Myth or Lived Reality: On the (In)Effectiveness of Human Rights 9462654468, 9789462654464

Table of contents :
Acknowledgements
Introduction
Contents
Editors and Contributors
Abbreviations
1 The (In)Effectiveness of Human Rights: Mapping Existing Research—An Introduction
1.1 Introduction
1.2 Effectiveness
1.2.1 The Effectiveness of International Law: Institutions and Processes
1.2.2 The Effectiveness of Human Rights Monitoring and Implementation at the Domestic Level
1.2.3 Human Rights at the Individual Level: Individual Experiences and Key Actors
1.3 Outline of the Book
References
Part I The Effectiveness of International Law: Institutions and Processes
2 Effectiveness of the ICESCR Complaint Mechanism—An Analysis and Discussion of the Spanish Housing Rights Cases
2.1 Introduction
2.2 Concepts and Theoretical Framework
2.3 Background of the Spanish Housing Rights Crisis: Evictions and Progressive Realisation of the Right to Adequate Housing
2.4 The ICESCR Complaints Procedure
2.5 Overview of Spanish Housing Rights Cases Under the Optional Protocol
2.6 Analysis of the Nature of the Complaints Submitted
2.7 Analysis of the Examination of Complaints by the Committee and the (In)Admissibility of Decisions and Views Adopted
2.7.1 Analysis of Proportionality of the Eviction in the Judicial Proceedings
2.7.2 Adequate Alternative Housing in Case of Necessity
2.7.3 Interim Measures and Evictions
2.7.4 Adequate Notice in Mortgage Enforcement Procedures
2.8 Reception of the Views in Spain (Impact)
2.9 What Type of Action Has Been Taken to Follow Up on the Views of the Committee in Spain? (Effectiveness)
2.9.1 The Executive
2.9.2 The Judiciary
2.9.3 The Legislature
2.10 Conclusion
References
3 Effective Distance: A Polish Dissident’s Encounter with Amnesty International and Its Western-Born Rules
3.1 Introduction
3.2 Amnesty International: The Movement and Its Rules
3.2.1 The Individual and His Goals
3.2.2 A Clash of Worlds
3.2.3 Not Alone: Beyond the Individual
3.3 Conclusion
References
Part II The Effectiveness of Human Rights Monitoring and Implementation at the Domestic Level
4 Does the Right to Education Lead to Better Primary Education Outcomes?
4.1 Introduction
4.2 The Right to Education Protection Index
4.2.1 Minimum Core Obligation #1: Education as a Human Right
4.2.2 Minimum Core Obligation #2: Non-discrimination in Accessing Education
4.2.3 Minimum Core Obligation #3: Free Education
4.2.4 Minimum Core Obligation #4: Compulsory Education
4.2.5 Minimum Core Obligation #5: Free Choice of Education
4.2.6 Minimum Core Obligation #6: National Education Strategy
4.2.7 Minimum Core Obligation #7: The Goals of Education
4.2.8 Construction of the Index
4.3 Descriptive Results
4.4 Regression Method and Analysis
4.4.1 Description of Variables
4.4.2 Results
4.5 Discussion
References
5 Paving the Way for Effective Socio-economic Rights? The Domestic Enforcement of the European Social Charter System in Light of Recent Judicial Practice
5.1 Introduction
5.2 Greece
5.2.1 The Status of the European Social Charter as an International Human Rights Treaty in the Greek Legal Order
5.2.2 Contesting Austerity Measures by Means of the 1961 ESC Before Greek First Instance Civil Courts
5.3 Spain
5.3.1 The Status of the European Social Charter as an International Human Rights Treaty in the Spanish Legal Order
5.3.2 Contesting Austerity Measures by Means of the 1961 ESC Before Spanish First and Second Instance Courts
5.4 Synthesis
5.5 Conclusion
References
6 How Human Rights Cross-Pollinate and Take Root: Local Governments and Refugees in Turkey
6.1 Introduction
6.2 Syrian Refugees, Local Governments, and Legal Ambiguity
6.3 The Effectiveness of Human Rights: From Formalist to Sociological Perspectives
6.4 Grounded Theory Approach and Methodology
6.5 Factors Facilitating the Cross-Pollination and Taking Root of Human Rights as a Norm in Local Governance
6.5.1 Institutional Capacity in Local Governments
6.5.2 Networks and the Dissemination of the Developing Norm that Local Governments Can/Should Improve Refugee Rights
6.5.3 Coordination and Cooperation Between Local Governments and Other Actors
6.5.4 Political Will
6.6 Conclusion
References
Part III Human Rights at the Individual Level: Individual Experiences and Key Actors
7 Child Participation as the Holy Grail: Effective and Meaningful Participation in Judicial Proceedings?
7.1 Introduction
7.2 International Children’s Rights: The Right to Be Heard
7.3 Critical Analysis of the Right to Be Heard
7.4 Two Case Studies from The Netherlands: Children in Migration and Children in Youth Care
7.4.1 Participation of Children in Asylum Procedures
7.4.2 Participation of Children Involved in Voluntary Youth Care
7.5 Final Reflections: Participation at the Crossroads
References
8 Human Rights Localisation and Individual Agency: From ‘Hobby of the Few’ to the Few Behind the Hobby
8.1 Introduction
8.2 Human Rights Effectiveness and the Role of Local Authorities: The Story Thus Far
8.3 The Missing Piece: Conceptualising the Individual Agency of Human Rights Users
8.4 Methodology
8.5 The Individual Agency of Municipal Officials in Improving the Effectiveness of Human Rights
8.5.1 Individuals’ Background
8.5.2 Individuals’ Motivations
8.5.3 Interactions Between Individuals
8.6 Discussion
8.7 Conclusion and Future Research
References
Annex: Report of the NNHRR ‘Toogdag’ 2019

Citation preview

Myth or Lived Reality On the (In)Effectiveness of Human Rights

Claire Boost Andrea Broderick Fons Coomans Roland Moerland Editors

Myth or Lived Reality

Claire Boost Andrea Broderick Fons Coomans Roland Moerland •

•

•

Editors

Myth or Lived Reality On the (In)Effectiveness of Human Rights

123

Editors Claire Boost Faculty of Law Maastricht University Maastricht, The Netherlands

Andrea Broderick Faculty of Law Maastricht University Maastricht, The Netherlands

Fons Coomans Faculty of Law Maastricht University Maastricht, The Netherlands

Roland Moerland Faculty of Law Maastricht University Maastricht, The Netherlands

ISBN 978-94-6265-446-4 ISBN 978-94-6265-447-1 https://doi.org/10.1007/978-94-6265-447-1

(eBook)

Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the authors 2021 Chapters “How Human Rights Cross-Pollinate and Take Root: Local Governments and Refugees in Turkey” and “Human Rights Localisation and Individual Agency: From ‘Hobby of the Few’ to the Few Behind the Hobby” are licensed under the terms of the Creative Commons Attribution 4.0 International license (http://creativecommons.org/licenses/by/4.0/). For further details see license information in the chapters. No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This T.M.C. ASSER PRESS imprint is published by the registered company Springer-Verlag GmbH, DE part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

Acknowledgements

As editors, we would firstly like to acknowledge the various scholars who contributed to making this book a reality. We would also like to acknowledge the many colleagues and friends in the Netherlands Network for Human Rights Research who participated in the Annual Research Day of the Network, held at Maastricht University. Without their valuable contributions to that event, this book would not have been possible in the first place. We would particularly like to acknowledge the financial support provided by the Network and the assistance in that regard of Yvonne Donders and León Castellanos-Jankiewicz on behalf of the Network. In addition, we would like to thank the academic and administrative staff at Maastricht University, in particular Elke Hundhausen, whose valuable assistance made the Annual Research Day run smoothly. Finally, we would like to extend our gratitude to the student assistants, Caroline De Schrijver and Sara Mattison, who invested their time in the events of the Annual Research Day and wrote an informative report following the event. Our sincere thanks also go to Mireille Kastermans for proofreading the volume and Maria Marin Rodrigues for assisting us in formatting the book.

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Introduction

The adoption by the United Nations of the Universal Declaration of Human Rights in 1948 marked the beginning of the modern system of protection of human rights at the international level. Since that date, much has been said about the effectiveness or, rather, the ineffectiveness of human rights. Indeed, the notion of the ‘effectiveness’ of human rights has long been the subject of sustained and fierce (academic) debate throughout the international human rights community. The perceived (in)effectiveness of human rights relates not only to institutional challenges at the international level but also to national implementation mechanisms and processes. Questions have also been raised regarding whether the individual benefits from the normative guarantees contained in human rights law, and whether human rights themselves, can be effectively translated into practice in a meaningful way. Indeed, the first chapter of this book by Suzanne Egan draws attention to the fact that claims regarding the ineffectiveness of the human rights regime at the international and regional levels, and the lack of domestic impact, are heavily disputed by certain scholars. This edited volume stems from the proceedings that occurred during the 2019 Annual Research Day (Toogdag) of the Netherlands Network for Human Rights Research, which took place at Maastricht University in June 2019. The Toogdag was organised jointly by the editors of this volume, who seized the opportunity to ask the various scholars who contributed to the conference to turn their presentations into a collective volume. This volume presents the main tensions that lie at the heart of the opposing views about the effectiveness or ineffectiveness of human rights. The contributions to this book add novel perspectives to the existing literature in the field, employing a variety of methods, as will be outlined below. Ultimately, this book seeks to answer fundamental questions stemming from the notion of ‘effectiveness’. Those questions include: what does the essence of ‘effectiveness’ really mean in connection to human rights? what criteria or indicators can be used to measure effectiveness in that context? and, what does effective human rights activism entail? Furthermore, how can rights as legal constructs be translated into better outcomes?

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Introduction

The collection of academic contributions presented in this volume addresses the effectiveness of human rights institutions and processes in a range of settings. To varying degrees, the book extends in its material scope to institutions and processes in the United Nations (UN), the Council of Europe and at the national level. The findings of the contributions incorporated in this book are intended to contribute to a better understanding of, not only the authority, legitimacy and effectiveness of international (quasi-judicial) bodies in the field of human rights, but also of global non-governmental organisations and domestic actors. Crucial in determining effectiveness or ineffectiveness of human rights are the goals that have been set by various actors and stakeholders, which serve as benchmarks for assessing effectiveness. These goals can be the protection or fulfillment of rights, achievement of a policy objective, or a higher degree of human rights awareness among the general public. The specific goal would also depend on who the actor is that has set the goal(s). A researcher needs to know or perhaps to design the criteria on the basis of which effectiveness can be measured. It is clear that these types of issues and questions often require an interdisciplinary approach, in which legal and social science perspectives should be included in the research design. This volume is divided into a three-part structure, broken down into three distinct thematic strands. The aim of this division—both at the Toogdag and for this book—was to identify the (in)effectiveness of human rights demonstrated at different levels of society. The intention was also to capture the interactions between these three levels—interactions that are demonstrated in all seven chapters of this book—and to examine the role of these interactions in the realisation of human rights in practice. Part I of this volume deals with a variety of international institutions, mechanisms and actors, and the extent to which they affect the materialisation of human rights, while Part II of the book addresses the question of the effectiveness of human rights law through implementation at the domestic level. Finally, Part III of this book addresses human rights at the individual level, taking account of individual experiences and individual agency, in particular. In sum, this collective edited volume reflects on key questions as to whether human rights can actually be transformed into a lived reality for various individuals, and it examines the diverse strategies that can be employed in pursuing that objective. This volume is intended to add to the vast array of literature that already exists regarding the notion of the ‘effectiveness’ of human rights. It can, however, be distinguished from the existing literature by virtue of the fact that it not only brings together scholars at different stages of their careers, including Ph.D. researchers, but that it also incorporates contributions that adopt different methodological perspectives. Those methods include quantitative analysis with regard to the domestic effectiveness of the right to education; qualitative methods; and legal doctrinal methods, combined with socio-legal research. Employing those methods, the volume incorporates themes as wide-ranging as the effective realisation of the human rights of refugees in Turkey by local governments, to the domestic enforcement

Introduction

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of the European Social Charter in light of recent judicial practice and the role of individual agency of local government officials in the realisation of human rights at the local level. Since the topics covered and the approaches chosen by the authors are so diverse and hard to compare, the editors have decided not to present overall conclusions to the questions identified above. The book rather presents factors and developments that are typical for the process of assessing the (in)effectiveness of the human rights regime in various settings and contexts. There is no doubt that the existence of international and national human rights mechanisms and processes does not automatically mean that individuals or groups of individuals, especially victims of human rights violations, benefit from the normative guarantees contained in human rights law. Furthermore, without effective enforcement at the domestic level, and active participation at the individual level, human rights are meaningless. The various contributions made to this book reflect on those sentiments and put forward novel viewpoints on the issue of effectiveness as a whole. The struggle towards ensuring the effectiveness of human rights has taken on increased importance in recent times, against the background of the global COVID-19 pandemic. It is more important than ever that, as a global human rights community, activists and scholars continue to debate the new and existing challenges that arise in securing effective human rights realisation, and that they put forward feasible and innovative solutions that can serve to meet those challenges. The context and background to this collective edited volume are certainly worth noting, since some of the contributions included in this book were completed right at the beginning of the outbreak of the COVID-19 pandemic, in March 2020, and others were finalised in the months that followed. The finishing touches were put to the volume in September 2020, at a time when it remained very unclear as to how the pandemic was going to evolve. However, there was no opportunity for the various authors who contributed to this volume to update or amend their contributions in light of the pandemic. There is no doubt that the COVID-19 pandemic has profoundly impacted on the human rights landscape as a whole. This overwhelming public health crisis has turned into a real human rights crisis in many parts of the world. The current Secretary-General of the United Nations, António Guterres, recently issued a call-to-action consisting of a compilation of best human rights practices with regard to the COVID-19 response and recovery initiatives. His words ring truer than ever before in the struggle towards ensuring the effectiveness of human rights: This is not a time to neglect human rights; it is a time when, more than ever, human rights are needed to navigate this crisis in a way that will allow us, as soon as possible, to focus again on achieving equitable sustainable development and sustaining peace.

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Introduction

With these words ringing in our ears, we—as editors—feel that this collective volume presents a good picture of the various ways in which the effectiveness of human rights realisation is not only hindered but also fostered at the domestic and international levels, and it paves the way for solutions to emerge to answer the call-to-action highlighted above. Maastricht, The Netherlands October 2020

Claire Boost Andrea Broderick Fons Coomans Roland Moerland

Contents

1 The (In)Effectiveness of Human Rights: Mapping Existing Research—An Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Suzanne Egan Part I

1

The Effectiveness of International Law: Institutions and Processes

2 Effectiveness of the ICESCR Complaint Mechanism—An Analysis and Discussion of the Spanish Housing Rights Cases . . . . . . . . . . . . Fons Coomans and Miguel Ruiz Díaz-Reixa

17

3 Effective Distance: A Polish Dissident’s Encounter with Amnesty International and Its Western-Born Rules . . . . . . . . . . . . . . . . . . . . Christie Miedema

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Part II

The Effectiveness of Human Rights Monitoring and Implementation at the Domestic Level

4 Does the Right to Education Lead to Better Primary Education Outcomes? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bart Kleine Deters 5 Paving the Way for Effective Socio-economic Rights? The Domestic Enforcement of the European Social Charter System in Light of Recent Judicial Practice . . . . . . . . . . . . . . . . . . . . . . . . . Nikolaos A. Papadopoulos

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6 How Human Rights Cross-Pollinate and Take Root: Local Governments and Refugees in Turkey . . . . . . . . . . . . . . . . . . 123 Elif Durmuş

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Part III

Contents

Human Rights at the Individual Level: Individual Experiences and Key Actors

7 Child Participation as the Holy Grail: Effective and Meaningful Participation in Judicial Proceedings? . . . . . . . . . . . . . . . . . . . . . . . 161 Stephanie E. Rap and Katrien F. M. Klep 8 Human Rights Localisation and Individual Agency: From ‘Hobby of the Few’ to the Few Behind the Hobby . . . . . . . . . 183 Tihomir Sabchev, Sara Miellet and Elif Durmuş Annex: Report of the NNHRR ‘Toogdag’ 2019 . . . . . . . . . . . . . . . . . . . . 213

Editors and Contributors

About the Editors Claire Boost is a Ph.D. Candidate within the Faculty of Law at Maastricht University, researching the legitimisation strategies developed and implemented by the International Criminal Tribunal for Rwanda. Claire also teaches International Criminal Law and ‘Atrocity Triangle’ (the supranational criminology of gross human rights violations), and serves on the Board of the Maastricht Centre for Human Rights. Prior to gaining her position in Maastricht, Claire managed and developed programmes focused on human rights, social justice and sustainability located across Africa, Europe and North America. She holds a Master in International Crimes and Criminology from VU Amsterdam, and a Master in Developmental Psychology from Lausanne University. Andrea Broderick is an Assistant Professor at Maastricht University, having previously been a Marie Curie Early Stage Researcher and a lecturer there. Andrea holds a Ph.D. in international and comparative disability equality law from Maastricht University. Her Ph.D. thesis was nominated for the Max van der Stoel Human Rights Award 2016. She received the Edmond Hustinx Prize for Science 2018. Andrea is also the Dutch Director and Director (on behalf of Maastricht University) of the European Master’s Programme in Human Rights and Democratisation, Venice. Furthermore, Andrea is a Board Member of the Maastricht Centre for Human Rights. In addition, Andrea is a qualified solicitor, having graduated at the Law Society of Ireland. Andrea teaches, among others, in the fields of international human rights law and EU law. She has published widely in academic journals and books. She has written and co-written major thematic reports for the European Commission and the Council of Europe. In addition, she has co-authored the first academic textbook on international and European disability law (together with Prof. Delia Ferri, Maynooth University), which was

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Editors and Contributors

published by Cambridge University Press in 2019. Together with Prof. Ferri, she has co-edited the first Research Handbook on EU Disability Law, published by Edward Elgar in November 2020. Fons Coomans holds the UNESCO Chair in Human Rights and Peace at the Department of International and European Law at the Faculty of Law, Maastricht University. He is the Director of the Maastricht Centre for Human Rights, and a member of the Netherlands Network for Human Rights Research. His fields of research include the international protection of economic, social and cultural rights; the right to education, health and food in particular; the extraterritorial scope of human rights law; and international supervisory mechanisms in the field of human rights. He teaches Master courses on international human rights law and on human development and human rights at the Faculty of Law of Maastricht University. He is a founding member of the Consortium on Extraterritorial Human Rights Obligations and member of the Dutch Section of the International Commission of Jurists (NJCM). He has also been a Visiting Professor at the University of Cape Town, South Africa. He is an advisor to the Right to Education Initiative and a consultant for UNESCO. Since 2017, he is a founding member of the Human Rights of Future Generations Initiative. Roland Moerland is an Assistant Professor of Criminology at Maastricht University, The Netherlands. His expertise lies in the field of supranational criminology and human rights. In his courses and his research, he focuses on gross human rights violations and the crime of genocide in particular. Roland is a Board Member of the Maastricht Centre for Human Rights and he is furthermore a member of the International Association of Genocide Scholars. He serves as an editor on the editorial board of Genocide Studies and Prevention: An International Journal.

Contributors Fons Coomans Faculty of Law, Maastricht University, Maastricht, The Netherlands Elif Durmuş Faculty of Law, Economics and Governance, Cities of Refuge Research, Utrecht University, Utrecht, The Netherlands Suzanne Egan UCD Sutherland School of Law, Belfield, Dublin, Ireland Bart Kleine Deters United Nations University, MERIT and Maastricht University, Maastricht, The Netherlands Katrien Klep Department of Child Law, Leiden Law School, Leiden, The Netherlands

Editors and Contributors

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Christie Miedema Duitsland Instituut Amsterdam, Amsterdam, The Netherlands Sara Miellet Faculty of Law, Economics and Governance, Utrecht University, Utrecht, The Netherlands Nikolaos A. Papadopoulos Department of International and European Law, Faculty of Law, Maastricht University, Maastricht, The Netherlands Stephanie Rap Department of Child Law, Leiden Law School, Leiden, The Netherlands Miguel Ruiz Díaz-Reixa Observatori DESC and Provivienda, Madrid, Spain Tihomir Sabchev Faculty of Law, Economics and Governance, Utrecht University, Utrecht, The Netherlands

Abbreviations

AI AKDEM CRC CRCee DGMM ECHR ECtHR ESC ESCR-Net EU GADEM GIZ HRBA HRW ICESCR ILO IMF IO IOM KOR NGO NHRI OHCHR OP-ICESCR PAH RevESC ROPCiO SALAR

Amnesty International Centre for Supporting the Family, Women and the Disabled Convention on the Rights of the Child Committee on the Rights of the Child Directorate General of Migration Management European Convention on Human Rights European Court of Human Rights European Social Charter International Network for Economic, Social and Cultural Rights European Union Gaziantep Centre for the Support of the Family German Society for International Cooperation Human Rights-Based Approach Human Rights Education International Covenant on Economic, Social and Cultural Rights International Labour Organization International Monetary Fund International Organisation International Organization for Migration Workers’ Defence Committee Non-Governmental Organisation National Human Rights Institutions United Nations Office of the High Commissioner for Human Rights Optional Protocol to the International Covenant on Economic, Social and Cultural Rights Plataforma de Afectados por la Hipoteca (Platform of Mortgage Affected People) Revised European Social Charter Movement for the Defence of Human and Civic Rights Swedish Association of Local Governments

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SC TBB TUIK UN UNCEDAW UNCESCR UNESCO UNHCR UNICEF UPR US VCLT WOOC YUKK

Abbreviations

Spanish Constitution Turkish Union of Municipalities Turkish Statistical Institute United Nations United Nations Committee on the Elimination of Discrimination Against Women United Nations Committee on Economic, Social and Cultural Rights United Nations Educational, Scientific and Cultural Organization United Nations High Commissioner for Refugees United Nations International Children’s Emergency Fund Universal Periodic Review United States Vienna Convention on the Law of Treaties Work on Own Country Rule Turkish Law on Foreigners and International Protection

Chapter 1

The (In)Effectiveness of Human Rights: Mapping Existing Research—An Introduction Suzanne Egan

Contents 1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.2 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.2.1 The Effectiveness of International Law: Institutions and Processes . . . . . . . . . . . 4 1.2.2 The Effectiveness of Human Rights Monitoring and Implementation at the Domestic Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1.2.3 Human Rights at the Individual Level: Individual Experiences and Key Actors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1.3 Outline of the Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1.1 Introduction The last decade has seen a surge of critiques regarding the entire human rights project, not only from outside the field but increasingly from within, on a variety of grounds. Long-standing critiques of the principle of universality on which the human rights regime is based have been supplemented with arguments about the continuing relevance of human rights in the context of a changing global order.1 Doubts about persistent over-reaching on the part of human rights advocates have led to the charge of ‘rights inflation’—perceived variously as a threat to the human rights project itself,2 or as an inappropriate challenge to social justice.3 While for others, the central 1 Hopgood

2015. 2019. See also Hannum 2016, pp. 409–451. 3 Clément 2018, pp. 155–169. 2 Hannum

S. Egan (B) UCD Sutherland School of Law, Belfield, Dublin, Ireland e-mail: [email protected] © t.m.c. asser press and the authors 2021 C. Boost et al. (eds.), Myth or Lived Reality, https://doi.org/10.1007/978-94-6265-447-1_1

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S. Egan

flaw of the human rights movement has been its minimalist ambitions, including its failure to challenge the insurgence of neoliberalism and to tackle head-on the goal of material equality.4 On top of all of these and sometimes intertwined are those critiques which are concerned with the operation of the international human rights regime, its systems and processes and its (in)ability to generate positive change in human rights law and practice. Whether rooted in political theory, historical or sociological analysis, and backed up in some cases by empirical findings, the clear suggestion in each of these critiques is that human rights are not effective. In other words, that they have reached their sell-by date and are no longer fit for purpose in terms of their current trajectory. Not surprisingly, this pessimistic view of the effectiveness of human rights is, on the other hand, deeply contested by a variety of scholars not only on normative grounds but also by empirical claims based on sophisticated analytic methodologies which attest to the success of human rights ‘on the ground’ in defined circumstances. The tension between these two clashing perspectives is at the heart of this important volume, dedicated as it is to making a significant, original and wide-ranging contribution to this debate. The purpose of the present chapter is to situate the current book in the context of existing scholarship on the effectiveness of human rights. It does so by firstly offering a few thoughts on the meaning of ‘effectiveness’ and outlining the central themes raised in the book in Sect. 1.2; followed in Sect. 1.3 by a description of the contribution made to these themes by each individual chapter.

1.2 Effectiveness As indicated at the outset, questions about the effectiveness of human rights and by extension about the very future of human rights have been raised from a variety of different standpoints. While some are based purely on normative arguments—rooted in doubts about the legitimacy of human rights from a moral and legal standpoint5 — as Hopgood, Snyder and Vinjamuri have observed “….many of the sharpest debates about human rights at the present juncture [are] about the feasibility of making rights a reality and what tactics to use in pursuing that goal”.6 The current book is firmly located in this latter terrain, focusing as it does on the effectiveness of human rights in the context of its institutions and processes; its impact at the domestic level and in terms of the experiences of individuals and key actors on the ground. This tripartite categorisation is helpful not least because of the coherence deficits that apparently pervade scholarly literature in the field. If the concept of ‘effectiveness’, as commonly understood, means “the degree to which something is successful 4 Moyn 2018a. Indeed, in the conclusion of his analysis, Moyn goes so far as to state that that ‘even perfectly realised human rights are compatible with radical inequality’: 213. For a very condensed version of Moyn’s central argument, see Moyn 2018b. Per contra: De Búrca 2018, p. 1349. 5 See generally Dembour 2018, p. 41. 6 Hopgood et al. 2017, p. 4.

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in producing a desired result”,7 this has left the door very wide open in this context for conflicting views and starting points as to what is the ‘something’ that needs to be evaluated (e.g. the impact of treaty ratification? the effect of domestic incorporation? the operation of a particular human rights procedure?); how such evaluation might be done (i.e. methods of analysis); what might be a ’desired result’ and what ‘successful’ may mean in practice (decreasing violations? institutional or behavioural change?). Thus, as Brysk points out, when it comes to assessing the effectiveness of human rights efforts, “the diffuse orientation and methodology of inquiry has yielded disparate conclusions” such that in any inquiry as to effectiveness, it is important at the outset to distinguish between “…effectiveness of what? And effectiveness for what?”8 These questions point to the importance of identifying the goals that have been set for the law, procedure or institution under assessment in determining effectiveness in this context. This ‘goal-based approach’ is also advocated by Yuval Shany in constructing his analytical framework for evaluating the effectiveness of international organisations and is endorsed by Coomans and Ruiz Díaz-Reixa in Chap. 2. Under this approach, effectiveness may be defined in straight-forward terms as the extent to which an action “accomplishes its specific objective aim”.9 All three writers agree, however, that in evaluating effectiveness (whether it be of an organisation, a law or a process) it is important “to clarify in whose eyes certain designated outcomes are seen as desirable”.10 This is a crucially important element since the views of various stakeholders may differ as to the appropriate goals of a human rights norm or procedure with knock-on effects for assessments of effectiveness in terms of outcomes. Durmu¸s (in Chap. 6) and Coomans and Ruiz Díaz-Reixa (in Chap. 2) also point out that the concept of effectiveness when applied to a legal rule or an institutional process in the human rights context should not be equated with formal understandings of compliance. This is surely a correct assessment since the extent to which a law or procedure is truly effective cannot be judged solely by answering the question whether a norm has been formally incorporated into domestic law or a particular procedural obligation has been fulfilled. Rather, effectiveness is more properly conceptualised as the extent to which a given rule or procedure triggers its intended aims or outcomes with the latter being conceived more broadly in terms of the enjoyment of the right(s) in question. As literature on effectiveness has developed, it appears that researchers tend to approach the latter aspect of the inquiry by seeking to determine whether a norm or procedure has resulted in a levelling up of human rights standards,11 ‘desired behavioural change’ or an embedding of the norm in the domestic landscape. Somewhat confusingly perhaps, the latter inquiry may sometimes still be framed in terms of an inquiry as to compliance, albeit with 7 The

Oxford English Dictionary, https://www.lexico.com/definition/effectiveness. 2019, pp. 1–2, cited by Durmu¸s in Chap. 6. 9 Shany 2012, p. 230. 10 Shany 2012, p. 240. 11 De Búrca 2017, pp. 277–316. 8 Brysk

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a broader framing of compliance as a ‘continuum’ reflecting ‘genuine endorsement’ of a norm.12 A further additional challenge in constructing the research design includes the notoriously difficult tasks of determining the criteria or indicators by which effectiveness can be measured and determining causality by reference to those indicators. For all these reasons, evaluating the effectiveness or ineffectiveness of human rights is an inherently complex task and the value of any assessment depends at the outset on a clear delineation of the precise parameters of effectiveness under consideration, as well as the criteria and methods being used in the assessment. This necessity is amply fulfilled in each of the chapters in this volume. This factor, together with their distribution into three broadly defined domains—international institutions and processes, domestic implementation, and individual experiences and actors—provides a useful roadmap for navigating this undoubtedly complex terrain. The following sections aim to provide some further context for the chapter in the book by describing trends in current research in each of the thematic categories in the volume.

1.2.1 The Effectiveness of International Law: Institutions and Processes The first thematic category of this book concerns the effectiveness of international (human rights) law in terms of its institutions and processes. This category potentially embraces a very broad church given that the meaning of international institutions in academic scholarship is, as noted by Digiacomo and Kang, no longer understood as being solely concerned with formal organisations,13 but rather as embracing “sets of rules meant to govern international behaviour”14 and more broadly as “relatively stable sets of related constitutive, regulative, and procedural norms and rules that pertain to the international system (including states as well as non-state entities), and their activities”.15 The term ‘international regime’ is used interchangeably with ‘international institution’16 and it is commonplace now to refer to the systems and practices which exist at the UN and regional level for the implementation of human rights as ‘international human rights regimes’.17 These regimes not only involve the states parties to the relevant treaties, as well as their monitoring bodies, but also civil society organisations, national human rights institutions, individuals and groups of individuals with multinational corporations and global governance institutions increasingly being implicated in their sway.18 12 Dai

2013, p. 86. and Kang 2019. 14 Simmons and Martin 2002, p. 4. 15 Duffield 2007, p. 2. 16 See Hasenclever et al. 1997, p. 10. 17 See Anaya Muñoz 2017. 18 See Karlsson Schaffer et al. 2014, p. 1. 13 Digiacomo

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In general terms, scholarship on the effectiveness of international human rights regimes has focused on the relationship between international human rights law and the protection of human rights; and on whether specific human rights institutions and processes have been effective in generating human rights change.19 For the reasons already described above, research in this area is notoriously fraught with methodological difficulties, and is characterised by a huge diversity of approaches from that which is ”explanatory as well as descriptive, quantitative as well as qualitative, experimental as well as observational, and aimed at the development as well as the testing of the theory”.20 While it is impossible to describe this literature in detail, a few important insights can be highlighted from the research that has focused on the UN international human rights regime. First, recent overviews of the empirical research conducted on the question of the effectiveness of international human rights treaties has identified a clear consensus (despite earlier findings)21 that human rights law and institutions designed to implement it do result in positive civil and political human rights outcomes in democratic countries or those undergoing transition towards greater democracy. While different explanatory theories have been advanced as regards the mechanisms or processes by which positive change is generated, a clear point of convergence that appears to have emerged in the literature is that the effectiveness of human rights law and institutions is greatly increased where local actors are mobilised and have actively sought to influence domestic human rights practice by reference to the norms and standards in the treaties. As Beth Simmons puts it, where domestic rights stakeholders, sometimes with outside help, “carry the ball” and have “taken up the torch for themselves”.22 Thus, despite the absence of effective enforcement mechanisms, and notwithstanding gaps in compliance, there is significant evidence that international treaties can be influential in shaping domestic law and politics when utilised effectively by domestic institutions and actors. This general consensus is further buttressed by the wider thesis advanced by Risse, Ropp and Sikkink to the effect that implementation of international norms depends crucially on linkages forged between domestic and transnational networks with international regimes; and the even more nuanced insight developed by Gráinne de Búrca based on experimentalist governance theory that “…the crucial dimension is the ongoing interaction between global and local levels in which each is reliant on the other for the development of the norm and its realisation in practice over time and in different contexts”.23 These findings can be located in quantitative studies that have tracked ratification of international human rights treaties against standard-based measures of states’ human rights performance; as well as more recent qualitative research focusing on

19 Engstrom

2010, p. 6. et al. 2017. 21 Hathaway 2002. Hafner-Burton and Tsutsui 2007. 22 Simmons 2009, p. 371, 378. These findings are replicated in compliance literature that focuses on the ‘compliance-pull’ of regional courts. See Hillebrecht 2012, pp. 293–297. 23 De Búrca 2017, p. 310. 20 Hopgood

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the extent to which the outputs of international human rights bodies have been implemented in national law and practice and/or have resulted in behavioural change on the part of key actors. Some of these studies have also helped to shine further light on the factors that tend to generate ineffective outcomes. Thus, while Jasper Krommendijk’s excellent analysis of the effectiveness of the Concluding Observations of UN treaty body recommendations in the Netherlands, New Zealand and Finland shows that a limited number of treaty body observations have contributed to or accelerated domestic legal change, it also reveals evidence as to why the effectiveness of concluding observations is “rather limited” in all three countries.24 Their ineffectiveness can be explained, he argues, by a range of factors including the weak capacities and procedures of the treaty bodies, as well as their limited authority and legitimacy in the eyes of government officials.25 These conclusions suggest firstly that if issues of legitimacy and authority could be addressed, the scope for greater effectiveness would increase. They also point to a need for more in-depth research on the effectiveness of the procedures of the UN human rights treaty bodies and the reasons that contribute to their operational deficiencies and incapacities—factors that contribute in turn to the effectiveness of their outcomes on the ground in individual countries. A number of additional gaps in existing research that are ripe for further investigation may be mentioned. First, is the need for further qualitative research on the (in)effectiveness of other processes that comprise the international human rights regime, in particular the Universal Periodic Review (UPR) procedure and Special Procedures of the UN Human Rights Council.26 Further research is clearly desirable to illuminate the impact of each of these procedures in domestic settings, as a means not only of improving their operational effectiveness but also to illuminate synergies and sites of potential collaboration as between each other. Given the insight that domestic mobilisation is key to generating positive human rights impacts, such research is also a vital means of informing the work of other institutional actors. In a world of shrinking resources, NGOs are increasingly required to make intelligent choices about where they are going to direct those resources to maximise their own effectiveness. In this context, further insights into the extent to which NGOs are capable of exerting any demonstrable effects on these processes would undoubtedly help them in making the strategic choices necessary to enhance their work.27 A further deficit identified by Dancy and Sikkink in their review of empirical studies on human rights outcomes is the disproportionate focus in these studies on civil and political rights.28 As they acknowledge, despite the added complications of measuring implementation of rights which are subject to ‘progressive realisation’ within ‘maximum available resources’, some headway has been made in

24 Krommendijk

2015, 203. For the in-depth findings, see Krommendijk 2014. 2015, p. 208. 26 For initial sources, see the various contributions in Charlesworth and Larking 2014; Cherif Bassiouni and Schabas 2011, and more recently on the Special Procedures, Alston et al. 2019. 27 See for example McGaughey 2017. 28 Dancy and Sikkink 2017. 25 Krommendijk

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recent years in narrowing the gap in empirical studies on compliance with socioeconomic rights.29 However, in a world ravaged by the coronavirus, in which greater emphasis is increasingly being drawn to the inextricable relationship between human rights, poverty and extreme inequality,30 including by human rights bodies,31 there is clearly a need for greater understanding of the link between international human rights institutions and processes in contributing to improved economic and social outcomes.

1.2.2 The Effectiveness of Human Rights Monitoring and Implementation at the Domestic Level The second thematic focus of the volume concerns the effectiveness of human rights monitoring and implementation at the domestic level. Sometimes referred to as the ‘domestication’ of international human rights, scholarship on this theme generally addresses methods and processes by which international human rights norms and standards become established and embedded in domestic settings. Whereas the emphasis in the previous section is on the dynamics within international institutions as well as the linkages between international bodies and domestic actors in a vertical sense, the emphasis in this section is more concerned with the effectiveness of domestic institutions in making human rights a reality on the ground in a horizontal sense within the state. Domestication of human rights norms at a substantive level takes place in a myriad of individual and overlapping ways, legislative, judicial, administrative, and educational.32 Legal scholarship on domestication has tended to focus on different constitutional approaches to implementation (monist and dualist systems) and in particular, on the experience of domestic courts in applying and interpreting human rights norms in different constitutional frameworks. The focus of much of this scholarship, however, has necessarily been on the interpretive expansion or otherwise by domestic courts of civil and political rights. There has been less focus on judicialization of socio-economic rights given the notorious reluctance of states to incorporate socioeconomic rights into domestic law and deep-seated resistance to their adjudication by domestic courts.33 As noted above, however, the socio-economic hardship being

29 Dancy

and Sikkink 2017, p. 37. 2015. See also Oré Aguilar and Saiz 2020. 31 Jensen 2019. 32 For an excellent overview, see Byrnes and Renshaw 2013. 33 See Alston 2016. 30 Alston

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experienced especially by vulnerable populations in recent years has also intensified the demand for more in-depth reflection and research on productive models of domestic implementation of socio-economic rights.34 Aside from the issue of domestic implementation through substantive law, a significant body of legal scholarship has developed on the effectiveness of other institutional actors besides the courts in seeking to entrench human rights norms in domestic settings. This includes research on the role and impact of parliaments and parliamentary committees in scrutinising policy proposals and legislative measures for their compatibility with human rights norms;35 as well as a burgeoning body of scholarship on the effectiveness of national human rights institutions (NHRIs). Whereas much of the focus in international human rights scholarship to date on the effectiveness of NGOs (as noted above) has been on their success in utilising the international framework for the purposes of domestic mobilisation, an interesting facet of research on the effectiveness of NHRIs has centred on their effectiveness in fulfilling the ‘bridging’ or mediating role which they were intended to perform between government and NGOs on human rights issues, as well as in the various monitoring and educational activities typically assigned to them at the national level. Accordingly, much of the current research on the effectiveness of NHRIs is qualitative in nature and focuses on their operational effectiveness in domestic settings and the degree to which they work successfully as organizations to enhance compliance on the ground.36 Beyond scrutiny of the role played by NGOs and NHRIs in implementing rights at the national level, there is immense scope for extending research on the effectiveness of human rights to developments in processes of ‘localising’ or ‘vernacularisation’ of rights at community level.37 While such processes are by no means new,38 there has been a palpable surge in this kind of locally-based activism in many countries around the world, aimed at combating poverty and rising levels of inequality in cities and local communities.39 This raises questions about the impact of such processes and the factors that might be capable of enhancing them.

34 For a recent example of international and domestic case studies conducted with the aim of identifying the most effective means of enhancing the status of UN treaty rights in the UK’s domestic framework, see Daly et al. 2018. 35 See Webb and Roberts 2014. 36 See generally Pegram and Goodman 2013. 37 Casla and Dalmeny 2019. 38 See Engle Merry 2006. 39 Smith and Cooper 2019.

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1.2.3 Human Rights at the Individual Level: Individual Experiences and Key Actors The final theme of the volume focuses on the experiences of individuals and other key actors with respect to the implementation of human rights. The inclusion of this theme reflects attempts in human rights research in recent years to assess the influence of a wider range of actors—beyond the traditional categories of state actors (legislative and judicial branches in particular), human rights institutions, civil society groups— to influence or potentially compromise effective implementation of human rights. Notable examples include the role of businesses and transnational corporate actors as well as armed non-state actors.40 This theme also brings into play the importance of individual participation in claiming and accessing rights. This emphasis is a central feature of the growth in community activism in which the ‘lived experience’ of individuals is seen as an essential ‘starting point’ for localised human rights advocacy.41 This activism in turn relies in large measure on processes of human rights education (HRE) which itself is conceived as a fundamentally participatory enterprise aimed at increasing knowledge and understanding of rights to enable individuals to uphold as well as to claim their rights. While embedded in the international legal framework as an aspect of the right to education itself, the field of HRE and the corresponding role of human rights educators has not received as much attention in scholarship as that of advocacy in terms of its capacity to contribute to the effectiveness of human rights.42 Participation is also a key element in the promotion of human rights-based approaches to law and policy making across a wide range of areas related to economic and social development as well as in the administration of justice.43 While the involvement of vulnerable groups in the development of such approaches is key, a wide range of other actors with practical and/or professional experiences are inevitably involved in the development and implementation of such approaches depending on the sector involved. With each of these approaches (HRE and HRBAs) gaining significant ground in recent years as means of promoting rights-supporting cultures, there is a clear potential for further empirical research on the roles played by individuals in making human rights effective on the ground—a factor highlighted by Sabchev, Miellet and Durmu¸s in the final chapter of this book.

40 See

Deitelhoff and Wolf 2013. See also Clapham 2018. and Dalmeny 2019. 42 Empirical studies in the field are limited but growing, consisting mostly of some quantitative studies, backed up in recent years by a small number of qualitative studies of HRE in action in schools in particular jurisdictions. 43 For an argument regarding the importance of rights-based approaches in a post-Covid-19 world, see Packer and Balan 2020. 41 Casla

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1.3 Outline of the Book The chapters in this volume contribute to existing research by analysing the effectiveness of human rights institutions and processes in a range of settings and using different methodological approaches. Each chapter is situated in one of the three Parts of the book according to their principal thematic contribution. They may be summarised collectively as follows. In Chap. 2, Coomans and Ruiz Díaz-Reixa contribute to the gap in current research on the effectiveness of international institutions in the field of socio-economic rights by analysing the outcomes in a series of cases taken against Spain under the Optional Protocol to the ICESCR on alleged violations of the right to adequate housing. Taking into account the quasi-judicial nature of the CESCR, the authors argue that the Committee’s active engagement with controversial housing rights issues has helped to increase its normative legitimacy with domestic civil society actors who in turn have made active use of the Committee’s views in their domestic advocacy campaigns with limited success. On the other hand, the authors contend that the non-binding nature of the Committee’s views has been a contributing factor in lessening their impact across all three branches of government. Nonetheless, having regard to the positive potential in Supreme Court jurisprudence on treaty body views, together with the prospect of further consolidation of CESCR’s views and mobilisation by civil society, the authors conclude that increasing the normative legitimacy and hence the effectiveness of the CESCR’s views in Spain might just be a matter of time. Miedema’s exploration, in Chap. 3, of the experience of Polish dissident Emil Morgiewicz’s engagement with Amnesty International in the period between 1974 and 1981 illuminates very clearly the stumbling blocks frequently encountered in organisations when perspectives differ as between various stakeholders on the appropriate goals for the organisation and the most effective methods for achieving those goals. Drawing on archival material and interviews with key actors, Miedema explains how Morgiewicz’s narrower goals and methods of activism in joining Amnesty International—to weaken the Polish regime by mobilising in his own country—were at odds with Amnesty’s broader goal, i.e. to develop an international movement for the release of political prisoners worldwide through impartial and apolitical activism which included a ban on members contributing to ‘owncountry’ campaigns. Miedema’s analysis demonstrates how these clashing perspectives, partly rooted in radically different attitudes to human rights activism in the context of western liberal democracies and socialist dictatorships—created tensions that while difficult to resolve (in this author’s view) are almost inevitable and require constant re-evaluation and re-negotiation to ensure the ongoing effectiveness of any organisation, particularly one based on membership on an international scale. The chapters in Part II each concern different methods of domestication of international norms and different modes of analysis thereof. In Chap. 4, Kleine Deters conducts a quantitative analysis on the extent to which domestication of the right to primary education results in change in the level of enjoyment of the right across 45 countries in sub-Saharan Africa, Latin America and the Caribbean during the period

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1990–2017. While much quantitative research seeks to estimate the effect of treaty ratification on domestic implementation, the author argues that such analysis fails to provide a sufficient basis on which to infer a causal link regarding penetration of the international norm into the domestic landscape. Rather, the test of effectiveness is conducted by comparing the domestication of the right in national legislation with primary net enrolment rates as the measure of the outcome of the right. The measure of domestication for each country is achieved by first constructing a multidimensional ‘right to education protection index’ comprised of 18 indicators drawn from the minimum core obligations of the right in the ICESCR as interpreted by the CESCR. The analysis reveals two core findings: first, a clear improvement in legal protection of the right to primary education across all countries studied in the years throughout the time period under investigation; as well as in enjoyment of the right with the passage of time. In Chap. 5, Papadopoulos also tackles the lacuna in analysis of the effectiveness of socio-economic rights by employing ‘a doctrinally descriptive-comparative (international human rights) legal research lens fused with socio-legal considerations’ to evaluate implementation by first and second instance national courts in Greece and Spain of the European Social Charter and the quasi-judicial case law of the ECSR. Through an analysis of the case law in both jurisdictions, he demonstrates how domestic courts in both countries have to some extent defied expectations by giving direct effect to various Charter provisions and relied on interpretations of the ECSR to grant relief to litigants challenging austerity driven measures taken against them. Despite the practical limitation that wider implementation of such rulings depends in both States on political action by other branches of government, the author argues that reliance by the domestic courts on the Charter has contributed to policy change in both countries, as well as providing a template for courts in other jurisdictions to assist in making socio-economic rights more effective on the ground. In Chap. 6, Durmu¸s provides a dynamic example of human rights localisation through her analysis of engagement by local governments in Turkey in policymaking aimed at improving the urgent rights of refugees in the world’s top refugee-hosting country. Based on an explorative and grounded field research method conducted among local governments in eight different municipalities in Turkey, Durmu¸s discovers a range of factors that have contributed to such engagement despite legal ambiguity as to the role and competencies of local governments in such matters. These factors include (i) the capacity and level of institutionalisation in local governments; (ii) the dissemination of practices and norms regarding good local migration and rights-based governance through networks; (iii) the availability of cooperation and coordination with other actors in the field; and (iv) political will. As well as illuminating the potentially powerful role of local governments in making rights effective on the ground, the study also signals the need for more concerted investigation of means by which to support local governments in achieving their full potential in localising human rights particularly in developing countries. Picking up the final theme of the volume on the experience of individuals in terms of the effectiveness of human rights, Rap and Klep in Chap. 7 make a distinctive contribution to literature on the child’s right to participation in judicial procedures that

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affect them through their case studies of the realities of children’s participation in two discrete sets of procedures in the Netherlands, i.e. asylum procedures and procedures for children in voluntary youth care. Set against a critical analysis of the right of the child to be heard in international human rights law, the case studies reveal how in practice, the right to be heard may be conceptualised differently depending on the type of procedure involved; and that in both instances, the fundamental linkage between the right of the child to be heard and the best interests principle, is compromised where the focus of the procedure is oriented towards adults’ best interests. Thus, they argue that effective participation for children involves more than formal implementation: existing laws, policies and practices in the relevant context must be assessed to determine the assumptions and the relations of power that lie behind them in order for the child’s right to participation to be meaningfully and effectively realised in practice. In the final chapter of the book, Chap. 8, Sabchev, Miellet and Durmu¸s introduce the concept of individual agency as a potentially ‘missing piece of the puzzle’ in existing research on the local relevance and effectiveness of human rights. Drawing on socio-legal scholarship and in particular, the concept of ‘human rights users’, they present findings from a qualitative case study of individuals working as municipal officials in local authorities in Italy, Greece, Turkey and the Netherlands. Highlighting the backgrounds, motivations and personal interactions which enabled these individuals to encounter and engage in human rights, the findings reveal how they each played a significant driving role in spearheading the incorporation of human rights into local policy solutions in the field of migration governance. The authors present these findings not as determinative of the role of individual agency but rather as a stepping stone for future research on the role which individuals play in strengthening effectiveness of human rights and its potential linkage with other ‘pathways of influence’.

References Alston P (2015) Extreme Inequality as the Antithesis of Human Rights. Open Global Rights. www. openglobalrights.org/extreme-inequality-as-the-antithesis-of-human-rights Alston P (2016) Phantom Rights: The Systemic Marginalization of Economic and Social Rights. Open Global Rights. www.openglobalrights.org/phantom-rights-systemic-marginalization-ofeconomic-and-social-rights Alston P, Khawaja B, Riddell R (2019) Much ado about poverty: the role of a UN Special Rapporteur. NYU School of Law, Public Law Research Paper pp 19–31 Brysk A (2019) Introduction: Contesting Human Rights – Pathways of Change. In Brysk A, Stohl S (eds) Contesting Human Rights: Norms, Institutions and Practice. Edward Elgar Byrnes A, Renshaw C (2013) Within the State. In: Moeckli D et al (eds) Human Rights Law. Oxford University Press, 3:482–499 Casla K, Dalmeny K (2019) What Does that Mean? Localizing Human Rights in the United Kingdom. Open Global Rights. www.openglobalrights.org/localizing-human-rights-in-the-UK Charlesworth H, Larking E (2014) The Universal Periodic Review Procedure: Rituals and Ritualism. Cambridge University Press

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Cherif Bassiouni M, Schabas W (2011) New Challenges for the UN Human Rights Machinery: What Future for the UN Treaty Body System and the Human Rights Council Procedures? Intersentia Clapham A (2018) Non-State Actors. In Moeckli D et al (eds), Human Rights Law. Oxford University Press 3:557–579 Clément D (2018) Human Rights or Social Justice? The Problem of Rights Inflation. 22 Int’l. Journal of Human Rights 22: 155–169 Daly A, McDermott Y, Curtis J (2018) Enhancing the Status of UN Treaty Rights in Domestic Settings. University of Liverpool Dancy G, Sikkink K (2017) Human Rights Data, Processes, and Outcomes: How Recent Research Points to a Better Future. In Hopgood S et al (eds) Human Rights Futures: 24–59 Dai X (2013) The ‘Compliance Gap’ and the Efficacy of International Institutions. In: Risse T et al (eds) The Persistent Power of Human Rights: From Commitment to Compliance. Cambridge University Press, 85:86 De Búrca G (2017) Human Rights Experimentalism. American Journal of International Law 111(2): 277–316 De Búrca G (2018) Samuel Moyn, Not Enough: Human Rights in an Unequal World. International Journal of Constitutional Law 16(4): 1347–1380, 1349 Deitelhoff N, Wolf K D (2013) Business and Human Rights: How Corporate Norm Violators Become Norm Entrepreneurs. In Risse T et al. (eds) The Persistent Power of Human Rights: From Commitment to Compliance. Cambridge University Press, 12:222–238 Dembour M-B (2018) Critiques. In: Moeckli D et al (eds) International Human Rights Law. Oxford University Press 3:41 Digiacomo G, Kang S (2019) The Institutions of Human Rights. University of Toronto Press Duffield J (2007) What are International Institutions? International Studies Review 9: 1–22 Engle Merry S (2006) Transnational Human Rights and Local Activism: Mapping the Middle. American Anthropologist 108(1):38–51 Engstrom P (2010) Effectiveness of International and Regional Human Rights Regimes. In Denemark A (ed) The International Studies Encyclopedia. Blackwell Publishing, Oxford Hafner-Burton E, Tsutsui K (2007) Justice Lost! The Failure of International Human Rights Law to Matter Where Needed Most. Journal of Peace Research 44(4):407–425 Hannum H (2016) Reinvigorating Human Rights for the Twenty-First Century. Human Rights Law Review 16(3): 409–451 Hannum H (2019) Recusing Human Rights: A Radically Moderate Approach. Cambridge University Press Hasenclever A, Mayer P, Rittberger V (1997) Theories of International Regimes. Cambridge University Press Hathaway O (2002) Do Human Rights Treaties Make a Difference. Yale Law Journal 111(8):1935– 2042 Hillebrecht C (2012) Implementing International Human Rights Law at Home: Domestic Politics and the European Court of Human Right. Human Rights Review 13:279–301 Hopgood S (2015) The Endtimes of Human Rights. Cornell University Press Hopgood S, Snyder J, Vinjamuri L (2017) Introduction: Human Rights Past, Present and Future. In: Hopgood S et al (eds) Human Rights Futures. Cambridge University Press 1:4 Jensen S (2019) Inequality a Prominent Concern for UN Human Rights Monitors. Open Global Rights. www.openglobalrights.org/inequality-a-prominent-concern-for-UN-human-rig hts-monitors Karlsson Schaffer J, Føllesdahl A, Ulfstein G (2014) International Human Rights and the Challenge of Legitimacy. In: Karlsson Schaffer J et al (eds) The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives. Cambridge University Press Krommendijk J (2014) The Domestic Impact and Effectiveness of the Process of State Reporting under UN Human Rights Treaties in the Netherlands, New Zealand and Finland. Intersentia Krommendijk J (2015) The (In)Effectiveness of UN Human Rights Treaty Body Recommendations. Netherlands Quarterly of Human Rights 33(2):194–223

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McGaughey F (2017) The Role and Influence of Non-Governmental Organisations in the Universal Periodic Review—International Context and Australian Case Study. Human Rights Law Review 17(3):421–450 Moyn S (2018a) Not Enough: Human Rights in an Unequal World. Harvard University Press Moyn S (2018b) Human rights and the Age of Inequality: The Human Rights Regime and Movement are Simply Not Equipped to Challenge Global Inequalities. Open Global Rights. www.opengl obalrights.org/human-rights-and-age-of-inequality Muñoz A (2017) International Human Rights Regimes. SUR International Journal of Human Rights 25 Oré Aguilar G, Saiz I (2020) Tackling Inequality as Injustice: Four Challenges for the Human Rights Agenda. Open Democracy. www.opendemocracy.net/en/openglobalrights-openpage/tac kling-inequality-as-injustice-four-challenges-for-h Packer J, Balan S (2020) A Genuine Human Rights-Based Approach for our Post-Pandemic Future. Open Global Rights. www.openglobalrights.org/genuine-human-rights-based-approachfor-post-pandemic-future Pegram T, Goodman R (2013) Human Rights, State Compliance and Social Change: Assessing National Human Rights Institutions. Cambridge University Press Shany Y (2012) Assessing the Effectiveness of International Courts: A Goal-Based Approach. American Journal of International Law 106(2): 225–270, 230 Simmons B (2009) Mobilizing for Human Rights: International Law in Domestic Politics. Cambridge University Press Simmons B, Martin L (2002) International Organizations and Institutions. In: Carlsnaes W et al (eds) Handbook of International Relations. Sage Publications Ltd., London Smith J, Cooper J (2019) Bringing Human Rights Home: New Strategies for Local Organizing. Open Global Rights. www.openglobalrights.org/bringing-human-rights-home-new-strategiesfor-local-organizing Webb P, Roberts K (2014) Effective Parliamentary Oversight of Human Rights - A Framework for Designing and Determining Effectiveness. Kings College London

Suzanne Egan is Associate Professor in the Sutherland School of Law at University College Dublin (UCD), where she has just completed a four-year term as the first Director of the UCD Centre for Human Rights (2015–2019). Suzanne has published widely in the field of international human rights law, policy and education, and was awarded a Higher Doctorate of Laws (LLD) by the National University of Ireland in 2017 for her published work in the field. Significant works include her book on The UN Human Rights Treaty System: Law and Procedure (Bloomsbury 2012), which was shortlisted for the Irish Association of Law Teachers, Kevin Boyle prize for outstanding legal scholarship; her edited collection, International Human Rights Law: Perspectives from Ireland (Bloomsbury 2015); and, most recently, her book entitled Extraordinary Rendition and Human Rights: Examining State Accountability and Complicity (Palgrave 2019). Suzanne teaches courses on International and European Human Rights Law and Human Rights Education at the Law School and was awarded a Teaching Excellence Award by UCD in 2017 for her sustained commitment to teaching excellence and student learning.

Part I

The Effectiveness of International Law: Institutions and Processes

Chapter 2

Effectiveness of the ICESCR Complaint Mechanism—An Analysis and Discussion of the Spanish Housing Rights Cases Fons Coomans and Miguel Ruiz Díaz-Reixa Contents 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Concepts and Theoretical Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Background of the Spanish Housing Rights Crisis: Evictions and Progressive Realisation of the Right to Adequate Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 The ICESCR Complaints Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Overview of Spanish Housing Rights Cases Under the Optional Protocol . . . . . . . . . . . . 2.6 Analysis of the Nature of the Complaints Submitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7 Analysis of the Examination of Complaints by the Committee and the (In)Admissibility of Decisions and Views Adopted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7.1 Analysis of Proportionality of the Eviction in the Judicial Proceedings . . . . . . . 2.7.2 Adequate Alternative Housing in Case of Necessity . . . . . . . . . . . . . . . . . . . . . . . 2.7.3 Interim Measures and Evictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7.4 Adequate Notice in Mortgage Enforcement Procedures . . . . . . . . . . . . . . . . . . . . 2.8 Reception of the Views in Spain (Impact) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.9 What Type of Action Has Been Taken to Follow Up on the Views of the Committee in Spain? (Effectiveness) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.9.1 The Executive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.9.2 The Judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.9.3 The Legislature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.10 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Against the backdrop of the Spanish housing rights crisis of the past decade, this chapter examines the impact and effectiveness of the outcome of cases of alleged violations of the right to adequate housing lodged with the UNCESCR against Spain as part of the individual complaint mechanism under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The authors conclude that, through its active engagement with housing rights issues (in particular evictions), the UNCESCR has made an important contribution to rendering F. Coomans Faculty of Law, Maastricht University, Maastricht, The Netherlands e-mail: [email protected] M. Ruiz Díaz-Reixa (B) Observatori DESC and Provivienda, Madrid, Spain e-mail: [email protected] © t.m.c. asser press and the authors 2021 C. Boost et al. (eds.), Myth or Lived Reality, https://doi.org/10.1007/978-94-6265-447-1_2

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the right to adequate housing effective, especially in situations of vulnerable victims. Given that the Committee is not a judicial body and that its jurisprudence does not constitute judgements, it can be said that its views and recommendations have increased its normative legitimacy within certain segments of Spanish society, such as civil society. However, the various branches of the Spanish government still have to accept the Views and recommendations of the Committee as the outcome of a process of international scrutiny of domestic issues that is authoritative and persuasive, while at the same time leaving the sovereign decision-making power unaffected. Keywords Right to housing · Evictions · ICESCR Optional Protocol · Spain · Normative legitimacy

2.1 Introduction Since the economic and financial crisis of 2008/2009 and its aftermath, the enjoyment of economic, social and cultural rights has been at risk in many European countries. People have lost their jobs, social security grants, pensions and social assistance grants have been cut, and governments have privatised social, health and housing services. Low-income families, the unemployed, the elderly, single-person households and persons with disabilities were—and still are—in a vulnerable position. The consequences of the economic crisis and the austerity measures taken by governments, often under pressure from the IMF, the European Central Bank and the Eurogroup, have been serious and severe. These effects are clearly visible in the housing sector: people are no longer able to pay their rent or the interest on their mortgage, and they may face higher rents as a result of privatization of their apartments. These phenomena are clearly visible in Spain, which has experienced a deep housing crisis. Many individuals have already been or may be evicted from their homes, like the sword of Damocles hanging over their heads. In Spain, many individuals who found themselves in such situations were taken to court, where they tried to suspend or postpone the eviction measures. However, in most cases, domestic judicial procedures did not provide a remedy for the defendants. A relatively small but increasing number of alleged victims decided to lodge a complaint under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR)—to which Spain is a State party. Article 11 ICESCR provides for the right to adequate housing. Claimants alleged a violation of this right and, in many cases, requested the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) to order interim measures of protection to prevent eviction. So far, the vast majority of cases under the Optional Protocol have been lodged against Spain, and almost all of them concern housing rights issues. This chapter will examine the question of the impact and effectiveness of the outcome of cases of alleged violations of the right to adequate housing lodged against Spain before the UNCESCR through the individual complaint mechanism under the Optional Protocol at the domestic level. The findings will contribute to a better

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understanding of the authority, legitimacy, and effectiveness of international quasijudicial bodies in the field of human rights. The chapter will also try to explain the large increase in the number of complaints against Spain and why individuals have turned to the UNCESCR as a last resort. As an approach or method for the present study, we will first define the notions of impact and effectiveness, which will be used to assess the significance of the ICESCR complaint mechanism at the domestic (Spanish) level. This will result in working definitions of these concepts. The background of the housing situation in Spain before, during, and after the economic and financial crisis will be described, as it has affected the right to adequate housing. In addition, a factual and legal analysis of the Spanish housing rights complaints will be provided, together with an analysis of the nature of the housing rights cases and an examination of some of these cases by the UNCESCR. Next, we will describe how these complaints were received in Spain and what the response by the authorities has been in terms of the impact of the complaints mechanism. We will then assess what type of actions or measures (if any) have been taken by the Spanish authorities to follow up on—or give effect to—the views of the UNCESCR in terms of the effectiveness of the complaints procedure. Attention will be paid to the responses by the executive, the legislature and the judiciary. Finally, the role of the UNCESCR as a quasi-judicial body providing protection in Spanish housing rights cases will be assessed.1 We have used different types of sources of information and materials: documents of the UN, in particular those of the UNCESCR, information on the individual complaints lodged against Spain, domestic legislation, policy documents and case law, information from Spanish NGOs and press coverage. In addition, two formal petitions have been lodged to obtain information of public interest under the Spanish Act 19/2013 on Transparency, Access to Public Information and Good Governance.

