The role of Social movements in the supervision of implementation of Judgements

Photo: Polybert49

The results of the past elections in the USA might be interpreted through the lens of the doctrine of eternal recurrence. This entails looking at the world out there as a repetition of a pattern that emerged during the Reagan and Thatcher administration and today is threatening the social order. Such outcome would have been different if Bernie Sanders had been elected. However, this is not the case. Such recurrence could bring in the next ten years a society full of risks and new types of conflicts, therefore, a new strategy that might include new actors, solutions and the creation of opportunities through redistributive justice is urgently needed.

The debate of the justiciability of Economic, Social and Cultural Rights (ESCR) is no longer about its recognition since many Courts around the world have been issuing sentences granting protection to millions of people around the world. The debate today is different. The debate is about its implementation, its enforceability. To put it simply, Court decisions on ESCR are not being implemented by States. This lack of compliance by State actors is not only threatening the legitimacy of Courts but also is denying the opportunity to millions of victims of violations of ESCR to obtain some type of protection as well as reparation.

In Colombia, for instance, thousands of children have died in the last years due to malnutrition. Many of these children are vulnerable and in need of special protection, many of them also belong to special groups protected by the State such as indigenous people. Last August the Constitutional Court of Colombia issued Judgement T-466-16 ordering different remedies to state institutions and structuring a timetable for the government so that it might provide a robust solution to this crisis. This timetable entails that by August 2017, public authorities must adopt measures to solve the crisis of food and healthcare affecting children. At the same time, the Court asked the authorities to report back their activities and results achieved in order to guarantee the rights of the children. Participation and consultation processes must be integrated into the plans and strategies adopted, and finally, every eight month the Court will be verifying the solutions implemented in relation to the structural situations affecting the dignity of this social group.

According to Rodríguez Garavito (2014) among the factors that influence the implementation in domestic ESCR cases we might find the legitimacy and strength of the judiciary, institutional capacity, costs of implementation, size of litigant group and especially social movements surrounding litigation. It is very important to highlight that Judgement T-466-16 have included some elements in order to ensure the monitoring of the implementation process such as the retention of monitoring jurisdiction by the Court and the use of indicators to measure compliance, however, what is lacking at this moment is the use of expert committees or social groups that could have a strong role in the monitoring process. In decision T-025 de 2004 (internally displaced population in Colombia), for instance one of the factors that influenced the successful implementation of remedies issued by the Court was the role that the UN Refugee Agency as well as other NGOs and civil society organizations played in the monitoring process. A similar strategy was implemented in India in the case People´s Union for Civil Liberties v. Union of India & Others where the Supreme Court created the role of Commissioners who were not only in charge of monitoring complaints and problems during the implementation process but also this group was also in charge of the coordination process among different stakeholders. Thanks to this strategy the Supreme Court of India was able to generate some social change.

New dislocations will be emerging due to the separation of the economic and the social and new social reactions will be consolidated.

 

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