Strategic Litigation
Strategic Litigation before the Human Rights Committee
The GI-ESCR is engaged in strategic litigation under the International Covenant on Civil and Political Rights (ICCPR) using the principle of indivisibility. The strategy here is to open additional avenues for ESC rights redress. This is work that began in 2005 by GI-ESCR staff while at the Centre on Housing Rights and Evictions (COHRE), where we were able to get the Human Rights Committee to condemn forced eviction as a violation of the ICCPR (Kenya 2005). A key goal is to increasingly open the ICCPR as a took for enforcing aspects of social rights, particularly given the large number of States Parties to the ICCPR’s Optional Protocol allowing for litigation of Covenant rights.
In 2010, we did the same with respect to denial of access to water and sanitation (Israel 2010) as well as elaborating upon the prohibition of forced eviction, which was found to rise to cruel, inhuman or degrading treatment.
Now, with those avenues for ESC rights redress expanded under the ICCPR, the GI-ESCR filed an individual complaint against Bulgaria to prevent the forced eviction of a Roma community in Sofia. This case involves a Roma community that has existed for over seventy years and faced imminent forced eviction in July 2011 to make way for so-called development. The impoverished community was not consulted and was not provided alternative housing.
This resulted, in 2011, with the Human Rights Committee issuing its first ever temporary injunction, under its Interim Measures procedure, to prevent a forced eviction. In 2012, it also used the Interim Measures procedure to order the reconnection of water supply which had been disconnected in an attempt to forced the community to leave their homes.
In 2012, the Human Rights Committee issued its landmark decision in the case of Liliana Naidenova et al. v. Bulgaria, in which the Committee issued a permanent injunction preventing the forced eviction of the Dobri Jeliazkov community in Sofia, Bulgaria. The Committee ordered the authorities not to evict the community until they have agreed upon alternative housing.
According to Bret Thiele, Co-Executive Director of the GI-ESCR, “The use of Interim Measures to not only prevent forced evictions, but also to order positive measures such as the reestablishment of water supply, is a very welcomed development under the International Covenant on Civil and Political Rights.”
In its final decision on the merits, the Committee also stated that this decision applied to similar situations, thereby providing broader systemic impact across Bulgaria.
Equal Opportunities Association Initiative said “We consider the decision as a great success and hope that it will prevent any further threats for eviction before securing of alternative housing for the community. ”
The Complaint effectively equalized the power dynamics between the municipality and community. The community was able to negotiate the provision of alternative housing, which was finalized in 2014.
The case was also used by others in Bulgaria to attain a similar judgement.
For further information, including case documents and the Committee’s decision, see HERE.
The Parallel Reports and Concluding Observations related to this work, Kenya 2005 and Israel 2010 respectively, are available below.
Kenya Concluding Observations 2005
Israel Concluding Observations 2010
COMMENTS:
“I am a Roma from Bulgaria and a human rights master’s student at the University of Essex, UK. I read the press-release on winning the case of 2011 Roma evictions in Sofia before the Human Rights Committee and decided immediately to send you a note. Congratulations to you and your team for wining the case! I hope you will continue working on Roma issues and cooperate with organizations working on Roma rights issues. Thank you for the great efforts and work!”
- Angel Ivanov, Human Rights Lawyer, Bulgaria
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Strategic Litigation in Kenya:
Bringing International Human Rights into the Domestic Legal Framework
Kenya: Defending ESC Rights, the Right to Development, and the Environment
The Global Initiative for Economic, Social and Cultural Rights (GI-ESCR) has joined with the Center for International Environment Law (CIEL) to intervene as amicus curiae (“friend of the court”) in support of a case lead by the Kenyan organization Centre for Minority Rights in Development (CEMIRIDE) and SAVE Lamu, a grassroots organization of those living in the Lamu coastal area. The case involves a large “development” project in Lamu, Kenya that would result in the forced eviction of several communities and environmental destruction of coastal areas and a UNESCO World Heritage site.
