Report from Plenary Session 1 ESCR-Net: Work to Date and Future Direction

1.       Introduction of Plenary, Julieta Rossi, Director of ESCR-Net

Julieta explained that the purpose of the opening plenary was to provide an overview of the development of the Network, highlighting the current areas of collective work and how this work has responded to the needs in the field of ESCR as well as what needs remain unmet. The plenary is meant to provide a critical assessment of the Network's work to date, with the goal of strategizing on its future direction. In particular, the plenary seeks to illuminate: (i) advances, opportunities and challenges in each area of work; (ii) how collective action has contributed and can contribute to the development of each area, including key obstacles and how to overcome them and; iii) new functions and/or areas of work that should be developed within the network to better respond to current needs in each area.

Julieta then explained that presentations in this panel would be delivered by a representative of each area of work and be based upon the Assessment and Strategy Papers prepared for the meeting to inform and enrich discussions on the future direction of ESCR-Net. These papers were sent to participants prior to the meeting and/or handed out with the Welcome Package.

2.       Adjudication of ESCR, Malcolm Langford, Norwegian Centre on Human Rights, University of Oslo, Norway and Hakijamii, Kenya

Malcolm began by highlighting a case that had gone to court that week in Zimbabwe over a cholera outbreak in an informal settlement.  He asked why would these residents have chosen to go to court in light of the many unsuccessful attempts to halt forced evictions in Harare?  He noted that people often do it as a venue of last resort, when everything else has failed.  Malcolm then described how ESC rights adjudication is emerging in almost every jurisdiction around the world and that that the ESCR-Net Case Law Database explain in detail 72 of these cases.  But he noted that these are a drop in the bucket: Brazil has seen over 10,000 cases regarding HIV/AIDS alone.  His point was the adjudication of ESC rights is becoming an increasing viable option to in pressing for implementation and enforcement of ESC rights. 

Malcolm highlighted three achievements in the field: (1) the adjudication has demonstrated that ESC rights are legal and justiciable rights; (2) there have been cases on the three general obligations to respect, protect and fulfill; (3) more systemic remedies are being provided in ESC rights cases; and (4) the impact and influence of some ESC rights litigation is evident and although implementation may still be poor in some jurisdictions, there are some signs that litigation strategies are improving,

He then highlighted the obstacles that still exist: (1) there are many countries where ESC rights are not justiciable; (2) people lack awareness of existing ESC rights; (3) there is a lack of capacity of court systems; (4) a lack of collective complaint procedures and appropriate remedial structures; (4) and engagement of social movements needs to be improved.  The most important lesson learned is that the involvement of social movements and the broader community is critical to success of most cases and follow through of implementation of positive decisions.

Malcolm emphasized that the Case Law database is one of the most important contribution the Network can make to supporting ESC rights litigation worldwide.  The Network would also be well served to facilitate more frequent meetings of groups to discuss and strategize on ESC rights issues. The list serves should also be utilized more to ask questions and get comparative perspectives and support information-sharing. 

Malcolm also highlighted 5 new strategic entry points for the Network to consider: (1) strategic litigation fund; (2) building links between social movements and lawyers; (3) work together to bring forward one case on transnational litigation that the adjudication group can work together on; (4) creating an index of justiciability; and (5) influencing national constitutional and legal development processes. 

3.       Optional Protocol to the ICESCR, Bruce Porter, Social Rights Advocacy Centre, Canada

The OP-ICESCR will be adopted this December. 42 years ago the Optional Protocol to the ICCPR was adopted and now this year, we will have the same status for the ICESCR.  Louise Arbour stated that now "human rights will be made whole."  Bruce noted the critique that this is a remote procedure that only some will be able to take advantage of after exhausting domestic remedies. He replied that although in some ways this may seem like an elitist procedure the Network should not be involved in, on the other hand, the status of ESC rights are also involved.  Do people whose ESC rights have been violated have the right to a complaint procedure?  The claimant has the right for their voice to be heard and other venues of procedures cannot provide this. 

At the last meeting Chiang Mai, this idea was much more remote and it was largely discussed by international NGOs and lawyers and not by people on the ground. What was discussed were issues of justiciability, rather than the need for victims of ESC rights abuse to have a venue to voice their claims. Our movement is divided between those who have a voice and access to justice and those who have to fight for their voice to be heard.  The NGO Coalition was formed in Chiang Mai and have since put forward a consensus position on what type of OP they wanted and essentially they won.  They asked for a mechanism that embodied that principle that everyone whose rights had been violated had the right to hearing and an effective remedy - not just for egregious violations, discrimination, minimum core content, an a la carte approach, etc. They were told they were asking for too much, but they believed that it could only be truly effective if it embodied the ideals that ESC rights demand.

