Some take a teleological approach to interpreting ESC rights or standards while others have been remained 'conservative', even in the face of explicit justiciable rights. And a third group of courts seem simply unaware of the existence of human rights standards and jurisprudence. These differences often apply at the intra-national level; judges outside urban areas tend to be less familiar with human rights and are often more conservative.
This orientation is not static. In a groundbreaking housing rights case in one country, the applicant and lawyer delivered a number of books on the topic to the judge's home address in advance which seems to have had some impact on the final decision SOUTH AFRICA, Government of the Republic of South Africa and Others vs. Moreover, the judiciary is often striving to maintain their legitimacy vis-a-vis the State which often has the power of appointment and ensure they make rulings capable of implementation.
Thus decisions in some cases can only be understood as part of the wider and historical dance between the different organs of the State ROUX, This variable of judicial culture is also affected by wider understandings of the nature and scope of human rights. In those countries where ESC rights were not part of the founding constitutional mythology which particular affects pre constitutions , these broader social discourses appear to play out in the court room.
Another institutional factor appears to be the presence of civil and political rights jurisprudence. Courts that are comfortable with general human rights legal reasoning and application are more likely to extend it into the field of ESC rights. Well-protected civil and political rights also help create some of the underlying conditions for social rights litigation such as freedom of expression, effective court processes and some attention to the enforcement of remedies.
However, the reverse has also been true. Morka has pointed out that ESC rights litigation in Nigeria during the years of dictatorship was more acceptable than civil and political rights cases MORKA, , p. A final set of explanatory variables relate to the level of realisation of socio-economic rights within a States' maximum available resources. Judicial receptivity to social rights claims, particularly of a positive nature, is usually conditioned by clear evidence of State or private failure.
Inhumane suffering in the face of the State unwillingness to fulfil its own legislation and policy has sparked much of the ground-breaking jurisprudence in countries such as South Africa, United States, India and Colombia but may be one reason why litigation has been infrequent in a State such as Norway. As Gauri and Brinks paradoxically note, in the field of socio-economic rights courts often act as "pro-majoritarian actors" in the sense that "Their actions narrow the gap between widely shared social belief and incomplete or inchoate policy preferences on the part of government, or between the behaviour of private firms and expressed political commitments" GAURI; BRINKS, , p.
Therefore, litigation which tackles long-standing and systemic failure may be accorded a greater chance of success when there has been a clear political ineptitude. A different but complementary explanation would be that countries with very high levels of structural social inequality makes the possibility of effective use of representative mechanisms very difficult for marginalised groups and individuals. Courts, if they retain a strong degree of independence, may be less likely to excessively defer to elitist or majoritarian executives and legislatures in such circumstances.
Turning to the jurisprudence itself, we might note that one of its first 'achievements' has been that its cumulative weight has helped overturn two long-standing philosophical objections to the justiciability of ESC rights. These objections are well expressed by Vierdag who claimed, in a somewhat circular fashion, that: 1 ESC rights were not legal rights since they were not inherently justiciable; and 2 ESC rights were not justiciable since they involved issues of policy not law.
In setting out the thesis, he provided the typical and ubiquitous example: "implementation of these provisions [in the ICESCR] is a political matter, not a matter of law" since a Court must engage in prioritisation of resources by "putting a person either in or out of a job, a house or school" VIERDAG, , p. These conceptual criticisms now carry less weight. Commentators such as Dennis and Stewart , p.
This is because many judges have dismissed the first argument on the basis that the inclusion of ESC rights in constitutional bills of rights and international law means, ipso facto, that the rights are legal: as one court stated, "Socio-economic rights are expressly included in the Bill of Rights; they cannot be said to exist on paper only In addressing the law and policy divide expressed in the second objection, many courts have move beyond more abstract considerations to adopt or adapt existing legal principles in particular cases.
Two other philosophical and legal objections are more persistent and arguably provide the basis for determining the limits or the shape of ESC rights adjudication. Judicial review of human rights, particularly the striking down of legislation, remains controversial in some quarters. ESC rights have traditionally been viewed as additionally problematic on account that it requires the legislature and executive to legislate, spend or adopt particular spending and policy priorities.
This concern with the implications for the doctrine of separation of powers, one species of the democratic concern, led one court to state that "if judges were to become involved in such an enterprise, designing the details of policy in individual cases or in general, and ranking some areas of policy in priority to others, they would step beyond their appointed role" IRELAND, Sinnot , Justice Hardimann, para.
The arguments often draw on traditional democratic theory e. These considerations often appear, although with different results, in the jurisprudence. The Swiss Federal Court partly justified its derivation of a right to minimum subsistence from a range of civil and political rights on democratic and substantive grounds: "The guaranteeing of elementary human needs like food, clothing and shelter is the condition for human existence and development as such. Einwohnergemeinde X. The second persistent objection is institutional ; that adjudicators are not suited to the task since not only do they lack the requisite expertise and information on economic and social questions but they are not in a position to resolve the competing policy considerations and consequences that would flow from their decisions.
These are of course real constraints. But it is arguable that they are largely relative and not absolute. Every area of law requires some level of specialist expertise and adjudicatory institutions have responded to the challenge of information by using specialist bodies and expert witnesses as well as accepting submissions from amicus curiae interventions, a phenomenon that has been embraced in ESC rights adjudication.
