Report from the Sessions: Adjudication and ESCR
Challenging Poverty and Inequality through Human Rights:
International Strategy Meeting on Economic, Social and Cultural Rights and ESCR-Net General Assembly
December 1 - 4, 2008
To download the report, click here.
[Note: Session 6 was not held due to time constraints]
The presentations given during the Adjudication of ESCR sessions emphasised the rapid growth of ESC rights litigation and that successes had been achieved in both clarifying many state and non-state legal obligations and having an impact on the ground. At the same time many challenges remain which range from the lack of effective justiciability in some countries, conceptual challenges over some legal and remedial issues, the relationship between lawyers and social movements and ensuring effective implementation of judgments. The working sessions discussed a range of current issues in ESC rights adjudication such as: national and regional jurisprudential developments; the critical need to involve social movements; specific issues related to equality and disability; as well as the impact of globalization. In the final collaborative session, participants identified a large number of possible projects and a work plan will be developed based on the discussion.
1. Introduction, Malcolm Langford, Norwegian Center for Human Rights and Hakijamii, Norway
Malcolm welcomed the participants and gave some background on work of ESCR-Net Adjudication Working group. He asked participants to step back and look at the group to see where we are: experience, lessons learned from adjudication strategies, and other lessons from working with social movement's courts, etc. He then noted that the aim of the session was to share experiences of domestic and international justiciability of ESC rights from four regions of the world (Asia, Africa, Latin America and Europe).
2. Out from the shadows: South Asian courts take on ESC rights, Mario Gomez, International Commission of Jurists Sri Lanka/Nepal
Mario highlighted that South Asia is the home of vibrant jurisprudence. He gave a few examples of what has been happening in South Asia over past 25 years and drew attention to 5 characteristics of litigation.
a. Standing: South Asia has broadened the idea of standing to include almost everyone and public organizations can intervene for victims and victim groups. In many cases the creative collaboration between knowledgeable public interest litigation groups and victims groups seems to be the most effective way to bring suit.
b. Interpretation of rights: Many countries do not have an enforceable bill of social and economic rights (as are included in the South African constitution), and often ESC rights are considered principles of state policy, which say they are not directly justiciable. But despite the absence of clear coherent framework, the courts have developed their own framework to protect ESCR through interpretation of the Right to Life, which includes healthy environment, water, food, etc.
- In Sri Lanka, there is no Right to Life, but the courts have interpreted ESCR though Article 12, which guarantees equal protection of the law.
c. Absorption of international standards: In some cases they are looked to by courts, but other times not. In the Chopra, a case from India on sexual harassment in the workplace, the court did look to international treaties and "soft law" and tried to use these principles to flesh out constitutional rights.
d. Court Proceedings: Courts willing to move away from traditional proceedings to adopt new proceedings to investigate ESCR claims. They have in some cases liberalized the process for submitting claims relating to ESCR.
e. Remedies: Many remedies in ESCR litigation have been complicated because of complex issues that court is forced to grapple with. So monitoring may be required, which is itself difficult and civil society organizations may be needed to monitor and implement some recommendations of the court.
Social and Political Context of South Asia
1. Courts are responding to ESCR within the context of massive violations of CPR through use of national security laws and emergency regulations. Sometimes the courts have been progressive on ESCR while being regressive on CPR, because it provides a good public profile. Often it has been easier to build a larger social consensus for ESCR which has encouraged the courts to create positive jurisprudence.
2. Many institutions of government have collapsed. Therefore the courts have been forced to be more active in policy-making.
- Implementation of legal victories into something meaningful on the ground.
- Litigation model. We need to adapt it to suit the issues of economic and social policy before the court. Different facets: (1) several voices that are affected are represented before the court (like in South Africa and that different stakeholders have voice in arguing case; (2) more frequent use of expert commissions, such as of inquiry; (3) levels of scrutiny- the court must get to the "nitty gritty" of the case, given that other governmental institutions have collapsed; 4) increasing the capacity of the court at all levels, and better capacity of other legal institutions (law drafting commissions, human right commissions, etc); and 5) build the capacity of independent institutions with regard to ESCR and in relation to corporate actors.
Model of Litigation: It is important to have a holistic view of litigation as one part of a larger movement for social justice. It must be highly participatory, transparent, flexible with regard to procedures and remedies, and something that can be implemented by court and NGOs working together. It is a model involving more than national courts, but also extends to ensuring the individuals who will serve on the OP-ICSCR Committee have the expertise and capacity to be effective. There is substantial need for expanding capacity and ensuring those elected to the Human Rights Committees have human rights background.
3. A Model of Comprehensive Enforcement? The Colombian Constitutional Court, César Rodriguez, De Justícia, Colombia
César began his remarks noting that justiciability of rights in Colombia is particular because the country has the second largest population of displaced people and a terrible human rights record, which has created an emergency situation. As background, the Constitution of 1991 was a result of political compromises that were pluralist commitments which led to a leftist coalition. One result was the recognition of rights of different generations, and importantly for this panel, they included two actions for protection of rights. The first type is a "rapid action" that is decided in 10 days, and by which citizens can seek protection of constitutional rights. The second type is an action of unconstitutionality - an abstract action where any citizen can go to the constitutional court and demand that a law be declared unconstitutional. In these ways, lawyers have tried to bring to court issues of social rights.
- The Court has been reluctant to take on social rights cases because there has been little implementation of the decisions made. The reason is that it didn't have any follow up mechanisms and the government failed to act. Then the court generated 50 decisions for follow up, and decided to move forward in the provinces and organized hearings to do so.
- In constitutionality actions, we are seeing cases that go against social rights. Particularly complex cases, because when court declares unconstitutional one of these laws, it changes economic policy.
- Lack of understanding and engagement between government officials/economists and human rights activists.
- The political process has influenced the court to avoid scandals. Court loses power through constitutional reforms, and this leads the court to be more prudent.
- In the relationship between the court and states, the type of order is important. When the court requires that a certain amount of money is spent (through court order) this generates enormous controversy with the state.
- When courts attempt to act in the interest of vulnerable groups and for the protection of social rights (or NGOs that litigate for them), then courts are seen as "coordinator" of policies, which generates public debate.
- When deciding to bring a case, the level of political organization of the group matters as does the relationship with their lawyer. Courts determine whether or not to allow a group collective standing often depending on how cohesive and organized the group is. Collective standing can also be critical for the group itself to promote internal organization and mobilization.
- Other times, courts and lawyers respond once the political process/movement is already in motion (e.g. indigenous communities which have been organized for a long time). These are cases that are more sustainable with longer lasting results.
4. Building an Effective Litigation Strategy: The Case of the Right to Water in South Africa, Jackie Dugard, Centre for Applied Legal Studies (CALS), South Africa
Jackie focused her comments on the bellwether ESC rights case this year, Mazibuko and others v. Johannesburg Water, which she helped litigate. The South African constitution enumerates many ESC rights, including the right to water. Crucially, it was established early that ESC right are justiciable, soft and hard law is binding and international law deemed essential. However, an important issue is that until now in the key ESC cases (six at present) there has been a rejection of the minimum core requirements approach. In addition to the enumerated rights, there is an anti-discrimination clause which is very strong, and a right to just administrative action. Framework is rights based, but in practice, access is very unequal. CALS tries to use human rights to force more equitable distribution of resources.
The problem in South Africa isn't existence of water, but distribution. Since 2001, South Africa has had a basic national water policy - every house getting 6 kiloliters of water per month, which has no basis in relation to law or health standards and pre-paid water meters had also been installed only in historically poor, black areas. In the case, CALS argued the policy wasn't reasonable because it wasn't based on any guideline of the amount of water required for human survival or dignity and that the pre-paid meters were unconstitutional because they denied due process and were discriminatory.
Throughout the case, it was never disputed the people couldn't pay for water and the community had been without water for 6 months. People were walking for miles per day, trying to care for HIV patients. CALS intervention in the case began by talking to community and 2 social movement groups which were very active in the area. The community was very keen on litigation because until that point traditional forms of resistance failed. However the social movements weren't keen at first, because they viewed law as propping up the current system. We assured them that we would work in partner with them, but not take any resources. This collaboration was key to keep the case going over four years. Along with social movements support another key element was that the applicants filed in their own names, and community. SA has generous standing rules, which allowed them to accurately portray the actual impact of the water policies.
The Applicants won on all counts: the city was ordered to provide at least 50 kiloliters per day, per person and pre paid meters were declared unconstitutional. The defendants have taken immediate appeal. They have to go through 2 courts of appeal (High Court and Constitutional Court) and during this time the community still has insufficient water. But now there are two issues arising from the case: 1) the South African Treasury has applied to be admitted as amicus - this could be a worrying trend; 2) the reasoning the high court judge gave for the increase to 50 kiloliters of water per person, per day was because the city of Johannesburg could afford it. What does that mean? If a city or country is poorer, do its citizens have less of a right to demand implementation?
5. ESC Litigation in Latin America, Carolina Fairstein, CELS, Argentina
Carolina focused her comments on the progress, obstacles and challenges in ESC rights litigation in Latin America, and particularly Argentina. She started by pointing out that in some countries, although there are many cases already litigated on ESC rights, it doesn't mean there are no obstacles. Three factors that are essential considerations in litigating ESC rights:
- Implementation: It is important to begin placing more emphasis on publicizing what happens after the decision and in contesting the critique that judges are not democratic because implementation of decisions involve use of public funds and have policy implications.
- Social Movements: It is also essential that NGO's and human rights attorneys link with social movement groups to advanced ESC rights issues. Another thing we need to do in our region is to question how to prove beforehand the negative impacts that things like new housing developments or new mining operations may have on ESC rights and mobilize effectively to stop it.
- Political Opposition: Another issue related to the progress on ESC rights is that in some jurisdictions, such as Buenos Aires, the government is now a rightist party and they want to change legal mechanisms, and many activist judges have been removed from courts and punished. This is a very serious problem that the Network should be able to react to as a political actor.
6. Notable questions and comments following presentations:
- Mabel Lopez Oliva, Argentina - Mabel commented that she works in Buenos Aires in an institution that is part of the judiciary, responsible for protecting rights of juveniles and those with mental problems. They are litigating different cases on social and economic rights, in particular one, where they are challenging a housing policy of the city government that is retrogressive. She said that they are expecting the presentation of amicus brief. She also asked Cesar Rodriguez about Colombian cases of health, housing, food and if he can expand on housing cases and particularly on the implementation of judgments because they are having a lot of problems in the implementation phase of collective judgments that imply the allocation of resources.