Bruce then ran quickly through the standing requirements, reasonableness standards, investigations procedures, etc., of the new OP mechanism and noted that this was a huge victory but that moving forward there is still much to do.  He noted that there is a risk for individualization.  NGO's need to fight for procedural requirements that allow amicus curie submissions and also around resource allocation issues.  We need to be able to work locally and internationally at the same time, to bring in social movement groups and their voices. Finally, ESC rights must be subject to effective remedies according to the idea that human rights obligations must be made whole. 

4.       Corporate Accountability, Tricia Feeney, Rights and Accountability in Development (RAID), UK

Tricia began by reviewing how the working group has evolved to where it is now and why this area is such a great importance to the human rights community.  She gave a brief history of the negative impact of the rise of corporate power over states and individuals - supporting violent and racist regimes, undermining obligations, etc.  She then described the cooptation of the development of a code of conduct as originally conceived by UNCTAD for corporate actors by the OECD, which basically ended up supporting investor rights and fomenting the increasing power of multinational corporations.  At the same time, the ILO released its Tripartite Declaration on Fundamental Labour Rights. 

Tricia then pointed out that human rights, labour and environmental groups came together in response to this rise in corporate power in the 1980's and 1990's and the great number of negative development projects that took place during this time.  These development processes also brought together a number of non-state actors in Rio and Vienna to strategize on how to oppose these forces.  The impact of a gender analysis of the development processes taking place also helped to focus criticism on the impacts of these projects. 

Globalization was highlighted a major challenge to defending human rights, but it also has its weaknesses such as public outrage.  After the collapse of the OECD Guidelines and the Seattle protests, governments felt increased pressure to take some action in response, such as the Global Compact and an important revision of the OECD Guidelines for Multinational Corporations, which required companies act in conformity with the international human rights obligations of a state.   But this document is probably not the best place to try and support human rights norms. Currently, the UN Representative on Business and Human Rights, John Ruggie has developed a proposal calling on states to protect human rights from corporate abuse. 

Tricia finally summarized that the Network has been involved in attempting to influence the current processes with the Special Representative by presenting reports, facilitating meetings with grassroots organizations, creating collective statements, etc.  However, Ruggie's view is still insufficiently informed regarding grassroots groups views, his reports pull back from existing human rights duties of corporations, and neglects the international human rights dimensions of holding companies to account to privatization and dilution of human rights standards.  

5.       Trade, Finance, Investment and Human Rights, Areli Sandoval, Equipo Pueblo, Mexico

Faced with the challenges of economic globalization, the Network has tried to articulate human rights, trade, investment and finance work. It has done so through various initiatives, such as setting up a contact and discussion listserv, mapping the work of organizations and experiences done in the field, promoting activities within the human rights framework, such as the World Trade Organization's ministerial meetings, adding a human rights perspective in following up development financing, creating a business and human rights initiative, analyzing and exchanging ideas related to export credit agencies, and, most recently, a pilot project on the farming sector seeking to articulate theoretical ideas with a model and tools needed to develop the capacities of human rights defenders related to trade, finance and investment.

The obstacles and challenges identified by the Network within this process can be divided as external (context-related) and internal. External challenges include the reduction in the State's role in deciding its economic policies, given the growing role of international financial institutions, as well as of business and other sectors without accountability for human rights. Furthermore, within the external context of the Network's work we have faced difficulties accessing information on negotiation and economic decision-making processes due to the variety of players involved, both domestically and internationally, public and private. Other context-related obstacles are of structural nature, for example, some economic law implementation bodies do not address claims from a human rights perspective. On the other hand, while there is a trend towards using a human rights perspective in multilateral negotiations, the weakness lies in a growing pressure on countries to sign bilateral investment agreements or contracts that are often more harmful than the multilateral rules.

