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I. GENERAL OBSERVATIONS ON THE REPORTING SYSTEM UNDER ARTICLE 19 OF THE PROTOCOL OF SAN SALVADOR
1. Article 19 of the Protocol of San Salvador provides that states parties shall submit periodic reports on the progressive measures they have taken to ensure due respect for the rights set forth in the Protocol.
2. The aim of the Standards for the preparation of the periodic reports mentioned in Article 19 of the Protocol of San Salvador, adopted by the General Assembly of the OAS (resolution AG/RES. 2074 XXXV-O/05), is to draw up “guidelines and rules” for the design of reports in accordance with a system of progress indicators. The Standards mention that “particular attention has been given to the principle of progressiveness of economic, social, and cultural rights (ESCR), understood as the adoption of public policy that recognizes ESCR as human rights, whose full realization, generally speaking, cannot be rapidly achieved and which, therefore, require a process in which each country moves at a different pace toward achieving the goal. Except as warranted in extreme cases, this principle regards regressive measures as invalid and excludes inaction.”[1]
3. The specific inclusion of progress indicators in the Standards represents a progression in relation to the Protocol, which did not specifically provide for them. According to the spirit of the Protocol, progress indicators should consider progress in the realization of rights and not measure advances or setbacks in terms of development (economic and social). Accordingly, a distinction should be drawn between economic and social progress and fulfillment of the Protocol of San Salvador.[2]
4. It is as well to recall at the outset that the monitoring procedure provided in the Protocol is not intended to assess the quality of the public policies of states, but to monitor compliance or otherwise with their legal obligations under the Protocol. The Protocol contains an extensive range of obligations, both positive and negative, as well as immediate and progressive. In order to oversee compliance with these obligations it will frequently be necessary to observe which strategies, measures, and public policies states have implemented in an attempt to ensure the exercise of rights. Clearly, states can meet their obligations by choosing from a broad range of courses of action and policies. It is not for international monitoring and mechanisms to judge those options that each State has selected in exercise of its sovereignty to realize the rights contained in the treaty. It will be necessary, however, to determine if those public policies violate rights recognized in the Protocol, and to examine whether or not they have managed, through those policies, to fulfill of their positive obligations -whether immediate or progressive- under the Protocol. The ultimate aim of the system of indicators and signs of progress is not, then, to review policy, but only examine policies, aspects thereof, or the impact of certain policies, as a means to arrive at certain conclusions regarding extent of compliance with and implementation of the Protocol.[3]
5. The progress indicators mentioned by the standards would not only serve to reach conclusions of a general nature on progress or setbacks in the implementation of the Protocol by states. The principle of progressiveness in economic, social, and cultural rights permits their application in monitoring both general situations and specific situations in which there may have been reverses in the exercise of certain rights. Accordingly, the system of indicators and signs of progress should help not only to reveal developments in the overall situation of a country over a given period, but also, where possible, to identify specific serious violations of rights recognized in the Protocol, in particular problems of a collective compass, or that stem from reiterated practices or patterns, or from factors of a structural nature that may affect certain sectors of the population, such as, for example, the denial of basic social rights to an ethnic community or a particular social group.
6. By virtue of the obligation to adopt progressive measures, in principle, states are forbidden to adopt policies, measures, and laws that, without proper justification, worsen the situation of economic, social, and cultural rights that existed at the time of adoption of the Protocol or that exist subsequently in the wake of each “progressive” step forward. To the extent that the State undertakes to improve the situation of these rights, it simultaneously accepts the prohibition to reduce the levels of protection for rights in force or, as applicable, to abolish existing rights without sufficient cause. Therefore, the first instance of evaluation of progressiveness in the implementation of social rights consists of comparing the extent of the entitlement and content of rights and guarantees granted by new regulatory measures with the prior situation of recognition, extent, and scope of rights. As mentioned, the undermining or worsening by the State of those factors without just cause would constitute an unauthorized regression under the Protocol. The principle of non regression is, therefore, one of the parameters by which the measures adopted by states are judged.
7. The system of progress indicators and periodic reporting procedure provided in Article 19 of the Protocol should not only serve the purposes of international monitoring, but also enable states and civil society to evaluate implementation of the Protocol at the domestic level. In this connection, the guidelines set out in this document are intended as a tool to allow states to improve the evaluation of the measures and strategies they implement to ensure rights. The standards include the principle of reciprocation, “since the work entailed in preparing the report benefits the State in return by helping it to draw up a list of its needs and a more precise definition of its wants.”[4] For this to occur, the IACHR considers it important for states to define, by means of open discussions that involve civil society, national strategies to bring about the realization of the rights contained in the Protocol, and for these strategies to include Protocol performance goals. In other words, goals for performance of obligations in a given timeframe. These goals would help to improve the review of reports through the use of progress indicators, making it possible to measure progress not only in a particular situation, but also in a prospective manner, in terms of proximity to the goals set by the State in keeping with the legal obligations that it has adopted.[5]
8. The IACHR considers it essential that states encourage broad civil society participation with rigorous methodological transparency, both in the design and implementation of their national strategies, and in the procedures for preparation of reports under the Protocol and, as appropriate, in follow-up on recommendations from the monitoring body.
9. The Standards do not provide detailed criteria on which the IACHR should base its proposals for a progress indicators model. In that regard, the Standards only mention that the system of progress indicators should make it possible “to determine, with a reasonable degree of objectivity, distances between the actual situation and the standard or desired goal.”[6] To that end, it would be fair to consider “that the Protocol of San Salvador expresses a standard against which to assess, on one hand, constitutional compatibility, legal and institutional development, and governance practices of states; and, on the other hand, realization of the aspirations of different sectors of society expressed, inter alia, through political parties and civil society organizations.”[7] The standards provide that “information with respect to each of the protected rights should take the following into consideration: gender equity; special needs groups (children, the elderly, and persons with disabilities); ethnic and cultural diversity, in particular with respect to indigenous peoples and persons of African descent; and involvement of civil society organizations in any progress in legislative and public policy reform.”
10. The Commission also considers that quantitative indicators should be supplemented with qualitative signs of progress, so as to help put statistical information into context and provide elements of analysis for the monitoring body. Both quantitative indicators and qualitative signs of progress should be designed taking into account the various approaches suggested by the Standards. The system of indicators and signs of progress used should allow a margin of flexibility in addressing particular problems and characteristics when the situation in a given country is under review and, at the same time, make it possible to record changes and perform comparisons over time.
11. Indicators can take different forms -statistical data collected in a census or household surveys; questions put in a questionnaire or an open interview, budgets, public social spending (all disaggregated by sex, race, ethnicity and incorporating gender-specific indicators)- and may be “operationalized,” depending on the information-gathering technique that each state selects, with rigorous methodological transparency and in accordance with international agreements and standards.[8] It should be made clear that, as with all analytical processes, margins of uncertainty are assumed; that is to say, the relationship between the indicators and what they aim to measure -in this case the observance of a social right recognized in the Protocol- will always be assumed and never known for certain, which is why probability estimates are used.[9] The foregoing means that any monitoring body is limited in its ability to measure the situation of rights in a given state on the basis of indicators alone. Hence, indicators cannot be the only tool for verifying compliance with the Protocol.[10]
12. Without question, the possibility of access to reliable and secure information sources will be critical for ensuring the effectiveness of quantitative indicators and qualitative signs of progress. The indicators and measurement units to be used in each case must realistically take into account the type and quality of information available in each state. The foregoing is without prejudice to the duty of states to ensure the production, disclosure, accessibility, exactness and transparency of information of this type as a precondition to guarantee the effectiveness of the Protocol monitoring mechanism, as well as the active participation of civil society in the process.