Scott and Macklem thus treat this problem in a positive light arguing that social rights adjudication plays a valuable function in bringing forth information into the public domain that may not be traditionally available to legislature - concrete violations of rights, particularly of marginalised groups. Horowitz argues that the force of this argument is partly blunted by the fact that courts tended to be backward-looking as well, in terms of using precedents as existing evidence. The seemingly real challenge is the 'polycentric' dilemma as termed by Lon Fuller , who argued that the judiciary cannot and should not deal with situations in which there are complex repercussions beyond the parties and factual situation before the court.
Critics of social rights adjudication typically fear that a decision providing more funding to housing, for example, could imperil funding for health or the police VIERDAG, The problem with this argument is that almost every area of adjudication involves polycentric questions KING, However, this objection has led to judicial innovation as opposed to either activism or resignation.
For example, the order of the Canadian Supreme Court in Eldridge vs. British Columbia , which involved the provision of interpretive services to deaf patients in hospitals, provided that: "A declaration, as opposed to some kind of injunctive relief, is the appropriate remedy in this case because there are myriad options available to the government that may rectify the unconstitutionality of the current system.
It is not this Court's role to dictate how this is to be accomplished. British Columbia , In some jurisdictions, many ESC rights cases have generally mirrored traditional civil and political rights claims. This has been the case in long-standing labour rights claims around union freedoms and unfair dismissals although courts have increasingly reviewed legislation in this area. Cargo Servicios Industriales S. More recently, there has been a significant increase in cases concerning denial of access to health care, education and social security, forced evictions and removal of basic services or interference with the exercise of cultural rights, particularly of indigenous peoples see overview in LANGFORD, b.
In many cases courts are requiring both substantive justification and procedural due process before vital social and economic interests are affected. Some cases have involved a direct overlap with civil and political rights. Government of Bangladesh and Others , has ruled that the forced eviction of a large number of sex workers and their children violated their right to life, which included the right to livelihood and their right to be protected against forcible search and seizure of their home.
While these cases may appear conceptually straightforward, it is notable that they challenge powerful interests in terms of state authority and economic expectation. The result is that the jurisprudence is not always consistent. The Narmada Dam case in India is a good example of court being reluctant to enforce its own order for the provision of compensation or alternative likelihoods to those who have been displaced INDIA, Narmada Bachao Andolan vs. The jurisprudence also seems to be affected by two other factors.
The first is the character of the complainants. If violations affect groups that are considered illegal under national law - for example, people living and working in the informal economy - then the response of the judiciary in some countries can sometimes be less sympathetic while in other countries it may be the reverse if this group is viewed by the courts and society as being in greater need of protection. Second, and relatedly, it is noticeable that where ESC rights are explicitly incorporated in the constitution, the nature of orders are sometimes more firm.
Bombay Municipal Corporation , but in a series of cases in South Africa, where the right to housing and protection against forced eviction are constitutionally recognised, courts have required higher levels of justification for eviction and creation of homelessness SOUTH AFRICA, Port Elizabeth vs. Various Occupiers , b : "In general terms, however, a court should be reluctant to grant an eviction against relatively settled occupiers unless it is satisfied that a reasonable alternative is available, even if only as an interim measure pending ultimate access to housing in the formal housing programme" Therefore, litigation strategy will need to take account of the balance of power, law and prevailing moral norms which can significantly sway middle class and conservative judiciaries.
These substantive and procedural tests are being adopted to protect not only the assets, resources, positions and organising space of individuals, communities and associations but the maintenance of government programmes and services. At the international level, this type of case is commonly categorised as a 'retrogressive measure' and requires explicit consideration of the available resources of a state in addition to other substantial and procedural considerations UNITED NATIONS. However, such cases are not numerous and it is important to explore why this is the case: is it the problem of having 'ample proof' in a short and often politically charged time period?
Is it that courts are more likely to provide governments significant deference if claims are made that a country has entered recession for example or needs to try a new economic model? Or is it that advocates are only beginning to move into this area?
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Witness the recent creative argument in the South African case of Florence Mahlangu vs. The Minister For Social Development where advocates argued that the failure to extend a child grant to year olds violated the principle of progressive realisation. ESC rights litigation has increasingly tackled the actions of non-State actors, from multinational corporations 4 to new service providers under public-private partnerships through to family members and traditional leaders.
The human rights legal framework is obviously heavily State-centric but some constitutions and laws provide for complaints to be made directly against private actors while some adjudicatory bodies have focused on the State's role of protection. In relation to the former, many cases concern the right to work where the role of private actors is significant in market economies. Davidson , In Vishaka vs. State of Rajasthan, a case concerning sexual harassment at the work place, the Indian judiciary drew on CEDAW to develop binding guidelines which would remain in force till such time the Parliament enacted an appropriate law INDIA, Vishaka and others vs.
State of Rajasthan and others , With regard to the latter form, the obligation to protect, we can find examples such as the first complaint decided by the Committee on the Elimination of Discrimination Against Women. Belize , In Tatad vs. Secretary of the Department of Energy , the Philippines Supreme Court struck down a deregulation law that would have permitted the three major oil companies to avoid seeking permission of the regulator to increase prices. Secretary of the Department of Energy , The Court pointed out though the way in which the Government could achieve the same result through legislative amendment, which it promptly did.
