solving the problem of ( non)compliance with esc rights orders

CaveatsCan have impact without implementation and

implementation without impact Symbolic effects (Cesar) Empowering/mobilizing, other indirect effects Winning by losing (Odindo)

We have a responsibility to think of both – including possible perverse systemic effects – but that’s not the issue here

A lot of idiosyncrasies; a few regularities

A strong oversimplification, an abstract discussion

A thought experiment – feel free to question

Option #1

Basic concept

Compliance/implementationImportant: perceived

costs

Basic concept

Non-compliance

Costs on whom? Private commercial enterprises

pharmaceutical companies, mining companies, individual physicians, teachers, unions, private school administrators, soft drink bottling companies, public transportation enterprises, and more

These raise somewhat different issues

Politicians not often the targets of litigation, but can be – e.g.,

Colombia, Interamerican Court of HR

Bureaucrats state actors who respond, more or less, to politicians

Judges

Costs on whom? Private commercial enterprises

pharmaceutical companies, mining companies, individual physicians, teachers, unions, private school administrators, soft drink bottling companies, public transportation enterprises, and more

These raise somewhat different issues

Politicians not often the targets of litigation, but can be – e.g.,

Colombia, Interamerican Court of HR

Bureaucrats state actors who respond, more or less, to politicians

Judges

What costs?Three dimensions on both sides of the scale:

What costs?Three dimensions on both sides of the scale:

What costs?Three dimensions on both sides of the scale:

What costs?Three dimensions on both sides of the scale:

What costs?Three dimensions on both sides of the scale:

Scope of the order, balance of costs, and some additional variables

Collective action problems

Scope of the order, balance of costs, and some additional variables

Litigant resource problems

Scope of the order, balance of costs, and some additional variables

The value of CSOs

Scope of the order, balance of costs, and some additional variables

The role of civ/pol rights

Scope of the order, balance of costs, and some additional variables

Institutional variables: Precedent

Scope of the order, balance of costs, and some additional variables

The role of POSITIVE affect

Scope of the order, balance of costs, and some additional variables

The role of NEGATIVEaffect

Add one other dimension to CC

Scope of the order

State structure needed

Absent

Present

Add one other dimension to CC

Scope of the order

State structure needed

Absent

Present

Cost of compliance

Special surgeries in Brz

Medications (Brz)

Sparks (sec. tenure in pub. Hsg)

Health Care reform in Colombia

Right to foodHomelessness in Canada

Displaced in Colombia

Minimum wage in Egypt

Strategies to keep CC< CD

General: Viviana: build implementation/compliance into

the litigation strategyThink about the specifics: what is the goal, what are

the structures, who are the actorsTailor demands to available resources

Some things are not within our control, but how we intersect with them is:Political context vs framing the caseState structures vs goal of the litigationNegative affect vs incremental strategyHostile judges vs negotiation within litigation

Use the litigation process to lower the cost of

complianceUse different strategies to limit the costs without limiting

the scope of the beneficiaries: Financial cost:

Use deliberation to keep remedies realistic, draw on existing structures (Anne Koch)

Select and target existing state infrastructure (Sparks) Use regulation as much as direct provision (JM Cepeda) Develop efficient technical solutions through hearing

process Political cost:

Frame the case in a way that appeals broadly to the public (e.g., abortion vs maternal mortality)

Require public reason-giving by the authority in question Affective cost:

Choose your leading cases with care (good cases make bad law?)

Put beautiful children in your videos

Raise the cost of non-compliance through the

litigation process Information is key to both affective and political costs

Request reports, expert investigations, data gathering Generate indicators Request public hearings at all stages

Use the litigation as a mobilization tool Use every stage of the litigation as a mobilizing event

(Kenya) Use the case to highlight inconsistencies

Ask the court to develop claimant capacity: Set up committees with public support Incorporate claimants into oversight committees Use public funds to amplify their voices, through

ethnography and public hearings

Change the context to raise the cost of non-compliance

Create alliances: Varun G - India; Victor A - working with domestic

actors who can “domesticate” int’l judgments Point out how interests coincide: homelessness –

mental health, substance abuse, affordable housing, poverty, indigenous groups

Find bureaucrats who are frustrated because they can’t do their job, technocrats who think current policy is wrong

Use public education campaigns to change the affect value of a group or claim

Work on developing institutional capacity and mechanisms (CEJIL and CELS)

ConclusionCompliance/implementation has to be part of the

initial planning

How much you will need to invest depends on the case and what you’re trying to accomplish – lots of moving parts, different cases have different needs, no silver bullets, no poison pills

Think especially about whose behavior you’re trying to modify, and what costs they are exposed to: One thing to change the behavior of abusive

husbands or bosses, another the behavior of public officials

Public officials and private actors have different vulnerabilities