- Alberto Ernesto, Rede-Desc, Angola - Alberto pointed out that the main issue in Angola is that they have laws but no implementation. Strategies discussed must bear in mind African countries, because people here don't demand their rights. In some cases, citizens bring a case but the procedure is so long and there are many payments before action is taken.
- Julie Cavanaugh-Bill, Western Shoshone Defense Project, USA - Julie explained that the US has blocked indigenous land rights. They have been to the Supreme Court, but have been told bar applies. They have been successful at UN and int'l level, but there are problems with implementation. She asked what happens when there is no way to implement in the domestic sphere. What strategies, as attorneys, can be used to be part of larger social movement to challenge ideologies of discrimination embedded in the country's history? Some of their ideas are for members of the American Bar Association to go through human rights trainings, or judges going through trainings.
- Mario Gomez, ICJ, Nepal and Sri Lanka - Mario asked a direct question to Jackie regarding her presentation: Would it be better to get the treasury to intervene, if you want to get them on board right away? And isn't it a human rights approach to include as many perspectives as possible?
- Jackie's response: The South African Treasury has made it clear in the application that they are backing up the city's claims, and they aren't adding anything new (they are not following role of amicus, which is to provide new information, because they are just echoing the city). That is why the amicus is problematic. Jackie said she is all for open rules of standing and amicus interventions, but this is the Treasury coming in with big guns to back the city. This is also a problem because the decision only applied to people of the Phiri area of Soweto. There is nothing in the judgment that applies to other municipalities, so there is no reason the Treasury should be involve in all. The City of Johannesburg has resources and the national government is a party.
1. Moderator, Bruce Porter, Social Rights Advocacy Centre, Canada
2. Social Movement Representative, Regis Mtutu, Treatment Action Campaign, South Africa
Regis thanked the group and noted that the discussion of the intersection of these stakeholders was an important one to have. An important starting point is to look back at our history and see how lawyers were supportive and worked closely with social movements in litigation, which was critical to apartheid struggle. Regis emphasized that we must look back at the abuse of lawmaking that characterized apartheid state: law used to put in place and enforce segregationist policies. He said it was important to see that we could not only rely on the law as a progressive strategy, but that we need support of those who were bearing brunt of oppressive positions as well.
This began in 1960s when ANC began struggle against unjust laws. Organizers got a diverse group of social movements together, including labor groups, etc., who all faced difficulties from the law. The question was how to use mobilizing tools to activate people in rural areas to push the balance as much as possible to subvert the law for political democracy. This for him was the foundation of the relationship b/w lawyers, claimants, and social movements. The question is what is the role of social movements in moving beyond the boundaries of law? Laws were unjust and took mass mobilizations to change. This led to new developments in a period where we saw shift in public opinion around the world, including corporations. That was only possible because of the massive social movements that were pushing the boundaries of the law. So there was this process where there was a clear strategy of social movements supported by disciplined lawyers.
TAC has clearly used the same tactics; e.g. the Constitution clearly protects the right to health. At same time, in a recent pharmaceutical case that allowed for the use of generic medicines, the law then was used to try to protect property rights. It is important to realize that the law or Constitution can be a double edged sword. As social movements, it is critical that when we come with litigation, we don't only look at the facts of the case, but that we use a process to disseminate information so that it leads to people becoming more aware of their rights and leads to a change in policy and real change in lives. That is where social movements come in - to mobilize and take on the government.
3. Claimant/Social Movement Representative, Ezekial Rema, Toi Market, Kenya
Ezekiel began by explaining that he works for a social movement group in an informal settlement in Kibera, Kenya. The community formed a market called Toi Market and the land was vested under the power of the communities. This is different from most informal settlements, where the markets are under the administration of the area chief. In 1991, there were threats of evictions, and eventually a city official gave the order. By that time there were 1500 businesses in the market. There were many years when things went back and forth between the people and the administration. The group decided to join a new market, which was very small and they welcomed new members who weren't business people.
The members of our group were small scale sellers and were not used to questioning the administration, but we decided to start looking for other measures to help our situation. They went to Kituo Cha Sheria, a human rights organization in Kenya. Ezekiel reasoned that the courts in Kenya do not consider poor people because they do not have security of tenure. The chief was able to evict them even though he did not have the right to do so. They decided to announce that they were the winners of the case and went to court and covered their mouths with masking tape to show that they weren't allowed to talk. This case was not a legal eviction. It was under no order of the court but merely one made by a chief.
The issue of land in Kenya is hard as it is very technical due to the bureaucracy. During the post election period, the market was destroyed. It was looted and burned. We organized ourselves during the post election violence and organized the youth on how they can protect the land. Afterward, when reconstructing the destroyed kiosks, another organization assisted us called Jamii Bora. If any social movement is advocating for rights, there must be mechanisms to protect them. Once the key people are arrested, then the others are unable to aid the struggle.
4. Lawyers Representative, Odindo Opiata, Hakijamii, Kenya
Odindo presented a number of fundamental questions on the issue of collaboration between these groups, specifically regarding power and power relations because he noted that they will inform the strategic decisions we make when intervening. First, he discussed the role of litigation with respect to human rights. Litigation is generally predicated on assumptions that (1) you have an enabling legislative or jurisprudential framework; (2) you have a functioning judicial system; (3) out of all the other potential strategic options that are possible, you have decided it will be the most effective; and (4) after going through litigation you can get effective remedies.
The issue of human rights at the end of the day is an issue of power. If we look at litigation from that context, then when and whether to go to court becomes a concrete and not general question. How to use international instruments also becomes a concrete question. The question is whether it is an empowering tool. When you take a matter from those who have been struggling, and change it into a legal matter, then the advocate becomes the ultimate decision maker. S/he decides which arguments to take to court and tells the client how to act as not to jeopardize the case, etc. Historically, let's face it: lawyers are defenders of the status quo. Lawyers want to make the status quo better. We spend more time on language (e.g. what does comma mean in provision) than the reality.
It is not just a question of lawyers and social movements, because the first thing that most legally trained people must do is liberate ourselves from assumptions that just because we are lawyers, we are best equipped to talk about human rights. We have heard so many examples about litigation, which are very good and make us happy to read, but we then want to ask ourselves, after getting that decision, what has changed? What people want is change. We don't just want the Supreme Court to say we can get water, but we want to get water. We need to politicize human rights. We must ask how we fuse litigation with the concrete struggles of people where HR resides.
5. Notable Comments Following Presentations:
- Geoff Budlender, Legal Resource Center, South Africa: I think there are different types of HR claims that require different tests to decide whether to go to court. Housing and water are about popular demands. You must do it as part of a broader process that involves social activists. So I don't have any problem that certain cases absolutely require mobilizing and organizing and that litigation is just one tool in toolbox. But I think it oversimplifies it to say that it always is the case. Sometimes human rights involve protecting interests that are not majoritarian, i.e. marginalized groups (e.g. gay, HIV positive, sentenced to death, etc). These are people who cannot easily mobilize majoritarian support and they need courts to support them in their struggle. Law can be important in stopping discrimination against them and have a real impact and consequence even without a popular movement behind it.
- Meghna Abraham, Amnesty International, UK- The key thing for me is that you can have cases that are valuable just for getting certain principles in law, but that is separate from social movements, and we shouldn't go forward with litigation without knowing what social movements want. On the issue of implementation, a case that is backed by an NGO has better implementation because of whole campaign behind it. Amnesty is currently in the final phase of developing a campaign on poverty and HR, looking at legal enforcement of ESCR and at the OP and implementation of precedents. There is discussion at AI about whether we could get into strategic litigation. Maybe one way they can add value is getting into implementation of precedents. Question to group: Is a place where AI can add value is implementing precedents across other courts in the regions. We are looking at Czech Republic and some EU decisions, and Uruguay.
1. Moderator - Mario Gomez, International Commission of Jurists, Sri Lanka/Nepal
2. Getting Effective Remedies - Geoff Budlender, High Court Advocate, South Africa
The failure of securing effective remedies is a matter which we have to take seriously because it means people are not able to exercise rights effectively and it fuels cynicism about the transformative power of human rights. We need special remedies for positive obligations, but it's a problem because courts and litigants aren't used to that idea. Second problem with remedies for positive obligations is that they have to deal with power - who exercises it and when. Courts aren't comfortable (rightly) because they don't have skills to take on what it is better dealt with democratically allowed government. Another concern of courts (which Geoff shares) is that the legalization of rights leads to legalization of politics - access to resources put in hands of courts and disempowers social movements. So the real issue is the appropriate realm of remedies for positive obligations.
The US and India have experience with supervisory remedies, where court gives an order and litigants have to report back to court, but what he really wanted to discuss was a recent judgment by the South African Supreme Court that suggests another form of relief that may be effective regarding an informal settlement along Olivia Road in Johannesburg. When it got to Constitutional Court, everyone thought it would be whether the housing policy squared with Constitutional obligations. Rather, the Court made an interim order, and didn't directly address the question of adequate housing, but ordered parties to discuss how to alleviate the plights of the applicants to make housing as good as practicable. Many thought it was a cop-out by the court, but interesting because the Court found that government must treat people with respect. The discussion produced a result that seemed impossible - every occupier agreed to vacate on the condition that city provided alternative accommodation within the vicinity. The city did so and it was improvement because they also provided access to sanitation, electricity, potable water, and security against eviction (all at government's expense). It was what occupiers had been demanding and had been told impossible.
Why did this happen?
- Interim order left all parties unsure about what would happen, so no party felt sufficiently confident of the outcome that it could take a hard line position.
- The order meant that each part had to be constructive, because otherwise they would be disciplined by the court.
- The interim order treated the occupants as persons with rights and the power relationship shifted dramatically.
What is the effect on remedial orders in positive obligation processes?
- It democratized decision making process (as part of democratic process). People transformed from passive arguments to active participants in the outcome.
- Residents had control of matter. They didn't have to hand it over to lawyers, so had a greater ability to mobilize in support their case.
- Court didn't have to make difficult decisions, because in the first instance the process was determined by genuine negotiations.
