Far from a rights-centred approach

Pilar Arcidiácono, Laura Royo
Centro de Estudios Legales y Sociales (CELS)

After the crisis of the 1990s model and the sudden advent of the political, social and economic crisis of late 2001 and early 2002, the phenomenon of social exclusion became radically more pronounced. All the policies implemented since that time, aimed at reducing poverty indicators, have displayed contradictory elements which cast doubt on their validity and viability. The rights of millions of inhabitants to a decent life have become hostage to the inefficiency of these public policies.

Since 2002 –within the context of the worst socioeconomic crisis of the last few decades –a series of social programmes have beenimplemented which are still in force today. An attempt will be made here toreview these programmes from a rights-based perspective, analyzing thestrategies they use to overcome poverty and their main characteristics in thelight of human rights.

During the 1990s, the policies dictated by international financial institutionswere vigorously implemented in the country, to such an extent that after a fewyears they transformed the way the economy operated and the conception of socialpolicy itself which was divorced from the guiding principles of
human rights.

Towards the end of 2001 and early 2002, a severe institutional, political,social and economic crisis broke out which led, among other things, to the fallof the government, the abandonment of the currency convertibility system and asudden rise in the levels of poverty and extreme poverty, which in October 2002affected 54.3% and 24.7% of the population, respectively.

Within this context, policies of income transfer were put into effect in thecountry. The Unemployed Heads of Household Plan (PJJHD) became the first incometransfer programme to be widely applied. Subsequently, between 2003 and 2004,the national government created new social programmes, among them the SeniorCitizens Programme (PAMM) and the Social Inclusion for Families Programme (PF).


The Unemployed Heads of Household Programme

The PJJHD emerged in April 2002 within the framework of the extremely severeeconomic and institutional crisis. It consists of a subsidy of ARS 150 (USD 47)to unemployed heads of households with dependent children under the age of 18.In exchange, the head of household receiving the subsidy is required toparticipate in training or in community or productive activities. According todata from the Ministry of Labour, Employment and Social Security, in June 2003the number of recipients of the programme amounted to 1,992,497 people. Later, as will be seen below, there was adrop in this number, due to the option which became available of transferring tothe Family Programme. It should be notedthat registration in the programme closed on 17 May 2002; therefore, it is nolonger possible to include new recipients, except by court order.

With regard to the commitment demanded of the head of household, this is not inaccordance with the idea of a ‘right’ established by the government,inasmuch as the consideration of a right should not include a priori a demand for ‘something in return’.

As regards the amount of the subsidy – ARS 150 (USD 47) – it is evidentlyinsufficient to satisfy the basic food needs of a family and much less does itallow access to the essential services which guarantee an adequate standard ofliving. The exclusion of members of society from access to goods and socialservices is not resolved merely by the distribution of economic aid in the formof cash or vouchers; it requires a series of coordinated actions to deal withsuch a complex problem as a whole.

Likewise, in establishing the same undifferentiated amount for every unemployedhead of household, the PJJHD made no allowances for variations in thecomposition of the family group. Thus, the larger the number of persons in ahousehold, the smaller the effect of the subsidy in terms of achieving theestablished objectives, which violates the right to equal treatment under thelaw.

Furthermore, the programme does not include any procedures for administrative orlegal claims in cases where applications are rejected. The executive branchrules only establish the municipality’s obligation to inform applicants of theapproval or rejection of their request, but do not provide information regardingexisting means to appeal a decision. This evidently suggests that the state’sintention is to discourage the presentation of claims and keep the plan’sallocations under discretionary management. Despite the lack of establishedclaim procedures, during the last few years numerous appeals have been filed inwhich people who fulfil the conditions required by the regulations demanded tobe included in the PJJHD and have challenged the closing of registration (arestriction which was not anticipated by legislation). It is important toemphasize that all the cases brought to court have resulted in a decisionfavourable to the claimant. However, the government has neither reviewed itspolicy nor reopened registration in the programme.

It therefore can be seen that, in practice, the programme is not universal andconsequently causes arbitrary inequalities among different people who sufferfrom the same extreme social marginalization. The programme has been limited toone sector of the population – unemployed heads of household with children,who were able to register prior to 17 May 2002 – and it was only broadened toinclude persons over 70 years of age who live in a certain part of the countryalmost a full year after it was put into operation. The rest of the populationin equally needy situations has been excluded.


