The Right to Enjoy the Benefits of Scientific Progress in ‘Empowering the Poor Through Human Rights Litigation’

Sarah  Bassiuoni

Each day the world becomes more interconnected, a transformation accentuated by the speed of modern globalization. Science and technology play a central role in global and local linkages and advancements. Science and its applications have transformed our understanding of the world we inhabit and the ways in which we live in it. The right to enjoy the benefits of scientific progress and its applications seeks to ensure equitable distribution of the knowledge and tools that impel social advancement. At its essence it is a powerfully egalitarian proposition that comprises both individual and collective dimensions. These dimensions, in turn, create entitlements that require significant international cooperation in relation to the sharing of the knowledge, technical advancements and scientific resources necessary for this right to be fully realized. Until recently, neither the scientific nor human rights communities had given this right much consideration; however, its implications are now being investigated and its potential discussed.

Social and Human Sciences Sector EMPOWERING THE POOR Through Human Rights Litigation Maritza Formisano Prada Manual Empowering the Poor Through Human Rights Litigation Maritza Formisano Prada 1 Empowering the Poor Through Human Rights Litigation Published in 2011 by UNESCO, United Nations Educational, Scientific and Cultural Organization 7, place de Fontenoy, 75352 Paris 07 SP, France © UNESCO 2011 ISBN: 978-92-3-001027-0 Published in 2011 by the United Nations Educational, Scientific and Cultural Organization. The ideas and opinions expressed in this publication are those of the authors and are not necessarily those of UNESCO and do not commit the Organization. The designations employed and the presentation of material throughout this publication do not imply the expression of any opinion whatsoever on the part of UNESCO concerning the legal status of any country, territory, city or area or of its authorities or concerning the delimitation of its frontiers or boundaries. Author/Research and writing: Maritza Formisano Edited by: David McDonald Photos: Ana C. Golpe; UNESCO/Le Mignon Misato; Zsolt Zatrok; UNESCO/Petterik Wiggers; Asianet-Pakistan; UNESCO/Roger Dominique; US Army Africa; Asianet-Pakistan; UNESCO/Esther Mooren Graphic design: MH DESIGN/Maro Haas 2 Empowering the Poor Through Human Rights Litigation Acknowledgements This publication was realized under the overall supervision of Ms Angela Melo, Director of the Division of Human Rights, Democracy and Philosophy and under the direct supervision of Ms Moufida Goucha, Chief of the Human Security, Democracy and Philosophy Section and Mr Alexander Schischlik, Chief of the Struggle against Discrimination and Racism Section. Special thanks to the all United Nations Bodies, agencies and programmes that have provided their comments and suggestions to this publication and in particular Kinshore Singh, Office of the High Commissioner for Human Rights (OHCHR); Petra Pitcha, Methodology, Education and Training Section (METS) of the OHCHR; Christian Courtis, OHCHR; Barbara Ekwall, Coordinator, Right to Food Unit Food and Agriculture Organisation, Food and Agriculture Organization (FAO); Rostedt, Annelie Gun Elisabeth World Health Organization (WHO); Nygren Krug, Helena Maria, WHO; Yehenew Walilegne WHO; Annette Peters, Assistant, Department of Ethics, Equity, Trade and Human Rights, Information, Evidence and Research, WHO; Walilegne, Yehenew Tsegaye, WHO. Our sincere gratitude goes to NGOs and experts who have participated in this publication including: Malcolm Langford, Director, Socio-Economic Rights Programme, SERP, Norwegian Centre on Human Rights University of Oslo; Biraj Patnaik, Principal Adviser, Office of the Commissioners to the Supreme Court of India; Ana Maria Suarez, Food First Information and Action Networtk, FIAN International; Yves Prigent, Amnesty International (AI); Sara Bassiuoni, Amnesty International; Luisa Cruz UNESCO Etwea; Maider Maraña, Kultura eta Giza Garapena Cultura y Desarrollo Humano, UNESCO Etxea, Natalia Uribe, UNESCO Extea; Monica Hernando, UNESCO ETXEA; Alexandra Aubry, NGO Terre des Hommes; Bret Thiele, Center On Housing Rights and Evictions (COHRE); Ginette Karekinyana, International Cooperation Ethics Advisory Agency (ACECI). We are also grateful to all staff of the UNESCO Division of Human Rights, Democracy and Philosophy as well as the UNESCO Division of Social Science Research and Policy for their suggestions and support. 3 Empowering the Poor Through Human Rights Litigation Abbreviations and Acronyms ACHPR African Court for Human and People’s Rights ACHPR African Commission for Human and People’s Rights ACHPR African Charter for Human and People’s Rights CESCR Committee on Economic, Social and Cultural Rights CRC Convention on the Rights of the Child ECOWAS Court of the Economic Community of West African States EFA Education for All ECHR European Court of Human Rights FAO Food and Agriculture Organization of the United Nations IACtHR Inter-American Court of Human Rights IACHR Inter-American Commission on Human Rights ILO International Labour Organization NGO Non-Governmental Organization OECD Organization for Economic Co-operation and Development OHCHR Office of the High Commissioner for Human Rights PRSP Poverty Reduction Strategy Paper SP Social Protection UN United Nations UNAIDS Joint United Nations Programme on HIV/AIDS UNDAF United Nations Development Assistance Framework UN-DESA United Nations Department of Economic Affairs UNDP United Nations Development Programme UNESCO United Nations Educational Scientific and Cultural Organization UNFPA United Nations Population Fund UN-HABITAT United Nations Human Settlements Programme UNHCR Office of the United Nations Hugh Commissioner for refugees UNICEF United Nations Children’s Fund WHO World Health Organization 4 Empowering the Poor Through Human Rights Litigation PReface The first of the Millennium Development Goals (MDGs) that 184 States approved in 2000 sets the priority to halve extreme poverty and hunger by 2015. Consecutive reports on the achievement of the MDGs show mainstreaming human rights implies that all programmes, that some of the poorest countries have made considerable policies and technical assistance should further the realization improvements related to education, health, employment and of human rights as laid out in the Universal Declaration of civic participation, which tend to reduce extreme poverty. Human Rights and other Human Rights instruments. It also However, despite measurable progress, the most vulnerable implies that human rights principles and standards should and marginalized populations and groups –women, children, guide the programming process in all fields and all stages, homeless, unemployed persons, people with disabilities, older including the design, implementation, monitoring and people, indigenous people, migrants and displaced – remain evaluation of public policies. HRBA helps to explain the value marginalized and largely excluded from these achievements. of human rights in development and in National Programming Processes in order to define inclusive patterns in which As an illustration, the 2011 Millennium Development Goals everyone feels valued and has the opportunity to participate Report shows that it is the poorest children that have made fully in the life of society. the slowest progress in terms of improved nutrition, and that opportunities for full and productive employment remain Social exclusion is about resources, opportunities and particularly slim for women. This report also highlights the capabilities. It concerns all groups that live in conditions of powerful influence of social and economic circumstances on isolation and disconnection from society and development life chances, as children from the poorest households, those processes. In this sense the challenge is to re-connect living in rural areas and girls are the most likely to be out of these groups by means of targeted actions that enable and school. motivate them to become active citizens. This publication “Empowering the Poor: through Human Rights Litigation”, These results signal the need to re-orientate actions views the addressing of legal provisions as the first step in being taken to enable all people, especially the poor and generating social change. marginalized, to benefit from improvements resulting from these new measures. In this sense, every action should be Discrimination on the grounds of poverty often prevents guided by a social inclusion approach based on the principle access to the very tools needed to fight this condition. It is of non-discrimination, to ensure equal opportunity for all, important to fight against recognized forms of discrimination regardless of background. which include race, ethnicity, religion, gender and others. Poor people are also often discriminated against on the basis of UNESCO is working to promote the formulation of policies their socio-economic condition. The challenge is to overcome and strategies committed to equity and social justice and this major obstacle to their empowerment; otherwise, those which respect and value diversity. Projects and programmes trapped in poverty may fall into a vicious circle from which it are being developed with an integrated Human Rights Based is hard to break out. Approach (HRBA) with a view to building more inclusive and just societies, and making ‘social inclusion’ the Organization’s In the struggle to defeat poverty, it is important not to priority for the next biennium (2012–2013). Indeed, forget that all human rights are universal and indivisible. 5 Empowering the Poor Through Human Rights Litigation This means that political, civil, economic, social and cultural social and ethical challenges of excluded vulnerable groups rights are connected and equally important for their mutual of society and to turn these challenges into opportunities for realization. In particular, economic, social and cultural rights social and ethical innovation. have a crucial role to play in the fight against poverty. They constitute the first step to ensuring that access to all This publication “Empowering the Poor: through Human human rights is granted to each individual in order to attain Rights Litigation” aims at supporting these processes. It is a universality. In this regard, the adoption of the Optional pedagogical tool thatseeks to guide grassroots organizations Protocol to the International Covenant on Economic, Social as well as State authorities in their work to eradicate poverty. and Cultural Rights on 2008 was an important advancement, This manual seeks to contribute to the development of the as it enables individuals or groups of individuals to be entitled capacities of both duty-bearers to meet their obligations and to any of the rights enshrined by this Covenant before the of rights-holders to claim their rights. It is a tool aimed at Committee on Economic, Social and Cultural Rights. supporting advocacy and training initiatives as well as actions that share knowledge, reduce deprivation and preserve human UNESCO supports the selection of good practices from dignity with the view to creating an inclusive culture of peace organizations and Members States that have taken the lead in which everyone has the freedom to imagine a better world in promoting social inclusion to serve as inspiration for other and the tools to shape reality in this direction. stakeholders. Furthermore, the Organization encourages the collection of data to evaluate and interpret the impact of national policies, laws and regulations on main policy areas such as active participation of youth, women, migrants, Pilar Alvarez Laso indigenous peoples and persons with disabilities. UNESCO Assistant Director-General is committed to understanding and addressing emerging for Social and Human Sciences 6 Empowering the Poor Through Human Rights Litigation INTRODUCTION UNESCO’s project on poverty has focused on a conceptual analysis of poverty within a human rights framework. Through this project, the Organization seeks to stimulate commitment within the international community to assume its moral obligation to take action for the eradication of poverty, and to contribute towards the realization of human rights for all peoples without discrimination of any kind. Fundamental transformations in societies should be based on UNESCO is devoted to this commitment and affirms the human dignity, freedom and equality. Democracies therefore necessity of international cooperation in combating have to enable the participation of all actors of the globalized poverty from a human rights perspective. To this end, the world – meaning that men and women should be treated as Organization has published the collection Poverty and equals. Poverty excludes human beings from participation Human Rights, composed of four volumes Poverty and in society and creates the conditions for material and legal Human Rights: Who Owes What to the Very Poor (edited by marginalization. This is often intensified by a lack of concrete Thomas Pogge); Poverty and Human Rights: Law’s Duty to the and pertinent policies addressing the needs of the poor, and Poor (edited by Geraldine Van Bueren); Poverty and Human the persistence of policies, processes and ideologies that Rights: Theory and Politics (edited by Thomas Pogge); and enable poverty. Poverty and Human Rights: Economic Perspectives (edited by Bård Andreassen, Stephen Marks and Arjun Sengupta). This UNESCO’s project is a response to this challenge. It advances first research phase has sought to uncover the core elements the idea that linking poverty and human rights creates an of poverty and to combat these using a multidimensional opening where the former concept can be understood and approach including philosophical, legal, political science and addressed in terms of deprivation of capabilities or lack of economic perspectives. empowerment, as a denial and even a violation of human rights, rather than in terms of income or charity. People The second phase of the challenge is to link the above living in poverty may lack formal rights or, where formal conceptual approaches concerning freedom from poverty rights exist, be denied substantive, equitable access to the with policy-oriented action. The creation of standards within rights formally accorded to them. These people are placed legal frameworks on the reality of poverty is crucial to this in a situation of injustice, of vulnerability and are deprived endeavour. Non-Governmental Organizations (NGOs) are of dignity – a core element of all human rights. When people are unable to enjoy rights such as adequate food, water, clothing, the highest attainable standard of health and adequate housing, they are unable to live decent lives. Poverty also places pressure on institutions and civil society to undertake legal courses of action to define effective public policies to fight against this threat. 7 Empowering the Poor Through Human Rights Litigation among the main brokers between policy-makers and the of the indivisibility and interrelatedness of all human rights poor, and have proposed innovative approaches to eradicate and, as such, should be avoided. poverty. They occupy a unique position between the poor and marginalized sectors of society and institutions, where Consequently, this manual focuses on the principles of inter- they focus on development, the causes of poverty and its dependency and inter-relatedness, which recognize that consequences, social protection, empowerment, and so on. the full enjoyment of any particular right depends upon the NGOs not only participate in the monitoring and follow- enjoyment of others. In this way, chapters related to ESC up of court decisions, but also bring cases with significant rights are connected to each other and feature key examples potential for the poor to national and international attention. of case law that highlight their inter-dependency.2 In addition UNESCO has therefore decided to develop a manual to assist to these principles, the chapters of this manual highlight the NGOs in this endeavour —Empowering the Poor : through principle of universality, and special NGOs initiatives and legal Human Rights Litigation1 decisions for vulnerable groups are discussed in this context. This manual deliberately does not only concentrate on the leading principles of Human Rights Based Approach (HRBA). Why a manual? Instead, it proposes a wider approach to understanding and addressing poverty that includes assessment of the roots of The purpose of this manual is to collaborate with grass-roots power relations in societies. Power relations are assessed organizations, in particular with NGOs, in defining the content of according to evidence of legal advancements in national economic, social and cultural rights (ESC rights) and to empower adjudication of cases dealing with ESC rights as enabling legal the actions of NGOs working to tackle poverty in the field. mobilization strategies, as well as the full engagement of all stakeholders on these issues. The manual also underlines the By highlighting the interpretation techniques used by judges critical role of NGOs in advancing ESC rights in the field. throughout a series of landmark cases on ESC rights around the world, the manual elaborates standards for poverty eradication extracted from comparative case law. Indeed, the manual supports the approach that highlighting the What reasoning? interpretational efforts of courts will channel the voices of the poor and provide principles and precedents for action. The manual has, as its starting point, the idea that one of the main obstacles to the justiciability of ESC rights under the The manual is based on the idea that the enforcement of ESC International Covenant of Economic, Social and Cultural Rights rights will become a reality and will increase the clarification (ICESCR) is ascertaining whether or not a State party has of rights for the right holder, the duty bearer and civil society satisfied its obligations with respect to the rights enumerated as a whole. It will provide not only locus standi to NGOs, but in the treaty. The underlying reason for this challenge appears empower their role in the field. to be the concept of ‘progressive realization’, which explains how State parties continue to advance in fulfilling the right even if the right is not fulfilled in its entirety. What approach? For several years, judges have developed, through their judicial decisions, standards for measuring the advancement The manual does not accept the traditional denomination of of ESC rights. This manual seeks to provide concrete examples ESC rights as second-generation human rights, contrasted of rights enforcement and clarification of the relationship with civil and political rights. This separation leads to between the judicial enforcement of ESC rights and relief for misconceptions of the indivisibility of human rights and does the poor in reality. Indeed, comparative cases around the not take into account the scope and nature of ESC rights and world provide evidence on how a human rights perspective can the current improvements that adjudication has provided for relieve poverty and heighten the empowerment of the poor. their definition. Such a division runs contrary to the principles 2. For example, “housing rights can not be thought of as merely having four walls and a roof, but involves an intricate consideration of adequacy, health, security and the 1. Empowering the Poor: Through Human Rights Litigation. Manual for NGOs law”. 8 Empowering the Poor Through Human Rights Litigation Since progressive social movements are inserting rights-based The principles of non-discrimination and equal litigation strategies into their work, this manual is directed protection are present throughout the publication as to NGOs and grassroots organizations. For this reason, court indispensable duties of ‘immediate effect’, since they lie at the decisions represent strategic elements that can provide useful core of processes of power distribution, authority, capability guidance to effectively advance the struggle for human rights and action responsiveness within society. Gender issues are for the poor. also highlighted as a vital component to be mainstreamed in every anti-poverty action, programme or strategy. A gender perspective heightens the sensitivity of any intervention and leads to a focus on behavioural change in societies. What methodology? The three introductory chapters serve as framework material Following wide consultation among more than 200 NGOs that grassroots organizations and practitioners may analyse worldwide, selected practices that have proved their worth and apply in concrete, oriented actions for specific focus in poverty eradication have been identified and integrated areas developed in the subchapters. as text boxes. In addition, selected examples of case law have been systematized by human right, so that they can This manual is a tool that aims to contribute to the discussion be understood together with strategies for ensuring the on best ways and means to eradicate severe poverty and on progressive realization of the right in question. In this sense, how to include all efforts in fighting this evil. Conceptualizing this pedagogical manual addresses the main ESC rights — and clarifying the content of poverty through human rights which are inseparable from human dignity and lie at the heart is only a first step contributing to the debate. Other means, of poverty eradication. In other words, the right to: adequate such as the design of targeted and inclusive public policies, food, adequate housing, education, the highest attainable as well as the elaboration of mechanisms in order to measure health, and access to safe drinking water and sanitation. It and monitor improvements – indicators and Index- shall be also proposes advancements in the definition of the right to developed in order to create strong impact in drawing people benefit from scientific progress and its applications. out of marginalization. This manual should therefore be taken as a first effort in this research. The cases included in the manual reveal the activism of courts in protecting the human rights of the most marginalized and vulnerable groups of society, including children, older people, people with disabilities, indigenous groups and minorities, Angela Melo and migrants. Women and youth are mainstreamed within Director each chapter as actors for social change. Selected cases Social and Human Sciences Sector on ESC rights quoted in the text have provided crucial core elements in the fight against poverty and have empowered Maritza Formisano communities in the combat against poverty. Consultant for UNESCO 9 Empowering the Poor Through Human Rights Litigation How to use this manual The manual comprises three chapters and six sub-chapters. Chapter 1 “Poverty and human rights” develops the conceptual framework for the concept of poverty and links it to notions of capability and vulnerability, as well as to human rights. It presents some examples of cash transfer programmes (CTPs) and related laws in order to support what is referred to as the ‘normatization’ of poverty. Chapter 2 “The role of justiciability in the fight against poverty” is dedicated exclusively to the clarification of justiciability and the challenges of justiciability as a tool for social transformation and inclusion of the most vulnerable. This chapter presents “justiciability” as one of the steps of a holistic strategy to overcome poverty. It defends the role of judges as guarantors of rights and freedoms of the most invisible members of society. Chapter 3 “Conceptual clarifications of economic, social and cultural rights” develops, in general terms, the notion of obligations in two senses: it presents the core obligations of ESC rights as well as the related state obligations (namely to respect, protect and fulfil). This general understanding of obligation is supported by case law and NGO activities that demonstrate how to connect the policy actions of grassroots organizations with standards derived from adjudication. Sub-chapters contained in the manual relate to the right to education, adequate food, adequate housing, safe drinking water and sanitation, the right to enjoy the highest attainable standard of physical and mental health and the right to enjoy the benefit of scientific progress and its applications. Each sub-chapter applies the notion of core obligations and state obligations to each right, and provides illustrative examples of case law to present comparative standards for the protection of the most vulnerable and respect of their human dignity. Throughout this publication you will find information contained in two types of boxes: Grey text boxes provide landmark examples of comparative case law provided by jurisdictional and non- jurisdictional bodies that have contributed to the clarification and implementation of ESC rights as well as conceptual and complementary information of core issues with the view to improving understanding. Yellow text boxes illustrate activities of NGOs as well as policy oriented initiatives undertaken by other actors, including governments, working to eradicate poverty at national and local levels. Each chapter includes practical exercises that reinforce the material presented. These exercises encourage the reader to go further and to apply the material to his or her own experience. 10 Empowering the Poor Through Human Rights Litigation TABLE OF CONTENT Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Chapter I. POVERTY AND HUMAN RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 1. Defining the concept of poverty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 2. Poverty as a violation of human rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 a. Poverty at the UN System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 b. A model of law to fight poverty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 c. Bill 112 of Quebec. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 d. Cash Transfers Programmes (CTPs) as social inclusive policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 3. Translating MDGs into rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 4. Mainstreaming gender into poverty agendas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 5. Prioritizing vulnerable groups. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 a. Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 b. Youth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 c. Older people . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 d. People with disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 e. People living with HIV-AIDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 f. Migrants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 g. Displaced people . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 h. Indigenous people. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 i. Lesbians, gays, bisexual and transgender people (LGBT). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Chapter II. THE ROLE OF JUSTICIABILITY IN THE FIGHT AGAINST POVERTY. . . . . . . . . . . . . . . . . . . . . . . . . . . 27 1. Defining the concept of justiciability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 2. National frameworks for justiciability of ESC rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 3. The role of judges in the advancement of ESC rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 4. Correlations between justiciability and social justice: towards a transformative constitutionalism. . . . . . . . . . . . . . . . 31 a. Justiciability providing relief to people and setting the basis for non-discrimination and recognition. . . . . . . 31 b. Justiciability providing relief to the most vulnerable through the redistribution of goods. . . . . . . . . . . . . . . . . . . . . 32 c. Justiciability transforming the reality of special attention groups. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 5. What role for NGOs in advancing justiciability?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Chapter III. CONCEPTUAL CLARIFICATIONS ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS. . . . . . . . 37 1. ESC rights and civil and political rights in the struggle against poverty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 2. State obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 a. Obligation to respect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 b. Obligation to protect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 c. Obligation to fulfil. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 3. The duties of immediate effect: non-discrimination and equal protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 11 Empowering the Poor Through Human Rights Litigation 4. Minimum core approach to ESC rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 5. The progressive realization of ESC rights? How to measure progressive realization of the right?. . . . . . . . . . . . . . . . . . . 43 6. The prohibition of retrogressive measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 7. Maximum available resources clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Chapter IV. ALLEVIATION OF POVERTY BY ENSURING THE ENJOYMENT OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ESCR). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 SUBCHAPTERS The Right to Education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 1. Definition of the right to education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 2. Normative content of the right to education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 a. The 4A System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 b. Progressive realization of the right to education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 c. Non-discrimination and equal protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Education without discrimination on grounds of race. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Education and nationality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 Education without discrimination based on gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Education of minorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Children with disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Education in conflict situation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Education for people in poverty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Equality of opportunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 3. Human rights approach to Education for All. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 4. Human rights education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 5. Strategies for justiciability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 The right to adequate food . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 1. Definition(s) of the right to (adequate) food1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 2. State obligations under the right to food. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 3. Core obligations under the right to food. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60 4. Duties of equal protection and non-discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 5. Voluntary Guidelines to support the progressive realization of the right to adequate food in the context of national food security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 6. Developing legislative frameworks recognizing and implementing the right to food . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 7. Strategies for justiciability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 The right to adequate housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 1. Definition of the right to adequate housing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 2. National Improvements on the definition of the right to adequate housing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 3. Minimum core obligations related to the right to adequate housing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 4. State obligations related to the right to housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 1. In this paper we refer to the right to food and the right to adequate food indistinctly, in accordance with the interpretation provided by the Committee on Economic Social and Cultural Rights in General Comment n°12. According to this definition, the right to food includes the adequacy and sustainability of food availability and access. 12 Empowering the Poor Through Human Rights Litigation 5. Forced evictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 6. Duties of equal protection and non-discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 7. The role of ngos inadvancing the right to housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 The right to enjoy the highest attainable standard of physical and mental health. . . . 77 1. Definition of the right to enjoy the highest attainable standard of physical and mental health . . . . . . . . . . . . . . . . . . . . . . . . . . 77 2. Core obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 3. Duties of equal protection and non-discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 4. Health of women. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 5. Progressive realization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 6. State obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 7. Specific protection for marginalized and vulnerable groups. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 a. Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 b. Persons with disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 c. HIV-AIDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 d. Older people . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 e. Migrants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 f. Displaced people . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 8. Strategies for justiciability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 The right to safe drinking water and sanitation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 1. Evolution of the right to safe drinking water and sanitation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 2. Normative content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 3. State obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 4. Duties of equal protection, non-discrimination and special attention to vulnerable and marginalized groups . . . 93 5. Limits to the right to safe drinking water and sanitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 6. Strategies for justiciability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 The right to enjoy the benefits of scientific progress and its applications. . . . . . . . . . . . . . . . . 97 1. Definition of the right to enjoy the benefits of scientific progress and its applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 2. Normative content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 a. Progressive realisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 b. Science and human rights principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 c. Human rights based approach to science. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 3. Core obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 4. The relation of the right to other human rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 5. Strategies for justiciability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 ANNEXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 n Optional Protocol to the ICESCR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 n Form to be sent to UNESCO by practioners and NGOs that would like to complete, add or update information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 13 Chapter I Chapter I: Poverty and human rights – 15 – 1. Defining the concept of poverty – 16 – 2. Poverty as a violation of human rights a. Poverty at the UN System b. A model of law to fight poverty c. Bill 112 of Quebec d. Cash Transfer Programmes (CTPs) as social inclusive policies – 21 – 3. Translating MDGs into rights – 23 – 4. Mainstreaming gender into poverty agendas 5. Prioritizing vulnerable groups a. Children b. Youth c. Older people d. People with disabilities e. People living with HIV-AIDS f. Migrants g. Displaced people h. Indigenous people i. Lesbians, gays, bisexual and transgender people (LGBT) Chapter I Empowering the Poor Through Human Rights Litigation Chapter I: Poverty and human © Ana C. Golpe rights 1. Defining the concept of and premature mortality, being adequately sheltered, having basic education, being able to ensure security of the person, poverty having equitable access to justice, being able to appear in public without shame, being able to earn a livelihood and 1] The concept of poverty has evolved over recent years. taking part in the life of the community’.3 In terms of the Today, poverty, not only refers to a lack of resources to live a High Commissioner, ‘anti-poverty policies are more likely to life in dignity, but also to the concept of capability, which be effective, sustainable, inclusive, equitable and meaningful has been largely developed and influenced by the ‘capability to those living in poverty if they are based upon international approach’ of Amartya Sen.1 This approach propounds a human rights’.4 definition of poverty as a dynamic concept, along with a set of guidelines for the development of policies to focus on a 5] This multidimensional approach to poverty has been multidimensional approach. conceptually developed by UNESCO in the collection ‘Freedom from Poverty as a Human Right’. This collection comprises 2] Poverty is therefore closely linked to the notion of four volumes,5 defining the philosophical, economic, political vulnerability and to the necessity to provide tools to the and legal approaches to poverty. poor by focusing in their assets. These assets give them power to move out from poverty and to change the rules of In this sense, in relation to the philosophical debate, the power in society. In this sense, the concept of poverty is not first volume develops the nature of and relations between necessarily separated from its economic or political content, human rights, justice, positive and negative duties and but is rather completed. obligations, social institutions, solidarity, dignity, causality, harm, identity and collective responsibility. It clarifies these 3] It is also linked to the notion of dignity insofar as it relates concepts with a view to building a moral consensus within to the well-being of a person and to the things that this society on the right not to be poor. person can or cannot do. Consequently, it is also related to the freedom of opportunities necessary for achieving this well The second volume addresses concepts such as: the being.2 As such, assets are identified as the basis of ‘agents’ need for a global theory of justice; ethics of distribution; power to act to reproduce, challenge or change the rules that the necessary definition of priorities among activities govern the control, use and transformation of resources. undertaken to eradicate poverty; the call to re-evaluate our social, political and economic structures, institutions 4] Poverty, in the concept of the Office of the High and policies; and the role of courts and constitutions in Commissioner for Human Rights (OHCHR) in the Draft the enforcement of economic and social rights. This volume Guidelines on Human Rights approach to poverty reduction can examines the putting into practice of theories of justice and further be linked to ‘be[ing] well nourished, avoiding morbidity human rights. 1. Drawn up and expanded in the work of Amartya Sen. See: Development as freedom, 3. See OHCHR Draft Guidelines on Human Rights approach to poverty reduction, para. 46. Oxford, Oxford University Press, 1999; Inequality re-examined, Inequality Reexamined. Harvard University Press, 1995; Comodities and capabilities, Oxford, Oxford University 4. Poverty and the International Covenant on Economic, Social and Cultural Rights: Press, 1987; Poverty and Famines: An Essay on Entitlements and Deprivation, Oxford, statement adopted on 4 May 2001 by the Committee on Economic, Social and Cultural Clarendon Press, 1982. Rights (E/C.12/2001/10), para. 13. 2. See OHCHR, Human Rights and Poverty Reduction: a conceptual framework, 2004, 5. See UNESCO collection Freedom from Poverty as a Human Right, UNESCO Publishing, available at www2.ohchr.org/english/issues/poverty/docs/povertyE.pdf (accessed 2010: Vol. 1 Who Owes What to the Very Poor (edited by T. Pogge); Vol. 2 Theory and 7 August 2009) and OHCHR Principles and Guidelines for a Human Rights Approach to Politics (edited by T. Pogge); Vol. 3 Economical Perspective (edited by A. Sengupta, Poverty Reduction Strategies, available at: www2.ohchr.org/english/issues/poverty/ S. Marks and B. Andreassen); and Vol. 4 Law’s Duty to the Poor (edited by G. Van guidelines.htm (accessed 7 August 2009). Bueren). 15 Empowering the Poor Through Human Rights Litigation Chapter I The third volume explores the interfaces of economic choices but are elements of the same struggle: when fighting against and priorities, and the promotion and protection of normative poverty and extreme poverty, we advance in human rights standards. This volume gathers the contributions of leading protection and promotion and vice versa. Since human rights economists and social scientists, who apply their particular deficits today are concentrated among the poor, this approach modes of analysis to the threat of poverty. no longer perceives poverty in terms of income or charity, but instead in terms of deprivation of capabilities and lack of The fourth volume encompasses crucial notions such as empowerment – and therefore as a denial and consequently a social transformations, democracy, judicial enforceability and violation of human rights. human rights as current legal practice. It also envisages how the right not to be poor could be included within a wider 9] The interdependence and indivisibility7 of all rights right to equality. Lastly, it looks to clarify the scope of state are absolutely essential in the eradication of poverty. obligations derived from human rights frameworks in order to Interdependency has two aspects: the synergy for the create new opportunities to tackle systemic poverty. individual between the protection of two different rights and the requirement to balance these rights. Indivisibility also has two meanings: it refers to the universality of human rights – that all human rights exist on the same footing and have the same emphasis – and that the state is required to implement 2. Poverty as a violation of all human rights for all members of society and take into human rights account their expectations.8 Therefore, only indivisibility can reinforce and legitimize universality. 6] Approaching poverty as a violation of human rights, converts poverty into an unavoidable imperative. Indeed, 10] In this context, with regard to the right to adequate human rights provide a framework for poverty eradication in food, the UN Committee on ESC Rights stated: ‘the right to different ways. Poverty is at the same time the cause and the adequate food is indivisibly linked to the inherent dignity consequence of human rights violations: a cause because of the human person and is indispensable for the fulfilment the poor remain invisible and, thus, far from attempts to help of other human rights. It is also inseparable from social them claim their rights, and because the manifestations of justice, requiring the adoption of appropriate economic, poverty are hunger, homelessness and illiteracy, among many environmental and social policies, at both the national and others; a consequence, because poverty can derive from an international levels, oriented to the eradication of poverty action or omission, that is, a violation of a human right, and the fulfilment of all human rights for all.’9 Combating such as the lack of access to basic healthcare resources and poverty thus requires holistic solutions, and ESC rights have forced eviction for example. In other words, poverty reflects a that potential to empower people and communities living in violation of human rights where the poor are deprived of the poverty. enjoyment of those human rights, or simply have no rights at all. It is therefore consequently a violation of their human 11] Applying the human rights perspective to poverty also dignity. establishes a relationship between strategies to fight against and reduce poverty and the overall framework of human rights 7] But not all deprivation (lack of home, food or education, and consequent legal obligations and responsibilities. The etc.) reflects a condition or situation of poverty. But a human rights framework offers poverty strategies a concrete sustained and inhuman situation can lead to or exacerbate parameter for providing legal remedies and measuring state poverty. For this reason, the fight against poverty requires compliance with international human rights obligations actions that prevent such sustained deprivation. The challenge is therefore to connect the powerless with the empowering 12] In addition, a ‘human rights-oriented’ policy will indicate potential of human rights and to bring new mechanisms to that States have to take into account the comprehensive bear the eradication of poverty. As underlined by the UN human rights framework whenever formulating a policy for Committee of Economic, Social and Cultural Rights (here after combating poverty. Indeed, the State would thus ensure that Committee on ESC Rights, the Committee or CESCR) in the obligations and responsibilities derived from the human rights Statement on Poverty (2001), ‘Although human rights are not framework are inserted into the design, implementation and a panacea, they can help to equalize the distribution and evaluation/monitoring of public policies to fight poverty. exercise of power within and between societies’.6 In this sense, fighting poverty becomes a goal of an overall process, and the concrete results cannot be measured only by 8] Human rights and poverty are therefore interrelated. Poverty and human rights are not part of the same definition 7. See para. 5 of the Vienna Declaration. 8. See A. Eide, Interdependence and indivisibility of human rights, in Y. Donders and V. 6. See the ‘Statement on Poverty’ by the UN Committee on Economic, Social and Cultural Volodin (eds) Human Rights in Education, Science and Culture legal Developments and Rights to the 3rd UN Conference on the Least Developed Countries of 2001, para 6. Challenges, UNESCO 2007, pp. 11–51. Available at: www.unctad.org/conference. See document E/C.12/2001/10 ‘Poverty and the International Covenant on Economic, Social and Cultural Rights’. 9. See General Comment n°12. 16 Chapter I Empowering the Poor Through Human Rights Litigation quantitative indicators. Thus, public policies in congruence facilitating them with the necessary information and effective with human rights will be more sustainable, will respect the opportunities to contribute.11 principle of equal participation, and will be more inclusive (for example, human rights assessment). In the case Doctors for Life International v. The speaker of the National Assembly and others,1 the Constitutional Court of South Africa highlighted the important question of the role of In the cases Kearney and Ors v. Bramalea Ltd and Ors, Board the community in the law-making process and stated that their of Inquiry, Ontario Human Rights Code, 2000 related to the involvement ‘enhances the civic dignity of those who participate claims by three low-income women to whom access to available by enabling their voices to be heard and taken account of. It rental housing was denied, the Ontario Human Rights Board promotes a spirit of democratic and pluralistic accommodation provided a decision on the basis of the concept of poverty as calculated to produce laws that are likely to be widely accepted an effective ground of discrimination. The Tribunal stated that and effective in practice […] participatory democracy is of the regulation of the markets should be in accordance with special importance to those who are relatively disempowered international human rights obligations, in particular to the in a country like ours where great disparities of wealth and access to housing. The Tribunal stated clearly that it is not influence exist’.2 permissible to governments to refuse to rent to low income families. 1. CCT (12/05) [2006] BCLR 1399. In the case Campaign for Fiscal Equity v. State of New York et 2. Op cit, para. 115. al1 the State failed to devise and implement necessary reform of the public school financing system. The public policy regarding education was not fulfilled and the Court of New York ordered that an additional appropriation of US$5.6 billion in annual operating expenses be provided within four years to ensure that a. Poverty at the UN system the city’s public school children will be given the opportunity to obtain the sound basic education. He also ordered that US$9.2 15] Poverty has always been an issue on the human rights billion in added funding for capital projects be provided over five years. The decision was upheld on appeal, ordering the agenda of the UN System. The preamble of the UDHR states legislature to provide New York City schools US$4.7 to US$5.63 that all human beings should be free from misery and goes on billion in operating aid and US$9.2 billion in capital funding to establish poverty as a human rights issue. At the Vienna by 1 April, 2006. The 2006 New York State Budget Agreement World Conference the international community pointed out makes significant strides towards securing the courts-ordered reforms in relation to capital funding but budgets less than that ‘the existence of widespread extreme poverty inhibits one-tenth of what the courts required in terms of operating the full and effective enjoyment of human rights; its aid increases. immediate alleviation and eventual elimination must remain a high priority for the international community’.12 From this 1. 719 N.Y.S.2d 475. moment, the fight against poverty became a primary goal for the international community. 13] Human rights provide a normative framework in which 16] It is for this purpose that the UN Secretary General vulnerable groups are empowered and recognized as has located the fight against poverty as one of the main principal actors and subjects of law. They are not merely goals of the international agenda, and has endorsed the perceived as victims. Empowerment of the poor develops multidimensional definition of poverty from a human rights another dimension of poverty since ‘empowerment is the perspective. To this end, the UN System has developed a expansion of assets and capabilities of poor people to framework to fight against poverty, in which poverty is participate in, negotiate with, influence, control, and hold considered as a violation of human rights, and has further accountable institutions that affect their lives’.10 In this endeavoured to make poverty, legal enforcement and social sense, the participation of the poor offers examples on inclusion main priorities. solving concrete cases of deprival of minimum goods, which can in fact be translated into human rights violations. 17] Reminding the international community and the UN Agencies of their duty to develop standards on the 14] Poor people become an active part of the design, related state obligations derived from the human rights- implementation, evaluation and monitoring of public based approach to poverty eradication, the international policies. They have also the right to participate in the law- community adopted in 2000 the United Nations Millennium making process, and should take part in propositions that Declaration and defined the Millennium Development Goals will define the strategy to fight against poverty. Participation (MDGs), which identified the issue of extreme poverty as a empowers their freedom to define or amend the norm or main objective: ‘We will spare no effort to free our fellow policy that concerns them. Participation is therefore linked to the enjoyment and indivisibility of human rights and 11. See J. Wrezinski, Culture et grande pauvreté (Culture and Extreme Poverty), Paris, Editions Quart Monde, 2004, p. 40. See also A. Wrezinski, Knowledge that leads to includes engaging in public debate and dialogue, as well as action, in X. Godinot and Q. Wodon (eds) Participatory Approaches to Attacking Extreme Poverty Cases Studies Led by the International Movement ATD Fourth World, World Bank working paper n° 77, 2006 Available at: www.rcpla.org/pdfper cent20download/ Attackingper cent20Extremeper cent20Poverty.pdf. 10. D. Narayan (ed.) Empowerment and poverty reduction. A sourcebook, World Bank, 2002, p. xviii, p. 235. 12. Vienna Declaration and Programme of Action, Article 14. 17 Empowering the Poor Through Human Rights Litigation Chapter I men, women and children from the abject and dehumanizing has been increasingly developed during recent years by the conditions of extreme poverty, to which more than a billion Committee on Economic, Social and Cultural Rights, which of them are currently subjected. We are committed to making has endorsed the multi-dimensional definition of poverty the right to development a reality for everyone and to freeing from a human rights perspective and has provided guidance the entire human race from want.’ MDG n° 1 is to ‘end poverty and developed standards in its General Comments, focusing and hunger’.13 on the concrete obligations of Member States to act in the case of alleged situations of deprivation.17 18] UN Resolution 63/142 (5 March 2009) expressly asked UN Agencies to support national strategies by sharing best 22] The Committee defines poverty18 ‘as a human condition practices in the area of poverty eradication and the legal characterized by sustained or chronic deprivation of the empowerment of the poor. With the view of strengthening resources, capabilities, choices, security and power necessary international cooperation towards attaining the MDGs, for the enjoyment of an adequate standard of living and the UN has launched two Decades for the Eradication of other civil, cultural, economic, political and social rights’.19 In Poverty: the first under UN Resolution A/62/267, entitled short, in the Committee’s view, ‘poverty constitutes a denial ‘Implementation of the First United Nations Decade for the of human rights’.20 UNESCO has taken this one step further, Eradication of Poverty (1997–2006)’, and the second under stating that poverty is a violation of human rights and, as UN Resolution A/63/190, entitled ‘UN Second Decade for the such, must be considered illegal, according to international Eradication of Poverty 2009–2017’ (which underlines how law. setting up national plans based on tangible goals are decisive steps towards giving poverty eradication due priority.14 23] Finally, at the regional level, the revised European Social Charter of 1996, which prescribes in Article 30 a ‘right to 19] In his report15 related to the Observance of the International protection against poverty and social exclusion’, is an Day for the Eradication of Poverty, the Secretary-General important step towards the concrete normatization of poverty underlined the necessity of social mobilization and as a human right, and concretely urges States parties ‘to take emphasized that poverty is a violation of human rights: measures within the framework of an overall and co-ordinated approach to promote the effective access of persons who live The fact that poverty persists in many parts of the world or risk living in a situation of social exclusion or poverty, as points not only to an inequitable distribution of economic, well as their families, to, in particular, employment, housing, social and political opportunities, but also to a violation of training, education, culture and social and medical assistance’. human rights. Often the condition of living in poverty also It is important to emphasize that the revised European Social affects the ability of the most vulnerable and disadvantaged Charter includes the right to protection against poverty in individuals, families and groups to defend their rights and Part II of the Charter, which presents a list of ESC rights and responsibilities. The violation of human rights is thus both the correlated obligations for their full realization. a cause and a consequence of poverty. People living in poverty are, by their condition, disempowered and excluded from society, and their capacity to secure their own rights is b. A model of law to fight against poverty extremely limited by their situation.16 24] A proposal to draft a model law to combat poverty, 20] Although the ICESCR – which recalls the UDHR – does including the international obligations that should be not explicitly mention the word poverty, it states that the respected by States, has been advanced at the national level. enjoyment of ESC rights is a precondition to freedom and Indeed, on the basis of the experiences in the UN, some dignity. For this reason, it underlines the indivisibility of all countries have seen in this scheme a sort of normatization human rights and its connectivity and effects with regard to of the fight against poverty.21 poverty eradication. 25] Examples of concrete normatization include the model law 21] This approach to poverty as a violation of human rights for combatting discrimination, or the UNAIDS model to fight against HIV-AIDS, which have inspired the creation of models 13. See the UN Campaign to End Poverty by 2015 at www.endpoverty2015.org. The campaign focuses on achieving the eight MDGs by 2015. of law in order to guide parliamentarians in the eradication 14. For an overall understanding of the evolution of UN Resolutions and reports on poverty of poverty. With regard to the issue of HIV-AIDS, for example, and their relation to human rights, see the documents: A/RES/47/196 of 1992 and A/RES/28/183 of 1993 on the observance of an international day for the eradication of poverty; A/RES/52/134 of 1998 on international cooperation in the field of human 17. UNESCO has developed several publications in relation to those approaches. All the articles rights. See also Human Rights Commission Resolution 1996/23 adopting the Final Report are available at: http://portal.unesco.org/shs/fr/ev.php-URL_ID=5149&URL_DO=DO_ on Human Rights and Extreme Poverty, by the Special Rapporteur, Leandro Despouy (E/ TOPIC&URL_SECTION=-465.html. See also the publication Freedom from Poverty as a Human CN.4/Sub.2/1996/13) and resolution 2005/16 of 14 April 2005; as wll as the reports of Right (Vols I to IV), which develop the multidimensional dimensions of poverty. the independent experts on the question of human rights and extreme poverty, Ms. Lizin and Mr. Sengupta (in particular E/CN.4/2004/43, E/CN.4/2005/49 and E/CN.4/2006/43) 18. UNESCO Consultation, supra note 7, at 2. and OHCHR, Principles and Guidelines for a Human Rights Approach to Poverty Reduction Strategies, among others. 19. CESCR, Statement on Poverty, supra note 40, ¶ 8. 15. Document A/61/308 paras 4–16 available at: www.atd-fourthworld.org/IMG/pdf/ 20. Ibid. at ¶ 1. Report_English_SG_Annan_Celebration_17oct-A61308EN.pdf. 21. See elaboration of norms, document of the International Centre on Human Rights Policy 16. Op.cit para. 6. www.ichrp.org/files/reports/31/120b_report_en.pdf. 18 Chapter I Empowering the Poor Through Human Rights Litigation UNAIDS and OHCHR have published International Guidelines c. Bill 112 of Quebec25 on HIV and Human Rights,22 which aim to improve the capacity for multi-sectoral coordination and accountability 28] Quebec has undertaken a unique, collective and participatory of governments, give support to law reforms, empower the effort in creating the Law to Fight Poverty and Social Exclusion marginalized groups, and increase the participation of the (Bill 112), thanks to the initiative of the Quebec Federation of wider community in the fight against HIV-AIDS. This model Women Bread and Roses March, on the occasion of the March of has inspired national initiatives in the fight against HIV-AIDS Bread and Roses, June 1995. The law has been drafted from the and notably the elaboration of national laws in Benin, Togo, bottom up, stemming from an initiative of the large community Mali, Sierra Leone and Niger among others, following the of NGOs and pluralistic social actors. Bill 112 intervenes on the standards of UNAIDS proposals.23 causes of poverty rather than its effects. 26] The Committee of ESC rights has advanced the core 29] The Law creates: (1) a national strategy to combat social elements to be inserted in relation to the elaboration of a exclusion, (2) a fund to support social initiatives; (3) an framework law on the right to food and the right to health. observatory to monitor the reduction of poverty; and (4) an In General Comment n° 12 related to the right to adequate advisory committee on the prevention of poverty and social food, the Committee has stated that ‘states should consider exclusion. the adoption of a framework law as a major instrument in the implementation of the national strategy concerning the right 30] In addition, it identifies five actions areas: (1) promotion to food’. In this sense, the Committee has even defined the of access to education and support of capacity-building elements or guidelines of the framework law: (1) provisions and skill development; (2) improvement of incomes, work on its purposes; (2) targets or goals to be achieved and opportunities and individual assets, and expansion of social timeframe to be set for the achievement of the targets; and housing; (3) improvement of access to work and employment; (3) means to achieve the goals. It highlights the importance (4) greater opportunities for the involvement of all social of collaboration with civil society and the private sector to actors through local development; and (5) development achieving this, as well as with international organizations of an institutional framework of information, evaluation, in order to move the processes forward. The chapter of accountability, participation and coherence among all levels this manual related to the right to adequate food provides of intervention. Bill 112 institutionalizes the fight against additional information on this issue. poverty as a priority within the legal framework, as well as in public policies. 27] The same request is made in relation to the right to health. The Committee asks the States to ‘consider adopting a framework law to operationalize their right to health national strategy.’ The Framework law should establish national mechanisms for monitoring the implementation of national Campaign to translate the MDGs into a model law for poverty eradication health strategies and plans of actions’.24 The Committee also defines the core elements of this framework law as: (1) targets The Millennium Development Goals – a commitment of the to be achieved; (2) time framework; (3) means to achieve international community – have become the core instrument in the fight against poverty. They also form the basis of national health benchmarks; (4) collaboration with civil society; (5) poverty reduction strategies. Despite all efforts, hopes of institutional responsibility; and (6) recourse procedures. attaining the target of reducing extreme poverty by half in 2015 States are also tied to monitoring the implementation of the are dwindling fast. Poverty continues to increase year after right and to identify obstacles that impede respect of their year. According to the IMF/World Bank Global Monitoring Report 2009, more than 50 million more people are projected to obligations. be in poverty in 2009. The food, energy and financial crises, and the impacts of climate change, conflict and other forms of internal turbulence weigh heavily on the living conditions of vulnerable unprotected populations. Women and children are affected most: legalizing the fight against poverty at the national level has today become an ethical imperative. Organization ACECI has launched a campaign in order to translate MDGs into rights titled Translating MDGs into a model law on poverty reduction. 22. See the consolidated report of 2006 at www2.ohchr.org/english/issues/hiv/docs/ consolidated_guidelines.pdf. 25. For more information on the law see: www2.publicationsduquebec.gouv.qc.ca/ 23. Benin: law 2005-31 of 2006; Togo: Law 2005-012; Mali: Law 06-28 of 29 June 2008; dynamicSearch/telecharge.php?type=5&file=2002C61A.pdf and A. Noël, Background Sierra Leone: Law 2007; Niger: law 2007-08, 30 April 2007. paper: A Law against poverty: Quebec’s new approach to combating poverty and social exclusion, Canadian Policy Research Networks– Family network December 2002. 24. See General Comment n° 14 para. 56. Available at: www.pauvrete.qc.ca/IMG/pdf/Noel-A_Law_Against_Poverty.pdf. 19 Empowering the Poor Through Human Rights Litigation Chapter I such as food, housing or education, for the most vulnerable. The UN Independent Expert on the question of human rights and extreme poverty emphasized the fact that CTPs have been [Campaign to translate the MDGs into a model law for poverty eradication] identified as effective tools for poverty eradication due to their capacity to reduce economic inequalities and break the The campaign is built on a human rights approach to intergenerational transmission of poverty.27 guaranteeing minimum development for every human being (regarding satisfaction of vital needs) in conformity with the 1949 Universal Declaration of Human Rights, the 1966 32] CTPs have been developed today in more than thirty International Covenant on Civil and Political Rights and the countries, especially in South Asia, Latin America and Africa, International Covenant on Economic, Social and Cultural rights, and have proved to have a substantial impact on supporting and is mounted by a consortium of north-south NGOs, and women movements in particular. families, particularly those with children, by providing food, access to health and sustainable education.28 Concrete The human-rights approach draws the attention of national and international, private and public actors to the fact that non- examples of incremental increases in income and reductions in application of the International Covenant on Economic, Social poverty have been demonstrated in Brazil through the Bolsa and Cultural amounts to a negation of human rights, and is Familia Programme, Zambia, Malawi, Mozambique, Namibia synonymous to a violation of human dignity. and China.29 As for example, studies have demonstrated that The model law on poverty reduction will form a source of in the absence of CTPs provided through the Bolsa Familia inspiration for countries who wish to adapt it to the specificities Programme, poverty in Brazilian households would increase of their national context, in a similar way as occurred with the 2004 model law on STD/HIV/AIDS in West and Central Africa. by 5.3 per cent.30 The direct effect of CTPs is thought to combat short-term poverty. This poverty reduction law will be the fruit of an inclusive participatory process (SCOs, parliaments and governments, with the support of international actors). It is not limited to MDGs or by the 2015 deadline. It includes: • the notion of poverty as a human-rights violation • the right of each country to determine its own development Brazilian Programme ‘Brazil End Poverty’ 2011: an example path of social inclusive policy • MDGs adapted to the reality of each country, compensating ‘Brasil Sem Miseria’ (‘Brazil End Poverty’) is a National Poverty for present gaps in the MDGs (e.g. production capacities and Alleviation Programme recently launched by the Brazilian job creation) Government. Its aim is to inject US$13 millions until 2014 to • minimum human development as a right of every person, and empower the poorest Brazilian households to access health, ways to guarantee it education, employment opportunities, electricity, safe drinking • mechanisms of impoverishment, and ways to neutralize them water and sanitation, productive inclusion and other economic, • accountability for all development actors with respect to the social and cultural rights. population • the principles of the Paris Declaration: ownership, The programme aims to lift 16 million people out of poverty. harmonization, alignment, results-based management and The beneficiaries have been identified by a 2010 national mutual accountability census. People who have not benefited from the Bolsa Familia • the conception, implementation and follow-up procedures Cash Transfer Programme will be registered under the Brazil End for action plans derived from the poverty reduction law Poverty programme. • the origins of the means necessary for the law’s implementation • the composition and functioning rules of an inclusive body designed for the monitoring and evaluation of the poverty reduction law and supervision of any future adjustments. 