The adoption of the OP-ICESCR is only a beginning and that the real challenges lay ahead.
This Commentary is intended to benefit claimants and their advocates and to provide a broader resource for states and the Committee – providing a deeper jurisprudential base on the range of issues likely to be raised. In so doing, the Commentary charts in effect both the legal opportunities but also the limitations.
This guide, issued by the Office of the High Commissioner for Human Rights (OHCHR), focuses on how civil society can follow up on recommendations of United Nations (UN) human rights mechanisms and mandates or bodies.
Part I provides an analysis of the various legal issues commonly encountered in economic, social and cultural rights litigation. These include identifying the relevant sources of law, establishing justiciability, defining the nature and scope of rights and obligations, responding to the defences available to governments, and the crafting of appropriate remedies. The next chapters address the right to legal aid for economic, social and cultural rights litigation, specific rights (social security, housing, health and education), as well as the social rights of children. This will provide the user of the manual with a sense of how the application and interpretation of economic, social and cultural rights may vary depending on the group claiming the right and the particular right at issue.
In Parts II and III, the various regional and international complaints procedures are outlined. For each human rights mechanism, there is a description of the relevant legal instruments, the applicable economic, social and cultural rights standards and the responsible adjudicatory body. The procedure for making a complaint is set out in detail, together with the limitations of the various procedure. Each chapter concludes with a brief analysis of the jurisprudence of judicial or quasi-judicial bodies and a list of useful resources. The remainder of the manual seeks to provide the user with a range of practical resources for litigation.
Part IV sets out summaries of leading cases on economic, social and cultural rights,
In this report, the Special Rapporteur argues that treating economic and social rights as human rights is essential both for efforts to eliminate extreme poverty and to ensure a balanced and credible approach in the field of human rights as a whole. He argues that economic and social rights currently remain marginal in most contexts, thus undermining the principle of the indivisibility of the two sets of rights.
Conventional wisdom celebrates the great strides that have been made in recent years in relation to economic and social rights. At the international level, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights has been adopted, an impressive number of special procedures have been created to focus on these rights and bodies like the Human Rights Council spend much more time than they once did debating these issues. At the national level, economic and social rights proponents celebrate the impressive degree of constitutional recognition of some or most economic and social rights, the growing capacity of courts in many countries to enforce them, the growth of national non-governmental organisations working on economic and social rights and the emergence of a vibrant scholarly literature on the justiciability of those rights.
However, despite important recent progress, the reality is that economic and social rights remain largely invisible in the law and institutions of the great majority of States. In support of this proposition, the Special Rapporteur notes that: many of the States whose Constitutions recognise economic and social rights have not translated that recognition into a human rights-based legislative framework; the increasingly widespread constitutional acceptance of the justiciability of economic and social rights contrasts with the resistance of many of the relevant courts to acting on these rights; many of the States that enjoy the world’s highest living standards have specifically rejected proposals to recognise economic and social rights in legislative or constitutional form; most national-level institutional mechanisms for promoting human rights neglect economic and social rights; and national economic and social rights accountability mechanisms are generally much rarer than mainstream accounts would suggest.
The extent to which economic and social rights remain unacknowledged as human rights is the frequency with which debates about economic and social rights slide imperceptibly and almost naturally into broad discussions of development. But, in fact, development initiatives might not be rights-promoting, or even rights-protecting. In this report, the Special Rapporteur spells out why it matters that economic and social rights be treated as human rights and examines the ways in which this can be done by outlining the recognition, institutionalisation and accountability (RIA) framework that focuses primary attention on ensuring recognition of the rights, institutional support for their promotion and accountability mechanisms for their implementation.
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.
