MODULE 22
STRATEGIES FOR ENFORCING ESC
RIGHTS THROUGH DOMESTIC LEGAL SYSTEMS
USING
MODULE 22 IN A TRAINING PROGRAM
The Purpose of Module 22
The purpose of this module is to provide some ideas for using domestic legal systems to promote the realization of ESC rights.
The module
- addresses the domestic application of international human rights law;
- argues for the importance of pursuing the justiciability of ESC rights;
- describes various approaches for ensuring the enforceability of ESC rights at the national level.
The module is followed by an analysis of the Indian Supreme Court’s experience in ensuring the justiciability of ESC rights.
National Constitutional and Legislative Guarantees
Most states include within their constitutional or legislative system clauses, provisions, or sections embodying human rights standards. Not infrequently, these may be embodied within a comprehensive "bill of rights,” which is constitutionally entrenched (i.e., protected from repeal) and which enables courts to strike down inconsistent legislation or governmental acts. But the practice is by no means uniform. In any constitutional system, there are essentially two parameters that govern the efficacy of the domestic protection of human rights. The first concerns the content of the rights recognized, and the second their status.
National legislation or constitutional enactment guaranteeing human rights will characteristically reflect the priorities or values treasured within that particular system and may or may not reflect the content of international human rights guarantees. In some countries a wide range of rights may be constitutionally protected, including not only civil and political rights but also ESC rights. In other countries, however, only a limited range of civil rights may be recognized and then only in a standard piece of legislation.
The status of human rights enactments within different systems also varies considerably not only in terms of their hierarchical position within the constitutional structure, but also in terms of the remedies made available. In some countries, a human rights clause in legislation may be directly invoked by an individual as a cause of action before the courts leading to possible measures of enforcement or the provision of remedies. In other countries, however, the human rights clauses may take the form of "directive principles” whose purpose is to guide governmental policymakers rather than give rise to enforceable individual rights. Such directive principles will not normally be invocable before courts except, perhaps, as a guide to the interpretation of other legislation.
While it is not uncommon for there to be some constitutional recognition of economic, social and cultural rights, it is rare for them to be endowed with the same mechanisms for review or enforcement as civil and political rights. In the main, they have tended to be regarded as "non-justiciable” or "policy-oriented” rights, unsuited to judicial enforcement in any form. Such an approach tends to overplay the characteristic differences between the two categories of rights and ignores the multifaceted nature of "rights” that embody a range of different types of claims. For this reason the trend in recent years has been to accept the possibility of judicial enforcement of such rights, but to confine it to areas that do not preempt entirely governmental decision making.
Domestic Application of International Human Rights Law
Traditionally, the notion was that the nature of a state’s legal order determined the domestic application of an international human rights treaty. When a state ratifies a human rights treaty, the provisions of the treaty do not necessarily automatically become part of its domestic law. Whether they do or not depends on the nature of the legal system. In what is known as a "monist” system, when a state ratifies an international treaty, the provisions of the treaty automatically becomes part of domestic law. International law thus becomes self-executing. The notion that underlies monism is that international law and domestic law are one and the same. Argentina follows the monist doctrine.
Some states follow what is known as a "dualist” system. Dualists see international law and domestic law as two separate systems. International law thus has to be incorporated through legislation before it is applied in the domestic arena.
It is therefore important when developing strategies for domestic application and justiciability of ESC rights to take into account the nature of the domestic legal system. However, it is important to note that international human rights treaties have established some principles for domestic application irrespective of the nature of the legal system.
Principles that govern domestic application irrespective of the nature of the legal system
The basic principle governing domestic application of international human rights treaties is that "the States [when becoming party to an international treaty] are deemed to submit themselves to a legal order in which they, for the common good, assume various obligations, not in relation to other States, but towards all individuals within their jurisdiction.” [1]
The CESCR, in its General Comment 9, has established categorically that
the central obligation in relation to the Covenant is for States parties to give effect to the rights recognized therein. By requiring Governments to do so "by all appropriate means,” the Covenant adopts a broad and flexible approach which enables the particularities of the legal and administrative systems of each State, as well as other relevant considerations, to be taken into account. But this flexibility coexists with the obligation upon each State party to use all the means at its disposal to give effect to the rights recognized in the Covenant. In this respect, the fundamental requirements of international human rights law must be borne in mind. Thus the Covenant norms must be recognized in appropriate ways within the domestic legal order, appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place. [Emphasis added.]
