Litigating for Development: Courting Social Justice

1. 10 November 2010 - Åbo Litigating for development “Courting social justice”

2. References • F. Coomans (ed), Justiciability of Economic and Social Rights. Experiences from domestic systems, Intersentia, 2006. • V. Gauri and D. Brinks (eds), Courting social justice. Judicial enforcement of social and economic rights in the developing world, CUP, 2008. • M. Langford (ed), Social Rights Jurisprudence. Emerging trends in international and comparative law, CUP, 2008. • http://www.escr-net.org/caselaw/

3. 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 %)

4. Grootboom (2000) • Facts: group illegally occupying land (510 children + 390 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

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

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

7. Integrated human rightssocial 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

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

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

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

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

12. 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