ADJUDICATION AND ESCR - December 2009
Campaign for the Ratification and Implementation of the Optional Protocol to the ICESCR-Justice NOW! Ratify to Protect all Human Rights
- Upcoming Elections of the Committee on ESCR - Get involved!
The International NGO Coalition for an Optional Protocol* (NGO Coalition) has issued a call addressed to civil society to draw its attention to the upcoming elections of the Committee on Economic, Social and Cultural Rights (ESCR Committee). The NGO Coalition urges civil society to get involved to ensure the election of independent members with solid ESCR expertise. The terms of 9 of the 18 members of the ESCR Committee will expire on 31 December 2010. In October 2009, States parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR) were asked to nominate new candidates for the ESCR Committee. The deadline for nominations is January 26, 2010. Elections will take place in April 2010. The elected individual members will have an impact on the overall quality and effectiveness of this body. With the Optional Protocol to the ICESCR (OP-ICESCR) now in place, the strength and capacity of the ESCR Committee becomes even more critical. The NGO Coalition believes that it is key to target efforts at both the national and international levels to overcome the shortcomings of an election process which in many instances are opaque, and candidates who too often hold executive positions in their governments with little or no relevant experience.
For more information on the process, the timeframe, and how to get involved, please visit: http://www.escr-net.org/actions/actions_show.htm?doc_id=1067615
The list of candidates nominated will be available at: http://www2.ohchr.org/english/bodies/cescr/elections2010.htm
Get involved!
Please let us know if you have been able to take action and if so, what the response of your government has been; any interest in becoming involved in election activities in your country; information on activities currently taking place, targeting parliamentarians, or media; and information about your government's nominee. Please send your feedback to Suad Elías at: OP-Coalition@escr-net.org or +1 (212) 681 1236 Ext 26.
- Input on the Process of Adoption of the Rules of Procedure to the OP-ICESCR
The Committee on Economic, Social and Cultural Rights (ESCR Committee) is in the process of adopting Rules of Procedure for the OP-ICESCR. A number of key issues that will be influential in determining the effectiveness and competence of the ESCR Committee's consideration of communications under the OP-ICESCR will be addressed in the Rules of Procedure.
The ESCR Committee started conversations on the Rules of Procedure in a meeting held in October 2009, prior to its 43rd session and will continue its consideration in its 44th session in May 2010. Recognizing the importance of considering the views of a broad range of NGO's involved in promoting the OP-ICESCR, Members of the Steering Committee of the NGO Coalition prepared a substantive paper based on developments in international law to support the adoption of rules which allow for progressive interpretation of substantive and procedural issues, such as interim measures, friendly settlements, reasonableness, amicus curiae and standing. The paper, titled Considerations of the International NGO Coalition for an OP-ICESCR in relation to the OP-ICESCR and its Rules of Procedure, was circulated among members of the NGO Coalition and groups with relevant ESCR expertise, and revised and streamlined by Bruce Porter and Donna Sullivan, both experts on ESCR and international law. The paper was then further discussed during a meeting held on September 24, 2009 with experts on adjudication of ESCR at the national and international level. The document was presented to the Committee for its consideration. Bruce Porter, in representation of the Steering Committee of the Coalition, met with Members of the ESCR Committee to further share and advance the position of the Coalition in relation to the rules of procedure and the interpretation of the OP-ICESCR. The document received very positive feedback and the Coalition is looking forward to continuing to contribute to the process of adoption of the rules.
The Coalition thanks all the organizations and individuals who devoted their time and experience to contribute to this process and to the Ford Foundation who generously funded this process and supported the Strategic Meetings described below. The Coalition also thanks the ESCR Committee and the Office of the High Commissioner for Human Rights (OHCHR) for allowing the NGO Coalition to present its considerations on this issue. To access the document and learn more about the contributors please click here. For a summary of the document in Spanish click here.
- Signature Ceremony of the OP-ICESCR and Advocacy within UN Missions and Foreign Ministries
The NGO Coalition has been actively engaging with foreign ministries and UN missions in New York encouraging State parties to the ICESCR to sign and ratify the OP-ICESCR. This work has been successful in advancing its aim of ensuring a strong number of signatures at the UN Signature Ceremony of the OP-ICESCR on September 24th. Reaching beyond our expectations, 29 countries have signed the Optional Protocol so far. One key advocacy action was an online petition launched by the NGO Coalition. The petition received the endorsement of over 30,000 people from all over the world and served as a key tool to encourage States parties to sign the OP-ICESCR and create awareness around the OP-ICESCR.
