[November 2014] Monitoring the Implementation of ESCR Court Decisions

Publish Date: 
Wednesday, November 5, 2014

For generations, human rights defenders have endeavored to achieve the justiciability of economic, social and cultural rights (ESCR) in domestic and international courts. This struggle has been largely successful in several countries of the world that have consecrated ESCR and their justiciability in their Constitutions, as well as, to a certain extent, regional and international human rights systems.

Nonetheless, as rights defenders know all too well, the struggle to realize ESCR is not yet won. The challenge we face now is to ensure that favorable ESCR court decisions are actually implemented. Unfortunately, many court decisions regarding ESCR are never implemented, meaning ESCR violations continue. This significant problem not only limits the effective enjoyment of human rights, but also threatens the legitimacy of the judicial systems handing down decisions that are ignored.

In the spirit of encouraging discussion regarding the implementation of ESCR decisions, Dejusticia has written a guide on strategies for the implementation of ESCR court decisions, which provides an overview of existing domestic and international implementation mechanisms, and describes various strategies to improve implementation, culled from successfully implemented cases around the world. Among the strategies we identified are (1) courts retaining jurisdiction for monitoring, (2) the use of indicators, (3) the use of experts and commissions, (4) meaningful engagement, and (5) structural reform.

One case that combines different aspects of these strategies is one regarding forced displacement in Colombia. Internal forced displacement is one of the most serious human rights problems facing Colombia. A decades-long internal conflict coupled with more recent economic pressures has given the country the second highest number of internally displaced persons (IDPs) in the world, close to 5 million people. Unfortunately, for years, the State response was one of indifference and ineptitude.

In decision T-025 of 2004, the Colombian Constitutional Court studied 108 constitutional actions regarding the State’s failure to address the situation of IDPs in the country. The Court concluded that the State’s response to IDPs was unconstitutional, and ordered the government to take measures to resolve the problem.

The Court’s decision to maintain jurisdiction to monitor the execution of its orders was crucial to its implementation, and is the first strategy we identified for ensuring implementation of court decisions regarding ESCR. The Court used its continued jurisdiction to verify compliance by issuing periodic “monitoring orders” that request information from relevant actors and respond to non-implementation.

The Court monitored the implementation of its decision in two other ways. The first was through public hearings, in which the Court requested reports from relevant State institutions, organizations of IDPs, NGOs, and international organizations. In this process, the Court has received technical support from the Monitoring Commission on Forced Displacement, an initiative of civil society organizations. The Commission has been fundamental in the monitoring process, presenting reports regarding the situation of IDPs, as well as evaluating technical aspects of the State’s policy response, tasks the Commission is able to do because it has access to information and institutional capacity that the Court does not. The Commission is an example of another strategy we identified, using experts and commissions to do heavy lifting on the technical and information heavy aspects of implementation that the Court may not have the time or expertise to do.

Additionally, the Court undertook a type of “meaningful engagement,” by initiating a dialogue between the petitioners, the government, and the Commission regarding initially underwhelming implementation of its orders. The Court’s role in guiding the dialogue helped counter the power imbalances between the petitioners and the government. As a result of these dialogues and the expertise provided by the government and the Commission, the Court adopted a series of indicators that allowed for an objective evaluation of public policies for IDPs.

As demonstrated by this website, these are not the only strategies that can encourage implementation of ESCR court decisions. We are interested in hearing from others regarding strategies they have used to ensure court decisions are effective. What factors determine whether a decision will be implemented or not? How can lawyers and civil society help ensure implementation during the litigation stage? Is litigation an effective way of realizing ESCR?