It seems we need to be looking much more closely at how we can use the court and court process to change power relations, and not just to ask them to take over the case. Instead, we should be asking the courts to put the parties in a position where they are required to find a solution that works. All structural interdicts require parties to come up with a remedy, but here the claimant was part of the process. The respondent is put under pressure to make REAL proposals, otherwise they will be deemed inadequate, and court will give its own proposal. It's also easier for the court to implement, because the standard created is one that government itself found reasonable.
3. Civil and Political Rights: How Far Can They Take Us? Aoife Nolan, Queens University Belfast, Northern Ireland
Aoife started by saying that it seemed funny to talk about civil and political rights (CPR) at an economic, social, and cultural rights (ESCR) conference, but the question of how far CPR can take us is very important. She moved on to outlining why it is important for ESCR advocates to consider CPR, and how CPR can operate to protect ESCR, and finally discussed some shortcomings in relying on CPR.
Utility of CPR in enforcing ESCR
- Frequently there is a lack of ESCR provisions in law under which the complaint can be brought, but that CPR can operate to protect at least those elements. In some cases, like the US Constitution, there are no ESCR enumerated, so people must rely on CPR to vindicate ESCR, such as to recognize a prisoner's right to adequate health care under the 8th Amendment. Alternative systems were then discussed such as Nigeria, Namibia, and Ireland where ESCR is not justiciable, but advocates can rely on bodily integrity provisions and ultimately rely on principles of interdependency and indivisibility of rights. So where ESCR not explicitly protected, CPR might be used to protect. • Many CPR can be re-characterized as ESCR, i.e. labor, equality, and rights to life. If advocates make arguments based on them, it is important to make EXPANSIVE interpretations, so interpretation protects ESCR.
- Psychologically, the court is more comfortably with CPR, and they will be happier to enforce it under that name.
- CPR can support another ESCR claim in the same case. If you are in jurisdiction where courts are reluctant to recognize ESCR, it is important to use both types so that court can move toward enforcement of both.
Limitations to using CPR in ESCR litigation
- CPR frequently fails to afford protection to all aspects of ESCR and the duties imposed by them (e.g. positive obligations)
- CPR may only operate to only protect limited enjoyment of ESCR (European experience).
- CPR will work most effectively where judges are prepared to explicitly cite ESR concerns and standards in interpreting CPR.
- The greatest risk of relying on CPR, especially when there is a choice of which rights to use, is that if ESCR arguments are not brought to court, jurisprudence will not develop (judges will not do it themselves).
4. International and Domestic Adjudication of Social Rights: Making the Connection - The Challenge of the New OP-ICESCR, Bruce Porter, SRAC, Canada
Bruce announced that saying anyone can access the OP procedure would be fantastic, but it would then have to be limited by saying that most of the Committee members are political appointments, working part time, with inadequate resources, and making non-binding decisions. Would it then be useless and pathetic? He added that when he described the OP in the morning plenary as great victory for human rights made whole, it is true the ESC rights gained equal status, but we also must recognize the claims are very complicated and the new committee must get it right because it will be a model to be followed around the world.
Important issues to keep in mind moving forward:
- Collective Standing: How do we construct it? The OP rejected collective complaints. We're not precluded from working w/indigenous people, though Committee won't be inclined to consider.
- Competence of Committee: Exercise deference. They will accord a wide margin of discretion to the state, but if there is procedure where you can hear from all leading NGOs about what the problems are in a particular context, maybe the Committee will be empowered to make a recommendation. We must get the Committee the information it needs. We need amicus from NGOs and hearings.
- Reasonableness Standard: Comes up in Disability Convention and South Africa. We have different standards from different places. This will be a standard used in domestic courts. It can work for us, but must make it a rigorous standard.
- Remedies: If Committee just makes general recommendations, then they won't be different from Concluding Observations and states can ignore them because they are not specific. We should use the creativity that we have used domestically (e.g. ask parties to negotiate and report to appropriate international or Parliamentary Committee) and have indicators/monitoring built into the remedy.
- Must find key people who have worked at domestic level and get them appointed so we have a capable committee to deal with a huge task.
5. Litigating Social Rights in Latin America: Challenges and Opportunities Regarding Positive Obligations, César Rodriguez, De Justícia, Colombia
César discussed positive obligations and the challenges they imply, based on comparative studies of Colombia and Argentina on what happened after a decision was rendered on ESCR. The studies focused on the state of prisons, displaced people in Colombia, and the right to health. In Argentina, they are studying the prison system and environmental rights, which has undergone interesting processes trying to push implementation of decisions. They undertook a substantive analysis of the impact of the decisions on the lives of the prisoners. They also evaluated budgetary implications and most importantly, any secondary effects that might have occurred. Finally, an evaluation of the impact on public discourse and politics was done.
Problems that were identified relating to positive obligations:
- Costs: In Colombia, there is little information, but they estimate that the state has paid 240 million USD to improve conditions for prisoners, and an estimated 45 million USD for displace people, which is a lot for Colombia's budget. This costs more than the plan to expand access to public information.
- Distribution of Resources: For example, in the case of health, it could happen that an activist judge wants to give treatment to someone with dialysis or other costly treatment, but this is paid for at expense of vaccinating children.
- Highly Fragmented States: Democracy in Colombia at present is highly fragmented and precarious. When asked why they don't answer requests for information, the government says "we don't have Internet, computers, all the money has been stolen, etc". This is type of bureaucracy that is receiving orders regarding positive obligations.
- Some courts have sought procedural sentences, so the government doesn't have to directly allocate for a program, but rather it creates a policy and then the court follows up to see if the appropriate party is implementing the policy;
- Establishing alliances with organizations that have other areas of expertise, such as environmental or health groups, and encourage them to undertake studies creating indicators that can be different from the indicators of the state;
- Taking part in state processes that are more ordinary, like the public budget and the development plan. In Argentina and Colombia, there are a few organizations that take part in this. So it may be possible to get some positive obligations inserted into development plans.
6. Notable comments following presentations:
- Jackie Dugard, CALS, South Africa: Question for Geoff - If public interest litigation's purpose is to get greatest remedy to the most people, is the Olivia Road case best, or would proximity approach have been better?
- Geoff's Response: If there is a core right to housing, then that core cannot be the right to be in the inner city. It is difficult to concede that part of the minimum core includes being in the more favorable position in the city. Secondly, as a practical measure, asking the court to make that order would have had consequences unknowable to the court. The decision that these 400 people had the right to be in the inner city would privilege them above others, for winning the race to the court house. That is problem with minimum core approach. But the remarkable thing is that they got more than court could have given them.
- Anand Grover, UN Special Rapportuer on the Right to Health and Lawyer's Collective, India: Anand stated that it is not the role of lawyers to impose ESCR on a community, but the community must be told about their options, and they make their decisions (e.g. HIV community wanted ESCR to be pushed, while gay community wanted CPR). The community should be involved, and if involved in all processes, then implementation is easier. Although Indian courts are now integrating ESCR, initially they wanted to interpret right to life to NOT include other things, but then they included right to health, right to environment, etc. In response the middle and upper classes are saying environment rights superior to housing rights. Ultimately, persons with access to justice take over the tools, so the law isn't always fighting for the poor, but rather undermining them.
- Marino Alvarado Betancourt, PROVEA,Venezuela: In Venezuela we have interesting decisions from courts combining CPR and ESCR, specifically the right to life and right to health and housing. There have been many decisions where the court established that when a court doesn't guarantee certain measures having to do with medicine, they are violating right to life. There was also a decision which established that not guaranteeing urgent care for children with heart conditions violated the right to life. In Venezuela, we are more and more linking economic rights with CPR rights, such as where the court established that the worker is deprived of a good salary if deprived of freedom of association with union.
- César Rodriguez's response to a question about the common objection of governments in Latin America on judicial intervention in ESCR, a situation named after judicial populism: Reponses from organizations and academics working in this area are basically 3:
- We all know that CPR have costs as well, and protection doesn't generate as much governmental resistance;
- Someone has to think in non-consequential terms, that economists always say you judges or activists don't think of the consequences of your demands. If the courts only thought of consequences, they would turn into political organs.
- There certain minimum contents of the rights defined by international human rights law (especially by the ESCR Committee) that are indisputable. This has been very useful in the Colombian context.
- Mario Gomez, ICJ, Sri Lanka / Nepal: Relating to the concern that people appointed to treaty bodies are not of high enough quality, he would like to know if is there a way that the Network can help plan for future succession on the Committees and promote candidates
- Bruce Porter, SRAC, Canada, responded here by saying that he suggests "radical reinvention" and that once admissibility is determined, the Committee should consider what information and evidence it requires, and then gather that evidence. He thinks the Committee should develop rules of procedure geared toward making good decisions, and not doing what other treaty bodies are doing.
- Malcolm Langford, NCHR/Hakijammi, Norway, also responded: There are 3 proposals to improve Committee:
- Non governmental officials appointed
- Objective criteria
- Ratify early to influence the process.
- Unidentified Speaker also responded mentioning the success of the women's lobbying groups during the formation of the ICC, achieving gender parity in nominations. They also were able make CV's of all candidates public. Our weakness is that we don't monitor the Ministry of Foreign Affairs and who they appoint to treaty bodies, but we need to put more attention into what they are doing.
1. Accommodating ESC Rights in Disability Rights Case Law, Janet Lord, Harvard Project on Disabilities and BlueLaw LLP, USA
Janet focused her comments on the Disability Convention, which she noted holds promise for all of us as advocates. Her remarks were centered on the potential of the convention to advance disability claims, but hoped they would resonate broadly with regard to human rights. She began by endorsing the view on the limits of litigation, but that at least in disability rights, noted it has a purpose and can be incredibly valuable, even beyond the limits of an individual case, especially the collective action cases, which hold real promise in advancing disability rights and ESCR.
The Disability Convention was the 9th HR convention, and it was the most rapidly ratified treaty ever and quickly gained the requisite number of ratifications and entered into force. A few weeks ago in New York, the new Committee was voted in. Together with the convention, an optional protocol adopted, which can receive individual or group complaints, and which can initiate inquiry procedure of state party. The convention fully recognized both CPR and ESCR. It embraces a social model of disability, recognizing the state and private actors must play role in creating environment for people with disabilities to be treated with dignity. Disability discrimination is defined as distinction or exclusion based on disability that has purpose or effect of impairing exercise of freedoms. It extends to the denial of reasonable accommodation, and failure constitutes discrimination (here drawn from General Comment 5 of ICESCR). This is a significant contribution of the treaty in area of ESCR as applied to disability rights. The Treaty makes clear that there is a connection between all human rights. In the ESCR context, this plays out in a variety of ways to enhance access to education, health, etc.