Internal challenges identified included the fact that, although much has been done to relate all three issues (trade, finance and investment) from a human rights perspective, the understanding of these issues among human right defenders, particularly of economic, social and cultural rights, has not yet been sufficiently expanded. On the other hand, successful campaigns have been carried out in which the Network has established alliances with other organizations and networks working on economic issues, though not with a human rights perspective. One impact has been stopping or removing issues from the agenda in forum negotiations or the World Trade Organization's ministerial meetings. However, not enough has been done to put forward a detailed proposal or to adequately formulate how national and international economic policies should be, from a human rights perspective. Another challenge involves the Network's broad membership.  The Network is formed by organizations, but also by social movements, academic institutions and individuals with no affiliation whatsoever. This wide base provides the Network with the advantage of a wider perspective, while also making it more difficult to develop actions or define a collective voice. There is also the need to provide more focus for the Network's interests and strategies, while not losing a macro perspective; there is an ongoing debate on whether the Network should address microeconomic or macroeconomic issues, and how to do this without diluting or fragmenting strategies, so as to not weaken actions and their effectiveness.

Faced with these external and internal challenges, the Network must develop new functions and strategies. Regarding functions, in the coming days we should think about and discuss the benefits of continuing to have member organizations dealing with articulating trade, finance and investment with a human rights perspective leading the projects, or considering these organizations have already led several initiatives, if the Secretariat should play a more active role, not only in facilitating contacts and spaces, but also in adopting a greater leadership role in this work. Another issue is the need to strengthen the Secretariat's capability to better respond to member needs. Furthermore, regarding strategies, we should review the work of the listserv, which has facilitated information exchange and some joint actions, but also sends out a considerable diversity of messages and information that should be better focused or articulated.

Other proposals to be reviewed are designing strategies related to extraterritorial obligations in specific cases and giving responsibilities to non-State actors, in human rights violations and their influence on policies, negotiations and contracts devised in the international arena. Two more proposals to be debated are, (1) continuing to use the alliances with other networks and organizations working in the economic sphere, while making better use of the Network's resources, i.e. technical and political resources that we already have; or (2) considering the idea of preparing a strategic plan for the coming three or five years, including clearer and more specific objectives that may both enable actions and provide the Secretariat with clearer orientation on activities and priorities for the use of resources.

6.       Budget Analysis and ESCR,  Ann Blyberg, International Human Rights Internship Program (IHRIP), USA

Ann began by comparing budget analysis to detective work: The figures at various places in the budget are clues.  The challenge is to analyze the clues, and what the clues taken together tell us about "who did it?"-that is, what the role of the budget is in the human rights situation of concern.  She then gave the example of the ACIJ's work in Argentina highlighting the role of funding in educational disparities as a success story as how this area of work can be utilized to support ESC rights. 

Ann then reviewed the activities the ESC Rights and Budget Initiative (primary coordinators are ESCR-Net, FUNDAR, IBP and IHRIP) has undertaken since Chiang Mai, such as a mapping of groups that work in this field, the production of a manual on ESC budget work called Dignity Counts, capacity-building programs in various regions, as well as various other projects, including a project with the FAO on how to use budget analysis to advance the right to food.

Ann mentioned that as a result of the mapping, we can see that the groups doing this work fall into a few categories: those working on 1) transparency and access to information, 2) participatory budgeting, 3) gender budgeting, 4) budget work focusing on a specific right, 5) "frontloading" a budget to protect human rights, and 6) macroeconomic strategies to protect ESC rights. 

She then went on to note the principal challenges to using budget work to protect ESC rights: access to budget and related information; developing knowledge and skills necessary to do human rights budget work; lack of relevant technical knowledge within civil society as a whole; relating human rights standards to budgets and processes.  She also stated, however, that possibilities are very significant, and include: groups can link with each other to build capacity and resources to improve skills and knowledge; individual economists and budget analysts are often willing to help with projects and with capacity-building; ESCR-Net can facilitate the sharing of knowledge; and legislators and media often welcome this work to help them make sense of the budgets they are looking at.  Collective action is essential to this area because it requires information and action in so many different spheres in order to be effective. 

Finally, Ann explained that it would be useful for the Secretariat and the Budget Initiative to focus more on strategic linkages between groups for capacity-building, identifying gaps that exist in the work and groups can help fill these gaps, bringing budget work more into UN discussions, and facilitating groups' efforts to truly integrate a human rights framework into their budget work. 