33] Various forms of Cash Transfers have been implemented by For more information or to support the campaign: visit different countries. The so-called Conditional Cash Transfers www.aceci.org or contact Ginette Karirekinyana, General Director, ACECI at: info@aceci.org. Programmes (CCTPs) consist of direct cash transfers, but the 27. See report of the independent expert on the question of human rights and extreme poverty, Ms Magdalena Sepúlveda Carmona, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, document A/HRC/11/9 27 March 2009. See also Samson, Tackling Poverty with Social d. Cash transfer programmes as social inclusive Transfers, 2007. policies 28. See, for example, K. Chapman, Using social transfers to scale up equitable access to education and health services, London, DFID Policy Division, Scaling up Services Team, 2006; N. Schady and M. Caridad Araujo, Cash transfers, conditions, school enrolment, and child work: Evidence from a randomized experiment in Ecuador, 2006. 31] In recent years, a number of other strategies to combat 29. Brazil, through Bolsa de Familia (Family Support Programme), for example, has attained the first MDG. The Kalomo Project in Zambia has reached a target group of 200,000 poverty with a direct impact on the realization of human households who have received an amount of 30,000 ZMK and another 10,000 ZMK per child. In Malawi, the Mchinji pilot social cash transfer scheme introduced in 2006 reaches rights have been developed. These initiatives are called Cash 11,170 beneficiaries and focuses on children, and orphans in particular. It supports the process of elaborating a national social protection policy for Malawi. The goal is to Transfers Programmes (CTPs) and consist of a direct cash link the social cash transfer scheme to ongoing social and economic programmes and services, and complement the scheme with programmes that target poor households transfer to increase the income of poor households.26 CTPs which are not labour constrained. In China, the DI Bao (Minimum Income Guarantee Scheme) was introduced in 1999 across the country, reaching 22 million people and provide the financial means to facilitate access to basic goods costing 1 per cent of GDP. For more information, see: R Künnemann and R. Leonhard, A Human Rights View of Social Cash Transfers for Achieving the Millennium Development Goals, Brot fur Die Welt, EED, Fian International and Medico International, 2008. 26. F. Ariel and S. Norber, Conditional cash transfers: reducing present and future poverty, 30. See, for example, the studies of A. Barrientos and R. Holmes, Social Assistance in World Bank Policy Research Report, 2009. Developing Countries Database, Version 2.0, IDS, University of Sussex, March 2006. 20 Chapter I Empowering the Poor Through Human Rights Litigation they integrate a human-rights approach. Their success depends [Brazilian Programme ‘Brazil End Poverty’ 2011: an example of largely on political will, administrative capacity and the social inclusive policy] availability of financial resources. In addition, it is crucial that The basis of the programme is the creation of social inclusion local actors support the monitoring and transparency of those in order to make growth sustainable at the national and strategies. NGOs can play a huge role in their implementation regional level. For this purpose, the Programme will provide and accountability. For example, the pilot above mentioned holistic responses to poverty by supporting training capacities experience of the Malawi CTP31 provided a good example of the and youth entrepreneurship with targeted action provided by food, nutrition and housing centres. crucial role played by NGOs in supporting food aid.32 The programme will concretely: 1. Promote access to economic, social and cultural rights by providing subsidies 2. Provide infrastructure for the provision of social services 3. Translating MDGs into rights 3. Provide capacity building and training sessions in order to increase participation of the most vulnerable 4. Support equality by breaking generational exclusion and 37] By adopting the Millennium Declaration, 191 UN Members empower female participation. agreed to adopt the Millennium Developments Goals (MDGs), In order to link the families and the government, 7,000 which include targets to be achieved by 2015. Reminding the Centres for Social Assistance have been created in each international community and the UN Agencies of their duty to municipality in order to support the identification of needs, as well as the administration of funds. develop standards related to states’ obligations, derived from the human rights-based approach to poverty eradication, the The role of NGOs will be crucial in providing data and undertaking research on existing gaps and the needs of international community defined the first one of these goals marginalized populations. as reducing poverty by one half by 2015, and identified the issue of extreme poverty as a main objective: ‘We will spare For more information, see: www.brasilsemmiseria.gov.co no effort to free our fellow men, women and children from the abject and dehumanizing conditions of extreme poverty, to beneficiaries commit themselves to investing, in return, in child which more than a billion of them are currently subjected. We education, provision of food or health services (especially for are committed to making the right to development a reality for HIV-AIDS), and gender empowerment, for example. Investment everyone and to freeing the entire human race from want.’ MDG in these ESC rights provides a decent floor for poor persons and 1 is to ‘end poverty and hunger’.33 allows them to progressively access educational systems and healthcare services. CCTPs are a source of tacit obligations for 38] To reinforce initiatives to attain the MDGs, the second beneficiaries to access ESC rights. Decade for the Eradication of Poverty 2008–2017 issued a demand for an integrated strategy to support national activities 34] Gender approaches to CTPs have also been important to and actions to eradicate poverty, through the implementation development. Examples demonstrate how CTPs have helped of holistic policies with broad social protection impact. empower women by providing autonomy and equilibrating International cooperation aims to reinforce national strategies household members, especially in Asia and Africa. In Mexico, with a view to advancing the progressive realization of human for example, women have reported having greater control rights and the attainment of the MDGs. over household resources as a result of the Mexican ‘Progresa’ Initiative. 39] However, the MDGs would be achieved if we don’t translate them into rights and therefore into actionable interventions 35] General responses show that CTPs remain efficient in with strong local impact. Human rights and MDGs both have combating short-term poverty and elevating the standard a minimum standard which policies and programmes can be of living to ‘adequate’ and ‘decent’ levels. From a long-term evaluated against. They should both be integrated at the perspective, CTPs are not meant to work autonomously and are beginning of the policy or programme design stage. Thus, insufficient to replace adequate services and targeted public linking MDGs to human rights will prevent MDGs from being policies. As such, they do not ensure long-term empowerment of merely optional and will help them to: the poor. Therefore, CTPs should undoubtedly be accompanied by mechanisms aimed at supporting long-term access to (1) better address the question of the most vulnerable groups services and providing a common floor for the enjoyment of of society human rights for vulnerable persons. In this way, long-term (2) include the notions of state obligations and progressive sustainable CTPs could be a tool for empowerment and should realization, and also work to ensure the participation of a wide list of actors. 31. www.ipc-undp.org/publications/cct/africa/PilotingMalawiCT.pdf. 32. Op. cit 36] For these reasons, CTPs are most effective when 33. See the UN Campaign to End Poverty by 2015 at www.endpoverty2015.org. The campaign complemented by other social protection programmes and when focuses on achieving the eight MDGs by 2015. 21 Empowering the Poor Through Human Rights Litigation Chapter I: Poverty and human rights Translating Millennium Development Goals (MDGs) into rights Goals Targets Rights Related articles MDG 1. 1.a. Reduce by half the proportion of people living on less than Right to attain a Art. 22 and 22 of the a dollar a day decent standard of UDHR Eradicate living Art. 6 ICESCR extreme poverty Right to social security Art. 25 UDHR and hunger Art. 11 ICESCR 1.b. Achieve full and productive employment and decent work Right to work for all, including women and young people 1.c. Reduce by half the proportion of people who suffer from hunger Right to food MDG 2. 2. Ensure that all boys and girls complete a full course of Right to education UDHR Art. 25(1) primary schooling Arts 13, 14 ICESCR Achieve Art. 28(1) a CRC universal primary Art. 10 CEDAW education Art. 5(e) ICERD MDG 3. 3. Eliminate gender disparity in primary and secondary Right to equality UDHR Art. 25(1) education preferably by 2005, and at all levels by 2015 Right to education Arts 13, 14 ICESCR Promote gender Art. 28(1)a CRC equality and Art. 10 CEDAW empower women Art. 5(e) ICERD MDG 4. 4. Reduce by two-thirds the mortality rate among children under Right to life UDHR Art. 25 (1) five Art. 6 and 24 (2)a CRC Reduce child Art. 12(2)a ICESCR mortality MDG 5. 5.a. Reduce by three-quarters the maternal mortality ratio Right to life Art. 25 UDHR Art. 12 ICESCR Improve maternal 5.b. Achieve, by 2015, universal access to reproductive health The right to the Art. 24 CRC health highest attainable Art. 12 CEDAW standard of health Art. 5(e)(iv) ICERD MDG 6. 6.a. Halt and begin to reverse the spread of HIV/AIDS The right to the Art. 25 UDHR highest attainable Art. 12 ICESCR Combat HIV/ 6.b. Achieve, by 2010, universal access to HIV/AIDS for all standard of health Art. 24 CRC AIDS, malaria those who need it Art. 12 CEDAW and other 6.c. Halt and begin to reverse the incidence of malaria and Art. 5(e)(iv) ICERD diseases other major diseases MDG 7. 7.a. Integrate the principles of sustainable development into Right to Art. 12 ICESCR country policies and programmes; reverse loss of environmental environmental health Art. 14 CRC Ensure resources environmental sustainability 7.b. Reduce biodiversity loss, achieving, by 2010, a significant reduction in the rate of loss 7.c. Reduce by half the proportion of people without sustainable Right to safe drinking access to safe drinking water and basic sanitation water and sanitation 7.d. Achieve significant improvement in lives of at least 100 Right to adequate million slum dwellers, by 2020 housing MDG 8. 8.a. Develop further an open, rule-based, predictable, non- Right to development Art. 22 and 28 UDHR discriminatory trading and financial system Art. 2 (1) , 11 (1), 15 Develop a global partnership for 8.b. Address the special needs of the least developed countries (4), 22 and 23 ICESCR development 8.c. Address the special needs of landlocked developing Art. 4 , 24 (4) and 28 countries and small island developing States (through the (3) CRC Programme of Action for the Sustainable Development of Small Island Developing States and the outcome of the twenty-second special session of the General Assembly) 8.d. Deal comprehensively with the debt problems of developing The right to the countries through national and international measures in order highest attainable to make debt sustainable in the long term standard of health 8.e. In cooperation with pharmaceutical companies, provide Right to enjoy the access to affordable essential drugs in developing countries benefits of scientific progress and its 8.f. In cooperation with private sector, make available the implications benefits of new technologies Source: table created by the author on the basis of the information obtained at the website: www.un.org/millenniumgoals/ 22 Chapter I Empowering the Poor Through Human Rights Litigation (3) promote an interdisciplinary approach to programming by 44] Trafficking and prostitution, violence and reproductive integrating the interdependent nature of human rights. rights remain the major concerns in the protection of women. The UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, and several ILO Conventions contain specific provisions relating to these issues. At the regional level, the Optional 4. Mainstreaming gender into Protocol to the African Charter on Human and People’s Rights poverty agendas on the Rights of Women in Africa mentions specific provisions against harmful practices, such as genital mutilation, and the 40] Gender issues are today found at the heart of development, Inter-American Convention on the Prevention, Punishment social, political and economic issues, as a matter of urgency. and Eradication of Violence against Women (Convention Women remain the poorest segment among the poor. It is Belém Do Pará) contains provisions on violence against estimated that women represent around 70 per cent of the women, among many others. world’s poor.34 Of the 113 million children not in primary schools 60 per cent are girls. More than 60 per cent of the world’s estimated 876 million illiterate adults are women, and among refugees 80 per cent are women. In addition, their access to work opportunities and posts with responsibilities Gender approach to access to justice are limited. In order to provide visibility for gender policy initiatives and adjudication in the judicial system, the Inter-American 41] A focus on women’ rights has grown significantly, in part Bank has launched a pilot project in Costa Rica, aimed at developing a programme on gender awareness-raising activities as a result of the 1995 Beijing World Conference on Women and supporting information to monitor and evaluate non- and its Platform for Action, and the Outcome Document of discriminatory practices in the judicial system. A training the special session of the General Assembly in Beijing+5. model on gender issues is been developed as well a model to The Beijing Declaration and Platform for Action developed disseminate court decisions related to gender issues. the notion of ‘gender mainstreaming’, highlighting the need In Colombia, a project called Casas de Justicia (Justice Houses) to take gender perspectives into account in all social, legal promotes awareness of judicial decisions and legal support for women in situations of poverty by providing them with access and political frameworks, whenever a policy, strategy, plan to justice. The creation of Casas de Justicia has increased the or norm is formulated or implemented. As a result gender accessibility of justice services for urban and rural populations; mainstreaming has been implemented in diverse initiatives promoted relationships between public defenders, pro bono around the world, but unfortunately this has not been enough attorneys, police and judges; and promoted the access of marginalized Colombians, especially women and displaced to overcome persistent gender inequalities worldwide. population, to a range of remedies, ranging from title law to domestic law. 42] Millennium Development Goal 3 concerns the promotion For more information, please see: www.mij.gov.co/econtent/ of gender equality and the empowerment of women as a tool library/documents/DocNewsNo1775DocumentNo1770.PDF to combat poverty. Indeed, women’s public participation is a human rights issue and it empowers their decision-making processes with direct effect in the communities and their families. 5. Prioritizing vulnerable 43] Both Article 3 of the ICESCR and ICCPR banish any kind of groups discrimination against women. In particular, the Convention on the Elimination of All forms of Discrimination against 45] Vulnerable social groups are at the center of the strategy Women (CEDAW) proclaims the equality of rights between to eradicate poverty. The Committee has repeatedly announced men and women in all social, economic, political and legal which groups of society should be considered as ‘marginalized’ spheres and encourage actions to modify patterns that and ‘vulnerable’. Some are discriminated against because of create stereotypes and impede equality between men and the historical and structural role of societies, some because of women. The Convention appeals for equal access in education their physical, mental or sexual condition. Those groups are: (Art. 10), employment (Art. 11), health services (Art. 12) children, older people, people with disabilities, people living and economic and social benefits (Art. 13) with special with HIV-AIDS, migrants, displaced persons, indigenous people attention on rural women (Art. 14). The Optional Protocol and lesbians, gays, bisexual and transgender people (LGBT). to the Convention allows women victims to submit claims of violations of rights protected under the Convention. 46] Youth is presented here as a group that merits special attention as in recent years this age group has been particularly affected by high levels of unemployment, growing urban poverty, forced migration, family disintegration and 34. Data and information from UNIFEM. 23 Empowering the Poor Through Human Rights Litigation Chapter I deteriorating health conditions. Among other challenging states that have developed such new forms of legislation, factors, the population density in cities accelerates the too often it is piecemeal and lacks a comprehensive approach transmission of infections to which children and young people thereby impeding participatory processes to integrate are especially vulnerable, including HIV/AIDS. Research also challenges faced by the younger generation, as well as shows that young people are particularly affected by insecurity possible solutions. since this age group holds the highest level of involvement in violence situations, both as agents and as victims. When 51] As young people today are particularly vulnerable to deprived of access to basic healthcare, education and job current social and economic challenges, they are now more opportunities, among other things, marginalized young people present on the agendas of planners and decision-makers are often stigmatized when trying to be part of society. and – albeit still scarcely – in public policy outlines. In this context, UNESCO has developed a set of guidelines covering policy formulation, implementation and monitoring a. Children and evaluation on national youth policies and programmes without interfering with state priorities.The main priorities for 47] Children need special care and protection because of their confronting the challenges of social change are: preventing particular vulnerability. The 1989 Convention on the Rights of violence, inclusion of youth with disabilities, and fostering the Child (CRC) protects his/her right to life, survival and participation of young women and men. UNESCO has also development under the principles of protection, provision developed initiatives including the Youth Development Index, and participation. By applying the ‘most favourable an indicator used to measure the development of countries: conditions clause’, the Convention emphasizes the necessity the per capita GDP applied to youth. This Index highlights of applying the most favourable conditions clause, whenever specificities within this age group according to the presence a clause of the CRC and a national provision are contravened. of youths in socially defined activities (work and school). 48] Special provisions concerning economic, social and 52] This manual focuses on youth as a vulnerable group cultural rights are mentioned along with the right to health, whenever a violation occurs to a young people due to its lack clean water, sanitation, education, food, the prohibition of of accessing a right. Youth are therefore considered as subject child labour and child abuse, and the freedom of children of vulnerability caused by a lack of access to resources, for to express their opinions and to have a say in things that example, or from dependency on public services, which may concern their life. The Optional Protocols to the Convention be the situation for young disabled people. Typically, what namely the Optional Protocol on the involvement of children all these groups have in common is a lack of effective public in armed conflict35 and the Optional Protocol on the sale of voice and mitigation options, such as a dependable network children, child prostitution and child pornography provide of support or sufficient fungible assets. special protection against the worst forms of exploitation and contain provisions on street children, sexual exploitation, and children recruited by armed forces or belligerent c. Older people organizations. The Committee on the Rights of the Child and the Human Rights Committee supervise both the respect of 53] Older people often suffer limitations to their economic, the obligations related to the Convention and its Protocols. social and cultural rights and related discrimination. However, no international human rights instrument is dedicated to older 49] At the regional level, the African Charter on the Rights persons. Despite this, several instruments mention the necessity and Welfare of the Child, the Inter-American Conventions on of avoiding any kind of discrimination against older people and Conflicts of Laws concerning the Adoptions of Minors and on the need to promote their participation, development, care and the International Return of Children, and the European Social increase their social welfare. For example, the UN Convention Charter reinforce protection. on the Rights of Persons with Disabilities (CRPD) specifically mentions the necessity for States Parties to ‘adopt immediate, effective and appropriate measures’ to combat stereotypes on b. Youth the base of age (Art. 8.1b), and other instruments such as the African Charter prescribes the necessity of protecting their 50] The United Nations define youth as persons between the moral and physical needs (Art. 18). ages of 15 and 24. Although young people represent more than 18% of the world’s population and perform a crucial role as agents of change, most countries today have no public d. People with disabilities policy relating specifically to youth. Furthermore, even for 54] People with disabilities suffer multiple forms of 35. Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of 25 May 2000 and entered into force on 12 February 2002. discrimination and need to be empowered in order to make 24 Chapter I Empowering the Poor Through Human Rights Litigation social integration a reality. The recent UN Convention on the other rights, places them in a situation of vulnerability. Rights of People with Disabilities (CRPD)36 contains a list of principles that aim to provide specific responses in relation 59] Poverty is sometimes the reason for migration, but is to their rights to transportation, housing, health care and also an outcome of it. There is therefore a pressing need to participation in public life. recognize and implement the human rights of migrants and equality of treatment, and to ensure their recognition not 55] Indeed, Article 3 of the Convention reaffirms the respect only as workers, but as human beings with the same rights. for inherent dignity, individual autonomy, non-discrimination, equality of opportunity and accessibility among others as 60] The 2003 International Convention on the Protection guiding principles of the Convention, and Articles 6 and 7 of the Rights of All Migrant Workers and Members of Their mention specifically women and children with disabilities. Families aims to guarantee economic, social and cultural Article 25 confirms the necessity of providing health care rights as well as civil and political rights, with a view to on the basis of free and informed consent and equality with ensuring access to social goods in terms of equality and others. participation. Migrants are asked to retain contact with their country of origin and to return and participate in public life. 56] At the regional level, the African Charter on Human In the case of irregular migrants, protection should also be and People’s Rights mentions handicapped children as given despite their undocumented situation. groups exposed to specific vulnerability. The 1999 Inter- American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities recalls the g. Displaced people need to ensure quality of services for disabled people as well as their independence. Specific instruments such as ILO 61] Displaced people are people who have been obliged to 159 of 1983 and Recommendation (n° 168) and the United leave their homes due to natural, political or social events Nations Convention on the Rights of Persons with Disabilities but have remained inside the border. Due to their forced concerning Vocational Rehabilitation and Employment, displacement, they encounter discrimination and intolerance provide guidelines for policy on vocational rehabilitation as well as exclusion from economic and social development in order to promote employment opportunities. General processes. Therefore, States are obliged to provide the Comment n°5 of the Committee on ESC Rights is dedicated to same treatment as is accorded to nationals, and especially people with disabilities. in accessing human rights such as education, health care and social security and employment. The general framework of protection is given by the 1949 Geneva Convention (IV) e. People living with HIV-AIDS relative to the Protection of Civilian Persons in Time of War. 57] Despite the absence of an international binding instrument 62] Refugees are also considered as displaced people, but with dealing with HIV-AIDS, most of the international human the difference that they have crossed borders and encounter, rights instruments provide special protection fot people living for the same reasons, exclusion. The 1951 Convention Relating with HIV-AIDS. Indeed, rates of HIV-AIDS infection are still to the Status of Refugees, the 1967 Protocol Relating to the on the rise in many countries in sub-Saharan Africa and some Status of Refugees and the Resolution 2198 (XXI) adopted regions of Asia. Due to the discrimination they encounter, by the United Nations General Assembly constitute the main people with HIV-AIDS should be empowered in their access treaty bodies related to refugees. to health care protection, housing and education. Women are at greater risk of infection due to their historical cultural 63] At the regional level, the Convention Governing the subordination and their sexual and reproductive rights. Specific Aspects of Refugee Problems in Africa and the Addis Ababa Document on Refugees and Forced Population Displacements in Africa contain prescriptions to provide f. Migrants financial, material and technical assistance, as well as access to human rights such as food, water, shelter, sanitation and 58] International migration has become an intrinsic feature health care. The 1984 Cartagena Declaration on Refugees37 as of globalization. Migrants live in states where they are not well as the San José Declaration on Refugees and Displaced nationals, and are confronted with cultural, political and Persons38 are non-binding instruments serving as sources of social changes that require adaption to new values and guidance for the convergence between International Human practices. This adaptation can often be difficult and lead to exclusion and discrimination. Moreover, their limited access 37. Adopted by the Colloquium on the International Protection of Refugees in Central to employment, education, health care and housing, among America, Mexico and Panama, held at Cartagena, Colombia from 19–22 November 1984. 38. Adopted by the International Colloquium in Commemoration of the ‘Tenth Anniversary of 36. Adopted by General Assembly resolution A/RES/61/106, 13 December, 2006. the Cartagena Declaration on Refugees’, San José, 5 December 1994. 25 Empowering the Poor Through Human Rights Litigation Chapter I Rights Law, International Humanitarian Law and International addition, the United Declaration on the Rights of Indigenous Refugee Law. The Cartagena Declaration, for example, calls for Peoples, adopted in 2007, emphasizes the prohibition of any improving their ‘self-sufficiency and integration into society’ as kind of discrimination and stresses their right to maintain well as the enjoyment of their economic, social and cultural their own institutions, cultures and traditions. States are rights, while the San José Declaration reiterates the necessity invited to promote their effective participation in all matters of designing programmes to facilitate local integration, the that concern them. issuance of essential documentation and the normalization of their migratory status. The Declaration insists on including gender-based criteria in the examination of claims for refugee i. Lesbians, gays, bisexual and transgender status. people (LGBT) 66] The discrimination encountered by lesbians, gays, h. Indigenous people bisexual and transgender people (LGBT) is often linked to historic and religious reasons, and some countries have 64] Indigenous people have historically been neglected and failed in according them equal rights and liberties. In this marginalized. They are also confronted with challenges created sense, the historic and recent UN Resolution A/HRC/17/L.9/ by globalization, markets dynamics and several violations of Rev. 1 (15 June 2011) on human rights, sexual orientation their lands, economic resources and environment. It is therefore and gender identity, marks the first step in recognition of necessary to promote human rights through culturally sensitive the multiple human rights violations faced by LGBT people approaches in order to preserve cultural diversity. as a result of their sexual orientation, and constitutes a major step in ensuring equality. The Resolution requests the 65] The first Convention on tribal groups, ILO 107 (1957), ‘commission of a study listing and analysing the discriminatory which was revised and amended in 1989 by in ILO 169 laws and practices and acts of violence against individuals Convention, defines tribal groups in its Article 1.1 as groups based on their sexual orientation and gender identity, in all ‘whose social, cultural and economic conditions distinguish regions of the world’. It also requests further elaboration them from other sections of the national community, and on how international human rights law can be used to end whose status is regulated wholly or partially by their own violence and related human rights violations based on sexual customs or traditions or by special laws or regulations’. In orientation and gender identity. Exercises 1) What are the core contents of the notion of poverty? 2) Why is poverty a violation of human rights? 3) Does the 1948 Universal Declaration of Human Rights integrate all vulnerable groups by affirming in Article 1 that ‘all people are born free and equal in dignity and rights’? 4) Do you agree that vulnerable groups should receive special treatment? Justify your answer. 5) Please provide examples of how human rights can be addressed in order to include a ‘cultural approach’. Is this contrary to the principle of universalism of human rights? Justify your answer. 26 Chapter II Chapter II: The role of justiciability in the combat against poverty – 27 – 1. Defining the concept of justiciability – 28 – 2. National frameworks for justiciability of ESC rights – 29 – 3. The role of judges in the advancement of ESC rights – 31 – 4. Correlations between justiciability and social justice: towards a transformative constitutionalism a. Justiciability providing relief to people and setting the basis for non- discrimination and recognition b. Justiciability providing relief to the most vulnerable through the redistribution of goods c. Justiciability transforming the reality of special attention groups – 34 – 5. What role for NGOs in advancing justiciability? Chapter II Empowering the Poor Through Human Rights Litigation Chapter II: The role of justiciability in © UNESCO/Le Mignon Misato the combat against poverty The arguments presented here develop the idea that justiciability reinforces the progressive realization of human rights. Justiciability provides relief by giving legal recognition to the rights of the poor. It promotes the existence of ESC rights assessment within the legal hierarchy while contributing to their realization. Other means contribute to the advancement of human rights as the implementation of public policies by independent bodies and the advocacy action of NGOs in their monitoring. So, justiciability is here taken as one of the necessary steps towards implementation of State accountability. This chapter examines the common ground shared by the concepts of social justice and justiciability, and explores how national and international litigation have a concrete impact on the promotion of social justice – building upon a broad definition of justiciability that implies the real transformative potential of human rights. 1. Defining the concept of 2] The definition of justiciability has always been both complex and problematic in terms of distinguishing the level justiciability of realization of civil and political rights (CP) versus ESC rights. In fact, the general assumption is that CP rights are 1] In the context of alleged violations of rights, justiciability justiciable, while ESC rights are not. However, the empirical refers to legal enforcement on behalf of the victims, by way evidence, consisting of numerous case laws dealing with ESC of filing a claim before national – judicial and quasi-judicial rights in courts, shows that ESC rights have gained increasing – and impartial legal claims mechanisms, with a view to legal recognition, and in terms of adjudication are now on an requesting a remedy or a redress of the alleged violation.1 equal footing with CP rights. The justiciability of courts has Some consider justiciability as one of the phases in the thus played a decisive role in equilibrating CP and ESC rights. gradual development process of a right, with the first phase of advancement corresponding to its idealization, the second 3] In developing the latter, it is important to distinguish to its conceptualization, the third to its ‘positivization’, and the two forms of implementation of legal standards: the last to its (full) realization.2 For others, since the courts implementation per se, and justiciability by adjudication. The aim to provide a remedy to an alleged violation in a particular first is defined by law or by the constitutional provisions that case,3 justiciability responds to the claim that there is ‘no provide immediate or self-execution of ESC rights, as well as right without a remedy’: that is, the right of a complainant to direct access to courts; the second requires the development present a petition and get a remedy in return. of argumentative considerations by courts through jurisprudence. Indeed, those two forms of implementation have been clarified and developed by national courts, which 1. See Introductory remarks, F. Coomans (ed) Justiciability of Economic, Social and Cultural Rights: experiences from domestic systems, Intersentia, Antwerpen-Oxford, 2006, pp. 4–5. have shifted from a conservative to a more progressive level See also, R. Gargarella, P. Domingo and T. Roux, (eds) Courts and Social Transformation in New Democracies: an institutional voice for the poor? Ashgate, 2006. of activism in the protection of ESC rights. 2. See J. Donnelly, The West and economic rights, in S. Hertel and L. Minkel (eds) Economic Rights: conceptual, measurement and policy issues, Cambridge University Press, 2006, pp. 48–49. 4] The CESCR therefore argues, in General Comment n° 9 3. See F. Viljoen, National legislation as a source of justiciable socio-economic rights, 6 on domestic application of the Covenant, that there is ESR Review, N. 3, 2005, pp. 6–9; also see Y. Ghai and J. Cottrell, The role of the courts in the protection of economic, social and cultural rights, Y. Ghai and J. Cottrell (eds), no right which cannot be considered to possess at least Economic, Social and Cultural Rights in Practice, London: Interights, 2004. 27 Empowering the Poor Through Human Rights Litigation Chapter II some significant justiciable dimensions. The CESR clarifies creating policy that states must follow.9 The PIL has provided that it is important in this regard to distinguish between broad access to justice and judicial redress to all persons or justiciability (matters which are appropriately resolved by class of persons that are in a position of poverty, vulnerability, the courts) and norms which are self-executing (capable disability and exclusion in genera. Any member of public can of being applied by courts without further elaboration). maintain an application for an appropriate direction, order or The CESCR reaffirms that ‘there is no Covenant right which writ in the Indian High Court. could not, in the great majority of systems, be considered to possess at least some significant justiciable dimensions’. The 7] Along similar lines, the justiciability of fundamental Committee has affirmed that ‘the Covenant norms must be rights was inscribed in the Colombian Constitution of recognized in appropriate ways within domestic legal order, 1991. The Constitution includes a list of fundamental rights, appropriate means of redress or remedies must be available to and states that the majority of civil and political rights are any aggrieved individual or groups and appropriate means of directly applicable and justiciable. However, the Constitution ensuring governmental accountability must be put in place’.4 has no clear provision on the enforcement of social rights. Thus, developments in ESC rights as justiciable rights have been ruled through adjudication provided by the Colombian Constitutional Court (Colombian CC). Here, as in India, the ‘connexity’10 of ESC rights with a fundamental right is 2. National frameworks for justiciable. justiciability of ESC rights 8] The Constitution of the Philippines of 1987 fixes the 5] It is today undeniable that adjudication of ESC rights terms of justiciability for the Supreme Court.11 Article VIII has matured, as confirmed by national experiences in states that in order for a right to be justiciable it first has to India, Colombia, the Philippines, Canada, and South Africa, pass an analysis of the nature of the controversy (the right among many others. These comparable experiences have and the violation) and the capacity, legitimacy or interest demonstrated the crucial role of justiciability in setting of the victim (locus standi). In the case of ESC rights, the standards for empowerment and building a legal basis for the same test is applied. However, two provisions seem to be self- attainment of social justice. executing: the non-discrimination and the equal protection clauses. The same Constitution also incorporates a Declaration 6] The Indian Constitution5 states that only the right to life, of Principles and State Policies including twenty-eight the right to equality and the right to freedom of expression sections that elaborate ESC rights, such as health, education, are justiciable rights, defining these as self-executive rights social services and housing. Nevertheless, the justiciability (justiciability per se). Nevertheless, a posteriori, developments of ESC rights has been developed by jurisprudence. In several in justiciability appeared in the 1970s when the Indian cases (LLDA,12 Oposa,13 Tañada14 and Kilosbayan),15 the Supreme Court (Indian SC) linked the right to life6 to human Philippines Court defined the meaning of justiciability, as dignity, and defined an integrative theory in which the nature well as the role of courts in right-conferring statements and of fundamentality should be attributed to all rights that are policies, declaring that ‘these basic rights need not even be linked to the right to life. The Indian SC states that ‘the written in the Constitution for they are assumed to exist from right to life includes the right to live with human dignity the inception of human kind’.16 The Court has advocated for and all that goes with it’.7 ESC rights have been included in the implementation of ESC rights through judicial and quasi- the Constitution under Directive Principles, which although judicial means. not justiciable, provide a guide for the Government on the implementation of ESC rights. However, in recent revisions, 9] In Canada, the Constitution Act of 1867 does not provide the court has used the Directive Principles to enlarge the any specific provision related to justiciability of human scope of ESC rights.8 The use of Public Interest Litigation rights. Yet, the Canadian Charter of Rights and Freedoms (PIL) has contributed to providing relief to people and to 9. See, in this chapter, the text box on the judicial enforcement of positive obligations. 10. The Connexity Doctrine has been developed by the Constitutional Court of Colombia to enforce ESC rights, while assimilating them to fundamental rights, thus, enabling a social right to be protected as fundamental. 4. General Comment n°9, The domestic application of the Covenant: 03/12/1998. E/C.12/1998/24, CESCR, para. 10. 11. Section I states: ‘The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts 5. Constitution of India of 1950. of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of 6. Part III of the Indian Constitution of 1950 mentions the right to life, the right to discretion amounting to lack or excess of jurisdiction on the part of any branch or freedom of opinion and expression and the right to equality, and defines them as instrumentality of the Government’. fundamental. ESC rights are mentioned under Part IV, entitled ‘Directive Principles of State Policy and Fundamental Duties (DPSP) of the Constitution’, including the right to 12. See Laguna Lake Development Authority (LLDA) v. Court of Appeals, GR n° 110120, 16 education and work. Those ESC rights, according to the DPSP, ‘are not enforceable by March, 1994. the courts, but the principles on which they are based are fundamental guidelines for governance that the State is expected to apply in framing and passing laws’. 13. See Oposa v. Factoran, 224, SCRA 792, 1993. 7. See Kesavananda Bharati v. State of Kerala 4 SCC 225, 1973; Maneka Gnadhi v. Union of 14. See Tañada v. Angara, 272 SCRA 18, at 54, 1997. India, 1 SCC, 248, 1978; Municipal Council Ratlam vs. Vardhichand and others, AIR 1980 SC 622 and Bandhua Mukti Morcha vs. Union of India, 1984 SC 802. 15. See Kilosbayan v. Guingona, 232 SCRA 110, 1993. 8. For example, Olga Tellis v Bombay, 1986. 16. See Oposa Case op. cit 12. 28 Chapter II Empowering the Poor Through Human Rights Litigation of 1982 has provided a framework for adjudication of ESC 3. The role of judges in the rights. This Charter has expanded judicial review and set up advancement of ESC rights important developments for the advancement of ESC rights. It enshrines various ESC rights such as the right to education, housing, health and social assistance, and labour rights. In 11] The role of judges as the guardians of constitutions is the case Chaoulli v. Quebec (Attorney General)17 related to crucial for the recognition, and clarification of the definition the decision of the Supreme Court of Canada to struck down and enforcement of ESC rights, ensuring that they do not a Quebec law that banned the use of private insurance for remain on paper alone. The judges assist with achieving publicly insured health services covered under that province’s the transformative potential of ESC rights, particularly in universal health care system, Medicare, the Canadian Court combating poverty at local levels. stated: ‘When the courts are given the tools they need to make a decision, they should not hesitate to assume their 12] Based on the traditional separation of powers, courts are responsibilities’.18 Other decisions have supported this responsible for the interpretation of the law. They have as a position and empowered the poor.19 guiding principle the national constitution and international standards that are implemented directly or indirectly 10] In South Africa the justiciability of ESC rights was largely into the national framework. Courts provide remedies and developed by the Constitution of 1996, which explicitly redress situations concerning violations of human rights, as inserted the State’s obligations to respect, protect, promote well as taking decisions that include legal obligations for and fulfil,20 and asks the State to accomplish their progressive governments and civil society, whenever their actions do not realization.21 In the case Fose v. Minister of Safety and respect human rights principles and standards. Security,22 the Constitutional Court of South Africa has defined the meaning of an appropriate and effective remedy, 13] Arguments in favour of and against the role of courts expressing that “in our context an appropriate remedy must providing interpretations of human rights lie at the centre mean an effective remedy, for without effective remedies for of the debate. Indeed, so-called theories of ‘democracy’ have breach, the values underlying and the rights entrenched in the stressed the single most important argument against the Constitution cannot properly be upheld or enhanced. Particularly enforcement of ESC rights by judges,24 arguing that as judges in a country where so few have the means to enforce their rights are not elected by citizens, they should not be permitted a through the courts, it is essential that on those occasions when say in the advancement of ESC rights, since their decisions, the legal process does establish that an infringement of an in some cases, overrule pronouncements and priorities entrenched right has occurred, it be effectively vindicated. The defined by the people’s representatives, such as government courts have a particular responsibility in this regard and are authorities, parliamentarians, and so on. obliged to ‘forge new tools’ and shape innovative remedies, if needs be, to achieve this goal”. 14] The objections are embodied in two types of arguments: South Africa’s role in the social rights adjudication debate a. The anti-democratic character of judges: unlike is seen as revolutionary. The Constitutional Court has governments and parliamentarians that are invested with applied the “reasonableness review” of section 27(2) of public endorsement, judges are not elected and therefore the Constitution, in order to consider the reasonableness should not decide on elements concerning political and of legislative or other measures taken by the state in order economic models and priorities. In addition, judges to comply with its positive duties. The “reasonableness impose a majority decision, instead of one that is broad review” takes into consideration the context of the measures, and participatory (counter-majoritarian objection). including their purpose and their impact.23 b. The lack of technical capacities related to their competences in economy, political sciences: indeed, since ESC rights imply progressive policies with budgetary implications as well as the definition of concrete priorities and indicators, their competence in this matter has been much debated. 17. S.C.R. 791, 2005 SCC 35. 18. Chaoulli v. Quebec (Attorney General) [2005] 1 S.C.R. 791, 2005 SCC 35, para 87. 15] Concerning objections related to the financial impacts 19. Slaight Communications v. Davidson, 1989 1 S.C.R. 1038, Irwin Toy v. Attorney General Quebec, 1989 1 S.C.R. 927, Gosselin v. Quebec (Attorney General), 2002 SCC 84, 2002 of judicial review, it has already been demonstrated that civil A.S.C.R, para 82, and in the case R. v. Ewanchuk (1999) 1 S.C.R. 330, para 73. and political rights, as well as ESC rights, entail financial 20. Chapter 2 will provide clarification on the scope and content of these obligations. 21. The first landmark decisions related to the justiciability of ESC rights in South Africa are: S v Zuma, 1995 2 SA 642 CC y S v Makwanyane, 1995 3 SA 391 (CC). 24. See Y. Ghai and J. Cottrell, The role of the courts in the protection of economic, social and cultural rights, in Y. Ghai and J. Cottrell (eds) Economic, Social and Cultural Rights 22. [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC). in Practice, London Interights, 2004. See also V. Abramovich and C. Courtis, Supporting justiciability of ESC rights, V. Abramovich and C. Courtis (eds) Los Derechos Sociales como 23. For the clarification of the “reasonableness review” and its difference with “rationality derechos exigibles, 2nd edn, 2004; and COHRE, Litigating Economic, Social and Cultural review” see Khosa & Mahlauli v Minister of Social Development 2004(6) BCLR 569 (CC). Rights: achievements, challenges and strategies, 2003. 29 Empowering the Poor Through Human Rights Litigation Chapter II impacts. For example, the organization of regular elections claims; responsiveness is related to the willingness of the or the management of a criminal justice system both have court to respond to the concerns of poor and marginalized an impact on budgeting. As such, this line of argument does people; capability is the legal effect of court decisions on not represent a solid critique of judicial review of ESC rights. rights that significantly affect the situation of marginalized and poor people; and finally compliance reflects the authority 16] As regards the expenses required to implement ESC of the decisions of the courts and compliance with these by rights, the financial implications in may cases are not other branches, as well as their implementation through enormous and largely imply the preparation of action plans, public policies. or occur only where a determined policy is impeded (for example, prohibition of forced evictions). However, where 20] This manual adopts this pro-poor approach, in which courts implementation is significant (vaccination campaigns, have a transformative capacity to change reality and provide expensive healthcare services, extension of the scale of standards to struggle against the most inhuman deprivations. protection of the right to adequate housing or adequate Judicial decisions have accordingly an emancipatory impact food), the courts are capable of self-restriction or may since they propose ways of relief to marginalized people. even opt for a gradual advancement of the right. In South Sometimes they even mark the beginning of social change. Africa, for example, the court has ruled that courts ‘are not Justiciability is the first founding step for legitimacy. For full themselves directed at rearranging budgets’,25 but regardless, implementation, public policies and the participation of other has supported progressive advancement of ESC rights. actors, such as civil society, are also crucial. 17] Moreover, the CESCR has emphasized that ‘in relation to civil and political rights, it is generally taken for granted that Judicial enforcement of positive obligations judicial remedies for violations are essential. Regrettably, the contrary assumption is too often made in relation to economic, One of the lessons derived from the concept of positive obligations is that courts have been creative in developing social and cultural rights. This discrepancy is not warranted new procedures, methods and remedies, in order to effectively either by the nature of the rights or by the relevant Covenant advance human rights by the following means and techniques: provisions. The Committee has already made clear that it Means that have provided direct adjudication of ESC rights considers many of the provisions in the Covenant to be capable include: Public Interest Litigation (PIL)1 and direction orders of immediate implementation.’26 and writs in India,2 the Tutela3 or amparo protection in Spain, Mexico and Colombia, recurso de proteccion, public civil action in Brazil, and injunctions among others. 18] It is important in this regard to distinguish between justiciability (which refers to those matters which are Techniques that have expanded protection of ESC rights include: the reasonableness review,4 proportionality, adequacy, the appropriately resolved by the courts) and norms which are self- ‘theory of connexity’,5 appropriateness, the vital minimum,6 executing (capable of being applied by courts without further the basic structure doctrine,7 unconstitutional states of elaboration). While the general approach of each legal system needs to be taken into account, there is no Covenant right 1. PIL is a ‘strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses, who constitute the low visibility which could not, in the great majority of systems, be considered of humanity’. Definition provided by S.P. Sathe, Judicial activism: the Indian experience, Journal of Law and Policy, 6 (2001). See also People’s Union for to possess at least some significant justiciable dimensions. It is Democratic Rights v. India, 1982 AIR (SC) 1473, 1476. sometimes suggested that matters involving the allocation of 2. Articles 32 and 226 of the Indian Constitution give this prerogative to the Supreme Court of India. resources should be left to the political authorities rather than 3. Writ of protection of fundamental rights, presented to any Colombian the courts. For these reasons, such an argument should not judge, who will decide in a maximum of ten days the urgent matter of the plaintiff. impede the normal and regular adjudication of ESC rights. And 4. The reasonableness review is a technique by which the court adjudicates claims for the provision of social services and resources. The Courts asks itself ‘whether this is why this manual supports the development of ESC rights a particular policy or programme can be justified, and it will be justified if it is reasonably related to a goal of providing access to the relevant socio-economic as justiciable rights, as well as the arguments supporting their rights’ (Grootboom case). Examples of the application of the reasonableness review by courts can be found in the cases Grootboom (South Africa) and Chameli role in advancing human rights. Singh and Ors v State of U.P. & Another, JT 1995 (9) SC 380 (India), in which the court ordered the construction of shelters, allowing for growth and development in every aspect of life, and emphasized the right to life, stating that: ‘The right to life is guaranteed in any civilized society. That would take within its sweep 19] Four stages in the litigation process which demonstrate the right to food, the right to clothing, the right to a decent environment and a reasonable accommodation to live in.’ the enormous potential of judges can be underlined:27 voice, 5. Colombian theory developed by the Constitutional Court of Colombia, in which responsiveness, capability and compliance. Voice relates a right can be seen to be fundamental if linked to a fundamental right and to human dignity. to the ability of poor and marginalized people to voice their 6. The vital minimum is a German doctrine that seeks to ensure minimum conditions of living to dignify the existence of the poor. The doctrine of the vital minimum has also been developed by the Constitutional Court of Colombia 25. TAC, 2002 5 SA 721 CC para 38. in rulings T 426/92 and T-011/1998, T-384/1998 and T-100 /1999 SU-225/1994 among others. 26. Thus, in General Comment n° 3 (1990) Article 3; Article 7, para (a)(i); Article 8; Article 10, para 3; Article 13, para 2 (a), para 3 and para 4; and Article 15, para 3 are cited, by 7. The basic structure doctrine is an Indian doctrine by which the Constitution way of example. cannot be amended altering its general framework and basic structure. See His Holiness Kesavananda Bharati Sripadgalvaru v State of Kerala, also known as the 27. See this proposal from Siri Gloppen in Courts and Social Transformation: an analytical Kesavananda Bharati Case AIR (SC) 1973, 1461. framework, in Roberto Gargarella, Pilar Domingo and Theunis Roux, editors: Courts and Social Transformation in New Democracies. An Institutional Voice for the Poor?. Aldershot/Burlington: Ashgate, 2006, pp. 35-59. 30 Chapter II Empowering the Poor Through Human Rights Litigation life, generating integration and parity. Legal adjudication [Judicial enforcement of positive obligations] breaks the cycle of misrecognition, and thus of subordination, and institutionalizes transformative strategies to remedy affairs,8 Directive Principles of State Policy and Fundamental their human condition to establish a life with dignity. Duties (DPSP),9 and the ‘clause for the eradication of the present injustice’10, among others. Justiciability provides standards to redistribute social goods such as non-discrimination, equality, access to rights and Making ESC rights justiciable for the poor would therefore resources, as well as minimum standards of legal protection. incite the following positive consequences: Justiciability therefore becomes a tool of transformation and (1) Increase visibility, (2) Give voice to right-holders, empowerment by altering structured inequalities in society (3) Increase the accountability of duty bearers, (4) Provide protection, remedies or reparations for alleged violations, and empowering social relations. Justiciability balances (5) Develop a means of compensation and redress, (6) Create socio-economic patterns by combating cultural, social, sexual the basis for a short, medium or long-term policy, and and racial discrimination. (7) Transform or adjust legal frameworks. 24] We are today facing what is called ‘transformative 8. A procedure which incites authorities to correct inequalities, facilitate constitutionalism’,29 also known as a ‘long-term project of the inclusion and participation of the most vulnerable groups as well as a progressive obligation to develop material conditions for the most vulnerable constitutional enactment, interpretation and enforcement groups. committed to transforming a country’s political and social 9. Directive Principles are not justiciable per se, but justiciable by interpretation of a judge, when connected to the right to life and personal liberty. See op.cit. 6. institutions and power relationships in a democratic, 10. A procedure which incites the authorities to take concrete steps and actions participatory and egalitarian direction’.30 This transformative aimed at eradicating the situation of injustice of determined vulnerable groups of society. This clause has been used in Colombia for the protection of approach urges courts to develop a legal basis for open displaced persons for example. This clause demands the active participation of all national authorities in order to stop de violation of the rights of minorities dialogue, recognition of the other and inclusion, and to and marginalized populations as well as the respect of equality and human dignity. transform needs into rights. 25] By providing affirmative action of redress, affirmation and transformation of reality, justiciability develops new standards of protection. Examples of redress and 21] On 10 December 2008, the UN General Assembly unanimously transformation provided by justiciability can be found adopted an Optional Protocol (OP) to the ICESCR.28 The worldwide and have demonstrated how justiciability provides OP will have important implications for the justiciability of relief to the poor and transforms realities of discrimination ESC rights, securing redress for individual victims as well as and marginalization. The following non-exhaustive section developing jurisprudence and public policies, since it provides presents examples of such adjudication. the Committee with the competence to receive and consider communications related to violations of ESC rights. a. Justiciability providing relief to people and setting the basis for non-discrimination and recognition 4. Correlations between 26] Five founding cases in the mid-1950s in the United justiciability and social justice: States of America marked a change in the way the judiciary towards a transformative guarantees equal protection by the law and their role in constitutionalism advancing social justice. The case Brown et al v. Board of Education of Topeka et al in 1954 (referred to as the Brown case), which consolidated opinion of five more cases,31 22] The debate as to whether justiciability and social justice established a new understanding of the power of law by come together or not is a false dichotomy. Social justice declaring segregation at school based on racial arguments naturally leads to a tension between rights and standards. The rights provide the basis for inclusion, recognition and 29. The new paradigm of transformative constitutionalism and its correlation to social justice finds its basis in the theory of Nancy Fraser. In her work, Fraser has developed participation in society, while the standards are to be seen two main principles or strategies for remedying injustice: the affirmation of the other and transformation. She affirms that ‘affirmative strategies for redressing injustice as tools and ways to realize, defend, promote and express aim to correct inequitable outcomes of social arrangements without disturbing the underlying social structures that generate them. Transformative strategies, in contrast, them. Justiciability is the voice of both since it provides legal aim to correct unjust outcomes precisely by restructuring the underlying generative framework’. In this sense, her theory embraces both a distributive conception and a recognition and development of standards for redress. recognition approach as a foundational basis for social justice, in N. Fraser and A. Honneth, Redistribution or Recognition? A Political-Philosophical Exchange, 2003, p. 74. In her later work, Fraser adds a third dimension related to justice: the political dimension underlying distribution and recognition are political since they are usually 23] Therefore, recognizing the rights of the most vulnerable seen as requiring adjudication by the state, in Scales of Justice: remaining political space in a globalizing world, 2008, pp. 16–17. gives them the possibility to interact and participate in social 30. K. Klare, Legal culture and transformative constitutionalism (1998) 10 27 SAJHR 146. 31. Belton (Bulah) v. Gebhart (Delaware), Bolling v. Sharpe [District of Columbia], Brown v. Board of Education (Kansas), Davis v. County School Board (Virginia), and Briggs v. Elliott 28. GA resolution A/RES/63/117. (South Carolina). 31 Empowering the Poor Through Human Rights Litigation Chapter II unconstitutional. Its interpretation of the Fourteenth rooted in our education system is not a quick or easy task and Amendment went beyond a formal reading and guaranteed […] remains a complex challenge’, the Court studied whether equal protection of laws, placing all (blacks, whites, the differentiation constituted unfair discrimination against minorities) on an equal footing. By defining legal standards the appellants since they were assistants from a special against racial segregation, the Brown case can be considered school for disabled children. The Court ruled that the process as the founding decision of the role of the judiciary in of transformation shall be carried out in accordance with the developing equal standards for protection and creating the provisions of the Constitution and its Bill of Rights and added legal arguments for social justice and transformation. that the transformation process will necessarily weigh more heavily on some members of the community than on others. 27] The judiciary in the Brown case stated that ‘where the State has undertaken to provide an opportunity for an 30] In the case Socio-Economic Rights and Accountability education in its public schools such an opportunity is a right Project (SERAP) v. Nigeria,37 the Court of the Economic which must be made available to all on equal terms’.32 The Community of West African States (ECOWAS) adjudicated a Brown case overturned the jurisprudence of an earlier case, claim based on the right to education, even if such a right Plessy v. Ferguson,33 which was founded on the ‘separate but was arguably non-justiciable in domestic constitutional law equal’ doctrine. The judges revised the precedent established in Nigeria. The ECOWAS Court dismissed the Government’s by the Plessy case and argued that in the field of education contention that education is ‘a mere directive policy of the ‘separate educational facilities are inherently unequal’. government and not a legal entitlement of the citizens’. The ECOWAS Court affirmed that the rights guaranteed by the 28] A similar transformative decision can be found in South African Charter were justiciable before them, and supported Africa, where transformation triggered by court decisions the justiciability of the right to education in this particular has been crucial with regard to racial segregation and case. The SERAP case has permitted NGOs to access the discriminatory policies entrenched since the Apartheid period. ECOWAS Court to seek the enforcement of economic, social In the landmark case Premier, Province of Mpumalanga, and and cultural rights. Another v. Executive Committee, Association of Governing Bodies of State-Aided Schools (referred to as the Premier 31] In Colombia, similar kinds of transformative decisions Case),34 the Constitutional Court studied two important providing recognition to segregated and marginalized issues. The first was the need to eradicate patterns of racial people were decisive in changing the perception of the most discrimination and to address the consequences of past vulnerable members of society. In a decision related to a discrimination which persist in South-African society. The case of deprivation of rights of displaced people, the Court second was the obligation of procedural fairness imposed provided a revolutionary decision ordering the immediate upon the government in a case related to bursaries. After a remedy of the ‘unconstitutional state of affairs’, and ordered profound revision of the need of transformation in educational the public authorities to develop and implement an Action systems,35 the court affirmed that the Constitution dictated Plan with the participation of the displaced people in all the not only the end, which is the establishment of a non-racial, policies and strategies concerning them. The Court further non-sexist democracy, but also regulated the means, including proposed that the recommendations be followed up.38 the obligation to observe procedural fairness. 