Strategic Litigation Research Articles

Strategic Litigation at the Domestic and International Levels as a Tool to Advance Climate Change Adaptation?

Strategic Litigation at the Domestic and International Levels as a Tool to Advance Climate Change Adaptation?

Checking the Power of Technology Business in Public Roles through Strategic Litigation: Case Examples from Kenya

Globally, there is concern about the growing power of technology companies as they pervade private and public spheres of life. Shifting the gaze from the European Union and United Nations where new frameworks for business accountability are emerging, this article discusses the role and impact of private companies taking on public roles in Kenya’s digitalisation and the historical roots of the alliance between the state and private companies. Through case studies, the article discusses an emerging response where individuals and groups are taking up strategic litigation against these private companies.

Legal Struggles: A Social Theory Perspective on Strategic Litigation and Legal Mobilisation

Social movements, NGOs and other political actors often mobilise the law for social change. Strategic litigation and collective legal mobilisation can be key instruments to face current political challenges like the climate crisis, human rights violations against refugees or the exploitation of workers along global supply chains. Although these struggles are framed by a societal context and have impacts on the political and juridical fields, the literature about legal mobilisation still does not decidedly engage with a social-theory-based perspective on such struggles. By developing the concept of legal struggles, the article proposes a conceptual framework to analyse both the ambivalence and the emancipatory potential of progressive struggles in the juridical field. Critical Theory, Materialist Theory and the Theory of Social Fields by Pierre Bourdieu are combined to investigate the specific form of collective legal struggles carried out in this arena. We examine repertoires and strategies of collective actors as well as the emancipatory potential of these mobilisation strategies. Our conclusions point to the structural distinctions and selectivities which define the juridical field in capitalist societies and also the conditions of possibility of political struggles using the law.

What makes an international institution work for labor activists? Shaping international law through strategic litigation

AbstractStudies on international legal mobilization often analyze the mobilization efforts of activists at a single international court. Yet we know little about how activists choose among multiple international institutions to advance social justice claims. Drawing on comparative case studies of Turkish and British trade union activists' legal mobilization efforts and case law analysis, I show that activists, guided by their lawyers, probe multiple avenues to identify the legal institution with the highest judicial authority and is most responsive to activists' claims. Once they identify their target institution, the iterative process between a responsive court and activists' strategic litigation can build a court's jurisprudence in a new issue area, even if the court provides limited de jure rights protections. Activists primarily use international litigation strategy to leverage structural reforms at the domestic level and to set new international norms through precedents.

NGOs, international courts, and state backlash against human rights accountability: Evidence from NGO mobilization against Tanzania at the African Court on Human and Peoples' Rights

AbstractWhen nongovernmental organizations (NGOs) encounter state resistance to human rights accountability, how do NGOs use international courts for their human rights advocacy strategies? Considering the overlapping phenomena of shrinking civic space within authoritarian, hybrid, and democratically backsliding regimes, and state backlash against international courts, NGOs navigate two potential levels of state backlash against human rights accountability. Building on the interdisciplinary scholarship on legal mobilization, we develop an integrated framework for explaining how states' two-level (domestic and international) backlash tactics can both promote and deter NGOs' strategic litigation at international human rights courts (IHRCs). States' backlash tactics can influence NGOs' opportunities, capacities, and goals for their human rights advocacy, and thus affect whether and how they pursue strategic litigation at IHRCs. We elucidate the value of this framework through case studies of NGOs' litigation against Tanzania at the African Court on Human and Peoples' Rights, an understudied IHRC. Drawing on an original data set, interviews, and documentation, we process-trace how Tanzania's various backlash tactics influenced whether and how NGOs litigated at the Court. Our framework and analysis show how state backlash against human rights accountability affects NGOs' mobilization at IHRCs and, relatedly, IHRCs' opportunities for influence.