Reinforcing this idea, the CESCR also said in General Comment 9:
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Community Education,
Mobilization-and Litigation
The technical and complex nature of the litigation process makes it the playing field for lawyers and other legal professionals while litigants often watch the unfolding legal drama as mere spectators. This is especially true of litigants at the grassroots who are mostly poor and illiterate, and whose view of state officials and institutions is one of deep suspicion and trepidation. ESC rights litigation, however, can be a powerful vehicle for helping demystify the judicial process, educating and mobilizing affected individuals, groups or communities around issues of concern to them, and clearly defining and framing those issues. Because ESC rights claims often involve large sections of the population, litigation may also become a rallying point for collective action, such that even if the verdict is unfavorable, the consensus and energy already developed can be channeled into other forms of popular expression. To be effective, litigation must be undertaken as part of a broader strategy of human rights education and community action carried out through existing local networks or, where none exists, through assisting to build critical links among members around their shared interests or concerns. The affected group or community must see regular attendance at court proceedings as an important part of the struggle for justice. Issues at stake in the case and highlights of hearings must be explained as simply as possible and in the appropriate language. The larger community should also be kept abreast of important developments through their representatives or other informal channels. This approach has proved successful in the work of the Social and Economic Rights Action Center (SERAC) in Nigeria. SERAC is championing demands for the full resettlement of the 300,000 people forcibly evicted from their homes when Maroko, formerly Nigeria's largest slum community, was demolished by the military government in 1990 without compensating or resettling over 97 percent of evicted families. SERAC's litigation activities seek to further legitimize and consolidate the community's demands. For example, in Farouk Atanda v. The Government of Lagos State & Four Others, SERAC is asking the court to determine whether the housing provided as resettlement to less than 3 percent of families evicted from Maroko is adequate and habitable as required by applicable human rights standards. This and other cases have come to represent a crucial part of the community's resolve to carry on their struggle. Their determination is expressed in part by their regular attendance in huge numbers at the proceedings-and this in turn sends clear signals to the judicial authorities. |
Although the precise method by which Covenant rights are given effect in national law is a matter for each State party to decide, the means used should be appropriate in the sense of producing the results which are consistent with the full discharge of its obligations by the State party. The means chosen are also subject to review as part of the Committee’s examination of the State party’s compliance with its obligations under the Covenant.
Why It Is Important to Pursue Justiciability of Rights
Something is justiciable if it is capable of being brought within the legal framework with the possibility of being invoked by an individual or a group as a cause of action before the courts leading to possible measures of enforcement or the provision of remedies. The question of whether ESC rights are justiciable has historically been one of the least clearly understood and most hotly debated issues in the literature of ESC rights. Most courts around the world have been reluctant to make rulings on ESC rights. They have generally deferred to the policymakers and politicians, hesitant to "step on the toes” of those they believe to be the rightful decision-makers in these matters. They have refused to explore the legal terrain of ESC rights, in which there are few precedents.
However, the enjoyment of human rights will depend primarily on the state’s domestic conduct. "It should be kept in mind that only effective domestic protection can ensure the observance of internationally recognized rights.” [2] Domestic protection cannot be assured without the judiciary, which is the ultimate guarantor of rights. Therefore, a key task facing activists is to ensure the enforcement of human rights treaties by domestic courts. In this regard, "the challenge at this turn of the century is the national incorporation of universal rights, as the only way to enforce them domestically.” [3] The effective protection of ESC rights thus requires that the necessary mechanisms be put in place or adapted to carry out the obligations signed by the states.
Ultimately, it is the state’s obligation to ensure the judicial protection of internationally protected ESC rights.
