Access to Accountability Mechanisms and Effective Remedies

A human rights-based approach to social protection requires that policy makers, programme administrators and others whose actions have an impact on a programme should be held accountable for their actions. To meet this human rights requirement, social protection programmes should have mechanisms to collect and process complaints, in particular to review eligibility for the programme, to report instances of errors or abuse, and to supervise the distribution of benefits. These mechanisms should be simple, effective and accessible to the most vulnerable sectors of society, as well as adequately resourced. The complaints mechanism should allow both individual and collective complaints, guarantee anonymity and be culturally sensitive to whatever degree is required to ensure its effectiveness. As far as possible, an independent appeals process should be established to ensure due process.

Social protection systems, and the broader state apparatus that administers them, should also provide access to effective remedies in case rights are violated. The right to effective remedies by a competent administrative or judicial authority is outlined in Article 8 of the Universal Declaration of Human Rights (UDHR) and Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR). The Committee on Economic, Social and Cultural Rights’ General Comment 19  recommends that all victims of violations of the right to social security be entitled to adequate reparation, including restitution, compensation, satisfaction or guarantees of non-repetition. National ombudspersons, human rights commissions and similar national human rights institutions should be permitted to address violations of the right to social security.

ILO Conventions and Recommendations also underline the right to have efficient and accessible complaint and appeal procedures in the event of the refusal of a benefit or of complaints as to its quality or quantity (e.g. Convention No. 102, Article 70; Recommendation No. 202, para 3o). To be effective, these mechanisms should be impartial and independent (e.g. appeals are heard by an authority that is independent of the administration that reviewed the initial complaint); fair; respect due process; transparent (e.g. decisions should be duly motivated); effective in answering complaints and appeals and providing remedies; simple; and rapid (i.e. administrative procedures should therefore not be so burdensome or so excessive in time so as to postpone the reception of benefits or act as a deterrent to filling a complaint). Furthermore, such mechanisms should be financially and geographically accessible and be free of charge to the applicant (Recommendation No. 202, para 7).

Implementing national social security systems

The State has the overall and primary responsibility in establishing and maintaining national social protection systems (Convention No. 102, Article 71 and 72; Recommendation No. 202, paras 1, 3). While States have a margin of discretion in assessing which measures are most suitable to their specific circumstances, human rights treaties clearly impose a duty on each State party to take all necessary steps to ensure that everyone enjoys the right to social security, and to do so as swiftly as possible.  To this end, each State should adopt an appropriate national strategy and plan of action to secure this right for all. This means, whatever the administrative system, the State must take the general responsibility for the proper administration of the institutions and services providing social protection (Convention No. 102, Article 72). Thus, where responsibility for the implementation of the right to social security has been delegated to regional or local authorities or is under the constitutional authority of a federal body, the State should ensure that these authorities effectively monitor social security services and facilities, as well as the social security system’s implementation of the system (CESCR General Comment 19). In addition, the State is responsible for the due provision of benefits, irrespective of the method of financing adopted (Convention No. 102, Article 71). This implies that the State should undertake periodical actuarial studies and calculations concerning financial sustainability.

Monitoring and evaluation (M&E)

Social protection systems require institutionalized monitoring mechanisms to track performance and enable adjustments to changing conditions if necessary. The need for regular monitoring of implementation and periodic evaluation, in particular through the collection, compilation and analysis of social security data is recognized by international standards (Recommendation No. 202, para 3p, 19-24).

Effectively monitoring, which refers to the ongoing assessment of an action plan’s effectiveness, and evaluating, which refers to assessing the overall plan and its results, of social security programmes is paramount to achieving progressive realization. States parties to human rights instruments are obliged to monitor the realization of the right to social security and should establish the necessary mechanisms or institutions to do so. States are responsible for identifying the means for monitoring progress towards providing access to social security, as well as the challenges that may impede them in meeting their obligations. Indicators and benchmarks should be defined in national action plans, and used to assist the monitoring (CESCR General Comment 19).

Policy, implementation and monitoring design processes across all policy areas should be made participatory by creating channels and mechanisms for participation and dialogue with experts, practitioners, policy makers, civil society organizations and associations. This will help promote coherence and coordination with relevant social, economic and employment policies (Recommendation No. 202, para 3l).

An essential component of any organizational action is a regular and unbiased evaluation process. It is imperative that social security implementation plans incorporate M&E as part of their process.  Evidence shows that activities without clear objectives, monitoring and evaluation methods are ineffective.

