ESCR-Net Caselaw Database: A database of ECONOMIC, SOCIAL AND CULTURAL RIGHTS related jurisprudence, cases and other decisions

                

 

WELCOME to the ESCR-NET CASELAW DATABASE, a collaborative project developed under the leadership of the Centre for Legal and Social Studies (CELS) in Argentina, the Geneva-based Centre on Housing Rights and Evictions (COHRE) and the Social Rights Advocacy Centre (SRAC) in Canada, and in collaboration with many other groups and individuals working to advance economic, social and cultural rights (ESCR) throughout the world. 

THE JUSTICIABILITY OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ESCR)

Proceedings before domestic courts, administrative tribunals, international judicial and quasi-judicial bodies and other legal entities are key avenues through which the implementation of ESCR may be advanced. Human rights defenders and advocates are increasingly addressing life-threatening and other serious situations that relate to violations of ESCR: for example, the Treatment Action Campaign case is estimated to have saved tens of thousands of lives in South Africa by ensuring access to anti-retroviral drugs to pregnant woman living with HIV/AIDS so as to prevent mother-to-child-transmission of the HIV. In other cases, by activating judicial or quasi-judicial bodies evictions have been prevented or children have gained access to schools. Legal actions - especially when complemented with broader social mobilization, political activism and media campaigns - are important tools that may be employed to save or improve the lives of many people. The ESCR-Net Caselaw Database contains examples of instances in which legal strategies have been used successfully to claim ESCR at both the international and national levels.

Advocates seeking to litigate ESCR are faced with a number of challenges. Some of these challenges are similar to those that must be overcome by advocates seeking to bring cases involving civil and political rights (for example, the difficulty of clearly determining the definition of broad open-ended rights such as the freedom of expression or the right to social security).Others relate to historical or circumstantial characteristics (for instance, inadequate legal remedies to adjudicate these rights or unwillingness on the part of judges to address ESCR related claims).

Recognition of these challenges, however, should not be confused with the false notion that ESCR are not justiciable: that such rights are incapable of being claimed through judicial means. Nor do they imply that ESCR should not be enforced by courts in the same manner as civil and political rights. The cases in this Database - and many others elsewhere - confirm that economic, social and cultural rights, like all other human rights, impose a series of obligation (both positive and negative) upon States and that courts and other adjudicative bodies may determine, on a case by case basis, whether the rights have been violated, either by state action, inaction or a combination of both.

ESCR advocates are constantly devising innovative legal strategies to enforce ESCR in various legal, political and social contexts, sometimes directly arguing a violation of these rights, other times claiming them as components of civil and political rights such as the right to life, security of the person, or the right to freedom from discrimination.  The Caselaw database makes ESCR-related pleadings, commentary and decisions available to a wide audience of ESCR activists and defenders from a range of countries, legal traditions and languages (Spanish and English).In doing so, it serves to facilitate the exchange of information and strategies.   

Our GOALS are:

• to encourage discussion of crucial challenges for ESCR advocacy and to inspire joint projects and actions to address those challenges

• to disseminate tools for a rights-based approach to economic and social justice, and to encourage the use of legal strategies as valid and effective means for claiming economic, social and cultural rights

• to increase collaboration and facilitate the exchange of information among NGOs, community-based organizations and other civil society organizations working towards claiming the fulfillment of economic and social rights

The database is a work in progress and we hope to develop it further with the involvement of interested ESCR advocates and organizations.

Get involved!

Please subscribe to the justiciability listserve  to send proposals, new cases, and information or share strategies with other ESCR advocates interested on ESCR enforceability.   

Please contact us at selias@escr-net.org or write to the justiciability group if you:

• are interested in getting involved in this project

• have additional information on these or other cases or translations of legal documents or secondary documentation

• know of other important cases that should be added

• want to share new strategies to adjudicate ESCR·or

• have proposals for joint actions and project on ESCR adjudication.

How do we select the cases for the Database?

• Our idea of "caselaw" goes beyond judgments in the traditional court-focused sense. We include decisions of courts, administrative tribunals, international judicial and quasi-judicial bodies, review bodies of international financial institutions, national human rights institutions and other legal entities.

• For the selection of the cases and decisions we have considered the (i) binding force of decision (ii) level of the court/decision-making body (iii) nature of the decision (iv) significance of the case for ESCR advocacy (v) precedent value (vi) the nature of the order and (vii) the possible uses of the decision by advocates in other countries.

• In general, we have selected cases which address critical issues with respect to the status or enforceability of ESCR in a country or region or which relate either directly or indirectly to a right recognized in the International Covenant on Economic, Social and Cultural Rights (ICESCR).

• Cases may also address the status of international human rights law more generally in a domestic legal system. They may demonstrate or establish the overlap between civil and political rights and social and economic rights, or they may rule on the positive obligations of governments to address the needs of disadvantaged individuals and groups.

• We are particularly interested in cases which deal with issues frequently encountered by ESCR advocates. These include judicial deference, evidentiary issues, standing of affected constituencies or the nature of appropriate remedies. Decisions which may be of use to others are a priority. We are also including some of the seminal cases in the area of ESCR which have been and are likely to be referred to in subsequent cases.

• Women, children, the elderly, disabled persons and other vulnerable groups are at greatest risk of experiencing fundamental violations of ESCR. However, they are often denied legal protections or access to courts. Thus, the ESCR claims of these groups are a key element of the database.

What is included?

There are currently 68 cases in the Caselaw Database.

For each case you will find a synopsis in English and Spanish which includes the (1) title of case (2) country where the case was decided or to which the decision applies (3) forum that decided the case and date of the release of the decision (4) nature of case (5) a summary of the case focusing on what the court decided or the order issued (6) outcomes of the case, including issues of enforcement (7) general information on the groups involved on the case and (8) what we considered to be the significance of the case for ESC rights advocates and claimants.
 
For the majority of cases, we have included relevant legal documents such as the judgments, legal briefs or copies of orders. Most of such documents are only provided in their original language, except where existing translations were already available. Unfortunately at this time we do not have the resources to undertake translations of these documents.

With the aim of contextualizing each case, we have provided a compilation of secondary literature. As far as possible we have made all secondary information available online as either a downloadable file or a webpage. However, where this was not possible, we have included a bibliographical reference for the corresponding article or document. As with legal documents most of the secondary literature is only available in the original language, except where existing translations were already available. If you have translations for any of the legal documentation or the secondary literature that you would like to share please contact us.

Work in Progress...

The database is a work in progress and does not claim to represent an exhaustive compilation of important ESCR cases. We hope to take direction from practitioners and affected constituencies as to what the critical issues are in different countries and regions and to benefit from local and regional expertise in further developing the database. There are gaps in terms of regions, constituencies, themes and areas of law. We look forward to working with the members of ESCR-Net and other human rights advocates to fill in the gaps and to hearing about significant cases and issues that can be added.

We wish to express our thanks and appreciation to all the advocates, researchers and rights claimants who contributed to the creation of this database.