Strategic Litigation Research Articles

Strategic litigation before the European Committee of Social Rights: Fit for purpose?

This article examines the structural elements of the Collective Complaints Procedure, seen as an avenue of socio-economic rights strategic litigation, that potentially enable or impede NGOs and trade unions in addressing violations of the European Social Charter before the European Committee of Social Rights. The findings show that the procedure is a unique form of collective redress in the human rights system, with exceptional structural characteristics, which render it an avenue of strategic litigation by its nature. Its main strength lies in that it enables the participation of organisations and vulnerable groups of people that are denied access in political or judicial fora, either at the domestic or supranational level, to deliberate on social policy issues and put pressure on States to address social issues on the basis of economic and social rights.

A critique of the Supreme Court’s pronouncements on international law and the right to housing in Kenya in Mitu-Bell Welfare Society

Kenyan courts have long grappled with questions surrounding the place of international law in the legal landscape particularly after the promulgationof the 2010 Constitution. Moreover, socio-economic realities have created conditions such as poor and inadequate housing for portions of society, a significant number resultantly having to reside in informal settlements all over the country. Unregulated demolitions of these settlements have left thousands of these already precarious slum dwellers homeless and destitute. In light of these issues, the case of Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (amicus curiae) was expected to bring about clarity on the application of international law to issues such as human rights, as well as provide a definitive interpretation of the right to housing that would help mitigate injustices in this area. This paper analyses the Supreme Court of Kenya’s decision in Mitu-Bell Welfare Society, canvassing how the court addressed the applicability of international law and the interpretation of the right to housing.

Strategic Litigation against European Migration Control Policies: The Legal Battleground of the Central Mediterranean Migration Route

Abstract Migration control policies at Europe’s borders that lead to human rights violations are widespread. As a result, NGO s, law clinics and individual lawyers mobilise the law against different actors in an attempt to seek accountability for these violations and end the policies that cause them. Accordingly, the aim of this article is to present an overview of and initial reflection on strategic litigation concerning the Central Mediterranean migration route. The article first depicts European migration control policies in the Central Mediterranean and their human rights consequences. It then provides an overview of recent strategic litigation before various domestic, regional and international forums. Finally, the article discusses the potential of these litigation efforts to overcome the accountability challenges caused by European migration control policies in the Central Mediterranean.

‘Turning the Rights Lens Inwards’: The Case for Child Rights-Consistent Strategic Litigation Practice

Abstract The last three decades have seen an explosion of academic, advocacy and policy-maker interest in both the theory and the practice of children’s rights. There is a growing global body of strategic litigation focused on the advancement of those rights through positive legal and/or social change. In this context, child rights have primarily played an ‘outward-facing’ role: used as a schema that should constrain or mandate the actions of external decision-makers that are the targets of litigation. However, children’s rights have not generally been used as a framework by which to assess, and as necessary, critique strategic litigation practice—i.e. as a lens to be turned inwards by litigators to consider the extent to which their practice is consistent with child rights standards. This article considers the case for child rights strategic litigation (CRSL) practice that is child rights-consistent. In doing so, it identifies CRSL-relevant rights under the UN Convention on the Rights of the Child and outlines how such rights arise in the litigation process. It ultimately posits that child rights can serve as a clear, multi-faceted framework that enables litigators to strengthen their existing practice in a legitimate, unified and coherent way.

Can We Trust the Courts in Labour Law? Stranded Between Frivolity and Despair

Historically, the ruling theory of British labour law, collective laissez-faire, was rooted in distrust of courts. Over the last forty years, there have been profound and enduring constitutional changes. Successive governments have pursued deregulatory agendas through legislation, and workers and organized labour have turned increasingly to courts to vindicate their fundamental rights. In light of these changes, this article re-assesses the case against courts in British labour law. It identifies a vital yet subsidiary role for courts in labour law. This should lead scholars to reappraise the marginalization of doctrinal legal scholarship, lest the legal academy become stranded between frivolity and despair. Courts, Fundamental Rights, Statutory Interpretation, Trade Unions, Strategic Litigation

Domestic accountability through strategic litigation: Towards redress and reparations for Kenya's 2007-2008 post-election sexual and gender-based violence

There are a range of impediments in the pursuit of redress and reparations for sexual violence, more so in conflict and post-conflict situations. Often if accountability is sought through judicial institutions, it is through criminal proceedings. However, another option available is to file, simultaneously or alternatively, a civil and/or constitutional proceeding. In February 2013 six women and two men who were sexual and gender-based violence survivors of Kenya's 2007-8 postelection violence filed a constitutional petition. On 10 December 2020 the Kenyan High Court awarded four survivors Kes 4 million (approximately US $36 513) as general damages for the violation of their constitutional rights. This article, which is anchored on Kenya's human rights obligations, uses Kenya as a case study to examine the pursuit of domestic accountability through strategic litigation and the contribution made towards redress and reparation for survivors of sexual and gender-based violence from post-election violence. First, the author argues that the transitional justice approach in Kenya provided the foundation for the strategic litigation case. Therefore, the article provides an overview of key aspects of Kenya's transitional justice approach. Second, the author argues that to understand the significance of the strategic litigation, an understanding of the sexual and gender-based violence which necessitated the strategic litigation case is necessary. The article therefore examines Kenya's legacy of historical injustice and gross human rights abuses which played a role in the sexual and gender-based violence during post-election violence. Third, the author analyses the strategic litigation case, considering the key claims by the petitioners and the decision of the Court. Finally, the article discusses the lessons learnt and contribution made by this case. The author submits that, although imperfect, this strategic litigation was a valuable recognition and acknowledgment of sexual and gender-based violence survivors of post-election violence, contributed to reparation access and had an impact on domestic accountability as an option for redress and reparation.

