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3.2 Procedural aspects

As alluded to in section I.2 above, procedural aspects related to the ability to lodge a complaint play a determining role in ensuring that remedies for ESC rights violations are accessible and effective.

In alleging a violation of an ESC right, the claimant will typically have to consider what cause(s) of action arising from the facts at the origin of the allegation might be available. Depending on the jurisdiction, such actions might arise, for example, from the law of tort, breach of a statutory duty, or violation of a constitutionally guaranteed right. The claimant may also have to give due consideration to doctrinal bars to pursuing such causes of actions, such as questions of standing, immunities of the State or officials, questions of ripeness or mootness of the actions. These considerations, as well as rules of evidence, will figure both into whether the action can be effectively pursed and, if so, the most appropriate jurisdiction in which to do so.

1. Standing

Under international human rights standards, “victims are persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law… Where appropriate, and in accordance with domestic law, the term “victim” also includes the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.”[136]

The question of who has standing to submit a communication to the Committee on Economic, Social and Cultural Rights (CESCR) is addressed in article 2 of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR). This provision allows for communications to be submitted by individuals who claim to be victims of violations of the rights guaranteed in the ICESCR, groups of individuals who claim to be victims of violations of the rights guaranteed in the ICESCR, others acting on behalf of those individuals or groups of individuals with their consent, and others acting on behalf of those individuals without their consent but having justification to do so.[137]

ESC rights, like any other human rights, require remedies for violations suffered by individuals in very specific situations who seek a concrete redress for the harm suffered. However, a great number of ESC rights violations also have a collective dimension and require structural and systemic remedies, especially to guarantee non-repetition. Moreover, although ESC rights are individual rights, some of the rights such as the rights of article 8 of the ICESCR guaranteeing the right of trade unions to establish national federations or confederations,[138] the right of trade unions to function freely,[139] or the right to strike[140] are essentially exercised collectively.

Additionally, victims of ESC rights often belong to the most disadvantaged and marginalized sectors of society. The material obstacles that justice users usually face can therefore be especially daunting for victims of ESC rights violations. As showed below, procedural innovations in certain countries have helped render the recourse to judicial and quasi-judicial bodies more affordable and timely to groups of victims who are particularly disadvantaged, such as persons living in extreme poverty.

Some procedural arrangements regarding standing will thus be more responsive to these realities than others. As the ICJ publication “Courts and the Legal Enforcement of Economic, Social and Cultural Rights – Comparative Experiences of Justiciability” (hereafter the ICJ Justiciability Study) highlights, “procedures designed for hearing individual grievances are not well suited to the resolution of collective claims, such as those involving group rights, massive rights violations or situations that require a collective remedy. Certain requirements make it impossible to challenge measures that affect a whole group. These include the need to show a sufficient or exclusive individual interest in the case for the purposes of establishing standing (locus standi) or the limitation of remedies to those that address the concerns of the individual plaintiff, and the lack of collective representation mechanisms, which is characteristic of civil procedures in many countries.”[141]

Much of the ESC rights litigation conducted to date has confirmed the importance of these arrangements. In fact, there appears a clear correlation between the development of a rich and transformative case law on ESC rights and the degree of accessibility and flexibility of the procedures to initiate legal actions, and in particular constitutional petitions.

The situation of India is an exemplary case in this regard.[142] The development of public interest litigation and the general loosening of the procedural requirements have been a determining factor in the capacity to obtain court orders remedying massive violations of ESC rights. In particular, the Supreme Court for constitutional petitions against violations of rights has accepted complaints brought to its attention in a largely non-formalistic manner. Also, public interest litigation allows for the court to act suo moto (on its own initiative) and a judicial review of a situation of alleged violation may be initiated on behalf of victims or without a party having to seize the court. Any person or NGO can take an active role in demanding, in the public interest, the review of omissions or actions of the State and redress when these violate constitutional rights.[143]

Other countries have also witnessed procedural innovation and effectively increased the accessibility of constitutional rights petitions and review mechanisms for victims of violations of ESC rights. In Colombia the acción de tutela (legal action to seek immediate relief for violation of a constitutional right), like the procedure in India, allows rights-holders alleging a violation of a constitutional right through an action or omission of any public authority or private actors to approach any competent court or tribunal where the threat or violation occur. Because it essentially aims at avoiding irreparable harm and at filling potential protection gaps, the procedure is easily accessible and fast. Victims or representatives acting on their behalf, including potentially the Defensor del Pueblo (Om-budsperson), only need to present facts. They do not need to be represented by a lawyer and there is no need to identify the Constitutional provisions that are breached. The question can be transmitted for revision by the Constitutional Court. But in any cases, an order will be given within ten days.[144]

The ICJ Justiciability Study discusses issues and the developments of new procedures better adapted to address the issues faced by victims of ESC rights violations.

Excerpt from ICJ Justiciability Study

Procedural reform and the lessons from the development of comparative law

To a certain extent, the contemporary evolution of procedural law has taken into account some of these difficulties, highlighting the need to adapt the old model of individual actions to new challenges, such as the collective incidence of some violations, or the need for urgent protection of fundamental legal rights before a violation takes place. Environmental, consumer and mass tort procedures have opened up new paths in this direction. Comparative law also offers many helpful examples, such as:

  • class actions;
  • collective amparo;
  • new standards regarding preliminary measures (for example, the precautionary principle);
  • the Brazilian ação civil pública, mandado de segurança and mandado de injunção; and
  • locus standi for public prosecutors, the office of the Attorney General or Ombudsperson to represent collective complainants; qui tam actions.

