Irrespective of the nature of the remedies ordered, judicial and quasi-judicial bodies often face difficulties in enforcement of their decisions. In the face of these difficulties, some judicial and quasi-judicial bodies have been proactive in fashioning creative approaches.
1. Recourse in cases of non-compliance with judicial decisions
The respect and enforcement in good faith of final judicial decisions by other branches of government is a key element of the rule of law. Yet, enforcement of decisions, especially in cases with a high degree of political sensitivity and/or with significant economic interests at play, has been a real and recurrent challenge to the legal and judicial protection of ESC rights.
At the domestic level, procedural arrangements exist, in principle, to impose the enforcement of judicial decisions. However, the effectiveness of such procedures is often weak, especially when these decisions require systemic remedial measures.
The following example illustrates this difficulty.
In common law jurisdictions, such as Swaziland, in which this procedure gives broader power to judges than in civil law countries, judges have found public authorities in contempt of court for failing to respect and enforce their decisions in cases relevant for ESC rights.
In many civil law jurisdictions, judicial officers and bailiffs are responsible to serve the summons but also to request police intervention to execute judicial decisions. It is interesting to note that in some countries the services of the judicial officers are charged to the costs of the plaintiffs. This applies for example in El Salvador to labour conflicts, in which workers who obtained a decision in their favour had to pay for the services of the executor (ejecutor) in case of non-compliance.
2. Monitoring of the implementation of court orders
Especially in cases of systemic and fully-fledged remedies responding to omissions of the public authorities, certain judicial and quasi-judicial bodies have undertaken to remain in charge of monitoring the implementation of their orders and injunctions.
The Indian Supreme Court has, in cases such as the People’s Union for Civil Liberties v. Union of India & Ors case from 2001, on the right to food, provided for a long-term follow-up and monitoring of its various orders that were made to redress and fully repair violations found in the case.
More generally, the enforcement and implementation of court orders often necessitates wide campaigning to draw public attention to the human rights issues underlying the case, to galvanise the struggle of the victims with broader public opinion and to apply pressure on the authorities to implement decisions.
The case of the Yakye Axa and Sawhoyamaxa in Paraguay at the regional level and the Treatment Action Campaign at the domestic level are illustrations of this.
- 271. Principles 2 of the ICJ Geneva Declaration on Upholding the Rule of Law and the Role of Judges and Lawyers in Times of Crisis, accessible at: https://www.icj.org/legal-commentary-to-the-icj-geneva-declaration-upholding-the-rule-of-law-and-the-role-of-judges-lawyers-in-times-of-crisis/↵
- 272. Contempt of court procedures have also been used inter alia in South Africa and India, see for instance M. Langford, Domestic Adjudication And Economic, Social and Cultural Rights: A Socio-legal Review, in SUR, Vol. 6, No.11 (2009), pp. 91-121, at p. 106. In Philane Hlophe & Ors v. City of Johannesburg, Executive Mayor, City Manager & Ors, South Gauteng High Court, Johannesburg, Case No. 48102/2012 (2013), in which the Court ordered authorities of the City, including the Mayor and the City Manager, to take all the steps necessary to provide the shelter required within two months, or face being held in contempt of court, and could be given fines or prison sentences. The City missed several deadlines to provide temporary shelters to those facing homelessness on evictions from private land although it had agreed to do so in compliance with previous court orders. In the case South African Minister of Health v. Treatment Action Campaign of the Constitutional Court of South Africa, Decision 2002 (5) SA 721 (2002), contempt of court proceedings were launched against the Minister of Health and the Member of the Executive Committee for Health of the Mpumalanga province in the immediate aftermath of the judgement during December 2002. For further information see M. Heywood, “Contempt or compliance? The TAC case after the Constitutional Court judgment”, ESR Review, Vol. 4, No. 4 (2003), pp. 7-10; and Mia Swart, “Left out in the cold? Crafting constitutional remedies for the poorest of the poor”, South African Journal on Human Rights, Vol. 21 (2005), p. 215 and pp. 223-224.↵
- 273. Huissiers de justice in French, ejecutors in Spanish.↵
- 274. 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), p. 65, accessible (in Spanish) at: https://www.icj.org/new-icj-study-analyses-obstacles-preventing-salvadorians-to-access-justice-effectively/↵
- 275. People’s Union for Civil Liberties v. Union of India & Others (PUCL), Supreme Court of India, Petition (Civil) No. 196/2001 (2001).↵
- 276. For information on the struggle of the communities in Paraguay, see for instance Amnesty International news at: http://www.amnesty.org/en/news/paraguay-land-dispute-victory-displaced-indigenous-community-2012-03-02. For information on the work of the Treatment Action Campaign, visit: http://www.tac.org.za/about_us↵