How has this played out in case law? There is not a lot of disability case law out there, or much ESCR litigation for that matter (see Canadian case on sign language). The European Court of Human Rights has been willing to find violations where the ESCR claims can fall under the aegis of civil and political rights claims [prisoner disability claims litigated as CPR]. The Inter-American Commission of Human Rights has come to similar conclusions. Janet noted that it is exciting that the OP Committee and regional systems are beginning, but there is a long way to go. But the entry into force of the Disability Convention and the OP really should open the door to wider range of ESCR cases, and the hope is that these mechanisms help inform the application of ESCR to lives of people with disability, and help transform ESCR claims more generally.
2. The Rights of Women in the South African Courts, Noluthando Ntlokwana, South Africa Women's Legal Resources Center
Noluthando discussed four cases her organization litigated on ESCR in South Africa. She noted that in the South Africa, the Constitution is committed to eradicating sexism and achieving substantive equality for women, therefore the challenge is to claim and assert women's rights.
In Bhe v Khayelitsha Magistrate's Court, a woman in a domestic partnership challenged the customary practice of primogeniture, which deprived her daughters from inheritance. The intestate succession applicable to black people in South Africa differed from the laws applicable to people of other races. The case also challenged the Black Administration Act, an apartheid created law which codified the primogeniture rule. The court held that women and girl children, illegitimate children, and children other than the eldest male can inherit from their parents estate-regardless of the nature of their parent's relationship. This case brought an end to discrimination against these groups on the basis of race, sex, gender, social origin and birth and respects and protects their rights to equality and dignity.
In Gumede v President of South Africa and Others the Applicant challenged the arbitrary application of the Recognition of Customary Marriages Act, which does not provide the same protection to women married prior to the ratification of the Act. Section 7 of the Act considers all customary marriages after, but not before, its promulgation to be in community of property. Mrs. Gumede was married prior to the Act therefore her marriage is governed by customary law which prohibits women from owning property. The Women's Legal Centre intervened as amicus and argued that section 7 of the Recognition of Customary Marriages Act was unconstitutional, and that the divide between marriages entered into before and after the Act is artificial and should be removed. Durban High Court ruled that those sections are unconstitutional because they discriminate on the basis of race, sex and gender because only black women married according to customary law are subject to the application of section 7 of the RCMA. The case is currently before the Constitutional Court for confirmation.
In Daniels v Campell and Co, the Applicants challenged provisions of the Intestate Succession Act and the Maintenance of Surviving Spouses Act which entitle married couples to claim maintenance from their deceased partner's estate and inherit when there is no will. In this case Mrs. Daniels could not claim nor inherit from her husband's estate because she was married by Muslim rites. The court held that both Acts were unconstitutional for failing to include women in monogamous Muslim rites marriages. In a follow up case, [Hassam] the aim was to extend the Daniels judgment to apply to women in Muslim polygamous marriages. The court found in the Applicants favor and the case is before the Constitutional Court for confirmation.
In Robinson v Campbell and Another, the Applicant challenged the Maintenance of Surviving Spouses Act for its failure to include parties in a lifetime domestic partnership. The court ruled against the Applicant and held that a duty that did not exist during the person's lifetime could not be enforced upon their death. Women in domestic partnerships do not have the same rights as married spouses after their partner has died because they did not have the same rights as married spouses when their partner was alive.
Noluthando then emphasized the use of strategic litigation as being a process of selectively choosing specific types of cases to litigate based on the case's ability to affect broad social change. Strategic litigation can result in many different types of changes: 1) an existing law may be changed if the judiciary accepts arguments that it violates rights guaranteed by the constitution, other national laws, or international laws; 2) rights may be established or redefined based on new interpretations of constitutions, treaties, or other law; or 3) a law or right that has already been established, but is not being enforced, may be enforced.
Advantages of Strategic Litigation
- One case affects an entire community.
- Establishes precedence for countless future claimants.
- Broadens access to justice.
- The threat of strategic litigation can prevent potential defendants from violating the law.
Other factors to consider
- Legal costs, Identifying the Attractive Litigant, Personal circumstances of the client, Emotional strength, Race, Sexual orientation, Gender, National origin, Language, Residence
3. Intersections Between Claiming Social Rights and Fighting Discrimination Based on Poverty, Nuria Becu, ACIJ, Argentina
Nuria focused her remarks on Argentina's continuing struggle for equality. She noted the starting point is the conviction that a fair state must increase rights of individuals, and inequality is abuse of state. The Equality Principle is in the national law, constitution, local law of Buenos Aires, as well as international treaties. It is explicit in the law that the money the state distributes must privilege the people in the worst economic situations. This is opposite of reality, where (especially in Buenos Aires) the states treats the poor worse than those with resources. The struggle for equality and ESC rights for the poor is the struggle to defend the principle of equality. The state has necessary resources, but distribution is unequal. ACIJ tries to generate awareness between promises of equality and the behavior of state. In struggle to reduce gap, we decided to use litigation, which for us is defender of the principle of equality. The problem we faced was comparison - must demonstrate that the group is deprived of right because other is getting it.
Two cases where the gap in equality was demonstrated:
- In Buenos Aires, the government had decided to place prefabricated classrooms (tin containers) in the poorest schools in the city, which they rented every month. They didn't do this in richer schools, they just built new buildings. The problem wasn't the violation of conditions of education, but a violation of the principle of equality - the state was treating the poor worse because they were poor.
- Likewise, we saw that in poor areas of the city, they were deprived of garbage collection services. We presented these cases to courts, and we quickly won both.
The litigation generated not only change in behavior of civil services, but public consciousness. Until then, people had just accepted that the poor were treated worse in society, but when the media started following the case, people started thinking about why. Litigation can generate a number of consequences beyond the resolution of case.
Challenges we faced when litigating from this perspective:
- For structural and collective cases, you need comparative information (data, evidence); must base case on obtaining comparative data, e.g. how many schools do not enjoy services other have, etc.
- If you have a structural objective of decreasing inequality, one case is not enough; we can only put so much in one case, i.e. deal with one specific problem that is connoted to other problems. To NGOs that work in this field, they should consider cross strategies, i.e. using media, interacting with civil servants, because when the case is finished, the problem continues.
- Working with cases far removed from communities. These structural equality cases are such that we cannot have direct access to clients. For example, there are 9000 poor children without access to schools in Buenos Aires - we cannot be in direct contact with each person in the group. This is a problem because resolution of the case doesn't generate empowerment within the group. So we need to build cases that are in direct contact with communities to empower them.
- Difficulty in committing the public authorities to the implementation of the resolution. Litigation involves effective solutions, and we must gain commitment of the political powers.
4. Litigating Women's Social Rights, Leilani Farha, Centre for Equality Rights and Accommodation, Canada
In Canada, ESCR is not formally articulated in the charter at the provincial or federal level. We defend social rights by using the rights Canada has fully articulated. Some of our leading cases on women and ESCR involve women and sex equality claims. Leilani focused on three cases, and highlighted how the understanding of equality rights claims of litigants can make claims stronger and get better remedies for women and the population as whole.
Two important cases Leilani discussed were housing cases involving security of tenure and provision of adequate housing. The first case was decided using Charter of Rights and Freedoms and launched by Irma Sparks. It challenged a law that allowed people in public housing to be evicted without reason. The same law didn't apply to those living in private housing. When Sparks challenged security of tenure, what became important was "who are public housing tenants?" She herself was a black, single mom. In court she argued that because women, single mothers, and women of color make up large portion of public housing tenants, the law was discriminatory in terms of equality rights provision of Charter. The Nova Scotia court ruled that the law constituted race, sex, and family status discrimination. The court tried to understand the intersectionality of discrimination for Irma Sparks, and that understanding allowed them to examine the law at play here. The court could have given the government benefit of the doubt, but it was clear here that people worst effected were the most disadvantaged in Canada.
The Kearny case arose from a policy landlords used to determine who would get housing - it was "rent to income" ratios. Under the policy, any income that would be using more than 30 percent of income for rent would be excluded from rent. Landlords defend the policy on the basis of risk assessment/reasonability argument and that the rule is neutral and applied across the board to all applicants. Our organization found that women, people of color, young people, and immigrants are the most affected. One applicant was Katarina, a political refugee from Angola who left after husband and went missing in Angola. She was living in shelter in Angola, and when she tried to move she was denied because of rent to income policy. The Human Rights Tribunal, which heard the Kearny case found there is no evidence that lower income tenants more likely to default on rent. This was a notable decision because it was the first in Canada to find that discrimination based on poverty is actually a form of sex discrimination.
Baker was an immigration case involving a Jamaican immigrant woman who was about to be deported. She had four children in Canada, and four in Jamaica. She had been a domestic worker in both places. Immigration officer had discretion about whether to deport her. Court was asked to decide whether they should consider best interest of child standard of the Convention on the Rights of the Child (CRC) in deciding the case. Court found that the CRC standards must inform the exercise of the officer's discretion. Case wasn't argued under Section 15 of the Charter (equality section). The Judge was an equality rights expert and she could see how the intersection of all of Baker's discrimination informed what would be in the best interest of the children.
Leilani finally emphasized that the equality rights analysis can be brought to any litigation you do. When challenging a state on housing policy, by inserting an equality analysis, you can understand better whether the government's policy will meet the needs of women - more governmental funding for social housing doesn't necessarily get to women's problem of access to housing.
5. Notable Comments from Discussion
• Priti Darooka, as the moderator asked: Litigation is very technical, so how can we be inclusive in process at both national and international level?
- Janet Lord responded: Great question, we can draw some conclusions from the disability treaty negotiation process, where we tried to bring in a lot of people affected from all over the world. We put together human rights trainings for newcomers to disability and HR field. Many participants went on to serve as NGO advisors and government advisors in the delegations for other countries. There are ways through HR education to make processes inclusive and meaningful for those new to litigation and negotiations.
• Mala Naidoo, Masimanyane Women's Center, South Africa: In terms of whole experience in litigation, what are views on group action versus individual action, and more specifically the whole issue of resources and what impact that has on the ability to litigate?