International law is indifferent as to whether that obligation is carried out administratively, judicially, or legislatively . . . Nonetheless, in the face of non-performance, whether total or partial, it is the justice system that should set in motion the machinery to guarantee the enjoyment of the right, both because under domestic law the Judiciary is the ultimate guarantor of persons’ rights, and because it is the judiciary that has responsibility for incorporating the international rules to the domestic legal system. [4]
Moreover, it is now generally established that ESC rights, like civil and political rights, are justiciable. [5] The states parties to international human rights treaties that recognize ESC rights have adopted specific and enforceable obligations that arise principally from the ICESCR and the General Comments adopted by its implementing body.
Using Courts for Direct Enforceability of ESC Rights
A Case from ArgentinaThe Mariela Viceconte case concerns the right to health.6 It was designed by Argentinian groups to ensure that the state would manufacture a vaccine against Argentine hemorrhagic fever, which threatens the lives of 3.5 million who live in the endemic area, which includes the moist pampa of Argentina. The disease is difficult to diagnose quickly and affects a population that does not have easy access to preventive medical services. A vaccine, Candid 1, has proven to be approximately 95 percent effective and has been endorsed by the World Health Organization. Candid 1 is an "orphan vaccine"; its production is not profitable for commercial laboratories. Some 200,000 doses were obtained from the Salk Institute in the United States for an experimental program; 140,000 doses were administered from 1991 to 1995 to residents of the endemic zone. The state was unable to carry out a massive vaccination campaign due to the lack of an adequate quantity of the vaccine.
A judicial writ of amparo (a constitutional remedy providing individual relief) was filed to protect the right to health of the persons living in the affected areas. The Court of First Instance rejected the writ. However, in 1998 the Court of Appeals ruled favorably on the same writ. The judgment established the state's obligation to manufacture the vaccine. The court also set a legally binding deadline for the obligation to be met. The appellate court's judgment was based on the American Declaration on the Rights and Duties of Man, the UDHR, and article 12 of ICESCR. All these instruments are incorporated into the domestic law in Argentina and are considered to form part of the Constitution.
In addition to having guaranteed the manufacture of this vaccine, this case is important for raising other issues:
• It reaffirms the judicial process as a method for enabling ordinary citizens to challenge state agencies regarding the merit of environmental and health policies. It recognizes citizens' standing to request a vaccine for 3.5 million people in the affected area. It reinforces the role of the collective writ of amparo as a means of citizen participation in and review of public affairs.
• Direct application by a domestic court of international standards on the right to health expands the scope of activism for ensuring the realization of ESC rights.
• The imposition by the court of personal responsibility on two ministers for the manufacture of the vaccine with a specific deadline demonstrates that the obligations arising from ESC rights are legal in nature and entail legal liabilities.
• The judgment also affirms the role of the state as guarantor of the right to health when certain services turn out to be unprofitable or otherwise ill-advised for the private sector. In this way, the judgment seeks to strike a balance between state and market, as the only way to ensure respect for human rights.
• In response to the finding that a constitutionally guaranteed right had been violated, the judges set a limit on the discretional authority of the executive by ordering that it carry out what it had committed to under the Constitution.
• Finally, the judgment defines the role of the judiciary when authorities fail to act. In this case, the court did not hesitate to assume its role as a guarantor of fundamental rights even though it involved economic and social rights.
Ensuring the Justiciability of ESC Rights
This section deals with some strategies that could be adopted for ensuring justiciability of ESC rights.7
Using courts for ensuring direct enforceability of ESC rights
When the obligations of a state are clearly determined, rights are directly enforceable, through either an individual or collective claim. In enforcing a right, it is important to identify the omission that caused the nonrealization of that right. Strategies for ensuring enforceability include two steps: the first is to establish that the state’s omission resulted in the nonrealization of the right in question; the second is to ensure that the state engages in the proper conduct, with proper conduct defined in the most specific terms possible.
Ensuring justiciability by demanding public information on the status of the realization of ESC rights
Another way to make ESC rights justiciable is to demand information on the status of the ESC policies being implemented or planned. The state has an obligation to produce public information and provide access to such information. The states parties to the ICESCR are obligated to oversee, to collect information and to prepare a plan of action for the progressive implementation of the rights recognized in the Covenant.8 Furthermore, in many cases access to information on the status of the implementation of ESC rights is essential for filing an action against the state for failure to implement the obligations it has assumed.
