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Rights-based development and a social protection covenant

Chapter 1

CEPAL

SARPN acknowledges CEPAL as a source of this document: www.cepal.org
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The challenge of universalizing and improving social protection has become a subject of political and academic debate, news headlines and soul-searching in Latin America and the Caribbean. Many people in the region are plagued by uncertainty regarding future employment, health care, social security coverage and household income.

It is therefore vital for the region’s societies to agree on ways to combine rights-based development with the institutions and policies that will produce and allocate the resources needed to make those rights a reality. To accomplish this, social covenants will have to be forged between the various agents of the State and civil society within the framework of appropriate social institutions and authority to provide the necessary political strength and viability to move in that direction (Machinea, 2005a). These social pacts will also have to encompass fiscal covenants in order to ensure that the resources needed to implement such agreements will be available.1 This set of conditions will permit a gradual expansion of social protection systems’ accessibility, financing and solidarity components.

The starting point for this study is therefore the principle that a rights-based approach should be used in framing public policy. The civil, political, economic, social and cultural rights enshrined in binding national and international agreements should form the normative framework for development. This calls for a social contract or covenant that would then be given political expression in both legislation and public policy. Democratic institutions provide the only means of creating such a covenant and ensuring it is established and implemented in accordance with legal principles. Democracy manifests itself through political agreements, and the fact that the region’s countries embrace democratic values and ethics-based global accords and principles places social protection at the point where policy effectiveness and the normative power of social rights converge. Social protection is not simply something that society or governments achieve: it is an imperative which citizens have a right to demand.

This study therefore seeks to address the challenge of combining the ethical aspect of social rights with viable ways of strengthening citizens’ entitlement to such rights in highly inequitable and relatively poor societies. It includes an exhaustive analysis of various aspects of social protection systems (health care, social security and poverty reduction) and their potential to guarantee social rights in structurally heterogeneous societies in the light of the need to build a social consensus regarding those rights and to have institutions that will act upon that consensus.

State institutions must be both technically and politically competent in order to provide citizens with the necessary legal and public policy mechanisms to demand their rights. It is also important for the universality of social rights to be internalized by all the various stakeholders in the spheres of employment, education and health, as well as by centralized and decentralized State authorities, so that day-to-day practice and policy decisions will all be geared towards a rightsbased society. Until fairly recently, many Latin American countries were governed by authoritarian regimes that typically imposed harsh limitations on political and civil rights. Even in the more recent past, social rights have not always been fully applied or institutionalized, as will be discussed in greater depth in a later section of this document. In addition, the institutional context in which regional public policy has sought to promote rights has not been adapted to the variety of employment situations, living conditions and family structures that influence the social risk profiles of Latin American and Caribbean societies.

The effort to establish a social covenant must also, however, be accompanied by an assessment of existing financial constraints and of possible policy mechanisms for overcoming them. It is not only a matter of developing suitable technical approaches for optimizing the production and use of resources; it is also, in the final analysis, a political challenge involving the decisive yet delicate issue of the distribution of those resources. More egalitarian societies that are equipped with the necessary political and technical resources can boast greater achievements in terms of social protection and are therefore in a better position to make the concept of “social citizenship” (genuine and universal entitlement to social rights) a reality than societies with a similar level of development but a higher concentration of income and benefits. Furthermore, a better distributive structure not only facilitates the financing of more inclusive social protection systems, but also contributes to the design of suitable institutions and policies because it predisposes participants to seek common guidelines and agreements. The tax burden and structure, the expansion and selectivity of social spending and, to a certain extent, labour regulations are crucial yet controversial aspects of progress in the area of social protection based on an improved distribution of costs and benefits.

Nonetheless, providing access to social protection and financing its benefits also demand a rapid pace of economic growth, however. The array of possibilities open to individual countries depends on their level of development. It is therefore important for right-based development to mobilize society and the State by generating greater financial resources, and the additional resources aimed at generating economic growth must be used in a way that fits in with that vision of development. This does not mean that the region’s countries should wait until their GDP reaches industrialized-country levels before expanding social rights, but it is important to have an increasingly progressive resource base in order to ensure more and better access to the benefits, assets and services that will enable citizens to exercise their social rights more fully.

This document is based on the premise that achieving qualitative leaps forward in terms of the quality and coverage of social protection systems requires a political covenant or agreement as to the kind of society that we want. The dimensions of such a covenant are threefold. The first dimension is an ethical one, as this type of covenant must be governed by the principles enshrined in binding universal human rights accords, which assert that all people should have access to sufficient resources to provide them with a decent quality of life. The second dimension is a procedural one that involves the mechanisms needed to facilitate dialogue between social and political actors and to transform agreements into normative tools that can in turn be converted into policies. The third dimension has to do with the content of social protection, which should guide concrete actions in areas where people feel the most vulnerable, such as health, social security and a source of income to cover basic needs. In summary, the proposed covenant should translate people’s rights into policies, mechanisms and benefits, define acceptable levels, progressivity indices and growth rates, and include agreements on how to apply the principle of solidarity through a variety of different mechanisms having redistributive implications. This document’s aim is thus to provide substantive inputs for those agreements, on the understanding that political accords reached as part of democratic process make it possible to reorient development based on the universality of human rights.