2.2 Concepts and Theoretical Framework As human rights researchers, are we not all interested in the question of whether the subject area we are researching leads to positive results, in terms of better protection of human rights? In the view of Kal Raustiala, a leading scholar in this field, effectiveness is about ‘desired behavioural change; effectiveness is the measure of that change.’2 Effectiveness is different from compliance; the latter term, though related, means a state of conformity between an actor’s behaviour and a specified rule. Generally speaking, effectiveness relates to ‘changes in behavior that would otherwise not have occurred’.3

1 Research for this chapter was concluded on 1 March 2020. Views of the UNCESCR adopted after

this date have not been considered. 2000, p. 394. 3 Ibid. 2 Raustiala

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Crucial in determining the effectiveness or ineffectiveness of human rights are the goals set, which serve as benchmarks for assessing effectiveness. Such goals may be the protection or fulfilment of rights, the achievement of a policy objective, or a greater awareness of human rights among the general public. The specific goal also depends on the identity of the actor who sets the goals. Lastly, a researcher must know or perhaps design the criteria by which effectiveness can be measured. It is clear that these types of issues and questions often require an interdisciplinary research approach, taking the legal and social sciences into account in the research design. Another dimension of the effectiveness discussion is the relationship between cause and effect: has the observed effect on human rights been caused by a specific action, decision, intervention, or failure to act? In our case, have the UNCESCR’s views in individual complaints from Spanish citizens about housing rights (evictions) been effective in terms of protecting the right to adequate housing? The effectiveness of an action is often related to its impact at the domestic level. This refers to the extent to which the outcome of a case has been picked up by domestic actors, such as the media and NGOs, and political actors, such as the Parliament and local authorities. Defining impact is related to domestic mobilisation. Beth Simmons has argued that litigation can be used strategically, not only to win an individual case, but also more generally to mobilise support for a cause that affects more people, in our case house evictions.4 In this respect, the way in which key domestic actors assess the impact of views or recommendations on their position is important. These actors may include domestic courts, the parliament, political parties, the national executive and administration, civil society organisations and the business sector. They belong to what Follesdal has referred to as the ‘compliance community’.5 Treaty commitment by an authoritative domestic judicial body is a key factor in determining the impact and legitimacy of Views of treaty bodies in cases of individual complaints at the domestic level.6 This brings us to the question of whether and when outcomes of international complaints procedures (Views) are considered legitimate at the domestic level. Legitimacy is thus a factor that determines the effectiveness of human rights at the domestic level.7 Follesdal has raised the question ‘why should the decisions or recommendations of the international judiciary count as (defeasible) reasons for other actors when they decide to do so?’8 This relates to the concept of ‘normative legitimacy’, which concerns ‘the various forms of normative pull or compliance-eliciting force that the concept of “legitimacy” exerts with regard to the international judiciary’.9 UN human rights treaty bodies are relatively weak compared to international human

4 Simmons

2009, p. 132. 2013, pp. 342–343. 6 Simmons 2009, p. 135. 7 Keller and Ulfstein 2012, p. 9. 8 Follesdal 2013, p. 345. 9 Follesdal 2013, p. 345. 5 Follesdal

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rights courts, because their views and recommendations cannot be enforced. Therefore, in Follesdal’s words, ‘the treaty body must be able to influence actors’ reasons for action without the threat of sanctions. (…) A state that decides to heed the authority of such bodies even against its other countervailing interests must thus be convinced to comply, possibly by the perceived normative legitimacy of the authority.’10 Departing from this latter concept and Follesdal’s views, Sandra Liebenberg has suggested that when dealing with individual complaints, the UNCESCR should try to strike a balance between, on the one hand, respecting the sovereignty of States when making decisions on social and economic policy issues and, on the other hand, the Committee’s role in holding States accountable for the way in which they have implemented, or failed to implement, the obligations of the ICESCR.11 In this contribution, the authors will apply the concepts of impact and effectiveness as defined above, against the background of the need for normative legitimacy of the UNCESCR Views as the outcome of a quasi-judicial human rights monitoring procedure that cannot be enforced, but which aims to be persuasive.

2.3 Background of the Spanish Housing Rights Crisis: Evictions and Progressive Realisation of the Right to Adequate Housing It is fair to say that the Spanish housing rights crisis began in 2008. At the same time, one could also argue that it began much earlier, in 1978. In the same way, one could say that ‘the idea of crisis implies that inadequate or unaffordable housing is abnormal, a temporary departure from a well-functioning standard. But for working-class and poor communities, the housing crisis is the norm’.12 1978 Based on the latter, there are two main arguments explaining why the housing rights crisis started much earlier than the 2008 collapse. The first argument relates to the social rights protection framework adopted in the Spanish Constitution of 1978 (hereinafter referred to as ‘SC’), which was the result of the transition from the Francoist Dictatorship to the current parliamentary monarchy. It endorsed a ‘legally weakened position bestowed to social rights in comparison with other rights’ that resulted in a ‘structural situation of inferiority and depending on

10 Follesdal

2013, p. 346 (italics in the original). 2020, pp. 57–58. 12 Madden and Marcuse 2016, p. 9. 11 Liebenberg

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what is economically possible’13 and reflected on the legal qualification given to most of them,14 referred to as ‘guiding principles of social and economic policy’.15 With regard to their legal protection, social and economic rights in the SC are excluded from two judicial guarantees typical for other fundamental rights: (i) the preferential and summary procedure before ordinary courts in case of breach of fundamental rights; and (ii) the individual appeal for protection before the Constitutional Court, the so-called amparo appeal. Similarly, the necessary qualified majorities for the adoption, amendment and derogation of acts regulating civil and political rights are not required for most economic and social rights. Moreover, in the absence of a statutory regulations that develop these rights, the government deviates from its justiciable character by merely considering them as ‘ruling principles’ for the public authorities. This legal dimension is perfectly understandable, as the SC is a product of its era and was born at a time where neoliberalism was on the rise and when the international legal community was unable to ensure equal treatment in terms of civil and political rights and economic, social and cultural rights. In this legal context, Article 47 of the SC establishes that ‘All Spaniards have the right to enjoy decent and adequate housing. The public authorities shall promote the necessary conditions and establish appropriate standards in order to make this right effective, regulating land use in accordance with the general interest in order to prevent speculation. The community shall have a share in the benefits accruing from the town-planning policies of public bodies’. As we will see later, public authorities have not taken this article seriously, either as a guiding principle or as a subjective right. The second argument in support of the view that the housing rights crisis started well before the twenty-first century is a direct consequence of the first. Without a solid legal protection framework, advocated before the courts in connection with other fundamental rights, and with the view that housing is merely a commodity rather than a right, the regulation of housing was left almost entirely to the market for decades, making the real estate sector one of the most strategic sectors in the Spanish economy. 2008–2019 Despite the fact that before the 2008 economic crisis some social movements were already calling for the fulfilment of the right to housing,16 it was only when the real estate bubble burst and the labour market collapsed that people began to realise that the right to housing in Spain was hollow. The indignation that began to mobilise

13 Anón

and Pisarello 2006, pp. 67 and 76. the rights to freely join trade unions, the right to strike and the right to education. 15 Third Chapter, Title First, SC. 16 An example was V de Vivienda, which claimed governmental transparency in relation to the access to housing, the creation of a census of empty homes and the creation of a substantial public housing stock. 14 Except

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civil society, due to a rapid increase in the number of foreclosures and related evictions, the inadequate supply of (affordable) public housing17 and the abusive system of foreclosures, was exacerbated by the perverse effect of central governmental decisions.18 In this vein, the Spanish central government first decided to remedy the losses of the financial/commercial real estate sector by rescuing the banks. It then decided to reactivate the real estate bubble by exempting vulture funds from corporate tax19 and reducing the minimum lease term from 5 to 3 years,20 thus making the rotation of tenants highly attractive to international investors21 and broadening the housing crisis from mortgages to leases. Not surprisingly, rents in Spain increased by 50% between 2014 and 2019;22 there have been more than 500,000 evictions since 2008, which constitutes a gross violation of human rights;23 and occupation of empty flats, subletting of rooms or migration to other districts or regions have become the only means to access housing for many vulnerable families. It is therefore not surprising that housing social movements are not speaking of a crisis, but of fraud in a global context of gentrification and in ‘the age of Hyper-Commodification’ of housing.24 Despite this list of ‘housing issues’, small victories have been achieved for civil society in recent years. For instance, the European Court of Justice has issued several judgments on the abusive conditions of mortgages and on foreclosure procedures

17 In the course of decades, in contraposition to other European countries, authorities had been directly or indirectly constructing affordable housing, which by law was to lose its protection in 10, 20 or 30 years. As a result, all the public investment on housing has been translated into a mere 2% of affordable housing. Concern “about the lack of social housing” was already expressed by the ICESCR in the 4th Concluding Observations of 7 June 2004 (E/C.12/1/Add.99, para 21). 18 Despite the fact that the Spanish political and administrative system is decentralized, with the Autonomous Communities (regional or semi-federal governments) having competence on housing, other matters affecting housing such as the rental market, mortgages, foreclosures and evictions are central competences. In this regard, it is interesting to note that the central government has lodged appeals before the Constitutional Court in all the emergency housing acts adopted by the Autonomous Communities, alleging lack of competence and suspending their effect. The Constitutional Court in this regard has declared all of these acts partially unconstitutional, adopting a centralized view of the CESCR that cannot be understood without acknowledging the territorial crisis in Spain. 19 In 2012, Act 16/2012 modified the legal regime of SOCIMIS (financial investment vehicles articulated upon real estate rented commodities), exempting such companies from corporation taxes, which prior to the modification amounted to 19%. In this sense, Leilani Farha, the UN Special Rapporteur on the right to adequate housing, and Surya Deva, the Chairperson of the Working Group on business and human rights, have written to Spain, among other countries, for “noting that each had facilitated the financialisation of housing in their own countries through preferential tax laws and weak tenant protections among other measures”. For more information, see OHCHR 2019. 20 In 2013, the Act 4/2013 modified, among others, the minimum length of lease agreements, reducing it from 5 to 3 years. 21 For more information, it would be interesting to read Gil 2018. 22 López-Rodríguez and de los Llanos 2019, p. 7. 23 Observatori DESC 2018, p. 3. 24 Madden and Marcuse 2016, p. 26.

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in Spain.25 Furthermore, the central government has passed several acts aimed at protecting vulnerable families against evictions, and some Autonomous Communities have implemented emergency housing acts.26 Despite these reforms, the Spanish housing rights crisis is far from over, as rents are still skyrocketing and 29,684 effective evictions took place during the first three trimesters of 2019.27 Although there is no reliable data on the effectiveness of the housing measures taken so far by the government to protect vulnerable citizens from the socio-economic consequences of the COVID-19 crisis, it seems that slowly the tide is turning and that the regressive reforms are being set aside; in fact, the central government passed several progressive acts on housing in 2019. As will be demonstrated in the following sections, some of these acts were influenced by the first decisions of the UN Committee on Economic, Social and Cultural rights that were adopted after the Spanish ratification of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights in 2010, Spain being the first European State to ratify it.28

2.4 The ICESCR Complaints Procedure29 The Optional Protocol to the ICESCR was adopted by the UN Human Rights Council on 18 June 2008 and by the General Assembly on 10 December 2008.30 The Protocol entered into force on 5 May 2013. At the time of writing, the Protocol had 24 States parties. In the text that was adopted by the Human Rights Council and the General Assembly, the right to file a complaint is limited to communications from individuals, and there is no possibility to lodge collective complaints (Article 2). Communications may relate to alleged violations of any of the rights set forth in Part II and Part III of the Covenant, thus excluding the right to self-determination in Part I. This means that both an à la carte approach and an opt-out possibility were rejected. 25 Among others, the case of Mohamed Aziz v. Catalunyacaixa (C-415/11), the case of Banco Primus, S.A. v. Jesús Gutiérrez García (C-421/14), and Abanca v. others (Joined Cases C-70/17 and C-179/17). 26 In Catalonia (Act 24/2015 and Act 18/2007), the Basque Country (Act 3/2015) and the Balearic Islands (Act 5/2018), housing acts have regulated the expropriation and mandatory assignment of empty homes, the mandatory social rent in case of evictions of vulnerable families, and the obligation of the Administration to relocate families that have suffered evictions without residential alternative, among others. 27 Consejo General del Poder Judicial 2019. 28 The scarce number of States that have ratified the Optional Protocol (9 European States and 24 in total) is a symptom of the reluctance of States to have economic, social and cultural rights breaches monitored by the ICESCR, in particular where in many States these rights could be better described as ‘market rights’. 29 This section is partly drawn from Coomans 2018. 30 UNGA Res. 63/117.

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Article 3 of the Protocol contains the usual admissibility criteria. This includes the requirement to exhaust domestic remedies (Article 3(1)). A communication will also be declared inadmissible if it is manifestly ill-founded, not sufficiently substantiated or exclusively based on reports disseminated by mass media (Article 3(2)(b)).31 Article 4 of the Protocol essentially adds that the Committee may decline to consider a complaint where it does not reveal that the author has suffered a clear disadvantage. This provision may act as a barrier to, or hinder, a large number of cases on minor issues that the Committee would otherwise have had to consider. Article 4 is not an additional admissibility criterion, but concerns the assessment of the merits of a complaint. The Protocol also offers the possibility of so-called interim protection measures in exceptional circumstances to prevent irreparable damage to victims of alleged violations (Article 5). For the purpose of this chapter, this is an important provision, as it may be used by the Committee to prevent forced evictions of complainants. In the meantime, the Committee has issued the document ‘Guidelines on Interim Measures’.32 Interim measures may be appropriate in the absence of effective domestic remedies that could potentially prevent irreparable damage. In the admissibility decision in the S.S.R. v. Spain case, the Committee elaborated on the nature of requests for interim measures of protection, in particular in eviction cases.33 The Committee explained that ‘[i]n line with the practice of other international human rights bodies, the Committee regards “exceptional circumstances” as referring to the serious impact that an act or omission by the State party may have on a protected right or on the future effectiveness of any decision by the Committee on a communication submitted for its consideration. In this context, “irreparable damage” refers to the threat or risk of a rights violation that is of such a nature as to be irreparable or not adequately compensable or capable of forestalling the possibility of restoring the rights that have been violated.’34 If the Committee adopts interim measures of protection in a particular case, the State Party concerned must comply with the Committee’s request. The Committee considers that, by being a State party to the Optional Protocol, the State has an obligation to cooperate with the Committee. It adds: ‘[a]ny State party that does not adopt interim measures fails to fulfil its obligation to respect in good faith the procedure for individual communications established in the Optional Protocol.35 The Committee therefore holds that requests for interim measures of protection are legally binding. This is in line with the position of other UN human rights treaty bodies.’36

31 For

a discussion of the admissibility of a number of complaints submitted, see Liebenberg 2020, pp. 59–63. 32 Available at https://www.ohchr.org/en/hrbodies/cescr/pages/cescrindex.aspx, accessed 20 May 2020. 33 UN Doc. E/C.12/66/D/51/2018 (27-11-2019). 34 UN Doc. E/C.12/66/D/51/2018, para 7.3. 35 UN Doc. E/C.12/66/D/51/2018, para 7.7. 36 Human Rights Committee, General Comment No. 33 (2008), para 19.

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After the Committee has examined the merits of a communication, the procedure concludes with the adoption of views on whether a violation has occurred, together with the drafting of the Committee’s recommendations (Article 9(1)). The State party ‘shall give due consideration’ to the views and recommendations of the Committee and respond within six months. This response should also include any action taken in light of the views and recommendations (Article 9(2)). At its 61st session in June 2017, the Committee adopted a procedure to follow up on the Views. As part of this procedure, it will examine whether and, if so, how, recommendations relating to the victim and the general recommendations have been given effect. On the basis of the information provided by the parties, the Committee will assess the implementation of the views and recommendations, and may request further information or clarification from the State party or the author of the communication. The Committee has decided that the follow-up procedure to views and recommendations should be made public. This means that the information provided by the Parties may be made available on the website of the Committee, together with any information from National Human Rights Institutes and civil society organisations concerning the implementation of general recommendations. In 2019, the Committee published its first report on the follow-up to communications.37 This concerned two Spanish housing rights cases.38 Another key issue is how the Committee should deal with complaints alleging that a State has failed to progressively realise the rights as provided for in Article 2(1). What type of standard should be used to assess an alleged violation of the notion of progressive realisation? The approach for reviewing complaints alleging a violation of the obligation to progressively realise one or more of the rights is contained in Article 8(4) on the examination of the merits of a communication. Article 8(4) reads as follows: When examining communications under the present Protocol, the Committee shall consider the reasonableness of the steps taken by the State Party in accordance with Part II of the Covenant. In doing so, the Committee shall bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the rights set in the Covenant.

The concept of reasonableness as a standard of review is likely to have been taken from the jurisprudence of the Constitutional Court of South Africa, which applies this standard to assess the extent to which the government has complied with its obligation to progressively realise a number of economic and social rights listed in the South African Constitution.39 The Committee is also in favour of applying some form of reasonableness review and elaborated on this in a 2007 Statement.40 In that Statement, the Committee set out/identified several criteria to be applied in evaluating whether States have complied with the obligation to take as many steps/measures as possible within the available resources when examining cases under an Optional 37 UN

Doc. E/C.12/66/3. 2/2014, I.D.G. v. Spain and communication 5/2015, Mohamed Ben Djazia and Naouel Bellili v. Spain. 39 Liebenberg 2010, p. 145. 40 UNCESCR Statement: An Evaluation of the Obligation to Take Steps to the “Maximum of Available Resources” under an Optional Protocol to the Covenant, UN Doc. E/C.12/2007/1. 38 Communication

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Protocol. In the Statement, the Committee also mentioned that it would respect the margin of discretion of a State party to determine the optimal use of its resources, and to adopt national policies and prioritise certain resource demands over others. This Statement is important because it is clearly intended to reassure Western states in particular that the Committee will not interfere with policy decisions in the field of economic, social and cultural rights, provided that these measures are reasonable. The Optional Protocol to the ICESCR is important for a number of reasons. First of all, a complaints procedure at the international level strengthens the accountability of governments before an international body with respect to the extent to which they comply with their treaty obligations. These governments will then be under strong pressure to justify their policies, their actions, or their negligence. In addition, the Protocol to the Covenant is a stimulus for NGOs and lawyers to support victims of violations of economic, social and cultural rights in bringing their claims before an international quasi-judicial body. Finally, and perhaps most importantly, in some cases a complaint lodged with the Committee—and the views or findings adopted by this Committee—may lead to a remedy for the victim. This may include: the cessation of the violation; compensation for the harm incurred; a commitment by the government to observe its treaty obligations, for example by amending domestic legislation; the effective enjoyment of a right, for example gaining access to a school, health service or housing programme. These possible outcomes would, naturally, depend on the willingness of the government to implement in good faith the views of the Committee, which are authoritative but, strictly speaking, non-binding under international law because of their soft law nature. In our opinion, however, the correct legal meaning of Views entails that States have voluntarily decided to become State parties to the Covenant and to its Optional Protocol. These are treaties, i.e. legally binding instruments. The Optional Protocol provides an international remedy for alleged victims of violations of economic, social and cultural rights. States are under the obligation to accept and implement in good faith the outcome of the complaint procedure in a particular case. If they were allowed to ignore the Views of the Committee as they see fit, there would be no point in becoming a State party to the Optional Protocol. Such behaviour would undermine the raison d’être of the Protocol. This is also the interpretation of the term ‘Views’ adopted by the UN human rights treaty bodies.

2.5 Overview of Spanish Housing Rights Cases Under the Optional Protocol Vulnerable people in Spain have found their way to the Committee to seek protection of their housing rights. In many of these cases, the immediate housing situation of complainants was at risk. The complainants requested the Committee to order interim measures of protection. This section will briefly discuss some typical features of such cases.

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A typical example was a case in which alleged victims lodged a request for interim measures of protection, because they were facing an eviction from their homes as a result of a court order.41 They had been occupying a flat without legal title. The flat was owned by a private financial entity. The complainants alleged that they were in a situation of absolute economic precariousness. In similar cases, the claimants were not offered adequate alternative housing prior to eviction. They could not afford accommodation in the private housing market.42 In some cases, the court eviction order was suspended because of the vulnerable situation of the claimants, for example in cases where a member of the family was disabled and there was a low family income.43 Another characteristic of a number of cases was the fact that public social housing institutions in Madrid had sold flats to private funds. Claimants were unable to afford the higher market rent or were unable to find alternative housing in the private sector because of their unstable income. This, in combination with the lack of alternative public housing, made their situation precarious.44 In another case in which the Committee discussed the instrument of interim measures in detail, it noted that on 5 September 2018, in the course of its consideration of the communication, it requested the State party to suspend the author’s eviction, while the communication was being considered, or to provide the author with adequate housing—in genuine consultation with her—in order to avoid irreparable damage. However, by note verbale dated 19 October 2018, the State party requested the withdrawal of the request for interim measures, primarily on the grounds that the author had not taken part in the authorities’ attempts to enter into a dialogue with her. The author of the communication was evicted on 22 October 2018, which was before the expiry of the deadline for submitting her observations on the State party’s request to withdraw the interim measures and for the Committee to decide on the request.45 By failing to honour the request for interim measures, the State party failed to comply with its obligations under Article 5 of the Optional Protocol and made it unlikely that the impending decision or the Views would provide effective protection, thus depriving the individual communications procedure of its raison d’être.46 To ensure the integrity of interim measures, the Committee advised the State Party to develop a protocol for granting requests for interim measures.47 There have not yet been many decisions by the Committee in Spanish housing rights cases which concluded that a complaint was inadmissible. One example is a case where the Committee noted that the communication was manifestly unfounded because it related to a real estate investment, not to the purchase of a main residence, and that the authors’ main dwelling was never seized. The Committee argued that the 41 Case

26/2018. 37/2018, 49/2018, 59/2018. 43 Case 97/2019, 121/2019. 44 Case 135/2019. 45 S.S.R. v. Spain, UN Doc. E/C.12/66D/51/2018, para 7.1. 46 UN Doc. E/C.12/66D/51/2018, para 7.8. 47 UN Doc. E/C.12/66D/51/2018, para 10. 42 Case

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authors had not substantiated their claim that their main dwelling was at imminent risk of being seized, that they would be subject to forced eviction, and that their right to housing might therefore be infringed.48 Finally, some cases were discontinued. For example, two complaints were withdrawn by the authors, because in the meantime they had rented social housing from the municipal housing institution.49 In addition, a relatively large number of cases were discontinued because the Committee had been unable to establish contact with the authors of the communication after submission. At the time of writing, a large number of cases against Spain is still pending.

2.6 Analysis of the Nature of the Complaints Submitted This section will describe the nature of the complaints in the four individual communications alleging violations of the right to adequate housing and in which the UNCESCR had the opportunity to adopt views and recommendations, in particular as to whether the cases dealt with negative or positive obligations of the State, and on the elements of the right to housing at stake. In this regard, and prior to analysing them, it is worth noting that almost all of these cases relate to obligations arising during the eviction process, since individual communications before the UNCESCR are viewed—by social housing movements in Spain—as the last resort to suspend evictions, mostly because of the impossibility of alleging a breach of the right to adequate housing before the Constitutional Court. In concrete terms, the complaints relate to: the guarantees offered by judicial or administrative bodies that decide on and enforce evictions; the duty of the State to provide alternative housing in case of necessity; and the obligation of the State to respect UNCESCR requests for interim measures. With regard to the first type of complaint, the UNCESCR—in the Ben Djazia and López Albán communications—examined the possibility of defendants lodging an appeal so that the judge could assess the consequences of an eviction and consider the possibility to suspend it. The obligation to respect and protect persons affected by evictions relates to the last resort nature attributed to evictions by UNCESCR’s General Comment nº 4, which establishes that ‘instances of forced eviction are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law’.50 Similarly, General Comment nº 7 already contained several obligations that must be respected during forced evictions, such as prior consultation

48 UN

Doc. E/C.12/65/D/9/2015. Doc. E/C.12/66/D/98/2019 and E/C.12/66/D/110/2019. 50 Committee on Economic, Social and Cultural Rights, General Comment No. 4: The right to adequate housing, (1991), para 18. 49 UN

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of affected persons, economic compensation and legal remedies,51 not only in cases of forced evictions, but also for ‘justifiable’ evictions.52 The second type of complaint refers to the duty of States to provide alternative housing in case of necessity, which was also analysed by the UNCESCR in the Ben Djazia and López Albán cases. This positive obligation to fulfil the right to housing is also contained in GC nº 7, which requires that ‘Evictions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available’.53 As will be explained, the facts in the Maribel Viviana López Albán v. Spain case gave the UNCESCR the opportunity to link this duty to the non-discrimination obligation enshrined in Article 2(2) of the ICESCR, which is analysed in more detail in General Comment nº 20.54 The third type of complaint related to evictions concerns the positive duty of State Parties to respect the interim measures requested by the UNCESCR, in accordance with Article 5(1) of the OP-ICESCR, and the general jurisprudence of the Human Rights Committee55 and the Committee against Torture.56 It was analysed both in López Albán and S.S.R communications. In addition, the UNCESCR was able to analyse a complaint related to a noneviction case. In this case, the UNCESCR’s first adoption of views focused on the obligation to give adequate notice in mortgage enforcement procedures. This positive obligation to protect persons during a foreclosure is based on the more general procedural obligation set forth in General Comment nº 7, which obliges States to give ‘adequate and reasonable notice for all affected persons prior to the scheduled date of eviction and legal aid for their defense’.57 To conclude, it is interesting to relate complaints to the claimant’s type of housing tenure; there have been seven cases related to foreclosures and mortgages (4.54%), 45 cases related to lease agreements (29.22%), 100 cases related to occupation

51 Committee on Economic, Social and Cultural Rights, General Comment No. 7: The right to adequate housing (Article 11(1) of the Covenant): Forced evictions, (1997), paras 13–15. 52 Ibid., para 11. 53 Ibid., para 16. 54 Committee on Economic, Social and Cultural Rights, General Comment nº 20: Nondiscrimination in economic, social and cultural rights, 2 July (2009); see also: UN Doc. A/HRC/31/54, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, (30/12/2015), paras 25–38. 55 UN Doc. CCPR/C/GC/33, Human Rights Committee, General Comment nº 33: The Obligations of State Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, 25 June 2009, para 19. 56 UN Doc. CAT/C/61/D/614/2014, Committee against Torture, Subakaran R. Thirugnanasampanthar v. Australia, 9 August 2017, para 6.1. 57 General comment No. 7, para 15.

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without a legal title (64.93%) and two related to other types of tenure (1.29%).58 These statistical differences, depending on the type of housing tenure, may reflect the unequal protection afforded by domestic law and the opportunities for people to access housing in a system where economic, social and cultural rights are fully commodified.

2.7 Analysis of the Examination of Complaints by the Committee and the (In)Admissibility of Decisions and Views Adopted The following section will study the Committee’s examination of the complaints and the decisions and views adopted. In doing so, we will keep with the order used in the above section.

2.7.1 Analysis of Proportionality of the Eviction in the Judicial Proceedings Firstly, concerning the possibility for defendants to lodge an appeal so that the judge may consider the consequences of an eviction, and the possibility to suspend it in the absence of alternative housing, the UNCESCR has dealt with two different applications. The first was the case of Mohamed Ben Djazia, Naouel Bellili and their two minor children. For years they had been living in a rented apartment in Madrid, but after they had not paid the rent for several months, the landlord informed them that the rental agreement would not be extended. As they did not leave, the landlord initiated civil proceedings to repossess the flat. During the various stages of the domestic judicial process, Ben Djazia proved that he had submitted 13 public housing applications before the Madrid Housing Institute in the past 14 years without success. In the same vein, he alleged before the Court the impossibility of accessing housing on the private market and the lack of alternatives in case of eviction. Furthermore, he requested the Court to require the municipal and regional social and housing institutions to find a solution. However, after several suspensions of the eviction, Ben Djazia and his family were evicted. For the first 10 days, they were housed in a temporary shelter of the Public Administration, but then they were left to fend for themselves and slept in their car for four days, until an acquaintance of theirs provided them with accommodation.

58 In relation to the total amount of communications received by Spain before December 2019. Data obtained through the right of access to public information enshrined in Act 19/2013, of 9 December 2013, on transparency, access to public information and good governance.

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After examining the claims of the State and the third-party submission, the UNCESCR reminded Spain that, even if the eviction is justifiable and it is carried out in accordance with national law, ‘relevant authorities must ensure that it is carried out in accordance with legislation that is compatible with the Covenant, including the principle of human dignity contained in the preamble, in accordance with the general principles of reasonableness and proportionality’.59 In this sense, the Committee took note of the fact that domestic law does not provide the possibility to object or lodge an appeal during the judicial proceedings in order to explain the consequences of the eviction, and that judges are not required by law to suspend an eviction until alternative accommodation is available for the person concerned. The UNCESCR reiterated that evictions should not render individuals homeless, and declared that the eviction of authors—without the guarantee that alternative accommodation is available—constitutes a violation of their right to adequate housing.60 As a consequence, on 20 June 2017 the UNCESCR issued a recommendation to Spain, urging the country to: (a) ensure that in judicial proceedings, defendants could object or lodge an appeal so that the judge may consider the consequences of an eviction and its compatibility with the Covenant; (b) resolve the lack of coordination between court decisions and the actions of social services; and (c) ‘ensure that evictions involving persons who do not have the means of obtaining alternative housing are carried out only following genuine consultation with the persons concerned and once the State has taken all essential steps, to the maximum of its available resources, to ensure that evicted persons have alternative housing, especially in cases involving families, older persons, children and/or other persons in vulnerable situations’.61 One year later, in the views adopted in the case Maribel Viviana López Albán v. Spain, the Committee went further in clarifying State parties’ obligations. The case concerned the eviction of Maribel Viviana and her six minor children. Maribel was prosecuted for occupying an apartment without a legal title in the city of Madrid. As with Ben Djazia, she had submitted several applications for public housing and denounced her situation of socioeconomic exclusion. The first attempts of repossession were suspended. Maribel then submitted an individual communication before the UNCESCR in order to suspend the following eviction until she was granted alternative housing. Despite the adoption of interim measures by the UNCESCR, the family was ultimately evicted and relocated to various temporary shelters. In relation to the admissibility of the communications, the UNCESCR adopted a very progressive position, as it extended its previous position on the guarantees required for justifiable eviction to occupation without legal title. With regard to the merits and the obligation of the State to take into consideration the consequences of the eviction, the UNCESCR was clear on the requirement for the State to make an effective analysis of proportionality between the benefits for the owners of the properties (right to property) and the consequences that the measures

59 E/C.12/61/D/5/2015, 60 Ibid.,

para 17.8. 61 Ibid., para 21.

para 13.4.

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would have on the evicted persons (right to housing). In this sense, the Committee stated that: Analysing the proportionality of an eviction entails examining not only the consequences of the measures for the evicted persons but also the owner’s need to recover possession of the property. This inevitably involves making a distinction between properties belonging to individuals who need them as a home or to provide vital income and properties belonging to financial institutions, as in the current case.62

In accordance with and in light of ‘the principles of reasonableness and proportionality’, it may be necessary to ‘suspend or postpone the eviction order so as to avoid subjecting the evicted persons to situations of indigence or violations of other rights contained in the Covenant’.63 Consequently, the UNCESCR recommended the development of a normative framework for the analysis of proportionality in eviction cases, along the same lines as the previous recommendations in the views adopted in the Ben Djazia case.

2.7.2 Adequate Alternative Housing in Case of Necessity In the Ben Djazia communication, the UNCESCR addressed for the first time the duty of States to provide alternative housing. Based on the previous premise that evictions should not render individuals homeless, it declared that the State party must ‘demonstrate that it has considered the specific circumstances of the case and that, despite having taken all reasonable measures, to the maximum of its available resources, it has been unable to uphold the right to housing’.64 Since Spain’s arguments were insufficient to demonstrate that it had made ‘all possible effort, using all available resources, to realize, as a matter of urgency, the right to housing’65 of Ben Djazia’s family, and as it did not explain ‘to the Committee why the regional authorities in Madrid, such as the Madrid Housing Institute, sold part of the public housing stock to investment companies’,66 the UNCESCR concluded that there had been a violation of the State’s obligation to provide alternative housing. Consequently, the Committee issued a recommendation for Spain to ‘develop and implement, in coordination with the autonomous communities, to the maximum of available resources, a comprehensive plan to guarantee the right to adequate housing for low-income persons’.67

62 Committee

on Economic, Social and Cultural Rights; Maribel Viviana López Albán v. Spain, 11 October 2019, para 11.5. 63 López Albán v. Spain, para 11.5. 64 Ben Djazia v. Spain, para 15.5. 65 Ibid., para 17.5. 66 Ibid., para 17.5. 67 Ibid., para 21(d).

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In the López Albán case, the UNCESCR reiterated the fact that States have a duty to take all reasonable measures to provide alternative housing in the event that an eviction might lead to a situation of homelessness, ‘irrespective of whether the eviction is initiated by its authorities or by private entities such as the owner of the property’ and the need to ‘take consistent and coordinated measures to resolve institutional shortcomings and structural causes of the lack of housing’.68 Moreover, since the various applications for social housing submitted by Maribel Viviana were all rejected on the grounds that she was occupying an apartment without legal title, the UNCESCR declared that ‘the conditions governing access to social services must be reasonable and carefully designed, not only so as to prevent potential stigmatization but also to ensure that the conduct of a person in need of alternative housing cannot in itself be used by the State to justify denying his or her application’69 and recommended that Spain should ‘ensure that all persons have equal access to the social housing stock, by removing any unreasonable condition that might exclude persons at risk of indigence. In particular, the State should end the practice of automatically excluding persons who are occupying a property without legal title because they are in a situation of necessity’.70

2.7.3 Interim Measures and Evictions The Committee has also adopted views on the duty of States to respect the interim measures it requested. In this regard, in the López Albán communication, the eviction was carried out just two days after the UNCESCR’s request—to suspend the eviction, or alternatively, to provide the family with adequate alternative housing—was issued. Despite the fact that the Spanish authorities claimed that the various shelters where Maribel Viviana and her six children were relocated met the conditions of adequate alternative housing, the Committee noted that the relocation did not meet one of the essential elements to be considered as adequate alternative housing, namely the provision of ‘security of tenure’.71 As a result, it declared that Spain had violated its duty to respect interim measures, in breach of Article 5 of the OP-ICESCR, and recommended the establishment of ‘a protocol for complying with requests for interim measures issued by the Committee and inform all relevant authorities of the need to respect such requests in order to ensure the integrity of the procedure’.72 In the S.S.R. v. Spain case, adopted jointly with López Albán on 11 October 2019, the UNCESCR declared the communication inadmissible on the grounds that it was insufficiently substantiated, essentially because the author failed to provide

68 López

Albán v. Spain, paras 9.1–9.2. Albán v. Spain, para 10.1. 70 López Albán v. Spain, para 17(c). 71 López Albán v. Spain, para 13.2. 72 López Albán v. Spain, para 17(f). 69 López

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information ‘of how she was housed since the date of her eviction’.73 Nonetheless, the Committee examined whether the eviction of the author following the request for interim measures amounted to a breach of Article 5 of the OP-ICESCR. In doing so, the UNCESCR adopted a pedagogic perspective and set out the requirements and conditions that communications concerning evictions should contain in order to request their suspension, dissecting in depth the various elements of Article 5(5) of the OP-ICESCR, such as ‘exceptional circumstances’ or ‘irreparable damage’. In this sense, one could say that it is the intention of the Committee to set clear principles after having received more than 158 individual communications in recent years and having requested the adoption of interim measures in more than 138 cases originating from Spain and relating to housing rights.74 Finally, the UNCESCR recalled the general jurisprudence of human rights treaty bodies, stating that failure to comply with the interim measures breached the obligation to ‘cooperate with the Committee in good faith’.75

2.7.4 Adequate Notice in Mortgage Enforcement Procedures Finally, the UNCESCR also analysed the lack of adequate notice in a mortgage enforcement procedure in the case of I.D.G. v. Spain. In this case, it was clear that the author missed several mortgage payments and that the lending institution initiated mortgage enforcement proceedings against her. However, the author alleged that she was not aware of the foreclosure after the auction of her house had been ordered. The Spanish authorities alleged before the Committee that four unsuccessful attempts had been made to notify the author at her home, and shortly afterwards, the notification was effectuated by means of a public notice. On the merits, the UNCESCR considered that States parties should ensure that procedures in the context of forced evictions, which may affect security of tenure and possibly result in an eviction, ought to apply the procedural protections that would guarantee, among other things, a real opportunity for consultation with those affected, as well as adequate and reasonable notice for all affected persons.76 Since the Court did not notify the author by the various means available in the domestic law, and taking into consideration the fact that the irregularity in the notice had significantly impacted the author’s right to defend the full enjoyment of her home,

73 E/C.12/66/D/51/2018, Committee on Economic, Social and Cultural Rights; S.S.R. v. Spain, 11 October 2019, para 6.3. 74 Data obtained through the right of access to public information enshrined in Act 19/2013, of 9 December 2013, on transparency, access to public information and good government. 75 S.S.R. v. Spain, para 7.7. 76 Ibid., para 11.2.

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the Committee declared that Spain had violated Article 11 of the Covenant. Consequently, the Committee issued a recommendation for Spain to ‘ensure the accessibility of legal remedies for persons facing mortgage enforcement procedures’ and to adopt appropriate legislative measures to ensure adequate notice before the initiation of the proceedings, the auction of a dwelling or an eviction.77

2.8 Reception of the Views in Spain (Impact) This section will analyse the response by the authorities and other actors in Spain and the impact of the views adopted by the UNCESCR. In this regard, if the impact is to be described as the extent to which the outcome of the case has been picked up by domestic actors and is related to domestic mobilisation, it is impossible not to begin this section by describing the preponderant role of civil society. In particular, the role of the Plataforma de Afectados por la Hipoteca (Platform of Mortgage Affected People, hereafter referred to as ‘PAH’), a housing movement started in Barcelona and replicated all over Spain during the crisis, which has responded to evictions, fraud and abuses in housing with civil resistance, demonstrations, occupation of empty buildings, legal education, social empowerment, strategic litigation and advocacy.78 After the Committee published its views in Ben Djazia at a national meeting of all 190 territorial assemblies of the PAH in February 2018, it was decided to use the UNCESCR as a last resort to suspend evictions as a common strategy to put pressure on the State.79 At the same time, the PAH made a useful Guide called “Defendiendo el Hogar” (Defending Home), in order to assist persons without a legal background— or lawyers without previous experience—in submitting individual communications and request for interim measures.80 As a result, in March 2018 the UNCESCR requested the suspension of the eviction of Richard, a person without alternative housing in the Villaverde district of Madrid. The request was followed by the suspension of Richard’s eviction, thus becoming the pilot case in the media demonstrating the usefulness of the individual complaint mechanism to civil society.81 Not surprisingly, the number of individual communications submitted to the UNCESCR and the number of interim measures requested from Spain by the Committee have increased exponentially since then, as shown in Tables 2.1 and 2.2.

77 Ibid.,

para 17. website, https://afectadosporlahipoteca.com/, accessed 22 March 2020. 79 Galaup 2018. 80 Defendiendo el Hogar, https://afectadosporlahipoteca.com/2018/12/13/defendiendo-el-hogar/, accessed 22 March 2020. 81 Núñez 2018. 78 PAH

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Table 2.1 Total number of UNCESCR individual housing complaints submitted 2014

1

2015

2

2016

3

2017

1

2018

65

2019

82

Total

154

Table created by the authors containing the data obtained from the reply of the Director of the Human Rights Office of the Ministry of External Affairs, European Union and Cooperation, in response to the request for Public Information submitted by the authors on 19 November 2019, 18 December 2019 Table 2.2 Total number of interim housing measures requested from Spain by UNCESCR 2015

1

2016

No information received

2017

1

2018

60

2019

76

Total

138

Table created by the authors containing the data obtained from the reply of the Director of the Human Rights Office of the Ministry of External Affairs, European Union and Cooperation, in response to the request for Public Information submitted by the authors on 19 November 2019, 18 December 2019

These numbers show that the UNCESCR’s individual complaint mechanism is increasingly used by lawyers and housing movements, complemented by the fact that 97.82% of the total number of pending cases submitted to the UNCESCR are from Spain and relate to article 11 of the ICESCR.82 However, the views adopted were not only picked up by the PAH and other housing movements, but also by other actors in civil society. In this sense, following the advice of the International Network for Economic, Social and Cultural Rights (ESCR-Net), which had transmitted a submission as third party in the Ben Djazia case, a group of NGOs created a Monitoring Group to supervise the implementation by the State of the recommendations put forward by the UNCESCR.83 As part of its advocacy work, the monitoring group met with different domestic actors, such as the Defensor del Pueblo (the Spanish Ombudsman), the General Council of the Judicial Power and several official government bodies. 82 Information obtained from the Table of Pending cases of the UNCESCR webpage, https://www. ohchr.org/EN/HRBodies/CESCR/Pages/PendingCases.aspx, accessed 22 March 2020. 83 Specifically, CAES (a cooperative law firm that represented Ben Djazia in the case), Cáritas, Aminsity Spain, Observatori DESC and Provivienda.

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In this regard, the Spanish Ombudsman Office was probably the one most impacted by the activities of the monitoring group, as it participated in the Ben Djazia case before the UNCESCR during the follow-up procedure. The Ombudsman Office stated that it ‘considers the State party’s reply to the Committee to be inadequate, since it does not address all the recommendations and, when it does refer to them, it does so either only briefly or in relation to allegations made prior to the Committee’s consideration of the case’.84 In relation to the media, it is worth noting that the UNCESCR’s individual communication mechanism has partly contributed to a renewal of the ‘noticeable’ repertoire of evictions, a topic that had somewhat relegated to the background after more than 500,000 evictions and the chronic nature of the housing crisis. However, the complexity of the matter and the attempts of the press to reduce the individual communication mechanism to a binding/non-binding dichotomy have reduced its potential impact in the media. Finally, the impact on political parties varies; members of the Platform DESC—a group of Spanish NGOs working on the implementation of the Concluding Observations on the Spanish periodic State report recommended by the UNCESCR—have noted differences between conservative and progressive parties in Parliament, in the sense that the former are not participative and delegitimise the activity of UNCESCR, while the latter are more sensitive to the topic. In summary, it can be said that the impact of the complaints against Spain was moderate and depended largely on the authorities and actors involved, with social movements, civil society and the Spanish Ombudsman playing a predominant role.

2.9 What Type of Action Has Been Taken to Follow Up on the Views of the Committee in Spain? (Effectiveness) This section will look at the type of action or measures taken to follow up on—or give effect to—the views of the UNCESCR, and in particular whether the complaints have led to changes at the domestic level. In doing so, we will focus on the executive, the judiciary and the legislative branches of government.

2.9.1 The Executive With regard to the executive, it is important to note that it represents Spain before the UNCESCR through State lawyers and is responsible for forwarding the Committee’s request for interim measures to the domestic courts. Therefore, the executive’s

84 UN

Doc. E/C.12/66/3.

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39

perspective on the ‘normative legitimacy’ to be conferred on the ICESCR, the OPICESCR and its supervisory body is crucial for the subsequent decisions of the judiciary. In this regard, the position of the State has not changed after receiving various requests and views from the UNCESCR. On the contrary, the State recalls its position against the binding effect of views and recommendations of the UNCESCR. More concretely, it declares that the ‘jurisprudence has reiterated that UN Committees are not a “supranational superior instance” and that the “mandatory/binding” character of Views will be appreciated in conformity with Articles 96 and 10.2 of the Spanish Constitution (…) As a result, the Views of the UN Committees are qualified elements of interpretation of the fundamental rights and liberties recognized in the Constitution, and this is the correct appreciation of their “binding nature”, but they do not in fact have a “binding” nature as they were not released by a supranational superior instance whose execution must be carried out by judges without interpretation. Thus, the interim measures that order the suspension of evictions do not have a binding nature’.85 Therefore, the executive has not made any ‘behavioural change’ in order to encourage domestic courts to respect and apply the views adopted by the UNCESCR.

2.9.2 The Judiciary Since 2015, judges in Spain have received up to 138 requests for interim measures from the UNCESCR requesting the suspension of evictions. The authors of this chapter have requested the Spanish authorities to provide them with the number of interim measures granted by domestic courts. However, access to this public information was denied. Therefore, due to the lack of reliable public information, it is difficult to discern whether judges are giving due consideration to requests for interim measures. In this sense, Javier Rubio, Ben Djazia’s lawyer, who works at CAES (Centro de Asesoría y Estudios Sociales) and is a member of the Monitoring Group, estimates that approximately 25% of judges suspend evictions considering that UNCESCR interim measures are binding; another 25% suspend evictions considering that they are not binding but need to be considered; and the remaining 50% of judges do not take the decision into account and allow the eviction to continue.86 Apart from estimations, the general perception of civil society is that judges are not open to handling cases lodged through the UNCESCR’s individual complaint mechanism. Or, as a PAH activist states: ‘whoops, this is not in my book’, referring to the fact that ICESCR and OP-ICESCR are not among the subjects studied in civil courts, which exclusively study and apply the Civil Procedure Act. In this regard, 85 Response by the Director of the Human Rights Office of the Ministry of External Affairs, European Union and Cooperation to the Public Information Petition submitted by the authors on 18 November 2019, 19 December 2019. Translation into English by the authors. 86 Interview by the authors with Javier Rubio at CAES’ office, 25 February 2020.

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Table 2.3 Judiciary training focused on ICESCR and OP-ICESCR Year

Nº of Activities

Nº of available seats

2013

2

55

2014

2

45

2015

1

25

2016

No information received

No information received

2017

1

30

2018

2

45

2019

1

30

Table created by the authors with the data obtained from the response of the Information Unit of the General Council of the Judiciary Power, in response to the Public Information submitted by the authors on 19 November 2019, 20 December 2019

it is worth noting that despite the communications received, the number of courses given to judges in relation to the ICESCR and OP-ICESCR has remained relatively low, as shown in Table 2.3. Another interesting source of information that could help to determine the effectiveness of the views adopted by the UNCESCR is the jurisprudence of the Supreme Court and the Constitutional Court on this matter. With regard to the Supreme Court jurisprudence, ‘before the Supreme Court decision of 17 July 2018, in Spain there had been a generalized situation of nonobservance of the Views of the International Committees (…) as in all cases in which a victim recognized by an international Committee attempted to have the Spanish courts comply with the condemnatory "decision" contained in its Opinion, the Spanish courts always denied the possibility of exercising both extraordinary appeal for review, and the State’s liability claim’.87 However, the situation changed entirely after the above-mentioned case, in which the Supreme Court delivered its verdict on a liability claim against the State. In that case, the plaintiff alleged that the murder of her daughter in 2003, in the custody of her ex-husband, was the direct consequence of the court’s decision to cancel the supervised visits, a decision taken despite the fact that on several occasions she had drawn attention to the father’s gender-based violence records and the risks to the child. After a tortuous domestic litigation, the plaintiff brought the case before the United Nations Committee on the Elimination of Discrimination Against Women (UNCEDAW), where finally it was found that Spain had violated her human rights.88 More specifically, the Committee declared that Spain had breached its ‘obligation to investigate the existence of failures, negligence or omissions on the part of public authorities which may have caused victims to be deprived of protection’ 87 Bou 88 UN

Franch 2019, p. 450. Doc. CEDAW/C/58/D/47/2012.

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and accordingly recommended that Spain should ‘grant the author appropriate reparation and comprehensive compensation commensurate with the seriousness of the infringement of her rights’.89 After the adoption of these views by the UNCEDAW, Angela González Carreño, the plaintiff, represented by Women’s Link Worldwide, again attempted to seek reparation at the domestic level. Finally, following the admission of a cassation appeal, the Supreme Court recognised the violation of fundamental rights committed by the Administration of Justice and obliged the State to compensate Angela González with e600,000. In doing so, the Supreme Court declared that the absence of a concrete domestic mechanism to implement the views adopted by UN Treaty Committees does not render them ineffective. Despite the fact that the decision was limited to that specific case, the Supreme Court stated that the views adopted by UN Committees could constitute a legal ground for a liability claim against the State.90 In order to reach that conclusion, it should be recalled that: the binding effect of the views derives directly from the CEDAW (Article 24) and its Optional Protocol (Article 7.4); the views originate from a body set up under an international treaty that also constitutes domestic law; and that the views were the result of an expressly recognised procedure, with guarantees and with due participation of the State.91 Therefore, the Angela González Supreme Court decision took into consideration the UNCEDAW’s Views, recognised their “binding or obligatory” effects, and established the opportunity to implement them through the liability claim against the State. At first, the decision was adopted with great enthusiasm by civil society, as it could be interpreted as opening the door for due consideration of Views and recommendations of UN Committees. Unfortunately, the Supreme Court’s legal arguments are not taken seriously by domestic courts in other types of procedures, especially when it comes to UNCESCR and eviction cases. In this context, a number of questions arise: can the binding effects of the UNCESCR’s views be taken into consideration by courts of first instance in civil procedures where evictions are ordered? Could the jurisprudence also be applied to other economic, social and cultural rights? In order to assess these questions, it is interesting to briefly look at the Constitutional Court’s jurisprudence related to the views of the Committees. In several cases where the Constitutional Court delivered its verdict on Committee views, it declared that they ‘are not judicial resolutions, since the Committee does not have jurisdictional faculties, and its views cannot constitute an authentic interpretation of the Covenant’.92 However, it also stated that the lack of direct effect of the views ‘does not imply that they lack any internal effect’,93 and suggested that the liability

89 Ibid.,

para 10–11. Court Decision nº 1263/2018, of 17 July 2018, FJ. 7.3. 91 Ibid., FJ. 7.3. 92 STC 70/2002, 3 April 2002, FJ.7. 93 STC 116/2006, 24 April 2006, FJ.5. 90 Supreme

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claim against the State, the incident of nullity of actions and the penal revision could be appropriate domestic channels for requesting their enforcement.94 This open-minded jurisprudence towards the Committee’s views recalls to some extent the case-law of the Constitutional Court relating to the European Court of Human Rights (ECtHR), before the adoption of Protocol nº 11 to the Convention95 and before Spanish domestic law was amended to include ECtHR decisions as a legal basis for reviewing final judgments. In line with this, Bou Franch argued that ‘in case the jurisprudential doctrine gets consolidated about the binding or mandatory nature of the Views of these international Committees, including CEDAW, it will only be a matter of time before the need to reform procedural laws will arise’.96 Having reached this point, one might think that the implementation and effectiveness of UNCESCR views could easily lead to its institutionalisation. However, the Constitutional Court has made several critical statements about the decision to appeal against the alleged unconstitutionality of Housing Act 5/2018, better known as the ‘Express eviction’ Act, for introducing faster civil proceedings to allow owners to regain possession of properties in cases of occupations without legal title. Among other points, the Constitutional Court held that defendants could not effectively invoke their concrete circumstances to request the suspension of evictions because granting that suspension would prolong the illegal occupation,97 but without taking into consideration the fact that the UNCESCR had previously emphasised the need to introduce an analysis of proportionality and reasonableness in eviction cases, as examined in the Ben Djazia case. In a similar vein, the Court declared that ‘It is also worth recalling that the prohibition of forced evictions referred to in the United Nations instruments cited by the appellants does not apply to evictions carried out legally and in a manner consistent with international human rights standards, in particular those referring to the right to a process with due guarantees, as noted by the United Nations Committee on Economic, Social and Cultural Rights in its general comment no. 7, on the right to adequate housing and forced evictions’.98 As rightly recalled in the dissenting opinion of Judge María Luisa Balaguer Callejón, the Constitutional Court could have taken into account the UNCESCR’s arguments and recommendations in the Ben Djazia case in order to interpret the right to housing enshrined in the Constitution. In doing so, it could have reached completely different conclusions in the constitutional appeal. However, the Constitutional Court is reluctant to address/assess the interpretative legitimacy of Committees when it comes to economic, social and cultural rights, as these are still considered solely as “guiding principles”.

94 ATC

260/2000, 13 November 2000, FJ.2.

95 Protocol nº 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms,

restructuring the control machinery established thereby. 96 Bou Franch 2019, p. 456. 97 STC 32/2019, of 28 February 2019, FJ. 5. 98 Ibid., FJ. 6.

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In this sense, the effectiveness of the UNCESCR’s views before domestic courts will depend to a large extent on the consolidation of the Supreme Court’s jurisprudence and, at the same time, on a rectification of the criteria by the Constitutional Court regarding economic, social and cultural rights. In addition, it will be essential to provide judges with training on matters related to the ICESCR, OP-ICESCR and other international concepts such as the conventional control.99 On the basis of the current analysis, the effectiveness of complaints in the judicial branch can be considered partial. Nevertheless, it appears that increasing the ‘normative legitimacy’ of the UNCESCR is a matter of time.

2.9.3 The Legislature At the legislative level, the Views received by Spain have been partially effective. This was the conclusion of the UNCESCR during the follow-up procedures concerning the implementation of the recommendations of the I.D.G and Ben Djazia cases. In relation to the first case, the UNCESCR noted ‘that the State party has amended its legislation to limit the use of notification by public posting when serving notice of procedural decisions to interested parties’,100 concerning the amendment of Article 164 of the Civil Procedure Act by Law 42/2015. Regarding the Ben Djazia case, the UNCESCR took note of the Royal-Decree Law 7/2019,101 which states in the Preamble that ‘Furthermore, it is necessary at this point to advance in the fulfillment of our commitments with international agreements on social rights in a matter that does not admit delay’. In this context, it is worth recalling the Opinion of the Committee on Economic, Social and Cultural Rights of the United Nations Economic and Social Council, adopted on 20 June 2017, which, inter alia, urged the Government of Spain to ensure that its legislation and its application is in accordance with the obligations established in the International Covenant on Economic, Social and Cultural Rights. In particular, it pointed out the obligation to adopt the necessary measures to resolve the problems of lack of coordination between judicial decisions and the actions of the social services’.102 In doing so, the Royal Decree-Law introduced a new disposition in Article 441 of 99 In

STC 140/2018, 25 December 2018, FJ 6, the Constitutional Court stated that: “Any judge may displace the application of a domestic law to apply preferentially a disposition contained in an international treaty, without said displacement derives in the expulsion of the domestic norm from the system, as it results obvious, but in its mere non-application”. This concept originates from the Inter-American Court of Human Rights case of Almonacid Arellano and others v. Chile, where the Court declared that judges are required to exercise a control between the domestic law and the international treaties, in the cases where the domestic law might render ineffective the international treaty in a particular case. 100 UN Doc.E/C.12/66/3. 101 Despite the fact that Royal-Decree Laws are approved by the Government, they are validated by Congress. 102 Royal-Decree Law 7/2019, Preamble.

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the Civil Procedure Act to allow the suspension of the eviction procedure for one or three months following the receipt of the applicant’s claim, and to enable the social services to evaluate whether the person affected is in a vulnerable situation. Despite the fact that these two UNCESCR recommendations have been implemented, it is important to note that other important recommendations have not yet been effective. In this regard, the measure most often put forward by civil society is the implementation of the proportionality test in eviction cases and the possibility to lodge an effective appeal against eviction orders, as contained in the Ben Djazia and López Albán cases. Other recommendations that have not been implemented include the drawing up of a national protocol ‘for complying with requests for interim measures issued by the Committee’103 and the granting of ‘equal access to the social housing stock, by removing any unreasonable condition that might exclude persons at risk of indigence’.104 The Views that have led to legislative measures have therefore only been partially effective.

2.10 Conclusion We have seen that the housing crisis in Spain has become a very prominent and visible phenomenon as a result of widespread evictions. Evictions show that the right to adequate housing is fundamental to living a dignified life. It is therefore logical that if this right is at risk as result of an upcoming eviction, it raises a lot of concern among those affected, but also among the general public. Social movements can act as spokespersons to voice such concerns, as they are able to put this issue on their agenda and mobilise resistance and support at the domestic level. The PAH has played an important role in encouraging the submission of individual complaints before the UNCESCR, but also in making the outcome of the UN procedure accessible to a wider audience. The Views of the Committee in the Ben Djazia case have led to reactions in the media, among civil society groups and from the Ombudsperson. It can therefore be concluded that the potential of the complaints procedure and also its outcome have had an impact on the domestic level. This applies in particular to requests for interim measures of protection submitted before the Committee, but also to the Committee’s approach of requesting the Spanish authorities not to evict vulnerable persons from their homes pending the complaints procedure. We realise that our analysis and conclusions are based on a small number of cases in which the Committee was able to examine the merits of a housing rights complaint. However, we believe that the following preliminary conclusions can be drawn. In terms of the effectiveness of the ICESCR complaints procedure and the resulting Views at the domestic level, the picture is mixed. We concluded that so far the executive branch of government has not made any ‘behavioural changes’ in 103 UN

Doc. E/C.12/66/D/37/2018, para 17(f). para 17(c).

104 Ibid.,

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order to encourage domestic courts to respect and apply the views adopted by the UNCESCR. This is due to the traditional understanding of the government that treaty body views in individual cases are not to be considered legally binding. As far as the impact of Committee views on the Spanish judiciary is concerned, it is probably too early to draw conclusions at this time. The judgement of the Supreme Court in the Angela González case differs from the traditional approach to the binding effect of treaty body views, but has so far not been adopted by the Constitutional Court and the lower domestic courts. However, it may be a matter of time before the Views of the UNCESCR and other treaty bodies are internalised by the courts and take effect at the domestic level, provided that the opinion of the Constitutional Court is followed. Finally, the legislative branch has adopted a decree to allow the suspension of the eviction procedure for a period of one to three months if the affected person is in a vulnerable situation. This development gave effect to one of the recommendations of the Committee. In other cases, however, the legislature did not follow the recommendations of the Committee, in particular the need to draw up a national protocol for complying with requests for interim measures issued by the Committee and the need to introduce a proportionality test in eviction cases. The conclusion for the legislature should therefore be that the impact of the Committee’s views has been only partial and limited. In terms of the normative legitimacy of the UNCESCR, we conclude that through its active engagement with housing rights issues (in particular evictions), the Committee has made an important contribution to rendering the right to adequate housing effective, especially in situations of vulnerable victims. Given that the Committee is not a judicial body and its jurisprudence are not judgements, it can be said that its views and recommendations have increased its normative legitimacy within certain segments of Spanish society, such as civil society. However, the various branches of the Spanish government still have to accept the Committee’s Views and recommendations as the outcome of a process of international scrutiny of domestic issues which is authoritative and persuasive, while at the same time leaving sovereign decision-making power unaffected. The fact that Spain has voluntarily accepted the ICESCR complaints mechanism should have consequences when the Committee issues recommendations for Spain to comply with its treaty obligations, including in matters such as economic and social rights, which primarily concern domestic issues. To conclude again with Follesdal’s observation: ‘A state that decides to heed the authority of such bodies even against its other countervailing interests must thus be convinced to comply, possibly by the perceived normative legitimacy of the authority.’105 This understanding has not yet been achieved in Spain with respect to the jurisprudence of the UNCESCR, but important steps have been taken in that direction. If the UNCESCR adheres to its recommendations during the resolution of

105 Follesdal

2013, p. 346.

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the at least 135 pending housing cases against Spain,106 and civil society continues to advocate compliance with UNCESCR’s views, this sense might contribute to a level of normative legitimacy comparable or equivalent to a binding nature.

References Anón M, Pisarello G (2006) The Protection of Social Rights in the Spanish Constitutional System. In: Coomans F (ed) Justiciability of Economic and Social Rights. Experiences from Domestic Systems. Intersentia, Antwerp/Oxford, pp. 67–96 Bou V (2019) El cumplimento en España de las Sentencias y Dictámenes de los órganos de control del cumplimiento de los derechos humanos establecidos en tratados Internacionales. Comentario a la STS núm. 2747/2018 [Compliance in Spain of the judgments and views of the monitoring human rights bodies established by international treaties. Comment to the STS nº 2747/2018] Rev. Boliv. de Derecho 27: 434–457 Coomans F (2018) The UN Committee on Economic, Social, and Cultural Rights. In: Oberleitner G (ed) International Human Rights Institutions, Tribunals, and Courts. Springer Nature, Singapore, https://doi.org/10.1007/978-981-10-4516-5_7-1 Follesdal A (2013) The Legitimacy Deficits of the Human Rights Judiciary: Elements and Implications of a Normative Theory. Theoretical Inquiries in Law 14: 339–360 Galaup L (2018) UN has become the last resort to avoid the eviction of families, https://www.eld iario.es/sociedad/familias-punto-desahuciadas-encuentran-aliado_0_798970643.html, accessed 25 April 2020 Gil J (2018) The nascent real estate bubble, https://ctxt.es/es/20180627/Politica/20442/javiergil-burbuja-inmobilicaria-decisiones-politicas-partido-popular-cifuentes-comunidad-de-madrid. htm, accessed 25 April 2020 Keller H, Ulfstein G (eds) (2012) UN Human Rights Treaty Bodies – Law and Legitimacy. Cambridge University Press, Cambridge Liebenberg S (2010) Socio-Economic Rights: Adjudication under a Transformative Constitution. Juta & Co., Cape Town Liebenberg S (2020) Between Sovereignty and Accountability: The Emerging Jurisprudence of the United Nations Committee on Economic, Social and Cultural Rights under the Optional Protocol. Human Rights Quarterly 42: 48–84 López-Rodríguez D, de los Llanos M (2019) Evolución reciente del Mercado del alquiler de vivienda en España [Recent evolution of the housing rental market in Spain]. Banco de España, Madrid Madden D, Marcuse P (2016) In Defense of Housing. Verso, London Núñez L (2018) Suspension of Richard’s eviction after UNCESCR request for interim measures, https://www.elmundo.es/madrid/2018/04/18/5ad73d4922601dbd068b4586.html, accessed 22 March 2020 OHCHR (2019) States and real estate private equity firms questioned for compliance with human rights, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24404&Lan gID=E. Accessed 25 April 2020 Observatori DESC (2018) Els desnonaments del 2008-2017. Una vulneració greu dels drets humans que no s’atura [Evictions 2008-2017. A gross human right violation that does not stop]. https://observatoridesc.org/sites/default/files/informe_odesc_desnonaments_2082017.pdf Accessed 25 April 2020 Raustiala K (2000) Compliance and Effectiveness in International Regulatory Cooperation. Case Western Reserve Journal of International Law 32: 387–440 106 OHCHR,

Table of Pending cases of the UNCESCR webpage, https://www.ohchr.org/EN/HRB odies/CESCR/Pages/PendingCases.aspx, accessed 25 April 2020.

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Simmons B (2009) Mobilizing for Human Rights – International Law in Domestic Politics. Cambridge University Press, New York

Fons Coomans holds the UNESCO Chair in Human Rights and Peace at the Department of International and European Law at the Faculty of Law, Maastricht University. He is the Director of the Maastricht Centre for Human Rights, and a member of the Netherlands Network for Human Rights Research. His fields of research include the international protection of economic, social and cultural rights, the right to education, health and food in particular, the extraterritorial scope of human rights law, and international supervisory mechanisms in the field of human rights. He teaches Master courses on international human rights law and on human development and human rights at the Faculty of Law of Maastricht University. He is a founding member of the Consortium on Extraterritorial Human Rights Obligations and member of the Dutch Section of the International Commission of Jurists (NJCM). He is an advisor to the Right to Education Initiative and a consultant for UNESCO. Since 2017, he is a founding member of the Human Rights of Future Generations Initiative. Miguel Ruiz Díaz-Reixa works as a legal counsel at the Observatori DESC and Provivienda in Madrid, focusing on the right to housing. Previously, Miguel studied Public International Law at Maastricht University and wrote shadow reports for non-governmental organisations in India. His fields of research include arms transfers, migrations and economic, social and cultural rights.

