2017
Measuring Compliance
679
That nondiscrimination is a fundamental human rights principle has not
gone unacknowledged. Indeed, it could potentially affect the substantive
interpretation as to whether the duty-bearer is compliant or in violation to
a significant extent.
Recall the scale of 0 to 1 introduced in Section III. When the test reveals full attainment of the welfare basket is impossible within the given
resource set (i.e. is <1), it is not sufficient to draw full conclusions with
respect to compliance or violation from looking at the equivalence, or difference, between the expected and actual attainment levels only. Rather,
the duty-bearer has an additional obligation to justify that its reasoning for
prioritizing the proportion of its community for whom the basket has been
attained over the proportion for whom it has not is adequate and reasonable.
The question of whether a duty-bearer has complied with its obligations
under impossibility conditions must, therefore, be examined in light of the
means through which the result has been produced. For example, who are
the excluded? Are they women, children, or people of a certain ethnicity?
Are the individual elements within the welfare basket represented fairly or
are there some goods, services, and/or facilities that are over-represented
while others are completely ignored? If a further assessment reveals that the
welfare basket has been provided according to sound criteria, the signal
of compliance holds. If, on the other hand, the duty-bearer’s justification
for denying access to the welfare basket is deemed unreasonable, then the
signal of compliance folds.
Discrimination in social outcomes could be incorporated into the
econometric model if it could be measured systematically over space
and time. However, since discrimination tends to manifest along multiple
lines (class, race, gender, for example), it is not amenable to capture by a
one-dimensional measure. And even if it were amenable to capture, it is
unlikely that sufficiently disaggregated data be available to capture it with
any validity or reliability. Obviously, the signal of compliance or violation
would need further in-country analysis to assess whether it is in fact a good
measure of social rights fulfillment. But, for now at least, this signal and
the methodology through which it is produced is a clear move forward
over existing approaches that attempt to deal with the maximum available
resources dilemma. Economics certainly has something to offer.
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