Wrap-up: November 2014 Discussion
The November post focused on some of the challenges to implementing favorable court decisions regarding ESCR, as well as some potential strategies to overcome those challenges, as discussed by a new guide on implementation by Dejusticia. These strategies were exemplified by those used by the Colombian Constitutional Court and civil society in a case regarding the massive human rights violations faced by internally displaced people (IDP) in that country (T-025/04), and included (1) maintaining jurisdiction over a case for monitoring purposes, (2) the use of indicators to monitor implementation of complex decisions, (3) meaningful engagement between the State and petitioners, and (4) the use of expert commissions.
In addition to the challenges and strategies proposed in the original post, discussion participants also shared their own. For example, La Asociación Civil por la Igualdad y la Justicia shared a book on implementation of collective judgments, and suggested that imposing fines on State actors may also induce compliance with court decisions, although often courts are reticent to adopt such measures (political barriers). Additionally, an advocate from Kenyan organization Hakijamii shared a case regarding forced eviction, and the challenges of enforcing court judgments, as laws prevent money judgments from being enforced against the State (legal barriers), and steps being taken to repeal those laws.
The discussion focused on all of these strategies at a more detailed level, as well as different examples of obstacles in enforcement of ESCR cases and strategies that were used to address those obstacles. Specifically, the conversation centered around the details of (1) the Constitutional Court's use of autos, or monitoring orders, (2) the process of adopting implementation indicators, and (3) the role of civil society and victim's organizations in the implementation process. Participants discussed the process of details of each of these strategies, as well as their potential to encourage compliance, as well as their limitations, using the Colombian case on IDP as a backdrop. There was significant interest in the use of indicators, how they are adopted, implemented, and what their potential is, as well as the role of petitioners and their advocates in that process.
In general, the discussion demonstrates that while it is often necessary to adopt some strategy to encourage State compliance with ESCR decisions, none is a silver bullet, and their level of effectiveness depends on many different factors, and thus their relevance will change from one case to another. It is clear, however, that the success of all implementation strategies depends on the commitment and capacity of civil society organizations to the case.