An outline of the activities of the first year of our project

Our project on advocacy and research on ESR is already on its second and final year. This is an outline of the activities of the first year of it.

A-    Horizontal activities

1. Scope and general actions. As the project is not academic but action oriented, it has focused on developing regional networks by linking grassroots NGOs and legal experts, so as to support local advocacy and litigation. Therefore, two regional groups, one Latin American and one African have been formed in the aftermath of two successful regional conferences. One of them has been held in San Juan, Argentina (see below B-1) in April 2012 and the other in Lagos, Nigeria in May 2012. These events involved an opportunity for lawyers across the two continents to engage with developments in ESR advocacy and litigation.  Both regional groups are supported by a Blog dedicated to their activities and, more generally, on the presentation of the project and the dissemination of its outcomes.

2. Training workshops. Another essential element of the project is the organization of training workshops, especially aimed to judges and other legal practitioners. One, aimed especially to African judges has been already held in Kenya (see below, B-5) and another, more universally oriented is scheduled for next November in Åbo, Finland (see below, B-3). Training will enable judges and lawyers to understand what is possible and developments that are occurring around the world.

3. Case-Law Library A major horizontal activity of the project is the organization of a case law library. A number of representative decisions are collected and will be presented and analyzed so as to extract useful conclusions on the efficiency of legal mechanisms for the implementation of ESR. Initially the decisions are presented at the Blog of the Project, but they will be finally collected in a printed volume.

4. Coordination with the International Association of Constitutional Law (IACL). Part of the grant has been used to fund related activities of the International Association of Constitutional Law, such as its Web Page, which will also present analytically the project on ESR. The president of the IACL, Prof. Martin Scheinin, has personally travelled in December 2011 to Pretoria in order to ensure the successful linkage of the other activities of the Association with the project.

B- National activities

B-1 Argentina

1. The basic activity in Argentina has been the “INTERNATIONAL SEMINAR ON PROTECTION OF SOCIAL RIGHTS”, held on 26 and 27 April 2012 in San Juan, in association with the Institute of Constitutional Law, Procedural Constitutional Law and Human Rights at the Faculty of Law of the Catholic University of Cuyo (San Juan, Argentina).

The seminar was organized under the direction of Professors George Katrougalos (Greece), Víctor Bazán (Argentina) and Marcelo Figueiredo (Brazil).

Numerous speakers attended the event, as detailed below:

Argentina: Víctor Bazán and Mario Midón.

Brazil: Marcelo Figueiredo, Luis G. Arcaro Conci, Carlos Goncalves Junior,

Paulo João Pessoa and Konstantin Gerber.

Chile: Gonzalo Cavallo Aguilar.

Colombia: Julio Cesar Ortiz Gutiérrez.

Greece: George Katrougalos.

Panama: Salvador Sánchez.

Paraguay and Mexico: Jorge Silvero Salgueiro.

Peru: César Landa Arroyo.

The seminar was divided into four panels, each of which focused respectively the following topics:

•            The Protection of Social Rights in Latin-America in Global Perspective: Constitutionalization, Justiciability and other Non-Judicial Mechanisms of Protection.

•            Similarities and differences between the judicial activism of courts in Latin-American Countries.

•            Dialogue between international public law and comparative law with national courts in Latin- America.

•            Material and procedural issues relating to Constitutional Remedies.

To the seminar participated more than 350 people, including lawyers, judges, professors, researchers and students.

The panels addressed issues such as the concept, historical and jurisprudential developments of the Economic and Social Rights (ESR) in Latin-America and in Europe.

2. A selection case –law is collected and prepared for the case law library.

B-2 Brazil

1.     Advocacy

A petition was filed at the Brazilian Congress regarding the need of Brazil to ratify the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (with the Protocol and the Declaration of Jurists of IACL Blog attached), in order to foster public hearings about this subject matter. The petition has been translated into English and follows attached.

2.     Case Law Library

29 cases of Brazilian Federal Supreme Court have been selected for the Case Law Library.

3.     Lectures and Papers

The following papers have been written and presented on the conferences organized in the framework of the project. They will be published on the Blog of the project after having been translated in English.

Marcelo Figueiredo, Carlos Gonçalves Júnior, Luiz Guilherme Arcaro Conci, João Paulo Pessoa and Konstantin Gerber were the speakers from Brazil at the Social Rights’ Protection International Seminar at San Juan, Argentina, April, 2012.

Marcelo Figueiredo - “The Concept, the Comprehensiveness and the Protection of Social Rights in Brazil and some characteristics of these rights in South America. The role of the Commission and of the Inter-American Court of Human Rights in the defense of the DESC (Economic, Social and Cultural Rights)”

Carlos Gonçalves Júnior - “Brazilian Judicial Construction Progress: the cases of lack of statute (nonfeasance) and the judicial review analysis”

Konstantin Gerber - “Social Rights’ protection in Brazil: doctrine, litigation and policy”

Roberto Baptista Dias da Silva and Gabriela Cruz – “Nursery school and elementary education as constitutional duties of municipalities”

B-3 Finland

Finland is one of the two European focus countries, partly because of its relatively strong economy during the current financial crisis, partly because its almost unique experience of going through, in the early 1990s, a parallel process of restructuring the public and national economy and the inclusion in the constitution of justiciable provisions on economic and social rights. While the actual project activities in Finland are planned for the second project year, during the first year the project proceeded through a number of preparatory steps:

1.  For the case law library, a fairly large selection of some 40 cases was made, with short English summaries. Work continues towards a final selection on the basis of choosing the cases that are most interesting for a comparative perspective.

2.  The University of Helsinki (Prof. Tuomas Ojanen, constitutional law) was identified as partner for a training course for Finnish judges on the justiciability of economic and social rights. This one-day training event will be arranged on 29 April 2013 with the following speakers:

- Prof. Martin Scheinin, President of the IACL: Justiciability of economic and social rights in a comparative perspective

- Dr. Jarna Petman, member of the European Committee of Social Rights: Case law under the European Social Charter

- Prof. Tuomas Ojanen: The significance of the European Convention on Human Rights and the Covenant on Civil and Political Rights for the justiciability of economic and social rights

- Ms. Maija Sakslin, Deputy Ombudsperson: Economic and social rights in EU law.