Chapter 3

Effective Distance: A Polish Dissident’s Encounter with Amnesty International and Its Western-Born Rules Christie Miedema Contents 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Amnesty International: The Movement and Its Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 The Individual and His Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 A Clash of Worlds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.3 Not Alone: Beyond the Individual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

50 51 52 56 65 67 68

Abstract Individual actors involved in defending human rights differ widely and have divergent views on goals and how ‘effective activism’ should be defined. In this chapter, two human rights actors meet, and their worldviews clash. Emil Morgiewicz, Polish dissident of the 1970s, had one main goal: liberating Poland from Soviet domination. As the first ever member of Amnesty International in his country, his attempt to further his goals through this worldwide movement was curtailed by strict rules within the movement, which were meant to safeguard the organisation’s effectiveness. While Morgiewicz was clear about his goals, he was flexible in terms of how to achieve them, as long as the method was effective. Amnesty had members with diverse goals within its ranks, but members were generally united around a shared vision regarding the need to be effective; a vision that was, however, not shared or attainable in Eastern Europe. This contribution explores the differences between the interpretation of human rights by an individual and an organisation; between the actor who acts on behalf of himself and the actor who acts on behalf of others. Keywords Human rights · Amnesty International · Poland · Dissidence · Opposition · Eastern Europe · 1970s This chapter draws upon arguments and text fragments from Miedema 2019—a research project carried out in the context of the Working Group Human Rights in the 20th Century funded by the Fritz Thyssen Foundation. C. Miedema (B) Duitsland Instituut Amsterdam, Oude Hoogstraat 24, 1012 CE Amsterdam, The Netherlands e-mail: [email protected] © t.m.c. asser press and the authors 2021 C. Boost et al. (eds.), Myth or Lived Reality, https://doi.org/10.1007/978-94-6265-447-1_3

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3.1 Introduction Human rights activism can be a tool that is used both by an established official and a persecuted human rights defender. It is the playing field of both worldwide movements and grassroots initiatives. What these actors understand by the human rights they fight for and how they can achieve their goals in the most effective way, however, can be worlds apart—even if these worlds meet, converge and clash all the time. This is not a new phenomenon. In the early years of modern human rights activism, the pioneering human rights movement Amnesty International ran into plenty of such conflicts in its efforts to expand its activities on an international level. One example of such a clash of interpretations resulted from the cooperation between Polish dissident Emil Morgiewicz and Amnesty, between 1974 and 1981. Morgiewicz had spent the early 1970s in prison because of his opposition to the Polish government. His activism had one main goal, which was to liberate Poland from Soviet domination. When, in 1974, he contacted Amnesty International1 and became the organisation’s first member in Poland, he did so with this goal in mind. However, he was confronted with Amnesty’s strict rules and regulations regarding human rights activism. Morgiewicz’s activism challenged Amnesty’s rules, which aimed to make its human rights activism most effective by keeping it impartial and apolitical. His activism raised the question whether Amnesty’s rules were effective in expanding human rights activism around the world or, rather, hampered the use of Amnesty’s resources in areas where they were most needed. Was Amnesty’s human rights activism just an effective tool to unite people who already enjoyed their human rights, or also a practical means that allowed those facing actual repression to have access to their human rights? Both the individual and the organisation were pursuing an “effective” form of activism, meaning that they were looking for the means that would make them reach their goals in the fastest way and with the least distractions. What constituted effective activism in the minds of both Morgiewicz and the majority of Amnesty activists differed considerably from each other: first of all, they had different goals; and, secondly, they had different views on how to achieve their aims in the fastest way possible. These differences were not merely a reflection of different personal preferences, but were rooted in the radically different circumstances of a Western-European liberal democracy, on the one hand, and a state socialist dictatorship, on the other. Even though human rights activism came to the fore simultaneously on both sides of the divided continent in the 1970s, the idea of what constituted effective human rights activism was less coherent than this temporal synchronisation. This contribution explores the different interpretations of human rights and the way in which they can be pursued most effectively: on the one hand, between an individual in a country where pervasive human rights violations occurred and an 1 Referred

to in the abbreviated form AI in some quotations.

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organisation located in an area that considered itself to be a cradle of rights thinking, and on the other, between an actor on behalf of himself and those who act on behalf of others.

3.2 Amnesty International: The Movement and Its Rules Amnesty International was established in 1961, on the initiative of British barrister Peter Benenson. His vision was to start a movement that would unite people and bridge political divides, through activism for political prisoners. Benenson’s primary goal was to unite people through activism; he wanted to mobilise both those who saw their ideals getting shattered and ‘the young searching for an ideal’. He believed that if all those feeling powerless and frustrated by all the bad in the world were to be ‘united into common action, something effective could be done’.2 At the height of the Cold War, this professedly apolitical initiative faced immense challenges on the way towards its goal. The prime distraction was the stifling ideological dichotomy that ruled the world and that did not allow the existence of initiatives aiming to transcend the divisions. In order to be effective—reaching its goals without being sidetracked by ideology—the movement developed a range of strategies. These strategies included: focusing on personal stories and providing indiscriminate help to individuals rather than on bigger ideological contexts; balancing of criticism between the different geopolitical regions of the world; and committing to an apolitical approach, underpinned by membership from all political currents. In the article that launched the initiative, Benenson highlighted that he considered public outrage the movement’s most important weapon, but that the movement could only be effective if it was spread as widely as possible: The success of the 1961 Amnesty Campaign depends on how powerfully it is possible to rally public opinion. It depends, too, upon the campaign being all-embracing in its composition, international in character and politically impartial in direction.3

Benenson’s vision soon resonated beyond the UK, and the one-year campaign developed into an international movement. The system of national sections with grass-roots ‘adoption groups’—activist groups which ‘adopted’ political prisoners by writing letters for their release—and mass membership made Amnesty unique, not least because of the economic independence that it was able to achieve.4 By the early 1970s, Amnesty started to become an established organisation that had not only survived its shaky first decade, but emerged as a different and quite appealing movement in times of ideological disillusion and political détente. The 1970s would bring a large increase in the number of members and established Amnesty as a key 2 Buchanan

2002; Benenson 1961. 1961; Buchanan 2002, pp. 575–597. 4 Clark 2001, p. 9. 3 Benenson

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actor in the human rights field, with the 1977 Nobel Peace Prize as the zenith of this development.5 In the course of the first decade and a half of its existence, Amnesty developed practices and (not always very clearly defined) rules to maintain the image of impartiality, which it felt it needed to be effective and to navigate the distractions created by ideological debates. First of all, the organisation tried to detach itself from political competition by winning backing from all political currents, making sure that ‘no particular one predominates in our colours’.6 Furthermore, Amnesty did its best to prevent being seen as choosing sides in the East-West conflict by balancing its criticism equally across all sides. From the very beginning, Benenson wanted to show that not a single region nor ideology in the world was blameless; and that suffering was suffering, wherever or for whatever reasons it occurred.7 Amnesty also chose to only scrutinise civil and political rights, believing that a limited mandate would make the organisation more effective with the finite resources at its disposal. Furthermore, it decided to only support political prisoners who had not used or propagated violence, and refrained from criticising political systems.8 The main source of tension with new members from outside Amnesty’s core geographical area or social group was a rule that became leading within Amnesty from the early 1970s onwards; Amnesty activists were only allowed to work on cases in countries other than their own. The rule is often referred to as the ‘Work on Own Country Rule’, abbreviated as WOOC. This rule aimed to create distance between activists and researchers on the one hand, and the subjects of inquiry on the other. While removing some potentially distracting allegations of bias, this rule had major consequences for Amnesty’s staff and volunteer base, and created hurdles for adopting a form of activism that reached beyond its initial core area.9 This rule was one of the reasons why Amnesty remained, for a long time, ‘a product of the well-off white middle class in North-Western Europe and North America’.10

3.2.1 The Individual and His Goals Polish journalist and opposition activist Emil Morgiewicz had recently been released from prison when he decided to contact Amnesty International. Morgiewicz had been an active member of the nationally-oriented opposition group Ruch (which translates as ‘movement’) since the 1960s. He was sentenced to four years in prison in 1971, after being accused of involvement in plotting an arson attack on the Lenin museum 5 Moyn

2012, pp. 4–5, 130–132, 212–213; Eckel 2014, pp. 401–403 and 808. International 1963, pp. 5 and 11; Amnesty International 1964, p. 3. 7 Benenson 1961. 8 Baehr 1994, pp. 6, 10–11 and 20; Hopgood 2006, pp. 92–96 and 143. 9 Hopgood 2006, pp. 161 and 170–175. 10 [I]m Kern stellte Amnesty ein Produkt der gut situierten weißen Mittelschicht in Nordwesteuropa und Nordamerika dar: Eckel 2014, p. 349. 6 Amnesty

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in Poronin. He was released early after receiving amnesty in 1974. Throughout the 1970s and early 1980s, he remained active in the opposition movement. In 1976, he was one of the few members of the more nationalist wing of the oppositional milieu to join the Workers’ Defence Committee (KOR)—the first group to adopt a legalist human rights approach within Poland. A year later—when the more ‘right wing’ rival Movement for the Defence of Human and Civic Rights (ROPCiO) was established—he switched over to that side. When, in 1980, the independent trade union movement Solidarno´sc´ started to eclipse other oppositional groups, he joined that movement. Morgiewicz was clearly searching for the most effective organisation that would help him to achieve his objectives. His idea of effectiveness seems to have consisted of mobilising the largest number of people and convincing those with the loudest voices to back his goal, with the aim of weakening the Polish Government and creating a Poland free from Soviet domination.11 Amnesty was one of the stations on his path. Just after his release from prison in 1974, he wrote a memorandum about the Polish prison conditions that he had experienced first-hand. When his attempts to make the Polish authorities address these issues failed in spring 1975, he presumed that the only way to be effective in reaching his immediate goal of improving prison conditions in Poland was to seek outside help. His friend Adam Wojciechowski translated the memorandum into English, and he sent it to Amnesty International.12 Amnesty checked the information and acted on it by sending a protest letter to the Polish authorities in July 1975.13 Morgiewicz believed that a closer link to an international organisation such as Amnesty could be useful in helping him to achieve his goals. He therefore inquired about the possibilities of becoming a member or starting a local group. In response, he received the handbook for groups, information about individual membership, as well as a range of warnings regarding the own-country rule and the difficulties of starting a group in a country like Poland.14 Indeed, trouble soon started. In August 1975, Morgiewicz and Wojciechowski were arrested on charges of transferring false information regarding the Polish penitential system to a foreign organisation. Both men were released several weeks later, but remained under investigation.15 They were, however, not deterred by their 11 Interview

Morgiewicz, 7 March 2016; Ł˛atkowska and Borowski 2017.

12 AAN 842 38/38: Marian Kijowski, Notatka, Warszawa, dnia 27 sierpnia 1975 r.; AAN 842 38/38:

Protokół przesłuchania podejrzanego, Dnia 29 sierpnia 1975 w Warszawie; IPN BU 0222/241 t 2: Emil Morgiewicz, Do sejmowej komisji wymiaru sprawiedliwo´sci, 14.II. 1975; Interview Morgiewicz, 7 March 2016. 13 AIA mf 13: Milan to Martin Ennals, 11.9.75; AAN 842 38/38: Martin Ennals to Mr. Stanislaw Koraszewski, 16 July 1975. 14 IPN BU 2417/1 t1: Emil Morgiewicz to Amnesty International, Warsaw 19. Apr. 1975, 182; AAN 842 38/38: Protokół przesłuchania podejrzanego, Dnia 29 sierpnia 1975 w Warszawie; AAN 842 38/38: Protokół ogl˛edzin dokumentów, Warszawa, dnia 17 wrze´snia 1975 r.; IPN BU 2417/1 t2: Martin Enthoven, Dear Mr Morgiewicz, 20 June 1975, 163; IPN BU 2417/1 t2: Emil Morgiewicz, Dear Mr Enthoven, Date 10 August 1975, 169. 15 AAN 842 38/38: Postanowienie o tymczasowym aresztowaniu, dnia 29 sierpnia 1975 r., DP Ds 18/75.

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arrest; Morgiewicz applied for membership soon after his release and continued to inquire about the requirements for starting a group or a section.16 Wojciechowski’s application followed shortly after. He optimistically wrote to the International Secretariat: I hope that in the near future A.I. is going to establish a group or section in Poland. […] I can strongly assure you that, here in Poland, there are men who are looking forward to join efforts with the others in the world to light the candle free of barbed wire.17

Morgiewicz and Wojciechowski actively spread Amnesty’s message among the Polish opposition and, in the subsequent two years, Amnesty received several more Polish membership applications, most of them from nationalist-oriented oppositional circles.18 The main reason for Morgiewicz to join Amnesty was to oppose the regime in his own country. He wanted to spread information about human rights violations in Poland, ensure that Poland would stick to international human rights commitments, weaken the system, and stand up for people who he had met in jail.19 His wish to create an Amnesty group should be seen in that light. Morgiewicz recalled in an interview forty years on: ‘The most important reason was that we could create something independent of the authorities. That was the main motive […] Every initiative that weakened the system was crucial’.20 He recalled that he felt morally obliged towards his fellow inmates to address their situation. In addition to his work concerning the prison memorandum, Morgiewicz started a campaign for the Kowalczyk brothers. In 1971, they were sentenced to death—later commuted to a prison sentence—and to 25 years in prison respectively for setting fire to a school building where a secret service event was planned. The similarities with Morgiewicz’s case were striking, and perhaps he not only sympathised with their case, but also acted out of guilt that he got off relatively lightly. He recalled: Being familiar with prison, I knew that that it is a very severe sentence, and that is why I wrote a petition for which I collected signatures. That was not easy, because these were times in which people were afraid, especially when someone is arrested for terrorism. But I did not occupy myself with the deed, I only dealt with the sentence.21 16 AIA

mf 13: Andrzej to Milan, 28-11-75. mf 13: Adam Wojciechowski to Martin Enthoven. 18 AIA mf 13: Janusz Kryszewski to Martin Enthoven, Warsaw, April 1976; AIA mf 13: Andrzej Wo´znicki, Dear Sir; AIA mf 13: Krystian Brodacki to Amnesty International, Warszawa, 10.2.1976; AIA mf 13: Jacek Wegner, Dear Mr Enthoven, Warszawa, 20 stycznia 1976 roku; AIA mf 13: Jacek Bierezin, Ewa Sułkowska-Bierezin, to the international secretariat of Amnesty International, 16 May 1977; AIA mf 13: Zbigniew Sekulski, to the International Secretariat of Amnesty International, Lodz, 7 January 1977; IPN BU 0222-241 t 1: Meldunek operacyjny 005449/77, 10.03.78; IPN BU 0222/241 t1: Meldunek operacyjny, 005449/77, 31.01.78. 19 Interview Morgiewicz, 7 March 2016. 20 Interview Morgiewicz, 7 March 2016: ‘Powód najistotniejszy, z ˙ e mo˙zemy co´s stworzy´c niezale˙znego od władzy, i to był główny motyw. […] Ka˙zda inicjatywa, wie Pani, która osłabiała ten system, była bardzo istotna’. 21 ‘Ja, znaj˛ ac wi˛ezienie, wiedziałem, z˙ e jest to bardzo surowa kara, i te˙z napisałem tak˛a petycj˛e, pod któr˛a zbierałem podpisy. To nie było łatwe, bo to były czasy, z˙ e si˛e ludzie bali, zwłaszcza w 17 AIA

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Morgiewicz remembered that his work always had two ‘tracks’; while he became more active as an Amnesty member from 1976 on—openly collecting signatures for a Uruguayan case in 1976 and for the release of prisoners of conscience worldwide in 1977—he also continued his domestic work. For his human rights work—both at the domestic level and for Amnesty—he faced detentions and fines.22 Morgiewicz counted on intervention from Amnesty on his behalf in case of fines and arrests. He affirmed that being recognised as a prisoner of conscience and a member of Amnesty during his short arrest in 1975 made him feel somewhat protected. He also felt that it was effective for his daily work, despite the fact that he remained under investigation by the regime and therefore could be arrested at any time.23 His expectation that the International Secretariat would intervene in the event that members were arrested was justified to some extent. Amnesty had stood up for Morgiewicz and Wojciechowski in 1975 and would do so again, but it was only able to intervene if it had the right information. In several instances, it seemed that the International Secretariat had not been directly informed about the activities and ensuing repression.24 Although most materials sent by Amnesty reached the members in Poland, London did not receive a lot of information in return; one reason for that being monitoring and confiscation by the secret services.25 The Polish secret services did not accept Amnesty’s self-description as an impartial, apolitical movement. They monitored Polish Amnesty members on the presumption that they were influenced by ‘Western propaganda’ and ‘anti-socialist’ elements.26 The Polish secret service’s assessment that Amnesty’s activism in Poland amounted to outright opposition was not entirely unfounded. Indeed, many members had oppositional credentials and, despite the organisation’s rules, there were takiej sytuacji, je´sli kto´s jest pos˛adzony o terroryzm. Ale ja nie zajmowałem si˛e czynem, tylko zajmowałem si˛e kar˛a’. Interview Morgiewicz, 7 March 2016; IPN (2017) Nie z˙ yje Ryszard Kowalczyk. W PRL skazany na 25 lat wi˛ez˙ enia za sprzeciw wobec uczczenia komunistycznych zbrodniarzy, https://ipn.gov.pl/pl/aktualnosci/42339,Nie-zyje-Ryszard-Kowalczyk-w-PRL-skazany-na25-lat-wiezienia-za-sprzeciw-wobec-u.html (accessed 31 January 2020). 22 AIA mf 13: Emil Morgiewicz to President Bordaberry, Warsaw, April 1976; AIA mf 13: Text of telegram sent to the Polish authorities on 12 October 1977; Personal Archive Emil Morgiewicz: Emil Morgiewicz do Amnesty International, Warszawa, dnia 23 kwietnia 1976; IPN BU 0222/241 t 1: Meldunek Operacyjny 005449/77, 08.12.77; Wojciechowski 1977. 23 Interview Morgiewicz, 7 March 2016; Wojciechowski 1977. 24 AIA mf 13: Peter von Bethlenfalvy to Martin Enthoven, Memo, 26 October 1977; AIA mf 13: Martin Enthoven to Martin Ennals, 9 November 1977; AAN 842 38/30: Bo Lindblom to Lucjan Czebinski, Stockholm, 17 October 1977; Interview Morgiewicz, 7 March 2016; IPN BU 01228/307/J: 342-343, Serwis Nasłuchu Polskiego Radia z d. 2.XI.77. 25 Interview Morgiewicz, 7 March 2016; IPN BU 01228/307/J: Meldunek Operacyjny 005449/77, 26.09.78; IPN BU 01228/307/J: Tłumaczenie, 3 marca 1978, 387–388; IPN BU 2417/1 t1: [Letter] Adam, Drogi Przyjacielu, 8.III.76r., pp. 295–298. 26 IPN BU 0222/241 t1: Meldunek operacyjny, 005449/77, 08.12.77; IPN BU 0222/241 t1: Notatka, Warzawa, dnia 15 listopada 1977 r. OE-I-02537/77; IPN BU 01228/307/J: Meldunek operacyjny 005449/77, 04.05.85; IPN BU 0365-34 t 1: Informaca dot. udziału obywateli polskich w działalno´sci ‘Amnesty International’, Warszawa, dnia 8. VI, 1977r. ‘popularyzacji antysocjalistycznych haseł i idei, które byłyby wysuwane pod legend˛a działalno´sci w ramach AI’: IPN BU 01228/307/J: Warszawa, dnia 8 stycznia 1978 r., 401.

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strong links with domestically focused human rights groups.27 Wojciechowski and Morgiewicz closely intertwined their activities on behalf of Amnesty and ROPCiO, reporting on Amnesty activities in ROPCiO’s underground publication, and sending ROPCiO petitions to people who had previously signed an Amnesty petition.28 In 1979, 14 Polish Amnesty members eventually founded a ‘coordination group’, to ease the difficult communication of individual members with London. Morgiewicz and Wojciechowski announced this initiative in a letter to the International Secretariat, in which they also proudly provided an update regarding their own latest research on Polish human rights violations.29 The coordination group would not last very long; Morgiewicz and many other members became less active for Amnesty after the creation of the independent union movement Solidarno´sc´ founded in August 1980. Clearly, Morgiewicz had found a more effective means of pursuing his goals. The final blow to the group was delivered by the declaration of martial law in December 1981.30

3.2.2 A Clash of Worlds Amnesty and Morgiewicz had different ideas about what their human rights activism should achieve and how to most effectively reach their goals. While in the Amnesty movement, various ideas existed on what its activism should lead to— from Benenson’s wish to unite the disillusioned, to releasing prisoners worldwide and more—there was a broad consensus on how best to achieve this. Amnesty would be most effective if it were regarded as impartial and apolitical, and able to increase the power of an ideologically diverse public opinion. Morgiewicz’s goal was more tangible—to weaken the Polish regime—but his methods were less defined and more opportunistic. To him, being part of an international movement was a chance to strengthen his struggle; not just by mobilising more people, but also by raising those voices that were most likely to be heard by the Polish government. This included informing Amnesty of violations in the country, to ensure that its outside interventions would be plentiful and to the point. Equally appealing was the prospect of setting up one more independent activist hub in Poland. All were effective ways of undermining the power of the authorities.

27 IPN BU 01228/307/J: Informacja dot. Amnesty International, Warszawa, dnia 16 listopada 1981 r., 288–290; IPN BU 01228/307/J: Meldunek operacyjny 005449/77, 04.05.85. 28 IPN BU 0222/241 t 1: Meldunek Operacyjny 005449/77, 08.12.77; Waligóra and G˛ asowski 2005, pp. 47 and 96–97. 29 AIA 170: Very rough translation of letter from Poland AI, 29 February 1980; AIA mf 260: AI development in Eastern Europe, International meeting on Eastern Europe 1983; IPN BU 0222/241 t 1: Meldunek Operacyjny 000181/79 17.01.79. 30 AIA mf 260: AI development in Eastern Europe, International meeting on Eastern Europe 1983; AIA 163: Creation of AI structures in ‘communist-socialist’ countries, ORG 03/IEC 04/80; Interview Morgiewicz, 7 March 2016.

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Between Morgiewicz and the Amnesty movement, Amnesty had the least to gain from the now formalised membership relation. While an Amnesty membership in Poland was a small step towards earning the predicate ‘international’ as part of its name, there would have been easier countries with which to strengthen its international credentials. The only real added value of having members in a communist country was that it balanced its membership out more, thus ‘diminish[ing] the impression of [Amnesty International] as an organization totally dominated by Western Europe and North America and consequently by ‘capitalist,’ ‘anticommunist’ forces’.31 The risks associated with starting Amnesty structures in dictatorships had, however, become abundantly clear in the preceding years; in the early 1970s, the establishment of an Amnesty section in South Korea and an adoption group in the Soviet Union had been followed by arrests.32 Even though the stakes for Morgiewicz, who faced such potential arrest, were much higher, Amnesty seemed to have been more acutely aware of how much it risked losing. Part of Amnesty’s leadership, chairman Seán MacBride, who—as former Minister for External Relations for Ireland—was accustomed to the practice of diplomacy, tried to steer the movement more towards confidential negotiations with governments. Various actors within Amnesty believed that such a dialogue would be more effective in bringing about the liberation of political prisoners in Eastern European countries than the usual public indignation coming from primarily Western countries.33 Others within Amnesty believed that sticking to Amnesty’s grass-roots strategy would be more effective, and were worried that Amnesty would get caught in political games.34 When Amnesty was contacted by aspiring members from the region, mainly from dissident circles—first in Moscow and later in Warsaw—the crucial considerations were: whether their membership could harm the effectiveness of Amnesty International’s work in a general sense (by diminishing its impartial image), and whether it could harm their relations with authorities. Another consideration was whether the recognition of these people or groups as Amnesty members could pose a potential risk to the aspiring members considering the repressive countries they lived in.35 The discussions that followed from these considerations led to long delays in honouring the activists’ requests. It took a year before the group of Moscow applicants was

31 AIA

163: Creation of AI structures in “communist-socialist” countries, ORG 03/IEC 04/80. 2019, pp. 61–84. 33 AIA 12: Amnesty International Dutch Section, Is Amnesty impartial enough? 25 August 1972; AIA 12: Huib Leeuwenberg, Considerations, August 1972; AIA 25: Report of the International Council Meeting held at the stichting Woudschoten Conference Centre, Zeist, Utrecht, Holland from 8 to 10 September 1972. 34 AIA mf 557: Dirk Börner to Members of the IEC, Martin Ennals, 13 August 1974; AIA mf 562: Andrew Blane to Martin Ennals, Memorandum on Soviet Group’s Application for Recognition by A.I. as a National section, 27 December 1973; AIA mf 562: Irmgard Hutter to the members of the IEC, Vienna, 7 January 1974; Hurst 2016, p. 167. 35 AIA mf 563: JW [Jane Ward]/hh, Notes on the application by 11 individuals to form a national section in the USSR, 3 January 1974; also see: AIA mf 562: Leonid Rigerman, to Martin Ennals, 12 February 1974. 32 Miedema

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recognised as an adoption group in 1974.36 In the case of Poland, the indecisiveness as to whether to focus on getting to know the new members or officially opening up the relations with the Polish government with some ‘fanfare’ led to a five-year delay of the first official visit of an Amnesty representative to Poland.37 Those within Amnesty who believed in the effectiveness of grass-roots activism over diplomacy had little to lose when a membership structure was recognised in these countries. They were genuinely optimistic about its chances of success, believing that the applicants were best placed to assess their own situation and ‘would not have taken the initiative if they would have understood their AI work as a ticket to prison’.38 They believed that rejection would send the signal to the authorities that they could repress the applicants without consequences and, at the same time, severely damage Amnesty’s reputation in dissident circles.39 In the case of Poland, the responsible researcher clearly spoke out against giving primacy to the debate with the authorities: ‘Approaching government officials directly on matters of [Amnesty International’s] main concern in Poland might be a fiasco and a discouraging start for implementation of Eastern Europe strategy’.40 Those who were most hopeful about the effectiveness of diplomacy were generally more pessimistic with regard to the chances for an Amnesty structure to survive in a communist dictatorship. They regularly alluded to the risks of arrest or of the authorities breaking up such a group. As they considered diplomacy to be more effective than grass-roots activism, they feared that association with a group of dissidents would mean losing newly established high-level contacts, and would stand in the way of developing a politically broad membership in these countries at a later stage.41 In the discussion around sending a mission to Poland to get to know the membership, a member of the International Executive Council—the organisation’s highest continuous decision-making body—voiced the opinion that going to Poland

36 AIA mf 563: JW [Jane Ward]/hh, Notes on the application by 11 individuals to form a national section in the USSR, 3 January 1974; AIA mf 562: Irmgard Hutter to the members of the IEC, Vienna, 7 January 1974; Nathans 2015, p. 6. 37 AIA mf 13: Irmgard Hutter to IEC, Proposal of AI-Mission to Poland, Vienna, 1975 10 09; AIA 97: Eastern Europe—general policy, IEC/November 1975. 38 AIA mf 562: Andrew Blane to Martin Ennals, Memorandum on Soviet Group’s Application for Recognition by A.I. as a National section, 27 December 1973; AIA mf 562: Irmgard Hutter to the members of the IEC, Vienna, 7 January 1974; AIA mf 557: Dirk Börner to Members of the IEC, Martin Ennals, 13 August 1974. 39 AIA mf 562: Peter Reddaway, to Dirk Börner, 9 Feb. 1974; AIA mf 562: Leonid Rigerman, to Martin Ennals, 12 February 1974; AIA mf 562: Andrew Blane to Martin Ennals, Memorandum on Soviet Group’s Application for Recognition by A.I. as a National section, 27 December 1973; AIA mf 562: Irmgard Hutter to the members of the IEC, Vienna, 7 January 1974. 40 AIA mf 13: PvB [Peter von Bethlenfalvy]/ET, The aftermath of the workers’ strike in Poland, 1976. 41 AIA mf 563: Peter Reddaway, to Dirk Börner, 9 Feb. 1974; AIA mf 563: Leonid Rigerman, to Martin Ennals, 12 February 1974; Nathans 2015, pp. 5–6; AIA mf 557: Lothar Belck, Proposed recognition of an Adoption Group in the USSR, 15 July 1974; AIA mf 557: Lothar Belck to Eric Baker, Discussions with Prof. Brishchenko, 20 June 1974.

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only to speak to the members without meeting the government ‘would have meant to saddle the horse from its tail’.42 The lack of consensus on which strategy was most effective, together with the dismay about the arrests that followed the establishment of a group in Moscow, created extreme caution towards the membership applications from Poland. Morgiewicz remarked in retrospect that he understood that the earlier events in Moscow had had their effect within the Amnesty movement: ‘Those Amnesty representatives did not want to contribute to us being imprisoned in case of the establishment of a section or formal group […] They were cautious’.43 The fear existed at the International Secretariat that the founding of a Polish Amnesty group would lead to arrests.44 When Secretary General Martin Ennals finally travelled to Poland in 1980 and met with the members, one of his aims was to instil caution: ‘We went through the processes of the formation and decimation of the Moscow group and I think the message was understood’.45 It was thus abundantly clear to Morgiewicz that the caution of his conversational partners in Amnesty stood in the way of his wish to move beyond individual membership and start an Amnesty group. He wrote to them that he would readily start a group ‘if only the Amnesty secretariat would allow it’.46 Even forty years on, Morgiewicz could not entirely pinpoint the motives behind this caution: I cannot decide whether they were afraid about their own contacts, that these could be harmed, or that it was really about not harming us, and not creating a section. I cannot decide. It could entirely be that they cared about not putting us in jeopardy […] the argument we were told was that they were afraid. Well, they have the right to be afraid that we would treated by the authorities here like [the arrested Amnesty member] Kovalyov in Moscow.47

Morgiewicz was right: motives for caution were difficult to identify, and genuine concern for members’ safety was often difficult to separate from—or was entangled 42 AIA mf 246: Irmgard Hutter, Eastern Europe. Comment on a Mission which did not take place, 7-3-1976; AAN 842 38/40: B. Majewski, Protokół, Warszawa, dnia 23 lutego 1976 r.; AAN 285 7/731: Polmission Wiede´n, Minister Sprawiedliwo´sci Tow. T. Skóra Wiede´n, dnia 24.2.1976 r.; AAN 285 7/731: P. Ma´ckowiak, Notatka [maart 1976]; IPN BU 0222-241 t1: Notatka, Dotyczy: Irmgard Hutter z Amnesty International, Warszawa, dnia […] marca 1976 r. 43 : ‘I ci przedstawiciele Amnesty nie chcieli doprowadzi´ c do naszego uwi˛ezienia w przypadku stworzenia sekcji, grupy takiej formalnej. […] Ostro˙zni byli’: Interview Morgiewicz, 7 March 2016. 44 AIA mf 13: Martin Enthoven to Andrzej Koraszewski, 25 September 1975. 45 AIA 170: 6 July 1980, Warsaw. Note on a conversation with Mrs. Halina Mikolajska, Adam Wojciechowski and Mr. Emil Morgiewicz. 46 Interview Morgiewicz, 7 March 2016; AIA mf 246: Eastern Europe: Poland, IEC September 1976; AIA mf 13: Emil Morgiewicz, Dear Mr. Enthoven, Warszawa, sierpnia, 1976 r.; AIA 128: List of places, other than countries where there are national sections, where there are AI members, ORG 03/IEC 78. 47 Interview Morgiewicz, 7 March 2016: ‘Ja nie mog˛ e rozstrzygn˛ac´ , czy oni obawiali si˛e o własnych kontaktów, z˙ e mog˛a im zaszkodzi´c, czy rzeczywi´scie chodziło o to, z˙ eby nam nie zaszkodzi´c, i nie stworzy´c sekcji. Ja tego nie mog˛e rozstrzygn˛ac´ . Mogło by´c w zupełno´sci tak, z˙ e zale˙zało im na tym, z˙ eby nas nie nara˙za´c. […] ten argument do nas przemawiał, z˙ e si˛e obawiaj˛a. No, maj˛a prawo si˛e obawia´c, z˙ e nas mog˛a potraktowa´c władze tutaj, jak w Moskwie Kowalowa’.

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with—concerns of effectiveness, such as the protection of government contacts or the organisation’s image. What Amnesty’s leadership wanted the most was for the Polish membership to stick to the rules it had created over the previous decade, in order to foster its image of impartiality, which it believed Amnesty needed in order to be effective. This meant that the members were expected to respect the balancing principle and to not work on issues related to their own country. Amnesty’s leadership realised that domestic human rights violations were omnipresent in Poland and other Eastern European countries, and that these violations had been vital in engaging Morgiewicz and others for human rights work. Amnesty therefore strongly emphasised this rule.48 The International Secretariat feared that a membership dominated by opposition activists— who might not really know what they were joining—would break the rules and hurt the organisation’s image. The secretariat also feared that this would undo one of the few real benefits of Eastern European membership: the fact that the organisation would appear less Western-centred and anti-communist. The organisation first wanted to know more about the Polish members’ and government’s attitude before taking further steps, but it took no serious efforts to make that happen.49 The task of imposing the own country rule on new Eastern European members was complicated by the fact that the rule itself was still in the process of being defined and further tightened. In particular, the limits of information gathering remained subject to individual interpretation. In 1972, the official rule was still that: National Sections should draw the attention of the IEC [International Executive Council] to blatant infringements of human rights and be of assistance in collecting detailed information about prisoners whether in their own or other countries.50

48 AIA

mf 561: Development program [1976]; IPN BU 2417/1 t2: Martin Enthoven, Dear Mr Morgiewicz, 20 June 1975, 163; AIA 170: 6 July 1980, Warsaw. Note on a conversation with Mrs. Halina Mikolajska, Adam Wojciechowski and Mr. Emil Morgiewicz. 49 AIA mf 246: Development in Eastern Europe, IEC January 1977; AIA 126: jw/12 December 1977, Notes on preliminary discussion on development in Europe held on Wednesday 23 November 1977; AIA 129: Minutes of IEC meeting on development, IEC March 1978. 50 AIA 56: Note for the International Executive Committee concerning resolution 9 (c) proposed by the Italian section and approved by the International Council, 14 January 1972.

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When a South Korean section was established in 1973, it was said that the rule did not preclude the collection and transmission of information.51 In 1974, during the discussion about the request to form a section in Moscow, the International Secretariat’s research department did not object to the group passing on information about human rights violations in the Soviet Union.52 Later on, however, the Moscow group was explicitly instructed not to collect data for the research department.53 The tense response to information gathering in Poland shows that after being confronted with actual activities and its consequences in repressive states such as South Korea and the Soviet Union, the organisation became more cautious and defensive than the guidelines officially called for. When Morgiewicz entered the stage in 1975, new interpretations had become stricter than the rules of 1972 that were officially still valid. Increased dealings with countries outside Amnesty’s core area in the 1970s slowly sensitised its membership to the fact that its Western-born form of activism would not be equally effective everywhere. The discussion stimulated reflection about the fact that Amnesty’s methods and policy of impartiality derived from a particular culture, and that: ‘the traditional impartiality and balance in AI’s work rests on cultural and political assumptions which are strongest in Western Europe’.54 It was clear to more and more people that, in some countries, Amnesty ‘acquired a local image which is definitely not politically neutral vis-à-vis internal issues’.55 Rather than loosening the own country rule, however, the general trend among the Western-dominated membership continued to further strengthen it, with the aim of safeguarding the image of impartiality that it saw as crucial to the organisation’s effectiveness. Most sections advocated strong limitations on own country work in order to prevent ‘incidents which damage the credibility and effectiveness of AI’.56 In 1978, a committee reviewed the rule and recognised that in countries with widespread human rights violations, not acting on domestic issues might undermine Amnesty’s credibility. The rule nevertheless remained in place, and exceptions were only possible for groups or sections that had proven themselves by working on cases outside the country for long enough.57 The growing realisation that expectations and structures 51 AIA 107: Arlette Laduguie to International Executive Committee, Summary Report on trip to South Korea, (17–20 March 1976) IEC June 1976. 52 AIA mf 563: JW [Jane Ward]/hh, Notes on the application by 11 individuals to form a national section in the USSR, 3 January 1974. 53 AIA mf 557: Martin Ennals to V.R. Turchin, A.N. Tverdokhlebov, Moscow, 11 July 1974. 54 AIA mf 561: Development program [1976]. 55 AIA 93: Development of Amnesty International, IEC July 1975; AIA mf 561: Dirk Börner to Irmgard Hutter, 23 December 1976. 56 AIA mf 115: National sections’ activities concerning their own countries, 8 August 1977, ACT 01/07/77; AIA mf 118: Final report of the IEC committee established to consider national sections’ activities concerning their own countries, ICM 13/01/78; AIA mf 127: Guidelines on national sections’ activities concerning violations of human rights in their own countries, ORG 04/01/81. 57 AIA mf 115: National sections’ activities concerning their own countries, 8 August 1977, ACT 01/07/77; AIA mf 118: Final report of the IEC committee established to consider national sections’

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developed in the West could not automatically be transferred to other parts of the world mainly led to the development of new forms of activism, rather than changes to Amnesty’s impartiality rules. This meant that the organisation reconsidered its forms of membership and activism,58 but failed to scrutinise the universal principles that hampered its development just as much. The own country rule was at odds with Morgiewicz’s priorities and assessment of effectiveness. Informing Amnesty had been his entry point to the organisation and remained an important reason for him to be involved. He recalled in an interview with the author in 2016: ‘We understood in this case, that it was about a certain objectivism, that was clear. But […] where is Amnesty supposed to find out what was happening in Poland?’59 Contrary to the direction in which Amnesty was going in the 1970s, Morgiewicz considered it most effective if those closest to both the movement and the actual events would gather the information, even though he was happy to leave the interpretation to the researchers in London. To him, Amnesty’s rules were not a way to ensure effectiveness, but rather a distraction from his aim to make the organisation amplify his concerns about repression in Poland. As a member, he therefore continued to inform the International Secretariat of human rights violations in Poland, and to pass on information that had been given to him by people experiencing human rights violations in Poland. Morgiewicz and his fellow members seemed to consider Amnesty’s list of concerns regarding Poland (outlined in its annual report) as a mandate for further research.60 When, in 1980, Amnesty’s General Secretary, Martin Ennals, finally visited the Polish members, the first thing that the Polish members did was to inform Ennals of cases of persecuted activists in Poland. Ennals graciously received the information, but then engaged in a discussion of several hours about the limits of Amnesty’s activism. In his report on the visit, he wrote: I explained in detail their responsibility and the openness of the way in which Amnesty International works. They found it difficult to understand this differentiation of functions between activities relating to their own country and activities for other prisoners. They found it difficult to accept that they should not be held responsible for […] presenting information to Amnesty.61 activities concerning their own countries, ICM 13 January 1978; AIA mf 127: Guidelines on national sections’ activities concerning violations of human rights in their own countries, ORG 04/01/81; AIA 199: AI development in countries with an active research program, ORG 03/IEC 15/83, January 1983. 58 AIA mf 561: Resolution passed at the St. Gallen council of 1975; AIA 93: Development of Amnesty International, IEC July 1975; AIA 95: Individual membership, IEC/September 1975; AIA mf 116: Report of the “Crash Committee” on Growth and Development of Amnesty International, Cambridge, 17–19 June 1977, ORG 53/08/77; AIA 13: International Secretariat, Development of Amnesty International, International Council Meeting 1973. 59 Interview Morgiewicz, 7 March 2016: “My rozumieli´smy w czym rzecz, chodzi o pewien obiektywizm, to wiadomo. Ale ... sk˛ad Amnesty ma si˛e dowiedzie´c, co si˛e dzieje w Polsce?” 60 AIA 170: Very rough translation of letter from Poland AI, 29 February 1980; Interview Morgiewicz, 7 March 2016. 61 AIA 170: 6 July 1980, Warsaw. Note on a conversation with Mrs. Halina Mikolajska, Adam Wojciechowski and Mr. Emil Morgiewicz.

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From the perspective of an Eastern European activist, it was confusing that the International Secretariat accepted information from Eastern European individuals and human rights groups; from Morgiewicz, for example, when he sent his prison memorandum in 1974, but then shied away from allowing these same people to collect and transfer information once they had become official members. The closer one came to Amnesty, the bigger the distance. If this was already confusing for the members, it was even more so for the outside world. It was not uncommon for Morgiewicz to be approached by people in Poland asking for Amnesty’s intervention in their case, as he was perceived as some kind of ‘bridge’ to the organisation. Contrary to the rules, Morgiewicz and other Polish members did appeal to the International Secretariat to act on behalf of some of these harassed activists or prisoners.62 As Amnesty’s leadership rightfully feared, the authorities were particularly worried about these attempts to send information about domestic human rights violations to the West.63 Contrary to the rules, but in line with his own goals, Morgiewicz combined his domestic work and Amnesty activism.64 Upon his visit in 1980, Ennals voiced his uneasiness about the close connection between the Polish Amnesty membership and the Polish human rights group ROPCiO.65 While Ennals’s anxiety about the close relations between Amnesty members and the opposition was understandable, Amnesty’s policy of keeping a strict separation between domestic work and Amnesty activities in Poland did not have the desired effect of affirming the movement’s impartial image. The secret service saw Amnesty as a political and dissident movement anyway.66 In addition, the idea that Morgiewicz and other Polish fellow members should follow the balancing principle was not met with unqualified enthusiasm. During Ennals’s 1980 visit, he tried to explain the need for balancing to Morgiewicz, Wojciechowski and fellow member Halina Mikołajska. The three Polish Amnesty members had trouble seeing the value of sending letters to both the Soviet Union and Chile, when the first ones—sent from Poland—never arrived and therefore could not have the intended effect. Ennals tried to explain the symbolic importance of

62 AIA 170: Very rough translation of letter from Poland AI, 29 February 1980; Interview Morgiewicz, 7 March 2016; IPN BU 0222/241 t 1: Meldunek Operacyjny 005449/77, 21.11.78; IPN BU 0222/241 t 1: Meldunek Operacyjny 005449/77, 04.11.78; IPN BU 01228/307/J: Warzawa, ˙ dnia 19 grudnia 1978 r., 386-387; Zukowski, Oddech. 63 IPN BU 01228/307/J: Meldunek operacyjny 005449/77, 04.05.85; IPN BU 01228/307/J: Plan działa´n operacyjnych w zwi˛azku z naistniałym zagro˙zeniem utworzenia polskiej sekcji “Amnesty International”, Warszawa, 12 stycznia 1979 r., 89–93. 64 IPN BU 0365-43 t 1: Notatka, Warszawa dnia 21 czerwca 1977 roku; IPN BU 2417/1 t1: Do rady pa´nstwa polskiej rzeczypospolitej ludowej, 363; Interview Morgiewicz, 7 March 2016. 65 AIA 170: 6 July 1980, Warsaw, Note on a conversation with Mrs. Halina Mikolajska, Adam Wojciechowski and Mr. Emil Morgiewicz. 66 E.g. IPN BU 01228/307/J: 229, OE-V-0265/80, Warszawa, dnia 15 lutego 1980r.

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sending letters to show that the organisation stuck to the same impartiality principles everywhere.67 The balancing principle was both impractical and hard to grasp in a context in which violations by one’s own government were rampant, while Western human rights violations were central to government propaganda. While Morgiewicz and his friends rightfully questioned the effectiveness of actually influencing governments to take action by abiding to the balancing policy, Ennals put forward a more abstract concept of ‘effectiveness’. This concept was built on the belief that only meticulous and consistent balancing could safeguard the impartial image and unity that the movement needed to gain results. The fact that, contrary to Western governments, the Polish government was not inclined to accept this reasoning, did not matter on the global scale. Morgiewicz and his friends accepted Amnesty’s principles of openness and nonviolence more easily. Especially after 1976, these also had become important characteristics of the Polish opposition movement, and were seen as crucial to its effectiveness—preventing it from being side-tracked by debates or questions about its legitimacy. The need for non-violence was widely accepted in an opposition group such as KOR, which Morgiewicz joined in 1976,68 but his personal stance on the case was less clear. The non-violence clause was the reason that, in the early 1970s, Amnesty had not ‘adopted’ Morgiewicz and the others in the Ruch trial as prisoners of conscience.69 Morgiewicz’s communication with London shows how his understanding of Amnesty’s rules grew as he became more acquainted with the organisation. While he initially—in the first half of 1975—referred to himself as a former prisoner of conscience, he later referred to himself a former political prisoner instead. He would, however, explicitly add that his political activity had been ‘devoid of any accents of violence’.70 While in Western eyes acting openly and within the confines of the law was seen as a way to be accepted, in Eastern Europe this could easily be perceived as provocative, rather than as reassuring. The openness that Morgiewicz and Wojciechowski demonstrated by fruitlessly going to a bank to inquire whether it was possible to exchange złotys into pounds for the membership fee, could have been a way to show that this movement was following all legal procedures, but it was also a statement vis-à-vis the regime.71 Similarly, after establishing a group in 1979, Morgiewicz announced 67 AIA 170: 6 July 1980, Warsaw, Note on a conversation with Mrs. Halina Mikolajska, Adam Wojciechowski and Mr. Emil Morgiewicz. 68 Lipski 1985, pp. 70–71. 69 Morgiewicz and the other Ruch prisoners had not been accepted as prisoners of conscience despite calls to do so from the Polish emigrant community: AIA mf 13: Jane Ward to Thomas Hammarberg, 22 January 1973; AIA mf 13: Milan Hauner to Wolfgang Heinz; AIA mf 13: Jane Ward to Thomas Hammarberg, 22 January 1973; AIA mf 13: T. Prokopowicz, S. Wasik, to Martin Ennals, 29 November 1972. 70 IPN BU 2417/1 t1: Letter Emil Morgiewicz to Amnesty International, Warsaw 19. Apr. 1975, 182; IPN BU 2417/1 t2: Emil Morgiewicz, Dear Mr. Enthoven, Date 10 August 1975, p. 169. 71 AIA 170: 6 July 1980, Warsaw. Note on a conversation with Mrs. Halina Mikolajska, Adam Wojciechowski and Mr. Emil Morgiewicz.

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that he would try to officially register it, despite knowing that it would never be recognised. He thereby once again used a legalism prescribed by Amnesty—and common in the opposition—to potentially expose the regime at the same time.72 Despite these signs that members understood some of Amnesty’s more crucial principles, Ennals felt the need, in 1980, to dedicate a large part of his conversation with Morgiewicz and the others to reaching ‘a general acceptance of the openness of the approach of Amnesty’. He set the members the goal of ensuring that Amnesty would become a legitimate and officially recognised organisation in Poland in the near future.73 Ennals suggested to the members that they take the Amnesty statute to the censor to ask whether it could be published in Poland. After his conversation with the Polish members he noted: ‘I think that all three of them are sceptical of this open approach to the problem as they feel that we are looking at it, or I was representing a view, which reflected a Western approach to human rights and to Amnesty’.74 Nevertheless, Morgiewicz and his fellow members were slowly adapting to Amnesty’s rules and language; not always because they believed that that made Amnesty’s work in Poland more effective, but because being part of this worldwide movement and introducing it into Polish society were effective means towards achieving their own goals.

3.2.3 Not Alone: Beyond the Individual More than just representing an individual clashing with a system of rules, this confrontation represented a clashing of world views. Other Eastern European individuals displayed interpretations of effectiveness that differed from Amnesty’s assessments in the same way. The idea that a national Amnesty structure would help to increase domestic independent space was, for example, shared by Moscow Amnesty group member Yuri Orlov, who remarked in his memoirs that the group was ‘part of our general plan to help create more and more unofficial human rights groups in order to involve people in peaceful activity independent of the government’.75 Fellow Moscow member Vladimir Voinovich called the Amnesty group ‘a challenge to the Soviet authorities’.76 Becoming active on behalf of Amnesty was interesting, because it was an independent activity that weakened the regime; and it offered the prospect of gaining an important international ally, giving an international dimension 72 IPN BU 0222/241 t 1: Meldunek Operacyjny 000181/79 17.01.79; IPN BU 01228/307/J: Meldunek Operacyjny 005449/77, 21.02.78, 47–48; interview Morgiewicz, 7 March 2016. 73 AIA 170: 6 July 1980, Warsaw. Note on a conversation with Mrs. Halina Mikolajska, Adam Wojciechowski and Mr. Emil Morgiewicz; AIA 170: Melanie Anderson to Martin Ennals, 23 June 1980. 74 AIA 170: 6 July 1980, Warsaw. Note on a conversation with Mrs. Halina Mikolajska, Adam Wojciechowski and Mr. Emil Morgiewicz. 75 Orlov 1991, p. 168. 76 Voinovich 2007: ‘to byl vyzov covetcko vlacti’.

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to one’s own human rights activism.77 Voinovich recalled: ‘We were no longer just dissidents, but participants in an international movement, a branch of a well-known organization’.78 To enjoy the practical perks of being part of Amnesty, these Eastern European activists accepted Amnesty’s rules, but many had their personal opinions on it. Voinovich wrote about the own country rule: ‘it is stupid – I myself am in a cage and I am writing a letter to get someone else released’.79 Polish activist Jacek Czaputowicz, who was part of an effort to translate and spread Amnesty materials in the 1980s after the demise of Morgiewicz’s group, remembers that the own country rule was the reason he never contemplated establishing an Amnesty structure in Poland: According to Amnesty International rules, you defend people, but not those in your own country. They defended me; I defended people in Africa or Israel or in the United States […] But we could not defend ourselves as Amnesty International.80

Most activists knew very well that the level of protection offered by Amnesty’s impartiality rules was very limited in their countries, as international and domestic human rights work were hard to separate—both in their own lives and in the eyes of the authorities. Some of the members experienced this first-hand. When asked about the protective value of Amnesty membership during his arrest in 1975 by his interrogating officer, Moscow group member Sergey Kovalyov remembers in an interview forty years later: ‘[Major] Istomin even asked me whether my Amnesty International membership did not constitute some kind of flight, to escape responsibility […] Well, as you can see, I did not escape responsibility,—I muttered. What else could I say to him?’81 Joining Amnesty might sometimes have enhanced—rather than diminished— risks for activists. In his memoirs, Orlov recounted a very salient example of how the mistrust of Amnesty’s leadership in the motives and ideas of effectiveness of these new members actually endangered the activists’ position. He described how, during the first high-level visit to assess the Moscow group membership application, Amnesty representatives stated (probably in a bugged room) that if the applicants’ true intention behind the founding of an Amnesty structure was to overthrow the state, there would be more effective ways to do so. ‘We are not setting ourselves any such goal’, Orlov recalled saying to the potentially bugged walls—just in case’.82

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2008, pp. 106–107; Sakharov 1990, p. 449. 2007: ‘Centpalna Amnesty International nac ppiznala, i covetcko vlacti ye bylo clonee pacppavltc c nami. My ye byli ne ppocto diccidenty, a yqactniki medynapodnogo dvieni, filial izvectno opganizacii’. 79 Voinovoch 2007: ‘to glypo — cam cidix v kletke i pixex picmo, qtoby kogoto ocvobodili’. 80 Stahl 2015. 81 Radziwon 2017, p. 168. Quoted as: “Istomin pytał mnie nawet, czy moje członkostwo w Amnesty International to nie jest taki wybieg, z˙ eby samemu unikn˛ac´ odpowiedzialno´sci. […] “No, jak Pan widzi, nie unikn˛ałem odpowiedzialno´sci”—mruknałem. Co miałem mu jeszcze powiedie´c?”. 82 Orlov 1991, pp. 168, 176 and 185. 78 Voinovich

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Despite the mistrust among part of Amnesty’s leadership, there were many more motives to join Amnesty from Eastern Europe than simply the wish to make domestic campaigns more effective. In his writings of the 1970s, Moscow group chairman Valentin Turchin demonstrated a profound understanding of—and interest in—the reasoning behind Amnesty’s impartial form of activism.83 Other activists, both in the Soviet Union and Poland, have shown similar genuine enthusiasm for international human rights activism and Amnesty’s attempts to remain aloof from politics, and instead universalise human rights concerns.84 Yet other activists remember being motivated by the Amnesty’s disinterested and international form of activism and, at the same time, had quite an existential urge to give back to people who had previously campaigned for their release from prison.85

3.3 Conclusion In his memoirs, well-known Soviet dissident and sympathiser Andrei Sakharov aptly wrote: ‘Not all of Amnesty’s rules [...] make sense under Soviet conditions’.86 Amnesty’s rules, created to make the organisation effective in the context from which it originated, did not always work well in the context that Morgiewicz operated in. The need for distance between activists and human rights violations, as prescribed by the own country rule, did not have the same effect in societies where all independent activism was seen as undermining; and where ‘impartiality’ as a concept was not accepted. In the Western European context, the rule removed ideological distractions that could stand in the way of reaching Amnesty’s goals; in the Eastern European context, the rule itself formed a distraction from the goal of exposing the state. Amnesty’s leadership nevertheless expected its Eastern European members to abide by its rules to safeguard Amnesty’s impartial image, as the rules were meant to be universal. Amnesty’s policy on Eastern Europe was informed by good intentions, and fear of harm to the organisation or the applicants. It was also based on limited knowledge of the area, which had never been a real priority; and was hampered by discussions about what approach would be most effective in this geopolitical space. An awareness of the fact that what had been considered to be effective in Amnesty’s core area was not necessarily the best way to campaign in this region did sink in, albeit very slowly. The understanding that the own country rule worked out differently in countries with pervasive human rights violations also slowly became more widespread. 83 Turchin

1981, pp. 283–284. 2016, p. 147; Radziwon 2017, p. 168; Orlov 1991, p. 168; interview Czaputowicz, 20 October 2014 and 7 March 2016; AIA mf 113: open letter to L.I. Brezhnev from Mykola Rudenko, 23 June 1975. 85 Interview Czaputowicz, 20 October 2014 and 7 March 2016; interview Chojecki, 14 November 2014. 86 Sakharov 1990, pp. 448–449. 84 Hurst

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Amnesty’s stubbornness regarding its rules stemmed from its grass-roots foundation. Changing policies was exceedingly difficult and time-consuming in an organisation in which the rules were ultimately decided by the members. These members, overwhelmingly based in western countries, did not only show little interest in Eastern Europe, but also defended the rules that had drawn them to the organisation and that were effective in the area where they lived, which was generally far away from where the human rights violations they struggled against were taking place.87 For Amnesty’s leadership, with its universal and international aspirations, the fact that its rules were ineffective in Poland mattered less than the symbolic effect of being able to show that it maintained the same rules all around the world. The rule prescribing distance between activists and human rights violations did not work well for an activist like Morgiewicz. The main aim for his human rights activism was to fight human rights violations in his own country and to weaken the regime. Amnesty’s leadership, however, discouraged him from doing the exact two things that would have furthered his goals: collecting information about Poland and starting an Amnesty group. For Morgiewicz, being an Amnesty activist was never something that he could separate from his domestic activism; rather, it was an extension of that activism—another station in his search for the most effective means to achieve his goals. An international and well-respected human rights movement might have been the vehicle he needed to further his activism. He could not yet have known the restrictions that that movement would put on his activism, as the rules and practices were in flux and were (partly) only tightened after the Moscow arrests—just months before he first contacted the International Secretariat. At the same time, Amnesty’s rules, caution and universality might have been the elements that made it into the respected movement that appealed to Morgiewicz at first. This movement was based on the presumption that it needed to enforce distance as a means to be effective. To the members in Eastern Europe, however, the rules that this presumption translated into effectively ended up increasing their distance in relation to the organisation itself.

References Amnesty International (1962-1963) Amnesty International (British section) Movement for freedom of opinion and religion. Second annual report 1 June 1962-31 May 1963. Amnesty International, London https://www.amnesty.org/en/documents/pol10/001/1963/en Amnesty International (1964) Amnesty International annual report 1 June 1963-13 May 1964. Amnesty International, London https://www.amnesty.org/en/documents/pol10/001/1964/en/ Baehr P R (1994) Amnesty International and its Self-Imposed Limited Mandate. Netherlands Quarterly of Human Rights 1:5–21 Benenson P (1961) The forgotten prisoners, https://www.theguardian.com/uk/1961/may/28/fromth earchive.theguardian (accessed 31 January 2020) Buchanan T (2002) The Truth Will Set You Free: The Making of Amnesty International. Journal of Contemporary History 4:575–597 87 Hopgood

2006, p. 200; AIA 257: Notes on Program meeting, Friday 22 August 1986.

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Clark A M (2001) Diplomacy of Conscience: Amnesty International and Changing Human Rights Norms. Princeton University Press, Princeton Eckel J (2014) Die Ambivalenz des Guten: Menschenrechten in der internationalen Politik seit den 1940ern. Vandenhoeck & Ruprecht, Göttingen Hopgood S (2006) Keepers of the flame: understanding Amnesty International. Cornell University Press, Ithaca Hurst M (2016) British Human Rights Organizations and Soviet Dissent, 1965-1985. Bloomsbury, London/New York Ł˛atkowska, M. and Borowski, A. (2017) Emil Morgiewicz https://www.encysol.pl/wiki/Emil_M orgiewicz (accessed 17 January 2020) Lipski J J (1985) KOR: A history of the Workers’ Defense Committee in Poland, 1976-1981. University of California Press, Berkeley Miedema C (2019) Not a Movement of Dissidents: Amnesty International beyond the Iron Curtain. Wallstein, Göttingen Moyn S (2012) The Last Utopia: Human Rights in History. Harvard University Press, Cambridge, MA Nathans B (2015) Moskauer Menschenrechtler an Amnesty International, Quellen zur Geschichte der Menschenrechte, herausgegeben vom Arbeitskreis Menschenrechte im 20. Jahrhundert, https://geschichte-menschenrechte.de/schluesseltexte/moskauer-menschenrechtler-an-amn esty-international/ (accessed 31 January 2020) Orlov Y (1991) Dangerous thoughts. Memoirs of a Russian Life. William Morrow and Company, Inc, New York ˙ smy jak ludzie wolni: Rozmowa z Siergiejem Kowalowem. Wydawnictwo Radziwon M (2017) Zyli´ zarne, Wołowiec Sakharov A (1990) Memoirs. Alfred A. Knopf, New York Stahl D (2015) Lebensgeschichtliches Interview mit Jacek Czaputowicz, 29.09.2014, https://www. geschichte-menschenrechte.de/personen/jacek-czaputowicz/ (accessed 31 January 2020) Turchin V (1981) The Inertia of Fear and the Scientific Worldview. Columbia University Press, New York Voinovich V N (2007) Avtopoptpet: Poman moe izni. Eksmo, Moscow, https://flibusta.is/b/ 183483/read (accessed 1 February 2020) Waligóra G, G˛asowski T (eds) (2005) Dokumenty uczestników Ruchu Obrony Praw Człowieka i Obywatela 1977-1981. Ksi˛egarnia Akademicka Fundacja Centrum Dokumentacji Czynu Niepodległo´sciowego, Krakow Wojciechowski A (1977) Legalno´sc´ Bezprawia, https://repozytorium.encysol.pl/wiki/007677 007014 (accessed 31 January 2020) Wong W H (2008) Centralizing Principles: How Amnesty International Shaped Human Rights Politics through its Transnational Network. PhD Dissertation University of California, San Diego

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For Further References Archives Amnesty International Archive (AIA), paper archive and microfilm (mf), International Institute for Social History, Amsterdam Archiwum Akt Nowych (AAN), Warsaw Instytut Pami˛eci Narodowej (IPN), Warsaw

Interviews Chojecki M, 14 November 2014, Warsaw Czaputowicz J, 20 October 2014, Warsaw Czaputowicz J, 7 March 2016, Warsaw Morgiewicz E, 7 March 2016, Warsaw

Christie Miedema is an historian of human rights activism and the transnational linkages across the ideological divides of the East-West conflict. After studying history in Utrecht, Siena and Berlin, in 2015 she defended her dissertation Vrede of Vrijheid? (Peace or Freedom?) on Western left-wing movements and the Polish opposition in the 1980s at the University of Amsterdam. Her next book, Not a Movement of Dissidents. Amnesty International Beyond the Iron Curtain, is due to be published by Wallstein. Beyond her academic historical work, she works as a human rights campaigner.

