Myth or Lived Reality

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 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.

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.

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-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 the right-as-structure can be effective in changing right-as-outcome—as long as we are patient enough.

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 socio-economic 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 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.

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-Turkey-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 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.

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 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?

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 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.