3.  The Åbo Akademi University Institute for Human Rights was identified as a partner for a week-long training course on the justiciability of economic and social rights, to be arranged 12-16 November 2012. Judges or lawyers from the other focus countries are being recruited as participants of the course. See https://www.abo.fi/institution/Content/Document/document/26377

4. While Finland is an active proponent of the strengthening of international human rights treaties, including through the adoption of the Optional Protocol to the Covenant on Economic, Social and Cultural Rights, it tends to ratify new treaties and protocols with a delay. This is due to the relatively scarce resources allocated to securing officia translations into the two national languages, Finnish and Swedish, and a complicated process of consultation. As part of the project, advocacy for the ratification of the Optional Protocol is ongoing. Here, the Finnish League for Human Rights was identified as local partner.

B-4 Greece

Greece is the other European focus countries, selected exactly because of its special position  during the current financial crisis, and the challenges the latter poses to the actual implementation of social rights.

1. Therefore, emphasis has been on public litigation and advocacy, in co-operation with EKPODI, an active NGO in this field.  Prof. George Katrougalos has pro bono prepared a petition before the Committee of the European Social Charter for the Confederation of Public Servants in Greece regarding the implications of the austerity measures on the right to social security. The decision of the Committee is expected in the forthcoming week. A number of related articles have been published to the legal and political press.

2.  A questionnaire has been prepared as the basis for the collection of decisions for the  case law library.  A fairly large selection not only of Greek cases but from constitutional courts from all Europe was made, with short English summaries. Work continues towards a final selection on the basis of choosing the cases that are most interesting for a comparative perspective.

3.  The EKPODI has been engaged in an advocacy campaign towards  the adoption of the Optional Protocol to the Covenant on Economic, Social and Cultural Rights.

The acting coordinator of the project, Professor George Katrougalos, has ensured the harmonization of the overall national activities with the general scope of the project.

B-5 Kenya

Kenya has passed its new Constitution in 2010. It is currently undergoing a major process of vetting judges to ensure that they are independent and not corrupt. The role of the judiciary has changed and many judges are unfamiliar with adjudication on the basis of fundamental rights. A judicial training institute has been set up to help train judges to become accustomed to their new role. There is also very little jurisprudence thus far in Kenya relating to socio-economic rights. In this context, it was decided that litigating without ensuring that judges and lawyers understood how to engage with socio-economic rights would not be wise. As a result, the focus for Kenya, it was decided would be on training.

The African Center for International Legal and Policy Research (CILPRA) was appointed as the Kenyan partner for the project in question. Together with Prof David Bilchitz,  a training programme was organised for some of the top judges in Kenya between 10-12 July 2012.

1.     Training Workshop

The basic Kenyan activity was the organization of a training workshop for judges.

Attendees at the training workshop included between 10-12 of the most senior judges in Kenya including the Chief Justice. There were two judges from the Supreme Court, two from the Court of Appeals, and the Heads of Divisions of the High Court.

Supreme Court:

1.           The Hon. the Chief Justice

2.           The Hon. Lady Justice Njoki Ndung’u

Court of Appeal:

3.           The Hon. Lady Justice Martha Koome

4.           The Hon. Lady Justice Hannah Okwengu

Presiding Judges of the Divisions of the High Court:

5.           Criminal – the Hon. Mr. Justice Mbogholi Msagha (Principal Judge);

6.           Civil – the Hon. Mr. Justice H.P.G. Waweru

7.           Family – The Hon. Mr. Justice G.B.M. Kariuki

8.           Commercial and Admiralty – the Hon. Mr. Justice D. K. Musinga

9.           Judicial Review – the Hon. Mr. Justice Mohammed Warsame

10.         Land and Environmental – the Hon. Lady Justice Philomena Mwilu

11.         Leader, Judiciary Transformation Secretariat – the Hon. Mr. Justice (Prof.) Joel Ngugi

12.         The Judiciary Training Institute – the Hon. Mr. Justice P. Kihara Kariuki

We managed to bring together an excellent team of facilitators from South Africa, Kenya, Uganda and the United States who have expertise on particular aspects of SERs and public interest litigation:

1.           Justice Albie Sachs

2.           Prof David Bilchitz

3.           Dr Godfrey Musila,

4.           Prof Christopher Mbazira

5.           Mr Nicholas Orago,

6.           Ms Nkatha Murugi

7.           Prof Andrew Scherer

The programme ran over three days and included discussion on a range of topics. The discussion was divided into more general themes relating to socio-economic, specific rights and public interest litigation. The first part included discussion of the philosophical foundations of socio-economic rights; constitutional models including Kenya; international law, with a  special focus on the Kenyan Constitution; different approaches to giving content to socio-economic rights; separation of powers; and remedies. The second part involved discussion on the rights to adequate housing, food, health-care and education. Unfortunately, there was not sufficient time to cover the rights to water and social security. The last part of the programme addressed public interest litigation and the new approach required by the Kenyan judiciary.

The programme also included an address by Justice Albie Sachs on the process of adjudicating socio-economic rights claims. Justice Sachs’s excellent speech took judges through the ways in which judges think about and collaborate in a judgment on these issues. Andrew Scherer who was sent by the International Senior Lawyers Project, addressed issues relating to public interest litigation.

The judges all expressed appreciation and the Chief Justice and Head of the Judicial Training Institute have discussed possibilities for future co-operation and training. Perhaps the most exciting outcome was to see the judges grappling with their changed role under the new constitutional dispensation (which some seemed not to have fully grasped). We were particularly encouraged by the words of a judge who express the view that, had the workshop come a week earlier, she may have given a different judgment to the one she gave. It seemed clear that the judges could benefit from further training in more general areas of human rights adjudication such as application, limitations/proportionality and also in relation to other topics such as unfair discrimination law, etc. We tried to include many opportunities for discussion and these helped us engage with the areas of content the judges felt they needed input on as well as to address their concerns.