13. The Commission emphasizes that the reporting system in the inter-American context should function in a manner that complements the reporting procedure of the UN Committee on Economic, Social and Cultural Rights. The process for monitoring implementation of the Protocol of San Salvador should not duplicate the activities of other follow-up mechanisms in effect under the universal system of protection of human rights. That is possible if specific issues in each region and State are correctly selected, enabling the principle of accountability to be realized to the fullest possible extent. For that reason, the indicators proposed will only be indicative and would in no way replace the need for the monitoring bodies created for that purpose to devise in each case a strategy to verify implementation of the Protocol in each state.[11] II. SPECIFICITY OF HUMAN RIGHTS INDICATORS
14. Defining a methodology to measure compliance by states parties with their obligations in the area of economic, social, and cultural rights is, as mentioned, a complex task that warrants particularly careful consideration.
15. While progress indicators have been used in the past in the framework of the inter-American human rights system, are expressly provided for in the Standards, and are the most suitable way to measure the provisions contained in the Protocol, a distinction should be drawn between indicators on rights and indicators on the economic and social context. The purpose of the progress indicators to which the Standards allude is to verify compliance with undertakings adopted in an international treaty on human rights. Accordingly, these rights indicators do not merely collect information on the economic and social situation in a State party but, rather, are designed to verify observance and the effective exercise of such rights.
16. The construction process for human rights indicators uses information on the social and economic situation as points of reference to analyze the progressive obligations of states vis-a-vis social rights. However, the process does not take that information separately but combines it with other data on institutional mechanisms and public policies designed progressively to ensure the effective exercise of those rights, as well as with information on the population’s resources and capabilities to demand those rights with increasing effectiveness. In other words, it seeks to measure the progressive realization of rights and not simply the level of economic and social development of the country, even though that level of development may be a relevant factor in the determination of certain state obligations.[12]
17. Information on structural factors, which determine the possibility of effective access to social rights, is also considered relevant. Thus, for example, rights indicators assign very high importance in each country to constitutional and statutory recognition of rights; available participation, transparency and accountability mechanisms; institutional design of policies, programs, and social services organized by the State to ensure the exercise of rights; problems of accessibility, disclosure, and cultural pertinence of those services, and the operation of systems of justice, among other aspects.
18. It is also important for a system of rights indicators to measure the capability of individuals to demand the rights to which they are entitled. This point is essential because, notwithstanding positive trends in the realization of rights overall, the State is required to ensure the exercise of rights to all persons in its territory and that obligation is not discharged simply because it ensures them for a large proportion or the majority. The information collected should serve to provide a diagnosis of the situation of potential holders of the rights recognized by the Protocol and the likelihood that they can demand successfully. This likelihood does not depend merely on statutory recognition or on the legal position of each individual, but on the availability of a series of resources and capabilities. We could mention, for instance, material and financial resources; intellectual, social and cultural capabilities; language skills, information, and knowledge; access to legal advisory and representation services; and economic resources. Also significant on occasion is membership of social networks and contacts with key stakeholders, such as civil society organizations with the capability to demand rights or mobilize and negotiate with state authorities.
19. Given the uneven distribution of these resources and capabilities in our societies, there will be sectors of the population and that will also be at a disadvantage when it comes to demanding their social rights for want of certain of these resources or capabilities. There may also be cases of individuals who are not members of a group or sector that could be defined as vulnerable for the purposes of demanding their rights, but who are temporarily caught in circumstances that make it difficult to do so, such as, for example, unemployment without social benefits or severance of family or social ties; or the case of stateless persons, victims of internal displacement, refugees, and asylum seekers. A system of indicators or of qualitative signs of progress cannot be expected to provide information sufficiently detailed to examine the situation of individual persons, but it should supply enough data to enable an observer to determine if conditions favor or hamper the ability of a person or a sector of the population in a given country to demand their social rights from the State.
20. The confusion between rights indicators and development indicators usually stems from the fact that the development of countries has been quantified by means of statistical indicators and specific methodologies such as the one used in the Human Development Reports of the United Nations Development Programme (UNDP). In this particular case the aim is to show development as a process, in particular the increase in people’s lifetime opportunities based on the removal of obstacles to the full use of their capacities. The reference to lifetime opportunities covers a gamut of activities that includes consumption of basic goods (food, clothing); cultural activities, human liberties, and the possibility to participate in government. The Human Development Index (HDI) was constructed in order to get around limitations in terms of information on, and comparison of, a large group of countries. The HDI measures three types of basic opportunities: the possibility for a person to enjoy a long and healthy life; the possibility of acquiring knowledge; and the possibility of access to the necessary material resources for a decent standard of living. Although the HDI is organized as a worldwide monitoring index, which is what distinguishes it from other social indicators as a whole, it is based on three indicators: life expectancy at birth, combined gross enrollment ratio in the three levels of education, and, lastly, gross domestic product (GDP) per capita. This methodology is regularly modified to include new dimensions of disparity in the HDI.[13]
21. In 2000, in the framework of the Millennium Declaration,[14] states undertook to accomplish the eight Millennium Development Goals (MDGs) and promoted the creation of a follow-up process through the competent United Nations bodies with the aim of standardizing development measurement indicators and linking them to human rights observance measurements. This process has led to the emergence of agencies at the national level to assess the situation in each state and to the preparation of progress reports, all of which has increased awareness in countries about the use of indicators and the treatment of information sources. In this way, the Millennium Development Goals led states to include in their policy agendas a series of problems to overcome in order to achieve sustainable development by 2015. The Millennium Declaration related development to human rights in practical and concrete terms and underscored the importance of equality as an effective way to achieve sustainable development. It also identified gender equality and strengthening the capacity of women to exercise and claim rights as specific objectives.
22. Specifically with regard to indicators on human rights, the Vienna Declaration and Programme of Action[15] recommended the examination of a system of indicators to measure progress in realization of the rights contained in the International Covenant on Economic, Social and Cultural Rights as an essential component of efforts to enhance enjoyment of those rights. The incorporation of human rights, including economic, social, and cultural rights, in the global set of indicators of the common evaluation system for countries, is an important component of the United Nations Development Assistance Framework (UNDAF).
23. Accordingly, the typology of indicators set out in the “Report on Indicators for Monitoring Compliance with International Human Rights Instruments”, approved by the chairpersons of the human rights treaty bodies of the United Nations system is particularly relevant.[16] This document constitutes the latest effort to reach consensus on an indicator-based rights monitoring methodology,[17] the aim for which is that it be implemented uniformly by all the committees of the universal system for protection of human rights. This consensus takes as a point of reference the classification originally proposed by the UN Special Rapporteur on the right to health, which includes structural indicators, process indicators, and outcome indicators.[18]
24. The guidelines put forward in this document seek to contribute to the development of ways to measure and monitor compliance with the Protocol and to evaluate the progressive realization of social rights as well as conditions that favor or limit the possibility of effective access to rights. The objective and scope of these rights indicators distinguish them from traditional indicators that measure variations in level of development. However, it is important to draw attention to the fact that some of the provisions set out in the Protocol and other international instruments on social rights contain public policy goals and even guide the activities of states by indicating measures to adopt in order to accomplish those goals. In such cases it will be necessary to adopt indicators that are consistent with development indicators. As will be observed below, many development indicators can sometimes provide the underpinnings for constructing rights indicators.
25. The IACHR has considered it important to take as its point of departure the aforementioned rights indicators model prepared in the framework of the United Nations, which has been adapted in accordance with certain aspects specific to the social and political context where the Protocol is applied.
