Solving the problem of ( non)compliance with ESC rights orders

Solving the problem of (non)compliance with ESC rights orders Daniel Brinks Associate Professor University of Notre Dame danbrinks@utexas.edu

Caveats • Can have impact without implementation and implementation without impact • Symbolic effects (Cesar) • Empowering/mobilizing, other indirect effects • Winning by losing (Odindo) • We have a responsibility to think of both – including possible perverse systemic effects – but that’s not the issue here • A lot of idiosyncrasies; a few regularities • A strong oversimplification, an abstract discussion • A thought experiment – feel free to question

Option #1

Basic concept Compliance/implementation Important: perceived costs

Basic concept Non-compliance

Costs on whom? • Private commercial enterprises • pharmaceutical companies, mining companies, individual physicians, teachers, unions, private school administrators, soft drink bottling companies, public transportation enterprises, and more • These raise somewhat different issues • Politicians • not often the targets of litigation, but can be – e.g., Colombia, Interamerican Court of HR • Bureaucrats • state actors who respond, more or less, to politicians • Judges

What costs? • Three dimensions on both sides of the scale:

Scope of the order, balance of costs, and some additional variables Collective action problems

Scope of the order, balance of costs, and some additional variables Litigant resource problems

Scope of the order, balance of costs, and some additional variables The value of CSOs

Scope of the order, balance of costs, and some additional variables The role of civ/pol rights

Scope of the order, balance of costs, and some additional variables Institutional variables: Precedent

Scope of the order, balance of costs, and some additional variables The role of POSITIVE affect

Scope of the order, balance of costs, and some additional variables The role of NEGATIVEaffect

Add one other dimension to CC Absent State structure needed Present Scope of the order

Add one other dimension to CC Displaced in Colombia Absent Right to food Minimum wage in Egypt Special surgeries in Brz Homelessness in Canada State structure needed Cost of compliance Health Care reform in Colombia Sparks (sec. tenure in pub. Hsg) Medications (Brz) Present Scope of the order

Strategies to keep CC< CD • General: • Viviana: build implementation/compliance into the litigation strategy • Think about the specifics: what is the goal, what are the structures, who are the actors • Tailor demands to available resources • Some things are not within our control, but how we intersect with them is: • Political context vs framing the case • State structures vs goal of the litigation • Negative affect vs incremental strategy • Hostile judges vs negotiation within litigation

Use the litigation process to lower the cost of compliance Use different strategies to limit the costs without limiting the scope of the beneficiaries: • Financial cost: • Use deliberation to keep remedies realistic, draw on existing structures (Anne Koch) • Select and target existing state infrastructure (Sparks) • Use regulation as much as direct provision (JM Cepeda) • Develop efficient technical solutions through hearing process • Political cost: • Frame the case in a way that appeals broadly to the public (e.g., abortion vs maternal mortality) • Require public reason-giving by the authority in question • Affective cost: • Choose your leading cases with care (good cases make bad law?) • Put beautiful children in your videos

Raise the cost of non-compliance through the litigation process • Information is key to both affective and political costs • Request reports, expert investigations, data gathering • Generate indicators • Request public hearings at all stages • Use the litigation as a mobilization tool • Use every stage of the litigation as a mobilizing event (Kenya) • Use the case to highlight inconsistencies • Ask the court to develop claimant capacity: • Set up committees with public support • Incorporate claimants into oversight committees • Use public funds to amplify their voices, through ethnography and public hearings

Change the context to raise the cost of non-compliance • Create alliances: • Varun G - India; Victor A - working with domestic actors who can “domesticate” int’l judgments • Point out how interests coincide: homelessness – mental health, substance abuse, affordable housing, poverty, indigenous groups • Find bureaucrats who are frustrated because they can’t do their job, technocrats who think current policy is wrong • Use public education campaigns to change the affect value of a group or claim • Work on developing institutional capacity and mechanisms (CEJIL and CELS)

Conclusion • Compliance/implementation has to be part of the initial planning • How much you will need to invest depends on the case and what you’re trying to accomplish – lots of moving parts, different cases have different needs, no silver bullets, no poison pills • Think especially about whose behavior you’re trying to modify, and what costs they are exposed to: • One thing to change the behavior of abusive husbands or bosses, another the behavior of public officials • Public officials and private actors have different vulnerabilities

Solving the problem of ( non)compliance with ESC rights orders