Formulation of policies, development of legislation and litigation are closely related activities. Policies are the general plans or courses of action outlined by governments, political parties, organizations, and so on, which are intended to shape, influence or determine decisions and actions. The policies of local and national governments and parties set the direction and parameters for the formulation of laws, governmental programs and budgets. Litigation is the process of using the legal system to make claims and seek administrative or judicial decisions to help clarify or modify laws and practices.
Human rights standards can be applied in each of these activities. In general terms, where policies are developed within a human rights framework, it is more likely that corresponding laws will protect and fulfill human rights. Likewise, where such laws and programs are designed and implemented, people are less likely to need judicial help to secure their rights, thus obviating expensive and time-consuming litigation. Where laws and practices violate human rights, activists can use litigation to try to claim their rights, help clarify the content of specific rights through local and national courts and administrative agencies, or as a tool for law reform.
Although the Universal Declaration of Human Rights and other international human rights instruments maintain that civil, political, economic, social and cultural rights are indivisible, historically civil and political rights have been seen as matters to be decided through judicial processes, while economic, social and cultural rights have been relegated largely to the "political" arena. A legal scholar 48 explains that the tendency to separate ESC from civil and political rights is reflected in constitutions around the world, where the rights are assigned different legal and enforceability status: fundamental rights (those found in many Bills of Rights) and directive principles of state policy generally correspond to civil and political rights and ESC rights respectively. The main difference between fundamental rights and directive principles is that the former are typically considered "justiciable"; that is, questions concerning their fulfillment or violation are capable of being decided by a court of law. Directive principles assign responsibility for the fulfillment and enforcement of the rights in question to legislators, parliaments or other political fora for policy and programmatic formulation.
The relegation of ESC rights to legislators and policy-makers in most countries makes legislative advocacy and policy work on economic, social and cultural rights particularly important. Furthermore, all governments have more or less extensive programs and policies in the ESC areas. The challenge, therefore, may lie not so much in convincing governments and legislative bodies to formulate policies and legislation establishing programs related to ESC aspects of life, but rather to persuade and pressure them to adopt and utilize human rights standards to help guide and monitor these activities.
The question of the nature and extent of justiciability of ESC rights, and the confusion and controversy surrounding this issue, has implications for legislative and constitutional advocacy on these rights. It is arguable that because most constitutions leave ESC rights out of the realm of "fundamental" -- and thus "justiciable" -- rights, an important area of national-level advocacy would be seeking constitutional amendments to enshrine ESC rights as fundamental rights, thus increasing the ability of individuals to make rights claims in constitutional or other courts. For example, with the recent change of government in South Africa, a rare opportunity arose for the development of a constitution that includes ESC rights within its bill of rights. Many human rights, development and public interest organizations formed a coalition to advocate for the incorporation of these rights and were, to varying degrees, successful.
The Limburg Principles state that, "Although the full realization of the rights recognized in the Covenant [ICESCR] is to be attained progressively, the application of some rights can be made justiciable immediately while other rights can become justiciable over time."49 The principles go on to explain, "States parties shall provide for effective remedies including, where appropriate, judicial remedies."50 In keeping with these principles, some activists argue that the reluctance of courts to accept and rule upon ESC rights cases is largely a matter of will.51 Furthermore, some argue that it is the state's responsibility to recognize and develop mechanisms for judicial review of ESC rights cases; if they have not begun to progressively realize this responsibility, they are not complying with their obligations.
In undertaking policy work, legislative advocacy and litigation, it is important that NGOs not strengthen the perceived dichotomy between the justiciability of ESC rights and that of civil and political rights. Policy work should be based on the assertion that government policies developed in the areas of economic, social and cultural affairs are not matters of state generosity, but rather are obligations of the state to set agendas and programs for fulfilling and protecting human rights. Legislation should conform to rights principles and, where possible, provide for the development of mechanisms for claiming rights through courts, tribunals and other fora. Litigation should also be initiated on ESC issues. Where courts will not recognize such cases as rights cases, activists can link their arguments to other rights which are recognized by the courts, such as freedom from discrimination, security of the person, right to life, and so on, or use "metalegal" action to pressure courts to recognize a specific right. These strategies and tools are discussed in greater detail in the following sections.
NGOs can apply human rights standards to the development and evaluation of policies in a number of ways. The Caribbean Initiative's efforts to secure the involvement of government officials, legislators and representatives of NGOs in the review of national programs and legislation using the matrices for human rights standards (see chapter 5 and Appendix C) illustrates one way in which the human rights framework can be a tool for policy formulation. NGOs can also draft papers proposing local and national policies and priorities related to different ESC sectors, such as education, housing, health. The adjacent example illustrates the role that the Legal Resources Centre has played in the formulation of land policy in South Africa.
The budgetary process is one of the single most important activities undertaken by government and legislative bodies to implement policies. Program participants felt that human rights standards can be a powerful tool for reviewing budgetary plans and lobbying for specific allocations of monies.
As with the other phases of policy and legislative formulation and implementation, access to information and transparency are essential in the budgetary process. Developing Initiatives for Social and Human Action (DISHA) in Gujarat, India has focused on expanding participation in the budgetary process as a tool for advancing the rights of poor and tribal people in that state. The following example describes how it has done this.
