C. Access to information and participation
77. The third crosscutting issue for progress indicators concerns access to information and civil society participation in public social policy.
78. The Committee on Economic, Social and Cultural Rights has drawn attention to the State obligation to produce information bases with which to validate indicators and, in general, access to many of the guarantees covered by each social right. Accordingly, this obligation is essential for the enforceability of these rights.
79. Dissemination of information in a democratic society enables the citizenry to monitor the activities of the authorities to whom they have entrusted the protection of their interests. It follows from the above that the State has a positive obligation to provide that information to the citizenry, particularly when it is in its possession and there is no other way to access it. The foregoing is without prejudice to special limits previously established by law and subject to the principles of proportionality and need.
80. Adequate access to public information is a key tool for citizen participation in public policies that implement rights enshrined in the Protocol. Hence the need to have a flow of available information to provide the elements necessary for appraisal and oversight of policies and decisions that directly affect them. Paradoxically, despite the fact that most countries in the region have ratified the main international instruments recognizing civil rights, very few have in place laws on access to public information or domestic rules that surpass the minimum legal standards on in this area.
81. Valuable documents have recently been prepared that seek to determine the scope of the fundamental right to information in the possession of the State enshrined in international human rights law. One particularly important document is that prepared by the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights dealing with Article 13 of the Convention. Said document is important because it sets the benchmark to be met by laws on access to information adopted by the countries in the region. The document provides that the right of access must be ensured by states and, therefore, is not subject to limits or restrictions except on exceptional grounds that shall be examined according to a strict standard. Openness of public information is, therefore, the norm and confidentiality shall be the exception subject to a strict interpretation. The document also mentions that the State is not only required to observe the right by permitting access to files and databases, but also by discharging a positive obligation to disclose information in certain situations. In some cases, circumstances are recognized as generating the obligation to produce information on the exercise of rights by sectors that have traditionally suffered exclusion and discrimination. We should also mention the obligation of states to enact laws to ensure the exercise of this right, which must meet certain basic requirements: the principle of maximum disclosure of information, the presumption of openness of meetings and key documents, broad definitions of the type of information that is accessible, short time limits and reasonable costs, independent review of denials of information requests, penalties for failure to provide requested information, and an appropriate procedure for establishing exceptions to access.
82. One successful strategy to improve the adequacy and pertinence of social policies and services and, therefore, the progressive realization of social rights, is to guarantee a say in the design and implementation of government strategies for civil society organizations, nongovernmental organizations with technical resources and expertise, and groups that represent the sectors targeted by the policies and services. Participatory rulemaking mechanisms, public hearings, consultative councils, and participatory social budgets are ways that have been tried by several countries in the Americas to channel that participation. Another practice considered appropriate for improving transparency and accountability is to increase forums for social participation in evaluation, oversight, and responsibility mechanisms. This document suggests a number of indicators and signs of progress to measure the level or degree of social participation in these processes.
83. As mentioned, once a state ratifies the Protocol it is incumbent upon it to monitor the observance of the rights enshrined in said instrument. Accordingly, indicators and signs of progress should be adopted that measure access to public information and participation from that point forward and have the following scope.
Access to information and participation
V. PROTECTED RIGHTS. GUIDELINES FOR THEIR MONITORING
84. The IACHR suggests a number of guidelines to evaluate implementation of the rights to social security and health (Articles 9 and 10 of the Protocol). These rights were selected based on the experience garnered by the IACHR from its system of cases on these rights as well as developments in standards in the United Nations system. The indicators presented in this section could be considered for the design of progress indicators on other rights contained in the Protocol.
85. On the matter of social security, Article 9 of the Protocol provides that “Everyone shall have the right to social security protecting him from the consequences of old age and of disability which prevents him, physically or mentally, from securing the means for a dignified and decent existence. In the event of the death of a beneficiary, social security benefits shall be applied to his dependents. In the case of persons who are employed, the right to social security shall cover at least medical care and an allowance or retirement benefit in the case of work accidents or occupational disease and, in the case of women, paid maternity leave before and after childbirth.”