III. A METHODOLOGICAL PROPOSAL FOR THE MONITORING SYSTEM
26. The monitoring process to be implemented through the system of periodic reports provided for in Article 19 of the Protocol of San Salvador is intended to evaluate "the progressive measures [states] have taken to ensure due respect for the rights set forth in the Protocol."
27. Whatever the situation may be as regards realization of social rights, the starting point to be used is the year in which the State concerned ratified the Protocol, in order, thence, to measure progress in implementation of the rights recognized in that instrument.
28. In addition to quantitative indicators, the IACHR considers it important for the evaluation to include a number of qualitative dimensions, which this document refers to as qualitative signs of progress.[19] Strictly speaking, social indicators derive from the application of quantitative or qualitative research methodologies. The differences between the two are not clearly defined since, in most cases, they have to do with divergences of an empirical, not a conceptual, nature. Specifically, quantitative social indicators derive from methods that chiefly collect information in a numeric format or in pre-coded categories, whereas in quantitative research, analysis techniques and procedures are far from standardized; rather, data analysis is intrinsic to the way in which the questions are framed, locations selected, and information harvested.[20] Including these dimensions, which are absolutely critical for monitoring purposes would, despite their lower visibility, contribute to the evaluation process.
29. The IACHR has defined three types of indicators based on the indicators model proposed in the framework of the UN in the aforementioned “Report on Indicators for Monitoring Compliance with International Human Rights Instruments.” These are: i) structural; ii) process-related; and, iii) outcome-related.
30. Structural indicators seek to determine what measures the State would be able to adopt to implement the rights contained in the Protocol. Put another way, they collect information in order to evaluate how the State’s institutional apparatus and legal system are organized to perform the obligations under the Protocol: if it has in place -or has adopted- measures, legal standards, strategies, plans, programs, or policies, or created public agencies to implement those rights. Although structural indicators merely inquire about the existence or not of measures, they can sometimes include information that is relevant for understanding some of their main characteristics, such as, for example, whether or not standards are in operation, or the rank or jurisdiction of a particular government agency or institution.[21]
31. Process indicators seek to measure the quality and extent of state efforts to implement rights by measuring the scope,[22] coverage, and content of strategies, plans, programs, or policies, or other specific activities and interventions designed to accomplish the goals necessary for the realization of a given right. These indicators help to monitor directly the application of public policies in terms of progressive realization of rights. Process indicators can also offer information on shifts in the quality or coverage of social services or programs over a given time. Whereas structural indicators do not normally need a reference base (they usually elicit a yes/no answer), process indicators depend on reference bases or goals that are usually figures or percentages, and, therefore, will have a more dynamic and evolutionary component than structural indicators.[23]
32. Outcome indicators seek to measure the actual impact of government strategies, programs, and interventions. To some extent they are an indication of how those government measures impact on the aspects that determine how effective a right recognized in the Protocol is. Thus, they offer a quantitatively verifiable and comparable measurement of the performance of the State in terms of the progressive realization of rights. An improvement in outcome indicators may be a sign of the adequacy of the measures adopted and of progressive improvements towards full realization of rights. However, to form a definitive opinion in this respect, a review of the specific measures adopted is necessary; a decline in outcome indicators may be due to circumstances not attributable to the actions of the State, while an improvement may be caused by fortuitous factors. Accordingly, particular attention should be given to process indicators.
33.
Since time consolidates the effects of
various underlying processes (which can be measured by one or more
process indicators), outcome indicators are usually slow indicators
and less sensitive to momentary changes than process indicators.[24] 34. In order to improve the possibility of analysis and better organize information collected in the process, it is suggested that it be divided into three categories:[25] i) incorporation of the right; ii) state capabilities; and, iii) financial context and budgetary commitment.
35. The first category is the incorporation of the right in the legal system, in the institutional apparatus, and in public policy. The idea is to collect relevant information on how the right recognized in the Protocol is incorporated in the domestic law books and in public policy and practice. On one hand, the aim is identify the level of the provisions that recognize it, as well as their effectiveness and statutory rank. Thus, the right may be recognized in the Constitution, in laws, in jurisprudence or in government programs or practices. The idea, too, is to collect information on the scope of that recognition; that is, the degree of precision with which the basic obligations of the State or minimum enforceable standards are defined. Also requested is an indication as to the persons who are individually or collectively possessed of that right; the conditions for its exercise, for example, if it is considered an effective right and can be demanded directly from the government authorities and, as appropriate, enforced by the courts, or if it is not directly enforceable. Finally, what guarantees or appeal procedures are available in the event of a violation of the respective obligations?
36. Another aspect that is important to explore is what social services or policies has the State established for implementation or realization of the rights contained in Protocol? Sometimes programs or services create benefits of a welfare nature and do not recognize the existence of rights. Therefore, the extent to which a right is a part of the logic and meaning of public policy is an aspect usually measured through process indicators.
37. An example of a structural indicator of the incorporation of a right is, if the right has been included in the Constitution, is it effective or not? A process indicator on the incorporation of a right is if relevant jurisprudence exist on its enforceability; or the scope and coverage of public policies enacted as implementation measures for that right.
38. The second category has to do with state capabilities. This category describes a technical-instrumental and distributive aspect of government resources within the State apparatus. That is, it entails a review of how and according to what parameters government (and its various branches and departments) deals with different socially problematized issues; in particular, how it establishes its goals and development strategies; and under what parameters the implementation of the rights contained in the Protocol is inscribed therein. It entails reviewing the rules of play within the state apparatus, interagency relations, task allocation, financial capacity, and the skills of the human resources that must carry out the allotted tasks.[26] To provide an example, a structural indicator of state capacity is the existence of specific government agencies for the protection or implementation of a social right. A structural indicator may also be used to examine competencies and functions. A process indicator on state capacity endeavors to determine the scope and coverage of the programs and services implemented by those agencies. A process indicator on state capacity could also measure changes in the quality and scope of those interventions over a period of time.
39. The purpose of including state capabilities as a category in the indicators is to collect information on core aspects that serve to evaluate the extent to which the political will of the State is materialized. Their inclusion also serves to verify if the conditions are in place for effectively implementing, through public policy, a rights-based approach in the framework of the existing state structure. The aim of including this category is also to have a more accurate idea of the problems that the State faces for fulfilling its obligations, by making it possible in the evaluation to identify problems to do with policy decision-making as distinct from public administration problems.
40. An important aspect for measuring state capabilities is the existence of oversight, monitoring, and evaluation agencies for social services and programs within the State structure, as well as the capacity of the State to implement policies to combat corruption and patronage in the use of funds allocated to the social sector. The idea is also to collect information on the accessibility of social programs and services organized by the State by examining, for example, physical access, disclosure, and cultural pertinence.[27]
41. Another aspect that the proposed indicators on state capabilities are designed to capture has to do with fragmentation in the different levels of the government administration and in different social services. The provision of goods and services connected with social rights overall is administered by different levels of government. Decentralization of social services and policies can allow a greater measure of flexibility and adaptation to regional realities and local needs. That said, it can also entail numerous coordination problems. The problem stems, therefore, from a lack of clarity in the definition and distribution of areas of responsibility among different government agencies and, on occasion, among different governments at the national, regional, provincial, and local level.[28] Added to the foregoing is the customary fragmentation in social services themselves due to deficient coordination and lack of communication among agencies as well as the absence of comprehensive policies and adequate record-keeping.