Strategy of deriving state obligations for ESC rights from civil and political rights
Normally, civil and political rights are seen as not requiring positive action by the state. However, if the state limited itself to exercising its obligations to refrain from acting, most civil and political rights would not be recognized for a considerable part of the population.
The Rights of Hypoacoustic Children in Argentina.Newspaper articles reported on the lack of headphones for hypoacoustic (hard of hearing) children who could not purchase the headphones for economic reasons. Investigation showed that the state had no program or plans to address this problem. Public policy was affected by the lack of information regarding the number of such children, the type of affliction affecting them and the leading causes of such an illness. What had been seen as merely a problem of access to a health benefit was gradually understood as a problem of lack of information regarding the composition of a vulnerable group in relation to their access to the right to health. Centro de Estudios Legales y Sociales (CELS), together with NGOs that represent the children and affected families, is analyzing the possibility of initiating legal action and organizing a campaign to demand that the state disclose information on the problem as a necessary step towards designing an adequate program of medical benefits. |
The Human Rights Committee established under the ICCPR has acknowledged the positive obligation of states. With regard to the right to life, enshrined in article 6 of the ICCPR, the committee has noted that the right to life has often been too narrowly interpreted. Article 6(1) of the ICCPR says:
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
The Human Rights Committee has said that "the inherent right to life” cannot properly be understood in a restrictive manner, and protection of this right requires that states adopt positive measures. In this connection, the committee considered that it would be desirable for states parties to take all possible measures to reduce infant morality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.9 Consistent with this broad interpretation of the right to life, the committee requested information on the steps taken to reduce infant mortality and maternal mortality, and to increase life expectancy.10
For its part, the European Commission on Human Rights determined that the first sentence of article 2(1) of the European Convention on Human Rights (ECHR)11 requires that the state not only refrain from taking any life intentionally, but that it take appropriate measures to safeguard life.12
It has been argued that "this may be read
broadly so as to require the state to take positive
steps so as to adequately provide for medical
services, food and shelter, or healthy work
environment and housing.”13 The European Commission indicated in
this regard that the obligation to take "measures”
to ensure respect for the right to life includes
not only the creation of an effective system
for crime prevention (criminal justice system),
but also a public hospital and health system,
which is to say a system of minimal medical
and social services.14
A broad interpretation of the right to life necessarily involves ESC rights, including the right to enjoy the highest level of physical and mental health (art. 12, ICESCR) and the right to an adequate standard of living, including appropriate housing and food standards (art. 11).
In the Airey case15 the European Court of Human Rights (ECtHR) addressed the issue of the material obstacles to the exercise of the freedoms enshrined in the ECHR, and the blurry demarcation, in general, that separates the two traditional categories of rights. Mrs. Johanna Airey was unable to find an attorney to assist her in a proceeding for judicial separation from her husband before the Supreme Court of Ireland. In Ireland, judicial separation proceedings may only be brought before the Supreme Court, which, in view of its high rank and procedures, required the assistance of attorneys whose fees were excessive for the petitioner.16 Mrs. Airey invoked, among other provisions, violation of article 6(1) of the ECHR, which provides for the right to effective access to the courts. At the core of the dispute were the precise obligations the convention provision imposed on Ireland related to the right of access to courts of justice.
The ECtHR held that Mrs. Airey was unable to find an attorney to assist her in the judicial separation proceeding, as she was unable to pay the fees generally charged for such a proceeding. Therefore, the state had not guaranteed her right to effective access to justice, and so had violated article 6(1) of the ECHR.
Establishing obligations for ESC rights based on the principle of nondiscrimination
The principle of nondiscrimination, fundamental in international human rights law, is a very powerful tool for seeking the intervention of courts to ensure the realization of ESC rights. Article 2(2) of the ICESCR sets forth the obligation of states to guarantee the exercise of the rights in the Covenant without discrimination. The ICCPR provides for a similar obligation.
In addition, article 26 of the ICCPR establishes the separate right of all persons to have the state prohibit by law any discrimination on grounds of race, color, sex, language, religion, political or any other opinions, national or social origin, economic position, birth or any other social condition. This state obligation to prohibit discrimination does not refer to any right in particular, and therefore is applicable in relation to all rights, including ESC rights. Similarly, in the Inter-American system, article 24 of the American Convention sets forth a separate right to equality and to be free from discrimination.
