Strategic Litigation Working Group Update - August 2017

ESCR-Net Working Group Update
August 2017

Project Updates

Implementation of Human Rights' Decisions and Institutional Development

In June 2017, the UN CESCR released two documents on follow up: (a) follow up of views (in English) and (b) follow up of concluding observations. These documents have been released approximately one year after a discussion held between SLWG members and members of the Human Rights Committee and the CESCR on the relevance of three follow up principles: the principle of reasonableness, the principle of non-repetition, and the principle of participation. The SLWG discussion paper on follow up of views is available here (in English).

In April 2017, the Strategic Litigation Working Group (SLWG) discussed lessons from collective advocacy for implementation in the Sawhoymaxa and Endorois cases, facilitated a consultation aimed at informing advocacy on issues of land and natural resources, and coordinated, in collaboration with OSJI, a series of parallel events to the UN Permanent Forum on Indigenous Issues, to discuss the impact of litigation on land rights, as well as common challenges and opportunities regarding implementation. The following ESCR-Net members were involved: Amnesty International, the AIPP (regional), MRG (international), MOSOP (Nigeria), Narasha Community Group (Kenya), OPDP (Kenya), and Tierraviva (Paraguay), together with representatives of the Endorois Welfare Council. We invite all SLWG members to share strategies on implementation, particularly of land rights’ decisions, as we are planning to compile and disseminate lessons to support ongoing advocacy. While we would like to develop a series of concise case studies, please feel free to share strategies and initial successes and lessons with the whole SLWG, by sending information to strategiclitigation@googlegroups.com.

In March 2017, SLWG members, AIDA (regional), CELS (Argentina), CEJIL (regional), CRR (international), FOCO (Argentina) and FUNDAR (Mexico), as well as a few external partners gathered at the office of the Due Process Law Foundation (DPLF) in Washington D.C. (or joined online), to discuss possibilities for fostering the implementation of rulings issued by the Inter-American Commission on Human Rights. The group is currently drafting a working document on implementation strategies to inform eventual advocacy and should hold another meeting during the sessions of the Commission in Lima (July 2017) or Mexico City (September 2017). We will soon hold a webinar to share ideas on practices that could improve implementation of regional rulings. Stay tuned! We are also eager to expand the discussion to include other organizations in the Americas, as well as members engaged in implementation/follow-up mechanisms in other regional systems or at the international level. If you would like to get involved, please contact Daniela at: dikawa@escr-net.org. In February 2017, the SLWG sent a letter to the African Commission on Human and Peoples’ Rights (ACHPR) (in English) to support the application of Rule 112(8) of the ACHPR Rules of Procedure, regarding the implementation of the Commission’s recommendations on Communication n. 276/2003, on behalf of the Endorois Welfare Council v. Kenya. Next steps on the implementation of the Endorois ruling will include a second workshop to strengthen the role of indigenous women leaders in the ongoing implementation process as well as discussions on the registration of community members. Please contact Daniela at dikawa@escr-net.org, if you have been working with indigenous women leadership issues and/or the registration of members of indigenous communities and would like to get engaged.

Support to Litigation

A new Special Rapporteur on Economic, Social, Cultural and Environmental Rights has just been selected by the Inter-American Commission: Soledad García Muñoz. DPLF (U.S.), CEJIL (regional), OSJI and ESCR-Net organized an event on 3 July 2017, where candidates for the position, including Ms. Muñoz, were interviewed in regard to future priorities and challenges in the protection of ESCR. The video of the event can be found here (in Spanish). ESCR-Net members participated by presenting questions for candidates prior to the event.

After presenting the first third party intervention (in Spanish) in a case before the UN Committee on Economic, Social and Cultural Rights (CESCR), SLWG members have also presented interventions in new cases against Spain and Ecuador. Although the latter intervention is still confidential, the second case against Spain has just be ruled by the CESCR. In June 2017, the UN CESCR issued its Views on Communication n. 5/2015 (in Spanish), recognizing the State obligation to protect tenants’ right to adequate housing. SLWG members, Amnesty International, CELS (Argentina), CESR (international), Dullah Omar Institute (South Africa), GI-ESCR (International), SRAC (Canada), Observatori DESC (Spain), Ana Maya Aguirre and Jackie Dugard, have intervened in the case, showing the relevance, once again, of third party interventions for the drafting of general recommendations. The third party intervention raised four main issues: (a) the right of all persons (including tenants) to housing; (b) the State obligation to guarantee special protection to vulnerable groups; (c) the State obligation to take appropriate measures to the maximum of available resources; and (d) the right to effective remedies. All four issues were reflected in the CESCR’s analysis and conclusions. As we are currently exploring the possibility of new interventions before the CESCR, in line with the SLWG case selection criteria (in English), please write to Daniela at dikawa@escr-net.org, if you would be interested in joining the group of lawyers, responsible for drafting interventions. In addition, members are welcome to request technical support from fellow members on evolving ESCR cases via an email to strategiclitigation@googlegroups.com and/or by reaching out to Daniela.

