Enforcement of Judgments on Economic, Social and Cultural Rights: Towards A Theory and Practice

Enforcement of Judgments on Economic, Social and Cultural Rights: Towards A Theory and Practice

Concept Note for Symposium and Book (15 December 2009)

ESCR-Net Adjudication Working Group

1. Background

In the last two decades, there has been a remarkable rise in the numbers of economic, social and cultural rights (ESC rights) decisions issued by judicial bodies. Judgments can be found in all regions, all types of legal systems and covering all aspects of the rights. This trend is most pronounced in Latin America, South Asia, Eastern Europe, South Africa and less so in sub-Saharan Africa, the Middle East and South-East Asia while the situation is varied across and within Western countries (Langford, 2008; Coomans, 2006; Rossi and Filippini, 2009). The phenomenon is only likely to accelerate with a growing use of litigation strategies amongst civil society, the continued constitutionalisation of ESC rights and the recent adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, which is also likely to prompt domestic courts to take the topic more seriously in order to avoid cases being appealed internationally.

However, in many jurisdictions there are some or many judgments that remain unimplemented, although the extent to which there is a systematic or isolated problem appears to differ. For example, Hossain and Byrne (2008:143) note that South Asian cases have provided a rich and varied jurisprudence but that “Many significant judicial decisions are not implemented fully or even in part. Advances in jurisprudence urgently need to be matched by action on the ground to ensure compliance of all concerned authorities with the judgments and orders of national courts, to ensure effective enforcement and enjoyment of economic and social rights.” In South Africa and Latin America, compliance levels have been comparatively higher but practitioners have faced myriad obstacles and delays in the implementation phase. In addition, there have been debates as to the level of implementation of some cases such as the Grootboom case from South Africa (Cf. Liebenberg, 2008 and Berger 2008). In Europe there have been struggles to implement some decisions concerning Roma minorities and migrants (MSF, COHRE and ERRC, 2007). The deficient implementation of decisions has also been pointed out as a serious problem in the Inter-American and African System of Human Rights (CEJIL, 2002; Wachira and Ayinla, 2006). The lack of implementation affects directly and most prominently the victims of the case but it also challenges the relevance and impact of human rights law as a useful framework for ensuring economic and social justice.

A second challenge is that some of the judgments are now yielding more complex remedies which have been expected when positive obligations of ESC rights are involved. In Latin America, recent assessments by both practitioners and scholars have identified a growing trend towards court rulings establishing complex remedies to address structural violations of human rights, from the situation of internally displaced people in Colombia (Rodríguez-Garavito and Rodríguez Franco, 2009) to that of prisoners in overcrowded jails in Argentina (CELS, 2009; Abramovich, 2009; Fairstein, Kletzel and García Rey, 2009; Maurino and Nino, 2009). Complex remedies are not necessarily a new phenomenon in human rights or law generally (Roach, 2008). In the US there have been many lessons learnt in implementing groundbreaking decisions on civil rights but also racial segregation and financing of education (Albisa and Schultz, 2008).

In the growing literature on judicialisation of ESC rights the research has been largely dominated by studies that have primarily taken up the theoretical question of how to justify the judicial application of ESC rights in terms of democratic political theory (Vierdag, 1975; Fabre, 2000; Dennis and Stewart, 2005; Bilchitz, 2008) or the legal question of systematizing, refining, critiquing and challenging legal standards and doctrines on ESC rights in order to promote their application by national and international courts and governance agencies (Gargarella, Roux and Domingo, 2006; Langford, 2008; Abramovich and Courtis, 2001; Dugard and Roux, 2006; Young, 2008, ICJ, 2008). While these fields are themselves still in development, the least advanced area has been studies on the implementation and impact (both positive and negative) of judgments, although the field is quite advanced in the United States (Horowitz, 1977; McCann, 1994; Rosenberg, 1991) and some comparative studies have been made of impact in the field of ESC rights (Gauri and Brinks, 2008, Langford, 2003 and partly Langford, 2008), some country studies (e.g. Heywood, 2005; Abramovich and Pautassi, 2009) and civil rights in Europe (see Basak, 2008). Even less studied are the reasons for implementation or non-implementation of particular decisions, how impact is maximized and what strategies have been most effective in this regard.

Thus, while the contributions on democratic theory and law have made considerable progress towards the conceptual clarification and actual enforcement of ESC rights litigation, the emphasis on the democratic legitimacy and production of ESCR rulings has tended to direct attention away from an equally important matter: the implementation of such rulings. As Gauri and Brinks (2008: 20) conclude, “this oversight may stem from theoretical or practical reasons –either because the last step [postdecision implementation] appears as an iteration of the first [i.e., judicialization of an ESCR case], or because it poses daunting research difficulties … or both— but it is a crucial determinant of the extent of legalization in a given policy area”. As a result, both activists and scholars have devoted relatively little time to discussing pressing practical questions that are fundamental to the realization of ESCR. What happens after a court issues a ruling that is favorable to the cause of ESCR? How are its orders implemented or ignored by the government and other state and non-state actors? Which are the factors that have allowed for implementation and those that have prevented it or hindered it? Ultimately, do court interventions in ESC rights cases make a difference to the cause of mitigating inequality and social injustice?