Part II

The Effectiveness of Human Rights Monitoring and Implementation at the Domestic Level

Chapter 4

Does the Right to Education Lead to Better Primary Education Outcomes? Bart Kleine Deters

Contents 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 The Right to Education Protection Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1 Minimum Core Obligation #1: Education as a Human Right . . . . . . . . . . . . . . . . 4.2.2 Minimum Core Obligation #2: Non-discrimination in Accessing Education . . . . . 4.2.3 Minimum Core Obligation #3: Free Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.4 Minimum Core Obligation #4: Compulsory Education . . . . . . . . . . . . . . . . . . . . . 4.2.5 Minimum Core Obligation #5: Free Choice of Education . . . . . . . . . . . . . . . . . . . 4.2.6 Minimum Core Obligation #6: National Education Strategy . . . . . . . . . . . . . . . . 4.2.7 Minimum Core Obligation #7: The Goals of Education . . . . . . . . . . . . . . . . . . . . 4.2.8 Construction of the Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Descriptive Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Regression Method and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.1 Description of Variables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.2 Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

74 76 78 78 79 80 81 82 82 85 86 90 90 91 94 95

Abstract This chapter investigates the relationship between the right to primary education as a legal construct (right as structure) and education outcomes (right as outcome). The former is defined as the extent to which national legislation is in line with the minimum core obligations of the right to primary education. Since this information was not readily available, a dataset has been constructed containing information about the seven minimum core obligations (divided among 18 indicators) for 45 countries over the period 1990–2018. This information was then aggregated into the ‘right to education protection-index’, a summary score for a state’s national education legislation. There is a clear upward trend in terms of the legal protection of the right to education. The relationship between the rights-index and right-asoutcome (defined as primary net enrolment rates) was tested empirically, using fixed effects regression analysis. As there was no statistically significant direct effect, the hypothesis that the ‘right to education protection-index’ is positively related to the B. Kleine Deters (B) United Nations University, MERIT and Maastricht University, Boschstraat 24, 6211 AX Maastricht, The Netherlands e-mail: [email protected] © t.m.c. asser press and the authors 2021 C. Boost et al. (eds.), Myth or Lived Reality, https://doi.org/10.1007/978-94-6265-447-1_4

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net enrolment rate had to be rejected at first. It was shown, however, that there is a statistically significant positive effect if we allow the effect to be delayed by a number of years. After seven years the effect becomes statistically significant, and it remains so over time, indicating that improvements in the right-as-structure can be effective in changing right-as-outcome—as long as we are patient enough. Keywords Right to education · Minimum core obligations · Statistical analysis · Measurement of human rights · Effectiveness · Right to education protection index

4.1 Introduction ‘Effectiveness’ is the main buzzword in the development discourse surrounding education nowadays. Providing free school meals is highly effective in retaining school enrolment! There is a big effect on test scores if we deworm children regularly!1 There is a frantic search for getting the most ‘bang for your buck’, and cost-effectiveness is the holy grail by which all interventions are measured. The problem is that, in order to accurately measure cost effectiveness, the interventions (and outcomes) have to be relatively simple. It would be rather difficult, for example, to quantify the cost-effectiveness of introducing democracy in the former Soviet bloc in the early 1990s. The concept of human rights is one of those notions for which it is rather difficult to perform a cost-benefit analysis. That is not to say that people are not interested in the effectiveness of human rights. On the contrary, there is a sizeable body of literature estimating the impact of treaty ratification on state behaviour, especially in terms of civil and political rights.2 This compliance literature roughly defines effectiveness as the effect that a change of ‘rights as paper’ (e.g. treaty ratification) has on ‘rights as reality’ (e.g. fewer arbitrary arrests), through a black box of policy processes and sensitisation.3 More formally: human rights start as structure (treaty ratification, constitutions and laws). Then they become process, which are the steps taken by countries to transform their human rights commitments into the desired results (budget allocations, policy design).4 Lastly, human rights become outcomes (the actual enjoyment of the right by the right-holder).5 This tripartite structureprocess-outcome system allows researchers to assess the effectiveness of human rights.

1 Banerjee

and Duflo 2011. example Hafner-Burton and Tsutsui 2005; Hathaway 2002; Simmons 2010. 3 Boli and Thomas 1997. 4 OHCHR 2006; this process can be more or less rights-based. Ideally, it should be done in a participatory manner, ensuring equality and non-discrimination. 5 OHCHR 2012. 2 For

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The results of these enquiries have been mixed, however. For education, for example, it was found that being a State Party to the ICESCR improved gross primary enrolment rates, but that there was no such effect for the ratification of the CRC.6 Part of the problem might be the choice for treaty ratification as right-as-structure. In most states treaty ratification has no domestic effect, requiring incorporation into the domestic legal sphere first.7 Furthermore, the act of ratifying a treaty does not come with strong enforcement mechanisms.8 Lastly, the causal chain between ratification and rights improvement ‘on the ground’ is long, and there are many confounding factors that might obfuscate a potential link.9 The current chapter complements the existing literature by measuring right-asstructure through national legislation, rather than through treaty ratification. Since concrete political and legal compliance mechanisms do exist at the national level, studying national laws is likely to lead to a better understanding of the effectiveness of human rights. The term ‘effectiveness’ is understood here as the ability to effect change at the level of enjoyment of the right to education. In other words: does enjoyment of the right-as-outcome improve if we strengthen the law (the rightas-structure)? In this chapter, we address this question using the right to primary education, with national education legislation as the right-as-structure, and primary net enrolment rates as our measure of right-as-outcome.10 To assess the effectiveness of changing the education legislation, we had to construct a new dataset containing information on the right to education in national laws over the period 1990–2018 for 45 countries in Sub-Saharan Africa, Latin America, and the Caribbean.11 The chapter will first discuss the construction of the dataset, which consist of 18 indicators aggregated into one ‘right to education protection-index’.12 This index will provide a numerical score of the degree to which a state’s domestic education legislation is in line with the internationally agreed right to education. This score will show how the right-as-structure has evolved in this 6 Boyle

and Kim 2009. and Pennings 2008. 8 Cole 2012. 9 Goodman and Jinks 2003. 10 Using primary net enrolment rates as the measure of the right-as-outcome does not capture the full width and depth of the possible enjoyment of the right to education, of course. At the same time, it is difficult to see any enjoyment of the right to education without at least the ability to attend primary school. It should thus be seen as a (but not the) prerequisite to the full enjoyment of the right to education. 11 Argentina, Barbados, Benin, Botswana, Burkina Faso, Cabo Verde, Cameroon, the Central African Republic, Colombia, Comoros, Costa Rica, Cuba, Côte d’Ivoire, Ecuador, Equatorial Guinea, Eritrea, Ethiopia, Gabon, Ghana, Guinea, Guyana, Honduras, Jamaica, Kenya, Lesotho, Madagascar, Mauritius, Mexico, Mozambique, Namibia, Nicaragua, Niger, Panama, Paraguay, Peru, Saint Lucia, Saint Vincent and the Grenadines, São Tomé et Principé, the Seychelles, South Africa, Swaziland, Togo, Trinidad and Tobago, Uruguay, and Zambia. 12 The author is grateful for the help of Orsi Balog, Diego Benitez Moreno and Maurice Stark in collecting the data necessary for this chapter. 7 Korda

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period, before assessing its effect on education outcomes.13 Lastly, the results will be discussed and further directions for research will be outlined.

4.2 The Right to Education Protection Index Before we can answer the research question, we need to conceptualise right-asstructure at the domestic level. This conceptualisation should be comparable across countries and over time, and must be quantifiable to allow for statistical analysis.14 To do so, we adapt Kalantry, Getgen, and Koh’s method to measure socio-economic rights.15 They prescribe the following three steps: • “analyse the specific language of the treaty that pertains to the right in question; • define the concept and scope of the right; [and] • identify appropriate indicators that correlate with the obligations”.16 Completing these steps will result in a benchmark that serves as a basis for evaluation of a state’s national legislation. Step one involves selecting the relevant treaty. We chose the International Covenant on Economic, Social, and Cultural Rights (ICESCR), for three reasons: its near-universal acceptance,17 its seniority as the first UN treaty on socio-economic rights, as well as its central importance in legal handbooks on economic, social and cultural rights.18 For step two, we rely on the UN Committee on Economic, Social, and Cultural Rights’ (CESCR) conceptualisation of the minimum core obligations of the right to education, as laid down in General Comments 11 and 13.19 The minimum core obligations are a closed set of concrete obligations, making it better suited for measurement than more open-ended conceptualisations. Next, the Committee’s view that failing to fulfil the minimum core obligations is “prima facie failing to discharge its obligations under the Covenant” allows us to—largely—evade the thorny issue of progressive

13 We

will start the statistical section with a short introduction on the idea behind causal inference. 1993, p. 119. 15 Kalantry et al. 2010, p. 259. 16 Kalantry et al. actually prescribe five steps, as they also include the ‘setting of benchmarks to measure progressive realisation’ and ‘the identification of what constitutes a violation of the right in question’ (p. 259). Our conception is independent of the principle of progressive realisation, as will be shown in this chapter. Furthermore, we are hesitant to unequivocally determine violations through the index; the instrument was not designed to do that. For these two reasons we will not include Kalantry et al.’s last two steps. 17 In July 2019, the ICESCR had 169 ratifications. 18 Bantekas and Oette 2013; Pogge 2007; Tomuschat 2008. 19 CESCR 1999a, b. 14 Barsh

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realisation.20 Lastly, the General Comments “enjoy a significant degree of acceptance by State Parties”.21 The CESCR’s task as the monitoring body of the implementation of the Covenant (including its hearings and Concluding Observations) puts it in a unique position to influence the legal process in member states. Before we can identify the appropriate indicators in step three, we need to be clear on what the obligations are. The CESCR identifies five minimum core obligations: 1. 2. 3. 4. 5.

“to ensure the right of access to public educational institutions and programmes on a non-discriminatory basis; to ensure that education conforms to the objectives set out in Article 13(1);22 to provide primary education for all in accordance with Article 13(2) (a);23 to adopt and implement a national educational strategy which includes provision for secondary, higher and fundamental education; and to ensure free choice of education without interference from the State or third parties, subject to conformity with “minimum educational standards” (Articles 13(3) and (4))”.24, 25

For the purpose of our study, we will make three modifications to this list. First, we will split the third minimum core obligation in two separate obligations: the obligation to provide free primary education, and the obligation to mandate compulsory primary education. Second, as we only look at primary education, we are not concerned with the provisions for secondary and higher education in national education plans. Lastly, the concept of minimum core obligations has the underlying requirement that states consider education to be a human right. We make this obligation explicit.

20 See CESCR 1990, para 10. The Committee allows the lack of available resources as a valid excuse

for not meeting the minimum core obligations, but only under strict conditions. “[The State Party] must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations”. In the empirical part of this chapter we control for resource availability by including GDP per capita in the regression. 21 Sepúlveda 2003, p. 42. 22 “They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace”. 23 “Primary education shall be compulsory and available free to all”. 24 3. “The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.” 4. “No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in para I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State”. 25 CESCR 1999a, para 57.

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As a result of these modifications, we now have seven minimum core obligations. Since some of these obligations are multifaceted, we split the measurement into eighteen indicators. Together, these indicators form a benchmark that allows us to compare a state’s education legislation to the international standard. We will discuss the rationale for each indicator in the following paragraphs.

4.2.1 Minimum Core Obligation #1: Education as a Human Right Indicator 1.1: Is education recognised as a right? While not part of the minimum core obligations of the right to education per se, it is nevertheless important to determine whether a country recognises education as a right in its domestic law. The existence of such recognition alleviates the concern that countries incorporate certain elements by accident, and that they therefore did not intend for those elements to have the status of a human right. In measuring, we distinguish between states where the right is enforceable and where it is merely aspirational.26

4.2.2 Minimum Core Obligation #2: Non-discrimination in Accessing Education Indicator 2.0: Does the law ensure the right to access on a non-discriminatory basis? Non-discrimination is a cross-cutting human rights principle, which means that it is not tied to one specific right, but that it captures the whole range of rights, as well as the entire structure, process, and outcome framework.27 The following discrimination grounds are forbidden under the ICESCR: race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.28 The inclusion of ‘other status’ means that the provision is open-ended, since “the nature of discrimination varies according to context and evolves over time”.29 Other prohibited discrimination grounds currently acknowledged by the Committee include disability, age, nationality, marital and family status, sexual orientation and gender identity, health status, place of residence, and economic and social situation.30

26 Cingranelli

and Richards 2010. 2012. 28 International Covenant on Economic, Social and Cultural Rights 1966, Article 2(2). 29 CESCR 2009, para 27. 30 Ibid. 27 OHCHR

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We do not measure all different discrimination grounds separately, but only the existence of anti-discrimination clauses in relevant legislation. We distinguish between general ‘equality before the law’ provisions in the constitution, and more specialised provisions in the education or non-discrimination law, with the latter considered to be the more apt. Indicator 2.1: Does the right to access on a non-discriminatory basis extend to all children? This is an extension of the general non-discrimination question under 2.0. Given the paramount importance of education for the full development of the human potential, education should not be denied on the (arbitrary) basis of nationality.31 The CESCR is very explicit about this in para 34 of GC 13: “[T]he principle of non-discrimination extends to all persons of school age residing in the territory of a State Party, including non-nationals, and irrespective of their legal status.” In this context, there is a risk of misunderstanding between the right to access and the right to non-discrimination. Indicator 2.1 does not measure whether non-nationals have a right to access education.32 Rather, it measures whether non-nationals have legal access to the non-discrimination provisions measured in the previous indicator. For example, the 1990 Benin constitution states that “[the state] shall assure to its citizens equal access to […] education”,33 excluding non-nationals the right to access on a non-discriminatory basis.34

4.2.3 Minimum Core Obligation #3: Free Education Indicator 3.0: Does the law mandate free primary education? One aspect of accessibility is the economic dimension: education has to be affordable for all.35 Given that primary education is the cornerstone of a child’s education, “fees and other direct costs constitute disincentives to the enjoyment of the right and may jeopardize its realization”.36

31 Nor

on any other arbitrary basis, of course. this were so, there is no reason not to include all other possible discrimination grounds as indicators as well. 33 Article 8. Translation of the constitutional text from https://www.constituteproject.org/constitut ion/Benin_1990.pdf, accessed April 2020. 34 There is no a priori reason why states could not restrict the right to access on a non-discriminatory basis for other groups than non-nationals. In practice, however, this was the only group for which we found any explicit evidence of legal discrimination. 35 CESCR 1999a, para 6. 36 CESCR 1999a, para 7. 32 If

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Indicator 3.1: Is there a prohibition on user fees (e.g. uniforms, ‘voluntary’ contributions, schooling materials)?37 The condemnation of indirect costs is less absolute than that of direct costs.38 However, a teleological interpretation of the right to free primary education prescribes that education should be free, because we want all children to enjoy that education. Indirect costs have the same disincentivising effect as direct costs, and there is therefore no reason not to prohibit those as well.

4.2.4 Minimum Core Obligation #4: Compulsory Education Indicator 4.0: Does the law mandate compulsory primary education? On the face of it, compulsory education may seem contradictory: if there is a right to education, does that not also include a right to not pursue education? The answer lies in the empowering function of education, namely the fact that education contributes to “the full development of the human personality and the sense of its dignity”.39 In other words, primary education is seen as so fundamental for human development, that not receiving it seriously impairs the ability to enjoy all other human rights. Indicator 4.1: Is there a prohibition on child labour for children of primary school age? In addition to the economic exploitation rationale of the prohibition of child labour, there is also an instrumental rationale: children who are working are children who are not attending school. The prohibition on child labour is thus a necessary corollary to the right to compulsory primary education. The ILO Minimum Age Convention states that children can only start working after completion of compulsory schooling, and in any case not under the age of 15 years. The importance of setting the minimum working age after the compulsory schooling age was emphasised by the then-UN Representative for the Right to Education, Katarina Tomasevski, who made it an explicit part of the ‘availability’ aspect of education.40

37 While the indicator is open-ended, the three examples are the most common. ‘School uniforms’ is self-explanatory. “Voluntary’ contributions’ include all non-tuition fees that are a condition for receiving education, such as registration fees and teacher gratifications. ‘Schooling materials’ include all costs for physical materials needed in education, such as books, pencils, exercise- and notebooks. 38 CESCR 1999b, para 7. 39 Coomans 2002; International Covenant on Economic, Social and Cultural Rights 1966, Article 13(1). 40 Tomasevski 2004.

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4.2.5 Minimum Core Obligation #5: Free Choice of Education Indicator 5.0: Does the law allow for private educational institutions? Articles 13(3) and 13(4) represent two sides of the same coin. On the one hand, parents and legal guardians should have the liberty to choose a school for their children based on their own convictions. On the other hand, there must be a number of schools to choose from, necessitating individuals’ freedom to set up their own educational institutions. The schools need to adhere to the minimum education standards as laid down by the country, as well as to the education goals of Article 13(1). The article is an elaboration of the right to take part in cultural life, and the right to freedom of religion. As such, private educational institutions are especially important in countries where the government tries to aggressively assimilate an ethnic minority into the dominant culture. The ‘minimum education standards’ are a potential backdoor for governments to control the content of education. To account for this, we only allow those quality standards that cannot be abused to control the content. This means that we have interpreted an obligation to use textbooks approved or published by the government as a non-quality requirement, as well as the obligation to entirely follow the curriculum set by the government. Indicator 5.1: Does the law allow for instruction in other languages than the main language? The liberty to choose and/or set up educational institutions goes further than the freedom of religion. Ethnolinguistic minorities should have the opportunity to educate their children in their own language. There is also a common-sense rationale for this; after all, how much can a child learn if all education is in a language alien to them? Some countries focus on the common sense rationale by allowing education in a child’s mother tongue for the first few years of primary school, to be supplanted by the lingua franca thereafter. We distinguish between states allowing no instruction in other languages, those only allowing them for a few years, and those allowing them for the entire duration of primary education. Indicator 5.2 Does the law allow for instruction based on religious or philosophical convictions? Not all countries that allow private schools allow for schools based on a religious or philosophical conviction, instead forcing all schools to have an explicitly secular curriculum. Including this indicator allows us to make that distinction. Countries with a dominant religion might allow for the set-up of schools that offer instruction based on that dominant religion, but not on other religions. In Bangladesh, for example, education is provided either through ‘general’ education or ‘madrasah’ (Islamic)

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education.41 We distinguish between countries that do not allow instruction based on a religious or philosophical fundament, countries that allow only one type of fundament, and countries that have no such restrictions.

4.2.6 Minimum Core Obligation #6: National Education Strategy Indicator 6.0: Is there a national educational strategy that includes time-bound goals for universal, compulsory, and free primary education? Education is the only right in the ICESCR that has a planning obligation for states. This reflects its special status as an ‘economic right, a social right and a cultural right’, as well as its centrality to the ‘full and effective realization of [civil and political rights]’.42 The rationale is that even if states might not have enough resources to fully implement universal, compulsory and free primary education at the present moment, all states should be able to at least draft a plan that will help them to achieve that goal within the near future.43 Based on Article 14 and General Comment 11, there are three requirements for this indicator: first, there should be an explicit goal that primary education is universal (=100% enrolment rate), free of charge, and compulsory.44 Second, this goal should be reached within a ‘reasonable number of years’. While we are no experts on what is reasonable here, we are fairly confident that for example 25 years to introduce compulsory education legislation is unreasonably long.45 Lastly, the plan must be sufficiently detailed.

4.2.7 Minimum Core Obligation #7: The Goals of Education According to Article 13(1) ICESCR, education shall: 1. 2. 3.

“[B]e directed to the full development of the human personality and the sense of its dignity, [S]trengthen the respect for human rights and fundamental freedoms. [E]nable all persons to participate effectively in a free society,

41 Bangladesh

National Report on Education 2004, p. 10. 1999b, para 2. 43 Where ‘within the near future’ sees to the achievement of the goal, not the drafting of the plan. Article 14 of the ICESCR sets a hard deadline here; within two years of ratification. 44 It goes without saying that countries that have already mandated free and/or compulsory primary education need not have this as an explicit goal. 45 Letshabo 2000, p. 12. 42 CESCR

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[P]romote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and [F]urther the activities of the United Nations for the maintenance of peace.”

The right to education is not only about access, or freedom of choice, but also very much about the right to quality education. “The education to which every child has a right is one designed to provide the child with life skills, to strengthen the child’s capacity to enjoy the full range of human rights and to promote a culture which is infused by appropriate human rights values. The goal is to empower the child by developing his or her skills, learning and other capacities, human dignity, self-esteem and self-confidence”.46 Given the diversity of educational aims and the Committee’s opinion that the list should be seen as open-ended, we have split the article into multiple indicators.47, 48 Indicator 7.0: Is education directed towards promoting the full development of the human personality and towards enhancing their sense of dignity? The first of these indicators is that education should be directed towards promoting the full development of the human personality and towards enhancing their sense of dignity. In interpreting this, we follow the Committee on the Rights of the Child’s (CRCee) emphasis on child-centred education: “the key goal of education is the development of the individual child’s personality, talents and abilities, in recognition of the fact that every child has unique characteristics, interests, abilities, and learning needs”.49 Indicator 7.1: Is education directed towards strengthening the respect for human rights and fundamental freedoms? We have interpreted human rights and fundamental freedoms narrowly here, meaning that references to ‘universal values’ or ‘rights and responsibilities’ alone are not enough for a positive assessment. To address possible cultural misunderstandings, there has to be an explicit reference to human rights.50 Alternatively, human rights education has to form part of the standard curriculum.

46 CRCee

2001, para 2.

47 For those that argue that the generality of these goals precludes their effectiveness we would like to

offer the CRCee’s response in its first General Comment from 2001, para 17: “The aims and values reflected in this article are stated in quite general terms and their implications are potentially very wide ranging. This seems to have led many States parties to assume that it is unnecessary, or even inappropriate, to ensure that the relevant principles are reflected in legislation or in administrative directives. This assumption is unwarranted. In the absence of any specific formal endorsement in national law or policy, it seems unlikely that the relevant principles are or will be used to genuinely inform educational policies”. 48 CESCR 1999a, para 5. 49 CRCee 2001, para 9. This sentiment is also echoed by the CESCR 1999a, para 4. 50 For an illuminating read on ‘lost in translation’ issues in human rights research, see Merry and Wood 2015.

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Indicator 7.2: Is education directed towards enabling all persons to participate effectively in a free society? There are three aspects to this indicator: (1) all persons, (2) participate effectively, and (3) in a free society. The first aspect suggests inclusiveness, in that education should include special needs students. The second aspect suggests that education should equip children with the tools they need to participate in their society. The last aspect is more ambiguous, since ‘free society’ is not really a ubiquitous concept in human rights. It might suggest a society where all human rights are respected, a democratic society, or something else entirely. Unfortunately, neither the CESCR nor other scholars have ever elaborated on the precise meaning of ‘enabl[ing] all persons to participate effectively in a free society’, to the best of our knowledge. We choose to focus on the second aspect of this indicator. The first aspect is more in line with the antidiscrimination indicators under minimum core obligation #2. The possible interpretations of the third aspect seem rather nonsensical: if a child lives in a deeply unfree and undemocratic society, should the education system in place be directed towards enabling children to participate effectively in a society other than the one they are living in? The only reasonable interpretation here is thus that education should prepare children to effectively participate in their own society. Indicator 7.3: Is education directed towards promoting understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups? Indicator 7.4: Is education directed towards furthering the activities of the United Nations for the maintenance of peace? The broad language with which the goals were defined inevitably leads to some overlap. The idea of ‘understanding, tolerance and friendship among all nations’ under indicator 7.3 overlaps with the goal of ‘the maintenance of peace’ under indicator 7.4. To address this, we focus on the phrase ‘among all racial, ethnic or religious groups’ in the former indicator, and on the phrase ‘maintenance of peace’ in the latter. Indicator 7.5: Is education directed towards promoting respect for the environment? As discussed under 7.1, the list of educational goals is open-ended. The CESCR mentions respect for the environment explicitly as a widely supported goal,51 and we can therefore conclude that it belongs to the minimum core obligations. Indicator 7.6: Is education directed towards achieving gender equality? Gender equality is another goal which is explicitly mentioned by the CESCR.52 Almost all State Party reports submitted to the treaty bodies refer to the importance of educating girls, and mention how they plan to reduce or eliminate the gender gap in terms of school enrolment and completion. This is only the first of three possible aspects of gender equality in education, and not the one we are interested in. 51 CESCR 52 CESCR

1999a, para 5. 1999a, para 5.

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These three possible aspects are (1) right of access to education, (2) rights within education, and (3) rights through education.53 The first aspect refers to numerical equality and is the aspect most often discussed in the reports. The second aspect goes beyond that and looks at “equality of treatment and opportunity, as well as the nature of gender relations between female and male students and teachers in educational settings”.54 In other words, the content of education and how it is taught should be directed towards promoting gender equality. The third aspect refers to the ‘ways in which schooling shapes rights and gender equality in aspects outside the sphere of education’.55 We use the second aspect: gender equality in terms of the content and the method of teaching. In practice, this means that the goals related to either education or to the curriculum should explicitly endorse gender equality in education.

4.2.8 Construction of the Index Our conception of the right to education gives us seven dimensions, subdivided into eighteen indicators. Some dimensions consist of only one indicator, while others contain as many as seven. To be able to compare the scores per country over time, we convert the indicators into a multidimensional index. An index is a way to aggregate the data, allowing for commensuration.56 To prevent one dimension from dominating the index score, we choose to weigh the dimensions equally.57 The result can be seen in Fig. 4.1. The grey columns represent the dimensions, and the white boxes the indicators. The fractions are the weight per indicator in the total score. The outcomes are normalised so that each dimension is attributed a score between zero and one, and so that the value of the overall index runs from zero to seven; zero meaning that a country has not legislated any part of the minimum core obligations of the right to education in a particular year, and seven meaning that they have done so perfectly. 53 CEDAW

2017. 2017, para 16. 55 CEDAW 2017 para 17. 56 Alkire and Foster 2011. The idea of commensuration is that since the underlying metric used to capture (in this case) legal protection of the right to education is numerical it is possible to aggregate the different indicators into one index number, that reflects information contained in all the separate indicators. This has two consequences. First, that since the scores are numerical there is an implicit correspondence in ‘importance’ between the indicators. For example, having an adequate national education strategy is three times as important as allowing private education (see also Footnote 57 below and Fig. 4.1). Second, that observations with the same index score might have different underlying indicator scores that happen to add up to the same total. Both consequences have led to considerable criticism on the measurement of human rights. See for example Barsh 1993; Merry and Wood 2015; Rosga and Satterthwaite 2009. 57 The ‘goals of education’-dimension has seven indicators, compared to only one for the ‘education is a right’-dimension. If we would not account for that, it would mean that in practice the seventh indicator would be seven times more important in determining the index-score than the first dimension. 54 CEDAW

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Right

Nondiscriminaon

Free educaon

Compulsory educaon

Educaonal liberes

Educaon strategy

Goals in educaon

Dignity (1/49) Private educaon (1/21) Access (1/14)

Free (1/14)

Human rights (1/49)

Compulsory (1/14)

Parcipaon (1/49)

Languages (1/21)

Educaon is a right (1/7)

Naonal educaon strategy (1/7)

Tolerance (1/49)

Peace (1/49)

All children (1/14)

No user fees (1/14)

Child labour prohibited (1/14) Religions (1/21)

Environment (1/49)

Gender equality (1/49)

Fig. 4.1 The ‘right to education protection’-index overview of dimensions, indicators, and weights. The grey vertical bars represent the minimum core obligations (i.e. the ‘dimensions’ of the index). The white quadrilaterals represent the actual measurements (i.e. the ‘indicators’). The fractions represent/show the weight of each indicator in the calculation of the total right to education protection-index score (Source The Author)

4.3 Descriptive Results In this section, we will present a number of visual results of the evolution of the ‘right to education protection’-index over time. For the sake of simplicity, we will not show the results for each country, but rather for three representative countries, which each represent a number of other countries in Fig. 4.2. The first set of countries, represented by Zambia, shows an incremental trend. Every couple of years, a minor legal reform takes place, and with (almost) every reform, the right to education is slightly better protected. The second set of countries, represented by Saint Lucia, shows fewer changes, but the reforms are more far-reaching. In the case of Saint Lucia, a major change took place in 1999 and 2000, which has significantly improved the protection of the right to education.58 No major changes took place in other years. The last set of countries, represented by Ethiopia, shows a rather flat line. A few minor changes have taken place in the legal education system, but nothing ground-breaking. In total, 58 Saint

Lucia adopted a new education law in 1999, and followed it up with a quality education plan in 2000.

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Fig. 4.2 The ‘right to education protection’-index scores for Ethiopia, Saint Lucia, and Zambia from 1990 to 2017 (Source The Author)

there are 20 countries that are showing an incremental trend, 15 countries with a clear one-time trend break, and 10 countries with only marginal changes. Across the 45 countries, the trend is clearly upwards.59 It is not entirely uncommon to see countries regress at some point in their index score.60 More often than not, this is due to their national education plans expiring, without a new one to replace it immediately,61 leading to a drop in the score.62 For 44 countries, the score in 2018 was higher than in 1990, with Ethiopia being the only exception.63 The positive trend applies to all seven minimum core obligations. Figure 4.3 shows the average score for each of them over the period under study. We can see that the requirement for each state to have a national education strategy in place to achieve universal, compulsory and free primary education shows the biggest increase. In 1990, less than ten percent of the countries had such a plan in place, by far the worst score of all minimum core obligations. By 2018, this number had risen to 59 See

also Figs. 4.3 and 4.4. countries showed one or more ‘dips’ in their score over the period under study. 61 Almost all national education plans have an associated timeframe with them, in which the goals of the plan should be attained. When the education plan expires without a follow-up plan the score for indicator 6.0 (which measures the existence and quality of education plans) automatically becomes zero, leading to a potential drop in overall index score (depending on whether the quality of the previous education strategy was sufficient to be awarded points in the first place). 62 This is especially true for the last years in the data (after 2015 the score drops for six countries), with the end of UNESCO’s Education for All initiative, which stressed the necessity of making detailed education plans. See also the Jomtien Declaration on Education for All 1990. 63 Ethiopia’s 1995 constitution no longer mentions the right to education in general and to free primary education in particular. 60 Fourteen

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1 0.9 0.8 0.7 0.6 0.5 0.4 0.3 0.2 0.1

1. Right

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Fig. 4.3 The average scores for the different minimum core obligations over the period under study. The scores are shown on the y-axis, and are based on the fractions in Fig. 4.1 (Source The Author)

almost 70%.64 It is remarkable that this obligation took so long to be implemented by the State Parties, considering that, first of all, it is the only substantive provision in the entire ICESCR that is subject to a deadline (two years after ratification),65 and second, it is a prerequisite for the successful implementation of most other minimum core obligations. Other notable trends are the minor increases in countries mandating free primary education (from 36% in 1990 to 56% in 2018).66 This increase is substantively lower than the obligation to make primary education compulsory (which started at 53% and rose to 85%). In essence, this indicates that many countries oblige children to go to school, but have not made the necessary adjustments to ensure that schooling is free of charge, potentially undercutting the effectiveness of making education compulsory.

64 The

score in 2018 is a slight drop from the high score in 2014, in all likelihood again due to the end of UNESCO’s Education for All initiative. See also footnote 62. 65 ICESCR, Article 14. 66 Note that for the minimum core obligations with multiple indicators attached, the score for each country has more options than just zero and one (i.e. the score for the minimum core obligation on the goals of education is divided into seven indicators, where each indicator can be fulfilled or not. This means that the score per country for this obligation can be zero, one, or any n/7th fraction of one).

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LAC Enrolment

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Fig. 4.4 The average values of the ‘right to education protection’-index and primary net enrolment rates for Latin America and the Caribbean, and Sub-Saharan Africa from 1990 to 201767 (Source The Author)

67 2017 was chosen as the latest year for this graph (rather than 2018) since not all countries had yet submitted their primary net enrolment rates for 2018 to the data repository, leading to a distortion of the average.

Figure 4.4 compares the index score and net primary school enrolment rates in Latin America and the Caribbean (LAC) with Sub-Saharan Africa (SSA).68 We see that Latin America starts with a higher rights protection level, but that the rate of improvement of Sub-Saharan Africa’s is slightly higher. The gap between the two regions is therefore much smaller at the end of the period. Furthermore, the increase in rights protection is accompanied by a similar improvement in net enrolment rates in Africa, but not in Latin America and the Caribbean.69 However, such a correlation does not necessarily mean that changes in the law have an effect on changes in the outcome. For that, we need to turn to statistical regression analysis.

68 The ‘right to education protection’-index score is given on the left vertical axis, and the net enrolment rate at the right vertical axis. Please be aware that neither axis starts at null. 69 This is not entirely surprising, given that the net enrolment rates in Latin America and the Caribbean are already very high in the beginning of the period.

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4.4 Regression Method and Analysis To test the relationship between right-as-structure and right-as-outcome, we use statistical regression analysis, which we will briefly explain first. The idea behind causal inference is to test whether a particular factor (the explanatory variable)70 led to a particular outcome (the dependent variable).71 First, the researcher uses theory to hypothesise about the expected relationship between the variables. In our case, we will use compliance literature to predict that right-asstructure will be positively related to right-as-outcome. Such a testable assertion is called a hypothesis. Secondly, we will test the hypothesis using regression analysis. Regressions are based on statistical probability, and will tell us whether the effect is statistically significant; in other words, how confident the model is that the measured effect is not due to random chance.72 Usually, this confidence level is set at 95%. If the effect is not significant, we have to reject the hypothesis. While regression analysis is generally not decisive in establishing causation,73 it can be helpful in establishing patterns of regularity, which in turn can support causative arguments.

4.4.1 Description of Variables The dependent variable used in this study is the net enrolment rate for primary schools.74 The variable is chosen because of its prominence in development practice (being the foremost education target in the Millennium Development Goals, as well as in UNESCO’s Education for All movement). Furthermore, while enrolment in itself certainly does not constitute the full enjoyment of the right to education, it is a necessary first step. Lastly, net enrolment rates are one of the few indicators for which there is sufficient data available for the countries and years under study to allow for meaningful statistical inference.75 70 The

explanatory variable is also called the independent variable. Velthoven 2016. Generally, regression analysis uses multiple explanatory variables. 72 For those who are interested in the precise explanation and mathematics behind regression analysis, see Stock and Watson 2012. 73 This is due to three possible factors: first, the design of the study does not allow for causation to be directly established. Second, there might be an omitted explanatory variable that drives both the variation in the perceived ‘causal’ factor and the dependent variable. Third, it might be the case that the dependent variable causes the change in the explanatory variable, and not the other way around. See Angrist and Pischke 2009; Blauw 2018; Van Velthoven 2016. In the current study, the first two factors might play a role, even though the use of fixed effects regressions goes quite some way in addressing this. 74 Data is taken from World Bank 2019. The net enrolment rate is calculated by taking the number children of official schooling age who are enrolled in primary school as a percentage of the total number of children of official schooling age. 75 Cubic spline interpolation has been used to fill in observations where the dependent variable was missing. 71 Van

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The main explanatory variable is our measure of right-as-structure: the ‘right to education protection index’. Based on the literature discussed in the introduction we propose the following hypothesis: Hypothesis: The ‘right to education protection index’ is positively related to the net enrolment rate. The law is not the only determinant of schooling outcomes. To account for this, we add a number of explanatory variables to the model. First, it is impossible to have a well-functioning education system without a sufficient education budget.76 Second, states with a stronger rule of law are expected to be better at delivering education.77 Third, states might not be willing to actually implement their own laws.78 To distinguish states that use the law merely as window dressing—with no intention of actually implementing its provisions—from those that are seriously engaging with human rights, we introduce a measure of the state’s involvement in the international human rights monitoring system. We proxy this human rights engagement through the average delay in submitting the State Party’s report for ICESCR, CRC, and CEDAW’s reporting procedures. Since there are no sanctions attached to missing reporting deadlines,79 we can reasonably assume that states who have no (or shorter) delays take their international human rights obligations more seriously.80 Lastly, we account for ICESCR ratification.

4.4.2 Results The results of the regression are shown in Fig. 4.5. The effect of each explanatory variable on the dependent variable is represented by the blue dot. For the rights index, this is at 1.50.82 This indicates that for each unit increase in the explanatory variable (i.e. the index increases by one point), the associated change in the dependent variable is 1.50 (percentage points, meaning that we expect that an increase of the index score of one will lead to a net enrolment rate that is one and a half percentage 76 World

Bank 2014. Education budget is measured as the log expenditure per pupil in constant US dollars. 77 Bird et al. 2008; Momo et al. 2019 Rule of law is defined here as the process whereby laws are enforced in a predictable, impartial, and transparent manner by both the courts and government officials. The measurement itself is an index of the Varieties of Democracy project, where a higher score means a stronger rule of law. Data is taken from Coppedge et al. 2019. 78 Hafner-Burton and Tsutsui 2005. 79 Or tangible benefits for handing them in on time. See also Krommendijk 2014 80 Next to these explanatory variables, we include a number of control variables. GDP per capita, youth dependency rate (the number of youth as a percentage of the working age population), whether the government is left-leaning, and lastly the amount of international NGOs in a country. Data for the first two variables is taken from World Bank Open Data 2020. Data for the government orientation is from Cruz et al 2018, and the amount of INGOs is taken from the Union of International Associations 2020. 82 The figure is based on numerical output, hence the precision of this number.

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Fig. 4.5 Results of the fixed effects regression analysis.81 The round dot represents the coefficient of the independent variable (shown on the y-axis), with the thin blue lines representing the 95% confidence intervals (Source The Author)

81 The

statistical analysis was done in STATA version 15, using fixed effects regression with robust standard errors. The effects were fixed for countries and years.

point higher). Since regression analysis relies on statistical probability, there is some uncertainty associated with this result. This 95% confidence interval is reflected by the capped thin blue line, which runs from −0.805 to 3.799.83 We are therefore 95% confident that the true effect of our measure of right-as-structure on right-as-outcome is between those values. This is problematic, since zero (represented by the vertical red line) is a possible value. In other words, we cannot exclude the possibility that the true effect is zero; that there is thus no effect. As the result is not statistically significant, we have to reject our hypothesis that the ‘right to education protection index’ is positively related to the net enrolment rate. One possible explanation for this outcome can be found in the structure-processoutcome model discussed in the introduction. It is likely that the effect of right-asstructure on right-as-outcome takes some time to materialise. In the current measurement, we test the immediate effect of a change in the law on the net primary enrolment 83 Minus-values

indicate that the relationship is negative; an increase in the explanatory variable is associated with a decrease in the dependent variable (and vice versa).

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Fig. 4.6 Regression results of the effect of the rights index on net enrolment rates, allowing for a delay. The coefficient size is shown on the y-axis, and the delay (in years) is shown on the x-axis. The vertical capped blue lines denote the 90% confidence intervals (Source The Author)

rate. However, it seems reasonable to expect a certain delay.84 After a law is adopted (or amended), policies need to be adjusted, budgets changed, and civil servants and teachers need to adapt. To allow for this, we have also run a number of regressions where the effect has been delayed by a number of years, ranging from one to fifteen. The results of the delayed effects are displayed in Fig. 4.6. The figure shows that the effect of a change in the law is positive and that it increases over time. It is not until seven years after the adoption (or amendment) that the effect becomes statistically significant at the 90% level, however.85 After seven years, an increase in the index score of one point is associated with an increase in the primary net enrolment rate of 1.76 percentage points. The effect increases to 4.71 percentage points after fifteen years. While this might not seem noteworthy, we should keep in mind that the average net enrolment rates are already fairly high in the second half of the period, with rates in Latin America and the Caribbean consistently above 90% and those in Sub-Saharan Africa starting at 75% and constantly increasing. Seen in that light, a 4.71 percentage point increase per point increase in the index is substantive. 84 Hill and Varone 2014. The delay can also help to understand why most of the other variables also

show no statistically significant effect—the education budget excepted. the delayed regressions we use 90% confidence intervals. Those intervals allow for a greater margin of (statistical) error than 95% confidence intervals. The reason for this is that the delayed regression cannot take into account all observations (it is difficult, for example, to calculate the tenyear delayed effect of a change in the law in 2015). If there are fewer observations in a statistical model, the estimations need a bit more leeway. 85 For

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4.5 Discussion This chapter investigated the relationship between right-as-structure and right-asoutcome for the right to primary education. Right-as-structure was defined as the extent to which national legislation is in line with the minimum core obligations of the right to primary education. Since this information was not readily available, a dataset was constructed containing information regarding the seven minimum core obligations (divided among 18 indicators) for 45 countries over the period 1990– 2018.86 This information was then aggregated into the ‘right to education protectionindex’. It was demonstrated that there is a clear upward trend for the index scores, both in Sub-Saharan Africa as well as Latin America and the Caribbean. All minimum core obligations became better (legally) protected over the period under study, with the largest increase being related to the obligation of having a national education strategy in place to achieve universal, compulsory and free primary education. Relatively few states have mandated free primary education, however. The relationship between the rights index and right-as-outcome (defined as primary net enrolment rates) was tested empirically, using fixed effects regression analysis. As there was no statistically significant direct effect, the hypothesis that the ‘right to education protection-index’ is positively related to the net enrolment rate had to be rejected at first. It was shown, however, that there is a statistically significant positive effect if we allow the effect to be delayed by a number of years. After seven years the effect becomes statistically significant, and it remains so over time, indicating that improvements in right-as-structure can be effective in changing right-as-outcome—as long as we are patient enough. We must warn for undue optimism, however. The minimum core obligations, both as structure and as outcome, relate to minimum essential levels.87 The fact that none of the examined states have managed to fully legally extend this bare minimum protection is quite disappointing. States can potentially argue that resource constraints have prevented them from meeting those levels in practice,88 but “that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations”.89 It is difficult to see, however, how that defence could be used to explain a lack of effort to at least legislate those obligations. This is especially the case if one considers the lack of national education strategies implemented in the first half of the period under study, given that those are the only minimum core obligation for which resource constraints can never be an excuse.90 We can thus conclude that while strong legal protection of the right to education can be effective in improving education outcomes, there seems to be a lack of willingness of states to implement those rights in practice. 86 The

dataset will be made publicly available. For more information contact the author. 1990, para 10. 88 ‘In practice’ here should be interpreted as right-as-outcome. 89 CESCR 1990, para 10. 90 CESCR 1990, para 11. 87 CESCR

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Follow-up research could be carried out in a number of directions. First, there are serious concerns regarding the extent to which the net enrolment rate is a good measure of the enjoyment of the right to education. Being in school can be detrimental to the overall rights enjoyment of the child, due to the sometimes very poor quality of education, issues of discipline and gender-based violence in and around schools.91 If data availability permits, it should be possible to devise a better measure of rightas-outcome and test the relationships discussed here. Second, it is likely that the effect of legal changes is more effective if other factors are at certain levels (i.e. a high protection of the rule of law in a country, or a large education budget). The current research only tested the effect of these variables independently of each other. Lastly, the conceptualisation of right-as-structure has been heavily influenced by the minimum core obligations of the CESCR. The literature has been fairly critical of the effectiveness of treaty bodies in promoting domestic policy change.92 This new dataset allows for a quantitative assessment of this effectiveness.

References Alkire S, Foster J (2011) Understandings and misunderstandings of multidimensional poverty measurement. The Journal of Economic Inequality 9:289–314 Angrist JD, Pischke J-S (2009) Mostly Harmless Econometrics. Princeton University Press, Princeton, US Banerjee AV, Duflo E (2011) Poor Economics: Barefoot Hedge-fund Managers, DIY Doctors and the Surprising Truth about Life on Less Than 1 [dollar] a Day. Penguin Books, London, UK Bangladesh National Report on Education (2004) https://unesdoc.unesco.org/ark:/48223/pf0000 173728.locale=en accessed April 2020 Bantekas I, Oette L (2013) International Human Rights Law and Practice. Cambridge University Press, Cambridge Barsh RL (1993) Measuring Human Rights: Problems of Methodology and Purpose. Human Rights Quarterly 15:87–121 Bird RM, Martinez-Vazquez J, Torgler B (2008) Tax Effort in Developing Countries and High Income Countries: The Impact of Corruption, Voice and Accountability. Economic Analysis and Policy 38:55–71 Blauw S (2018) Het bestverkochte boek ooit (met deze titel) [The best-selling book ever (with this title)]. De Correspondent BV, Amsterdam Boli J, Thomas GM (1997) World Culture in the World Polity: A Century of International NonGovernmental Organization. American Sociological Review 62:171–190 Boyle EH, Kim M (2009) International human rights law, global economic reforms, and child survival and development rights outcomes. Law and Society Review 43:455–490 CEDAW (2017) General Recommendation 36 on the right of girls and women to education. Accessed [when?] CESCR (1990) General Comment No. 3: The Nature of States Parties’ Obligations CESCR (1999a) General Comment No. 13 on the Right to Education CESCR (1999b) General Comment No. 11 on Plans of Action for Primary Education CESCR (2009) General Comment No. 20 on Non-Discrimination in Economic, Social and Cultural Rights 91 Hopman

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Cingranelli DL, Richards DL (2010) The Cingranelli and Richards (CIRI) Human Rights Data Project. Human Rights Quarterly 32:401–424 Cole WM (2012) Human Rights as Myth and Ceremony? Reevaluating the Effectiveness of Human Rights Treaties, 1981-2007. American Journal of Sociology 117:1131–1171 Coomans F (2002) In Search of the Core Content of the Right to Education. In: Chapman A, Russell S (eds) Core Obligations: Building a Framework for Economic, Social and Cultural Rights. Intersentia, Antwerp, pp. 217–246 Coppedge M, Gerring J, Knutsen CH, Lindberg SI, Teorell J, Altman D, Bernhard M, Fish MS, Glynn A, Hicken A, Lührmann A, Marquardt KL, McMann K, Paxton P, Pemstein D, Seim B, Sigman R, Skaaning S-E, Staton J, Cornell A, Gastaldi L, Gjerløw H, Mechkova V, von Römer J, Sundtröm A, Tzelgov E, Uberti L, Wang Y-t, Wig T, Ziblatt D (2019) V-Dem Codebook v9 Varieties of Democracy (V-Dem) Project. https://www.v-dem.net/en/data/data-version-9/ accessed April 2020 CRCee (2001) General Comment 1 on the Aims of Education Cruz C, Keefer P, Scartascini C (2018) Database of Political Institutions 2017. https://mydata.iadb. org/Reform-Modernization-of-the-State/Database-of-Political-Institutions-2017/4umk-88xe accessed 27 November 2019 Goodman R, Jinks D (2003) Measuring the effects of human rights treaties. European Journal of International Law 14:171–183 Hafner-Burton EM, Tsutsui K (2005) Human rights in a globalizing world: The paradox of empty promises. American Journal of Sociology 110:1373–1411 Hathaway OA (2002) Do Human Rights Treaties Make a Difference? Yale Law Journal 111:1935– 2033 Hill M, Varone F (2014) The Public Policy Process. Routledge Hopman M, Dopani P, Saragnet DCB (2017) The Right to Education in the Central African Republic. https://kinderrechtenonderzoek.nl/wp-content/uploads/2017/11/Childrens-rap ort-ENG-OK.pdf accessed April 2020 International Covenant on Economic, Social and Cultural Rights (1966) International Covenant on Economic, Social and Cultural Rights Jomtien Declaration on Education for All (1990) Jomtien Declaration on Education for All Kalantry S, Getgen JE, Koh SA (2010) Enhancing enforcement of economic, social, and cultural rights using indicators: A focus on the right to education in the ICESCR. Human Rights Quarterly 32:253–310 Korda M, Pennings F (2008) The Legal Character of International Social Security Standards. European Journal of Social Security 10:131–157 Krommendijk J (2014) The Domestic Impact and Effectiveness of the Process of State Reporting under UN Human Rights Treaties in the Netherlands, New Zealand and Finland - Paper-pushing or policy prompting? Intersentia, Cambridge, UK Letshabo KM (2000) Botswana National Education for All (EFA 2000) Country Report. https:// web.archive.org/web/20041130115525/http://www2.unesco.org/wef/countryreports/botswana/ contents.html accessed 1 August 2019 Merry SE, Wood S (2015) Quantification and the Paradox of Measurement Translating Children’s Rights in Tanzania. Current Anthropology 56:205–229 Momo MSM, Rud I, Cabus SJ, De Witte K, Groot W (2019) The relationship between contextual characteristics and the intergenerational correlation of education in developing countries. International Journal of Educational Development 66:173–183 OHCHR (2006) Principles and Guidelines for a Human Rights Approach to Poverty Reduction Strategies. https://www.ohchr.org/EN/Issues/Poverty/DimensionOfPoverty/Pages/Guidel ines.aspx accessed April 2020 OHCHR (2012) Human Rights Indicators—a Guide to Measurement and Implementation. https:// ohchr.org/Documents/Publications/Human_rights_indicators_en.pdf accessed November 2019 Pogge T (2007) Severe poverty as a human rights violation. In: Pogge T (ed) Freedom from poverty as a human right: Who owes what to the very poor. pp. 11–53

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Rosga A, Satterthwaite ML (2009) The trust in indicators: Measuring human rights. Berkeley Journal of International Law 27:253–315 Sepúlveda M (2003) Nature of the Obligations under the International Covenant on Economic, Social, and Cultural Rights. Intersentia, Cambridge, UK Simmons B (2010) Treaty Compliance and Violation. Annual Review of Political Science 13:273– 296 Stock JH, Watson MM (2012) Introduction to Econometrics. Pearson Education, Essex Tomasevski K (2004) Manual on rights-based education—global human rights requirements made simple. https://www.right-to-education.org/sites/right-to-education.org/files/resource-att achments/Tomasevski_Manual on Rights-based Education_2004.pdf accessed January 2020 Tomuschat C (2008) Human Rights—Between Idealism and Realism. Oxford University Press, Oxford/New York Union of International Associations (2020) Yearbook of International Organisations. https://uia. org/yearbook accessed 6 January 2020 Van Velthoven BCJ (2016) A Young Person’s Guide to Empirical Legal Research. With Illustrations from the Field of Medical Malpractice. Law and Method 04:1–16 World Bank (2014) Assessing the Role of the School Operational Grant Program in Improving Education Outcomes in Indonesia. https://openknowledge.worldbank.org/handle/10986/22102 accessed 8 April 2020 World Bank (2019) World Bank Open Data. https://data.worldbank.org/ accessed February 2020

Bart Kleine Deters is a Ph.D. fellow at Maastricht University/United Nations University— MERIT since September 2015. His research concerns linkages between human rights and socioeconomic development. He is specifically interested in how national law can help shape development outcomes. He holds an M.Sc. in Public Policy and Human Development from Maastricht University and UNU-MERIT, where he specialised in social protection policy. Prior to that, he studied European law at LLB level, and international law (with a specialisation in human rights) at LLM level, both at Maastricht University.

Chapter 5

Paving the Way for Effective Socio-economic Rights? The Domestic Enforcement of the European Social Charter System in Light of Recent Judicial Practice Nikolaos A. Papadopoulos Contents 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 The Status of the European Social Charter as an International Human Rights Treaty in the Greek Legal Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 Contesting Austerity Measures by Means of the 1961 ESC Before Greek First Instance Civil Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.1 The Status of the European Social Charter as an International Human Rights Treaty in the Spanish Legal Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.2 Contesting Austerity Measures by Means of the 1961 ESC Before Spanish First and Second Instance Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 Synthesis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The current crisis era in Europe has revealed symptoms of lack of respect for international socio-economic rights and challenges vis-à-vis their effectiveness at the national level. One such symptom relates to the (lack of) responsiveness of domestic judges concerning the justiciability, direct applicability and enforceability of such rights. Against this background, the European Social Charter—a rather neglected legal instrument, albeit the most important one with regard to socioeconomic rights in Europe—has emerged in the jurisprudence of domestic courts in recent years, providing a unique perspective to address these challenges. In reality, even though the Charter initially seemed to exclude the possibility of being invoked before national courts, the situation has changed today. This is especially the case since the adoption of the Collective Complaints Procedure, as can be seen in the practice of lower and apex courts of several contracting parties. Specifically, various N. A. Papadopoulos (B) Department of International and European Law, Faculty of Law, Maastricht University, Bouillonstraat 1-3, 6211 LH Maastricht, The Netherlands e-mail: [email protected] © t.m.c. asser press and the authors 2021 C. Boost et al. (eds.), Myth or Lived Reality, https://doi.org/10.1007/978-94-6265-447-1_5

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domestic courts—e.g. in Greece and Spain—have in many cases ruled in favour of the direct effect of various Charter provisions, and have given considerable weight to the ‘quasi-case law’ of the Charter’s monitoring body: the European Committee of Social Rights. Domestic courts are thus providing a valuable perspective on the normative debates in legal doctrine, specifically regarding the (democratic) legitimacy of judicially reviewing the legislator’s choices, and the issue of effectively protecting and enforcing international socio-economic rights at the domestic level in times of crisis. Keywords Economic and social rights · European Social Charter · Domestic enforcement · International monitoring · National courts · Direct effect · Monism · Effectiveness · Greece · Spain · Austerity · Financial crisis

5.1 Introduction In the aftermath of the austerity-driven Sovereign Debt Crisis, and amid the coronavirus pandemic crisis, Europe is still struggling to recover from a severe crisis era. High levels of poverty, unemployment, and social exclusion have put the consensus developed under the welfare state1 and the social state principles under pressure.2 In that context, one dimension that has been considered the “obvious casualty” of this crisis era,3 is socio-economic rights as enshrined in international/regional instruments and as protected by binding positive law.4 However, even prior to the crisis, the 20th century was not entirely sympathetic towards such rights. As is well known, the challenges include the ideologically rooted5 and historically contested allegations concerning their legal nature, deeming them vague and non-justiciable principles of a programmatic nature, as opposed to civil and political rights. Particularly challenging in that respect are the normative debates surrounding the (democratic) legitimacy of judicially reviewing the legislator’s socio-economic policy choices, as well as the ever-conflicting relationship of social rights with neo-liberalism.6 Even though this philosophical debate seems to be less important today,7 many challenges still remain with regard to the constitutional and judicial recognition of social rights as real and justiciable rights.8 It could thus be argued that the crisis

1 De

Schutter 2015, p. 126. 2017, p. 73. 3 Christodoulidis 2017, p. 124. 4 The terms ‘socio-economic rights’, ‘economic and social rights’, and ‘social rights’ are used interchangeably in this chapter. Cultural rights are beyond the scope of this analysis. 5 Gearty and Mantouvalou 2010. 6 See e.g. MacNaughton and Frey 2018. 7 See e.g. De Schutter 2013. 8 Contiades and Fotiadou 2012, p. 661. 2 Menéndez

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in Europe has revealed only a symptom of the fact that these rights are generally ill-protected.9 Furthermore, it has also exposed the challenging issue of effectively protecting social rights at the national and international levels. After all, social rights—as all human rights—have long been facing criticism put forward by authors from various disciplinary fields. Concretely, they question whether international/regional legal instruments are actually effective and improve respect for human rights,10 but also whether litigation based on human rights (and in particular social rights) can bring about social change11 and benefit the poor and marginalised social groups.12 For the purpose of this chapter, ‘effectiveness of human rights’ is approached and conceived in a broad sense as social realisation (as a describable fact, reality or status) of what the notions of human rights cover,13 and as the process through which human rights causally bring about the desired change in (state or social) behaviour and policy.14 Against this background, a rather neglected15 regional legal instrument—but one of increasing importance for social rights in Europe—has come into play since the outbreak of the European Debt Crisis, providing a unique perspective to address the above-mentioned challenges to social rights, and particularly the (lack of) effectiveness of such rights at the domestic level. This particular regional legal instrument is the European Social Charter (‘ESC’ or ‘Charter’), the legally binding16 human rights treaty17 of the Council of Europe, which guarantees economic and social rights as a counterpart to the European Convention on Human Rights (‘ECHR’) and a regional counterpart to the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’). Forty-seven states in particular are contracting parties, albeit with varying levels of commitment, to the 1961 European Social Charter or the 1996 Revised European Social Charter (‘RevESC’), gradually replacing the former treaty. In addition, fifteen parties have ratified the (optional) 1995 Additional Protocol, which provides for a Collective Complaints Procedure of quasi-judicial nature.18 This procedure enables social partners and (international) NGOs holding participatory status with the Council of Europe to lodge complaints before the European Committee of Social Rights (‘ECSR’ or ‘Committee’) for rulings on possible non-implementation of the Charter in the countries concerned. Remarkably, there is no need, in that context, for the claimant organization to have exhausted domestic remedies or to be a victim of a 9 O’Connell

2013, p. 60. e.g. Neumayer 2005; Hafner-Burton and Tsutsui 2007; Posner 2014; Moyn 2018. 11 See e.g. Rosenberg 2008. 12 See e.g. Landau 2012; Cf. Bilchitz 2008. 13 Millard 2008, p. 349. 14 Raustiala 2005, p. 581; Hawkins and Jacoby 2010, p. 39; Krommendijk 2015, p. 492. 15 De Schutter 2017, p. 11. 16 Brillat 2010, p. 45. 17 See ECSR, FIDH v. France, Complaint No 14/2003, decision on the merits of 8 September 2004, para 27. 18 Alston 2005, p. 58; Cullen 2009, p. 75. 10 See

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relevant violation. The ECSR is the Charter’s supervisory body, which is composed of fifteen independent international and social law experts that have the express mandate to assess situations of compliance from a legal standpoint, and to adopt decisions concerning possible breaches of the Charter by the contracting parties.19 On the basis of the decisions adopted under the Collective Complaints Procedure, it has been argued that the Committee’s “case-law without a court”20 has upgraded the Charter’s monitoring mechanism, which has thus far been taking place only through the Reporting System and the Committee’s ‘Conclusions’.21 Furthermore, it has upgraded the ECSR’s role in the European human rights protection setting and has provided new impetus to the theory and practice of effectively protecting social rights.22 Interestingly, this development has also greatly impacted the Charter system’s23 implementation by courts at the domestic level. Although the Charter was initially believed to exclude the possibility of being invoked before national courts, thus “severely limiting the attractiveness of the instrument for potential litigants”,24 the situation has changed since then—especially since the adoption of the Collective Complaints Procedure. As can be observed—both in theory25 and in practice26 — among lower and apex courts of several rather monist countries,27 judges rely directly on the Charter after its invocation by litigants, giving direct effect to a number of its (self-executing) provisions and granting considerable weight to the ECSR’s ‘quasi-case law’.28 In that context, domestic judges perceive self-executing provisions of the Charter as those that may be invoked by individuals before national courts to set aside domestic legislation, in those cases where they: (a) confer individual rights upon them (‘direct effect in the narrow sense’) and/or (b) contain norms that can be used as a standard for reviewing acts of national law, even if they are not formulated as individual rights (‘direct effect in the broad sense’).29 In practice, they are guided 19 See

Article 24(2) of the 1991 Additional Protocol to the Charter. 2009, p. 13. 21 See e.g. Harris 2009. 22 Akandji-Kombé 2005, p. 90; Nivard 2012, p. 239. 23 The word ‘system’ points to a set of coordinated normative and institutional elements, including the substantive and procedural provisions laid down in the Charter and its Protocols, as well as the ECSR’s monitoring work. 24 De Schutter 2017, p. 12. 25 See e.g. Akandji-Kombé 2013, p. 488. 26 For French courts’ relevant case law, see e.g. Mouly 2019. 27 Notably, in strictly dualist states, giving direct effect to treaties is not an option in principle, since treaties are not part of domestic law unless the legislature enacts a statute to incorporate a treaty. Once a treaty has been incorporated, courts in such states apply that statute—not the treaty, at least as a formal matter, and use other techniques to harmonize domestic law with international law, such as the method of consistent interpretation (indirect effect). See Sloss and Van Alstine 2017, p. 110. 28 The terms ‘direct-effect’, ‘self-executingness’ and ‘direct applicability’ are used interchangeably in this chapter. 29 See generally Nollkaemper 2014, p. 105; Peters 2016, p. 495. 20 Akandji-Kombé

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by: the ‘objective criterion’ of direct effect, which requires a treaty provision to be clear, precise and unconditional; and the ‘subjective criterion’ of direct effect, which emphasises the intention of the contracting parties not to exclude such an effect by addressing states only. In light of the above, this chapter examines the following two elements: how first and second instance national courts of selected monist contracting parties—Greece and Spain—implement and enforce the European Social Charter system; and what their differences and similarities are in that context, with respect to the ‘effectiveness of human rights’ as defined above. The way in which ‘effectiveness of human rights’ is understood within the ESC system is, essentially, in line with that working definition. More specifically, most of the articles of Part II of the RevESC commence with the words “with a view to ensuring the effective exercise” of the rights enshrined therein, followed by a series of obligations. Therefore, the use of the word ‘effectiveness’ in the Charter seems to refer to the exercise of a right that exists in reality, and to the guarantee that the obligations that follow are intended to ensure that a particular right will have an impact on reality.30 Moreover, the ECSR generally follows the methods of the European Court of Human Rights (‘ECtHR’). It has thus—as early as in its first collective complaints decision, and later in many instances—also affirmed that “the aim and purpose of the Charter, being a human rights protection instrument, is to protect not merely theoretical but effective rights”.31 The ECSR assesses the fulfilment of that objective through a variety of methods.32 Hence, this chapter employs a doctrinally comparative (international human rights) legal research lens,33 combined with socio-legal considerations, so as to answer the posed question. It focuses on recently adopted decisions of Greek and Spanish courts applying the Charter and the ECSR’s ‘quasi-case law’, triggered by the 2008 financial crisis and specifically by labour law/market measures implemented in that context, as well as their enforcement at the state level.34

30 Bétaille

2012, pp. 23–24. ICJ v. Portugal, Complaint No 1/1998, decision on the merits of 9 September 1999, para 32; FEANTSA v. Slovenia, Complaint No 53/2008, decision on the merits of 8 September 2009, para 28. 32 See e.g. the Committee’s reasoning in FEANTSA v. France, Complaint No 39/2006, decision on the merits of 5 December 2007, paras 52–56. 33 See McCrudden 2018. 34 The research is grounded on a document-based desk(top) analysis of already existing legal and extra-legal data. Greek courts’ decisions, as published in law journals, have been collected through the ‘NOMOS’ (https://lawdb.intrasoftnet.com) and the ‘ISOKRATIS’ (https://www.dsa net.gr) databases, and Spanish courts’ decisions through the General Council of the Judiciary database (https://www.poderjudicial.es) and the Constitutional Court’s database (https://hj.tribun alconstitucional.es). 31 ECSR,

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5.2 Greece 5.2.1 The Status of the European Social Charter as an International Human Rights Treaty in the Greek Legal Order In light of the rather ‘monist’ expression of Article 28(1) of the Greek Constitution, binding international treaties that have been ratified by statute form an integral part of Greek law (automatic incorporation). These treaties are hierarchically superior to legislation and inferior to the constitution.35 In a case before the Greek courts, this ascertainment may result in the non-application of a domestic (administrative or legislative) provision, which is contrary to international treaties and therefore set aside.36 It should be noted that Greek courts generally adhere to the direct effect doctrine, and have followed its evolution in international theory and practice relatively easily. What is more, they generally accept that an international treaty is self-executing, unless it explicitly requires states to take additional implementing measures.37 Therefore, directly applicable treaties—especially those enshrining human rights, with the ECHR being a typical example—produce both vertical and horizontal direct effect in the Greek legal order.38 Another noteworthy fact is that in Greece, no Constitutional Court exists, while constitutional39 and treaty-based40 review of legislative and administrative acts is (mainly) incidentally and in concreto diffused to courts at all judicial instances. Greek courts have the power to review and set aside (but not annul)—in the course of an ordinary dispute and even ex officio—a legislative provision’s conformity with the Greek Constitution and ratified international human rights treaties. Finally, it is widely accepted in contemporary Greek constitutionalism that several social rights are judicially enforceable rights, and not merely social policy directives of programmatic nature. With respect to Greece’s commitment to the Charter system, it should be noted that it was among the first countries to sign the 1961 ESC, but ratified it twenty-three years later, in 1984.41 Greece has ratified all the Additional Protocols to the Charter, including the 1995 Collective Complaints Protocol.42 Greece also signed the 1996 35 See Supreme Civil and Criminal Court No 1603/1991 EllDni 1993, 332; Council of State No 2281/2001 EllDni 2001, 959. See generally Yokaris 2011, p. 253. 36 See Council of State No 867/1988 Arm 1988, 265. 37 Yokaris 2012, p. 167. 38 See Article 25(1)c of the Constitution; Supreme Civil and Criminal Court No 2159/2007 NOMOS. 39 See Article 93(4) of the Constitution. 40 Due to the lack of an express constitutional provision, treaty-based review is carried out on the basis of Article 28(1) of the Constitution. 41 Law 1428/1984. 42 Law 2422/1996 and Law 2595/1998.

