FRAMING FULFILLMENT:

THE OPERA FRAMEWORKMadrid, Spain, March 23, 2012

New Horizons in Economic and Social Rights Monitoring

BACKGROUNDOVERVIEWREFLECTIONS

1BACKGROUNDOVERVIEWREFLECTIONS

The objectives of our monitoring work

To expose chronic, but preventable, deprivations such as poverty, hunger, homelessness, illiteracy and early mortality.

To produce persuasive reports that are accessible for a variety of stakeholders.

To uncover the institutional shortcomings that hinder states’ efforts and to propose actionable recommendations for reform.

To open space for greater legal, political and social accountability.

Our goals in designing the framework

To provide a simple, coherent structure in order to build a persuasive advocacy argument.

To systematically bring together the standards and principles underpinning states’ obligation to fulfill economic and social rights.

In particular, to link evidence about a state’s conduct, with evidence about the outcomes that result from that conduct.

To benefit from the strengths of quantitative tools and techniques in supporting such evidence, at the same time respecting the need to balance quantitative and qualitative analysis and personal testimonies.

2BACKGROUND

OVERVIEWREFLECTIONS

OPERA: a four-step framework

Linking principles with ways to measure them

OUTCOMES

Measure aggregate levels of rights enjoyment

Why? Widespread deprivations suggest obligations of result (e.g. reaching minimum essential levels of a right) are not being met.

How? Compare socio-economic outcome indicators to benchmarks (e.g. IBSA, SERF index) and/or analogous countries (e.g. in region or level of development). Deviations can point to whether a country’s performance is reasonable or not.

Outcomes

Measure disparities in rights enjoyment

Why? Differences in the enjoyment of a rights raise concerns about possible discrimination.

How? Disaggregate socio-economic indicators by relevant social groups (e.g. ethnicity, religion, gender, residence, income level etc.)

Outcomes

Measure progress over time

Why? Identifying trends in the enjoyment of a right over time indicates whether it is being progressively realized and whether disparities are growing or reducing.

How? Compare the same socio-economic indicators over time (aggregate or disaggregated).

Outcomes

POLICY EFFORTS

Identify legal and policy commitments

Why? Shows whether the government is adequately “taking steps” towards the full realization of rights.

How? Identify structural indicators and compare the provisions of relevant laws and policies to international standards, guidelines etc.

Example: the mental health sector in Kenya is governed by out-of-date legislation not consistent with international guidelines and the government is yet to adopt a policy drafted almost ten years ago.

Policy efforts

Examine policy content and implementation

Why? To determine whether the goods and services needed to fulfill a right are increasingly available, accessible, acceptable and of adequate quality.

How? A range of techniques can be used to gather primary or secondary data on relevant process indicators.

As in step one, cross-country comparisons, disaggregated data or international guidelines all offer reference points against which to interpret this data.

Qualitative analysis and personal testimony identify the capacity gaps hindering better service delivery.

Policy efforts

Kenya, % deliveries in a health facility, KDHS 2008/9

Analyze policy processes

Why? To determine whether the policy process enables rights holders to actively participate in the design, implementation and oversight of policies and to hold the government to account when they are negatively affected by them.

How? Qualitative techniques (e.g. focus groups, interviews) can gather feedback from particular rights holders. Quantifiable national level studies (e.g. perception surveys and governance indicators) can provide a general overview in the country.

Policy efforts

RESOURCES

Analyze resource allocation and expenditure

Why? To evaluate whether expenditures (planned and actual) in relevant sectors are an equitable and effective use of available resources.

How? Use allocation ratios, judged against relevant reference points, that show how much is being earmarked for key sectors. Various governance tools can uncover weaknesses, leakages or discrimination in the disbursement of funds.

Resources

Ireland*

Spain UK

Greece

Luxe

mbourg

Netherlands*

Portugal

BelgiumEU-15

Italy

Germany

Austria

Sweden

Finland

France

Denmark10

15

20

25

30

16.4 16.917.9 18.0 18.0 18.1 18.7 19.3 20.1 20.4 20.6

21.7 21.723.9 24.2

25.4

Government Expenditure on Social Protection as a Percentage of GDP

% o

f GD

P, 2

010

Analyze resource generation

Why? To assess whether revenue from different sources is being mobilized equitably and effectively.

How? Evaluate relevant fiscal, monetary, and macro-economic policies against human rights principles.

Examples

•Ascertain if the tax system collects sufficient resources and where it could improve.

•Determine if the tax system is progressive or regressive

•Review trade, aid and debt policies.

Resources

Analyze budget processes

Why? The principles of accountability, transparency and participation demand that the budget process be open and accessible to citizens.

How? Like in step two, qualitative techniques can gather feedback from particular rights holders. Quantitative perception surveys and indicators (e.g. Open Budget Survey) can provide a general overview in the country.