86. The starting point for social security legislation is the concept of contingency. This refers to a future event or situation, which, should it occur, will have harmful effect on the individual. It is therefore an event that is future and uncertain –but which has a high probability of occurring– that makes it necessary to protect the individual, or a group of individuals, from such an eventuality.
87. The protection of the social security system comes into effect once the contingency has arisen, having caused an individual, or members of the individual’s family, or both, to be negatively affected in terms of standard of living, as a consequence of either increased consumption, or decreased or suppressed income.
88. Most bodies of legislation in Latin America and the Caribbean, divide contingencies into three categories: i) pathological contingencies: situations where protection is required against the eventuality of disease (health insurance), accident or occupational illness (pensions for invalidity or ill-health); ii) socioeconomic contingencies: this refers to security against the eventuality of loss of income (retirement or pension), lack of work (unemployment insurance) or due to “expansion of the family” as a result of a birth or dependent spouse (family benefits); iii) biological contingencies: precautions taken in active life in order to ensure the protection of rightful claimants (pension for surviving spouse or children who are minors), in the event of death (burial costs), or a pension for non-workers who lack resources (ex-gratia or non-contributory pensions).
89. In all these cases what is “protected” is that which, if absent, is understood to constitute a lack or deprivation. Contingency is therefore indissolubly linked to lack, in the most traditional concept of social security, or to the State of need of the person, in the more modern vision. In either of these two cases, the protection must be linked to the coverage, that is, to what is needed to make up for the lack.
90. As the right to social security developed and mechanisms were designed to ensure that benefits were effectively received, dependent workers and in some cases their family group were included. Coverage for the unwaged was limited to a number of well-defined contingencies, although in most cases protection was a consequence of voluntary adherence. In other words, the principle of universality has not been sufficiently developed, and it is still a requirement to demonstrate certain circumstances in order to accede to protection.
91. These particularities are provided for in the Protocol since it recognizes the difference in coverage between salaried workers and those not in paid employment. It should also be considered that, as a result of the reforms adopted by the region's countries during the last decade, the different forms of social security organization in each country have undergone substantial changes, especially in terms of access, coverage, and related rights.
92. Strictly speaking, in addition to attempting to record degrees of realization of the right as well as conditions of access thereto, indicators should seek to collect more detailed information about the transformations that have occurred in systems of responsibility in order to identify with whom the obligation to safeguard the guarantee of social security cover rests; that is, is the State still the main guarantor -and provider- or has chief responsibility shifted to the private sector, through specific forms of private insurance? Under the latter systems, the role of the State under domestic law has been reduced to that of protector, while in some countries’ legal frameworks their responsibilities are even less clear or further diminished. These circumstances are considered relevant for monitoring compliance with the Protocol.
93. Article 10 of the Protocol of San Salvador provides with respect to this right that “Everyone shall have the right to health, understood to mean the enjoyment of the highest level of physical, mental and social well-being. In order to ensure the exercise of the right to health, the States Parties agree to recognize health as a public good and, particularly, to adopt the following measures to ensure that right: a) Primary health care, that is, essential health care made available to all individuals and families in the community; b) Extension of the benefits of health services to all individuals subject to the State's jurisdiction; c) Universal immunization against the principal infectious diseases; d) Prevention and treatment of endemic, occupational and other diseases; e) Education of the population on the prevention and treatment of health problems, and, f) Satisfaction of the health needs of the highest risk groups and of those whose poverty makes them the most vulnerable.”
94. The Protocol refers to observance of the right in the framework of a health system that, however basic it may be, should ensure access to primary health care and the progressive development of a system that provides coverage to the country’s entire population. In turn, it should afford special assistance to vulnerable groups and those in a situation of poverty.
95. The right to health has a large number of measurement instruments, in particular quantitative instruments. At the same time the right to health is addressed in three Millennium Development Goals (on child mortality, maternal mortality, and HIV/AIDS, malaria and other diseases), for which there is information available in most countries in the region. In these cases, it is up to the reporting State if it wishes to combine information on progress in the MDGs with the indicators suggested here.
