Rights after Trial: Confronting the Non-implementation Problem of ESCR Litigation

By Celeste Kauffman*

 

Since the artificial division of human rights into civil and political rights on the one hand, and economic, social, and cultural rights (ESCR) on the other, activists have struggled to ensure equal protection of the latter in domestic and international courts. This struggle has been largely successful in several countries of the world that have consecrated ESCR and their justiciability in their Constitutions.

Nonetheless, as human rights activists know all too well, ESCR are far from being fulfilled in many areas of the world. Obstacles abound; with respect to the ensuring the justiciability of ESCR rights, a main challenge we face now is to ensure that favorable ESCR court decisions are actually implemented. Unfortunately, many court decisions are never implemented, meaning violations continue. It is difficult to argue that a court decision recognizing the right to housing or education is a success, if the petitioners of the case continue to suffer violations of those rights in reality. This significant problem not only limits the effective enjoyment of human rights, but also threatens the legitimacy of the judicial systems handing down decisions that are ignored.

In the spirit of encouraging discussion regarding the implementation of ESCR decisions, Dejusticia has written a guide on strategies for the implementation of ESCR court decisions, which provides an overview of existing domestic and international implementation mechanisms, and describes various strategies to improve implementation, culled from successfully implemented cases around the world. Among the strategies we identified are (1) courts retaining jurisdiction for monitoring, (2) the use of indicators, (3) the use of experts and commissions, (4) meaningful engagement, and (5) structural reform.

We identified cases from India, South Africa, the USA, and Colombia that adopted these strategies. However, the Colombian case regarding forced displacement illustrates different aspects of these strategies. Internal forced displacement is one of the most serious human rights problems facing Colombia. Internal displacement started as a result of the now decades-long internal conflict, and more recent economic pressures have only exacerbated the crisis. As a result of these factors, the country has the second highest number of internally displaced persons (IDPs) in the world, close to 5 million people. Unfortunately, for years, the State responded with indifference and ineptitude.

The State response changed after decision T-025 of 2004, in which the Colombian Constitutional Court studied 108 constitutional actions regarding the State’s failure to address the situation of IDPs in the country. The Court concluded that the State’s response to IDPs was inadequate and poorly executed, as well as unconstitutional, and ordered the government to take measures to resolve the problem.

After its initial ruling, the Court took several steps that helped prevent this decision from sinking into meaninglessness. Perhaps the first and most important was the decision to maintain jurisdiction to monitor the execution of its orders, which was crucial to its implementation, and is the first strategy we identified for ensuring implementation of court decisions regarding ESCR. The Court used its continued jurisdiction to verify compliance by issuing periodic “monitoring orders” (autos) that request information from relevant actors, address specific groups of IDP, and respond to non-implementation issues.

The Court monitored the implementation of its decision in two other ways. The first was through public hearings, in which the Court requested reports from relevant State institutions, organizations of IDPs, NGOs, and international organizations. In this process, the Court has received technical support from the Monitoring Commission on Forced Displacement, an initiative of civil society organizations. The Commission has been fundamental in the monitoring process, presenting reports regarding the situation of IDPs, as well as evaluating technical aspects of the State’s policy response, tasks the Commission is able to do because it has access to information and institutional capacity that the Court does not. The Commission is an example of another strategy we identified: using experts and commissions to do heavy lifting on the technical and information heavy aspects of implementation that the Court may not have the time or expertise to do.

Additionally, the Court undertook a type of “meaningful engagement” (pioneered by South African courts regarding the right to housing) by initiating a dialogue between the petitioners, the government, and the Commission regarding initially underwhelming implementation of its orders. The Court’s role in guiding the dialogue helped counter the power imbalances between the petitioners and the government. As a result of these dialogues and the expertise provided by the government and the Commission, the Court adopted a series of indicators that allowed for an objective evaluation of public policies for IDPs.

Decision T-025 has yet to be completely implemented, but there have been improvements in different areas of the State’s policy response to IDP, and, more importantly, in their lives. Without the different strategies adopted by the Court and the IDP and civil society organizations monitoring the case, these improvements would have been much smaller. This case, as well as the others in the guide, demonstrates the importance of including implementation strategies as an integral part of ESCR litigation.

 

*Celeste Kauffman is a researcher at the Center for the Study of Law, Justice and Society (Dejusticia)