29] The same argumentation was developed in Bel Porto b. Justiciability providing relief to the most School Governing Body and Others v. Premier, Western Cape vulnerable through the redistribution of goods and another (referred to as the Bel Porto case),36 related to a policy concerning the employment and subsidies to teachers 32] In the case Mariela C. Vicomte v. Ministry of Health and their general assistants. The subsidies were based on an and Social Action39 the Argentinean Court of Appeal ordered unequal educational scheme inherited from the segregation the Argentinean Ministry of Health to organize a massive period. Stating that ‘eradicating the racial discrimination campaign of vaccination for 3.5 million people suffering from fever (positive obligation) and elevated the legal protection of 32. Brown Case, p. 493. the right to health by protecting millions of people, especially 33. Plessy case, 163 US 537. children, which created a massive social justice campaign. 34. Premier, Province of Mpumalanga, and Another v Executive Committee, Association of Governing Bodies of State-Aided Schools. Eastern Transvaal 1999 (2) SA 91 (CC) and 1999 (2) BCLR 151 (CC). 33] In South Africa, in Minister of Health v. Treatment 35. In the Premier case, the South African Constitutional Court explained the roots of the Action Campaign (TAC),40 the Constitutional Court ordered segregation: under the former apartheid government, schools were generally racially divided with separate government schools for African, coloured, Indian and white children. Different ministries were responsible for the administration of these separate schools. In line with government policy, significantly more government funds were 37. Socio-Economic Rights and Accountability Project (SERAP) vs. Federal Republic of Nigeria expended for each white child who attended school than were expended for each and Universal Basic Education Commission, n° ECW/CCJ/APP/0808, 27 October 2009. black pupil. As a result, schools for white children were generally well-equipped with classrooms, sports facilities and qualified teachers. Schools for black children were often 38. Ruling T 025/2004. dilapidated, with poor facilities and under-qualified teachers (paras 7 and 8). 39. Argentinean Court of Appeal, 2 June 1998, Judgment n° 98.096. 36. Bel Porto School Governing Body and Others v. premier, Western Cape and another (hereafter Bel Porto case) 2002 (9) BCLR 891. 40. Minister of Health v Treatment Action Campaign (TAC) (2002) 5 SA 721 (CC). 32 Chapter II Empowering the Poor Through Human Rights Litigation the Government to extend the availability of Nevirapine – an equality concerning a mother’s guardianship of children after anti-retroviral drug for HIV-positive pregnant women that can the death of the father (Ms Githa Hariharan and another v. avert tens of thousands of unnecessary infections and deaths Reserve Bank of India and another with Dr and Vandana – to hospitals and clinics, to provide counsellors, and to take Shiva v. Jayanta Bandhopadhyaya ann another, Air 17 reasonable measures to extend the testing and counselling February 1999, Supreme Court of India 1149). facilities throughout the public health sector. 38] In South Africa, in the landmark case Bhe v. Magistrate 34] The same distributive decisions can be found in the 1998 Khayelitsha & Ors,44 which embraced two other cases (Bhe, Colombian ruling SU-225 of 1998, in which the Court SAHRC and Shibi), the Constitutional Court declared the ordered a free vaccination campaign for poor children that are African customary law rule of primogeniture unconstitutional confronted with a higher risk of contamination of meningitis. and struck down the entire legislative framework regulating The Court ordered the implementation of the Immunization Plan the estates of intestate deceased black South Africans. This decision laid the basis for future decisions.41 Transformative decisions relating to the fair distribution of healthcare services 39] A recent case in France, Siliadin v. France,45 analysed were also given in another case (T-760 of 2008) in which the scope of domestic labour and concluded that ‘domestic the Court ordered a dramatic restructuring of the country’s slavery’ of women still exists in Europe. A 15-year-old health system, and in the ruling C-959 of 2000 through which Togolese women, unlawfully resident in France, was working the Court reviewed the economic legislation related to the every day from 7.30 am to 10.30 pm with no pay and forced calculation of mortgage debtors and tied the unit of constant to sleep in a coach with old clothes. The Committee against acquisitive power (UPAC) to the rate of inflation. This ruling Modern Slavery (Comité contre l’esclavage moderne), alerted transformed housing financial legislation in Colombia. by a neighbour filled the petition. The case was studied by the European Court of Human Rights (ECHR). the Court noted 35] In India, the formative case Azad Rickshaw Pullers that even though the provisions of the French Criminal Code Union (Regd.) Ch. Town Hall, Amritsar v. State of Punjab related to ‘the performance of services without payment’, they & Ors42 led to a transformative solution for the vulnerable did not deal specifically with the rights guaranteed under and discriminated rickshaw pullers by empowering them to Article 4 of the European Convention, and were incompatible purchase their own rickshaw. with human dignity. The Court stressed that such ‘delivery of a child (…), with a view to the exploitation of her labour, was similar to the practice, analogous to slavery, referred to in c. Justiciability transforming the reality of Article 1(d) of the United Nations Supplementary Convention special attention groups of 1956’46 and that the situation had ‘compromised her education and social integration’47. This case is particularly 36] Legal empowerment of women through judicial important, not because it relates to ESC rights, but because adjudication has provided important guidelines for the it provided an example of ‘modern servitude’, vulnerability provision of recognition and adjudication of women’s rights. and a state of dependence: The reasoning of the Court was Adjudication has set up important ladders in breaking prejudice the following: The Siliadin Case denounced such new forms of and discrimination against women. For example, the landmark denigration of human dignity, as ‘modern slavery’ especially case Bi Hawa Mohamed v. Ally Sefu of Tanzania43 made in the case of migrants. important steps with regard to female equality, recognizing housework and childcare as marital contributions, counted by 40] A number of important cases have provided the basis for the spouse as matrimonial assets. This important case legally prohibition of child employment, forced or voluntary, even recognized the economic value of women’s investments in if caused by economic necessity. In the Indian cases M.C. marriages. Mehta v. State of Tamil Nadu and Ors and Bandhua Mukti Morcha v. Union of India,48 the Court highlighted that as a 37] Other related decisions include: equal rights concerning result of poverty, children and youth are subjected to many years for retirement in Indonesia (Nurhatina Hasibuan v. Pt. visible and invisible forms of suffering and disabilities, in Indonesia Toray Synthetics and others n° 651/PDT/1988/ particular, health, intellectual and social degradation and PT.DKI Jakarta High Court); women’s rights to remarry after deprivation, and that this exploitation of their childhood is a divorce in Japan (X1 and X2 v. Government of Japan detrimental to democracy and social stability, unity and the Hiroshima High Court, 28 November 1991); the need for the integrity of the nation. woman’s consent to validate a marriage under Pakistani law (Humaira Mehmood v. The State and others, 1999); and 44. Case Bhe v. Magistrate Khayelitsha & Ors, 2005 (1) BCLR 1 (CC), 15 Oct. 2004. 45. Case Siliadin v. France, Application n° 73316/01, European Court of Human Rights (ECHR), Judgment, Strasbourg, 26 July 2005. 41. For example, ruling T-177 of 1999, ruling T-840 of 1999 and ruling T-772 of 2003, among others. 46. Siliadin v. France, para. 92. 42. [1980] INSC 147 (5 August 1980), India. 47. Siliadin v. France, par. 95. 43. Court of Appeal Case n° 19, Tanzania, 1983. 48. (1996) 6 SCC 756 and 21/02/1997, respectively. 33 Empowering the Poor Through Human Rights Litigation Chapter II 41] The Court recalled that ‘welfare enactments made by social exclusion and discrimination.52 At the national level, the Parliament and the appropriate State Legislatures are five categories of interpretation and implementation of ESC only teasing illusions and a promise of unreality unless rights can be mentioned: they are effectively implemented and make the right to the child driven to labour a reality, meaningful and happy’. It (1) The judicial level in which Courts define the rights and therefore prohibited child labour and asked that educational give effective remedy in the case of alleged violations of programmes, principles and policies for the progressive human rights, developed at length above. elimination of employment of the children below the age (2) The parajudicial level composed of other actors – of 14 years be implemented. Along the same line, the Ombudsmen, public defenders and Human Rights decision International Commission of Jurists v. Portugal Commissions – that are closer to civil society and act as of the European Committee on Social Rights also had a ‘mediators’. They provide useful lobbying and advocacy. strong impact in relation to child labour in Portugal: the (3) The legislative branch, which translates the international Constitution was amended and the government adopted a human rights framework into national standards. plan to eliminate exploitative child labour.49 Legislators create the legal framework within which human rights become a national goal. 42] In the case Sheela Barse And Others v. Union of India (4) The administrative branch which translates legal Others,50 the Supreme Court of India made an order which obligations into policies, programmes and projects. consisted of seeking the cooperation of non-governmental (5) Finally, the fifth category comprises NGOs, National HR organizations to assist in the task of rehabilitating physically Institutions and the academic community. All have a and mentally retarded and abandoned children jammed into crucial role to play in the struggle against local poverty ‘safe custody’ jails. and for the advancement and definition of ESC rights, as a result of their composition, strategic position, lobbying 43] The following chapters will develop these premises. capacities and monitoring. This category constitutes an They will demonstrate that the direct impact and influence ‘open community of interpreters’. of judges’ decisions on social practices is complex and requires the participation of other actors responsible for 46] NGOs’ roles and tasks have increased in today’s world; they implementation and monitoring at the local level. NGOs (and have become leaders in supporting policymakers, advancing other actors, such as the media, for example) can fulfil this advocacy and justiciability, providing a voice to the poor and task and provide alternative solutions for the compliance of acting as think tanks providing real knowledge. Their crucial judges’ orders by developing legal channels in the field and role in giving legitimacy and voice to the grassroots in the fight through the ‘socialization of ESC rights’. against poverty is undeniable. They have founded the roots of a new form of governance from below.53 NGOs have come up with different approaches54 in the struggle against poverty: by focusing on development, the roots causes of poverty, the consequences of poverty, social protection and empowerment, 5. What role for NGOs in they have become part of a multilateral system, which includes advancing justiciability? their work in all strategies, plans and normative actions. 47] As a result, their organizational structures have 44] In today’s globalized world, other actors in society have empowered their presence at political and local levels, a role to play in revising constitutional and international allowing for better impact and visibility, especially in the standards, especially when these relate to ESC rights. We cannot field of combating poverty,55 as for example through the talk about the reinforcement of ESC rights without including establishment of campaigns, meetings, publication of parallel all such actors in the ‘transformative processes’. Indeed, as reports, studies and manuals among other initiatives. demonstrated above, ESC rights ‘imply a commitment to social integration, solidarity and equality and include tackling the issue 48] In fact, if justiciability involves the process of of income distribution which is indispensable for an individual’s adjudication of rights by judges, it also implies the dignity and the free development of their personality’.51 52. See P.J. Nelson and E. Dorsey, New Rights Advocacy: changing strategies of development human rights NGOs, Washington DC, Georgetown University Press, 2008. 45] For this reason, advocacy of ESC rights has become one 53. It is important not to classify types of NGOs (for example, welfare NGOs, development NGOs, empowerment NGOs or social action groups provide by K. Ranjani Murthy and Nitya of the main goals in the fight against poverty, impunity, Rao, Addressing poverty: Indian NGOs and their Capacity. Enhancement in the 1990s (New Delhi: FES, 1997), but rather to identify their structural organization and to understand their potential for empowering the poor. For the role of NGOs in new governance, see for example: J. Plache, Société civile: un acteur historique de la gouvernance, C.L Mayer, Coll. Dossier pour un débat, April, 2007. 49. International Commission of Jurists vs. Portugal, European Committee on Social Rights, September 9, 1999. 54. P. Sparr and C. Moser, International NGOs and Poverty Reduction Strategies: the contribution of an asset-based approach, Global Economy and Development, Working 50. AIR 1986 SC 1773. Paper n° 8, Brooking Institution, Washington DC, 2007, p. 23. 51. J.K. Mapulanda-Hulston, Examining the justiciability of economic, social and cultural 55. A. Kumar, J. Aart Scholte, M. Kaldor, M. Glasius, H. Seckinelgin, H. Anheier, Global Civil rights, International Journal of Human Rights, 4, 2002. Society 2009: poverty and activism, London, Sage, 2009. 34 Chapter II Empowering the Poor Through Human Rights Litigation responsibilities of other actors engaged in the implementation of the Ogoni community. In Canada, in the case Corporation of principles and core elements of such rights. In this sense, of the City of Victoria v. Natalie Adams and others relating the contributions and challenges of NGOs are enormous, to the right to adequate housing, the Centre of Poverty and since NGOs ‘escort’ the justiciability of ESC rights. Their Human Rights made a clear opening statement supporting contributions to the adjudication of ESC rights can be the position of the respondents by quoting the link between enumerated as follows: poverty and human rights and the State’s obligations derived from the right to adequate housing.60 • Capacity to hear, share and interpret the needs of disadvantaged people 51] NGOs’ action for justiciability has also been particularly • Legal representation for collective claims: the possibility important in connection with the development of the to multiply the impact of an individual claim as part of a recently adopted Optional Protocol of the ICESCR. Mentions collective claim and campaigns for justiciability of ESC rights have been • Community mobilization numerous,61 and have pushed forward the significant • Broad membership capacity and responsibility of court adjudication in providing • Accurate and strategic litigation related to ESC rights consistency among human rights and in holding governments • Innovative interpretations of ESC rights accountable.62 • Invaluable advocacy in the field of ESC rights • Provision of exemplary good practices related to ESC Recommendations to NGOs in relation to the rights principles of non-discrimination and equal • Monitoring or follow-up of the decision derived from a protection claim related to human rights and especially ESC rights • Greater funding capacity. 1. Promote (lobby) the necessity for developing concrete legislation preventing discrimination 49] Examples of the participation of NGOs in justiciability are 2. Develop awareness in the field on concrete actions to avoid numerous. In the Argentinian case, Asociación Benghalensis all forms of discrimination y otros c. Ministerio de Salud y Acción Social56 the support 3. Develop regular training programmes and support inclusive of a coalition of NGOs was crucial for the decision related to activities HIV medication in public hospitals. The Supreme Court stated 4. Recognize the right to Prior Consultation as a tool for that the State is obliged to provide the medicine for diagnosis creating inclusive laws to include all the needs of all right and treatment, and the role of NGOs enabled this individual holders claim to be transformed into a collective claim. Another 5. Involve NGOs in adjudication, definition of core elements of example is the intervention of a coalition of NGOs in the ESC rights, and monitoring Treatment Action Campaign case. This provided a massive plan 6. Complement violation approaches with involvement in of action for access to HIV-AIDS treatments, and proved that adjudication and definition strategies. access to accurate information on health while linking this information to rights, can form a basis for the empowerment of marginalized people, who begin to assume both a public voice and visibility.57 In Bandhua Mukti Morcha v. Union of India, NGOs exercised direct advocacy in the abolition of child labour in India. A recent case, the European Federation of National Organizations working with the homeless (FEANTSA) v. France,58 marked an important step in the advancement of the right to housing in France by providing the basis for transforming it into a justiciable right. 50] NGOs also played a crucial role in another case that opposed Nigeria and Social and Economics Rights Action (SERAC) and the Center for Economic and Social Rights (CESR) (Serac and CESR v. Nigeria)59 over the obligations of a healthy environment and the massive violation of the right to shelter 60. Case CA 36551 S.C.B.C. n° 05 4999. The intervention of the Poverty and Human Rights Centre is available at: www.povnet.org/sites/povnet.org/files/PHRC%20Factum%20 Adams.pdf. 56. Argentinian Supreme Court, Asociacion Benghalensis y otros c. Ministerio de Salud y Accion Social, Estado nacional s/amparo, 1 June 2000 or Argentinian Supreme Court, 61. See Fact Sheet n° 3 of the International NGO Coalition of an Optional Protocol to the Asociación de Esclerósis Múltiple de Salta c. Ministerio de Salud, 18 December, 2003. ICESCR ‘the justiciability of economic, social and cultural rights: national, regional and international experiences’, available at: www.icj.org/IMG/pdf/ESCRFactSheets.pdf, 57. However, it would have been suitable to undertake accountability a posteriori since the pp. 6–10. See also Litigating economic, social and cultural rights: legal practitioners TAC case was not implemented following the decision. dossiers, COHRE, 2006, available at: www.cohre.org/store/attachments/COHRE%20 Legal%20Practitioners%20Dossier.pdf. 58. Complaint n° 39/2006, decision of Merits of 5 December, 2007. 62. See, for example, Fact Sheet n° 7, Coalition for an Optional Protocol to the ICESCR, ‘The 59. Communication N 155/96, 13–27 October, 2001. question of justiciability’. 35 Empowering the Poor Through Human Rights Litigation Chapter II Exercises 1) In your opinion, what is the role for judges in advancing human rights? Are they solely responsible for human rights monitoring? Justify. 2) Analyse the legal system of your own country. Does it allow strategic litigation on ESC rights? If not, what procedures aim at protecting human rights and ESC rights in particular? 3) Please provide concrete answers on how NGOs can effectively have a say in fighting against poverty by means of human rights. Give examples from your own experiences. 36 Chapter III: Conceptual clarifications on Chapter III economic, social and cultural rights – 37 – 1. Economic, social and cultural (ESC) rights and civil and political (CP) rights in the struggle against poverty – 38 – 2. State obligations a. Obligation to respect b. Obligation to protect c. Obligation to fulfil – 41 – 3. The duties of non-discrimination and equal protection – 43 – 4. Minimum core approach to ESC rights 5. The progressive realization of ESC rights – 45 – 6. The prohibition of retrogressive measures 7. Maximum available resources clause Chapter III Empowering the Poor Through Human Rights Litigation Chapter III: Conceptual clarifications on economic, social and © Zsolt Zatrok cultural rights The present chapter seeks to clarify the content of ESC rights, the State obligations that derive from their advancement, and their relation to civil and political rights. Since ESC rights and civil and political rights are indivisible and interdependent, they contain both positive and negative obligations. This chapter examines this tripartite division of state obligations and provides an explanation of the meaning and scope of the minimum core content of ESC rights, which provides a platform for anti-poverty strategies and adjudication. It highlights, in particular, the relationship between state obligations derived from ESC rights and the minimum core approach, which provides guidelines to judicial review. Last, this chapter explores the principle of progressive realization of ESC rights as a core element in the fight against poverty. 1. Economic, social and India,2 the Supreme Court of India observed that in order to cultural (ESC) rights and civil eradicate poverty, it is necessary to ensure ‘free’ medical care, education, access to employment, housing, land reforms and and political (CP) rights in free water in order to eliminate inequalities. the struggle against poverty 2] ESC rights are therefore ‘integral components of poverty reduction strategies’, and it is in this sense that the High 1] Increasing the levels of enjoyment and respect of ESC Commissioner of Human Rights has set out the human rights rights empowers the struggle against poverty, since those of particular relevance to poverty: the right to work, adequate rights are directly linked to the right of decent living, thus food, adequate housing, health, education, personal security to human dignity and an individual’s worth. Poverty deprives and privacy, equal access to justice, and political rights and human beings of their basic needs and places them in freedoms. ESC rights address poverty by providing minimum situations of vulnerability. People in poverty have no rights; essential levels of basic services, ensuring the respect of this ‘injustice’ links poverty directly to the concept of dignity: human rights directly linked to human dignity as well as when people are unable to enjoy their basic needs – such minimum core obligations. For this reason, the advancement as food, clothing, medical care, water, adequate housing – of ESC rights is expected to provide a common basis for they are unable to live a decent life or enjoy a level of well- mitigating poverty. being as human beings. It is undeniable that efforts made by governments to attain benchmarks on the development 3] The interdependence and indivisibility of human rights of education, access to water, adequate housing and access has already been defined in Chapter 1. However, it was to adequate food, for example, constitute progressive steps traditionally taken for granted that civil and political rights in the recognition of human rights. But in order to be taken impose negative obligations, whereas economic, social and as effective advancements in fighting poverty, policies need cultural rights impose positive obligations. However, it has to reach the poorest and excluded groups of the society.1 As subsequently been clarified that all human rights include for example, in the Indian Case Indra Sawhney v. Union of negative and positive duties. This clarification has been 1. D.A. Reidy and M.N.S. Sellers (eds) Universal Human Rights: moral order in a divided world, Lanham (Md), Rowman and Littlefield, 2005. 2. 1997 supp (3) SCC 217. 37 Empowering the Poor Through Human Rights Litigation Chapter III provided through guidelines of the Committee on Economic, mindset of the two visions of human rights contained in the Social and Cultural rights in its general comments, as well adoption of two Covenants of 1966.6 as by the Maastricht Guidelines on violations of economic, social and cultural rights. The Committee has thus underlined the need to treat ESC rights and civil and political rights in an equal manner, stating that the adoption of a rigid classification of ESC rights and civil and political rights is 2. StateS obligations7 arbitrary. 9] Examining the nature and extent of States’ obligations 4] Indeed, as all human rights are independent and under international and national human rights standards is interrelated, they apply to all human beings and should essential in order to understand precisely what can and should be treated as equal by all human-rights actors and States. be expected from States.8 The Limburg Principles on the The upcoming Optional Protocol (OP) to the ICESCR also Implementation of the International Covenant on Economic, provides additional arguments for the consideration of ESC Social and Cultural Rights (adopted in 1986) as well as the rights and CP rights on an equal footing. Moreover, as explored Maastricht Guidelines (adopted in 1997), both elaborated in Chapter 2, the justiciability of ESC rights constitutes an by a group of experts on international law, have provided important advancement in the achievement of goals related clarification on the nature and scope of the obligations of to social goods. Simply put, all human rights are justiciable State Parties presented in Article 2 of the ICESCR. and can be claimed. 10] Taking into account these proposals, ESC rights impose 5] Categorizations of ESC rights and civil and political rights two kinds of obligations on States: the obligation of conduct, are thus undermined, as ESC rights are not only justiciable, which demands that States take concrete steps towards the but interrelated and indivisible from civil and political rights. full realization of ESC rights and is applied immediately; and Similarly, the latter have implications for ESC rights, since the ‘obligation of result’, which demands a specific effect and violations of civil and political rights are intrinsically linked is often realized progressively. Within the obligation of result to violations of ESC rights: For example in the case Airey lies a discussion on available resources, which will be covered v. Ireland, the European Court of Human Rights held that later.9 ‘there is no water-tight division between civil and political and economic, social and cultural rights’.3 11] As to the first obligation, steps should be deliberate, concrete and targeted,10 and often related primarily to the 6] In the case Hijirizi et al v. Yugoslavia4 related to the legislative measures desirable for the full implementation of burning of a Roma settlement, the Committee against Torture ESC rights. ESC rights also embrace administrative, financial, found that burning and destruction of houses constitutes, educational and social measures11 that take into account in the circumstances acts of cruel, inhuman or degrading ‘all the appropriate means’, which include judicial remedies, treatment of punishment. Consequently, the failure of the according to General Comment n° 3.12 It is here that courts, state to provide protection to the Roma communities, as well human rights institutions and NGOs play a part, since their as redress and compensation to the victims violated Article actions can propose additional ways and means to assist the 16 of the Convention against Torture. States in meeting their obligations. 7] Following the assumption provided in Chapter I, legal 12] The obligation of result requires the State to achieve empowerment through human rights is a tool that can a specific target, such as the reduction of child labour or assist people to move out of poverty. For this reason, it is maternal mortality. The progressive realization of ESC rights imperative to adopt a unified approach to human rights, since is usually tied to the obligation of result, giving the States the ‘ability to exercise one’s right to food, to housing, clothing medical care and education, through the exercise of a right to 6. Ideological and political circumstances – such as the End of the Cold War – are invoked in order to understand the division into two covenants of civil and political and economic, participation, expression and other civil and political rights, is social and cultural rights. For more details on the drafting history of the two covenants, see M. Sepulveda, ‘The Nature of the Obligations under the International Covenant on vital for individuals if they are to move away from being poor, Economic, Social and Cultural Rights’, Intersentia, 2003 pp. 116–36. and for society to eradicate poverty.’5 7. See P. Alston and G. Quinn, ‘The nature and scope of State Parties: obligations under the International Covenant on Economic, Social and Cultural Rights’, Human Rights Quarterly, 9(2), May 1987, pp. 156–229. See also Sepulveda op.cit, Chapter IV, and A. Eide, C. Krause and A. Rosas (eds) Economic, Social and Cultural Rights as Human Rights: a 8] This important statement on the relation between ESC textbook’, Martinus Nijhoff, Dordrecht, 2001. 8. See The Limburg Principles (1986), especially principles 17 and 18, in UN doc. E/ rights and CP rights and their impact on the fight against CN.4/1987/17, Annex; Human Rights Quarterly, Vol. 9 (1987), pp. 122–35; and Maastricht Guidelines (1998). poverty also constitutes a reaction against the categorization 9. The Committee has already stressed that no specific form of economic and political system is implied in this statement. 3. Case Airey v. Ireland, Application n° 6289/73, 9 October 1979, para. 26. 10. See para. 2 of UN General Comment n° 3 related to the ‘Nature of State Parties Obligations’. 4. ECHR Communication n° 161, 2000. 11. Para. 7 of G.C. n° 3. 5. See S. Skogly’s proposals in: Is there a right not to be poor? Human Rights Law Review, 2(1), 2002, pp. 59–80. 12. Para. 5 of G.C. n° 3. 38 Chapter III Empowering the Poor Through Human Rights Litigation more flexibility to ensure in a reasonable period of time 16] Examples of refraining from interfering with the the enjoyment of the rights. Yet, this requires financial and existing enjoyment of ESC rights can be found in national technical support, in addition to other types of effort, to experiences of adjudication. In South Africa for example in ensure that the State may fulfil its duties. the case Jaftha v. Schoeman and others,15 Van Rooyen v. Stoltz and Other,16 related to a law which permits the sale 13] These levels of obligations have been specified in a in execution of peoples’ homes because they have not paid tripartite typology drawn up by the CESCR: to respect, protect their debts, the court affirmed that the Magistrates’ Courts and fulfil.13 For some rights the obligation to fulfil includes Act 32 of 1944, which deals with the sale in execution of two other duties: the obligation to facilitate and to provide, property in order to satisfy a debt, violates the security of as affirmed, for example, in General Comment n° 12 related tenure, and the obligation to respect the right to have access to the right to food. A fourth categorization of duties, to adequate housing. In the case Asociación Benghalensis the obligation to ‘promote’ aimed at achieving long-term y otros c. Ministerio de Salud y Acción Social,17 related to goals, has also been proposed by academia. The different access to medicine for people with HIV-AIDS, the Supreme categorizations of State duties are therefore interdependent Court of Argentina underlined the obligations of the state to and interrelated. Hereafter, we will follow the tripartite abstain from interfering and to act positively to promote the typology since it has been developed by the Committee. In enjoyment of the rights in such cases. the following chapters, specifications concerning additional categorizations will be applied wherever necessary. 17] Examples from refraining from impairing access to ESC rights have been developed in the case Minister of Health 14] In a nutshell the three obligations can be described as v. Treatment Action Campaign (TAC), in which the courts follows: the obligation to respect requires States to refrain stressed that the State has a positive duty to provide access from interfering with the enjoyment of economic, social to medical assistance. The court ruled that the non-provision and cultural rights. The obligation to protect requires that of Nevirapine available in public health facilities to prevent States prevent violations of such rights by third parties. transmission of HIV from mother to child is unreasonable, and Finally, the obligation to fulfil requires States to take affirmed that State measures ‘failed to address the need of appropriate legislative, administrative, budgetary, judicial mothers and their newborn children who do not have access and other measures towards the full realization of such rights, to the sites’ where nevirapine is available.18 understanding that the international doctrine has already accepted that legislative measures alone are not sufficient.14 18] Similar assumptions were made in the case Khosa & Others v. Minister of Social Development & Others.19 In this case, the Social Assistance Act 59 of 1992 limited the a. Obligation to respect entitlement to social grants for the aged to South African citizens, preventing children of non-South African citizens in 15] The obligation to respect requires that States do the same position as the applicants from claiming any of the not interfere directly or indirectly with the enjoyment childcare grants available to South African children.20 Another of economic or social rights. This obligation is essentially South African case, the Residents of Bon vista Mansions v. negative in nature, meaning that the State must not take any Southern Metropolitan Council Citizens, related to the right action that diminishes the enjoyment of any given economic to access to water developed the same reasoning. The South or social right, unless there are justifications for doing so. African High Court held that disconnecting the service of water The obligation to respect is of immediate effect (e.g., upon supply because of non-payment of charges was a violation of ratification of the ICESCR) and not subject to progressive the obligation to respect the access to water of section 27 of realization. This obligation entails the following components: the Constitution and the Water Services Act. (1) Refraining from interfering with the existing enjoyment 19] Examples of mitigating the impact of interference in of ESC rights the enjoyment of ESC rights include decisions concerning (2) Refraining from impairing access to ESC rights, and (3) Mitigating the impact of interference in the enjoyment of 15. These cases are particularly crucial for protecting the poor. In the Jaftha case, Mrs ESC rights. Jaftha is unemployed woman, with ill health (heart problems and blood pressure), poor and has a low level of education. She has two children and has applied for and was granted a state housing subsidy with which she bought a home. After several payments she stopped paying her debt, and following ahospitalization discovered that her house was to be sold in a sale of execution to pay her outstanding debt. In the second case, Mrs Van Rooyen was also a poor woman, without education, unemployed and with three children. She couldn’t pay her debt. 16. 2005 (1) BCLR 78 (CC). 13. This tripartite typology derives from the proposals of the political philosopher Henry 17. Argentinian Supreme Court, Asociacion Benghalensis y otros c. Ministerio de Salud y Shue in his 1980 work Basic Rights: Subsistence, Affluence and US Foreign Policy. The Accion Social, Estado nacional s/amparo, 06-01-2000. author proposes three basic rights: physical security, subsistence and liberty. He further proposes three type of duties: to avoid depriving people of their rights; to protect them 18. See paras. 67 and 80. against such deprivation by others; and to aid those whose rights have already been deprived. This proposal was later adapted to the tripartite typology to respect, protect 19. 2004(6) BCLR 569 (CC); 4 March 2004. and fulfil. 20. See also the case Mashava v. President of the Republic of South Africa, 2004 12 BCLR 1243 14. See Maastricht Guidelines para. 6. (CC). 39 Empowering the Poor Through Human Rights Litigation Chapter III the obligation to provide alternative housing during or others v. United Kingdom23 related to the failure of social after an eviction. We can refer to the case Modderfontein services in providing ill-treatment, the obligation to protect Squatters v. Modderklip Boerdery LTD21 which illustrates was developed, in particular, to clarify the duty of private the State obligation to protect the right to housing of health services. squatters by providing alternative housing. In the same way, tin the case Serac and CESR v. Nigeria (Ogoni Case),22 the African Commission stated that the killing and destruction c. Obligation to fulfil by government forces and agents of the State-controlled oil company violated Nigeria’s duty to respect the right to life 22] Under the obligation to fulfil, States are obliged to and dignity, the right to health, property, shelter and food, take steps to the maximum of their available resources to and the right to economic, social and cultural development of progressively realize the rights contained in the ICESCR. the Ogoni community. This obligation can be disaggregated into the obligations to facilitate, promote and provide. The obligation to facilitate requires States to take positive measures to assist b. Obligation to protect individuals and communities to enjoy the right in question. The obligation to promote obliges the State to take steps 20] The obligation to protect requires States to prevent third to ensure that there is appropriate education concerning the parties or non-State actors or other States, including inter- right in question. States are also obliged to fulfil (provide) the governmental organizations, from violating the enjoyment right in question when individuals or a group are unable, for of economic and social rights. Third parties or non-State reasons beyond their control, to realize that right themselves actors include individuals, groups, landlords, corporations, by the means at their disposal. The obligation to fulfil entails other States or other entities as well as agents acting under the following components: their authority. The obligation includes, inter alia, adopting the necessary and effective legislative, regulatory and other (1) The duty to take steps to improve the realization of a measures to restrain such third parties and non-State actors right, and from interfering or otherwise violating economic and social (2) The adoption of appropriate and adequate measures to rights; investigating, prosecuting or otherwise holding enhance access. accountable those entities that violated economic and social rights; and providing remedies to victims of such violations. 23] The realization of a right provides the means for its The obligation to respect is of immediate effect (e.g., upon full enjoyment. Yet, the duty to fulfil goes beyond a strict ratification of the ICESCR) and not subject to progressive obligation-related approach and requires holistic and far- realization.The duty to protect entails the following reaching integrative actions that include the existence of law components: reforms, independent national institutions, comprehensive national agendas, allocation of resources, monitoring, (1) The duty to protect the enjoyment of ESC rights against education, awareness-raising, training activities and the third-party interference involvement of civil society. The Committee of the Rights (2) The duty to ensure access to legal remedies in cases of of the Child has contributed to clarifying the content of alleged violation of ESC rights by State and non-State this obligation, stating that the full realization of the actors, and children’s rights necessitates putting in place legislative, (3) The preventive duty to avoid violations of ESC rights. administrative and other measures, including justiciability of rights, comprehensive national strategies, and monitoring 21] There are numerous examples of cases seeking protection and coordination at all levels.24 from third-party interference, in particular, cases implicating private actors such as corporations, companies, employers or 24] As to the appropriateness or adequateness of measures, providers of services that impede the enjoyment of a right. courts play an important role in this difficult task by In the Ogoni case, the State failed in its duty to prevent the evaluating policies and developing justiciable standards in pollution caused by the oil company. The failure of the duty order to advance the promotion and protection of human to protect constitutes a violation of the right to a healthy rights. NGOs, in this context, are indispensible for monitoring environment. In the Indian cases M.C. Mehta v. State of the effective realization of human rights. In the already Tamil Nadu & Ors and Bandhua Mukti Morcha v. Union of mentioned TAC case, the decision from the Constitutional India, the Supreme Court of India protected poor children Court of South Africa led the government to implement from child labour, highlighting the State’s obligation to one of its largest programmes to prevent mother-to-child protect the vulnerable from such abuse. In the case Z and transmission of HIV-AIDS. 23. ECHR 2001. 21. 2004 6 SA 40 (SCA). 24. See General Comment n° 5 of the CRC related to General Measures of Implementation for 22. Communication n° 155/96 October of 2001. the Convention on the Rights of the Child. 40 Chapter III Empowering the Poor Through Human Rights Litigation 25] In the Khosa and Others v. Minister of Social Development Human Rights has defined discrimination as any distinction, case, the South African Court stated that everyone has the exclusion, restriction or preference which is based on any right to have access to social security and concluded that the ground such as race, colour, sex, language, religion, political exclusion of permanent residents from the legislative scheme or other opinion, national or social origin, property, birth or constituted a violation. This judgment has had an effect on other status, and which has the purpose or effect of nullifying the protection of the rights of at least 250,000 people in or impairing the recognition, enjoyment or exercise by all South Africa. The Bolivarian Republic of Venezuela reached persons, on an equal footing, of all rights and freedoms.27 the same decision in the case Cruz Bermudez c. Ministerio de Sanidad y Asistencia Social. The court analysed the 30] This definition has been transposed to regional HR State obligation to provide retro-viral medication to patients systems, such as the African Commission on Human and suffering from HIV-AIDS and held that not providing the drug People’s Rights, which has established in a case related to was a violation of the right to health. an internal provision that provided that anyone who wants to contest the office of president has to prove that both parents 26] Another case reflected the obligation of the government are/were Zambians by birth or descent. The Commission stated to offer medical care for vulnerable persons. In the case that citizens should expect to be treated fairly and justly Free Legal Assistance Group and Another v. Zaire,25 the within the legal system and be assured of equal treatment African Commission affirmed that insufficient medical and before the law and equal enjoyment of the rights available material care of persons detained in a mental health facility to all other citizens. The right to equality is important for a constituted a violation of the right to health. The Commission second reason: equality or lack of it affects the capacity of highlighted that governments should take steps towards the one to enjoy many other rights.28 full realization of the right. In Colombia, the ruling T-025 of 2004 of the Constitutional Court ordered the government to 31] Or to the Inter-American Court in relation to take steps in order to end the irregular situation of thousands discrimination, stating that: there would be no discrimination of internally displaced people using the concept of the in differences in treatment of individuals by a state when ‘unconstitutional state of affairs’ and ordering the correction the classifications selected are based on substantial factual of a situation of exclusion and violation of their rights.26 differences and there exists a reasonable relationship of proportionality between these differences and the aims of 27] All of these obligations have been found to be in one the legal rule under review. These aims may not be unjust or way or another justiciable, and courts and other bodies unreasonable, that is, they may not be arbitrary, capricious, have enforced both the positive and negative aspects of the despotic or in conflict with the essential oneness and dignity different duties. Parallel to these duties, the principles of non- of humankind. discrimination and equal protection forbid any distinction, limitation, exclusion or restriction in the execution of a 32] The principle of non-discrimination reinforces the State’s obligations towards both public authorities and principle of equal protection and is composed of negative private individuals. and positive obligations.29 The negative obligations consist of refusing to create legal distinctions between groups of society or the refusal to adopt norms that profit specific groups. The positive obligations include all steps towards the elimination of any distinction (de iure or de facto) 3. The duties OF non-discrimination between groups (prejudice, conditions).30 Nevertheless, not and equal protection all differences in treatment are in themselves offensive to human dignity or constitute a source of discrimination.31 In this sense, for example, some jurisdictions have stressed the 28] When analysing elements relating to vulnerability, principle of equality as a reflection of ‘treating equals equally principles of non-discrimination and equal protection lie and unequals unequally’. 32 at the core of processes of power distribution, authority, capability and action responsiveness within society. The principles of non-discrimination and equal protection are 27. UN, Human Rights Council (former UN HR Committee), General Comment n° 18, Non- duties of ‘immediate effect’ and constitute core elements in discrimination, 10/11/89, CCPR/C/37, para. 7. 28. African Commission of Human and Peoples’ Rights, Communication No: 211/98 – Legal the realization of human rights. Resources Foundation v. Zambia, para.63. 29. See General Comment n° 20 regarding non-discrimination in economic, social and cultural rights (Article 2, para. 2). 29] Several instruments and treaty bodies mention the 30. See the Inter-American Court of Human Rights, Advisory Opinion OC-18/03 of 17 principle of non-discrimination. The UN Committee on September 2003, requested by the United Mexican States related to the ‘Juridical Condition and Rights of the Undocumented Migrants’. 31. See European Court of Human Rights, Belgium v. Belgium ‘relating to certain aspects of the laws on the use of languages in education in Belgium’, Judgment of 23 July 1968, 25. (2000) AHRLR 74 (ACHPR 1995). Series A 1968, para. 10. 26. See Chapter 2, box on ‘Judicial enforcement of positive obligations’ and para 32. 32. Thlimmenos c. Grèce [GC], n° 34369/97, CEDH 2000-IV, § 44. 41 Empowering the Poor Through Human Rights Litigation Chapter III 33] In order to clarify the matter it is important to examine v. British Columbia Attorney General, the court held that the different grounds when talking about discrimination, and not providing sign language interpretation in the case combine such analysis with realization of ESC rights. This of medical services for deaf people in the State of British combination will help ascertain whether a discriminatory Columbia, which costs only 0.0025% of the provincial budget, practice exists either de iure or de facto. Several examples constituted a violation of the right to health. of case law provide clarification on this matter. For example discriminatory actions in the field of education were studied 37] In relation to vulnerable groups such as children with in the case Oliver L. Brown et al v. the Board of Education of disabilities (children with autism), the European Committee Topeka (KS) et al33 , the Supreme Court of the United States of Social Rights, in the case International Association Autism declared that the discriminatory nature of racial segregation Europe v. France37 found that the proportion of children ‘violates the 14th amendment to the US Constitution, which with autism being educated in schools in France (special or guarantees all citizens equal protection of the laws’. This general schools) was lower than that of other children, and case established the foundation for decisive future national that it would take 100 years to erase the deficit in the official and international policies regarding human rights and non- waiting list of children in need. The Committee ruled that discriminatory policies, as well as the social and ideological the government was permitted some flexibility but realization implications of legal practice. of social rights must occur within a “reasonable time, with measurable progress and to an extent consistent with the 34] Other examples include discriminatory policies in the maximum available resources”. But concluded that the workplace against women, as in the case Ylimaz Dogman Government’s overall lack of progress in this area constituted v. the Netherlands.34 The Committee on the Elimination a violation of the Charter on the right to education of of Racial Discrimination indicated that the State should children, of persons with disabilities, and of Youth, as well as punish discrimination, particularly against women, in private the right of all persons to non discrimination. workplaces. Or discriminatory practices in relation to the right of people to access public places as in the case Miroslav Lacko v. Slovakia related to the denial of the owner of a Right to prior consultation restaurant to let Roma people to access.35 The right to prior consultation was recognized in ILO Convention 169 on Indigenous and Tribal Peoples. It has significant 35] An important advance has been made in relation implications for Latin American countries because of their to sexual orientation grounds as a result of civil society multicultural and ethnic character. The Convention states that Governments must consult these peoples through appropriate advocacy. The adopted General Comment n° 2036 of the UN procedures and representative institutions when applying the Committee on Economic, Social and Cultural Rights included Convention’s provisions, and ensure their participation in the sexual orientation and gender identity as grounds for non- process of development. In order to achieve this, they must discrimination, stating that states should ensure that a consult the community in order to ensure that indigenous and tribal peoples have the right to decide their own priorities. person’s sexual orientation is not a barrier to realizing The consultation should be undertaken ‘in good faith and in Covenant rights, for example, in accessing survivor’s pension a form appropriate to the circumstances, with the objective rights,’ and that ‘persons who are transgender, transsexual or of achieving agreement or consent to the proposed measures’. intersex often face serious human rights violations, such as This principle has been exported to national legal frameworks harassment in schools or in the work place or others’. and integrated into judicial review strategies to fight discrimination and exclusion. The Constitutional Court of 36] In addition to these examples, certain courts have Colombia has widely developed prior consultation as a principle of integration in its rulings T-131 of 2006 and C-030 of examined the financial implications of a special measure for 2008, particularly in relation to minority groups. targeted groups on the basis of the non-discrimination clause. In the case Egan v. Canada, the court found that excluding a group from benefitting from the spousal allowance of the Old Age Security Act on the basis of sexual orientation was 38] The principle of equal protection has been related to not necessarily a violation of the non-discrimination clause reasonability in South Africa. Indeed, section 9(1) of the of Section 15 of the Canadian Charter. The court held that South African Constitution provides that: ‘Everyone is equal the financial implications, in this case, relating to extension before the law and has the right to equal protection and of the benefits, could not serve as an argument to justify benefit of the law’. In Prinsloo v. Van der Linde and Another,38 the existence of a violation. Conversely, in the case Eldridge the Constitutional Court defined the standard for testing the validity of differentiation, in terms of section 9(1), as that of 33. Case of 1954. Within this case, the Supreme Court of the United States combined five rationality, and stated that the State is expected to act in a cases under the case of Brown. See also the case Roberts v. City of Boston in 1849. rational manner when presented with forms of differentiation 34. Communication 1/1984 (29 September 1988). See also F. H. Zwaan-de Vries v. The Netherland, Communication n° 182/1984, U.N. Document CCPR/C/29/D/182/1984 of 9 April 1987. 35. CERD/C/59/D/11/1998. 37. International Association Autism Europe v. France, Complaint n° 13/2002. 36. Adopted 25 May 2009. 38. [1997] ZACC 5; 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC). 42 Chapter III Empowering the Poor Through Human Rights Litigation in order to avoid any arbitrary action or manifest ‘naked the core content of ESC rights is not the same as the minimum preferences’ that serve no legitimate governmental purpose. State obligations. While minimum core obligations are related The court stated that the purpose of equality is to ensure to the State party and to their compliance with international that the State is bound to function in a rational manner. The obligations framework, the minimum core content is related same kind of approach has been developed in Canada through to the substance of the right.45 the developments of section 15 of the Canadian Charter39 and throughout cases presented to the Canadian Supreme Court.40 43] The theory of the minimum core content validates the definition of poverty as a human right. Since the core elements 39] In addition to the obligation to take steps to advance of a human right are intimately linked to human dignity, and the realization of non-discrimination and equal protection, poverty ‘hits’ the substance of the right, a violation of the the CESCR has affirmed that the obligation of compliance with core content of an ESC right would also provoke, in certain minimum core obligations is also considered as an obligation cases, an effect on poverty and poverty will also at the same of immediate effect.41 time provoke a violation of human rights. 4. The minimum core approach to 5. The progressive realization ESC rights of ESC rights 40] The UN and the CESCR, in particular, developed the 44] ESC rights entail aspects that should be progressively minimum core approach to clarify the obligations that derive developed towards full realization. Indeed, progressivity leads from ESC rights. The minimum core approach is attached to to an open-ended process which includes the concretization the ‘minimum essential levels’ of such rights and describes of different steps of advancement of the right. Progressive a situation of well-being: a platform that means freedom realization of ESC rights is the cornerstone concept of ICESCR. from threats.42 The obligations to protect, fulfil and promote Furthermore, the progressive realization of ESC rights is are pertinent to defining the content of the rights. Once a useful tool to measure and follow up the progress made this content has been defined it is possible to establish in advancement of the rights. It is a planning tool for the the minimum content, which will embody the obligations development of policy and programme components to combat imposed on the State. This relationship between content and poverty. For example, this has been clearly demonstrated in obligation is one of the main focuses of this manual. the initiatives related to the advancement of the right to adequate food. The FAO in this sense, has developed this 41] The Committee has developed the principle of ‘minimum approach and affirmed that: ‘the non-realization of human core content’, stating that this constitutes a minimum rights is not only a frequent result of poverty but also one of standard to be fulfilled by States,43 no matter the situation its major causes, which means that working to realize these of conflict, emergency or disaster. It should be effectuated rights is vital for combating poverty.46 even in cases of financial constraints, particularly in order to protect the most vulnerable groups of society.44 Without this 45] Article 2, para 1 of the Covenant of ESC rights recognizes minimum, a right loses its raison d’être. the gradual achievement of the implementation of ESC rights by States, stating that each State party to the present 42] The Committee has begun defining the core obligations covenant undertakes to take steps, individually and through of rights, for example, in the case of the right to the highest international assistance and cooperation, especially economic attainable standard of health (developed further in the and technical, to maximum of its available resources, with specific chapter of this manual). It is important to clarify that a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate 39. Section 15 states that: ‘(1) Every individual is equal before and under the law and means, including particularly the adoption of legislative has the right to equal protection and benefit of the law without discrimination and, measures. in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.’ Paragraph 2 adds that ‘subsection 1 does not preclude any law, programme or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups.’ 40. Law v. Canada, Minister of Employment and Inmigration 1999 1 S.C.R. 497; Grosselin v. Quebec (Attorney General) case, (2002) 4 S.C.R 429. Andrews v. Laws Society of British Columbia 1989 1 S.C.R.; R v. Keegstra 1990 3 S.C.R 697; and New Brunswick v. G (J)1999 3 S.C.R. 41. See Committee on Economic, Social and Cultural Rights, Report on the twenty-fifth, twenty-sixth and twenty-seventh sessions, UN Doc E/2002/22, para. 17. 45. For further reading: A. Chapman, The status of efforts to monitor economic, social and cultural rights, in S. Hertel and L. Minkler (eds) Economic Rights: conceptual measurement 42. See Anderseen, quoted by Bilchitz p. 188, ref. 27. and policy issues, Cambridge University Press, 2006, p. 154; A. Chapman and S. Russell (eds) Core Obligations: building a framework for economic, social and cultural rights, 43. General Comment n° 3, para. 10. Antwerp/Oxford/New York, Intersentia, 2002. 44. Ibid, paras 11 and 12. 46. FAO, ‘the right to food in practice: implementation at the national level’, Rome, 2006, p. 3. 43 Empowering the Poor Through Human Rights Litigation Chapter III 46] From analysis of Article 2 the following elements can be Proposals include evaluation of: derived: • Human rights monitoring (measures which permit (1) Progressivity is linked to the effective enjoyment of policymakers and other actors to monitor the progressive the right. Progressivity thus requires the inclusion of realization of the rights); all members of society which should enjoy the right. • Adjudication: measuring ESC rights through analysis Nevertheless, progressivity is not achieved by adding of case law that implements rights and advances numbers of persons to the realization but by integrating interpretation of their content at the national level; people in its realization. • Assuring non-discrimination, and (2) Progressive realization requires time and efforts to move • Fixing accountability: statistics and tools to measure as expeditiously and effectively as possible towards implementation.48 full realization of the right. The State should aim to implement policies, programmes, plans and resources in 49] Others proposals include analysing the implication of order to achieve full realization. Measures should be thus Article 2 of the ICESCR for monitoring and accountability deliberate, concrete and targeted. in relation to the progressive realization of ESC rights, and (3) Progressive realization implies the necessity of mention the following tools of measurement: monitoring to measure achievements, and detect failures, gaps or retrogression. NGOs have a crucial role to play in • The core obligation approach identifying practices, covering lacks in State protection, • The violation approach49 gathering data, and providing first-hand relief, especially • Budget analysis, and for marginalized and vulnerable groups. • The role of indicators and benchmarks.50 (4) Progressive realization also means strengthening cooperation. In its General Comment n° 3, the Committee 50] NGOs have fully developed the violation approach. drew attention to the obligation of all States parties Nevertheless, their active participation in providing other to take steps, individually and through international kinds of knowledge should be supported to ensure their active assistance and cooperation – especially economic and participation in developing coordination of the advancement technical – towards the full realization of the rights of ESC rights. NGOs provide useful developments and crucial recognized in the Covenant. For example, the Voluntary know-how. Their work, knowledge and actions constitute a Guidelines published in 2004 by the Food and Agriculture useful resource for clarifying and monitoring the progressive Organization of the United Nations (FAO)47 provided an realization of ESC rights. additional instrument to combat hunger and poverty, focusing on the progressive realization of the right 51] Today, interpretations of the progressive relation of rights to food. In order to accelerate the attainment of the are developed by courts, thus placing pressure on States to MDGs, the Voluntary Guidelines represent an attempt by act with a view to the full realization of those rights. In the governments to interpret the right to food and include landmark case Bhe v. Magistrate Khayelitsha & Ors.,51 which recommendations for actions to be undertaken in order includes a total of three others cases (Bhe, SAHRC, Shibi) to accelerate its realization. related to discriminatory legislation in South Africa, based on race, gender and origin, the South African Court struck down 47] It is important to underline that scarcity of resources the legislative framework of regulation of intestate deceased does not excuse a State from undertaking steps towards estates of black South Africans. Progressive realization of the the full realization of a right. The minimum core of a right, right constituted in this case a challenge since it entailed the the non-discrimination and equal protection principles and building of an entire legal framework of protection. non-retrogressive measures are excluded from the notion of available resources. They should be guaranteed with no 52] The Grootboom case provides another clear example of limitation. The government should be able to demonstrate the challenge of the concept of progressive realization. Taking that it has effectively used the available resources in a into account the 2.2 million homeless in South Africa, the manner that best realizes these rights. States will be therefore South African Constitutional Court stated in this regard that be monitored in relation to the progress made. 48. See the author of this proposal, C. Apodaca, Measuring the progressive relation of economic and social rights, in S. Hertel and L. Minkler (eds) Economic Rights: conceptual, measurement and policy issues, Cambridge University Press, 2007, pp. 169–70. 48] But how to measure progressive realization of the right? 49. The violation approach is critized by A. Chapman in: A violation approach for monitoring It is a difficult task to measure the progressive realization of the International Covenant of Economic, Social and Cultural Rights, Human Rights Quarterly, 18(3) pp. 23–66; and A. Chapman and S. Russell (eds) Core Obligations: a right. Some proposals have emerged relating monitoring building a framework for economic, social and cultural rights, Antwerp/Oxford/New York, Intersentia; M. Sepulveda, The Nature of the Obligations under the International Covenant of progressive realization to the obligations derived from on Economic, Social and Cultural Rights, Antwerp/Belgium, Intersentia, 2003, Alston 2005, who propose a obligation approach instead a violation approach. Article 2 of the Covenant. 50. Proposal of A. Chapman, The status of the efforts to monitor economic, social and cultural rights, in Economic Rights: conceptual, measurement and policy issues, op cit, pp. 151–64. 47. Adopted by the 127th session of the FAO Council in November, 2004. 51. 2005 (1) BCLR 1 (CC), 15 October 2004. 44 Chapter III Empowering the Poor Through Human Rights Litigation the right to housing could not be realized immediately for 56] In cases where a policy or measure would reduce the everyone, and noted that housing should be available not only enjoyment of the right, this will not instantaneously generate for a larger number of people but to a wider range of people.52 a violation of the right and constitute a retrogressive measure. After clarifying the meaning of progressive realization, the States must have acted with intention, deliberately and with court declared a violation of the right to adequate housing. negligence. At the domestic level, for example, courts have But the court did not define a precise time period to implement established that decisions adopted by domestic bodies that a policy to redress the situation of the homeless. This led to could affect human rights should be duly justified. Otherwise, a period of transition, prolonging the violation. In addition, these would constitute arbitrary decisions.55 In relation to the subsequent actions to ensure progressive realization of the right to work, for example, in a case related to a pregnant the right included only the Grootboom community, and not worker woman subject to rotation, the Bolivian Supreme the wider homeless community. Tribunal stated that the rotation of a worker is a valid measure, but not diminishing his or her salary.56 The Bolivian tribunal 53] Finally, the TAC case reveals the consequences of stated that the retrogressive measure in this particular case progressive realization of rights in a case related to restricted offered ‘inadequate’ conditions for the nasciturus. access – only by research and training sites – to the drug ‘Nevirapine’, which would prevent HIV/AIDS mother to child transmission at birth. The, Because of the more than 5 million persons attained by in South Africa, the TAC decision was crucial. The court concluded that the government programme 7. Maximum available was unreasonable and requested the modification of the entire resources clause policy, extension of access to the medicine, and the wide- scale enlargement of the testing and counselling facilities to institutions and hospitals. The court ordered the government 57] Due to the pervasive assumption that economic, social to implement these actions and fulfil its obligations without and cultural rights require the direct provision of resources delay. by the State (progressiveness), the Covenant included a clause entitled the maximum available resources clause in 54] However, progressive realization raises the question of the the same Article 2, para. 1. ESC rights depend in some cases extent of the efforts and standards that should be undertaken on the provision of services and goods by states. However, by the State.53 A violation of the right would still exist where this clause provokes debate since it does not specified how the State does not take the necessary and effective measures much the word maximum demands, nor does it say what the in order to advance towards the full realization of the right. word available means. Thus, determining the availability of resources can become a complicated task for governments since it demands political willingness, but also coherence and budgeting. 