Constitutional, legislative and judicial evolution in this field has been dramatic in some Latin American countries, such as Argentina, Brazil, Colombia and Costa Rica. In Argentina, the judicial development of a new constitutional action enshrined in the 1994 amendments to the Constitution, providing for a collective amparo through a direct interpretation of the constitutional provision, has been particularly creative. In Brazil, the use of a novel procedural mechanism called “public civil action” (ação civil pública) to trigger judicial protection in environmental, consumer and occupational safety and health cases has become widespread since its regulation in 1985.[145] In Colombia, a number of new procedural mechanisms – namely, acción de tutela before the Constitutional Court, acción popular before ordinary courts, and acción de cumplimiento – have radically altered the possibilities for challenging State activities or omissions before the judiciary. In Costa Rica, a centralized and rather simplified amparo jurisdiction before the Constitutional Section of the Supreme Court has led to noteworthy results, including cases brought by children challenging educational decisions by school directors.

These examples of progressive procedural law reforms may be drawn on by practitioners to encourage judicial and administrative authorities in countries in which procedural inaccessibility continues to inhibit the role of judicial and quasi-judicial bodies in protecting ESC rights. As recalled in Chapter 2, section II.1, the provision of effective remedies is a conjunctive State obligation to the obligations pertaining to the substantive right under international human rights law, and authorities administrating justice should play their role in ensure that the obligation is effectively discharged.

The role of parties

Taking into account the realities described above, third parties often have a significant role to play in ESC rights litigation. Non governmental [human rights] organizations, trade unions and consumers’ associations can play an active role in initiating collective complaints and public interest petitions, and/or representing and defending the interests of persons, individually or collectively. In addition, due to their monitoring and advocacy work, they often benefit from an understanding of the broader structural issues underlying individual cases. They also may bring essential analysis, expert opinions and evidences to a case.

In that regard, the importance of NGO interventions, in particular through the submission of amicus briefs and similar third party interventions, is reflected in a large number of emblematic cases of ESC rights adjudication. Such amicus briefs may provide domestic courts with useful comparative and international law standards. At all levels, judicial and quasi-judicial bodies may benefit greatly from interventions of third parties and experts so as to integrate an “ESC rights perspective” from the start of a legal action.[146]

2. Other procedural challenges

Aside from the question of who may have standing to bring an action, significant political and material challenges often render ESC rights litigation problematic or vain. Practitioners ought to keep them in mind to overcome them or mitigate their impact.

Capacity of judicial and quasi-judicial bodies to provide for effective remedies

Even if, as will be discussed in Chapter 4, section II, a significant share of litigation of ESC rights involves two private parties, the adjudication of ESC rights as of any human rights intrinsically and essentially involves aggrieved individuals and the State or public authorities. This poses a number of issues that include:

  • The potential for “politicization” of the issues under consideration. (Questions involving trade unions and labour rights for instance are often considered more political than purely legal);
  • The power imbalance between the parties in the case (in many countries, this already existing imbalance can be aggravated by procedural advantages granted to the State and thus seriously infringe the principles of fair trial and equality of arms);[147]
  • The possible deference of the judiciary towards decisions, omissions and actions of the executive and the legislative, striking the balance between the need to guarantee the right to effective remedies and the separation of powers.
  • The difficulties in enforcing judgements on remedies, including injunctions and orders against the State and governmental power at various levels.[148]

Considering these challenges, it is important to recall that the independence of the judiciary is a fundamental element of the Rule of Law and a prerequisite to the effective protection of human rights. Safeguards in favour of the respect and promotion of the independence of the judiciary must be guaranteed.[149] In particular, the provisions around expertise, selection and immovability of judges, especially of the highest jurisdictions, may influence their ability to take decisions against the State’ s acts or omissions and to order systemic remedies.

A number of cases in the world show how important an independent well-equipped judiciary is for the protection of human rights in general and for the protection of ESC rights in particular. As mentioned in the preceding section on standing, and taking into consideration the risk of inequality of arms between the rights-holders alleging violations of their rights in a process against the State, procedural law has started to allow for greater judicial scrutiny and to take into account the vulnerability and weaker position of victims of violations of human rights, especially of people living in poverty who are particularly affected by these violations. For instance, the acción de tutella in Colombia is designed to respond to this reality and to give a proactive role to judges to act suo motu leaving the judge the possibility to transform a simple denunciation of facts, without a specification of the rights provisions breached, into full-fletched constitutional petitions.