However, numerous obstacles exist in this area. First, horizontal-based litigation tends to be contractual and tort-based, which may be sufficient, but only occasionally are constitutional or statutory ESC rights norms e. Second, privatisation processes seemed to be challenged less frequently than imagined although one can now point to additional cases in Egypt and Sri Lanka, where privatisation of health and water services has been halted partly on account of litigation ARGENTINA, Aquino, Isacio vs. This may be explained by the speed and secrecy with which these processes move and the difficulties in raising substantive arguments.
Since human rights are generally viewed as neutral as to choice of economic system, one requires evidence that privatisation will harm economic and social rights, and this is usually only available after the event has happened. However, some movements and even governments have used more creative arguments loosely based on the obligation to protect to forestall privatisation through litigating for minimum standards that would make for-profit provision difficult ARGENTINA, Aquino, Isacio vs.
Third, remedial orders can be more difficult to craft. In South Africa, evictions by landlords and property owners are increasingly being challenged on the basis that rights to housing are being violated but private actors complain that their right to property is not being respected and that housing rights obligations should fall on the State. Modderklip Boerdery Pty Ltd and Other , c. Fourth, human rights protection is not always extended if the laws restrict duties to public actors. However, in the Canadian case of Eldridge , the Court found that hospitals, although non-governmental, were providing publicly funded healthcare services and delivering a comprehensive healthcare program on behalf of the Government, and were thus constrained by equality rights set out in the Canadian Charter CANADA, Eldridge vs.
As discussed, the idea of a court ordering States or other actors to take positive action has been at the heart of the controversy over the justiciability of ESC rights. The emerging legal jurisprudence has provided a range of practical responses to these dilemmas, largely mirroring a move within civil and political rights to embrace positive obligations European Court of Human Rights, Airey vs.
Ireland , These are the duty to take adequate steps towards the progressive realisation of the rights within available resources and the duty to immediately achieve of a minimum level of the right, with the state bearing the burden of proof if it claims the latter cannot be achieved on account of deficient resources. Colombia is an example of a jurisdiction that has adopted and enforced both. Equally, and far more often, the Court together with lower courts makes orders under its tutela procedure for immediate enforcement of 'minimum conditions for dignified life' for an individual, which is based on the right to life, dignity and security and increasingly in connection with ESC rights.
Toia , Other courts have taken only one of these paths. The apex courts of Hungary and Switzerland have taken the reverse position. Interestingly, this minimum core approach is particularly evident in jurisdictions where social interests are judicially protected through civil rights and have thus drawn on the German doctrine of a Existenzminimum HUNGARY, Case No.
Einwohrnergemeine X und Regierunsgrat des Kantons Bern , In most jurisdictions, concerns over democratic legitimacy and institutional competency appear to shape many judgments. In some cases, courts use these markers to develop a seemingly coherent doctrine that can be applied in different cases - the Colombian and South African courts providing different sets of criteria for their respective tests. At the same time, one can also observe the arbitrary use of these concerns by courts to dismiss difficult cases and avoid a proper accounting of the relevant obligations and how they apply in a particular case COURTIS, , p.
It is thus difficult to predict sometimes where a court will draw line, particularly in cases which involve allocation of resources. However, the jurisprudence suggests that Courts are more likely to intrude in such cases according to the 1 seriousness of the effects of the violation; 2 precision of the government duty; 3 contribution of the government to the violation; and 4 manageability of the order for the government in terms of resources LANGFORD, , p.
It is also important to recognise that some of the required action may simply involve recognition of underlying rights, such as requiring States to recognise and protect land tenure or labour rights EIDE, , p. Ontario Attorney General , a. However, broad-ranging orders for positive recognition of underlying rights from domestic courts tend to be rare given the concern that they may be intruding on the policy domain of the legislature.
In many cases, the positive recognition tends to be more context specific - for example recognising tenure rights of marginalised communities. Even a Court like the Hungarian Constitutional Court which has the explicit power to find a 'failure to legislate' has not used it. However, courts in India and Colombia have not been shy in making sweeping orders where they have found systematic violations. The invocation of equality rights in the field of ESC rights has a long pedigree in cases such as Brown vs. Board of Educati on, and anti-discrimination legislation.
In other jurisdictions, the phenomenon is more recent. The jurisprudence covers a wide range of prohibited grounds to include not only the express characteristics mentioned in international instruments i. For example, the Court of Appeal of Versailles, France, annulled a provision of a collective agreement between labour and management on the grounds that it prohibited the recruitment of people after the age of thirty five FRANCE, Recueil Dalloz , The use of 'comparators' in many national courts may not always be appropriate in the case of ESC rights, and they can be particularly difficult to find in cases of structural-based segregration of different groups or discrimination against women on the basis of pregnancy.
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Czech Republic , In Kearney vs. Bramlea Ltd, the use of income criteria to assess tenant applicants was found to be unjustified on the basis that it took no account of a person's real willingness and ability to pay and constituted discrimination on a number of grounds, including race, sex, marital status, age and receipt of public assistance since it disproportionately affected those groups CANADA, Shelter Corporation vs.