B-6 South Africa

South Africa has had their final Constitution since 1996 and there have been numerous leading cases in which socio-economic rights have been adjudicated upon. Despite this, there have been relatively few cases across 16 years and many questions have been left undecided. It is thus necessary to develop the jurisprudence in South Africa in relation to these rights. The focus of the South African project it was decided would thus be upon public interest litigation in an undeveloped area relating to socio-economic rights.

1.     Advocacy. Prof David Bilchitz, the national coordinator, engaged with the Socio-Economic Rights Institute (SERI) which is a leading human rights NGO in South Africa. SERI focuses on litigation around socio-economic rights. SERI was appointed the implementing partner in South Africa.

2.     Public Litigation.  In considering prospective litigation, it was important to consider where the gaps were. There has been much litigation around the right to housing. There has been some litigation surrounding health and water. Yet, surprisingly, there has not yet been a case relating to the right to food. It was decided to investigate the possibility of litigating a case relating to the right to food.

Discussion surrounding the case began in early 2012 between the Director of SERI, Jackie Dugard and Prof David Bilchitz. Jackie and David had recognized some of the significant gaps that existed in the government’s programmes relating to the right to food.

In May 2012, there was a conference on the Right to Food run by Prof Sakiko Fukuda-Parr (from the New School, New York) at the University of Cape Town. The conference provided an opportunity to assess what was happening relating to the right to food in South Africa and identified several gaps that existed in this regard.

In particular, the right to food is often realized through the social security system. Thus, any litigation would have to engage with the social assistance system. The South African government provides grants to children (up to the age of 18) and older persons (from the age of 60). The disturbing problem that we noted was that if one fell between the ages of 19 and 59, there seemed to be a gap in social security provision unless one was disabled. After investigating, it was found that there was a grant called the ‘social relief of distress grant’ (SROD) available to persons in this age group for a temporary period of 3 months to address people who were in a situation of distress. If this grant were to be effective, it would possibly be able to address the gap we had noted. However, in South Africa there is currently a high rate of structural unemployment and thus the grant seemed badly designed to address continued unemployment (being available generally only for three months). It thus seemed to be focused on crisis situations rather than a situation of chronic poverty. We had also heard from many organization that the grant was not being made readily available to individuals and that it was not being implemented. If one fell between 19 and 59, the reality was that one could starve. In order to ascertain whether or not a successful legal case could be made out, it was necessary to evaluate whether poor people could in fact access the SROD grant. In order to do so, SERI together with Prof Bilchitz agreed that grass-roots research needed to be conducted. The purpose of the research was to ascertain whether poor people who were eligible for the grant were able to access it and the response of officials to prospective grantees. The research would track the position of people, their application and outcome. A researcher has been appointed and is currently conducting research.

The research is not simply an academic study. It also has the aim of helping to mobilize grass-roots community organizations behind the research. In studies of successful socio-economic rights litigation, it has often been shown that the litigation should not simply be an abstract legal challenge. It needs to build social support behind it within poor communities as well as political mobilization to be successful. SERI engaged with a community organization (Abahlali baseMjondolo) who agreed to back the project and prospective litigation. They would identify people in the age appropriate category and work with the researcher to try and secure the grant.

The research is currently being conducted and will determine the way forward in relation to this litigation.

It is too early to judge the outcome or impact of the research and prospective litigation. Nevertheless, the potential of this case is very large and this is why we believe it is worth investing in.

South African has lacked a comprehensive social assistance programme. The Social Relief of Distress grant offers the possibility of plugging the gap that exists in current provision. The grant, as it is conceived is flawed in addressing the situation of people in permanent desperation. Apart from this conceptual flaw, anecdotal evidence is that the grant is not widely available. The aim of this process is to ensure either that the SROD grant is made available to all or that the courts declare the current scheme in violation of the socio-economic rights in the Constitution. Such litigation would indeed be ground-breaking in South Africa and help to establish an entitlement to a basic social minimum which would prevent people from starving in South Africa.

Call to Ratify the OP-ICESCR

So far five countries have become parties to the Protocol - Ecuador, Mongolia, Spain, El Salvador and Argentina. We need five more ratifications for it to enter into force and many more to ensure it lives up to its potential.   This Protocol is a key instrument in achieving greater social justice and universal human rights protection. It will close a gap in international human rights law and ensure access to justice to victims of economic, social and cultural rights violations at the international level and strengthen national systems to do the same.

Today we are launching a Declaration signed by eminent jurists and human rights experts supporting and urging immediate ratification of the Optional Protocol.  In addition, below is a model press release for use with your State and national media.  Please disseminate both widely. The Declaration will remain open throughout 2012 for endorsements.

Spread the word! Join us in this effort and encourage relevant prominent individuals in your own country to add their support to your national ratification campaign and sign the Declaration.

Cette déclaration en français: 

http://www.escr-net.org/usr_doc/FRfinalModelLetterPressReleaseFinal_french.doc

Declaration of Jurists and other human rights experts on the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

We, the undersigned, call on States to become party to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The Optional Protocol will allow groups and individuals alleging violations of their economic, social and cultural rights and who have exhausted any effective remedies in their own countries, or where such remedies are unavailable, to have their cases heard by the United Nations Committee on Economic, Social and Cultural Rights.

We consider that the operation of the Optional Protocol, after it enters into force upon the 10^thState ratification, will constitute a critical step towards the achievement of greater social justice and universal human rights protection. Today, this objective should be at the core of States' priorities and policies at national and international levels.