However, whatever the procedural setting of a particular country may be, judges have acted in the “interest of justice” to proactively protect rights. One of many examples is a case decided by the High Court of Fiji concerning the right to food of a prisoner, which is described in Chapter 4.[150] In this case, the Court decided to go beyond the party’s argument and take a proactive stance to defend rights’ provisions that were not raised by the aggrieved party. In its decision, the Court said that it would: “disregard the appellant’s concession because he is not in a position, for good reason, to appreciate the constitutional issues which involve sections 25 and 28 of the constitution. These matters require some attention in the interests of justice.”[151] In certain instances, courts that have been very active in their treatment of questions on ESC rights have come under political challenged and criticism from the government. The Hungarian Constitutional Court for example, which had a record of proactive conduct, was criticized by some commentators for being engaged in “socialism redivivus”. This also caused the government to appoint new judges, who were sympathetic to the Prime Minister Viktor Orbán, in 1998.[152] Likewise, the judicial efforts of the Constitutional Court of Colombia in the effective protection of the constitutionally guaranteed ESC rights was criticized as having violated the principle of separation of powers by ordering the realization of public policies and allocation of resources.[153]

Material accessibility of judicial and quasi-judicial bodies

There is a rich literature concerning the issue of material accessibility to judicial and quasi-judicial bodies and the justice system for victims of violations of human rights, either in general or in the context of specific domestic systems.[154] In fact, the lack of financial resources is frequently an obstacle to access to justice by victims of violations of human rights globally. This obstacle is generally even more severe in the area of ESC rights because:

  • Victims of violations of ESC rights often belong to the most marginalized and disadvantaged sectors of society;
  • Due to the content of these rights, the impact of their violations may place victims in a difficult, or even desperate, economic situation;
  • Legal aid schemes often have limitations that exclude civil law and constitutional law matters from their coverage to focus on criminal law matters;
  • Even where legal aid schemes are relatively comprehensive, the costs of taking a legal action are not only constituted by the costs of legal representation and legal fees, but they may include the overall expenses that victims have to cover in the use of the justice system, such as transportation, gathering of authenticated documents, loss of income due to absence from work. Victims may especially be reluctant to incur these expenses when they lack trust in the system to obtain redress.

In this regard, two remarks can be made concerning the involvement of domestic legal practitioners in the institution and promotion of legal aid. First, the importance of legal aid for rights protection has been largely recognized even in countries with limited resources. In fact, legal aid has been integrated in the realm of actions and projects that can benefit from support in the context of international cooperation and assistance. The latter is explicitly recognized as a fundamental element for the realization of ESC rights in the same article of the ICESCR that implies States to provide for effective remedies in cases of violations.[155] The initiative for an ambitious legal aid scheme launched in 2011 in Botswana provides a positive example of collaboration between the State, through the Attorney General Chambers, the law society and private lawyers, civil society organizations in general, and international donors.[156]

In addition to pro bono work of private lawyers, ESC rights litigants have sometimes relied on the support of a growing number of law clinics at universities who can play a quite significant role in preparing and accompanying litigation.[157]

Other judicial and quasi-judicial bodies have protected procedural rights and taken into consideration the weaker position of the rights-holders as parties in a case, as the case described below and decided by the Russian Constitutional Court shows.

→ Holding N. 1320 –O-O of the Constitutional Court of the Russian Federation (Red Star Consulting LLC v. former employee)

Important institutional actors in litigation and in ensuring victims’ access to justice

In many countries, Ombudspersons and national human rights institutions can play a key role in facilitating access to justice for victims of violations of ESC rights. It is of course necessary that these institutions benefit from the necessary material and human capacities, as well as the necessary independence.[158] Due to their nature and functions, these institutions often offer support to individuals alleging violations of their rights by public authorities and can help them to take legal actions. As shown in the following, not only may they offer within their own mandates effective complaint mechanisms, they can engage directly in litigation. In this regard, they fulfil similar functions to these of Special Procedures and Independent Experts of the international and regional human rights system, that include monitoring general implementation of and compliance with human rights obligations, training of duty-bearers and rights-holders, as well as addressing specific cases of alleged violations of human rights including ESC rights.

Practitioners may engage more systematically and actively with these institutions as relevant in their national contexts.

A useful tool is the OHCHR Handbook for National Human Rights Institutions on ESC rights, accessible at: http://www.ohchr.org/Documents/Publications/training12en.pdf

  • Ombudspersons

In many civil law countries, such as in countries of French law tradition with a separate administrative law pillar, the institution of the Médiateur is an instrumental interface between public service users and the administration.[159]

For instance, the Médiateur in Morocco receives and addresses complaints of individuals in relation to relevant issues for ESC rights such as in matters of public housing schemes, of the provision of public water services and of social security benefits of employees in the public sector. Besides his functions in the area of general policy recommendations and monitoring the Médiateur can offer mediation, advise alleged victims and refer cases to the competent judicial bodies.[160]

  • National Human Rights Commissions

More generally, national human rights institutions, including human rights commissions, may play a significant and pro-active role in the legal enforcement of ESC rights, especially when they comply with the Paris Principles.

In a manner similar to the Ombudspersons, national human rights commissions, depending on their specific mandates, may have a range of possibilities to ad-dress and contribute to redress violations of ESC rights. Thanks to their policy monitoring and advisory prerogatives of human rights issues in their country, they can draw attention to potential and occurring systemic violations of ESC rights and contribute to prevent them. In many instances, they can furthermore take an active share in bringing cases to courts.

An example of this function is given by the so-called Bhe case decided by the Supreme Court of South Africa in 2005.[161] In this emblematic case, the Constitutional Chamber found certain provisions, drawn from customary law, concerning inheritance discriminatory against women and extra-marital children unconstitutional and invalid because they contradicted the equality provisions of the Constitution. In this case, the South African Human Rights Commission joined as a party and actively contributed to achieve the systemic remedy and structural impact leading to a change in inheritance law that followed the decision.

