10 November 2010 - Åbo

Litigating for development“Courting social justice”

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References

• F. Coomans (ed), Justiciability of Economic and Social Rights. Experiences from domestic systems, Intersentia, 2006.

• V. Gauri and D. Brinks (eds), Courting social justice. Judicial enforcement of social and economic rights in the developing world, CUP, 2008.

• M. Langford (ed), Social Rights Jurisprudence. Emerging trends in international and comparative law, CUP, 2008.

• http://www.escr-net.org/caselaw/

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People’s Union for Civil Liberties v. Union of India (2001-)

• Drought and famine in some states• right to food campaign – complaint to Supreme Court of

India: issue of distribution, not of availability (food stocks)• Supreme Court:

- State not only negative, but also positive obligations- State to provide food to those who cannot afford to buy food

(‘vulnerable groups’): food security programmes to be implemented (school meals; food for work)

• Impact- mid-day meal scheme introduced in high number of states- Positive side-effect: better school attendance – registration of

girls increased (36 %)

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Grootboom (2000)• Facts: group illegally occupying land (510 children + 390

adults) – evicted – left homeless• Constitutional Court:

- Socio-economic rights justiciable- Measures taken to realise right of access to housing

reasonable?- Negative – positive obligations- Need for housing programme to provide relief to ‘those in

desperate need’: temporary housing

• Impact- Limited if any benefits for complainants- Local authorities: emergency housing plans

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Some examples

1° issue, facts

2° response – action taken (including litigation)

3° outcomes

4° impact

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Towards a theoretical framework:basic questions

1. Why litigation?- Judicial activism - substitute for or complement to

democratic policy-making?- judicialization or “legalisation”? (Gauri & Brinks 2008)

2. Driving seat?- Receptive judiciary- Civil society organisation

3. Impact?- Deference to policy-makers; rhetoric- Achievements

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Integrated human rightssocial action (I): general

• Based on social action litigation Supreme Court of India

• Operational• Procedural• Key actors: social action groups & judiciary• Integrated: part of broader political/social

strategy * limits of litigation/law

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Integrated human rightssocial action (II): characteristics

1. Collective and deformalised access to justice: most vulnerable * representativeness

2. Inquiry commissions: gathering of evidence – recommendations for remedial action

3. Innovative remedies: interim measures – corrective: reparation (structural)

4. Ongoing monitoring of implementation of judgments: ombuds - NHRI

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Integrated human rightssocial action (III): preconditions

1. Independent and socially activist judiciary2. Social actions groups: representativeness3. Human rights catalogue4. Rule of law as organising principle of state

set-up* rule of law meta-condition; judiciary minimum** matter of degree*** generalisation?

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Legalisation: Gauri and Brinks (1)

• Empirical, comparative research: five countries

• Legalisation = substantial incorporation of Courts as relevant actors Legal concepts and logics as relevant

arguments

into policy-making and implementation process

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Legalisation (2): causes

Demand-side: not overestimate importance of support structure (important for initial and sustained legal mobilisation)

Supply-side: characteristics of courts & legal environment: receptive courtsa. judicial attitudes: judges “qualified creatures of their political environment” – ideological bentb. Political environment: judicial autonomyc. Legal texts

Response-side:a. Policy structure with “latent capacity”b. Congenial political environmentc. Organised claimant & threat of follow-up litigationd. Nature of judicial process: negotiation and dialogue: “iterative

experimentation and decision making” => allocate responsibility – set standards

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Legalisation (3): effectiveness

~ implementation; direct effects on parties; indirect effects on policy area

Findings: Impact of right to health cases > right to education cases (direct) Provision cases not most important type of judicial

intervention (~ time-frame; through existing infrastructure ~ dialogical model)

(indirect) Regulation cases potentially highest impact; implementation and enforcement more of a challenge

Who benefits: beneficiary and policy area (in)equality? Primary direct beneficiaries: urban middle class; but

exceptions - indirect effects far higher Policy area: preferred issues of privileged minority and

marginalised