42. In a similar vein, another category to include in the measurement and evaluation process is the basic financial context, which has to do with the actual amount of state funds available for public social spending and how it is distributed, whether it be measured in the usual manner (as a percentage of gross domestic product for each social sector) or by means of an alternative mechanism. In that connection, included in the same category is budgetary commitment, which makes it possible to assess the importance that the State accords to the right in question. This information also complements the measurement of state capabilities. The importance of measuring this category stems from the fact that if a state institutes a public spending policy that entails a cutback in the area of social infrastructure (for instance, health care and sanitation), apart from acting as a regressive measure, it will have the effect of transferring the costs of care directly to families, and within the family to women.
43. However many categories are included and no matter how many conceptual aspects their analysis might seek to uncover, it will never be possible to encompass all of the issues that shape the effectiveness of a right. Therefore, it is advisable to limit the number of categories to those that are most relevant to the right under consideration and that match the compliance goals set. For that reason, it is advisable to review the availability of information for measurement. This is not a minor consideration given the difficulties in the region as regards access to reliable information sources.
44. In conclusion, the information requested from the State on each right set forth in the Protocol would be organized under a model composed of quantitative indicators and qualitative signs of progress arranged according to three types of indicators (structural, process, and outcome indicators), which would provide information on three conceptual categories (incorporation of the right, state capabilities, and financial context and budgetary commitment).
IV. INDICATORS ON CROSSCUTTING ISSUES: EQUALITY, ACCESS TO JUSTICE, ACCESS TO INFORMATION AND PARTICIPATION
45. The Standards provide that information with respect to each of the protected rights should take the following into consideration: gender equity; special needs groups (children, the elderly, and persons with disabilities); ethnic and cultural diversity, in particular with respect to indigenous peoples and persons of African descent; and involvement of civil society organizations in any progress in legislative and public policy reform.
46. The Commission believes that one way to incorporate this mandate in its indicators proposal could be to formulate quantitative indicators and qualitative signs of progress on crosscutting issues present in all of the rights contained in the Protocol, with a view to measuring aspects that have to do with the conditions that determine the actual possibility of exercising social rights in each State through the free interplay of institutions and democratic and deliberative processes; in other words, those aspects connected with the institutional and social guarantees of those rights and with the capabilities and resources that the population has at its disposal to demand and exercise them. To that end, the IACHR believes it appropriate to draw attention to a number of mechanisms and policies that the State should have in place to ensure protection and adequate access to information, participation, transparency, and accountability. It is also important to mention the resources and capabilities that the public, in particular social sectors that face disadvantage or inequality, should have at their disposal in order to have a say in public policy decisions; demand government compliance with obligations, monitor that compliance, and have recourse to liability systems in the event of non-fulfillment of those obligations.
47. For that purpose, the IACHR suggests inclusion in the evaluation process of certain indicators and signs of progress on three crosscutting issues: i) equality; ii) access to justice; iii) access to information and participation.
A. Equality
48. The first obligation "with immediate effect" arising from the progressive development of economic, social, and cultural rights consists of ensuring that those rights shall be exercised in conditions of equality and without discrimination, which entails prevention of different treatment based on factors expressly prohibited in the Protocol.[29] The foregoing requires that states recognize and ensure the rights contained in the Protocol equally to the entire population, basing difference in treatment on reasonable and the objective criteria, and preventing arbitrary discrepancies in treatment, in particular on the basis of expressly prohibited factors, such as race, religion, or social origin. However, it also requires that states recognize that there are groups that face disadvantages in the exercise of social rights, and that they should adopt affirmative action measures and policies to ensure their rights.
49. The system indicators should be useful for gathering information on the situation of social sectors that contend with serious problems of structural inequality and inequity, as well as for verifying the effectiveness of government policies instituted to ensure access to social rights for these sectors. The system should also provide information with which to identify the social and institutional resources available in each State for individuals to remedy specific discrimination problems in the exercise of social rights.
50. Accordingly, it is essential to monitor each state’s progress in the effective observance and provision of social rights to all persons, and in particular the measures that they have adopted for the recognition and extension of those rights to persons who belong to groups that are traditionally discriminated against.
51. For example, the historic discrimination against the indigenous peoples of the Americas is based on ideological constructions of domination that assume inequalities between groups to be "natural" as opposed to the consequence of a particular social structure.[30] Because of their characteristics indigenous peoples are among the groups that have historically suffered discrimination, set apart by a supposed inferiority that has helped to deepen inequality and discrimination over time.[31]
52. Ethnic/racial discrimination cannot be understood in isolation from the structural and historic factors from which it arose. Thus, the colonial domination and slavery to which indigenous peoples and Afro-descendants were subjected form a backdrop that helps to understand the latter-day processes of economic, political, and social exclusion in a historical perspective.[32]
53. Accordingly, the starting point should be the situation of structural inequality that encompasses vast social groups in the Americas, such as those mentioned in the Standards (women, indigenous peoples, Afro-American peoples, illegal immigrants), and to consider in each state which groups and sectors endure situations of severe inequality that condition or limit the possibility to enjoy their social rights.
54. The concept of material equality provides a tool with enormous potential for examining not only standards that recognize rights, but also public policies that can serve to ensure them or, on occasion, potentially impair them. Thus, the United Nations Committee on Economic, Social and Cultural Rights has established that the State as an obligation to groups that are vulnerable or whose economic, social and cultural rights are susceptible to violation, which is to enact laws that protect them from that discrimination and to adopt special measures, including active policies of protection, not merely compensation.[33] Accordingly, the IACHR suggests the enactment of egalitarian policies that take into account the specific needs of the most disadvantaged groups.
55. For the rest, the Commission considers it appropriate that states ascertain which groups require priority or special assistance in the exercise of social rights at a particular historical moment, and that they adopt concrete protection measures for those groups or sectors in their plans of action. Such was the conclusion reached, for example, by the UN Committee on Economic, Social and Cultural Rights with respect to several rights, in particular the right to housing[34] and public health.[35] Accordingly, in addition to identifying these sectors that have traditionally suffered discrimination in access to certain rights, the State, before formulating its social plans and policies, should determine which sectors need priority assistance (for example, the inhabitants of a particular area of the country, or persons in a specific age group) and, in implementing its social policies and services, establish special or differential measures to uphold and ensure the rights of those sectors.
56. To date, the area in which the greatest number of affirmative action measures and active policies for protection and promotion of equality have been adopted is gender discrimination. Although significant strides have been made throughout the region, especially in terms of formal recognition of equality between men and women, there is still a need for states to implement a variety of new measures to promote equality, particularly where social rights are concerned.
57. The concepts of independence and empowerment are critical to the foregoing and should certainly be a part of the agenda for curbing gender and social inequalities. Independence, is a core requirement for attaining equality between men and women. Accordingly, it is a crosscutting concept in all matters concerning the realization of economic, social, and cultural rights.[36]
58. The obligation of the State to take positive steps to safeguard the exercise of social rights raises important implications to do, for example, with the type of statistical information that it should produce. From this perspective, the generation of information suitably disaggregated to identify these disadvantaged sectors or groups deprived of the enjoyment of rights is not only a means to ensure the effectiveness of a public policy, but a core obligation that the State must perform in order to fulfill its duty to provide special and priority assistance to these sectors. For example, the disaggregation of data by sex, race or ethnicity is an essential tool for highlighting problems of inequality.[37]
59. The production of information on gender inequalities has been widely promoted and increased significantly, overcoming the lack of disaggregated data. Countries have adopted the use of gender indicators in their statistics systems, which serve to measure changes and trends in gender relations, with the result that these indicators are calculated for both men and women. In turn, the situation of women in each country may be measured against that of men in the same country or that of other women in different ethnic or social groups, and an attempt made to determine what the value of the indicator would be in a situation considered socially equal, so that, on obtaining this value, one can determine how close or how far the actual situation is to this standard.[38]
60. In other fields, the severe difficulties that the available statistics sources have in capturing in their records the enormous ethnic and cultural diversity that exists in each of the countries in the region remain a matter of concern.[39]
61. According to ECLAC, the information predicament is something that affects the majority of groups defined as victims of racism and discrimination. The question as to the number, size, and characteristics of indigenous and Afro-descendant populations in the region is an old problem that has still not been solved altogether. It has been recognized that one of the main problems in the analysis of racism, discrimination, and xenophobia in the Americas is the absence or insufficiency of data with which to build clear indicators. The way in which States and governments have managed these figures has very often had to do with a denial of racism, discrimination, and xenophobia. Nevertheless, in recent years the majority of countries in the region have included in their censuses and household surveys questions about identity, origin, or language, which represents a giant stride compared with previous decades.[40]
62. Clearly there are no adequate indicators to measure the diversity and specificity of indigenous peoples or that take into consideration the particular context in which they live. Accordingly, what is needed is a conceptual framework of indicators based on indigenous rights that particularly takes into account their cultural identity, the special relationship that indigenous peoples have with their indigenous territories, and the autonomy of and participation in decisions that affect them.