3. Issues around the rules of evidence

Another procedural challenge of fundamental importance in ESC rights litigation concerns the production of factual information that may be used as evidence to sustain a claim.

ESC rights litigation will, as described in greater depth in Chapter 5, involve fulfilling the evidentiary requirement of the various standards and technics of the judicial scrutiny that judicial and quasi-judicial bodies can and have applied. As highlighted in II.2, a certain imbalance is likely to occur when an individual, or a group of individuals, seeks to complain against a wrong-doing by the State and its authorities, which are likely to have greater access to certain information.

Excerpt from ICJ Justiciability Study

The ICJ Justiciability Study addresses some of these issues:

  • The State in civil law systems can often have procedural advantages over private individuals. For example, the State has more time to respond to pleadings, it can bring its own administrative dossier as proof, and it has privileges that individuals do not have. Judgements against the State ordering the fulfilment of its positive obligations are often merely declaratory, do not come with sufficient procedural safeguards and are regularly difficult to enforce, especially if they require structural reforms or long-term implementation. This may also raise problems of compliance and implementation: judgements that impose duties on the State may be postponed or subjected to merely cosmetic compliance.
  • The last issue to be addressed is the difficulty of executing orders against the State and, generally, the particular position of the State before domestic courts. In the continental administrative tradition there are certain procedural advantages for the State, which would be considered unjust in private suits. While some of these advantages can be justified, in many other cases complete discretion, lack of impartiality, breach of the “equality of arms” principle and other features could be considered violations of due process, and may also require legislative reform and jurisprudential development.[162] Cases involving judicial review of the legal procedures established to grant, adjust or terminate labour rights, pensions, social security benefits and other ESC rights are not uncommon and have been the subject of litigation before international human rights bodies.[163]

With a view to addressing some of these imbalances, it is important to give due attention to the right to information, provided, among other sources, under article 19 of the Universal Declaration of Human Rights as well as the ICCPR.[164]In various domestic legal frameworks, the right to information has evolved to include not only the right to exchange and diffuse information as part of the right of freedom of expression, but also to access and receive information from public authorities.[165] The right to information can prove crucial to rights-holders and practitioners who need to access key administrative documents. The Right to Information Act in India and the huge campaign conducted by Indian civil society to obtain the adoption of this Act is illustrative of the strategic importance of transparency and accountability for the compliance with human rights.

Not all ESC rights cases will have a high degree of complexity and be challenging in terms of the production of evidences. However, the evidentiary challenges will particularly arise in complex cases and/or those raising structural issues of failing public policies, demanding systemic remedies. For instance, cases in which the exploration and exploitation of resources is claimed to represent a threat to the enjoyment or a violation of the rights to housing, water or food, victims of the threat or violations will usually have to produce alternative impact assessments, expert reports on environmental impact, medical forensic evidence of the impact of certain pollutants on human health or the changes in the ecosystem upon which these individuals rely for their livelihoods. This poses a broader issue of establishing the causality link between an act or omission and the harm caused to an alleged victim,[166] which is not exclusive to ESC rights litigation per se but to litigation in a whole range of areas.

ESC rights litigation and the burden of proof

One consequence of the information imbalance is that in certain instances, procedural fairness may require a shift in the burden of proof. Generally, in non-criminal matters, a complainant bears the burden of proof to establish the legal elements of a case. However, in certain instances, the burden may be reversed. In some ESC rights litigation the onus may be on the State to prove that its acts and omissions have not contributed to the violation and/or that the measures of the absence thereof are reasonable or proportionate to the goal pursued.

For example, this reversal of the burden of proof is explicitly required by the UN CESCR in cases of retrogressive measures and of the failure to meet the minimum core obligations to ensure a minimum core content of each right, which are prima facie violations of the ICESCR. In General Comment 3, the Committee affirms: “… any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources….In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.”[167]

In addition, the European Court of Human Rights in a case dealing with indirect discrimination of Roma students in the Czech Republic,[168] established that in instances of indirect discrimination, i.e. those involving apparently neutral norms that nonetheless have disproportionate negative impacts on certain groups, the burden of proof should be shifted and the rules of evidence less strict. The Court, acknowledging the difficulties of victims to prove indirect discrimination, recognized the need to accept a variety of means, including through the provision of statistical evidence. Reliable and significant statistical data can thus constitute prima facie evidence in such cases and the onus is on the State to prove that there is no indirect discrimination.[169] The Court affirms: “Where an applicant alleging indirect discrimination thus establishes a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden then shifts to the respondent State, which must show that the difference in treatment is not discriminatory”.[170]

Case law examples show how judicial and quasi-judicial bodies in the domestic context deal with this issue of the burden of proof, in positive and negative ways.

In the context of civil law, labour matters and conflicts in some jurisdictions illustrate some of the issues regarding the burden of proof and some of the procedural issues that can represent significant obstacles for victims of violations of ESC rights to seek redress before courts or administrative bodies. A specific example concerns sexual harassment at the work place, for which victims may face insuperable hurdles in providing evidence. In these cases, a victim’s colleagues may be unwilling to testify and some evidence may not be permitted, such as recordings of the person accused of the harassment, without the person’s consent.

