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4.2 Civil courts and the relevance of private law for ESC rights

A wide range of situations that generate or constitute violations of ESC rights may be dealt with by civil courts. The relevance of civil law for ESC rights is manifold, reaching family law matters, labour and social security matters, conflicts between landlords and tenants, and the recovery of damages for victims of torts in cases of civil liabilities. In line with the general approach of this chapter, the issues considered below only intend to provide indicators for legal practitioners concerning the relevance of certain civil law matters and suits to the indirect or partial protection of ESC rights.

In general and in addition to the traditional areas mentioned above, private law has a growing significance for the protection of ESC rights[197] and their adjudication. This is because of the global trend towards privatization of basic services that used to be, essentially, in the hands of public authorities. These typically include health care, water and electricity procurement services, education and cultural institutions.[198]

In this respect, the standards and mechanisms for the protection of consumers’ rights constitute a field of increasing importance for practitioners involved in ESC rights adjudication.[199] There has been an important development of the normative framework surrounding the protection of the rights to information of and remedies available to consumers that can also be invoked by judges and lawyers in various areas such as water or energy prices and quality of service, food quality or drug safety. In some countries, consumer protection law offers an institutional and procedural framework that can be of great help in realizing ESC rights, preventing violations through the development of new protective standards and facilitating access to justice and remedies for victims of violations of these rights.

Consumer protection associations may be of generalist or specialized competency, such as those tasked with the protection of rights of tenants or of users of specific services. Each may contribute to overcome or mitigate the obstacles created by the lack of appropriate class action procedures in ESC rights cases. They may be able to represent multiple victims; to join or initiate civil or criminal proceedings to obtain remedies such as the award of damages for individual and collective grievances or to obtain the deletion of abusive clauses in standard contracts (for instance in housing and rent matters).[200]

In certain countries, the official institutional infrastructure for the protection of consumers offers flexible, accessible and swift responses to situations that constitute or can escalate to violations of ESC rights.[201]

1. Family law matters

Family law matters are inextricably linked to the enjoyment of ESC rights. For instance, issues of child maintenance and custody typically have an impact on the right to education, housing, food and health of the child concerned as well as the parent(s) caring for her or him.

Another example of this interlinkage concerns issues around access and control over property in cases of divorce or inheritance. Especially for women who in many countries still lack economic and financial agency, decisions of civil courts on these matters have a great importance for their ability to enjoy ESC rights such as the right to an adequate standard of living, the rights to adequate housing and food and the right to health. The problems around access and maintenance of control over property are particularly stark around ESC rights of women in rural areas, as such women are often highly dependent on secure land tenure to maintain their livelihoods and those of their dependent relatives.

In addition, cases that begin as civil cases often raise broader constitutional issues, such as the relevance and sometimes incompatibility of customary law with constitutional and international human rights standards. Relevant case law includes Bhe and Others from South Africa, in which the Constitutional Court declared the African customary law rule of primogeniture unconstitutional since it discriminates unfairly against women and illegitimate children on the grounds of race, gender and birth.[202] Another interesting example can be found in a Beninese Constitutional Court decision from 2013 concerning the law establishing the code on private and state-owned land tenure, which was declared partially unconstitutional as it was contrary to the constitutional guarantees on equality of men and women before the law. The Constitutional Court ordered that the law should mention that it ensures the equal access of men and women to land.[203] While a deeper analysis of the role of customary law and judicial and quasi-judicial bodies is beyond the scope of the present Guide,[204] it is uncontested that these are greatly relevant in ESC rights litigation, not least because of their areas of jurisdictions including in civil matters. In addition, these are often the first and most accessible authorities that rights-holders turn to in a number of regions and countries. Working with actors of customary legal jurisdictions to enhance knowledge of international human rights standards may significantly contribute to a better realization and protection of ESC rights.

2. Labour law

Many labour rights form part of the broader human rights law corpus.[205] Articles 6, 7 and 8 of the ICESCR guarantee various rights to work and at work: from the right to gain a living from work which has been freely chosen, access to vocational training,[206] fair remuneration and the equal rights of female and male workers, healthy and safe conditions of work[207] to rights of joining and forming trade unions.[208] Decent work and working conditions may be a basis for the enjoyment of other human rights.

There is a vast body of international and comparative case law relating to labour issues, as the field is among the oldest and most developed[209] in the human rights corpus. Labour codes classically regulate the standards around recruitment, contracting and dismissal or resignation. They protect workers against discrimination on various prohibited grounds, including race and sex. They also protect against abuses of their rights at work in relation to remuneration and promotion, working hours and rest, protection of pregnant and breastfeeding women or in relation to safety and hygiene at the work place. All of those are fundamental elements of the rights as enshrined in international human rights law.