63. No less important is the need to include indicators on inclusion and exclusion to highlight situations of structural poverty or patterns of intolerance and stigmatization of social sectors, among other elements for evaluating contexts of inequity. These contexts should be cross-referenced with information on access to productive resources or to the labor market and indicators on distribution of public, budgetary and extra-budgetary resources.
64. The principle of equality and nondiscrimination can also have consequences in terms of the criteria by which budgets and social spending should be distributed in a country. Discrimination in access to rights may originate, for example, from severe disparities in neglected geographic zones. Indicators should also serve to identify not only social sectors and groups that suffer discrimination, but also disadvantaged geographic zones. The causes of regional differences of this type may lie in a variety of factors, such as distribution of services infrastructure, unemployment, social and environmental problems, climatic conditions, distance from the more developed areas, and public transport problems.[41] Also, as mentioned, administrative decentralization processes implemented without adequate (economic and human) resources, policy guidelines, and good linkage between different levels of government, can lead to inequity in access to public services of comparable quality for the inhabitants of different geographic regions.
65. The table below contains examples of how quantitative indicators can be triangulated with qualitative signs of progress in the area of respect for equality and nondiscrimination in the enjoyment of social rights.[42]
Equality and nondiscrimination
B. Access to justice
66. The second crosscutting issue for progress indicators concerns access to justice to demand the social rights set forth in the Protocol. In this document we adopt a broad concept of access to justice, which includes a review of the legal and actual possibilities of access to appeal and protection mechanisms in administrative and judicial proceedings.[43]
67. As the Committee on Economic, Social and Cultural Rights has found, significant dimensions of social rights are a immediately enforceable before the domestic courts. Accordingly, the Committee has held that the adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent. It would also drastically curtail the capacity of the courts to protect the rights of the most vulnerable and disadvantaged groups in society.[44] In order to implement a monitoring system on the guarantees of access to justice in social rights, the Council of Europe has proposed a number of questions and indicators that could be illustrative in the task of developing the inter-American framework[45] that the Commission has considered in the course of designing the indicators.
68. Human rights law has developed standards on the right to suitable and effective remedies, whether of a judicial or other nature, to repair violations of fundamental rights. In that regard, states have not only a negative obligation -not to prevent access to those remedies- but also, fundamentally, a positive obligation to organize their institutional apparatus so that everyone can access those remedies. To that end, states are required to remove any regulatory, social, or economic obstacles that might prevent or limit the possibility of access to justice. In recent years, the inter-American system of human rights has recognized the need to begin to outline principles and standards on the scope of rights to judicial guarantees and effective judicial protection in cases concerning violation of economic, social, and cultural rights.
69. Further to the foregoing, this report covers the standards of the inter-American system on four issues: i) The obligation to remove economic obstacles to ensure access to the courts; ii) the components of due process of law in administrative proceedings concerning social rights; iii) the components of due process of law in judicial proceedings concerning social rights; and, iv) the components of the right to effective judicial protection of individual and collective social rights.[46]
70. These standards can help to improve the institutional framework of social services and policies in the Americas by strengthening oversight systems, transparency, and accountability, as well as participation mechanisms and societal surveillance of public policy in this area.
71. The indicators on access to justice prepared in this document are essentially based on the standards of the inter-American system of human rights and are designed to collect quantitative and qualitative information from states on the main issues covered in the above-mentioned review.
72. The first question considered is the possibility of access to legal remedies for protection of social rights, as well as public policies instituted to remove any financial, physical, and cultural obstacles that block access to the courts and available remedies. While this is an enormous and complex issue, we have centered on a number of relevant points that enable us to visualize extreme scenarios of lack of access to justice.
73. The second question concerns the available guarantees and remedies in administrative proceedings to decide the social rights of persons. In this respect, while we basically consider certain standards of the inter-American system on the application of rules of due process in these proceedings, we also endeavor to examine aspects relating to the institutional design of social services and programs, in particular the existence of clear and objective criteria for granting welfare benefits and services that can help to limit the scope of discretion and arbitrariness of government authorities. The questions of access to social programs and services and the existence of adequate monitoring systems for those programs and services are matters to be considered under the issue of state capability in conjunction with the indicators for each right. On this point, we include as indicators of access to justice, information on appeal or remedy mechanisms against the denial of rights by administrations. Even when a person is denied benefits considered discretionary in a state, they should be afforded suitable due process mechanisms.[47]
74. The third aspect examined is that of procedural guarantees in judicial proceedings concerning social rights; for example, in the area of labor or social security. Here we follow the principal standards set by the inter-American system, not only with respect to procedure, but also as regards the possibility of enforcing judicial decisions or judgments. We considered general indicators on judicial guarantees for all rights, while allowing the possibility to include certain specific judicial guarantees connected with a number of the rights recognized in the Protocol. For example, the right to housing includes a prohibition against forced eviction without due process, so that it would be important to consider specific indicators for this matter.
75. The fourth aspect is access to judicial remedies for effective protection of the social rights contained in the Protocol. Taking the standards of the inter-American system as its starting point, the system of indicators aims to collect information on measures that could be used in urgent situations and function as simple and prompt remedies to repair violations in such special circumstances. It also aims to gather information on precautionary or preventive measures that could be adopted, for example, to avert the mass eviction of an indigenous community, ensure access to urgent medical treatment, or prevent the dismissal of a union representative. The intention is also to examine the number of relevant procedural aspects to determine the suitability and effectiveness of judicial remedies available for protection of social rights, such as factors that prevent or provide legal standing to groups or collective persons, or nongovernmental organizations, as well as procedures, judicial reforms, and public policies that favor public interest litigation.