6. The prohibition of 58] Nevertheless, courts have assessed the positive measures retrogressive measures and ordered governments and other public institutions to take concrete steps and to allocate resources towards fulfilling those rights. In Latin America, for example, Constitutional 55] This obligation derives from the above-mentioned. The Courts have defined the minimum requirements of benefit State is not allowed to adopt any measures that will reduce the programmes, delineated steps, and ordered allocations in already attained enjoyment level of the right. Nevertheless, their jurisprudence. this is a presumption that includes certain exemptions. When the State introduces retrogressive measures, it is 59] But courts and tribunals encounter limitations on invited to explain that those measures were adopted after fostering justiciability since they do not necessarily possess examination of the wide range of possibilities, and that no the expertise required for developing justiciability of ESC other alternatives were available or applicable in the context rights. Courts still have a responsibility to uphold and protect of the full utilization of the maximum available resources.54 fundamental rights, but need the collaboration of competent actors placed closer to the field. 60] The tension between the availability of resources and the 52. See Grootboom case op cit, para 45. realization of minimum core content of rights can be resolved 53. In relation to the progressive realization of rights and the correlative obligation of States in the Grootboom and TAC cases see, for example, M. Stuart, ‘Left out in the cold?’ Crafting Constitutional Remedies for the poorest of the poor, SAJHR, 21, 2005, pp. 55. Cf. Palamara Iribarne case, supra note 72, para. 216 and YATAMA case, supra note 86, 215–40; See also M. Heywood, Preventing mother-to-child HIV transmission in South para. 152. Also, cf. García Ruiz v. Spain [GC], n° 30544/96, § 26, ECHR 1999-I; and Eur. Africa: background, strategies and outcomes of the Treatment Action Campaign case Court H.R., Case of H. v. Belgium, Judgment of 30 November 1987, Series A n° 127-B, against the Minister of Health, 2003, 19 SAJHR 278 at 300. para. 53. 54. General Comment n° 3, para. 9. 56. Constitutional Tribunal of Bolivia ruling 310/2000-R, 6 April 2000. 45 Empowering the Poor Through Human Rights Litigation Chapter III by viewing progressive realization as an open-ended process that the right to health facilities and access to goods and that will require continuous efforts. The European system services shall be guaranteed to all without discrimination of provides examples on how intentional goals become minimum any kind.60 obligations for progressive implementation.57 In the above- mentioned case, International Association Autism Europe v. 63] The Soobramoney case61 in South Africa forms the basis of France, the European Committee of Social Rights found that a discussion on the meaning of this obligation. The case centred financial restrictions do not free the State from its obligations around an unemployed man suffering from heart and vascular related to human rights. diseases and chronic renal failure. Mr. Soobramoney asked the government to order to the hospital to provide him with dialysis 61] The African Charter does not elaborate at length on the treatment. However, the court dismissed the plaintiff’s appeal available resources clause and the progressive realization citing lack of availability of resources. It further stated that of rights in relation to ESC rights. Nevertheless, certain a favourable decision would generate a collapse of the health cases support the necessity of rendering the African Charter system, and that due to the limited resources the hospital had effective, and seem to impose obligations.58 adopted a policy of admitting only those patients who could be cured within a short period of time. 62] Nevertheless, in the case Purohit and Moore v. Gambia,59 related to a Gambian legislative regime for mental 64] The Colombian Constitutional Court (CC) developed the health patients, the African Commission analysed the right protection of ESC rights, such as the right to health, through to enjoy the best attainable state of physical and mental the tutela,62 by integrating previously excluded medical health in relation to disabled persons, and stated that one services or special medication into health plans.63 The costs cannot turn a blind eye to the scarcity of resources in Africa of healthcare services, however, have vastly increased, and when defining and advancing ESC rights. The Commission, although the Colombian CC still protects ESC rights, some deeply aware of the poverty situation in African countries, have criticized the scarcity of resources resulting from these expressed its concerns about the feasibility of dispensing expenses, noting that they go beyond the maximum available healthcare and read into the right to health the qualification resources. of available resources. The Commission asked the country of 60. See also the case Autism Europe v. France, 4 November 2002, related to the implementation Gambia to replace the legislative health regime and urged by France of statutory instruments concerning provision of education to persons with disabilities. The European Committee of Social Rights stated that State Parties must the authorities to provide adequate medical and material care take measures to advance the right even when its implementation is complex, and that States shall do so ‘within a reasonable time with measurable progress and to an extent for persons suffering from mental health problems, stating consistent with the maximum use of available resources’. The case represents the first collective complaint relating to the right to health facilities in Europe. See also the Soobramoney, TAC and the Khosa cases, among others. 57. See J. Donnelly, The West and economic rights, in S. Hertel and L. Minkler (eds) Economic 61. Soobramoney v. Minister of Health Province of Kwazulu-Natal 1998 (1) SA 765 (CC) Rights: conceptual, measurement and policy issues, Cambridge University Press, 2007, pp. (hereinafter Soobramoney case). 50–51. 62. Writ of protection of fundamental rights, presented to any Colombian judge, who will 58. For example, Free legal Assistance Group and Others v. Zaire, SERAC case, among decide the urgent matter of the plaintiff within a maximum of ten days (see Chapter 2). others. 63. For example, providing special attention for people with HIV-AIDS in ruling T-328 de 59. AHRLR 96 ACHPR (2003). 1998, and for people with cancer in ruling T-283 de 1998, among others. Exercises 1) Explain this affirmation: the duty of “progressive realization is a mixture”. 2) Analyse the Purohit and Moore v. Gambia and the Soobramoney cases. What elements can be extracted in relation to the role of judges? What can be said about the “marge of appreciation” of the judiciary? 3) What are the legal, economic, and political consequences of the maximum available resources clause? Justify your arguments on the basis of the case Minister of Health v. Treatment Action Campaign (TAC). 46 Education The right to education – 47 – 1. Definition of the right to education – 48 – 2. Normative content of the right to education a. The 4A System b. Progressive realization of the right to education c. Non-discrimination and equal protection Education without discrimination on grounds of race Education and nationality Education without discrimination based on gender Education of minorities Children with disabilities Education in conflict situation Education for people in poverty Equality of opportunity – 53 – 3. Human rights approach to ‘Education for All’ – 54 – 4. Human rights education – 56 – 5. Strategies for justiciability Chapter IV Empowering the Poor Through Human Rights Litigation © UNESCO/Petterik Wiggers The right to education Despite international recognition of the right to education, a number of different legal regimes still define education as a service. In this chapter, education is defined and conceptually analyzed as a right. Today, the right to education is one of the most developed and well-defined ESC rights. As a human right in itself and indispensable for the exercise of other human rights, the right to education has close linkage with the right to development, and is a powerful tool in poverty reduction strategies. However, in spite of its level of recognition, this right is still denied to some 75 million children of primary school age, 55% of whom are girls.* Millions of people around the world are still illiterate and exposed to poverty. The UNESCO Education For ALL (EFA) Global Monitoring Report 2010: Reaching the Marginalized locates education in the front line of the fight to combat inequality. Education is thus a precondition for the advancement of social justice, as those left behind face the prospect of diminished life opportunities in a variety of spheres, including employment, health and participation in political processes that affect them. The Education for All strategy on inclusive education is crucial to the fight against marginalization and exclusion of the most vulnerable. The avoidance of all forms of exploitation and forced labour of children, in particular, is of crucial importance. The right to education is an integral part of UNESCO’s mission, and central to EFA process. The Constitution of UNESCO expresses the belief of its founders in ‘full and equal opportunities for education for all’. The Organization actively supports the view that a rights-based approach to the development of education is a prerequisite for realizing EFA. 1. Definition of the right to Education covers spiritual, cultural and intellectual learning processes. education 3] Education is therefore both a civil and political right, and 1] Education increases the number of possible ways of an economic, social and cultural right. Indeed, education escaping poverty. Defining education in terms of rights as a civil and political right requires governments to allow enables a right-holder to know about his or her entitlements, the establishment of schools respecting freedom of and in and thus provides the capacity to claim for a violation of the education. Education as a social and economic right requires right in situations of misrecognition or disrespect. governments to ensure that free and compulsory education is available to all school-age children. Education as a cultural 2] Education is described as an ‘overarching right’ because right proclaims the respect of cultural diversity with regard to its enjoyment empowers other human rights. It comprises not the inclusion of minorities, their languages and an education only formal schooling, but also all learning processes provided in accordance with their customs and values. It is an by life experiences that enable a person to develop their obligation of Governments to promote the right to education skills, including capacities, talents, abilities and personality. which is universal and does not admit any exclusion or discrimination. It needs to be upheld more vigorously and * Education for All Global Monitoring Report 2009. its inclusive dimensions need to be brought into prominence 47 Empowering the Poor Through Human Rights Litigation Chapter IV in order that all those who remain deprived of it become its n° 13 adds stating that ‘States parties are obliged to prioritize beneficiary.1 the introduction of compulsory, free primary education’.3 4] Article 26 of the Universal Declaration of Human Rights 7] Moreover, the Committee on Economic, Social and Cultural (UDHR) established the foundations for the right to education, Rights (CESCR) has played an important role in developing setting out the degrees of responsibility derived from each the normative content dedicated to this right through its level of education. It stated that elementary education shall General Comments n° 11 and 13. The CESCR has also declared be free and compulsory, technical and professional education that both general comments should be considered jointly. available and higher education equal accessible. This article also mentions the importance of human rights in education and prescribes the principle of parental freedom of instruction for children, also referred to as ‘freedom of education’. 2. Normative content of the 5] To affirm the right to education, States have also adopted right to education a number of international instruments developing different dimensions of this right. Among them we can enumerate: The ILO Convention Concerning Indigenous and Tribal 8] Like all human rights, the right to education imposes three Peoples; The UNESCO Convention against Discrimination in levels of obligations on states: the obligation to respect, Education; The International Covenant on Civil and Political protect and fulfil. The obligation to respect requires states Rights; The International Covenant on Economic, Social and to avoid measures that hinder or prevent the enjoyment of Cultural Rights; The Convention on the Elimination of All the right to education. The obligation to protect requires Forms of Discrimination against Women; The Convention on states to take measures that prevent third parties from the Elimination of Racial Discrimination; The Convention on interfering with the enjoyment of the right to education. Intolerable Forms of Child Labour. The Convention on the In turn, the obligation to fulfil incorporates an obligation Minimum Age for Employment; The Convention on the Rights to facilitate and to provide. Facilitation requires states to of the Child; The Convention on Technical and Vocational take positive measures that enable and assist individuals and Education the International Convention on the Protection communities to enjoy the right to education. States are aimed of the Rights of All Migrant Workers and Members of their to provide primary education for all as an immediate duty of Families and the Convention on the Rights of Persons with all States parties.4 It is incumbent upon States to incorporate Disabilities, among many others.2 into domestic legal order their obligations under normative The legal framework of the right to education carries instruments and to give effect to these in national policies international obligations. and programmes. In order to achieve EFA, it is imperative to intensify UNESCO’s normative action and monitor more 6] Among all the prescriptions related to the right to effectively the right to education. education, Articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), as well as 9] The full realization of the right to education is dependant Article 3, 4 and 5 of the Convention against Discrimination upon the effective enforcement of States obligations. When in Education are among the most comprehensive. Indeed, not the right to education is violated citizens must have legal only do they develop the content of the right, but they also recourse before the law courts or administrative tribunals. define the obligations derived from each level of learning. Enforcement and justiciability of the right to education UNESCO played an important role in the drafting of these primarily depends upon national legal system. The judiciary articles and places emphasis in particular on Article 13, has an essential role in upholding the right to education setting international educational standards that develop and as an entitlement. Where they exist, national human rights monitor the implementation of this right. Article 13 of the institutions as well as Ombudsmen also have a role to play Covenant and Article 4 of the Convention impose compulsory empowering the right-holders. free and available primary education for all. General Comment 1. Inclusive dimensions of the right to education: normative bases (UNESCO 2008). a. The 4A System 2. The UNESCO Recommendation against Discrimination in Education (1960), the UN Declaration on the Promotion among Youth of the Ideals of Peace, Mutual Respect and Understanding Between Peoples (1965); UNESCO Declaration of the Principles of 10] The Committee has provided clarification on the scope and International Cultural Cooperation (1966); The UNESCO Recommendation concerning the Status of Teachers (1966); The UNESCO Recommendation Concerning Education attributes of the right to education through the so-called 4A for International Understanding, Co-operation and Peace and Education Relating to Human Rights and Fundamental Freedoms (1974); The UNESCO Declaration on Race and system framework.5 This framework analyses the obligations Racial Prejudice (1978); The UNESCO Recommendation on the Development of Adult Education (1976); The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992); The UNESCO Recommendation on the Recognition of Studies and Qualifications in Higher Education (1993); The UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel (1997); 3. See General Comment n° 13, at para. 51. The UNESCO Universal Declaration on Cultural Diversity (2001); The UNESCO Revised Recommendation concerning Technical and Vocational Education (2001) and The UNESCO 4. Ibidem. Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005). 5. See General Comment n° 13, paras 6 and 7. 48 Chapter IV Empowering the Poor Through Human Rights Litigation related to the right by responding to four features in each free of charge and to progressively provide free secondary and level of learning: availability, accessibility, acceptability tertiary education. It is important to underline the point that and adaptability. This 4A system has been further developed indirect costs could be permissible. However the Committee and specified by the former Special Rapporteur6 who has has not specified what indirect costs mean. added a fifth feature, affordability, which is sometimes incorporated within accessibility. 14] In the case Free Legal Assistance Group and Others v. Zaire,8 a claim brought by four NGOs against former Zaire 11] Available education relates to the obligation of the State (now the Democratic Republic of the Congo), the African to facilitate the right to education by providing sufficient Commission on Human and Peoples’ Rights (ACHPR) stated quantitative institutions, teachers and programmes with a that government closure of universities and secondary schools view to operationalization of the right. Availability includes: as a result of a situation of financial negligence during a available infrastructures (schools with water and sanitation period of internal crisis violated the right to education under facilities, classrooms, libraries, etc); available educational the African Charter on Human and People’s Rights (Article 17). materials and equipment (computer facilities etc.); and available teachers (salaries, trainings, etc.). Furthermore, 15] In the case Unni Krishnan J.P. & Ors. v. State of Andhra availability requires the non-closure of private schools as well Pradesh & Ors9 the Supreme Court of India, ruling on the as the development of school systems. basis of elements of Article 13 of the ICESCR, stated that the State’s obligation to provide higher education requires it to 12] An example of how the obligation of availability has been take steps to the maximum of its available resources with applied by Courts is analyzed in the case Campaign for Fiscal a view to achieving progressively the full realization of the Equity v. State of New York et al.7 According to the Supreme right of education by all appropriate means. Consequently, Court of the State of New York, the teaching within the State after the age of fourteen, a person’s right to higher education was inadequate: large class sizes negatively affected student is subject to the limits of economic capacity and development performance in New York City public school and such schools of the State. were deficient in “instrumentalities of learning” (including libraries and computers). The Court further held that, whether 16] In another case, the Court of India found that accessibility measured by the outputs or the inputs, New York City school to education should be realized for all people, rich or poor. children were not receiving the constitutionally-mandated For this reason, the Court held that a private institution, opportunity for a sound basic education. The Court ordered tied by the same requirements of the State, cannot charge the defendants to take all necessary steps to implement higher tuition fees than those established for ‘government an operational funding plan (including transportation seats’. The Court found thus that a ‘capitation fee’ in this case costs, materials, methodology, capital facilities and school made education unaffordable and therefore not accessible to expenditures) to provide New York City with the minimum, the poor, and that the system was arbitrary and contrary to gradual operations funding of US$14.03 billion for Year 1 the equality clause of the Directive Principle of State Policy (2005–2006), US$15.44 billion for Year 2 (2006–2007), (Article 14) (case Mohini Jain v. State of Karnataka).10 US$16.84 billion for Year 3 (2007–2008) and 18.25 billion for Year 4 (2008–2009) in no later that ninety days from the date 17] Acceptability relates to the appropriateness and of entry of the order. These steps were undertaken to ensure quality of education. It refers to the standards that should basic education for all. be attained and constantly improved in curricula, teaching methods, educational programmes, tools and infrastructures. 13] Accessible education refers to the requirement that Acceptability also requires that teaching and learning be schools and educational systems should be accessible to all culturally appropriated so as to be appropriate for minorities without discrimination of any kind and should place special in terms of language, content and methods. emphasis on vulnerable groups. It requires the existence of a fellowship system to provide help to special groups on the basis 18] The Court of the Economic Community of West African of non-discrimination and equality. The CESCR has clarified that States (ECOWAS) found the Universal Basic Education accessibility includes two elements: physical accessibility Commission of Nigeria responsible for implementing education and economic accessibility. Physical accessibility relates in the country in the recent case SERAP v. Nigeria.11 The to the ability to access education (transportation, existence Court stated that the Commission failed to ensure quality of schools in rural areas, participation of the community, education due to a lack of adequate implementation of technology facilities, and online education). Economic Nigeria’s Basic Education Act and Child’s Rights Act of 2004 accessibility refers to the affordability of education provision. 8. Comm. n° 25/89, 47/90, 56/91, 100/93. States are obliged to provide primary education immediately 9. Op cit. 10. 1992 AIR 1858. 6. E.CN.4/1999/49; see also Katarina Tomasevski, Human Rights Obligations in Education: the 4A Scheme 7 (2006). 11. Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) v. Federal Republic of Nigeria and Universal Basic Education Commission, Suit no ECW/CCJ/ 7. 719 N.Y.S.2d 475. APP/0808, 27 October 2009 (admissibility). 49 Empowering the Poor Through Human Rights Litigation Chapter IV under the general framework of the African Charter on Human complaint of racial discrimination related to the assignment and Peoples’ Rights (ACHPR). This case is important since it of Roma children to ‘special schools’ for the mentally clarified the justiciability of the right to education, developed disabled following psychological tests designed to assess the right to quality education, and confirmed the locus standi their intellectual capacity. The applicants alleged that they of NGOs for bringing cases of public interest before the Court. had been discriminated against in the enjoyment of their right to education by reason of their race, ethnic origin and 19] The adaptability of education consists of the obligation colour as a national minority. They pointed out that Roma of governments to provide flexible curricula and plans for all children are systematically segregated to special schools communities. Its main goals are respect of human dignity whose educational standards are substantially inferior to and the development of the human personality to help people those of primary schools in the enjoyment of the right to respond to changing societies. Education should respond education. The ECHR ruled in favour of the applicants and and adapt to the best interests of each child. Adaptability noted that Roma people have a “turbulent history and involves the interrelatedness of all human rights through constant uprooting”. The Court also argued that indirect education and education through all human rights. It discrimination – whereby a general policy or measure has a demands a constant effort to integrate educational strategies disproportionate prejudicial effect on a particular group – in all sectors, planning programmes and communities.12 is prohibited by the European Convention in the same way as direct discrimination and confirmed a violation of article 20] In a recent case concerning a massacre in Guatemala13, 14 of the European Convention for the Protection of Human which affected hundreds of displaced victims of the internal Rights and Fundamental Freedoms, combined with Article 2 war, the Inter-American Court of Human Rights ordered of its Protocol 1. reparation measures that included measures of satisfaction such as establishing development programs (on health, education, and infrastructure) in the affected communities. Core obligations of the right to education Such programs included providing such communities with • Equal and non-discriminatory access to the right to educational programs in the native language of the victims education (maya achí).14 Authorities from Guatemala are required to • Free, compulsory and universal primary education “supply of teaching personnel trained in intercultural and • Accessibility to secondary education in its different forms bilingual teaching for primary, secondary and comprehensive as well as technical and vocational education which should schooling in these communities”.15 The Court gave a five-year be made generally available period for the full-implementation of the reparation program. • Capacity- based access to higher education It also established that the state would report each year on • Opportunities for continuing education and literacy programme and life long learning the developments in the implementation of the measures • Minimum international standards of quality education ordered.16 and teaching profession-Principle of parental freedom of education -The obligation to take steps towards the full 21] The Supreme Court of India stated, for example, that realization of the right by designing and implementing a the right to education was linked to the dignity of life by detailed National Strategy (Educational Plan) including a defined time schedule for implementation of the right to reasoning that to sustain life a human being requires the education. fulfillment of all the enabling rights. For this reason, in the case Mohini Jain v. State of Karnataka,17 the Court stressed that people are only able to obtain a dignified life in India through education. b. Progressive realization of the right to 22] In the recent case D.H. & Ors v. the Czech Republic, education supported by the NGOs Interights and Human Rights Watch, the European Court of Human Rights (ECHR) examined a 23] The progressive realization of the right to education is an important factor for achieving universal access to education. 12. UNESCO Convention on Technical and Vocational Education (1989) contains in its Article As underlined in Chapter III of this manual and by the 3 the idea that education programmes need to be adapted to the characteristics of Committee on ESC rights, the progressive realization of a right the receiving population groups: ‘The Contracting States agree to provide and develop technical and vocational education programmes that take account of … the educational, imposes a duty to move as expeditiously and effectively as cultural and social background of the population concerned and its vocational aspirations’. It also puts forth the idea that education programmes shall be directed to possible towards the full realization of the right. Consequently, the ‘protection of the … common heritage of mankind’. 13. Inter-American Court of Human Rights – Plan de Sánchez Massacre v. Guatemala – 19 Nov. progression of the right to education means that free and 2004. compulsory education should be progressively expanded to 14. Mónica Feria, Justiciability of Economic, Social and Cultural Rights in the Inter-American System of Protection of Human Rights: Beyond Traditional Paradigms and Notions, Human secondary and tertiary education. Any different interpretation Rights Quarterly – Volume 29, Number 2, May 2007, pp. 431-459. would imply a reduction of the full recognition of the right to 15. Plan de Sánchez Massacre v. Guatemala, op.cit para. 110. education in which all levels should be effectively provided 16. Ibidem para. 111. and realized. 17 (1992 AIR 1858). 50 Chapter IV Empowering the Poor Through Human Rights Litigation 24] Accordingly, the immediate obligation for states in c. Non-discrimination and equal opportunities relation to primary education is to: in education (1) Provide universal, free and compulsory primary education, and Education without discrimination on grounds of race (2) Draw up an Action Plan to define a framework for the implementation of the right to primary education. 28] The Supreme Court of USA in the cases Brown v. Board of education22 stated that a segregated school system denies 25] The general obligation consists of providing secondary equal educational opportunities to minority group. And the and tertiary education and ensuring tertiary education South African case Province of Mpumalanga Bel Porto School is provided in an equal and accessible way. This does not Governing Body v. Premier of the Western Cap Province,23 mean that secondary and tertiary education should not be concerned analysis of the validity and effects of implementation available in the same way as primary. The only difference of of an educational policy that introduced reallocation of staff interpretation is based on the fact that primary education by a provincial authority between black and white schools. The constitutes the bare minimum in the sense that it should case was presented by the appellants from a white school on be immediately provided, be compulsory and free of charge. the basis of racial equity in educational systems. The appellants Secondary and tertiary education should progress towards argued that the policy was not well implemented and caused the same goal of universality. Such an interpretation is in inequality within the white schools. Even though the judges line with the principles of Education for All and the Indian did not conclude that discrimination had occurred with the case Maharashtra State Board of Secondary and Higher implementation of this policy in white schools, this decision Education v. K.S. Gandhi,18 which stated that the right to provided an important precedent for promoting equality and education at the secondary stage was a fundamental right. tolerance among new generations in South Africa. 26] Following on from Article 14 of the ICESCR, states will progressively ensure their duty by adopting an educational Education without discrimination based on plan of action within two years of the Covenant’s entry into nationality force in the State to secure free, universal and compulsory primary education.19 The implementation of the plan should 29] Children, in particular, face situations of vulnerability take place within a reasonable period of time and should and discrimination, as in the Case of the Inter-American Court be measured by indicators and benchmarks defined in the Dilcia Yean and Violeta Bosica v. The Dominican Republic.24 National Education Strategy. For example, in the case This was one of the first cases in which violations of the right International Association Autism Europe v. France,20 the to education were heard by a Court in relation to a case on European Committee on Social Rights stressed that when the right to education and the right not to be discriminated the realization of a right is ‘exceptionally complex and on grounds of national origin. The petitioners were two girls particularly expensive’,21 a government is permitted some with Haitian origins but who were born in the Dominican flexibility. However the realization of social rights must occur Republic. Despite their place of birth the authorities denied within a ‘reasonable time, with measurable progress and to them Dominican nationality. The petitioners argued that this an extent consistent with the maximum available resources’. lack of nationality exposed them to the imminent threat of expulsion. The Court asked the Government to facilitate access 27] Even in the case of financial crisis and economic to free elementary education by overcome the historical recession, states cannot disregard their obligations and barriers created by discriminative laws in birth record and should continue to undertake efforts towards providing educational systems. The Inter-American Court ordered that universal, free and compulsory primary education. Moreover, enjoyment of the right be guaranteed regardless of a child’s international cooperation should play an essential role by background by adopting precautionary measures. It further assisting states in situations of crisis. The participation of imposed supervision of the decision by asking the State to civil society is vital at all stages: in the conception of the submit to the Court a report on the measures adopted. plan, to provide guidance at the design and implementation levels, and to ensure permanent accountability. Education without discrimination based on gender 30] In Hong Kong, a case clearly stated that discrimination in educational systems in any form is not permissible, even 18. [(1991) 2 SCC 716]. 19. See General Comment n° 11 (1999). 22. Brown I, 347 US 483 (1954) and Brown II, US 294 (1955). 20. European Committee on Social Rights, Complaint n° 13/2002, Decision 4 November 2003. 23. (2002) 9 BCLR 891 (CC). 21. International Association Autism Europe v. France para. 53. 24. 8 September 2005. 51 Empowering the Poor Through Human Rights Litigation Chapter IV when a State argues that such discrimination is based on 33] In Argentina, the case Lifschitz, Graciela Beatriz y otros difference of educational aptitudes between girls and boys. c. Estado Nacional s/sumarísimo28 involved the claim of a low- Indeed, in the case Equal Opportunities Commission v. income family with a disabled child to whom access to school Director of Education,25 three educational systems in Hong was denied because of lack of vacant places. The petitioner asked Kong, namely the SSPA system, which evaluates and places for special financial support to allow access to private and special children into corresponding secondary schools, Internal education for her son. the Supreme Court decided in favour of a Assessment (IA) and an Academic Aptitude Test (AAT) that disabled child and ordered the Government to provide a special place them into secondary schools, were shown to evaluate subsidy to allow him access to a private and special school. students based on sex. The Court held that these actions violated the Sex Discrimination Ordinance as well as the international human rights obligations inscribed in the Education in conflict situation Convention on the Elimination on All Discrimination of Women (CEDAW). This precedent provided the basis for interpreting 34] In the decision T-215 of 2002, the Constitutional Court sex discrimination under the standards established by CEDAW. of Colombia protected the right to education of displaced Following this decision in 2001, over 100 female students children for whom inscription in educational institutions had were transferred to more favourable schools, and following been rejected due to their condition of displacement. The 2002, the rankings and seat allotments were no longer based Court highlighted the existence of an “unconstitutional state on gender. of affairs” and ruled to protect the rights of the child in special cases of internal displacement. Education of minorities Education of people in poverty 31] In Canada, a State which protects minority-language education rights, the Supreme Court upheld the claim of 35] In the decision C-560 of 1997 dealing with vouchers issue, Francophone parents living in five school districts in Nova the Constitutional Court of Colombia held that they limit access Scotia who applied for an order directing the authorities to to education when they exceed the moderate and proportional provide, out of public funds, homogeneous French-language payment. It also held that everyone has the right to access to facilities and programmes at the secondary-school level. education without discrimination included on the basis of its In the case Doucet-Boudreau v. Nova Scotia, Minister of economical capacity. The Court clearly affirms the equality of Education,26 the Supreme Court imposed the duty on the opportunity in access to school. An excessive economic request State to provide facilities for minority groups speaking to be admitted in school violates the right to education while their own language and to report back on the progressive pupils can be excluded only on an economical basis. implementation of these facilities. 36] In the Case of Edgewood Independent School District v. Kirby29 the Supreme Court of Texas studied the education Education of children with disabilities financial systems in Texas and concluded that the poor schools lacked funds to ensure the right to education. The Court 32] In the above mentioned case International observed that the wealthiest districts had 700 times more Association Autism Europe v. France,27 related to people property wealth per student than the poorest and concluded with disabilities, France acknowledged the failure to provide that this constituted a violation of the Constitution of adequate special educational services for people with Texas. The Court stressed that the financial systems did not disabilities, accepting that the financial system did not permit an efficient or effective education for every student take into account the number of persons on the waiting and concluded that there was a need to develop a new legal list. Despite the existence of programmes and allocations framework to correct this disparity. currently being implemented, the petitioner, in this case the Association Autism-Europe, found that it would take 100 years to erase the deficit on the official waiting list. For this Equality of opportunityy reason, the European Committee on Social Rights found that France failed to provide the necessary special education and 37] In India, a petition was submitted under a Public argued that the definition of autism was too restrictive and Interest Litigation (PIL), for the education of the children avoided integrating all people with disabilities within the of prostitutes in the case Gourav Jain v. Union of India.30 financial educational system. The Supreme Court held that the children of prostitutes have 28. Argentinian Supreme Court in Lifschitz, Graciela Beatriz y otros c/ Estado Nacional, 15- 25. N° 1555 of 2000. 06-2004. 26. 2000, 185 N.S.R. 2d, 246 (NSSC) and 2003 3.S.C.R. 3 (SCC). 29. 777 S.W. 2d 391 (Tex. 1989). 27. European Committee on Social Rights Complaint n° 13/2002. 30. Gourav Jain v. India, A.I.R. 1997 S.C. 3021. 52 Chapter IV Empowering the Poor Through Human Rights Litigation the right to dignity, equality of opportunity, care, protection and education, especially for the most vulnerable and and rehabilitation without stigmatization. For this reason, the disadvantaged children. Court ordered the creation of a Committee to draft a plan (2) Ensure that by 2015 all children, particularly girls, focusing on the rehabilitation of such children and child those in difficult circumstances, and those belonging to prostitutes, with periodic reports to be submitted to the Court. ethnic minorities, have access to and complete, free and compulsory primary education of good quality. 38] In Argentina, the Administrative Court of Buenos (3) Ensure that the learning needs of all young people and Aires, ruling in the Santoro case,31 stated that a decision adults are met through equitable access to appropriate related to the transfer of a student between two schools was learning and life-skills programmes. arbitrary. In addition, the Supreme Court of Argentina revised (4) Achieve a 50 per cent improvement in adult literacy by a collective claim related to non-compliance of a province 2015, especially for women, and equitable access to with the Federal Educational Act, which develops standards basic and continuing education for all adults. related to equality in education.32 The Argentinean province (5) Eliminate gender disparities in primary and secondary did not comply with the Federal Act and maintained its own education by 2005, and achieve gender equality in educational rules and standards. This resulted, for example, education by 2015, with a focus on ensuring girls’ full in the invalidity at national level of diplomas issued by the and equal access to and achievement in basic education province’s educational scheme. The Court stated that this of good quality. scheme was not in accordance with the Federal Act and that (6) Improve all aspects of the quality of education and ensure this would affect the right to education of children as well as the excellence of all so that recognized and measurable their right to access to working opportunities. learning outcomes are achieved by all, especially in literacy, numeracy and essential life skills. 39] In the Indian case UnniKrishnan J. P v. State of Andhra Pradesh,33 related to the obligation of the State to provide 41] In 2000, the international community reaffirmed its education facilities within the economic capacity and commitment to EFA at the World Education Forum in Dakar, development of the citizens, the Indian Court declared that Senegal, and adopted two EFA goals which are also Millennium education was a fundamental right and particularly stressed Development Goals (MDGs). The Dakar Framework for Action that education of children up to the age of 14 years old was pledges to expand learning opportunities for every child, fundamental. Through this decision, the Court could define youth and adult, and to meet targets in six areas by 2015. broader standards for State compliance in another sphere as The world education framework adopted the Dakar Framework the eradication of child forced labour and encouraged the for Action including six specific goals: advancement of the right in the landmark case M.C. Mehta v State of Tamil Nadu & Ors.34 (1) Expand early childhood care and education (2) Provide free and compulsory primary education for all (3) Promote learning and life skills for young people and adults (4) Increase adult literacy by 50 per cent, especially for 3. Human rights approach to women ‘Education for All’ (5) Achieve gender parity by 2005 and gender equality by 2015, and (6) Improve the quality of education. 40] Education for All (EFA) is an international initiative first launched in Jomtien, Thailand, in 1990 to bring the benefits 42] In order to reach these goals a rights-based approach of education to ‘every citizen in every society.’ In order to to education for all has been defined in order to encompass: realize this goal, a broad coalition of national governments, civil society groups, and development agencies, such as • The right of access to education, which comprises three UNESCO and the World Bank, committed to achieving six elements: the provision of education throughout all stages specific education goals: of childhood and beyond, the provision of sufficient, accessible school places or learning opportunities, and (1) Expand and improve comprehensive early childhood care equality of opportunity. • The right to quality education, which includes a broad 31. Buenos Aires Administrative Court of Appeals, Santoro, Francisco Roberto y otro v. GCBA s/amparo, 05-14-2002. and inclusive curriculum, rights-based learning and 32. Argentinian Supreme Court, Ferrer de Leonard, josefina y otros c. Superior Gobierno de la assessment, and a child-friendly, safe and healthy Provincia de Tucumán, s/amparo, 08/12/2003. environment. 33. 1993, 1 SCC 645. • The right to respect within the learning environment, 34. M.C. Mehta v State of Tamil Nadu & Ors (1996) 6 SCC 756; AIR 1997 SC 699 where the Court called for the enforcement of legislation prohibiting child labour. The Supreme including respect for identity, integrity and participation Court directed that children should not be employed in hazardous jobs in factories for the manufacture of matchboxes and fireworks, and that positive steps should be taken rights. for the welfare of such children and to improve the quality of their life. 53 Empowering the Poor Through Human Rights Litigation Chapter IV 43] On the same occasion, the international community recognized the central role of civil society in the achievement UNESCO Guidelines on Intercultural Education of the EFA goals and committed to ‘ensure the engagement for EFA and participation of civil society in the formulation, Intercultural Education is a response to the challenge to implementation and monitoring of strategies for educational provide quality education for all. It is framed within a Human development’.35 The call for a genuine partnership, launched Rights perspective as expressed in the Universal Declaration at the Dakar Forum, through which civil society would be fully of Human Rights (1948): Education shall be directed to the full development of human personality and to the strengthening associated with all stages of the realization of the EFA goals, of respect for human rights and fundamental freedoms. It has therefore effectively given momentum to the structuring shall promote understanding, tolerance and friendship among and consolidation of EFA networks. Thus, more and more all nations, racial and religious groups, and shall further the countries now have national coalitions, often grouped into activities of the United Nations for the maintenance of peace. regional and international networks. The launch of the Global The challenge for Intercultural Education is to establish and Campaign for Education, which contributed to stronger maintain the balance between conformity with its general guiding principles and the requirements of specific cultural collaboration and dialogue between NGOs and teachers’ contexts. For this purpose, The ‘Rabat Commitment,’ formed as unions, has certainly contributed to the rapprochement that a result of the Rabat Conference on Dialogue among Cultures has mainly taken place in Africa, but also in the Asia and the and Civilizations through Concrete and Sustained Initiatives Pacific, and Latin America and Caribbean regions. (Rabat, Morocco, 14–16 June 2005), recommends the preparation of ‘guidelines on Intercultural Education, building on the research, publications and practice already carried out’. 44] For this purpose, UNESCO created a thematic mechanism The UNESCO Guidelines on Intercultural Education (2006) entitled the Collective Consultation of NGOs on EFA (CCNGO/ contain the following principles: EFA) to reflect the recommendations of the Dakar Framework Principle I: Intercultural Education respects the cultural for Action, and to facilitate reflection, permanent dialogue identity of the learner through the provision of culturally and joint action between NGOs and UNESCO in the area of appropriate and responsive quality education for all. Education for All (EFA). It ensures the follow-up of activities Principle II: Intercultural Education provides every learner and serves as the interface between the Dakar follow-up with the cultural knowledge, attitudes and skills necessary to programmes and mechanisms and CCNGO/EFA. At its annual achieve active and full participation in society. meeting CCNGO/EFA presents a report on ongoing activities Principle III: Intercultural Education provides all learners with and initiatives in the region. cultural knowledge, attitudes and skills that enable them to contribute to respect, understanding and solidarity among individuals, ethnic, social, cultural and religious groups and 45] In the framework of UNESCO’s mandate concerning nations. intellectual cooperation in the field of education and its For more information on the Guidelines see the UNESCO website coordinating role of EFA partners, the purpose of CCNGO/EFA http://unesdoc.unesco.org/images/0014/001478/147878e.pdf is to foster partnership between NGOs and UNESCO with the aim of: • Contributing to broadening the concept of EFA • Reinforcing knowledge of NGO roles and experiences in EFA and promoting its • dissemination 4. Human rights education • Facilitating collective expression and cooperation among the NGOs in the field of EFA 46] Human rights education is defined as any learning, • Facilitating the capitalization of conceptual contributions education, training and information efforts aimed at building and experiences of NGOs so that these are taken into a universal culture of human rights.36 Human rights education account in education content and policy formulation is an integral part of the right to education. It embraces • Facilitating the consideration and mainstreaming of all education levels and all forms of teaching and learning. NGO conceptual contributions and experiences in EFA For this reason, in developing human rights education, the programmes state is compelled to adopt the same scheme of human rights • Facilitating the participation of NGOs in monitoring and obligations for the right to education. Human rights education evaluating EFA goals responds to the dialectic between the full development of • Reinforcing NGO technical and institutional capacities, the human personality and the strengthening of respect for particularly at the local level. human rights and fundamental freedoms for the promotion of understanding, tolerance and friendship among nations and The Convention against Discrimination in Education has been for the maintenance of peace.37 recognized by UNESCO as a key pillar of EFA. 36. Plan of action for the second phase (2010-2014) of the World Programme for Human Rights Education (A/HRC/15/28), as adopted by Human Rights Council resolution 15/11, para. 1. 35. Para. 8 of the Dakar Framework for Action. 37. Article 26 para. 2 of the UDHR. 54 Chapter IV Empowering the Poor Through Human Rights Litigation 47] Indeed, following the World Conference on Human Rights 51] The Human Rights Council decided, in its resolution 12/4 held in Vienna in 1993 and based on the achievements of the (October 2009), that the second phase of the WPHRE focus “on United Nations Decade for Human Rights Education (1995– human rights education for higher education and on human 2004) the General Assembly of the United Nations proclaimed rights training programmes for teachers and educators, civil on 10 December 2004, the World Programme for Human servants, law enforcement officials and military personnel at Rights Education (WPHRE) (2005–ongoing).38 The goal all levels” for five years, 2010-2014 (paras. 2 and 4). The of this Programme is to promote a common understanding resolution also “Encourages States that have not yet taken of the basic principles and methodologies of human rights steps to incorporate human rights education in the primary education, to provide a support for policy-oriented action, and secondary school system to do so, in accordance with and to strengthen partnerships and international cooperation. the Plan of Action of the first phase of the World Programme” This programme aims to advance the implementation of (para.3). human rights education programmes in all sectors. 52] The Council requested the Office of the UN High 48] During the first phase (2005–2009) of the WPHRE, Commissioner for Human Rights to “prepare, within existing governments, in adopting the plan of action for the first resources, in cooperation with relevant intergovernmental phase39, committed themselves to focus on primary and organizations, UNESCO and non-governmental actors, consult secondary levels of education, to analyse the current States on and submit for consideration to the 15th session situation of human rights education in primary and secondary of the Human Rights Council (September 2010), a plan of school systems; to set priorities and develop a national action for the second phase of the World Programme (2010- implementation strategy; to implement and monitor 2014), (…)” (para.4). This new plan of action was developed planned activities, and to evaluate the outcomes of national by OHCHR in consultation with UNESCO and many other implementation. stakeholders, and was adopted, as contained in A/HRC/15/28, by the Human Rights Council resolution 15/11 (30 September 49] At the international level, the United Nations Inter- 2010). Agency Coordinating Committee on Human Rights Education in School System (UNIACC),40 was mandated to ensure United 53] As the lead agency on education, UNESCO has set forth Nations system-wide support to national implementation milestone instruments that have guided its work, as well as of the plan of action. Within this framework, UNESCO was other international agencies, on human rights education. actively involved in the follow-up to the first phase and These include: the Recommendation concerning Education developed the practical tools for teaching and learning as for International Understanding, Co-operation and Peace well as for policy planning related to human rights education and Education relating to Human Rights and Fundamental in general, and with focus on the specific questions such as Freedoms (1974). This Recommendation, which was adopted learning to live together, prevention of violence in schools, by UNESCO’s General Conference in 1974, provides normative gender, etc. Partnership with NGOs is considered critical in framework for promoting human rights education by detailing developing contents and methodologies relevant to learner’s guiding principles and formulating a global approach. It everyday life as well as in outreach. provides for action in various sectors of education and underlines the need for understanding and respect for all 50] At the conclusion of the first phase, a global evaluation peoples, their cultures, civilizations, values and ways of life of national implementation of human rights education in as well as the responsibility of Member States for providing the school system was undertaken and the related UNIACC human rights and fundamental freedoms. evaluation report, submitted to the General Assembly, revealed that there was particularly notable progress in making human 54] Indeed, UNESCO Member States are invited on a regular rights education part of national curricula. There are also a basis to submit national periodic report on the measures number of national initiatives in terms of policy and action taken to implement this Recommendation.42 The objective to foster a culture of respect for human rights in daily school of monitoring the implementation of this Recommendation life. Certain gaps in implementation remain, which suggests is to monitor the process whereby human rights materials the need for a more comprehensive and systematic approach and principles have been progressively incorporated into the at the national level.41 legal, administrative, educational and teaching tools that guide the daily practice of education. Member States are 38. For more information about these two initiatives, please see www2.ohchr.org/english/ invited to consult relevant stakeholders and in particular the issues/education/training/index.htm. national human rights institution. 39. Plan of action for the first phase of the World Programme for Human Rights Education (A/59/525/Rev.1). as adopted by the United Nations General Assembly resolution 59/113 B. 40. The United Nations Inter-Agency Coordinating Committee on Human Rights Education in School System was established for the duration of first phase and was composed of the 42. In accordance with 34 C/Resolution 87, document 182 EX/35 “Results of the Fourth following agencies: ILO, OHCHR, UNAIDS, UNDG, UNDP, UNDPI, UNESCO, UNFPA, UNHCR, Consultation on the Implementation of the 1974 Recommendation concerning Education UNICEF, UNRWA and the World Bank. for International Understanding, Co-operation and Peace and Education Relating to Human Rights and Fundamental Freedoms” was submitted to the 182nd session of the 41. Final evaluation of the implementation of the first phase of the World Programme for Executive Board (September 2009) and to the 35th session of the General Conference Human Rights Education (A/65/322). (October 2009). 55 Empowering the Poor Through Human Rights Litigation Chapter IV 55] At the UN level, Member States are invited to provide 5. Strategies for justiciability information on any measures taken to ensure adequate education and training in human rights for a wide range of professional categories, including teachers, based on the framework of the 58] Harmonized Guidelines for reporting under international human rights treaties, adopted by the 18th Meeting of Chairpersons of • Focus on education as a human right and not as a service. the Human Rights Treaty Bodies in June 2006. States should • Preserve public interest in education submit information on any measures taken to promote respect • The right to education is justiciable as an independent for human rights through education and training in general, right. It does not need to be linked to another human and within schools in particular. 43NGOs are invited to support right. Member States in this task. • Prioritize the principle of the best interests of the child in public policies and legal frameworks 56] In following up Human Rights Council Resolution A/ • Universal right to education is also related to the HRC/6/10 adopted in September 2007, a drafting group universality of rights: education is closely linked to all was set up within the framework of Human Rights Council’s rights including food, housing, the right to have a family, Advisory Committee for elaborating the proposed “UN work etc. Declaration on Human Rights Education and Training”. One • Policies and plans as well as financial, macro and micro- of its main tasks was to collect information on normative economic strategies should be analysed in order to define instruments and key initiatives that relate to HRE, most of the potential impact they will have on children. which came out of the recent UN Decade for Human Right • Children lack a political voice – they depend on adults Education (1995-2004). The Committee also took into account to present their claims – but are a priority of the legal other existing initiatives such as the UN World Programme for system. The Convention on the Rights of the Child Human Rights Education (WPHRE, 2005-ongoing). In order to stresses that all children should have guaranteed access enhance the long-term awareness of human rights education, to education regardless of their legal status or that of UNESCO actively contributed to the drafting process of this their parents. For this reason, publicly-funded children’s UN declaration. National Commissions for UNESCO as well advocates, NGOs, special counsels, public defenders or as UNESCO Chairs and partner NGOs were invited to share ombudsmen are required to represent their claims. their experiences and lessons learned on several occasions. • Ensuring equal educational opportunities for all in law The draft declaration was finalized by the Open-ended and in fact. It is important to place greater emphasis Intergovernmental Working Group on the draft United Nations on action at national level for universalizing access declaration on human rights education and training (10-14 to quality education for all without discrimination or January 2011) and subsequently adopted by the Human exclusion. Positive measures and affirmative action could Rights Council in its resolution 16/1 (23 March 2011). be necessary for mitigating inequalities in educational opportunities. Equity, quality and financing are key areas 57] Concretely, NGOs are invited to participate by sending in pushing forward the EFA agenda. pertinent information on the inclusion of human rights • Financing of education: developing a legal framework education and training in their activities.44 • Measuring impact of awareness raising 43. Harmonized guidelines on reporting under the international human rights treaties, including guidelines on a common core document and treaty-specific targeted documents, UN document HRI/GEN/2/Rev.6 (2009) available at: www2.ohchr.org/ english/bodies/coredocs.htm. 44. See, for example, Human rights education in the school systems of Europe, Central Asia and North America: a compendium of good practices, OSCE, CoE, OSCE/ODIHR, UNESCO and OHCHR, 2009. Exercises 1) Identify obligations (respect, protect, fulfil) and violations (fees, compulsory nature, teachers training; groups: women and girls, minorities, emergencies, extremely poor) related to the right to education. 2) Identify what role for States representatives, NGOs and judges on advancing the implementation of the right to education. 3) Provide elements for a human rights-based approach to budgetary analysis applied to education. 56 FOOD The right to adequate food – 57 – 1. Definition(s) of the right to (adequate) food – 59 – 2. State obligations under the right to food – 60 – 3. Core obligations under the right to food – 61 – 4. Duties of equal protection and non- discrimination – 62 – 5. Voluntary Guidelines to support the progressive realization of the right to adequate food in the context of national food security – 63 – 6. Developing legislative frameworks recognizing and implementing the right to food as a justiciable right – 64 – 7. Strategies for justiciability Chapter IV Empowering the Poor Through Human Rights Litigation The right to © Asianet-Pakistan adequate food It is barely credible that millions of people around the world are still suffering and dying from malnutrition, hunger and starvation. This situation will not be alleviated unless the roots of hunger and poverty are addressed. Key priorities for any poverty alleviation strategy should include strengthening the effective implementation of policies and the development of a clear definition of the right to food, as an autonomous right. This chapter presents the challenges facing the operational aspects of the right to food and the arguments for this human right to be implemented as a justiciable right. It underlines the necessity of developing human rights-based legislative frameworks for recognizing the right to food as a right of all people. It also presents examples of NGO activities in the field that have played a crucial role in providing first-hand solutions for those most vulnerable to hunger and poverty, in particular, women and children. 1. Definition of the right to the content of other rights.4 Today, however, numerous cases show how the right to food is being increasingly recognized adequate food1 at the national level as a justiciable right.5 1] Although the right to food was the first human right studied 2] As mentioned in the chapter on the right to adequate within the framework of the UN System, it has advanced housing, Article 25 of the Universal Declaration of Human and been explored only relatively recently in comparison Rights (UDHR) mentions the right to adequate food as part of with other economic, social and cultural (ESC) rights. The the right to a standard of living.6 As with the right to adequate content of this right has been developed at the national housing, adequate food is indispensable for the fulfillment level over the last two decades, but above all in terms of of other human rights. In its article 11, the International its relationship to other human rights, such as the right to Covenant on Economic, Social and Cultural Rights (ICESCR) life,2 work and income3 (especially in relation to the element enshrines the right to adequate food and provides the main of procurement), education, housing or health. The right to direction on states obligations at national level.7 The Special food thus constitutes an example of the interrelatedness and Rapporteur on the right to food, in his first annual report to interdependency of human rights: it is defined through other the Human Rights Council,8 emphasized that this human right human rights at the same time as it provides elements for needs to focus on the beneficiaries, and that the needs of the 4. See, for example, Argentina, Corte Suprema de Justicia de la Nación, Defensor del Pueblo de la Nación c. Estado Nacional y otra, 2007, where the Supreme Court protected the access to food and water of indigenous communities who died due to a lack of access 1. In this paper we refer to the right to food and the right to adequate food indistinctly, in to food and water. See also the case Sawhoyamaxa v. Paraguay, 2006, of the Inter- accordance with the interpretation provided by the Committee on Economic Social and American Court of Human Rights, in which the Court protected the right to food of the Cultural Rights in General Comment n° 12. According to this definition, the right to food Sawhoyamaxa indigenous community by protecting their right of life. includes the adequacy and sustainability of food availability and access. 5. See, for example, Right to Food and Access to Justice: examples at national, regional and 2. Examples of the interrelation of the right to food and the right to life include India international levels, FAO, 2009. Maneka Gandhi v. Union of India AIR 1978 SC 597, where the Supreme Court stated: ‘Right to life enshrined in Article 21 means something more than animal instinct and 6. See Chapter related to the Right to adequate housing, footnote 1. includes the right to live with human dignity, it would include all these aspects which would make life meaningful, complete and living.’ Similarly, in Shantistar Builders v. 7. Article 11 of the ICESCR states: ‘The States Parties to the present Covenant recognize the Narayan Khimalal Totame (1990) 1 SCC 520, the Supreme Court stated: ‘The right to right of everyone to an adequate standard of living for himself and his family, including life is guaranteed in any civilized society. That would take within its sweep the right adequate food, clothing and housing, and to the continuous improvement of living to food’. In Chameli Singh v. State of U.P, AIR 1978 SC 597 states that the right to conditions. The States Parties will take appropriate steps to ensure the realization of this life is guaranteed in any civilized society implying the right to food, water, decent right, recognizing to this effect the essential importance of international cooperation environment, education, medical care and shelter among others. based on free consent.’ Many other international instruments mention the right to food including the Convention on the Rights of the Child (Article 24). 3. Since employment is linked to purchasing power and therefore to food security, the right to work is crucial for realizing the right to food. 8. Olivier De Schutter took office on 1 May 2008, report A/64/170. 57 Empowering the Poor Through Human Rights Litigation Chapter IV most marginalized groups should be prioritized, including in net programmes, etc). In the development of policies aiming particular smallholders in developing countries. to enhance livelihoods’ protection, the implementation of a food security system which facilitates sustainable strategies 3] The Committee on Economic, Social and Cultural Rights to an adequate access to food is fundamental and no budget (CESCR) clarified the content of the right in General Comment restrictions should undermine this human right.14 n° 12,9 affirming that adequate food is realized when every man, woman and child, alone or in community with others, have physical and economic access at all times to adequate food or means for its procurement.10 The CESCR established that this definition should not be understood in a restrictive Zero Hunger Programmes: the experiences of Brazil and Nicaragua manner which refers only to a minimum package of calories, proteins and other specific nutrients. The right to food should The Brazilian authorities created a Food and Nutritional Policy with a national food security programme entitled the be understood as a broader concept requiring a progressive Zero Hunger Programme. A National Council for Food and implementation. Nonetheless, the core definition of this human Nutritional Security (CONSEA) enables NGOs and government right relies on two main elements: availability and accessibility authorities to share experiences and put in place strategies for to food. The accessibility can be attained either by economic the implementation of food strategies. means (income) or by direct access to food (direct food The Programme includes the following multidimensional provision). In that sense, the Committee has stressed that the components: (1) A design of a new economic model based problem of malnutrition and the availability of food is linked to on income improvement (including income and employment; generation policies level; previdenciary expansion and agrarian accessibility of food, underlining the connection with poverty.11 reform); (2) A better income distribution, based in the increase of Basic Food Supply (including support to familiar 4] The progressive realization of the right to food encompasses agriculture; incentives to self-consumption; food production and agricultural policy); (3) A Domestic Market Growth, based on immediate and long term measures. It imposes an obligation Emergency Actions (including food coupons; basic food basket; on States to take the steps necessary to mitigate or alleviate children´s free-food-in-school; special programs; food bank and hunger and starvation in all situations, by adopting measures food security stocks; and finally; (4) More employment and to enable the poorest to have access to balanced and better Salaries, based on Food Cheapening (including popular restaurants; agreements between supermarkets and in-natura nutritious food ensuring the fulfillment of the core aspects food Markets; alternative trade channels and public equipment. of this human right.12 In the long term, the Voluntary See more information of the project in: Guidelines to Support the Progressive Realization of www.brasembottawa.org/downloads/en/PROGRAMA.PDF the Right to Adequate Food in the Context of National In line with the Brazilian Zero Hunger programme, Nicaragua, Food Security (Right to Food Guidelines) adopted by all one of the poorest countries in Latin-America launched the FAO member states, address in a comprehensive and holistic same initiative for 2008-2012, focusing on mother-and-child way the measures that should be taken to build an enabling health, food for education and food for training for 225,000 beneficiaries. The current programme covers 70 percent of the environment where people can feed themselves, a system needs identified by vulnerability analysis and mapping. of assistance to those who are unable to feed themselves, See for more information: 2009 report of FIAN International, and measures to enhance accountability of all state actors.13 El Derecho a la Alimentación y la lucha para combatir el hambre In concrete terms, Voluntary Guideline n° 7, for example, en Nicaragua: Un Año del Programa Hambre Cero available at: focuses on the existence of independent and protective legal www.bvsde.paho.org/texcom/nutricion/alimen_nic.pdf mechanisms to allow vulnerable groups access to effective and also remedies when their right to adequate food is violated. This Plan of Action between the government of Nicaragua and UNDP recommendation goes further since it requires dissemination 2008-2012 available at: www.undp.org/latinamerica/country- of information regarding the entitlements of vulnerable docs/CPAP%20Nicaragua-2008-2012.pdf groups to this right. Furthermore, the Right to Food Guidelines encourage states to ensure the progressive realization of the right to food through a growth strategy which is consistent 5] Progressive protection is a complex challenge that with human rights objectives and obligations and should addresses food priorities and the management of food focus on the most vulnerable (impact assessments-safety production and distribution through food systems. This can only be achieved through the implementation of a broad 9. UN Document E/C12/1999/5. strategy involving diverse actors and activities, including: 10. See G.C. n° 12 para. 6. plans for procurement and buffer stock, diversification of 11. G.C. n° 12 para. 5. crops, the role of the private sector, decentralization policies, 12. See, for example, M. Borghi and L. Postiglione Blommestein (eds) 2005, The right to plans for farmers, incentives, subsidies, implementation of adequate food and access to justice, Fribourg, Switzerland, Editions Universitaires. nutrition and employment programmes. 13. Adopted during the 127th session of the FAO Council in November 2004. Section 5 of this chapter develops the content of the Voluntary Guidelines. Concerning the progressive realization of this right, Voluntary Guidelines n° 5 related to Institutions (7) on legal frameworks and (17) on monitoring, indicators and benchmarks are especially pertinent for ensuring its progressive implementation. More information on the Voluntary 14. See for more information: FAO, The right to Food: Putting it into practice, Brief 2, Guidelines will be given in the section related to implementation of the Right to Economic Development Policy available in: www.fao.org/righttofood/download_2008/ Food. briefs_EN.pdf 58 Chapter IV Empowering the Poor Through Human Rights Litigation 6] The right holders are numerous. It involves urban and 10] In the Kenneth George case,19 artisanal fishing rural populations, from which producers and providers, such communities presented a class action to the High Court of as farmers, workers and plant breeders. The accessibility and Cape of Good Hope Province in South Africa, and asked for the availability of food depends on the means of procurement protection of their fishing rights as well as the protection of created by markets, food schemes, state strategies for their right to food. They alleged a violation of the obligation distribution and the role of private actors. Regulation and to respect the right to food caused by a retrogressive monitoring are therefore crucial for its respect and expansion. measure of blocking access to the sea for traditional fishing communities, which would cause poverty among artisanal fishing communities who depend on traditional fishing practices. In addition, they accused the existing fishing policy of exclusivity, obliging them to integrate a commercial fishing 2. States obligations under the industry in their practices or face exclusion from legal fishing right to food operations. In its decision, the High Court ordered the drafting of a new law with the participation of the community and in accordance with international and national legal obligations. 7] The tripartite typology explained in Chapter III related to the generic obligations to respect, protect and fulfil has 11] The obligation to protect the right to food imposes been expanded in General Comment n° 12, which establishes a duty to regulate activities related to access to food, two dimensions within the obligation to fulfil, namely, the ensuring that third parties (private actors or individuals) do obligation to facilitate and to provide.15 not impede accessibility. In the case Social and Economic Rights Action Center & the Center for Economic and 8] The obligation to respect relates to the duty to respect Social Rights v. Nigeria20 for example, the action of state the existing access to adequate food. This obligation authorities destroying and threatening food sources of requires that States do not take any measures that impede the Ogoni people in Nigeria constituted a violation of the such access.16 Voluntary Guideline 8.1 clarifies that ‘states duty to protect. Indeed, the complaint was lodged by two should protect the assets that are important for the people’s non-governmental organisations: the Social and Economic livelihoods’. The case Kishen Pattnayak & another v. State Rights Action Centre (SERAC) and the Centre for Economic of Orissa,17 the first Indian case related to right to food, and Social Rights (CESR). The communication dealt with a expresses the importance of access to food in alleviating number of human rights violations provoked by the alleged poverty. The case, brought before the Supreme Court of India, action of the military government of Nigeria in one hand, dealt with the situation of extreme poverty of the people and by the Nigerian National Petroleum Company (NNPC), of Kalahandi in Orissa, where hundreds were dying due to in a joint venture with Shell Petroleum Development starvation, and where children in particular were vulnerable. Corporation (SPDC) in another hand. Activities in the Ogoni The Indian Supreme Court gave directions to the government region caused important environmental degradation, as well regarding measures to be taken for preventing deaths due to as the destruction of homes, burning of crops, killing of poverty and starvation, but no specific measures were issued animals and health problems among the Ogoni people. The to end the situation itself. latter, resulted from the contamination of the environment, and in particular, a contamination of soil, water and air, the 9] Furthermore, in the case Taito Rarasea v. State,18 in destruction of homes, the burning of crops and killing of farm Fiji, the lack of food for a prisoner serving a long sentence animals. The protect obligation was violated because of the was considered as cruel, inhuman and degrading treatment. state’s omission to undertake any action to stop the private The High Court of Fiji invoked both the ICESCR and the party from destroying the food sources of the Ogoni. This International Covenant on Civil and Political Rights (ICCPR), violation occurred by the use of a variety of means including and found that reducing the portion of food stated in the the participation of state authorities in an irresponsible oil Prison Act, and using food as a mean of control, constituted a development that poisoned part of the soil and water upon violation of the right to adequate food. This case constitutes which Ogoni farming and fishing depended. This situation an important basis for the indivisibility of civil and political caused destruction of farmlands and crops, poisoning of and economic, social and cultural rights. rivers and animals, and created malnutrition and starvation among Ogoni communities. 12] The obligation to facilitate implies any initiative aimed 15. Supra note 21, GC 12 para. 15. at strengthening access to and utilization of resources and 16. See G.C. n° 12, para. 19. 17. A.I.R. 1989 S.C. 677. 19. Kenneth Georges and Others vs. Minister of Environmental Affairs and Tourism, 05 02 18. Criminal Appeal n° HAA0027 of 2000, 12 May 2000. See also the cases of the Human 2007. Rights Committee related to the right to food of prisoners: Mukong v. Cameroon, Communication 458/1991, 1994 and Lantsova c. Fédération de Russie, Communication 20. African Commission on Human and People’s Rights, October 27, 2001 Communication n° 763/1997, 2002. n° 155/96. 59 Empowering the Poor Through Human Rights Litigation Chapter IV means to ensure livelihoods, including food security. It sufficient funds to provide food for them’. The Court ordered includes also all the variety of measures that the authorities the immediate use without delay of food stocks in order to should develop in different areas of action (legal, policy, prevent hunger and starvation. After, the Court asked the institutions, programmes, strategies, etc. The duty to provide states to identify families below the poverty line (BPL) in rather concerns the obligation of states to ensure that people order to identify targeted food schemes. Based on PUCL, with special limitations can enjoy the right to adequate food, the Indian Supreme Court passed more than twenty ‘interim it is thus applicable in all circumstances in which people are orders’25 ordering the government to: (1) introduce cooked unable to feed themselves by their own means. The CESCR has midday meals in all primary schools, (2) provide 35 kgs of added that this obligation has special significance in the case grain per month at highly subsidized prices to 15 million of situations of natural disasters. 21 destitute households under the Antyodaya component of the PDS, (3) double resource allocations for India’s largest rural employment programme (Sampoorna Grameen Rozgar Yojana programme), and (4) universalize the Integrated Child Development Services. The Court was also able to identify 3. Core obligations under the the minimum quantity of nutrition and food to be made right to food available. For a malnourished child the diet should comprise 600 calories and 16–20 grams of protein; a child up to 6 years old should have 300 calories including 8–10 grams protein; 13] A core obligation under the right to food is to immediate and for an adolescent girl, 500 calories and 20–25 grams of ensure freedom from hunger, meaning in practical terms to protein. provide minimum basic resources to enable individuals to be free from threats to their survival. The aim of freedom from hunger relates to two core elements: adequacy (which includes both quantitative and qualitative dimensions), and accessibility. Adequacy and accessibility are therefore Right to Food Campaign in terms of the CESCR core elements of the right to food. The PUCL case, which had at first an impact in Rajasthan, Furthermore, the CESCR mentions two other principles upon gained a broader scope, and today encompasses almost all national Indian food schemes. As a consequence, a genuine and which depends the long-term maintenance of adequacy and effective Right to Food Campaign was implemented with the accessibility: the availability and sustainability of food. support of NGOs. They disseminated the following entitlements derived from the PUCL case: the National Rural Employment 14] In relation to immediate targets, adequacy means Guarantee Act (NREGA), the Integrated Child Development Services (ICDS), Mid-day Meals (MDM) scheme, and the Public that food (including solid foods but also the nutritional Distribution System (PDS). aspects of drinking water) or diet should be appropriate.22 As a consequence, a genuine and effective Right to Food This element has been particularly important in national Campaign was implemented with the support of NGOs, which jurisdictions in relation to special protection for vulnerable disseminated a number of entitlements derived from the people. In the landmark Indian case People’s Union for Civil PUCL case. Additionally, the Department of Food and Public Liberties (PUCL) v. Union of India and Others,23 initiated Distribution, Ministry of Consumer Affairs, Food & Public Distribution, have prepared a draft National Food Security by the domestic NGO Human Rights Law Network (HRLN) Bill that is actually under discussion. This case is crucial and popularly known as ‘the PUCL case’ or ‘the Right to for understanding how an assistance programme became a Food case’, the Supreme Court of India elaborated on the national strategy, supported by legal protection of the right to concept of adequacy in relation to the right to life.24 The adequate food for the poor. It underlines how NGOs can actively participate in this recognition (for more information, see www. Court explored the meaning of the portion of the diet and righttofoodindia.org). monitored the supplied nutrition elements for pregnant women, children, girls and adolescents. The Court affirmed that ‘food [should be] provided to the aged, infirm, disabled, 15] Accessibility of food is a requirement composed of destitute women and men who are in danger of starvation, two elements: physical accessibility, which gives access pregnant and lactating women, destitute children, especially to all people and especially vulnerable people who cannot in cases where they or members of their family do not have supply food for themselves. In this regard, the G.C. mentions expressly the victims of natural disasters, ill and terminally ill 21. See G.C. para. 15. people, indigenous people and children. The second element 22. The diet should also contain the necessary mix of micronutrients for physical and psychological growth according to gender and occupation. It should be free of is economic accessibility, which is related to income which unfavorable or toxic substances, meaning that it should be safe (as regards contamination of foodstuffs, adulteration or environmental conditions) and should respond to cultural is the basis for food purchase. or consumer acceptability: it should fit into a dietary culture and provide accessibility of food supplies. See G.C n° 12 para. 14. 23. 2004(2) SCC 476. Writ Petition (Civil) 196 presented in 2001 through a PIL and based on Article 21 of the Indian Constitution. The petition focuses on the general need to uphold the right to food, especially the distribution of food to areas where starvation deaths were occurring in India. 25. Interim orders are tools for prompt action in order to stop a violation and to hold governments accountable. They are applicable during the duration of the case and can 24. Some mentions also relate to the right to work. be incorporated in the final judgment. 60 Chapter IV Empowering the Poor Through Human Rights Litigation 16] Certain cases have provided clarification in relation to the fields of technology, agriculture, environmental sciences, physical accessibility. The Argentinean Court ordered that health, food safety and social sciences among others. an ill and highly vulnerable person suffering from cancer be included within a food plan.26 However, in the case C.M.D. y otros c. GCBA27 dealing with the arbitrary exclusion of a woman and her children from a food programme, the Argentinean Court ruled against the petitioner and did not 4. Duties of equal protection accept her inscription in an alternative food programme, and non-discrimination instead ordering that the petitioner and her children be provided with adequate food as a temporary solution against malnutrition. A similar decision was given in India in the 19] The implementation of inclusive food strategies requires above mentioned case People’s Union for Civil Liberties the integration of the PANTHER principles, in particular (PUCL) v. Union of India, in which the Court ordered an the principle and right of non-discrimination and equal increase in the number of centres supplying food to children protection.31 Even in situations where food is made available, (Agawandi Centers (AWCS)) within three months following discriminatory policies, plans and distribution systems can the decision.28 completely undermine the right to food. Indeed, equal access to food should also be guaranteed through access to 17] In ruling T-602 of 200329 related to the right to food land, property, credit and technology. Discrimination can be for displaced children, the Colombian Constitutional Court disguised in a variety of ways, for example: discrimination ordered the protection of a displaced and old woman, mother by law in which the poor or vulnerable people and their of two children. The Court had studied the entire system rights to food are not recognized by the legal framework; for protecting displaced populations and cited programmes, discrimination as a cause and consequence of ancient projects, rural plans, subsidies and food security initiatives cultural patterns which sometimes exclude women or groups to protect victims of situations of displacement. The Court of the population from access to a certain right; forms of insisted upon economic accessibility, stressing that financial discrimination including exclusion by bad administration, the supports are essential to help people escape from poverty, holding of stock surplus, or the exclusion of sections of the and decided that the public policy for displacement was not population through marketing strategies. appropriate. The Court decided that the right to food was part of the right of an adequate standard of living and ordered the 20] In addition, a gender approach to food is crucial. implementation of an integral food programme for displaced Inadequate food for women, especially pregnant women, children.30 The importance of this decision lies in the fact that as well as their exclusion from production processes is a the Court ordered the authorities to include the petitioners violation of their right. Voluntary Guideline 8.6 explicitly within a ‘productive, integral and viable’ food security plan mentions the principle of equal access by women to within the following six months of the decision and to cover productive resources, stating that: “States should promote its expenses. women’s full and equal participation in the economy and, for this purpose, introduce, where it does not exist, and implement 18] As noted above, two concepts of long-term maintenance gender sensitive legislation providing women with the right to relate to the immediate duties of states: the availability inherit and possess land and other property. States should also of food, which relates to the possibility of feeding oneself provide women with secure and equal access to, control over, directly from natural resources and productive land, as well and benefits from productive resources, including credit, land, as the production, distribution and market systems which water and appropriate technologies”.32 place the food where it is needed, and sustainability, which relates to the long-term availability and existence of food between generations and to food security. Guaranteeing the sustainability of the food produced and consumed requires the full utilization of a wide and complex array of knowledge in 26. Buenos Aires Administrative Court n° 4, Gonzalez Rayco, Artidoro c. GCBA s. amparo, 05/19/2005 s. de amparo, Juzgado Contencioso Administrativo y Tributario n° 3 Buenos Aires 11/03/03. 27. S/ de amparo, Juzgado Contencioso Administrativo y Tributario n° 3 Buenos Aires 31. PANTHER (principles) is an aide-mémoire formulated by FAO, which stands for the human 11/03/03.The petitioner was excluded from the food programme ‘Vale Ciudad’. Due to rights principles of Participation, Accountability, Nondiscrimination, Transparency, this arbitrary exclusion, her children suffered notable weight loss and were treated in a Human dignity, Empowerment and Rule of law. A deliberate application of these hospital for malnutrition. The Court ordered that she be provided with packages of food, principles allows development planners to design integrated, holistic and targeted but stated that she could not legitimately be inscribed in a food programme. strategies of empowerment, equality and inclusion, to redress human rights violation and advance accountability processes. 28. See op.cit. par. 14. 32. Supra notes 13 and 14,Voluntary Guideline 8.6. This gendered approach to food security 29. Colombian Constitutional Court Ruling T-602 of 2003, Ana Zárate de Bernal c. Red de has been incorporated for example in Article 15 of the recent Protocol to the African Solidaridad Social y INURBE. Charter on Human and Peoples’ rights on the Rights of Women in Africa, which states that in the framework of the right to food security, states should: (a) provide women 30. See also the joint survey undertaken by the World Food Programme (WFP) and ICRC, with access to clean drinking water, sources of domestic fuel, land, and the means of Identifying Food and non food needs of the internally displaced in Colombia, 27 December producing nutritious food; and (b) establish adequate systems of supply and storage to 2004 available at: www.reliefweb.int/library/documents/2004/wfp-col-27dec.pdf ensure food security. 61 Empowering the Poor Through Human Rights Litigation Chapter IV 5. Voluntary Guidelines to empowering communities to help them understand what support the progressive the right to food means and constitutes. Trained state authorities can improve awareness and understanding realization of the right to of the necessity of providing legal empowerment of adequate food in the context marginalized and poor people in this process. The use of of national food security – accurate education materials combined with real-school Right to Food Guidelines feeding programmes is helpful. (2) Information and assessment. This relates to the identification of right-holders including people living in 21] The Voluntary Guidelines to support the progressive poverty, children, women (especially pregnant women), realization of the right to adequate food in the context older persons, minorities, people with disabilities among of national food security (Right to Food Guidelines)33 are many others. In relation to women and children, special one of the first intergovernmental documents dealing with the attention should be given to cultural practices which operationalization of an ESC right. Although the Right to Food place them in a position of less concern (eating last, Guidelines are adopted by states and are not compulsory, they eating leftovers, or going without). have an authoritative character and can be effective tools (3) Access to justice. Access to human rights claim for a large range of practitioners. They focus on the effective mechanisms combined with monitoring mechanisms is implementation of ESC rights as human rights in equal crucial at the national and international level. Specific standing with civil and political rights. They evoke the access legislation devoted to this goal and in accordance with to productive resources as well as assistance for those who are the Right to Food Guidelines will frame the practical not able to access or provide from themselves. These guidelines application of the Right to Adequate Food. Indeed, the also constitute a resource for legislative authorities and public elaboration of comprehensive model or framework laws policies since they translate a right into recommendations and in accordance with the Right to Food Guidelines, as make request the development of institutional and legislative envisaged by UN General Comment n° 12, constitutes a frameworks. They also constitute a valuable advocacy and priority for clarification of what level of responsibilities monitoring tool for use by civil society. derive from this right. (4) Effective action: strategy and coordination. 22] The Right to Food Guidelines contain nineteen Comprehensive actions including a National Food provisions34 which incorporate much of the content of General Strategy, as well as definition and selection of Comment n° 12. However, they include additional provisions benchmarks and mechanisms to ensure accountability, that should be taken into account by Members States, NGOs comprise the basic legal framework for a compulsory and other actors responsible for the advancement of the right to food strategy. But achieving food security right to food at the national level. Despite their non-binding goes beyond this: it relates also to economic growth, nature, the Right to Food Guidelines mention some state addressing inequalities, education, natural disasters, obligations contained in the ICESCR which are binding.35 agricultural production and distribution, extreme poverty and lack of good governance among many other factors. 23] Supported by the principle of interdependency of human For this reason, coordination among state authorities rights, the Right to Food Guidelines propose five steps for and civil society, including the private sector combined implementing the right to food. with access to markets, rehabilitation of agriculture (off- farm opportunities including employment opportunities) (1) Advocacy and training. Advocacy empowers populations and good governance are core elements for an effective to claim their rights as well as access to legal mechanisms: and comprehensive strategy. it provides visibility and gives a voice to the poor. The (5) Durable impact: applying rights-based monitoring poor already exist within the legal system and can become is a determinant factor for all policies related to the subjects of entitlements rather than victims. In addition, realization of the right to food at the national level. capacity-building provided by NGOs, media and other Institutional capacity, budgeting and human rights stakeholders make available tools and knowledge aimed at based indicators are crucial, such as the ones developed by OHCHR in collaboration with other actors and UN Agencies as well as the right to food checklist recently 33. Adopted during the 127 th session of the FAO Council in November 2004. developed by FAO.36 34. The nineteen guidelines deal with the following thematic and policy areas: (1) Democracy, good governance, human rights and the rule of law; (2) Economic development policies; (3) Strategies; (4) Market systems; (5) Institutions; (6) Stakeholders; (7) Legal frameworks; (8) Access to resources and assets, (8a) Labour, (8b) Land, (8c) Water, 24] NGOs are well-placed to monitor the implementation (8d) Genetic resources for food and agriculture, (8e) Sustainability, (8f) Services; (9) Food safety and consumer protection; (10) Nutrition; (11) Education and awareness of the right to food at the local level. NGOs have provided raising; (12) National financial resources; (13) Support for vulnerable groups; (14) Safety nets; (15) International food aid; (16) Natural and human-made disasters; (17) their own methodologies for assessing the impact of the Monitoring, indicators and benchmarks; (18) National human rights institutions; and (19) International dimension. 35. See for example the publication providing some guidance for indigenous peoples in www. 36. See for example: www.fao.org/docrep/011/i0349e/i0349e00.htm; www.fao.org/docrep/011/ fao.org/righttofood/publi09/rtf_guidelines.pdf i0351e/i0351e00.htm; www.fao.org/righttofood/publi08/assessment_guide.pdf 62 Chapter IV Empowering the Poor Through Human Rights Litigation implementation of the right to food, as in the cases of India and Brazil. Examples of domestic laws on the right to food 25] Budget monitoring by NGOs has been particularly important in relation to this right. In India, for example, The Indonesia Food Act n° 7 of 1996 was developed with the support of the Development Law Service of the FAO. It contains budgeting mechanisms have been implemented following the fourteen chapters including provisions related to food quality orders of the Supreme Court of India. Within the framework and nutrition, food production and processing, institutional of the Right to Food campaign, Commissioners involved responsibilities and community participation. NGOs in the budget-planning processes to recalculate the In Latin America, Guatemala was the first country to create financial allocation and include additional provisions in the a domestic law on the right to food. The law entitled ‘Ley case of children under the age of six months. Some of these del Sistema Nacional de Seguridad Alimentaria y Nutricional (SINASAN)’ was jointly drafted in 2005 with national provisions include: advocating advancement of legislation authorities, representatives of NGOs, and representatives of on the prevention of promotion of breast milk substitutes, International Organizations. In its Article 5, the law creates a promotion of breast-feeding programmes, implementation of National Council for Food and Nutritional Security (CONASAN) facilities for women especially from rural areas among others. in charge of analysis and recommendations for policies and strategies related to food security. Mozambique is willing to present a project of law related to food in 2010. 26] In Brazil, NGOs have played a crucial role in assisting the National Food and Nutrition Security Council (CONSEA) of In Brazil, Federal law n° 11346 from 15 September, 2006, created the National System for Food and Nutrition Security Brazil with the identification of policy priority areas. CONSEA as well as the National Council on Food and Nutrition Security started by listing programmes with an activity related to (CONSEA), which monitors Brazilian policy on food and nutrition food security, for example, the Cash Transfers of the Bolsa de security and is composed of thirty-six representatives of civil Familia programme dedicated for poor households; once the society alongside representatives of state ministers. priorities were identified the related budget was established.37 In Quebec, the Act to Combat Poverty and Exclusion of 2002 included mention of assisting dignified access, for persons living in poverty, to a ‘food supply that is both sufficient and nutritious, at reasonable costs, and simple and reliable information enabling those persons to make enlightened dietary choices’.1 This national strategy aims to progressively 6. Developing legislative reduce poverty in Quebec, with the target of having the least frameworks for recognizing number of persons living in poverty among industrialized nations by 2013. and implementing the right A number of other initiatives are developing legal frameworks to food as a justiciable right for the right to food including the Regional Programme on Food Security for Centro America (PRESANCA) – an initiative supported by the European Union, which aims to strengthen 27] National strategies to build upon the right to food are capacities for food security. necessary in order to increase public awareness and combat hunger and starvation at the local level. A framework law is 1. See Act to Combat Poverty and Social Exclusion, Article 9 related to Strengthening consequently indispensable. For this reason, several initiatives of social and economic safety net, 2002, c. 61, s. 9. have been undertaken in order to build a framework law to improve justiciability and advance the right to food security. 28] Before designing a framework law, it is necessary to identify vulnerable groups and the location of food insecurity, and then, to analyze the context and reasons for food insecurity in order to understand the existing organizational structure and its capacity to coordinate a future food security policy in the economic context of the country. This assessment is crucial for deciding whether to re-design the existing legal food security legal framework or build a new legal framework. Once this evaluation has been undertaken, the design of a holistic legal framework should include the following elements:38 37. See chapter 1 and the summary on the programme Bolsa Familia. The amount of US$16.3 billion was allocated for the following seventeen priorities: (1) Food marketing and storage; (2) Food access; (3) Structural interventions (employment, small-scale • focus on vulnerable groups production in poor communities, small businesses); (4) Smallholder agriculture; (5) School feeding; (6) Healthy foods promotion, surveillance and healthcare; (7) • respect and incorporation of international human rights Biodiversity and traditional populations; (8) Collection and processing of recyclable waste in rural and urban areas; (9) Public policies management (monitoring, mobilization obligations related to the right to food and education activities); (10) Water resources and infrastructure for food security; (11) Fisheries and aquaculture; (12) Agrarian reform, credit and conservation; (13) Food and nutrition security of afro-Brazilian populations; (14) Food and nutrition security of indigenous populations; (15) Potable water and sanitation; (16) Income transfers; and 38. See in particular: www.fao.org/righttofood/publi09/guide_on_legislating.pdf , pages 59 (17) Food and nutrition security in semi-arid regions. and 60. 63 Empowering the Poor Through Human Rights Litigation Chapter IV • creation of a National Strategy or Plan of Action on food of the wide range of actors and activities linked to the security right to adequate food should be seen as an opportunity • incorporation of monitoring mechanisms for progressive for advancing its justiciability. realization of the right • Increase sensitivity on the real situations regarding the • strengthening of institutional cooperation and fulfilment of the right to adequate food at a short and participation, and large-scale • inclusion of recourse mechanisms. • Support judges in giving an impulse to the implementation of the right to food despite the lack of its recognition as an independent right in national frameworks. • Enhance the participation of civil society in the monitoring of the right to adequate food. 7. Strategies for justiciability 29] • Develop the judicial protection of all components of the right to adequate food • Approach the justiciability of the right to adequate food and include the participation of all actors involved in its procurement, regulation and monitoring. The complexity Exercises 1) What is the difference between the fundamental right to be free from hunger and the right to adequate food? 2) How can the overall economic gains from trade benefit those who are most likely to be suffering from food insecurity? 3) Please kindly list the lasws and strategies related to the recognition and implementation of the right to food and food security at the national level. Analyse the gaps and obstacles. Advance possible solutions. 64 housing The right to adequate housing – 65 – 1. Definition of the right to adequate housing – 66 – 2. National Improvements on the definition of the right to adequate housing – 67 – 3. Minimum core obligations related to the right to adequate housing – 68 – 4. State obligations related to the right to housing a. Obligation to respect b. Obligation to protect c. Obligation to fulfil – 70 – 5. Forced evictions – 74 – 6. Duties of equal protection and non-discrimination – 75 – 7. The role of NGOs in advancing the right to housing Chapter IV Empowering the Poor Through Human Rights Litigation © UNESCO/Roger Dominique The right to adequate housing Adequate housing is not only satisfied by providing shelter and security of tenure but goes beyond. It entails the necessity of fulfilling psychological and social needs in order to allow each individual to be part of a space in which he could enjoy privacy and at the same time be able to build a family and a communal life. However, migration, conflicts and displacement, often result in a widespread violation of the right to adequate housing. They create a situation in which informal settlements such as slums and ghettos become the permanent resident of squatters. The homeless are therefore targets of vast vulnerability and exclusion. This chapter aims at analyzing the core elements of the right to adequate housing. It gives particular attention to the most vulnerable and marginalized people of society as well as the necessity of mainstreaming gender into housing issues. The chapter links the right to adequate housing to the right to safe drinking water and sanitation and the right to education. It provides specific guidelines for advocacy and justiciability. 2] Moreover a broad definition of the right to adequate 1. Definition housing comprises additional provisions of the Global Strategy of Shelter adopted by the General Assembly in 2000,3 which 1] The right to adequate housing has a solid conceptual basis states that adequate housing also includes adequate privacy, provided by international and national legal frameworks. The space, security, lightning and ventilation, basic structure and Universal Declaration of Human Rights (UDHR) notably adequate location at a ‘reasonable cost’. The WHO Health defines the right to housing as a part of the right to a Principles of Housing as well as UN Habitat through its standard of living, and in relation to other rights such as Global Campaign for Secure Tenure has provided clarifications. food, clothing, medical care and necessary social services.1 Additionally, NGOs such as the Centre on Housing Rights and UN treaties have developed this definition and included Evictions (COHRE), the International Union of Tenants (IUT), particular provisions in relation to the right to housing and People’s Movement for Human Rights Learning (PDHRE), the prohibition of all forms of discrimination, and specific Amnesty International and the Centre for Equality Rights considerations related to racial and ethnic minorities, in Accommodation (CERA), among others, have developed refugees, children, women, migrants and workers, persons important materials related to this right.4 with disabilities and indigenous people among others.2 3] The most comprehensive provision on the right to adequate 1. UDHR, Article 25.1 states that: ‘Everyone has the right to a standard of living adequate housing is provided by Article 11.1 of the International for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of Covenant on Economic, Social and Cultural Rights (ICESCR), unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.’ which states that: ‘The States Parties to the present Covenant 2. Among the UN Treaties we can find: Article 21 of the Convention relating to the status recognize the right of everyone to an adequate standard of of refugees (1951); Article 5(e)(iii) Convention on the Elimination of all forms of Racial Discrimination (1965); Article 14.2(h) Convention on the Elimination of All Forms of living for himself and his family, including adequate food, Discrimination against Women (1979); Article 16.1 and Article 27.3 of the Convention on the Rights of The Child (1989); Article 43.1 of the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families (1990); Article 2, Article 5.3, Article 9.1(a), Article 19(a), Article 22.1, Article 28.1 and Article 3. Resolution A/RES/43/181 20 December 1988 stated in its Article 2 that the main 28.2(d) of the Convention on The Rights of Persons with Disabilities (2008); Article 10, objective of the strategy was: ‘to facilitate adequate shelter for all by the year 2000, Article 21.1, Article 23, Article 26, Article 27, Articles 28 and Article 32 of the Declaration that the main focus should therefore be on improving the situation of the disadvantaged on the Rights of Indigenous Peoples (2007); Article 5(b) of the International Labour and the poor, and that the following fundamental objectives and principles should form Organisation (ILO) Convention 161 concerning Occupational Health Services (1985); the basis of the Strategy’. Article 2 and Article 5.2 of the International Labour Organisation (ILO) Convention 117 Concerning Basic Aims And Standards Of Social Policy (1962); Article 88.1 of the 4. See for example: Litigating Economic, Social and Cultural Rights: achievements, Challenges International Labour Organisation (ILO) Convention 110 Concerning Conditions of and strategies, Featuring 21 case studies, COHRE, Geneva, Switzerland , 2003; Litigating Employment of Plantation Workers (1958) and International Labour Organisation (ILO) Economic, Social and cultural rights: legal practitioners Dossier, COHRE, Geneva, Recommendation 115 concerning Workers’ Housing (1961) among others. Switzerland, December 2006. 65 Empowering the Poor Through Human Rights Litigation Chapter IV clothing and housing, and to the continuous improvement of and steps towards improvement in levels of adequacy. In living conditions. The States Parties will take appropriate steps this sense, Habitat Agenda7 in Article 39 has stated that to ensure the realization of this right, recognizing to this effect progressivity means improving dwellings and neighborhoods, the essential importance of international cooperation based on as well as improving living and working conditions on an free consent.’ equitable and sustainable basis, so that everyone has access to adequate shelter that is healthy, safe, secure, accessible 4] The Committee on Economic, Social and Cultural Rights and affordable. This also includes basic services, facilities and (CESCR) has provided clarifications and further elaborations in amenities, and the enjoyment of freedom from discrimination General Comment (GC) n° 4 and, in particular, developments in housing, as well as legal security of tenure. However, certain related to forced evictions in GC n° 7. According to the CESCR, State obligations related to housing rights have an immediate the right to housing has to be interpreted in the light of effect, including the obligations to respect and to protect current conditions, which means that it should be interpreted to right generally and the obligation to respect, protect and in a broad sense and goes beyond having a roof over one’s fulfill the right without discrimination (see section 4 below). head. Rather, it constitutes a right to live in security, peace and dignity5 and applies to everyone.6 The CESCR definition therefore highlights two particular elements: the right to housing cannot be subject to any form of discrimination and this is intimately linked to human dignity. 2. National improvements in the definition of the right to 5] The right to adequate housing underlines the allied element adequate housing of ‘adequacy’; this means that it is not sufficient to implement the right to housing if this does not include adequate shelter, adequate services and all related factors and conditions that 8] National developments on adequacy have defined the will permit the respect of human dignity. Adequacy reveals elements which require advancement in order to realize the and is therefore measured by economic, social, cultural and right. In the Grootboom case, the South African Constitutional environmental factors. Nevertheless, the Committee has Court proposed that ‘for a person to have access to adequate proposed a series of elements which constitute the core housing all of these conditions need to be met: there must be elements of adequacy: legal security of tenure, availability of land, services, a dwelling’.8 It has also underlined that access services, material and infrastructure, affordability, habitability, to housing should be ensured for all, especially for the poor appropriate location and cultural adequacy. These elements who ‘are particularly vulnerable and [whose] needs require will be explained in detail in the following section. special attention’.9 Nevertheless, no specification related to quality has been provided for adequacy. 6] Adequate housing cannot consequently be viewed in isolation. It is intimately linked to civil and political rights, 9] The South African Constitutional Court has therefore as well as economic, social and cultural rights, such as the underlined three key elements relating to the right to housing, right of freedom of opinion and expression, the right of consisting of: the obligation to ‘take reasonable legislative association, the right to take part in cultural life, the right and other measures’ (meaning coherent and comprehensive to take part in public decision-making and even the right programmes – also balanced and flexible policies to provide to health. The WHO Health Principles of Housing have effective remedies for homelessness); ‘the achievement of therefore underlined the close connectivity between health the progressive realisation of the right’, and both ‘within and housing, drawing attention to the fact that adequate available resources’. The Court of South Africa has also tied housing is also healthy housing. Housing should, in this sense, the right to land to the right to adequate housing, stating in include protection against communicable diseases through the case Port Elizabeth Municipality v. Various Occupiers10 water and sanitary supplies, reduction of psychological and that ‘the stronger the right to land, the greater the prospect social stress including individual and family security, privacy, of a secure home’. access to comfort, recreation and amenities against noise. The right to adequate housing thus incorporates individual, 10] In India, the concept of adequacy is also linked to the family and social dimensions. concept of a ‘reasonable residence’ and includes all means 7] The right to adequate housing has to be developed 7. Habitat Agenda derived from the United Nations Conference on Human Settlements progressively. This does not entail a larger number of (Habitat II), 3–14 June, 1996 (UN Doc. A/Conf. 165/14, 14 June, 1996). Article 3 of the Habitat Agenda states ‘access to safe and healthy shelter and basic services is essential people having houses; rather it is linked to the progressive to a person’s physical, psychological, social and economic well-being and should be a fundamental part of our urgent actions for the more than one billion people without development of the minimum core of the right to housing decent living conditions’. 8. See Government of the Republic of South Africa & Ors v Grootboom & Ors 2000 (11) BCLR 1169. (CC), para. 35 (Grootboom case). 5. GC n° 4 para. 7. 9. See idem. para. 36. 6. GC n° 4 para. 6. 10. 2004, para. 19. 66 Chapter IV Empowering the Poor Through Human Rights Litigation of having a decent existence.11 Furthermore, adequacy of people are the most excluded and marginalized, their situation shelter has been also defined in the case Shantistar Builders becomes even more vulnerable during catastrophes.14 v. Narayan Khimalal Totame12 as a suitable accommodation which would allow a person to develop the physical, mental 15] Adequate housing should therefore comprise the core and intellectual and other aspects of his development. The elements determined in GC n° 4 by the CESCR, defined as such: Court clearly stated that: a. Legal security of tenure: consisting of legal protection The difference between the need of an animal and a human and security against forced evictions, owner-occupation, being for shelter has to be kept in view. For the animal it is harassment and other types of features including public and the bare protection of the body, for a human being it has to private rental accommodation, cooperative housing, lease, be a suitable accommodation, which would allow him to grow emergency housing and informal settlements. in every aspect – physical, mental and intellectual b. Availability of services, material and infrastructure: 11] In Chamelli Singh v. State of U.P., the Indian Supreme these are related to health, security, comfort and nutrition. Court additionally stated that adequate housing should Availability includes access to safe drinking water and develop the spiritual aspects of a human being, and has sanitation, energy for cooking, washing facilities, heating provided elements to define the right to shelter. Shelter and lighting, food storage, refuse disposal, drainage and comprises an adequate living space, safe and decent emergency services. structure, clean and decent surroundings, sufficient light, pure air and water, electricity and sanitation, as well as other c. Affordability of housing: this relates to housing prices civic services such as roads. It underlined that this does not commensurate with income levels. The committee has invited constitute only the right to a roof, but also infrastructure States to create incentives (for example, subsides) to ensure that enable the development of a person as a cultural beings. affordability of housing. A year later, the Court went even further including the right to residence and settlement as part of the definition of the d. Habitability: this relates to the structural capacity of right.13 housing to ensure the physical safety of the occupants and provide protection from cold, heat, damp, wind, rain etc. 12] The Canadian Court has stated in the case The Corporation The CESCR also encourages Members States to apply the of the City of Victoria v. Natalie Adams and Others that the Health Principles of Housing prepared by WHO as well as the right to shelter is a component of the right to life. Global Strategy for Shelter (2000). In the Delfino Case, the Argentinean Court15 analysed the conditions of a private hostel 13] In order to define the elements of adequacy, it is necessary on the basis of habitability, and asked the local authorities to to define the core elements proposed by CESCR so as to clarify provide an adequate shelter for homeless families.16 exactly what the ‘minimum core of adequate housing’ means. e. Accessibility: this is especially applicable for disadvantaged groups, such as children, and, in particular, people with disabilities, HIV-positive individuals, older persons, mentally ill persons, and victims of natural disasters.17 3. Minimum core obligations related to the right to f. Appropriate location: this relates to the availability of housing facilities relating to employment, schools, healthcare services and childcare centres. It also includes the avoidance of housing persons in polluted areas. 14] The definition of the core elements of the right to adequate housing by the CESCR has permitted the building of a bulwark g. Cultural adequacy: this relates to the respect of the against violations. Indeed, the core elements, for example, expression of cultural identity, the respect of cultural diversity habitability, have been crucial when analysing policies and which should be permitted by the type of structure and the plans related to housing in the event of natural disasters or materials used for its construction regardless of the economic situations of internal displacement. The following elements development of the country. have been also crucial to build safeguarding provisions for 14. For more information on the effects of adequate housing for women, see the report on vulnerable people, creating a basis for gender initiatives and Women and Adequate Housing, UN Doc. E/CN.4/2006/118, paras 58–65, by the Special Rapporteur on the right to adequate housing, Miloon Kothari. protecting people with disabilities. Since these groups of 15. Jorge Alberto Delfino and Others v. GCBA (amparo), 6 November 2004, Buenos Aires Administrative Court of Appeals, Chamber 1. 11. See also Chameli Singh v. State of U.P. (1996) 2 SCC 549, Nawab Khan’s case (Ahmedabad 16. See also Victor Perez y otros c/GCBA. Cam CAyT Sala I. 25 January 2001. Municipal Corporation v. Nawab Khan Gulab Khan & Ors (1997) 11 SCC 121) among others. 17. Accessibility in the Grootbomm case was defined by the Court as comprising legal, 12. (1990) 1 SCC 520. administrative, operational and financial hurdles, which should be examined and, where possible, lowered over time. Accessibility means ‘for a larger and wider range of people’ 13. PC Gupta v. State of Gujarat and Ors (1994). (Grootboom para. 45). 67 Empowering the Poor Through Human Rights Litigation Chapter IV 16] In terms of services, materials and infrastructure, CESCR to the obligation of respect, the governments shall refrain suggests that these include access to clean drinking water, from interfering in the enjoyment of the right to adequate energy for cooking, heating, lighting, sanitation and washing housing, and shall facilitate the enjoyment of the right.19 (For facilities, food storage facilities, refuse disposal, site drainage example, they should refrain from forced evictions.) and emergency services. 17] In addition to those elements, the former Special a. Obligation to respect Rapporteur for adequate housing18 has defined nine additional elements consisting of: access to land, water 21] The obligation to respect requires that States do and other natural resources; freedom from dispossession, not interfere directly or indirectly with the enjoyment damage and destruction; access to information; participation; of economic or social rights. This obligation is essentially resettlement, restitution, compensation, non-refoulement and negative in nature, meaning that the State must not take any return; privacy and security; access to remedies; education action that diminishes the enjoyment of any given economic and empowerment and freedom from violence against women. or social right, unless there are justifications for doing so. The obligation to respect is of immediate effect (e.g., upon 18] In addition to these elements, the right to adequate ratification of the ICESCR) and not subject to progressive housing in national case law comprises an element known as realization. the ‘housing ladder’. This consists of the degree of continued guaranteed housing, starting from emergency housing, 22] In the case SERAC and CESR v. Nigeria, the government which usually should be for a short period of time only, to and its agents failed to ensure the respect of the right to transitional and communal housing, and finally social or housing of the Ogoni communities by destroying the Ogoni independent housing. Several examples of the importance of houses and villages and the use of the security forces. The this concept have be seen at the national level: in the case African Commission affirmed the violation of the right to City Cape Town v. Rudolph and Others, citizens of Valhalla adequate housing and stated that the obligation to respect Park were placed on the housing waiting list for more than also consisted of respect of the right to housing of rights- ten years without an effective decision being made by the holders, including the free use of resources to satisfy their municipality; here, the housing ladder provided an important needs.20 State obligation thus required abstaining from argument for analysis of an alleged violation of the right. ‘carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual’.21 19] Another exemplary case is provided by ruling T-025 of 2004 of the Constitutional Court of Colombia, which 23] In relation to the obligation to facilitate the enjoyment encompassed 108 files of 1150 displaced families who asked of the right, the cases Jaftha v. Shoeman and others and the Court for relief of their housing needs and protection of Van Rooyen v. Stoltz and others22, which dealt with the their land. The displaced families argued that due to the forced existence of an item of legislation in South Africa including displacement their children did not have food, education and a provision authorizing the sale of a person’s home without health. The Colombian Constitutional Court judged that the judicial supervision in order to cover a debt, were also, in the policies for displaced persons had not produced results and view of the South African CC, a violation of this obligation to had not provided adequate answers to this situation, which respect. Other examples of obligation to respect are provided was termed by the Court an ‘unconstitutional state of affairs’. in the case Despatch Municipality v. Sunridge Estate and The Court thus decided in favour of the applicants. The Development Corporation,23 in which the High Court of housing ladder provided a tool for measuring the adequacy of South Africa overturned a section of the Prevention of illegal the answers given by the government, and gave the Court an Squatting Act. opportunity to fix a period of time for implementation of the Action Plan and Programme for displaced families. 24] The obligation not to prosecute occupants of state-owned lands forms part of the obligation to respect. As affirmed in the Argentinean case Bermejo,24 criminal prosecution of homeless persons with irregular housing is a violation of the right to 4. StateS obligations related to the right to housing 19. General Comment n° 19 para. 43. 20. Ogoni case para. 45. 21. Ogoni case para. 61. 20] Following the tripartite typology of state obligations 22. Jaftha v. Schoeman and Others and Van Rooyen v. Stoltz and Others (CCT74/03) [2004] given in Chapter 3, the obligations deriving from the right to ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC) (8 October 2004). adequate housing could be defined as the following: in relation 23. 1997 4 SA 596 (SE). 24. Bermejo case, Buenos Aires National Criminal Trial Court n° 11, 2004. For more information on this case see: UN-Habitat, Forced eviction: towards solutions, First report of the Advisory Group on forced Evictions to the Executive Director of UN-Habitat, 2005, 18. E/CN.4/2006/118 para. 11. pp. 58–65. 68 Chapter IV Empowering the Poor Through Human Rights Litigation housing and will also increase poverty levels.25 Finally, States inter alia, adopting the necessary and effective legislative, should refrain from the eviction of homeless persons even regulatory and other measures to restrain such third parties in cases where such persons are living in public or private and non-State actors from interfering or otherwise violating properties. Eviction is incompatible with the requirements of economic and social rights; investigating, prosecuting or the Covenant and can only be justified in certain exceptional otherwise holding accountable those entities that violated circumstances, which will elaborated below. economic and social rights; and providing remedies to victims of such violations. The obligation to respect is of immediate 25. As stated in Pottinger v. City of Miami,26 there is effect (e.g., upon ratification of the ICESCR) and not subject sometimes an inevitable conflict between the need of to progressive realization. homeless individuals to perform essential, life-sustaining acts in public and the responsibility of the government to maintain 27] The SERAC case mentioned above also provides an orderly, aesthetically pleasing public parks and streets. example of the necessity to protect the right to housing from However, the government has been restrained and ordered interference by third parties – in this case an oil company not to evict people living near the railways in Kenya in the that provoked contamination of soil, water and air, as well as cases of Nidery and Others v. Kenya Railways Corporation or the destruction of homes. Obligation to protect also entails Kirwa and Others v. Kenya Railways Corporation; or living the obligation to provide alternative accommodation for in parks in the Canadian case of The Corporation of the City homeless persons in the case of forced eviction. of Victoria v. Natalie Adams and Others; or in the case of Bangladesh, any informal settlement in the case of ASK (Ain 28] Other decisions have acted to protected women in o Salish Kendra) v. Government of Bangladesh,27 or slums.28 particular, applying a gender perspective to conflict situations and the impact of violence on displaced women29 or displaced children.30 UN-Habitat along with several NGOs, such as COHRE, the c. Obligation to fulfil International Union of Tenants (IUT), People’s Movement for Human Rights Learning (PDHRE), Amnesty International 29] Under the obligation to fulfil, States are obliged to and CARE, among others, are monitoring the effective take steps to the maximum of their available resources to implementation of housing policies and participating in the progressively realize the rights contained in the ICESCR. administration of funds, in order to ensure compliance with the decisions. (For example, for the NGO monitoring of the Bermejo This obligation can be disaggregated into the obligations case, see UN-Habitat, Forced eviction: towards solutions, to facilitate, promote and provide. The obligation to First report of the Advisory Group on forced Evictions to the facilitate requires States to take positive measures to assist Executive Director of UN-Habitat, 2005; for the situation of individuals and communities to enjoy the right in question. slums, see the last report of Amnesty International on Nairobi, Insecurity and Indignity: Women’s experiences in the slums The obligation to promote obliges the State to take steps of Nairobi, Kenya, 2010, report released within the framework to ensure that there is appropriate education concerning the of the campaign ‘Demand Dignity’). right in question. States are also obliged to fulfil (provide) the right in question when individuals or a group are unable, for reasons beyond their control, to realize that right themselves by the means at their disposal. b. Obligation to protect 30] The obligation to fulfil demands that the governments 26] The obligation to protect requires States to prevent adopt measures aimed at the full realization of the right third parties or non-State actors or other States, including consisting of plans and national housing strategies, inter-governmental organizations such as the World Bank, legislation, compensatory measures31 and ‘whatever steps as from violating the enjoyment of economic and social rights. necessary’32 to provide relief. It is important to emphasize Third parties or non-State actors include individuals, groups, the point that States should prepare and implement extensive landlords, corporations, other States or other entities as well and inclusive consultations with all civil society, including as agents acting under their authority. The obligation includes, and especially homeless persons and all affected, in order to provide an effective response to housing needs.33 Broad 25. A contrary situation is presented in the case of the Philippines, Simon vs. Commission on Human Rights 229 SCRA 117 1994, in which the Supreme Court refused a temporary coordination is required to ensure holistic solutions. injunction ordered by the Philippine Commission on Human Rights, in relation to a demolition of stalls and shanties. The Supreme Court stated that ESC rights where not self-executing, did not accept to analyse the validity of the demolition in relation to the protection of housing rights, and refused the injunction. 29. Colombian Constitutional Court ruling T-721 of 2003. 26. 810 F. Supp. 1551 at 1554, S.D. Fla. 1992. 30. Colombian Constitutional Court ruling T-215 of 2002. 27. Supreme Court of Bangladesh, 1999. 31. GC n° 4 para. 11. 28. See last report of Amnesty International, The Unseen Majority: Nairobi’s Two Million 32. GC n° 4 para. 12. Slum Dwellers, 12 June 2009, report released in the framework of the campaign Demand Dignity, available at: www.amnesty.org/en/library/asset/AFR32/005/2009/ 33. See, for example, COHRE Report, Listening to the poor: housing rights in Nairobi, Kenya, en/3b6e7351-8e08-4b61-9d7b-6e3b86eb0057/afr320052009eng.pdf 2005. 