Activists in international courts: Backlash, funding, and strategy in international legal mobilization

Activists in international courts: Backlash, funding, and strategy in international legal mobilization

Foreign agents or agents of justice? Private foundations, backlash against non-governmental organizations, and international human rights litigation

AbstractThe premise of Russia's 2012 “Foreign Agents” Law, one of the first such laws restricting foreign funding for non-governmental organizations (NGOs), is that foreign monies equal foreign agendas. Since then, over 50 countries have adopted similar laws using a similar justification. This paper interrogates this claim of foreign donor influence through examining legal mobilization by human rights NGOs at the European Court of Human Rights (ECtHR). We track donor support for litigation by providing an overview of all foundation grant flows relating to strategic litigation for 2013–2014, and then matching the granting activities of two major U.S. foundations over 14 years to human rights NGO participation in cases before the ECtHR. Further, through case studies of Russian NGOs, we assess the causal role that donor support has played in facilitating their increased involvement in ECtHR litigation. The combined analysis indicates broad patterns of private foundation support to litigating NGOs, but uncovers no evidence that foreign donors were “pushing” NGOs toward litigation as a strategy, but instead more evidence suggesting that NGOs convinced donors to support human rights litigation. Despite the inaccuracy of the justification underpinning Russia's foreign agent law, the law threatens the survival of human rights organizations.

Feminist Protest Action in Kenya: Lessons and Directions

This essay historicizes feminist protests in Kenya over the last decade to examine the changing patterns of protest action and how they illustrate the evolution of both feminist discourses and sites within which these debates are animated. I look beyond the streets and direct action as the epitome of protest action to examine strategic litigation, hashtag activism, and national campaigns as important ways through which feminist protest can be understood in Kenya, focusing on three recent cases.

Legal Mobilisations, Trade Unions and Radical Social Change: A Case Study of the IWGB

Abstract In recent years, a number of new style trade unions have emerged which are said to exhibit a more ‘radical’ orientation to social change than more ‘traditional’ trade unions. This has raised questions as to the significance of the willingness of these new style trade unions to mobilise the law in pursuit of that change, and in particular, to engage in so-called ‘strategic litigation’. Through a case study of some of the legal mobilisations of one of the more well-known new style trade unions in the UK, the Independent Workers of Great Britain union (IWGB), drawing on insights from the literature on legal mobilisation, and supplementing this with insights from the Marxist theory of the legal form, this paper will highlight the distinctiveness of these new style trade unions and explain the basis of their radical potential, before showing how that potential is limited, or negated, by the particular way in which they engage with law in practice. The paper will conclude with some observation as to what a more radical orientation to the law might look like for social organisations and trade unions in practice.

Intersex Interventions as Human Rights Violations: The European Court of Human Rights Sets Out Guiding Principles in M v France

In 2022, the European Court of Human Rights, for the first time, signalled that it regards non‐consensual interventions on intersex individuals which are not motivated by medical necessity as human rights violations. This case note argues that the admissibility decision in question, M v France, albeit ruled inadmissible on procedural grounds, constitutes an important step towards binding supranational human rights standards, particularly regarding torture and ill‐treatment. While M v France could inspire intersex people to further their claims as strategic litigation, the note reflects on the central questions invoked by the Court's decision and some of the legal hurdles that intersex people may face when approaching courts with claims for recognition and redress.

The politics of implementation: Social movements and mining policy implementation in Guatemala

This study examines the way Guatemalan antimining movements engaged with the state bureaucracy during the policy implementation process. It contributes to the literature on social movement impacts on megaproject development by identifying the direct and indirect mechanisms that movement leaders used to interact with state institutions and change the way policy was put into effect. Two mechanisms employed by resisters are found to be influential. The first involves the use of strategic litigation to challenge the legality of mine licenses and secure the suspension of operations through court rulings. The second involves direct engagement with the state mining bureaucracy as resisters pursue participation in community consultations as part of the revised mine licensing process. This study shows how movements can press for impact even in the late stage of policymaking as they add participatory mechanisms and stoke institutional development. While significant, such outcomes require an enabling context that may be difficult to sustain. Unless policymakers incorporate inclusive participatory practices and transparency requirements into the rule-making and enforcement work of state bureaucracies, public influence is likely to be limited.