As courts in different parts of the world have become more receptive to ESCR litigation and unimplemented or partially implemented judgments have proliferated, these questions have become central to the agendas of NGOs, social movements, judges, public officials and other social and political actors interested in promoting ESCR. This became evident, for instance, in discussions among members of ESCR-Net’s Working Group on Adjudication, on the occasion of the ESCR-Net 2009 International Strategy Meeting on ESC rights in Nairobi (Kenya). Indeed, the Working Group selected the issue of implementation of judgments as one of its core strategic areas of work for the next few years. From the discussions at the meeting, the need of developing a transnational research and advocacy agenda on the topic in order to ensure that the right obstacles and right type of strategies are identified became apparent, particularly given the legal and political complexities and differences across systems. Given the embryonic nature of the problem, it was also emphasized the need for sharing and learning from the developments in different jurisdictions as well as from the strategies and actions designed to address the situation. In order to fulfill this mandate and shed new light on this analytical and practical blind spot, ESCR-Net, Dejusticia (Center for Law, Justice and Society, Colombia) and the Norwegian Centre on Human Rights will convene a two-day workshop in Bogota (May 2010) that will bring together human rights lawyers, activists, scholars and constitutional judges from different parts of the world. The workshop, hosted by Dejusticia and funded by the Ford Foundation, will combine dialogue on conceptual and empirical issues with discussion on joint strategies for promoting the implementation of ESCR rights.

To that end, panels will revolve around a series of papers that will be commissioned to practitioners and analysts from different regions. To foster cross-fertilization among regions and types of expertise, discussants will be selected for each panel to comment on papers and provoke debate among participants. Papers will be revised to incorporate the debate at the Bogota workshop and compiled by the organizers into a volume to be published (in Spanish and English) and widely disseminated among human rights circles around the world. For the English version, the book editors will approach Cambridge University Press and the Spanish version will be published by Dejusticia. In order to foster structured comparisons and a fruitful conversation, this document further lays out the guidelines for paper authors, i.e., the research questions, the variables of interest, methodological approaches, the time line and formatting details. A draft Programme for the Bogota meeting is attached as an annex.

Research questions

Since the workshop and the publication pursue both analytical and strategic goals, they are guided by two questions, one explanatory and one normative in nature.

1. What explains the level of implementation of a given ruling on ESCR?

The central outcome to be explained in the papers is the reasons for the degree of implementation of a court decision (or set of decisions) regarding ESCR. This will require first a yardstick for measuring the level of implementation which is the set of orders issued by the court itself. Were they implemented fully, partially, or not at all? It will then require an assessment of the different variables (see below) that may explain why a decision was implemented or not.

The nature of implementation will vary considerably depending on the type of the legal order. In some cases, the order may only be the ordering of compensation and thus compliance may be simple in form, although this does not necessarily mean compliance naturally follows. If the orders are more involved, e.g. structural reform of a service or the roll-out of a new program, then implementation is much more involved. Thus, the nature of the order, including if it entails negative or positive obligations should be clearly identified and reflection should be made on whether the complexity of the order makes any difference.

Equally, it is important to note that implementation is a different concept than impact. Impact means the total influence or effect of a decision which may be more than its actual implementation or not. It may be greater than mere implementation of the order (e.g. through additional indirect effects) or it may be overall negative due to unintended consequences. Although the focus of the papers and the discussion will be the execution of court orders (i.e., the direct, instrumental effects of ESCR rulings), authors and discussants should also consider other types of effects (including unanticipated as well as counterproductive effects of litigation). In other words, although the emphasis will be on the implementation of rulings, some attention will be paid to their overall impact.

Although there is a wide range of variables that affect the level of implementation of a given ruling, to allow for a focused and comparative discussion of country case studies, we would like papers to consider the following three sets of explanatory variables:

1.1.Legal variables: this set of factors relate to rules and practices of the applicable legal system, such as:

Ø Rules regarding access to courts and legal processes to claim the recognition of social rights (standing, class actions or other types of collective actions, level of institutionalization of collective actions, etc.)

Ø Rules and practices regarding remedies (e.g., types of remedies available and used, the strength of the remedial order (e.g. ‘should’ or ‘must’, consequences if not followed), existence of complex enforcement, structural remedies, procedures for the design of remedies and execution of court decisions

Ø Rules and practices regarding court’s supervisory jurisdiction (e.g., court’s continued competence to follow-up on ruling implementation)

Ø Rules and practices regarding follow-up mechanisms (e.g., follow-up hearings, submission of periodic reports by government agencies and civil society organizations, etc.)