Although in some jurisdictions, labour law and procedures recognized the weaker position of the workers, this is not universally the case and it does not always translate into the necessary procedural arrangements regarding the rules of evidence. For instance, the Supreme Court of Morocco established, in a decision of 2009, that the burden to prove a failure to pay the legal minimum wage is on the worker.[171]

Establishing violations against claims of deference to authorities over resources allocation

An alleged lack of State resources no doubt constitutes another area in ESC rights litigation giving rise to difficulties in establishing a case. Many ESC rights cases in which there are alleged breaches of positive obligations requiring availability of resources primarily but not exclusively involve the obligation to fulfil.[172] In many cases that have important financial implications, the State often argues a lack of resources and the impossibility to remedy violations without putting an unacceptable burden on the national or local budget.

In some cases, judicial and quasi-judicial bodies will be reluctant to contradict the argument of the State. An example of this is provided by a case decided by the Supreme Court of Morocco concerning the right to health. Although the administrative courts condemned the failure of the authorities to provide free life-saving treatment to a patient, the Supreme Court reversed the decisions on the ground that the lower courts should have taken into consideration the resource implications of such decisions.[173]

However, other jurisdictions have showed more willingness to review cases even if the remedy required has important budgetary implications. Several examples of this are provided by the rich jurisprudence from the South African Supreme Court. The Blue Moonlight Properties case constitutes one such instance.[174]

→ City of Johannesburg Metropolitan Municipality v. Blue Moonlight Properties 39 (Pty) Ltd and Another, CCT 37/11 [2011] ZACC 33

In September 2013, the Supreme Court of Appeal of South Africa strongly affirmed that the State had the onus of proving the impossibility to redress a violation because of lack of resources. In the Baphiring Community & Ors v. Tshwaranani Projects CC & Ors case,[175] the Supreme Court of Appeal had to review a dispute over a land claim under the Restitution of Land Rights Act 22 of 1994. A central issue of the appeal focused on the feasibility of the restoration of land to a community that had suffered land deprivation during the apartheid era, and on the evidence brought by the State allowing the court to make an assessment of the feasibility of specific land restoration, as opposed to granting alternative State land or compensation. The Court found the evidence brought by the State to support the non-feasibility of restoring the land absent or inadequate.

The Court in particular reproached the State for not having conducted a feasibility study. On the grounds of appealing the decision of the lower court order of non-restoration, the Supreme Court of Appeal considered that “the failure to call for such evidence constituted a material irregularity and vitiates the order of non-restoration.” It further stated that: “[the court’s assessment of feasibility] does not mean that a court will second guess an assertion by the state that it is unable to fund the cost of the restoration. But it does mean that it will be required to place credible evidence before the court to justify this assertion.”[176]

Useful tools and allies in producing evidence

In the light of the challenges mentioned above, it is clear that ESC rights adjudication can greatly benefit from relying on third party expertise including of national human rights institutions and NGOs. The latter may, for instance, conduct regular monitoring of public policies and budget analysis, which can be useful to assess the availability of resources among other issues.

In that regard, it is important to note that the Optional Protocol to the ICESCR adopts the standard of “reasonableness” that had been established by the South African Supreme Court when having to review breaches of obligations in the field of ESC rights. This will be the standard applied by the CESCR when it reviews State compliance in individual cases. Therefore, significant means will also be required to prove non-compliance with conventional rights and obligations.

As far as documentary evidence is concerned, useful resources include the information provided in monitoring documents that are available for the periodic review of treaty-bodies of the implementation of the various human rights treaties, as well as other United Nations resources such as those available from specialized agencies.[177]

The analysis emerging from human-rights based monitoring and the use of human rights indicators can help lawyers, judges and quasi-judicial bodies, such as the UN CESCR, to assess the reasonableness of progress in the realization of ESC rights and the use of the maximum available resources as required by the ICESCR.

Finally, it is important to take note of the developments in the area of human-rights impact assessments that States and businesses are increasingly called under international law to conduct prior to investment, the conclusion of new agreements and/or the initialization of development projects.[178] In particular, States have often been advised to conduct human rights impact assessments in the area of trade and investment.[179] In addition, the Committee on the Rights of the Child has provided an explicit statement of the general requirement of impact assessments including in the design of the development policies.[180] The assessments may represent useful documentary evidence for litigators.

Footnotes    (↵ returns to text)

