Economic, Social and Cultural Rights (ESCR)

Methods to monitor administrative and judicial practices

International Programme Coordination — 2009-10-07T13:49:00Z

1. The access to information

The populations are confronted to the complexity of administrative and judicial systems, the costs of procedures, the lack of human, financial, and time resources, the lack of a legal framework and political will, problems of governance (poor culture of public services, weak adhesion to the transparency principles and accountability obligations, and weak citizen participation), conflicts of competences at the administrations' level, the impenetrability of administrations which communicate very little and are not well prepared for public service, some officials' willful withholding of information, the solving of problems on a case by case basis, the absence of homogeneous policies, and the sometimes generalized corruption.

The populations do not systematically have access to information. Illiteracy or the non-understanding of the official language represent two of the main barriers. The access to information must be guaranteed to all through a law. In India, the access to information was very problematic until a law was promulgated on the right of information. Since then, community-based organizations demand all the information they are interested in. Thanks to this law, one is able to know for instance which employer pays assessments and for which employee. However, such laws need to be really implemented, which is not the case in Senegal and Benin. In the Philippines, in many instances, information is withheld from the population so that practices will not be put into question. Besides, when public authorities carry out consultations, those are not very substantial.

When the right to information exists in a country, the administrative staff has to be informed of such obligation which they might ignore, and pressure must be exerted on their superiors to ensure the respect of the said right. It is sometimes easier to have access to provisional budgets or planned policies than to what has actually been achieved. It can be wise to set up a consultation framework with public authorities in order to disseminate the information, as was done in Cameroon.

One must also inform the population of their right and means to make it effective. It gives people access to local governance and citizen participation.

In the meantime or at the same time, one should use the existing, formal or informal channels (personal or institutional relationships, public information services in general) as well as our networks, partners or specialized organizations like unions, as each has its own sources of information. Even if the access to information is guaranteed, it can be necessary to popularize such information and make it effectively accessible and understandable to the population.

Decentralization as a mode of management aims at dispersing decision-making governance closer to the people or citizen. As such it is supposed to facilitate communication and collaboration. However, it is not necessarily the case if the transfer of responsibility does not involve as well a means and competences transfer from the central administration to de-concentrated and decentralized organs (1). It is a long and complicated process with a view to achieving efficient work.

In some countries like Cameroon, decentralization provided towns with positive tools such as the participative budget planning with the creation of local budget committees in charge of teaching citizens how to work together with the authorities, consultation frameworks, local development plans, and the possibility for civil society organizations to make recommendations, etc.

(1) De-concentrated organs represent the central power at local level (e.g.: prefectures) whereas decentralized organs are autonomous and have been transferred some competences from the central power (e.g.: regions, provinces).

2. Training and assistance in claiming rights

Civil society plays an important role not only in monitoring and orienting public policies and legislation but also in monitoring administrative and judicial practices so as to ensure their compliance with the legislation, identify problems and find solutions. Civil and political rights are generally more justiciable than ESC rights. There are less legal tools to confront ESC rights violations. In India, for instance, despite the constitutional obligations, it took 60 years of struggle to make education compulsory for all. Rights have to be incorporated to legislation to become enforceable.

The role of civil society organizations is to inform people of their rights, the existing laws and the functioning that should characterize administrative and judicial institutions. This enables people to have access to, and understand the information (simple explanation of the administrative and judicial “jargon”, translation into local languages).

For example, in Mali, some communities are ruled by customary law which can be in contradiction with positive law. The paralegals trained by the DEME SO Legal Clinic thus disseminate positive law to the population in order to avoid possible misunderstandings. Various actions can be carried out:

implementation of training programs,
creation of training and help centers,
production of pedagogical material, radio broadcasts and audio tapes on legal matters, etc.

One must always remember to make the actions sustainable and duplicate the knowledge and skills by training people who will act locally, and paralegals who should then able to train in turn other community members. Thus, in India, SEWA encouraged the creation of decentralized and democratic community-based organizations and popular institutes; in Cameroon, it is Legal Clinics of Information and Citizenship Education (CIJEC - Cliniques d'Information Juridique et d'Éducation à la Citoyenneté) which are created.