69 Empowering the Poor Through Human Rights Litigation Chapter IV 31] National housing plans and programmes are subject to the stated that the prohibition on taking a temporary bode notion of progressive realization of the right; they should be contained in the Bylaws and operational policy constitutes an duly implemented and should provide an effective response to interference with the life, liberty and security of the person the situation. For this reason, the State should aim to provide of these homeless people. temporary shelter whenever a natural disaster or a grave situation occurs.34 These decisions imply important budgetary 35] In a recent case Budayeva and Others. v. Russia,40 and economic costs. Availability of resources cannot be an the European Court of Human Rights stated that serious excuse for not implementing a plan or programme.35 administrative flaws had prevented the implementation of land-planning and emergency relief policies, which had 32] In the groundbreaking Grootboom case, the reasonability resulted in the death of the alleged victim and injuries to his approach of the Court was applied to housing programmes: wife and members of their family. The Court concluded that the SA Court stated that a programme related to housing there had been no justification for the Russian authorities’ rights should include provisions for the poor, especially those failure to implement these policies in the hazardous area of who don’t have access to the land and for such that have no Tyrnauz, and that they had therefore failed in their duty to roof, people who are living in intolerable conditions and for establish a legislative and administrative framework. people who are in crisis because of natural disasters such as floods and fires, or because their homes are under threat of 36] The Inter-American Court of Human Rights has demolition.36 incorporated implementation of a five-year housing plan into obligations arising from the duty to make reparations, 33] Sometimes States are indirectly tied to obligations with stemming from the indemnification of a group of homeless relation to legislation that impairs the ability of persons persons in Guatemala in the case Masacre Plan de Sánchez c. to benefit from adequate housing. In Colombia, the ‘UPAC Guatemala s/ Reparaciones.41 (Unity of Constant Acquisitive Power) case37 was marked by discussions on the impact of court involvement in the financial system. After a recession and poor public policies, 800,000 debtors with repayment loans on homes found themselves unable to continue repayments, with some close to losing 5. Forced evictions their home. The Constitutional Court of Colombia (Colombian CC) ordered recalculation of the mortgages, tied the UPAC to 37] The prohibition on forced evictions derives from the inflation, and provided relief to the debtors. In addition, the element concerning security of tenure, mentioned above. Colombian CC ordered the creation of a law to regulate the The Committee has stated that ‘instances of forced evictions housing financial systems over the seven months following are prima facie incompatible with the requirements of the the decision. The ruling modified the entire Colombian system Covenant and can only be justified in the most exceptional on housing finance. circumstances and in accordance with relevant principles of international law’.42 The CESCR has dedicated G.C. n° 7 to this 34] In the Canadian case The Corporation of the City of issue. Victoria v. Natalie Adams and Others,38 the Court found the City in violation of the right to shelter under the Parks 38] For evictions to be justified under the ICESCR, they Regulation Bylaw and the Streets and Traffic Bylaw. It must (1) only be carried out in exceptional circumstances; concluded that Victoria does not have sufficient shelter spaces (2) after all feasible alternatives to eviction that address for homeless persons and that large numbers of homeless the exceptional circumstance are explored in consultation people are therefore left to seek shelter on public property. with the affected community; and (3) after due process It underlined the sensitive nature of the situation due to the protections are afforded the individual, group or community. prevalence of illness. The City had prohibited the erection There are two exceptions to this general rule. First, evictions of temporary shelters in the form of overhead protection, should never be carried out in a discriminatory manner. thereby exposing homeless people to the risk of significant Second, evictions should never render someone homeless or health problems or even death.39 For these reasons, the Court vulnerable to other human rights violations. What follows is some general language that lays the foundation for this test 34. Cases in which an order has been issued to a government to provide temporary relief as well as the precise language that establishes this test. include, among others: The Corporation of the City of Victoria v. Natalie Adams and Others; Olga Tellis And Others v. Bombay Municipal Corporation; Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another 2001(3) SA 1151; 2001(7) BCLR 652 (CC) at para. 102, Colombian ruling T-025-2004; Grootboom case para. 52. 39] General Comment n° 7 defines forced eviction as “the 35. Grootboom para. 40: the Court stated that ‘the national sphere of government must assume responsibility for ensuring that laws, policies, programs, and strategies are permanent or temporary removal against their will of adequate to meet the States 26 obligations’. 36. See Grootboom case para. 52. 37. See, for example, rulings C-383 of 1999 and C-700 of 1999. 40. 8 March 2009. 38. 2008 BCSC 1363. 41. Sentence of 19 November 2004. 39. See also the Canadian case R. v. Morgentaler, (1988] 1 S.C.R. 30. 42. General Comment n° 4 para. 18. 70 Chapter IV Empowering the Poor Through Human Rights Litigation individuals, families and/or communities from the homes 45] The UN has developed a list of principles and guidelines and/or lands which they occupy, without the provision of, that also describe states obligations related to forced and access to, appropriate forms of legal or other protection.” evictions, and which state that forced evictions should be:43 40] General Comment n° 4 requires that “notwithstanding the (a) authorized by law type of tenure, all persons should possess a degree of security (b) carried out in accordance with international human of tenure which guarantees legal protection against forced rights law eviction, harassment and other threats. States parties should (c) undertaken solely for the purpose of promoting the consequently take immediate measures aimed at conferring general welfare legal security of tenure upon those persons and households (d) reasonable and proportional currently lacking such protection, in genuine consultation (e) regulated so as to ensure full and fair compensation with affected persons and groups.” and rehabilitation, and (f) carried out in accordance with the present guidelines. 41] General Comment n° 4 states that “instances of forced eviction are prima facie incompatible with the requirements 46] In addition, the development of preventative measures is of the [International] Covenant [on Economic, Social required, in particular for disadvantaged groups such as older and Cultural Rights] and can only be justified in the most persons, children, women and persons with disabilities. exceptional circumstances, and in accordance with the relevant principles of international law.” 47] In this context, three types of obligation pertain to forced evictions, relating to the time at which the forced 42] General Comment n° 7 outlines that for an eviction to eviction is either announced or undertaken: be carried out lawfully, “States parties shall ensure, prior to carrying out any evictions, and particularly those involving large groups, that all feasible alternatives are explored in i. Prior to forced evictions, states should: consultation with the affected persons, with a view to avoiding, or at least minimizing, the need to use force.” Alternatives (a) give appropriate notice and propose plans and to eviction include onsite upgrading of informal settlements. alternatives solutions for accommodation (b) ensure effective dissemination of relevant information 43] Even if exceptional circumstances exist and there are no particularly for vulnerable groups feasible alternatives to meet those exceptional circumstances (c) allow a reasonable period of time for public review other than eviction, General Comment n° 7 requires due (d) facilitate the provision of legal, technical and other process protections. These due process protections are: (a) advice to affected persons about their rights and an opportunity for genuine consultation with those affected; options (b) adequate and reasonable notice for all affected persons (e) hold a public hearing. prior to the scheduled date of eviction; (c) information on the proposed evictions and where applicable, on the alternative purpose for which the land or housing is to be ii. During the forced eviction, authorities should: used, to be made available in reasonable time to all those affected; (d) especially where groups of people are involved, (a) respect the dignity and security of victims government officials or their representatives to be present (b) ensure the principles of proportionality, opportunity during an eviction; (e) all persons carrying out the eviction (not during religious festivities, at night or prior to to be properly identified; (f) evictions not to take place elections) and necessity of the measures in particularly bad weather or at night unless the affected (c) ensure that the process is non-discriminatory. persons consent otherwise; (g) provision of legal remedies; and (h) provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts. iii. After the forced eviction, authorities should: 44] Finally, General Comment n° 7 states that, in any event, (a) provide immediate relief or allocation (including evictions should not be undertaken in a discriminatory alternative accommodation with access to essential manner nor should they render persons homeless or good, medical services, safe drinking water and medical vulnerable to other human rights violations and that “where services) those affected are unable to provide for themselves, the State (b) ensure the participation of women, in particular, in party must take all appropriate measures, to the maximum of post-eviction processes its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the 43. See the UN Principles and Guidelines on development-based evictions and displacement, document A/HRC/4/18, 5 February 2007, Annex 1, available at: www2.ohchr.org/ case may be, is available.” english/issues/housing/docs/guidelines_en.pdf, in particular, para. 21. 71 Empowering the Poor Through Human Rights Litigation Chapter IV (c) provide an effective remedy: consisting of an allocation unlawfully occupied by them constituted a violation of Article or subsidy. 31(2) (State Parties’ duty to prevent and reduce homelessness with a view to its gradual elimination) taken together with Article E (prohibition on discrimination).47 48] Immediate obligations related to forced evictions will facilitate the enjoyment of the right for marginalized and 51] The European Court of Human Rights has found that vulnerable groups, as well as the abstention from certain forced evictions violate Article 8 (respect for the home) of the practices that could affect the realization of the right. The European Convention for the Protection of Human Rights and effective monitoring of the situation should be undertaken Fundamental Freedoms as well as Article 1 of Protocol 1 (peaceful immediately, in particular, in relation to homeless persons enjoyment of possessions) to the European Convention. In the and those subject to forced evictions. case of Selçuk and Asker v. Turkey,48 for instance, the European Court found that the destruction of the applicants’ homes by 49] Regional human rights bodies have adjudicated forced Turkish military forces was, inter alia, a violation of their rights evictions. For instance, the African Commission has addressed to respect for the home as well as a violation of guaranteeing factual situations involving forced eviction and destruction peaceful enjoyment of their possessions. of housing in the case of Social and Economic Rights Action Centre and Center for Economic and Social Rights – Nigeria 52] In 2006, the Inter-American Court dealt with forced (SERAC and CESR).44 SERAC and CESR dealt with, inter alia, evictions in Colombia and relied on similar rights as those forced evictions and housing destruction by both Government protected under the European system. In the case of the of Nigeria military troops and private security forces belonging Massacres of Ituango v. Colombia, decided on the merits by to the Shell Petroleum Development Corporation. The African the Inter-American Court of Human Rights on 1 July 2006, Commission held that these acts violated Article 14 of the dealt with the forced eviction, displacement and housing African Charter on Human and Peoples’ Rights as well as the right destruction in the villages of Ituango, La Granja and El Aro to adequate housing which, although not explicitly expressed in Colombia by paramilitaries aligned with the Government in the African Charter, is implicitly guaranteed by Articles 14, of Colombia. The Inter-American Court found that the forced 16 (protection of the best attainable state of physical and evictions and destruction of housing violated Article 11(2) mental health) and 18(1) (protection of the family). Similarly, (the right to be free from arbitrary or abusive interference in the case of Centre for Minority Rights Development with the home) and Article 21 (the right to property). (Kenya) and Minority Rights Group International on behalf In its analysis of Article 11(2), the Court relied on the of Endorois Welfare Council v. Kenya the African Commission jurisprudence of the European Court of Human Rights which stressed that instances of forced evictions were prima facie has previously held that similar rights under Article 8 of the incompatible with human rights protection afforded under the European Convention prohibited such acts. Consequently, the African Charter and other instruments, and they could only be Court held that the forced evictions and housing destruction justified in the “most exceptional circumstances” and after violated Article 11(2) read in conjunction with Article 21 of “all feasible alternatives” to eviction have been explored in the American Convention on Human Rights.49 consultation with the affected community.45 53] National decisions also provide a framework for forced 50] The European Committee of Social Rights has dealt with evictions, which still remain exceptional. This practice has forced evictions under both the original and Revised European affected the poor in particular, as in the cases Jaftha v. Social Charter. With respect to the former, in 2004, the European Schoeman50 and Van Rooyen v. Stoltz and Other,51 as well as Committee of Social Rights considered a collective complaint displaced peoples, migrants and refugees. dealing with discrimination against Roma in Greece. In its decision, the Committee held that the systematic eviction 54] In South Africa, the Case Port Elizabeth Municipality of Roma from sites or dwellings considered to be unlawfully v. Various occupiers concerned forced evictions without an occupied by them was a violation of Article 16 of the original order. The case involved an eviction application by the Port European Social Charter (the right of the family to social, Elizabeth Municipality against sixty-eight people (‘occupiers’), legal and economic protection).46 Under the Revised European who had occupied private land (most having being evicted Social Charter, the Committee found the systematic forced 47. European Committee of Social Rights, ERRC v. Italy, Collective Complaint n° 27/2004. evictions of Roma in Italy from sites or dwellings ostensibly 48. Selçuk and Asker v. Turkey, European Court of Human Rights, (1998) 26 EHRR 477. 49. Inter-American Court of Human Rights, The Massacres of Ituango v. Colombia (1 July 44. African Commission on Human and Peoples’ Rights, Decision 155/96, The Social and 2006). Economic Rights Action Center and the Center for Economic and Social Rights – Nigeria (27 May 2002), Fifteenth Annual Activity Report of the African Commission on Human and 50. These cases are particularly pertinent to protection of the poor. In the Jaftha case, Mrs Peoples’ Rights, 2001-2002, Done at the 31st Ordinary Session of the African Commission Jaftha was unemployed, in ill health (heart problems and blood pressure), poor and with held from 2nd to 16th May 2002 in Pretoria, South Africa. a low level of education. She has two children. She applied for and was granted a state housing subsidy with which she bought a home. After several payments she stopped 45. African Commission on Human and Peoples’ Rights, Decision 276/2003, Twenty-seventh paying her debt, and after being hospitalized discovered that her house was to be sold Annual Activity Report of the African Commission on Human and Peoples’ Rights in a sale of execution to pay her outstanding debt. In the Van Rooyen case, Mrs Van (2009). Rooyen was also a poor woman, without education, unemployed and with three children. She couldn’t pay her debt. 46. European Committee of Social Rights, ERRC v. Greece, Collective Complaint n°15/2003. 51. 2005(1) BCLR 78 (CC). 72 Chapter IV Empowering the Poor Through Human Rights Litigation previously from other lands) within the municipality area. 59] In the recent 2009 case, Ekurhuleni Municipality v. They had been living on the land for periods ranging from Dada NO and Others Case,54 the Supreme Court of Appeal two to eight years. The court insisted on the importance (SCA) overturned a High Court judgement. The High Court of taking into consideration the situation of the vulnerable stressed that between the period of the lodging of the eviction people subject to the eviction. After also taking into application and the date of the hearing, the municipality had consideration the discussions and mediation, as well as the remained inactivity and did not take any appropriate measures willingness of the victims to accept an alternative solution to ensure the effective location of the affected people. For and the reasonableness of an alternative accommodation, this reason, the High Court requested that the Ekurhuleni the Court did not confirm the eviction, and instead proposed Municipality purchase the land, which had been unlawfully concrete relief citing the obligation to procure alternative occupied by about seventy-six families (the occupiers). The accommodation for the poor people concerned. Supreme Court of Appeal upheld the judgement that the municipality had not provided any concrete and effective 55] In the Grootboom case, the eviction was executed with remedy to marginalized people, but stated that the decision an order, and after deliberation the court concluded that the of the High Court to order the acquisition of the land by current housing programme for providing relief to people in the municipality lay outside of the judge’s competence. The need had failed and that a reasonable part of the national Supreme Court of Appeal stressed this point in para. 14: The housing budget should be devoted to providing such relief. Judge was perhaps right in coming to the conclusion that the If this was not done, the state’s housing programme could municipality had not dealt with the problems of the informal not be considered as reasonable in relation to Section 26(2) settlement on the property with the measure of alacrity which of the SA Constitution.52 In the Grootboom case the victims could reasonably be expected of them. But that did not justify included children, therefore, the court stated that the direct his adopting a solution which was well outside the limits of obligation would apply primarily in cases where children were his powers.55 removed from their families, orphaned or abandoned. 60] This case illustrates the difficulties that poor people face 56] Subsequently, in 2004, in the case of City of Cape in accessing housing and the judicial challenges for Courts in Town v. Rudolph and Others,53 the Cape High Court listed applying the guiding principles mentioned above. the following additional relevant circumstances to be taken into account in an eviction situation in the case of ‘unlawful occupiers’: the possibility of making the land available for the occupiers, the reallocation of the occupier and the rights of children, older persons, people with disabilities and Domestic violence as a source of forced eviction households headed by women. Since forced eviction is a permanent or temporary removal of individuals against their will from the home or land they occupy, 57] In 2005, in the case of President of the Republic of South without the provision of legal or other forms of protection, we Africa and Another v. Modderklip Boerdery (Pty) Ltd and can affirm that a removal from an accommodation as a result of domestic violence can be compared to a forced eviction. A link Others, known as the Modderklip case, 40,000 people moved between domestic violence and forced eviction has been proven onto private land owned by Modderklip Boerdery (Pty) Ltd. by studies which have demonstrated that violence against women The landowner failed to seek assistance from various State is related to lack of access to housing.1 Indeed, affordability organs to assist him in enforcing the eviction order granted and quality of habitation are of crucial importance in terms of prevention of domestic violence against poor women.2 by the Pretoria High Court. The Constitutional Court decided that since the occupiers had no access to alternative land, The Case A.T. v. Hungary examined under the optional protocol to the CEDAW, has provided an important support they could legitimately occupy the property until alternative regarding the relation between housing rights and domestic accommodation was made available. violence and the state obligations derived from it. The author of the communication claimed to be a victim of severe domestic 58] Alternative accommodation is also justiciable under violence, but explained the impossibility in her case of leaving home, as Hungarian shelters were not equipped to cope with Scottish legislation. The Housing (Scotland) Act 1987 her disabled child. CEDAW (Committee on the Elimination of provides the right to two kinds of accommodation: immediate Discrimination against Women) stated that authorities should or alternative accommodation for homeless persons and long- ‘guarantee the physical and mental integrity of the author and term accommodation for some defined categories of victims. her family’, ensure that she was provided with a safe place of residence to live with her children, and provide ‘child support, legal assistance, and compensation in proportion to the physical and mental harm and the violation of her rights’. (CEDAW 52. Section 26(2) mentions that everyone has a right of access to adequate housing and Communication 2/2003, Views adopted on 26 January 2005). obliges the state to take reasonable measures, within its available resources, to make sure that this right is realized progressively. 53. The case related to the community of the Valhalla Park; the Metropolitan Municipality of the City of Cape Town brought an application for the eviction of residents of this community Some of their members were place on the housing waiting list for more than ten years; And after from accommodation owned by the City and after ten years of 54. Case n° 280/2008 (SCA) (Ekurhuleni Municipality case). waiting and the intolerable conditions of living pushed them to move into vacant land owned by the City. 55. See www.saflii.org/za/cases/ZASCA/2009/21.pdf 73 Empowering the Poor Through Human Rights Litigation Chapter IV 62] However, there is a significant gap between housing necessities and the land available to provide housing to everyone. Discrimination is also present in the form of laws, [Domestic violence as a source of forced eviction] policies, regulations, access to mortgage systems and lack of The European Court of Human Rights is a recent landmark case institutional or financial capacity, as well as failure to provide law Opuz v. Turkey in 2009 has for the first time protected the an effective response in terms of housing necessities. applicant and her mother stating that domestic violence is a form of discrimination. 63] For this reason, the Special Rapporteur developed The monitoring role of institutions is crucial in this matter. The National Centre against Violence (NCAV)3 in Mongolia and guidelines for States to ensure the prevention of discrimination NGOs in South Africa have provided transitional and emergency in relation to the right to adequate housing. They outlined shelters for poor women who are victims of violence and strategies for addressing existing obstacles linking the right their children. The choice of shelter depends on the financial to housing to the right to property, and defined guidelines to capacity of the victim and the urgency of the situation. They ensure a transitional period of three to six months during which address discrimination based on race, origin or gender. women victims receive training programmes, legal counselling and psychological support. The operational costs are sometimes 64] The right to housing is of particular importance for people subsidized by local authorities (this is the case in provincial with disabilities since this right provides independence, departments for social development in South Africa). participation and social integration. The United States Amnesty International’s campaign ‘It is in our hands: stop Supreme Court has stated that legislation forbidding the violence against women’ has provided useful information and establishment of special houses for people with disabilities advocacy on women’s housing issues and domestic violence. For more information see: was discriminatory.57 www.amnesty.ca/campaigns/svaw_overview.php 65] Solidarity and social inclusion has been invoked in several 1. See article of H. Combrick, ‘Access to housing for women who are victims of gender cases by the European Social Charter in relation to minorities, based violence’ in ESCR Review, (10)2, July 2009. 2. See S. Liebenberg and K. Pillay, ‘Poverty and Human Rights Report of the National in particular, migrants and ethnic groups. In relation to the “Speak Out on Poverty”, Hearings’, March to June 1998, convened by SANGOCO, the CGE and the SAHRC, SANGOCO: Johannesburg. Roma community, for example, the European Committee of 3. www.owc.org.mn/ncav/eng_index.htm Social Rights confirmed that States must respect difference and For more information on the relationship between domestic violence and housing rights see: UN Special Rapporteur Report: UN doc E/CN.4/2005/43, paras 41 and ensure that social arrangements effectively lead to inclusion 43. UN doc E/CN.4/2006/118, para. 32. of social groups.58 The European Committee also highlighted the responsibility of the State to collect data pertaining to problems related to housing of Roma communities. Similar responsibilities were stressed in the case European Roma Rights Centre v. Italy,59 related to the accommodation of the Roma community in camping sites that were inadequate, 6. Duties of equal protection scarce and a source of racial segregation and discrimination. and non-discrimination But the obligation of States goes beyond this, since in the Committee’s view, obligations relating to non-discrimination against any community impose an obligation to take into due 61] Several issues emerge from housing rights since poor consideration the relevant differences and act accordingly. This and particular groups (for example, migrants, minorities, obligation constitutes the implementation of positive action internally displaced people, women and children) are the most measures aimed at promoting effective social integration.60 In discriminated in terms of access and preservation of their the case Ms. L.R. et al v. Slovakia,61 the Committee on the right to adequate housing. In this context, the International Elimination of Racial Discrimination also stated in relation to Convention on the Elimination of All Forms of Racial Roma that the revocation of a housing policy, based in this Discrimination states in its Article 5(e) the obligation of case on grounds of ethnic origins, was discriminatory. States parties to: ‘prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone, 66] A historic decision has been provided by the European without distinction as to race, colour, or national or ethnic Committee in the case of the European Federation of National origin, to equality before the law, notably in the enjoyment of economic, social and cultural rights in particular […] the 57. United States Supreme Court, City of Cleburne v. Cleburne Living Center, Inc., 473 US, 432 (1985). right to housing’. This is upon reinforced with the equal right 58. ERRC v. Greece, Complaint 15/2003, Decision on the Merits of 8 December 2004, § 19. of men and women to the enjoyment of all economic, social 59. N° 27/2004, Decision on the merits of the complaint to the Parties and to the Committee and cultural rights.56 of Ministers on 7 December 2005. See also other decisions of the European Committee on Social Rights: European Roma Rights Center vs. Greece, complaint n° 15/2003; European Roma Rights Center v. Bulgaria, complaint 31/2005. 60. ECSR, European Roma Rights Centre v. Bulgaria, complaint 31/2005, decision of merits 18 October 2006, para. 42. 56. Article 3 of the International Covenant on Economic, Social and Cultural Rights. 61. Communication 31/2003, 10 March 2005. 74 Chapter IV Empowering the Poor Through Human Rights Litigation Organizations working with homeless persons – FEANTSA v. the case Bhim Prakash Oli et Al. v. Government of Nepal France62 – in which the Committee went further and explained et al68 confirmed the obligation of the state to implement the scope and extension of state obligations. The Committee and monitoring holistic plans and programmes to integrate recalled that even if state obligations related to housing displaced populations into existing housing priorities. rights cannot be interpreted as obligations of result, they should imply operational, financial and legal means as well as 71] Taking into account the recurring violations of cultural monitoring activities, in order to review housing policies and traditions, property and housing rights of indigenous adapt them, if necessary, in order to provide effective relief communities, a number of important decisions have been to all categories of persons. States must establish a timetable taken with regard to such communities in Latin-America. and not defer indefinitely the adoption of measures. In the case of the Inter-American Court of Human rights Moiwana Community v. Suriname,69 the Court ordered to 67] Women are the most vulnerable group living in poverty, ensure the property rights of the members of the Moiwana and as such constitute the segment most touched by housing community and of their traditional territories, and to develop programmes. Women’s historical, social and economic realities special measures including mechanisms for delimitation, should therefore be taken into account when ensuring the demarcation and titling of said traditional territories. full and equal enjoyment by women of their housing rights.63 Specific changes have been made following the UN Resolution 2000/13, ‘Women’s Equal Ownership of, Access to and Control over Land and the Equal Rights to Own Property and Adequate Housing’, which developed crucial grounds for women’s 7. The role of NGOs in advancing empowerment and recognition.64 the right to housing 68] Taking into account the legal framework for discrimination against women relating to housing, land and heritage, 72] NGOs can contribute to the empowerment of marginalized the Special Rapporteur proposed a definition of the right groups with regard to housing rights by undertaking the to housing with an explicit gender approach: the right to following steps: housing is ‘the right of every woman, man, youth and child to gain and sustain a secure home and community in which to • providing legal advice/advocacy live in peace and dignity’ (E/CN.4/2001/51, para. 8). • raising awareness of gender sensitive approaches to housing rights in legislation and public policies 69] Gender approaches have proved extremely important • advocating for harmonization between international in analysis of the Grootboom case, since Grootboom standards and provisions inserted in international principles are often used to construct gendered frameworks human rights instruments and treaty bodies and national for interpreting women’s housing rights in South Africa. religions and customary laws They have also been used to define the limits of the relation • involving the media between housing rights and the right to work. In the Canadian • providing transitional and emergency accommodation case Godbout v. Longueuil (City),65 a women hired by the • developing training programmes to support women and police was obliged to sign a declaration fixing her residence children during reconstruction processes. inside the city. The Canadian Supreme Court ruled that the declaration constituted a violation of her right to housing. 73] The advocacy role of NGOs has had enormous impact with regard to accessing international jurisdictions and promoting 70] Important decisions relating to displaced people66 reinforce crucial developments in national laws, as referenced in the the housing rights of populations that are hard-pressed to leave FEANTSA and Movement ATD Quart Monde cases mentioned their homes, either because of situations of internal violence above. This advocacy role has been particularly important or natural disasters, as in the Colombian rulings T-919 of 2006 in the European Committee of Social Rights, to which NGOs and T-585 of 2006 and injunction 027 of 2007.67 In Nepal, have presented several complaints while defending the most vulnerable groups of society. 62. Complaint n° 39/2006, decision of Merits of 5 December 2007. See also movement ATD Fourth World v. France, complaint 33/2006, decision of merits of 5 December 2007. 74] Several initiatives have been implemented in relation to 63. Comment 16 notes that ‘women are often denied equal enjoyment of their human rights, in particular by virtue of the lesser status ascribed to them by tradition and custom, or gender approaches to housing rights or even housing rights as a result of overt or covert discrimination’. and HIV/AIDS. Indeed, Global Coalition on Women and AIDS 64. See also UNCHR Resolution 2001/34 Women’s Equal Ownership of, Access to and Control over Land and the Equal Rights to Own Property and to Adequate Housing, UN Doc E/CN.4/ (GCWA), launched by the Joint United Nations Programme on RES/2001/34 (20 April 2001); see also UNCHR Report E/CN.4/2002/53 2002. HIV/AIDS (UNAIDS), is a worldwide alliance of civil society 65. (1997) 3 S.C.R. 844. 66. Walter Kälin, Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons (A/HRC/10/13), and Addendum Protection of Internally 68. 8 February 2006. displaced people, see doc. E/CN.4/2006/118, p. 20. 69. Moiwana Community vs. Suriname, 15 July 2005 paras 107–212. See also Sawhoyamaxa 67. Colombian Constitutional Court, 1 February 2007. Indigenous Community v. Paraguay, 29 March, 2006. 75 Empowering the Poor Through Human Rights Litigation Chapter IV groups, networks of women with HIV and AIDS, governments and United Nations organizations, with a view to highlighting the impact of AIDS on women and girls and mobilizing action at global, regional and national levels. The International Monitoring the Right to Housing Centre for Research on Women (ICRW) has developed important In relation to the role of monitoring, UN-Habitat has developed research related in particular to the link between security of a set of indicators for the full and progressive implementation of the right of adequate housing, ‘Monitoring Housing tenure in the mitigation of HIV spreading and costs.70 Other Rights: developing a Set of Indicators to monitor the Full examples include the Habitat International Coalition – Housing and Progressive Realization of the Human Right to Adequate and Land Rights Network (HLRN), the People’s Movement for Housing’.1 Also of relevance are the reports presented by the Human Rights Learning (PDHRE), the Amnesty International FoodFirst Information and Action Network (FIAN), in particular, the parallel report for the second to fourth periodic reports of “It is in our hands: stop violence against women” campaign the Philippines submitted to the CESCR, 41st session ‘Philippine and the Global Coalition on Women and Aids (GCWA). In 2008 State’s Obligations to its Citizens Right to Adequate Food and the Centre for Equality Rights and Accommodation (CERA)71 Right to Adequate housing’.2 COHRE has developed crucial developed an advocate’s guide for housing rights especially for information and prepared high level reports monitoring the housing rights all over the world3 as well as material specifically marginalized and poor people in Canada.72 addressing the legal enforcement of housing and related rights.4 COHRE also directly litigates housing rights before international and regional fora as well as intervenes as amicus curiae before national courts. 1. 2003 available in: www.sheltercentre.org/sites/default/files/UNOHCHR-HABITAT_ monitoringHousingRights.pdf. 70. See the research www.icrw.org/docs/2004_paper_haveandhold.pdf. 2. UN Doc. E/C. 12/PHL/4 available in/ www2.ohchr.org/english/bodies/cescr/ 71. www.equalityrights.org/cera/ docs/info-ngos/FIAN_Philippines41.pdf. 72. Human rights in housing in Canada An Advocate’s Guide, Centre for Equality Rights 3. See, for example, Housing rights in Nicaragua: see joint report (COHRE WCCN in Accommodation (CERA), 2008 Available at www.equalityrights.org/cera/docs/ and CENIDH) 2003: www.sheltercentre.org/sites/default/files/COHRE_ National%20Guide%20English%20Final.pdf. NicaraguaHousingRightsinHistoricalComplexities.pdf. 4. See, for example, COHRE, Litigating Economic, Social and Cultural Rights: Legal Practitioners Dossier, COHRE: 2006, COHRE Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies, COHRE: 2002; see also www. cohre.org/litigation. Exercises 1) Analyse the framework of the right to housing in your country. Which groups are suffering from culturally inadequate housing? 2) What housing options are there for low-income and minimum wage earners in your country? In the case of existing subsidies, are they getting the most disadvantages? 76 The right to enjoy the highest attainable standard of physical and HEALTH mental health – 77 – 1. Definition of the right to enjoy the highest attainable standard of physical and mental health – 78 – 2. Core obligations – 80 – 3. Duties of equal protection and non-discrimination 4. Health of women 5. Progressive realization – 81 – 6. State obligations – 82 – 7. Specific protection for marginalized and vulnerable groups a. Children and Youth b. Persons with disabilities c. People with HIV-AIDS d. Older persons e. Migrants f. Displaced people – 85 – 8. Strategies for justiciability Chapter IV Empowering the Poor Through Human Rights Litigation The right to enjoy the highest attainable standard of physical and © US Army Africa mental health The right to enjoy the highest attainable standard of physical and mental health (right to health) is central to the strategy for attaining MDGs and is at the core of the fight against poverty. The right to health is essential to enjoy a life with dignity. However, the right to health has been always at the core of discriminations and prejudices in relation to groups of the population to whom access has been diminished. The World Health Organisation (WHO) has developed a framework for justiciability and provided guidelines in all aspects of this right taking into consideration the necessity of protecting the especial groups of the population. The following chapter describes the main guidelines in order to protect the right to health for all and tries to elucidate the core obligations and state obligations in order to pursue the respect of human dignity, at the core of this right. 1. Definition of the right to 2] The right to health has been recognized in numerous international human rights instruments.3 The first guidelines enjoy the highest attainable to the right to health were provided in the Universal standard of physical and Declaration of Human Rights, which stated that: ‘Everyone mental health has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services.’4 1] The right to enjoy the highest attainable standard of physical and mental health (right to health) was defined in 3] The fullest definition however, which includes not only the preamble to the 1946 Constitution of the World Health the elements necessary to live a healthy life, but also the Organization (WHO), which states that the ‘enjoyment entitlements required to give the right an economic, social, of the highest attainable standard of health is one of the cultural significance and dimension, is provided by Article 12 fundamental rights of every human being without distinction of the ICESCR, which states: of race, religion, political belief, economic or social condition’. Although the preamble adds that health encompasses ‘a (1) The States Parties to the present Covenant recognize state of complete physical, mental and social well-being’,1 the right of everyone to the enjoyment of the highest this definition has been criticized since the State cannot attainable standard of health. be obliged to provide for everyone the right to health, and (2) The steps to be taken by the State Parties to the present cannot protect everyone against every possible cause of ill Covenant to achieve the full realization of this right shall health.2 The right to health is therefore more complex and include those necessary for: multidimensional than first presumed. (a) The provision for the reduction of the stillbirth- 3. See, for example, the International Convention on the Elimination of All Forms of Racial Discrimination (1966), Article 5(e)(iv); Convention on the Elimination of All Forms of Discrimination Against Women (1979), Articles 11.1(f) and 12; United Nations Convention on the Rights of the Child (1989), Article 24; European Social Charter (1961) 1. Preamble of the Constitution of WHO (1946). as revised, Article 11; African Charter on Human and Peoples’ Rights (1981), Article 16; and the Additional Protocol to the American Convention on Human Rights in the Area of 2. CESCR, General Comment n° 14, ‘The right to the highest attainable standard of health Economic, Social and Cultural Rights (1988), Article 10. (Article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/200/4 (11 August 2000) para. 8; OHCHR Draft Guidelines, para. 116. 4. Universal Declaration of Human Rights (1948), Article 25(1). 77 Empowering the Poor Through Human Rights Litigation Chapter IV rate and of infant mortality and for the healthy 8] Finally, the right to health must respect the principles of development of the child equality and non-discrimination and realized, in particular, (b) The improvement of all aspects of environmental and for the most vulnerable sectors of society.11 industrial hygiene (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases (d) The creation of conditions which would assure to all medical service and medical attention in the event 2. Core obligations of sickness. 9] The Committee on Economic, Social and Cultural Rights has This list of State obligations in Article 12(2) is illustrative further explained Article 12 and the normative content of the and non-exhaustive.5 right to health in General Comment n° 14.12 Based on these documents, the right to health also contains four inter-related 4] Based on this definition, the Committee has developed a and essential features or determinants representing essential broad description of the right to health, including a package components of the right to health and related entitlements: of interrelated rights. The CESCR states that this: ‘is the right (1) Availability, (2) Accessibility, (3) Acceptability and (4) to the enjoyment of a variety of facilities, goods, services and Quality (AAAQ). While these essential elements are often conditions necessary for the realization of the highest attainable described in connection with healthcare services, programmes standard of health. The right includes both health care and the and goods, they also apply to the underlying determinants of underlying determinants of health, including access to potable health as the right to safe drinking water and sanitation or water, adequate and safe food, adequate sanitation and the right to adequate housing. housing, healthy occupational and environmental conditions, and access to health-related information and education.’6 10] The AAAQ framework is explained further in General Comment n° 14 and is summarized here: Availability. Health This description symbolizes the interrelation and facilities, goods and services must be available in sufficient interdependency of all human rights. quantity within the State party. This includes, for example, hospitals, clinics, trained health professionals and essential 5] The Special Rapporteur on the right to health further medicines, as well as underlying determinants, such as safe proposes the addition of the ‘right to an effective and drinking water and adequate sanitation facilities.13 integrated health system, encompassing health care and the underlying determinants of health, which is responsive to 11] Accessibility. Health facilities, goods and services must national and local priorities and accessible to all.’7 be accessible to everyone without discrimination, with a particular focus on vulnerable or marginalized people. They 6] In this sense, the right to health encompasses both freedoms must be physically accessible, meaning within safe physical and entitlements: it requires the exercise of civil and political reach of all sections of the population, including people rights as well as economic, social and cultural rights. The with disabilities and people in rural areas. They must be freedoms include, for example, the right to make decisions about economically accessible, meaning affordable to all. In this one’s health, including sexual and reproductive freedom,8 and sense, procurement of healthcare should respect the principle the right to be free from interference, such as the right to be of equity and should prioritize the most vulnerable groups free from non-consensual medical treatment.9 The entitlements of society. Moreover, accessibility includes the right to seek, include the right to a health system that provides the basis for receive and impart information on health.14 In the Indian everyone to enjoy the highest attainable standard of health.10 Case Indra Sawhney v. Union of India,15 for example, the Supreme Court observed that in order to eradicate poverty 7] Two important aspects are also mentioned: the right and to eliminate inequalities, it is necessary to ensure ‘free’ to access and enjoyment of both health services and the medical care, education, access to employment, housing, land determinants of health; and the right to enjoy social reforms and free water. conditions for the safeguarding of public health, such as prevention, treatment against epidemics, sanitation and 12] Following the proposals of General Comment n° 14, adequate water conditions, and so on. access to health includes: “access to basic preventive, curative, rehabilitative health services and health education; 5. CESCR General Comment n° 14, supra note 112, para. 7. regular screening programmes; appropriate treatment of 6. Ibid. See also CESCR General Comment n° 14, supra note 112, para. 9, 11. 7. Report of the Special Rapporteur on the right of everyone to the enjoyment of the 11. General Comment n° 1, paras 18 and 19. highest attainable standard of physical and mental health, P. Hunt, E/CN.4/2006/48 (3 March 2006) ¶ 4. 12. See, generally, CESCR General Comment n° 14. 8. See also Article 16(1)(e). of CEDAW. 13. Ibid. para. 12(a). 9. Ibid. 14. Ibid. para. 12(b). 10. Ibid 15. 1997 supp (3) SCC 217. 78 Chapter IV Empowering the Poor Through Human Rights Litigation prevalent diseases, illness, injuries and disabilities, preferably being unable to identify the contents of the documents. The at community level; the provision of essential drugs; and Slovakian health authorities stated that there was no right appropriate mental health treatment and care.16 WHO further to photocopy medical records. However, the European Court clarified that these provisions should be implemented at all of Human Rights found that access to files containing one’s levels, including primary, secondary and tertiary healthcare. personal data must be allowed in order to respect the right to prior and proper consultation for health care. 13] Access to health information is also an essential aspect of the right to health and is linked to the concept 16] Acceptability. Health facilities, goods and services of accessibility.17 Indeed, health information enables people must be respectful of medical ethics, including the right to promote their own health and to claim quality health to confidentiality, and they must be sensitive to cultures, facilities, goods and services from the State and others.18 communities and gender. Furthermore, health information Therefore, States must ensure that health information is must be provided in local languages.25 available and accessible to all, and that it is provided in local languages.19 The right to health also includes the freedom of 17] Quality. Health facilities, goods and services must all people to seek, receive and impart information concerning also be scientifically and medically appropriate and of good health issues.20 Indeed, other essential aspects of the right quality. Furthermore, the underlying determinants of health to health, such as meaningful participation and effective must be appropriate and of good quality too.26 Thus, for accountability, depend upon having access to information, example, water and health education, in addition to hospitals as well as the right to express views freely.21 While health and medicines, must be of good quality. information must be made available, personal health data must be treated with confidentiality.22 14] CEDAW considered the case of a violation of the right Core obligations of the Right to Health to information in relation to a sterilization of a woman (based on General Comment n° 14) patient member of the Roma Community and mother of • Access to healthy facilities, goods, services on a non- three children; that had not given previous consent for this discriminatory basis and with particular focus on vulnerable intervention. Indeed, before the surgery, Mrs A.S. was asked and marginalized groups by the doctor to fill out some consent forms that she did • Access to minimum essential food, which is nutritionally not understand. After the surgery, she realized that she had appropriate, adequate and safe, to ensure freedom from been the subject of a sterilization procedure She argued that hunger for everyone she would never have agreed to it as she has strict Catholic • Access to basic shelter, housing and sanitation and a supply religious beliefs that prohibit contraception of any kind, of safe and potable water including sterilization. CEDAW Committee concluded that • Access to essential drugs as defined in the WHO Action Programme on essential Drugs violations [had taken place] of the right to an informed • Equitable distribution of all health facilities, goods and consent as well as the right to information on family planning, services the right to appropriate services in connection with pregnancy • Adoption and implementation of a national public health and the post-natal period and the right to determine the strategy and plan of action (designed and approved on a number and spacing of her children, of the Convention on the participatory basis, including benchmarks indicators, and Elimination of Discrimination Against Women in the case A.S. periodic review, adjustments and updates). v. Hungary.23 As a result the Hungarian Government modified • Ensure reproductive, maternal (pre and post-natal) and child healthcare the Public Health Act in relation to the right to be informed in the case of this type of medical procedures. • Provide immunization against major infectious deceases. • Take measures to prevent, treat and control epidemic and pandemic diseases. 15] In the case K.H. and Others v. Slovakia,24 eight Roma • Provide education and access to information concerning the women were unsuccessful in conceiving again after receiving main health problems in the community, including methods gynaecological and obstetric treatment. They were also asked for prevention and control. to sign documents prior to discharge from the hospital without • Provide training for health personnel including education on health and human rights. 16. See General Comment n° 14, para. 17. 17. Ibid. para. 12(b)(iii). 18. Report of the Special Rapporteur 2006, supra note 114, para. 49(c)(iii). 19. See ibid. See also CESCR General Comment n° 14, para. 12(b)(iv). 20. CESCR General Comment n° 14, supra note 112, para. 12(b)(iv). 21. Report of the Special Rapporteur 2006, supra note 113, para. 49(c)(iii). 22. CESCR General Comment n° 14, supra note 112, para. 12(b)(iv). 23. Communication n° 4/2004, CEDAW /C/36/D/4/2004. 25. Ibid. para. 12(c). 24. ECHR Application n° 32881/04, 2009. 26. Ibid. para. 12(d). 79 Empowering the Poor Through Human Rights Litigation Chapter IV 3. Duties of equal protection 22] Rural women as well as displaced, indigenous women, and non-discrimination women with disabilities, women living in poverty and suffering HIV-AIDS face a double discrimination and exclusion. Concerning rural women as per example, the Convention on 18] It is important to emphasize that non-discrimination the Elimination of All Forms of Discrimination against Women and equality are central to the right to health. The right to (CEDAW), in its art. 14 affirms that States Parties shall take health proscribes any discrimination in access to or provision all appropriate measures to eliminate discrimination against of healthcare and the underlying determinants of health.27 rural women in the field of health care in order to ensure, on Moreover, special attention must be paid to promoting a basis of equality of men and women, access to health care the equality of women and men, and of vulnerable and and family planning. In relation to women with disabilities, marginalized groups.28 For example, in the above mentioned- it is important to note that they suffer clearly a double case, A.S. v. Hungary, the CEDAW Committee urged the State discrimination and in some cases, women who suffer domestic party to take a holistic approach in order to eliminate multiple violence are treated that way because of their condition of forms of discrimination against women and, in particular, to disability. ensure material equality among Roma girls.29 23] Sexual and reproductive rights, pregnancy and issues 19] Additionally, careful consideration of health resource related to birth planning ask especial action in order to avoid allocations is required to ensure that health policy and limitations to their right. In Colombia, several jurisprudence spending promotes equality rather than contributing to has protected pregnant women as ‘subjects of especial or perpetuating inequalities.30 The obligation to ensure protection’ when private health care institutions discontinue non-discriminatory treatment also requires the removal of de provisions of health care services based on the non obstacles that impede the enjoyment of health (de iure and payment of the charges.35 The protection has also covered the de facto). On this basis, equality is immediately enforceable.31 case of pregnant women working in domestic places,36 the protection of the right to health of displaced women37 and 20] One further important aspect of the right to health ‘is the the social integration of women with disabilities.38 participation of the population in all health-related decision- making at the community, national and international levels’.32 Participation implies, among other factors, the rights to seek and impart health-related information, the right to express views freely, and the right to basic health education, as well as 5. Progressive realization transparency in policy-making processes. Full participation on a non-discriminatory basis also requires special attention to sharing 24] In addition to AAAQ, other concepts are crucial to information with and seeking the views of both women and men, the right to health. First, the right to health is subject to as well as the views of vulnerable and marginalized people.33 progressive realization. Many States do not currently possess the resources necessary to fully implement the right to enjoyment of the highest standard of attainable health for all people. Nonetheless, States must take deliberate and concrete steps toward the full realization of the right to health for 4. Health and women all.39 The corollary to the obligation to progressively realize the right to health is that ‘there is a strong presumption that 21] Women face health issues differently as men. For this retrogressive measures taken in relation to the right to health reason, biological and socio-cultural factors on the right to are not permissible’.40 health of men and women should be taken into account when talking about women’s right to health.34 25] While the right to health is subject to progressive 27. Ibid. para. 18. Discrimination is prohibited ‘on the grounds of race, colour, sex, realization, States have an immediate core obligation that language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation and constitute, at the very least, minimum essential levels of civil, political, social or other status, which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health.’ Ibid. primary healthcare, food, housing, sanitation and essential 28. See ibid. para. 18. 29. See Concluding Comments of the Committee on the Elimination of Discrimination against Women: Hungary, CEDAW/C/HUN/CO/6, 10 August 2007. 35. Tutela nº 088/08, Constitutional Court of Colombia, 5 February 2008. See also: T-l06 of 30. See ibid. para. 19. 1996, T-694 of 1996, T-662 of 1997 and T-844 of 2002. 31. General Comment n° 16, paras.6, 29 and 30. 36. Tutela nº -730/99 Constitutional Court of Colombia, 1 October 1999. 32. Ibid. para. 11 (emphasis added). 37. SU-1150 of 2000, T-1635 of 2000 and T-327 of 2001; T-045 of 2010 among others. 33. See, for example, ibid. para. 54 (discussing the right of individuals and groups to 38. SU-1167 de 2001. participate in decision-making processes for developing any policy, programme or strategy related to the right to health). 39. Ibid. paras 30–31. 34. See General Comment n° 14 page 12-13. 40. Ibid. para. 32. 80 Chapter IV Empowering the Poor Through Human Rights Litigation drugs.41This core obligation also includes adopting and drugs, and acting against safe environmental conditions.50 implementing a national health strategy and plan of action.42 The suspension of legislation that upholds the enjoyment of the right to health or enactment of a law that interferes with 26] The Constitutional Tribunal of Peru analysed the the enjoyment of the right to health constitutes a violation inaction of the Peruvian authorities in providing medication of this obligation.51 for HIV patients in the case Azanca Alhelí Meza García.43 The tribunal underlined that the State authorities were unable to 30] The obligation to protect entails the obligation to avoid provide full medical treatment to a HIV positive patient who the infringement of third parties of the right to health. In order was not able, due to financial constraints, to obtain this high to respect this duty, States have to ensure the protection of cost medication. The Tribunal underlined that people with the population from any practice detrimental to health. They HIV/AIDs are especially vulnerable and should be particularly have to secure equal access to healthcare and health services, protected based on the principles of solidarity and human control the marketing of health equipment and medicines by dignity. The Tribunal concluded that the State did not third parties, and ensure that health practitioners follow comply with its duty to take concrete measures in order to ethical codes of conduct and meet appropriate standards of provide antiretroviral treatment to HIV-positive adults in the education. States are responsible for the protection of the framework of Article 7 of the Peruvian National Law n° 26626 population from harmful traditional practices that interfere on HIV/AIDS.44 with access to pre and post-natal care and family planning. Particular mention is made of female genital mutilation. States 27] The same analysis was developed by the Supreme Tribunal should take action to ensure the protection, in particular, of Justice of Venezuela who asked the national authorities of older people, children and women, and vulnerable and to develop a preventive plan and education programmes to marginalized groups. The privatization of health services assist persons living with HIV/AIDS. The Court went further does not violate, per se, the obligation to protect. Finally, and even ordered the President to adjust the amount of the the obligation to protect also entails the obligation to avoid allocation for HIV/AIDS treatments in the case Cruz del Valle limitations to health information and services.52 Bermúdez y otros c. MSAS s/amparo.45 31] The Case Yanomani Community v. Brazil53 of the 28] The right to health requires access to effective mechanisms Inter-American Commission of Human Rights relates to the of accountability, including judicial remedies at both the implementation of a plan of exploitation of the vast natural national and international level.46 Victims of violations of the resources in the Amazon region, which impacted the territory right to health are ‘entitled to adequate reparation, which of the Yanomami Indians. The plan compelled the community may take the form of restitution, compensation, satisfaction to abandon their habitat and seek refuge in other places, and or guarantees of non-repetition’.47 In additional to judicial exposed them to epidemics. The Commission stated that this remedies, national ombudsmen and human rights commissions action constituted a violation of the obligation to protect and should also address violations of the right to health.48 concluded that a violation of the right to the preservation of health and to well-being had taken place (Article XI of the American Declaration of the Rights and Duties of Man). 32] In relation to the obligation to fulfil, States are required 6. State obligations to take the necessary steps to ensure the realization of the right to health. In this sense,54 according to General Comments 29] The right to health imposes an obligation to respect, nos. 12 and 13 in concordance with General Comment 14, entailing an immediate, enforceable obligation on States to the obligation to fulfil incorporates three obligations: refrain from interfering with the existing enjoyment of rights, an obligation to facilitate related to a state duty to take in this case, the right to health.49 It includes refraining from positive measures in order to enable and assist individuals imposing discriminatory practices, limiting equal access to and communities to enjoy this right; an obligation to provide all persons, limiting access to sexual and reproductive health through which the State will ensure that the population will or to sexual education and information, promoting unsafe realize their right and will provide facilities for this purpose; and an obligation to promote.55 The Committee has stated in 41. Ibid. para. 43. this regard that promoting includes: (i) fostering recognition 42. Ibid. of factors favouring positive health results, e.g. research and 43. Azanca Alhelí Meza García, EXP. n° 2945-2003-AA/TC, Lima, Peru. 44. Op cit, para. 24. 50. General Comment n° 14 paras 34–35. 45. Expediente n° 15.789. Sentencia n° 196. 51. General Comment n° 14 paras 34 and 50. 46. Ibid. para. 59. 52. Ibid. paras 35 and 51. 47. Ibid. 53. Case 615, Decision of 5 March 1985, resolution 12/85, Annual Report 1984–1985. 48. Ibid. 54. Ibid. paras 36, 37 and 52. 49. General Comment n° 14 para. 33. 55. See para. 33, General Comment n° 14. 81 Empowering the Poor Through Human Rights Litigation Chapter IV provision of information; (ii) ensuring that health services are to analyze the relation between the right to health and the culturally appropriate and that health care staff are trained to components necessary to ensure a life in good health, such recognize and respond to the specific needs of vulnerable or as adequate food, clothing, adequate housing, safe drinking marginalized groups; (iii) ensuring that the State meets its water, sanitation, a proper environment, as well as pertinent obligations in the dissemination of appropriate information educational and informative initiatives for the effective relating to healthy lifestyles and nutrition, harmful traditional enjoyment of the right. practices and the availability of services; (iv) supporting people in making informed choices about their health.56 36] For example, the Civil Court of the Province of Neuquen in Argentina studied the case of children of the community 33] In the case Viceconte, Mariela c. Estado Nacional, the of Paynemil that were poisoned by contaminated water in the Federal Court of Argentina upheld a violation of the right to case Menores Comunidad Paynemil. The Civil Court upheld health and the duty of the State to fulfil in a case related the petition of the applicant and stated that the Executive to an epidemic of hemorrhagic fever that threatened and Provincial Power failed in its duty to protect the population affected more than 3.5 million people. The Court held that the since it did not take financial steps or implement any concrete Minister of Health and Public Services did not take specific policy to stop the violation. As a result of the case, the Court and appropriate measures and that the government failed to ordered that the necessary treatment to supply 250 litres of develop a vaccine, since this was not widely available and safe drinking water per habitant be instituted, and that the profited the private sector. The Court found a violation of the necessary steps to preserve the environment be taken.59 right to health and ruled that the government should take more action to fulfil the right to health.57 37] The importance of protecting the right to health of children was highlighted again in the landmark case Minister of Health v. Treatment Action Campaign presented by the NGO Treatment Action Campaign (TAC case)60 to the High Court of South Africa. The Court assessed the reasonableness 7. Specific protection of the South African government policy of impeding the AIDS for marginalized and pandemic through prevention of Mother-to-Child Transmission vulnerable groups (MTCT) through breastfeeding. The devised programme by the SA government dealt with MTCT using a medication called Nevirapine. However, availability and access to this a. Children and youth medication was restricted to only two medical sites in each 34] Children and young people, in particular, are protected province, named Pilot Sites, which served only 10 per cent of under the right to health, which demands special action on the total population. As a result of this policy, only private the part of States in order to make the principle of the best clinics who worked as research and training sites were interests of the child a reality, and to avoid infant and child allowed to prescribe the medication, whereas public hospitals mortality. The Committee on the Rights of the Child has were not. The government argued that the administration stated, for example, that adolescents face particular physical of Nevirapine was reasonable, explaining that budgetary health and mental health risks, including violence, drug use constraints affected the expansion of the availability of the and alcohol abuse and sexually transmitted infections (STIs). medication to all medical sites, and further stated that the The increasing number of teenage pregnancies and the lack of clean water in rural areas could make the Nevirapine number of very young mothers are particularly alarming, and useless. Arguments related to concerns regarding the efficacy are more common in the case of adolescents living in poverty and safety of Nevirapine were also raised by the government. and in rural areas.58 38] The Court rejected these arguments and noted that the 35] The Committee recommends that State Parties pay medication would save many lives among the South African particular attention to adolescent health, taking into account population. The Court further stated that these policies were the Committee’s General Comment n° 4 of 2003 on adolescent not reasonable since the restrictions on Nevirapine were too health and development in the context of the Convention rigid and limited the access of mothers and children to the on the Rights of the Child. This protection becomes stricter medication. The Court underlined the point that the right to when it relates to children or young people from ethnic health included also family care, and that it is a duty of the minorities or with disabilities, since these groups face State to help parents attain access to healthcare when they various forms of discrimination. It is therefore indispensable are unable to afford it. Affirming that the justiciability of ESC rights improves the live of poor people and disadvantaged segments of society and emphasizing the tripartite typology 56. See para. 37 General Comment n° 14. 