Economic, Social and Cultural Rights Workshop: Advocacy, Litigation and Implementation Strategies

1. Economic, Social and Cultural Rights Workshop:Advocacy, Litigation and Implementation Strategies www.cohre.org

2. Overview 1. ESC Rights in the Courts: Common Myths 2. Litigating ESC Rights under the Victorian Charter 3. Effective Legal Strategy www.cohre.org

3. I. Common myths Rights are different from CP rights 1. ESC rights involve costly positive obligations 2. ESC rights are too vague Courts lack legitimacy to adjudicate social rights 3. Undemocratic for courts to intervene 4. Breaches separation of powers Courts do not possess requisite institutional capacity 5. Lack information and expertise 6. Can’t cope with polycentric decision-making 7. Necessary remedial tools not available www.cohre.org

4. 1. ESC rights involve positive and costly obligations www.cohre.org

5. “In relation to civil and political rights, it is generally taken for granted that judicial remedies for violations are essential. Regrettably, the contrary assumption is too often made in relation to economic, social and cultural rights. This discrepancy is not warranted either by the nature of the rights or by the relevant Covenant provisions. The Committee has already made clear that it considers many of the provisions in the Covenant to be capable of immediate implementation….” UN CESCR Committee (General Comment 9) www.cohre.org

6. 2. ESC rights are too vague www.cohre.org

7. “These obligations universally apply to all rights and entail a combination of negative and positive duties.… At a primary level, the obligation to respect entails that the State should refrain from interfering in the enjoyment of all fundamental rights;... At a secondary level, the State is obliged to protect right-holders against other subjects by legislation and provision of effective remedies. ... [T]he tertiary obligation of the State [is] to promote the enjoyment of all human rights.... The last layer of obligation requires the State to fulfil the rights” African Commission (SERAC v Nigeria) www.cohre.org

8. “The measures must establish a coherent public housing program directed towards the progressive realisation of the right of access to adequate housing within the State's available means…. The precise … content of the measures to be adopted are primarily a matter for the Legislature and the Executive. They must, however, [be]… reasonable…. In determining whether a set of measures is reasonable, it will be necessary to consider housing problems in their social, economic and historical context and to consider the capacity of institutions ... The program must be balanced and flexible and make appropriate provision for attention to housing crises and to short, medium and long term needs. A program that excludes a significant segment of society cannot be said to be reasonable.” South African Constitutional Court (Grootboom) www.cohre.org

9. 3. Undemocratic www.cohre.org

10. “Where state policy is challenged as inconsistent with the Constitution, courts have to consider whether, in formulating and implementing such policy, the state has given effect to its constitutional obligations.” South Africa Constitutional Court –Minister of Health v TAC www.cohre.org

11. 4. Breaches separation of powers www.cohre.org

12. “This Court has made it clear on more than one occasion that although there are no bright lines that separate the roles of the legislature, the executive and the courts from one another, there are certain matters that are pre-eminently within the domain of one or other of the arms of government and not the others…. This does not mean, however, that courts cannot or should not make orders that have an impact on policy.” South Africa Constitutional Court (Minister of Health v TAC) Also: Klauss case(30 BverfGE I, 1970) – German Constitutional Court General Comment 9 – CESCR Committee ` www.cohre.org

13. 5. Lack of information and expertise www.cohre.org

14. 5. Lack of information and expertise “Judicial finding of law has a real advantage in competition with legislation in that it works with concrete cases and generalizes only after a long course of trial and error in the effort to work out a practicable principle. Legislation, when more than declaratory, when it does more than restate authoritatively what judicial experience has indicated, involves the difficulties and the perils of prophecy.” Roscoe Pound, The Formative Era of American Law www.cohre.org

15. 6. Can’t cope with polycentric decision-making www.cohre.org

16. “The problems of polycentricity must clearly act as important constraints upon the adjudication process, particularly when the dispute has distributional consequences. But polycentricity cannot be elevated to a jurisprudential mantra, the articulation of which serves, without further analysis, to render courts impotent to enforce legal duties which have unpredictable consequences.” High Court of South Africa (Rail Commuter Action Group & Ors. v. Transnet Limited & Or) www.cohre.org