Stages in setting up and running Legal Clinics of Information and Citizenship Education by ASSOAL and the Réseau National des Habitants du Cameroun (National Network of People Living in Cameroon - RNHC)

Creation of working groups per neighborhood
Mobilization of resource people
Creation of awareness raising material
Planning of awareness raising meetings
Identification of monitoring requests
Drafting of the case sheets and reports
Circulation of the reports

The organizations are also here to assist people in claiming their rights and executing usually rather complex procedures by offering them: lawyer services to compensate for the cost of justice, translators so that they understand the debates, or a support in developing a dossier to obtain a land title for instance.

When a problem has been raised, the first stage is to carry out a study or investigation in order to evaluate the practices, identify causes and consequences, make recommendations, and propose solutions. The study must include all the stakeholders concerned: both the populations and partners (administrative or judicial staff, their immediate superiors, ministries, associations, etc.). Several methodologies will be used: documentary analysis, interviews, groups of discussion, etc. Once the study over, the different stakeholders concerned will need to be informed of the results, and a report will have to be drafted and widely circulated.

Stages in studying the land status of informal settlements, the social capital, and social and environmental risks factors, by ASSOAL and the RNHC

Investigations to identify beneficiaries and partners
Documentary analysis conducted within the communities, chefferies, towns and land administration, and among landowners
Research work to determine the property map
Focus group with the beneficiaries: check and reformulate all the working hypotheses and find solutions
Feedback to the concerned population and partners
Identification of the constraints and difficulties specific to each mapped habitat and validation of possible solutions
Drafting of the study report
Replication and circulation of the report to the stakeholders

As a collective action is much more efficient, NGOs can help people gather into associations, networks, community mutual health insurance companies or cooperatives, create cooperation and social mediation spaces bringing together all the stakeholders concerned, and structure their claims (creation of messages, contact with the media).

It may be wise to organize a one-day workshop following the preliminary work of investigation to analyze the situation in more details and make precise propositions aiming at solving specific problems. For example, the DEME SO Legal Clinic organized in partnership with the Ministry of Justice, the National Directorate of Penitentiary Administration and Supervised Education (DNAPES - Direction Nationale de l'Administration Pénitentiaire et de l'Éducation Surveillée) and civil society, a one-day workshop on the alternatives to imprisonment in Mali. At the end of the day, the decision-makers, the Ministry's and penitentiary administration's officers, and civil society's leaders exhorted the State to introduce community service into judicial legislation.

The implementation of mini-projects in administrative or judicial institutions allows showing the real success of certain good practices. Thus, ASSOAL took part in launching a social housing program on a trial basis . Likewise, the DEME SO Legal Clinic implemented a rehabilitation mini-project through the production of objects at the Special Reeducation and Rehabilitation Center for Women and Minors (Centre Spécial de Rééducation et de Réinsertion pour Femmes et Mineurs - es) located in Bollé.

Rehabilitation mini-project through the production of objects at the Special Reeducation and Rehabilitation Center for Women and Minors, located in Bollé, Mali, by the DEME SO Legal Clinic

Following a study tour in Netherlands with a view to taking after the Dutch policy regarding penal matters and exchanging with prisons' directors, the DEME SO Legal Clinic implemented a rehabilitation mini-project at the Bollé Center.

The strategy was the following:

Drafting of the project document.
Organization of a field visit to identify and list Bollé detainees' needs in terms of learning and professional training
Identification of target groups (women and primary juvenile delinquents)
Interviews with the penitentiary staff (jailors and supervisors)
Drafting of the report on female and minor detainees' learning and training needs
Submission of the report to the Ministry of Justice and the DNAPES
Organization of meetings with the DNAPES on the report's results.
Set-up of a collaboration through a Management Committee composed of the person in charge of penitentiary matters at DEME SO and the DNAPES' managers
Setting-up of rehabilitation activities (by setting up learning and training workshops and supplying them with raw material)
Distribution of the detainees following the latter's choices
Recruitment of workshops' supervising teams
Setting up learning and training sessions
Monitoring of the sessions and objects made by the detainees
Progressive storage of the products

Communication is always essential in such process to raise people's and decision-makers' awareness of the issues raised. It is necessary to develop a communications plan with local and national media. The DEME SO Legal Clinic thus organized a “Detainee Week” to show decision-makers and the population that another form of prison was possible beyond pure and simple imprisonment, based on the mini-project implement at the Bollé Center.