76. In addition to preparing a general collection of access to justice indicators for social rights, specific indicators should also be included for dealing with particular rights contained in the Protocol. [1] Resolution AG/RES. 2074 (XXXV-O/05) of June 7, 2005. Annex, Context of the Proposal. [2] It should be noted that in recent years, efforts as regards definition of social indicators and quantitative signs of progress have centered on moving beyond indices and averages, and sought, rather, to incorporate a human-rights perspective in conjunction with the Millennium Development Goals (MDG) and, thereby, make it possible to examine the situation of specific social groups and use measurement and monitoring tools better suited to different national realities. In this regard, see Simone Cecchini (2007) Indicadores ODM y derechos humanos en América Latina: ¿Tan lejos, tan cerca? [MDG indicators and human rights: So near and yet so far?], ECLAC, Santiago, Chile. Available at http://www.eclac.cl/dds/noticias/paginas/6/28106/IndODMDDDHH.pdf. [3] States may implement a policy that efficiently accomplishes its objectives but is discriminatory and, therefore, incompatible with the Protocol. They may also implement a policy that meets their minimum obligations under the Protocol, which will be sufficient for international supervisors even though a particular observer might say that other policies would be more advisable or produce better results than those achieved. See in this connection note 18. [4] Ibid., Annex, Context of the Proposal. [5] All evaluations must be based on empirical evidence and distinguish between: goals, which are the desired ends and expressed in qualitative terms (“reduce mortality in the under fives”); targets, which are the quantitative levels we seek to attain over a specific time (“reduce mortality in under fives by two thirds between 1990 and 2015”), and, lastly, indicators, which are variables used in targets to measure progress toward goals (“mortality rate in under-fives”) (Cecchini, 2007 op. cit). Signs of progress are also specifically included and represent quantitative dimensions that reflect the progression in changes toward the ideal desired outcome (goal). If the goal has been set taking into account real possibilities, signs of progress could be better interpreted in terms of sequential deadlines or periods of time: short-, medium-, and long-term, although this is not at an exclusive requirement. Indeed, it is precisely the purpose of signs of progress to monitor accomplishments that help to achieve the desired goal. Sarah Earl, Fred Carden, Terry Smutylo (2002) Outcome Mapping: Building Learning and Reflection into Development Programs, CIID_IDRC, Ottawa, Canada. [6] Ibid., Standard 5.2. [7] Ibid., Standard 5.2. [8] The operationalization process should draw a distinction between two fundamental notions: conceptualization and measurement. Conceptualization is the theoretical process whereby the content and standards of social rights are clarified in terms of both positive and negative obligations. This clarification should be made so that the definition of the right encompasses the meaning usually assigned to it. Hence the importance that each indicator be referenced in terms of the provisions contained in the Protocol of San Salvador. In second place, measurement concerns the overall process of linking concepts to empirical indicators. It entails theoretical and empirical considerations. From a theoretical standpoint, what is of interest is the concept; from an empirical perspective, the central aspect of the process is the observable response. [9] A clear example of the incongruity that can exist between indicators and concept to be measured arises in monitoring observance of the right to health. Generally speaking, from a public health perspective the approach employed focuses on a population or collective analysis of “public health problems,” in which the problems considered as such are those of the greatest magnitude or seriousness. In turn, from a human rights point of view, the object to be measured is the level of observance or violation of the right to health and, on that premise, the aim is to establish patterns of behavior in the State based on individual cases. In this way, the pressures on the health authorities to modify certain administrative conduct occur from a public health perspective, on the basis of data and an analysis of behavior with respect to the health of population groups; accordingly, the effects on individuals are usually lost if, for the purposes of the majority, the behavior is beneficial. As regards human rights, it is enough that the rights of individuals are violated to demand that the State amend its behavior. The challenge that this methodology faces is to combine the two approaches, by attempting to triangulate indicators with signs of progress in monitoring continuum to verify compliance by the State with its obligations. In this connection, see Consorcio de Investigación Económica y Social (2004) Vínculo entre la Salud Pública y los Derechos Humanos. Lima, Peru. [10] Hunt says that there is no alternative to indicators, but their role should not be overstated, noting that “no matter how sophisticated they might be, indicators will never give a complete picture of the enjoyment of the right to health in a specific jurisdiction,” Commission on Human Rights, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, Doc E/CN. 4/2006/48 of 3 March 2006, paragraphs. 29-33. [11] As mentioned in the contribution made by ECLAC to this document, “it is essential to move beyond averages and adopt a human-rights perspective” because human rights cannot be fully measured by statistics alone. For that it is essential to have social indicators disaggregated, inter alia, by sex, race, ethnicity, area of residence, social class, employment category, and gender, in order to highlight inequality, among other phenomena. Moreover, human rights indicators give particular attention to the policies and practices of legal and administrative entities as well as to the conduct of officials, which, when combined with structural indicators on fulfillment of the Millennium Development Goals, provide a general overview of development policy and the progressive realization of economic social and cultural rights. [12] For example, to measure the use of the maximum available resources. Furthermore, some provisions in the Protocol and in the International Covenant on Economic Social and Cultural Rights directly establish a number of public policy objectives and development goals, such as the accomplishment of full employment, eradication of infectious and endemic diseases, and elimination of malnutrition. [13] Recent years have seen the appearance of the Gender-Related Development Index (GDI), the Gender Empowerment Measure (GEM), and the Human Poverty Index (HPI). In the ranking for achievement in each index, a country’s performance may rise from one year to the next. However, that would not necessarily mean that it adopted better measures since the performance of the countries ahead of it may have declined. Furthermore, each year the reports draws attention to achievements in a particular area of human development. In 2000 the theme of the report was the interrelationship between human rights and human development. The differences between the two have to do with the fact that human development indicators measure the expansion of the capacities of persons and human rights indicators evaluate if people live with dignity and liberty, as well as the degree to which key stakeholders have met their obligations to create and maintain fair social mechanisms to ensure the foregoing. Second, human development indicators basically center on outcomes and draw attention to unacceptable disparities and suffering, while human rights indicators also center on outcomes but give particular attention to policies and practices of legal and administrative entities as well as the conduct of public servants. For more information about social indicators, see S. Cecchini (2005), Indicadores sociales en América Latina [Social indicators in Latin America], Serie estudios estadísticos y prospectivos 34, ECLAC: http://www.eclac.cl/publicaciones/xml/0/23000/lcl2383e.pdf ; S. Cecchini (2005), Propuesta para un compendio latinoamericano de indicadores sociales [Proposal for a Latin American compendium of social indicators] Serie estudios estadísticos y prospectivos 41, ECLAC: http://www.eclac.cl/deype/publicaciones/xml/0/27910/LCL2471e.pdf ; and J.C. Feres y C. Vergara (2007), Hacia un sistema de indicadores de cohesión social en América Latina [Toward a system of indicators of social cohesion in Latin America]; in Sojo y Uthoff (eds), Cohesión social en América Latina: una revisión perentoria de alguna de sus dimensiones [Social cohesion in Latin America: An urgent review of some of its dimensions]: http://www.eclac.cl/publicaciones/xml/8/28198/CohesionSocial_ALC.pdf. [14] United Nations Millennium Declaration, adopted by the General Assembly of the United Nations, resolution 55/2 of 8 September 2000. [15] Adopted by the World Conference on Human Rights, June 25, 1993, Vienna. [16] UN Doc. HRI/MC/2006/7 of 11 May 2006. [17] It should be mentioned that the debate on how to measure realization of social rights continues, as can be seen from recent fora on the issue. See, for example, the papers presented at the Conference on “Economic Rights: Conceptual, Measurement and Policy Issues,” organized by the Human Rights Institute of the University of Connecticut from October 27 to 29, 2005, in particular, David L. Cingranelli and David L. Richards, Measuring Economic and Social Human Rights: Government effort and Achievement and Clair Apodaca, Measuring the Progressive