To see the list of those who have signed the OP-ICESCR, click here:
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3-a&chapter=4&lang=en
A number of representatives of the NGO Coalition attended the UN Signature Ceremony of the OP-ICESCR, and one representative was invited as a speaker to this official ceremony. Muthoni Wanyeki, current director of the Kenya Human Rights Commission spoke for the Coalition, stating the importance of the OP-ICESCR for millions of victims of ESCR violations all over the world and calling for universal ratification. Navanethem Pillay, United Nations' High Commissioner for Human Rights, said "The Optional Protocol closes a historic gap in human rights protection. It reaffirms the equal importance of economic, social and cultural rights with civil and political rights"
To read the full statement of the High Commissioner, click here: http://www.escr-net.org/news/news_show.htm?doc_id=1067602
- Strategy Meetings Organized by the NGO Coalition for an OP-ICESCR
The NGO Coalition organized a 3-day meeting from September 23-25, 2009, on the eve of the UN Signature Ceremony for the OP-ICESCR. It covered three over-arching themes related to the OP-ICESCR Campaign. The first day was devoted to strategizing on different components of the OP-ICESCR Campaign; the second day, as mentioned in the previous section, was used to get substantive feedback on the rules of procedure paper for its subsequent revision; and the final day consisted of a meeting of the Steering Committee of the NGO Coalition to decide on next steps for the Campaign. The meetings were extremely successful in that they allowed a wide range of stakeholders engaged in the development of the OP-ICESCR -approximately 30 participants from different regions- to come together and share and debate viewpoints on the campaign and the orientation of the rules of procedure.
The Coalition also co-organized a panel with the Center for Human Rights and Global Justice at NYU Law School entitled "Enforcing Economic, Social and Cultural Rights: The Hope and Challenge of the Optional Protocol", on September 23, 2009. The panelists for the event were Phillip Alston, Professor at NYU Law and Special Rapporteur on Extrajudical, Summary or Arbitrary Executions; Catarina de Albuquerque, Independent Expert on the Right to Water and former member of the Working Group on the OP-ICESCR and Bruce Porter, Social Rights Advocacy Centre and representative of the Steering Committee of the NGO Coalition.
If you are interested in supporting the Campaign for the OP-ICESCR or have any information in relation to your governments plan for ratification, please let us know. Please contact us at OP-Coalition@escr-net.org or at +1 (212) 681 1236 Ext 26.
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ESCR Strategic Litigation Project
Strategic litigation on economic, social and cultural rights (ESCR) issues was identified as a critical area of engagement for the Adjudication of ESCR Working Group emerging from the Nairobi meeting. Since that time, ESCR-Net has designed a project that attempts to address various critical aspects in the area of strategic litigation of ESCR which were identified in Nairobi. The Ford Foundation has generously agreed to fund several activities in this area, which are described below.
- Strategic Litigation Support for the Optional Protocol to the ICESCR
At the Strategy Meeting, it was pointed out that with the recent adoption of the Optional Protocol to ICESCR, there would soon be a need to support good cases at the domestic level that could be potentially taken forward under the new complaint mechanism in order to render positive precedents and provide attention to the process. Such pro-active engagement with national groups is particularly important due to the strict time limitation for submitting complaints after a violation has occurred. The objective of this project is to enhance collaborative efforts and shared strategies in the use of the OP-ICESCR, support organizations in countries that have ratified the OP-ICESCR to begin bringing cases forward and provide assistance and promote collaboration in the development of strategies and arguments. Two critical aspects of making this happen have been identified: developing a concept paper on the creation of a strategic litigation program and a guide to support the development of strong cases that can be brought forward as well as a workshop on strategic litigation under the OP-ICESCR in August 2010. In addition to ESCR-Net and the NGO Coalition for an Optional Protocol to the ICESCR, the Social Rights Advocacy Centre (Canada) and the Norwegian Centre for Human Rights (Norway) will be critical collaborators in this project. MERGE IN ONE PARA. It is important to note that this aspect of the project is considered to be in the development phase. We envision using the next year to think deeply and in consultation with relevant stakeholders on how this project and program can be structured, and then it will require follow up to find funding to implement the program on an ongoing basis in the years to come.
