10 November Åbo Litigating for development “Courting social justice”

1 References F. Coomans (ed), Justiciability of Economic and Social Rights. Experiences from domestic systems, Intersentia, V. Gauri and D. Brinks (eds), Courting social justice. Judicial enforcement of social and economic rights in the developing world, CUP, M. Langford (ed), Social Rights Jurisprudence. Emerging trends in international and comparative law, CUP,

2 People’s Union for Civil Liberties v. Union of India (2001-) Drought and famine in some states right to food campaign – complaint to Supreme Court of India: issue of distribution, not of availability (food stocks) Supreme Court: -State not only negative, but also positive obligations -State to provide food to those who cannot afford to buy food (‘vulnerable groups’): food security programmes to be implemented (school meals; food for work) Impact -mid-day meal scheme introduced in high number of states -Positive side-effect: better school attendance – registration of girls increased (36 %)

3 Grootboom (2000) Facts: group illegally occupying land (510 children adults) – evicted – left homeless Constitutional Court: -Socio-economic rights justiciable -Measures taken to realise right of access to housing reasonable? -Negative – positive obligations -Need for housing programme to provide relief to ‘those in desperate need’: temporary housing Impact -Limited if any benefits for complainants -Local authorities: emergency housing plans

4 Some examples 1° issue, facts 2° response – action taken (including litigation) 3° outcomes 4° impact

5 Towards a theoretical framework: basic questions 1.Why litigation? -Judicial activism - substitute for or complement to democratic policy-making? -judicialization or “legalisation”? (Gauri & Brinks 2008) 2.Driving seat? -Receptive judiciary -Civil society organisation 3.Impact? -Deference to policy-makers; rhetoric -Achievements

6 Integrated human rights social action (I): general Based on social action litigation Supreme Court of India Operational Procedural Key actors: social action groups & judiciary Integrated: part of broader political/social strategy * limits of litigation/law

7 Integrated human rights social action (II): characteristics 1.Collective and deformalised access to justice: most vulnerable * representativeness 2.Inquiry commissions: gathering of evidence – recommendations for remedial action 3.Innovative remedies: interim measures – corrective: reparation (structural) 4.Ongoing monitoring of implementation of judgments: ombuds - NHRI

8 Integrated human rights social action (III): preconditions 1.Independent and socially activist judiciary 2.Social actions groups: representativeness 3.Human rights catalogue 4.Rule of law as organising principle of state set-up * rule of law meta-condition; judiciary minimum ** matter of degree *** generalisation?

9 Legalisation: Gauri and Brinks (1) Empirical, comparative research: five countries Legalisation = substantial incorporation of CCourts as relevant actors LLegal concepts and logics as relevant arguments into policy-making and implementation process

10 Legalisation (2): causes DDemand-side: not overestimate importance of support structure (important for initial and sustained legal mobilisation) SSupply-side: characteristics of courts & legal environment: receptive courts a. judicial attitudes: judges “qualified creatures of their political environment” – ideological bent b. Political environment: judicial autonomy c. Legal texts RResponse-side: a.Policy structure with “latent capacity” b.Congenial political environment c.Organised claimant & threat of follow-up litigation d.Nature of judicial process: negotiation and dialogue: “iterative experimentation and decision making” => allocate responsibility – set standards

11 Legalisation (3): effectiveness ~ implementation; direct effects on parties; indirect effects on policy area Findings:  Impact of right to health cases > right to education cases  (direct) Provision cases not most important type of judicial intervention (~ time-frame; through existing infrastructure ~ dialogical model)  (indirect) Regulation cases potentially highest impact; implementation and enforcement more of a challenge  Who benefits: beneficiary and policy area (in)equality?  Primary direct beneficiaries: urban middle class; but exceptions - indirect effects far higher  Policy area: preferred issues of privileged minority and marginalised