Terms of Reference for Consultancy Services ESW Rights, Entitlements and Social Policy Second Stage FY07 Purpose

e of the Service Contract The purpose of the consultancy is to provide a comprehensive review of the history and outcomes of integrating a rights-based perspective into the planning and delivery of social policy in the country concerned. The consultant, ., was chosen on competitive basis. The consultant has extensive experience in the area of social policy, social exclusion and poverty reduction in the context of {country}, and is available to complete the study, specified below, within the suggested timeline. The consultant. will be hired for a period of . days at a daily pay rate of (USDby current conversion). He will be responsible for covering all related costs of the workshop, which he will organize in early June 2007 (described below). The consultancy will be completed in the period April .and June 29, 2007. Background This case study will contribute to a larger comparative study that addresses key experiences with social policy provision building on a rights-based perspective. Similar case studies have already been completed in Chile, Guatemala, Peru, and Uruguay, and initiated in South Africa. The case study will examine the evolution of entitlements and mechanisms for their fulfillment, that are essential for building poor peoples capacity to engage with the state as citizens with rights and responsibilities. The overarching goal of this project is to determine whether, and under what conditions, rights-based norms, standards and approaches can strengthen the institutional framework for delivering social policy outcomes. The overall study has been conducted in response to, and in collaboration with, the Organization of American States (OAS), which in September 2006 indicated their interest in collaborating with the Bank in the analysis of rights-based approaches to social policies as an input to the deliberations of the next Summit of Social Development Ministers of the Latin American and the Caribbean Region. The Economic Commission of the United Nations for Latin America (ECLAC) and the Inter-American Development Bank (IADB) are also supporting the study, as well as the Department for International Development of the United Kingdom (DFID). This study will be used as an input to the OAS summit of Social Development Ministers to be held in April 2008. As such, the document will be first presented at a preparatory meeting of the Social Development Committee of the OAS in next June. According to a UN definition, a rights-based approach is a conceptual framework that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights. 1 It implies an enhancement of the empowerment of disadvantaged and vulnerable groups, their participation in society, equality, non-discrimination and an explicit linkage of social policy issues to human rights. Also according to the UN, there are two main rationales for a human rights-based approach: (a) the intrinsic rationale, acknowledging that a human rights-based approach is the right thing to do, morally or legally; and (b) the instrumental rationale, recognizing that a human rights-based approach leads to better

United Nations. 2006. Frequently Asked Questions on a Human Rights-Based Approach to Policy Cooperation, p.15

and more sustainable human development outcomes. In practice, the reason for pursuing a human rights-based approach is usually a blend of these two. 2 In the past decade, the human rights approach has received growing attention in the development community. The Millennium Development Goals (MDGs) are solidly anchored, both in terms of substance as well as process, in a rights-based perspective. The influence of the rights-based perspective on the MDGs becomes obvious when one compares the various Goals with Articles 25 and 26 of the Universal Declaration of Human Rights (Jahan 2004). Bilateral and multilateral donors such as the World Bank and the UKs Department for International Development (DfID) have already begun exploring the potential contribution of the rightsbased approach to sustainable livelihoods and development as well as the fiscal feasibility of such programs. (see Moser and Norton (2001); Elson and Norton (2002) 3). Recent work by the DAC network on Governance (2006, forthcoming) highlights the significance of human rights as an element of development dialogue which can underpin more responsive and accountable governance, and enhance aid effectiveness. A rights-based approach can be argued to contribute to sustainable development in two major ways. Firstly, it reduces social and political risks through the enhancement of social justice and focus on inclusion and non-discrimination. Secondly, it creates stronger and more equitable institutions not only state-owned, but also civil and community ones 4. Furthermore, the promotion and observance of human rights are considered to be core elements in the efforts to strengthen democracy and governance. In Latin America, social and economic rights have not advanced as rapidly as political and civil rights, a situation which poses one of the greatest challenges to Latin American democracies (UNDP, 2004). Some of the most successful examples of applying a rights approach to social service delivery have emerged from developing and middle-income countries. The Mahrashtra Employment Guarantee scheme in India has been cited in this respect as providing an approach to employment which guarantees a base level of access to all. In parts of Latin America, a rights approach has found expression in the social minimums framework a set of policies that aim to put a clear floor under levels of provision in the social sectors. South Africa provides an example of embedding social and economic rights in the Constitution and translating them into a concrete policy framework. The resulting impacts on policy have extended to sectors, which are not covered in the Latin American social minimums experience e.g. water and housing. A key element of all these approaches is the intent to empower people to act as rights-holding citizens in relation to the state. This in turn can provide incentives and a framework for social mobilization of the poor to claim rights and entitlements, thus undermining a mode of interaction between citizens and the state based on informal relations of patronage. A comparative assessment of the policy frameworks that have made such empowerment possible in different socio-economic contexts will make an original analytical contribution. For the purposes of this study we define rights-based social policy as an approach comprising the following features: The definition and widespread communication of rights, entitlements and standards which enable citizens to hold public policy makers and providers to account for the delivery of social policy. The availability of mechanisms of redress where citizens can go if they are unable to enjoy specified entitlements or social minimums.