Organization of a “Detainee Week” by the DEME SO Legal Clinic This “Detainee Week”'s ultimate goal was to make visible what was happening in Bollé in terms of training and preparation for the detainees' re-socialization. Detainee Week implementation strategy:

Set-up of an Organization Commission gathering together the Ministry of Justice of Cameroon, DEME SO and the DNAPES
Reservation of the meeting room and building of the exhibition stands
Development of the day's program and setting of a date related to a memorable and universal event likely to bring together government members, such as December 10 – anniversary date of the Universal Declaration of Human Rights which coincides with the space of democratic interpellation in Mali.
Sending of invitation letters to authorities and civil society organizations Making of TV adverts for the event
Event placed under the patronage of the Ministry of Justice along with other government members
Organization of the Detainee Week which proved to be a total success - DEME SO received congratulation letters from the Ministry of Justice and the DNAPES

After the success of the first edition, the State later institutionalized the Detainee Week on its third edition in 2001, and eventually adopted a national policy of rehabilitation.

NGOs also serve as a facilitator to bring different groups together and unite them into a more global action at national level, and to implement advocacy, monitoring plans as well as a plan for capitalizing on the acquired knowledge. So NGOs will be able to:

draft a global report on all the local studies,
organize a national workshop and feedback meetings,
promote the creation of a national platform,
encourage the creation of a consultation framework with public authorities,
analyze, develop and propose a national strategic plan,
analyze, develop and propose laws and regulations,
evaluate and implement a capacity building program for stakeholders,
ensure the monitoring and capitalization of the results and changes.

Methods to monitor administrative and judicial practices in India, by SEWA

raise people's awareness of the right to information, the existing administrative and judicial measures, and the conditions of access thereto;
set up village committees, fora, community-based organizations, and popular institutes of training and exchange of experience;
create tripartite councils (with government, workers' and SEWA's representatives) in order to solve workers' problems;
establish a partnership between the government and female workers groups;
carry out advocacy, lobbying and monitoring actions at national level for the implementation of the existing legislation and the development of new policies.

It is essential to solve situations at local level but also to spread the debate so that existing laws or court rulings and public policies are implemented, as well as new legislations adopted in order to make sure that this situation will never recur, and to make our achievements sustainable.

For instance, studies are being carried out by State representatives, financial and technical partners, and civil society organizations in Cameroon for the development of a national habitat and social housing policy and program. Likewise, in Mali, following the one-day workshop on the alternatives to imprisonment organized by the DEME SO Legal Clinic in partnership with the Ministry of Justice, the DNAPES and civil society, which promoted the incorporation of community service in judicial legislation in favor of primary and resourceless delinquents (women, young people and minors), a commission was created to develop a bill which was then adopted by the national assembly of Mali, and an executive order promulgated by the President of the Republic in 2002.

Regarding the monitoring of administrative and judicial practices, it is necessary to:

take time to learn, discuss and listen. Those are long and slow processes, know all the stakeholders and their roles,
train populations as well as the administrative and judicial staff on rights, have local people participate - instead of carrying out actions without them, one should assist them in claiming their rights and having a better structure (civil society's capacity building),
work in networks and share experiences,
work in cooperation and partnership with the different public or private stakeholders,
create strategic alliances with various powers and authorities: to launch contradictory dynamics,
mobilize resources and finance exemplary actions (multi-partnership)‏,
inform local and national media,
implement an advocacy and lobbying plan.

The Committee on ESC rights

International Programme Coordination — 2009-09-17T15:01:57Z

History

Unlike what had been done for the International Covenant on Civil and Political Rights, no expert committee was created to monitor the implementation of the International Covenant on Economic, Social and Cultural Rights.

The Committee on ESC rights got its authority and competence from the UN Economic and Social Council (ECOSOC) which created it in 1985.

The Committee met in 1987 in Geneva for the first time, and now holds a three-week session twice a year – generally in May and November.

Composition

The Committee is composed of 18 independent experts who get elected for four years by the ECOSOC in compliance with the geographic representativeness principle. Their mandate can be renewed. The Committee elects its chairperson and vice-persons.

The working methods of the Committee are presented on its web pages, on the website of the Office of the High Commissioner for Human Rights: http://www2.ohchr.org/english/bodie...

Mission

The Committee's main mission is to verify that States Parties implement the Covenant within the framework of a “constructive dialogue”.