- Nuria Becu responded: The advantage of individual litigation is to empower the client to continue to fight in the future, but the impact is less. You have to balance both. It is a strategic decision. You have to try to work with both types of cases. The benefit of making a case collective is working with the media so people begin to think differently about equality and human rights. This empowers them to keep fighting collectively in the future.
• Manal El Tibe, Egyptian Center for Housing Rights, Egypt: Manal noted that a discussion of human rights, and women's rights in particular, must be in context of rights in society. Manal specified that she was especially concerned about women's rights in Africa, Asia, and Muslim countries in Middle East. She feels women's rights groups are working in vicious circle, and will not reach women's rights standards recognized internationally. Litigating rights does not influence the policy. Litigating women's rights won't change culture. Cultural and social change must foment political change.
- Shanthi Dairiam, IWRAW-AP and Member of the CEDAW Committee, Malaysia, replied: Sitting on CEDAW, we have the whole of article (5) which talks about obligation of the state to eliminate cultural practices that discriminate against women. Cultural arguments are based on emotion, but are premised on privileging one group (here it would be men). The Committee is clear in telling states parties that they can't protect the interests of a cultural group, but men are in that group...so there are material consequences to preserving a culture that discriminates against women. Shanthi then cited Nepal, which made big gains in changing the law of inheritance by showing how traditional practices disadvantaged women. They disseminated the information by spreading the information and beginning a movement to overturn the practice. She said we need to be more concrete, and not emotional, about what we are talking about.
1. World Bank Inspection Panel and Other International Human Rights Mechanisms, Bret Thiele, COHRE, USA
If creatively utilized, the World Bank Inspection Panel can be used to remedy human rights violations, and to integrate human rights norms into World Bank policies. The project COHRE is working on in Accra, Ghana, began in early 1990s when UNDP drew up a plan for a landfill. It identified residential areas and said the landfill had to be far away from it. Nothing happened, and in the meantime residential areas were built up around the site. When the project was finally financed, it resulted in forced evictions of a community of 2000 families. We appealed to the Panel and at admissibility stage, the Panel said the Bank couldn't proceed without a proper resettlement plan. We ended up with an injunction on forced evictions. They also said resettlement plan had to be drawn up with the full and meaningful participation of community itself, which wasn't happening.
The other case to discuss is the Chixoy Dam in Guatemala, which was constructed in 1980s. The Rio Negro community, of 800 persons, was displaced to make way for the dam. The government entered into negotiations with the community and offered inadequate land for relocation [urban slum], which the community didn't accept. The government went in and killed many through a series of evictions to forcibly relocated the community. The dam was an Inter-American Bank (IAB) and World Bank initiative. World Bank and IAB provided funds before and after massacres. One massacres occurred with security guards using uniforms and construction truck from site.
When COHRE brought the case to the WB Inspection Panel to hold the Bank directly accountable for the violations, they really wanted to push the jurisprudence so that regional bodies could hold IGOs accountable for human rights violations. Also, the case was so egregious, and it dealt with negative obligations, making it a good test case. So we made an argument that states cannot get together in an IGO and use that organization as an agent to carry out human rights violations. Fortunately, the International Law Commission at the same time came up with provisional Guidelines for State Obligations Regarding IGOs. Essentially, when states act collectively they maintain the same obligations as when they are acting singly. An alternative argument was that at least with respect to the Bank, as an Agency of the UN, the Bank must abide by the UN Charter and purposes of Charter as found in Art. 55 and Art. 33.
Lessons learned from using the Panel.
- We filed our case and it moved quickly (four months for admissibility decision) - it is quicker than regional and international treaty bodies.
- Engagement with the Inspection Panel should be used with a very good strategy where the advocates point at complicity of government in violations caused by the Bank, so the government can't use the bad reputation of the Bank against the community itself.
- Shortfalls of using the Panel include: a weak remedy and potential of backlash.
- Benefits to using the Panel are:
- It is a very fast mechanism and good when time is of the essence.
- Possible to expand the jurisprudence. Even though the Panel is only mandated to adhere only to its own policies/procedures, people are making human rights arguments to educate the Panel about the State's human rights obligations that must be taken into consideration in any analysis.
2. Civil Society Intervention before ICSID: The Case of Suez v Argentina, Carolina Fairstein, CELS, Argentina
In 2001, Argentina experienced a social and economic crisis, which among other things, led to the government devaluation of the currency, then pegged to the US dollar, in which the value dropped by 4 times what it was from one day to the next. This came in the context of decades of the neoliberal economic model, which effect was to privatize almost all state enterprises. In this context of an increase in poverty that had never before been seen, where real wages had devalued by an average of 4 times, 5 million individuals dropped below the poverty line. The private companies were upset because they were not permitted to raise the prices of public services, as one of the first measures taken by the government was to freeze the rates. Many companies complained and brought the Argentine state to the ICSID Tribunal because Argentina, along with a majority of countries, had signed bilateral investment treaties, which have investment protection clauses that protect against expropriation and discrimination against foreign corporations.
Human rights advocates were almost obliged to oppose the increase in rates for public services, especially on water and sanitation as an essential service. These companies were pressuring the state in this international tribunal and were able to do so because the mechanism is not transparent. There had already been a lot of literature written on how these tribunals were being used by foreign companies to pressure the state to reform, thus obtaining certain favorable conditions. At the same time, the government, as a result of this crisis, entered into a number of contract renegotiations with companies at the local level. These renegotiations analyzed the structure of the contracts, and sought to eventually resolve the conflict mutually. This renegotiation process included a consultation and participation mechanism with the users. However, as the companies renegotiated at the local level, they also pressured the state through the international tribunal proceedings, which no one was able to monitor or participate in. Human rights advocates worried that if the Argentine government lost this case in ICSID, future regulation of the public services sector would be impacted, as there are now many private firms investing in this sector.
CELS decided to intervene in the ICSID process, which until then was almost completely closed and secretive. There had been one previous similar case regarding Bolivia in the arbitral process, and ICSID held that they could not accept a third party. Yet, they felt that Argentine civil society needed to be part of this process. In this context, they decided to present an amicus curiae, which other tribunals had accepted. They faced some strong reactions to this from Argentine public, who had been radicalized and argued that actions like this would legitimize the process, that CELS were friends of the Tribunal, etc.
Carolina argued that CELS went into the process with strong reasoning and argumentation about the fact and that this was not an ordinary trade or commercial case, but the public's interest and human rights were intimately at stake, and they had a lot to offer to the Tribunal and should be heard. She also noted that CELS had the need to position themselves differently than the state in the case. They criticized the structure and workings of ICSID, and also that it is part of the World Bank, and in their case another agency of the WB was one of the principal investors in the company, which brought the case to ICSID.
In May 2002, ICSID accepted that there was nothing in their bylaws which would prohibit them for accepting presentations by third parties as amicus curiae. This was an important precedent in this forum. ICSID also accepted CELS arguments that: the case could impact future regulatory efforts; that it was different because the public interest was concerned; and that the judgment could affect how the water and sanitation distribution system works, thus affecting people directly. CELS made a second presentation, explaining the need to integrate the interpretation of human rights law within the interpretation of secondary contract law afforded by the BITs. The case is still under consideration by the Tribunal.
3. Joining State and Civil Society Efforts Before the WTO - The Tires Case, Marcela Vieira, Conectas Direitos Humanos, Brazil
In 2007 the WTO took measures to restrict import of waste tires, on theory that accumulation of waste tires poses a public health risk and environmental health problem. Although generally retreading tires to extend their useful life is one way of addressing the waste tire problem, retreading tires leads to a problem for countries importing them because the waste tires have a shorter life and cannot be retreaded again. Despite all the environmental and health problems related to waste tires, in January 2006, the EU challenged Brazil's policy regarding the restrictions on retreaded tires. The EU had previously passed legislation prohibiting storage and disposal of used tires in landfills after July 2006. Because of this legislation, over 80,000 tires previously placed in Euro landfills each year would have to be put elsewhere. By exporting treaded tires to developing countries, it became clear the EU considered exportation a viable alternative to retreading tires within its own borders, and that EU intended to burden others with the harmful effects of its waste.
Brazil's response was a good example of how states and civil society can join to defend a state's interests. Since the case was related to human rights, the government reached out to human rights NGOs to get their support. The Brazilian government made all written submissions in the dispute publicly available in Portuguese and English (which is unusual with regard to WTO papers). In general, WTO dispute papers are secret and not transparent, especially in developing countries. Also, for the first time the government held meetings with civil society organizations (CSOs). By contrast, the EU which usually makes submissions public did not publish its submissions. Conectas and six other organizations submitted amicus to the WTO Inspection Panel regarding public health issues. This was the first time Brazilian organizations filed amicus in front of the WTO. The NGOs participation helped spur media coverage of case from environmental and public health perspectives in support of the government's position.
The WTO Panel and Appellate Body made a number of findings in support of the Brazilian government's rights to limit the importation of the tires. Specifically, the WTO found that the ban on retreaded tires would pass WTO examination, if implemented on a non-discriminatory basis. Panel also recognized that Brazil had the right to take into account other obligations and considerations in its trade negotiations. Therefore, government collaboration with CSOs represented a change in practice for what is traditionally considered one of the most closed of Brazilian government ministries. This decision helped open up Brazilian trade policy and as a result NGOs have greater access to government policy making.
4. Challenging EPAs in the National Courts, Louiza Karibu, Kenya Human Rights Commission, Kenya
Economic Partnership Agreements (EPA) are a new or envisioned trade agreement between African, Caribbean and Pacific states and the EU. Kenya is currently negotiating an EPA under the auspices of the East Africa Community. The thrust of the EPA is to liberalize all sectors of economy, in line with WTO rules on reciprocity and non-discrimination. The main aims are to promote sustainable development and to reduce poverty by sustained economic growth. CSOs in Kenya and Africa at large are working to stop these agreements.
Concerns with EPA's are:
- People mandated to negotiate the treaty on Kenya's behalf are paid by EU;
- Agreement will violate the right to work. What has been noted by a report commissioned by Ministry of Trade is that Kenyan organizations are vulnerable to unfair trade competition by the EU;
- EPA also will violate right to food. Local products will experience decreased production. Example: maize product price is increasing; it will become worse if we implement the agreement, with the current EU agricultural subsidies (for example, EU spends 16 billion Euros on dairy subsidies alone);
- Increased dependence on food imports;
- We will also experience dumping on our markets of cheap imports;
- Revenue losses from decreased tariff revenues. We will use our traditional markets in COMESA region - 16.1 billion of Kenyan exports will be under threat;
- Loss of livelihood, especially in the agriculture and dairy sectors.