During the first two years after the opening for signature and ratification or accession of the Optional Protocol on 24 September 2009, thirty-nine States signed and five States ratified the Optional Protocol. These first ratifications show that States from various regions of the world, with different legal systems, are committed to affording the same level of legal protection to economic, social and cultural rights as to other human rights. We also warmly welcome these and other steps taken by a number of other States around the world to proceed with the necessary national processes in order ultimately to become party to the Optional Protocol.

One hundred and sixty States have committed themselves to guaranteeing the rights under the ICESCR in good faith and to the maximum of their available resources, taking the necessary measures to realize those rights. We strongly reaffirm that the right to an effective remedy under human rights law and of the rule of law in a democratic society requires that all victims of violations must have access to legal remedies. The full realization of economic, social and cultural rights requires political will to ensure the conformity of domestic law and practices with international human rights law and standards.

To ensure access to justice for all people, we urge all States to become party to the Optional Protocol as expeditiously as possible. We also call on States when becoming party to the Protocol to ensure the greatest protection possible by accepting the inquiry and inter-state procedures under the Optional Protocol. Finally, we urge those States that are not yet party to the Covenant on Economic, Social and Cultural Rights to ratify or accede to that instrument along with the Optional Protocol.

By becoming party to the Optional Protocol, States would help send a signal globally that access to justice is essential for economic, social and cultural rights. They would make tangible the commitment by 170 States at the Vienna World Conference on Human Rights that "All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis."

We reaffirm the justiciability of economic, social and cultural rights and recall the wealth of adjudicatory experiences pertaining to these human rights in various regions and legal systems over the world.

As legal academics, legal practitioners, human rights lawyers and UN experts, we emphasize that access to international justice for economic, social and cultural rights has been long overdue. Forty-five years after the adoption of the ICESCR, States must take the opportunity to close the unjustifiable gap in human rights protection and bring into force the Optional Protocol.

Signatures

1. Martin Scheinin (Professor of Public International Law, European University Institute, Former member of the UN Human Rights Committee, Finland)
2. Duncan Wilson (Scottish Human Rights Commission, UK)
3. Philippe Texier (Member of the UN Committee on Economic, Social and Cultural Rights, Former Judge of the French Cour de Cassation, France)
4. Cees Flintermann (Member of the Human Rights Committee, The Netherlands)
5. Magdalena Sepulveda (Special Rapporteur on extreme poverty and human rights, Chile)
6. Virginia Dandan (Independent Expert on human rights and international solidarity, The Philippines)
7. Catarina de Albuquerque (Special Rapporteur on the human right to safe drinking water and sanitation, Portugal)
8. Oliver de Schutter (UN Rapporteur on the Right to Food, Belgium)
9. Ariel Dulitzky (University of Texas and Member of the UN Working Group on Enforced and Involuntary Disappearances, USA)
10. Anand Grover (UN Rapporteur on the Right to Health, India)
11. Rodolfo Arango (Associate Judge of the Constitutional Court of Colombia and Associate Professor of Philosophy at the Universidad de los Andes, Bogotá, Colombia)
12. Flavia Piovesan (Phd, Professor of Law at Catholic University of SP, member of the OAS Working Group related to San Salvador Protocol and former member of the UN High Level Task Force on the implementation of the right to development, Brazil)
13. Jeremy Sarkin (Professor of Law, South Africa)
14. Geoff Budlender SC (Advocate, Cape Town, South Africa)
15. Sandra Liebenberg (Professor of Law and H.F.Oppenheimer Chair in Human Rights Law, Department of Public Law, Faculty of Law, University of Stellenbosch, South Africa)
16. Benyam Dawit Mezmur (PhD; Vice-Chair (2nd) of the African Committee of Experts on the Rights and Welfare of the Child, Ethiopia)
17. Christof Heyns (Co-director: Institute for International and Comparative Law in Africa)
18. Victor Abramovich (Professor, University of Buenos Aires and National University of Lanús, Argentina)
19. Farida Shaheed (Independent Expert in the Field of Cultural Rights, Pakistan)
20. Honorable Sanji Mmasenono Monageng (Judge, International Criminal Court The Hague, The Netherlands)
21. Daniel Marchand (Professor Emeritus, Chair of Labour Law and Social Protection, Conservatoire National des Arts et Métiers, Paris, France)
22. Jose Zalaquett (Professor of Law at the Law School of the University of Chile, Former President of the Inter-American Commission on Human Rights, Chile)
23. Jenny E. Goldschmidt (Director Netherlands Institute of Human Rights (SIM), Professor in Human Right Law, The Netherlands)
24. Theo van Boven (Professor Emeritus of International Law, Maastricht University, The Netherlands)
25. Kofi Kumado (Professor of Law, Faculty of Law, University of Ghana- Legon, Ghana)
26. Belisario dos Santos (Former Sao Paulo´s Secretary of State of Justice and Defense of Citizenship, Former President of the Latin American Lawyers Association for the Defense of Human Rights, Brazil)
27. Roberto Garreton (Member of the UN Working Group on Arbitrary Detention, Former Special Rapporteur of the Commission on Human rights in the UN on human rights in DRC, Former Representative of the High Commissioner for Human Rights UN for Latin America and the Caribbean, Chile)
28. Honourable Azhar Cachalia (Judge, Supreme Court of Appeal, South Africa)
29. Honourable Elizabeth Evatt, AC (Former Chief Judge of the Family Court of Australia, Former member of the UN Human Rights Committee, Former member of the Committee on the Elimination of the Discrimination against Women,  Australia)
30. Raquel Rolnik (UN Special Repporteur on Adequate Housing, Brazil)
31. Emna Aouij (Member of the Working Group on the issue of discrimination against women in law and in practice, Tunisia)
32. Albie Sachs (South Africa)

Promotion of efficiency of constitutional and legal protection of social rights: A project funded by Ford Foundation (Subject to final approval by the IACL Executive Committee)

A- Outline and objective of the project 1

B- Countries in focus. 2

C- Main activities and phases of the project 2

D- Expected outcomes. 4

A- Outline and objective of the project

The ultimate goal of the proposed project is to cause a qualitative change in the level of expertise and engagement in the discourse and practice related to economic and social rights and their promotion through international, constitutional and statutory law. Although the protection of economic and social rights has received increasing attention in recent years, there is a clear gap in engaging, on the international and global level, constitutional law professionals, i.e. scholars of constitutional law, judges of constitutional and other courts, who focus on constitutional law issues. On the other hand, there is an increasing number of NGO’s, activists or practicing lawyers trying globally to promote social rights that often ignore recent developments of the field, or successful techniques of adjudication.