57. Ministerio de Salud y Ministerio de Economía de la Nacións/ Acción de Amparo, Causa n° 31.777/96 (1998). 59. S/acción de amparo, Argentina 19 May 1997. See also Mariela Viceconte op cit. 52. 58. See, for example, UN Committee on the Right of the Child, Concluding Observations: Ecuador, CRC/C/15/Add.262. 60. Minister of Health v. Treatment Action Campaign, 2002 (5), SA 721 (CC). 82 Chapter IV Empowering the Poor Through Human Rights Litigation of State obligations and the progressive realization of ESC State which coexist with private hospitals. The State cannot rights, the Court ordered that Nevirapine be made available completely absolve itself of its responsibility by delegating its in all centres, further stated that budgetary constraints could obligations in this sphere to private bodies or individuals. […] not be an excuse for governments, and ruled that the previous The Court finds that, similarly, in the present case the State measures were therefore unreasonable. remained under a duty to exercise supervision and control over private psychiatric institutions. Such institutions, […] need b. People with disabilities not only a licence, but also competent supervision on a regular basis of whether the confinement and medical treatment is 39] Disability has a particularly pernicious relationship with justified.”63 poverty since poor access to health care can rapidly lead or exacerbate it. On the basis of the Convention on the Rights 43] In another case, the African Commission on Human of Persons with Disabilities and its Optional Protocol adopted and People’s Rights examined the legislative framework for in 2006, States are particularly obligated to accomplish all mental health (Health Acts) in Gambia in the case Purohit necessary steps to ensure equality, to design inclusive policies and Moore v. The Gambia related to people in a psychiatric to facilitate their integration in society, and to ensure their hospital. The applicants alleged that they had not given their effective participation in all levels of life. The Convention consent for treatment and that the conditions of the hospital establishes where adaptations are necessary in order to allow were not optimal. Additionally, they were not allowed to vote. them to effectively exercise their rights. The facts also show that people detained in the psychiatric hospital were picked up from the streets and were most likely 40] The Supreme Court of Canada, relying on the principle poor people; moreover, that African countries are ‘generally of equality, studied medical care in the province of British faced with the problem of poverty which renders them Columbia in the case Eldridge v. British Columbia.61 The incapable to provide the necessary amenities, infrastructure healthcare system operates through two primary mechanisms: and resources that facilitate the full enjoyment of this right’.64 the Hospital Insurance Act and the Medical and Health The Commission concluded that on the basis of the principle Care Services Act. However, neither programme pays for of non-discrimination and equal protection, the State should sign language interpretation for the deaf. The appellants provide medicines, adequate material and medical care for were all born deaf and preferred sign language as a means people suffering mental health problems, even in the case of of communication. For this reason, they argued that the resource constraints, and asked that the cases of all persons absence of interpreters impairs their ability to communicate detained under the Health Acts be reviewed.65 with their doctors and other healthcare providers, and thus increases the risk of misdiagnosis and ineffective treatment. The Supreme Court stated that the provincial government c. People with HIV-AIDS failed to provide sign-language interpreters as a part of the publicly-funded healthcare system and argued that the 44] In general, people with HIV-AIDS are protected by effects of discrimination are especially relevant in the case tribunals, which consider them as a group entitled to special of disability. The Court concluded that the health system was protection. However, special considerations appear in discriminatory since it infringed upon their right to equal relation to the access to and availability of medication, non- benefit under the law without discrimination and prevented discrimination measures for people suffering from this virus, the most vulnerable members of society from taking advantage and the financial considerations in relation to the cost of of healthcare benefits. drugs and treatment for treating those living with HIV-AIDS. 41] In a Brazilian case related to a young man suffering 45] In the case of Azanca Alheli Meza Garcia,66 related to from mental illness who received inhuman treatment from an ‘amparo’ presented in order to request the provision of medical staff, the Inter-American Court stated that special full HIV-AIDS treatment, the Peruvian Constitutional Tribunal obligations for care and protection of people with disabilities underlined the importance of the content of social rights must be provided (Damiao Ximenes Lopez v. Brazil).62 for the effective protection of civil and political rights. The Tribunal stressed the intrinsic connection of the right to 42] The European Court of Human Rights provided a ruling on health with the right to life, particularly in the case of people a similar case, Storck v. Germany, stating that: “With regard with HIV-AIDS. It added that the State should comply with to persons in need of psychiatric treatment in particular, the its obligations within a reasonable time as an indispensable Court observes that the State is under an obligation to secure condition for realizing the progressive realization of the right to its citizens their right to physical integrity under Article 8 of of health and implementing public policies, regardless of the the Convention. For this purpose there are hospitals run by the 63. Application n° 61603/00, judgment of 16 June, 2005, p. 103. 64. See Elderidge Case para. 84. 61. (Attorney General) 1997 SCR 624. 65. Communication n°241/2001, 16th Activity Report 2002 2003, Annex VII, 2003. 62. Damião Ximenes Lopes v. Brazil, Case 12.237, Report N° 38/02, Inter-Am. C.H.R., Doc. 5 rev. 1 at 174 (2002). 66. Expediente n° 2945-2003-AA/TC. 83 Empowering the Poor Through Human Rights Litigation Chapter IV amount of available financial resources. The Tribunal clarified discriminatory practices, consisting of the use of special red that financial resources are means to providing services and bags for laundry, special cups marked with XXX, and other realizing goals (social investment) and not a goal in itself practices that resulted in the stigmatization of patients (expenditure).67 As an outcome of this decision, the Tribunal suffering from HIV-AIDS. In consequence, the Commission asked the Minister of Health to provide medication to the asked the State of El Salvador to elaborate a framework law applicant and to advance the implementation of Article 8 of on HIV-AIDS incorporating the State obligation to provide Law n° 28243, 2004, which focuses on the necessity of giving antiretroviral medication, and ordered the modification priority to budget resources for people with HIV-AIDS and of all care practices (medical and nursery) so as to avoid living in extreme poverty.68 discriminatory behaviours. 46] In the case Cruz del Valle Bermudez y otros c. MSAS69 s/amparo, the Constitutional Court of Venezuela stated that d. Older persons the refusal to deliver drugs needed to treat HIV-AIDS virus constituted a violation of the right to health. The Venezuelan 48] Older people shall be entitled to protection, promotion Constitutional Court requested the implementation of and support in various areas of care protection including a preventive National Health Plan in conjunction with medical and health services. States shall provide programmes complementary educational policies. The Court ordered and long term strategies for the support of informal care modifications to the budget to provide more available within the private sphere, the community based system and resources and to undertake a study to clarify the minimum specialized institutions. Care services should be adapted to needs of the population suffering from HIV-AIDS in order older people. to develop a preventive holistic programme. In a later case in 2001, the Constitutional Court of Venezuela ordered the 49] Last 28-30 September 2011, The First International government to ensure a regular supply of drugs for HIV-AIDS Conference on Age-friendly Cities took place in Dublin, sufferers and, further, linked the right to heath to the right Ireland, from 28 to 30 September 2011, to strengthen the to benefit from scientific progress. Based on the need to WHO Global Network of Age-friendly Cities and advance increase the benefits from scientific progress and medication, thinking and approaches on how to make cities more age- the Court extended the effects of the decision to all persons friendly. It brought together a broad range of leaders and suffering from the virus and requesting the Social Security senior managers from existing members of the Global Network, System (Instituto Venezolano de Seguridad Social-IVSS) to senior managers of municipal authorities, CEOs interested in cover their treatment and medical test costs.70 or already championing an Age-friendly City initiative, civil society organizations as well as senior professionals across 47] The Inter-American Commission in the case Case Jorge the public, private and voluntary sectors in areas such as Odir Miranda Cortéz of 2001 understood the right to health transport, urban planning, health care, housing, research and as part of the Article 26 of the American Convention on academia Human Rights related to the Progressive Development of economic, social and cultural rights,71 and requested the adoption of precautionary measures for groups of persons e. Migrants living with HIV-AIDS on the basis of the ‘right to personal integrity’ (Article 1 of the American Declaration/5.1 and 50] Migrants are routinely victims of a wide range of limitations 5.2. of the American Convention). Affirming that ESC rights to their economic, social and cultural rights, particularly, contain not only negative but positive obligations, the Inter- those related to social security and healthcare due to their American Commission declared that States must respect their precarious status and lack of documentation. Despite these obligations to protect people with HIV-AIDS, who are in a restrictions, courts have advanced the protection of migrant position of vulnerability, and compared their situation to that children, women and workers, surmounting obstacles for their of cruel, inhuman and degrading treatment. The Commission protection and applying the principles of non-discrimination also added that the behaviour at the health authorities was and equal protection. particularly discriminatory since the applicant underwent 51] The Committee of Social Rights of the Council of Europe 67. Ibid. paras 35 and 44. in the decision International Federation of Human Rights 68. Ibid. para. 48. Leagues (FIDH) v. France recognized the right of access to 69. S/amparo, Expediente n° 15.789 Sentencia n° 196. medical care for migrants, stating that ‘legislation, practice 70. Case Lopez Glenda y otros v. Instituto Venezolano de los Seguros Sociales (IVSS) s/accion which denies entitlement to medical assistance for foreign de amparo, Expediente 00-1343, Sentencia n° 487. nationals, within the territory of a State Party, even if they 71. Article 26 of the American Convention on Human Rights states: ‘The States Parties undertake to adopt measures, both internally and through international cooperation, are illegally, is contrary to the Charter’.72 As a consequence, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of 72. See case International Federation of Human Rights Leagues (FIDH) v. France, Complaint Buenos Aires’. n° 14/2003, 3 November 2004, para. 32. 84 Chapter IV Empowering the Poor Through Human Rights Litigation France changed its policy by publishing the 2005 CIRCULAR causes “extreme vulnerability”, the Constitutional Court of DHOS/DSS/DGAS and included treatment to all minors Colombia, in its decision SU-1150 of 2000, affirmed that the residents in France who are not effectively beneficiaries under allocations to displaced people are more critical than other the State medical assistance scheme. public expenses.77 The Court has also protected the right to health of indigenous people forced to abandon their land due 52] In the case of migrant workers, the European Court of to internal displacement.78 In decision T 1134 of 2008, the Human Rights protected an undocumented female domestic Court stated that displace people should receive a “minimum employee in the decision Siliadin v. France.73 The Court subsistence” consisting on including food, safe drinking considered that she was the subject of domestic slavery water, housing clothing and access to health services and since her documentation was retained and she was asked to sanitation. work seven days per week without payment. Although the case did not rule on the right to health of migrant workers, the decision reveals the necessity of respecting migrant workers in legislation, including access to health insurance and healthcare.74 In another case, the European Court stated 8. Strategies for justiciability that the abrupt removal of medical treatment due to the deportation of a migrant to another country exposed him to 55] the risk of distressing circumstances, comparable to inhuman treatment.75 Finally, the Constitutional Court of Spain has • Support the right to health as a justiciable right as itself, stated that all migrants have the right to register as a independently of its connection to the right to life. requirement for access to healthcare services, and that all • Establish a national plan with health protection for undocumented migrants should have access to all ESC rights.76 special groups of the population, including subsidies for people suffering HIV-AIDS, for internally Displaced People and indigenous communities. • Follow of inclusive policies, with especial emphasis on f. Displaced people vulnerable people, integrating a holistic approach to 53] Art 18 and 19 of the Guiding Principles on Internal health, including preventive and curative measures as Displacement (GPID) affirm that authorities should provide access to health care, medication and psychological access to essential food and portable water, basic shelter and support housing, appropriate clothing and essential medical service • Follow up the implementation of special health measures and sanitation, as well as access to psychological services, • Support the establishment of “adapted” measures related with especial attention to women, and to the prevention of to health care for people with disabilities. diseases, including HIV-AIDS. • Support the creation of mechanisms to deal with displacement 54] Affirming that internal displacement is the cause of • Promote health education and community involvement multiple human rights violations and that displacement in Special health measures/mechanisms to deal with displacement, women, indigenous communities 73. 26 July 2005, Application N° 73316/01. • Support clinical training of health professionals 74. European Court of Human Rights (2005), Case Siliadin v. France, Application n° 73316/2001, judgment 26 July 2005 page 71. 75. European Court of Human Rights, D v. United Kingdom, Judgment of 2 May 1997, 24 EEHRR 423, paras. 53-54. See also Human rights Committee (HRC), C. v. Australia, CCPR/ 77. See also Constitutional Court of Colombia Decisions T-268 of 2003, T-025 of 2004 and T C/76/D/990/1999, 28 Octiber 2002, para. 6. See also CRC (2009 and 2004), Concluding 1135 of 2008 among others. Observations: France, CRC/C/FRA/CO/4, 11 June 2009, § 30; CRC/C/15/Add.240, 30 June 2004, § 18. 78. Constitutional Court of Colombia Decision T-1105 of 2008. 76. Constitutional Court, Spain, Judgment 236/2007, 7 November 2007. Exercises 1) Should health care be provided to everyone? If yes, in what conditions? Please justify. 2) Kindly analyze and compare the reasoning in the cases Soobramoney v. Minister of Health KwaZulu Natal and Minister of Health v. Treatment Action Campaign (TAC case) in relation to the right to health and in particular, the right to everyone to receive emergency medical treatment. 3) What is, in your opinion, the relationship between medical ethics and human rights? Please clarify. 85 The right to safe drinking water and sanitation – 87 – 1. Evolution of the right to safe drinking water and sanitation – 88 – 2. Normative content sanitation – 91 – Water & 3. State obligations – 93 – 4. Duties of equal protection, non-discrimination and special attention to vulnerable and marginalized groups – 94 – 5. Limits to the right to safe drinking water and sanitation – 95 – 6. Strategies for justiciability Chapter IV Empowering the Poor Through Human Rights Litigation The right to safe drinking water © Asianet-Pakistan and sanitation In July 2010, the UN General Assembly officially recognized the right to water and sanitation as a human right (GA/10967). This decision came after the 3rd World Water Forum held in Kyoto in 2003, at which the right to water was declared an essential right. Furthermore, it has been the result of many important developments, such as the General Comment n°15 of the Committee on Economic, Social and Cultural Rights (CESCR), resolutions by the Human Rights Council (HRC), declarations by several international fora, legal and judicial advancements in various countries as well as the nomination and the work of the Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation. MDG 7 “Ensure environmental Sustainability” integrates water and sanitation as a major goal and seeks through its Target 10 to halve the proportion of people without sustainable access to safe drinking water and basic sanitation. But despite legal recognition, an estimated 884 million people, the majority of them in Africa, still do not have access to safe drinking water. More than 2.5 billion people live without basic sanitation and some 1.5 million children under 5 die each year from sickness caused by water-borne diseases. The degradation of water quality in rivers, streams, lakes and groundwater systems has a direct impact on ecosystems and human health. As the lead UN agency for water sciences and education, UNESCO is implementing an array of programmes to further expertise in this field. UNESCO’s International Hydrological Programme (IHP) is actively engaged in fostering science and knowledge to protect the quality of surface waters and groundwater systems. Likewise, UNESCO is an active contributor to the monitoring of the state of the world’s freshwater resources and promotes capacity building for better management of water resources through water centres and chairs operating under its auspices in many parts of the world. 1. Evolution of the right to General Assembly officially recognized the right to water safe drinking water and and sanitation as a human right (GA/64/292) and declared that the human right to safe and clean drinking water and sanitation sanitation is essential for the full enjoyment of life and all human rights. On 30 September 2010 the Human Rights 1] In the face of major human and environmental crises, Council adopted Resolution A/HRC/RES/15/9 in which it the international community has made efforts to recognize affirms that the human right to safe drinking water and the human right to water and sanitation and to clarify sanitation is derived from the right to an adequate standard its normative content. This right is indeed referenced – of living enshrined in art. 11 of the ICESCR. implicitly and explicitly – in a number of international and regional treaties and declarations.1 In July 2010, the UN 2] The lack of access to water has been recognized as a key obstacle to improving human well-being, fostering education and eradicating poverty. In order to implement the universal 1. For additional information on the evolution of the right to water, see, for example: Outcomes of the International Expert’s Meeting on the Right to Water. UNESCO, UNESCO right to water and sanitation, locally adapted solutions Etxea, 2009, pp. 2-4. 87 Empowering the Poor Through Human Rights Litigation Chapter IV are necessary and require exchange and dialogue among sanitation. The mandate of the Independent Expert was stakeholders and practitioners at all levels, often from diverse established and an Independent Expert was appointed in cultural backgrounds and different countries. September 2008. The mandate was renovated as Special Rapporteur on the human right to safe drinking water and 3] Fostering cooperation to prevent and resolve conflicts is sanitation (HRC res 16/2).This renovation of the mandate therefore a paramount task for water governance, and must confirms the will of clarifying the content and advancing include intercultural dialogue on water issues. As the lead towards an implementation of the human right to safe UN agency for science (including water sciences), culture, drinking water and sanitation. the human sciences, communication and education, UNESCO represents a scientific resource for Member States, upon which they can rely to address the societal and technical challenges arising from the situation, and to achieve progress in attaining the MDG targets related to water. 2. Normative content 4] Inequality in accessing water resources is a historic 9] It is General Comment n° 15 on the right to water that problem. Today, millions of people still suffer from inequitable clarifies the scope of the right linking it to adequate standard distribution. Poverty, division of power, privatization and of living and the right to health. General Comment n° 15 states exclusion are among the causes of the problem and the that: ‘The human right to water entitles everyone to sufficient, current water and sanitation crisis. In addition, water is safe, acceptable, physically accessible and affordable water for intrinsically related to environmental health and ecosystems, personal and domestic uses’ and adds that the right to water reinforcing the urgent need for its protection. ‘contains both freedoms and entitlements’. Freedoms comprise the right to maintain access and freedom from contamination, 5] This crisis will dramatically affect the attainment of all MDGs the protection against arbitrary disconnections and the non- by 2015 – not just MDG 7, which seeks to ‘Ensure Environmental discrimination in access, while entitlements refer to allowing Sustainability and halve the number of people without sustainable all people equal opportunities to enjoy the right to safe access to safe drinking water and basic sanitation by 2015’, but drinking water and sanitation as well as participation in all MDGs that have an inevitable connection to it. related decision making-processes. 6] The right to water and sanitation is implicitly mentioned 10] In addition, the Guidelines for the realization of the right in the International Covenant of Economic, Social and to drinking water supply and sanitation, adopted in 2005 by the Cultural Rights (1966). Articles 11 and 12 specify a number UN Sub Commission on the Promotion and Protection of Human of rights that are indispensable for the realization of the right Rights (Sub Commission Guidelines),3 clarify the element of to an adequate standard of living ‘including adequate food, sanitation including at least a latrine. Sanitation concerns the clothing and housing’. The wording of these two articles of existence of appropriate facilities and behaviours. It reduces the Covenant indicates that this catalogue of rights is not exposure to disease by providing a clean environment in which intended to be exhaustive. Since the right to water and people can enjoy a healthy standard of living in a hygienic sanitation is a precondition of securing an adequate standard environment. Sanitation also increases security and privacy of living, it is implicitly enshrined in these articles.2 between men and women and has a special role in educational institutions: separated sanitation for girls and boys at school 7] The Committee has previously mentioned the human right ensures a safe and healthier learning environment. to water in relation to other human rights in General Comment n° 6 (paragraphs 5 and 32) and in General Comment n° 14 on 11] But today sanitation is recognized as a distinct right. the right to health, stating that ‘the right to health extends Indeed, following the Sub Commission Guidelines, the not only to timely and appropriate health care but also to the Independent Expert chose to focus on the human rights underlying determinants of health, such as, access to safe and obligations related to sanitation. She presented a report to the potable water, an adequate supply of safe food, nutrition and Human Rights Council in September 2009. In November 2010, housing’. Despite these recognitions, States were reluctant the CESCR issued a statement on the right to sanitation,4 which and avoided to apply a human rights based approach to water further explained the nature of this right. Sanitation is defined and sanitation. as “a system for the collection, transport, treatment and disposal or re-use of human excreta and associated hygiene”, 8] Following recognition of this right, in March 2008 the UN States must ensure that everyone, without discrimination, Human Rights Council decided to appoint, under resolution has physical and affordable access to sanitation, “in all 7/22, an Independent Expert on the issue of human rights spheres of life, which is safe, hygienic, secure, socially and obligations related to access to safe drinking water and 3. UN document E/CN.4/Sub.2/2005/25. 4. Available at: www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/Sanitation. 2. This interpretation has been developed by the CESCR in its General Comment n° 15. aspx 88 Chapter IV Empowering the Poor Through Human Rights Litigation culturally acceptable, provides privacy and ensures dignity”. resources inside communities, accessibility of water has The Committee is of the view that the right to sanitation a special meaning for women who are often obliged to requires full recognition by States parties in compliance with walk kilometres in order to access sources of drinking the human rights principles related to non-discrimination, water. According the WHO, in order to have access to a gender equality, participation and accountability. minimum of 20 litres per day, the distance of the source of water should be between 100 and 1000 meters or 12] In accordance with the General Comment and the Sub between 5 to 30 minutes total collection time.5 Commission Guidelines, water should also be supplied in an • Economic accessibility: people should have access to adequate and sustainable manner, so as to respect human safe drinking water and sanitation without depending dignity. Adequacy of water should be interpreted extensively on their capacity to pay. However affordability does not and the level fixed should take into account the conditions mean free of charge, except in those situations in which and necessities of the populations, including religious, social the beneficiaries are not able to pay for it. and cultural elements, as well as economic. Furthermore, • Non-discrimination: The non-discrimination clause in sustainability requires that access to water be preserved for relation to water and sanitation demands that access future generations to the extent possible. to water be ensured for all, without distinction on any basis. Special attention should be given to poor and 13] In addition, adequacy refers to the following preconditions marginalized people living in rural areas where sanitation in relation to the right to water and sanitation: Availability: is often neglected and water is not sufficient or of refers to the sufficient and continuous supply of safe water and dubious quality. For this reason, positive actions should sanitation for personal and domestic use (drinking, cooking, be undertaken to ensure access to safe drinking water washing and sanitation). But what constitutes the sufficient and sanitation for all human beings. And amount of water to be provided? General Comment n° 15 does • Information: access to information empowers not define a specific amount of water, but instead endorses participation in the administration and enjoyment of conformity with World Health Organisation (WHO) guidelines, water resources. noting that some individuals or groups may require additional amounts due to health, climate or work conditions. 16] Quality of water refers to the fact that water should be clean to be safe in taste, odour and colour as well as not 14] The Independent Expert document on the issue of polluted and free from microbes and parasites, chemical and human rights obligations related to access to safe drinking radiological substances. water and sanitation, Climate Change and Human Rights for Water and Sanitation, provides clarification on the meaning 17] The Indian case Attakoya Thangal v. Union of India of availability: “The most widely used indicator of water W.P.6 describes how clean water is related to environmental scarcity is water availability less than 1,000 cubic meters per issues and the right to life. The petitioners claimed that a inhabitant a year. This is used as a threshold below which it is scheme for pumping up groundwater to supply potable water assumed that the social demand for water cannot be addressed. to the coral isles of Lakshadweep in the Arabian Sea would Nevertheless, the water for domestic use is only calculated as disturb the freshwater equilibrium, leading to salinity in the a small part of the water used in total, less than 10% of the available water resources and causing greater long-term harm global average, while agriculture and industry are much larger than short-term benefits. The Kerala High Court, recognizing water users (70% and 20% respectively in the global average). the fundamental importance of the right to water, requested If you assume that a quantity of 100 litres per capita per day that the Central Ground Water Board further investigate the is needed to cover the right to water, this amounts to 36,500 claim, monitor the process, and present a report. The Court litres or 36.5 cubic meters per capita and per year. This is just recognized the right of people to clean water as a right to life a fraction of the water available even in the most arid regions. enshrined in Article 21, observing that: ‘The right to life is In this regard, the IPCC underlines that ‘access to safe drinking much more than a right to animal existence and its attributes water is more dependent on the level of technical infrastructure are manifold, as life itself. (…). The right to sweet water and of the water rather than the quantity of runoff.’ the right to free air are attributes of the right to life, for these are the basic elements which sustain life itself.’7 15] Accessibility to water and sanitation means access at various places, within, or in the immediate vicinity of each 18] Water and sanitation should be affordable, which means household, educational institutions, professional places and that direct and indirect costs and charges associated with wherever necessary to protect human dignity and public health. Accessibility includes the following aspects: 5. See “table summary of requirement for water service level to promote health” in Guy Howard and Jamie Bartram, Domestic Water Quantity: Service level and Health, in available at: www.who.int/water_sanitation_health/diseases/WSH03.02.pdf • Physical accessibility: safe drinking water and 6. 1990 KLT 550. sanitation should be reachable for all groups of the 7. See also case law from India on the right to water connected to the right to life: in M.C. Mehta v. Union of India and Others Case (1988), Virendra Gaur and others v State of population. Because of their role in managing water Haryana (1995) and Vellore Citizens Welfare Reform v. Union of India. 89 Empowering the Poor Through Human Rights Litigation Chapter IV securing water must be affordable Components and sub components of the right to water and sanitation by any beneficiary without causing a substantive diminution of his or her capacity to afford essential goods. People are not entitled Accessibility Physical accessibility to free water and sanitation Economic accessibility services, but rather are expected Non Discrimination to contribute financially, and in a Accessibili Access to information reasonable way, to their supply. Any payment for water services has to be based on the principle of equity. The Committee has clarified the content of the affordability of water Cross-cutting Quality principles Availability and sanitation and the relation to Potable and clean water Non-discrimination, equal Quantity the obligation to fulfil. This will be Protection and protection, participation Regularity explained under the section on the admnistration of the accountability, adequacy, Sustainability obligation to fulfil. sources of water and its impact and sustainability distribution 19] Water should be accountable: access to justice and effective remedies should be available and easily claimable by any person who has been denied access to Affordability water and sanitation. This includes Subsidies access to judicial and non-judicial Reasonable charges mechanisms. 20] Despite this framework, difficulties appear when fixing the level of water sufficient to live a life in dignity. For example, was the result of jointly efforts of a number of grassroots the Human Development Report 2006 states that 20 L/person/ organizations including the Centre on Housing Rights and day constitute sufficient water. Moreover, WHO Guidelines Evictions (“COHRE”), the Coalition against Water Privatization quantify basic access to water saying that: 20 l/d has a (CAWP) and the Centre for Applied Legal Studies (“CALS”) high impact on health and from 50 l/day to secure all health at the University of Witwatersrand. The victims, a poor requirements and from 100 l/d access is considered optimal. community living in a suburb of Soweto alleged a violation of However, these indicative amounts should be adjusted the right to water arguing that the basic water policy violated depending on the needs of particular groups, their situation art. 27(1) of the Constitution and that the installation of of vulnerability and the related environment (indigenous prepaid meters was discriminatory and administratively groups, pregnant women, ill people, older people or people unfair. The petitioners solicited to increase the minimum with HIV-AIDS). from 25 to 50 litres per day. Indeed, for many years the petitioners piped an unmetered and unlimited supply of 21] The Committee followed this approach, fixing an amount water charged R68.40 (about US$9) per month on the basis of approximately 50 litres of water per day, with 20 litres of a deemed monthly consumption of 20 kiloliters of water as a minimum. However, the Committee was aware that per household. However monthly consumption attained 67 marginalized and poor people would need more litres of water, kiloliters/month and habitants from Soweto did not pay the and stressed the importance of ensuring that ‘disadvantaged charges. After the implementation of a new plan in Soweto and marginalized farmers, including women farmers, have aiming at reducing water losses and improving rate payment, equitable access to water and water management systems’. the suburb of Soweto was selected in 2004 as the area for first implementation of the project. A system of pre-paid meters 22] The case Mazibuko v. City of Johannesbourg, the first was installed which would provide each household with 6 decision on this issue in South Africa,8 is one of the most kiloliters of free water per month or 25 liters per person per interesting cases related to the right to water. The decision day. Habitants who will consume more should pay in advance. However the system, in the view of the Soweto habitants 8. In South Africa, the Bill of Rights (1996) states that ‘Everyone has the right to have appeared to be discriminatory since the pre-paid system was access to (…) sufficient food and water’ (Sec. 27) and the Water Services Act (1997) defines ‘basic water supply’ as ‘the prescribed minimum standard of water supply not established for other “non-payers” much of them from services necessary for the reliable supply of a sufficient quantity and quality of water to households, including informal households, to support life and personal hygiene’. governmental institutions. A discrimination against the 90 Chapter IV Empowering the Poor Through Human Rights Litigation poorest was argued and as a result, the petitioners asked the situations: (a) at a minimum flow rate of not less than 10 Courts to declare the free basic water policy unconstitutional. litres per minute; (b) within 200 metres of a household; and (c) with an effectiveness such that no consumer is without a 23] Contrary the decisions of the lowers Courts, the supply for more than seven full days in any year. The Court, Constitutional Court of South Africa decided that the water though, decided that disconnection of an existing water policy of 25 liters per person was “reasonable” with article supply constituted a violation of the obligation to respect 27(1) of the Constitution and that the procedure was fair and the right of access to a water supply. legal, thus not discriminatory. High Court and the Supreme Court of Appeal fixed respectively a minimum of 50 and 42 27] However, in the case Manqele v Durban Transitional liters liters per person per day as the minimum to meet basic Metropolitan Council in South Africa, Durban High Court requirements for the households. The Constitutional Court (2002), Ms. Manqele, an indigent and unemployed mother rejected this approach based on the “minimum” amount of of seven children, suffered the disconnection of her water water and instead ruled on the basis of what was “reasonable”. supply as a result of non-payment of a water invoice for The arguments based of the “reasonabless approach” of the an outstanding amount of R10,000 (about UD$1,400). Ms. Court were the following: the amount of 6 kiloliters of free Manqele alleged a violation of the Water Services Act 108 water was allocated to rich and poor alike and the city was of 1997 due to the disconnection of water sources, which not obliged to provide a specific amount of water but rather for her was unlawful and prejudicial to her dependants. The to progressively fulfill the right. South African Water Services Act 108 prescribed a minimum standard of water supply services on quantity and quality for households, including informal households. As no guideline or regulation defining the quantity existed at that time, the Durban Transitional Metropolitan Council set a level of 3. StateS obligations 6 kilolitres of water/month for free for domestic use as the amount that would fulfil obligations related to water under 24] The tripartite division of state obligations to respect, the Act. However, Ms Manqele’s consumption far exceeded protect and fulfil is discharged, when it comes to the right the 6 kilolitres. Since no guidance or regulation existed to to water and sanitation, in the following manner: interpret the content of the right to water in this specific case, the Court found that it was unenforceable. Durban 25] The obligation to respect corresponds to the Metro Council therefore was forced to temporarily reconnect government’s duty not to interfere with access to water. her water supply. This case underlines the necessity of It includes refraining from interfering in equal access to comprehensive regulation and national legislation on the adequate water; and arbitrarily interfering with customary or right to safe drinking water and sanitation in order to clarify traditional arrangements for water allocation. Disconnection the minimum core contents that will allow enforcement of or contamination of water supply would in certain cases – the right to water. when unfairly, unjustified and arbitrary – also constitute a violation of the obligation to respect. 28] The obligation to protect means that governments are obliged to take action in order to impede third parties 26] The Committee clarified that a disconnection should from infringing water and sanitation rights. This obligation meet the following conditions: respect the due process includes, for example, the obligation to avoid water pollution and appropriate form of procedural protection. Numerous and to control the unaffordable increase of prices of water and jurisprudence has provided specific content. In the case sanitation supply. The Committee mentions the responsibility Residents Bon Vista Mansions v. Southern Metropolitan of the private sector in relation to this obligation. Indeed, Local Council,9 the High Court of South Africa stated that it affirms that States should follow up private actions with disconnecting the water supply constituted a violation of democratic principles, as well as respect of the right to the right to water. The High Court ordered the municipality participate in the design and implementation of policies. to reconnect the water supply since the disconnection Poor populations are forced to rely on informal water supply was not ‘fair and equitable’ in accordance with Section systems and this micro dimension should be included when 4(3) of the South African Water Services Act 108 (1997), addressing the responsibility of States. since reasonable notice was not given to the residents of the Bon Vista Mansions. Following this jurisprudence, the 29] In the case Menores Comunidad Paymenil s/acción de Implementing Regulation of Water Services Act, Section amparo10 the indigenous Mapuche community of Paymenil 3(b) of 2001 clarified that the minimum quantity of potable presented an injunction through the Public Defender of water should correspond to 25 litres per person per day or Minors of Neuquen against an oil company that polluted 6 kilolitres per household per month in the following three their water supply and environment with lead and mercury. 9. 2001 (App. n° 12312). 10. Cámara de Apelaciones en lo Civil de Neuquen, Sala II, 19 de mayo de 1997. 91 Empowering the Poor Through Human Rights Litigation Chapter IV The Public Defender stressed that since access to water is right to safe drinking water and sanitation and ensure universal a fundamental right, and since the right to health can access. In the case of the right to water and sanitation, this be guaranteed through access to water, the Government obligation is disaggregated into the obligation to facilitate, neglected to protect the health of the population, especially promote and provide. children. After analysing the evidence, the Court of Appeal considered that the government of Argentina failed to act 33] The Committee has clarified the content of this obligation upon the considerable warnings given by other authorities as follows: the obligation to facilitate requires the State on the situation of pollution and sustained the injunction, to assist individuals and communities to enjoy the right to ordering them to: water. The obligation to promote compels the State party to take steps in order to ensure appropriate education regarding (1) Supply 250 litres fresh water daily/habitant within two the hygienic use of water as well as the protection of water days of the decision sources. And the obligation to provide obliges States parties (2) Ensure the supply by any appropriated mean within forty- to provide water whenever individuals or groups are unable. 14 five days of the decision (3) Identify the damages and provide necessary treatment 34] States are obliged to fulfil their obligation by (4) Take appropriate actions to preserve the environment. implementing legislative measures to ensure access to safe drinking water and sanitation, and are compelled to adopt a national water strategy, a plan of action and to monitor the 30] As a result of these orders, and taking into account that the realization of the right. measures were not taken in their totality by the Government, the Public Defender of Minors of Neuquen submitted the case 35. In order to ensure the affordability of the right, States to the Inter American Commission on Human Rights (Mapuche parties must use: (a) a range of appropriate low-cost Paynemil and Kaxipayiñ Communities).11 The Commission, techniques and technologies; (b) appropriate pricing policies alleging failure to comply with the court decision, ordered such as free or low-cost water; and (c) income supplements. the State to supply the indigenous community of Paynemil Mapuche, which had been exposed to water contaminated with lead and mercury, with safe drinking water, and to Core obligations on the right to water and ascertain damages and provide necessary medical treatment sanitation (obligation to protect and to fulfil). • Ensure access to the minimum essential amount of water, sufficient and safe for personal and domestic use 31] In the case Centre on Housing Rights and Evictions • Ensure the right to access to water and water facilities and (COHRE) v. Sudan,12 the African Commission on Human and services on non-discriminatory basis with special emphasis People’s Rights has for the first time elaborated on the right on marginalized and vulnerable groups to water under the African Charter on Human and People’s • Ensure physical access to water facilities – namely Rights. The case deals with forced eviction, destruction of regularity, sufficiency and proximity of households – as well as personal security public facilities, and killings and rapes in the Darfur region of • Ensure equitable distribution of water and sanitation the Sudan against black African tribes, in particular, members facilities and services of the Fur, Marsaleit and Zaggawa tribes. After analysing the • Adopt and implement a national plan of action and strategy forced evictions and the failure of the government to protect on participatory and transparent basis including indicators its citizens by providing effective remedies, the Commission and benchmarks with special emphasis on marginalized and recalled its reasoning in the SERAC Case and stated that vulnerable groups the right to water is also guaranteed by the African Charter • Monitor the implementation of such a plan of action and in its Articles 4, 16 and 22. The Commission affirmed that strategy ‘being complicit in looting and destroying foodstuffs, crops and • Adopt low targeted water and sanitation programmes. livestock as well as poisoning wells and denying access to water sources in the Darfur Region13 caused a violation of the right to a highest attainable standard of health’. The Commission also confirmed the violation of the right of all peoples to their economic, social and cultural development. 32] The obligation to fulfil asks governments to provide necessary resources in order to progressively implement the 11. Case n° 12.010. 12. African Commission on Human and People’s Rights, Communication 296/2005. 13. Op. cit. para. 126. 14. See paras. 27 and 28. 92 Chapter IV Empowering the Poor Through Human Rights Litigation groups, due to their historic exclusion from decision-making Core elements for a strategy or programme to processes. ensure the right to safe drinking water and sanitation 38] In relation to children, Article 24 para. 2 of the Any programme or strategy to ensure access to safe drinking Convention on the Rights of the Child requires States parties and sanitation should (a) be based upon human rights law and to combat disease and malnutrition ‘through the provision principles; (b) cover all aspects of the right to water and the of adequate nutritious foods and clean drinking water’. corresponding obligations of States parties. It should aim to: Educational institutions should supply children with adequate (a) Reduce depletion of water resources through unsustainable drinking water and sanitation as a matter of urgency. extraction, diversion and damming (b) Reduce and eliminate contamination of watersheds 39] States should therefore provide sufficient water but and water-related eco-systems by substances such as also water facilities.In the case City Council of Pretoria v. radiation, harmful chemicals and human excreta Walker,15 the Constitutional Court of South Africa analysed (c) Monitor water reserves the non-discrimination clause in a decision related to water (d) Ensure that proposed developments do not interfere with access to adequate water charges between different municipalities in South Africa. Mr. (e) Assess the impacts of actions that may impinge upon Walker, the respondent, resident in a white area called Old water availability and natural ecosystems watersheds, Pretoria, owed to the City Council of Pretoria, an amount of such as climate change, desertification and increased soil R4753.84. Without denying he owed the charges, he argued salinity, deforestation and loss of biodiversity that the electricity and water charges were levied on a (f) Increase the efficient use of water by end-users differential basis by the Council of Pretoria. He argued that the (g) Reduce water wastage in distribution white area of Old Pretoria was differently charged in relation (h) Create response mechanisms for emergency situations to the black, composed of the cities of Atteridgeville and (i) Establish competent institutions and appropriate Mamelodi. Indeed, the residents of Old Pretoria were taxed institutional arrangements to carry out the strategies and on a tariff based on actual consumption whereas residents programmes of the black, poorly developed in terms of infrastructure for (j) Provide systems of accountability for citizens, NGOs and grass roots organizations in general, and municipal services, were levied on the basis of a uniform rate (h) Assist other States through international cooperation. (flat rate) for every household. Mr Walker argued that this differentiation meant that the residents of Old Pretoria were subsidizing the two cities. In addition, the council adopted a policy of selective enforcement against defaulters. The Council took legal action to recover arrears from residents of Old Pretoria but failed to take similar action in the townships, 4. Duties of equal protection, where a culture of non-payment for services existed. non-discrimination and special attention 40] The Court analysed whether the differentiation meant to vulnerable and discrimination and concluded that in relation to the policies adopted, they were rationally connected to the governmental marginalized groups objectives, so no discrimination was implicit. However, the Court stated that the differentiation between black and white 36] Everyone, without discrimination, is entitled to have residents constituted an indirect violation of Section 8(2) of access to safe drinking water and sanitation. However, the the Interim Constitution of South Africa, and called to mind Covenant underlines the groups of population that might that under apartheid differentiation was based in particular be discriminated in relation to access to water, and asks on geographic and racial grounds. The Court ruled that Mr. for prioritizing vulnerable and marginalized groups such as Walker was discriminated against as a racial minority. The children, women, ethnic communities as well as refugees, Courts affirmed therefore that no racial group should be made older persons, poor, rural and nomadic communities who to feel that the legal framework is likely to be applied against suffer from scarcity or non-access to water resources and its members. water supply. The Covenant thus proscribes any form of discrimination on any grounds and asks the State to take 41] In Colombia, two decisions concerning the protection of appropriate measures to facilitate and invest in water displaced people and indigenous communities highlighted the resources, in order to empower people in achieving the right necessity to elevate the status of the right to water to that of to proper water and sanitation. an autonomous right. Indeed, the Constitutional Court in the case T-025 of 2004 affirmed the right of displaced people 37] General Comment n° 15 pays special attention to women, to have access to safe drinking water and sanitation on an people suffering from HIV/AIDS and ethnic communities. These constitute the most discriminated-against population 15. (CCT8/97) 1998 ZACC 1; 1998 (2) SA 363; 1998 (3) BCLR 257 (17 February 1998). 93 Empowering the Poor Through Human Rights Litigation Chapter IV equal basis. In the case T-760 of 2008 urgent action was living and to adequate food, but not as a human right with ordered to provide water access in a situation of malnutrition, freedoms and entitlements. There is therefore an urgent need which led to the death of several members of an indigenous to advance its recognition and inscription in constitutional community, including children. and legal frameworks. 44] Recourse to the courts is only one of several means to Women, water and sanitation implement the right, since administrative measures and public Generally, women are responsible not only for managing the accountability should lead to its fulfilment, implementation water supply in households but also providing this supply. and dissemination as a human right. At the 2nd World Water Forum in The Hague (2000) it was recognized that, in addition to being prime users of ‘domestic 45] The privatization of water services has been controversial water’, women used water in their key role in food production, and that women and children are most vulnerable to water- since water supply, especially for basic needs, has been related disasters. identified primarily as a public good. Privatization often relies Restricted access means that women spend a large amount on market profit and commercial priorities rather than the of their time collecting water, time which could be spent on respect of human rights. Privatization often results in reduced income-generating activities or other family activities. Girls who access to basic social services by the poor living in slums and are responsible for collecting water may be unable to attend squatter settlements. When effective it improves sanitation, school because of this duty. Collecting water may also be dangerous and expose women and girls to the risk of sexual and but results in an increase in tariffs. Higher prices for water gender-based violence. In areas where water is only available mean the poor have to use less or go without. It might also in public settings, these should be properly lit and centrally lead to interruptions of the supply or to deterioration in the located in the community, to avoid the need for women to enter quality of water. unsafe areas. Women’s central role in the provision of water means that they should also be involved in all decision-making processes involving water supplies for the community. 46] The privatization of services does neither presume that the State is no longer responsible for the fulfillment of rights, Cultural obstacles aggravate the situation, such as exclusion from land ownership, heritage law or structural composition of nor that its primary responsibility has been substituted the community, which preventing women from being recognized for by a private entity. The State continues to be primarily as citizens with equal rights. accountable and responsible for the progressive realization Unsafe water supplies also constitute a serious health problem. of the right even when the provider of the service remains The absence of clean water significantly increases the impact responsible. Privatization cannot reduce accountability and of HIV/AIDS. Bad hygienic conditions affect women and men local control. There is a need to strengthen participatory living with HIV who need healthy living conditions, including a safe water supply. Women affected by HIV/AIDS are not able monitoring mechanisms, as it is extremely difficult to reverse to walk long distances to collect water and are more exposed to privatization once implemented. For this reason, the respect additional diseases. of human rights should be incorporated into privatization Sexual and reproductive health is also directly related to processes and services in order to maintain inclusion, sanitation and water issues, and can be affected by infections participation and quality of services, and increase welfare. transmitted by unsafe water. 47] Examples of participatory monitoring systems applied to privatization are increasingly effective. For example, the 42] NGOs have a role to play in advocating for a comprehensive case of the privatization of water services in Cochabamba, anti-discriminatory legal framework, monitoring the provision Bolivia, during the so-called ‘Water War’ of 2000, clearly of legal remedies, and promoting the design of targeted showed how privatization became a burden for low-income public policies that refrain from discrimination. families, who were not able to pay the charges after receiving bills double and triple their former amount. Following civil society protests, media involvement and the significant participation of women, civil society rejected the water law 5. Limits to the right to formulated by the government, and asked for the modification safe drinking water and of Bill 2029 on Drinking Water and Sewage Law and the sanitation revocation of the contract with the private company.16 Civil society movements succeeded. 43] Misunderstandings in relation to the content on the right 48] The case of the Indian NGO Tarun Bharat Sangh (TBS) in to water and sanitation and its related State obligations, the state of Rajasthan in India is a good example of how the as well as economic and profit motives impede its total community participation can improve people’s lives. The NGO recognition as an autonomous human right. Indeed, in different national legal frameworks, the right to water is 16. For more information see: Juan Barrera Cordero, La Guerra del Agua en Cochabamba, en Investigación Ambiental, 2009, I (I), pages 91-100, available at: www.revista.ine.gob. still linked to the right to life, to an adequate standard of mx/article/viewFile/22/17. 94 Chapter IV Empowering the Poor Through Human Rights Litigation supported the villagers by providing water services linked • Integrate a gender perspective in water issues to big dams. Villagers were able to eat several times a day • Create public policies congruent with the elements of (rather than just once), and women had the opportunity to the human right (availability, accessibility, affordability contribute to community life with less time-consuming tasks. and quality of water) and with special emphasis on non- People of the community were also taught how to conserve discrimination and equal protection water and use rainwater harvesting. The NGO has motivated • Share appropriate knowledge and technologies a social and environmental transformation at low cost for the • Encourage the participation of stakeholders, water farmers of the region. user associations and experts, women, and NGOs in the planning, management and conservation of water • Increase international aid, especially for those countries who suffer from lack of access to safe drinking water and sanitation. 6. Strategies for justiciability 49] The following actions aim to increase effectiveness in the implementation of the right to safe drinking water and sanitation. The role of grass roots organizations in this End Water Poverty respect is crucial, as independent actors with a strategic role End Water Poverty: sanitation and water for all, is an to play between communities and the supply provided by international campaign led by the NGO Water Aid, and driven public and private actors: by a growing coalition of like-minded organizations, that calls for immediate action for the benefit of the poorest and most vulnerable people, including disabled people, older people • Draw up short, medium and long-term strategies for and women. It argues that access to affordable services is a guaranteeing the right to access safe drinking water and fundamental right. The campaign relies on key principles for sanitation the eradication of poverty, the sustainability of services, the accountability of governments to their citizens and equal • Update water regulations distribution. It highlights the roles of water, sanitation and • Include the right to access safe drinking water and hygiene education as key building blocks for development and sanitation in all institutional documents, laws and seeks to achieve real policy change to improve the lives of strategies as an enforceable right developing communities globally. • Integrate the issue of cultural diversity in water For more information see: www.endwaterpoverty.org. management Exercises 1) Kindly analyze the legal framework on the right to water in your country: who holds water rights? And who enforces them? Please develop. 2) What is water scarcity? How to balance the daily increasing demands with the limited supplies in terms of fulfillment the right to safe drinking water and sanitation? 3) Analyse the assertion “Water scarcity is responsible for the internal displacement of millions of people through water conflicts and environmental conditions such as drought” in light of the so called “cluster approach”. 95 The right to enjoy the benefits of scientific progress and its applications – 97 – 1. Definition of the right to enjoy the benefits of scientific progress and its applications – 99 – 2. Normative content a. Progressive realization b. Science and human rights principles c. Human rights-based approach to science – 101 – 3. Core obligations SCIENTIFIC PROGRESS – 103 – 4. The relation of the right to other human rights – 105 – 5. Strategies for justiciability Chapter IV Empowering the Poor Through Human Rights Litigation The right to enjoy the benefits of © UNESCO/Esther Mooren scientific progress and its applications Each day the world becomes more interconnected, a transformation accentuated by the speed of modern globalization. Science and technology play a central role in global and local linkages and advancements. Science and its applications have transformed our understanding of the world we inhabit and the ways in which we live in it. The right to enjoy the benefits of scientific progress and its applications seeks to ensure equitable distribution of the knowledge and tools that impel social advancement. At its essence it is a powerfully egalitarian proposition that comprises both individual and collective dimensions. These dimensions, in turn, create entitlements that require significant international cooperation in relation to the sharing of the knowledge, technical advancements and scientific resources necessary for this right to be fully realized. Until recently, neither the scientific nor human rights communities had given this right much consideration; however, its implications are now being investigated and its potential discussed. 1. Definition of the right to enjoy 2] Article 27 of the Universal Declaration of Human Rights (UDHR) contains two paragraphs related to science. The first the benefits of scientific stipulates that everyone is entitled to share in scientific progress and its applications advancement. The second deals with the rights of scientists to the protection of their moral and material interests in any 1] The right to enjoy the benefits of scientific progress and its discovery or development they make or produce. applications is expressly granted under international human rights law. It is specified in both the Universal Declaration of 3] Following the UDHR, the International Covenant of Human Rights1 (Article 27) and in the International Covenant Economic Social and Cultural Rights (ICESCR), legally speaking of Economic Social and Cultural Rights2 (Article 15(1)(b)). To the strongest enumeration of state obligations concerning date, it is a right that has carried little weight in political such issues, recognized that it is the ‘right of everyone to decision-making or the human rights movement, apart from enjoy the benefits of scientific progress and its applications’. mention in international instruments concerning genetic data, Here, the right is linked with two other provisions on biodiversity and states’ economic duties: for example, Articles intellectual property and cultural participation. 