While the system of legal and judicial protection of labour rights[210] differ from one country to another, most have in common a system of prevention, control and conciliation that can enable workers to access a timely and effective remedy, especially in cases of individual conflicts. In this respect, labour inspections can play a very important role in preventing, investigating and denouncing abuses of workers’ rights, although the effectiveness of this function is subject to the availability of sufficient human and material resources for the inspection to fulfil its role.

In addition, a number of legal systems recognize the disparity of resources between a worker and an employer and address this through procedural arrangements and provisions which enable workers to access justice at little or no personal cost.

Domestic courts have typically decided issues of:

  • Equal pay for work of equal value/ gender equality, such as in the following case decided by the Supreme Court of Canada, in 2011.

→ Public Service Alliance of Canada v. Canada Post Corporation and Canadian Human Rights Commission

  • Illegal and unfair dismissal or termination of contract on grounds of health status such as in the following cases decided by the Industrial Court of Gaborone in 2003 and 2004.[211]

→ Diau v. Botswana Building Society

→ Lemo v. Northern Air Maintenance (PTY) LTD

  • Discrimination on account of trade union activities such as in the following case decided by the Labour Tribunal/Conseil de Prud’hommes de Bobigny and adjudicated by a judge from the Tribunal d’Instance in 2011.

→ Lopez and Syndicat SYNPTAC-CGT v. SARL Théâtre d’Aubervilliers

  • Occupational health and safety at work

→ Tahirzade v. AMEC

3. Tort law (common law and statutory law)

In addition to the above examples involving direct violations of civil law and administrative law, there is also the possibility in many jurisdictions, that civil courts will also be able to adjudicate and award damages in cases of a tort violation, where a tortious violation may also constitute a violation of ESC rights. Recourse to civil courts to recover damages in tort may be effective either in parallel to other proceedings or may constitute an alternative means of exercising the right to an effective remedy and reparation for an ESC rights violation.

The Colindres case decided by the Supreme Court of El Salvador provides an example of this. It concerns the illegal dismissal of Dr Benjamin Eduardo Colindres from his position as a judge of the Supreme Electoral Tribunal (Tribunal Supremo Electoral), who was accused by the Legislative Assembly of El Salvador of being immoral and lacking relevant education. Mr Colindres civilly sued the State of El Salvador for the moral damage caused. On June 13 2001, the Civil Chamber of the of the Supreme Court of El Salvador ordered the State of El Salvador to pay two million colones. 212

Below are some examples of common law tort cases that have provided an access to remedy and reparation for violations of ESC rights.

→ Park West Management Corp. v. Mitchell, 391 N.E.2d 1288 (N.Y. 1978)

→ Correa v. Hospital San Francisco, 69 F.3d 1184 (1st Cir. App. 1995)

→ Pape v. Cumbria CC, [1992] I.C.R. 132

Footnotes    (↵ returns to text)