The Kenya Human Rights Commission in connection with Kenyan Small Scale Farmers Forum filed case in High Court under section 84(1) of the Constitution. We intend to attack the EPA on two fronts: 1) that EPA violates sections of constitution 70(a) - 71, 73, 75 (covering the right to life, slavery, dignity, property), and 2) that there was no effective civil society participation. With these cases, we want to compel the government to conduct a human rights impact assessment, or to acknowledge that the EPA will violate fundamental rights. We are also urging government to give CSOs an opportunity to effectively participate in negotiations. We are also seeking an order from the Kenyan Human Rights Commission (governmental body) to make available to the participants information about the agreement. Finally, in order for Kenyans to be able to effectively participate, we are asking that the government give Parliament a role to participate in negotiations.
5. Challenging TRIPS in the National Courts, Colin Gonsalves, Human Rights Law Network, India
The cases Colin highlighted were all based on Art. 21 (right to life) and Art. 14 (equality clause) of the Indian Constitution. He noted there is nothing special about these clauses - they are present in all constitutions across Africa and Asia, but that it is through this legal constitutional structure that judges put meat on bones. It could be a good strategy to use with activist judges willing to go out on the line. He then summarized some successful cases using this approach, two of which are highlighted below.
(1) Right to food case: One of largest class actions in world impacting 350 million people, and forcing government of India to spend millions of dollars, and sending government into economic turmoil. You can see the right to food orders on HRLN.org. One of the victims of the order was GAIN (conglomeration of EU and US micro-nutrient companies). HLRN was covert in getting an order against them without making them a party by getting an order against them from the Supreme Court requiring locally hot cooked meals in schools. The GAIN consortium didn't notice the order, then they noticed that you couldn't have a micro-nutrient enriched biscuit or lollypop hot cooked. Then there was a series of seven applications to set aside the order, but the court declined.
(2) Drug Case (drug prices). In 2006, government proposed to deregulate the pricing of drugs and mysteriously, an order of government came out to deregulate the prices of drugs, even those on the list of essential medicines. We did a bottom up approach - a HR grassroots approach - to hedge against the inevitable arguments that the policy violates WTO. We calculated how much medicine costs (what percent of income) compared with how much people earn, and demonstrated the impossibility of citizens to pay for drugs without price controls. The opposing argument was made that market forces will correct to reduce prices (WTOs argument). The CSOs came up with a study to show that with pharmaceutical companies, the market correction argument is a myth, because the highest selling drug is the highest priced. The case is pending, but they have an interim order for the moment (status quo maintained, i.e. no deregulation from 2006 to the present). The government had to explain how poor people could afford the drugs. Case was a sort of a success.
6. Graniti v. South Africa: A Multi-Pronged Strategy, Steve Kahanovitz, Legal Resources Center, South Africa
European based investors in the South African mining industry have mounted international arbitration against the government alleging that the "black economic empowerment" (BEE) policy of the ANC government has violated mining contracts, leading to investors suffering damages and being denied equitable treatment. Shareholders of company are diverse (Italy) and other European States. The investors claim that they first invested in 1993, and now because of the change in regime after apartheid, are subject to new laws. They claim a change in regime constitutes a species of expropriation and violates just and the equal treatment provision. This was because there was a provision in the mining charter that 15% of holdings must be sold to historically disadvantaged South Africans within five years of charter, and 26% in 10 years.
South African civil society response has been muted, in part because so few people know details. If the corporation wins, it means that corporations can circumvent laws with trade agreements, cost the government millions and set precedent. South African lawyers are currently discussing possibilities and here is a list options that may be available. International organizations would also be welcome to submit amicus briefs.
(1) Amicus type application to go before arbitration panel. One problem of taking advantage of intervention is that NGOs have no access to documents. Looking at other arbitration decisions (which are not binding) is helpful on question of access to information. In one Tanzanian case, the arbitral tribunal allowed an NGO intervener to put in a 50 page written submission, with right of reply of both parties. Then parties could consult together, in absence of intervening party, and agree whether or not to engage in the amicus. Here, they responded they would engage with the amicus petition at end of oral submissions in absence of intervener. In the same matter, on the issue of documents, the amicus was not granted access on the following reasoning: (a) the dispute involved information in the public domain; (b) the arbitral tribunal read the rules to mean that if there was objection by one party, then no access would be allowed.
(2) Application made in domestic courts. This would be unusual because it would involve intervening in an international treaty dispute in national court. There is argument for standing that is wide enough to lodge dispute in court, depending on nature of action. It has been suggested that there are grounds to challenge the arbitral regime in South Africa. Specifically, in entering BIAs, government has done things in treaty that government is not entitled to do under international law.
Non-Legal Options that Might be Available:
- Civil society education process;
- Second intervention is political mobilization (trade unions);
- International solidarity (two other governments involved, including the Italian and Belgian/Luxembourg parties to BITs).
- There is question about extent to which there can be cooperation between CSOs and government, like example from Brazil.
7. Notable Comments Following Presentations:
• Legborsi Saro Pyagbara, MOSOP, Nigeria, asked Bret Thiele to clarify the World Bank Inspection Panel guidelines of procedure. Also with regard to the World Bank operational policy on indigenous peoples, can this be used as a tool in the Inspection Panel?
- Bret's Response: The UN International Law Commission is drafting and provisionally adopting articles now on the responsibility of International Governmental Organizations (IGO). One of these define that states have international responsibilities for an internationally wrongful act of an IGO. Article 3 also defines an internationally wrongful act as an act which occurs when consisting of an action or omission is either attributable to the IGO under international law, or constitutes a breach of an international obligation. These essentially support our argument that states obligations remain within IGOs. In our case, we didn't rely on the indigenous operational policy, as we weren't dealing with an indigenous community, but we did rely on operational directive 4.30 on involuntary resettlement (and a bit on environmental issues), which includes consultation and compensation. The Inspection Panel has visited the community 3 times now to understand the issues. A good lesson on documentation is that this community has preserved every document and letter for the Bank's use, providing evidence of the threats of forced resettlement.
• Unidentified Speaker with a question for Louiza Kabiru: Regarding negotiations of the community and the government, who makes the decision on relocation? Also, what is the Kenya Human Rights Commission doing to bring awareness on these important issues, so that they can learn and then support them in court?
- Louiza's response: What can int'l organizations do? A coalition exists of Trocaire, Oxfam, Acord and others, which has been lobbying national and EU MPs to build awareness about this campaign. Local organizations are creating awareness through the Kenya trade network, and have been working closely with the Kenya Small Farmers Forum. ActionAid also works with small scale farmers. Beacon with religious leaders, this way we have been able to divide our work, each groups targeting and mobilizing different constituencies. But honestly, trade is a boring issue. When you invite people to a public forum on trade, very few people come, even at the height of the food crisis. It's been hard to sell the importance of the EPA case. We have been using media strategy, using advertisements in the newspaper, using images and programs on TV and radio.
• Darci Frigo, Terra de Direitos, Brazil: It seems that common strategies of TNCs exist, as seen at least in Kenya, S. Africa and Brazil. Seeing these commonalities, how can ESCR-Net articulate itself and act to counteract them in the global arena, not only in particular national cases, but more broadly. Monsanto for example is in 80 countries, and affects food sovereignty and security in each of these places. If each of the countries continue just complaining, there will be no change. I don't want to disparage these legal mechanisms at all, they are very important, but how can we relate them to social movements, and an ESCR-Net campaign, for example. The problem of food sovereignty, climate change, TNC's activities all stand out as a frame within which we can think of local actions in relationship to, articulated in, a more amplified action. What do you all think of this in our actions as a Network?
- Steve: On relocations, there have been striking legal developments. The S. African government has shifted drastically in the last 5 years for example. These shifts can be used much more creatively. Also, on Monsanto, we should be reminded of the importance of rigor in our work. In an amicus in S. Africa about Monsanto, which undoubtedly added value to the case, this led to a cost order on the filing party, which is very threatening. Also, more linkages with social movements and trade unions is also very important, for practical and other reasons.
- Carin Smaller, IATP, Geneva: How to build larger strategies with movements behind the litigation is probably one of the key challenges we face in our future strategies. IATP's work in this context is primarily preventative, to stop agreements from being signed in the first place, whether Bilateral Investment Treaties (BITs), or multilateral/regional trade agreements. We need to figure out how to link the two struggles (preventative pre-treaty and restorative post-treaty). Trying to get governments to resist these agreements, we could really benefit from learning about your cases and strengthen the resistance arguments. With better linkages, we could better mobilize the movements and unions to support the litigation efforts. What Louiza is doing with the KHRC is probably the closest thing to that mix, linked to a massive stop EPA campaign, which has other Euro and African CSOs involved to resist these agreements, and then at the same time trying to bring cases to the court. We should really think in the next sessions how to make these linkages. I would love to see more work between the Adjudication, Trade and Corporate Accountability Working Groups.
- Colin Gonsalves, HRLN, India: There is a view which equates internationalism with the UN system, and international legal strategies with the UN system and human rights regime, etc., While not undermining the importance of these institutions, I would say that in the developing world, there is a second and third strategy possible, which is equally, if not more important. The first thing is to look at and document the best practices of African courts and legal systems. From these, plan and strategize legal actions globally, but act in the local courts. I would say this is the most important contribution we could make as a Network, to actually work locally, strengthen capacities, enrich lawyers with similar experiences from all over the place. If we do another Monsanto case, we should coordinate and discuss well what the defense of Monsanto is to strengthen our arguments. Enriching capacities and strengths in local courts in my view eclipses by far in importance work in the UN. We want to use here an insurgent use of the law, using it in a very crafty way to get what we want for the working people. I think you can work out a legal strategy that is truly international. The other thing, there is a real possibility of prosecuting European companies in Europe. This strategy is not easily or well understood but there seems to be an enormous hope in this.
