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18 November 2001



Workshop for Judges on the Justiciability of Economic,
Social and Cultural Rights in South Asia

New Delhi, 17-18 November 2001

STATEMENT OF CONCLUSIONS



Introduction

1. The inter-sessional sub-regional Workshop for Judges on the Justiciability of Economic, Social and Cultural Rights, organized under the Beijing Plan of Action of the Asia-Pacific Framework for Technical Cooperation, was held in New Delhi, India, on 17 and 18 November 2001 and was attended by judges from Bangladesh, India, Nepal and Sri Lanka.

2. The participants expressed their gratitude to the Government of India for hosting the workshop, to the Office of the High Commissioner for Human Rights (OHCHR) for organizing the workshop and providing financial support to it, and to the International Bar Association and the International Commission of Jurists for co-organizing the workshop in partnership with OHCHR.

3. The workshop welcomed the presence, as observers, of national human rights institutions, human rights civil society organizations and lawyers from Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka, as well as representatives of regional and international organizations working in the sub-region.

4. The United Nations High Commissioner for Human Rights, Ms. Mary Robinson, opened the workshop and paid tribute to the pioneering work of the South Asian judiciary and advocates, who had been able to make significant advances and establish key precedents in the development of international jurisprudence in the area of economic, social and cultural rights. She urged the participants to help disseminate judicial experience in the area of human rights at the national, regional and international levels, so as to reinforce a consistent and common view of universal rights at every level. She further encouraged the participants to consider the ongoing process of developing a possible optional protocol under the International Covenant on Economic, Social and Cultural Rights. The Chief Justice of India, the Honourable Shri Justice S.P. Bharucha, delivered a presidential address in which he referred to a South Asian judicial phenomenon whereby courts took steps to convert certain elements of directives/principles of State policy into enforceable fundamental rights. He reminded the workshop, however, of the need for an independent judiciary in order to enforce such rights. Furthermore, he said, the courts must be mindful of the need to ensure that their decisions were capable of enforcement, in order to preserve the credibility of the judicial system.

5. Justice P.N. Bhagwati, in his keynote address, shared information about different approaches followed by courts in order to ensure protection of economic, social and cultural rights, and also highlighted the need for close cooperation among all members of the legal community. Mr. Fali Nariman and Ms. Nirmala Pandit addressed the workshop on behalf of the International Bar Association and the International Commission of Jurists respectively. Mr. Nariman recalled that human rights in the current millennium were primarily in the hands of the trendsetters, who were the judges. He called for more debate on the significance of the international human rights instruments. Ms. Pandit emphasized that the judiciary could and always had played a crucial role in ensuring the justiciability of economic, social and cultural rights, including by developing innovative practices, such as public interest litigation, expanding the scope of locus standi and interpreting domestic legal norms in the light of international standards.

6. The workshop welcomed the participation as expert resource persons of Mr. Geoffrey Budlender (justiciability of the right to housing), Dr. Kamal Hossain (justiciability of the right to education), Justice Michael Kirby (justiciability of the right to health) and Professor Babu Mathew (justiciability of the right to labour/labour rights).


Conclusions

7. The workshop agreed that the issue of the justiciability of economic, social and cultural rights was inseparable from the question of enforceability and the existence of adequate remedies. The judiciary was urged to make use of appropriate judicial decisions of their own and of foreign jurisdictions. Judges were encouraged to participate in national, regional and international workshops and seminars in the area of economic, social and cultural rights, where they could exchange ideas with a view to strengthening capacity with regard to, and increasing sensitivity towards, economic, social and cultural rights.

8. The participants considered that it would be desirable for the Governments that had not yet ratified the International Covenant on Economic, Social and Cultural Rights to do so without delay.

9. The participants considered that it would be desirable for the States Members of the United Nations to proceed without delay to adopt a protocol to the International Covenant on Economic and Social Rights, whereby individuals and groups might petition the Committee on Economic, Social and Cultural Rights.

10. The workshop recognized that human rights were indivisible and interdependent and that the rights enshrined in the International Covenant on Economic, Social and Cultural Rights and, where relevant, the directives/fundamental principles of State policy contained in some national Constitutions represented statements of clear legal obligation for the States concerned. It was agreed that the principles set out in those documents gave direction to the States concerned and give content and meaning to the fundamental rights enshrined in those Constitutions.

11. The workshop also considered factors relevant to the issue of justiciability that had a negative impact on the realization of economic, social and cultural rights. Those factors included: (i) the inability of a large majority of persons in every society to have access to justice, and the failure of States to remedy that inability; (ii) the lack of awareness, and in some cases the absence of interest in learning more, about international human rights standards on the part of the legal community; (iii) the lack of understanding of the nature and legal and policy implications of international commitments, including the legal obligations of international corporations, undertaken by States; (iv) in certain cases, the absence of awareness and the indifference of government officials in the implementation of those commitments; (v) inadequate follow-up to public commitments such as plans of action and pronouncements made in international forums; and (vi) the lack of ratification by some States of the International Covenant on Economic, Social and Cultural Rights and the failure to implement it fully of some States which had ratified it.