States, within two years after the entry into force of the Covenant in their country, present their first report to the Committee, and then periodic reports every five years. In these governmental reports, states debrief in details and under the Committee's instructions on the status of ESC rights implementation and difficulties encountered.

The States Parties to the Covenant undertake in conformity with articles 16 and 17 to submit reports on the (legislative, judicial, political and other) measures which they have adopted to achieve the observance of ESC rights. Reports may indicate factors and difficulties affecting the degree of fulfilment of the obligations. States must report initially within two years of accepting the Covenant and thereafter every five years.

Why is there such an obligation to submit reports?

The Committee has emphasised that reporting obligations under the Covenant fulfil seven key objectives. In its General Comment No. 1 (1989) (1), the Committee stated these objectives as follows:

To ensure that a State Party undertakes a comprehensive review of national legislation, administrative rules and procedures, and practices in order to assure the fullest conformity possible with the Covenant;

To ensure that the State Party regularly evaluates the actual situation of each of the enumerated rights in order to assess the extent to which the various rights are being enjoyed by all individuals within the country;

To provide a basis for the government's elaboration of clearly stated and carefully targeted policies for implementing the Covenant;

To facilitate public scrutiny of government policies regarding the implementation of the Covenant, and to encourage the involvement of the various sectors of society in the formulation, implementation and review of relevant policies;

To provide a basis on which both the State Party and the Committee can effectively evaluate progress towards the realisation of the obligations contained in the Covenant;

To enable the State Party to develop a better understanding of problems and shortcomings impeding the realisation of ESC rights;

To facilitate the exchange of information among State Parties and to help develop a fuller appreciation of both common problems and possible solutions in the realisation of each of the rights contained in the Covenant.

(1) Office of the United Nations High Commissioner for Human Rights, Reporting by States parties: CESCR General comment 1. (General Comments), 24 February, 1989, E/1989/22

Violations of the ICESCR by States Parties

The Limburg Principles (2) on the Implementation of the International Covenant on Economic, Social and Cultural Rights list the following circumstances amounting to violations of the Covenant by a State Party:

The State Party fails to take a step the Covenant requires it to take;
The State Party fails to remove promptly obstacles which it is obligated to remove to permit the immediate fulfilment of a right;
The State Party fails to implement without delay a right which the Covenant requires it to provide immediately;
The State Party wilfully fails to meet a generally accepted international minimum standard of achievement which is within its powers to meet;
The State Party applies a limitation recognized in the Covenant in a manner not in accordance with the Covenant;
The State Party deliberately retards or halts the progressive realisation of a right, unless it is acting within a limitation permitted by the Covenant or it does so because of a lack of available resources;
The State Party fails to submit reports as required under the Covenant.

(2) A group of distinguished experts in international law met in Maastricht from 2 to 6 June 1986 to consider the nature and scope of the obligations of States parties to the International Covenant on Economic, Social and Cultural Rights. The Limburg Principles reflect their conclusions. The text is accessible in the following document: United Nations, Economic and Social Council, Substantive issues arising in the implementation of the International Covenant on Economic, Social and Cultural Rights: Day of General Discussion Organized in Cooperation with the World Intellectual Property Organization, 2 october 2000, E/C.12/2000/13

NGO participation in activities of the Committee on Economic, Social and Cultural Rights

International Programme Coordination — 2009-09-17T12:51:56Z

“The Committee on ESC rights considers the cooperation with all local, national and international non governmental organisations (NGOs) that deal with economic, social and cultural rights matters as highly important even if these organisations are not in consultative status with the Committee on ESC Rights. The Committee keeps encouraging their participation in its activities.”

Source: United Nations, Economic and Social Council, NGO participation in the activities of the Committee on Economic, Social and Cultural Rights, 3 July 2000, E/C.12/2000/6

The Committee on ESC rights is aware of the role civil society can play as a third partner in the “constructive dialogue” the Committee wants to promote on the ESC rights situation in a country. Thus, the Committee supports civil society's activities. The fourth key objective of the official reports, as set forth by the Committee on ESC rights, was to “facilitate public scrutiny of government policies regarding the implementation of the Covenant, and to encourage the involvement of the various sectors of society in the formulation, implementation and review of relevant policies”.

Therefore, the Committee wants the reports to be an informative support on which the civil society can base its claims and demands. The reports can thus improve the transparent, accountable and participative character of the political process at all levels.