The relevance of article 26 of the ICCPR as a possible avenue to the justiciability of ESC rights has been suggested by the Human Rights Committee in the cases of Zwaan-de Vries v. Netherlands. In this case, the committee held that although article 26 requires that legislation prohibit discrimination, it does not contain any obligation with respect to the matters that must be provided for by legislation. Thus, it does not, for example, require a state to enact legislation to provide for social security. However, when such legislation is adopted in the exercise of a state’s sovereign power, then such legislation must comply with article 26 of the Covenant.18
Establishing obligations for ESC rights based on the indivisibility of rights
ESC rights must not be undermined in the process of ensuring obligations arising from civil and political rights treaties. This was established in the case of James and Others v. United Kingdom,19 decided by the ECtHR in 1986. In this case, the petitioner had developed a large property, with some 2,000 houses, and had converted it into one of the best residential areas in London. The 1967 law allowed leaseholders who resided in the houses prior to development of the estate to purchase the property through a sale forced on the seller, based on certain conditions and at a given price, which the seller was unable to question. The developer challenged the law in the European Court of Human Rights. He invoked, among other provisions, a violation of article 1 of Protocol No. 1. This provision guarantees the right to property and authorizes states to regulate property only in the general interest. The European Court held:
The aim of the 1967 Act, as spelt out in the 1966 White Paper, was to right the injustice which was felt to be caused to occupying tenants by the operation of the long leasehold system of tenure. The Act was designed to reform the existing law, said to be ‘inequitable to the leaseholder,’ and to give effect to what was described as the occupying tenant’s ‘moral entitlement’ to ownership of the house. Eliminating what are judged to be social injustices is an example of the functions of a democratic legislature. More especially, modern societies consider housing of the population to be a prime social need, the regulation of which cannot entirely be left to the play of market forces. The margin of appreciation is wide enough to cover legislation aimed at securing greater social justice in the sphere of people’s homes, even where such legislation interferes with existing contractual relations between private parties and confers no direct benefit on the State or the community at large. In principle, therefore, the aim pursued by the leasehold reform legislation is a legitimate one.
Using the concept of ensuring nonregression in the enjoyment of ESC rights
The notion of progressive implementation called for in article 2 of the ICESCR seems to imply, first, that the realization of ESC rights can only be achieved gradually and, second, that the gradual achievement of the effective realization of rights should entail an improvement in the standard for realizing each right. (See Module 9 for further discussion on this issue.) From the state obligation to progressively implement ESC rights, one can extract some specific obligations that could be subjected to judicial review in case of breach. The minimal obligation assumed by the state in this regard is that of ensuring nonregression in the enjoyment of rights-in other words, a prohibition on adopting policies, measures and laws that worsen the situation of the ESC rights that the population currently enjoys.20
With regard to ensuring nonregression, the CESCR has stated: "Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.” 21
Argentine Law and NonregressionThe following conceptual and juridical points have been identified as a basis in Argentine law for bringing judicial claims to enforce the obligation of nonregression. • The principle of reasonability in the regulation of rights is enshrined in article 28 of the national Constitution. It provides that "the principles, guarantees, and rights recognized in the preceding articles may not be changed by laws." It aims at controlling the substance or content of the regulation of rights. Thus, in accordance with the traditional conception of reasonability, the legislature and the executive are held responsible on the rational-basis criteria. For example, the substance of the right must not be affected by their actions. • The obligation of nonregression is similar to the principle of reasonableness. A regulation proposed by the legislature or by the executive cannot reduce or curtail the enjoyment of a right. Consequently, within the available options, the political branches are, in principle, forbidden from adopting unreasonable regulations. In addition, they may not adopt regulations that entail backsliding in the enjoyment of the ESC rights in force. The prohibition on nonregression is a new category within the concept of reasonableness of the law that must be analyzed by the courts. |
The prohibition of nonregression is one of the obligations that clearly is judicially enforceable. It is an invaluable tool for strengthening the justiciability of ESC rights.22
The right to judicial protection and the guarantee of due process to protect ESC rights
The right to judicial protection is one of the essential rights guaranteed in the human rights treaties that may well provide an effective avenue for the justiciability of ESC rights. The due process clause undoubtedly has the potential to constitute an additional source of protection for ESC rights. It should be noted that in the Inter-American system the categories of rights protected by the guarantee of due process of law are specified in article 8 of the American Convention, which states that due process of law is applicable to any proceeding "for the determination of [one’s] rights and obligations of a civil, labor, fiscal, or any other nature.”