International human rights standards can be used as a lobbying tool to remind states parties to human rights treaties, such as the ICESCR, of their obligations under international law and, specifically, their obligation to develop legislation to progressively achieve economic, social and cultural rights. It is essential for the fulfillment of all human rights that legislation be adopted which encompasses and enforces human rights standards. Article 2 of the International Covenant on Economic, Social and Cultural Rights specifically mandates that state parties adopt legislative measures toward the fulfillment of their obligations.
Human rights standards can also be used as a tool for identifying where legislation needs to be drafted or amended. The matrices used by the Caribbean Initiative52 establish a process for comparing existing legislation with human rights standards and making recommendations for amending laws or drafting new legislation consistent with the standards.
Legislative advocacy ought also to be directed to establishing judicial or quasi-judicial fora for the review of ESC rights claims. For example, as part of its land rights work, the Legal Resources Centre (LRC) learned of its client communities' desire and need to have a mechanism for claiming their right to land. The LRC concluded that a specialized and separate judicial structure should be established to deal with the restitution process. Toward this end, the LRC was intimately involved with the drafting and review of legislative measures for the implementation of land restitution policies, including the Restitution of Land Rights Act which established the Land Claims Court.
Litigation can be used to advance ESC rights in several ways. It can be employed to make individual human rights claims, to raise public awareness about problems related to ESC rights, to help define the content of rights, and as a long-term strategy for law reform. Workshop participants agreed, however, that litigation is just one tool, and that it is most effective when undertaken in cooperation with the community and in conjunction with other advocacy strategies. The Charter Committee on Poverty Issues in Canada, for example, believes strongly that its litigation must to a large extent be defined and driven by those people whose situation the litigation strives to affect53. It therefore requires at least 50% representation of poor people on the "project teams" it organizes related to pending litigation.
The Legal Resources Centre also believes that it must maintain a balance between the use of litigation and other methods of working with, and on behalf of, communities. It is wary of the danger of developing too "legalistic" an approach, where the organization and communities become heavily dependent on the legal system for defining and exercising their rights. The LRC's primary concern is to ensure that its strategies are consistent with the needs of the communities and, for that reason, it needs to coordinate its legal activities with community development work. The LRC strives to identify and decide with client communities which matters to litigate and works to ensure that victories and losses are translated into impact on the ground. This involves educating people about their legal rights and informing communities about changes in the law so that they will exercise their rights and advocate for legal changes to increase their enjoyment of rights.
Where litigation is linked to community outreach and other forms of involvement, it can be a useful tool for organizing. A legal case can create a focal point for attention, raising awareness about the issue and potential solutions. The heightened profile of a case can generate community excite- ment, involvement and support. Workshop participants with experience in using legal cases as a mobilization tool stressed that it is very important for activists to be honest with clients and members of the community about potential outcomes and any perceived risks of failure. They warned that an organization's credibility can be lost if these dimensions are not fully and clearly shared.
Litigation of ESC rights cases can also be used as part of a longer-term strategy for law reform. In this context, activists choose to litigate a case based on its capacity to affect changes in the law which, in turn, will positively impact people's ability to exercise their rights.
Litigation can also be used to demonstrate the justiciability of ESC rights. One strategy is to argue that human rights are indivisible and then link ESC rights to civil and political rights. For instance, the Canadian organization, the Centre for Equality Rights in Accommodation (CERA), seeks to demonstrate the link between "security of the person" as recognized in Canada and the right to food and housing. It believes that it should be possible in a country such as Canada, where security of the person is constitutionally guaranteed, to demonstrate that this security is infringed if a person has no home or is unable to eat.
As discussed in Chapter 2, other possible ways of advancing ESC rights claims would be to link ESC rights to the rights to participation, non-discrimination and the right to life. However, participants caution that efforts to use civil and political rights provisions to advance ESC rights claims should be very clearly and carefully developed. Such claims should consider whether or not the end result will strengthen the claim being made as well as help clarify the content of the right(s) in question.
Where an organization believes that it has a fairly clear understanding of the core content of a right and corresponding government obligations, it might look for a "test case" or an opportunity to bring litigation by which to seek the court's acknowledgment and confirmation of that aspect of the core content or state obligation.
Predictably, the lack of elaboration of ESC rights standards makes it difficult to use them as guidelines for the development of policies, plans and legislation and inhibits the willingness of courts to hear a case. Currently, the content of specific entitlements related to labor rights are the most clearly elaborated and thus useful for the design and implementation of local and national policies and legislation. As the standards for the right to housing and for the right to health develop, they will be increasingly useful. However, considerable ambiguity remains in the specific content of most ESC rights.
In some countries, there is little trust in the legal system and its ability to affect change in the ESC sphere, for a number of reasons, including: a relative lack of power or independence of the judicial system; the "elite" position of justices and lawyers which may result in an unwillingness to accept cases addressing questions of distributive justice; and the generally "static" mind set of courts on the question of justiciability. In addition, changes in governments or regimes and fluid party politics are problems encountered in all human rights work. When a country undergoes a constitu- tional or governmental change, advances which have been made may be undermined.
Although it has been echoed several times, it bears repeating that the lack of transparency and access to information in many countries pose considerable challenges to the formulation of policies and programs for the fulfillment of ESC rights. This is clearly an area of work towards which a great deal more study, attention and advocacy needs to be directed.
53. See box in chapter 5.