9 and 13 of The Charter of Economic Rights and Duties of States, adopted by the UN General Assembly on 12 December 4] There have been few substantial attempts to interpret 1974; Article 19 of The International Declaration on Human the right to enjoy the benefits of scientific progress and its Genetic Data, passed by the UNESCO General Conference on applications. The lack of a consensus as to what the right to 16 October 2003; and Article 15 of The Universal Declaration scientific benefits entails has made, and continues to make, on Bioethics and Human Rights, passed by the UNESCO implementation difficult. However, the neglect of the right can General Conference on 19 October 2005. be juxtaposed with its potential to reshape research agendas and development programmes and, in general, to do much good. 1. UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 5] Under the auspices of UNESCO, three expert meetings have 217A(III). taken place on the right. These meetings have reflected upon 2. UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations. the role such a right plays in today’s world which is dependent 97 Empowering the Poor Through Human Rights Litigation Chapter IV upon science and technology.3 The most comprehensive that technology is distinct from science as it uses existing analysis of the right took place at a meeting in 2009 and knowledge to develop solutions to practical problems with produced the Venice Statement on the Right to Enjoy the the aim of seeking profit. As such, some may argue that Benefits of Scientific Progress and its Applications. technological developments are not covered by the right to science. Most advocates agree, however, that such a 6] The Venice Statement holds that the right to enjoy the limited interpretation cannot apply and technological benefits of science is applicable to all fields of science and its developments should be included within any definition of applications. Therefore, scientific progress in pharmaceuticals, ‘its applications’ when considering the right to science. The agriculture, food production, space engineering, environmental UN Committee on Economic, Social and Cultural Rights (the management, electronic communication and all other fields of UN Committee) is yet to provide guidance on the issue. science are to be shared with everyone. Furthermore, the Venice Statement proclaims that the right to science is a right that can c. Enjoyment of the benefits. These are understood to be be enjoyed both individually and collectively. An example of an material benefits that can be enjoyed by individuals in day- individual entitlement could be the access to pharmaceutical to-day life. To construct an exhaustive list of all benefits facilities. A collective entitlement in an environmental setting brought by science and its applications would be virtually could be where a development project is proposed for an area impossible. Generally, benefits from scientific progress can previously unexposed to development. Here, the local community be either direct or indirect and arranged into three broad would hold a collective entitlement to knowledge gained through groups: short-term, long-term and public benefits. environmental as well as public health impact assessments, based on scientific knowledge of how industrialization is impacting Short-term benefits include upfront payments or employment human and environmental health. and research opportunities available to communities or participants involved in the scientific endeavours. For example, 7] The convergence of the right to scientific benefits, if the development of biological resources, such as nutritional protection of intellectual property and the entitlement to products, is conducted in accordance with the right to science, participate in culture seems to make an unusual and uneasy then the members of local communities should be trained partnership. The tension between a collective entitlement and substantively participate in the development processes, to scientific benefits and the individual ownership provided resulting in another short-term benefit – improvement of in- for by intellectual property regimes is one example of the country technical and institutional capacity. seeming peculiarity in grouping these provisions. There is therefore a need for deeper reflection upon these issues. The Long-term benefits that are not public benefits normally grouping perhaps indicates that the right to science could be occur when a successful application is derived from research. used to influence and modify intellectual property law to be In this instance, intellectual property rights generally result more considerate of human rights implications. It should be and bring monetary gains. This can also result in income from noted that none of these rights are absolute and that they cultivation and supply of material. However, under the current must be balanced against other human rights obligations. economic structure access to successful applications for marginalized nations, communities and individuals have been 8] The right to science embodies the idea that progress leads difficult to secure. The main barrier is cost which restricts to improved social conditions and therefore requires that the access to a beneficial scientific application. The right to the applications and benefits created by scientific progress be benefits of scientific progress could therefore be utilized to shared with everyone, not just those who contributed to the reinforce calls for more equitable access to medicines and developments. seeds for small-scale agricultural farming. 9] The terms of the right which are important to any The public benefits of science, such as the development construction of a definition are: of medicines to address disease, better infrastructure, and machinery to improve water management, food production a. Science. The search for discovery of new knowledge as an and protection against natural disasters and so on, should be end in itself sets scientific research apart, and has been enjoyed by all under the right to science. used to differentiate between science and other areas of culture and innovation. 10] The right to the benefits of scientific progress should also be defined in terms of setting the agenda for scientific b. Its applications. Controversially, the applications of progress. That is, the needs of the marginalized, poor and science today are commonly viewed in terms of technology. those traditionally excluded from science should be placed The distinction between technology and application is on the research and development agendas of scientific arguable; however, some in the scientific realm assert communities in a meaningful, participatory and engaged manner to ensure that the benefits of science hold practical 3. Amsterdam (2007), Galway (2008) and Venice (2009). benefits for their lives and assist in poverty eradication. 98 Chapter IV Empowering the Poor Through Human Rights Litigation 2. Normative content general access and availability. The Hole-in-the-Wall project, for example, refurbishes old computers and installs them along with free internet access in disadvantaged communities in rural 11] In spite of difficulties encountered in evolving a India to allow residents to gain computer and internet skills.6 definition of the right to the benefits of science, discussions concerning the normative content of the right have begun. 16] International technical assistance is also emphasized Any discussions or hypothesis on normative content should in the ICESCR and should be used to bolster poorer nations’ consider the fundamental principles of human rights, in access to the benefits of scientific progress and assist in particular non-discrimination, with the aim of fostering the progressive realization. Richer nations should develop development of an enabling and participatory environment or assist the development of low-cost alternatives for for scientific progress, which would ensure protection from communications and computer technologies, so as to increase abuse and the adverse effects of science and its applications.4 their use in poorer nations. Such developments are occurring on an individual level. For example, the founder and director of the Massachusetts Institute of Technology (MIT) Media Laboratory, Nicholas Negroponte, has developed a laptop at a. Progressive realization very low production cost. The laptop incorporates solar power 12] The belief that communities can attain respect for all and other technologies to neutralize the cost of use so that human rights through economic, scientific and social progress the poorest families can gain access to computer technology.7 is a strong, recurring theme in the ICESCR, reflected in the Steps to establish national frameworks and international principle of progressive realization.5 States obligations are partnerships to secure and share such developments would be to be achieved incrementally by drawing upon the maximum advocated by the right to science. of a nation’s available resources. 13] The right to the benefits of science embodies the b. Science and human rights principles idea that progress leads to improved social conditions and therefore requires the applications and benefits created 17] The right to enjoy the benefits of scientific progress must by scientific progress to be shared with everyone, not just be interpreted and applied consistently with fundamental those who contributed to the developments. Scientific human rights principles, such as respect for human dignity, developments or applications that can greatly improve social non-discrimination, gender equality, accountability and conditions should therefore be adapted to become available, participation, and with particular attention paid to the needs accessible and appropriate so that everyone can enjoy the and position of disadvantaged and marginalized groups. benefits. Otherwise minority and marginalized communities are left behind. 18] Human dignity, in relation to interpreting the right to the benefits of scientific progress, can be used both as a standard 14] One area where scientific progress could be adapted is for scientific research to ensure informed, autonomous electronic communication and technologies. At present, consent is obtained and as a constraint regarding scientific under 30 per cent of the world’s population has access to policy.8 Governments must therefore appraise the implications the internet and computer technology. Computer illiteracy is of development and availability of science and technology also a barrier to obtaining employment. There is therefore a on human dignity. Such appraisals should consider the need and indeed an obligation under the right to the benefits frameworks of distribution of positive contributions and of science, for nations to assist in surmounting the cost of protection from damaging or dangerous repercussions. such technologies so as to make them accessible to and Indeed, science can constitute a challenge or an affront to appropriate for communities affected by poverty. Programmes human dignity (for example, during the Second World War need to be developed and implemented that consider the when scientific experiments were performed on political and notion of ‘available resources’, and which also ensure that civilian prisoners). segments of society are not excluded from enjoying the right. 19] An area of scientific progress that has received significant 15] In high to middle-income countries programmes should international attention is research involving the human be implemented to ensure that indigenous, immigrant and genome. Civil society and some national governments have rural communities have access to computer technologies. raised serious concerns about the possibility of discriminatory In countries where access to computer technologies is low, practices in and around genetic research and development. programmes need to draw on available resources to increase As a result of growing concerns UNESCO prepared the 4. The Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its 6. Details of The Hole-in-the-Wall Project can be found at www.hole-in-the-wall.com/ Applications, can be accessed through the United Nations Educational, Scientific and abouthiwel.html. Cultural Organization (UNESCO), The Right to Enjoy the Benefits of Scientific Progress and Its Applications, France: UNESCO (2009). (Venice Experts’ Meeting Report). 7. Details of the project can be accessed at http://one.laptop.org. 5. ICESCR Article 2(1); The United Nations Committee on Economic Social and Cultural 8. A.R. Chapman, ‘Towards an understanding of the right to enjoy the benefits of scientific Rights (General Comment n° 17) paras 25–27. progress and its applications’, Journal of Human Rights, 8 (2009) p. 12. 99 Empowering the Poor Through Human Rights Litigation Chapter IV Universal Declaration on the Human Genome and Human a tool that increases accountability. In relation to the right Rights to provide parameters for this new scientific field. to science, participation translates into societal involvement The Declaration underscores the importance of all genetic (at the least) in setting priorities for and the planning of research being conducted with respect for human dignity and scientific progress. UNESCO advocates the use of a more freedom and in compliance with human rights. inclusive relationship dynamic to involve and empower people and communities in decisions about science and technology 20] When advocating for the right to the benefits of scientific priorities and policies. Such changes to social governance progress, a central argument is that the right requires that could utilize scientific advancements such as the internet precaution be exercised when researching, developing and and mobile phone applications to raise and discuss issues in distributing scientific endeavors, so as to be as certain as a public, transparent and accountable forum. possible that negative and harmful impacts that undermine a person’s dignity do not occur, particularly in already 25] Natural resource management is a contemporary and marginalized communities. rapidly evolving arena where scientific research is fundamental to public policy, corporate actions and the quality of life, 21] The right to enjoy the benefits of scientific progress enjoyed by each of us. Community participation is a growing and its applications applies equally to everyone, without phenomenon that draws upon a collection of international discrimination of any kind. Achieving equitable access to the legal instruments from both human rights and environmental opportunity to benefit from science is therefore central to law. The development of prior free and informed consent the realization of the right. In order to practice the right as a requirement before development or industrial activities in a non-discriminatory manner, both protective measures take place on indigenous lands is one embodiment of the prohibiting discrimination and active measures such as principle of participation. However, the quality of community positive discrimination for groups traditionally excluded from participation must be examined and protected. The magnitude scientific endeavors must be taken. of natural resource use and management across the globe should not distract from endeavors to focus on details of local 22] The UN Committee has provided explicit and repeated human rights enactment in an environmental context. guidance emphasizing that the realization of every human right must be sought with special attention paid to women, 26] The right to the benefits of scientific progress could minorities, the poor, indigenous peoples, rural and play a protective role in securing meaningful community remote communities and other disadvantaged groups. The engagement with natural resource management, ensuring that right to the benefits of scientific progress must therefore be communities gain access to the latest scientific knowledge interpreted to ensure emphasis is given to: to throw light on the impacts of coal, mineral or diamond mining, oil drilling or logging of carbon dense forests. Such (i) the needs of these groups in particular, especially in the a development would strengthen arguments for precaution setting of research agendas in proceeding with short-term, rapid, industrial development (ii) ensuring access and distribution of the benefits and where the environmental consequences are uncertain. application to these groups, and (iii) creating opportunities for participation and involvement in science at an individual and community level for these c. A human rights-based approach to science groups. 27] It is the nature of basic scientific research that it 23] The UNESCO L’Oréal Awards for Women in Science generally directs science toward the pursuit of knowledge encourage and recognize women’s contributions to scientific and not the objective of human betterment.9 Yet inside the progress. Since 1998, five awards are presented annually to paradigm of human rights the re-orientation of the sciences outstanding women researchers who have contributed to towards consideration of the disadvantaged can occur. It is a scientific progress. The awards alternate biannually between commitment the international community has already made, life and material sciences, across five regions (Africa and in pledging to end discrimination and vowing to realize the Middle East, Asia-Pacific, Europe, Latin America and the human rights via the UN Charter and other international Caribbean and North America). In addition, fifteen young human rights instruments. As long as all the guiding female scientists employed in exemplary and promising principles established for scientific research and development research projects are awarded two-year fellowship funding. respect the necessities for scientific freedom, being freedom Similarly targeted programmes are urgently required if the of movement, association, expression and communication right to the benefits of scientific progress is to be fulfilled in (which are all respected and protected human rights in-and- a non-discriminatory manner. of-themselves), as well as access to data, information and 24] Participation is a key element in all human rights. It 9. A.R. Chapman, ‘Towards an understanding of the right to enjoy the benefits of scientific is a means of empowering individuals and communities and progress and its applications’, Journal of Human Rights, 8 (2009) p. 7. 100 Chapter IV Empowering the Poor Through Human Rights Litigation research materials, then the right to science will serve as a scientific targets has already occurred in relation to the positive influence in re-shaping the way our world progresses. implementation of agendas for the Millennium Development Goals (MDGs). MDG 7(c), to halve the proportion of people 28] In the modern era, scientific research is split between without sustainable access to safe drinking water and basic publicly funded institutions and private enterprise, with the sanitation, represents one such instance.11 Setting similar majority of research and development occurring inside big agendas in relation to the broader human rights spectrum business. This structure leaves out the needs of the poor and is a necessary step to guiding development projects. For other marginalized groups. The sheer cost of research and example, a plausible target in relation to health aid funding development has been a driving factor in the industrialization would be that the right to the benefits of scientific progress of science, which has seen state contributions to science dictate that vaccinations not requiring cold-chain storage be level off or diminish and often become focused on military chosen over vaccinations that require controlled, continuous developments. Secrecy and property rights therefore hold ever- refrigeration. increasing importance in the world of science. Critical research in areas of health, agriculture, environmental management 32] Scientific freedom is not and never has been absolute; and development of appropriate technologies are neglected it is currently constrained by Intellectual Property (IP) law, because they do not present lucrative pursuits. The right to economic imperatives and political power. The restrictions the benefits of scientific progress should be interpreted to upon the inquiries of science and motivations behind give precedence to researching applications which assist the scientific progress are contorting research and development disadvantaged and contribute to the fight against poverty. away from a human rights approach with concerning results. 29] Incorporating a human rights approach to innovative thinking is not as difficult as it may first seem. The main prerequisites are awareness and time. For example, Google engineers are directed to spend 20 per cent of their time 3. Core obligations working on things about which they are passionate.10 If even only 5 per cent of that time was to be devoted to projects 33] In relation to the right to enjoy the benefits of scientific that could contribute to the promotion of human rights, progress, the core minimum obligations are grounded in then perhaps technological advancements would be more scientific policy, legal and social management of knowledge applicable, available and appropriate for the world’s poor resources, and identification of accountability for violations. and disadvantaged. The possibilities for achievement could Other economic, social and cultural rights can be grouped increase even further if such projects were to be rolled out into the obligations of a state to respect, protect and fulfil. across the scientific professions. The trichotomy of obligations includes both national and international aspects. 30] At the global level, implementation of the right to the benefits of scientific progress requires the introduction of a 34] The obligation to respect human rights attaches to human rights-based approach to agenda-setting for science all laws, institutions, offices and branches of state parties research and development. Currently, the national budgets of to human rights treaties. In this regard, states which have states in the Global South are small and often dependent upon ratified the ICESCR must ensure that their laws and policies aid for the delivery of social programmes. These nations do respect the freedom necessary for scientific research to not have the means to invest in the infrastructure, technical occur both individually and collectively. Any interference by training and educational and human capital necessary for the government that constrains or ideologically constructs high-level scientific research. The implemention of the research should be limited to promoting the quest for socially right on a global scale would mean that southern Asian and beneficial applications, and needs to comply with the general African nations – likely to be most affected by increasing principles prescribed for imposing limitations upon a human water shortages, growing levels of desertification and right. The interference/restriction must: salinization of crop lands – would hold an entitlement to the technologies developed, which could contribute to lessening (i) be prescribed by law their environmental afflictions. Furthermore, under the right (ii) be necessary in a democratic society intellectual property constraints of such technologies should (iii) meet specific objectives such as protection of public be moderated to allow for free or low-cost access as, on morals, public safety or national security, and balance, human rights imperatives to enable immediate use (iv) be a proportionate response imposed in the least outweigh the property rights of creators. intrusive manner.12 31] Translating the promise of human rights into 11. See www.un.org/millenniumgoals. 10. Google Corp, 2009, electronically accessed. 12. ICESCR Article 4; General Comment n° 17 para. 22. 101 Empowering the Poor Through Human Rights Litigation Chapter IV 35] Any measures that prevent the release of research the capacities to identify hazards and opportunities, to because it conflicts with political decisions of the state would forecast scenarios and their associated outcomes, and constitute a violation of the right to science. An example to take anticipatory measures to manage causes before of such behaviour occurred in Mexico when the government adverse outcomes occur’.17 In short, precaution requires sought to prevent the publication of research exposing contemplation, assessment and planning for all adverse environmental concerns about toxic dumping occurring under scenarios, and where there is high likelihood of an adverse the auspices of the North American Free Trade Agreement outcome it seeks to restrain and amend behaviour. Therefore, (NAFTA).13 the right to scientific progress could require that statements of compatibility or assessments of implications for human right, 36] The freedom to communicate between scientists is be conducted before a scientific research and development essential to scientific progress. Computer and electronic operation takes place. communication has greatly increased the abilities of scientists to communicate, however physical travel is sometimes 40] Fulfillment of the right to enjoy the benefits of scientific necessary. Authoritarian and democratic governments alike progress requires first and foremost an explicit commitment have been guilty of refusing to allow scientists to exit or to the development of science and technology for the benefit enter into their country. This prevents the presentation of of humankind. In this regard, a state could draw on the scientific views at meetings and conferences and quashes Venice Statement. A state could then adopt legal and policy collaboration between scientists at various research frameworks which promote the diffusion of science and its institutions. An example of this is the hostility and difficulties applications. Here, transnational obligations contained in the Cuban scientists have encountered in obtaining permission to right to science again arise. The belief that science should be enter the United States.14 used for beneficial ends for all people is the basis of the right to the enjoyment of scientific progress and its applications, 37] A more controversial aspect of controlling scientific creating a common goal. It is a goal all Member States to investigation and progress is the role intellectual property the United Nations have agreed to indirectly by pledging to (IP) regulations play in restricting the sharing of data and the aims of promoting peace, development, higher standards in thwarting cooperative innovation. The negative impacts/ of living, and universal respect for human rights in the UN influences that IP law has on human rights form an ongoing Charter. States that have ratified the ICESCR have directly and debate. The debate is complicated by the cost of scientific explicitly agreed to work towards such a goal. research, predominately borne in contemporary society by the private sector, and the prominence given by the international 41] The core obligations to fulfil require that significant community to private international trade activities as a means cooperative efforts be made between nations, regions, private of economic development. At a minimum, however, the law and public sectors. The fundamental human rights principles should hold that IP rights, which are not absolute, must not of participation, non-discrimination and protection from be implemented in a manner that breaches human rights.15 abuse and adverse effects must shape the implementation of the right to the benefits of scientific progress. Attention 38] The obligation to protect applies both to acts of must be given by all actors particularly to the needs of commission and acts of omission. Therefore a state is obliged the most vulnerable, who often bear the uneven brunt not to commit an act which violates the right to science, but of damaging effects caused by progress and technology. must also take steps to prevent third parties from committing The design of development assistance programmes must such a violation. The state’s obligation to protect against therefore incorporate securable access to beneficial scientific development of harmful applications of scientific knowledge technologies. Arguably, under such obligations, companies or the utilization of science to the detriment of human rights, should provide beneficial technologies at cost to poorer fundamental freedom or human dignity,16 at first seems to communities, or pass on the necessary scientific information be simple and uncontroversial. However, the practicalities to enable generic production. concerning such a duty become more complicated when determining how to apply it to inherently harmful technologies 42] The transnational obligations and extraterritorial such as weaponry and other military machinery. influence of the right to scientific progress, can be used to guide not only the research agendas of environmental 39] The core obligation to protect could therefore require science and climate change, but also govern the distribution the enactment of the precautionary principle. ‘Precaution of technologies developed to address the problems. The is a strategy for addressing risk … [which] necessitates right to the benefits of scientific progress is a human rights elucidation of the principle of common but differentiated 13 Audrey R. Chapman, ‘Towards an understanding of the right to enjoy the benefits of responsibilities. It captures the reality that not every nation scientific progress and its applications’, Journal of Human Rights, 8, pp. 1–36 (2009). 14. For more information see http://shr.aaas.org/rtt/report/one.htm. 15. General Comment n° 17 para. 2. 17. J.B. Wiener, ‘Precaution’, in D. Bonansky, J. Brunnée and E. Hey (eds) The Oxford Handbook of International Environmental Law, Oxford: Oxford University Press (2007). p. 16. The Declaration on the Use of Scientific and Technological Progress (1975) Article 8. 598. 102 Chapter IV Empowering the Poor Through Human Rights Litigation will have the resources and advantages of scientific progress to assist in easing the burdens of environmental predicaments [Core Obligations] and realizing human rights. Therefore, the right needs to supercede national patent and IP laws and regulations when Fulfil: the applicable innovations/technologies are essential to • Make explicit commitments to the right to science and preventing or alleviating human rights failures within the adopt a policy framework to promote the equitable diffusion environmental context. of science and technology • Develop national plans to redirect scientific research and development agendas 43] Such problems disproportionately impact the poor, who • Prioritize the needs of the poor and disadvantaged have the least means to adapt or develop. Environmental • Establish and secure strong and inclusive scientific problems are also expected to increase and are unlikely to education programmes be resolved quickly. Significant investments, both financial • Enable science to engage positively with all segments of and political, therefore, need to be made in the area of society. environmental sciences. From a human rights-based approach, it is imperative that the agenda be set from a needs-based perspective, to prioritize those without the ability to move from barren lands, or without the resources to gain food, water, shelter or income from any means other than the lands on which they live. 4. Human rights 44] Such action is reflective of the obligations to protect and fulfil the right to scientific progress. A dynamic understanding 45] The Vienna Declaration asserted that all human rights of the right to science, encompassing contemporary financial are ‘universal, indivisible, interdependent and inter-related’.18 and environmental truths, recognizes the difference in the The right to enjoy the benefits of scientific progress is contributions various nations and communities can make to intimately connected with a number of other human rights. scientific progress; however, each is part of a common aim – Academic and scientific freedom must be granted along the progress of humankind. with freedom of expression and the right to seek, receive and impart information, in order for scientific investigation and progress to be made. An example of a violation of these rights occurred in Serbia in 1998 when the Serbian Core Obligations Parliament enacted a law that gave the government control to appoint rectors, deans and the governing boards of all Respect: public universities without input from university faculty. • Respect and enable the freedoms indispensable for scientific All faculty members were required to sign new contracts, research nullifying existing employment agreements, including tenured • Respect scientific and academic autonomy positions. Academics who expressed views that criticized or • Respect and enable scientific collaboration opposed the government were summarily dismissed. • Ensure measures are taken to minimize the use of science in a manner which is inconsistent with the enjoyment of other 46] The importance and influence of scientific investigative human rights. processes and thinking in today’s world is paramount. The right Protect: to science and the right to education mandate the provision • Prohibit acts of commission and omission which violate the of effective opportunities for individuals from disadvantaged right to science social position to access scientific education and institutions. • Regulate the behavior of third parties in the field of At the individual and educational level aggressive steps scientific research to protect against exploitation of should be taken to ensure that all science students are research participants informed and trained to understand the complexity of the • Require that all research participants give free, prior bond between science and human rights. A small number of informed consent scientific schools have started such programmes, for example, • Recognize that the risks presented by technologies vary across and within societies the ‘Science in the Service of Human Rights’ course run at • Acknowledge that globalization carries significant Princeton University.19 implications on scientific endeavors and consider how to ensure a more equitable distribution of the benefits and 47] The right to development is also intimately linked to minimize the negative impacts affecting those communities the right to science. A basic example is sanitation, the afflicted by poverty. 18. Vienna Declaration and Programme of Action, 1993, para 5. 19. The course outline can be found at http://shr.aaas.org/coalition/syllabi/general/ Claude_2002.pdf. 103 Empowering the Poor Through Human Rights Litigation Chapter IV increased provision of which has been set as MDG 7(c). Science and technology can play a major role in addressing [Health, HIV-AIDS and Scientific Progress] sanitation difficulties. Research and development involved in the natural sciences, engineering, renewable energy and As a consequence of this decision, and on the basis of the water services can all provide the scientific applications to subsequent decision López Glenda y otros c. Instituto improve excrement disposal and treatment, and also minimize Venezolano de los Seguros Sociales (IVSS) s/ acción de amparo, 2001, Expediente 00-1343, Sentencia N° 487, the the use of water in improved sanitation facilities, especially Venezuelan Health policy was modified. as water scarcity increases. The research and development being undertaken by corporations, in treating and purifying wastewater, is a prime example of where cooperation with governmental programmes could contribute greatly to rapid 48] There are also obvious links with the right to food and improvement of the world’s water management and use. Better the right to health. The biomedical and bio-agricultural sanitation builds a healthier population who can spend more boom that has captivated much of scientific research and time making economic contributions to a community rather development over the last two decades must be balanced than fighting disease. and modified by human rights perspectives to ensure that scientific progress does not again compromise human dignity. The results of the ‘bio-boom’ have been a rapid growth in Health, HIV-AIDS and Scientific Progress the number of patents being placed on plant, genetic and other micro-organic data. A segment of business, with the The right to health is closely linked to the realization of the right to enjoy the benefit of scientific progress and its aid of some scientists, has engaged in bio-prospecting in the applications. This human right is perhaps the less known of all search to discover the next natural alleviation for sunburn or human rights but is, paradoxally, the more and more pertinent ‘revitalizer’ for dry and damaged hair. The term bio-piracy has in our technologically-driven society. Many important also been coined to describe the use of indigenous peoples’ developments in biotechnology, bioethics and biology have improved techniques to prevent, treat or cure a wide variety traditional knowledge, covering the possible uses of plants, of diseases. However these developments have neglected other natural objects and DNA for commercial exploitation, diseases which primarily affect people living in poverty in without the appropriate consent being gained or the provision developing countries. of adequate compensation.20 The ICESCR imposes in relation to the right to health, an obligation on States to take steps necessary for: “the prevention, 49] The experience of indigenous peoples from the Amazon treatment and control of epidemic, endemic, occupational and concerning the patenting of the sacred Yagé plant highlights other diseases” (Article 12 (2)(c)). And to give effect to the the problem of how IP regulations sometimes inhibit the right to enjoy the benefits of scientific progress, States have an obligation to: “take steps necessary for the development enjoyment of the direct and indirect benefits of science. It and diffusion of science.”(Article 15). States are therefore can be further asserted that IP regulations (in this form) asked to support the development and diffusion of science for enable violations of human rights such as privacy and the prevention, treatment and control of disease and to make non-discrimination, as they fail to provide for collective essential drugs available in order to fulfil both human rights. This includes the role of private sector and pharmaceutical ownership. In 1996, Loren Miller (a scientific researcher) companies that have a corporate social responsibility (CSR) was granted a patent over the Yagé plant after showing the in order to ensure to sustainable economic development. In difference between his sample of the plant and a variety relation to HIV-AIDS management for example, measures taken growing naturally in Hawaii. However, the International Plant to increase availability and accessibility and awareness of HIV- AIDS for example are indispensable for enhancing awareness Medicine Corporation of the United States of America, who and acceptance of this disease in order to improve their issued the patent, were not informed that the peoples of quality of life and to facilitate and reinforce the commitment Amazonia had in fact been cultivating the variety ‘invented’ of the pharmaceutical industry with innovative solutions in by Miller for generations.21 order to fight against. Some jurisprudence can be mentioned on this. The Court 50] The right to the benefits of scientific progress is also of the Bolivarian Republic of Venezuela granted an amparo central to developing means to address and overcome action and stated the existence of a violation of the right to health and the right to benefit from scientific progress and its the environmental challenges and dilemmas increasingly applications in a case related to people suffering from HIV- being encountered across the globe. Litigation involving AIDS who had no social insurance and no economic capacity human rights and the environment is highly avant-garde to provide themselves with special medication (Cruz Valle in its attempts to secure protection of human dignity and Bermudez y otros c. MSAS s/amparo, 1999, Expediente n° 15.789 Sentencia n° 196). The Court ordered the Health environmental balance. Justiciability of economic, social and and Assistance Ministry (HAM) to supply to the applicants the drugs on a regular basis and order a preventive policy be developed and to correct the budgetary allocations to be given 20. A. Jacanimijoy, ‘Initiatives for protecting rights holders of traditional knowledge, indigenous peoples and local communities’, UN Doc. WIPO/INDIP/RT/98/4E, 15 July to people suffering HIV-AIDS. 1998. 21. R.P. Claude, ‘Scientists’ Rights and the human right to the benefits of science’, in A.R. Chapman and S. Russell (eds) Core Obligations: Building a Framework for Economic, Social and Cultural Rights, Antwerp and Oxford: Intersentia (2002), p. 255. 104 Chapter IV Empowering the Poor Through Human Rights Litigation cultural rights as well as environmental considerations has 54] The right to enjoy the benefits of scientific progress is been difficult to secure and slow to advance. important in establishing, as the ICHRP put it, ‘complex causal chains that underline climate change harm’.26 It is necessary 51] The development of the Maastricht Guidelines on that freedom of scientific investigation and information be Violations of Economic, Social and Cultural Rights22 helped protected. The ICHRP asserted that despite not succeeding: greatly in providing guidance for structuring economic, The Inuit case suggests how human rights tribunals might social and cultural rights claims. Combining human rights borrow, as they have done on other issues, from general with environmental concerns, has also proven to be a good principles of tort or civil rights litigation. For example, it is litigation tool, drawing scientific evidence into the courtroom common in environmental litigation, where there are numerous to establish the cause and apportion responsibility for human polluters, for a court to shift the burden of proof and hold the rights violations triggered by environmental changes. In its defendant liable unless he or she can mitigate responsibility by report on the relationship between human rights and climate proving the proportional liability of other wrongdoers. Under change the International Council on Human Rights Policy theories of joint and several liability, each wrongdoer is held (ICHRP) said: Lawsuits draw attention to harmful effects that responsible for the entire harm in some circumstances. Such might otherwise remain below the public radar, put a name doctrines serve to deter pollution by all and ensure greater and face to the otherwise abstract suffering of individuals and likelihood of redress for victims.27 provide impetus and expression to those most affected by the harms of climate change. They can thus mobilise public opinion This also demonstrates how scientific knowledge is central to in support of policy change.23 understanding the impact of humankind upon the environment and apportioning responsibility for the harm caused. 52] Court cases involving the human impact of climate change effects will increasingly be brought before courts. This will force consideration of environmental science and human entitlements into courtrooms. Petitioners will identify the policy decisions of governments as being the acts that 5. Strategies for justiciability caused or contributed to the harm, from which they are seeking relief. 55. The right to science faces a number of obstacles in its implementation which contribute to difficulties in obtaining 53] The leading international case in relation to this area is justiciability. Central to this is the lack of an agreed definition. the Inuit Case.24 This case was brought by a coalition of Inuit There is therefore a need to construct a body of work that peoples from Canada and the United States before the Inter- provides guidance on how the right is to be defined and American Commission of Human Rights. The petition was interpreted. To this end the following actions are suggested: filed in December 2005, and called for ‘obtaining relief from human rights violations resulting from the impacts of global a. Advocate for a day of general discussion and the warming and climate change caused by acts and omissions development and publication of a General Comment by the of the United States’.25 Causation was a central issue during UN Committee on Economic, Social and Cultural Rights on the hearing of the petition. The petitioners had to establish the right to enjoy the benefits of scientific progress. that government policy enabled and contributed to climate change – a complex allegation – if they were to be successful. b. Call for specialized agencies, such as FAO, ILO, OECD, Scientific knowledge would be essential to prove causation. UNDP, UNEP, UNICEF, WHO, WIPO, and other regional During the public hearing the Commissioners questioned agencies to issue positions or statements on how the right counsel for the petitioners repeatedly on the manner through to the benefits of scientific progress relates to their field which liability for a particular state could be established of competence. when other states acted in a similar manner. In effect, this line of questioning was seeking a delineation of the causal c. Request directives and explanations from the European chain and guidance on the apportioning of fault. Scientific Union, WTO and other trade partnerships on how the right evidence is central to establishing the balance of probability to the benefits of scientific progress is applied through on such delineation and apportionment. their trade agreements. 22. Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 26 January 1997. d. Advocate policies and plans as well as financial, macro and 23. International Council on Human Rights Policy, Climate Change and Human Rights a Rough micro-economic strategies, across all levels of governance, Guide, Vernier: ATAR Roto Press (2008). that expressly consider the implications of scientific and 24. Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United technological progress within and between societies. States, Submitted by Sheila Watt-Cloutier, with the Support of the Inuit Circumpolar Conference, on Behalf of All Inuit of the Arctic Regions of the United States and Canada, (7 December 2005). The petition can be found at www.earthjustice.org/library/ legal_docs/summary-of-inuit-petition-to-inter-american-council-on-human-rights.pdf 26. International Council on Human Rights Policy, Climate Change and Human Rights a Rough (consulted on 7 May 2010). Guide (2008), p. 43. 25. Ibid. 27. Ibid. p. 41. 105 Empowering the Poor Through Human Rights Litigation Chapter IV 56] Civil society, especially those engaged in advocacy around c. Build partnerships with scientific institutions to enable health, water, housing, education, freedom of communication substantive community participation in research and and sustainable development, can draw attention to the right development. to the benefits of scientific progress as a human right – rather than as benefits accessible only to those with the ability to d. Raise awareness of the important role that science plays in pay. The following actions are recommended: development and addressing climate change, and advocate for the implementation of a human rights approach to a. Lobby both public and private scientific research and the framing and roll-out of any assistance and research development operations to prioritize the needs of the poor programmes. and marginalized in any scientific agendas, and ensure substantive community participation. e. In the context of preparation of shadow reports to treaty bodies, raise matters concerning violations or concerns b. Encourage educational institutions to provide basic around the implementation of the right to the benefits of science classes and to discuss the relationship between scientific progress. science and human rights. Exercises 1) How to develop an integrated method in order to tackle the emergence of a common responsibility approach as to sharing the benefits of scientific progress? Justify. 2) How to balance the complexity of accessing and sharing of scientific progress and its applications with the scarcity of resources? Justify. 3) How to balance intellectual property regimes and, in particular, intellectual property protection, with the necessity of encouraging and developing international cooperation in the scientific field? 106 ANNEXES: – 107 – Optional Protocol to the ICESCR – 113 – Form to be sent to UNESCO by practioners and NGOs that would like to complete, add or update information ANNEXES Annexes Empowering the Poor Through Human Rights Litigation Optional Protocol to the International Covenant on Economic, Social and Cultural Rights The General Assembly adopted resolution A/RES/63/117, on 10 December 2008 The General Assembly, Taking note of the adoption by the Human Rights Council, by its resolution 8/2 of 18 June 2008, of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 1. Adopts the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the text of which is annexed to the present resolution; 2. Recommends that the Optional Protocol be opened for signature at a signing ceremony to be held in 2009, and requests the Secretary-General and the United Nations High Commissioner for Human Rights to provide the necessary assistance. Preamble The States Parties to the present Protocol, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Noting that the Universal Declaration of Human Rights1 proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, Recalling that the Universal Declaration of Human Rights and the International Covenants on Human Rights2 recognize that the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy civil, cultural, economic, political and social rights, Reaffirming the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms, Recalling that each State Party to the International Covenant on Economic, Social and Cultural Rights (hereinafter referred to as the Covenant) undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the Covenant by all appropriate means, including particularly the adoption of legislative measures, Considering that, in order further to achieve the purposes of the Covenant and the implementation of its provisions, it would be appropriate to enable the Committee on Economic, Social and Cultural Rights (hereinafter referred to as the Committee) to carry out the functions provided for in the present Protocol, Have agreed as follows: 1. Resolution 217 A (III). 2. Resolution 2200 A (XXI), annex. 107 Empowering the Poor Through Human Rights Litigation Annexes Article 1 Competence of the Committee to receive and consider communications 1. A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications as provided for by the provisions of the present Protocol. 2. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol. Article 2 Communications Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that State Party. Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent. Article 3 Admissibility 1. The Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted. This shall not be the rule where the application of such remedies is unreasonably prolonged. 2. The Committee shall declare a communication inadmissible when: (a) It is not submitted within one year after the exhaustion of domestic remedies, except in cases where the author can demonstrate that it had not been possible to submit the communication within that time limit; (b) The facts that are the subject of the communication occurred prior to the entry into force of the present Protocol for the State Party concerned unless those facts continued after that date; (c) The same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement; (d) It is incompatible with the provisions of the Covenant; (e) It is manifestly ill-founded, not sufficiently substantiated or exclusively based on reports disseminated by mass media; (f) It is an abuse of the right to submit a communication; or when (g) It is anonymous or not in writing. Article 4 Communications not revealing a clear disadvantage The Committee may, if necessary, decline to consider a communication where it does not reveal that the author has suffered a clear disadvantage, unless the Committee considers that the communication raises a serious issue of general importance. Article 5 Interim measures 1. At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State Party concerned for its urgent consideration a request that the State Party take such interim measures as may be necessary in exceptional circumstances to avoid possible irreparable damage to the victim or victims of the alleged violations. 2. Where the Committee exercises its discretion under paragraph 1 of the present article, this does not imply a determination on admissibility or on the merits of the communication. Article 6 Transmission of the communication 1. Unless the Committee considers a communication inadmissible without reference to the State Party concerned, the Committee shall bring any communication submitted to it under the present Protocol confidentially to the attention of the State Party concerned. 2. Within six months, the receiving State Party shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been provided by that State Party. 108 Annexes Empowering the Poor Through Human Rights Litigation Article 7 Friendly settlement 1. The Committee shall make available its good offices to the parties concerned with a view to reaching a friendly settlement of the matter on the basis of the respect for the obligations set forth in the Covenant. 2. An agreement on a friendly settlement closes consideration of the communication under the present Protocol. Article 8 Examination of communications 1. The Committee shall examine communications received under article 2 of the present Protocol in the light of all documentation submitted to it, provided that this documentation is transmitted to the parties concerned. 2. The Committee shall hold closed meetings when examining communications under the present Protocol. 3. When examining a communication under the present Protocol, the Committee may consult, as appropriate, relevant documentation emanating from other United Nations bodies, specialized agencies, funds, programmes and mechanisms, and other international organizations, including from regional human rights systems, and any observations or comments by the State Party concerned. 4. When examining communications under the present Protocol, the Committee shall consider the reasonableness of the steps taken by the State Party in accordance with part II of the Covenant. In doing so, the Committee shall bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant. Article 9 Follow-up to the views of the Committee 1. After examining a communication, the Committee shall transmit its views on the communication, together with its recommendations, if any, to the parties concerned. 2. The State Party shall give due consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee, within six months, a written response, including information on any action taken in the light of the views and recommendations of the Committee. 3. The Committee may invite the State Party to submit further information about any measures the State Party has taken in response to its views or recommendations, if any, including as deemed appropriate by the Committee, in the State Party’s subsequent reports under articles 16 and 17 of the Covenant. Article 10 Inter-State communications 1. A State Party to the present Protocol may at any time declare under the present article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Covenant. Communications under the present article may be received and considered only if submitted by a State Party that has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. Communications received under the present article shall be dealt with in accordance with the following procedure: (a) If a State Party to the present Protocol considers that another State Party is not fulfilling its obligations under the Covenant, it may, by written communication, bring the matter to the attention of that State Party. The State Party may also inform the Committee of the matter. Within three months after the receipt of the communication the receiving State shall afford the State that sent the communication an explanation, or any other statement in writing clarifying the matter, which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the matter; (b) If the matter is not settled to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State; (c) The Committee shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter. This shall not be the rule where the application of the remedies is unreasonably prolonged; (d) Subject to the provisions of subparagraph (c) of the present paragraph the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of the respect for the obligations set forth in the Covenant; (e) The Committee shall hold closed meetings when examining communications under the present article; (f) In any matter referred to it in accordance with subparagraph (b) of the present paragraph, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information; 109 Empowering the Poor Through Human Rights Litigation Annexes (g) The States Parties concerned, referred to in subparagraph (b) of the present paragraph, shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing; (h) The Committee shall, with all due expediency after the date of receipt of notice under subparagraph (b) of the present paragraph, submit a report, as follows: (i) If a solution within the terms of subparagraph (d) of the present paragraph is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached; (ii) If a solution within the terms of subparagraph (d) is not reached, the Committee shall, in its report, set forth the relevant facts concerning the issue between the States Parties concerned. The written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. The Committee may also communicate only to the States Parties concerned any views that it may consider relevant to the issue between them. In every matter, the report shall be communicated to the States Parties concerned. 2. A declaration under paragraph 1 of the present article shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter that is the subject of a communication already transmitted under the present article; no further communication by any State Party shall be received under the present article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration. Article 11 Inquiry procedure 1. A State Party to the present Protocol may at any time declare that it recognizes the competence of the Committee provided for under the present article. 2. If the Committee receives reliable information indicating grave or systematic violations by a State Party of any of the economic, social and cultural rights set forth in the Covenant, the Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned. 3. Taking into account any observations that may have been submitted by the State Party concerned as well as any other reliable information available to it, the Committee may designate one or more of its members to conduct an inquiry and to report urgently to the Committee. Where warranted and with the consent of the State Party, the inquiry may include a visit to its territory. 4. Such an inquiry shall be conducted confidentially and the cooperation of the State Party shall be sought at all stages of the proceedings. 5. After examining the findings of such an inquiry, the Committee shall transmit these findings to the State Party concerned together with any comments and recommendations. 6. The State Party concerned shall, within six months of receiving the findings, comments and recommendations transmitted by the Committee, submit its observations to the Committee. 7. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2 of the present article, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its annual report provided for in article 15 of the present Protocol. 8. Any State Party having made a declaration in accordance with paragraph 1 of the present article may, at any time, withdraw this declaration by notification to the Secretary-General. Article 12 Follow-up to the inquiry procedure 1. The Committee may invite the State Party concerned to include in its report under articles 16 and 17 of the Covenant details of any measures taken in response to an inquiry conducted under article 11 of the present Protocol. 2. The Committee may, if necessary, after the end of the period of six months referred to in article 11, paragraph 6, invite the State Party concerned to inform it of the measures taken in response to such an inquiry. Article 13 Protection measures A State Party shall take all appropriate measures to ensure that individuals under its jurisdiction are not subjected to any form of ill-treatment or intimidation as a consequence of communicating with the Committee pursuant to the present Protocol. 110 Annexes Empowering the Poor Through Human Rights Litigation Article 14 International assistance and cooperation 1. The Committee shall transmit, as it may consider appropriate, and with the consent of the State Party concerned, to United Nations specialized agencies, funds and programmes and other competent bodies, its views or recommendations concerning communications and inquiries that indicate a need for technical advice or assistance, along with the State Party’s observations and suggestions, if any, on these views or recommendations. 2. The Committee may also bring to the attention of such bodies, with the consent of the State Party concerned, any matter arising out of communications considered under the present Protocol which may assist them in deciding, each within its field of competence, on the advisability of international measures likely to contribute to assisting States Parties in achieving progress in implementation of the rights recognized in the Covenant. 3. A trust fund shall be established in accordance with the relevant procedures of the General Assembly, to be administered in accordance with the financial regulations and rules of the United Nations, with a view to providing expert and technical assistance to States Parties, with the consent of the State Party concerned, for the enhanced implementation of the rights contained in the Covenant, thus contributing to building national capacities in the area of economic, social and cultural rights in the context of the present Protocol. 4. The provisions of the present article are without prejudice to the obligations of each State Party to fulfil its obligations under the Covenant. Article 15 Annual report The Committee shall include in its annual report a summary of its activities under the present Protocol. Article 16 Dissemination and information Each State Party undertakes to make widely known and to disseminate the Covenant and the present Protocol and to facilitate access to information about the views and recommendations of the Committee, in particular, on matters involving that State Party, and to do so in accessible formats for persons with disabilities. Article 17 Signature, ratification and accession 1. The present Protocol is open for signature by any State that has signed, ratified or acceded to the Covenant. 2. The present Protocol is subject to ratification by any State that has ratified or acceded to the Covenant. Instruments of ratification shall be deposited with the Secretary-General of the United Nations. 3. The present Protocol shall be open to accession by any State that has ratified or acceded to the Covenant. 4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. Article 18 Entry into force 1. The present Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or accession. 2. For each State ratifying or acceding to the present Protocol, after the deposit of the tenth instrument of ratification or accession, the Protocol shall enter into force three months after the date of the deposit of its instrument of ratification or accession. Article 19 Amendments 1. Any State Party may propose an amendment to the present Protocol and submit it to the Secretary-General of the United Nations. The Secretary-General shall communicate any proposed amendments to States Parties, with a request to be notified whether they favour a meeting of States Parties for the purpose of considering and deciding upon the proposals. In the event that, within four months from the date of such communication, at least one third of the States Parties favour such a meeting, the Secretary-General shall convene the meeting under the auspices of the United Nations. Any amendment adopted by a majority of two thirds of the States Parties present and voting shall be submitted by the Secretary-General to the General Assembly for approval and thereafter to all States Parties for acceptance. 2. An amendment adopted and approved in accordance with paragraph 1 of the present article shall enter into force on the thirtieth day after the number of instruments of acceptance deposited reaches two thirds of the number of States Parties at 111 Empowering the Poor Through Human Rights Litigation Annexes the date of adoption of the amendment. Thereafter, the amendment shall enter into force for any State Party on the thirtieth day following the deposit of its own instrument of acceptance. An amendment shall be binding only on those States Parties which have accepted it. Article 20 Denunciation 1. Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations. Denunciation shall take effect six months after the date of receipt of the notification by the Secretary- General. 2. Denunciation shall be without prejudice to the continued application of the provisions of the present Protocol to any communication submitted under articles 2 and 10 or to any procedure initiated under article 11 before the effective date of denunciation. Article 21 Notification by the Secretary-General The Secretary-General of the United Nations shall notify all States referred to in article 26, paragraph 1, of the Covenant of the following particulars: (a) Signatures, ratifications and accessions under the present Protocol; (b) The date of entry into force of the present Protocol and of any amendment under article 19; (c) Any denunciation under article 20. Article 22 Official languages 1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States referred to in article 26 of the Covenant. Source: www2.ohchr.org/english/bodies/cescr/docs/A-RES-63-117.pdf 112 Annexes Empowering the Poor Through Human Rights Litigation FORM suggestions for improving the manual Empowering the Poor Through Human Rights Litigation Name: ________________________________________________________________________________________________ Address:_______________________________________________________________________________________________ Institution:____________________________________________________________________________________________ Postcode/City/Country:___________________________________________________________________________________ E-mail:________________________________________________________________________________________________ In the teaching of which subjects did you mostly used the manual? _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ What sections of the Manual did you find more interesting and useful? _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ What recommendations would you make for the revision or update of the manual? _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ 113 Empowering the Poor Through Human Rights Litigation Annexes Is there any theme that you would like to add or modify? _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ Is there any information or resources you would like to provide to this manual? _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ Further comments and suggestions: _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ Thank you Please return the form to: UNESCO 1 Rue de Miollis 75732 Paris, France Social inclusion Social and Human Sciences Sector Tel : +33 (0)1 45 68 46 38 Email: M.Abderrahmane@unesco.org Fax: +33 (0) 1 45 68 57 26 114 This manual is a response to the Millennium Development Goals (MDGs) adopted by the United Nations Assembly in 2000 and particularly the first objective of halving extreme poverty and hunger by 2015. It offers tools for grassroots organizations advocating human rights on behalf of all people. The examples gathered worldwide connect policy-oriented action and legal decisions at local, national and regional levels. The manual seeks to empower the most vulnerable and marginalized groups of society through access to their basic human rights. It is designed to stimulate dialogue among state authorities and civil society, and provoke exploration of innovative ways to achieve the recognition and fulfilment of human rights for all stakeholders. The manual also offers inspiration for the development of new strategies and approaches to extend and strengthen state capacity and civil society action in the fight against all forms of discrimination and exclusion worldwide. Maritza Formisano Prada is a Colombian lawyer specialized in public policies at the Université Panthéon-Sorbonne Paris I. A professor at the Universidad de los Andes in Bogota, Colombia and at the Université Sorbonne Nouvelle Paris III, she has published several articles in Latin America and France. As a UNESCO consultant, she collaborates on projects related to political science, communication, human rights, poverty and gender. Contact information: UNESCO Social and Human Sciences Sector 1 rue Miollis 75732 Paris Cedex 15 France Tel: +33 (0) 1 45 68 46 38 Fax: +33 (0) 1 45 68 57 26 http://www.unesco.org/shs Social and Human Sciences Sector 9 789230 010270

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