Ø Rules and practice regarding recognition of ESC rights in national constitution and laws

Ø Rules and practice regarding domestic status of international law and incorporation of international ESCR standards into the national legal system and regarding application of international and comparative law by national courts

Ø Whether the case is individual or collective/structural in nature and involves positive or negative obligations

Ø Whether the fact of being a case on economic and social right (and not a more traditional civil and political rights case) could have placed additional hurdles for enforcement

Ø Common law vs. civil law systems

1.2.Political variables: this set of factors relate to the characteristics of the state apparatus and the political system, such as:

Ø Capacity of the state apparatus to implement ESC rights rulings

Ø Type of political system (democracy v quasi/transitional democracy, authoritarian, unitary vs. federal, etc.)

Ø Institutional arrangements ruling relations between the judiciary, on the one hand, and the executive and the legislature, on the other.

Ø Characteristics of judges

Ø Whether the case was against the executive, local authority or non-state actor or affected international actors

Ø Whether the case involved different types of public authority and different jurisdictions (federal, provincial and/or municipal)

Ø Extent of budgetary and economic resources involved in the solution of the issue

Ø Whether the case was pro or anti pro-majoritarian in terms of public opinion

Ø Other broader ESC characteristics of country such as level of social inequality, religiousity etc

1.3. Civil society variables: this final set of factors relate to patterns of mobilization of the legal system by social movements, NGOs and other civil society actors. Among such patterns are:

Ø Structure and level of cohesion of civil society coalitions litigating ESC rights cases

Ø Trajectory of legal mobilization (e.g, civil society actors’ tendency to resort to courts as opposed to the executive or the legislature in order to advance ESCR)

Ø Movements’ and NGOs’ repertoire of contention (direct action, litigation, international human advocacy, etc)

Ø Transnational collaboration with similar civil society actors

Ø Characteristics of litigants of the case (organization or individual lawyer, level of prestige and trajectory of organization or lawyer, coalition of organizations, partnership bewteen affected persons and/or social movements and NGOS/lawyers, etc)

Ø Level of participation of affected people/social movements in the case and level of articulation between legal and social and political strategies

Ø Access to donor funding

This list of potential variables is long and authors are not necessarily expected to cover all but should be aware of the possible range of explanations. Authors might also seek to test the role of a particular variable to see if it holds over a selection of cases.

2. Based on the answer to the above question, what legal and political arrangements and strategies have been able and are likely to promote the implementation and deepen the impact of favorable rulings on ESC rights?

This normative question seeks to draw lessons from the empirical studies for the practical task of designing and pursuing collaborative, international strategies to promote implementation of ESCR rulings. Obviously the nature of the causes of enforcement in a particular context or generally will determine the types of strategies that may be relevant. It may be helpful for authors to also identify strategies that fit different situations (for example, where the issue is one of institutional capacity as opposed to political will) or whether different types of strategies (coercive, incentives, dialogical/persuasive, ensuring overlapping interests with elites, lobby for new legal frameworks or monitoring and enforcement institutions) may be more conducive to enforcement (See, for example, Chayes and Chayes, 1993; Roach and Budlender, 2005, Goldsmith and Posner, 2005).

Methodologies

As can be readily seen, the research question calls for empirical research on the post-decision stage, including interviews with key actors of the case, analysis of quantitative data on implementation (when available), and other qualitative and quantitative techniques. Given the focus of the workshop and the publication, all the papers will be based on interdisciplinary research combining legal analysis with empirical work. Papers and methodologies will fall within three types:

· National case studies: comparative, mostly qualitative and detailed analyses of 2-4 key cases on ESC rights decided by national courts, showing variation on the level of implementation and variables of interest.

· Quantitative national surveys of a large number of implementation of rulings on a given right (e.g., housing, health, education) or different rights

· Regional case studies: comparative, mostly qualitative and detailed analyses of 2-4 key cases on ESCR decided by regional human rights courts (e.g., the Inter-American Court of Human Rights and the European Court of Human Rights)

In choice of the cases, it is important to examine to what extent a case may be atypical and thus whether the conclusions may be generalisable for a whole country/region or judgments on a particular right or sets of rights.

Editorial guidelines

Manuscript length: 10,000-12,000 words

Languages: English or Spanish

Deadlines: Abstract: January 30, 2010.

Paper (shorter version): April 15, 2010

Citation: Social Science Method for References as per this note.

Font: Times New Roman, 1.5 spaced paragraph

Headings: To be bolded and numbered 1, 2, 3

Sub-headings: To be bolded and italicized as 1.1, 1.2, 1.3 etc

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