Ibid. p.16

Elson, Diane and Norton, Andy. (2002). Whats Behind the budget?: Politics, Rights and Accountability in the Budget Process. Overseas Development Institute. ; Moser, Caroline and Norton, Andy. (2001). To Claim Our Rights: Livelihood Security, Human rights and Sustainable Development. Overseas Development Institute. 4 Ibid. p.ix

A commitment to the equitable delivery of the specified rights, entitlements and standards to all on a universal basis. Operationally, a rights-based approach implies the introduction of a set of institutions and policies within a society that secure every members reasonable access to a social minimum. It requires the achievement of a social and fiscal pact, as permitted by the countrys specific social, economic and political conditions. This study has chosen to examine the possibility of operationalizing a rights-based approach to social policy through a system of guarantees - a system that assigns specific content to the rights and obligations of all social agents (including all citizens). We define social guarantees as sets of mechanisms (legal and/or administrative) that identify entitlements or obligations related to certain rights and ensure the fulfillment of those obligations. Almost all social policies are at a level of pre-guarantees i.e. they have not identified entitlements and obligations explicitly enough and/or have not sufficiently developed mechanisms to ensure their fulfillment.

Methods and Expected Output A final report of 30-40 pages which answers the questions specified below. The research will be conducted based on a review of mainly secondary sources but also primary sources if possible. Primary sources can include interviews with relevant government, civil society, community organizations representing various groups and regions, and primary service providers (health/education/social security personnel.) Video conferences with all sites (Bolivia, Colombia, Ecuador, Paraguay, and Washington DC) will be held at least twice in order to address emerging questions/problems and report progress on the studies. Ongoing email and telephone communication will also be kept among country teams and the World Bank team in Washington DC. A workshop will be organized by the consultants in each country in early June 2007 to present a draft of the study, collect feedback, and brain-storm with civil society, governmental officials, academia and the World Bank, before submitting a final version of the report. Using the Framework of Social Guarantees The concept of social guarantees provides a useful analytical framework to support/complement the analysis of existing policies and programs, and the recommendations for their improvement. Firstly, the framework of social guarantees makes space for a process of social dialogue in giving concrete meaning to social and economic rights. The participation of the poor and voiceless in this process is critical and an area where more experience and effort is needed. Secondly, the framework allows for a practical process to determine (as an element of the social fiscal contract) the space available for progressive realization i.e. what levels of entitlements are affordable under different socio-economic conditions. Thirdly, the framework of sub-dimensions outlined below allows for the monitoring of progress that countries are making in relation to the realization of economic and social rights. Monitoring of progress here does not refer to crosscountry comparisons but rather to progress within each society. The social guarantee framework is used in this a guiding analytical framework. It is expected that all policies and programs to be examined are at a pre-guarantee stage. In this sense, the case study will attempt to assess: 1) the degree to which rights and obligations are identified with reference to the researched sector or program; 2) the degree to which mechanisms that ensure their fulfillment are set in place, considering the specific historical and socio-economic context of the state; 3) the opportunities and challenges for the further evolution of social guarantees in the context of the sector or program.