• Daniel Taillant, CEDHA, Argentina: On the ICSID case, the arbitration panel will not consider international law and human rights obligations (unless the parties agree to do so), but rather look to the particular contract law of the company and the state. One interesting thing being debated now (and an interesting space to pressure) is that the UN, through its Special Representative John Ruggie, is considering the possibility of inserting social clauses into BITs, and this would give grounds upon which countries could defend themselves. On the World Bank Inspection Panel, in our case filed at the International Finance Corporation's Ombudsman (CAO), a sister compliance panel at the World Bank, one interesting thing we were able to do was in a parallel complaint to the Inter-American Commission on Human Rights (IACHR), we were able to get the CAO ombudsman to sit with the Commission Secretary at a Starbucks to have coffee together. This resulted in a formal submission of the audit which was against the investment, to the IACHR. This link of a non-binding, weak remedy panel with an obligations-based and binding forum with strong remedies is an interesting way to explore the future of accountability. Since that happened, we know that the IACHR has already made contact with the Inter-American Development Bank to gather information about cases which have engendered complaints within the Commission process. We should explore how to use this linkage between these types of bodies.
• César Rodriguez, DeJusticia, Colombia had a question for Carolina Fairstein: We are fighting in Peru for social clauses in investment treaties, and we have mentioned the CELS case in Argentina and the threats to national protection of ICSID, should social clauses not be added. How influenced is the ICSID process by human rights arguments?
- Carolina's response: This tribunal is not influenced so much by human rights arguments, though individual members of the tribunal may have been. We were more influential, however, in pointing out the strong conflict of interest within the World Bank because of the consequences of their policy of privatization and as stockholders in the company which was making the claim.
[Note: Session 6 was not held due to time constraints]
Moderator for Session, Malcolm Langford, Norwegian Center for Human Rights and Hakijamii, Norway
Malcolm opened the session by asking for reflections - highlights, criticisms, etc., before moving onto concrete strategies.
Comments that were mentioned:
- Extra-territorial obligations, which is an area we increasingly need to be working with.
- One thing that ESCR-Net has to add is cultural rights. We have only looked at ESR. Cultural rights is a narrow area (property, inheritance). We need to address more seriously cultural rights. Possibly develop strategies to influence the current draft of the General Comment.
- How can ESCR-Net support social movements, when NGOs don't have qualified lawyers to take on their cases (they use internship or attachment lawyers). Would like help with capacity building.
- We need to re-emphasize an exchange of experiences between groups in various countries and regions.
- One thing we should begin exploring is the fact that currently there are other institutions increasingly taking the role traditionally held by the judiciary. It is time to begin looking at the potential these emerging extrajudicial institutions have to play in promoting the enforcement of rights, rather than just dealing with traditional courts.
Malcolm summarized the discussions that occurred over the first three days, listening to different suggestions and comments made in the working groups, and suggested there are three streams of work that the Adjudication Group could facilitate:
(1) Information Resource Proposals
a. Case Law Database
b. Workshops (social movements, cross-national experiences, indigenous rights, etc)
c. Better use of Listserv
a. Optional Protocol
i. Ratification Campaign
iii. Committee (composition and rules of procedure, e.g. amicus)
b. National Advocacy for Justiciability
i. Constitutional reform (ICJ, Nepal wants people to support ESCR inclusion in new constitution)
ii. Enforcing judgments at national level (Amnesty talked about 2 pilot projects)
iii. Monitor quality of justiciability (formally and substantively)
(3) Litigation Support
a. Strategic litigation fund to more quickly make available resources for cases that are catalytic; could link up with OP
b. Transnational litigation
c. Transnational use of amicus briefs
Three institutional comments: (1) prioritize what is short term (few years) and long term (to move towards); (2) second consideration is how do we actually work together once we return to our countries. One lesson that we learned from case law database is that a number of NGOs took ownership of it, and there was also external funding support (Ford); (3) Secretariat support, Malcolm's opinion was that there should be one person in the secretariat to support this work (case law database, listservs, etc).
Malcolm then invited comments to this outline, which are summarized below:
• Unidentified Speaker: Regarding Case Law Database - there seems to be two ESCR movements: one happening in English, one in Spanish. There are remarkable things happening in Latin America that English speakers could learn from. Case law from all of the languages represented in the Net should be represented. We need to get funding so that case law database is in as many languages as possible.
• Aoife Nolan, Queens University Belfast, Northern Ireland: Regarding leadership, we have had Julieta coordinating and editing the cases. If there is a person in the Secretariat working on this, they would have to edit the cases like Julieta did. Also echo the language comment - should target funders specifically on translations.
• César Rodriguez, DeJusticia, Colombia: On case law database, DeJustica would be interested in helping to contribute cases from Colombia and one way that they have "cut costs" is get interns involved in the translation of the main decisions from Latin American courts. They would be willing to volunteer some of their interns time to help the Network with translations.
• Meghna Abraham, Amnesty International, UK: On case law database, I agree with point that it is important to have formatting. But wondering if we should use the "key" model (like Wikipedia). There is good technology for this. Difficult to employ a Wiki technology, because we need to ensure quality, but maybe we could have a mixed model where people from around the world could contribute, and someone in Secretariat could check.
• Unidentified Speaker: We need to think more about how the Network can be used for effectively. This is especially important in light of how intensive the coordination will be for the OP ratification campaign. We will need support for both national and international campaigns and we should explore how the Network can play an even more effective role in this process.
• Meghna Abraham, Amnesty International, UK: Regarding Optional Protocol: (1) ratification campaign requires much resources and coordination so that it endures long term and past the first ten ratifications - national NGOs need to take the leadership on this, perhaps in connection with a larger movement on ESCR; (2) explore how Network could be used more effectively for ratification process for the OP. Note that in 3rd Committee only 52 states had co-sponsored the resolution. Many Asian and Latin American countries are missing. We understand that the OP will be adopted, but this could be a problem for ratification. We have a letter for key African and Latin American States. On behalf of the NGO Coalition, she has a letter that she wants to circulate around and also wants to release a joint statement upon adoption and would like to ask if Network will support it. In relation to Amnesty's work, they would be interested in collaborating with the Network on a campaign for legal enforcement of ESCR. It's in the early stage, so they are interested in suggestions and collaborative ideas.
• Oscar Ayala, Tierraviva, Paraguay: The Inter-American Court has examined the collective right to property for indigenous communities, and issued a statement on the validity of a treaty between Paraguay and Germany in which it stated that a bi-lateral investment treaty cannot have precedence over human rights obligations. He suggests that the Network should somehow create a monitoring and support system relating to implementation of positive decisions from the Inter-American Court so ensure that ESCR are fulfilled, especially in relation to the collective rights of indigenous peoples.
• Carolina Fairstein, CELS, Argentina: We are talking about two different things. On the one hand it is how Network can be a good tool for all of us in our cases and making connections between NGOs in litigating cases, so for example, they can write amicus briefs for each other. But my question is about the Network as an actor itself. We have to think about many aspects. First, the Network as a tool to improve our own work - we need to think about resources to make it more dynamic, so you can post a question and get an answer more easily. Second, is about the Network as a political actor itself, the Network should be able to make a public statement itself. She thinks the Network needs more flexibility to be a political actor in the realm of ESCR to create more visibility of the ESCR field. We must think about which issues to advance each year, so we know what types of workshops to run if we have money, e.g, meetings of constitutional judges or administrative bodies.
• Aoife Nolan, Queens University Belfast, Northern Ireland: I think the political role of the Network is very important. It will be important for the Board to take leadership on this, which they haven't done to date. If we do see the Network adopting a political approach, it will be important to establish mechanisms to decide the issues selected and ensure the Network is accountable to the members for the positions it takes. We could get ideas from other groups on how they reach collective decisions.
• Unidentified Speaker: I would want to insist on the necessity and the speed by which the Members can pass information to others in the Network. Strong communication is a very important tool, starting with the list of people attending this meeting. We are a member of OECD watch; every time a member creates a statement, it is circulated immediately for comment. The Secretariat could help with coordinating and information exchange. We should also have an urgent action mechanism to respond quickly.
• Unidentified Speaker: To what extent is the Adjudication Working Group autonomous from the Network as a whole - because having to rely on support from the whole membership in order to write an amicus, for example, could be complicated.
Julieta Rossi, ESCR-Net Secretariat, then responded to some of the comments made: When you go to governance document, the Network was designed to advance work through working groups. A political role and unified voice on policy issues had not been thought about originally. The structure that exists is that we work through working groups, which is decentralized so that smaller groups can design their own projects. The board has a general control function, but does not approve everything. Not all members must approve of what goes on in each working group. The structure isn't very bureaucratic. So we have to think about how to push forward the work that members in working groups have decided to carry out. Requiring consensus on working group actions would be an obstacle. It is important to think about how Network can be more unified because we will talk about it in governance session. How can we have a unified voice on certain issues - this is left out of our governing document. What role should the Net play - should it have common positions, or specific campaigns?
Comments from participants then continued:
• Unidentified Speaker: With respect to taking a more unified position, right now it is an important possibility so that this Network can take a political role worldwide from the point of view of ESCR. We are in a serious food crisis, which implies massive ESCR violations. Therefore there is a need for an articulated campaign of the Network with others. This would be an important contribution of the Network to ESCR. • Darci Frigo, Terra de Direitos, Brazil: On the issue of monitoring the quality of justice in the countries, we are interested in working with others on this. In Brazil, there is selective justice and operates to the detriment of the poor. It will be important for the Network in the next few years to address the violations of multinational corporations (MNCs) that are violating rights, and campaign against the violations.
• Carolina Fairstein, CELS, Argentina: I am not proposing to abandon the role the Network is already playing (tool for NGOs and connecting NGOs), just stating that it needs to be expanded to embrace a political role. Also, we can all contribute to make the Network more visible (for example, stating Network membership when individual member organizations write amicus briefs).
• Alberto Ernesto, Rede-DESC, Angola: I want the Network's support in monitoring our national constitution in Angola.
• Amadou Ceesay, African Centre for Democracy and Human Rights Studies, Gambia: We need to do more and more to engage state actors in our work to realize ESCR. Also, local communities should be engaged, sensitized, and capacity built so they can make demands on the government. I would like to add that meetings like this should engage the authorities of the host country more (Kenyan authorities taking leadership). In the Gambia, we have engaged local government to sensitize them about human rights. We also engage security forces and national assembly members. The judiciary also needs to be informed about certain things. We need to engage each of these different stakeholders.