In describing the state courts’ active new role following the U.S. Supreme Court‘s decision in Rodriguez v. San Antonio Independent School District,1 this chapter emphasised the dramatic change in the outcome of challenges to state education finance systems that occurred beginning in 1989. From that year up until the time of the book‘s publication in 2009, plaintiffs, who had lost over two-thirds of the cases in the preceding decade, prevailed in more than two thirds of the final liability or motion to dismiss decisions of the state's highest courts. This dramatic turnabout was attributed to the shift in plaintiffs’ legal strategy from an emphasis on equal protection claims to a substantially increased reliance on adequacy claims; the text also stated that the burgeoning standards-based reform movement had a significant impact on the capacity of the courts to craft effective remedies in these cases.
From late 2009 through the end of June, 2017, there were seventeen rulings of state supreme courts or unappealed lower court decisions in cases involving constitutional challenges to state education funding systems. Plaintiffs prevailed in eight of these cases (California (Cal. Sch. Bds), Connecticut, Kansas (2) Louisiana, New Hampshire, South Carolina, and Washington), and defendants prevailed in nine (California (Coalition), Colorado (2), Indiana, Michigan, Missouri, Rhode Island, and South Dakota and Texas). Thus, plaintiffs prevailed in less than 50% of the major cases that were decided in these recent years.
The second edition of the Global Education Monitoring Report (GEM Report) presents the latest evidence on global progress towards the education targets of the UN Sustainable Development Goals.
With hundreds of millions of people still not going to school, and many not achieving minimum skills at school, it is clear education systems are off track to achieve global goals. The marginalised currently bear the most consequences but also stand to benefit the most if policy-makers pay sufficient attention to their needs. Faced with these challenges, along with tight budgets and increased emphasis on results-oriented value for money, countries are searching for solutions. Increased accountability often tops the list.
The 2017/8 GEM Report shows the entire array of approaches to accountability in education. It ranges from countries unused to the concept, where violations of the right to education go unchallenged, to countries where accountability has become an end in itself instead of a means to inclusive, equitable and high-quality education and lifelong learning for all.
The report emphasises that education is a shared responsibility. While governments have primary responsibility, all actors – schools, teachers, parents, students, international organizations, private sector providers, civil society and the media – have a role in improving education systems. The report emphasises the importance of transparency and availability of information but urges caution in how data are used. It makes the case for avoiding accountability systems with a disproportionate focus on narrowly defined results and punitive sanctions. In an era of multiple accountability tools, the report provides clear evidence on those that are working and those that are not.
Whilst the importance of equality and inclusion in tackling out-of-school children is now widely recognised, the extent to which discrimination, in all its forms, contributes to the denial of primary education, and the potential for the rights to equality and non-discrimination to offer solutions, are currently underexplored. This report seeks to fill this gap by (1) identifying the ways in which inequality and discrimination underpin children’s lack of access to and completion of primary education, through illuminating the discriminatory nature of the barriers and challenges children face in this context; and (2) exploring ways in which equality law may be used to tackle this problem, looking in particular at equality law approaches to advocacy and strategic litigation.
This youth report, based on findings and conclusions from the 2017/8 Global Education Monitoring report, asks how young people are involved in the process of accountability in education. As students, what are we responsible for in our education and how are we held accountable? How can we make sure other actors–like schools, universities and governments–are held accountable for their responsibilities? These are critical questions, because we know that there’s a long way to go before all young people around the world have access to a quality education:
absent teachers, overcrowded classrooms, illegitimate diplomas, unregulated private schools and truancy are all issues that education systems are struggling to overcome.
It’s sometimes tempting to say that these problems aren’t ours to fix, that the responsibility lies with the government or with an older generation. But this simply isn’t true: education is a shared responsibility, and young people have an important role to play. In this Report, you’ll hear the stories of young people around the world who have stood up for the right to education in their communities and who have been integral in triggering change. You’ll also read about how you can become involved in our campaign to make sure governments can be held to account for education. This means making sure that citizens can take their governments to court if they are not meeting their education responsibilities. From creating video clips to holding awareness-raising events, there is a range of ways to make your voice heard. Your involvement is integral in making sure the world is on the right path to meeting our education goals.