There are three essential components of the guarantee of due process in the European, American, and African instruments:
1. Sufficient judicial review of administrative decisions
2. Reasonable time
3. Equality of arms (equal procedural guarantees)
1. Sufficient judicial review of administrative decisions
Many decisions that affect an individual’s rights and obligations are made by the executive branch or its agencies. The CESCR has determined in its General Comment 9: "An ultimate right of judicial appeal from administrative procedures of this type would also often be appropriate.” In keeping with its guarantees related to the right of access to justice and due process, article 6 of the European Convention requires that the state provide for the right to appeal an administrative decision before a court that offers the guarantees established by article 6(1). The same holds true for the American Convention, the African Charter and the ICCPR.
The case law of the ECtHR requires that states parties guarantee the right to appeal administrative decisions to a court that offers the guarantees outlined in article 6 of the ECHR. As regards the scope of review by the court of justice, the decisions of the ECtHR all indicate that a court reviewing administrative decisions should have broad jurisdiction, i.e., over both the law and the facts. This ensures the individual the opportunity to have a judge rule definitively on the merits of his or her claims, with the proper guarantees of independence and impartiality.
The case of Obermeier v. Austria, also resolved by the ECtHR, is interesting, as the right at stake was the right to work. The petitioner had been dismissed from his employment within a government agency based on the consideration that such a decision was "socially justified.” Even though it was possible to appeal the decision to the Administrative Court of Austria, the ECtHR held that such a limited review violated article 6(1) of the ECHR.23
2. Reasonable time
The guarantee of reasonable time is another aspect of due process of law set forth in all international human rights treaties.
In the European system, the reasonableness of the duration of the proceedings in criminal and noncriminal cases depends on the particular circumstances of each case. No absolute limit has been established. The factors taken into consideration are the complexity of the case, the conduct of the petitioner, and the conduct of the administrative and judicial authorities with jurisdiction. None of these factors is conclusive; the approach should be to examine each separately and then evaluate their cumulative effect.24
In the Deumeland case25 the petitioner, in his capacity as legal successor, had continued a proceeding initiated by his mother to receive a complementary pension for widowhood, since her husband had died in an accident in the work place. After eleven years and after going through several tribunals, the claim was rejected. The case was brought to the European Commission on Human Rights with a complaint against the German state for violating article 6(1). The petitioner argued that his case had not been resolved within a reasonable time.
The ECHR considered that article 6(1) was applicable to the case. The second step, then, was to analyze the existence of a due process violation in view of the prolonged time that the proceedings took. In an overall appeal of the case, the ECtHR held that:
Whatever might have been the value of the benefit being claimed, an interval of such length is abnormal for the circumstances, especially having regard to the particular diligence required in social security cases. It is true that the period under consideration is divided into six distinct phases, corresponding to six sets of proceedings, and that responsibility for its duration rests to a large degree with Mr. Deumeland himself. Nevertheless, a number of delays are attributable to the competent courts. Viewed together and cumulatively, the applicant’s case was not heard within a reasonable time, as required by article 6(1). There has accordingly been a violation under this head.26
Thus, in addition to considering the factors referred to above (e.g., the complexity of the case and the conduct of the petitioner), the European Court introduced an additional element to be taken into consideration, namely, the subject matter of the case. The court considered the "importance of what is at stake for the complainant.” Particular diligence is required in cases concerning complainant’s labor situation,27 civil status,28 mental health,29 and title to land.30 In addition, special diligence is required when the delay renders continuation of the proceedings useless, for example, when there is the possibility that the petitioner might die. With respect to this last circumstance, in the case of X. v. France, "exceptional diligence” was required in a civil claim made by a hemophiliac against the state in which the petitioner alleged that a negligent blood transfusion had caused him to contract HIV, mindful of the possibility that petitioner might die.31
No doubt, consideration of the reasonableness of the period for processing a matter could have a favorable impact when economic and social rights are at stake (e.g., social security, labor rights, the right to health).