A social protection covenant based on economic, social and cultural rights should include the three key elements that turn social policy into a tool for promoting equity: universality, solidarity and efficiency. As expressed by ECLAC, “…universality does not do away with the need to apply particular degrees of selectivity, and it cannot provide a basis for levels of protection for which financing is simply not available; the degree of solidarity must be compatible with the demands of social integration and with the structure of income distribution; and efficiency cannot be viewed solely in microeconomic terms, but must ultimately be understood as the capacity for maximizing social objectives within a context marked by the scarcity of resources” (ECLAC, 2000a, p.13).

This study explores ways of extending social rights to the whole of society in a region where most countries suffer from major structural inequalities, have high levels of poverty and attain moderate yet volatile levels of economic growth. This cannot be determined until we decide just how much inequality is ethically tolerable and whether or not there is a certain point after which this very inequality, rather than low average income, is what prevents us from making such rights (including social protection) universal and enforceable. This question is considered in the context of health (chapter III), social security (chapter IV) and poverty reduction programmes (chapter V). Chapter II examines the difficulties and challenges of extending contributory and non-contributory coverage, from the perspective of labour market dynamics and public finance. The cornerstones of this analysis and of the proposals that stem from it are income and equity thresholds, policy efficiency and effectiveness, and the institutional design needed to foster the necessary political support and implementation capacity for the application of such policies.

This first chapter sets out the general framework for the formulation of the specific sectorbased proposals outlined in the other chapters. It is divided into three parts. The first explores the concept of rights-based development as such and provides background information. Within this context, human rights are regarded as a single, indivisible construct of civil, political, economic, social and cultural rights. Nonetheless, within that framework, special emphasis is placed on social rights, as they are the most significant category in the context of social protection systems. The second section of this chapter examines barriers to the full exercise of social rights in the light of socio-economic and human development indicators. It also outlines the difficulties and trade-offs involved in attempting to reconcile the expansion of social rights with the constraints associated with the distribution and availability of resources. The third part places the debate in its historical and institutional context by relating it to the various models of the welfare State and their implications for social protection. In the course of this discussion, a social covenant entailing a procedural dimension, as well as substantive components, is advocated. Such a covenant is, as noted earlier, essential in order to lend support and viability to the policy reorientation required in order to couple the development process with full social rights and social protection systems based on the principles of universality and solidarity.

Box I.1
Enforceability of economic, social and cultural rights
Although the body of international standards and agreements on human rights has been the starting point for entitlement to such rights, the latter has also been shaped by the way in which those standards have been transposed into constitutions and laws, which have in turn been translated into policies and practices that govern the democratic relationship between the State and civil society. The final step in this process comes when the entitlement to such rights eventually passes over from de jure to de facto status.

Robert Alexy (1993) proposes that four elements be considered in constructing modalities of justiciability. The first is whether or not the rights in question are subject to constitutional control. The second is whether or not the standards refer to objective duties (the general obligation of the State to provide suitable programmes) or subjective rights (an individual’s right to demand access to a programme or benefit). The third is whether or not the rights are formulated as absolute rules (enabling each individual to demand that the State apply that standard or rule to him/her) or simply as principles (to be applied only where legally and factually possible). The fourth is whether the notion of social rights refers to a maximum or minimum level of well-being.

These variables can be combined to produce different forms of legal protection. At one extreme, the maximum level of protection for social rights would be attained when such rights are constitutionally protected, subjective, complete (i.e., rights to full coverage) and are backed up by a set of explicit rules. At the other extreme, social rights having a minimum degree of justiciability would be those that are not protected by the constitution, that are not subjective rights but instead give expression to objective duties of the State, that are structured in the form of principles and that are aimed at establishing a basic minimum (as opposed to maximum) level of well-being (Vicente de Roux and Ramírez, 2004, p. 20).

From the standpoint of global justice, States that have ratified the International Covenant on Economic, Social and Cultural Rights are bound to protect, respect and promote those rights. However, the potential financial implications of fully applying the rights contained in the Covenant have given rise to the concept of progressivity, which acknowledges that the process is a gradual one and compels States to guarantee the rights “to the maximum of its available resources”, which leaves the necessary decision-making as to priorities and amounts open to the influence of political will and democratic processes.

In accordance with the concept of progressive obligation, all States parties, regardless of the extent of their national resources, are committed, from the very outset, to taking steps to enforce those rights as expeditiously as possible. Endowing such rights with a tangible form often involves passing legislative measures, which may or may not have to be supplemented with regulations, other legal and administrative measures, and political, economic and social decisions in order to ensure that they can be effectively exercised. Under international law, no interpretation is acceptable that permits States to defer the implementation of their obligations indefinitely (ECLAC, 2000a and ECLAC/IIDH, 1997).

Source: Economic Commission for Latin America and the Caribbean (ECLAC).


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