- Implementation and Enforcement of Economic, Social and Cultural Rights Judgments
The failure of authorities to speedily implement some judgements covering ESC rights was also noted as a major concern in Nairobi. In many jurisdictions, there were often a few high profile cases that were poorly implemented, while in some countries non-implementation of all human rights judgments are endemic. Cases dealing with positive obligations were particularly mentioned but it was noted that cases concerning negative obligations sometimes faced the same fate - a problem shared with implementation of some decisions in the field of civil and political rights. To support a move toward increased implementation, ESCR-Net with the lead of its member organizations Dejusticia (Colombia) and the Norwegian Centre for Human Rights (Norway) will organize an international workshop in May 2010, with litigation experts at the national and international levels, social movement groups and high profile judges to reflect on the bottlenecks and obstacles that impede implementation and factors that have allowed for implementation, exchange lessons from different jurisdictions and develop a campaign and strategies to improve accountability for implementation at the national level. Litigation experts will be asked to write papers that will inform the discussions at the workshop and that will, in turn, form the basis of a publication in Spanish and English. During this meeting, participants will also define one critical action to be taken during the proposal period to further the project goals.
- Support for Submission of Amicus Curiae
There is also a need to build capacity and facilitate reciprocal support among groups in ESCR litigation processes. At the International Strategy Meeting, submission of amicus curiae was highlighted as a significant tool towards this aim. Amicus curiae can provide a useful advocacy and educational tool within national and international adjudicatory processes and also build solidarity and knowledge between organisations and litigants. It is also a particularly important strategy in those jurisdictions where judges are reticent to intervene in these types of claims. ESCR-Net will create a virtual forum for requests for amicus support, develop a pool of experts interested in supporting the submission of amicus, and a process for responding to particular questions as well as coordinating expert input in individual cases as needed. This forum and exchange process is currently in development. Further information will be made available moving forward.
Get involved!
Please contact Rebecca Brown if you are interested in finding out more about these projects and how to get involved or can serve as a resource person or are interested in receiving amicus support at rbrown@escr-net.org .
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ESCR-Justice: Monthly Caselaw Update
ESCR-Justice is a monthly update, circulated in English, French and Spanish, highlighting an important economic, social or cultural rights (ESCR) case that has been added to the Case Law Database. To date, ESCR-Net has produced five editions of ESCR-Justice, which can be found here. The new cases disseminated since the last Newsletter include: Decision T-760 from the Colombian Constitutional Court on the right to health (July 2008), Naz Foundation v New Delhi from the New Delhi High Court on non-discrimination on the basis of sexuality and HIV/AIDS (July 2009) and Doe v Unocal from Ninth Circuit Court of Appeals in the U.S. on U.S. corporate liability for violations of human rights (September 2002).
We hope that ESCR-Justice will support activists and advocates to stay abreast of important developments in ESCR litigation and promote exchange of litigation strategies across regions and jurisdictions that are otherwise limited by language and distance. ESCR-Justice is also intended to encourage discussion of crucial challenges for ESCR advocacy and encourage the use of legal strategies and the rights based approach as valid and effective means for claiming economic, social and cultural rights.
The ESCR-Justice: Monthly Case Law Update and the ESCR-Net Caselaw Database on Economic, Social and Cultural Rights Related Jurisprudence, Cases and other Decisions (see below) are created in partnership with the following organizations:
Centre for Legal and Social Studies (CELS), Argentina
Centre on Housing Rights and Evictions (COHRE), USA
Human Rights Centre at Queens University Belfast, Northern Ireland
Norwegian Centre for Human Rights, University of Oslo, Norway
Social Rights Advocacy Centre (SRAC), Canada
Get involved!
Please send new cases and interesting developments in ESCR jurisprudence to Rebecca Brown at rbrown@escr-net.org. To share information or strategies with other ESCR advocates subscribe to the Justiciability Discussion Group.
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Expansion of the Caselaw Database
The ESCR-Net Caselaw Database is continuously updated as a critical resource and repository of court decisions and other relevant documents relating to economic, social and cultural rights. The ESCR-Net Caselaw Database is a collaborative project developed under the leadership of the organizations above and in collaboration with many other groups and individuals working to advance economic, social and cultural rights throughout the world. The ESCR-Net 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.
Here are a few of the new cases that have been recently added or updated (not including those listed above):
K.H. v. Slovakia, European Court of Human Rights, April 2009
Equal Opportunities Commission v. Director of Education, High Court of Hong Kong, June 2001
Get involved!
Please send new cases and interesting developments in ESC rights jurisprudence to Rebecca Brown at rbrown@escr-net.org. To share information or strategies with other ESCR advocates subscribe to the Justiciability Discussion Group.