The GI-ESCR and CIEL were brought into the case through the ESCR-Net Adjudication Working Group.
The amicus intervention argues that the project would violate social rights, including the human rights to housing, water, sanitation, food, education, and health, as well as the right to development and environmental law. It also calls for the free, active and meaningful participation of the effected communities and their access to all relevant information. The amicus relies on international law in its own right as well as a means to interpret the Constitution of the Republic of Kenya.
A copy of the GI-ESCR and CIEL amicus brief can be found HERE.
A copy of the CEMIRIDE petition to the court can be found HERE.
Kenyan Business Daily article on the case HERE.
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Garissa case: Remedies for Forced Eviction in Kenya
The GI-ESCR intervened at the request of Haki Jamii, a Nairobi based NGO, in a recent forced eviction case in Kenya. Working closely with the affected community and Haki Jamii, the GI-ESCR took the lead in drafting an amicus curiae intervention aimed at informing the new Constitution of Kenya by bringing in international human rights standards as well as comparative law from South Africa. The amicus curiae brief was drafted by the GI-ESCR on behalf of the ESCR-Net Adjudication Working Group’s Strategic Litigation Initiative and was joined by the Socio-Economic Rights Institute (SERI), the Community Law Centre (CLC), the Centre for Economic and Social Rights (CESR), the Centre for Equality Rights in Accommodation (CERA) and the Social Rights Advocacy Centre (SRAC) as well as Malcolm Langford, Co-Coordinator of the ESCR-Net Adjudication Working Group and Director of the Socio-Economic Rights Programme (Norwegian Centre for Human Rights, University of Oslo).
In a landmark ruling, the High Court relied on the amicus intervention and read international human rights standards into the understanding of the Constitution of Kenya and ordered that the forcibly evicted community be returned to their lands, have their homes rebuilt and be compensated for their losses. The court also awarded the victims 224.6 million Kenyan Shillings (about US$2,660,000).
“We want to most sincerely thank you for the critical support we received which significantly influenced the decision. Your input was particularly invaluable because as you can see the Court relied heavily on the international covenants and international law principles especially with regard to what constitutes forced evictions, the need for restitution etc. We are working on enforcement and once we have finalized the preliminaries we shall get back to you.”
-Odindo Opiata, Haki Jamii
For an analysis of the case see Kenya Law Reports
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Human Rights Committee addresses housing, water, sanitation and access to land in Palestine and Israel
The Global Initiative for Economic, Social and Cultural Rights (GI-ESCR) welcomes the Concluding Observations on Israel released by the Human Rights Committee today. Relying on the Parallel Report submitted by the Global Initiative for Economic, Social and Cultural Rights, the Human Rights Committee condemned violations of rights related to housing, water, sanitation and access to land. The relevant Concluding Observations also relied on a complementary Parallel Report from Al Haq, particularly regarding access to natural resources and the right to self-determination. The GI-ESCR and Al Haq coordinated their advocacy before the Committee.
The Concluding Observations reaffirmed extra-territorial obligations under the International Covenant on Civil and Political Rights (ICCPR) as well as that violations of certain aspects of social rights amount to violations of rights under the ICCPR. It also took a new look at denial of access to land as violating the Covenant.
Bret Thiele, Co-Executive Director of the GI-ESCR, said that “While these Concluding Observations form part of our ongoing advocacy dealing with violations of rights to housing, water, sanitation, food and access to land in Palestine and Israel, this work also fits into our broader strategy of opening additional avenues for enforcement of social rights. By effectively using the principle of indivisibility, interdependence and interrelatedness of all human rights, we hope that advocates now see the International Covenant on Civil and Political Rights as a tool to enforce certain aspects of social rights, particularly since the Individual Complaint procedure under the ICCPR is open to 115 countries.” Thiele added that “We have already used the results of similar foundational work to successfully use the Individual Complaint mechanism to enforce the prohibition on forced eviction as well as to get water supply reestablished, and we hope that other civil society organizations consider this additional option for enforcement of social rights.”
