The 21 case studies discussed in this volume clearly illustrate that a wide variety of economic, social and cultural rights are justiciable. Moreover, this publication set out many concrete examples where legal action has made a difference and has unquestionably progressed the actual realisation of the rights.
Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies also reveals the many practical and theoretical obstacles that have been encountered in social action litgation.
The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (Optional Protocol or OP-ICESCR) entered into force on 5 May 2013. With the Optional Protocol, the international community comes much closer to treating “human rights globally in a fair and equal manner, on the same footing, and with the same emphasis” as required by the Vienna Declaration on Human Rights. In particular, the OP-ICESCR creates a mechanism whereby rights holders can submit complaints of violations of any of their economic, social and cultural rights and hold States accountable to their obligations under the Covenant to respect, protect, and fulfill Covenant rights, including the human rights to education. This procedure will also provide further clarity on the content of human rights in different contexts, resulting in greater guidance for governments that seek to implement the International Covenant on Economic, Social and Cultural Rights in good faith.
The objective of this manual is to provide theoretical and practical information for lawyers and other advocates interested in utilizing the OP-ICESCR as a means to enforce economic, social and cultural rights, including the right to eduxcation. A related aim of this manual is to contribute to the growing network of advocates using strategic litigation to advance ESC rights protections, by supporting ongoing exchange and collaboration.
Chapter two (p.47-56) is dedicated exclusively to the clarification of justiciability and the challenges of justiciability as a tool for social transformation and inclusion of the most vulnerable. It presents ‘justiciability’ as one of the steps of a holistic strategy to overcome poverty. It defends the role of judges as guarantors of rights and freedoms of the most invisible members of society.
This Guide will inspire and help judges and lawyers working at national level to litigate cases involving economic, social and cultural rights.
In particular, it aims at giving examples from a large variety of countries and jurisdictions of how courts and other bodies have dealt with the adjudication of these rights.
The Guide also addresses issues that legal practitioners are faced with at the different phases of litigation, from initiating a case and evidence building to the provision of remedies and the enforcement of judicial decisions.
Please note, that this Guide is an updated version of Courts and the Legal Enforcement of Economic, Social and Cultural Rights. Comparative Experiences of Justiciability.
In addition to the electronic version of the Guide in a book format, the ICJ has also launched a searchable online version that is accessible on the ESCR page.
South Africa is in the unique position of having the right to education guaranteed in the Constitution. The law has been used to advance this right by translating what is on paper into a reality for thousands of learners across the country. The LRC and partners have been at the forefront of civil society efforts in achieving this. We wanted to share our successes.
In October 2013, the Legal Resources Centre was proud to launch Ready to Learn? A Legal Resource for Realising the Right to Education at the Open Society Foundations in New York (find the press release here). The book was designed for legal practitioners and shares the LRC’s legal efforts to contribute to realising the right to education in South Africa. Ready to Learn?
Fighting to Learn… A Legal Resource for Realising the Right to Education is the follow on from Ready to Learn? Using the same format as the first publication,Fighting to Learn… gives an update on many of the cases represented in Ready to Learn? and provides a more general reflection on the role of education in the development agenda.
In Fighting to Learn…, practitioners of law in other jurisdictions can access a summary and court papers relating to the provision of classroom furniture, access to learner-support material and the payment and appointment of teachers. It also gives follow-up materials for the “mud schools” matter and norms and standards for education.
It demonstrates how the Constitutional right to education was integral to our fight for a quality education that is accessible to all. It also demonstrates the creativity of LRC lawyers in their work, from using class actions, which is new in South Africa, to our increasing use of innovative remedies, such as using external administrators to implement court judgments.
This 'Right to Education Info Packet' on Tanzania aims at informing about the right to education, its legal, political, and social considerations, and some examples of its potential uses in litigation.
Laws are not only regulations the government enforces upon the people; they are regulations the people are to enforce upon the government. Laws just do not magically change things; they are tools to be used in court to hold others accountable so as to bring about change. Thus, it is the objective of this publication not to fill your head with heaps of information about a right that you cannot achieve but to enlighten you on tools that exist and how you may use them to attain your rights.
The 'Info Packet' provides guidance to litigate issues related to free primary education, expulsion of pregnant students, corporal punishment and education financing.
The Guide identifies equality and non-discrimination strategies that NGOs, lawyers and activists may employ in seeking to advance economic and social rights (ESRs) before courts. It is also accompanied by an online Compendium of useful cases in which equality and non-discrimination concepts and approaches have been employed to advance ESRs.
The Guide is split into three parts. Having introduced the rights framework, the Guide identifies conceptual and practical reasons why equality and non-discrimination arguments should be employed when challenging violations of ESRs. It then presents clear and practical guidance on how to use equality and non-discrimination strategies in courtrooms around the world.
The Strategic Litigation Working Group (SLWG) has launched a discussion paper with eight key proposals regarding the follow-up on views issued by United Nations human rights treaty bodies (UNTBs). ESCR-Net’s SLWG recognises the significance of decisions issued by UNTBs under the complaints procedures (Views) in the advancement of human rights enjoyment by people around the world, and welcomes the past action and willingness of the UNTBs to continue developing constructive practices regarding the impact and implementation of such Views.
Three principles underpin the SLWG’s proposals: the principle of non-repetition (consistently applied by the HRC in its views and by the CESCR in its General Comments); the principle of reasonableness (developed by the CESCR through its General Comments and 2007 Statement on Maximum Availability of Resources, and made explicit in the OP-ICESCR); and the principle of participation (recognised under a number of UN human rights treaties). Taking into account the practice of different international and regional human rights bodies, the SLWG proposes that the three principles should be applied during the consideration of a case, follow up and implementation, in order to maximise the effectiveness of human rights remedies.
While many authorities can tolerate some traditional campaigning methods, it is usually harder to ignore the law. As part of broader campaigns, the law can be a powerful tool for achieving the changes that children need. Legal advocacy is now being used systematically in a few countries – leading to strong outcomes for children – and it has great potential for wider use.
There are many occasions for legal advocacy. International law sets out the principles and standards that states are obliged to meet but frequently do not, and so their domestic law violates children’s rights. Often, a state meets a standard in domestic legislation but its policy fails to implement the law. Sometimes, it is unclear what a law means in practice, or the meaning is clear but no one knows whether it is being implemented. These various gaps between international legal standards, domestic law and state policy (or corporate policy) present potential opportunities for legal advocacy.
There are also many avenues for legal advocacy. It is a broad term, not limited to taking rights violators to court. Many small-scale legal activities can enhance traditional campaigning, such as reporting on the implementation of a law, or raising awareness of what the law says. Sometimes, simply documenting and publicising the gaps between law and practice is enough to persuade decision-makers to act. But only sometimes. Towards the other end of the spectrum is work that demands more time and resources, including taking a government or corporation to court in order to bring broader social change. A successful case might improve the legal standards that apply to children, or lead to a major policy change of long-term benefit to children.
This introductory guide offers a brief overview of avenues for legal advocacy. It also offers guidance on how to explore your options, and how to promote legal advocacy work with other children’s rights advocates.