Since January 2017, SLWG members, ACIJ (Argentina), AI (international), CESR (international), HRLN (India), ISER (Uganda), and SRAC (Canada), have been informally engaging with the CESCR and discussing together the Guidance on Third Party Interventions (in English) issued by the CESCR in September 2016. We welcomed the leadership of the CESCR in increasing transparency and participation by making information on cases available online and issuing the 2016 Guidance, yet there is a desire to see this be a first step. The CESCR has the potential to play a leadership role within the Treaty Body System, with the objective of fostering Treaty Bodies’ visibility, monitoring and implementation, as well as access to information and more robust participation for affected groups. As we look forward to further engagement with the CESCR and other mechanisms, we will hold a webinar in August on the current stage of discussions, open to the participation of all SLWG members. Stay tuned!

Publications, ESCR-Justice Newsletter, and the Caselaw Database

SLWG members have recently published a new commentary on the OP-ICESCR, a discussion paper on the follow up of views issued by UN Treaty Bodies, and a book on the enforcement of economic, social and cultural rights (all available in English). The new commentary was launched in Geneva during the June session of the CESCR. Since January 2017, we have been releasing our monthly newsletter, ESCR-Justice, in four languages: English, Spanish, French and Arabic. For past issues of the newsletter, please click here. Finally, for the last six months, new case summaries have been added to ESCR-Net’s Caselaw Database not only in English and Spanish, but also in Arabic and French. We continue to welcome contributions from SLWG members, regarding recent positive and final (non-appealable) decisions on ESCR. Decisions are posted on the database and released through our monthly newsletter. Please contact Daniela at dikawa@escr-net.org, if you would like to discuss the publishing of particular rulings.

Member Updates

Governance Updates

In the coming months, the SLWG will discuss the possibility of developing a new area of work in line with ESCR-Net’s shared objectives and potentially contributing to network-wide action, most likely: (a) people’s tribunals and expert panels and (b) training of judges. If you are interested in participating in either of these discussions and supporting exploratory research and assessment, please contact Daniela Ikawa at dikawa@escr-net.org.

Member Profile

Interview with Attorney Sawsan Zaher, Director of Social, Economic and Cultural Rights Unit, Adalah - The Legal Center for Arab Minority Rights in Israel

Could you highlight one recent impact that Adalah has celebrated in terms of advancing of ESCR?

Adalah's strategic litigation has particularly focused on protecting and promoting the rights of Bedouin-Palestinian citizens of Israel living in unrecognized villages. Israel's refusal to recognize the Bedouins' ownership of their ancestors’ land is part of the state's strategy to remove the Bedouin from the land, and establish new villages for Jews only. Through litigation, we have challenged Israel's policy of forced evictions of Bedouins from their land, and worked towards securing basic human rights for residents. In 1997, in one of our first major Supreme Court petitions, we successfully argued that residents in 11 unrecognized villages are entitled to health clinics as part of their rights to health, life, and dignity. We continue to work hard today to secure other basic rights for Bedouin citizens. For example, consequent to a recent court petition, we succeeded in connecting schools to the electrical grid in seven unrecognized villages.

What alliances, if any, were important? What is one lesson that you learned as a result of this action?

Much of our strategic litigation reflects the joint efforts of Adalah and our allies in the wider civil society movement. We have learned that strategic litigation must expose not just rights violations but their impact upon both the wider affected group and society. Litigation must also reflect varying perspectives within affected groups allowing for the empowerment of marginalized members.

Would you have any examples where collective action with ESCR-Net members complemented your work or where it might do so in the future?

Our participation in ESCR-Net's Global Strategic Meeting in 2016 led to discussions regarding potential collaborative efforts both with fellow members and the network itself. For example, I fostered the idea of creating regional workshops for ESCR-Net members involved in strategic litigation in conflict-affected and post-conflict countries, enabling members to exchange key lessons.

New Members!
Since this is our first issue of the SLWG Updates, we would like to share with you the full list of SLWG members as well as the list of members of our Steering Committee.

The Strategic Litigation Working Group aims at ensuring accountability for violations of economic, social and cultural rights by strengthening access to competent adjudication and effective remedies within domestic, regional and international systems, developing contextualized models on implementation and making resources available to advocates.

Daniela Ikawa, Working Group Coordinator
dikawa@escr-net.org

Send messages to fellow working group members by using our Google Group, a closed e-mail chain for members of this working group: strategiclitigation@googlegroups.com

www.escr-net.org/strategiclitigation

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