Book Review: Strategic litigation and the struggle for lesbian, gay and bisexual equality in Africa by Adrian Jjuuko

Book Review: <i>Strategic litigation and the struggle for lesbian, gay and bisexual equality in Africa</i> by Adrian Jjuuko

Trabalho clínico legal para a proteção do direito à moradia decente da população com deficiência vítima do conflito armado

This document presents an analysis of the right to housing with respect to the population displaced by the armed conflict and shows how strategic litigation actions carried out from the clinical teaching of law can contribute to social change and the realization of the right to housing. worthy. All this is done from the evidence of a specific case study.

Causality and the fate of climate litigation: The role of the social superstructure narrative

AbstractClimate litigation has become a strategic tool to push for climate justice, including compensation for losses caused by climate change. Many cases rely on the establishment of a causal relationship between the defendants' emission of greenhouse gases (GHG) and the plaintiffs' losses. All decided cases seeking compensation for a concrete climate related impact have been unsuccessful (thus far). Legal scholars as well as social and natural scientists have looked at individual cases and evidence of these unsuccessful claims, aiming to identify legal and scientific hurdles. Based on previous research where we analysed specific cases, we step back from a case‐specific analysis in this article and identify the social context in which law and science operate and intersect. We assert that without a general understanding of the urgency of climate change and the scientifically proven fact that climate change impacts the present, and that it is possible to attribute individual losses to human‐caused climate change, the fate and future of climate litigation focusing on losses and damages will continue to encounter major obstacles in courts. This is despite the increasingly sophisticated strategies of litigants; the positive outcome of some strategic litigation and improvements in the field of climate science, all of which would be expected to sway for a successful future of the fight against climate change.

Snatching Legal Victory: LGBTQ Rights Activism and Contestation in the Arab World

Abstract This article examines the relationship between emergent LGBTQ movements and the state in the Arab world over the past two decades. Focusing on the efforts of various LGBTQ social movements to confront the criminalization of homosexuality in the Arab region, the article puzzles over a cascade of legal victories for LGBTQ rights advocates in Lebanon in recent years in spite of a hostile justice sector mired with corruption. It interrogates a set of prevalent assumptions about the effect of regime type (democracy v. authoritarianism) on gay rights activism and litigation. This article explains how some LGBTQ Arab movements have successfully relied on strategic litigation to confront criminalization laws while others have had less success in pursuing overtly confrontational approaches. The paired comparison between Tunisia and Lebanon shifts our focus back to the agency of judges and social movement leaders in shaping legal outcomes for LGBTQ citizens.

Strategic Litigation before the International Court of Justice: Evaluating Impact in the Campaign for Rohingya Rights

Abstract Strategic litigation, a form of litigation brought with the goal to stimulate structural change, is a growing practice in international courts. Although there has been increased scholarly attention on these trends, it has yet to consider the impact arising from strategic litigation before the International Court of Justice (ICJ). This article outlines a basic structure to evaluate the impact of ICJ strategic litigation. It does so generally and through a case study into the campaign by the Organisation of Islamic Cooperation (OIC) to restore Rohingya rights and secure accountability for crimes committed against this population through the claim that Myanmar has violated the Genocide Convention. This article identifies the OIC’s campaign goals and how the ICJ case initiated by The Gambia furthered that campaign and evaluates the impact of this case in advancing Rohingya rights.

SLAPPed by the GDPR: protecting public interest journalism in the face of GDPR-based strategic litigation against public participation

ABSTRACT Strategic litigation against public participation is a threat to public interest journalism. Although typically a defamation claim underpins a SLAPP, the GDPR may serve as an alternative basis. This paper explores how public interest journalism is protected, and could be better protected, from abusive GDPR proceedings. The GDPR addresses the tension between data protection and freedom of expression by providing for a journalistic exemption. However, narrow national implementations of this provision leave the GDPR open for abuse. By analysing GDPR proceedings against newspaper Forbes Hungary, the paper illustrates how the GDPR can be instrumentalised as a SLAPP strategy. As European anti-SLAPP initiatives are finetuned, abusive GDPR proceedings need to be recognised as emerging forms of SLAPPs, requiring more attention to inadequate engagement with European freedom of expression standards in national implementations of the GDPR, data protection authorities’ role in facilitating SLAPPs, and the chilling effects of GDPR sanctions.

