OPERA: A step by step framework for assessing compliance
30. Given the fact that exclusion and disempowerment often breed bias, claim holders are not recognized as key players in all steps of applying the HR framework; the views of the most vulnerable are, therefore, too often lost. The OPERA framework aims at bringing about the right types of relationships among different actors and different sets of data.
Step 1 – Outcomes: Assessing the level of enjoyment of human rights
31. Information reflecting claim holders’ own perceptions about their rights enjoyment is collected at this stage. The information gathered is then played against human rights principles and standards to draw conclusions. The affected communities are then invited to play a central role in the selection of indicators aiming at setting benchmarks assessing the adequacy and progress of the state’s performance. Benchmarks that reflect the respect of key human rights principles and standards are: a) nondiscrimination, (b) non-retrogression, (c) fulfillment of minimum core obligations, and (d) progressive realization.
32. In an effort to demonstrate the importance of the prioritization of resources for meeting minimum core obligations, and exposing outlier governments, the country’s performance is assessed vis-à-vis its neighbors, regional averages, or other countries with similar characteristics. Time series analyses are carried out among countries with comparable levels of GDP per capita and progress on the indicators over time, and between groups is traced.
33. Key questions to explore here are whether or not progress being made is equitable and whether disparities are being reduced.
34. Descriptive statistics are interpreted in light of relevant human rights standards so as to measure the extent of the realization of the right in the country.
35. Ultimately, this step sets the scenario to close the gaps found with the intention of eliminating historic discrimination.
Step 2 – Policy Efforts: Assessing the state’s commitment and efforts to fulfill ESC rights
36. A useful methodology here (that is too often omitted) is the use of Community Score Cards or any similar approach that looks at these efforts from the claim holders perspective.
More traditionally, what is done is:
a) Identifying the country’s legal and policy commitments
37. Here, one looks at the extent to which a state has ‘domesticated’ its international commitments. One considers whether the international commitments the state has adopted have been internalized in the domestic legal order. Campaign promises and speeches may have clues in this direction. Also important is to identify any laws that run contrary to solemn commitments made.
b) Examining policy content and implementation
38. Here, what is being assessed is how such commitments have moved from paper to reality. One assesses whether actual deeds show that the state is giving human rights commitments its best shot. Central is to seek the views and perceptions of what has been implemented from the individuals and groups they are designed to reach.
c) Analyzing policy processes
39. The assessment here focuses on whether the policy making cycle upholds the human rights principles of participation, accountability and transparency (not forgetting to asses whether civil and political rights such as access to information are being fulfilled).
40. When one looks at processes, one is actually looking at procedural human rights principles that include seeking the views and perceptions of satisfaction with these mechanisms by the affected communities. Processes of redress as a consequence of effective accountability need to be assessed as well. Important also is to assess whether people have the ability to engage in their country’s governance structures.
41. Ultimately, here one aims at explaining why there are discrepancies between the policies on paper and the delivery in practice. At the end, capacity gaps in the implementation have to be identified* and an explanation sought of why more resources have not been made available.
*: Capacity, defined broadly, means having sufficient knowledge, organizational abilities, motivation, authority and, importantly, resources, including human, technical and financial.
Step 3 – Resources: Assessing the use and generation of adequate resources
42. Here, one inquires about the percentage of the state’s budget allocated to social spending, about which population groups are benefiting from past and current spending, about contrasting spending disparities that lead to disparities in human rights outcomes. One also looks into how spending has evolved over time –taking into account economic growth over the period; if and how there is participation in fiscal policy setting; one also identifies the structure of the tax base. Again here, one compares with similar countries.
43. One needs to always be aware that, frequently, government authorities attribute under-funding to a lack of sufficient resources. However, this claim needs to be interrogated, as often under-funding is, instead, due to a failure to equitably generate and distribute resources.
44. Budget analysis techniques are used to determine whether maximum available resources are being mobilized and used to prioritize minimum core HR obligations and to reduce inequalities thus keeping the trend of a progressive realization of the various HR.
a) Evaluating planned and actual resources expenditures
45. How much is the state allocating to the social sectors relevant to the HR under review and who benefits?
46. What is helpful here are comparisons to spending being made on other ‘non-priority’ sectors within the budget; analyses of how resources are distributed across regions and population groups; are they benefiting already better-off groups?