Respectively, the project has a dual objective: First, to promote awareness of economic and social rights among international and constitutional law professionals. Second, to associate the two worlds active for the protection of social rights, that is on the one hand the academic scholars and on the other the NGO’s,  in a common endeavor to accomplish concrete goals such as greater awareness surrounding the adoption and implementation of  Optional Protocol (ICESCR-OP) to the International Covenant on Economic, Social and Cultural Rights and the institutional and legal improvement of international and national mechanisms for the enforcement of Ec-Soc rights.

The project is action-oriented and seeks to support local advocacy and litigation. It includes, however, an important cognitive element: transfer of knowledge, experience and good practices in two different but complimentary axes:

·       An academic one, through the network of scholars who participate to the IACL Social Rights Group and the IACL Group of Judges, both representatives of various national jurisdictions.

·       An “activist” one. The members of the Social Rights Group will ensure the participation of representative NGO’s of their respective countries through an osmotic procedure of exchange of information and co-operation in advocacy or litigation in pilot cases.

IACL is a global network of academics and practitioners, comprising an African and an European network of constitutional lawyers. The participation to its social rights Group of scholars from Latin America, Africa, Asia and Europe guarantees not only the representation of most jurisdictions, but also –and more importantly- an effective “North-South” exchange of views and policies. Moreover, its self-governing nature ensures also that learning through doing in the course of the project will keep the project practically oriented.

B Countries in focus

The countries in focus should be representative of various jurisdictions, levels of economic development and maturity of the welfare state. The inclusion of economic and social rights in several recent constitutions (e.g., South Africa, Kenya, Finland) and the judicial evolution of the understanding of these rights  (e.g. India, Brazil, Argentina) provide a good basis for choosing these countries as a focus group. Greece is also added, in order to examine the possibility of effective implementation of social rights in environment of acute economic crisis.

The rationale of the choice is to test, evaluate and then suggest ways of promotion of the actual effectiveness of the constitutional and legal protection of social rights in the widest possible spectrum of legal and social systems.

C- Main activities and phases of the project

The duration of the project will be two years, divided in three stages. Its milestones will be three Round Tables of IACL, which will organize and evaluate the work between them.

Stage 1. The project begins with a Round Table conference of the IACL in Xi’an (China) in October 2011. This conference, with the substantive theme of the right to social security, will explore various alternatives for the implementation of social rights in social and political environments other than their typical, European birthplace.

Parallel to that, the IACL Group of Social Rights will schedule and organize the targeted interventions of advocacy and litigation. These will include a common campaign to raise awareness in key constituencies about the  merits of the Optional Protocol and one specific to each one of the focus countries. The latter could be campaigns of advocacy or litigation in pilot cases at the domestic or international level, focused on a right chosen for its importance or its special protection by the relevant domestic courts. Eventual partners to this endeavour will be representative NGO’s, preferably ones having consultative status at ECOSOC.

The blog of the Group will monitor the progress of these campaigns, but it will also be used as a platform for direct interaction between academic scholars and constitutional court and other judges, in issues related to justiciability of the related rights. Through this network of judges, a process of cross-fertilization can be facilitated so that active interest in economic and social rights becomes a source for professional pride within relevant segments of the judiciary. The central Website of IACL will monitor the whole process and associate it with other relevant activities of the Association.

Stage 2. The second Round Table will be held in 2012 in one of the Latin American focus countries, in order to evaluate the progress of the campaigns and the related theoretical work. Its main theme will be, consecutively, the justiciability of socio-economic constitutional rights.

Besides the overall evaluation of the ongoing campaigns, during this phase the Group of Social Rights will try to appraise synthetically the adjudication methods and institutional good practices with regard to the rights in focus. In this framework, the evaluation of the activities of the project will seek to identify which factors, besides the inclusion of social rights in constitutional charters, may have an influence on their effective implementation.

A questionnaire addressing these issues will circulate among the members of the Social Rights Group, in association with the Judges Group, in order to identify similar factors, at all levels:

• Legal (such as the concretization of the constitutional provision by statutory legislation, the related case-law, easy and inexpensive access to the courts)

• Institutional (establishment of a framework of social services, budgetary issues)

• Social (inequality factor, economic development, unemployment etc.)

• Societal (related activity of NGO’s, perception of social rights as genuine rights vs pure individualism, etc., knowledge of vulnerable groups about their rights.

These factors will be quantified to concrete indicator-based indexes allowing the monitoring of efficiency of specific progress in the implementation of social rights. This work will be culminated to a synthetic report and a collective volume, to be presented at the final Round Table of the project.

Stage 3.

The third Round Table will be held in Europe, preferably Geneva, in 2013. It will present the findings on the efficiency of social rights implementation, in association with the policy impacts of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.

The IACL website will host the synthetic report of the project together with a depository of all related materials.

The project ends with a three-day training course for judges. This course will diffuse the scientific and empirical findings of the project, together with other legal essential information of comparative constitutional law.

.

D- Expected outcomes

            The basic outcome of the project is to promote greater awareness for the protection of economic and social rights and their actual implementation.

            Its specific outcomes include, among others:

- specific progress in awareness amongst judges and other constitutional law professionals;

- greater awareness about the Optional Protocol, facilitating the process of adoption and eventually of implementation ; and

- delivery of demonstrable progress in the actual enjoyment of economic and social rights, in selected countries in focus through advocacy and litigation.