Reflections on children and law: Special Edition in honour of Emeritus Professor Trynie Boezaart

Professor Trynie Boezaart imagined a law faculty and a law profession -in fact, a legal system - that recognised child law as a separate field of law. She did not just leave that in the realm of imagination - she rolled up her sleeves and got to work on making it happen. In 1998 she established the Centre for Child Law in the Department of Private Law at the University of Pretoria. As an established researcher and author in family law, the law of delict and the law of persons, the Department of Private Law was her home. She knew very well, however, that child law was broader than that. It spanned many aspects of law - constitutional law, public law, and even, somewhat surprisingly, mercantile law. The very first case that the Centre for Child Law took on in 2004 was in fact a labour law matter which carved out a special exemption for child and youth care work, by defining this work as part of essential services, in order to ensure children would not be left without carers due to a workers' strike. In the year that case was taken, the first author of this foreword, Ann Skelton, joined the Centre for Child Law. She was the Centre's Strategic Litigation Director from 2004 to 2014. Ann took over as Director when Trynie moved to become the Head of Department of Private Law. In the meanwhile, Karabo Ozah, the second author of this foreword, joined the Centre as an attorney, and in January 2019, she became the Director of the Centre for Child Law.

Immunities of Foreign Officials for International Crimes: The Dilemmas of Strategic Litigation

Abstract This article analyses the elusive search to restrict immunities for foreign officials accused of international crimes as a form of strategic litigation. It emphasizes how litigation ‘constitutes’ legal reality beyond particular victories. Problematizing ‘success’ in litigation makes it possible to pay attention to unintended effects and even perverse outcomes of certain strategic routes. A proper understanding of success as more than victory is then used to assess three routes that have been used to try and limit, circumvent or oppose functional immunities of former officials. These routes are found not to be of even value for human rights, independently of their legal validity or their odds of success: the idea that international crimes are not committed as part of state functions trivializes the ‘public’ character of most international crimes; the argument that the jus cogens norm that prohibits international crimes trumps immunities either constantly needs to be finessed or sets up too dramatic a showdown; the idea that immunities offend human rights finds some favour as the one that is closest to the heart of human rights, although its tendency to symbolically sanctify the right to prosecutions could also have problematic ripple effects. Offered as a contribution to thinking through the rights implications of litigation, the article insists on the responsibility of human rights lawyers in creating legal worlds of their own making.

Governing Through Scalar Elasticity: An Analysis of the Accountability Gap in Migration Control in the Central Mediterranean

Accountability has become elusive in the context of migration control, especially at the external borders of the EU. In the Central Mediterranean, a regime of cooperative interdiction has developed since 2017 whereby migrants fleeing the North African shores by boat are intercepted and forcibly returned to Libya, without ever entering European jurisdiction. This article scrutinises practices of strategic litigation by Italian lawyers who have sought to destabilise this regime of externalised control, which emerged after the 2017 Libya–Italy Memorandum of Understanding. It outlines the difficulties of litigation seeking to challenge deterrence measures and shows the variety of actions lawyers have had to come up with to address Europe and Italy's role in this system. The analysis of this litigation sheds light on the dynamic shape that both sovereignty and migration control take on in transnational contexts of governance, and how legal scales become blurred across local, national, and international jurisdictions. I argue that accountability for migration control is rendered elusive by the fact that Europe's external maritime border is governed via scalar elasticity. In practice, this is a form of governance that takes place across a multiplicity of legal scales, whilst authoritatively referring to statist scalar visions

Challenging the boundaries of accountability: strategic litigation and jurisdiction in European migration control policies

