January 3, 2017

THE ROLE OF SOCIAL

MOVEMENTS IN THE
SUPERVISION OF
IMPLEMENTATION OF
JUDGEMENTS
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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PUBLISHED BY RODOLFO GUTIERREZ SILVA

Lecturer in Law and Policy Advisor. -Solid experience in Research, University teaching and
Publications that have been translated into several languages. -Work experience in 10 countries Rodolfo
lectures at several universities in Latin America and Europe and has provided Research, Training and
Technical Assistance on the design, implementation, monitoring and evaluation of Social and Public
Policy from a Human Rights perspective to Public Authorities (Public servants, Officials and
Government Departments), International NGOs and IGOs.View all posts by Rodolfo Gutierrez Silva