  1. 136. Principle
    For purposes of the present document, victims are persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering,
    economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law. Where appropriate, and in accordance with domestic law, the term “victim” also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.
    of the United Nations General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Resolution A/RES/60/147 (2005).↵
  2. 137. Article
    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.
    of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (adopted 10 December 2008, entered into force 5 May 2013), G.A. res. 63/117.↵
  3. 138. Article
    The States Parties to the present Covenant undertake to ensure:… (b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations;
    of the International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976), UN Doc. A/6316 [hereinafter ICESCR].↵
  4. 139. Article
    The States Parties to the present Covenant undertake to ensure:…(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
    of the ICESCR.↵
  5. 140. Article
    The States Parties to the present Covenant undertake to ensure:… (d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.
    of the ICESCR.↵
  6. 141. ICJ publication “Courts and the Legal Enforcement of Economic, Social and Cultural Rights – Comparative Experiences of Justiciability” [hereinafter the ICJ Justiciability Study], pp. 93-94.↵
  7. 142. See the ICJ Justiciability Study p. 96, and examples of cases including: The Mumbai Kamgar Sabha, Bombay v. M/S. Abdulbhai Faizullabhai and others, Supreme Court of India, Decision AIR 1976 SCC 1455 (1976); Upenda Baxi v. State of U. P. & ors., 1982 (1) SCC 84 [502], (1983), 2 SCC 308 (1986) 4 SCC 106, AIR 1987 191; Sheela Barse v. Union of India and another (1993) 4 SCC 204; In the Matter of: Prison Reform Enhancements of Wages of Prisoners etc., High Court of Kerala (India), AIR Ker 261. See, generally, Sangueeta Ahuja, People, Law and Justice. Casebook on Public Interest Litigation, Orient Longman, New Delhi , 1997, T. I, Introduction, pp. 4-8; Siddarth Bawa, Public Interest Litigation, New Era Law Publications, Delhi, 2006, pp. 72-141; D.J. De, New Dimensions of Constitutional Law, Eastern Law House, Calcutta, 1991, pp. 8-21; Mamta Rao, Public Interest Litigation. Legal Aid and Lok Adalats, 2nd edition, Eastern Book Company, Lucknow, 2004, pp. 64-111 and 265-285.↵
  8. 143. Under article 32 of the Constitution of India.↵
  9. 144. Presidential Decree No. 2591 (1991), implementing article 86 of the Colombian Constitution, accessible at: http://www.corteconstitucional.gov.co/lacorte/DECRETO%202591.php↵
  10. 145. See, for example, R. de C. Mancuso, Açao Civil Pública, Ed. Revista dos Tribunais, São Paulo, 1999, pp. 46–55; M.F.M. Leal, Açoes Coletivas: História, Teoria e Prática, Porto Alegre: Sergio Fabris, 1999, pp. 187–200.↵
  11. 146. There are a large amount of cases in which third party interventions have played an important role. The ESCR-Net case-law database, accessible at http://www.escr-net.org/caselaw/ offers under most case pages links to amicus briefs and interventions. The intervention of the ICJ through the submission of an amicus brief to the Court for the Protection of Children and Adolescents and for Adolescents in conflict with criminal law, Department of Zacapa, Guatemala, in the Cases No.19003-2011-00638-Of.1a; No. 19003-2011-00639-Of.2a; No. 19003-2011-00637-Of.3a; No. 19003-2011-00641-Of.1 (2013) provides an illustration of this importance. The amicus brief has significantly contributed to ensure that the juvenile court interprets the child protection legislation in compliance with provisions of the Convention on the Rights of the Child and the International Covenant on Economic, Social and Cultural Rights and to achieve the structural remedy needed. For more information, see the ICJ’s statement on the cases and its amicus brief at: https://www.icj.org/guatemala-condenado-por-violaciones-a-derechos-economicos-sociales-y-culturales/↵
  12. 147. ICJ Justiciability Study, p. 94.↵
  13. 148. For a more detailed discussion on the issue of remedies and enforcement in the area of ESC rights, see Chapter 6 of the present Guide.↵
  14. 149. See Basic Principles on the Independence of the Judiciary, United Nations General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.↵
  15. 150. See Chapter 4, section I of the present Guide.↵
  16. 151. Rarasea v. The State, High Court of Fiji, criminal appeal no. HAA0027 (2000), para. 3.↵
  17. 152. See Malcolm Langford, “Hungary: Social Rights or marked Redivivus?”, in Malcolm Langford, Social Rights Jurisprudence; Emerging Trends in International and Comparative Law, Cambridge University Press, Cambridge, 2008, p. 265.↵
  18. 153. See Magdalena Sepúlveda, “Colombia: The Constitutional Court’ s Role in Addressing Social Injustice”, in Malcolm Langford, Social Rights Jurisprudence; Emerging Trends in International and Comparative Law, Cambridge University Press, Cambridge, 2008, p. 160.↵
  19. 154. On the general material obstacles to access to justice for ESC rights, see United Nations Secretary General Report on the question of the realization in all countries of economic, social and cultural rights (2013), UN Doc. A/HRC/25/31, paras 16-24. On the specific situations in El Salvador and Morocco, see ICJ Studies on Access to Justice for social rights, available respectively in French and Spanish at: https://www.icj.org/new-icj-study-on-access-to-justice-for-economic-social-and-cultural-rights-in-morocco/, and https://www.icj.org/new-icj-study-analyses-obstacles-preventing-salvadorians-to-access-justice-effectively/↵
  20. 155. Article
    Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, 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 present Covenant by all appropriate means, including particularly the adoption of legislative measures.
    of the ICESCR. See also Chapter 2, section II.1 of this Guide.↵