The ECHR also imposes an obligation on states parties to "organise their legal systems so as to allow the courts to comply with the requirements of article 6 §1.”32 It follows, therefore, that a state can be held responsible not only for the delay in conducting a particular case in the framework of a generally expeditious system for the administration of justice, but also for the failure to provide additional resources in response to a backlog of cases and structural deficiencies in its justice system that caused the delays.33
3. Equality of arms (Equal procedural guarantees)
The last aspect of the guarantee of due process of law is "equality of arms.” This aspect of the due process guarantee inevitably impacts on the final decision in a lawsuit, and consequently on the protection afforded ESC rights.
In the European system, the commission has upheld the principle, in both criminal and noncriminal cases, noting that "anyone who is a party to such proceedings should have a reasonable opportunity to present his case before the court in conditions that do not place him at a substantial disadvantage vis-à-vis his adversary.”34
Interpreting national constitutional and legal guarantees using international norms
Using International
Norms as Interpretive Tools
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National constitutional guarantees and laws may be vague in their coverage and thus, standing alone, may provide inadequate protection against ESC rights violations. It may be possible in such cases to expand domestic protection of ESC rights by interpreting the constitutional guarantees using more developed international standards.
Using Precedents from
Courts
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Using precedents from courts in other countries
Courts in one country may look to decisions
in other countries when seeking to decide a
case that presents new issues. This is particularly
true, of course, when the countries follow similar
legal systems or frameworks, and when historical
or geographical ties encourage such reference.
Many Commonwealth courts, for example, extensively
cite developments in one another’s case
law. The innovative case law and practice of
the Indian Supreme Court and, more recently,
of the South African Constitutional Court, are
particularly influential. In working to extend
recognition of the justiciability of ESC rights,
groups should be aware of and use decisions
by courts in other countries that could be acknowledged
as precedents by their own.
Going Beyond Litigation
Litigation is just one strategy for ensuring domestic application of international human rights law. It is important for lawyers in consultation with disadvantaged groups to assess the risks and benefits of pursuing litigation. In any event, litigation should be part of the education and mobilization process and not an end in itself.
Activists engaged in advancing ESC rights should also take into consideration access problems faced by poor and disadvantaged in using law and the legal system. Most often, the poor experience law as a tool of oppression. Law has traditionally been a source of influence for the rich and the powerful; they have typically kept the poor in a dependency relationship through abuse of the legal process. In many parts of the world, however, groups are successfully using law to defend the poor against such abuse and to ensure that the poor and disadvantaged enjoy their rights. In order to use law as a resource, the poor and disadvantaged need to mobilize and aggregate their demands, acquire knowledge of relevant laws and procedures, and develop skills for advocating their concerns at local, national, regional and international forums.
Use of Law by the
Disadvantaged 38
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Author: The author of this module is Julieta Rossi.
USING MODULE 22 IN A TRAINING PROGRAM
NOTES
1. Inter-American Court of Human Rights, Advisory Opinion OC-2/82, "The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (arts. 74 and 75),” Series A, No. 2, para. 29.
2. Martin Abregú, "La aplicación del derecho internacional de los derechos humanos por los tribunales locales: Una introducción,” in La aplicación de los tratados sobre derechos humanos por los tribunales locales (Cels: Del Puerto, 1997), 5. Thomas Buergenthal and Douglas Cassell, "The Future of the Inter-American Human Rights System,” in El futuro del sistema interamericano de protección de los derechos humanos (San José, 1998), 5. Translated here by Charlie Roberts.
3. Abregú, op. cit., 5.
4. Juan Méndez, "El derecho a la verdad frente a las graves violaciones a los derechos humanos,” in La aplicación de los tratados sobre derechos humanos por los tribunales locales, op. cit., 532. Translated here by Charlie Roberts.
