F. Institutions and social protection
3. Conflict management and resolution systems
The implementation of a rights-based social protection system requires a proper verification mechanism to ensure that such rights are actually realized and to make decision-making transparent. This
16 In addition to the regular publication of official data in Social Panorama of Latin America, since 2006, ECLAC, with the support of the German Agency for International Cooperation (GIZ) and the Spanish Agency for International Development Cooperation (AECID), has been engaged in a methodology and technical assistance effort to enhance the analysis and use of social investment information for policy management. For more information, see the ECLAC social spending website: www.cepal.org/dds [Spanish only].
mechanism must be present not only in programmes themselves, but also in any outside bodies where the public may request information, file a complaint if they feel their rights have been breached or settle disputes.
In addition to making management more effective and efficient, process supervision and monitoring systems make management more transparent to the public. For the proper use of such systems, it is also necessary to make explicit the management processes and decision- making criteria used for target-population identification and beneficiary selection, as well as for service production, delivery and evaluation. Thus, the implementation of such systems and regular dissemination of management results are elements to be considered in this connection.
Placing an autonomous institution in charge of proper enforcement of service standards and quality allows disputes over breaches of established rights and standards to be resolved efficiently and effectively, guaranteeing the transparency of processes. Several countries in the region already have institutions of this nature, such as oversight offices, consumer protection services, civic watchdog organizations or regulatory authorities, making it easier to consider implementing them in social protection systems.
One example is Chile’s System of Universal Access with Explicit Guarantees (AUGE Plan), which has mechanisms that help to refine the balance between State commitments to gradual progress in the area of social rights and their technical and budgetary feasibility. The AUGE Plan encompasses a set of legally valid administrative mechanisms for assessing compliance with the guarantees, with a health regulator (Office of the Superintendent of Health) responsible for settling disputes between the system’s users and providers (public and private) (Red Salud, 2009). Nonetheless, complaints are filed before the judiciary when the aforementioned bodies fail to meet citizen demands. This makes it possible to move forward in resolving such claims (Drago, 2006), filtering out those which, by their very nature, require the intervention of higher judicial authorities.
It is also necessary to consider a third level in the judiciary that can settle disputes which other judicial authorities have been unable to resolve, so as to ensure compliance with rights. Abramovich (2009, p. 42) identifies the following decisive factors for such legal proceedings to produce results, although there are many more: “the constitutional interpretation of the obligations they create; the capacity of the relevant stakeholders to act in the interest of groups that are discriminated against or excluded; the physical, material and cultural accessibility of the courts; civil society’s power and degree of organization and its experience and technical capacity to make use of legal instruments; the greater willingness of
courts to deal with such issues; more open or closed procedural systems and the type of remedies or orders that judges are authorized to use; judge-selection mechanisms and the independence and impartiality of the courts with respect to the political power and to certain stakeholders in these cases; the level of development of social security systems and the ability of Government, Congress and State bureaucracies to meet demands for the benefits promised in legal texts”.
Despite the potential it offers for the realization of economic, social and cultural rights, prosecution also poses a number of risks and difficulties. Uprimny (2007) states that one such risk is overloading the justice system, together with the possible political prominence that judicial bodies may gain. There also remains a question of roles and areas of competence, particularly in financing (as well as social policy design), as the responsibility for deciding where to allocate public investment lies with the executive and legislative powers and not the judiciary (Basombrío, 2009, p. 44). Added to this is the potentially high individual and social cost of prosecution based on rights-related universal benefits, which may lead to unenforceability of the regulations and/or the inability to meet the challenge in an economically sustainable manner. Furthermore, a gap in access to judicial dispute settlement may be foreseen, with the poorest and most vulnerable population sector facing the greatest constraints, both economic and cultural.
An intermediate instrument for quasi-judicial dispute resolution is the ombudsman. In Latin America, many complaints are referred to the ombudsman concerning rights linked directly to social protection citing an alleged violation of health, education or social security rights. There have also been a number of ombudsman’s reports and explicit
recommendations on matters relating to social protection.17
Other bodies that play a key role in monitoring compliance with rights are non-judicial mechanisms, such as national independent and international human rights organizations, including the Human Rights Committee of the United Nations and the Inter-American Commission
17 For example, based on requests received concerning the Universal Child Allowance for Social Protection (AUH), Argentina’s National Ombudsman made a recommendation to the Cabinet Chief to extend the scope of this allowance for the benefit of children and adolescents attending private schools with low fees whose families earn below the minimum wage, ending the exclusion from AUH entitlement for beneficiaries of other programmes (Decision 36/10: http://www.dpn.gob.ar/areas.php?id=01&ms=area5). Also, in the case of the Office of the National Ombudsman of the Republic of Colombia, there is a specific social security and health programme to safeguard the progressive realization of these rights in Colombia. For example, in 2001, the Ombudsman handed down a decision regarding problems detected in Colombia’s social insurance (Ombudsman’s decision N° 008: http://www.defensoria.org.co/red/anexos/pdf/02/ res/defensorial/defensorial8.pdf).
on Human Rights (IACHR) of the Organization of American States (OAS). These bodies can help to channel citizen demands to the courts (United Nations, 2009a, p. 15).
As Artigas points out (2005, p. 22), the universality of rights-based benefits is not necessarily guaranteed by the individual cases in which judicial mechanisms and court rulings intervene, but rather it requires specific social and fiscal covenants that are binding on society as a whole. Without such covenants, it would be difficult to maintain a system based on guarantees. It follows that the more transparent, effective and efficient the first two mechanisms are, the less intensive the work assigned to the judiciary will be and the cheaper, clearer, closer at hand and easier to process the demands and claims will be for the public and the State (cf. also De Roux and Ramírez, 2004).