Ontario Human Rights Commission, b. The question of whether equality rights or guarantees possess a substantive character and contain positive obligations to eliminate discrimination has exercised the attention of some courts. In Pakistan, the Supreme Court has enunciated the principle quite boldly during a flowering of public interest litigation. In Fazal Jan vs. Roshua Din , In Canada, the Supreme Court rejected the British Columbian provincial government's arguments that the right to equality did not require governments to allocate resources in healthcare in order to address pre-existing disadvantages of particular groups such as the deaf and hard of hearing CANADA, Eldridge vs.
British Columbia , , para. Brazilian courts have held that the right to health of children requires a higher level of prioritisation and that to "submit a child or adolescent in a waiting list in order to attend others is the same as to legalise the most violent aggression of the principle of equality" BRAZIL, Resp , However, other courts, for example in South Africa and Hungary, have been cooler to the idea of prioritising children's rights in the socio-economic arena.
One continuing quandary is whether adjudicatory bodies can 'equalise down' in order to achieve equality in respect of a social interest or right. In Canada, the Supreme Court has issued positive remedial orders in equality rights cases, extending or increasing social assistance, pension benefits and security of tenure. But it has not ruled out the possibility that it can equalise down.
In Khosa vs. However, the Court noted that the presence of the right to social security in the constitution was a factor in considering the unreasonableness of the exclusion of permanent residents, a factor not present in all constitutions. A significant accomplishment in the field has been to open up the remedial perspective beyond traditional private law remedies such as compensation, restitution and declarations of invalidity or wrongdoing.
A number of trends can be observed. First, some courts have issued orders requiring States to follow a course of action in remedying a wrong, occasionally with supervisory jurisdiction. In Argentina, courts were deeply involved in ensuring that the authorities complied with their plan and budget to provide a vaccine against "Argentine Hemorrhagic Fever" which threatened 3. Surveying the emerging jurisprudence, Roach and Budlender argue that courts tend to take this course of action when authorities or other defendants are unwilling or unable to implement orders. Second, there has been the development of more 'dialogic' and 'interim' remedies.
One example is the increased use of a delayed declaration of invalidity where courts find a violation but delay the effect of the order so as to allow the government time to find a method to remedy the legislative or policy defect CANADA, Eldridge vs.
British Columbia, Ministry of Law declined to declare unconstitutional a law which gave a son a share of his father's property from birth but not a daughter at least until she was 35 and remained unmarried and instead required the State within one year to review the legislation after consulting with interested parties, including women's organisations. Another strategy is recommendations. Government and Bangladesh and others , More dexterous approaches can be seen by those adjudicatory bodies that have used two-track remedies.
The Indian Supreme Court in cases on environmental health and food rights have issued continuing series of interim orders before they come to any final order. For instance, authorities were forced to report back on orders that the court made for extending and efficiently implementing food ration schemes INDIA, People's Union for Civil Liberties vs. Union of India, Careful use of interim orders can be one way to avoid critique that more systematic orders of courts provide nothing for victims in the short-term ROACH, , p.
Third, advocates have been creative in securing follow-up orders for ensuring remedies are implemented. In one South African case, a judge ordered that a Minister be arrested if the police did not restore an informal settlement within 24 hours after earlier demolishing it. Mehta vs. One of the strongest objections to ESC rights adjudication is that it cannot fulfil the expectations of delivering individual and transformative social justice. These instrumental critiques vary in nature and many are equally applicable to civil and political rights litigation. Some point to the weakness of courts in enforcing their judgments - and every jurisdiction seems to have at least one notable case that falls in this category.
Determining the actual impact of litigation in practice is a complex exercise as it is dependent on the selection of the benchmark for success, the isolation of different causes and comparison with alternative strategies. This methodological challenge has resulted in vastly differing conclusions for the same case. Rosenberg measured the impact of US Supreme Court judgments by determining whether they met the expectations expressed in the public statements of lawyers before a case, which Feeley , p. In response to this critique, three things can be said.
First, there is emerging evidence that many, but certainly not all, cases have had a direct and indirect impact, such as setting judicial precedents, influencing legal and policy developments, catalysing social movements and raising awareness and even in the event of a loss, demonstrating the lack of legal protection LANGFORD, b. In an quantitative study of five developing countries, Gauri and Brinks were "impressed by what courts have been able to achieve" summarising that "legalizing demand for SE [socioeconomic] rights might well have averted thousands of deaths" and "enriched the lives of millions of others".
Cases can certainly be found which give credence to the critics. The recent Chaoulli decision in Canada on the right to access private health insurance. The Occupiers of Saratoga Avenue and the City of Johannesburg, or those which involve broad coalitions of different groups - often in the area of health and education where the need for or existence of universal policies assists the process of coalition-building. It is important to point out that it is not always a judicial order that leads to impact - in some cases it is the threat of or the commencement of litigation that triggers a change in policy or the reaching of a settlement.
Even if they don't appear on the formal record, these cases need to be brought into the equation. In the case of Nigeria where judgments can take decades to be delivered, Felix Morka records that social rights litigation was used as a community mobilisation tool and a platform for making initial contact and negotiating with Government and powerful non-State actors, such as multinational oil companies who have been otherwise impervious to dialogue.
Second, in considering impact, one needs to consider unintended consequences, both positive and negative. Initial high profile cases in Argentina and South Africa were only partly implemented but significantly advanced the law or legal culture, providing the building blocks for more successful litigation in the future.