The Committee also pointed out the key role of civil society in helping to evaluate the compliance of public authorities with their obligations under the Covenant. The Committee has indicated that the purposes of the NGO procedure are to enable it to inform itself as fully as possible, to examine the accuracy and pertinence of information, and to put the process on a more transparent basis.

The means for NGOs to get involved were set forth in notes from 1993, and more recently in 2000. (see the sources at the end of this article)

At any time, the civil society organisations can submit information to the Committee in any of its working languages: English, French, Spanish or Russian, but a document provided in English will reach the widest audience.

Such information can be submitted under different forms: press clipping, video or audio records, NGOs' newsletters, reports, academic publications, studies, joint statements, etc.

This information will be included in the country files established and maintained within the secretariat. The country files contain information deriving from all available sources (UN organs, specialised agencies, the media, regional institutions, academic publications, civil society organisations, etc.)

On the basis of the information contained in the relevant country file, the secretariat prepares for the Committee a country profile, a working document which attempts to provide insights into the situation in the state to be examined, to complement the information provided by the State Party in its report.

The stages in the examination of States Parties' reports in which NGOs can participate are the following:

Entry into force of the Covenant: Once a Sate party has ratified the Covenant, national NGOs working in the field of ESC rights are encouraged to establish contact with the Committee secretariat.

From the receipt of a State Party's report until its examination: submission of any relevant information (placed in country files established and maintained by the secretariat)

Pre-sessional working group: submission of information directly to the member of the Committee responsible for drafting the list of issues, and/or submission of written information or of a parallel report(1) to the secretariat and/or oral presentations before the pre-sessional work.

Session at which a State Party's report is scheduled for consideration: submission to the secretariat of a written statement and/or information in the form of a report and/or oral presentations before the Committee, within the framework of the Committee's “NGO hearings; observing the Committee's dialogue with the State Party delegation.

Follow-up to the Committee's concluding observations: submission of information to the secretariat on the implementation of the concluding observations of the Committee in the State Party.

(1) Even though the term “shadow report” is used to refer to reports issued by civil society in general, there is a distinction between a “parallel report” in which civil society shares its own information regarding the ICESCR articles, a “counter-report” which gives critical comments and complementary information, and an “alternative report” if the State has not submitted a report yet.

Committee's suggestions to NGOs

All information extended to the Committee must be (1) specific to the ICESCR, (2) relevant with regard to issues raised by the Committee or the pre-sessional working group, (3) based on well documented sources, (4) concise and (5) reliable, not biased. The more specific, relevant and precise the information, the more significant the impact of contributions.

That is the reason why the Committee prefers a counter-report referring precisely to the information included in the official report. Besides, the Committee encourages NGO collaboration, coordination and cooperation:

“It is worthwhile, whenever possible, to produce a single consolidated submission representing a broad consensus by a number of NGOs. That could be accompanied by shorter, more targeted and detailed submissions by individual NGOs on their own priority areas. This kind of coordinated activity will help the secretariat and the Committee members to obtain a clearer picture of the current status of implementation of the Covenant in a given State party. Most importantly from the NGO perspective, joint submissions also eliminate the possibility of duplication and contradictions in the NGO information presented. The former creates inefficiency and increases the burden on Committee members, and the latter can undermine the credibility of the NGO submissions. Both duplicative and contradictory information from NGOs can weaken the NGOs' position and arguments. On the other hand, consistency and accuracy, as well as demonstrated coordination, enhance the professionalism of presentations, increase credibility and ensure the NGOs' intended outcome.”

United Nations, Economic and Social Council, NGO participation in the activities of the Committee on Economic, Social and Cultural Rights, 3 July 2000, E/C.12/2000/6

Sources

Committee on ESC rights's website, section: "Information for NGOs": http://www2.ohchr.org/english/bodie...

Office of the United Nations High Commissioner for Human Rights, The Committee on Economic, Social and Cultural Rights, Fact Sheet No.16 (Rev.1), E/1989/21

United Nations, Economic and Social Council, NGO participation in the activities of the Committee on Economic, Social and Cultural Rights,12 May 1993, E/C.12/1993/WP.14

United Nations, Economic and Social Council, NGO participation in the activities of the Committee on Economic, Social and Cultural Rights, 3 July 2000, E/C.12/2000/6

See also the section: "Drafting and presenting a shadow/alternative report "