47. It is thus indeed possible to infer who is benefiting from budgetary allocations, e.g., building of universities vs primary schools in poor rural areas could be considered discriminatory spending.**
**: Benefit incidence analysis is a quantitative technique that can be adapted for human rights analysis; it can be used to identify which groups have benefited most from public spending.
48. How allocations have evolved over time gives an indication whether HR are progressively being realized. (Beware that here one has to make inflation-adjusted comparisons).
49. In the age of budget cuts, as the ones we are seeing in Europe, ascertaining whether fiscal austerity measures are duly justifiable and how they affect HR is crucial; are they allowing a retrogression of HR?
Moreover, what one has to be aware here is to make a distinction between planned (budget) and actual (end of fiscal year) expenditures.
b) Evaluating resources generation
50. Here one looks at the thorny issues of tax breaks, tax avoidance and tax evasion. Add to this tax revenue that is foregone in tax concessions often given to TNCs as an enticement for them to come and invest.
51. It is key to determine whether the tax system is progressive, flat or regressive, i.e., whether those who make more are paying more.
The VAT is a very popular tax in many countries. It is a regressive tax since it typically comprises a larger share of the income of poorer households compared to that of wealthier households.
52. One also looks at development assistance: Are conditionalities such as trade liberalization being imposed? Is there a demand to increase the role for the private sector in service provisions, e.g., in health –as many free trade agreements call for? These have clear HR implications.
c) Analyzing relevant policy processes
53. In some countries, governments still draw up budgets in secrecy.
In many, closing financial loopholes or prosecuting tax evaders is close to impossible.
54. This goes together with the difficulty to persuasively countering a state’s claim that lack of means prevents it from taking more action to fulfill ESC rights. This remains one of the biggest challenges for human rights advocates.
55. The under-funding of all social sectors is instead due to a failure to equitably generate and distribute available resources.
56. ‘Elite capture’, endemic corruption, and/or external pressures, such as aid conditionalities or competition to attract foreign investment are all elements to ascertain due to their HR implications.
d) Understanding the context
57. One has to understand the real constraints before assessing state compliance.
58. Recommendations to flow from this lengthy assessment are thus to be constructive and well-targeted. One has to distinguish HR deprivations that may be the result of factors genuinely beyond the control of the state from those for which the state should be held accountable for. Our role is to help pinpoint the responses to be reasonably expected from the state.
59. One right serves as a prerequisite for the enjoyment of another and thus denials of one can foster multiple levels of deprivation. Poor and socially excluded groups are less likely to be able to access information organize , participate in policy debates and to obtain redress.
60. All this boils down to carrying out political-economic analyses that seek to reveal the underlying interests, incentives and institution that enable of frustrate change towards improving the HR situation.
61. So the steps recommended by OPERA do not necessarily need to be followed in strict sequence. In some contexts, such constraints may be so central that they merit a more central focus in the analysis.
e) Determining state compliance
62. Central to any assessment is to identify the commitments made by the government on paper (or campaign promises) not translating into practical actions. This is the essence of accountability.
63. The final judgment will very often be a qualitative one and it will call for remedies to the current violations and for advancing reforms to prevent them in the future. Easier said than done, no? Therefore, what we cannot absolutely escape from addressing is the capture of the state by economic elites as a key structural constraint. We are talking about the privileges of the country´s oligarchic families and business leaders….
64. The challenge –through claim holders empowerment and mobilization– is to prompt decision-makers to cease being dismissive of human rights arguments which they see as irrelevant.
Lessons learned and questions looking ahead
65. Violations have long been difficult to ‘prove’ quantitatively in the restricted way social sciences have worked. OPERA calls for a balance of both quantitative and qualitative evidence as needed to support the argument about compliance with the obligation to fulfill ESC rights. In doing so, it
links obligations of result with obligations of conduct.
66. Ultimately, the question of ‘why’ HR must be upheld needs to be answered through more qualitative, contextual analyses, importantly through the lived knowledge of claim-holders themselves.
Claudio Schuftan, Ho Chi Minh City
cschuftan@phmovement.org