Other results can be negative and Rosenberg points to the complacency in policy advocacy that successful court decisions can bring while Williams and Scheingold note the increasing backlash by conservative groups in the United States to the use of progressive rights-claiming strategies.
Too many losses for a government can also make courts more vulnerable to both political pressure and pro-executive judicial appointments, as the Hungarian experience demonstrates. Third, in thinking about impact, one should ask where does the fault lie where no substantive impact can be found. Was it litigation or the context? In other words, in critiquing litigation, one needs to consider whether alternative strategies were available, such as mobilisation, lobbying or negotiation, or whether adjudication was really just the last and final resort for the victims.
Or can the blame for a poor judgment or implementation be really placed at the feet of the adjudicatory system if the litigants and advocates made key errors in their legal and non-legal strategies? We can summarise a number of them as follows:. Many view the presence of 'broader advocacy' as critical, particularly for cases that involve public interest or marginalised groups.
Social mobilisation, community organisation, awareness and media campaigns, and political lobbying, are thus seen as indispensable for successful litigation. It provides ownership of the strategy, supports the preparation of evidence, provides wider legitimacy to the claim and helps ensure that orders or settlement agreements are implemented. There are a significant number of cases where large-scale movements were mobilised behind cases, such as the social benefits cases in Hungary the TAC case in South Africa and the right to education cases in Kentucky, Texas and New York.
Although, some have been less successful even when hewing to this model, such as the Narmada dam case in India. However, it is important to avoid dogmatism on this point. High-profile campaigns may be less helpful if the litigants have been victims of deeply held community prejudices.
The quiet nature of court proceedings may allow such individuals to more effectively assert their rights and permit indecisive governments to defer to the courts in order to make unpopular decisions. Successful litigation strategies also tend to assign an important role to the claimants or victims, which is crucial for empowerment, arguable a long-term impact indicator in itself. In Canada, the Charter Committee on Poverty Issues developed a model of accountable litigation, whereby low-income representatives sit on the committee's board. In India, one lawyer, after two decades of public interest litigation now refuses to take a case unless a community is directly involved.
However, large-scale cases can raise particular difficulties in negotiating with clients. While legal firms in the USA, UK and Australia have developed management systems for such cases, the practice is comparatively rare. Many advocates advise incorporating long-term strategies in the selection of initial cases. For instance, it is suggested that it is better to begin with modest cases before moving to more ambitious ones. At the same time, under-ambitious cases can stultify the future development of the law.
Three categories of case selection tend to be successful in the early stages: litigation that starts from claims resembling a traditional defence of civil and political rights, egregious violations or clear failures of governments to implement their own programmes; and modest claims that leave open the possibility for future development of jurisprudence.
A second group of decisions revolve around the type of procedure to be used, particularly when there is a possibility of both individual and collective litigation. However, collective procedures can be particularly useful when individual victims fear or are likely to be harassed for participating in the case or where victims are dispersed FAIRSTEIN, One possible solution, which is used in some jurisdictions, is to include both individuals and organisations as litigants. Successful cases are usually marked by close attention to quality legal arguments.
However, the types of submissions tend to vary considerably between jurisdictions and it is obviously difficult to classify them precisely. For example, international human rights treaties and international and comparative jurisprudence have been particularly influential in some countries but less so elsewhere. Likewise, some cases have benefited from very narrow legal arguments while more expansive arguments have been crucial in others.
Nonetheless, the fact that ESCR-Net's comparative case law database of a mere cases registered 72, hits across the world within two years signals the strong and growing interest in comparative learning. Organisations and movements that carry a more long-term vision tend not to rely solely on human rights norms alone but also devote sufficient energy to developing legislation that would enhance legal strategies.
For example, housing rights groups in the US campaigned for a new federal law that provides a range of specific and concrete rights for homeless persons. This was then followed up by litigation for enforcement when it went unimplemented 8. However, while this approach is usually the ideal, including from a political perspective, it may not always be available, particularly when groups are highly marginalised or there is little political will to implement existing legislation.
Some ESC rights cases raise complex evidential issues. One notable example is the Kearney case in Canada, where advocates quantitatively demonstrated that the minimum income criteria for the rental market was based on flawed assumptions - most low-income tenants could actually afford higher rents and maintain a low default ratio even in the face of economic difficulty. Properly defined and measured statistics have thus sometimes been the deciding factor in a case.
But others are beginning to raise concerns that some courts are placing too much emphasis on the development of quantitative evidence. Weak or inappropriate remedies are often cited by advocates as a key obstacle in securing implementation of successful decisions. While it may be stating the obvious, developing a careful strategy for remedies should accompany the decision to litigate, and inform wider campaigning and the way in which the case is shaped. While courts appear willing to provide remedies that match the violations, ensuring court supervision of the orders can be critical in guaranteeing the effectiveness of the orders.
Decisions in environment cases in India and school segregation cases in the US have taken years to implement and have required constant recourse to the courts. A seeming weakness in many legal strategies is that there is no preparation to enforce a successful settlement or adjudicatory decision. As noted above, a wider advocacy strategy and mobilisation can ensure there are financial, human and technical resources and a will 'beyond lawyers' to implement decisions.