17. 7. Necessary remedial tools not available www.cohre.org

18. Order: [T]he municipality of Córdoba adopt all of the measures necessary relative to the functioning of the [facility], in order to minimise the environmental impact caused by it, until a permanent solution can be attained with respect to its functioning. [T]he Provincial State assure the [plaintiffs] a provision of 200 daily litres of safe drinking water, until the appropriate public works be carried out to ensure the full access to the public water service, as per decree 529/94. Court in Argentina (See Housing and ESC Rights Quarterly, Vol. 1 No. 4 www.cohre.org

19. 2. Victorian Charter and ESC rights Preamble: “[H]uman rights are essential in a democratic and inclusive society that respects the rule of law, human dignity, equality and freedom” “Human rights have a special importance for the Aboriginal people of Victoria, as descendants of Australia’s first people, with their diverse spiritual, social, cultural and economic relationship with their traditional lands and waters.” www.cohre.org

20. V v. Einwohrnergemeine X und Regierunsgrat des Kantons Bern (Swiss Federal Court) • The Court determined there was an implied constitutional right to “conditions minimales d’existence” (basic minimum level of subsistence) from a range of CP rights. • The right was not to be equated to a minimum level of income but rather that which was necessary for a dignified human existence that prevented an undignified beggar’s existence. • The right can be invoked by both Swiss citizens and foreigners since it is a fundamental right. www.cohre.org

21. Interpreting the Charter 1. Indirect Approach 2. Integration Approach 3. Derivation Approach www.cohre.org

22. S. 8(2). Every person has the right to enjoy his or her human rights without discriminationS. 8(3) Every person is … is entitled to equal protection of the law without discrimination… • Eldridge v. British Columbia (Attorney General) Supreme Court of Canada [1997] 2 S.C.R. 624 • The appellants sought a declaration that the failure to provide sign language interpreters as an insured benefit under the Medical Services Plan violated their right to the equal protection and equal benefit of the law without discrimination • The Supreme Court of Canada found that the failure to provide sign language interpretation to deaf patients in medical institutions deprived them of their ability to “benefit equally from services offered to the general public.” • When the government sought to justify this failure on the basis that it had insufficient resources, the Court replied that “financial considerations alone may not justify Charter infringements.” • The Court granted a declaration order directing the Government of British Columbia to rectify the unconstitutionality of the system. www.cohre.org

23. S. 9. Every person has the right to life and the right not be arbitrarily deprived of life Bandhua Mukti Morcha v Union of India, AIR 1984 SC 802 • “The fundamental right to life which is the most precious human right … must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may … enhance the dignity of the individual and the worth of the human person. We think that the right to life includes right to live, with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about …. ” ‘Street Children’ Case), Inter-American Court of Human Rights, Judgment of Nov. 19, 1999, Inter-Am. Ct. H.R. (Ser. C) No. 63 • ‘[A]ccess to the conditions that guarantee a dignified existence’, particularly for at-risk groups, was derived from the guarantees in articles 4 and 19 of the American Convention, protecting the right to life and special measures of protection for children, respectively www.cohre.org

24. Osman v. UK, Application No.23452/95, report of the European Commission on Human Rights, dated 1 July 1997 Whether risk to life derives from disease, environmental factors or from the intentional activities of those acting outside the law, there will be a range of policy decisions, relating, inter alia, to the use of State resources, which it will be for Contracting States to assess on the basis of their aims and priorities, subject to these being compatible with the values of democratic societies and the fundamental rights guaranteed in the Convention … the extent of the obligation to take preventive steps may however increase in relation to the immediacy of the risk to life. Where there is a real and imminent risk to life to an identified person or group of persons, a failure by State authorities to take appropriate steps may disclose a violation of the right to protection of life by law. www.cohre.org

25. S. 10. A person must not be – (b) treasted or punished in a cruel, inhuman or degrading way Hijirizi et al v. Yugoslavia, Committee Against Torture, Communication No.161/2000, • “[B]urning and destruction of houses constitutes, in the circumstances, acts of cruel, inhuman or degrading treatment of punishment.” Moldovan and others v Romani (no. 1) applications nos 411138/96 and 64320/01, 5 July 2005, European Court of Human Rights • Court found a violation of Article 3 [of the Convention], as the living conditions of the applicants for ten years had had a detrimental effect on their health and well-being. • In conjunction with the racial discrimination to which they had been publicly subjected by the authorities[1], this constituted an interference with the applicants’ human dignity and amounted to degrading treatment. www.cohre.org