• Salih Booker, COHRE, Switzerland: I want to propose that we consider a global campaign for ESCR. We are all in different working groups - but we need to make sure we practice the indivisibility of rights. This unique opportunity allows us to recognize the power of the Network as a force of social change - this will help us integrate the human rights and the social justice movement, which is sometimes skeptical of the human rights framework. This is a practical proposal, because it doesn't require that we do anything differently. No matter what issue we are focusing on, that can constitute a global campaign for ESCR. This is just a way of reframing what we are doing to magnify the visibility and impact of the work. It would be a highly visible response to economic crisis and recovery policies (which are more of the same). It would magnify what we are doing, and would be decentralized. It would allow us to do the same thing, but just under a different banner, with a single demand that all recovery and development efforts must be done with a rights-based approach. It would allow us to clearly identify violators at the international level (eg. pharmaceutical companies, MNCs, etc). The opportunity could slip away quickly because all of the responses to the crisis until now completely lack a human rights discourse. We could insert that perspective. We should discuss the proposal in Governance sessions.
• Chidi Oduji, SERAC, Nigeria: In Nigeria, we get very good judgments from the court. Our problem is enforcement. She spoke specifically about housing rights. Where there is the mechanism, who enforces and monitors it? We have a favorable decision rendered 18 years ago without enforcement. Currently, a complaint has been filed with the help of a US law firm with the African Commission, but the decisions are only recommendations. The question is what do we do when the state refuses to comply?
• Bukeni Waruzi, WITNESS, USA: Opposes the idea of the Network running a single campaign on ESCR. I don't think the Network is unable to manage diverse campaigns. The key is ensuring that the strategies and resources are used effectively. We need to explore how they could be improved. There is the question of how to prioritize the issues and campaigns put on the table. We must think strategically to make our work more effective and profitable for everybody.
Malcolm then summarized the priority areas that had been discussed to that point:
- Case Law Database (translation, cultural rights cases, Wikipedia integration, intern support, bring in one university per region for support)
- OP Ratification Campaign
- Enforcement of un-implemented judgments - Malcolm this suggests this be the theme for a workshop next year.
- Support law and constitutional reform (especially Angola, DRC and Nepal) 5) Strategic litigation fund to support NGO's.
Then the discussion continued:
• Aoife Nolan, Queens University Belfast, Northern Ireland: I really like the idea of workshops on enforceability and implementation. Can we discuss how workshops would be organized? Do we want a series of workshops, do we want regional workshops? Where do we move from here? These could provide a great opportunity for networking and capacity building.
• Odindo Opiata, Hakijammi, Kenya: I also support the idea of having a workshop on enforcement, because this would help us have a more constructive dialogue between litigators and others involved in the process. It would bring back into focus the issue of what the state really is. Litigation sometimes treats the state as if it is not problematic. But usually the state is a problem. We need to encourage dialogue so that we can find strategies that work, and mean something to the people.
• Chris Newsom, Stakeholder Democracy Network, Nigeria: This should obviously be a series of workshops. Maybe it should happen over a series of years. One workshop would not be enough.
• Unidentified Speaker: I would endorse having a workshop or series of them on enforcement in this working group. I have another question of governance in the working group. My guess is that we have several fronts to work on, for example a group working on extraterritorial obligations. Would it be better if there were coordinating groups on each of our projects (e.g. enforcement, amicus briefs, workshops, etc). Maybe we should follow the model of the case law database and establish smaller coordinating bodies for the sub-group activities.
• Malcolm Langford responded: When the group was established, there were coordinators [Julieta, Bruce, and Geoff Budlender] for each working group. Now there is not. There has been a discussion on bringing the OP Working Group formally under the ESCR-Net umbrella. This brings the question which organizations regionally and nationally want to take the lead on this. It could be considered that we do this for the other sub-topics we are discussing.
• Juana Sotomayor, OHCHR, Geneva: Speaking on behalf of Office of High Commissioner, one participant when discussing strategies stated: I would like to emphasize that we can be your allies. We have offices in many countries where you are working. In Geneva, we also have a unit that is focused specifically on ESCR. We are producing ESCR materials, and can be your contacts. It is our priority and our mandate to work on many of the issues that have been raised, such as the OP, legal obligations, and enforcement of judgments. Since 2006, the High Commissioner has made statements systematically about ESCR and are willing to dot that more. If civil society engaged this strategy more, it could be useful. Finally, two more practical issues. We can be your allies in terms of amicus. We have already done it in a Mexican abortion case and in the Guantanamo case. The OHCHR might be able to come in with international HR law and support. With respect to translations, Human Rights Commissions often ask for translation. You might also wish to link up with OHCHR or with the Human Rights Commissions in our countries for translation of key documents. Also, with respect to procedural recommendations on working with the government: many groups pool much information in producing shadow report, and it is difficult to follow up with the state. The OHCHR can help with that. We are currently focused on rights to water, food, health, education and disabilities.
• Javier Mujica, Peru: We have valuable experiences involved in the Network. 15 years ago in the Vienna meeting, States adopted national plans of action on human rights, and not all countries have fulfilled their commitments. We should consider the possibility on including a working group on national working plans on human rights.
• Claire Mahon, ESC Rights Project, Graduate Institute of International & Development Studies, Switzerland: I wanted to follow up on the suggestion on talking about workshops, and role the adjudication group will play in determining which cases will be litigated. One of the topics addressed regularly should be strategizing about what cases should be brought under OP to develop jurisprudence at the international level, and how to operationalize the complaints procedure.
• Victor Perez, El Salvador: I would like the group to consider the issue of Free Trade Agreements in Latin America and El Salvador. After 12 years of war and the heave influence of corporations, we have many working in bad conditions and our country is becoming poorer. Also, the jurisdictional character of the Inter American System is very limited in Central America. With respect to ESCR, I think we have achieved very little in my country because the recommendations we have usually do not have binding force with respect to state. It is important we create capacity among lawyers and create capacity in the different regions of the world. Unfortunately, in post war situation, ESCR is still not recognized. I think we should work to make OP recommendations binding.
• Niti Saxena, India: We should merge the two Adjudication and Optional Protocol strategies and working groups, and use the strategies we used for ratification of CEDAW.
• Brenda Campbell, IWRAW-AP, UK: One of the things I want to discuss about workshops is the disability convention. We need to consider the role we want to play on disability. Should we have a separate working group, like we do for women? Could the adjudication group be of help on this front?
• Janet Lord, Harvard Project on Disability, USA: We are looking for ways to see how disability issues can be integrated into different networks. There is synergy between issues and many are the same (e.g. disability and poverty). They are willing to be a source of support for case law database, and ratification campaign strategy. We are still on the fence on how disability can be integrated into the Network. The idea is probably to integrate it into all of the different discussions (e.g. health, corporate accountability, etc), rather than pushing for its own group.
• Meghna Abraham, Amnesty International, UK: To repeat an earlier point, we need to think strategically - what cases are brought and when. Thinking through carefully what decisions we want. We also want to make the OP less legal and more practical, through materials and good practices, and training for trainers on ESCR.
• Malcolm Langford responds: On workshops, besides the enforceability theme, there could be workshops or symposium on cultural rights as well as disability rights. It is a question on how we prioritize resources. Maybe when we are talking about enforceability, do we want to consider whether we are really talking about a campaign? - Says they will talk about it later over lunch. Then referring to strategic litigation to support the OP, he emphasized that we need to consider strategic litigation at the national level and to create positive jurisprudence. How can we get good support and proper funding?
• Meghna Abraham, Amnesty, UK: There is a big gap when it comes to implementation of the decisions of countries and regional decisions. Amnesty has identified that one area we will focus on in their upcoming campaign is a strong campaign for implementation. Amnesty thinks what is needed is making it a public campaign, though sometimes it is difficult to mobilize public around judgments. AI would focus strategically on one country (to get it to implement a decision) to put pressure on another country. The challenge isn't the legal issues, but how to get the judgments implemented. Public advocacy is needed.
• The group generally agreed that they would like specification from the Secretariat as to who will coordinating the case law database and who they should be in contact with regarding cases to submit and what form they should be submitted in.
• There was also a discussion regarding the usefulness of the creation of a Wiki site and/or blog to be able to ask/answer questions. Wiki may not allow the interactive questions people way want to ask.
At this point in the discussion, the Trade group joined and here are the comments which followed:
• Malcolm Langford: Government has signed many contracts that don't take into consideration human rights obligations. The government does not consider different interest in these contracts. How can we address this situation - is it at the level of campaign or litigation? How can we situate it? Example: Daewoo signs an agreement with Madagascar to set aside a piece of land to grow food exclusively for Korean citizens.
• Unidentified Speaker: We need to do significant evidence gathering - maybe FIAN could conduct a fact finding mission almost immediately, and what the impact are with regard to the right to food. The case study based on empirical evidence could help gather the information that might be needed to see if a case can be launched or not.
• Zoe Goodman, 3D, Switzerland: I want to add that another place we can bring this up is that both Korea and Madagascar are coming up in review in May at the ICESCR session. Huge opportunity.
• Kali Akuno, US Human Rights Network, USA: The groups should also look at related precedents on environmental justice and nuclear dumping cases from Africa. This could relate to state and non-state actors.
• Malcolm Langford: Interesting that there is a range of actors in this process. Given that there are European entities involved, there is the possibility for transnational action in Europe. Continental Europe has the easiest system to access the courts (no forum non conveniens) so maybe that should be the site. Does the trade and investment group have any ideas on how to move strategically on this? 3D has decided to work on this issue already. What cases are being considered for the ETO Consortium - they might be of strategic interest.
• Katrin Geenen, FIAN, Germany: There is a report of the consortium, which is online on www.fian.org. The cases are from many cases: (1) BIT case between Paraguay and Germany; (2) another case based on same BIT that went to IACHR; (3) Pulp Mill Case in Uruguay that Daniel Taillant introduced; (4) EPA Kenyan case with Kenyan Human Rights Commission. FIAN would be interested in working on a case study in Madagascar.
• Bastiaan Colombaroli, FIAN, Germany: We can discuss within FIAN internally and with the Secretariat with regard to the capacity to undertake a possible fact-finding mission on this issue of land leases.
• Zoe Goodman: Current Special Rapporteur on the Right to Food was supposed to follow up on Madagascar to follow up to see how the project will impact on the right to food and the right to housing.
• Malcolm Langford: It is important to continue working together and to link the two groups. We also are considering an enforcement case. He thanked everyone for their participation and encouraged follow up on all the ideas and suggestion discussed.