OHCHR’s Handbook on National Human Rights Plans of Action (2002) provides recommendations for monitoring and evaluation procedures in implementing human rights-based programmes.

Expert Commentaries

Using Human Rights in the Courts to Broaden Social Protection—The South African Example

Human rights have an important role to play in supporting the objectives of social protection which include the prevention of poverty and inequality, ensuring solidarity and inclusion, and creating economically and socially fairer societies. They offer a normative basis and a legal imperative for requiring that states realize the right to social security for their […]

Legal Cases

The Right to Land and Livelihoods in India

This case focuses on the compulsory acquisition of land by the State of West Bengal for a car manufacturing unit under the auspices of “public purpose”. The Supreme Court of India determined that the acquisition had not been for a public purpose, but for the benefit of a company, and ordered the return of the […]

Land Rights for People of Indigenous and African Descent in Colombia

Nature of the Case Among other issues, the Constitutional Court revoked licenses for all 347 private mining companies that had previously been granted approval for mining in the páramo (moorland), an ecologically endangered region of the Colombian Andes. Summary Members of the leftist opposition party, the Democratic Pole and La Cumbre Agraria, (a social movement […]

Access to abortion for poor, disabled woman amid conscientious objection in Argentina

Summary: The communication was filed by the mother of a woman with a mental impairment amounting to a legal age of a child, concerning the response of public health and judicial institutions to her pregnancy resulting from rape.  After being refused by one hospital, a second hospital scheduled an abortion but was later blocked by […]

Access to courts and the right to work for informal traders in South Africa

Upon an urgent request, the Constitutional Court of South Africa intervened in a lower court affair to prevent the municipal government and Metropolitan Police Force from hindering what was asserted to be lawful activity by informal traders under the auspices of “Operation Clean Sweep”. Until the legality of the program that prevented trading in public […]

Resources

The OPERA Framework (Assessing compliance with the obligation to fulfill economic, social and cultural rights)

To increase accountability for failures to fulfill economic, social and cultural rights (ESC rights), it is necessary to uncover the shortcomings in a state’s social and economic policies that lead to large scale deprivations. This serves to expose as a preventable injustice what may otherwise be seen as an inevitable consequence of under-development. Holding institutions […]

Partnership Schools for Liberia: a critical review

This report reviews and analyses documents related to the Partnership Schools for Liberia (PSL) pilot. It particularly highlights the Baseline Report conducted by Innovations for Poverty Actions (IPA) (2017), and the Coalition for Transparency and Accountability in Education (COTAE) monitoring report (2017). The analysis focuses on three key areas: transparency and accountability, students and teachers, […]

Seeking Accountability for Women’s Rights through the Sustainable Development Goals

While the SDGs are a significant improvement over the Millennium Development Goals, including in their commitments to gender equality and women’s rights, there is no major advance when it comes to accountability: the 2030 Agenda for Sustainable Development provides only for a weak and voluntary process of “follow-up and review”. Building on the work CESR and UN Women have […]

The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: A Commentary

This commentary aims to address the need for scholarly research, reasoned argument, consistent interpretation and creative approaches to advocacy, adjudication and remedies under the new OP-ICESCR to ensure that its promise and purpose are fully realized. It aims to provide commentary that is rigorous from a scholarly perspective but relevant for practice and helpful in […]

Grievance Mechanisms for Social Protection Programmes: Stumbling blocks and best practice (One-Pager 320)

This one-page brief examines grievance mechanisms social protection systems.

The Human Rights Approach to Social Protection

This report sets out to elaborate and promote a human rights framework for social protection, identifying best practices and disseminating lessons learned. It provides an in-depth analysis of the application of central human rights principles of the human rights framework – equality and non-discrimination (including accessibility, acceptability, affordability and the incorporation of the gender perspective), participation, transparency […]

Report on Cash transfer programmes (CTPs) from a human rights perspective (A/HRC/11/9), submitted by the independent expert on the question of human rights and extreme poverty, Magdalena Sepúlveda Carmona

This report focuses on cash transfer programmes (CTPs) from a human rights perspective. CTPs are non-contributory programmes  providing payments in the form of cash to individuals or households. The primary objective of  CTPs is to increase the real income of beneficiaries in order to enable a minimum level of  consumption within the household. CTPs have been identified […]