96. In keeping with the aforesaid framework, for the purpose of monitoring the implementation process in terms of the scope of the provisions contained in the Protocol, the table below sets out the main (structural, process and outcome) indicators as well as qualitative signs of progress. We should reiterate that the indicators shown should be regarded as a guide for a broader process in which further indicators and more precise signs of progress are included.
The table also includes indicators on
crosscutting issues in order to demonstrate their importance and the
possibility to have a combination of separate tables for all the
rights contained in the Protocol (such as those mentioned in the
first part of this document) with disaggregated information on
crosscutting issues in the tables of indicators on specific rights.
VI. CONTRIBUTIONS FOR THE PREPARATION AND EVALUATION OF NATIONAL REPORTS
98. A methodology to monitor fulfillment of the rights and obligations contained in the Protocol such as the one proposed above, poses implications as regards the procedures for the preparation and evaluation of national reports. Accordingly, the Inter-American Commission suggests a set of guidelines that it believes could help to establish a simple and effective procedure in that regard, and which might also serve as a model evaluation system for states.
99. Some of these proposals are designed to contribute to the future activities of the Working Group to implement the reporting system, the composition and functioning of which were defined by the OAS General Assembly on June 5, 2007 (AG/RES. 2262).
100. To that end, the Commission first sets out a number of general aspects regarding the procedure for reporting to the UN Committee on Economic, Social and Cultural Rights. The purpose of this presentation is to draw attention to a number of lessons learned from this procedure that could be useful for the design eventually implemented in the inter-American context. The aim, in particular, is to underscore possible differences between one procedure and the other and to endeavor to ensure that the monitoring systems do not needlessly duplicate efforts. Following that, the Inter-American Commission offers a number of observations on the use of a participatory procedure in the preparation of reports and on evaluation methodology.
A. Considerations to Bear in Mind Based on the Experience of the United Nations Committee on Economic, Social and Cultural Rights
101. Under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, States parties undertake to submit reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized therein. These reports are initially examined by a Pre-Sessional Working Group composed of five members of the Committee, who meet for one week before the plenary of the Committee examines the report. The principal purpose of the working group is to identify in advance the questions that will constitute the principal focus of the dialogue with the representatives of the reporting States. The group prepares a list of issues which are then transmitted to the reporting state, so that it might reply in writing before it appears before the Committee or at the public hearing. The representatives of the States parties appear before the Committee, present the report, and answer questions. The representatives are then given a period in which to answer questions posed or facilitate additional information. Finally, the Committee completes its examinations and publishes its “concluding observations” on the report.
102. The Committee devotes three meetings (of three hours each) to its public examination of States parties’ reports. Finally, it holds a private session at which it adopts its concluding observations.
103. In the course of its sessions in 2000, the Committee resolved that, as a general rule, a State party's next periodic report should be submitted five years after the Committee's consideration of the State's preceding report, but that the Committee may reduce this five-year period on the basis of the following criteria and taking into account all relevant circumstances: i) the timeliness of the State party's submission of its reports; ii) the quality of all the information submitted by the State party; iii) the quality of the constructive dialogue between the Committee and the State party; iv) the adequacy of the State party's response to the Committee's concluding observations; and, v) The State party's actual implementation of the Covenant.
104. In situations in which the Committee considers that it is unable to obtain the information it requires, in accordance with Article 23 of the Covenant and the follow-up procedure in relation to the consideration of reports, it may request that the State party concerned accept a mission consisting of one or two members of the Committee. Such a mission requires the approval of both ECOSOC and the State party concerned. The purpose of such missions is to enable the Committee to collect information to strengthen follow-up on its recommendations and provide technical assistance on specific issues.
B. Participatory Procedure in the Preparation of Reports
105. Given that monitoring compliance with obligations in the area of social rights is an especially complex task, since its first session in 1987, the Committee on Economic, Social and Cultural Rights has relied on information provided by official UN sources, specialized agencies, and nongovernmental organizations. Resolution 1296 (XLIV) introduced the participation of nongovernmental organizations in the work of the Committee. Furthermore, in 1993, the Committee approved a document entitled “Participation of non-governmental organizations in the Committee on Economic, Social and Cultural Rights.” Although a number of member states initially expressed their rejection of the use of information supplied by nongovernmental organizations, the Committee has vigorously defended the role of the information provided, especially since it can be compared with the original information provided by the State. This process has led to various forms of civil society participation in the activities of the Committee, in particular through the submission of alternative, parallel, or shadow reports.