Advocates frequently note that implementation can take as much, if not more, work as obtaining an order in the first place. It may also take skills which are beyond the claimants and the parties, necessitating the deployment of mediating individuals or community workers. Claimants and advocates therefore need to plan the follow-up from the beginning and be supported by sufficient resources for this role. This comparative survey of ESC rights adjudication reveals a field in flux between nascence and maturity. For many states in the world, ESC rights litigation remains a small and insignificant part of the landscapes of human rights, social justice campaigning and jurisprudence.
However, in a context of poverty and social inequality, the combination of rights awareness, the spread of litigation strategies and the increasing independence of the judiciary has lead to ESC rights litigation in countries as diverse as China, Egypt, Namibia and the United States. In the not insignificant minority of jurisdictions, a certain level of maturity is being reached in both jurisprudence and debates over appropriate litigation strategy even if there is not uniformity amongst all actors involved particularly over legal doctrine or enforcement.
In historical perspective it is noteworthy that many of the traditional assumptions concerning ESC rights as non-legal and non-justiciable have been rendered doubtful in a short period of time. Domestic courts have made orders across the spectrum of obligations of States to realise ESC rights, from the prevention of harm, to the finding of discrimination to orders to ensure access to basic services and medicines.
This jurisprudence does not dispense with objections that ESC rights adjudication is democratically illegitimate or institutionally fraught with complexity but it provides a more grounded context for these debates and their judicial resolution. For those who wish to encourage the development of ESC rights adjudication as a field of both law and practice, the key is to build on both the causes of jurisprudential developments and the lessons learned in ensuring successful litigation. It means ensuring there is awareness of many under-utilised justiciable avenues, undertaking the long struggle of improving them elsewhere, building national and transnational alliances with different human rights groups, social movements and communities and focusing on cases which are concrete, burning and reveal political failure.
It demands wisdom in avoiding excessive or overly ambitious use of the courts that demobilise the possibilities of political action or gradual development of jurisprudence and at the same time robustly exercising the fundamental human right to a remedy and ensuring that ESC rights become embedded in legal jurisprudence and by extension the political and policy space of nation-States.
Buenos Aires: La Ley. Nova Iorque: Cambridge University Press, p. Cornell Law Review , v. Economic Social and Cultural Rights in Action. Oxford: OUP. European Political Science , v. South African Law Journal , v. South African Journal of Human Rights , v. Oxford: Oxford University Press. Hanse Law Review , v.
MODULE 4: ECONOMIC, SOCIAL AND CULTURAL RIGHTS OF WOMEN
Harvard Law Review, v. Lanham, Md. Socio-Economic Rights before the Courts in Argentina. Justiciability of Economic and Social Rights. Antwerpen: Intersentia, p. Argentina: Some promising signs. Nova Iorque: Cambridge University Press. Arizona Journal of International and Comparative Law , v. American Journal of International Law , v. Public Interest Litigation: Potential and Problems. Court of First Instance? South African Journal on Human Rights , v. First, these writings suggest a version of empowerment that is fundamentally about changing power relations.
What they give us—building on work in other areas of social action from popular education to primary health care—is an account of power and empowerment in which change involves building critical consciousness. It is this process of changing the way people see and experience their worlds that can raise awareness of inequalities, stimulate indignation about injustice and generate the impetus to act together to change society.
There are important lessons here for contemporary development policy and practice about methodology and process, as well as about understandings of power. Second, they offer a view in which empowerment is relational. Current metrics and rubrics strip away its relational dimensions. Yet any account of the lived experience of empowerment and disempowerment must embrace the essential sociality of the concept. There is in this an intimate imbrication of the personal and political. Empowerment can be temporary, and some pathways of empowerment can lead women into experiences of disempowerment, from which they may or may not surface empowered.
And empowering experiences in one area of a woman's life do not automatically translate into greater capacity to exercise agency and transform power relations in another part of her life. This encourages an approach that looks at different dimensions and sites of empowerment in a more holistic way, one that aims to understand the relational dynamics of power and positive change at a variety of levels, in different spaces and over time. Setting the discourses and definitions of women's empowerment that are used by today's mainstream development institutions in the context of this earlier generation of thinking about empowerment reveals some of the limits of current approaches.
The World Bank, for example, has taken up Naila Kabeer's influential work on women's empowerment. But in the process, her emphasis on the relational nature of empowerment has fallen out of the frame. Central to this process are actions which both build individual and collective assets and improve the efficiency and fairness of the organizational and institutional context which govern the use of these assets. If we take account of these insights, it becomes evident that providing women with loans, business opportunities and the means to generate income may enable them to better manage their poverty, but to be transformative , to address the root causes of poverty and the deep structural basis of gender inequality, calls for more than facilitating women's access to assets or creating enabling institutions, laws and policies.
Two vital levers are needed. The first is processes that produce shifts in consciousness. This includes overturning limiting normative beliefs and expectations that keep women locked into situations of subordination and dependency, challenging restrictive cultural and social norms and contesting the institutions of everyday life that sustain inequity. The second is engagement with culturally embedded normative beliefs, understandings and ideas about gender, power and change.
This takes the process of change beyond the level of the individual to address commonly held and taken for granted assumptions that undergird gendered inequalities in any particular cultural context. Changing notions of what a woman or a man should be or do, and challenging understandings of gender identities and relations can take a variety of forms.
