Solving the problem of ( non)compliance with ESC rights orders
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Transcript of Solving the problem of ( non)compliance with ESC rights orders
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CaveatsCan 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
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Option #1
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Basic concept
Compliance/implementationImportant: perceived
costs
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Basic concept
Non-compliance
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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
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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
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What costs?Three dimensions on both sides of the scale:
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What costs?Three dimensions on both sides of the scale:
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What costs?Three dimensions on both sides of the scale:
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What costs?Three dimensions on both sides of the scale:
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What costs?Three dimensions on both sides of the scale:
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Scope of the order, balance of costs, and some additional variables
Collective action problems
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Scope of the order, balance of costs, and some additional variables
Litigant resource problems
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Scope of the order, balance of costs, and some additional variables
The value of CSOs
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Scope of the order, balance of costs, and some additional variables
The role of civ/pol rights
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Scope of the order, balance of costs, and some additional variables
Institutional variables: Precedent
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Scope of the order, balance of costs, and some additional variables
The role of POSITIVE affect
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Scope of the order, balance of costs, and some additional variables
The role of NEGATIVEaffect
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Add one other dimension to CC
Scope of the order
State structure needed
Absent
Present
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Add one other dimension to CC
Scope of the order
State structure needed
Absent
Present
Cost of compliance
Special surgeries in Brz
Medications (Brz)
Sparks (sec. tenure in pub. Hsg)
Health Care reform in Colombia
Right to foodHomelessness in Canada
Displaced in Colombia
Minimum wage in Egypt
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Strategies to keep CC< CD
General: Viviana: build implementation/compliance into
the litigation strategyThink about the specifics: what is the goal, what are
the structures, who are the actorsTailor demands to available resources
Some things are not within our control, but how we intersect with them is:Political context vs framing the caseState structures vs goal of the litigationNegative affect vs incremental strategyHostile judges vs negotiation within litigation
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Use the litigation process to lower the cost of
complianceUse 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
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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
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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)
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ConclusionCompliance/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