Realization of Economic, Social and Cultural Rights. See also, Areli Sandoval, “Progresividad y creación de indicadores para medir el cumplimiento de los ESCR en México. Indicadores de desarrollo e indicadores de Derechos Humanos,” in Memorias del Seminario Internacional sobre Derechos Económicos, Sociales y Culturales, Mexico, Cooperation Programme on Human Rights, Mexico-European Commission, 2005. [18] The Commission on Human Rights, Interim Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Prof. Paul Hunt, submitted in accordance with resolution 2003/45 A/58/427, paragraphs 6-35. [19] Despite taking into consideration the concept developed by Earl, Carden and Smutylo (2002) op. cit., the scope of signs of progress as an analysis variable has been redefined. In first place, qualitative dimensions are included in the proposed model for reasons of description and interpretation. Unlike a quantitative indicator, qualitative signs of progress are distinct because they do not originate from a predetermined category or from a given (statistical) measurement scale, but encapsulate the social actor’s definition of the situation and the meaning that they ascribe to the phenomenon under evaluation, which is crucial for interpreting the facts. [20] Cechini (2005, op. cit., pp. 13-14), notes that when an indicator seeks to express the perception that the groups and individuals that make up a society have of an objective condition (for instance, the satisfaction level of a community with its hospitals), the information it yields is perceptive in nature. Cecchini (op. cit.) says that there is no reason to assume that indicators of facts and perceptions that deal with the same phenomenon will necessarily shift in the same direction or to the same extent. This is because preferences, attitudes, and standards may change or be at odds, regardless of the objective condition of a phenomenon. For example, the satisfaction level with hospitals may decline as a community becomes more demanding, irrespective of the increased qualifications of the health professional responsible. Finally, however objective they may be, indicators are always approximations of reality and, therefore, not neutral, either ideologically or in terms of gender. [21] UN Doc. HRI/MC/2006/7 of May 11 2006, paragraph 17; Commission on Human Rights, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Mr. Paul Hunt, Doc. E/CN.4/2006/48 of 3 March 2006, paragraph 54. [22] UN Doc. HRI/MC/2006/7 of 11 May 2006. [23] In some tables of indicators and signs, in order to simplify the table, a structural indicator has been combined with a process indicator. For example, inquiries are made about the existence of a program (structural indicator) and its coverage and scope (process indicator). [24] The UN Special Rapporteur on the Right to Health points out that outcome indicators measure the impact of programmes, activities and interventions on health status and related issues. To illustrate, he mentions that outcome indicators include maternal mortality, child mortality, HIV prevalence rates, and the percentage of women who know about contraceptive methods. He also mentions that “plausible links may be established between a structural indicator (Is there a strategy and plan of action to reduce maternal deaths?), a process indicator (the proportion of births attended by skilled health personnel), and an outcome indicator (maternal mortality). However, outcome indicators often reflect many complex interrelated factors. It will often be difficult to establish firm causal links between structural, process and outcome indicators – that is, between a policy, an intervention, and a health status outcome. As the Special Rapporteur has emphasized elsewhere, it is misguided to expect too much from indicators. For example, a structural indicator is: does the State constitutionalize the right to health? If the answer is “yes”, this is a useful piece of information. But if a constitutionalized right to health neither generates any successful litigation nor is taken into account in national policy-making, this particular constitutional provision is of very restricted value. With this in mind, the Special Rapporteur suggests that the answer to any indicator may be supplemented by a brief note or remark (a “narrative”). For example, in the above example the answer might be: “Yes - but the right has yet to be integrated into health policy-making.” Of course, a brief note of this sort does not dispel the manifold limitations of indicators. Nonetheless, it can help to provide a fuller picture of the right to health in the relevant State than a bare yes/no or numerical answer.” See UN. Doc. E/CN.4/2006/48 of 3 March 2006, paragraphs 59-60. [25] The categories are the levels where it is possible to classify the units of analysis, which are generally derived from the frame of reference and an in-depth situation review. Hernández Sampieri, R.; Fernández Collado, C. and Baptista Lucio, P. (1998) Metodología de la investigación. México, McGraw-Hill ed. [26] The main aspects of the concept of state capabilities are drawn from Burijovich, Jacinta and Pautassi, Laura (2006) “Capacidades institucionales para una mayor equidad en el empleo,” in María Nieves Rico and Flavia Marco (coordinators) Mujer y Empleo. La reforma de la salud y la salud de la reforma en Argentina. Buenos Aires, Siglo XXI editores and ECLAC, pp. 301-338 and from Repetto, Fabián (2003), “Capacidad estatal: requisito necesario para una mejor política social en América Latina”, Eighth International Congress of CLAD on State and Civil Service Reform, Panama City, October 28 to 31, 2003. [27] When there is a mismatch between a service and the cultural outlook of users, it tends to act as an obstacle to access. In Guatemala, the Maya population’s concept of health and disease is different from that of the non-indigenous population. In this regard, see UNDP (2005), “Ethnic and Cultural Diversity: Citizenship in a Plural State” and ECLAC (2006a) Panorama Social de América Latina [Social Panorama of Latin America], Santiago, Chile, UN December 2006, Ch. III. [28] The study on access to social rights adopted by the European Committee for Social Cohesion identifies a number of the main “fragmentation” problems connected with health and other social rights: i) lack of coordination among different political spheres; ii) insufficient information about responsibilities and functions at the national, regional, and local levels (This is the case with social and welfare services and can also occur in the areas of health, employment, and housing services.); iii) insufficient independence permitted to local administrations in the use of resources, as well as insufficient participation in decision-making, implementation, and resource-mobilization processes; iv) monitoring and implementation of policies at the national level inadequate to ensure equitable nationwide provision. See, European Committee for Social Cohesion, “Access to Social Rights in Europe”, Strasburg, May 2002. [29] Article 2.2, ICESCR, General Comment No. 3, paragraph 1 and Art. 3, Protocol of San Salvador (“The State Parties to this Protocol undertake to guarantee the exercise of the rights set forth herein without discrimination of any kind for reasons related to race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition.” In this connection, the UN Committee on ESCR, in General Comment No. 13 “The right to education”, has expressed a generally recognized principle that should be regarded as encompassing all economic, social and cultural rights: “The prohibition against discrimination […] is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination” (GC No. 13, paragraph 31). [30] As initially conceived, racism was based on biological inferiority and difference; nowadays, that interiorization is based for the most part on cultural traits. This means that today, racists propose that there are some ethnic groups that are "backward" and, therefore, constitute an obstacle for development, in contrast to other groups, whose characteristic values and accomplishments represent the modernity to be attained. Again, the foregoing supposes the naturalization of those differences in a manner that may appear contradictory. The way that people normally become accustomed to thinking about racism is as the basis of discrimination, of differentiated conduct, depending on the origin of the person one is dealing with. In this connection, see: UNDP (2005) National Human Development Report. Ethnic and Cultural Diversity: Citizenship in a Plural State, UNDP, Guatemala, 2005, p. 14 [31] Martín Hopenhayn, Álvaro Bello, and Francisca Miranda (2006) Los pueblos indígenas y afrodescendientes ante el nuevo milenio [Indigenous Peoples and Afro-Descendents in the New Millennium]. Políticas Sociales series N° 118, ECLAC, Santiago, Chile, p. 18. [32] The earliest form of ethnic and racial exclusion and segregation is found in the system of conquest and colonization. The dominion of territories, appropriation of the natural wealth of the region, political and cultural hegemony, submission or evangelization, and the mass pressing of the workforce into agricultural and mining labors were the links in the chain of submission and discrimination of indigenous groups and Afro-descendant populations through so-called “indentured service” or “encomienda,” as well as slavery or forced labor. In this respect, see Hopenhayn, Álvaro Bello and Francisca Miranda (2006), op. cit., p. 20. [33] A number of instruments call for the adoption of special measures, including legislative measures, and active policies aimed at protecting the economic, social and cultural rights of vulnerable groups. The obligation to protect the most vulnerable and least protected groups during periods of