- elaboration of a concrete indicator-based index allowing the monitoring of efficiency in the implementation of social rights.

.

Quotas Raciales – La polémique opinion du professeur noir Nord américain Walter Williams, Un Interview par Marcelo Figueiredo

Quotas Raciales – La polémique opinion du professeur noir Nord américain Walter Williams.¹

Le Professeur Nord-américain de l´Université George Mason, dans l´État de Virginia, Walter Williams, dans l´Édition de la Revue Brésilienne VEJA, du 9 Mars 2011, a déclaré dans une entrevue polémique, mais courageuse, que les actions affirmatives nuisent les noirs, parce qu´elles renforcent les stéréotypes d´infériorité. Il a défendu la liberté économique, comme arme contre l´inégalité raciale².

Lui-même, un noir de 74 ans, se définit comme un « libertaire radical », comme les américains qui s´opposent à l´excès d´activisme de l´État, et défendent plus de liberté individuelle. Fidèle à ses idées, il est contre les actions affirmatives et les quotas raciales, et il dit que le meilleur instrument pour vaincre l´inégalité raciale est le livre Marché : « L´économie de Marché est le grand ennemi de la discrimination ».

Voyons quelques parties intéressantes de cette entrevue.

1)     Sur l´État de bienêtre social et ses bénéfices, le journaliste a demandé s´il n´ aide pas les noirs à soulager la situation de pauvreté aux jours actuels.

Il a affirmé : « Tous les économistes sont d´accord que l´offre de ce qui est subventionné diminue toujours. Il y a des années, les EUA subventionnent la désintégration familiale. Quand une adolescente pauvre tombe enceinte, elle gagne le droit de s´inscrire dans des programmes de logement pour habiter sans rien payer, el reçoit les bons-alimentation, les bons-transport et une série d´autres bénéfices. Auparavant, une jeune fille en grossesse était une honte pour la famille. Plusieurs d´elles étaient envoyées au Sud, pour vivre avec des parents. Aujourd´hui, l´État de bienêtre social favorise ce comportement. Le résultat est que dans les années de mon adolescence, de 13% à 15% des enfants noirs étaient fils de mère célibataire. À présent, elles sont 70%.

            Le salaire minimum, que les personnes considèrent une conquête pour les plus déprotégés, est une tragédie pour les pauvres. L´obligation de payer un salaire minimum à l´employé de la pompe d´essence a porté à l´automation et au self-service. Le huissier du cinéma n´existe plus, et ce n´est pas parque nous aimons trébucher dans le sombre du cinéma. C´est à cause du salaire minimum. Dans l´Afrique du Sud de l´apartheid, les grands défenseurs du…

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¹Marcelo Figueiredo, avocat, professeur de droit constitutionnel et Directeur de la Faculté de Droit de la PUC-SP, Brésil : mfigueiredo.adv@uol.com.br

²  Bien que je croie qu´il y a beaucoup de simplifications dans leurs positions

(aussi parce qu´il s´agit d´une entrevue, et pas d´une thèse académique), certaines de ses positions sont assez énergiques. À mon critère, ses leçons ne s´appliquent pas partout, où l´on trouve des réalités économiques différentes (malgré son opinion). Je ne suis pas non plus, au contraire du professeur, un enthousiaste dévoué du livre marché, au moins, pas comme lui. De toutes façons, c´est intéressant de lire ses positions, surtout au moment quand on parle de droit constitutionnel dans son application, y incluses les relations privées et horizontales entre les particuliers.

…salaire minimum étaient les syndicats racistes de blancs, qui n´acceptaient pas la filiation de noirs. Ils ne cachaient pas que le salaire minimum était le meilleur instrument pour éviter l´embauche de noirs, qui, étant moins qualifiés, étaient prêts pour travailler en gagnant moins. Le salaire minimum créait une réserve de marchés pour les blancs.

2^ème.)   ¿Les actions affirmatives et les quotas raciales n´ont-elles pas aidé à promouvoir les noirs américains?

La première fois qu´on a utilisé l´expression « action affirmative » a été pendant le mandat de Richard Nixon (1969-1974). Les noirs de cette époque avaient déjà fait des progrès extraordinaires. Un collègue a une étude qui montre que le rythme du progrès des noirs entre les décades de 40 et 60 a été plus grand qu´entre les décades de 60 et 80. Le succès des noirs ne peut pas attribué aux actions affirmatives.

3^ème. ) ¿ Les actions affirmatives ne fonctionnent pas ?

Les noirs n´ont pas besoin d´elles. Je donne un exemple. Il y a eu un temps quand il n´y avait pas des joueurs de basquet-ball  noirs dans les États-Unis. À présent, sans quota raciale, et sans action affirmative, 80% sont noirs.  ¿Pourquoi? Parce qu´ils sont d´excellents joueurs. Si les noirs auront la même capacité en mathématique où dans la science de la computation, ils envahiront ces champs d´activité. Pour cela, il suffit d´avoir d´école, bonnes écoles, grandes écoles. Il y a un aspect dans lequel les actions affirmatives sont nuisibles. Thomas Sowell, collègue économiste, a une étude excellente sur la matière. Il monte comment les noirs se portent préjudice avec la politique des quotas raciales créée par la disputée école de génie du MIT, l´une des plus prestigieuses institutions académiques des EUA. Les noirs recrutés par le MIT sont parmi les 5% meilleurs du pays en mathématique, mais malgré ça, ils ont besoin de faire des cours extras pendant quelques années. Ceci, parce que les blancs du MIT sont les meilleurs en mathématique, les 1% meilleurs du pays. Les noirs, même étant très bons, se trouvent au-dessous du niveau d´excellence de l´MIT. Mais ils pourraient très bien étudier dans d´autres institutions respectables, où ils seraient dans la liste des candidats à recteur, et sans besoin de cours spéciaux. À cause d´actions affirmatives, beaucoup de noirs sont aujourd´hui dans des positions au-dessus de leur potentiel académique. Si vous êtes en train d´apprendre à lutter box et votre premier match est avec Mike Tyson, vous êtes perdu. Vous pouvez avoir un excellent potentiel pour être boxeur, mais on ne peut pas commencer en luttant avec Tyson. Les actions affirmatives dans ce sens sont cruelles. Elles renforcent les pires stéréotypes raciaux.

