I. Strategic considerations around litigation
1. Providing victims/clients information about rights and remedies
Studies looking at strategic dimensions of litigation and testimonies of practitioners across jurisdictions confirm the fundamental importance of ensuring the overall awareness of rights-holders about their rights and the corresponding State obligations towards their realization.
Clearly, higher levels of general education and in particular human rights education of the population will better facilitate access to justice in cases of alleged violations of ESC rights. Awareness about rights is not only important in specific cases in which violations occur, but also serves an important role in preventing such violations. Rights-holders need to be empowered to claim and defend their rights. Yet, through varying degrees across countries, rights-holders typically know little about their rights and more generally about possibilities for their legal protection. For instance, the laws and important judicial decisions pertaining to ESC rights are often only published in an official gazette or similar document that has very limited reach, especially for individuals from marginalized and disadvantaged groups, more likely to be victims of ESC rights violations. In this respect, lawyers and judges will have a critical role to play in making information available and understood. One such contribution is the development and maintenance of case law databases by judiciaries and legal practitioners. In addition, there are education and transparency initiatives, such as, in El Salvador, where the Constitutional Court judges regularly dedicate time to inform people about their work, the Constitution and the rights it protects. In Kenya, a pilot programme was launched in 2013 to train all undergraduates of the Laikipia University in human rights international and national standards.
Awareness of rights-holders becomes indispensable when knowledge of rights moves out of the abstract and they become actual victims of violations. Depending on the gravity and particular facts at play and legal issues raised, as well the scope of the remedies sought, lawyers will often have to strike a balance between the specific interests of their clients and the consideration of the general legal and policy impact a case may engender. An informed, constant and active involvement of rights-holders in the litigation process and possible strategic decisions is optimal. Where there is a possibility for the achievement of more systemic means of providing remedies and policy changes that have an impact beyond the individual situations, it will be essential that the individual victims are aware of this potential and buy into any approach that aims to address the broader question.
Thus, a threshold question that may have to be resolved is whether litigation is the best option in a given situation. In addition, as many of the emblematic ESC rights cases demonstrate, the development of a broad strategy in which litigation can be only one component among others is fundamental. In such cases, legal and political advocacy may play a determinative role in ensuring that whenever a positive decision and remedies are achieved, these will be enforced broadly. This is particularly true when the remedies ordered imply structural changes in law and policy. In some instances, even when litigation was not successful, positive change has still been achieved through the public campaign and advocacy around the case.
Rights-holders as well as civil servants and duty bearers will need to be aware of the legal framework and principles they must respect when delivering public goods and services necessary to realize human rights in ESC rights. In that regard, it is interesting to note progress in the human rights training of civil servants. For example, in Bolivia the State initiated a new educational programme for all civil servants to train them in human rights standards against discriminatory attitudes and acts in public administration.
Well-informed public administration personnel are in a better position both to prevent violations of rights and to more actively and effectively contribute to their realization. In cases of complaint against poor functioning public services, they may be better able to provide immediate, or at least timely, redress through administrative remedies that can ensure cessation of a violation, avoid aggravation and be more accessible to rights-holders as public service. In that sense, the importance of human rights training of public officials is as important in the field of ESC rights as for other human rights, as it plays a determining role in guaranteeing all the elements of adequate reparation as understood by international law, which includes guaranteeing non-repetition. The use of judicial remedies should, in most instances, be the last resort because of their length and limited accessibility for the vast majority of victims of violations of ESC rights.
Literature on Strategic Litigation:
- Bruce Porter, “‘The Crisis in ESC Rights and Strategies for Addressing It”, in Malcolm Langford and Bret Thiele (eds.), Litigation of Economic, Social and Cultural Rights: The State of Play, The University of New South Wales Press, Sydney, 2005.
- Malcolm Langford, “From practice to theory: the justiciability of social rights”, in Malcolm Langford, Social Rights Jurisprudence: Emerging Trends in Comparative and International Law, Cambridge UP, Cambridge, 2008.
- James L. Cavallaro and Emily J. Schaffer (2004-2005), “Less as More: Rethinking Supranational Litigation of Economic and Social Rights in the Americas” in Hastings Law Journal 56 (2), pp. 217 281.