Senior Citizens Programme

The PAMM, created in 2003, is intended for persons over 70 years of age, in astate of social vulnerability, who lack the protection of contributory ornon-contributory social security. Applicants must show that they possess noassets, income or resources which allow them to subsist, that neither they northeir spouses are sheltered by any social security scheme, retirement fund ornon-contributory system whatsoever, and that they have no relatives who arelegally obliged to provide them with food, or that if they do, they are unableto do so.

At present, the pensions provided through the programme amount to ARS 211 (USD67) a month, and are complemented by health coverage through the Federal HealthProgramme (PROFE). When the PAMM was launched , the minister of Social Development stated that thisprogramme would cover a total of 350,000 persons over 70 years of age. However,in late 2004, the old-age pensions system only covered 63,319 persons.

As regards the principle of universality, it is worth mentioning that until thePAMM was put into effect, the allocation of pensions was subject to budgetaryrestrictions and a new benefit was only granted after an existing beneficiarywas removed from the register. As a consequence of the creation of the PAMM, thephysical target for the budgetary fulfilment of non-contributory old-agepensions was raised, from 38,253 benefits granted in the fiscal year 2003 to237,253 in the following period. However, a pronounced under-fulfilment of thesephysical targets was recorded in 2004, when a total of only 62,820 beneficiarieswere covered, and in the budget for 2005 allocations were limited to 111,098pensions, that is, 53% less than anticipated in the previous year’s budget.

Another questionable element from the point of view of rights is the procedureused to incorporate persons to the PAMM. Potential recipients must apply inperson at the Personalized Attention Centre corresponding to the applicant’splace of residence, but as geographic distribution of these centres is uneven,in many cases the applicant must travel a long way to initiate the procedure,thus incurring the transport expenses that this implies.


Social Inclusion for Families Programme

The PF is a social programme implemented by the Ministry of Social Developmentsince October 2004 with the aim of “promoting the protection and socialintegration of families in a situation of social vulnerability and/or risk, inthe areas of health, education and the development of capabilities, making itpossible for them to exercise their basic rights.” Theonly persons who can benefit from this programme are those who, fulfilling allof the requirements, choose to transfer from the PJJHD to the PF, and only inthose areas in which the programme is in operation.

Basically, the programme has two components:

A non-remunerative income which consists of a subsidy to families in a potentialsituation of poverty, with children under the age of 19, and which, in return,stipulates that the health of pregnant women and children should be attended toand that children should remain within the educational system.
Family and community support in terms of education, health, employment trainingand community development.

The official recipient of the subsidy must be the mother and her educationallevel must be lower than a complete secondary school education. Therefore, ifthe PJJHD recipient was a man, the right to the subsidy must be transferred to awoman, except in cases in which men are single parents. As regards thenon-remunerative income, the amount of the subsidy is related to the compositionof the family group. Mothers with one dependent minor receive ARS 155 (USD 50);with two dependent minors, ARS 185 (USD 58); three, ARS 215 (USD 68); four, ARS245 (USD 78); five, ARS 275 (USD 87) and six, ARS 305 (USD 97).

In October 2004, the national government established a procedure for theMinistries of Labour, Employment and Social Security and of Social Developmentto classify recipients of the PJJDH according to their ‘employability’. Itwas proposed that persons considered ‘unemployable’ should be transferred tothe PF. From the point of view of equality and non-discrimination, labellingpeople as ‘employable’ or ‘unemployable’ is a cause for concern, sinceit is discriminatory. As can be concluded from the description of thesocio-demographic characteristics of the recipients, this group would includenot only persons over the age of 60, but also women with family responsibilitieswhose inactivity may be associated to difficulties in resolving the tensionbetween remunerated labour and non-remunerated family care, in a context inwhich there are no specific policies to solve the problem of child care, exceptto become ‘unemployable’. For them, the government suggests the PF.

Moreover, in conditioning income transfers on other demands – related tochildren’s education or health – the programme is based on the premise,though not explicitly, that it is necessary to generate a commitment in poorpeople with regard to overcoming their poverty, as well as supposing that thepoor do not necessarily know what is best for themselves and for their families.Thus, many programmes initially incorporate women as resources rather than asbeneficiaries, supposing, by means of this procedure, that a commitment towards‘social participation’ will be generated in them. It should be underlinedthat in terms of the minimum content of the right to an adequate standard ofliving, the amount established is insufficient to satisfy the basic food needsof the recipient family group. Likewise, to consider that the transfer isincompatible with receiving any other income in the family group, beyond theamount of a minimum, vital and changeable salary, is questionable, inasmuch asthis amount is inferior to the amount of the Total Basic Needs Basket(approximately USD 147 for a family of five, two adults and three children).