4^ème.) Dans un pays comme le Brésil, où les noirs n´ont pas avancé tellement qu´aux États-Unis, ¿les actions affirmatives n´on pas de sens?

La meilleure chose que les brésiliens pourraient faire, c´est de garantir l´éducation de qualité. Des quotas raciales au Brésil, un pays qui a plus de miscibilité raciale que les EUA, sont insensées. En plus, elles forcent une identification raciale qui ne fait pas partie de la culture brésilienne. Forcer des classifications raciales, c´est un mauvais chemin. La Fondation Ford est une grande promotrice des actions affirmatives, en partant de la prémisse trompée, que la réalité défavorable aux noirs est fruit de la discrimination. Personne méconnait qu´il y a eu discrimination très lourde au passé et qu´il y en a encore, bien qu´énormément atténuée.  Mais tout n´est pas le résultat de la discrimination. Le fait qu´à peine 30% des enfants noirs vivent dans des maisons avec un père et une mère, c´est un problème, mais qui ne résulte pas de la discrimination. La différence de performance académique entre noirs et blancs est dramatique, mais elle ne vient pas de la discrimination. Le faible nombre de physiques, chimistes ou statistiques noirs aux EUA ne résulte pas de la discrimination, mais de la mauvaise formation académique qui, à son tour, n´est pas, néanmoins, produit de la discrimination raciale.

5^ème.) ¿Quel est le moyen le plus efficace pour promouvoir l´égalité raciale? Premièrement, il n´existe pas d´égalité raciale absolue, et elle n´est pas désirable. Il y a des différences entre noirs et blancs, hommes et femmes, ce n´est pas un problème. Ce qui est désirable, c´est que nous tous soyons égaux devant la loi. Nous sommes égaux devant la loi, mas différents dans la vie. Aux EUA, les juifs sont 3% de la population, mais ils gagnent 35% des prix Nobel. Peut-être qu´ils soient plus intelligents, peut-être leur culture valorise plus l´éducation, ça ne nous intéresse pas. La meilleure façon de permettre que chacun de nous – noir ou blanc, homme ou femme, brésilien ou japonais – accomplisse son potentiel, c´est le livre marché. Le livre marché est le grand ennemi de la discrimination. Mas pour avoir un livre marché qui mérite ce nom, c´est recommandé d´éliminer toute loi qui discrimine, ou qui défend de discriminer.

6^ème.) ¿Êtes-vous contre les lois qui interdisent la discrimination? Je suis un défenseur radical de la liberté individuelle. La discrimination est indésirable dans les institutions financées par l´argent du contributeur. L´Université George Manson a de l´argent publique. Par conséquence, elle ne peut pas discriminer. Une bibliothèque publique, qui reçoit de l´argent des impôts payés par les citoyens, ne peut pas discriminer. Mais le reste peut. Un club de champ, une école privée, soit-ce que ce soit, a le droit de discriminer. Je crois à la liberté d´association radicale. Les personnes doivent être livres pour s´associer comme elles veulent.

7^ème.) ¿Pour organiser le Ku Klux Klan, aussi?

Oui, pourvu qu´elles ne tuent et maltraitent pas des personnes, ça va. Le véritable test sur notre degré d´adhésion à l´idée de la liberté d´association ne survient pas quand nous acceptons que les personnes s´associent autour d´idées avec lesquelles nous sommes d´accord. Le test réel, c´est quand nous acceptons qu´elles s´associent autour d´idéaux que nous jugeons répulsifs. La même chose vaut pour la liberté d´expression. C´est facile de la défendre quand les gens disent des choses que nous jugeons positives et sensibles, mais notre compromis avec la liberté d´expression est seulement, véritablement soumis à l´épreuve, quand dans la présence de personnes qui disent des choses que nous considérons absolument répulsives.

8^ème.) ¿Exigez-vous d´être appelé « afro-américain » ?

Cette expression est une bêtise, commençant par le fait que pas tous les africains sont noirs. Un égyptien né aux États-Unis est un « afro-américain » ? L´Afrique est un continent, peuplé par des personnes différentes entre elles. Les divers peuples africains essaient se tuer mutuellement il y a des siècles. De ce point de vue, l´Afrique est identique à l´Europe, qui est aussi un continent, aussi peuplé par des peuples différents qui, eux aussi, essaient de se tuer il y a des siècles.

Racial Quotas – The polemic opinion of a black North American Professor, Walter Williams. An Interview by Marcelo Figueiredo

Racial Quotas – The polemic opinion of a black North American Professor, Walter Williams.

The North American Professor of the George Mason University, in the State of Virginia, Walter Williams, in the edition of the Brazilian Weekly Magazine VEJA, of March 9^th 2011, declared in an interview, polemic, but courageous, that affirmative action jeopardize the black, by strengthening inferiority stereotypes. He defended economic freedom as a weapon against racial inequality².

A 74 years old black, defines himself as a “radical free man”, like the Americans who oppose to the excess of activism of the State, and defend more individual freedom. Faithful to his ideas, he is against affirmative action and racial quotas, and says that the best instrument to defeat racial inequality is the free Market: “The Market economy is the great enemy of discrimination”.

Let´s see a few interesting pieces of this interview.-

1^st.) Regarding the social welfare State and its benefits, the journalist asked whether it does help the black to relieve the poverty situation nowadays.