Regarding housing, the Committee again condemned punitive house demolitions as well as discriminatory forced evictions undertaken in the context of Israel’s planning and zoning regime, finding that these practices violate Articles 7, 17 and 26 of the Covenant. The forced eviction and forced relocation of Bedouin communities in both the West Bank and the Negev region of Israel was also condemned, including for not taking into account these communities’ traditional pastoral economy, social fabric, and rural way of life, which also rise to violations of Article 27. The Committee called for an immediate halt to forced evictions and house demolitions and effective remedies to victims of destruction of property, forced eviction and forcible transfer. It also called on Israel to ensure the right of participation of the Bedouin communities in any planning that affects them.
On denial of access to water and sanitation, the Committee expressed its concern about the restricted access of Bedouins living in unrecognized and recently-recognized villages in the Negev to basic services, including adequate housing, water and sanitation, healthcare, education and public transportation. It also condemned the blockade of Gaza, in particular its impact on access to food, health, electricity, water and sanitation can called on the immediate lifting of the blockade, as well as the denial of access to water by Palestinians in the West Bank. The Committee reaffirmed that denial of access to food, water and sanitation in these contexts rose to violations of Articles 6, 7 and 26 of the Covenant.
In a new development, the Committee also considered denial of access to land as rising to violations of the ICCPR, including Articles 1, 12 and 17. In doing so, it looked both at the Bedouin’s right to ancestral land as well as confiscation of Palestinian land and denial of access to agricultural land by Palestinians in the West Bank including East Jerusalem. The Committee called on Israel to ensure and facilitate non-discriminatory access of Palestinians to land, natural resources, water and sanitation; to ensure that Palestinians have full access to their lands and livelihood; and to put an end to the practice of expropriation of land including for Israeli settlements and the Separation Wall. It also called for the withdrawal of all settlers from the West Bank including East Jerusalem.
The task now is to continue advocacy in Israel, Palestine, Geneva and elsewhere to ensure implementation of these Concluding Observations.
Transcript of Human Rights Committee questioning of Israel is available HERE.
Global Initiative for Economic, Social and Cultural Rights Parallel Report is available HERE.
Global Initiative for Economic, Social and Cultural Rights Parallel Report for the List of Issues is available HERE.
Human Rights Committee Concluding Observations are available HERE.
Al Haq Parallel Report is available HERE.
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Complaint brought to Human Rights Committee to enforce Extra-Territorial Obligation to Protect ICCPR abroad
Beginning in 2012, the Global Initiative laid the foundation for strategic litigation under the International Covenant on Civil and Political Rights (ICCPR) dealing with extra-territorial obligations (ETOs) by successfully using the periodic reporting process to ensure the recognition of extra-territorial obligations under the ICCPR. The resulting Concluding Observations of the Human Rights Committee represent the clearest articulation of extra-territorial human rights obligations under the International Covenant on Civil and Political Rights to date, and also reinforce the principle of indivisibility.
Building upon this outcome, the Global Initiative filed an Individual Complaint against Canada for failing to regulate two Canadian transnational corporations for human rights violations abroad and for failing to provide accountability mechanisms and remedies to the victims of those violations. The case deals with two Canadian corporations complicit in the construction, marketing and selling of Israeli settlements in occupied Palestine and is the first of its kind dealing with the extra-territorial application of the ICCPR in the context of corporate accountability.
The recognition by the Human Rights Committee in 2012 that forced eviction from land when that land is used for livelihoods was crucial to support the Individual Complaint against Canada, as the forced evictions at issue were not from the villagers’ actual homes from from agricultural lands associated with their homes and used for family livelihoods.
In 2014, the case was officially registered by the Human Rights Committee and the Government of Canada submitted its initial response. The Global Initiative and local partners then submitted a detailed brief in response to Canada’s submission. The case is now pending before the Committee.