7.       Social Movements and ESCR, Renji G. Joseph, Alliance for Holistic and Sustainable Development of Communities, India

Renji began by thanking ESCR-Net for ensuring an integral space for social movement groups in its work.  He noted that this is essential because social movement groups in people-centered policy changes and in the fight to ensure economic, social, cultural, civil and political rights.  He noted that social movements have fought important battles to ensure human rights around the world and that they often come into conflict with transnational corporation and repressive states. 

Renji noted that the existence of a social movements working group indicates the Network is providing an open, friendly, collaborative and mutually supportive platform for groups around the world to connect and share information and strategies.  This has resulted in grassroots groups finding that their opinions, priorities and efforts are fully integrated and considered in the decision-making processes of the Network.  Often-times, policies and tools developed to protect ESC rights go unused and unknown by groups working at the grassroots.  But through the Network, grassroots groups have found a platform to coalesce and stand in solidarity together to make change at both the grassroots and global level. 

He also noted that social movement groups face deep challenges to their work such as, lack of access to the internet, lack of access to multi-lingual and technically proficient individuals, scarce financial resources, diverse ideologies and strategies, etc.  Most importantly, social movements are often marginalized even within the human rights movement.  But, the Network has provided a space for solidarity between social movement groups themselves and with other human rights groups through solidarity visits, the Lanna Declaration, opening doors for the representation of social movements within the ESCR-Net Board and decision making processes, solidarity actions, promoting mutual learning, and hosting the 2008 social movement gathering. 

Renji then made a proposal to allow the Network to engage in solidarity actions.  He notes that currently the Network has no mandate which allows it to respond as a member organization to respond in a systematic way to speak in solidarity with particular member groups.  This should be considered.  All groups should also consider the extent to which they involve social movement partnerships in each area of their work. 

8.       Women and ESCR, Leilani Farha, Centre for Equality Rights in Accommodations, Canada

Leilani began by recalling the 2003 meeting in Chiang Mai, and how at that time, working on women's ESC rights was considered marginal by many.  Now, however, she believes that ESC rights as a whole have reached a new level of maturity which more fully integrate women's ESC rights.  Women are actively claiming their ESC rights in courts and various fora.  Legal cases are being adjudicated nationally, claims are being litigated internationally through the Optional Protocols to CEDAW and other mechanisms, the work of Special Rapporteurs have highlighted the particular impacts on women, General Comments to ICESCR, and soon the OP to the ICESCR, which have contributed to the awareness of the lack of implementation of ESC rights' particular impact on women. 

She also noted that one interesting development is the increase of analysis of the particular socio-economic realities of women as human rights claims.  This analysis asks if existing rights and the way they are defined, respond to women's realities?   If they don't, can we infuse those rights with women's realities or should we come up with new rights that embody these realities?  

On working collaboratively, Leilani noted that it is important but is fundamentally difficult because of the following conceptual issues:

• (1) Where should women's ESC rights be situated? Does it need a separate steam? Is a separate stream marginalizing women's ESC rights or does it help to more fully integrate them through all areas? Leilani suggests that both a separate working groups as well as integrating a gender analysis through all areas of the Network's work is essential to adequately ensure women's ESC rights are integrated. She does not mean mainstreaming. Integration means the acknowledgement that women are disproportionately affected by ESC rights violations and therefore central to all ESC right work.
• (2) As the women's ESC rights practice emerges, the relationship between women's ESC right and substantive equality is being examined. For example: when a women is forcibly evicted from her home and therefore bears the disproportionate burden of that eviction, does she have a sex equality claim, does she have an access to housing claim, or does she have both? If she has both, how do those claims interact? Leilani states that she thinks human rights activists should be moving toward an analysis where ESC rights and equality right rely on each other. An understanding of the equality dimensions poverty, exposes issues of oppression and injustice that wouldn't otherwise be exposed. Substantive equality can find more solid ground through ESC jurisprudence through positive obligations and resource allocations.
• (3) Still a disconnect between activities and developments on women's rights at the local or national level and the development of ESC rights at the international level. There needs to be a circular flow between national and international developments. ESCR-Net can offer a mechanism to ensure this circular flow through the working groups.

Ending her comments, Leilani noted that despite these challenges, they can be overcome.  One example is the Montreal Principles which was convened by the ESCR-Net Women and ESCR working groups as it then existed and formally released the Chiang Mai meeting, which then helped to inform the General Comment to Article 3 of the ICESCR.  Women's ESC rights practice is based on the idea of inclusivity and we will continue to do this by working together to adopt a common agenda.