106. The submission of a parallel or alternative report to that of the State is possible through coordination between the Committee and NGOs. This participation is open to NGOs i) during consideration of State party reports, at which they may participate without voice; ii) on general discussion days, at which they have the opportunity to make oral presentations; and, iii) in the drafting of general comments. It has also been the practice of the Committee to permit participation of civil society organizations in the meetings at which the Pre-Sessional Working Group drafts the questions to be put by the Committee to the reporting state. Some states provide specific procedures for civil society participation in the presentation of their respective reports to the Committee.
107. Moreover, civil society participation in the presentation of alternative reports to treaty-based monitoring bodies is a practice that already deserves the highest possible respect as a citizen oversight mechanism on state compliance with international obligations.
108. In the framework of the inter-American system, the Permanent Council adopted a resolution that contains a series of guidelines on civil society participation in OAS activities, which has prompted the registration, mobilization, and participation of nongovernmental organizations active in various fields. In any event, this recognition of the necessary participation of civil society puts a seal of legitimacy on the activities of the Organization.
109. The IACHR considers that the reporting procedure under the Protocol will be highly useful for ensuring adequate participation for civil society in the various stages. It is possible that many states will manage to ensure that participation in their internal procedures for drafting the reports to be submitted to the Working Group. In that connection, the IACHR considers that, generally speaking, the information collected for the report provided in the Protocol will be of a public nature or of public interest and that there should be no obstacles to limit participation and discussion forums with different societal stakeholders that represent the diverse sectors involved in the issues covered in the report. The participation in the reporting and evaluation processes of the Working Group will make it possible to ensure greater transparency and legitimacy in the process, increase sources of information which the Working Group would be able to compare with the statistical and factual data provided by different states, and, finally, boost the effectiveness of follow-up on the observations of the Working Group. The social and policy dialogue that the Protocol monitoring process could trigger would certainly be a notable outcome in itself, as a strategy for ensuring social rights in States parties.
110. In turn, the principle of participation requires that all procedures corresponding to the reporting system be governed by the principle of broad disclosure. As mentioned above, without prejudice to the fact that some information might be confidential, the type of information requested for the system of indicators and for the reporting on the situation of the social rights enshrined in the Protocol in general, is of a public nature or of public interest, and states should furnish and publicize it widely. Accordingly, the IACHR considers that the reporting to the Working Group should proceed in a framework that is as open to participation and as public as possible.
C. Monitoring Phases
111. Discussions have been held in the framework of the Committee on Economic, Social and Cultural Rights as to whether it would be more suitable for reports presented to cover clusters of rights or all of the rights protected in the Covenant. While reports were initially submitted on clusters, it was later decided to have documents that examined all of the rights protected.
112. The General Assembly resolution that contains the Reporting Guidelines does not lean toward any methodology in particular. It merely alludes to the possibility of grouping the rights protected according to thematic clusters and mentions the need to cross reference that information with information on the respective rights subject to special protection. However, there is no rule with respect to the ‘cluster reporting’ methodology.
113. The Inter-American Commission considers that the implementation process for the reporting system should proceed as vigorously as possible while adhering to minimum requirements of reasonableness, in accordance with the institutional structure currently in place in the Organization for monitoring. Consequently, the Inter-American Commission proposes that the reporting system be implemented by stages that cover clusters of related rights and alternative strategic themes consistent with the needs and priorities of the region.
114. It should be borne in mind that the report evaluation procedures are relatively short (60 days), with the result that the Working Group will not have enough time to analyze an overly extensive amount of information. Therefore, the Inter-American Commission considers that to adopt a system of reports that cover all of the rights contained in the Protocol could lead to recommendations of an exceedingly general nature that fail to address areas of non-compliance in sufficient depth. The various proposals on clusters and procedure are designed to make reporting as suitable and effective as possible.