12. The workshop called on OHCHR to continue to provide technical cooperation assistance in the field of human rights with regard to the justiciability of economic, social and cultural rights, and to publish the draft training manual for judges as soon as possible. It was also suggested that OHCHR and other appropriate United Nations bodies should facilitate a comparative study of existing law in the region, both statutory and case law, regarding economic, social and cultural rights, and that the results should be made available to the judiciary.

13. Consistent with principles of the Bangalore Declaration and Plan of Action, the workshop urged members of the judiciary to interpret domestic law in conformity with international human rights instruments, including the International Covenant on Economic, Social and Cultural Rights.

14. The workshop noted that there was often a general lack of information on government allocations, expenditures and targets in regard to their policies and programmes of implementation of economic, social and cultural rights, and judges were encouraged, in appropriate cases, to call for such information to be provided.

15. The workshop recalled the responsibility of national human rights institutions to play a proactive role in monitoring the performance of the legislative and the executive branches of the State in the area of economic, social and cultural rights. The participants recommended that national human rights institutions should have the legislative mandate and economic resources to help ensure the realization of economic, social and cultural rights. They called upon national human rights institutions to play a role, in harmony with the decisions of the judiciary and where appropriate, such as by intervening before the courts and by: (i) providing to the judiciary, and to the public in general, information about international jurisprudence and documents generated by the international human rights mechanisms; (ii) monitoring and reporting on the implementation of policies regarding economic, social and cultural rights; (iii) requesting Governments to increase the transparency of their reports on budgetary allocations, public expenditures and the implementation of targets; (iv) seeking judicial intervention, wherever so required, for receiving information from institutions that did not have the statutory obligation to supply information; (v) requesting academic institutions and other members of civil society to provide such information as needed. The workshop agreed that the costs of such studies and public reports should be borne by the Governments concerned.

16. The workshop observed that public interest litigation could be used to ensure enhanced justiciability of economic, social and cultural rights. It noted those South Asian jurisdictions where actions were initiated by courts themselves (suo motu) in cases relating to human rights violations in the area of economic, social and cultural rights. That innovative approach depended to a large extent on the individual initiative of judges concerned.

17. To ensure the justiciability of economic, social and cultural rights, the workshop urged courts to make a conscious effort to adopt new strategies and techniques. In order to meet the new challenges, the judiciary was encouraged to make use of the available innovative means, such as court-appointed fact-finding commissions, to ascertain factors bearing a negative impact on economic, social and cultural rights.

18. The workshop observed that the justiciability of the right to work, including labour rights, played a critical role in enhancing quality of life and quality of work. It noted that the question of implementation went beyond the mere implementation of existing international standards. The effectiveness of the protection of labour rights had in some cases been challenged by new economic trends at the regional and international level, especially with regard to such effects of globalization as “flexibility of labour” and the impact of this phenomenon on national practice.

19. The workshop appreciated that courts in the region had given effect to economic, social and cultural rights through the process of judicial interpretation, and encouraged them to continue do so in appropriate cases. States must not abdicate their responsibility to ensure effective enforcement of those rights.

20. The workshop agreed that courts had an important role to play in ensuring the effective justiciability of the right to education, particularly in contexts where the Constitution provided for, or the executive branch was otherwise committed to, time-bound implementation of the right.

21. The workshop encouraged judges to take account of the following elements of the right to education in order to ensure its effective implementation: (i) the need to have equitable geographic distribution of schools for both girls and boys; (ii) the need to eliminate disparities in the standards and funding of education; (iii) the need to ensure non-discriminatory access to schooling, including with regard to gender, origin, disability and all other forms of discrimination.

22. The workshop agreed that judges should be urged to: (i) protect the vulnerable from homelessness due to arbitrary and discriminatory action; (ii) ensure the right to adequate housing of the people, including the non-discriminatory provision of civic services, and ensure that there was no retrogression of laws and policies protecting the right to housing; (iii) ensure that no forced evictions were conducted, except in exceptional cases on satisfaction of certain mandatory conditions, such as consultation with persons who would be affected, reasonable notice, hearings prior to eviction, opportunity for legal redress and provision of the right to adequate housing in an alternative location. The workshop recognized that the effectiveness of the protection of the right to housing had in some cases been challenged by global policies.

23. The workshop agreed that Governments must comply with their obligations under the International Covenant on Economic, Social and Cultural Rights, including by enacting legislation to give effect and content to the right to adequate housing as soon as possible.

24. The participants noted that where there was tension between rights affecting the provision of housing for various categories of people, the right to adequate housing of vulnerable people must be given priority.

25. The participants urged the judiciary to examine the right to health in a comprehensive manner, so as to include prevention, cure, rehabilitation, easy access to health services and attainment of core minimum standards which States parties were committed to implementing under the International Covenant on Economic, Social and Cultural Rights.

26. The participants emphasized their recognition of the importance of economic, social and cultural rights in the daily lives of all people of the region and the world. The judiciary, as servants of the people, shared the sense of urgency of the people that the objectives of the International Covenant on Economic, Social and Cultural Rights should be fully attained and its provisions given effect as far as possible.


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