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RevESC, but did not ratify it until twenty years later, in 2016;43 remarkably enough, this all happened during the European Debt Crisis and while far-reaching austerity measures were being implemented. As a result, and in light of the above considerations, the ESC and its Protocols— as a binding international law treaty that was ratified by statute and automatically incorporated—forms an integral part of Greek law and prevails over provisions of Greek (primary or secondary) legislation. Hence, the rights enshrined in the Charter are in principle justiciable and—insofar as the criteria for direct effect are fulfilled— the Charter has direct effect in the domestic legal order.44 It is thus to be applied directly by national courts in vertical or horizontal disputes.45

5.2.2 Contesting Austerity Measures by Means of the 1961 ESC Before Greek First Instance Civil Courts During the years of deep recession faced by Greece, ordinary courts served as a terrain for the mobilisation of litigants seeking relief from the severe consequences of austerity measures.46 In contrast to the Greek highest courts, which were initially showing signs of judicial restraint,47 lower courts were actually more receptive. This was especially the case with regard to employees in the wider public sector, who found refuge in the protection offered mainly by human rights treaty provisions. In that context, in 2013 and 2014, various Single-Member First Instance Civil Courts48 from different Greek regions were summoned on the basis of the interim measures procedure by local government employees,49 who were mandatorily put on ‘labour reserve’, an austerity measure part of the Greek bailout programmes.50 Numerous employees undertook legal action on various grounds, including Article 4(1) of the 1961 ESC (‘right of workers to a remuneration that gives them and their families a decent standard of living’), seeking to have their services accepted by their employers under the pre-reserve conditions pending a final decision on their main legal action. The plaintiffs had their wages reduced by 25%—which after the reduction often resulted in wages of less than 580 euros per month, being the poverty 43 Law

4359/2016. e.g. with respect to Article 1(2) of the ESC, Council of State No 1571/2010 NoB, 1269. 45 Apart from giving direct effect to the Charter, courts must interpret national law consistently with the Charter (in particular where national legislation exists, and its provisions are capable of such interpretation), on the basis of Article 25(1) and/or Article 2(2) of the Constitution. 46 See generally Kilpatrick and de Witte 2014. 47 See e.g. Papadopoulos 2020. 48 In Greece there are no labour courts, therefore labour law-related disputes are resolved by civil courts, which may refuse, like all other Greek courts, to apply legislation if they find it contrary to the Constitution or to European/international law. 49 The employees were under private law contracts of indefinite duration in the public sector. 50 See Article 1, subparagraph Z.4-Z.2 of Law 4093/2012. 44 See

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line according to EUROSTAT statistics—and had their contracts terminated by the end of the one-year labour reserve period (if they were not transferred or reassigned). Against this background, most courts responded in a rather socially protective way, by taking into consideration the crisis situation and the pressing social needs of each of the plaintiffs. Hence, in a number of decisions,51 the courts ruled that the imposed measures were contrary to the Constitution and the ECHR. Notably, in three decisions rendered in 2013, the imposed measures were deemed contrary to Article 4(1) of the 1961 Charter.52 It is noteworthy that in those three decisions, the courts made no reference to the ECHR, but rather plainly acknowledged the direct effect of the Charter and the self-executing character of Article 4(1); a provision which could be regarded by some as relatively vague when considered on its own. The courts thus seem to have opened the backdoor to future invocation of the Charter, either as a supplementary tool to interpret constitutional rights, or as the main legal basis. What is even more remarkable, though, is the fact that in two out of those three decisions, the courts cite the ECSR’s decision on the merits of collective complaint No 66/2011,53 in which Greece was found to be in violation of Article 4(1) of the Charter, and even without inquiring into the legal status and the normative content of the Committee’s decisions. The courts therefore seem to acknowledge the ECSR’s role as the authoritative interpreter of the Charter, and the key role of its ‘quasi-case law’ in giving substance to the Charter’s provisions, especially when their wording could be regarded as relatively vague. The Charter’s contribution to challenging austerity, and particularly the measure of labour reserve—which had serious consequences for a fair percentage of the Greek public sector workforce—is demonstrated by the following effects: firstly, through the lower courts’ decisions, many low-income employees who initiated interim proceedings did not lose their jobs, nor did they suffer wage reductions— at least during that initial interim period. Secondly, a new government came into power in 2015, which, through recognising inter alia the lower courts’ contribution,54 repealed labour reserve provisions by law55 and re-established posts that had been abolished. As a result, a number of employees that had been put on reserve actually returned to their posts and were able to keep their initial wages.56

51 Single-Member First Instance Court of Messolonghi No 63/2013 EErgD 2013, 353; SingleMember First Instance Court of Patras No 202/2014 NOMOS; Single-Member First Instance Court of Piraeus No 2700/2013 NOMOS; Single-Member First Instance Court of Thessaloniki No 4916/2013 NOMOS; Single-Member First Instance Court of Athens Nos 1759/2013 NOMOS, 13915/2013 EErgD 2014, 547, 13917/2013 NOMOS, and 7809/2014 NOMOS. 52 Single-Member First Instance Court of Chios No 37/2013 EErgD 2013, 338; Single-Member First Instance Court of Xanthi No 90/2013 EErgD 2013, 347 and Single-Member First Instance Court of Patras No 494/2013 EErgD 2014, 567. 53 ECSR, GENOP-DEI/ADEDY v. Greece, Complaint No 66/2011, decision on the merits of 23 May 2012. 54 See Hellenic Parliament 2015, p. 14; see also Pavlidou 2018, p. 299. 55 Law 4325/2015. 56 See e.g. Aftodioikisi 2013, 2015.

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Such an outcome alludes to the definition of the effectiveness of human rights adopted in this chapter. In particular, the right of low-income public sector employees to “a remuneration such as will give them and their families a decent standard of living”, as enshrined in Article 4(1) of the Charter and as substantiated by the ECSR’s interpretation, has been socially realised through the lower courts’ decisions (and their enforcement), and through the government’s subsequent policy actions that are causally linked to these decisions.

5.3 Spain 5.3.1 The Status of the European Social Charter as an International Human Rights Treaty in the Spanish Legal Order Article 96(1) of the Spanish Constitution lays down the requirement for prior publication of a validly concluded international treaty in the official State Gazette,57 before it is able to produce its legal effects in the Spanish legal order and make it possible for judges to (directly) apply a treaty norm. This requirement is recognised by most authors as a material act of an administrative nature, required for the purposes of the treaty’s direct internal application and the fullness of its effect in domestic law, rather than as an act of transformation of international norms into domestic ones.58 As a result, the Spanish system resembles more that of an automatic incorporation of treaties into the domestic legal order,59 and is characterised by a moderate monism.60 Furthermore, it is generally accepted that treaty provisions are considered superior to legislation and inferior to the Constitution.61 Thus, in the case of a potential conflict between a treaty provision and domestic law, which is a matter for all ordinary courts—rather than the Constitutional Court—to decide upon under treaty-based review (‘control de convencionalidad’),62 the law should be disapplied (but not annulled) and the treaty should be applied.

57 See

Article 1(5) of the Spanish Civil Code. Velasco 2013, p. 185. 59 Remiro Brotóns 1997, p. 359. 60 Torres Pérez 2013. 61 See Article 31 of Law 25/2014 (‘Treaties and other International Agreements’). See also Article 95(1) of the Constitution. 62 See Spanish Constitutional Court, 20 December 2018, STC 140/2018-ECLI:ES:TC:2018:140. This is based inter alia on Article 96 combined with Article 10(2) of the Constitution. See generally Jimena Quesada 2018. 58 Iglesias

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Notably, the Spanish Constitution contains an opening clause63 to international human rights treaty law,64 which results in the obligation for Spanish courts to take the latter into account when interpreting fundamental rights and freedoms under the Constitution. Remarkably enough, when it comes to the issue of direct effect of international treaties in the Spanish legal order, this is regulated by Article 30(1) of Law 25/2014, which stipulates: “International treaties will be of direct application, unless it is clear from the text that such application is conditional on the adoption of laws or provisions of relevant regulations”.65 In addition, as accepted in the earlier case law of Spanish courts, when the content of international treaty provisions is precise, complete and unconditional, and rights arise for individuals, treaty rules can be invoked before Spanish courts and produce direct effect.66 Finally, as in Greece—it is a common view in Spanish constitutionalism that several social rights are in principle judicially enforceable rights rather than merely aspirational and programmatic principles. Moreover, it is crucial to highlight a recent development in the case law of the Spanish Supreme Court, which is highly relevant for the effectiveness of human rights, as it concerns the legal value attributed by Spanish courts to the output of human rights treaty monitoring bodies. In judgment No 63/2018,67 which has been described as a turning point in the engagement of Spanish courts with such bodies,68 the Supreme Court addressed a number of important considerations concerning the Views of the Committee on the Elimination of Discrimination Against Women (‘CEDAW Committee’) rendered on the basis of individual and group communications. These considerations may also be relevant, to some degree, to the pronouncements of other treaty monitoring bodies such as the ECSR’s collective complaints decisions. Specifically, the Supreme Court relied on the above-mentioned constitutional provisions and pointed out the guarantees of the communications procedure (e.g. express regulation, Spain’s participation in the proceedings). The Supreme Court thus considered that there can be no doubt that the Committee’s Views, especially those delivered in the case of the appellant,69 are of a “binding/obligatory” nature for the contracting party that has recognised the CEDAW Convention and its Optional 63 Saiz

Arnaiz 1999. 10(2): “Provisions relating to the fundamental rights and liberties recognised by the Constitution shall be construed in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain”. 65 Unofficial translation. 66 See e.g. Constitutional Court, 23 November 1981, STC 38/1981-ECLI:ES:TC:1981:38; Supreme Court (Contentious-Administrative Chamber-6th), 22 April 2010, STS 2223/2010ECLI:ES:TS:2010:2223. 67 Supreme Court (Contentious-Administrative Chamber-4th), 17 July 2018, STS 2747/2018ECLI:ES:TS:2018:2747. 68 Gutiérrez Espada 2018. 69 CEDAW Committee, Angela González Carreño v. Spain, Communication No 47/2012, decision of 16 July 2014. 64 Article

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Protocol providing for the complaints mechanism. Such an obligatory character derives from Article 24 of the Convention, according to which state parties “undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognized in the present Convention”.70 Therefore, even though—as noted by the Supreme Court—the CEDAW Convention does not oblige contracting parties to adopt any specific procedures to give effect to the Views of its monitoring body, the absence of such a specific procedure amounts to a breach of Spain’s constitutional mandate. Notwithstanding, the Supreme Court also suggested that the applicability of its reasoning was limited to this specific case—and to cases concerning the pecuniary liability of the state.71 Concerning Spain’s commitment to the Charter system, it should be noted that being a self-proclaimed social and democratic State,72 Spain has signed and ratified the 1961 ESC73 in addition to the 1988 and the 1991 Protocols.74 However, for a long time, Spain did not sign nor ratify the 1995 Collective Complaints Protocol, perhaps fearing the ECSR’s dynamic interpretation of the Charter provisions under the collective complaints procedure. Furthermore, in 2000, the country signed— but did not ratify—the 1996 RevESC. Spain’s failure to ratify the RevESC and the Collective Complaints Protocol has been fiercely criticised within academic circles.75 The Spanish state on 4 February 2021 signed the Collective Complaints Protocol and has recently taken steps to ensure that these ratifications will take place in the near future.76 It can be concluded from the above analysis that the 1961 ESC is a legally binding international treaty that has been published in the Spanish Gazette, and thus produces its effects in the Spanish legal order. In addition, it prevails over legislation and is capable of producing direct effect, as long as the relevant criteria are fulfilled— either in vertical or horizontal disputes. Finally, the Charter and the pronouncements of its monitoring body may serve as an important tool in defining and interpreting socio-economic rights and freedoms under the Constitution.

70 Notably, the ESC also contains in para 1 of Part 1 a very similar provision, albeit with a less assertive wording. 71 See generally Kanetake 2019. 72 See Article 1(1) of the Constitution. 73 “Instrumento de Ratificación de 29 de abril de 1980, de la Carta Social Europea, hecha en Turín de 18 de octubre de 1961”. 74 “Instrumento de Ratificación por parte de España del Protocolo Adicional a la Carta Social Europea, hecho en Estrasburgo el 5 de mayo de 1988”. 75 See e.g. Brillat 2009, p. 231. 76 On 10 November 2020, the Spanish government approved an agreement providing for the referral of the RevESC to the Parliament for ratification and also authorising the expression of Spain’s consent to be bound by that Charter as well as the Collective Complaints Protocol.

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5.3.2 Contesting Austerity Measures by Means of the 1961 ESC Before Spanish First and Second Instance Courts On 19 November 2013, in a widely discussed decision, the Social Court of Barcelona was asked by the plaintiff to declare the unfairness of his dismissal.77 The dismissed worker’s full-time open-ended employment contract ‘for support of entrepreneurs’ had been terminated by the defendant’s company, as the worker did not pass the trial period of maximum one year, set in accordance with Article 4(3) of Royal DecreeLaw 3/2012.78 This concerned an austerity measure resembling the one implemented in Greece in response to the ongoing crisis.79 The Court initially laid down the facts of the case and the relevant provisions of the Royal Decree-Law, and concluded without further ado that these provisions had to be evaluated for their conformity with the 1961 ESC and the 1988 Protocol, which Spain has ratified. The court also noted Spain’s failure to ratify the RevESC and the Collective Complaints Protocol. It then stated that the Charter is an international norm that forms part of internal law according to Articles 10(2) and 96 of the Constitution, and thus has the same binding value as the Treaties of the EU, hierarchically ranked above national law.80 Remarkably, the Court went on to apply Article 4(4) of the Charter (‘right of all workers to a reasonable period of notice for termination of employment’) directly and, in fact, in a horizontal dispute. The Court subsequently made a significant statement that would mark the beginning of a new era for Spanish courts regarding the application of the ESC system; namely, that the ECSR is responsible for ensuring the correct application of the Charter, and that its decisions are therefore “binding” on national courts and constitute “case law” that must be applied by the latter. The affirmation of this rather striking position in the present ruling but also in many rulings that followed, led the Court to refer to and thoroughly analyse the ECSR’s findings in its collective complaints decisions concerning Greece,81 even though Spain had not ratified the relevant Protocol. In the cited collective complaints decision, Greece was found to be in violation of Article 4(4) of the Charter, as it did not provide a notice period (or compensation) when the employer terminated the employment contract prior to the end of the one-year trial period. Notably, the Court did not stop there; although it recognised that the Royal DecreeLaw at stake was dictated amid an economic crisis, it rather adopted the ECSR’s reasoning in its Conclusions under the Reporting System, in which the Committee 77 Social Court of Barcelona-2nd [‘Juzgado de lo Social’], No 412/2013, 19 November 2013, SJSO 63/2013-ECLI:ES:JSO:2013:63. 78 This contract is a full/part time open-ended one establishing a probationary period of 12 months during which a worker can be dismissed without any notice or compensation. See generally Salcedo Beltran 2013. 79 See Article 17(5) of Law 3899/2010 and Section 1, subsection IA of Law 4093/2012. 80 See also Articles 29, 30 and 31 of Law 25/2014 supra note 61. 81 ECSR, GENOP-DEI and ADEDY v. Greece, Complaint No 65/2011, decision on the merits of 23 May 2012.

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asserted its famous non-regression stance towards social rights in the face of the crisis.82 These considerations led the Court to conclude that the situation in that above-mentioned collective complaints decision was identical to the case brought before it. The Court therefore ruled that Article 4(3) of Royal Decree-Law 3/2012 was in violation of Article 4(4) of the ESC, a higher-ranking rule, for not establishing a period of notice for the termination of the employment contract during the oneyear trial period. Also, such a long trial period cannot in any case be considered reasonable. Remarkably, this pronouncement was endorsed in the years that followed by many other Social Courts,83 but also by a number of Autonomous Communities’ High Courts of Justice, at second instance,84 which shared the position of Barcelona’s court. These courts also affirmed that Part II of the Charter is binding on Spain, and that Article 4(4) of the Charter is sufficiently precise and unconditional on its own, and as interpreted by the ECSR—in contrast to other provisions that have not passed the scrutiny of the ECSR’s interpretation. Therefore, Article 4(4) of the ESC enshrines a specific right attributed to workers, and not merely state obligations. Evidently, High Courts of Justice provide a thoughtful observation in that context; namely that a right that has passed the ECSR’s interpretive filter is likely to be considered sufficiently precise. Such an observation may prove to be crucial when domestic judges assess whether or not a treaty provision fulfils the objective criterion of direct effect. Moreover, in this case, the judges based their argumentation on the Committee’s Conclusions XX-3 concerning Spain, which were issued on 5 December 2014, and in which the fact that during their trial period, employees under contracts ‘for support of entrepreneurs’ may be dismissed without notice, was inter alia found not in conformity with Article 4(4) of the 1961 Charter. By doing so, they asserted that the fact 82 See

ECSR, General Introduction to Conclusions XIX-2 (2009). Court of Toledo-1st, No 667/2014, 27 November 2014, SJSO 183/2014ECLI:ES:JSO:2014:183; more recently Social Court of Barcelona-23rd, 12 March 2018, SJSO 1483/2018-ECLI:ES:JSO:2018:1483 and Social Court of Talavera de la Reina-3rd, No 152/2018, 29 June 2018, SJSO 4856/2018-ECLI:ES:JSO:2018:4856. See also the following decisions, not available at https://www.poderjudicial.es, cited in the ECSR’s 2015 Activity Report, https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?docume ntId=09000016805ab9c7, p. 120, accessed 10 February 2020: “Employment tribunal-no. 1 of Tarragona no. 179, 2 April 2014—Employment tribunal-no. 1 of Mataró no. 144, 29 April 2014— Employment tribunal-no. 3 of Barcelona no. 352, 5 November 2014—Employment tribunal-no. 19 of Barcelona no. 491, 17 November 2014—Employment tribunal-no. 9 of Gran Canaria no. 705, 31 March 2015—Employment tribunal-no. 2 of Fuerteventura no. 58, 31 March 2015—Employment tribunal-no. 1 of Toledo no. 202, 9 April 2015—Employment tribunal-no. 1 of Las Palmas no. 74, 11 May 2015—Employment tribunal-no. 1 of Las Palmas no. 896, 3 June 2015”. 84 High Court of Justice [‘Tribunal Superior de Justicia’] of Las Palmas de Gran Canaria (Social Chamber-1st), Decisions No 30/2016, 28 January 2016, STSJ ICAN 1420/2016ECLI:ES:TSJICAN:2016:1420, No 252/2016, 30 March 2016, STSJ ICAN 829/2016ECLI:ES:TSJICAN:2016:829, No 342/2016, 18 April 2016, STSJ ICAN 1598/2016ECLI:ES:TSJICAN:2016:1598 and No 73/2017, 31 January 2017, STSJ ICAN 547/2017ECLI:ES:TSJICAN:2017:547; High Court of Justice of Valladolid (Social Chamber-1st), Decisions No 01497/2016, 26 June 2016, STSJ CL 3026/2016-ECLI:ES:TSJCL:2016:3026 and No 02077/2016, 19 December 2016, STSJ CL 4707/2016-ECLI:ES:TSJCL:2016:4707. 83 Social

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that Spain has not yet ratified the Collective Complaints Protocol, does not mean that the content of the ESC is not binding, or that it can exonerate them from the judicial application of its provisions.85 The Charter’s value in that context was confirmed by the fact that—as pointed out by the High Courts of Justice—the establishment of a one-year trial period in the employment contract is not in violation of the Constitution, according to the Constitutional Court’s relevant case law.86 However, no reference to the ESC was included in the Constitutional Court’s reasoning in those cases. The consequence of these considerations was that the Royal Decree-Law provision in question was declared—by the first and second instance courts—inapplicable and the contested dismissals were declared null and void. It should, however, be noted that there were also a few decisions by resistant Social Courts and High Courts of Justice on the issue, in which judges were reluctant to recognise the direct effect of the Charter and the value of the ECSR’s output. Consequently, the judges found no breach of Spain’s international obligations, and validated the legality of Article 4(3) of the Royal Decree-Law in the cases brought before them.87 It seems that resistance to the Charter’s direct effect, and effective enforcement by Spanish courts, is exemplified inter alia by the argument put forward by some judges to deny the Charter system’s value—particularly at second instance88 —that Spain has not ratified the RevESC and the Collective Complaints Protocol. This situation of contradicting sentences between Social Chambers of High Courts of Justice on the same issue reached the Spanish Supreme Court, starting in 2015, under appeals for ‘unification of doctrine’,89 which were, however, declared inadmissible.90 Therefore, in such cases where constitutional (and EU law) social rights protection is deemed inadequate, the Charter can serve as a minimum tool of effective protection through the recognition of the direct effect (of several) of its provisions, and as interpreted by the ECSR. This becomes especially apparent when considering that the Spanish Constitutional Court is not competent to review the compatibility of legislation with international treaties, which is the responsibility of ordinary courts. However, in terms of the effectiveness of human rights, as defined in this chapter, a number of reserved observations can be made. On the one hand, it is true that the dismissed employees who won their cases before Social Courts and/or High Courts 85 See e.g. Social Court of Barcelona-23rd, 12 March 2018, SJSO 1483/2018ECLI:ES:JSO:2018:1483. 86 Constitutional Court, 16 July 2014, STC 119/2014-ECLI:ES:TC:2014:119, 22 January 2015, STC 8/2015-ECLI:ES:TC:2015:8, 22 June 2015, STC 140/2015-ECLI:ES:TC:2015:140. 87 See e.g. Social Court of Badajoz-1st, No 62/2018, 2 February 2018, SJSO 374/2018-ECLI: ES:JSO:2018:374; High Court of Justice of Barcelona (Social Chamber-1st), No 4090/2015, 22 June 2015, STSJ CAT 6721/2015-ECLI:ES:TSJCAT:2015:6721. 88 See e.g. High Court of Justice of Coruña (Social Chamber-1st), No 625/2017, 30 January 2017, STSJ GAL 662/2017-ECLI:ES:TSJGAL:2017:662. 89 That is a procedure established under Articles 218-228 of Law 36/2011 (‘Regulating Social Jurisdiction’), which may be applicable when there is a diversity of judicial responses dealing with substantially equal facts, grounds, and claims of the same or other litigants. 90 See e.g. Supreme Court (Social Chamber-1st), 7 February 2017, ATS 1120/2017ECLI:ES:TS:2017:1120A.

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of Justice and who did not have those decisions overturned by the latter, ultimately returned to their jobs—provided that the decisions were executed. Thus, relying directly on the Charter as interpreted by the ECSR, Spanish courts proved crucial in assisting those employees to realise their right to a reasonable notice period for termination of employment, in times of crisis and unemployment. On the other hand, however, there were also a number of cases in which either Social Courts outright rejected the applicants’ pleas, or where High Courts of Justice overturned the positive decisions of the Social Courts. In these cases, many workers were prevented from realising their Charter rights, thus forming part of a two-speed category of workers. This outcome unequivocally demonstrates the limitations to the effectiveness of human rights that one may encounter when resorting only to courts to claim a socioeconomic right. Nevertheless, as transpired from the Greek case discussed above, the positive decisions of the Spanish courts—in conjunction with the criticism put forward by trade unions and academics—contributed to prompting the newly elected Spanish Government to repeal by law91 Article 4(3) of Royal Decree-Law 3/2012, and the particular contract providing for a one-year trial period. Therefore, the Charter system has causally contributed to a significant policy change for workers’ rights, from which a considerable part of the Spanish workforce benefits. Ultimately, this development serves as another domestic example of the Charter system’s contribution to the affirmation of the effectiveness of human rights.

5.4 Synthesis It is important to note, first of all, that even though Greece had not ratified the RevESC, and Spain remained at the lowest level of commitment towards the ESC system when most of the analysed decisions were adopted, the judicial practice of their first and second instance courts should be perceived as an example of dynamic and effective application of the ESC system. Such practice is facilitated, on the one hand, by the rather monist conception of the relationship between international and national law, as well as the supremacy of international law over statutory law, which prevail in the constitutions of both jurisdictions. On the other hand, it is facilitated by their ordinary courts’ competence to carry out treaty-based review of legislation on labour law-related issues. However, having a monist system in which direct effect of international treaties is possible, does not necessarily mean that international human rights will be more effectively protected in such a jurisdiction. In practice, courts in both monist and dualist states can achieve roughly the same results with respect to the effectiveness of human rights by applying a treaty either directly or indirectly, as long as they are receptive to human rights treaties’ domestic judicial application, and recognise the supremacy of international law over statutory law. Since courts in monist states generally prefer applying a treaty indirectly rather than directly, and usually deny 91 Royal

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the self-executing character of treaty provisions requiring further legislative implementation, the practical significance of the traditional distinction between monism and dualism has become eroded.92 Therefore, the monist-dualist distinction offers a useful—albeit imperfect—starting point to examine whether international human rights are effective at the domestic level.93 Nevertheless, as the Greek and Spanish lower courts’ practice has shown, when the domestic legal system makes treaty law directly applicable and superior to national legislation, the judiciary can be expected to become more directly involved in a state’s policy process. What is more, it may prove to be a powerful way to force states to change their policy, on the basis of human rights treaties, as interpreted by their monitoring bodies—especially in countries with a strong rule of law system in which states generally comply with court orders.94 The above-described judicial practice of Greek and Spanish first and second instance courts also showcases their responsiveness towards international socioeconomic rights, and in particular their justiciability, which is one of the conditions for the effectiveness of these rights—on an equal footing with civil and political rights, and even in horizontal disputes. Moreover, the courts have greatly contributed to the effectiveness of the ECSR’s monitoring practices at the domestic level and the full realisation of Charter rights—especially labour rights. This is illustrated by the fact that owing to the ECSR’s collective complaints decisions, which give precise and ‘authentic’ meaning95 to the Charter provisions following the interpretive methods of international law,96 Greek judges, on the one hand, granted great weight97 and took due consideration of those decisions within the meaning of the interpretation rules of customary international law laid down in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (‘VCLT’).98 On the other hand, Spanish judges applied the ECSR’s collective complaints decisions directly as an autonomous and freestanding legal basis, and not merely as a tool to supplement the construction of formal law, or to confirm the court’s 92 Sloss

2012, p. 375. and Versteeg 2017, p. 174. 94 Brewster 2017, p. 66. 95 Remarkably, the ECSR’s power to guide the interpretation of the Charter’s provisions is not only founded explicitly in the text of the Treaty and its Protocols but is also articulated in a very clear way, as opposed to other international human rights monitoring bodies. In addition, according to a view, this affirmation results in a procedural obligation for domestic courts to acknowledge that power and give serious consideration to the ECSR’s collective complaints decisions, or else provide compelling reasons and counterarguments in case of disagreement. See Articles 10 and 12 of the 1995 Additional Protocol to the Charter in conjunction with Article 24(2) of the 1961 ESC, as amended by Article 2 of the 1991 Additional Protocol. 96 See e.g. ECSR, World Organisation against Torture (OMCT) v. Italy, Complaint No 19/2003, decision on the merits of 7 December 2004, para 41. 97 See on this International Court of Justice, Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010, p. 639, para 66. 98 Either as an interpretation accepted by parties through “subsequent practice in the application of the treaty” (Article 31(3)b VCLT) or as supplementary interpretive means (Article 32 VCLT). 93 Verdier

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position in an ancillary way—as is usually the rule in such cases where courts do not point-blank ignore treaty bodies’ output.99 There is no question that both Greek and Spanish courts provide high degrees of legitimacy100 to the ECSR; Spanish judges, nevertheless, pay attention not so much to the reasonableness or persuasiveness of the ECSR’s monitoring work,101 but rather to its binding or obligatory nature. As a result, they seem to assimilate the legal nature of the ECSR’s collective complaints decisions with that of international/regional courts’ judgments, such as those of the ECtHR,102 to offer them full legal force. Consequently, such exceptional application by domestic courts of international instruments (such as the ECSR’s decisions and conclusions) that are predominantly regarded as non-binding (soft law),103 helps to integrate those instruments into part of formal international law (hard law).104 This outcome should be considered remarkable for domestic courts that engage with human rights treaty monitoring bodies. Admittedly, a critic could argue that such practice constitutes interference—by the courts—with the matters of domestic political bodies; Spanish courts in particular are granting binding interpretive authority to the ECSR, which was not—at least explicitly—foreseen by the contracting states when signing the Charter. However, in the case of Spain, this practice seems to be ex post validated to some degree by the reasoning that the Spanish Supreme Court provided in its above-mentioned 2018 judgment, in which the Views of the CEDAW Committee were deemed legally binding. It is very likely that Greek and Spanish judges’ recourse to such interpretive practice may reflect, on the one hand, a recognition of the methodological rigour and sound argumentation exercised by the ECSR in its monitoring work, as well as a reaffirmation of the quasi-judicial character of the collective complaints procedure. On the other hand, however, it perhaps also represents an indication of the strong impact that the Eurozone crisis—and the legislative changes that it precipitated— exerted on the reasoning of Greek and Spanish judges. This is amplified by the fact that the ECSR’s collective complaints decisions concerning austerity measures in Greece—which received wide attention across Europe—had a significant impact on the reasoning of Spanish courts,105 even though Spain had—at the time—not expressed its intention to be bound by the Collective Complaints Protocol. Interestingly, the impact of the collective complaints decisions against Greece on the reasoning of Spanish courts was far greater than their impact on the case law of Greek courts. 99 Kanetake

and Nollkaemper 2014, p. 774. generally Petersen 2012, p. 231; Mechlem 2009, p. 908. 101 See Flanders 2009. 102 Borlini and Crema 2020. 103 Van Alebeek and Nollkaemper 2012, p. 356. 104 Kanetake and Nollkaemper 2014, p. 806; Shelton 2012, p. 575. 105 See also e.g. Social Court of Barcelona-12th, No 287/2015, 4 September 2015, SJSO 60/2015ECLI:ES:JSO:2015:60, relying on the ECSR’s decisions on the merits of collective complaints Nos 76-80/2012, which concerned social security and pension reforms in Greece. 100 See

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What is more, in contrast to the Spanish Supreme Court’s recognition of binding inter partes effect on the CEDAW Committee’s Views in the above-described judgment, a fair number of Spanish lower courts seem to recognise that the Charter’s treaty body decisions produce a binding erga omnes effect, and—to a great extent— a res interpretata effect. Despite Spain not being formally bound by the Collective Complaints Protocol and the ECSR’s decisions, the resemblance of the austerity measure implemented in Greece to the one implemented in Spain, may have been another factor that explains the reliance of Spanish judges on the ECSR’s decision against Greece in that context. Notwithstanding, such remarkable practice could, understandably, be criticised for also being at odds with the ‘pacta sunt servanda’ principle. Thus, the measure imposing a one-year trial period, during which a worker can be dismissed without any notice (or compensation), has been implemented both in Greece and Spain during the crisis. The measure has, paradoxically, been found to be in breach of the Charter, as interpreted by the ECSR, only by Spanish courts. Although Greece has ratified the relevant Protocol and has been found by the ECSR to be in breach of the Charter in that regard, no Greek court to date has come to such a conclusion, thus negating—together with the executive and the legislature—the effects of the Charter system. All things considered, the judicial practice of Greek and Spanish courts has also exposed the limitations to the effectiveness of human rights that individuals may encounter when litigating before domestic courts, in order to claim socio-economic rights enshrined in international treaties, or to contest austerity measures. The first significant limitation is the fact that, in the cases examined, the social realisation of the Charter rights was ultimately dependent on the State’s actions—either by enforcing the courts’ positive decisions, or by repealing the laws on which the contested measures were based. Therefore, the effectiveness of socio-economic rights may principally be a matter of political will and commitment, thus requiring other means of exerting political pressure besides litigation. Domestic courts’ (direct) application of the ESC system causally contributed to inducing the Greek and Spanish executives to change their policy in accordance with the Charter’s standards and workers’ needs. Nonetheless, it was a change in government that proved to be the actual turning point. The second major limitation to the effectiveness of socio-economic rights that becomes apparent in that context, includes (in)equality as well as legal and social cohesion.106 Specifically, the persons who initially benefited from the Greek and Spanish courts’ positive decisions on the basis of the ESC system, were only those who had the necessary resources (e.g. financial means, proper information) to bring proceedings before the courts.107 Those employees who were affected by the contested legislative measures and who did not—or could not—file a lawsuit, or who were rejected protection either at first or second instance, lost their jobs (without notice or compensation) and were left in the grip of austerity’s implications. Until the contested laws were repealed a few years later by newly elected governments (with 106 Pavlidou 107 See

2018, p. 299. Landau 2012, p. 191; Tushnet 2012, p. 156.

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different political and social agendas), those employees were denied the enjoyment and realisation of their rights, and it was only through governmental policy-making that they were given the opportunity to make that a reality. In any case, the risk of a new government explicitly resisting those effects may always be present.

5.5 Conclusion This chapter has demonstrated the European Social Charter system’s potential to contest the well-known criticisms of social rights, serving as the last bastion for lowincome members of society, and as an important tool in the hands of national courts for the reaffirmation of justiciable and effective social rights at the domestic level. That is especially the case for Greek and Spanish lower courts, which have relied directly on the Charter provisions, and have given considerable weight or legal value to the pronouncements of the European Committee of Social Rights; and indeed, in times of crisis, a time when the legislature’s leeway in the field of social policy is rather restricted and financial resources are limited. Hence, through that pathway, the courts, in the examined cases, managed to prevent many Greek and Spanish low-income employees from losing their jobs and salaries in times of widespread unemployment and assist them in realising their rights, as enshrined in the ESC. Through their decisions, those courts have also contributed to policy change, causally inducing states to take (legislative) action and to accomplish challenging tasks that they had thus far been unwilling to undertake. In that context, the courts’ practice in applying international social rights standards throughout the crisis—to double-check the legislature’s choices and actions and to stimulate policy and social change—could be assimilated to Rosenberg’s dynamic court model.108 The courts specifically refrained from adopting a restrained approach109 and chose to also take into consideration the social and political contexts. Regardless of the outcomes of the cases brought before them, they understood the reality in which they work; this made the courts relevant and effective in contributing to respect for human rights at the domestic level,110 and to inducing the desired change in state behaviour—in accordance with the legal standards deriving from the ESC system. To conclude, the lower courts of Greece and Spain have—to a considerable degree—paved the way for effective socio-economic rights at the domestic level, and have set a precedent that could be followed by courts of other contracting parties to the ESC, or to other treaties, in their subsequent practice. Although workers’ mobilisation before domestic courts may also face a number of limitations and a fair 108 Rosenberg

2008. 2008. 110 Cavallaro and Brewer 2008, p. 770. 109 Tushnet

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amount of political resistance to the effectiveness of human rights, Greek and Spanish lower courts on their part have contributed to closing the gap between rhetoric and practice, and to making socio-economic rights a lived reality.

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Yokaris A (2012) The practice of jurisdictional bodies in the application of international law. Nomiki Vivliothiki, Athens [ι´oκαρης A (2012) H πρακτικη´ των δικαιoδoτικων ´ oργανων ´ στην εϕαρμoγη´ τoυ διεθνoς ´ δικα´ιoυ]

Nikolaos A. Papadopoulos is a Ph.D. Candidate at the Department of International and European Law of Maastricht University. He holds an LLB (magna cum laude) from the European University of Cyprus, a BSc in Political Science and Public Administration from the University of Athens and an LLM (cum laude) from the European Law School of Maastricht University. His research examines the dynamics of the European Social Charter for the protection of economic and social rights in Europe. He is under the supervision of Professors Bruno de Witte and Anne Pieter van der Mei. Currently, Nikolaos has an appointment as International Consultant to the Council of Europe - Department of the European Social Charter and he is also an associate at a law firm based in Athens, specialising in public and social law. The completion of this chapter was funded by the State Scholarships Foundation of Greece (IKY) under its scholarship programme in cooperation with the National Bank of Greece (NBG).

Chapter 6

How Human Rights Cross-Pollinate and Take Root: Local Governments and Refugees in Turkey Elif Durmu¸s Contents 6.1 6.2 6.3 6.4 6.5

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Syrian Refugees, Local Governments, and Legal Ambiguity . . . . . . . . . . . . . . . . . . . . . . The Effectiveness of Human Rights: From Formalist to Sociological Perspectives . . . . . Grounded Theory Approach and Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Factors Facilitating the Cross-Pollination and Taking Root of Human Rights as a Norm in Local Governance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5.1 Institutional Capacity in Local Governments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5.2 Networks and the Dissemination of the Developing Norm that Local Governments Can/Should Improve Refugee Rights . . . . . . . . . . . . . . . . . . . . . . . . 6.5.3 Coordination and Cooperation Between Local Governments and Other Actors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5.4 Political Will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

124 127 129 133 135 135 144 147 149 150 154

Abstract The human rights regime—as law, institutions and practice—has been facing criticism for decades regarding its effectiveness, particularly in terms of unsatisfactory overall implementation and the failure to protect the most vulnerable who do not enjoy the protection of their States: refugees. Turkey is the country hosting the largest refugee population, with around four million at the end of May 2020 (https://www.unhcr.org/tr/wp-content/uploads/sites/14/2020/06/UNHCR-Tur key-Operational-Update-May-2020.pdf). As an administratively centralised country, Turkey’s migration policy is implemented by central government agencies, but this has not proved sufficient to guarantee the human rights of refugees on the ground. Meanwhile, in connection with urbanisation, decentralisation and globalisation, local governments around the world are receiving increasing attention from migration studies, political science, law, sociology and anthropology. In human rights scholarship, the localisation of human rights and the potential role of local governments have been presented as ways to counter the shortcomings in the effectiveness of the human rights regime and discourse. While local governments may have much E. Durmu¸s (B) Faculty of Law, Economics and Governance, Cities of Refuge Research, Utrecht University, Utrecht, The Netherlands e-mail: [email protected] © The Author(s) 2021 C. Boost et al. (eds.), Myth or Lived Reality, https://doi.org/10.1007/978-94-6265-447-1_6

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untapped potential, a thorough analysis of the inequalities between local governments in terms of access to resources and opportunities is essential. The Turkish local governments which form the basis of this research, operate in a context of legal ambiguity concerning their competences and obligations in the area of migration. They also have to deal with large differences when it comes to resources and workload. In practice, therefore, there is extreme divergence amongst municipalities in the extent to which they engage with refugee policies. This chapter seeks to answer the question why and how certain local governments in Turkey come to proactively engage in policy-making that improves the realisation of refugees’ rights. Exploratory grounded field research among Turkish local governments reveals four main factors that enable and facilitate the engagement of local governments in refugee policies: (1) the capacity of and institutionalisation in local governments; (2) the dissemination of practices and norms surrounding good local migration and rights-based governance through networks; (3) the availability of cooperation and coordination with other actors in the field, and (4) political will. Collectively, these factors illustrate how a new norm—the norm that local governments can and ought to engage in policy-making improving the rights of refugees—is cross-pollinating and taking root among Turkish local governments. This understanding will provide valuable insights into how norms are developed, travel and are institutionalised within social and institutional networks, and how differences in access, capacity, political and cooperative opportunities may facilitate and obscure the path to policies improving human rights on the ground. Keywords Human rights · Local governments · Turkey · Institutional capacity · Local migration policies · Dissemination

6.1 Introduction The gap between legal standards applicable to the protection of refugees in Turkey and the on the ground rights fulfilment mirrors two shortcomings that human rights have been facing regarding their effectiveness, since their codification in international law. The first of such shortcomings, the so-called ‘enforcement gap’ relates to the discrepancy between the requirements of human rights regulations and the situation on the ground.1 The second shortcoming concerns the effectiveness of human rights when it comes to protecting the most vulnerable who do not enjoy the protection of their States, sometimes referred to as the ‘citizenship gap’.2 Turkey hosts the highest number of refugees worldwide—around four million people—of which

1 Kennedy 2 Kennedy

2002; Hafner-Burton and Tsutsui 2005; Donoho 2007; Hopgood 2013; Posner 2014. 2002; Brysk and Shafir 2004.

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around 3.6 million are Syrian refugees under the domestic legal regime of ‘temporary protection’.3 Legislation on temporary protection is operationalised in a highly centralised manner, and there is no national long-term policy for those under ‘temporary protection’, nor any official integration policy.4 There is no dispersal system that allocates refugees to provinces and municipalities, no public housing scheme, and no language courses offered by the State. The central government has established regulations for the basic protection of the human rights of Syrian refugees, such as access to free health care, wide-scale schooling of children, and opportunities to work in regularised manner with work permits.5 However, the reality on the ground is that an overwhelming majority of the working refugee population are working irregularly, that the percentage of children attending school is only 50%, and that access to basic rights remains problematic.6 Most refugees (98.2%) do not live in government-run refugee camps, but in urban settlements.7 However, local governments in Turkey have no official competences in providing services to refugees under temporary protection.8 The Law on Municipalities contains contradictory clauses on whether or not local governments are obliged or even permitted to include non-citizens in their service provision, creating an atmosphere of legal ambiguity.9 Despite this lack of law’s coercive force, many local governments in Turkey have opted to engage extensively in policies and practices that improve the human rights of refugees on the ground, but which also require time, energy, personnel and resources.10 Why and how is this happening? This chapter will address the question: Why and how do certain local governments in Turkey come to engage proactively in policy-making that improves the realisation of refugees’ rights? This empirical question also corresponds to a niche in literature. In response to the enforcement gap and criticism towards a legalistic understanding of how to close it, socio-legal scholars have been drawing attention to the localisation of human rights—the cultivation of locally sensitive understandings of human rights and increasing ownership—as a solution.11 At the same time, migration scholars have been discussing a ‘local turn’ in migration governance, with a focus on

3 UNHCR

Turkey: https://www.unhcr.org/tr/wp-content/uploads/sites/14/2020/06/UNHCR-Tur key-Operational-Update-May-2020.pdf. Latest 2020 numbers from the website of the Directorate General of Migration Management: https://www.goc.gov.tr/gecici-koruma5638. 4 Temporary Protection Regulation, adopted by Council of Ministers Decision No: 2014/6883, 22/10/2014 No: 29153, pursuant to Law No 6458. The only long-term solutions foreseen for Syrians under temporary protection are voluntary returns and departures to third countries. 5 Kayao˘ glu and Erdo˘gan 2019. 6 Erdo˘ gan 2017; Korkmaz 2017. 7 Erdo˘ gan 2017, p. 42. 8 See Sect. 6.2 for a detailed analysis. Erdo˘ gan 2017. 9 Ibid., p. 40. 10 Erdo˘ gan 2017; Adıgüzel and Tekgöz 2019; Durmu¸s 2020. 11 Merry 2006; De Feyter et al. 2011; Goodhart 2013; Oomen and Baumgärtel 2018; Oomen and Durmu¸s 2019; Hoffman 2019.

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local authorities.12 In both research areas, local governments in non-Western countries, in centralised settings, are underexplored. Common research cases include cities such as Barcelona, Milan, Utrecht, all of which operate in a context of (increasing) decentralisation.13 Research in the Turkish context complements and furthers such research. First, as Turkish municipalities generally host far larger numbers of refugees than Western municipalities; this research will demonstrate the pitfalls of decentralisation and localisation when a comparatively lower capacity and higher burden are coupled. Second, non-involvement in human rights and migration policy-making is a common and acceptable approach in the Turkish context of legal ambiguity, political uncertainty and centralised governance.14 Researching why those municipalities that engage, do indeed engage, and how that has come to be, is therefore expected to provide important insights. Using grounded empirical insights from field research, this chapter argues that four factors enable/facilitate the engagement of local Turkish governments with policies that improve the rights of refugees: their capacity, the dissemination of norms on human rights and their role therein, the availability of cooperation, and political will. Collectively, these factors illustrate how the notion that Turkish local governments ought to contribute to the realisation of the rights of refugees is becoming a norm, is cross-pollinating and is taking root amongst Turkish local governments. These findings are derived from the Turkish context but may also shed light on structural and cultural factors that underlie the ‘normativisation’ and socialisation of human rights elsewhere. On the path to these findings, Sect. 6.2 of this chapter will provide a brief legal overview of temporary protection, local governments and ambiguity. Section 6.3 will then explore the question of human rights effectiveness, in its formalist and sociological evaluations, and how local governments and this study relate to them. After describing the methodology and grounded theory approach, the four main factors that have been found to determine whether a local government will engage in policymaking for refugees will be presented and discussed: (1) its capacity and level of institutionalisation, (2) whether the ideas and practices of refugee-welcoming or human rights-friendly municipalities have reached them through networks or other means of dissemination, (3) the available coordination and cooperation with other complementary actors in the multi-level governance of migration, and (4) the presence of political will. Finally, a number of concluding remarks will address the contribution of these factors and their collective illustration of a norm’s cross-pollination and taking root, to existing literature.

12 Caponio

and Borkert 2010; Zapata-Barrero et al. 2017; Bendel et al. 2019; Caponio et al. 2019. 2001; Oomen et al. 2016; Oomen and Baumgärtel 2018. 14 Erdo˘ gan 2017, p. 40. 13 Sassen

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6.2 Syrian Refugees, Local Governments, and Legal Ambiguity Having ratified the 1951 Geneva Convention on the Status of Refugees with a geographical reservation, Turkey does not grant asylum to people fleeing to the country from outside of Europe asylum in the country.15 In this chapter, however, Syrians under temporary protection are be referred to as refugees, as international law dictates a declaratory rather than a constitutive character to the determination of the refugee status.16 The regime provided by the Turkish Law on Foreigners and International Protection (‘YUKK’)17 for situations in which ‘immediate’18 protection is needed by mass entries into the country (rendering individual assessment impossible), is the ‘temporary protection’ regime.19 This regime is not considered as international protection and does not offer any durable solution.20 In October 2013, the Council of Ministers adopted the Regulation on Temporary Protection in accordance with this law, declaring that all persons entering Turkey from the Syrian Arab Republic as of 25 April 2011 will be granted temporary protection.21 This would be operationalised by the national Directorate General of Migration Management (‘DGMM’), in accordance with the ‘Temporary Protection Regulation’ enacted by the Council.22 Here, the conditions of reception centres are regulated in detail, while the only long term solutions referred are voluntary return and resettlement in a third country.23 As such, ‘harmonisation’, the preferred term for integration in Turkey, is not the goal of temporary protection.24 However, today 98.2% of Syrian refugees live in urban areas (rather than in reception centres in border regions), trying to survive economically and socially in densely populated metropolitan areas.25 Despite this, local governments do not appear in the Regulation, and only minimally in the YUKK, among a list of actors that the DGMM may consult when drawing up harmonisation policies.26 Local governments are thus not assigned any duties in the reception and 15 Ibid.,

Article 61. and Foster 2014. 17 Law No. 6458, ‘Law on Foreigners and International Protection’ (‘YUKK’), entered into force 11 April 2013, Unofficial English translation by the Department of Communication for Foreigners, Directorate General of Migration Management, Ministry of Interior Affairs, Turkey. https://yimer. gov.tr/EN/Legis/215f1c4c-5384-47f9-9ac2-dc2575b4d48f. 18 Ibid., Article 91. 19 Ibid. 20 Article 7(3): ‘Persons benefiting from temporary protection shall not be deemed as having been directly acquired one of the international protection statuses as defined in the Law.’ Regulation, supra note 5, Article 91. 21 Ibid., Provisional Article I. 22 Ibid. 23 Ibid., Part 9, Articles 42–45. 24 YUKK, supra note 18, Article 96. 25 DGMM Website: https://www.goc.gov.tr/gecici-koruma5638. 26 YUKK, supra note 18, Article 96. 16 Hathaway

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integration of Syrian refugees.27 Nonetheless, as Syrians constitute the largest group of migrants in Turkey, most of the local government practices on migration revolve around them, and so they will be the main focus of this chapter. The final domestic legal source to consult on the relationship between local governments and refugees, the Law on Municipalities,28 is inconsistent on the question of the beneficiaries of local services. On the one hand, Article 13 holds that anyone who resides in the territory of a local government is that locality’s ‘hemsehri’ (fellow citizens/townspeople) and is therefore ‘entitled to participate in local government’s decisions and services, to be informed about local government activities and benefit from the material aid of the local government.’29 The local government is then entrusted with ‘conduct[ing] activities as are necessary for the development of social and cultural relationships between fellow citizens and for the protection of cultural values’30 and with ‘ensuring the participation of universities, professional associations with public organ status, unions, civil society organisations and experts’31 in these activities. This is the legal basis for all local government activities which benefit all migrants, including refugees and undocumented migrants.32 On the other hand, Article 14, titled ‘Functions of Local Governments’ lists all the services that local governments may or should provide, stating that these should be provided to ‘nationals’ (vatandaslar). This then creates legal ambiguity for local governments as to whether or not they are now obliged to, or even permitted to provide these services to non-nationals.33 The fact that local governments receive their share of the central budget according to the number of nationals residing in their territory further complicates this matter.34 As such, in extreme cases, such as Kilis, a local government could be serving a refugee population that is as large as the number of nationals registered as residents of the municipality, yet only receive a budget based on the Turkish population.35 The expenditure of local governments in Turkey, as in all public organs, is scrutinised by the Sayı¸stay (the Court of Cassation). Interviews and conversations at local government conferences revealed that some local governments, especially those run by opposition parties, held concerns about being held accountable for spending towards non-nationals by the Sayı¸stay, perhaps disproportionately so in the case of opposition-governed municipalities.36 One large district municipality governed by the CHP in a metropole, stated that Sayı¸stay examinations

27 Erdo˘ gan

2017, p. 42. No 5393, ‘Law of Municipalities’, entered into force through publication in the Official Gazette: 13/7/2005 under Number 25874. 29 Ibid., Article 13(1). 30 Ibid., Article 13(2). 31 Ibid. 32 Erdo˘ gan 2017, p. 40; interviews Sultanbeyli, Maltepe, Zeytinburnu, Keçiören. 33 Erdo˘ gan 2017, p. 40. 34 Ibid. 35 Ibid. 36 Anonymous Interviews #1 and #2. 28 Law

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sometimes last ‘many months and up to a whole year’ in their municipality, while AKP-led municipalities receive visits from Court officials for only one day.37 This environment of legal ambiguity, among other factors, helps to explain the extreme divergence amongst Turkish local governments in terms of their engagement with refugee policies. The discretionary spaces for local governments to act in, are shaped both by laws on their competences and legal ambiguities around these laws.38 The way in which such discretionary space is used by Turkish local governments ranges from doing absolutely nothing in the area of migration to addressing the needs of refugees by mainstreaming local services, including access for refugees,39 setting up NGOs and community centres targeting refugees,40 offering language courses,41 free local healthcare,42 vocational training,43 mobilisation projects to increase schooling rates,44 free childcare,45 free anonymous STD testing,46 psychological support,47 legal support,48 disability support49 and even political participation.50

6.3 The Effectiveness of Human Rights: From Formalist to Sociological Perspectives When thinking about the theme of this book, the effectiveness of human rights, it is helpful to first pose the questions: ‘Effectiveness of what?’ and ‘Effectiveness for what’?51 When we understand human rights as a sub-field of international law, Taki’s definition of effectiveness as ‘the efficacy (actual observance) of law as distinguished from the validity (binding force) of law’52 provides guidance. Like other sub-fields of

37 Anonymous

Interview #2. et al. forthcoming. 39 Interview Zeytinburnu. 40 Presentation on Gaziantep during International Migration and Integration Symposium, Istanbul. Interview Sultanbeyli. 41 Interviews Zeytinburnu, Ba˘ gcılar, Sultanbeyli, ABB. 42 Interviews Sultanbeyli and Anonymous #1. 43 Interviews Sultanbeyli, ABB, Zeytinburnu, Ba˘ gcılar. 44 Interview Ba˘ gcılar. 45 Interview ABB. 46 Anonymous Interview #1. 47 Interview Sultanbeyli. 48 Interviews Sultanbeyli, Keçiören. 49 Interview Zeytinburnu. 50 Anonymous Interview #1, Presentation by Gaziantep in International Migration and Integration Symposium, March 2018, Istanbul. 51 Brysk 2019. 52 Taki 2013, para 1. 38 Oomen

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international law, human rights suffer from the lack of a central enforcement system.53 While there are international bodies institutionalising the human rights regime, they nevertheless rely on the consent and compliance of States and other institutions.54 In addition, due to the state-centricity of international law, individuals who are not (or no longer) able to enjoy the protection of their own States, such as refugees and stateless persons, are often deprived of the effective human rights protection that nationals of States enjoy in their own country. This is referred to as the ‘citizenship gap’.55 To increase the effectiveness of human rights as law, scholars have demanded formalist steps such as codification, ratification and the legal incorporation of human rights treaties into domestic law.56 This formalist approach has however attracted criticism for not adequately explaining norm compliance.57 Both the ‘enforcement gap’ and the ‘citizenship gap’ do not materialise equally and identically in different places. The literature assessing the effectiveness of the international human rights regime has yielded conflicting results.58 If the preferred indicator of effectiveness is not a formal one, such as treaty ratification, but rather the situation on the ground, reliance on interdisciplinarity becomes almost inevitable. An answer to the question of why some (States, regions, etc.) comply more than others is found in the sociology and anthropology of law: the ownership a community develops for a norm.59 Legal incorporation constitutes a formalist, top-down approach that does not focus on cultivating ownership for human rights, especially in places where these norms are considered foreign.60 Socio-legal scholars, especially social constructivists, argue that a top-down legalist perspective will not lead to human rights ownership among diverse communities. and that, a process of contestation involving relevant stakeholders in society should take place instead.61 As such, social constructivists often inquire about the effectiveness (or rather relevance) of human rights as an idea, value, practice, and as such a social construction, rather than as law alone.62 The responses to the questions ‘effectiveness of what?’ and ‘effectiveness for what?’ then become ‘the effectiveness of human rights as a societal norm’ and ‘the effectiveness of human rights in influencing the behaviour of actors.’ Risse and Sikkink explain that materialist answers alone fail to explain how state identities, interests and preferences develop: ‘Material factors and conditions matter through cognitive and communicative processes, the “battleground of ideas” by 53 Ibid. 54 Ibid. 55 Brysk

and Shafir 2004. 2005; Hoffman 2019. 57 Helfer 2002; cf. Hathaway 2005; Simmons 2009; Fraser 2019. 58 Brysk 2019, p. 2. 59 Finnemore 1993; Merry 2006; Soohoo et al. 2008; Grigolo 2016; Oomen et al. 2016. 60 Fraser 2019; Hoffman 2019. 61 Engle 2000; Helfer 2002; Merry 2006; An-Na’im 2010; Freeman 2013; Fraser 2019; Oomen and Durmu¸s 2019. 62 Grigolo 2017. 56 Hathaway

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which actors determine their identities and interests and to develop collective understandings of the situation in which they act and of the norms guiding their interactions.’63 Béland and Cox demonstrate that different ideas in this ‘battleground’,64 of which the notion of human rights is only one, can also constitute ‘coalition magnets’ that actors rally around for a common cause.65 Berman and the ‘New’ New Haven School of Law66 also observe the world as a battleground in which ideas, values and propositions of what constitutes the law are contested, with ‘norm-generating communities’ proposing their own versions of what law ought to look like.67 Human rights are presented as a successful example of how a normative ideal can become accepted by the dominant actors and institutions and come to constitute official law.68 Constituting official law, however, is not the end of the road for a norm. Still, this norm must be advocated, contested and negotiated to maintain its relevance, provide opportunities for the correction of errors,69 and reaffirm its ownership amongst communities. Brysk explores ‘pathways of influence’ such as interdependence, diffusion, legalisation, framing and shaming—through which human rights permeates the consciousness of nations and communities and gain such ownership.70 Merry analyses the ‘people in the middle’ who travel between the ‘local’ and the ‘transnational’, who can speak both the language of the international rights regime and the local culture, and who ‘vernacularise’ international human rights norms.71 Babül, in her research into human rights localisation among the Turkish police and judiciary during the EU accession process, explicates the complex and multi-directional nature of human rights contestation and dissemination between—and amongst—‘insider’ and ‘outsider’ actors. She argues that (the effects of) these normative processes continue long after ‘projects’ and ‘trainings’ have been completed by local, national and ‘foreign’ stakeholders.72 In sum, ownership, and thus arguably the effectiveness of human rights, is increased through localisation, contestation and dissemination of the norms concerned with(in) the communities on the ground.73 For the purposes of this chapter, these processes are summarised through the metaphor of human rights ‘cross-pollinating’, i.e. being contested, disseminated and vernacularised through networks that form a battleground of ideas, and ‘taking root’, which refers to the process of institutionalisation (both formal and social) of the norms into sustainable governance practices.

63 Risse

and Sikkink 1999, p. 7.

64 Ibid. 65 Béland

and Cox 2016. 2007; Levit 2007; Koh 2007. 67 Berman 2007. 68 Ibid. 69 Ibid. 70 Brysk 2019, p. 1. 71 Merry 2006. 72 Babül 2017. 73 Risse and Sikkink 1999, p. 6. 66 Berman

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Local governments become important in this context with their role as the ‘lowest’ tier of public administration, closest to the people.74 Local governments have been enjoying widespread scholarly attention from, for example, migration studies, international relations, political science, law, sociology and geography.75 While increased urbanisation, globalisation and decentralisation caused local governments to become implicated with more human rights issues, they have also emerged as a political actor cooperating with peers and demanding more voice in national, regional and international politics, in contestation of the view of the State as monolithic.76 From Barber’s ‘If Mayors Ruled the World’77 to Nijman’s ‘Renaissance of the City’,78 Aust’s ‘Shining Cities on the Hill’,79 and Oomen and Baumgärtel’s ‘Frontier Cities’,80 research has focussed on how local governments contribute to solutions of glocal problems such as climate change and migration management.81 Constitutional lawyers joined the discussion, exploring local governments’ increasing claims for greater autonomy, powers and competences.82 For human rights localisation, cities have been described as agents (norm entrepreneurs), actors with human rights obligations, as well as arenas in which different stakeholders come together, generating localised understandings of human rights.83 In previous work I have mapped local governments’ engagement with the ‘formation’, ‘implementation’, ‘defence’, ‘coordination’, ‘dissemination’ and ‘contestation’ of human rights.84 This chapter is a case study for examining these broader processes and their shortcomings. Looking at Turkish local governments and their proactive refugee policies is relevant to both formalist and sociological views on human rights effectiveness. In a formalist sense, local policy has the capacity to objectively and measurably improve the human rights realisation of refugees on the ground, reducing both the enforcement gap and the citizenship gap. From a sociological perspective, I argue that the precursor to this outcome-oriented effectiveness of human rights is the success of the underlying societal norm (that local governments ought to improve refugee rights) in influencing the behaviour of municipalities. The national reality is legal ambiguity in which it is perfectly acceptable for local governments not to engage in refugee policies. Where some local governments are proactive with regard to refugee policy, regardless of 74 United Nations Human Rights Council Advisory Committee Report, The Role of Local Authorities in the Protection and Promotion of Human Rights, A/HRC/30/49, para 1. 75 Sassen 2001; De Feyter et al. 2011; Barber 2014; Marx et al. 2015; Oomen et al. 2016; ZapataBarrero et al. 2017; Bendel et al. 2019; Hoffman 2019; Durmu¸s 2020. 76 Aust 2015; Nijman 2016; Oomen and Baumgärtel 2018. 77 Barber 2014. 78 Nijman 2016. 79 Aust 2015. 80 Oomen and Baumgärtel 2018. 81 See also Blank 2006. 82 Hirschl 2020. See also the upcoming Special Issue of the European Yearbook on Constitutional Law on local governments. 83 Oomen and Durmu¸s 2019. 84 Durmu¸s 2020.

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legal coercion, it is possible to observe the developmental stages of a societal norm, perhaps one of good-governance or human rights duties of local governments. Ideas and practices constituting this norm travel (cross-pollinate) and are institutionalised (take root) among the community of local governments, increasing the effectiveness of the norm. The four factors I will present below that facilitate/enable this ‘crosspollination’ and ‘taking root’ are grounded findings answering the question of why these processes are successful in some municipalities and not others in the Turkish context. The four factors are thus the novel, grounded theoretical contributions to the collection of theories on norms and socialisation. Let us now briefly problematise the notion of effectiveness. In both formalist, outcome-oriented assessments of rights realisation on the ground and the socio-legal assessment of influence on behaviour of decision-makers, conclusive determination of causality between the results and human rights (as law or as social construction) is difficult. When we track the dissemination and socialisation of a norm within a community, the actors may not consider themselves to be acting under influence of that norm, and/or will be acting in the ‘battleground of ideas’ influenced by a myriad of them. When actors do not motivate their decisions with a direct reference to human rights, the risk of ‘hineininterpretierung’, or of reading human rights into motivations where they are not expressed, is high. This problem arises especially when the research participant refers to motives such as humanitarianism, non-differentialism, ethics, or morals, which are normative motivations related to human rights, but which are difficult to distinguish from each other. Regardless of our conception of effectiveness, establishing a direct link proves highly problematic. With these disclaimers, this chapter will be very modest in making statements about effectiveness. Leaving aside the challenges above for now, this chapter will consider human rights effectiveness as the cross-pollination and taking root of the norm that local governments in Turkey, despite the lack of coercive force, ought to provide services to refugees and improve their human rights realisation.