  21. 156. For an analysis of the pilot project of Legal Aid Botswana, see ICJ Study, Women’s Access to Justice in Botswana: Identifying the Obstacles & Need for Change, (2013), pp. 38-39: “The first legal aid system in Botswana, which was established following a pilot project launched in 2011-2012, guarantees qualified individuals representation in criminal matters before the High Court and Court of Appeal. It also extends to Magistrates Courts where specifically authorized by the Interim legal Aid Coordinator. It also explicitly entitles qualified individuals to legal representation in civil claims concerning divorce, child custody, maintenance and protection from domestic violence. Legal representation in other matters, such as claims related to constitutional rights or discrimination, may be provided upon authorization on a case-by-case basis by the Interim legal Aid Coordinator.” Accessible at: https://www.icj.org/meaningful-action-needed-to-advance-womens-access-to-justice-in-botswana/↵
  22. 157. For a non-exhaustive list and contact details of law clinics at university offering support in preparing and accompanying litigation see tool box in annex 2 of this Guide.↵
  23. 158. National Human Rights Institutions need to comply with the Principles relating to the Status of National Institutions (The Paris Principles), UN Doc. A/RES/48/134 (1993).↵
  24. 159. Equivalents to the Médiateur in other countries who also have the mandate to handle complaints of maladministration, conduct investigations, rectify any act or omission in administrative conduct through mediation, conciliation or negotiation, or advise on appropriate remedies, include for example, the Public Prosecutor in South Africa, the Ombudsman in Gambia, the National Ombudsman in Namibia, the Federal Ombudsman (Wafaqi Mohtasib ) and Provincial Ombudsmen in Pakistan, the Ombudsmen in Thailand, the Commonwealth Ombudsman in Australia, and the Parliamentary Ombudsman in Norway.↵
  25. 160. See the ICJ study on Access to Justice for social rights in Morocco (2013), pp. 46-47, available in French at: https://www.icj.org/new-icj-study-on-access-to-justice-for-economic-social-and-cultural-rights-in-morocco/↵
  26. 161. Bhe and Others v. Magistrate, Khayelitsha and Others; Shibi v. Sithole and Others; SA Human Rights Commission and Another v. President of the RSA and Another, Supreme Court of South Africa, Decision 2005 (1) SA 580 (CC) (2005).↵
  27. 162. The subjugation of administrative action to the rule of law and to the requirements of due process – which, in turn, offers a basis for judicial review – has also been an early and longstanding concern of the International Commission of Jurists. As early as 1959, a Congress of the ICJ pointed out that: “Since [judicial] supervision [of administrative action] cannot always amount to a full re-examination of the facts, it is essential that the procedure of such ad hoc [administrative] tribunals and agencies should ensure the fundamentals of fair hearing including the right to be heard, if possible, in public, to have advance knowledge of the rules governing the hearing, to adequate representation, to know the opposing case, and to receive a reasoned judgements. Save for sufficient reason to the contrary, adequate representation should include the right to legal counsel….Irrespective of the availability of judicial review to correct illegal action by the executive after it has occurred, it is generally desirable to institute appropriate antecedent procedures of hearing, enquiry or consultation through which parties whose rights or interests will be affected may have an adequate opportunity to make presentations so as to minimize the likelihood of unlawful or unreasonable executive action….It will further the Rule of Law if the executive is required to formulate its reasons when reaching its decisions of a judicial or administrative character and effecting the rights of individuals and the request of a party concerned to communicate to him”. See International Commission of Jurists, “Need for and limitations of effective governmental powers”, adopted at the Congress of Delhi (1959), Committee II, in International Commission of Jurists, The Rule of Law and Human Rights: Principles and Definitions (1966), Geneva, pp. 12-13. See also “Human rights and aspects of administrative law”, and “Procedures utilized by administrative agencies and executive officials”, adopted in the Congress of Rio (1962), Ibid, at pp. 19-22.↵
  28. 163. See, for example, Baena v. Panama, Inter-American Court of Human Rights (2001), paras 124, 126 and 127, where the Court considered the right to a fair trial to be applicable to an administrative procedure for dismissal of trade union workers; 5 “Five Pensioners” v. Peru (2003), paras 116 and 135, where the Court granted judicial review in a case dealing with administrative measures reducing pensions; Inter-American Commission on Human Rights, Report 03/01; case of Amílcar Menéndez, Juan Manuel Caride, et al. (Social Security System) v. Argentina, Admissibility Report, case 11.670 (2001), where the Commission considered that a complaint based on the alleged violation of procedural rights in the area of social security pensions was admissible. The case ended with an amicable settlement.↵
  29. 164. The right is an essential element of the right to freedom of expression. Paragraph 2 of article 19 of the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), UN Doc. A/6316 affirms that: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” (emphasis added).↵
  30. 165. See for instance, Tshwane Principles, Global Principles on National Security and the Right to Information (2013), available at: http://www.opensocietyfoundations.org/publications/global-principles-national-security-and-freedom-information-tshwane-principles. Principle 1 states that: “Everyone has the right to seek, receive, use, and impart information held by or on behalf of public authorities, or to which public authorities are entitled by law to have access.” And Principle 10 “Categories of Information with a High Presumption or Overriding Interest in Favor of Disclosure” establishes that: “Information regarding other violations of human rights or humanitarian law is subject to a high presumption of disclosure, and in any event may not be withheld on national security grounds in a manner that would prevent accountability for the violations or deprive a victim of access to an effective remedy.”↵
  31. 166. The problem of establishing the causality link is also posed notably in cases of occupational health for instance.↵