He stated: “All the economists agree that the offer of what is subsidized falls. For years, the US have subsidized familiar disintegration. When a poor teenager becomes pregnant, she conquers the right to enroll in lodging programs to live free, receives food allowance, transport allowance and a series of other benefits. In the past, a pregnant teenager was a shame to the family. Many of them were sent to the South, to live with their parents. Today, the welfare State promotes this behavior. The result is, that in my youth, 13% to 15% of the black children were daughters of single women. Now, they are 70%.

The minimum salary, that people consider a conquest for the most unprotected, is a tragedy for the poor. The obligation to pay a minimum salary to the employee of the gas station is at the root of automation and self-service. The former usher in cinemas does not exist any longer, not because we adore to stumble in the darkness. It is because of the minimum salary. In South Africa´s apartheid, the great defenders…

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¹Marcelo Figueiredo, lawyer, Professor of constitutional law and Director of the Law School at PUC-SP, Brazil: mfigueiredo.adv@uol.com.br

²Although I believe that there are many simplifications in their positions (also, because it is an interview, not an academic thesis), some of his positions are rather scathing. In my opinion, his lessons do not apply everywhere, with different economic realities (in spite of his opinion). Also, I´m not, differently from the professor, a strong enthusiast of the free market, at least, not like he is. Anywhere, it is interesting to read his positions, above all in a moment when constitutional law in its application deals with private and horizontal relations among particulars.

… of the minimum salary were the racist unions of the white, who did not accept the  black. They did not hide the fact that the minimum salary was the best instrument to avoid hiring the black, who being less qualified, were ready to work for less money. The minimum salary created a markets reserve for the white.

2^nd.) Did affirmative action and racial quotas help, or not, to promote American blacks?

The first time when the expression “affirmative action” was used, was during the Richard Nixon government (1969-1974). At that time, the black had already made awesome progress. A colleague of mine has a study that shows that the rhythm of progress of the black from the forties to the sixties, was faster than from the sixties to the eighties. The black´s success cannot be attributed to affirmative action.

3^rd.)  Affirmative action does not work?

The black do not need it. I give an example. There was a time when there did not exist black basketball players in the United States. Today, without racial quota, or affirmative action, 80% are black. Why? Because, they are excellent players. If the black had the same ability in mathematics or computer science, there would be an invasion by them in these areas. For this to be possible, school, good schools, large schools are enough. There is an aspect in which affirmative actions are negative. Thomas Sowell, a colleague of mine, economist, has an excellent study on the subject. It shows how the black are jeopardized by the racial quotas policy created by the so desired MIT engineering school, one of the most prestigious academic institutions in the US. The black recruited by the MIT are among the 5% best of the country in mathematics, yet, they have to follow extra courses for a few years. This happens because the white in the MIT are at the top in mathematics, the 1% best in the country. The black, even being very good, are below the excellence level of the MIT. But they could perfectly study in other respectable institutions, where they would be in the list of applicants to rector, and without the need of special courses. Because of affirmative action, many black are today in a position above their academic potential. If you are learning box and your first match is with Mike Tyson, you are defeated. You may have an excellent potential to be a box player, but you can´t start by fighting against Tyson. In this sense, affirmative action is cruel. It reinforces the worst elemental racial stereotypes.

4^th.) In a country like Brazil, where the black didn´t progress as in the States, affirmative action has no sense?

The best thing the Brazilians could do is to guarantee quality education. Racial quotas in Brazil, a country with a greater mixture of races than the US, are absurd. Moreover, they force a racial identification that is not part of the Brazilian culture. To force racial classifications is to follow the wrong way. The Ford Foundation is a big promoter of affirmative action, because it is based on the wrong premise that the unfavorable reality of the black is the consequence of discrimination. Everybody knows that there was heavy discrimination in the past, and there still is, although extremely attenuated. But all is not the result of discrimination. The fact that only 30% of the black children live in houses with a father and a mother is a problem, but it doesn´t result from discrimination. The difference in academic performance between the black and the white is dramatic, but it does not come from discrimination. The low number of black physicists, chemists or statistics in the US is not a result of discrimination, but of the poor academic formation, which, on its turn, neither is the product of racial discrimination.

5^th.) What is the most effective means to promote racial equality?

First, neither is there absolute racial equality, nor is it desirable. There are differences between the black and the white, men and women, and this is not a problem. What we want, is that we all be equal for the law. We are equal for the law, but different in life. In the US, the Jew are 3% of the population, but they win 35% of the Nobel prizes. May be they are more intelligent, may be their culture values more education, this is not relevant. The best way to enable each one of us – black or white, man or woman, Brazilian or Japanese – to attain his/her potential, is the free market. The free market is the big enemy of discrimination. But, in order to have a free market that deserves this name, it is advisable to eliminate every law that discriminates, or that forbids to discriminate.

6^th.) Are you against6 the laws that forbid discrimination? I am a radical defender of individual freedom. Discrimination is undesirable in the institutions funded by the taxpayer´s money. The George Manson University has public money. Therefore, it may not discriminate. A public library, that receives money of taxes paid by the citizens, may not discriminate. But the others may. A country club, a private school, no matter what it is, has the right to discriminate. I believe in the radical association freedom. People have to be free to associate themselves the way they want.

7^th.) Also to reorganize the Ku Klux Klan?

Yes, provided that they do not kill and injure people, all right. The real test of our degree of adhesion to the idea of freedom to associate is not when we accept that people associate around ideas with which we agree. The real test is when we accept that they associate around ideals we deem repulsive. The same is true for the freedom to express oneself. It is easy to defend it when people are saying things we deem positive and sensible, but our commitment with the freedom to express is only tested when we face people who say things that we consider absolutely disgusting.

8^th.) Do you require people to call you an ”Afro-American” ?

This expression is stupid, beginning with the fact that not all the Africans are black. An Egyptian born in the US is an “Afro-American” ? Africa is a continent, inhabited by persons who are different among themselves. The various African peoples have been trying to kill each other, for centuries. In this, Africa is identical to Europe, which is also a continent, and is also inhabited by different peoples, who have also been trying to kill each other, for centuries.