115. As noted, the IACHR believes that a possible starting point would be the presentation of reports on crosscutting issues common to all of the rights and in the manner described in this document. The difficulty of submitting exhaustive reports on every component of each of the rights enshrined in the Protocol, justifies an approach that would initially provide information on the baseline situation in those settings that best encourage the judicial enforceability and political observance of social rights at the domestic level.
116. In parallel to the indicators on crosscutting issues, at an ensuing stage it would be necessary to develop, in a participatory and deliberative manner, a set of indicators on the other social rights contained in the Protocol.
117. Finally, a core aspect of the first phase is for each state to establish priority goals and objectives. We have already mentioned the need that this process formally includes the participation of civil society. Goal setting also requires the design of a precise strategy or plan for meeting those goals and a detailed timetable by which to monitor fulfillment of proposed objectives. Goals and objectives should be consistent with the level of development and available resources in each state and be designed with particular attention to the scope and content of each right in the Protocol, as determined by the case law of the inter-American system, the analogous implementation of the general comments and concluding observations of the UN Committee on Economic, Social and Cultural Rights, and the relevant case law of domestic tribunals.
D. Design of Indicators in Accordance with Local Problems and Determination of Regional Needs and Priorities
118. A system of indicators to analyze the observance of rights is technically a highly complex tool. One of the most useful strategies for reducing this problem is to adapt or adjust a set of general progress indicators to match local and/or regional issues to be examined in each period. This requires that, prior to the presentation of reports, the Working Group to implement the system prepare a preliminary analysis or outline of the problems in each country under review based on relevant information from specialized agencies, the government departments of the State in question, and consultations with civil society organizations. It might also be appropriate, for that purpose, to confer with the Inter-American Commission on Human Rights. The IACHR considers that, in addition to a set of general progress indicators, it would be advisable for the Working Group to specify which information is deemed relevant and to add or remove some of those indicators, as appropriate, in order to make it easier for the State to enhance the accuracy and utility of its reports. Accordingly, the IACHR recommends a preparatory activity of some description similar to that carried out by the UN Committee’s Pre-Sessional Working Group.
E. Presentation of Reports to the Working Group and Their Evaluation. Need for a Tripartite Working Group
119. It should be borne in mind that some of the procedures of the Committee on Economic, Social and Cultural Rights suffer from certain restrictions owing to the difficulty that this agency has in monitoring a rather high number of countries (more than 100). The fact that there are fewer countries in the inter-American framework would make it possible to explore creative methodologies with respect to the evaluation of reports. Following, we offer a number of suggestions on presentation, evaluation, and follow-up on implementation of recommendations.
120. As regards evaluation of reports, it could be useful for the working group to have the possibility to make country visits -should it consider that necessary- to ensure direct contact with government agencies and greater participation on the part of the relevant civil society organizations. This initiative is in keeping with the constructive nature of the reporting system, which seeks to guide states in the adequate fulfillment of the Protocol.
121. Evaluations should be conducted according to the principle of maximum disclosure and not be guided by the logic of secrecy. Evaluations should also take into account information supplied by nongovernmental organizations regarding reports submitted by states (alternative or supplemental reports).
122. Follow-up on implementation of recommendations is a task that should be globally supervised by the Working Group according to set deadlines at the domestic level. It should be kept in mind that the principle of reciprocation does not signify that reporting is limited simply to a dialogue between states and the Working Group without any form of coercibility or constraint. Indeed, such procedures were abandoned by the Universal System in favor of the procedure of the ESCR Committee and the need to adopt concluding observations, the recommendations from which provide the framework for the presentation of ensuing reports.
123. The members and procedures of the Working Group must safeguard the principles of autonomy, independence, and impartiality, in particular vis-a-vis governments.
 The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belem do Pará) creates the obligation for the State to “ensure research and the gathering of statistics and other relevant information relating to the causes, consequences and frequency of violence against women, in order to assess the effectiveness of measures to prevent, punish and eradicate violence against women and to formulate and implement the necessary changes.” (Art. 8 (h). As we shall see, this is a clear obligation to produce information and is enforceable as a right.