6.4 Grounded Theory Approach and Methodology Grounded theory methods are ‘systematic, yet flexible guidelines for collecting and analysing qualitative data to construct theories “grounded” in the data themselves’.85 The process of grounded theory involves seeking data, describing observed events, posing fundamental questions, and systematising responses thereof and other patterns emerging from data in theoretical categories.86 Data is collected until such theoretical categories are saturated, i.e. when additional data does not produce any new categories or theoretical insights on the emerging grounded theory.87 Emerging 85 Charmaz

2006, p. 2. p. 25. 87 Ibid., p. 96. 86 Ibid.,

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grounded theories do not exist in a theoretical vacuum, and ‘refine[…], extend[…], challenge[…] or supersede[…] extant concepts.’88 In reviewing literature and earlier theories, the grounded theory should be positioned in, challenge, extend and complement existing theories and their gaps.89 The proposed original concepts/theoretical categories must be explained in terms of their content, efficacy and significance.90 An emerged grounded theory that demonstrates credibility, originality, resonance and usefulness91 can not only explain and interpret a localised reality (in this case, the Turkish local governance context), but also have cross-cutting relevance for the understanding of related phenomena across disciplines.92 As Charmaz explains, ‘A contextualised grounded theory can (…) end with inductive analyses that theorize connections between local worlds and larger social structures.’ This is exactly what this research aims to do; to conceptualise the processes and factors that facilitate/enable local governments to go out of their way to improve the rights of refugees. A close look at these factors and processes in a high-burden, low-capacity institutional context can have cross-cutting relevance and explanatory power for how norms travel and take root in multidirectional processes within different and/or larger social and institutional contexts, starting with the local government communities of other countries with low local institutional capacity and legal autonomy. This chapter is based on empirical field research conducted in Turkey between November 2018 and February 2019 as part of the Cities of Refuge Project.93 The research was guided by the main research question of Cities of Refuge, namely the relevance of human rights in how local governments (in Turkey, Switzerland, Italy, Greece, the Netherlands, Germany, and transnationally) receive and integrate refugees. In addition, a useful concept researched was local governments’ engagement with human rights and/or refugee policy.94 The desk research consisted of analysing literature on the subject, information on the websites of municipalities and external reports on the work of municipalities for refugees. The field research included participant observation95 and nineteen interviews. These interviews were conducted with officials from eight municipalities, three city networks, three NGOs and two international organisations, and with two academics. The interviewees were selected using snowball and theoretical sampling,96 starting with local governments 88 Ibid., 89 Ibid.,

p. 169. pp. 167–169.

90 Ibid. 91 Ibid.,

pp. 182–183. p. 153. 93 The Cities of Refuge Project is funded by the VICI grant of the Netherlands Scientific Organisation (NWO). https://www.citiesofrefuge.eu/. 94 Durmu¸s 2020. 95 Migration and Integration Symposium, April 2018, Istanbul; International Human Rights Cities Conference, November 2018, Istanbul; Association of Municipalities, Sultanbeyli; Zeytinburnu AKDEM; Ankara Refugee Vocational Training Centre; Kecioren Migration Service Centre (OneStop-Shop). 96 Charmaz 2006, p. 96. 92 Ibid.,

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participating in the Human Rights Cities project and local governments that had received recognition in the media or among other stakeholders in the field for their proactive engagement with refugee policy. Of the selected governments, three had a proactive approach to the implementation of refugee policy, two were selected as Human Rights Cities that were not engaged in refugee policies, and three were proactively engaged in policies related to human rights in general and to refugees in particular. To protect their privacy, the names of interviewees are anonymised in this chapter. The names of municipalities are provided, unless the participants requested to remain anonymous or if anonymisation is required for safety reasons. The data collected in Turkey was analytically complemented by the author’s research in the transnational field, consisting of three interviews97 and participant observation in several conferences.98 During participant observation, field notes were taken, memos were drafted as part of the reflection on findings, and the interviews were coded using NVivo. The four factors below and the concept they collectively illustrate—the crosspollination and taking root of a new norm regarding local governments and their role in realising the rights of refugees—arose as theoretical categories and concepts in this iterative process of data analysis (coding), additional data collection (theoretical sampling) and theoretical reflection.

6.5 Factors Facilitating the Cross-Pollination and Taking Root of Human Rights as a Norm in Local Governance 6.5.1 Institutional Capacity in Local Governments Against the backdrop of a centralised governance regime and legal ambiguity, capacity is one of the most important factors indicating whether a local government is likely to engage in refugee policy. Within this framework, capacity can be defined by finances, institutional structure (i.e. departments and branches), quantity and quality of personnel, the availability of data, and the level of institutionalisation. In this context, institutionalisation represents the organisational professionalism and the capacity for—and practice of—medium and long term, systematic, accountable, assessable decision-making.

97 With

officials from two municipalities, Gwangju and Sao Paolo, and one official of UCLG. Metropolis Conference, The Hague; 2018 Human Rights Cities Workshop, Graz; 2018 World Human Rights Cities Forum, Gwangju; 2018 Cities for Rights Conference, Barcelona; 2018 Fundamental Rights Forum, Vienna. 98 2017

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Budget

The budgets of Turkish municipalities consist of income from the central government (determined on the basis of population size and an urban development score), and direct income of the local government from local taxes and its business transactions.99 While the budget of Istanbul Metropolitan Municipality competes with that of some European countries, less populated, less developed semi-urban or rural municipalities will be dealing with far smaller numbers.100 The budget calculated and assigned by the central government only takes into account the number of Turkish nationals and not the number foreigners (or refugees).101 This is a serious problem and creates inequalities between local governments and their workload, combined with the consequences of the lack of a national dispersal system allocating refugees to particular localities, disproportionate refugee populations between localities, and different levels of access to resources. One blatant example of this is Kilis, which is both a province and a municipality on the southern border of Turkey. Over the past three years, Kilis has been hosting around as many refugees as registered Turkish residents. As a result, the beneficiaries of the municipality’s services have doubled while the budget has remained the same.102 Consequently, while local governments in metropolitan areas such as Ankara and Istanbul can ‘afford’ to create employment, education and social inclusion policies to facilitate refugee integration, municipalities such as Kilis are struggling to provide the most basic municipal services, such as clean tap water and waste and sewage management.103 Although the Turkish government has received a large sum of money under the EU-Turkey agreement, the municipalities have not received any share of those funds. Furthermore, the lack of funding dedicated to services for refugees has contributed to social tension within local communities among persons who believe that the local government are spending their ‘rightful’ taxpayer money on refugees.104 The problem of funding can be managed in several ways: local governments can use funding allocated in their budgets for expenditure on ‘the elderly, sick and the poor’ which mayors, according to the Law on Municipalities, may use at their

99 Adıgüzel

and Tekgöz 2019, p. 62: ‘there seem to be basically two sources: (1) allocation by central government, shares from revenues of national taxes, financial assistance by central government, loans and grants and (2) taxes, fees and user charges, contributions to infrastructural investments, income from municipal assets, revenues from entrepreneurial activities, and other income. Certain criteria such as population, acreage number of villages in the city, rural population and city development index are taken into account for transferring allocation from budget to local governments’. 100 Anonymous Interview #3; Anonymous Interview #4. 101 Erdo˘ gan 2017; Interview Sultanbeyli; Anonymous Interview #4. 102 See number of Syrian refugees under temporary protection registered by provinces at the website of the DGMM: https://www.goc.gov.tr/gecici-koruma5638; Interview TBB. 103 Ya¸sar 2014. 104 Adıgüzel and Tekgöz 2019, p. 62.

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discretion.105 Another possibility is to continue spending from the existing municipal budget (often the budget of the social services departments) and to argue that Article 14 of the Law on Municipalities allows—or even obliges—local governments to include co-citizens living within their territory in their governance and service provision.106 This option may work legally, but can be problematic because of the increasing social tensions in the Turkish host community or simply by creating budget deficits. A third option that municipalities have resorted to is writing project applications to apply for funds from international organisations (‘IOs’) or non-governmental organisations (‘NGOs’). Among the most popular partners in such projects are the EU, UNHCR, IOM, UNICEF, Save the Children, GIZ (the German Society for International Cooperation) which provide funding, a normative framework, a human rights-oriented set of goals and indicators, as well as, at times, personnel.107 This collaboration will be further developed in Sect. 6.5.3 below. A final option for local governments is cooperating with local NGOs that provide services for refugees.108 Local NGOs are observed to fill the gaps in the provision of services and the realisation of rights where local governments are unable or unwilling to serve refugees.109 However, this creates a circular effect, as we observe some local governments remain passive in the field of migration and human rights policy-making, due to a highly active civil society in their locality already providing crucial services.110 A highly creative local government, Sultanbeyli, has circumvented funding problems by setting up an NGO and applying for funding as an NGO to provide services for refugees in the locality.111 This way, Sultanbeyli can circumvent both the discomfort of foreign institutions concerning directly funding Turkish public bodies, and the discomfort of the local Turkish population in seeing their local government use municipal funds for refugees.112

6.5.1.2

Personnel

A prevalent reference in relation to capacity that emerged in the interviews was the importance of personnel. While the expertise of personnel seemed to be the most important issue for the interviewees,113 other key issues concerned the number

105 Law

on Municipalities, supra note 35; Erdo˘gan 2017, pp. 40–42. Sect. 6.2 above for details. 107 Interviews Anonymous #1, Zeytinburnu, Maltepe, Sultanbeyli, Ba˘ gcılar, MBB, TBB, Keçiören, ASAM, IOM. 108 Anonymous Interview #1; Interview Keçiören; Interview ASAM. 109 Field Notes #3. Anonymous Interview #1, Interview Keçiören, Interview ASAM. 110 Interview ASAM, Interview Keçiören. 111 Interview Sultanbeyli. 112 Ibid. 113 Interview Maltepe, Interview TBB, Anonymous Interview #5. 106 See

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of personnel in relation to the workload, and problems arising from arbitrary topdown replacements and reallocations of personnel that disrupted the growth and the embedding (‘taking root’) of certain practices within the local government. An interview with officials from the Turkish Union of Municipalities (TBB) revealed how in a the event of a change of government following local elections, even if the new mayor had been elected from the same political party, personnel faced risks of being replaced by new staff in whom the new mayor trusted more closely, or of being relocated to a different department, outside their area of expertise.114 If the relocated or replaced official was the main (or only) person who knew ‘how to get the job done’ in that department, accumulated knowledge and expertise is lost.115 This phenomenon can be considered both a cause and a consequence of the lack of institutionalisation in Turkish municipalities. Because of the lack of institutionalisation, leaders can reshuffle personnel as they see fit. Simultaneously, institutionalisation is slowed down when this causes work in some departments to fall apart because the core personnel has left, especially if practices were not (yet) embedded into institutional tradition for future generations.116 On the other hand, the institutionalisation acquired by local governments often develops through years of experience in shorter projects, trainings, cooperation with external organisations, and through the dissemination of norms and practices through networks of actors in the field of local governance.117 This is in line with Babül’s findings within the Turkish police and judiciary.118 These processes also depend on individual agency, as individuals from different organisations who know each other and have already worked well together successfully tend to be more inclined to work together again and thus further develop local governance expertise.119 When personnel, who had in her/his person accumulated knowledge, experience, ownership and socialisation of certain norms of good local governance, is relocated to a field outside their expertise, the chances of institutionalisation are also reduced for the local government, which could have instead benefitted from the knowledge of the individuals working for it, to embed that knowledge within institutional structures.

6.5.1.3

Data

A key element of capacity and institutionalisation in the case studies seemed to be the availability of data on the inhabitants of a specific locality. As one interviewee

114 Interview

TBB.

115 Ibid. 116 Anonymous

Interview #1, Interview Si¸ ¸ sli, Fieldnotes #1, example Si¸ ¸ sli and the fate of the Department of Migration that lost its director and most of its employees. 117 Anonymous Interview #5. 118 Babül 2017. 119 See Chap. 8 of the present book for the relevance of Individual Agency in the introduction of human rights to local governance.

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put it: “You can’t do anything without data.”120 Data is needed for institutionalised governance, as it allows public bodies to prioritise and make decisions based on the needs of the unique composition of their constituency. Data allows for the creation of projects that meet the needs of the population.121 In addition, data is used to put together project proposals to apply for funds from international organisations and INGOs,122 and to justify municipal expenditure that is already controversial due to legal ambiguity. Data on refugees within the locality also enables coordination between different stakeholders providing financial or material aid to refugees, in order to avoid double or triple coverage, but also to ensure efficiency and to reach those most in need.123 Statistical data is mainly collected by the Turkish Statistical Institute (TUIK) in the centralised country.124 Local governments are not obliged to collect and keep data, nor is there a mainstream data collection method for local governments that want to go the extra mile. Local governments generally have information on the number of Turkish citizens registered as residents in their territory, and perhaps also on their age and gender,125 but not necessarily more. When it comes to migrants and refugees, the situation is even more bleak. For Syrian refugees, there is no other central allocation system to determine where they will live, except for the Dublin-esque126 requirement that they reside in the provinces in which they first registered with the local offices of the DGMM. In other provinces, Syrian refugees have no access to otherwise freely available services such as health care. As such, only the Turkish police (which falls under the jurisdiction of the central government) and the DGMM have (limited) data on where Syrian refugees reside. Turkish local governments diverge in the amount and quality of data they have, ranging from no data at all to data collected by individual social workers in the field, from data only on Turkish residents, to data only on individuals contacting the municipality with requests. While Ba˘gcılar, Zeytinburnu, Sultanbeyli,127 and the IOM-led one-stop-shop ‘Migrants’ Centre’ in Keçiören collected quantitative data from the individuals who contacted and requested support from the municipal ¸ sli facilities, Si¸ ¸ sli collected only qualitative data through field visits.128 Although Si¸ was referred to by many interviewees as an exemplary local government successful in the field human rights and migration policies, there seemed to be a lack of systematic 120 Interview

Sultanbeyli.

121 Ibid. 122 Ibid. 123 Ibid;

Interview Çankaya. Zeytinburnu, Maltepe. 125 Interview Maltepe. 126 Dublin Regulation in EU also envisages asylum seekers to be returned the first EU country of arrival. https://ec.europa.eu/home-affairs/what-we-do/policies/asylum/examination-of-applicant s_en. 127 Sultanbeyli has a ‘SUKOM’ system in which 19.000 Syrian refugees are registered. The municipality estimates that this number is more accurate and up-to-date than those held by the central government. Interview Sultanbeyli. 128 Anonymous Interview #1. 124 Interviews

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data. This appeared to be related to the lack of personnel invested in these policies (at the time of the interview), as there were initially only three, and later only one employee in the Department of Migration. Zeytinburnu supplemented the available data with large amounts of data collected through their ‘Family, Women, and Disabled Centre’, which also offered migrant integration services, with qualitative data from field visits. Sultanbeyli has developed a database called ‘SUKOM’ as part of the Refugee Association they founded, in which the disaggregated129 data on 19.000 Syrian refugees is registered. Municipal officials estimate that this data is more accurate and up-to-date than that of the central government, as refugees are often registered in the province of their first registration, even though they have already moved to a different locality.130 With highly disaggregated data on both the composition of the local population as well as on their economic, educational, financial and social situation, Sultanbeyli was able to adapt a project initially carried out in a municipality in Germany to the local reality. Sultanbeyli looked at the number and percentage of refugees in the locality of working age who were unemployed and available to participate in training internships with local small businesses two days a week.131 One interviewee stated that ‘In Turkey, not even the DGMM has a database like ours.’132 Regardless of whether they had attempted and/or succeeded in collecting satisfactory levels of data on which to base their policy, all interviewees expressed problems and frustration about having access to data which they know are held by central government authorities such as the DGMM and the police.133 This shows how much more efficient use can be made of the time, money and efforts of public institutions, with a better appreciation for cooperation and coordination between the main actors in a given area. In Sect. 6.5.3 below, this chapter will discuss the importance of cooperation and coordination for local governments and the importance of local governments in collaborations.

6.5.1.4

Project-Based Governance: An Indicator of Low Institutionalisation?

An unexpected finding of the field research was the ubiquitous reference to the word ‘project’. While Cities of Refuge colleagues who conducted research in countries such as Italy and Netherlands investigated ‘policy’, interviewees in Turkey repeatedly referred to ‘projects’ as means of local government engagement for refugees. This 129 Information on the individuals includes education level, age, gender, employment status, whether

they receive financial support from an institution. Interview Sultanbeyli. Sultanbeyli. 131 Ibid. 132 Ibid. 133 Interviews Zeytinburnu, Sultanbeyli, Maltepe; Anonymous Interview #1. 130 Interview

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finding held similarities with observations from other countries, such as Greece, and was thus arguably grounded in similar reasons such as: a centralised governance regime, lack of clear competences and allocated funds for local governments in relation to migration, and the ubiquitous presence of international organisations and INGOs in the field due to these countries being considered ‘frontline’ or ‘hot-spot’ countries in terms of hosting refugees.134 Project-based governance, which appears to be very common in the Turkish context, refers to most local governments opting for short-term projects rather than long-term institutionalised policies. Most proactive municipalities develop projects themselves targeting refugees on their own and apply for external funding, or participate in projects designed by external actors such as the UNHCR, the IOM, and local and international NGOs such as Yereliz,135 the Raoul Wallenberg Institute,136 Save the Children,137 and the German Development Fund (‘GIZ’).138 Closely linked to the ‘Cooperation and Coordination’ factor that will be discussed in the next section, many local governments both benefit from cooperation with—and are valuable partners for—other important (non-State) stakeholders in the field. Even when there is no particular framework for a ‘project’, a practice by local governments seeking to improve the human rights of refugees often develops spontaneously and without reference to a policy of strategic planning and budgeting.139 There are many examples of project-based governance. For instance, the Ankara Metropolitan Municipality carried out140 a project in cooperation with the UNHCR that consisted of the construction of a large facility in the outskirts of Ankara that would serve as a comprehensive vocational training centre offering integrated language courses, psychological support, and day care.141 In a collaboration between municipalities and international organisations, ‘one-stop-shops’ for the support of migrants were created in the municipalities of Adana, Keçiören and Sanlıurfa, ¸ together with the IOM. Run with the help of both IOM funding and personnel hired by IOM, these one-stop-shops located inside municipal facilities serve as a ‘first responders’ rather than a service provider for all needs. When migrants (including refugees) register with the one-stop-shop, they are guided through a registration process that collects data on their needs and wider situation. They are then forwarded to specialists in education, employment, psychological or legal support, who guide the migrant in the larger system of actors and stakeholders and assist them in resolving their problems. The project aims to serve as a learning and transition experience for local 134 OECD

2018, p. 138. Zeytinburnu, Anonymous Interview #5. 136 Interview Maltepe, Zeytinburnu; Anonymous Interview #5. 137 Interview Zeytinburnu. 138 Interview Maltepe. 139 Interview Zeytinburnu. 140 The current situation on this project is not known, as the municipality changed (political) hands in the last local elections, and it is not known whether the previously nationalist new Mayor has permitted continuation of the project. 141 Interview ABB and Participant Observation in the facilities. 135 Interview

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governments to adapt to providing basic human rights-related services to refugees. Sultanbeyli’s ‘Association for Refugees’ is an NGO coordinated by the municipality’s ‘Strategic Planning and Project Writing’ Department. Similarly, employees of Maltepe Municipality’s Strategic Planning Department were also those participating in the conferences and training sessions of the pilot project ‘Human Rights Cities’ that the municipality was part of. Looking at municipalities such as Ba˘gcılar, Sultanbeyli and Zeytinburnu that did have more institutionalised policies and facilities for refugees, we see a common trend; they evolved from earlier projects and enjoyed a Mayor and/or Vice Mayor, as well as other high-level municipal decision¸ sli, in a rare example makers who were invested in the purpose of this project.142 Si¸ where an entire department is dedicated to migration, did not seem to be able to conduct wide-ranging projects or programmes. This was mainly due to a lack of institutional stability (especially with frequent personnel changes due to political reasons) and a lack of support from higher-level decision-makers. That being said, even municipalities with more established services for refugees,143 such as longstanding community centres or the ‘Association of Refugees’, continued to implement and refer to short-term ‘projects’ which then might or might not be continued in a more institutionalised format.144 The appeal of projects and project-based governance is not difficult to understand. For most local governments, the provision of services to refugees only became part of the local government repertoire after the arrival of Syrian refugees in 2011. Local governments do not have as much experience in this field as they would in ensuring— say—local infrastructure and water systems are in place. Legal ambiguity, discussed in detail above, is another obstacle. As such, local government officials may not want to, and at times cannot, establish long-term policies for refugees as no budget has been allocated for this specific group in the five-year strategic plans and thus expenditure and institutionalised policies are not easily justified. Moreover, and more importantly, the regular income of local governments is calculated on the basis of number of Turkish nationals in the territory and often cannot be stretched far enough to cover the costs of social policies for refugees. Due both to such budgetary concerns and the lack of experience in this field, local governments opt for experimental projects that provide external funds and know-how from other actors in the field, but which can be discontinued when the project does not seem sustainable, appropriate or effective in the locality. As an important side effect, interviewees from the Union of Municipalities stated that projects often facilitated sustainable learning and improved institutionalisation within local governments. One example was a project that ‘taught’ municipalities to collect aggregated data.145 One interviewee, who now leads a project on local governments and human rights in Turkey for an international NGO, provided an 142 Interviews. 143 Zeytinburnu

Interview. Ba˘gcılar, Interview Sultanbeyli. 145 Interview TBB, about the project ISKEP and its influence in the municipality of Kars, a remote, urban locality. 144 Interview

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account based on her experience working with the Union of Municipalities and a district municipality. She explained that that the EU accession process and the decentralisation (the strengthening of local governance), which accompanied a new wave of negotiations at the start of the 2000s, provided a good basis for projects and cooperation with the foreign unions of municipalities who were eager to share their know-how on local governance.146 The interviewee also explained how in the district municipality of her previous employment, a project carried out with a UN agency and local women’s rights NGOs on gender mainstreaming, and the creation of gendersensitive policies measured against gender-sensitive benchmarks, was a crucial step in teaching the municipality key tools of institutionalised governance. Interviews with current staff from the same district municipality revealed that although they had no policies for refugees, they were very open to and familiar with the idea of drafting institutional human rights plans, conducting human rights-sensitive budgeting and measuring policy outcomes based on human rights indicators.147 This was closely linked to their previous experience in the field of gender equality.148 Such outcomes closely reflect Babül’s findings on human rights projects funded by the EU in Turkey’s police forces and judicial establishments.149 The projects described in Babül’s work also improved the capacity of institutions and introduced norms, practices and standards of human rights into the normative consciousness of individuals, institutions and governance regimes.150 Interviewees also pointed out important shortcomings of project-based governance. One of the most common problems related to projects was their lack of sustainability and resilience to change in political leadership.151 The future of the IOM’s three-year one-stop-shop projects became precarious in the run-up to the local elections of April 2019, as it was feared that new mayors and the newly appointed vice-mayors would shut the projects down due to mistrust, unfamiliarity, or simply lack of knowledge or shared values about its usefulness.152 Even before the local elections, however, the high-level leadership in Sanlıurfa ¸ municipality changed, causing the project with the IOM to falter and almost fail.153 Following this development, our interviewee from the Union of Municipalities reported that the IOM representatives approached the Union to seek their support and mediation in this process, and subsequently, the municipality of Sanlıurfa ¸ was persuaded to continue the project. This was arguably thanks to the mediation of the Union, which was considered more as an ‘insider’: a ‘national/local’ actor.154

146 Anonymous 147 Interview

Interview #5. Çankaya.

148 Ibid. 149 Babül

2017.

150 Ibid. 151 Interviews

TBB, Keçiören. TBB, IOM, Keçiören. 153 Interviews TBB, IOM. 154 Interview TBB. 152 Interviews

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6.5.2 Networks and the Dissemination of the Developing Norm that Local Governments Can/Should Improve Refugee Rights This leads us to another very important factor facilitating local governments’ engagement with migration policies aimed at improving the human rights of refugees. In line with literature on how ideas travel, are contested and become norms that socialise the behaviour of members of a community,155 this section will describe the networks through which the potential new norm, namely that local governments can and ought to work for the improvement of refugee rights, is disseminated. Local governments (globally) have been characterised as part of a ‘norm-generating community’ developing the norms on ‘human rights in the city’.156 In the Turkish context, ideas, practices and discourses on the role of local governments in improving the realisation of refugee rights have been observed to be travelling amongst actors who are institutionally placed in local governments, local NGOs, foreign NGOs, international organisations, city networks, and academics working closely with practitioners in the field. As such, norms of ‘good governance’ and ‘human rights duties’ concerning local refugee policies are contestants within the ‘battleground of ideas’157 that Risse and Sikkink described, struggling for increased attention and ownership among members of the community of stakeholders active in migration governance. In this battleground, this new norm travels and arrives at their municipal destinations via local ‘pathways of influence’ similar to those mapped by Brysk in the global context.158 These local ‘pathways’ include conferences, seminars, workshops targeting local governments, cooperation with international organisations and NGOs, the dissemination of norms through city networks, and non-institutionalised interpersonal connections.159 Individuals are crucial to these processes (see Chap. 8 of the present book on the role of ‘individual agency’), including Merry’s ‘people in the middle’, who speak both the language of the local and the transnational.160 All actors collectively participating in this processes can be considered to constitute a ‘norm-generating community’.161 This general process can be referred to, more visually, as cross-pollination. An example of non-institutionalised cross-pollination can be found in an anecdote by an interviewee from Zeytinburnu about how the current Mayor of Gaziantep— Fatma Sahin—once ¸ visited the community centre of Zeytinburnu in her previous role as national Minister of Family and Social Policies.162 The ‘Centre for Supporting the Family, Women and the Disabled (AKDEM)’ of the municipality of Zeytinburnu 155 Risse

and Sikkink 1999; Berman 2007; Koh 1996; Levit 2007; Brysk 2019; Durmu¸s 2020. 2020. 157 Risse and Sikkink 1999, p. 7. 158 Brysk 2019. 159 See again Sect. 8.5.3 of Chap. 8 in the present book. 160 Merry 2006. 161 Berman 2007. 162 Interview Zeytinburnu. 156 Durmu¸s

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was unique in its kind at the time.163 The interviewee stated that Fatma Sahin ¸ was so impressed by the centre that in her later years as Mayor for Gaziantep, she founded the ‘Gaziantep Centre for the Support of the Family (GADEM)’. The activities of these community centres in Gaziantep expanded and continued primarily through GADEM and through other similarly structured centres aimed at integrating refugee beneficiaries into municipal social services.164 The Municipality of Gaziantep went on later to become one of the most celebrated and widely publicised ‘best practice’ examples internationally, in the context of local refugee reception and integration. Following these developments, Fatma Sahin ¸ was invited to deliver a number of speeches at the UN in Geneva.165 Zeytinburnu’s AKDEM also has a ‘Department of Integration to the City’, which provides guidance, registration, language courses, and mainstreamed access for refugees (including undocumented ones) to the municipality’s social services provided in the AKDEM centre.166 Slightly more institutionalised pathways of cross-pollination can be city networks, projects, trainings and conferences. Conferences at the international level, such as the World Human Rights Cities Forum, and the UCLG World Congress, both enjoying wide participation from local governments around the world, can act as ‘hives’ for the dissemination of developing norms on ‘good local governance’.167 During one of the conferences observed through participant observation in Turkey, the International Migration and Integration Symposium (April 2018), the municipalities of Ba˘gcılar and Gaziantep extensively presented their local migration policy, accompanied by researchers, a representative of the Marmara Municipalities’ Union (with a presentation of the Migration Working Group of the Union) and even the Director General for Migration Management and the Deputy Minister of Interior Affairs. Speakers shared valuable experiences, knowledge and insight into cutting-edge (local) migration policies. Among the audience were many civil servants of other local governments, such as those from Si¸ ¸ sli, another municipality known in the field as being ‘active’168 in the field of migration policy. As such, it can be said that municipalities participating in such conferences may be already invested in—and convinced by—the relevance of the newly developing norm. However, previously convinced municipalities are not the only ones who will be exposed to such newly developing norms. Another conference that was attended, the International Human Rights Cities Conference (November 2018, Istanbul), was part of the Human Rights Cities Turkey pilot project developed by Research Worldwide Istanbul (RWI) and the Union of Municipalities of the Turkic World (TDBB)

163 Interview

Zeytinburnu. in Metropolis 2017 Conference by Sarah Kristen Biehl on her field research in

164 Presentation

Gaziantep. 165 Anonymous

Interview #4. https://www.gantep.bel.tr/haber/fatma-sahin-bmde-suriyelilerin-sor unlarini-anlatti-3472.html. 166 Interview Zeytinburnu. 167 Durmu¸s 2020. 168 Interview MBB; Interview Yereliz #1; Interview Yereliz #2.

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with eight municipalities of different political colours.169 Turkish and international researchers working on ‘human rights in the city’ were invited to speak, alongside the local NGO ‘Yereliz’ (translated ‘We are Local’), whose objective is the ‘localisation of civil society and the civilisation of local government’.170 The conference also had features of a teaching conference, given that local level human rights indicators—developed by a team of academics, the project coordinator and municipal officials—were introduced to municipalities participating in the pilot project, with the aim of receiving feedback from them.171 The collaborating academics were also recently invited by the RWI to a workshop in Graz, where the municipality of Graz (a human rights city) and experts from academia and the Swedish Association of Local Governments (SALAR) shared comprehensive information on the operationalisation of the human rights city.172 The coordinator of the Turkish human rights cities project and one of the project’s Turkish academic advisors also participated and presented at the World Human Rights Cities Forum in Gwangju (2018), where they could gain deeper insights from other human rights cities such as Barcelona, Vienna, and Gwangju.173 This process demonstrates the impressively interconnected and complex nature of the dissemination of developing norms amongst actors from a variety of institutions and geographic locations. As such, the idea of the ‘human rights city’ can certainly be considered a ‘coalition magnet’ in Béland and Cox’s terms, both transnationally and in the Turkish context, mobilising different stakeholders around a common ideal.174 The Human Rights Cities project in Turkey foresees all participating municipalities to adopt, through an act of their municipal legislative, a human rights city declaration in which principles such as equality and non-discrimination are recognised and committed to.175 In addition, municipalities choose priority target groups from a list of five vulnerable groups, including refugees.176 It can therefore be reasonably argued that the project was an ‘arena’ and a collection of processes in which the notion that refugees are legitimate beneficiaries of municipal services—just like other vulnerable right-holding group—and that their rights also implicate local government competences or obligations, was advocated, contested and in some cases internalised (also referred to as socialization).

169 Participant

Observation in the International Human Rights Cities Conference, November 2018, Istanbul. 170 Yereliz Twitter Description: https://twitter.com/yerelizdernegi (own translation). 171 Participant Observation in the International Human Rights Cities Conference, November 2018, Istanbul. 172 Participant observation in the Workshop in Graz, March 2018. 173 Participant observation in the WHRCF, October 2018. 174 Béland and Cox 2016. 175 Participant Observation in the International Human Rights Cities Conference, November 2018, Istanbul. 176 Ibid.

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6.5.3 Coordination and Cooperation Between Local Governments and Other Actors The third factor that emerged from the grounded data as an element facilitating the development by local governments of policies that improve the rights of refugees, was the availability and quality of cooperation and coordination with other actors.177 This element is intimately intertwined with other factors discussed above. For instance, the human rights cities project discussed earlier should also be considered as an example of cooperation. However, these two factors, while having overlapping qualities, cannot be equated with each other. While dissemination can take place in hierarchical structures and one-way interactions, cooperation requires a commitment by two of more parties to collectively seek to address common objectives and concerns. International organisations (‘IOs’) such as the UNHCR and IOM have the interests of refugees in mind and seek to realise their goals through individual as well as cooperative efforts. While cooperation with central governments is important and necessary, it may not meet all the needs and objectives that these IOs have in the field.178 For instance, where national policy-making and civil servant training at the DGMM is the objective, cooperation with the central government will be crucial for an IO.179 However, for the objective of urgently improving the rights of refugees on the ground, IOs often prefer to work with local governments, as around 98.2% of Syrian refugees in Turkey reside outside reception centres in urban areas.180 Local governments also cooperate with and through regional, national and international city networks; with academics; with local and foreign NGOs (at times sharing service provision tasks or applying for funding together) and lastly with members of their local community. For example, a project jointly developed by Ankara Metropolitan Municipality and the UNHCR enabled the of a refugee vocational training centre.181 The municipality, in accordance with its role as facilitator/coordinator within their locality,182 consulted with various actors in the industrial and entrepreneurial sectors, to identify the employment needs in the locality.183 Based on this information, and with funding and the sharing of expertise by the UNHCR, the municipality identified a location for the centre, built the facilities, and started providing two stages of trainings for selected refugees who had applied to follow the certificated course.184 The first stage involves language education, and a second stage vocational training in fields where especially the industrial sectors of 177 See

‘Coordination of Human Rights’ in Durmu¸s 2020. 2018; UNGA 2017. 179 Interview IOM. 180 Erdo˘ gan 2017; Interview IOM. 181 Interview ABB. 182 Durmu¸s 2020. 183 Ibid. 184 Ibid. Participant observation at the facility and focus group with the employees of the facility, January 2019. 178 Thouez

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Ankara needed qualified personnel.185 Having acquired commitments from companies and entrepreneurs active in Ankara on employing refugees who had received certification from the municipality, the municipality set out to train refugees (up to 600 at a time), accompanied by services that were deemed necessary in course of the project, such as free day care, psychological support, and social services.186 The facilities employ many sociologists, teachers, social workers, lawyers and translators, including those with a refugee background.187 The examples given in Sect. 6.5.1.4 above, including the ‘one-stop-shops’ run by IOM in cooperation with the municipalities of Keçiören, Sanlıurfa ¸ and Adana, are also illustrative of valuable access to cooperation, which can change the municipality’s status on service provision with regard to refugees from non-existent to genuine commitment and experience.188 There are, of course, some risks and shortcomings. First, for many municipalities such cooperation seems not only helpful, but also essential. Budgetary constraints and legal ambiguity push local governments to cooperate with external actors through projects that are both temporary and externally funded. While such projects can play as essential role in the transfer of practical and technical knowledge as well as norms relating to the practice,189 they can also showcase a dependence of the municipality on external funding and know-how. The lacuna in capacity and institutionalisation is attempted to be filled by such cooperation.190 This is not necessarily a bleak predicament, but an unsustainable reality that legislators, human rights researchers and policymakers need to be aware of. This leads us to the second concern that emerges from the reliance on cooperation: the inequalities in access to such cooperation. When interviewing persons in city networks, IOs and NGOs that develop and coordinate projects with local governments, it became clear that previous engagement of the local government was a factor for these individuals to be inclined to choose to contact—and work with—such local governments again.191 Such previous engagement—more specifically, proactive engagement in fields such as migration and human rights on a scale beyond the national average amongst local governments was assumed to be an indicator for likelihood of success, including sustainable results from these short-term projects that always have an explicit or implicit objective of ‘capacity-building’ in them.192 In one instance this issue was acknowledged and sought to be addressed. According to interviewees from the Turkish Union of Municipalities, when the IOM contacted them about the ‘one-stop-shops’ that they intended to develop with local governments, the Union representatives encouraged the IOM official to carry out

185 Interview

ABB; ibid., Participant Observation at facility and focus group with employees.

186 Ibid. 187 Ibid. 188 Interview

IOM; Interview TBB; Interview Keçiören. 2017. 190 Interview Sultanbeyli. 191 Anonymous Interview #5; Interview IOM; Interview TBB; Interview MBB. 192 Anonymous Interview #5. 189 Babül

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the project with Sanlıurfa ¸ Municipality. This was a municipality that had not previously committed itself to providing services to refugees or to other institutionalised human rights projects. However, there was a great need for such policies, due— among others—to a large refugee population.193 The Union interviewees indicated that the IOM official was somewhat surprised by this unusual request: other candidate municipalities were all amongst those who had shown some initiative or institutional ‘project experience’.194 Ultimately, however, IOM officials opted to follow this advice and carry out the project with Sanlıurfa ¸ Municipality, in addition to the Adana Metropolitan and Keçiören Municipalities.195 Interviewees from both IOM and the Union later indicated that they had experienced difficulties in the process with Sanlıurfa, ¸ stating that the context was ‘very different’, implying that there were cultural differences and a greater dependence on personal relationships rather than institutionalisation.196 This experience shows the validity of some of the concerns of external actors initiating projects for and with local governments.

6.5.4 Political Will As a final factor, as conceptually vague as it is, political will remains an important variable. Political will does not exist in a lacuna. An actor’s interests and identities, as Koh,197 Brysk,198 as well as Risse and Sikkink199 describe, are developed and constructed in a process that is strongly influenced by the above-mentioned factors of cross-pollination, in particular the dissemination of norms and cooperation with external actors. However, this section discusses ‘political will’, mainly as an attempt to explain why certain highly developed, institutionalised and well-connected local governments with resources will not engage in policies regarding refugees. When we look at what unites such municipalities that are otherwise very proactive (for instance, in the areas of gender equality, children’s rights and the environment), we can see that there is a political concern at the leadership level that holds the personnel back from developing policies.200 This political struggle may result from the perception of the mayor and other leaders that the ‘refugee issue’ is the problem of Erdo˘gan and the AKP, and that they (who belong to the main opposition party) should not have to deal with it.201 However, this political struggle can also take place 193 Interview

TBB.

194 Ibid. 195 Interview

TBB; Interview IOM. TBB; Interview IOM; Interview Murat Erdo˘gan. 197 Koh 1996. 198 Brysk 2019. 199 Risse and Sikkink 1999. 200 Interview Çankaya. 201 See for instance these (Turkish language) news items from the website of the municipality of ˙Izmir including speeches of the former ˙Izmir Mayor Aziz Kocao˘glu following visits of European 196 Interview

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between different factions within the same political party that have a power struggle over decisions and departments within the same local government.202 In one district municipality, the office working on migration was reduced to a single member of staff, with the leader of the department relocated to a different position.203 Conflicts among the current Mayor and the previous one as well as employees loyal to each of them—lead to the opening, closing and reopening of departments, to personnel being shuffled around and to the reallocation of funds.204 The Migration Department did not seem to receive consistent support or attention from the mayor(s), vice-mayors, or other strategic partners, such as colleagues from the planning and project-writing departments. Finally, certain localities have constituencies who are particularly opposed to the presence of—and service provision—to refugees in the country, which might result in any refugee policies of that local government to be political suicide.205 In some such cases, municipalities prefer to offer urgent and essential services in secrecy.206 Some mayors and municipal governments also struggle because they have been elected within a party that is very nationalistic and whose voter-base is openly opposed to refugees.207 In such cases, even though municipalities may have humanitarian or pragmatic rationales for providing services, this will be highly risky and is better conducted in secrecy.208

6.6 Conclusion Human rights have been widely criticised for their perceived lack of effectiveness. One of the most relevant of such criticisms is related to the failure of human rights to protect those who have lost the protection of their States (such as refugees). Another criticism is the worldwide disparity between the legal obligations committed to by States and the disheartening human rights violations on the ground. This chapter has discussed how research on human rights effectiveness has been shifting away from a legalist perspective foregrounding the importance of legal incorporation of international legal commitments into domestic law and an assessment of effectiveness based on formal criteria—such as treaty ratification—to more empirical, socio-legal ˙ diplomats, indicating that he sees his role as the Mayor of Izmir (which is on the Aegean Coast, close to Greece) as assisting in holding back the refugees who want to cross to Greece. https://www. izmir.bel.tr/HaberArsivi/16084/ara/tr https://www.izmir.bel.tr/HaberDetay/17155/tr. 202 Anonymous Interview #1. 203 Ibid. 204 Ibid. 205 Amongst these municipalities are particularly those who have been elected from the nationalist parties MHP or ˙Iyi Parti. 206 Fieldnotes #2. 207 Interview Çankaya. 208 Fieldnotes #2; also see Oomen et al. forthcoming, example of Gazipa¸sa.

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assessments. This chapter advocates for this latter sociological study of the effectiveness of human rights, by following the cross-pollination and taking root of human rights, that is to say, their development, travel, contestation, and institutionalisation as norms within communities of actors. Together, the cross-pollination and taking root of human rights can bring about an ownership of human rights in communities and actors who may be—legally speaking—already bound by them. Such a study is particularly useful in contexts of low institutionalisation where legal obligations for State and sub-State actors may not be clearly fleshed out, where divisions of labour are unclear, and where human rights needs and demands on the ground are high and urgent. In such contexts, demands of international human rights law may not resonate as much as hard practical needs on the ground and the new norms (consisting of ideas, practices and discourses) claiming to address these practical realities, disseminating and diffusing within the community of actors. This chapter presented the findings of research grounded in a context of high human rights demands on the ground, legal ambiguity for local governments on their competences and obligations concerning these demands, and insufficient and unequal levels of institutionalisation and access to external resources. Field research was conducted through interviews with, and participant observation amongst, Turkish local governments and other actors working with local governments on the development of policies that further the human rights realisation of refugees. An extreme divergence was found in how much—if at all—local governments engage with policies related to refugees. This was arguably due, at least in part, to the large discretionary space that was created by the legal ambiguity regarding their obligations and competences. Nonetheless, four factors were identified that facilitate the engagement of local governments with policies furthering the human rights of refugees: (1) the capacity and level of institutionalisation of the local government; (2) access to networks and dissemination of the norm that local governments can and ought to create policies that aim to improve the rights of refugees; (3) access to cooperation and coordination with external actors; and (4) political will. The first factors of capacity and institutionalisation included the following elements: budget, personnel, data and the prevalence of project-based governance as a sign that indicates potential shortcomings in institutionalised long-term policy development. Together, these factors illustrate the cross-pollination and taking root of human rights amongst public actors not previously familiarised with them. While factors (2) and (3) on dissemination and cooperation may focus largely on cross-pollination, factor (1) on capacity and institutionalisation corresponds to norms taking roots engrained in institutional culture and practice. Factor (4) seeks to explain external, non-generalisable factors that prevent local governments from engaging in policies that improve the rights of refugees for political reasons.

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These findings both reaffirm the important hands-on role of local governments in addressing human rights challenges on the ground, but also warn against tales of ‘The X City’209 as the ultimate all-powerful actor that is always best suited to realise and localise human rights. For local governments to reach their full potential in localising and realising human rights on the ground, they need to enjoy some basic capacities and opportunities that will allow them to become players in the field. Such basic factors may make the difference between a proactive and inactive municipality, especially in countries where local governments do not enjoy clear, well-established and wide competences and autonomy. As such, this research also encourages the scholarship on local governments and human rights to more proactively consider and study contexts in developing countries, where the needs are higher, and resources are lower than the “usual suspects”210 of localisation literature: European and American cities. These findings are also relevant to developments at the international level regarding the documentation and codification of the formal legal role of local governments in the protection and promotion of human rights. International organisations, as well as large-scale city networks that claim democratic representation of local governments worldwide, must reach out to less privileged local governments and consider less-institutionalised contexts when making (quasi-)legal pronouncements on local governments categorically. These findings complement previous research on how human rights crosspollinate through ‘pathways of influence’211 and take root through socialisation,212 localisation213 and acculturation.214 The factors that that have emerged as theoretical categories of this grounded theorisation may be relevant and applicable to other institutional contexts (local, national and international; public or private) and processes of cross-pollination and taking root of norms therein. Recommendations for further research include normativisation215 (the development of ideas into norms) in specific contexts, with a particular focus on the delineation of the norm in the development phase. The questions ‘When can a practice be understood and classified as a “human rights practice” if there is no explicit reference to human rights?’ and ‘What reasons behind a behaviour or practice can be considered as “human rights norms”?’ were ongoing and unresolved questions in the research underlying this chapter, relating to and answerable only by tackling broader questions about the philosophical as well as empirical ‘essence’ of human rights. 209 X

being an impressive, catchy adjective, see for instance ‘Shining Cities on the Hill?’ by Aust 2015; ‘Frontier Cities’ Oomen and Baumgärtel 2018; ‘Accelerating Cities’ Oomen et al. forthcoming. 210 This is the term used in our discussions within the project Cities of Refuge, introduced in particular by my colleague Sara Miellet. 211 Risse and Sikkink 1999; Brysk 2019. 212 Risse and Sikkink 1999; Risse et al. 1999; Simmons 2009; Risse et al. 2013; Haglund and Stryker 2015. 213 De Feyter et al. 2011; Merry 2006; Oomen et al. 2016. 214 Goodman and Jinks 2004. 215 Onuf 1985.

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If we leave aside wider questions of ‘what human rights is’ for the time being, the findings from Turkish local governments show that casuistic legal pronouncements on human rights law and the competences of local governments are not a sine qua non condition for local governments to engage with policies aimed at improving the human rights of refugees. This local engagement with activities in new territories set a standard and create expectations for their own future activities as well as for other local governments, effectively expanding norms on what local governments ought to do.216 One expert interviewee explained this ‘development of the law on local governments’ by describing that when one municipality takes a step, if there is no reaction, they continue, allowing the practice to potentially spread.217 If the Sayı¸stay (Court of Cassation) or other domestic courts seek to restrict or penalise them for this practice, they might fight and stand their ground legally and discursively.218 If they challenge the decision and win, or if no one opposes the new practice, this is how the law on local governments (particularly the norms on what local governments can and ought to do) is developed.219 In sum, for isolated instances of (human rights) engagement to become new norms, ideas, practices and discourses constituting the norms (such as their content, usefulness, legitimacy or necessity) have to cross-pollinate and take root. Crosspollination effectively relies on the dissemination, contestation and development of norms through institutionalised and non-institutionalised networks. Taking root will require institutionalisation both in terms of its technical elements—budget, personnel, long-term policies as opposed to short-term projects, data—and in terms of creating an institutional culture within the norm-generating community, one that socialises (new) members into accepting the norm as their own. In conclusion, for Turkish local governments, the establishment of policies that improve the human rights of refugees on the ground constitutes a norm in development. The fact that a significant proportion of interviewees indicated that they consider the local government as an actor responsible for human rights, while some interviewees do not (yet) share this opinion, supports this observation.220 It remains to be seen to what extent this norm will develop into a fully-fleshed rule in the national context, further similar norms that are proposed and in contestation in the international context, and perhaps even find its way into national and/or international law.221

216 Interview

Yereliz #1.

217 Ibid. 218 Ibid. 219 Ibid. 220 Interviews Yereliz #1, Yereliz #2, Si¸ ¸ sli, Anonymous #5, MBB, TBB, Sultanbeyli, Maltepe, Zeytinburnu, Çankaya, Anonymous #1, Keçiören, ABB. 221 The international development of the norm ‘human rights in the city’ is described in for instance Durmu¸s 2020.

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Oomen B, Baumgärtel M, Miellet S, Durmu¸s E, Sabchev T (forthcoming) Strategies of Divergence: Local Authorities, Law and Discretionary Spaces in Migration Governance. Journal of Refugee Studies Oomen B, Davis M F, Grigolo M (eds) (2016) Global Urban Justice: The Rise of Human Rights Cities. CUP Oomen B, Durmu¸s E (2019) Cities and plural understandings of human rights: agents, actors, arenas. Journal of Legal Pluralism and Unofficial Law, Vol.51, Issue 2, pp 141–150 Posner E A (2014) The Twilight of Human Rights Law. OUP Risse T, Ropp S C, Sikkink K (1999) The power of human rights: International norms and domestic change. Cambridge University Press, Cambridge Risse T, Ropp S C, Sikkink K (2013) The persistent power of human rights: From commitment to compliance. Cambridge University Press, Cambridge Risse T, Sikkink K (1999) The socialization of international human rights norms into domestic practices: Introduction. In: Risse T, Ropp SC, Sikkink K (eds) The power of human rights: International norms and domestic change. Cambridge University Press, Cambridge, pp 1–38 Sassen S (2001) The Global City, 2nd edn. Princeton University Press Simmons B A (2009) Mobilizing for Human Rights: International Law in Domestic Politics. Cambridge University Press, Cambridge Soohoo C, Albrisa C, Davis MF (2008) Bringing Human Rights Home: A History of Human Rights in the United States. University of Pennsylvania, Philadelphia Taki H (2013) Effectiveness. Max Planck Encyclopedia of International Law (last updated February 2013) Thouez C (2018) Strengthening migration governance: the UN as ‘wingman’. Journal of Ethnic and Migration Studies, https://doi.org/10.1080/1369183X.2018.1441604 UNGA (United Nations General Assembly) (2017) Report of the Special Representative of the Secretary-General on Migration, 3 February 2017, U.N. Doc. A/71/728, https://undocs.org/A/ 71/728 Ya¸sar M R (2014) Kilis’te Siginmaci Algisi: Toplumsal Otizm ve Otekilestirme Surecinin ilk Gorunumleri. Kilis 7 Aralik Universitesi Matbaasi Zapata-Barrero R, Caponio T, Scholten P (2017) Theorizing the ‘local turn’ in a multi-level governance framework of analysis: A case study in immigrant policies. International Review of Administrative Studies, pp 1–6

Elif Durmu¸s is a Ph.D. researcher in the project ‘Cities of Refuge’. She is responsible for local field research in Turkish and Swiss municipalities as well as the transnational field of cities’ engagement with international (human rights) law. Following a Bachelor in Law at Ankara University (Turkey), she obtained an advanced LLM degree (cum laude) in Public International Law at Leiden University, focusing on the role of non-State actors in international law. She has been an Assistant Editor for the Leiden Journal of International Law and an Executive Editor of the Utrecht Journal of International and European Law. She is a founding editor of the blog Human Rights Here of the Netherlands Network of Human Rights Research and a part-time lecturer at University College Roosevelt, Middelburg. Her current research interests are cities’ engagement with human rights, the generation, contestation and dissemination of (human rights) norms, constitutional competences of local governments around the world, and the localisation of human rights.

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Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made. The images or other third party material in this chapter are included in the chapter’s Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter’s Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

Part III

Human Rights at the Individual Level: Individual Experiences and Key Actors

Chapter 7

Child Participation as the Holy Grail: Effective and Meaningful Participation in Judicial Proceedings? Stephanie E. Rap and Katrien F. M. Klep

Contents 7.1 7.2 7.3 7.4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . International Children’s Rights: The Right to Be Heard . . . . . . . . . . . . . . . . . . . . . . . . . . . Critical Analysis of the Right to Be Heard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Two Case Studies from The Netherlands: Children in Migration and Children in Youth Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.1 Participation of Children in Asylum Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.2 Participation of Children Involved in Voluntary Youth Care . . . . . . . . . . . . . . . . . 7.5 Final Reflections: Participation at the Crossroads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

162 164 166 168 168 171 174 176

Abstract The aim of this contribution is to reflect on how to ensure the effective participation of children in judicial procedures as a fundamental right of the child. The child’s right to participation has received much scholarly attention. Child participation has been hailed as a legal recognition of the fact that children are bearers of rights, and therefore have the right to take part in important decisions that shape their lives. However, the principle of child participation has also been scrutinised for being ineffective and void of real meaning. This chapter analyses the participation of children in two legal systems in the Netherlands: the immigration system and the youth care system. It describes the opportunities for children to participate in the decision-making that takes place in these two systems. The interests of children may be the same as their parents’ interests, or differ from them. The state may take a decision that runs counter to what children and parents perceive to be in their interest. At the heart of these tensions lies the issue of child participation, and the related concepts of the ‘best interests’ of the child and ‘self-determination’. In this contribution it is argued that effective participation not only requires reflection upon S. E. Rap (B) · K. F. M. Klep Department of Child Law, Leiden Law School, Steenschuur 25, 2311 ES Leiden, The Netherlands e-mail: [email protected] K. F. M. Klep e-mail: [email protected] © t.m.c. asser press and the authors 2021 C. Boost et al. (eds.), Myth or Lived Reality, https://doi.org/10.1007/978-94-6265-447-1_7

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practical or technical conditions—such as the manner in which children are informed about the procedure, and whether or not they receive legal (or other appropriate assistance) from well-trained professionals and child-friendly environments—but that it also requires profound reflection upon the nature and purpose of laws, policies and practices: do these allow for the effective and meaningful participation of children? Keywords Children’s rights · Child participation · Right to be heard · Best interests · Immigration law · Youth care

7.1 Introduction The position of the child1 in judicial procedures is a concern that cuts across all legal fields. At the international level, the rights of the child to access justice and participate effectively in judicial procedures, to receive information, and the right to be heard, have received much scholarly attention recently.2 On the one hand, enshrining the right to participate in international law has been hailed as a fundamental step towards the empowerment of children, and underlines the fact that children are bearers of rights, as well as legal actors who have the right to take part in important decisions that shape their lives.3 On the other hand, the right to participation is critiqued for being tokenistic, of a mandatory nature, and often not adapted to the age and level of maturity of the child.4 This contribution analyses the participation of children in two different legal systems in the Netherlands: the immigration system and the youth care system. It describes the opportunities for children to participate in the decision-making that takes place in these two systems, and outlines the procedures that children are involved in. In the context of asylum procedures, the participation of children has a distinct dynamic, because children are either asylum applicants themselves or part of a family that is applying for asylum. In youth care proceedings, a similar dynamic is at play, whereby parents and children are part of the family system that is subject to state intervention in the form of youth care. Moreover, in both procedures, much is at stake for children; their interests may be the same as the interests of their parents or differ from them. The state—the immigration authorities and the decision-makers in youth care (such as local municipalities and youth care providers)—may take a decision that runs counter to the interests of the child and/or the family. At the heart of these tensions lies the issue of child participation, and the related concepts of ‘self-determination’ and the ‘best interests’ of the child. 1 In

accordance with Article 1 of the UN Convention on the Rights of the Child (CRC), children are persons below the age of 18. In this contribution, the terms children and young people are both used to refer to persons below the age of 18. 2 See for example: Lundy 2007; Thomas 2007; Tisdall et al. 2008; Donnelly and Kilkelly 2011; Parkes 2013; Rap 2016; Henaghan 2017; Couzens 2017; Daly 2018; Mol 2019; Liefaard 2019. 3 Liefaard and Sloth-Nielsen 2017. 4 Collins 2017; Lundy 2018.

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The aim of this contribution is to reflect on how to ensure effective participation of children in judicial procedures, as a fundamental right of the child. With the adoption of the United Nations Convention on the Rights of the Child (CRC),5 children have been given enforceable rights, which have made them individual rights-holders.6 The right to be heard (Article 12 CRC) is the main provision under analysis in this contribution. The UN Committee on the Rights of the Child (CRC Committee) has formulated five steps that should lead to the effective implementation of this right. Firstly, the child must be prepared to give their opinion (preparation); secondly, adults should listen to the child in a serious manner during the hearing and encourage them to give their opinion (the hearing); thirdly, it should be assessed whether the child is able to form and give their opinion (assessment of the capacity of the child); fourthly, appropriate weight must be given to the views of the child; and the extent to which the opinion of the child is taken into account should be explained to the child (feedback); and finally, the child should have the opportunity to complain or to appeal if they have not been heard or their opinion is not taken seriously (complaints, remedies and redress).7 This contribution takes these requirements for the successful implementation of the right to be heard as a point of reference, to assess how the right to participation takes shape in different judicial procedures in the Netherlands. The authors argue that effective participation not only requires reflection on practical or technical conditions—such as the way in which children are informed about the procedure, and whether or not they receive legal (or other appropriate) assistance from professionals who are trained in working with children and childfriendly environments—but that it also requires profound reflection upon the nature and complexity of laws, policies and practices: do these allow for the effective and meaningful participation of children? The analysis in this contribution is based on desk research and includes legal and academic sources. The case study on children in migration is based on current legal empirical research by the first author related to the participation of refugee and migrant children in Dutch asylum procedures.8 The case study on children in youth care is based on a literature review.9 This contribution starts with a brief overview of the right to be heard as laid down in international law and standards in Sect. 7.2, followed by a more critical approach to the notion of the right to be heard in Sect. 7.3. In Sect. 7.4 of this chapter, both case studies—concerning children in migration and children in youth care in the Netherlands—will be discussed in light of the analysis of the right to be heard. In the final reflections in Sect. 7.5, both case 5 United

Nations General Assembly, Convention on the Rights of the Child, resolution 44/25 (20 November 1989). 6 Tobin 2019. 7 UN Committee on the Rights of the Child 2009, paras 41–46. 8 This study is financed by the Netherlands Organisation for Scientific Research, grant no. 451-17007 4135, 2018–2021. 9 Klep conducts the research project: Children’s rights at the municipal level: Access to (social) justice in voluntary youth care in the Netherlands. This study is funded by the Leiden University Fund/Kroese-Duijsters Fonds.

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studies are compared, and reflections are presented on how effective participation in judicial procedures can be ensured, and how specific legal procedures shape the effectiveness of participation of children in those procedures.

7.2 International Children’s Rights: The Right to Be Heard The right to be heard, as enshrined in Article 12 of the CRC, encompasses ‘the right to express those views freely in all matters affecting the child’. This right applies to children who are capable of forming their own views, and signifies that due weight should be given to the views of the child in accordance with the age and maturity of the child (Article 12(1) CRC). The CRC Committee stated in its 2009 General Comment No. 12 on the implementation of the right to be heard that the child does not have to prove their capability to express their views.10 The CRC Committee argues that any child is able to form and communicate their views, although different communication methods may be needed (e.g. non-verbal communication).11 From a legal point of view, Article 12 CRC places a duty upon State Parties to allow children to express their views freely in all matters that affect them. Moreover, Article 12(2) CRC provides that the child should be given ‘the opportunity to be heard in any judicial and administrative proceedings affecting the child’. This assumes that the procedure is made accessible to the child and is of a child-sensitive nature.12 The right to be heard is closely connected to the right to information contained in Article 17 CRC. In order for the child to be able to give their informed views, the child should be informed about the procedures and the role that they play in it.13 Children should therefore be provided with ‘full, accessible, diversity-sensitive and age-appropriate information about their right to express their views freely’.14 This information should be given to children in a way that takes into account their age and capacities, and this requirement applies to information concerning their rights, national legislation, regulations and policies, local services, and appeals and complaint procedures.15 Moreover, the CRC Committee has recommended that hearing of the child should take place by means of dialogue in lieu of a one-sided interrogation.16

10 UN

Committee on the Rights of the Child 2009, para 20. Committee on the Rights of the Child 2009, para 21. 12 UN Committee on the Rights of the Child 2009, para 34. 13 UN Committee on the Rights of the Child 2009, paras 25 and 80. 14 UN Committee on the Rights of the Child 2009, para 134(a). 15 UN Committee on the Rights of the Child 2009, para 82. 16 UN Committee on the Rights of the Child 2009, para 43. 11 UN

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The right to be heard is also closely connected to one of the other general principles17 of the CRC: the best interests of the child principle as contained in Article 3 CRC. This provision requires that in all actions taken with respect to children, the best interests of the child should be ‘a primary consideration’. The CRC Committee is of the opinion that the best interests of the child cannot be correctly considered if the child is not heard in the case.18 Moreover, Article 3(1) ‘reinforces the functionality of [A]rticle 12, by facilitating the essential role of children in all decisions affecting their lives’.19 The relation between assessing the best interests of the child and hearing the views of a child, as implied by the CRC Committee, means that procedures should be of a child-friendly nature.20 The right to be heard is deemed a crucial part of the fundamental rights of the child. Not only is this right considered to entail the fundamental recognition of the child as a rights-holder and legal actor; it is also understood as cutting across all the rights laid down in the CRC, demonstrating the holistic nature of the Convention.21 In practice, the right to be heard has found its way into laws, policies and regulations at the domestic level. This right plays a role not only in many different legal contexts and domains of life, such as in administrative, civil and penal procedures, but also in terms of decisions taken in the context of education or medical decisions. Moreover, children are increasingly involved in public decision-making; ranging from participation in local decisions regarding playgrounds, to decisions taken at national level regarding budgeting. Child participation has become increasingly popular among public and private organisations, as well as non-governmental organisations (NGOs). Special tools and education programmes designed to ensure the participation of children have been developed.22 In terms of international conventions, the Netherlands has a monist system;23 the CRC is implemented in national legislation, policymaking and judicial decisionmaking.24 An ongoing debate exists in the Netherlands about when, at which age, and how children and youth should participate in diverse types of judicial procedures, and in public decision-making on a wide range of issues and topics.25 The case studies outlined in this contribution will focus on specific Dutch judicial procedures concerning migration and youth care. Broadly speaking, it can be said that 17 The four general principles are: the non-discrimination principle (Article 2 CRC), the best interests of the child principle (Article 3(1) CRC), the right to life and development (Article 6 CRC) and the right to be heard (Article 12 CRC). 18 Compare: UN Committee on the Rights of the Child 2009, paras 70–74, and UN Committee on the Rights of the Child 2013, paras 50–54. 19 UN Committee on the Rights of the Child 2013, para IV, B, 3; UN Committee on the Rights of the Child 2009, para 74. 20 UN Committee on the Rights of the Child 2013, para V, 2, B. 21 UN Committee on the Rights of the Child 2003, para 12. 22 See, for example, Tisdall 2017. 23 De Graaf et al. 2012. 24 Limbeek and Bruning 2014. 25 See Liefaard et al. 2019.

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‘participation’ has become a ‘buzzword’, and refers to the concept of ‘doing right by children’. However, in order to ensure ‘meaningful and effective participation’, critical questions must be asked about the meaning and desirability of using this concept, and the conditions and safeguards that must be put into place for its successful implementation in practice.