  32. 167. Committee on Economic, Social and Cultural Rights, General Comment No. 3, contained in UN Doc. E/1991/23 (1990), paras 9 and 10.↵
  33. 168. D.H. and others v. the Czech Republic, European Court of Human Rights, Application No. 57325/00, Grand Chamber Judgment, 2007. The case was brought by a group of Roma students alleging that themselves specifically and Roma children from across the Ostrava region in the Czech Republic more generally were overwhelmingly placed in special schools for children with learning difficulties and provided inferior education on racial grounds rather than based on their intellectual capacity.↵
  34. 169. D.H. and others v. the Czech Republic, European Court of Human Rights, Application No. 57325/00, Grand Chamber Judgment, 2007, paras
    186. As mentioned above, the Court has noted in previous cases that applicants may have difficulty in proving discriminatory treatment (Nachova and Others, cited above, §§ 147 and 157). In order to guarantee those concerned the effective protection of their rights, less strict evidential rules should apply in cases of alleged indirect discrimination. 187. On this point, the Court observes that Council Directives 97/80/EC and 2000/43/EC stipulate that persons who consider themselves wronged because the principle of equal treatment has not been applied to them may establish before a domestic authority by any means, including on the basis of statistical evidence, facts from which it may be presumed that there has been discrimination (see paragraphs 82–83 above). The recent case-law of the Court of Justice of the European Communities (see paragraphs 88–89 above) shows that it permits claimants to rely on statistical evidence and the national courts to take such evidence into account where it is valid and significant. The Grand Chamber further notes the information furnished by the third-party interveners that the courts of many countries and the supervisory bodies of the United Nations treaties habitually accept statistics as evidence of indirect discrimination in order to facilitate the victims’ task of adducing prima facie evidence. The Court also recognised the importance of official statistics in the above-mentioned cases of Hoogendijk and Zarb Adami and has shown that it is prepared to accept and take into consideration various types of evidence(see Nachova and Others, cited above, § 147). 188. In these circumstances, the Court considers that when it comes to assessing the impact of a measure or practice on an individual or group, statistics which appear on critical examination to be reliable and significant will be sufficient to constitute the prima facie evidence the applicant is required to produce. This does not, however, mean that indirect discrimination cannot be proved without statistical evidence.
    ↵
  35. 170. Ibid, para.
    Where an applicant alleging indirect discrimination thus establishes a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden then shifts to the respondent State, which must show that the difference in treatment is not discriminatory (see, mutatis mutandis, Nachova and Others, cited above, § 157). Regard being had in particular to the specificity of the facts and the nature of the allegations made in this type of case (ibid., § 147), it would be extremely difficult in practice for applicants to prove indirect discrimination without such a shift in the burden of proof.
    para. 189.↵
  36. 171. Social Chamber, Moroccan Cour de cassation, Decision 697/5/1/2008-2654 (2009).↵
  37. 172. See Chapter 2, section III.1.2.↵
  38. 173. See Chapter 4, section IV of the present Guide: Moroccan Cour de Cassation, Decision 59/4/2/2009-28 (2010). The Supreme Court declared that the lower courts should not have found any State responsibility, for the death of the patient because of the failure to provide the treatment, without having duly assessed the means the State has at its disposal. The Supreme Court rejected any State responsibility because of the exceptional effort that the latter would have had to produce, which would have exceeded its capacities.↵
  39. 174. City of Johannesburg Metropolitan Municipality v. Blue Moonlight Properties 39 (Pty) Ltd and Another, Constitutional Court of South Africa, Case CCT 37/11 [2011] ZACC 33.↵
  40. 175. The Baphiring Community v. Tshwaranani Projects, Constitutional Court of South Africa, Decision CC (806/12) [2013] ZASCA 99 (2013).↵
  41. 176.The Baphiring Community v. Tshwaranani Projects, Constitutional Court of South Africa, Decision CC (806/12) [2013] ZASCA 99 (2013), para. 22.↵
  42. 177. For more details see tool box in annex 2.↵
  43. 178. See Guiding principles on human rights impact assessments of trade and investment agreements, Report of the Special Rapporteur on the right to food, Olivier De Schutter, UN doc. A/HRC/19/59/Add.5 (2011); see also Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, UN doc. A/HRC/17/31 (2011). These sector-specific guidelines on human rights impact assessments provide some elements that could contribute to the consolidation of an effective devise to map out risks on ESC rights and their relationship with States obligations under the ICESCR.↵
  44. 179. See Committee on Economic, Social and Cultural Rights, Concluding observations: Ecuador, UN doc. E/C.12/1/Add.100 (2004), para. 56; Committee on the Rights of the Child, Concluding observations: El Salvador, UN doc. CRC/C/15/Add.232 (2004), para. 48; Committee on the Elimination of Discrimination against Women, Concluding observations: Colombia, UN doc. CEDAW/C/COL/CO/6 (2007), para. 29; Concluding observation: the Philippines, UN doc. CEDAW/C/PHI/CO/6 (2006), para. 26; and Concluding observations: Guatemala, UN doc. CEDAW/C/GUA/CO/6 (2006), para. 32; see also Report of the Special Rapporteur on the right to food, O. De Schutter on his mission to the World Trade Organization, UN doc. A/HRC/10/5/Add.2 (2009), paras 37-38.↵
  45. 180. Committee on the Rights of the Child, General Comment No.5, General Measures of Implementation for the Convention on the Rights of the Child, UN Doc. CRC/GC/2003/5 (2003), para. 45. See also Committee on the Rights of the Child, General Comment No.16, State obligations regarding the impact of the business sector on children’s rights, UN Doc. CRC/C/GC/16 (2013), paras 78-81.↵