26. Ex p Adam, Limbuela and Tesema.[2005] UKHL 66, House of Lords • Each applicant was an asylum-seeker (two eventually granted refugee status) who had not presented his application as soon as reasonably practicable to the Secretary of State’s satisfaction. • They were denied support. While Mr Limbuela and Mr Adam were required to sleep on the street, Mr Tesema avoided this only by means of an interim injunction. • Each had exhausted all means of charitable support and was faced with sleeping outside and begging for food. • The issue at the House of Lords was whether the Secretary of State’s position amounted to inhuman and degrading treatment and was thus contrary to article 3. • The Law Lords held that the treatment must amount to a very high threshold of severity, but that such a threshold had been surpassed in this case. www.cohre.org

27. S. 13. A person has the right – (a) not to have his or her privacy, family, home or correspondence interfered with Connors v United Kingdom, (European Court of Human Rights, Application no. 66746/01, 27 May 2004) “[T]he eviction of the applicant and his family from the local authority site was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights and consequently cannot be regarded as justified by a “pressing social need” or proportionate to the legitimate aim being pursued. There has, accordingly, been a violation of Article 8 of the Convention. Marzari v. Italy, 28 EHRR CD 175, ECHR [A]lthough Article 8 does not guarantee the right to have one’s housing problem solved by the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a severe disease might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a refusal on the private life of the individual. www.cohre.org

28. In the Anufrijeva case, the UK Court of Appeal held that article 8 was capable of imposing a positive obligation on the state to provide accommodation where otherwise family life was to be serious inhibited or the welfare of children threatened.[2003] EWCA Civ 1406 www.cohre.org

29. S. 17. Protection of families and children “‘Street Children’ Case), Inter-American Court of Human Rights, Judgment of Nov. 19, 1999, Inter-Am. Ct. H.R. (Ser. C) No. 63 ‘[A]ccess to the conditions that guarantee a dignified existence’, particularly for at-risk groups, was derived from the guarantees in articles 4 and 19 of the American Convention, protecting the right to life and special measures of protection for children, respectively www.cohre.org

30. S. 17. Cultural rights Länsman et al. v Finland, Communication No. 511/1992, CCPR/C/52D/511/1992, (1994) • Quarry mining threatened Sami reindeer herding. Article 27 ICCPR provides for the right of minorities to enjoy culture. Enjoyment of culture has been interpreted by the Committee to include traditional livelihoods. • The Human Rights Committee found that the limited nature of the quarrying did not ‘substantially’ infringe the Herdsmen’s rights. It warned, however, that any future approval of large-scale mining activities in the area might constitute a violation of the right. • They also stated that the Sami should also be consulted before any activity is undertaken that potentially threatens their rights. • Note that Section 19(2) seeks to conform with this decision. www.cohre.org

31. S. 24 Fair hearing • In Feldbrugge v Netherlands (1986), European Court of Human Rights, the applicant whose statutory sickness benefit was stopped on the basis that she was fit for work, argued that the appeal procedures did not comply with Article 6. • In finding that Article 6 applied, the Court noted the public law features of the scheme were outweighed by the private law features including the fact that the availability of sickness benefits was determined by reference to the applicant’s contract of employment and the personal nature of the rights as they related to her means of subsidence. • Since that case, Article 6(1) has been applied to inter alia disability pensions from industrial accidents, disability allowances and annuities in respect of war injuries. www.cohre.org

32. S. 20 Property rights • The European Court of Human Rights has held that welfare benefits and entitlements may constitute ‘possessions’ or ‘property’ for the purposes of Article 1 of Protocol 1. • In Gaugusuz v Austria (1996), the applicant was refused an ‘emergency assistance’ payment in the form of an advance on his pension, because he was not an Austrian national. As entitlement to this payment was linked to the payment of contributions to an unemployment insurance fund, the Court concluded that the right to emergence assistance under Austrian legislation was a pecuniary right for the purposes of article 1 of Protocol 1. • In Öneryildiz v Turkey, the homes of slum-dwellers that had been razed by an avoidable gas explosion. • The European Court of Human Rights found violations of the right to life and the property rights, due to the loss of housing ‘structures’. www.cohre.org

33. 3. Effective Legal Strategy www.cohre.org