7.3 Critical Analysis of the Right to Be Heard International children’s rights scholarship has identified various strands of critique regarding the right to be heard and whether it can be implemented in an effective manner. Three important points of critique will be briefly addressed: tokenism, the dichotomy between adults and children, and self-determination. The CRC Committee states in General Comment No. 12, under the heading ‘basic requirements for the implementation of the right of the child to be heard’, that State Parties should ‘avoid tokenistic approaches, which limit children’s expression of views, or which allow children to be heard, but fail to give their views due weight’.26 Hart has defined tokenism as ‘those instances in which children are apparently given a voice, but in fact have little or no choice about the subject or the style of communicating it, and little or no opportunity to formulate their own opinions’.27 Lundy developed a model for the effective implementation of the right to be heard. She argues that dialogue between adults and children, providing feedback to children on their views, and giving due weight to their views represent important elements of participation. Lundy also notes that this dialogue should be encouraged by decisionmakers and authorities, to prevent participation from becoming tokenistic. Lundy embeds the right to be heard in four dimensions: (i) (ii) (iii) (iv)

space: children should be given the opportunity to give their view; voice: children should be facilitated to give their view; audience: children’s views should be listened to; and influence: children’s views should be appropriately acted upon.28

Lundy argues, however, that it is unacceptable to deny children the right to participate, even when the involvement of children is considered tokenistic: ‘[i]f it cannot be achieved meaningfully, then it appears to be considered legitimate to not do it at all’.29 Lundy concludes that tokenistic participation can sometimes represent a start and is better than not involving children at all.30

26 UN

Committee on the Rights of the Child 2009, para 132. 1992, p. 9. 28 Lundy 2007, pp. 932–933. 29 Lundy 2018, p. 343. 30 Lundy 2018. 27 Hart

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Tisdall points out that participation models are becoming more complex, yet they still set up a dichotomy between children and adults, ‘and thus ignore the diversity of individuals and relationships’.31 Moreover, she points out that these models tend to understand: children and young people’s participation, expressed in Article 12 CRC, as normative good, without deeply interrogating participation as a term or as a discourse, nor fully addressing Cornwall’s (2008) three questions: who is participating, in what are they participating, and for whose benefit?32

Based on her own research on Scottish family law proceedings, Tisdall affirms that case law shows a divide between children’s views deemed consistent, definite and clear, on the one hand; and those described as ambivalent or anxious, on the other hand. She also asserts that the first receives more weight than the latter.33 She argues that: Law and procedures lay down certain rules and practices, which are differentially enacted by those with power, experienced variably by children and young people, and have uneven impact on decisions. … It shows the difficulties of respecting children as social actors, when they are participating in adult structures that were not originally developed with children and young people’s participation in mind – with subsequent legislation seeking to insert them into what are fundamentally adult-oriented procedures and spaces.34

As noted above, Article 12 CRC requires that ‘due weight’ should be given to the views of a child ‘in accordance with the age and maturity of the child’. This means that, ultimately, a decision can be out of line with—or even run counter to— the child’s views, having considered and weighed those views. As we have seen, the CRC states that the best interests of the child cannot be considered correctly if the child is not heard in the case. However, the key question is always: who determines the child’s best interests? On account of the multi-interpretable nature of the best interests of the child principle, the views of the child may be pushed aside or silenced.35 In other words, Article 12 CRC ‘facilitates children and young people to be involved in decision-making and a wide range of decisions, but it does not discuss self-determination’.36 This brief outline allows us to conclude that we should distinguish between the efforts made to improve the level and the methods of participation in a given legal context—to encourage children to give their views—and the more fundamental point that children find themselves in an adult-oriented structure, in which it is not always clear what weight their view will carry, and how much influence they will have over the matters that affect them.

31 Tisdall

2015, p. 188. 2008, in Tisdall 2015, p. 188. 33 See Tisdall 2016. 34 Tisdall 2015, p. 192. 35 Tisdall 2015, p. 196. 36 Tisdall 2015, p. 196. 32 Cornwall

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7.4 Two Case Studies from The Netherlands: Children in Migration and Children in Youth Care 7.4.1 Participation of Children in Asylum Procedures In 2018, just over 1,000 unaccompanied minors arrived in the Netherlands. The total number of children (0–18 years) arriving in the Netherlands is higher; almost 5,000 in 2018.37 The asylum procedure is an administrative procedure executed by the immigration authorities and which results in granting or rejecting the asylum application. When an unaccompanied or separated minor arrives in the Netherlands and has been reported to the authorities, they are placed under the supervision of a guardian immediately (Article 3.109d(1) of the Aliens Decree 2000). Moreover, a lawyer is assigned to the minor.38 The Dutch asylum procedure normally consists of three interviews with the Immigration and Naturalisation Service: at registration, the first interview and the second interview (Aliens Circular (C) 2000, paras 2.3– 2.4). During the first interview, the background of the child will be verified; the immigration authorities will only ask questions concerning personal details, religious background, ethnicity, the child’s last address in their country of origin and family composition (Aliens Circular 2000 (C), para 2.11). During the second interview, the asylum story and motives are discussed. In recent years, considerable attention has been drawn to the position of migrant children, not just at the international level, but also in the Netherlands and other parts of the world. With regard to the participation of children in asylum procedures, limited research has been conducted; however, some initial conclusions can be drawn from the studies that have been conducted to date. One general finding is that asylum procedures are predominantly designed for adults and are not adapted for children.39 Moreover, children and parents who seek asylum find themselves in a vulnerable situation because of the traumatic experiences they have gone through. Van Os demonstrated that many refugee and migrant children in the Netherlands show symptoms of post-traumatic stress and experience emotional problems.40 In fact, being involved in lengthy asylum procedures can be perceived as a traumatic event in itself,41 and uncertainty regarding their immigration status is a great burden

37 CBS

2019a, b. Article 25(1) European Union, Directive 2013/32/EU of the European Parliament and the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), Official Journal of the European Union, L180/60. 39 Smyth 2014; Kennan and Kilkelly 2015; Mannion 2016; Stalford 2018. 40 Van Os 2018. 41 Chase 2013; Werkgroep Kind in azc 2014, 2016; Werkgroep Kind in azc/COA/Avance 2018; Uzozie and Verkade 2016; Darmanaki Farahani and Bradley 2018. 38 See

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for children and evokes feelings of concern.42 Furthermore, children receive inadequate information before and during their journey to the host country;43 and upon arrival, they feel overwhelmed, are unable to process information, and feel that they are insufficiently involved in the procedure.44 When looking at the involvement of children in asylum procedures, the distinction between accompanied and unaccompanied children is of relevance. Unaccompanied children arrive in a host country alone, and therefore require immediate protection from the state. These children are given shelter and a guardian is appointed for them, who is responsible for protecting their interests.45 Moreover, unaccompanied children file their own asylum claim (or their legal representative does so on their behalf).46 Accompanied children depend on their parents, who are the main asylum applicants, and children obtain derivative protection status if a parent’s request for international protection is granted.47 This implies that the child’s status automatically follows from the refugee status granted to their parents.48 Some have argued that the position of accompanied children receives less attention compared to that of unaccompanied and separated children, and accompanied children are not always provided with the same rights and safeguards.49 The different roles played by these two groups of children in asylum procedures also has implications for their participation in the procedure. The testimonies of unaccompanied children provide the main source of information about their journey and asylum motives; they should therefore be heard personally by the authorities as part of the asylum procedure—if their age and maturity permits this.50 In a recent report regarding a 17-year-old unaccompanied minor who applied for asylum in the Netherlands, the Dutch Children’s Ombudsman concluded that in terms of the questions asked by the immigration authorities, no special attention was paid to the fact that the applicant was a minor. Some of the questions concerned the social and political situation in the village where he was from, which he was not aware of at that age. He was also asked to respond to questions from the perspective of others, which was difficult for him because of his young age. The Children’s Ombudsman concluded that interviews with minors, at least until the age of 18, need to be adapted to the level of maturity, capacities and vulnerabilities of the child.51 In practice, accompanied children are not automatically heard in the asylum procedure, although the applicable international standards recommend that these

42 Kohli

2006; Kalverboer and Winter 2006; Kalverboer et al. 2009; Chase 2010. for example, Kloosterboer 2009. 44 Council of Europe 2018; see also Kloosterboer 2009; Chase 2010. 45 European Union Agency for Fundamental Rights (FRA) 2015. 46 See Rosani 2020. 47 Crock 2015. 48 Pobjoy 2016. 49 Lidén and Rusten 2007; Duivenvoorde 2018. 50 UNHCR/UNICEF 2014. 51 Kinderombudsman 2019. 43 See,

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children be heard individually as well.52 As a consequence, these children are often not informed about the procedure.53 Authorities claim that it is the parents’ responsibility to inform their children about the asylum procedure.54 Moreover, different age limits are applied to hearing accompanied children in the procedure;55 in the Netherlands, accompanied children are interviewed separately by the immigration authorities from the age of 15, when their parents have applied for asylum. In Norway, children from the age of seven are heard by the immigration authorities. A study conducted in Sweden showed that ‘children’s stories are often used strategically’ to strengthen their parents’ asylum claims rather than being valued in themselves.56 In fact, Swedish immigration officials are reluctant to interview these children at all— and to use their story to construct the truth—because of the opposing facts that may arise.57 It can also happen that the narrative of the child contradicts the narratives of the parents regarding their flight, which can call into question the credibility of the story presented to the immigration authority. In Norway, the conversations with accompanied children have been characterised as tokenistic and not geared towards identifying child-specific forms of persecution.58 With regard to accompanied children, it is also important to recognise that they can have a specific claim to protection, separate from the family’s claim. In addition, they can claim that they have been subjected to child-specific forms of persecution.59 In their study, Kalverboer and Zijlstra conclude that children mostly depend on the asylum application of their parents and rarely file their own asylum claim, although that is possible from the age of 12 in the Netherlands. These children have a less firm legal position, because their parents represent their interests, and no independent representation is available for them.60 Oftentimes, parents are not aware of the independent asylum motives that their children may have, or are unwilling to disclose those to the authorities.61 Moreover, parents may be unable to adequately represent the interests of their children, and no best interests assessment is carried out by the authorities.62 Recently, the highest general administrative court in the Netherlands (Afdeling Bestuursrechtspraak van de Raad van State) ruled in an appeal case that a minor had its own legal interests in an asylum application procedure. This ruling was given due to the fact that when a minor is granted an independent residence right, 52 Reneman

2014. 2005; Cederborg 2015; Crock 2015; Ottosson and Lundberg 2013; ENOC Taskforce children on the move 2016. 54 Werkgroep Kind in azc/COA/Avance 2018. 55 Pobjoy 2016. 56 Ottosson and Lundberg 2013, p. 284. 57 Lundberg and Lind 2017. 58 Lidén and Rusten 2007; see also Pobjoy 2016. 59 Thorburn Stern 2015. 60 Kalverboer and Zijlstra 2006. 61 Reneman 2014. 62 Kalverboer and Zijlstra 2006. 53 Lansdown

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this is considered more in favour of their interests, compared to receiving a derived resident right from a parent.63 The results of these studies show that not all children involved in asylum procedures have the chance to be heard. This is especially true for children whose parents are the asylum applicants. For both groups of children—accompanied and unaccompanied—it remains unclear whether the interviews conducted in the procedure are sufficiently adapted to the age and maturity of the child, and whether the asylum procedure leaves room for effective and meaningful participation.

7.4.2 Participation of Children Involved in Voluntary Youth Care According to national statistics from 2018, 9.2% of young people between 0 and 23 years old (of which there are 4.4 million in this age group) received youth care as defined in the 2015 Dutch Youth Act.64 In the age group 0 to 18 years old, 11.7% received youth care.65 In 2015, the new Youth Act came into force. One of the driving ideas behind the 2015 Youth Act is that the provision of care and support to children must be based on the capacities of children, their families and their networks. The municipalities are considered to be best placed to guide such engagement of networks and to offer assistance to citizens. Thus, under the Dutch Youth Act 2015, municipalities have extensive obligations with regard to youth care services. There is a distinction between voluntary and compulsory youth care. Compulsory youth care takes place within the framework of a child protection measure issued by the relevant court, and is imposed on the parties involved. Voluntary youth care requires, in principle, the consent of those involved.66 This analysis is limited to participation in voluntary youth care. Recent research by Bruning et al. has outlined the relevant moments of decisionmaking in youth care trajectories, and the opportunities for children and youth to participate in these decisions according to the law and in practice.67 The aforementioned research has operationalised the concept of ‘participation’ to include: (i) information, (ii) consenting to youth care, and (iii) the possibilities to lodge a complaint.68 63 ECLI:NL:RVS:2018:3171.

See also Rodrigues 2019. 2014, 105, Wet van 1 maart 2014 inzake regels over de gemeentelijke verantwoordelijkheid voor preventie, ondersteuning, hulp en zorg aan jeugdigen en ouders bij opgroei- en opvoedingsproblemen, psychische problemen en stoornissen (Jeugdwet) [Act of 1 March 2014 on regulations concerning the municipal responsibility concerning prevention, support, help and care for children and their parents in case of problems in growing up and upbringing, psychological problems and disorders (Youth Act)]. 65 CBS 2018. 66 Bruning et al. 2016a, p. 250. 67 Bruning et al. 2016a, b; Rap et al. 2019. 68 Bruning et al. 2016a, p. 250. 64 Staatsblad

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The research distinguishes three phases in the process of voluntary youth care where participation (in this broad sense) should play an important role, namely: (i) access to youth care; (ii) the implementation of youth care (the exact form, frequency and duration of the youth care trajectory); and (iii) the finalisation of the youth care trajectory.69 The researchers conclude that ‘the Youth Act does not offer however a consistent framework within which participation of minors is regulated’.70 Bruning et al conclude that municipalities have no legal obligation to let a child participate in consultations regarding access to voluntary youth care services.71 Moreover, professionals are not clear on whether, when and how the child should be involved in this phase.72 In practice, they found the minimum age requirement of 12 years is generally used by professionals in determining to speak to the child, how to inform the child and whether the child can initiate a complaint. In general, children aged 16 years and older can participate in decision-making.73 The 2015 Youth Act states that children and their parents or legal guardians are entitled to clear information on care issues and proposed support (Article 7.3.2 Youth Care Act 2015). In voluntary youth care, those involved must consent to the support they will receive. In case of a child under 12 years old, the parents or legal guardians must give their consent. In case of a child over 16 years old, only their consent is required. Between the ages of 12 and 16, the consent of both the child and the parents is required. Without consent of the child, voluntary youth support cannot be provided.74 The youth care provider has an obligation to offer all relevant information about the proposed youth care to those involved.75 The research shows that, in principle, children from the age of 12 are involved by the youth care provider throughout the treatment process.76 The 2018 client study of the First Evaluation of the 2015 Youth Act shows that children and youth are critical of the amount of influence that they can exercise in shaping the support that they will receive. Several respondents are reported to have stated that often they are simply told what help they will receive, without an opportunity to have any serious conversation about the choice made or alternative choices. Several respondents emphasised the need for more effective participation and more attention to be given to their views on the (quality of) support that they are/will be receiving. Moreover, they signalled that when they are actually asked about their views, they sometimes lack information to form such a view, or do not know what will be done with their view. This makes them feel unheard and not taken seriously.77

69 Bruning

et al. 2016b, p. 6. et al. 2016a, p. 256. 71 Bruning et al. 2016b, pp. 44, 45; Rap et al. 2019, p. 43. 72 Rap et al. 2019, pp. 43, 46. 73 Rap et al. 2019, p. 43. 74 Bruning et al. 2016b, pp. 17, 18. 75 Bruning et al. 2016a, p. 255. 76 Rap et al. 2019, p. 46. 77 Bucx et al. 2018, p. 233, p. 236 and p. 240. 70 Bruning

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Rap et al. have signaled that when youth care is discontinued, evaluating that care can be an opportunity for the child to share views and experiences. In practice, the child may be offered to participate in an exit meeting or fill out a survey. It is, however, unclear how such evaluations of care are used within organisations.78 During these three phases (access, implementation and finalisation) there is a possibility for those involved to lodge a complaint. The formal complaint procedure is different for every phase. Bruning et al. point out that complaint procedures offer an important opportunity for the participation of children and youth. If they decide to lodge a complaint, they must be offered the possibility to substantiate the complaint.79 The First Evaluation of the 2015 Youth Act, conducted in 2018, shows that municipalities have different approaches, and that it is not always clear where parents, children and adolescents can lodge their complaints about youth care.80 Moreover, the evaluation report states that the various ‘routes’ identified in the Youth Act—appeals procedure under administrative law, complaint procedures and disciplinary procedures—are often considered unsuitable for solving conflicts in youth care, because they lack flexibility and accessibility—which are essential in the youth domain. In practice, the route of appeal is legally complex, and complaint procedures at the municipal level are not used efficiently.81 In 2017, the Dutch National Ombudsman published a report on complaints in the social domain after the decentralisations. He found these to be mostly about ‘complexity of laws and regulations, incorrect or unclear information, improper conduct and privacy issues’.82 The Ombudsman signalled that people may not complain at all, for example because: they fear a bad reputation if they complain, because of the complexity of the system which involves multiple actors (for example municipalities and youth care providers); and because their problem may not always be easily and clearly translated into a formal complaint.83 The Youth Care Advisory and Complaints Office (Advies- en Klachtenbureau Jeugdzorg, AKJ) expressed its concern that complaint procedures and commissions are generally unaware of the fact that ‘four years after the implementation of the Youth Act municipalities and youth care providers are still unfamiliar with complaint procedures’.84 In 2018, the Dutch Children’s Ombudsman reported that they had processed 1998 contact moments, which included questions, requests for help and complaints. Most of these contacts (567) were related to youth care.85 Local children’s ombudspersons also deal with questions and complaints related to youth care.86 The local Children’s Ombudsman 78 Rap

et al. 2019, p. 46. et al. 2016b, p. 15, pp. 19-20. 80 Friele et al. 2018. 81 Friele et al. 2018, pp. 85 and 553–554. 82 Nationale Ombudsman 2017, p. 4. 83 Friele et al. 2018, p. 81; Nationale Ombudsman 2017, p. 4. 84 AKJ 2018, p. 5. 85 Kinderombudsman 2018, p. 12. 86 In the Netherlands, three local children’s ombudsmen are active, in The Hague, Amsterdam and Rotterdam. 79 Bruning

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of Rotterdam, for example, received 312 questions and complaints in 2018. Of the 115 complaints that were followed up, 77% concerned youth care, especially related to the municipality and youth care providers.87 The above shows that, in practice, the various elements of participation (i.e. access to clear information, consent to—and effective participation in—the support received, as well as possibilities to lodge a complaint) for children in voluntary youth care under the 2015 Youth Act are patchy and fragmented. This fragmentation is not only problematic for the individual family and child, but it also impedes a clearer view of the most important ‘bottlenecks’ in voluntary youth care.

7.5 Final Reflections: Participation at the Crossroads From the perspective of international standards and policy guidance issued by supranational organisations—such as the CRC, the Council of Europe and the European Commission—a clear demand becomes evident for the increased participation of children in relevant procedures that affect them.88 These standards advocate for the effective participation of children in the decisions that are taken in their lives, including those taken in judicial proceedings. However, the question remains whether these general standards and guidelines are trickling down to the practical level—i.e. the daily lives and realities of children and professionals? In other words, to what extent are children effectively able to participate in judicial procedures, such as filing an application for asylum, or receiving youth care. The involvement of children in asylum procedures, specifically in the Netherlands, illustrates the issue very well. The purpose of the procedures is to assess whether the asylum applicant has a well-founded fear of persecution (Article 1A of the Refugee Convention).89 This means that the interview is geared towards finding out the truth and assessing the credibility of the story that the child or family presents. Along the same lines, Stalford states that the adversarial nature of the process in the United Kingdom—and the importance attached to the evidence presented by the child during the interview—result in the child’s right to be heard not being implemented.90 In relation to this, Smyth posed the question: on what topics should children’s views be heard? To assess an asylum claim, it is irrelevant to hear the views of the child regarding whether or not they would like to stay in the receiving country, or would 87 Kinderombudsman

Rotterdam 2018. of Europe 2010; European Commission 2011; Council of Europe 2016; European Commission 2017. 89 United Nations General Assembly, Convention related to the Status of Refugees. Text of the 1951 Convention Relating to the Status of Refugees. Text of the 1967 Protocol Relating to the Status of Refugees, Resolution 2198 (XXI). 90 Stalford 2018. See also Van Willigen 2003; Doornbos 2006; Shamseldin 2012; Hedlund 2017; Rap 2020. 88 Council

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prefer to return to their home country. Rather, the interview revolves around the question whether a well-founded fear of persecution can be objectively and subjectively established.91 Nonetheless, the question remains as to how due weight can be given to the statements of children in this specific procedure. In the asylum context, the issue of credibility is of major importance in assessing the asylum motives of a person, and international standards prescribe that children should be given ‘the benefit of the doubt’ in this regard.92 The same dynamic can be detected with regard to the involvement of children in voluntary youth care. The purpose of youth care is to assist the child in getting the support they need. There is limited space in this system for the participation of the child. The one hard criterion in the 2015 Dutch Youth Act concerning participation is the fact that a child between 12 and 18 years of age must consent to voluntary youth care. This should increase the space for participation and, in practice, it does. However, the available space is insufficient, given the fact that research shows that children feel unheard, not taken seriously, and that professionals have widely differing approaches to addressing participation. Furthermore, children have the right to complain. Again, this should increase the space for participation. However, in practice, many issues are unclear in the context of ‘complaints’: what is considered a complaint?, where should the complaint be made?, and what should be done to resolve the complaint? Alongside the ‘formal routes’ laid down in the law, in practice children and their parents take their questions, problems and complaints to a variety of actors: the municipality, youth care providers, confidential advisors and ombudspersons. The formal routes provided for in the Dutch Youth Act may be considered unsuitable for solving conflicts in youth care, because they lack flexibility and accessibility. The First Evaluation of the Youth Act (2018) explicitly recommends searching for other forms and mechanisms of conflict management, and suggests that ombudspersons may play a role.93 It can be concluded from these examples that the right to be heard is conceptualised rather differently depending on the type of procedure that the child is involved in. The relatively open, undefined norm of the child’s right to be heard, as stipulated in Article 12 CRC, is formalised in judicial procedures, and is translated into what the procedure requires (in the context of asylum this translates into testimony, and in the context of youth care this translates into consent). In judicial procedures, the right to be heard is used strategically to take a legal decision. In a sense, this is the nature of judicial procedures; they exist to enable one to decide whether a child qualifies for asylum or whether they need youth care, for example. However, another fundamental right of the child, the best interests principle, is a complicating factor in this regard. As stated above, the CRC Committee sees an important interlinkage between the right to be heard and taking the best interests of the child as a primary consideration in decision-making that affects children. In most judicial proceedings, the focus is on best interests’ determinations carried out by adults; it becomes rather difficult 91 Smyth

2014, p. 131. 2009, para 73. 93 Friele et al. 2018, p. 554. 92 UNHCR

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when children’s views are not in line with these determinations.94 Some scholars have even argued that, in judicial procedures, children’s views and wishes are only considered when they are in line with the views of the authorities.95 A related issue is how the views of the child can be weighed in a way that gives those views ‘due’ weight. This depends, of course, on the age and level of maturity of the child, as stipulated in Article 5 CRC. However, children’s capacities can be very different depending on their level of maturity. In most judicial proceedings, little transparency exists regarding how, and whether, the views of the child have had an influence on the decision taken. This relates to the fact that children generally receive limited feedback on how their views have been considered in the decision-making process.96 In conclusion, effective participation of children and youth must go beyond a legalistic and formal approach. In order to make participation effective, not only should the practical infrastructure be improved (in terms of the availability of information, trained professionals and time available for professionals to talk with children, as well as clear feedback mechanisms, etc.); but existing laws, policies and practices should be assessed to determine the (tacit) assumptions (concerning the best interests of the child and self-determination, for example) and the relations of power that lie behind this.97 Conducting interdisciplinary research that considers legal, theoretical and empirical perspectives can contribute to finding ways to put child participation into practice in a more effective and meaningful way.

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and Broadley 2014; Van Bijleveld et al. 2015; Daly 2017. 2000; Daly 2017; Leviner 2018. 96 Tisdall and Morrison 2012; Collins 2017; Daly 2017. 97 Daly and Rap 2018, p. 16; McMellon and Tisdall 2020, p. 169. 95 Masson

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CBS (2019b) StatLine, Asielverzoeken en nareizigers; nationaliteit, geslacht en leeftijd https://opendata.cbs.nl/statline/#/CBS/nl/dataset/83102NED/table?dl=240BF (accessed 13 March 2020) Cederborg A-C (2015) Children’s Right to be Heard from their Unique Perspectives. In: Mahmoudi S, Leviner P, Kaldal A, Lainpelto K (eds) Child-friendly Justice: A Quarter of a Century of the UN Convention on the Rights of the Child. Brill Nijhoff, Leiden, pp 73–84 Chase E (2010) Agency and silence: Young people seeking asylum alone in the UK. British Journal of Social Work 40:2050–2065 Chase E (2013) Security and subjective wellbeing: the experiences of unaccompanied young people seeking asylum in the UK. Sociology of Health and Illness 35:6:858–872 Collins TM (2017) A child’s right to participate: Implications for international child protection. The International Journal of Human Rights 21:1:14–46 Council of Europe (2010) Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers’ Deputies. Council of Europe, Strasbourg Council of Europe (2016) Strategy for the Rights of the Child (2016-2021). Council of Europe, Strasbourg Council of Europe (2018) Child-friendly information for children in migration. What do children think? Council of Europe, Strasbourg Couzens M (2017) Child Participation in Local Governance. In: Ruck MD, Peterson-Badali M, Freeman M (eds) Handbook of Children’s Rights. Global and multidisciplinary perspectives. Routledge, New York/London, pp 515–532 Crock ME (2015) Justice for the Migrant Child: The Protective Force of the Convention on the Rights of the Child. In: Mahmoudi S, Leviner P, Kaldal A, Lainpelto K (eds) Child-friendly Justice: A Quarter of a Century of the UN Convention on the Rights of the Child. Brill Nijhoff, Leiden, pp 221–241 Daly A (2017) Children, autonomy and the courts: Beyond the right to be heard. Brill Nijhoff, Leiden Daly A (2018) No Weight for “Due Weight”? A Children’s Autonomy Principle in Best Interest Proceedings. International Journal of Children’s Rights 26:1:61–92 Daly A, Rap S (2018) Children’s Participation in Youth Justice and Civil Court Proceedings. In: Liefaard T, Kilkelly U (eds) The International Human Rights of Children. Springer, Singapore Darmanaki Farahani L, Bradley GL (2018) The Role of Psychosocial Resources in the Adjustment of Migrant Adolescents. Journal of the Pacific Rim Psychology 12:3:1–11 De Graaf JH, Limbeek MMC, Bahadur NN, Van der Meij N (2012) De toepassing van het Internationaal Verdrag inzake de Rechten van het Kind in de Nederlandse rechtspraak. Ars Aequi Libri, Nijmegen Donnelly M, Kilkelly U (2011) Participation in healthcare: the views and experiences of children and young people. International Journal of Children’s Rights 19:1:107–125 Doornbos N (2006) Op verhaal komen. Institutionele communicatie in de asielprocedure. Wolf Legal Publishers, Nijmegen Duivenvoorde S (2018) Het participatierecht van minderjarige vreemdelingen in de Nederlandse Asielprocedure. Journaal Vreemdelingenrecht 3:19:1–7 ENOC Taskforce children on the move (2016) Safety and fundamental rights at stake for children on the move. De Kinderombudsman/Barnombudsmannen European Commission (2011) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. An EU Agenda for the Rights of the Child, COM(2011) 60 final European Commission (2017) Communication from the commission to the European Parliament and Council. The protection of children in migration, COM(2017) 211 final European Union Agency for Fundamental Rights (FRA) (2015) Guardianship systems for children deprived of parental care in the European Union. Publications Office of the European Union, Luxembourg

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Friele RD, Bruning MR, Bastiaanssen ILW, De Boer R, Bucx AJEH, De Groot JF, Pehlivan T, Rutjes L, Sondeijker F, Van Yperen TA, Hageraats R (eds) (2018) Eerste evaluatie Jeugdwet. Na de transitie nu de transformatie. ZonMw, The Hague Hart RA (1992) Children’s Participation. From tokenism to citizenship. UNICEF International Child Development Centre, Florence Hedlund D (2017) Constructions of Credibility in Decisions Concerning Unaccompanied Minors. International Journal of Migration, Health and Social Care 13:2:157–172 Henaghan M (2017) Article 12 of the UN Convention on the Rights of Children. Where Have We Come from, Where Are We Now and Where to from Here? International Journal of Children’s Rights 25:2:537–552 Kalverboer ME, Winter H (2006) Asielgezinnen en kinderrechten. Het belang van het kind en het recht op ontwikkeling in de Nederlandse asielpraktijk. Journaal Vreemdelingenrecht 10:199–208 Kalverboer ME, Zijlstra AE (2006) Kinderen uit asielzoekersgezinnen en het recht op ontwikkeling. Het belang van het kind in het Vreemdelingenrecht. Uitgeverij SWP, Amsterdam Kalverboer ME, Zijlstra AE, Knorth EJ (2009) The developmental consequences for asylum-seeking children living with the prospect for five years or more of enforced return to their home country. European Journal of Migration and Law 11:41–67 Kennan N, Kilkelly U (2015) Children’s involvement in criminal, civil and administrative judicial proceedings in the 28 Member States of the EU. Publications Office of the European Union, Luxembourg Kinderombudsman (2018) Het werk van de Kinderombudsman in 2018. Online jaaroverzicht 2018. https://www.dekinderombudsman.nl (Accessed: 29 March 2020) Kinderombudsman (2019) Briefrapport KOM002/2019. De Kinderombudsman, The Hague Kinderombudsman Rotterdam (2018) Jaarverslag Gemeentelijke Kinderombudsman, https://www. kinderombudsmanrotterdam.nl/web/uploads/2019/04/Jaarverslag-gemeentelijke-kinderombuds man-2018.pdf (accessed 29 March 2020) Kloosterboer K (2009) Kind in het centrum. Kinderrechten in asielzoekerscentra. UNICEF, The Hague Kohli RKS (2006) The sound of silence: Listening to what unaccompanied asylum-seeking children say and do not say. British Journal of Social Work 36:707–721 Lansdown G (2005) The evolving capacities of the child. UNICEF Innocenti Research Centre, Florence Leviner P (2018) Child participation in the Swedish child protection system. International Journal of Children’s Rights 26:1:136–158 Lidén H, Rusten H (2007) Asylum, Participation, and the Best Interests of the Child: New Lessons from Norway. Children and Society 21:273–283 Liefaard T (2019) Access to Justice for Children: Towards a Specific Research and Implementation Agenda. International Journal of Children’s Rights 27:195–227 Liefaard T, Rap S, Rodrigues P (2019) Monitoring Children’s Rights in the Netherlands. Volume 1 – 30 Years of the UN Convention on the Rights of the Child. Leiden University Press, Leiden Liefaard T, Sloth-Nielsen J (2017) 25 Years CRC: Reflections on Successes, Failures and the Future. In: Liefaard T, Sloth-Nielsen J (eds) The United Nations Convention on the Rights of the Child: Taking Stock after 25 Years and Looking Ahead. Brill, Leiden, pp 1–13 Limbeek MMC, Bruning MR (2014) The Netherlands. Two Decades of the CRC in Dutch Case Law. In: Liefaard T, Doek JE (eds) Litigating the Rights of the Child. The UN Convention on the Rights of the Child in Domestic and International Jurisprudence. Springer, Dordrecht, pp 89–105 Lundberg A, Lind J (2017) Technologies of displacement and children’s right to asylum in Sweden. Human Rights Review 18:189–208 Lundy L (2007) ‘Voice’ is not enough: Conceptualising article 12 of the United Nations Convention on the Rights of the Child. British Educational Research Journal 33:6:927–942 Lundy L (2018) In defence of tokenism? Children’s right to participate in collective decisionmaking, Childhood 25:3:340–354

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Mannion K (2016) Child Migration Matters. Children and young people’s experiences of migration. Immigrant Council of Ireland, Dublin Masson JM (2000) Representation of children in England: Protecting children in child protection proceedings. Family Law Quarterly 34:3:467–495 McMellon C, Tisdall EKM (2020) Children and young people’s participation rights: Looking backwards and moving forwards. International Journal of Children’s Rights 28:157–182 Mol C (2019) Children’s Representation in Family Law Proceedings. A Comparative Evaluation in Light of Article 12 of the United Nations Convention on the Rights of the Child. International Journal of Children’s Rights 27:66–98 Nationale ombudsman (2017) Terug aan tafel, samen de klacht oplossen. Onderzoek naar de klachtbehandeling in het sociaal domein na de decentralisaties, 2017/035. De Nationale ombudsman, The Hague Ottosson L, Lundberg A (2013) People Out of Place: Advocates’ Negotiations on Children’s Participation in the Asylum Application Process in Sweden. International Journal of Law, Policy and the Family 27: 266–287 Parkes A (2013) Children and International Human Rights Law. The right of the child to be heard. Routledge, Oxon Pobjoy J (2016) The Child in International Refugee Law. Cambridge University Press, Cambridge Rap SE (2016) A children’s rights perspective on the participation of juvenile defendants in the youth court. International Journal of Children’s Rights 24:1:94–112 Rap SE (2020) The right to information of (un)accompanied refugee children: Improving refugee children’s legal position, fundamental rights’ implementation and emotional well-being in the Netherlands. International Journal of Children’s Rights, 28: 322–351 Rap SE, Verkroost DS, Bruning MR (2019) Children’s participation in Dutch youth care practice: an exploratory study into the opportunities for child participation in youth care from professionals’ perspective. Child Care in Practice, 25:1:37–50 Reneman MA (2014) EU asylum procedures and the right to an effective remedy. Hart Publishing, Oxford Rodrigues P (2019) Minderjarig kind heeft zelfstandig belang bij zijn beroep, omdat hij mogelijk een sterker verblijfsrecht kan verkrijgen dan het verblijf dat hem bij zijn moeder is vergund. AB 2019/132, 988 Rosani D (2020) Unaccompanied asylum-seeking children as rights holders: Theory and reality in the EU legal system in the case of age assessment and applications for international protection. In: Klaassen M, Rap SE, Rodrigues P, Liefaard T (eds) Safeguarding children’s rights in immigration law. Intersentia, Antwerp, pp 41–65 Shamseldin L (2012) Implementation of the United Nations Convention on the Rights of the Child 1989 in the Care and Protection of Unaccompanied Asylum Seeking Children: Findings from Empirical Research in England, Ireland and Sweden. International Journal of Children’s Rights 20:90–121 Smyth C (2014) European Asylum Law and the Rights of the Child. Routledge, New York Stalford H (2018) David and Goliath: Due Weight, the State and Determining Unaccompanied Children’s Fate. Immigration, Asylum and Nationality Law 32:258–283 Thomas N (2007) Towards a theory of children’s participation. International Journal of Children’s Rights 15:2:199–218 Thorburn Stern R (2015) Unaccompanied and Separated Asylum-seeking Minors: Implementing a Rights-based Approach in the Asylum Process. In: Mahmoudi S, Leviner P, Kaldal A, Lainpelto K (eds) Child-friendly Justice: A Quarter of a Century of the UN Convention on the Rights of the Child. Brill Nijhoff, Leiden, pp 242–255 Tisdall EKM (2015) Children and young people’s participation: a critical consideration of article 12. In: Vandenhole W, Desmet E, Reynaert D, Lembrechts S (eds) Routledge International Handbook of Children’s Rights Studies. Routledge, Oxon, pp 185–200 Tisdall EKM (2016) Subjects with agency? Children’s participation in family law proceedings. Journal of Social Welfare and Family Law 38:4:362–379

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Tisdall EKM (2017) Conceptualising children and young people’s participation: examining vulnerability, social accountability and co-production. The International Journal of Human Rights 21:1:59–75 Tisdall EKM, Davies J, Gallagher M (2008) Reflecting on children and young people’s participation in the UK. International Journal of Children’s Rights 16:3:343–354 Tisdall EKM, Morrison F (2012) Children’s participation in court proceedings when parents divorce or separate: Legal constructions and lived experiences. Law and Childhood Studies: Current Legal Issues 14:156–179 Tobin J (2019) Introduction: The foundation for children’s rights. In Tobin J (ed) The UN Convention on the Rights of the Child: A commentary. Oxford University Press, Oxford, pp 2–22 UN Committee on the Rights of the Child (2003) General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6). General Comment No. 5. CRC/GC/2003/5, 27 November 2003 UN Committee on the Rights of the Child (2009) The right of the child to be heard. General Comment No. 12, CRC/C/GC/12, 20 July 2009 UN Committee on the Rights of the Child (2013) On the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1). General comment No. 14, CRC/C/GC/14, 29 May 2013 UNHCR (2009) Guidelines on international protection: Child Asylum claims under Articles 1 (A) and 1 (F) of the 1951 Convention and/or 1967 Protocol relating to the Statutes of Refugees, HCR/GIP/09/08, 22 December 2009 UNHCR/UNICEF (2014) Safe and Sound. What states can do to ensure respect for the best interests of unaccompanied and separated children in Europe. UNHCR/UNICEF Uzozie A, Verkade M (2016) Volg je dromen tot je niet langer kunt leven. Een retroperspectief onderzoek onder voormalige alleenstaande minderjarige asielzoekers naar toekomstbeleving. Stichting Vrienden van SAMAH Van Bijleveld GG, Dedding CWM, Bunders-Aelen JFG (2015) Children’s and young people’s participation within child welfare and child protection services: a state-of-the-art review. Child & Family Social Work 20:129–138 Van Os C (2018) Best Interests of the Child Assessments for recently arrived refugee children. Behavioural and children’s rights perspectives on decision-making in migration law. University of Groningen, Groningen (dissertation) Van Willigen LHM (2003) Verslag van de quick scan van ‘het kind in het asielbeleid’ in de praktijk. Een inventarisatie van knelpunten ten aanzien van de waarborging van een zo ongestoord mogelijke ontplooiing en ontwikkeling van kinderen die naar Nederland zijn gekomen om asiel te verkrijgen. Amsterdam Werkgroep Kind in azc (2014) ‘Het is hier in één woord gewoon…stom’. Onderzoek naar het welzijn en perspectief van kinderen en jongeren in gezinslocaties. Werkgroep kind in azc, The Hague Werkgroep Kind in azc (2016) Zó kan het ook! Aanbevelingen voor een betere situatie van kinderen in asielzoekerscentra. Werkgroep kind in azc, The Hague Werkgroep Kind in azc/COA/Avance (2018) Leefomstandigheden van kinderen in asielzoekerscentra en gezinslocaties. Rapportage I: Conclusies en Aanbevelingen. Werkgroep kind in azc, The Hague

Stephanie Rap is Assistant Professor of Children’s Rights at the Department of Child Law at Leiden University. Stephanie’s academic interest lies in the field of the effective participation of children in (legal) procedures, employing an interdisciplinary research approach. She lectures in the LLM programme International Children’s Rights, on topics related to juvenile justice, child victims and child protection. She is a member of the editorial board of Tijdschrift voor Jeugd- en Kinderrechten.

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Katrien Klep is Assistant Professor of Children’s Rights at the Department of Child Law at Leiden University. She has two major research interests: (1) how do (human) rights work in practice, and (2) the use of qualitative methods in legal research. Katrien lectures in the LLM programme International Children’s Rights in courses on international systems of human rights, economic, social and cultural rights and research design. Her current research focuses on complaints procedures in youth care at the municipal level in the Netherlands.

Chapter 8

Human Rights Localisation and Individual Agency: From ‘Hobby of the Few’ to the Few Behind the Hobby Tihomir Sabchev, Sara Miellet and Elif Durmu¸s Contents 8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Human Rights Effectiveness and the Role of Local Authorities: The Story Thus Far . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3 The Missing Piece: Conceptualising the Individual Agency of Human Rights Users . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4 Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5 The Individual Agency of Municipal Officials in Improving the Effectiveness of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5.1 Individuals’ Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5.2 Individuals’ Motivations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5.3 Interactions Between Individuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.6 Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.7 Conclusion and Future Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Human rights have been facing criticism on many fronts, including the challenges of the “enforcement gap” and the “citizenship gap”, laying bare the shortcomings with regard to the implementation of human rights law as well as regarding its protection of highly vulnerable groups such as refugees. Research on the effectiveness of human rights, the “localisation” of human rights through invocations and practices on the ground, the increased engagement of local authorities with human rights, are all responses to such challenges to some degree. Based on empirical research conducted within municipalities in four countries, this chapter focuses on a missing piece of the puzzle in terms of conceptual and empirical research: the The three authors contributed equally to this work as part of their Ph.D. research for the Cities of Refuge Research. T. Sabchev (B) · S. Miellet · E. Durmu¸s Faculty of Law, Economics and Governance, Utrecht University, Utrecht, The Netherlands e-mail: [email protected] S. Miellet e-mail: [email protected] E. Durmu¸s e-mail: [email protected] © The Author(s) 2021 C. Boost et al. (eds.), Myth or Lived Reality, https://doi.org/10.1007/978-94-6265-447-1_8

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role of “individual agency”. We adopt a socio-legal perspective on human rights and demonstrate that individual agency can make an important contribution to the effective implementation of human rights in the field of migration governance. Behind the black box of the state and local authorities, we find individuals who use human rights—as law, practice and discourse—in local policymaking, in circumstances where invoking human rights is not self-explanatory. Finally, we put forward the notion that reasons such as individual background, motivations, and interactions between individuals influence municipal officials’ engagement with human rights, and we reflect on the conceptual and practical implications that result from this. Keywords Human rights · Local governments · Human rights localisation · Individual agency · Migration · Local policies

8.1 Introduction Over the last decades, human rights have been widely criticised. Some of this criticism relates to the notion of effectiveness.1 Those challenging human rights have focused, for instance, on the lack of enforcement of positive human rights obligations (the “enforcement gap”)2 and the inability of the human rights regime to protect the most vulnerable, such as refugees and stateless persons, despite claims of universality (the “citizenship gap”).3 The latter criticism also poses an opportunity for human rights to prove their relevance to non-citizens who might lack sufficient protection under domestic legislation and should—at least in theory—be protected by human rights.4 Partially related to this criticism, and in part because of their de facto engagement with human rights, local authorities have recently received considerable scholarly attention. They have been increasingly portrayed as being important actors that can influence—either directly or indirectly—the realisation of human rights on the ground.5 More concretely, local authorities have been at the forefront of receiving and integrating refugees, and safeguarding their human rights; an issue which started gaining more attention following the increased mobility of Syrian refugees from 2015 onwards.6 This chapter focuses on individuals and processes at the intersection of migration, human rights and local authorities. As such, this contribution provides valuable insights on a wide range of questions regarding the effectiveness of human rights. We adopt a socio-legal perspective on human rights and define them broadly,

1 Kennedy

2002. et al. 2015. 3 Shafir and Brysk 2006. 4 Baumgärtel and Oomen 2019. 5 Aust 2015; De Feyter et al. 2011; Oomen and Durmu¸s 2019, Durmu¸s 2020. 6 Oomen and Baumgärtel 2018. 2 Marx

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not only as international law, but also as a value, discourse, and “social construction and practice”.7 Individuals working within local governments are among the actors that engage in such social construction and practice. In line with the scope of this chapter, ‘local authorities’ refers to the lowest tier of administration in the public administrative organisation of a state, including its executive, legislative, and administrative organs.8 While local governments have been receiving attention from scholars concerning their role in human rights realisation, the more general question regarding the effectiveness of human rights has puzzled other scholars—albeit with inconsistent or conflicting results.9 Bearing in mind the most important challenge to this scholarship—namely the difficulty of establishing a causal link between human rights and change on the ground—we have chosen to refer to the effectiveness of human rights in local migration governance as: the generation, from within the local authority, of policies, practices and discourses inspired by human rights, that are designed to improve the well-being of refugees as a vulnerable group. As such, we do not claim that any local policy, practice or discourse has succeeded in creating an empirically measurable improvement in the well-being of persons. In addition, this definition is a deliberate choice to focus on practical local outputs (policies, practices, discourses), instead of legal formalist or statist understandings of human rights effectiveness. Lastly, the adoption of human rights-inspired migration policies by local governments constitute a particularly useful case study for gaining insights into the effective implementation of human rights, as it represents an emerging trend, and certainly not a universal nor self-evident observation. As local authorities have been considered as human rights actors much more recently than states,10 the effectiveness of human rights in this context—i.e. the success of human rights inspiring migration policies, practices and discourses—can be observed as it unfolds. Within this context, our aim is to focus on individual agency—a missing element in the conceptual and empirical research on the local relevance and effectiveness of human rights. We use the concept of individual agency to examine how personal background and motivations, as well as interactions with others, can influence the actions of individuals involved in introducing human rights within local authorities. While the role of non-state actors and individuals in claiming rights has enjoyed attention in human rights scholarship,11 the agency of individuals within the black box of the state,12 its local authorities,13 or other actors holding positive legal human rights obligations, has only recently been addressed. Drawing on scholarly and empirical evidence on the relevance of individual ‘human rights users’14 enacting local human 7 Grigolo

2017. 2015, para 1. 9 Brysk 2019. 10 Oomen and Baumgärtel 2014; Oomen et al. 2016. 11 Merry 2006a; Widdows and Marway 2015; Saeed 2015; De Feyter et al. 2011; Desmet 2014. 12 Brysk 2019, p. 8. 13 ILC 2001, Article 4. 14 Desmet 2014. 8 UNHRC

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rights-based practices,15 we explore how the exercise of individual agency by public officials within local authorities contributes to the effectiveness of human rights in local migration governance. Our findings—based on field research conducted in municipalities in Italy, Greece, Turkey and the Netherlands as part of the Cities of Refuge Project16 —demonstrate the importance of individual agency for the adoption of local human rights-based policies, and suggest that the background, motivations and interactions of individuals can play a role in the extent to which local human rights-based policies are adopted. In presenting these findings, we start with a discussion on the effectiveness and localisation of human rights in relation to local authorities in Sect. 8.2, followed by a conceptualisation of individual agency in Sect. 8.3, and a number of methodological considerations in Sect. 8.4. Section 8.5 highlights the importance of individual agency for human rights effectiveness, also elaborating on the reasons why certain public officials engage with human rights in terms of local policy making. Section 8.6 considers the conceptual and practical value of individual agency in human rights research and practice, and lastly, Sect. 8.7 outlines our conclusions and suggestions for future research.

8.2 Human Rights Effectiveness and the Role of Local Authorities: The Story Thus Far The question of human rights effectiveness is complex, and one that many human rights scholars have grappled with, addressing different objectives and using different methodologies.17 Brysk suggests navigating this field by asking: “The effectiveness of what?”18 Is effectiveness the codification of norms into law following ratification? Does it pertain to the success of a particular rights movement? Or perhaps to the on-the-ground fulfilment of minimum requirements of well-being by states accepting international norms? In those cases, the indicators that are measured are often results-oriented, structural, or formal/legal.19 Scholars often analyse the response to “emerging channels of horizontal or dialectical international influence” of the so-called ‘international human rights regime’, consisting of laws, courts, institutions and professionals. The question of effectiveness of human rights is placed within the context of socio-legal and social science literature on ideas, how those

15 Shawki

2011; Ward 2016; Miellet 2019; Roodenburg 2019. of Refuge” is a five-year research project funded by the Netherlands Organization for Scientific Research, which explores and explicates the relevance of international human rights, as law, praxis and discourse, to how local governments in Europe welcome and integrate refugees https://citiesofrefuge.eu/. 17 Brysk 2019, p. 2; Hopgood et al. 2017. 18 Brysk 2019, p. 2. 19 Council of Europe 2011. 16 “Cities

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ideas spread, how they gain ownership and become norms to which actors adhere.20 Risse, Ropp and Sikkink have sought to empirically prove that a causal relationship exists between the idea of human rights and improvement of the standards of well-being on the ground.21 However, such causal claims were met with widespread scepticism among social scientists, as attributing improvement to the adoption of human rights seems methodologically near impossible. This view was also accepted by the same authors in their subsequent publications.22 The literature on human rights effectiveness has recognised the complexity and pluralism of “pathways of influence”23 that lead to a change in identity, and of interestbuilding processes that shift the behaviour of an actor or individual.24 However, this research has struggled to step away from the top-down state-centric understanding of what human rights constitute, by whom they are generated, and how they can best be realised on the ground.25 Human rights are not only imposed top-down and translated from the international to the local level;26 they are also developed and contested locally, by actors and individuals invoking or “using”27 human rights without outside “international” pressure.28 Rather than viewing the local relevance of human rights only as a top-down “translation”29 of international law into local contexts, we focus on human rights that are invoked and practiced on the ground, by individuals who exercise their agency to introduce their own understandings of human rights.30 The research on the localisation of human rights provides complementary responses to the shortcomings of the research regarding the effectiveness of human rights.31 The term ‘localisation’ has been used to examine a broad range of human rights practices, both from a descriptive and normative perspective.32 Firstly, this term was used to describe the strengthening of local civil society and institutions, such as local authorities, for the protection of fundamental rights.33 Secondly, it was used to describe the efforts made to develop human rights in a way that makes it more 20 Béland

and Cox 2016; Berman 2007; Brysk 2019; Risse et al. 1999. Notwithstanding, some literature has approached the question from an instrumentalist rather than ideational approach: Hathaway 2005. 21 Risse and Sikkink 1999. 22 Risse et al. 2013; Simmons 2009; Haglund and Stryker 2015; Goodman and Jinks 2004. 23 Brysk 2019, p. 2. 24 Koh 1996. 25 De Feyter et al. 2011. 26 Merry 2006b. 27 Desmet 2014; Sect. 8.3. 28 Oomen et al. 2016; Oomen and Durmu¸s 2019. 29 Merry 2006a. 30 Oomen and Durmu¸s 2019. 31 Marx et al. 2015. 32 Oomen and Durmu¸s 2019; De Feyter et al. 2011. 33 Marx et al. 2015.

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reflective of local concerns, and more accommodating to the claims of human rights users.34 Lastly, it also forms part of a broader shift of perspective; away from the primacy of the nation state,35 and towards a multi-stakeholder agenda that considers the role and responsibilities of a wider range of states and non-state actors.36 Rather than neglecting the importance of states in realising individuals’ human rights, the scholarship on localisation demonstrates the limits of state-centric approaches, and the importance of including non-state and sub-state actors in discussions on human rights effectiveness. In the literature on localisation, one phenomenon was recently highlighted for its potential to strengthen both social justice and the international human rights system itself—i.e. the ‘human rights city’.37 While some authors have proposed very broad and inclusive definitions of a human rights city,38 we adopt the one of Oomen and Baumgärtel: “an urban entity or local government that explicitly bases its policies, or some of them, on human rights as laid down in international treaties, thus distinguishing itself from other local authorities”.39 The explicit engagement of local authorities with human rights is indeed commonly viewed as a prerequisite for becoming a human rights city.40 While local civil society initiatives can often be the ones that “make human rights the talk of the town”, these cannot be sustained in the long run without the commitment of local administration, which is usually responsible for ensuring access to services such as education, healthcare, etc.41 The rise of human rights cities has often been presented as an opportunity to strengthen the effectiveness of international human rights through bottom-up initiatives and implementation at the local level.42 Examples are plentiful and can be found all over the world. In the United States (US), for instance, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was already adopted as municipal law in San Francisco back in 1998, while Chicago has been using the Convention on the Rights of the Child to shape local policies since 2009.43 Importantly, both treaties have not been ratified by the US government. In Europe, Graz has been applying human rights standards in monitoring local election campaigns and in designing anti-discrimination policies.44 As a final example, the Korean city of Gwangju has developed a more comprehensive human rights approach over the past decade, which involves different rights, policy areas and stakeholders.45 34 De

Feyter et al. 2011. 2009. 36 Destrooper 2017. 37 Oomen et al. 2016. 38 Grigolo 2016, p. 227. 39 Oomen and Baumgärtel 2014, p. 710. 40 Goodhart 2019. 41 Van den Berg 2016. 42 Oomen and Baumgärtel 2018. See also Grigolo 2019. 43 Davis 2016, pp. 37–38. 44 Davis et al. 2017. 45 Durmu¸s 2020, p. 48. 35 Meyer

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Rather than “empty promises”, such actions by human rights cities can potentially directly and positively affect the everyday lives of their citizens through easier and universal access to basic services.46 The direct link between human rights cities and human rights effectiveness has been particularly visible in terms of migrants’ rights, especially with regard to undocumented and forced migrants. An often-cited example is that of the city of Utrecht, which—along with other Dutch cities—successfully used human rights to extend the provision of emergency ‘bed, bath and bread’ services to undocumented people.47 New York, yet another human rights city, recently banned the use of the terms “illegal” and “illegal alien”, and prohibited people from threatening to call the Immigration and Customs Enforcement on the basis of discriminatory motives. Breaking the new local law can result in fines as high as 250,000$.48 The contribution of cities to the realisation of migrants’ human rights is, however, not limited only to those bearing the ‘human rights city’ label. Due to the recent process of decentralisation in many countries, local authorities have gradually acquired a number of competencies directly related to the reception and integration of immigrants.49 As a result, municipalities play an important role in facilitating the access of migrants to local schools, hospitals, labour markets, etc. In addition, local authorities were at the frontline of protecting and fulfilling the human rights of refugees in the recent period of increased refugee arrivals to Europe—often acting at the boundaries of their legal competencies, or even overstepping them in order to guarantee reception services in line with international refugee and human rights law.50 Cities such as Athens and Milan, to mention just two, provided shelter, food, basic healthcare services and information to tens of thousands of refugees in 2015– 2016.51 On many occasions, these municipalities and other local authorities explicitly referred to human rights to justify their assistance to refugees.52 Thus, rather than being restricted to the category of human rights cities as the usual suspects, municipal engagement with human rights is a much broader phenomenon when it comes to defending and realising the rights of migrants.53 At the beginning of this section, we presented different arguments for moving beyond the state-centric and legal formalist approaches in studying the effectiveness of human rights. From the discussion so far, it has become clear that human rights cities—but also local authorities in general—can contribute significantly to the effective implementation of human rights in the field of migration governance. 46 Hafner-Burton

and Tsutsui 2005. and Baumgärtel 2018. 48 NYC Commission on Human Rights 2019. 49 Caponio and Borkert 2010. 50 Oomen et al. forthcoming. 51 Bazurli 2019. For Athens, see OECD 2018. 52 See for example Resolution 432 (2018) of the Congress of Local and Regional Authorities (Council of Europe) available at https://rm.coe.int/border-regions-facing-migration-phenomenacur-eirini-dourou/16808e2c9d. Accessed 10 April 2020. 53 Miellet 2019. 47 Oomen

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While states are shifting towards the externalisation of border control and stricter asylum policies,54 and hence moving away from their human rights obligations in relation to refugees, some local authorities increasingly refer to human rights—as law, practice and discourse—in order to justify progressive local policies designed to protect and safeguard the rights of refugees. Bearing that in mind, understanding the motives behind the use of human rights by local authorities becomes an important next step for both human rights scholars and practitioners. For scholars, answering the question as to why some cities actively engage with human rights in their approach to refugee reception, could reveal the driving force behind instances where human rights inspired effective local policy solutions. For practitioners, it could provide the key towards strengthening the effectiveness of human rights where those rights matter the most: at the local level.

8.3 The Missing Piece: Conceptualising the Individual Agency of Human Rights Users Having already arrived at the local level, this section will introduce the concept of individual agency, which in our view constitutes one of the key drivers behind initiating, designing, enacting and implementing municipal human rights-based policies. Our argument is that the actor-based approaches used in human rights scholarship do not provide the tools to adequately capture the dynamics within local authorities. This carries the risk of overlooking the role of individual agency in “bringing human rights home” to the city level.55 Recent human rights research has contributed to the unpacking of the human rights city, revealing a diverse group of actors: researchers, civil society, local governments, central government agencies and social workers, to name a few.56 The same is true for cities active in the reception and integration of refugees, where a multitude of local actors facilitates migrants’ access to services.57 Each one of these actors serves a separate (complementary or competing) function in the implementation of human rights within the city, following its own (human rights) agenda. Local mobilisation in the field of human rights is often seen as involving ‘struggles from below’ initiated by civil society actors and social movements.58 As states are presented as monolithic entities, the role of individuals within local authorities remains somewhat of a ‘black box’.59 While municipal governments often contribute to human rights effectiveness, as described in the previous section, the motivations behind this contribution remain 54 Polakow-Suransky

2017. et al. 2008. 56 Grigolo 2017. 57 Hinger et al. 2016. 58 Chenoweth et al. 2017. 59 Desmet 2014. 55 Soohoo

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unclear. What makes some municipalities incorporate human rights in their local policies, and ultimately even regard themselves as human rights cities? Our view is that one important factor which triggers and navigates the process of enacting local human rights-based policies is individual agency within local authorities. Drawing on standard conceptions of agency, we associate individual agency with the capacity to act, and the performance of intentional and unintentional actions that derive from the former.60 More concretely, by employing the notion of ‘individual agency’, we demonstrate that personal background and motivations, as well as interactions with others, underpin the actions of individuals involved in introducing human rights law, practice and discourse within local authorities. Our approach to theorising the agency of these individuals draws on socio-legal scholarship, such as legal pluralism and legal anthropological perspectives, which shift the focus away from approaches that study human rights “in an abstract, doctrinal and depersonalised manner to a more grounded and contextual approach”.61 More specifically, our approach draws on recent scholarly work on theorising the involvement of different types of actors involved in human rights practices, also known as actor-oriented approaches, and concepts such as ‘human rights users’.62 Adopting an approach that focuses on the users of human rights implies that “the perspective from which the analysis is undertaken is that of the person, group, organisation or institution engaging with (‘using’) human rights—and thus not the perspective of a specific legal instrument, theme or right”.63 As Desmet argues, this ‘user’ approach also allows “a deeper insight in the human rights system, in how it is used, what its strengths and weaknesses are and will further provide reflection on how it can be improved”.64 This is partly due to the fact that the human rights ‘user’ approach recognises the complexities that result from the multi-layered nature of human rights law, and considers how human rights users may be “simultaneously confronted with a multiplicity of human rights norms, often both general and specific coming from different institutions”.65 Another factor is that it addresses other challenges to human rights—such as concerns about the effectiveness of human rights on the ground—from the perspective of its users (such as rights claimants).66 Human rights scholars who look at actor-oriented approaches have recently raised concerns regarding the fact that many empirical studies focus on non-state actors and on rights-holders, rather than duty-bearers like states.67 The human rights ‘user’ approach addresses this criticism by presenting an inclusive but differentiated approach to understanding the users of human rights, and by introducing categories 60 Schlosser,

Markus, “Agency”, The Stanford Encyclopedia of Philosophy. 2014, p. 122. 62 Desmet 2014; Brems and Desmet 2014. 63 Desmet 2014, p. 123. 64 Ouald-Chaib 2018, p. 4. 6566 Desmet 2014, p. 124. 66 Desmet 2014; Baumgärtel 2014. 67 Destrooper and Sundi Mbambi 2017. 61 Desmet

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that are empirical—and based on behaviour—rather than legal (rights holder and duty bearer).68 This approach incorporates a broad spectrum of users, ranging from direct users (‘rights claimers’ and ‘rights realisers’) to indirect users (‘supportive users’ and ‘judicial users’).69 Of these four types of users, rights realisers are the most directly relevant to this chapter, as this category includes actors who seek to give effect to human rights. This chapter draws on—and develops—these insights, by foregrounding how individuals within local governments exercise agency as they work towards ‘bringing human rights home’, and by adopting a broad understanding of human rights practice. Our understanding of the individual agency of human rights users is therefore also informed by scholarly work on human rights practices, understood as “the many ways in which social actors across the range talk about, advocate for, criticize, study, legally enact, vernacularize, etc., the idea of human rights in its different forms”.70 However, we agree with Desmet that research on human rights practices tends to prioritise specific themes or rights, whilst actororiented perspectives—such as those focusing on human rights users—do not. As this chapter focuses on local engagement with human rights in the field of migration governance, it represents a middle way that borrows from both approaches. A question that needs to be addressed, however, is why this chapter refers to ‘individual agency’ of human rights users, rather than adopting more common terms such as ‘actors’. We argue that this differentiation is necessary for three reasons. First, it serves to minimise confusion, as many legal scholars that have progressively examined cities and international law, refer to cities or local authorities as unified ‘actors’. This strand of research, for instance, examines how the positioning of cities and local authorities in international law should be understood, and whether or not they can—and ought to be—understood as having a dual character as both state and as non-state actors that could obtain international legal personality.71 Second, we also use this term to avoid confusion with legal debates on the ‘actorhood’ of local governments in international law, and to challenge essentialist understandings of the state—at the local or national level—that obscure the agency of human rights users working within the state structure. Although such critical interrogations of essentialist understanding of the state have been particularly common amongst geographers,72 migration scholars73 and sociologists,74 they also feature in the work of human rights scholars who similarly conceive of the state as a “complex construction of often competing agencies and individuals, at both the national and the local level”.75 This legal scholarship also highlights how this understanding of

68 Desmet

2014, p. 127.

69 Ibid. 70 Goodale

2014, p. 24. 2020. 72 Meeus et al. 2019. 73 Gill 2010. 74 Verhoeven and Duyvendak 2017. 75 Desmet 2014, p. 136. 71 Durmu¸s

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a state as consisting of different institutions and individuals requires us to examine “how norms in turn influence individual behaviour of state actors”.76 Third and lastly, the scholarship that draws on actor-oriented perspectives to study human rights localisation or vernacularisation focuses primarily on corporate and civil society actors, without necessarily taking into consideration the role of individuals within them. To address this shortcoming, we also propose a conceptual differentiation between actor-oriented perspectives and individual agency, as theorised in this chapter. In doing so, we follow Desmet, who suggests that “the term ‘human rights actor’ and its categories thus do not make clear that the same actor may, depending on the situation, stand in a different functional relationship with human rights, i.e. make a different use of human rights”.77 A human rights ‘user’ approach enables us to theorise the involvement of street-level bureaucrats, local politicians and social workers, without assuming their static categorical identity (as state or non-state actors). Although we recognise that the term ‘human rights users’— as developed and understood by Brems and Desmet—can still be used to refer to any individual or a composite entity who engages with human rights, we propose a more restrictive understanding of human rights users that renders visible hitherto more obscured perceptions, understandings and actions of individuals that shape local approaches to human rights. By adopting the term ‘agency’ rather than by adopting the general description ‘the role of individuals’, we also signal that our analysis does not look at agency in isolation, but acknowledges that agency stands in a dynamic relationship with structure. Concretely, this means that we are also interested in examining structural conditions, or opportunity structures that enable individuals to act independently, whether individually or collectively with others. This becomes particularly visible with respect to interactions between individuals (see Sect. 8.5, below) in which structural opportunities—such as networks and access to cooperation—interplay with the agency of particular individuals who disseminate and adopt norms, ideas and practices through these structures. Having explicated how individual agency is conceptualised and having situated this notion within the scholarly literature, this discussion now turns to reflect on theoretically and empirically informed insights on why studying individual agency is relevant to debates on the effectiveness of human rights. Whilst much of the research on localising human rights initially focused on civil society ‘actors’, scholars have been increasingly focusing on the role of city councils, mayors and administration in processes of ‘downward human rights diffusion’,78 emphasising that such diffusion relies on “strong collaboration with municipal authorities in adapting existing human rights norms to local settings”. Other scholars have been paying increasing

76 Risse

and Sikkink 1999, p. 8.

