The human rights movement has struggled for many years to monitor states’ compliance with the obligation to fulfill economic and social rights. Similarly, building the evidence in economic and social rights litigation, in particular litigation seeking to enforce states’ positive obligations, has proven a challenging task for both litigators and the courts as it involves progressive duties dependent on a state’s available resources, thus demanding the use of tools and methods different from those required in conventional human rights practice.
Building evidence in structural litigation (litigation aimed at policy reform) is necessarily an interdisciplinary task that should be carefully planned from the inception of the strategic litigation cycle. This entails the use of a variety of methods, including budget analysis and social policy monitoring tools and indicators. Similarly, the multifaceted impact of judicial decisions concerning the realization of economic and social rights requires the courts to evaluate evidence related to policy outcomes, policy implementation efforts and the adequacy of resources deployed to address or correct the violations subject to the courts’ scrutiny.
In the context of CESR’s recent international seminar “New Horizons in Economic and Social Rights monitoring” (22-23 March 2012) international and national litigators meeting in Madrid underscored the importance of better integrating monitoring tools and quantitative measurement in adjudication strategies. The presentations highlighted the mutually reinforcing dynamic between evolving methods of monitoring, statistical analysis, budget monitoring and emerging forms of social rights adjudication. Bruce Porter, director of the Social Rights Advocacy Center (SRAC) in Canada, highlighted that "what is most critical at this juncture, is that the two worlds of quantitative measurement and contextual, transformative rights claiming be better integrated through enhanced collaboration and mutual support" while at the same time ensuring that the voices of those with technical monitoring expertise do not displace those with "experiential expertise" - the rights claimants and the social movements working with them.
CESR’s Evidence project has been designed to contribute to these efforts.
In collaboration with partner organizations involved in judicial and non-judicial adjudication strategies, this project identifies key opportunities in the litigation cycle in which empirical evidence and quantitative indicators and benchmarks can be deployed to strengthen evidence of economic and social rights violations. It also seeks to support efforts to monitor the implementation of remedies and corrective measures resulting from judicial decisions aimed at correcting systemic policy problems. The project will foster synergies between social rights litigators and monitoring and evaluation experts from the field of development and economics, to address challenges in evidence and policy implementation in the context of practical cases. Through expert witness opinion, amicus briefs and advocacy pieces the Evidence Project will develop a body of work and knowledge to support adjudication challenging structural policy problems with more effective monitoring tools.