retirement.1608925 In another case however，the Court held that the purpose of the exception rule allows Member States to maintain temporarily the differences in pensionable ages in order to enable them to adapt their pension systems progressively without disrupting the complex financial equilibrium.1608926

The foregoing discussion has been limited to equal treatment between men and women and between nationals and non-nationals simply because these grounds of discrimination appear more comprehensive in the judicial discussion in international and regional case law，which does not at all mean that discrimination on other factors does not occur or that these are less important to condemn. On the contrary，as also acknowledged by the General Comment No. 9 of the Committee on Economic，Social and Cultural Rights，the prohibition of discrimination is a justiciable part of the right to social security and requires judicial remedies.1608927 Therefore it is of utmost importance to provide these judicial remedies for all groups facing discrimination on all grounds.