77 Ibid. 78 Oomen

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attention to collaborations between local stakeholders79 and within municipal authorities.80 Drawing on previous work by Merry,81 Shawki, for instance, notes that “the initiative of translators, individuals and/or community groups who are well-versed in the international human rights framework and discourse and at the same time very immersed in their local communities, is often the catalyst for local human rights initiatives”.82 This scholarship also hints at the motivations of individuals working within local authorities. As Martha Davis notes, “inspirational words without substantive impacts are unlikely to be embraced by these local actors. If they adopt human rights approaches, it is almost certainly because they believe that the approaches can do some real work for the community”.83 In addition to these theoretical arguments suggesting the importance of individual agency within local governments in mobilising and enacting human rights, there are also practical examples pointing in this direction. In 2018, the United Nations Office of the High Commissioner for Human Rights (OHCHR) called upon local government representatives to identify “effective methods to foster cooperation between local governments and local stakeholders for the effective promotion and protection of human rights (…) and to indicate the major challenges and best practices in this regard”.84 The OHCHR report synthesised their contributions and identified more effective ways to promote—and protect—human rights at the local level. The report also highlighted the role played by local stakeholders, such as mayors, in creating a local government culture that is open and oriented towards human rights.85 Several indications of the link between localising human rights and individual agency come from the international forum “Focusing on Human Rights”, which took place in 2015 in Graz—the first human rights city in Europe. The event gathered more than 100 experts from 25 European countries, all of whom were active in the field of implementation of human rights at the local level. Politicians and civil servants from human rights cities discussed—together with researchers, representatives of city networks and international organisations—the design, enactment and relevance of human rights for local policies. As Phillipp mentions in her summary of the forum’s workshops, participants agreed that strategies for incorporating human rights into local policy-making usually depend on a “specific politician who prioritises human rights”.86 Importantly, the participants viewed this as a ‘big challenge’ for efforts related to local human rights-based policy-making—an issue that will be discussed in further detail later on. Another key point, also presented as a challenge by the 79 Roodenburg

2019. 2019. 81 Merry 2006b. 82 Shawki 2011. 83 Davis 2019. 84 OHCHR Call for contributions on local governments’ initiatives to promote and protect human rights. https://www.uclg-cisdp.org/sites/default/files/Letter%20Civil%20Society%20Orga nisations_EN_final%20%281%29.pdf. 85 Ibid. 86 Philipp 2017, p. 36. 80 Miellet

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participants, was that “people are alone in the field of promoting human rights, it depends on single persons”.87 As Leen Verbeek, former mayor of the Dutch city of Purmerend, pointed out in his presentation, human rights implementation at the local level was “the hobby of the few”, which, through networking and collaboration, could eventually turn into “the responsibility of the many”.88 Drawing on previous research, we initially outlined several arguments for moving from the macro-level of the state to the meso-level of the city in studying human rights effectiveness. Having introduced our conceptualisation of individual agency, we will now briefly discuss the methodology of our study, and then present the potential benefits of approaching the issue of human rights effectiveness from a micro-level perspective.

8.4 Methodology To explore the relevance of individual agency within local authorities to human rightsbased policies, and therefore to human rights effectiveness, we apply a qualitative case study research design.89 The examples we present pertain to Turkey, Italy, Greece and the Netherlands, which allows us to study the role of individual agency in very different contexts, in terms of the administrative system (centralised-decentralised), the allocation of competencies and funds for refugee reception/integration (larger role of local authorities in Italy and the Netherlands and marginal in Greece/Turkey) and the number of refugees hosted. Moreover, we focus on local authorities that have proactively engaged with human rights (as law, practice and discourse) in regard to the reception and integration of refugees and undocumented migrants.90 To protect our interviewees, we have not included the names of the municipalities discussed in the following section. The only exception is the case of Utrecht, in which the availability of a large amount of publicly accessible information made any efforts for city-level anonymisation futile. Our case selection process was not guided by the ambition to obtain a representative sample—neither of human rights cities, nor of ‘ordinary’ cities using human rights—but rather by the aim to explore how the process of incorporating human rights in local policies start and evolve in different urban contexts, and within different local authorities.91 Consequently, any generalisation to other instances of human rights localisation—within or beyond local authorities—on the basis of our research would be problematic. In any case, we believe that the variation that we sought to 87 Ibid.,

p 37. p 35. 89 Rohlfing 2012, See also Yin 2017. 90 With the term refugees, we refer to forced migrants in general—be it asylum seekers, people who have obtained international protection status, or “guest” in the case of Turkey. 91 Seawright and Gerring 2008. 88 Ibid.,

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achieve with the following examples strengthens the value of our findings, and can serve as justification for future research on the link between individual agency and human rights effectiveness.92 In the next section, we present examples from several municipalities where we conducted field research, primarily consisting of interviews with local officials (politicians, top-level managers, administration, social workers) and representatives of NGOs, civil society and immigrant organisations, local experts, local offices of national/regional authorities and international organisations. By covering such a wide range of locally operating actors, we were able to identify the different steps in the enactment of human rights-based policies: the initial process of the ‘arrival’ of human rights to the city, the way local administrations started engaging with them, the (lack of) implementation, and finally, the (lack of) practical results for refugees and undocumented migrants. The field research took place between October 2018 and March 2020. In addition, the interview data was triangulated with secondary data obtained through desk research of municipal documents, reports, media publications, social media accounts and empirical evidence from scholarly literature—if available. All data was analysed using NVivo and following an open coding method.

8.5 The Individual Agency of Municipal Officials in Improving the Effectiveness of Human Rights In this section, we will present examples that highlight the role of individuals as one of the driving forces behind the incorporation of human rights into effective local policy solutions to immigration-related challenges. Without underestimating the importance of local structural conditions and factors, we demonstrate that ultimately, it was specific individuals who initiated the human rights conversation, practice and even law to city halls and municipal offices, and that they did this for reasons that were often not self-evident results of their institutional role. We will start by presenting several examples of how individual agency mattered, and will subsequently focus on the issue of why individuals engage with human rights-based policy-making. First and foremost, our data analysis revealed a strong link between individual agency within local authorities and the adoption of human rights-based local policies that provide refugees universal access to services. In all country contexts, we found specific public officials behind the design and adoption of these policies; these officials had either explicitly used human rights law, or had adopted a human rights perspective in the interpretation of ambiguous domestic legal frameworks. In one Greek municipality, human rights law was referred to in a local action plan to justify the adoption of inclusive policies for undocumented migrants. This came about as a result of the efforts of a single employee, who later advocated for universal access to a new municipal shelter for the homeless, which caused conflicts with representatives 92 See

Chapter 3 in Rohlfing 2012.

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of the central government demanding that access shall only be granted to people with lawful residence.93 Similarly, in Turkey, some municipalities opted to interpret the ambiguity in the domestic municipal law to treat all refugees and undocumented people present in the city as ‘co-citizens’. As a result, they were provided access to free basic services and in some cases even to specialised ones, such as psychological support, vocational training and language courses.94 Behind this approach were progressive political leaders and local policy makers, some of whom consulted with the UNHCR to discuss whether it was possible to consider refugees as falling under the ambiguous law.95 Moving to more detailed single-case examples, we start with an Italian city with an active local civil society, which for decades has been defending the rights of locally residing vulnerable groups, including immigrants. While in the past the local government had developed plenty of policies to protect and fulfil migrants’ rights, it was only a decade ago that it started actively referring to human rights—both in relation to migrants’ rights and other policy areas. In this case, human rights emerged in a bottom-up manner within the local administration, and were only ‘adopted’ by the municipal political leadership in the second instance. More specifically, a civil servant with an education relating to human rights and former experience in an international organisation, intentionally introduced the human rights discourse and practice by involving the municipality in two externally funded projects.96 In her own words, she did this because of her strong belief in the “added value of an approach based on human rights applied at the local entity level”.97 Under her leadership, the process of localisation of human rights within the local administration resulted in the gradual introduction of various new initiatives: theoretical and practical training on human rights in migration-related issues for municipal managers and service personnel, workshops for students and teachers in local schools, communication campaigns on migrants’ human rights, baseline studies on discriminatory barriers affecting migrants’ active participation in local community life, etc. This engagement with human rights received strong support from two important individuals from the local government: a deputy mayor and the mayor. Ultimately, a separate office working explicitly on human rights-related issues was established within the municipal administration. At present, the office designs and implements projects focused primarily on immigrant integration, in close collaboration with the municipal services. In Utrecht, two senior policy advisors working on municipal policies for irregular migrants were among the first within the municipality to adopt a human rights perspective—long before the municipality adopted a more explicit and general approach as a ‘human rights city’. In collaboration with municipal executives and 93 Fieldnotes

#2 Sabchev (16/11/2018, Greece). #1 Durmu¸s (14/12/2018, Turkey); #4 Durmu¸s (05/12/2018, Turkey); and #6 Durmu¸s (24/01/2019, Turkey). 95 Interview #1 Durmu¸s (14/12/2018, Turkey). 96 The importance of such projects is discussed in Chap. 6 by Durmu¸s in the present volume. 97 Interview #1 Sabchev (19/12/2019, Italy). 94 Interviews

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council members, these policy advisors used human rights for policy development and innovation, including the development of the aforementioned ‘bed, bath and bread’ shelters for undocumented migrants. Together with a municipal councillor who proposed the development of an additional support programme,98 these policy advisors further developed the municipal approach by providing legal support to—and personal development opportunities for—undocumented migrants. This approach, locally known as the ‘fourth B’ for ‘Begeleiding’ (Support/Guidance), has proven to be very successful, as “in their first ten years, Utrecht found solutions in 94% of cases in the form of a residence permit, voluntary return or restoration of the right to care within the federal asylum system”.99 Another example of their ‘human rights-based policy development’,100 is the Utrecht-Refugee Launchpad which “enables an inclusive approach to facilitate integration of asylum-seekers in the municipality from day one”.101 This project, also known as ‘Plan Einstein’, aims to create a “combined learning and living environment for both refugees and the local community” that ensures a “future proof investment into the participants’ lives, which could be built up in Utrecht or elsewhere if the asylum request is denied or when refugees may want to rebuild their home country when the war is over”.102 As explained by our interviewees, this project was inspired by human rights, and also highlights how human rights can be used to transform targeted projects for migrants into inclusive projects benefiting the local population at large. The same policy advisors are currently working on the development of a collective healthcare insurance and a city pass for irregular migrants staying in the municipal shelter, which will enable better access to healthcare and other services.103 In the Turkish context, a former employee of a prominent district municipality and the Union of Municipalities has been running a project that aims to develop the concept and practice of Human Rights Cities in the country.104 The project is led by an INGO and a transnational city network that is known in Turkish municipalities. However, this particular individual and her pre-existing relationships—as well as the trust that she has gained in the field—have helped to make the relatively foreign concept of the human rights city more accessible, trustworthy and safe among municipal officials. Some interviewees who work in municipalities that participate in the project and in the Union of Municipalities, referred to the coordinator as “our (Name of Coordinator)”,105 despite the fact that she was employed by a foreign NGO. The project currently develops human rights indicators, trains municipal officials, and 98 Scally

2018. and Baghi forthcoming. 100 Presentation by Antonius I, “Utrecht Refugee Launch Pad”, 29 March 2017. 101 Website Compas Utrecht Refugee Launchpad https://www.compas.ox.ac.uk/project/utrecht-ref ugee-launchpad/. 102 Project Website Utrecht Refugee Launchpad https://www.uia-initiative.eu/en/uia-cities/utrecht. 103 Interview #1 Miellet (9/8/2019, The Netherlands). 104 Interview # 2 Durmu¸s, with the coordinator (06/12/2018, Turkey); and Interviews #3 (04/12/2018, Turkey) and #4 (04/12/2018, Turkey) with officials of municipalities participating in the project. 105 Interview #5 Durmu¸s (11/01/2019, Turkey). 99 Sakkers

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encourages member municipalities to pass local legislation announcing that they are human rights cities and to adopt human rights declarations. Even more important than these tangible outcomes, is the fact that this individual works to convince municipal officials from different localities across a wide political spectrum of the relevance, usefulness and the moral, ethical and legal value of human rights for local governance. The project includes a specialisation for refugees that many member localities voluntarily participate in, with the aim of applying the human rights city concept to their refugee policies. Having outlined the importance of individual agency within local authorities, we move on to the question why the municipal officials from our examples decided to engage with human rights in the first place. Our analysis will further unpack why local government representatives and administrators ‘use’ human rights, highlighting reasons pertaining to individuals’ background, motivations and interactions with others.

8.5.1 Individuals’ Background Firstly, human rights-related education, previous/ongoing professional affiliations or personal experiences were prevalent amongst those local government/administration officials who were most fervently championing greater respect, protection and fulfilment of human rights. In our example from Italy above, the civil servant who introduced human rights to the municipal administration and led the process of incorporating them into local policy-making, had obtained a Master in International Human Rights Law abroad, and collaborated with a human rights scholar widely known for his work as an activist.106 Multiple local administrators in different district municipalities in Turkey had a background in working for women’s rights organisations and NGOs before taking up positions within local authorities. Subsequently, they united in an NGO, while still being employed at their respective local authorities, aiming to realise their vision for a more institutionalised, participatory and rights-based local governance by providing training to civil society on how to engage with the local government and vice versa.107 In Greece, municipal officials in key positions within the local government or administration were at the same time also active members of the Hellenic League for Human Rights—the oldest non-governmental human rights organisation in the country.108 Finally, we also encountered cases in which, according to our interviewees, personal experiences with disability (e.g. developing impaired 106 Interview

#1 Sabchev (19/12/2019, Italy); Fieldnotes #1 Sabchev (21/01/2020, Italy). #7 Durmu¸s (23/12/2018, Turkey); #8 (15/12/2018, Turkey); and #9 Durmu¸s (13/02/2019, Turkey/United Kingdom) (conducted with local officials of two municipalities from Istanbul who also have founded an NGO together to facilitate cooperation and interaction between civil society and local government). 108 Interview #2 Sabchev (06/02/2019, Greece). 107 Interviews

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mobility or having a disabled child) had motivated local officials to incorporate a human rights perspective into municipal decision-making.109

8.5.2 Individuals’ Motivations The background and experiences described above shaped how interviewees ‘encountered’ human rights, but they also pointed to other motivations. The interviewees used and valued human rights intrinsically and instrumentally. Some municipal officials perceived direct municipal human rights obligations, even if the nature of these obligations (shared/complementary/conflicting) was itself contested locally.110 One Dutch policy maker explained that whilst the municipality’s divergent approaches to irregular migrants were sometimes interpreted by others as stemming from “leftish humanitarianism” and featuring municipal disobedience, they perceived themselves as respecting a human rights obligation that is “binding for each and all”. She explained that they therefore challenged being labelled as ‘rebellious’, and also learned that they would consequently be able to mobilise more support within the municipality for these local policies.111 Human rights were also generally valued as a unifying force112 that criss-crosses various policy domains113 and political agendas,114 while several of our Turkish interviewees also saw it as beneficial to the professionalisation of local authorities.115 One Dutch municipal councillor explained that human rights had helped her navigate gendered power dynamics within the municipal council, which she described as ‘male-dominated’, after some of her colleagues had accused her of being too emotionally involved. She explained that human rights provide a ‘moral compass’, but also a neutral and professional language to address difficult topics, such as the forced return of refused asylum seekers, without being accused of being too emotionally invested. Finally, some of the municipal officials we interviewed expressed a keen interest in theorising human rights locally, because they had been—or were at the time— involved in research on localisation. In addition, some expressed ‘ownership over human rights localisation’.116 One civil servant, for instance, had engaged with 109 Interview #2 (Miellet, 10/12/2018, The Netherlands); Interview #6 Durmu¸s (24/01/2019, Turkey). 110 Interview #3 Durmu¸s (04/12/2018, Turkey); #3 Miellet (21/11/2018, The Netherlands); Interview #5 Miellet (7/6/2019, The Netherlands). 111 Interview #1 Miellet (9/8/2019, The Netherlands). 112 For a similar understanding of the potential of human rights, see Hardy and Steenbergen 2012. 113 Interview #4 Miellet (8/5/2019, The Netherlands). 114 Interview #5 Miellet (7/6/2019, The Netherlands). 115 Interviews #2 Durmu¸s (06/12/2018, Turkey); #3 Durmu¸s (04/12/2018, Turkey); and #4 Durmu¸s (05/12/2018, Turkey). 116 Interviews #7 Durmu¸s (23/12/2018, Turkey); #8 Durmu¸s (15/12/2018, Turkey); and #9 Durmu¸s (13/02/2019, Turkey/United Kingdom) (with municipal officials who co-founded an NGO

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human rights from both an academic and practitioners’ perspective in the past, and perceived human rights as “her thing” within the municipality; she was strongly convinced that a “serious” approach to human rights implementation at the local level can produce positive results.117

8.5.3 Interactions Between Individuals The third motive behind engagements with human rights of municipal officials and administrators consisted of interactions among individuals. Dependent not only on structural opportunities but also on chance and coincidence, individuals are able to find and connect with each other, combine their understandings of human rights and its local relevance, and initiate collaborations based on shared motivations, interests and values. Interactions can take place both within a single municipality, between municipalities within the same country, or even transnationally, beyond state borders. Starting with interactions within a municipality, the ‘story’ of human rights incorporation into migration policies in the Dutch municipality of Utrecht illustrates how human rights perspectives are tied to personal background and motivations, but also altered through interactions with colleagues. One of the senior policy advisors working on introducing human rights perspectives into migration policies explained that for her, human rights were first and foremost a ‘moral duty’. This was due to the fact that one of her relatives was involved in a renowned act of the Dutch resistance during World War 2, which, she explained, resulted in a ‘heavy moral inheritance’. When a new colleague, a trained public international lawyer, joined their team, this colleague “gave them a piece of her own mind” regarding their understanding of human rights, and made them more attentive to human rights laws. This, in turn, strengthened the overall human rights basis of their approach to irregular migration.118 Moving on to interactions between individuals across municipalities, formal and informal networking as well as close personal connections allow individuals to encounter human rights as norm, value, or governance tool. When asked why certain municipalities are more proactive in developing human rights-inspired projects for refugees, interviewees from Turkey referred to a capacity development programme conducted in cooperation with Swedish and Dutch associations of municipalities during the EU accession process, in which a selection of Turkish mayors conducted educational visits to European localities.119 A mayor that had been inspired by his visit decades ago, was still being referred to by his peers and municipal employees conducting research and advocacy on localisation (of human rights), expressing full ownership on the issue). 117 Interview #1 Sabchev (19/12/2019, Italy). 118 Interview # 1 Miellet (9/8/2019, The Netherlands). 119 Interview #2 Durmu¸s (06/12/2018, Turkey). This confirms the key findings of Babul 2017.

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as a “visionary”.120 The mayor went on to create the country’s first municipal “community centre”, which offered services tailored to the needs of vulnerable groups, in line with the principles of universal, free, equal access.121 It is thus important to bear in mind the role of interactions between individuals who (re)introduce the relevance and utility of human rights—ranging from interactions in the close quarters of a single municipal department, to those across geographical, institutional and sectoral boundaries. In summary, individual agency within local authorities mattered for the effectiveness of human rights in all country contexts that we studied. In most cases, local representatives and administrators brought human rights to the city level in the form of discourse or practice incorporated into municipal policy-making. In other cases, they applied human rights as a legal tool to justify their inclusive approaches towards refugees and undocumented migrants. Finally, our data suggests that the reasons behind the individual agency’s mobilisation as a local human rights carrier may well originate from experiences and encounters distant in time and space— such as one’s education, previous work experience, or even a single meeting at a conference abroad.

8.6 Discussion The fundamental role that individual agency can play in opening a city’s ‘gates’ and introducing human rights brings to the fore a number of opportunities and pitfalls, both in terms of strengthening human rights effectiveness and in terms of studying it. In some local authorities, such as in our example from Italy, an individual engagement with human rights eventually led to institutionalisation in the form of the adoption of strategies, and to the establishment of task forces or offices developing human rights-inspired migration policies.122 In others, such as in the Greek and Turkish context, human rights practices remained ad-hoc and driven by a single or few individuals. Several Turkish interviewees, for instance, expressed their concern with the sustainability of human rights approaches in the field of migration governance, as decisions regarding institutionalisation were “between the two lips of the mayor”.123 Institutionalisation of human rights within local authorities thus varies greatly from one place to another. That said, concerns regarding the lagging institutionalisation of human rights were also seen as acute and raised by administrators in a Dutch municipality that explicitly adopted the ‘human rights city’ label.124

120 Interview

#4 Durmu¸s (05/12/2018, Turkey).

121 Ibid. 122 Interview

#1 Sabchev (19/12/2019, Italy). #5 Durmu¸s (11/01/2019, Turkey); #6 Durmu¸s (24/01/2019, Turkey); and #8 Durmu¸s (15/12/2018, Turkey). 124 Interview #5 Miellet (7/6/2019, The Netherlands). 123 Interviews

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The potential consequences of such concerns remaining unresolved are yet to be understood. What happens when public officials grow tired of them and become frustrated with enacting human rights-based policies in an ad-hoc manner? Some have suggested that municipal human rights practices may start to dissipate in the face of such challenges.125 Within trans-municipal networks126 and during international workshops127 on ‘human rights in the city’, the question of how to institutionalise human rights within the local administration and government remains a common theme.128 It is important to note, however, that participation of municipal officials and administrators may be limited or enabled due to their personal background, (language) skills and agendas, and is also dependent on support and resources from the municipality.129 Support towards facilitating such interactions between individuals is therefore not only important for the dissemination of local human rights-based policies, practices and discourses, but also for the contestation and development of the future relationship between local authorities and human rights. The contribution of individual agency to the effectiveness of human rights at the local level—regardless of whether institutionalisation is achieved—merits attention as well. Individual agency can help change the perception of human rights as being something ‘foreign’, by ensuring more localised understandings of human rights, and therefore increasing the ownership it enjoys.130 This local contestation of human rights also challenges human rights to be more reflective of local concerns.131 In addition, individuals are the driving force behind the dissemination of ideas and practices in relation to human rights at the local level, increasing their prevalence and reach around the world.132 Human rights in the city, and human rights for local migration policies, thus become “coalition magnets”133 bringing diverse actors and stakeholders together, mobilising them around a common agenda. In cases where individual agency leads to higher institutionalisation, how does this affect the exercise of individual agency? It may seem a long way off, given that institutionalisation is generally lagging, and given that the concerns about the sustainability of local engagements with human rights loom large. However, it is 125 Just

2018. for instance the expert session at the World Human Rights Cities 2019; expert opinion of Jeong Yeong-sun that addresses institutionalisation https://www.whrcf.org/bbs/download.php?bo_ table=eng_p4_05&wr_id=137&no=0. 127 See for instance the workshop organised by the municipality of Cologne and Amnesty International: Menschenrechte in der Stadt’, 12 and 13 December 2019. 128 Efforts to institutionalise the Human Rights City have led to the creation of the “Human Rights Cities Network”: See https://humanrightscities.net/. 129 In Interview #4 Durmu¸s, the municipal official expressed challenges with time (workload), language and access to be able to follow international and trans-municipal normative development on human rights and the city. 130 Oomen and Durmu¸s 2019. 131 De Feyter et al. 2011. 132 Brysk 2019; Risse et al. 1999; Durmu¸s 2020. 133 Béland and Cox 2016. 126 See

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important to examine how the local institutionalisation of human rights may shape the future involvement of practitioners, such as municipal human rights ‘users’. What if human rights, instead of remaining a ‘hobby of the few’,134 become increasingly embedded and mainstreamed into local policy-making? New local government officials and administrators would then enter a setting in which human rights already form part of the ‘opportunity structure’ in the form of established ‘practices’, such as previous experiences with human rights-based policy developments, institutions and artefacts, such as awards for past achievements in the field of human rights. To draw on Eleanor Roosevelt’s metaphor of the curious human rights grapevine:135 Human rights will always need individuals to carry their seeds to places and to nurture them as they grow and develop, but how will such acts of diffusion and localisation be altered when more people become involved, over a longer period of time? What this means in terms of the effectiveness of human rights requires further consideration. In this scenario, ‘new’ human rights ‘users’ may encounter the roots of previous (and perhaps failed) attempts to adopt a human rights-based approach, or alternatively, come across already flourishing grapevines and their ‘caretakers’, proudly and perhaps competitively watching over them. How this will shape future efforts, motivations and interactions between individuals within local authorities who are interested in contributing to the effectiveness and localisation of human rights, is a question that is best answered in conversation with these practitioners. At the same time, the effect of such ‘human rights residue’ also brings us to the academic field, by raising questions regarding the limitations of the explanatory value of individual agency as a concept. It is therefore important that scholars who are interested in this debate reflect critically on the interactions between individual agency and structure, which could either facilitate or sabotage human rights localisation attempts. In focusing on the level of the individual, we highlighted underlying elements such as background, motivations, and interactions with others that enabled individuals to come into contact and engage with human rights. However, a different level of analysis could reveal the macro and/or meso level actors, structural factors and corresponding “pathways of influence”136 that operate in parallel with—and reinforce—bottom-up initiatives led by individuals. For instance, international institutions, transnational campaigns, and an active local civil society, among others, can strengthen the effectiveness of human rights at the local level by pressuring national and local authorities to adopt human rights-based policies.137 In this sense, background, motivations and interactions underlying individual agency can be

134 Philipp

2017, p. 35. 1998. As Korey 1998 observes, Roosevelt invoked the metaphor of a ‘curious grapevine’ in 1948. The political and institutional implications of this invocation have been a topic of debate among scholars researching the ethnography of transnational human rights norms. 136 Brysk 2019. 137 See Chap. 6 by Durmu¸s in the present volume. 135 Korey

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considered to constitute ‘micro-pathways of influence’ and complement the existing literature on the socialisation of human rights on a larger scale.138 Having clarified this limitation of our micro-level focus, we move on to the contributions of this study from a scholarly perspective as a final point in our discussion. Firstly, while our study is strictly exploratory, it seeks to move beyond the descriptive accounts of individual agency, such as those focusing on specific individuals like mayors.139 By foregrounding the actions produced by these individuals, rather than their formal roles—as is common in actor-centred perspectives—we also acknowledge that their involvement is multifaceted, and that some of them have multiple affiliations (e.g. combining work in a municipal council with work in advocacy or for human rights organisations). In doing so, we follow the examples of Shawki (2011) and Desmet (2014), but also widen their scope in two ways: by examining the involvement of a broader range of individuals within local authorities, and by bringing to light the importance of micro-pathways of influence (based on experiences, motivations and interactions). In addition, the concept of individual agency facilitates attention to interactions, allowing us to investigate if individuals act independently and proactively, and whether they do so alone or with the support of strategic partners. By choosing this approach, we recognise that the environment within local authorities in which public officials operate is different than the one in civil society. This, in turn, calls for the development of a new context-sensitive concept, rather than for stretching already-existing concepts, such as human rights translators.140 While acknowledging the added value of the alternative notion of human rights ‘champions’,141 we consider its application to be narrower than the one of individual agency. We also believe that it is linked primarily to the symbolic dimension of human rights, and by extension to discussions on the ‘marketisation’ of human rights.142 Lastly, the focus on individuals working within local authorities complements previous studies143 by showcasing that individuals matter, even—or perhaps especially—if they find themselves in positions of relative power, working for institutions that have formal human rights obligations. Regardless of any formal legal obligations, individual agency is a factor behind human rights gaining ownership, and behind increasing human rights effectiveness.

138 Brysk

2019; Risse et al. 1999; Finnemore 1993; Ikenberry and Kupchan 1990; Schimmelfennig 1994. 139 Ward 2016. 140 Neubeck 2016. 141 Neubeck 2016, p. 63. 142 Immler and Sakkers 2014. 143 Koh 1996; Berman 2007.

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8.7 Conclusion and Future Research The insights emerging from the recent scholarly interest in human rights cities serve as a good reminder that applying novel approaches and concepts in human rights research can yield promising results. The gradual shift in the study of human rights effectiveness—from the formalist and state-centric macro level to the more complex and pluralist meso level—should, in our opinion, continue on its present course to the next logical step: the micro level of the individual within concrete local contexts. The individual agency concept that we introduce in this chapter can be viewed as one of the steppingstones in that direction. Without underestimating the role of state, nonstate and sub-state actors, as well as structural factors, we have argued that individual agency should be added as one of the elements that can contribute to human rights effectiveness—by incorporating human rights as law, practice and discourse into local policy-making. While providing a comprehensive theorisation of why certain individuals have engaged with human rights at the local level is beyond the scope of this chapter, our analysis leads to the suggestion that the reasons thereof relate to a variety of experiences, motivations and interactions. Furthermore, human rights have long been implemented and studied on the basis of frameworks characterised by a high level of generality and focused on state compliance. Only recently has this started changing through the process of human rights localisation. The assessment of effectiveness, however, necessitates socio-legal analyses to further unpack essentialist understandings of the ‘state’ and of ‘local authorities’. In our view, individual agency serves as a bridge connecting the general and specific aspects—both from a theoretical and a practical perspective. As a concept, it adds a missing piece to the puzzle, by distilling the role of individuals in realising human rights, thus paving the way towards advancing our understanding of how human rights are invoked and become relevant ‘on the ground’. In practice, it navigates and contests human rights norms and ideas, transforming them into innovative policy solutions that can contribute to remedying the implementation gap. Based on this twofold value of individual agency and in addition to the conceptual challenges already addressed in the previous section, we put forward several suggestions for future research. Firstly, we recommend that future studies shed light on any explanatory mechanisms linking individual agency and human rights effectiveness. Rather than just confirming the assumption that individual agency plays a role in the effectiveness of human rights, we suggest that scholars and practitioners also examine the consequences related to this finding—including the question of sustainability. Secondly, all but one of the municipalities incorporated in this study were urban. Additional research is needed to confirm or reject the relevance of individual agency for the implementation of human rights-based local initiatives in rural settings and in other policy areas (e.g. poverty alleviation, youth policies, etc.). Finally, we suggest that future studies provide a comparative perspective on the role of individual agency in strengthening human rights within highly institutionalised contexts at the local, national and international levels. Ultimately, this can contribute to revealing

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whether there are certain elements that make the local level a particularly fertile ground for the symbiosis between individual agency and human rights effectiveness highlighted in this chapter.

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Tihomir Sabchev is a Ph.D. candidate as part of the Cities of Refuge project, conducting research in Greece and Italy. He holds an M.Sc. degree in Comparative Public Policy and Welfare Studies from the University of Southern Denmark in Odense and a BA in Political Science from the Aristotle University of Thessaloniki in Greece. His main research interest lies in the multilevel governance of migration and partnerships between international organisations, civil society and local authorities. Sara Miellet is a Ph.D. candidate as part of the Cities of Refuge project, in which she is studying legal obligations and local practices of local governments and other actors in the field of refugee reception and integration in different Dutch and German localities. Sara holds an MA in Social and Political Thought from the University of Sussex (UK) and also has a background in Migration Studies and Urban Geography (M.Sc., Utrecht University). Sara’s academic interests focus on asylum and refugee reception and resettlement; and on everyday experiences and practices of refugees and asylum seekers as they settle into new urban contexts. Elif Durmu¸s is a Ph.D. researcher in the project ‘Cities of Refuge’. She is responsible for local field research in Turkish and Swiss municipalities as well as the transnational field of cities’

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engagement with international (human rights) law. Following a Bachelor in Law at Ankara University (Turkey), she obtained an advanced LLM degree (cum laude) in Public International Law at Leiden University, focusing on the role of non-State actors in international law. She has been an Assistant Editor for the Leiden Journal of International Law and an Executive Editor of the Utrecht Journal of International and European Law. She is a founding editor of the blog Human Rights Here of the Netherlands Network of Human Rights Research and a part-time lecturer at University College Roosevelt, Middelburg. Her current research interests are cities’ engagement with human rights, the generation, contestation and dissemination of (human rights) norms, constitutional competences of local governments around the world, and the localisation of human rights.

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Annex: Report of the NNHRR ‘Toogdag’ 2019

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REPORT OF THE NNHRR ‘TOOGDAG’ 2019 THE (IN)EFFECTIVENESS OF HUMAN RIGHTS: ARE HUMAN RIGHTS A MYTH OR A LIVED REALITY? NETHERLANDS NETWORK FOR HUMAN RIGHTS RESEARCH - NNHRR Held on 20-21 June 2019 in Maastricht, Netherlands Edited by Caroline De Schrijver and Sara Mattsson Organized and hosted by The Maastricht Centre for Human Rights Faculty of Law - Maastricht University

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Foreword

The Netherlands Network for Human Rights Research (NNHRR) is a platform connecting both junior and senior human rights researchers from Dutch universities. This year’s Annual Research Day (Toogdag) of the NNHRR revolved around the theme of the effectiveness of human rights, and inspired valuable presentations and discussions from many different perspectives. This report is a summary of the presentations and the subsequent discussions that took place during the event. The report is structured chronologically, starting with the Ph.D. workshop and the documentary viewed on Thursday, June 20, and continuing with the presentations and discussions that took place on Friday, June 21 2019. For the first time, the event took place over the course of two days. On Thursday afternoon, Ph.D. students were given the opportunity to engage in a cultural workshop given by Candida Snow. Following this, the documentary The Long Haul was shown, after which a panel discussion took place. On Friday morning, all participants at the event gathered in the Statenzaal of Maastricht University’s Faculty of Law, and were welcomed by a brief speech from Prof. Fons Coomans. An interdisciplinary plenary roundtable followed, with the aim of clarifying what the panel participants mean when they talk about effectiveness in connection with human rights. Two panels were organized for the day: one in the morning, and one in the afternoon. The morning panel focused on the effectiveness of human rights and their implementation at the domestic level. It was divided into two parallel sessions, both of which consisted of two Ph.D. researchers presenting their work, and a representative of the Netherlands Institute for Human Rights (NIHR) introducing its work. In the first parallel session, the Ph.D. researchers Elif Durmu¸s and Bart Kleine Deters presented their work, and the NIHR presentation was given by Prof. Nicola Jägers. In the second parallel session, the presenting Ph.D. researchers were Nikolaos Papadopoulos and Renata da Silva Athayde Barbosa, and Dr. Jan-Peter Loof gave the NIHR presentation. After a lunch break, the afternoon session was opened with the theme ‘Human Rights at the Individual Level: Individual Experiences and Key Actors’. The first presentation was given by the Assistant Professors Stephanie Rap and Katrien Klep on the topic of child participation in legal proceedings. Subsequently, Elif Durmu¸s presented the work of the Cities of Refuge project, concerning the role of individual agency of local government officials in the materialization of human rights at the local level. The closing keynote speech was given by Prof Suzanne Egan from University College Dublin. This report will address each presentation, summing up its key elements and the interesting viewpoints expressed during the subsequent discussions. We thank each participant at the Toogdag, both those presenting and those participating in the discussions, for providing lots of thought-provoking points on the effectiveness of human rights.

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Table of Contents

Ph.D. Workshop by Candida Snow Communication and Culture: Effectiveness Across Cultures—Does One Size Fit All? Documentary: The Long Haul Welcome by Prof. Coomans and Interdisciplinary Plenary Roundtable Panel 1: The Effectiveness of Human Rights Monitoring and Implementation at the Domestic Level Parallel Session 1 Presentation 1: ‘Does the Right to Education Lead to Better Education Outcomes?’ Presentation 2: ‘The Effective Realization of the Human Rights of Refugees in Turkey by Local Governments’ Presentation 3: College voor de Rechten van de Mens Parallel Session 2 Presentation 1: ‘Paving the Way? The Domestic Enforcement of the European Social Charter in Light of Recent Judicial Practice’ Presentation 2: The Role of the Brazilian Supreme Court in the Non-effectiveness of Human Rights—The Amnesty Case’ Presentation 3: College voor de Rechten van de Mens Panel 2: Human Rights at the Individual Level: Individual Experiences and Key Actors Presentation 1: ‘Child Participation as the Holy Grail. The Interplay Between the Child, Parents and the State in Legal Proceedings’ Presentation 2: ‘The “Humans Behind the Human Rights”—The Role of Individual Agency of Local Government Officials in the Materialization of Human Rights at the Local Level’ Closing Keynote Speech by Prof. Suzanne Egan

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Communication and Culture: Effectiveness Across Cultures—Does One Size Fit All? Ph.D. Workshop by Candida Snow The Annual Research Day of the Netherlands Network for Human Rights Research 2019 started off with a Ph.D. workshop on communication and culture given by Candida Snow, Director of Snow Culture and Communication. In preparation for this workshop, each of the participating Ph.D. candidates filled out a cultural survey that assessed the candidate’s cultural values in the following areas: attitude towards power, I/We-orientation, collaboration/competition and attitude towards uncertainty. The results of this survey were then brought to the workshop. After giving a short introduction to Culture and Communication Research, Snow addressed each of the above-mentioned areas in depth and discussed them with the group. As the group was composed of Ph.D. researchers with very diverse cultural backgrounds, the results of the survey reflected these differences. This comparison led the group to a few important take-away messages: • Culture is a collective social construct, displayed in learned behavior • Culturally-displayed behavior can vary even within a country • One can only truly understand one’s own culture when comparing it with other cultures. Perhaps, the most important message: culture is never personal, it is collective. At the end of the workshop, Snow handed out a leaflet containing a complete list of scores by country, enabling the participants to compare their individual results with a specific country’s values. More information on the survey used and the list of results can be found at www.snowcc.info. Documentary: The Long Haul Panel Discussion: Fons Coomans, Kees Flinterman, Nadja Houben & Roland Moerland Inspired by the life of the late Prof. Sir Nigel Rodley, and his work in the fight for human rights, The Long Haul was a relevant documentary for kicking off an event on the effectiveness of human rights. It addressed the views of different scholars and practitioners on the future of human rights; a topic that came up several times at later stages of the Toogdag. The film has been produced by Human Rights in the Picture, an NGO based in The Netherlands. The documentary was followed by a panel discussion with Prof. Kees Flinterman, Nadja Houben, Dr. Roland Moerland, and Prof. Fons Coomans. At the beginning of the discussion, the panelists gave their initial thoughts on the screening. It was stressed how the documentary highlights the ‘long haul’ towards ensuring respect for human dignity, and how new challenges and setbacks always resurface. The increasing involvement of many young people was mentioned as a positive current development in human rights, in spite of the fact that they might define human rights differently. Another positive aspect was the documentary’s celebration of the possibility of individuals to make a difference, and its power to inspire individuals in

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a realistic manner. Finally, the documentary called attention to the creeping erosion of human rights values, and the ways in which nationalism and governmental policies can have a huge impact on the extent to which human rights are upheld. In this regards there is a need to be vigilant. Subsequently, there was time for the audience to comment and voice thoughts. Many raised the concern of nationalism and its effect on human rights, and questioned the ability of human rights mechanisms to respond to such ways of hindering human rights implementation. The panel recognized this as a legitimate concern, and pointed out that the concept of ‘relativism’ makes this even more difficult: if everyone has the right to interpret rules in their own way, it is difficult to uphold a minimum standard. The importance of human rights education was also highlighted: there is a need to make more of a link between advocacy and education, as there is a lacuna with regard to knowledge on implementation mechanisms. Welcome by Prof. Fons Coomans Interdisciplinary plenary roundtable: Suzanne Egan, Eduard Nazarski, Jelle Klaas and Hans Nelen Prof. Fons Coomans opened this year’s Toogdag by introducing its theme: the effectiveness of human rights. To outline the theme, he pointed out a recent report by the UN on its own conduct in Myanmar, which explained that there has been a “systematic failure to prevent violence on the Rohingya minority”. According to the report, this failure arose for various reasons, such as mixed signals, and the competing strategies of the different UN actors involved. Effectiveness is about behavioral changes: it relies on a state of conformity between behavior and a rule. Although it can be assessed in relation to certain benchmarks, such as goals, the concept of effectiveness is inherently difficult to measure. After the speech, a roundtable was convened in order to ‘unpack’ the idea of effectiveness. The panel was composed of the Director of the University College Dublin Centre of Human Rights, Suzanne Egan, as well as the Director of the Netherlands Section of Amnesty International, Eduard Nazarski. The third member of the panel was Jelle Klaas, the Director of the Public Litigation Project of the Dutch Section of the International Commission of Jurists, and the final member was Hans Nelen, who is a Professor of Criminal Law and Criminology at Maastricht University. The aim of the panel was to address what ‘effectiveness’ means to each of the panelists in the context of their work. Egan mentioned that an action can be seen as effective when it accomplishes its strategic objectives. However, these objectives themselves may be difficult to define due to the presence of multiple different perspectives. According to Nazarski, in the view of Amnesty International, everyone should be able to exercise their own human rights everywhere. However, this is impossible in practice, as treaty obligations are not always complied with. Because of this, it is important to speak out about human rights: even if there would initially not be much effect, people will be more aware of them. Klaas, on the other hands, mentioned that in his work, human rights are necessary to further a person’s cause. If human rights are not effective, it is not possible to come to a good outcome, such as winning a case or changing a law. Finally, according to Nelen, effectiveness relies on specific goals,

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as well as assumptions that are behind these goals. After the initial thoughts on the concept of effectiveness, the panelists talked about the role of academics in strengthening human rights. According to Nelen, such a role definitely exists, for instance in the analysis and use of newly created human rights mechanisms and interventions. One point raised by the audience was the difficulty in measuring effectiveness, and the need for finding a causal link when doing this. It was questioned whether strategic effectiveness and the fulfillment of a goal is enough, or whether overall effectiveness is necessary, meaning that there are other underlying goals to be achieved. In this vein, the need to focus on victims and their needs was highlighted. Even if a certain case may be considered a victory for human rights, human rights can only truly be effective if they genuinely further the cause of the victims themselves. Panel 1: The Effectiveness of Human Rights Monitoring and Implementation at the Domestic Level After the opening plenary session of the Toogdag in the Statenzaal, the first thematic panel was constructed in such a way that participants could follow one of two parallel sessions. The theme for both sessions was the effectiveness of human rights at the domestic level. Domestic enforcement is vital for the fulfillment of human rights at the individual level, which highlights the important role of domestic courts, national human rights institutions and other bodies. However, domestic actors show different degrees of compliance with human rights standards, and the effectiveness of these actors in taking into account international human rights norms has sometimes been called into question. In the first parallel session, Ph.D. researchers Bart Kleine Deters and Elif Durmu¸s presented their work relating to this topic. In the second session, this was done by the Ph.D. researchers Nikolaos Papadopoulos and Renata da Silva Athayde Barbosa. At the end of both sessions, the work of the Netherlands College voor de Rechten van de Mens/Netherlands Institute for Human Rights was briefly introduced. Parallel Session 1 Presentation 1: ‘Does the Right to Education Lead to Better Education Outcomes?’ Bart Kleine Deters Bart Kleine Deters, a Ph.D. researcher from Maastricht University/UNU-MERIT introduced his research on how national laws can shape the development of human rights at the domestic level. Specifically, his research concerns the right to education, and how this right has been affected by changes in the education laws of different countries. Thus, the hypothesis tested was whether better protection of the right to education in national legislation is associated with better education outcomes. To do this, Kleine Deters examined the data of 40 different developing states for the years 1998–2018. The seven minimum core obligations of states in respect to education were briefly presented, after which Kleine Deters explained that he built an index to give each country a score with regard to each of the seven pillars. For instance, for the pillar of compulsory education, it was first checked whether

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education in the state is compulsory, and secondly, that child labor is prohibited by law. It was concluded that the general trend is clearly towards the expansion of the right to education, both in domestic law and in practice. The law was found to be more important in countries with a weak rule of law and/or low education expenditure. In the subsequent discussion, members of the audience pointed out that quantitative data also has its limitations, and that qualitative information is needed in order to tell if enrollment rates actually lead to better education. It was mentioned that when external actors such as NGOs push states to reach higher enrolment rates, children are put into big schools, where they might not get the necessary attention and support in order to learn everything they need to. Kleine Deters pointed out that this is a valid concern, but mentioned that he had also looked into school completion rates during his research. In addition, the question of economic crises and their effects on the right to education was raised. However, the answer revealed that such crises do not affect education as much as one would initially think. Although the main focus of his research is on quantitative data, Kleine Deters mentioned that he would, in future research, look into qualitative aspects as well. He is also planning on increasingly focusing on the aspects of gender difference and education in rural areas, and attempting to find information on access to education for disabled children, although data pertaining to this matter is difficult to find in many of the developing states in question. Presentation 2: ‘The Effective Realization of the Human Rights of Refugees in Turkey by Local Governments’ Elif Durmu¸s Ph.D. researcher Elif Durmu¸s presented the results of the inquiries she conducted during the first three years of the 5-year research project ‘Cities of Refuge’. The idea of the project is to investigate how local governments engage with human rights. This approach was inspired by frustrations with state-centric governance, and the fact that governments have not adequately been able to deal with recent crises, such as climate change and the refugee crisis. The project is led by an interdisciplinary team of five members, each focusing on different countries. Having recently returned from her field research in Turkey, Durmu¸s mostly focused on the findings made during her research there. However, in addition to Turkey, Durmu¸s also conducts research on another country: Switzerland. Since Turkey and Switzerland vary greatly in their levels of constitutional autonomy, one noteworthy aspect that was discussed involved whether the degree of centralization affects the local governments’ engagement with human rights. After the entry into force of the Law of Municipalities, different cities and towns in Turkey have taken up the task of protecting human rights. However, the law has been criticized for its ambiguous wording, as well as its inconsistent use of the terms ‘national’ and ‘citizens’. In addition, some of its provisions seem to contradict each other. This has led to legal ambiguity, as well as possibilities for local governments to exercise wide margins of discretion. Consequently, some municipalities have interpreted their obligations in a broad manner, whereas others have done very little. The

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field research also found that often there is little transparency, and certain regions seem very eager to proclaim a lot, while not doing much in practice. Cross-cutting findings revealed that many of the actions prompted by the introduction of the law are ad-hoc, project-based, and often not very sustainable. However, Durmu¸s still highlighted positive aspects: for instance, via these projects, training and experience is provided to the local people in human rights work. Subsequently, human rights can become more present not only at the national, but also at the local level. In the last part of the presentation, several questions arose. Firstly, Durmu¸s was asked about the impact of individuals, instead of local governments, on human rights. This is a topic that was addressed later during the day, and can be found in this report’s section on the afternoon panel. Secondly, the audience was curious about the effect of Islamic values on human rights protection in Turkey. Durmu¸s mentioned that these values have a great impact on how human rights obligations are interpreted. These values translate into certain words and concepts (such as the ‘right of the neighbor’), which are often also part of human rights terminology in Turkey. One interesting question was whether these concepts also concern human rights, or whether they should be disassociated from human rights obligations in the strict sense. Presentation 3: College voor de Rechten van de Mens Prof. Nicola Jägers The Netherlands Institute for Human Rights (College voor de Rechten van de Mens) is the NHRI of the Netherlands. Founded in 2012, its tasks include protecting, monitoring and advancing human rights domestically. In her presentation, Prof. Nicola Jägers introduced the Dutch NHRI and evaluated its effectiveness. Although there are many international institutions with a human rights mandate, there are certain reasons for which national institutions have been deemed necessary. Historically, the United Nations institutions have urged states to promote, protect and monitor human rights, including at the national level. NHRIs are competent in advising governments, but also in scrutinizing them, which puts them in a unique position. Although NGOs can scrutinize the government, and governmental organizations can advise it, neither of the two have a mandate for both of these tasks. An NHRI needs to comply with the so-called ‘Paris Principles’ in order to be effective and fully compliant. Once compliant with these principles, NHRIs around the world can engage in peer review. The Dutch NHRI has a list of tasks to reach its goals of monitoring, promoting, protecting and explaining human rights. Prof. Jägers also outlined some of the day-to-day dilemmas that NHRIs, and especially the Dutch institute, face. According to recent studies, the effectiveness of an NHRI is affected by its public legitimacy, its complaint-handling role, national inquiries, and formal institutional safeguards. Although the Dutch NHRI does not have major problems with these four factors, it still runs into dilemmas from time to time. Firstly, there are structural problems. An NHRI needs to have a very broad mandate in order to fulfil the Paris Principles. However, the Dutch institute does not have many staff members, and thus to fulfil its mandate, it needs to bring in a lot of

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external expertise. The second set of issues are mandate-related ones, which most commonly relate to territorial limitations. Under its territorial mandate, the Dutch NHRI seeks to improve human rights in the Netherlands and ‘within the Dutch sphere of influence’. This allows for wide interpretation, and has caused issues regarding the fields of business and human rights, for instance. In a world of increasing crossborder business activity, how should human rights be addressed? Finally, the NHRI has been faced with impact-related problems. It is difficult for a small institute to create impact, and as with human rights in general, it is even more difficult to measure this impact. The discussion part of the presentation questioned whether the Dutch NHRI has been bold enough in its actions. However, it was also acknowledged that the institute is still young, and has so far focused mainly on cooperation. Prioritization is necessary, and for now the institute mainly focuses on human rights education and human rights at the local level. Parallel Session 2 Presentation 1: ‘Paving the Way? The Domestic Enforcement of the European Social Charter in Light of Recent Judicial Practice’ Nikolaos Papadopoulos Papadopoulos began his presentation by recounting the recent crisis that Europe has had to endure. This crisis was not merely of a financial nature, but also involved socio-economic aspects. In particular, the recognition of social and economic human rights by the European regional system and its Member States posed a challenge. The emergence of the European Social Charter was seen as progress, but whether domestic remedies can be provided is still in need of addressing on a case-by-case basis. Papadopoulos’s presentation emphasized the implementation of the European Social Charter by Spain and Greece, while focusing on labor law measures. The Greek Case The first case that was discussed concerns austerity measures in labor law, which were found to be in violation of the European Social Charter of 1961. In accordance with the Charter, the European Committee of Social Rights was accepted as its authoritative interpreter. The ratification of the revised European Social Charter by Greece can be said to have fundamentally transformed the Greek notion of the right to dismissal in labor law. This follows from the Greek Supreme Court’s acceptance of the revised European Social Charter as self-executing. In this context, the Charter is thus seen as precise, explicit and unconditional. This was indeed confirmed by the Hellenic Parliament as it later approved the Charter’s provisions as national law. The Spanish Case Spain’s domestic implementation of the European Social Charter was discussed in connection with a kind of Royal Decree, which allowed the dismissal of employees on a one-year employment trial without notice or compensation. A Spanish court ruled that the European Social Charter in this case had direct horizontal effect. From this, it followed that although the European Committee of Social Rights’ complaint procedure was not ratified, it was nevertheless binding on national courts.

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After introducing these detailed examples, Papadopoulos concluded his presentation by highlighting some of the key achievements of the European Social Charter and its implementation in national legal frameworks. He emphasized the fact that these precedents strengthen the effect of social rights even in time of crisis. Both jurisdictions thus contribute to the effectiveness of the European Committee of Social Rights’ monitoring practices at the domestic level and contribute to the full realization of the rights in the European Social Charter. The Charter hence gains recognition as an autonomous legal basis. Lastly, states are also encouraged to change their behavior regarding social rights, and to ensure that they strive for their full realization. After the presentation, several questions were raised. One question concerned the way in which the Netherlands has dealt with the implementation of social rights. According to Papadopoulos, the Netherlands underwent much more of a debate when it comes to social and economic rights, in particular the rights of undocumented aliens. In Spain, specifically, the national judges saw much more of an opportunity to further the implementation of human rights in the national system. Another question dealt with the extent to which national organizations in Greece support the European Social Charter, and whether there is a difference with respect to the way that the Constitution clearly supports it. Papadopoulos answered by stating that Greece and Spain are both monist countries, and that this makes implementation a lot easier. Furthermore, a question about political orientation was raised. Does it make a difference for the direct effect of the Charter whether the government’s political orientation is right wing or left wing? This question was asked specifically with regards to the Netherlands. The answer provided was that the political orientation was not so much a determining factor in how strongly social and economic rights were seen to be directly applicable. Rather, what mattered were the financial resources available. The last question concerned whether, in addition to the European Social Charter, other international legal instruments were referred to in the decisions outlined in the presentation. Papadopoulos answered that there were indeed references to instruments like the International Covenant on Economic, Social and Cultural Rights (ICESCR), but that the European Social Charter, because of its emergence in times of crisis still largely remained the most relevant legal instrument consulted. Sometimes, however, both the ICESCR and the European Social Charter are considered together. Presentation 2: ‘The Role of the Brazilian Supreme Court in the Non-effectiveness of Human Rights—The Amnesty Case’ Renata da Silva Athayde Barbosa The case that Barbosa introduced to the audience is widely known as the “Amnesty Case”, formally titled Gomes Lund v Brazil 2011. The main question addressed in this decision revolved around the recognition or denial of the jurisdiction of the Inter-American Court of Human Rights (ICtHR). The human rights at stake were: the right to life, knowing the truth, freedom, and due process. The historical background of the case can be summarized as follows: Brazil was governed by a dictatorship in the past. An amnesty law that was promulgated by the military president stayed in place until 2010, and granted self-amnesty in criminal law cases to politicians. The Brazilian Supreme Court then found a way

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to circumvent ICtHR jurisdiction. As a consequence, Brazil was condemned by the ICtHR for serious human rights violations. Additionally, in the case of Brazil v Herzog, the ICtHR condemned Brazil once more for its violations of human rights and urged the state to investigate and prosecute its cases, as well as recognize international criminal law. The presentation ended with a discussion involving questions from the audience and can be summarized as follows: The first question that was raised: “Was there, in retrospect, any mention of continuing effects of human rights in these cases against Brazil?” This was answered with reference to the conflict concerning the legality principle in Brazil: Brazil found itself in breach of its own criminal law provisions and international human rights, and up until recently decided to favor legality over human rights. This was perceived as shocking by the international community. The next question that was brought up was: “Why did it take so long for action to evolve and why were changes ultimately effected?” Barbosa answered this question by pointing out that much depended on constitutional approval and strengthening the role of ICtHR jurisprudence. The third question which arose was: “Human Rights fulfill both a sword and a shield function. They protect us but also strike down human rights violations. As many amnesties have been criticized recently, how should we evaluate this?” The answer was that there is indeed a tension between criminal law and international human rights law, and that it can be very difficult to determine where to draw the line. In essence, it depends on societies themselves to determine the extent to which they want to leave the past behind, and which area deserves priority. Presentation 3: College voor de Rechten van de Mens Dr. Jan-Peter Loof The third presentation, given by Dr. Loof, introduced the Dutch NHRI, as was done in the parallel session 1 given by Prof. Jägers (page 10). Founded in 2012, the NHRI is an organization funded by the government, while acting independently from it and other organizations. Since the presentation was similar in content to the one given by Jägers, this report will directly address the questions that came up during the presentation. The first question concerned the necessity of establishing the NHRI in the first place. It was primarily necessary to establish this human rights body to enhance the effectiveness of international and national human rights mechanisms at the domestic level. A very pronounced focus also lies on independence and pluralism within the organization. In order to assess the effectiveness of human rights on a national scale, the Paris Principles can be seen as guiding. However, Dr. Loof emphasized that we need to look beyond that in order to truly assess effectiveness. Especially important is thus a locally organized approach to human rights, which enables easy accessibility. That is what the NHRI focuses on. The Paris Principles leave room for organization on a local and national level. The Netherlands utilized this by employing the Commissioner model, but other countries prefer to make use of other organizational systems.

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It follows from the above that domestic organizations, such as the NHRI, are very important in realizing human rights, both on a temporary and a permanent basis. They can even be seen as contact and follow-up points for international human rights dialogues. Panel 2: Human Rights at the Individual Level: Individual Experiences and Key Actors After the two separate morning panels, a plenary afternoon panel was arranged in the Statenzaal. The theme of this session revolved around issues that might prevent the realization and enjoyment of human rights in practice. Although states may have ratified different instruments and accepted various human rights mechanisms, this does not automatically lead to everyone being able to benefit from these guarantees. The aim of the afternoon panel was to explore the differences in individual experiences with regard to the fulfillment of human rights, and to possibly find ways in which groups and individuals could help strengthen the effectiveness of realization of their own rights. Two presentations were given to this end; one on the human rights-related difficulties of child participation in legal proceedings, and one on the role of individual agency of local government officials in the realization of human rights locally. A discussion followed each presentation, and included comments by members of the audience. Presentation 1: ‘Child Participation as the Holy Grail. The Interplay Between The Child, Parents and the State in Legal Proceedings’ Dr. Stephanie Rap and Dr. Katrien Klep After a short introduction to the second panel by the chair, Dr. Roland Moerland, Dr. Rap and Dr. Klep outlined the presentation and their respective work on the right of children to participate in legal proceedings. The child’s right to participation finds its origins in three important legal mechanisms: The UN Convention on the Rights of the Child, the jurisprudence of the UN Committee on the Rights of the Child, and the jurisprudence of the Court of Justice of the European Union. Recent developments in Europe, both on a policyand soft-law level, drew attention to children’s rights, and in particular the right to participation in legal proceedings. It is hence important to emphasize the relevance of children’s participation by pointing out how positive its effects can be. Not only does a child’s self-confidence and self-esteem rise, but in addition, children also learn to understand better and accept legal decisions directed at them and their parents. In addition, giving children the opportunity to participate can strengthen important values such as fairness and professional behavior. It is especially important to take these points into consideration when children are in extremely vulnerable situations. Frequently, asylum procedures constitute such vulnerable situations, and thus a strong legal position is needed for the child in such cases. Both accompanied and unaccompanied children alike may find themselves in such difficult circumstances.

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Recently, Dr. Rap conducted research in this field. One of the results was that accompanied and unaccompanied children were treated differently in asylum procedures. Accompanied children were heard only from the age of 15 years and up, whereas unaccompanied children were heard in principle from the age of 6. In Dr. Klep’s research, children’s rights to be heard in the municipality of Rotterdam were studied. The research questions concerned the role of the local Children’s Ombudsman, and the way the municipality deals with complaints in voluntary youth care. While different organizations and aspects of youth care were examined, the overall conclusions can be summarized as follows: laws, policies and practices were generally perceived by children and their parents to be quite complex, which made accessibility more difficult. In addition, it can be noted that children are deeply affected by the decisions taken regarding their future, but often have little influence over these decisions. Thus, accessible information and adequate support by parents and caretakers are crucial factors in ensuring a child’s effective participation in legal and administrative proceedings. The difference between formal and effective participation was also noted, and the importance of the existing rules to allow for meaningful participation was highlighted. Presentation 2: ‘The “Humans Behind Human Rights”—The Role of Individual Agency of Local Government Officials in the Materialization of Human Rights at the Local Level’ Prof. Barbara Oomen, Dr. Moritz Baumgaertel, Sara Miellet, Tihomir Sabchev, Elif Durmu¸s Presented by Elif Durmu¸s The afternoon panel ended with a presentation by the Cities of Refuge project on the ways in which human rights enter local politics. More specifically, the presentation focused on the ‘humans behind human rights’: individuals who, due to their experience, background or ambitions with regard to human rights, act as engines in local governments’ human rights efforts. The research explores the reasons why human rights-minded local regions have come to adapt these values, and the concept of ‘localization of human rights’, known as vernacularization, was also introduced. Although laws set out standards equally applicable to everyone, divergence and inconsistency occurs in practice. Some of these divergences relate to individual agency, and are triggered by decentralization, flexibility in the local government, and the need to respond to urgent situations. The factors affecting an individual’s connection to human rights include personal, professional and political ones. Additionally, human rights values can stem from one’s religion, morals, and the perception of human rights as binding law. For instance, regarding private factors, an official in the Keçiören district in Turkey developed a better understanding of the importance of human rights in everyday life after having a disabled child. In relation to the professional factors, work in an NGO or academia prior to going to work in a local government could affect one’s level of engagement with human rights. For example, the ‘human rights city’ of Gwangju, South Korea, started disseminating human rights information after one person from the region had come back from studying an LL.M. in Europe. In Turkey, on the other hand, many people are religious, and religious values can often affect individuals’ views of human rights.

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After an individual has developed an understanding of the importance of human rights, the role of networks, relationships and interactions become relevant: as actors interact, they build an identity, and the human rights-mindedness of individuals can spread to the whole community. The presentation was followed by numerous questions. The first one concerned the role of political parties: as many parties are not so human rights-oriented, the extent to which their views had to be followed was questioned. For instance, it was not possible for a city in Turkey to be labeled a ‘human rights city’, as this requires a zero-tolerance policy on discrimination, which was not possible, as the city had to follow the local political parties, which had discriminatory practices in place. The political nature of the localization of human rights was also discussed, and although ‘branding’ cities as human rights cities is widely criticized, having to establish a certain ‘image’ does not necessarily mean that human rights are compromised. Furthermore, such cities raise awareness of many issues, and should not directly be condemned, although building an image is an important aspect of this. Closing Keynote Speech by Prof. Suzanne Egan Prof. Suzanne Egan closed the event by presenting some final thoughts on the day and the theme of this year’s Toogdag. Showing the audience a photo of Sisyphus, she highlighted how difficult and demanding human rights work can sometimes be. She also reiterated the difficulty of talking about effectiveness in connection with human rights. Expanding on the theme of effectiveness, Prof. Egan chose to talk about the one human rights system she is most acquainted with: the treaty system of the United Nations. She noted that it is timely to consider the cornerstone of the UN human rights framework, as the institution is facing the possible cancellation of six human rights treaty bodies, and there have been talks about reviewing the treaty system entirely. According to Prof. Egan, there is a general perception that the UN treaty system is ineffective. Due to the increasing number of new treaties, as well as the increasing number of states ratifying older treaties, the need for compliance and reporting has increased. More staff is needed, and if there is too little capacity to handle the increased workload, underreporting and non-reporting becomes more common. Although some possible strategies for avoiding this problem exist, it remains a difficult one to solve. All in all, the speech was a thoughtful way to wrap up a day focused on human rights effectiveness, and introduced several suggestions as ways forward.