- Tara J. Melish (2006), “Rethinking The ‘Less as More’ Thesis: Supranational Litigation of Economic, Social and Cultural Rights in the Americas”, New York University Journal of international Law & Politics 39 (1), pp. 171-342.
Other resources on Strategic Ligitation:
Oficina del Alto Comisionado de las Naciones Unidas para los Derechos Humanos en Guatemala, Capacitación Técnica en Litigio Estratégico en Derechos Humanos de los Pueblos Indígenas Componente de Justicia del Programa Maya II, Manual Litigo Estratégico: “Estrategia General para los litigios de Alto Impacto”, accessible at: http://www.ohchr.org.gt/documentos/programaMAYA/ANEXO2.pdf
Strategic Litigation Initiative (SLI) of ESCR-Net, accessible at: http://www.escr-net.org/node/365113
The Global Initiative for ESCR, accessible at: http://globalinitiative-escr.org/advocacy/strategic-litigation-under-the-international-covenant-on-civil-and-political-rights/
2. Choosing the forum
In considering the possibility of recourse to judicial and quasi-judicial bodies to seek redress and reparation for violations of ESC rights, victims and their lawyers may have the choice of a number of forums and, correspondingly, different areas of applicable law. At the national level, these may include administrative, civil or criminal law.
At the international level, lawyers may have the choice of a regional human rights system or to the United Nations bodies that may offer a quasi-judicial review of compliance with their respective treaties.
Various factors may be at play and need to be considered when making the choice. They include:
- The legal framework offered by the convention concerned and the degree of protection of ESC rights such law provides;
- The positions taken and jurisprudence of the judicial or quasi-judicial body concerned with regard to the legal issues at stake in a specific case;
- The procedural issues, such as admissibility and standing issues or the length of the procedure, that the specific protection mechanism offers;
- The type of remedies that can be ordered, the nature of the decisions and the perspective of enforcement and implementation.
The choice of the most appropriate and strategic jurisdiction can also be relevant for the adjudication of ESC rights at the domestic level. The criteria listed above concerning litigation at the international level also apply, to a certain extent, at domestic level. In particular, the swiftness and timeliness of the various available procedures will play a determining role, as well as other considerations such as those related to the rules of evidence.
For instance, in cases of violations of rights at work and breaches of the labour code that are penalized under the penal code, such as in matters of sexual harassment, lawyers may advise their clients to initiate the penal procedure first. This will trigger an investigation and may strategically contribute to overcoming the obstacles often faced by victims to prove the facts in such cases.
- 127. See box at p. 52 of the present chapter.↵
- 128. The ICJ Studies on Access to Justice for social rights in Morocco and El Salvador, respectively accessible 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/ show the importance of education and awareness-raising in two specific contexts.↵
- 129. See tool box in annex 2 of this Guide.↵
- 130. Website of the Constitutional Chamber of the Supreme Court of El Salavdor, is accessible at: http://www.csj.gob.sv/SALAS_CSJ.html# ↵
- 131. For more information, see OHCHR Annual Report, Thematic priorities: Impunity and the Rule of Law, p. 40, accessible at: http://www2.ohchr.org/english/OHCHRReport2013/WEB_version/pages/thematic_priorities.html; and website of the Laikipia University, accessible at: http://laikipia.ac.ke/home/humanrights.html↵
- 132. The Lindiwe Mazibuko & Others v. City of Johannesburg & Others case, Constitutional Court of South Africa Case CCT 39/09,  ZACC 28, 8 October 2009, provides a good illustration of a positive change through public campaign and advocacy, compensating a relatively conservative decision by the court. For further details see Chapter 5, section III of this Guide.↵
- 133. See Report of the United Nations High Commissioner for Human Rights on the activities of her office in the Plurinational State of Bolivia, UN Doc. A/HRC/22/17/Add.2 (2013), para. 34. Accessible at: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A-HRC-22-17-Add-2_en.pdf↵
- 134. For information on relevant instruments on human rights training, see ICJ Practitioners’ Guide No. 2, the Right to a Remedy and to Reparation for Gross Human Rights Violations, pp. 104-105. Accessible (in English, French, Spanish, Arabic and Thai) at: https://www.icj.org/the-right-to-a-remedy-and-to-reparation-for-gross-human-rights-violations/↵
- 135. For concrete examples from different jurisdictions on access to justice using various bodies of law see Chapter 4 of this Guide.↵