It can range from formally instituted training courses that expose participants to different ways of framing their social worlds, providing them with a new language and lenses through which to view their realities. It can also include women coming together with other women to share experiences, experience and offer solidarity, shifting in the process the way they come to think of themselves and their entitlements not only as individuals but also as people who share something in common. Ultimately, it is about enabling people to stand back and inspect critically the beliefs about themselves and others they take for granted, and then using this expanded understanding to inform an analysis of what needs to change and how they can be part of that process of change.
In what follows, I apply some of these insights, drawing on a series of case studies from research carried out by the Pathways programme to explore further some of the dynamics of empowerment in practice. This is illustrated in this first case study, from Brazil. It tells of an employment training programme called Chapeu de Palha Mulher that was designed by a feminist bureaucrat with the positional power to convene state agencies and civil society organizations in the delivery of the programme, as well as to mount the resources to finance the institutional inputs required.
Chapeu de Palha Mulher reconfigured an existing safety net programme aimed at alleviating the hunger of seasonal sugar cane workers in rural areas of the State of Pernambuco. Pathways used documentary film and interviews with the programme's designers, implementers and women beneficiaries to investigate the ways of working and some of the impacts of the programme. Chapeu de Palha Mulher makes use of an existing safety net programme to avert hunger between the harvests to change women's prospects, with transformational effects.
Pathways' research took the form of qualitative research on the design and implementation of the programme, complemented by an independent quantitative evaluation commissioned by the State Secretariat and a documentary, A Quiet Revolution , which sought to explore women's experiences of the programme. Chapeu de Palha Mulher seeks to channel social policies to households through women without instrumentalizing them.
The state government negotiated with training colleges to lower the bar for women's entry into courses, citing their historic disadvantage and exclusion, giving thousands of women access to an education previously denied to them. Stipends for attending courses complement existing benefits to provide women with a basic income during the time of hunger, and the programme provides childcare, transportation and food to facilitate access. The programme works through a unique partnership between the state and civil society. One of the state's leading feminist organizations designed, facilitated and trained others to facilitate the rights and citizenship training and has used its capillary networks in remote rural areas to strengthen local women's organizations.
The State Secretariat has worked with the local state institutions to create a sustainable basis for the programme, creating local women's secretariats in the most patriarchal rural districts.
In a State Secretariat survey, women responded that not only had the programme brought them income and training that could lead them into employment. It had also opened their eyes to their rights as citizens and brought them a sense of personal transformation. Admitting women to learn skills such as welding and plumbing has also challenged attitudes within government training institutions, creating the basis for sustainable change.
Most striking has been the impact of the public policies course on their sense of entitlement as citizens, and rights as women. Interviewees spoke of never before having known that they had a right to have these rights. This part of the programme has led to them making choices for the vocational training that they might never have previously considered, and to making changes in their lives that might have been unimaginable.
Reflecting on change that the programme has brought, Marcilene, who is training in soldering, talks of how she left a violent husband and a job in which she was being exploited, because of the predictability of the stipend she receives from the programme and the cash transfer she receives from the state. The programme has also taught her that she has as much of a right as anyone else to leisure and pleasure.
By building both power within and power with Rowlands, , working with critical consciousness can expand women's horizons of possibility and with it, the potential transformative impact of access to independent income. An important lesson about what works concerns those involved in the doing of empowerment interventions: those who are the intermediaries and implementers of policies, projects and programmes.
The best of laws and policies and most beautifully designed programmes can falter and fail if those who deal with putting them into practice are not themselves engaged and empowered as agents of change. And this can be obscured by the focus on individual women that is characteristic of mainstream narratives of empowerment Sholkamy, The second case study is Egypt's conditional cash transfer programme, run by the Ministry of Solidarity and draws on an action research project carried out by Hania Sholkamy, of the American University in Cairo's Social Research Center.
The Egyptian conditional cash transfer programme was designed through a process that sought the insight and experiences of an international group of feminist social policy experts, drawing on progressive social policy experiments in Latin America. The programme sought to instil a sense of citizenship in women, who come to see the transfer as an entitlement rather than a hand out.
It recognized the significance of supportive relationships as part of the process of transformation. In its focus on intermediaries—the social workers who visit and enrol the women—it places the quality of relationships at the heart of the intervention. Most importantly, it combined material support with processes that seek transformations in women's own subjectivities and in their individual and collective agency. Applying these principles to the design of a cash transfer programme with feminist principles, Hania Sholkamy was able to follow the implementation of the programme, using ethnographic research to document the effects of transformed relationships marked with respect.
Their empowerment is rarely in itself the object of development intervention. It aimed to test a feminist approach to social protection. The programme began with ethnographic research to gain a closer understanding of what mattered to women themselves. This revealed not just the need for income to supplement meagre household incomes but also the failures of state provision and mistreatment by service providers and a desire for decent work and better living conditions.
The programme built in an active role for social workers in supporting women to access state services and recognize their entitlements to such services as citizens. It sought to value women's care work: it was clearly stated that the cash transfer compensates women for time spent attending programme meetings and social worker visits. Women were not required to provide proof of unemployment and were encouraged to see the transfer as a means to engage in work on better terms.
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Social workers underwent training that promoted the values of rights and justice and were trained as facilitators and supporters who could accompany rather than direct or instruct. The programme permitted women to make decisions that would otherwise have been the prerogative of men, allowing them to invest resources in their children's education, clothing, nutrition and home improvements. The reliability of the transfers allowed women to plan. After two years of payments, women reported a number of improvements in their lives.