adjustment appears in General Comment (GC) No. 2, paragraph 9 and General Comment No. 3, paragraphs 12 and 13; the obligation to protect persons with disabilities and the elderly appears in GC No. 5, paragraph 9, and GC No. 6, paragraph 17, respectively. GC No. 4, paragraph 8 (e) provides that adequate housing must be accessible to those entitled to it. Thus, such disadvantaged groups as the elderly, children, the physically disabled, the terminally ill, HIV-positive individuals, persons with persistent medical problems, the mentally ill, victims of natural disasters, people living in disaster-prone areas and other groups should be assured some degree of priority consideration in the housing sphere, including access to land for landless or impoverished segments of society. In GC No. 7, paragraph 10, the Committee observes that women, children, youth, older persons, indigenous people, ethnic and other minorities and other vulnerable individuals and groups all suffer disproportionately from the practice of forced eviction, imposing an additional obligation upon governments to ensure that appropriate measures are taken to ensure that no form of discrimination is involved. In GC No. 5, paragraph 18, the Committee writes that because appropriate measures need to be taken to undo existing discrimination and to establish equitable opportunities for persons with disabilities, such actions should not be considered discriminatory in the sense of Article 2(2) of the International Covenant, as long as they are based on the principle of equality and are employed only to the extent necessary to achieve that objective. Special measures to protect vulnerable groups or individuals are referenced in the Limburg Principles (principles 14 and 39). [34] GC No. 4, paragraph 13. [35] GC No. 14, paragraphs 43(f) and 53. [36] For example, an analysis of gender inequalities reveals that lack of economic independence increases the vulnerability of women to being forced to remain in poorly paid employment in the labor market, especially if they live in situations of poverty; in turn, freedom of choice about one’s body requires the acknowledgement of men’s and women’s reproductive and sexual rights; that recognition generates conditions conducive to the reduction of maternal mortality and desired fertility rates, which are goals connected with poverty reduction, improvement of maternal health care, and reduction of child mortality risks. In that connection, in the region, the Women and Development Unit of the Economic Commission for Latin America and the Caribbean (ECLAC) keeps a system of gender indicators (both general and pertaining to the Millennium Development Goals) that is an important source of up-to-date information available for countries in the region to consult. See www.cepal.org/mujer/indicators. See, also, Guía de Asistencia técnica para la producción y el uso de indicators de género, Women and Development Unit, ECLAC, August 2006, with support from UNIFEM and UNFPA, which is an important tool for states to use. [37] In the words of the UN Special Rapporteur on the Right to Health, “[d]isaggregated indicators can reveal whether or not some disadvantaged individuals and communities are suffering from de facto discrimination.” Hunt (2006) op. cit. See, also the recent report of the IACHR (2007) Access to Justice for Women Victims of Violence in the Americas. Washington, D. C., OAS, Inter-American Commission on Human Rights. [38] ECLAC (2006) op. cit. It is worth emphasizing that a good indicator starts with a clear and precise question and takes into consideration the fact that factors based on gender differences affect women and men differently. [39] In the specific case of Guatemala as a result of long-standing discrimination in which dichotomies are used to categorize persons belonging to indigenous communities (as indian/ladino), the situation overlooks large groups that do not identify with these limited categories. Accordingly, ethnic self-labeling continues to be restricted to the “indigenous/nonindigenous” categories To further complicate matters the data are then usually interpreted as applying to the “indigenous/ladino” categories or, as occurs with increasing frequency, people do not identify with any of these categories. For example, there are people who, following the political construction of a “maya” identity, have begun to refer to themselves as such, while others call themselves “mestizo” and, therefore, do not acknowledge themselves as “ladino” or “nonindigenous”. UNDP (2005) National Human Development Report. Ethnic and Cultural Diversity: Citizenship in a Plural State, UNDP, Guatemala, 2005. [40] Hopenhayn, Álvaro Bello and Francisca Miranda (2006), op. cit., p. 25. [41] ECLAC’s various assessments of territorial decentralization of social services in the region have found that the experience was only successful in a number of respects, such as the fact of having attained consensus on the need to decentralize services and to create more effective participation mechanisms in contexts where democratization is an important objective. However the assessments have also revealed the scant actual independence of certain lower-level positions (such as human resource management); regulatory frameworks barely sufficiently developed for the correct implementation of various allocation mechanisms and provision supervision systems, lack of independence of service production units, absence of up-to-date information systems, and insufficient training efforts to meet the new service provision demands. Last but not least, the lack of efficiency and equity noted in the reforms is even clearer in the limited progress in terms of social efficiency of provision and expenditure yield, as well as a considerable drift in quality indicators. Di Gropello, E. and Cominetti, R. (comp.) (1998) La descentralización de la educación y la salud: Un análisis comparativo de la experiencia Latinoamericana. Santiago, Chile, ECLAC. [42] A methodological clarification: the outcome indicators for equality and nondiscrimination include gaps, which, as appropriate, are designed to quantify extant inequality by comparing the values of the indicators in each group (indicator value for women/indicator value for men*100), where 100 represents equality and values below 100 represents inequality for women (or other groups that suffer discrimination). Originally the gap concept was used to calculate the distance between the mean situation for men and the mean situation for women. The gap establishes the proportional difference between indicators (rates or percentages) corresponding to women and men in a particular category. In quantitative terms the value of the indicator that corresponds to men is compared with that of women. A positive gap denotes that the mean values for men are higher than those for women. In this case the value of the gap can be interpreted as the quantitative distance that women must travel to catch up with men. A value equal to one indicates that the proportion of men and women in a given situation is similar; in other words, there is parity. This indicator is particularly applicable to areas connected with access to material and social resources, participation in key decision-making levels on policy, social, economic, cultural, and rights-related issues. Another indicator is the so-called social gap, which is the proportional difference between indicators for poor and non-poor women, or highly educated and poorly educated women. This indicator can also be applied to population sectors (persons with disabilities, migrants, people of African descent, indigenous peoples, etc.). Inequality is measured by the gap between the groups that suffer discrimination and the national average, with gender equity (or inequity) regarded as a crosscutting issue throughout. Giacometti, C. (2005) “The Millennium Goals and Gender Equality. The case of Argentina.” Serie Mujer y Desarrollo No. 72. (Santiago, Chile, ECLAC, UNIFEM, 2005). For the sake of economy in the process it would be advisable for monitoring purposes to present the Millennium (MDG) indicators as gaps, incorporating race, ethnicity, and rural/urban setting, through a gender perspective lens [43] Accordingly, a broad concept of access to justice is adopted, which the IACHR has already used in its thematic reports. See IACHR, Access to Justice for Women Victims of Violence in the Americas, 2006, paragraphs 5 and 6. [44] Committee on Economic, Social and Cultural Rights, General Comment No. 9 “The Domestic Application of the Covenant,” UN Doc. E/C.12/1998/24 of 3 December 1998. [45] “Guidelines for improving to social protection and explanatory memorandum”, prepared by the Group of Specialists on Access to Social Protection. Consult also: European Committee for Social Cohesion (CDCS), Group of Specialists on User Involvement in Social Services and Integrated Social Services Delivery: “User Involvement in Social Services”, Final Report 2003/2004, Strasbourg 30 September 2004. See also: “Access to Social Rights in Europe,” Report by Mary Daly, Queen’s University, Belfast, adopted by the European Committee for Social Cohesion (CDCS), Strasbourg 28 to 30 May 2002. [46] To that end, we have followed the same order as the IACHR in its recent study on Inter-American standards on access to justice and economic, social, and cultural rights. See IACHR, Access to Justice As a Guarantee of Economic, Social, and Cultural Rights. A Review of the Standards Adopted by the Inter-American System of Human Rights, 2007. [47] See report on Access to Social Rights in Europe, section 3.2.2 on case law on Article 13 of the European Social Charter and the absence of appeals procedure for denial of discretionary benefits. |
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