  1. 197. See the work of the Committee of International Civil Litigation and the Interests of the Public International Law Association, Final Report of the Sofia Conference (2012), accessible at http://www.ila-hq.org/en/committees/index.cfm/cid/1021. The legal practices and tools rising from national jurisdictions are currently a subject of doctrinal assessment with a view to develop best practices to address the private international law issues that often face national courts when they are confronted with international civil litigation for human rights violations.↵
  2. 198. See, for instance, Bayer Corp v. Union of India, High Court of Delhi, Appeal Case LPA 443/2009 (2010). In this judgement concerning revisions of the Patent Act, the High Court considered the issue of the availability of essential medicine for all, and the protection of private patent rights at the cost of depriving access to affordable, life-saving treatments for public health interests. Even if not the point of law at stake in the case, the Court stated that: “There are other problems in accepting the submission of Bayer. If the patent holder in respect of a life saving drug decides only to seek marketing approval and not manufacturing approval, it would mean that it will be importing into the country that drug which will consequently be priced very high. Accepting on the other hand, Bayer’s contention would mean that the patent holder would be able to block off all generic manufacturers who might have been able to make the drug available in the market at affordable prices, subject of course to their being able to successfully resist injunctions in infringement suits instituted by the patent holder. If the patent holder does not apply for even a marketing approval, then the drug will be virtually unavailable in India till such time the patent holder decides it should be available” [para. 29].↵
  3. 199. At the level of the United Nations, a set of Guidelines has been adopted and updated that lists rights of consumers, including the rights to information and redress. See United Nations Guidelines for Consumer Protection, original text adopted by the United Nations General Assembly in 1985, Resolution A/C.2/54/L.24 9TH, the 1999 revised version is accessible at: http://unctad.org/en/Docs/poditcclpm21.en.pdf. A new revision should be finalized in 2014.↵
  4. 200. See Italian Law 1195-b of 1 July 2009, introducing the azione collective for consumers; the French Law 2014-344 on consumption of 17 March 2014, introducing collective action for consumers in civil suits. See also article 157 of the Moroccan Law 31-08/ Dahir No.01.11.03 of 18 February 2011, giving consumers’ associations the possibility to represent groups of consumers in civil suits.↵
  5. 201. For information on the system of consumer protection in El Salvador that was created by the Peace Agreements and is particularly developed, see ICJ Study on Access to Justice in El Salvador, Acceso a la justicia – Recursos contra las violaciones de los derechos sociales en El Salvador (2013), pp. 53-57.↵
  6. 202. 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, Constitutional Court of South Africa, Decision 2005 (1) SA 580 (CC) (2005). For a case summary visit: http://www.escr-net.org/docs/i/400589↵
  7. 203. Constitutional Court of Benin, Decision DCC 13-031 (2013).↵
  8. 204. For further case law see also Hadijatou Mani Koraou v. The Republic of Niger, Economic Community of West African States (ECOWAS) Community Court of Justice, ECW/CCJ/JUD/06/08 (2008), accessible at: http://caselaw.ihrda.org/doc/ecw.ccj.jud.06.08/view/. For further literature see for instance Wieland Lehnert, “The role of the courts in the conflict between African customary law and human rights”, South African Journal on Human Rights, Volume 21, No 2 (2005), pp. 241-277, accessible at: http://reference.sabinet.co.za/sa_epublication_article/ju_sajhr_v21_n2_a4; Muna Ndulo, “African Customary Law, Customs, and Women’s Rights, Cornell Law Faculty Publications. Paper 187 (2011), accessible at: http://scholarship.law.cornell.edu/facpub/187; Evadne Grant, “Human Rights, cultural diversity and customary law in South Africa”, Journal of African Law, Volume 50, No 1 (2006), p. 2-23, accessible at: http://democraciaejustica.org/cienciapolitica3/sites/default/files/human_rights_cultural_diversity_and_customary_law_in_sa.pdf; Else A. Bavinck, “Conflicting Priorities: Issues of Gender Equality in South Africa’s Customary Law”, Amsterdam LF, Volume 5, No 2 (2013), p. 20, accessible at: http://amsterdamlawforum.org/article/view/316; Hellum, Anne. “Women’s human rights and African customary laws: Between universalism and relativism‐individualism and communitarianism.” The European Journal of Development Research, Volume 10, No 2 (1998), p. 88-104.↵
  9. 205. Rights to work and at work are guaranteed at articles 4, 20, 23, 24 of the Universal Declaration of Human Rights (adopted 10 December 1948), UN Doc. A/810 at 71; articles 8 and 22 of the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), UN Doc. A/6316; articles 6, 7, 8 of the ICESCR; article 11 of the Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981), UN Doc. A/34/46; article 27 of the Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008), UN Doc. A/RES/61/106; articles 15 and 32 of the Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990), UN Doc. A/RES/44/25; articles 11, 25, 26, 40 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted on 18 December 1990, entered into force on 1 July 2003), UN Doc. A/RES/45/158. In addition to guarantees under human rights instruments at the global level, an important body of labour standards has been adopted under the auspices of the International Labour Organization (ILO). Fundamental ILO Conventions include the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87); the Right to Organize and Collective Bargaining Convention, 1949 (No. 98); the Forced Labour Convention, 1930 (No. 29); the Abolition of Forced Labour Convention, 1957 (No. 105); the Minimum Age Convention, 1973 (No. 138); the Worst Forms of Child Labour Convention, 1999 (No. 182); the Equal Remuneration Convention, 1951 (No. 100); and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). Of equal importance are the Governance Conventions, including the Labour Inspection Convention, 1947 (No. 81); the Employment Policy Convention, 1964 (No. 122); the Labour Inspection (Agriculture) Convention, 1969 (No. 129); and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).↵
  10. 206. Article 6
    1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. 2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual
    of the ICESCR.↵
  11. 207. Article 7
    The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: (a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; (ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant; (b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; (d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays
    of the ICESCR.↵
  12. 208. Article 8
    1. The States Parties to the present Covenant undertake to ensure: (a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right 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; (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; (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; (d) The right to strike, provided that it is exercised in conformity with the laws of the particular country. 2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State. 3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.
    of the ICESCR.↵
  13. 209. For an historical analysis of the protection of labour rights, see ICJ Justiciability Study, Chapter 2, pp. 13 and 14.↵
  14. 210. Jurisdictions in charge of labour disputes differ greatly from one country to another. In some systems, labour cases will be dealt with by civil courts and chambers, such as in Morocco. In other domestic frameworks, they will be dealt with by a specialized jurisdiction such as the system of “Prud’homme” in France (for individual conflicts) or the Industrial and Labour courts in common law countries such as in Australia, Botswana, Kenya, UK, India or Malaysia.↵
  15. 211. Diau v. Botswana Building Society, 2003 (2) BLR 409(IC), Industrial Court, Gaborone, Case No. IC No 50 of 2003, 19 December 2003; Lemo v. Northers Air Maintenance (PTY) LTD, 2004 (2) BLR 317 (IC), Industrial Court, Gaborone, Case No: IC No 166 of 2004, 22 November, 2004. ↵