Resources

ASSESSMENT

Identify other determinants

Why? Identify socio-economic, political and cultural factors that inhibit people’s ability to enjoy their rights or seek redress if they are violated, to pinpoint the responses expected of the state.

How? Although these barriers can be uncovered through sophisticated quantitative methods, such as econometrics, qualitative approaches, such capacity gaps analysis, can facilitate the participation of rights holders.

Assessment

Understand state constraints

Why? The capacity of the government (influenced by third parties and structural limitations) is also relevant in order to explain why its efforts have not been more successful.

How? Again, these constraints can be uncovered through qualitative approaches or quantitative methods from various fields.

Assessment

Determine state compliance

Why? To make a conclusion about a government’s performance with its obligation to fulfill economic, social and cultural rights.

How? By triangulating the findings from the first three steps a picture should emerge, from which it is possible to make a judgment about the state’s efforts to progressively fulfill economic, social and cultural rights and the results of those efforts on the ground.

Assessment

Used quantitative indicators and qualitative analysis. Found poor health, education and malnutrition outcomesDespite country’s wealth, wide disparities, and little progress.

Outcomes

Assessed laws and policies against AAAAQ criteria. Found exemplary legal and policy framework But problems in practice e.g. school expensive, poor quality, often culturally unacceptable for Indigenous children.

Policy efforts

Conducted budget analysis (expenditures and revenues). Found social spending low; poorest benefit least.Low generation of resources by highly regressive tax system.

Resources

Many national and international constraints on the government, including elite resistance to fiscal reform.Overall inadequate compliance: low ESCR enjoyment not linked to LACK of resources, but rather their DISTRIBUTION.

Assessment

The ‘Rights or Privileges’ Report: key findings

3BACKGROUNDOVERVIEW

REFLECTIONS

The OPERA framework

OPERA is not a one-size-fits-all model, but rather a flexible, overarching framework to guide monitoring of economic and social rights.

Incorporates steps that cover all the human rights standards and principles of the obligation to fulfill (progressive realization, max resources, AAAAQ, process principles).

Each step suggests a checklist of indicative questions and suggests a broad array of quantitative and qualitative methods most useful for answering those questions

Which questions demand greater attention and which methods are most appropriate for answering them, will depend on the objectives, priorities and practical constraints facing advocates in a particular context (historical, political, institutional etc.).

Adaptable according to user , purpose and audience

Incorporates an overall assessment step that reflects on all the data collected in relation to the specific human rights principles in relation to the local context

Monitoring can never be a purely technical exercise, it is an exercise of judgment, which OPERA aims to acknowledge

Key lessons learned

Well-evidenced argument can be very powerful for advocacy

Violation long been difficult to prove in the context of the obligation to fulfill, but now more difficult to use these as ‘escape hatch’.

Clearly make an argument of the links between poor outcomes and the failures of government, conduct and result – and make detailed recommendations

Combination of different types of data is powerful

Quantitative data adds rigorous assessment, but not sufficient

Qualitative data gives contextual understanding and rights-holder perspectives

Triangulation of national statistics, small surveys, focus groups, individual testimonies and stories using existing surveys for our own normative purposes

Collection and validation of data can itself provide spaces for dialogue

Combination of different types of tools is powerful

Comprehensive approach combines analysis of indicators, benchmarks with budget analysis and broader political economy analysis (why? question)

Need to be interdisciplinary and build partnerships for other skills, but can use different levels of complexity and methods as necessary.

Need for an overarching framework to integrate data and to build a strong case – OPERA framework

Key challenges faced in applying framework

Ensuring that assessment is not technocratic or alienating to rights-holders, but keeps focus on those affected

Vernacularization of rights/indicators/benchmarks v. availability of data

Validating ‘data’ with those affected and making messages accessible for advocacy and mobilization

Ensuring that assessment involves critical overall normative judgment that is relevant to local context and local constraints

Risks of relying on quantitative data and qualitative data and focusing on not just where and what, but why?

Difficulties of measuring process dimensions – participation, remedies

Difficulties of relationship between levels of government – national v. local Balance between comprehensiveness and selective focus

Guatemala focused on the broad picture of realization of range of rights, but overwhelming amount of data (less is more?), but focus on one structural constraint

Need to integrate fulfill assessment with respect, protect violations/traditional methods

Correlation v. causation - triangulation Challenges of interdisciplinary partnerships

Lost in translation - False friends and different underlying assumptions

Time necessary for effective collaboration

Remembering a long history…..

Not such a new debate….

1908 Muller v. Oregon

Brandeis Brief - Moved beyond legal argument of ‘freedom of contract’ to include sociological and statistical data to prove health risks

http://en.wikipedia.org/wiki/Brandeis_Brief

Highly controversial - Resistance of lawyers not trained in social sciences but also resistance to dealing with socioeconomic issues (except in striking down social and economic legislation)

Need to focus on the law and lawyers as well!