The design and implementation of the PF can also be analyzed in the light of theprinciple of universality. As regardsthe geographical extension of the programme, it should be noted that up to May2005, its application was limited to 17 provinces in the country (out of 23),and did not cover the total population of the provinces, but was limited to 74municipalities. There were no reasons to justify the exclusion of persons who,although they fulfilled the requirements established by the regulations, couldnot be included in the programme, merely because they lived in one of theprovinces or municipalities which had not been selected.

Finally, like the PJJHD, the PF does not provide procedures for administrativeor legal claims for the recipients; they can only make ‘enquiries andcomplaints’ in different ways. In addition, in order to effect the transferfrom the PJJHD to the PF, people are obliged to sign a letter of commitmentwhich, among other things, states that if the commitments undertaken are notfulfilled, the recipient may be struck off the PF, which could also happen oncethe PF’s period of implementation and development is at an end, and thatfurthermore, if for any reason the beneficiary stops receiving the benefit, noclaim is allowed. The fact that this ‘letter of commitment’ must be signedmakes it clear that the person receiving the subsidy cannot be considered as abearer of rights.

Final thoughts

Despite the significant size and scope of the social programmes put into effect,the reduction of poverty between 2002 and 2006 can hardly be attributed to theseprogrammes, whose only contribution may be described more as ‘relief’ thanas a strategy to ‘overcome’ poverty.

The programmes analyzed do not adequately respect the standards of human rightsin general. Specifically, they display certain weaknesses in terms of ‘minimumcontent’ of acceptable standards of social rights and in particular withregard to the right to equality, non-discrimination, universality and access tojustice. Therefore, their design and implementation are conceived from aperspective of benefits and not rights.

We believe that the problems affecting social integration are problems relatedto rights – social and political – which are linked to the construction andreproduction of citizenship. In consequence, social insertion strategies must,on the one hand, adopt a format for the transfer of economic, social, politicaland cultural resources tending to strengthen the social networks of those whoare currently excluded, in order to ensure their development and socioeconomicand political autonomy; and, on the other hand, ensure political andinstitutional characteristics in the government and in state actions which areaccessible and open to social preferences and control. Essentially, it is amatter of creating conditions for a citizenship which is based on respect andthe strengthening of individual and social rights.

References

Abramovich, V. (2006). “Una aproximación al enfoque de derechos en lasestrategias y políticas de desarrollo”. Revistade la CEPAL, No. 88, April. Santiago de Chile: ECLAC.

CELS (2004a). “Políticas públicas y garantía de derechos sociales: caminosparalelos, realidades opuestas”. In DerechosHumanos en la Argentina. Informe 2004. Buenos Aires: CELS, Siglo XXI, CatálogoEditores.

CELS (2004b). “Plan Jefes y Jefas. ¿Derecho social o beneficio sinderecho?” Buenos Aires: CELS.

CELS (2004c). “Las pensiones por vejez frente al derecho a la seguridadsocia”. Buenos Aires: CELS.

CELS (2007a). “Programa Familias por la Inclusión Social entre el discurso dederechos y la práctica asistencial”. Buenos Aires: CELS.

CELS (2007b). “Las políticas para la disminución de la pobreza implementadasen la Argentina 2002-2005. Un análisis de su diseño, implementación yexigibilidad desde la perspectiva de derechos humanos”. Mimeo, January.

Pautassi, L. and Campos, L. (2007). “Programas sociales yacceso a la justicia. Del discurso de derechos a la práctica asistencial”. InDerechos Humanos en Argentina. Informe2007. Buenos Aires: Siglo XXI.

The authors are, respectively, director and member of the CELS Economic, Social and Cultural Rights Programme. This report was written on the basis of the following study: Las políticas para la disminución de la pobreza implementadas en la Argentina 2002-2005. Un análisis de su diseño, implementación y exigibilidad desde la perspectiva de derechos humanos, by Luis E. Campos, Eleonor Faur and Laura C. Pautassi, which received a UNESCO prize as part of the Small Grants Programme on Poverty Eradication: Building national capacities for research and policy analysis.

Human Rights International Treaties
ABCDEFGHI
ILO Conventions
C 87 C 98 C 105 C 100 C 111C 138 C 182
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