One of the most striking was a remarkable decrease in reported domestic violence. A third of those interviewed reported that abuse had stopped. The reason is that cash had helped reduce stress in households, as men were not being pressed to give women cash for urgent needs. Cash payments had also not had any negative effects on women's desire or ability to work, but now women reported working out of choice, rather than desperation.
The cash transfer gave them security, so they were able to look for less demeaning work. Her research shows that a programme design explicitly seeking to enhance women's identities as citizens and restore to them the accountability of the state was an important factor in generating positive effects. By starting with women's own desires and supporting them to make choices and fulfil the obligations that they value, the programme's empowering effects came about through acknowledging and recognizing their roles both as caregivers and as breadwinners.
Pathways' research on work shows the importance for women's economic empowerment of the regularity and predictability of income and of flows of resources that provide women with the security to plan and to act. It also emphasizes just how significant symbolic and social resources are to women's empowerment. Kabeer, Sudarshan and Milward's moving collection of narratives of women organizing women workers in the informal economy shows again and again the symbolic violence faced by women in stigmatized jobs—rag pickers, domestic workers, sex workers.
Common themes running through the cases of informal sector organizing included the following: the power of collectivization in ending the isolation women in this sector experience and confronting their exploitation and stigmatization; the significance of collective critical analysis in changing women workers' consciousness of their right to have rights, and capacity to exercise voice to claim those rights; and the role played by the organizations and individuals who accompanied and supported the process of organizing.
And these gains, and the struggles waged to secure them, include vital resources of respect and recognition. The struggle for recognition as human beings with rights has framed VAMP's activism as focused on changing society , rather than remaining victim to societal imposition of its mores onto them. The story of VAMP demonstrates the power of collective action that can transform the conditions in which women work, and with it their lives and livelihoods.
Save us from Saviours The Indian sex workers' collective VAMP Veshya Anyay Mukti Parishad , which now counts more than members, began with regular group meetings that brought sex workers together to critically analyse the obstacles in their lives. Meena Seshu, who was originally trained as a social worker, had begun working in a conventional way in their community.
Slowly, she came to recognize that a different approach was needed. It was evident that clients were the least of their problems, and often a source of affectionate relationships as well as income. Most of the difficulties the sex workers faced came from outside their community.
The discrimination that the sex workers had to endure had all manner of material effects, from the higher prices charged by the vegetable sellers plying their wares in the sex work area to workers who preferred to buy from them than face the stares of going into town, to the effects of prejudice on their children's education to difficulties in accessing public services.
The story of VAMP's success is instructive. The second was the process of building capacity to work together collectively and creating relationships of solidarity within a community that had once been fractious and divided.
Sex workers have a regular, independent income: but many sex workers were not saving and managing their money, and VAMP has helped them to do this, and thus to gain similar benefits to those found in other economic empowerment initiatives. Members are able to insist on condom use, call for help with difficult clients or local thugs and mobilize to hold the state to account for police attacks on sex workers.
The fourth case is from Bangladesh and is of the landless women's organization Saptagram. Naila Kabeer and Lopita Huq's study tells a salutary tale about the hazards of scaling up funding too fast, and also a powerful story of what works. Kabeer and Huq's analysis not only emphasizes relationships as a vital factor in efforts to support women's empowerment. The cautionary tale of what happens when a project or an organization becomes a donor darling also offers important lessons for those concerned with supporting positive social change in favour of women's empowerment and gender justice.
Relationships Matter Women's organizations play a vital role in supporting women's empowerment. A key dimension of this role are the relationships of trust, loyalty and love that often bind these organizations together and are part of the story of their effectiveness. Naila Kabeer and Lopita Huq tell the story of a Bangladeshi landless women's organization, Saptagram, set up to provide poor women with the basic economic security to take action against injustice.
Joint savings were banked, loans given by Saptagram for collective projects, along with training and support. But it didn't die. It gradually regenerated itself, led by members. Kabeer and Huq offer a number of vital lessons. There were tangible gains in women's living standards, from home improvements to investments in small businesses, but most significant were the more intangible shifts in attitude, esteem and confidence that the programme had stimulated.
Women spoke of being able to stand on their own two feet and reduce their dependence on others, and of learning to speak for themselves. Interviews with members revealed how far Saptagram's courses had transformed their perceptions of themselves, expanded their horizons and made them more confident about interacting with others, including those who had previously intimidated them.
The women who returned to Saptagram to regenerate it after its near demise spoke of how their love of the organization that had changed their lives brought them back. What made the difference? Saptagram came and opened our eyes. Saptagram's impact was founded on their recognition of the vital role of consciousness in social change. As important were the relationships Saptagram built amongst women who were previously unable to act in concert to defend their rights and fight injustice. Solidarity and collective action proved key drivers of change and real gains were made in employment rights and access to public services as well as in women's domestic relationships.
Victim of its own success and drowned by donor funding, Saptagram plunged into disarray. This story also brings out the relational dimensions of successful empowerment initiatives, and of solidarity, trust and respect. As Rosalind Eyben has so powerfully argued, relationships matter. Time and again, Pathways' studies of movements and organizations showed the significance of the relational dimensions of development work that seeks to promote positive social change [see, for example, Mukhopadhyay et al.