ABSTRACT Current European border policies both evade accountability and perpetuate the violation of human rights by state actors abroad. The ongoing case of S.S. v Italy offers an opportunity to challenge these existing migratory frameworks and reassess conceptions of jurisdiction. The court's decision will be crucial in determining whether extraterritorial exercises of sovereign power can still fall within a nation's jurisdiction. This paper argues that adopting the Functional Jurisdiction Model, which emphasises factual and legal elements over location, would increase accountability for state actions abroad. Although this approach may remain susceptible to existing efforts by states to avoid judicial scrutiny, it is essential to address current gaps in accountability and uphold human rights principles. The influence of international human rights law in shaping national policy cannot be ignored, and implementing a new understanding of jurisdiction can better protect the rights of migrants and ensure that sovereign authorities are held responsible for extraterritorial human rights abuses.

Universal right to a safe and healthy environment and use of child right strategic litigation in climate justice

Universal right to a safe and healthy environment and use of child right strategic litigation in climate justice

GENDER EQUITY: EXAMINATION OF THE LAW RELATING TO EMPLOYMENT OF WOMEN IN UGANDA

The main aim of this study is to find out how the existing legislation can adequately address the challenge of gender inequality in employment of women in Uganda. The violations of women’s employment rights originate in the virtually universal history of unequal power relations between men and women. The findings of the study are that the existing regulatory framework on employment in Uganda though adequate, its enforcement is still a challenge. Major emphasis has been directed towards the use of gender-neutral non-sexist language whereas other factors that interfere with the regime have remained unchanged. The study further makes significant findings that gender inequality in the workplace takes many forms namely; denial of maternity leave, unequal pay, wrongful dismissal, denial of maternity leave, discrimination at work, sexual harassment, among others. The denial of such rights perpetuates gender inequality in the field of employment. The study makes relevant recommendations namely; strategic litigation, enforcement of existing laws, affirmative action, mainstreaming gender in employment sector and reform of traditional beliefs among others.

Rizici sudskih sporova u finansijskom sektoru i klimatske promene

Strategic Litigation is becoming an increasingly important tool in the fight against climate change thanks to the awareness of this global problem throughout the world and the increased knowledge about case law in this area. This article tries to elaborate on the kind of disputes in the financial sector related to climate change, and the increased importance of litigation in order to change corporate behavior.

RELIGION, COLLECTIVISM, AND HOMOPHOBIA IN UGANDA

Uganda is notoriously homophobic and religious. Historically, same-sex relations existed in the country before the coming of Europeans. Christianity and Islam led to the homophobia that permeates and dominates Uganda's economic, social, and political landscape to date. Time may gradually obliterate this homophobia; but strategic litigation, advocacy, and activism should also be intentionally employed to restore dignity to LGBTQI+ persons in Uganda.

Strategic Climate Change Litigation: Potential for Legal Adaptation

With the increasing emergency of climate change and the lack of concrete action from States to adapt and mitigate climate change effects, number of legal and non-legal means of contestation emerged to try and accelerate climate action. Climate change litigation is one of them, notably trying to enhance legal adaptation. This contribution will argue that climate change litigation, when used strategically, can have direct and indirect effects to create a more effective climate governance. The hypothesis that will be tested is that climate change litigation cases have an impact that goes beyond verdicts, having the power to affect regulations’ enforcement and creation, and therefore participate in legal adaptation and more effective governance. The effects could be both direct, influencing the State to legislate, or indirect, for instance by co-opting the public opinion or the media. The contribution will start with an overview of the evolution of both climate change litigation and scholarship, as well as the definition debates. A second section will focus on strategic litigation, starting with the legal issues that arise in litigation and the strategic choices available for legal activists in first sub-section. Then, impacts as well as the ways in which strategic choices can maximise impacts of litigation will be analysed. The third part will present a Swiss landmark case: Union of Swiss Senior Women for Climate Protection v. Switzerland.