We use eight sub-dimensions of social guarantees (below) to help us characterize their presence and evolution. These sub-dimensions have been developed by the Chilean Foundation for Overcoming Poverty and are explained at length in the Chile case study. Again, we use these sub-dimensions for the purposes of this study certainly the list of guarantee sub-dimensions can be extended in future projects. a) Access: The dimension of access implies the existence of instruments or procedures, which allow for the provision of social services in a certain area, in a set form and under set conditions, to all citizens in need of such services. b) Financial Protection: Set of instruments or procedures that limit the expected financial contribution from rights-holders to an extent to which it would not be impossible for them to benefit from the social services in question. c) Continuous Provision: In cases, in which the service in question constitutes a longer-terms process (such as rehabilitation services in health care), this dimension ensures that the service will be provided for the entire period necessary to achieve the expected results. d) Quality: The explicit setting of quality goals and standards, which must be completed in order to consider that access to the right has been achieved. e) Opportunity: The existence of a clear timetable that stipulates the timeframe and stages or maximum waiting time, within which the guarantee or service should be provided, in a manner that makes its results effective for the service beneficiaries. f) Mechanisms for Redress and Enforcement : Instruments or mechanisms that allow for redress on the part of citizens in cases, in which the right or guarantee has not been realized in the previously stipulated manner. Redress mechanisms may be various including mediation, negotiation with authorities, or more serious judicial mechanisms. g) Mechanisms for Revision: The existence of institutional or legal mechanisms through which society (or the body responsible for providing the service) periodically evaluates and updates the dimensions of the guarantee to ensure that it promotes adequately the progressive realization of the particular social/economic right. h) Participation: Instruments or procedures, allowing citizens to intervene in the mechanisms, which define and operationalize the social guarantee, and through which services are delivered. Guiding Research Questions, Matrices, and Suggested Outline I. Context/Background 1. What have been the main impediments to social equity existing in the country? How have they evolved (in the past decade) and which groups have they left excluded? 2. What social policies have provided guarantees to address specific social and economic rights choose a sector or program that best exemplifies a rights-based approach to social policy to be analyzed throughout the case study. 3. Describe the social and political context in which these policies were born? Brief overview of the evolution of social and fiscal pact that has allowed for the creation of these policies. (+ How does it reflect on their sustainability?) 4. What was the role of government, civil society/community organizations, private sector, and if relevant, international actors, in the formulation of these policies/programs? II. Implementation

1. What legal, institutional and policy instruments have been used to apply a rights-based approach (social/economic guarantees) to the design, implementation, and monitoring of social policy I the given sector or program? Specifically what has been the role of: a. Legal mechanisms (including constitutional and statutory law, the role of courts at various levels in adjudicating on rights claims, provisions to facilitate public interest litigation on social and economic rights etc.) b. Policy mechanisms promoting voice and empowerment (including citizen registration and conscientisation, information campaigns designed to raise awareness of citizen rights, engagement of social movements or civil society actors as partners in mobilizing populations to access or claim rights) c. Public policy mechanisms explicitly or implicitly translating human rights norms, standards and principles into social policy provisions (e.g. user entitlements/standards for service delivery) 2. What were the fiscal implications of the policies adopted? Has the adoption of rights norms, standards or principles led to changes in the process of decision making about public expenditure allocation?5 3. How were the policies monitored and what mechanisms of redress/accountability were put in place? 4. What mechanisms were set to ensure access for indigenous groups and consideration of their specific needs (linguistic, cultural, demographic, political, geographic) in a way that facilitates their equal engagement in social programs as citizens with rights and obligations? The Matrix below can be used as a guide to examine the way in which entitlements and obligations (or pre-guarantees) have been expressed in the legal, institutional, instrumental and fiscal domains of state policy. Collecting this data is key to the analysis of Implementation above. The actual matrices can be included as an annex to the case study. Matrix: Social guarantees in the legal, institutional, instrumental and fiscal domains of policy Legal framework All laws and regulations that establish the obligation of states and citizens duties, related to their entitlements. Is there a legal framework that provides the umbrella for the recognition of rights and the development of rightbased policies and programs (guarantees)? Institutional framework State institution/s responsible for the fulfillment of this norm/ guarantee and its sub-dimensions. Are there institutions that have a clear mandate to design, implement and monitor the fulfillment of the guarantees Instrumental framework (Policies and programs) Policies, programs, or services that ensure the practical implementation of the guarantee in question. It can include a joint public-private program. Are there specific programs that ensure access to the services stipulated in the guarantee? Financial framework Economic resources allocated to and invested in the realization of the guarantee and its subdimensions. If available, modifications that have occurred in the budget allocation for programs that claim to be designed and operating according to a rights perspective. Are there specific budget provisions that ensure proper and