 Office of the Special Rapporteur for Freedom of Expression, “Access to Public Information in the Americas. Contributions of the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights,” p. 12. This document also outlines discussions on legislative reforms in this area in the Americas. See also Article XIX, The Public´s Right to Know: Principles on Access to Information Legislation (June 1999), available at www..article19.org/docimages/, The Johannesburg Principles on National Security, Freedom of Expression and Access to Information” (November 1996), available at http: www.article19.org/docimages/511. Kate Doyle, “Freedom of Information in Mexico”, May 2, 2002, available at http: www.gwu.edu/-nsarchvi/NSAEBB/NSAEBB68. Toby Mendel, ”Freedom of Information as an Internationally Protected Human Right”, Article 19, 2000, in www.article19.org. “La Información como herramienta para la protección de los derechos humanos”, CELS, 2004; and Statistical Conference of the Americas, http://www.eclac.cl/deype/ceacepal/index.htm.
 In the comments submitted by the International Commission of Jurists (ICJ) and the government of Colombia during the consultation period for this document, it was suggested that the outcome indicators to be chosen for each of the rights selected should reflect at least those components of the rights expressly provided for in the text of the treaty that lend themselves to translation in quantitative terms, particularly -and at least-, as outcome indicators. Furthermore, the goal with each of the individual indicators included as qualitative signs of progress is to relate those signs of progress, in turn, to the crosscutting issues proposed, so as to link government policies and measures (or the absence thereof) to the objectives as regards implementation of the Protocol and of the development model adopted by each state.
 Laura Pautassi “El derecho a la seguridad social. Una aproximación a América Latina”, In: Abramovich, V.; Añón, M.; Courtis, C. (comps.), Derechos Sociales: instrucciones de uso. Doctrina Jurídica Contemporánea, Mexico, Fontamara Ediciones, 2003.
 In short, protected individuals are all those who are included in the system’s field of application, or in special regimes (professionals, armed forces). They are potential claimants of the benefits established, which will come into effect when the contingency occurs, provided that they meet the required conditions (age, illness, etc.). In order to be a beneficiary, however, it is not enough to come within the field of application of these regimes; it is always necessary to meet legal requirements to accede to the status of beneficiary. These requirements may refer to the objectivization of the contingency (degree of invalidity, for example) or to legal conditions (married status) or be related to the administrative and financial authority of the regime in question (length of membership or minimum contribution). Clearly, the system is not unconditionally accessible to all citizens.
 In its response to the consultation on the instant document, the PAHO indicated that, in addition to the MDGs as a measurement instrument, it was also necessary to include all the resolutions that concern the right to health, in particular on primary health care and protection of vulnerable groups, discussed and adopted by the OAS member states in the Directing Council and/or the Pan American Sanitary Conference of the PAHO in the context of the Constitution of the WHO. It mentioned, to that end, that it is crucial to offer states, civil society, and specialized inter-American agencies the possibility to measure the right to health in accordance with the guidelines that come out of the PAHO/WHO as the inter-American agency that is responsible for public health in the Hemisphere and which consists of a large number of offices that monitor state compliance with necessary measures to protect the right to physical and mental health of the most vulnerable groups.
 These persons are nominated by the Committee Chair, taking account of the desirability of a balanced geographical distribution and other relevant factors, such as the areas of expertise of the Committee members.
 The list of issues contains questions addressed in writing to the State party based on documents presented by it. The list is prepared some 6 to 12 months before the Committee examines the report of the State party.
 In order to have available all the information necessary to evaluate reports, the Committee permits nongovernmental organizations to present information at any time during the review process and even allows the submission of alternative reports (commonly referred to as shadow reports).
 UN Doc. E/C.12/1993/WP.14 of 12 May 1993. See also, “NGO participation in the activities of the Committee on Economic, Social and Cultural Rights”, 7 July 2000 (E/C.12/2000/6).
 CP/RES.759 (1217/99).