5. In this respect, the CESCR has held in its General Comment 9:
. . . several principles follow from the duty to give effect to the Covenant and must therefore be respected. First, the means of implementation chosen must be adequate to ensure fulfilment of the obligations under the Covenant. The need to ensure justiciability is relevant when determining the best way to give domestic legal effect to the Covenant rights. [Para. 7].
6. National Court of Appeals (Cámara Nacional) for the Federal Contentious-Administrative Jurisdiction, Fourth Chamber, Mariela C. Viceconte v. Ministry of Health and Social Action, 2 June 1998. LA LEY, Suplemento de Derecho Constitucional, 5 November 1998, Judgment No. 98,096.
7. The strategies being developed continue to reflect the characterization made in Víctor Abramovich, Estrategias de litigio en derechos económicos, sociales y culturales, forthcoming, and in Víctor Abramovich and Christian Courtis, "Hacia la exigibilidad de los derechos económicos, sociales y culturales: Estándares internacionales y criterios de aplicación ante los tribunales locales,” in La aplicación de los tratados sobre derechos humanos por los tribunales locales, (Cels: Del Puerto, 1997).
8. CESCR, General Comment 1, paras. 3 and 4
9. CESCR, General Comment 6. See also General Comment 14, on the right to life and nuclear weapons.
10. See note 5.
11. Article 2(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms reads: "Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”
12. X v. U.K., No. 7154/75, 14 DR 31 in 32 (1978).
13. D. J. Harris, M. O’Boyle and C. Warbrick, Law of the European Convention on Human Rights (London: Butterworths, 1995), 40.
14. António Conseiçao Tavares v. France, Application No. 16593/90, ECtHR (12 September 1991).
15. Airey case of 9 October 1979 (Published ECtHR, Series A, No. 32).
16. The evidentiary complexity of the proceeding and the usual practice of the Supreme Court of Ireland made it highly unlikely that the claimant would be able to carry out her separation without the assistance of counsel, even though Irish legislation did not expressly exclude the possibility of pro se representation. Ireland had not, at the time, organized a system of free legal assistance that included family matters.
18. Case of Zwaan-de Vries, Communication 182/1984, para. 12.4.
19. Case of James and Others v. United Kingdom, 21 February 1986 (Publications ECtHR, Series A, No. 98).
20. Abramovich and Courtis, 335, note 7 above.
21. General Comment 3, para. 9
22. Abramovich and Courtis, 335, note 7 above.
23. Case of Obermeier v. Austria, Series A 179, para. 70 (1990), cited by Harris, O’Boyle, and Warbrick, op. cit, 193.
24. Harris, O’Boyle and Warbrick, op. cit., 223.
25. Deumeland case, cited in Harris, O’Boyle and Warbrick, op. cit., 470-498.
26. Deumeland case, para. 90, cited in Harris, O’Boyle and Warbrick, op. cit., 486.
27. Case of Buchholz v. FRG, para. 52 (1982) and Obermeier v. FRG, Series A 179, para. 72 (1990).
28. Case of Bock v. FRG, Series A 150, para. 48 (1989).
29. Ibid.
30. Case of Poiss v. Austria, Series A 117, para. 60 (1987) and Hentrich v. France, Series A 296-A, para. 61 (1994).
31. Case of X. v. France, Series A 234-C (1992).
32. Case of Zimmermann and Steiner v. Switzerland, Series A 66, para. 29, cited by Harris, O’Boyle and Warbrick, op. cit., 227.
33. See Harris, O’Boyle and Warbrick, op. cit., 227.
34. Kaufman v. Belgium, No. 5362/72, 42 CD 145 (1972), and Bendenoun v. France, Series A 284, para. 52.
35. Vishaka et al. v. State of Rajasthan, 6 SCC (1997).
36. Case reported in The Hindu, 9 March 2000.
37. Bandhua Mukti Morcha v. Union of India and others. Taken from ICJ Review, no. 36 (June 1986).
38. Meena Patel, "Paralegals and Labor Organising in India: The Self-Employed Women’s Association,” in Legal Literacy: A Tool for Women’s Empowerment, ed. Margaret Schuler and Sakuntala Kadirgamar-Rajasingham, (New York: UNIFEM, 1992), 189-208.