It is likely that due to time constraints or lack of data, this question will not be answered fully. In this case, a short account on fiscal implications will be appreciated.

sustainable funding for the activities?

III.

Results

1. Based on available evidence, what can be said about the extent to which the policies or institutional arrangements adopted have increased: Equitable6 access to social provision; Citizen voice and participation in the design, implementation and monitoring of programs through community organizations, NGOs or individually; Affordability of services i.e. financial protection Quality standards, quality performance, evaluations and public information regarding quality of services; Opportunities for redress through judicial or administrative channels in cases of noncompliance with access/quality/financial protection norms (including concrete examples of the functioning and efficacy of these channels; cases of claims made and their resolutions; obstacles to accessing these channels in particular for poor and vulnerable groups) In particular, the access, participation and redress opportunities for indigenous groups. The matrix should be used to illustrate the presence/absence of some of the key elements of social guarantees. As such, it is recommended as a complement to the Results narrative. Matrix: Sub-dimensions of social guarantees Access Are the beneficiaries and services clearly defined? Are there institutional procedures for monitoring access? Are there legal or institutional mechanisms that ensure nondiscrimination in the access to services? Are services guaranteed for the amount of time needed? Do beneficiaries need to contribute to the cost of service? Are services accessible to those who cannot contribute to the cost Is this information effectively communicated to the public? Quality Are there clear quality standards? Are programs being evaluated on a regular basis? Are standards and evaluation results clearly communicated to the public? Is there a maximum waiting period for receiving the service? If service is unavailable within this waiting period, what is a guaranteed alternative (in the same time period and price)? Are there mechanisms allowing citizens to claim adequate provision of the services guaranteed? Are there mechanisms that allow for continual and regular improvement of services? Civil/parent/community organizations and their concrete role in the design/implementation/

Continuous provision Financial protection

Opportunity

Redress and Enforcement Mechanisms for Revision Participation

Refers to non-discrimination and equal opportunity to access services

monitoring of the program. Which law or institution guarantees citizens involvement?

EDUCATION: Suggested levels of analysis: (i) (ii) (iii) (iv) Early Childhood development and Pre-school education Elementary/Primary education Secondary education Training (Capacitacin)

HEALTH: Suggested levels of analysis: (i) (ii) (iii) (iv) Promotion Prevention Treatment/Recovery Rehabilitation

IV. 1.

Lessons Learned and Recommendations

Summary: How has the identification of entitlements and obligations contributed to improvement of services (if at all)

2. Summary: How has the stipulation of concrete mechanisms regarding the fulfillment of rights and obligations contributed to improvement of services (if at all) 3. How can social guarantees (in the manner described above) and mechanisms for their monitoring be introduced or strengthened within the social policy context of the country? 4. What are the main obstacles to sustainability of the rights-based policies and how can they be addressed? 5. What is the potential role of civil society and private sector in formulating and implementing and/or monitoring a system of guarantees? 6. What is the role of Social Development Ministries in facilitating social dialogue and moving towards a social and fiscal pact that will enable further evolution of rights-based policies? Supervision The collection of information and preparation of the document will be supervised by Andrew P. Norton and Estanislao Gacita-Mari from the World Bank. Supervisory mission from the World Bank will be made in the week of May 14th?? 2007. The consultant is also expected to work in collaboration with other countries consultants who will be hired for this ESW. Time Frame Start day of contract: April 30th ??, 2007 Supervisory mission from World Bank: In the week of May 14th ??, 2007 First video conference: In the week of May 7th??, 2006 Workshop: In the week of June 11th, 2007 Second video conference: In the week of June 18th, 2007 Submission of final report: June 30th, 2007