Navigating the complexities of (trans) gender equality rights within the parameters of reasonable accommodation and security tensions in South African prisons: The judgement of September v Subramoney

Within the heterogenous global prison population of about 11.7 million, transgender prisoners have unique vulnerabilities and are exposed to substantial risks and harm. Their situation has been viewed as a ‘‘double punishment’’ by encompassing the system lack of gender recognition and exposure to traumatic experiences of detention often tantamount to torture. In Africa, sexual minority rights remain a contentious issue, and there is little documented about the situation of incarcerated transgender people.South Africa is one of the most progressive African countries in terms of equality legislation and advancing the rights of sexual and gender minorities. A legal realist review was conducted of the 2019 South African Equality Court judgement of September v Subramoney, based on case decisions and by scrutinizing the international and regional human rights protections and rights assurance mechanisms which encompass the fundamental rights of detained transgender individuals. These are not limited to protection from custodial violence, prohibition of torture and discrimination but include conditions of accommodation, right to express their gender identity and access to gender affirming healthcare. The subsequent legal realist account critiques the impact of this judgement based on extant published literature (empirical, humanitarian, and UN Committee reporting) and jurisprudence in other jurisdictions cognisant of increasing strategic litigation in the field of transgender rights. The implications of this ground-breaking judgement are considered, with a particular lens focusing on the rights of trans-prisoners (particularly trans-women as most vulnerable) to equality, but also dignity, freedom of expression, dignified detention, and the prohibition of inhumane treatment or punishment. These rights are positioned within the boundaries of safe and reasonable accommodation, ability to gender express and prison system capacity to deal with security tensions in high risk cis-normative detention environments.

The Continuation of Politics in the Courtroom: Scotland and Strategic Litigation

In 2018 and 2019, two bombshell judgements were handed down by Scottish courts, in the Wightman reference and Cherry/Miller 2 case. Both have raised the question of the attitude of Scottish judges in the context of Brexit. Could this be a sign of a future change of attitude, in particular if an independence referendum should throw up new constitutional and legal issues in Scotland?

Strategic litigation against torture: Why domestic courts matter.

Strategic human rights litigation is often associated with filing cases before in-ternational and regional courts and treaty bodies. This article examines ways in which significant advances in protecting the rights of victims of torture and similar crimes can be achieved through domestic courts, even in countries with limited respect for the rule of l aw. This article does not cover universal jurisdiction or transnational cases, but rather focuses on how domestic courts can be used to address torture that takes place in the same country. It is not a review of global practice; rather, it is based on observations drawn from the author's personal experience of over 25 years of strategic litigation and ad-vocacy against torture; lessons learned from the work of partner organizations and lawyers from around the world; and the results of three research projects commissioned by the Open Society Justice Initiative (OSJI): one on the impact of strategic litigation on torture in custody in Argentina, Kenya, and Turkey (OSJI, 2017); another on how do-mestic courts in Latin America handle repa-rations for torture and similar human rights violations (Garcia Garcia, Fierro Ferráez, and Lisitsyna, 2019); and a third on strategic liti-gation against torture in Asia (Bokhari, 2020). While acknowledging continued challenges, the author demonstrates that do-mestic courts are often better placed than their international counterparts to address several aspects of human rights litigation and protection of victims' rights and in some cir-cumstances can have broader impact.

The Worker and the Law Revisited: Conceptualizing Legal Participation Mobilization and Consciousness at Work

Situating legal mobilization within a wide-ranging conceptual framework of worker activity that goes beyond recent interest in ‘strategic litigation’ and related organizing in the gig economy, this contribution explores the fundamental relationship between ‘laypeople’, i.e., the non-professional subjects of law, and labour law. Notwithstanding a growing interest in empirical labour law research, there remains a lack of conceptual clarity and rigorous evidence pertaining to how workers, activists and employers think about law and how this has evolved over time. The idea, often implicit within policy discourses, that we have become increasingly ‘legally minded’, and the implications of this, remain particularly underexplored. This article develops understanding of what legal mobilization is, does, or potentially can do, mapping the range of ways in which ‘laypeople’ may invoke or engage with law at work, distinguishing between activities defined as (1) legal participation; (2) mobilization; and (3) consciousness. This schema goes beyond the more obvious ways in which laypeople engage formal legal institutions, ‘strategically’ or otherwise, towards everyday processes of constructing ‘legalities’. The concept of legalities, meaning taken-forgranted assumptions about what is ‘legal’, provides a lens through which to view the ideological processes involved in the constitution of society and economic institutions through law and vice versa. Revisiting the theme of the worker and the law, this schema focuses as much on how the worker understands and acts upon the conceptions of law as much as how the law characterizes and protects the worker, and how the interrelations between the two may have evolved over time. Legal Participation, Mobilization, Consciousness, Juridification, Individual Employment Rights, Employment Tribunals

Mobilizing for Recognition: Indie Unions, Migrant Workers, and Strategic Equality Act Litigation

Drawing on a broad repertoire of action, including strategic litigation, several new activist unions have appeared that seek to represent the multiracial working class of contemporary Britain. Although the court cases that have drawn the most attention are those that challenge the misclassification of employees or ‘workers’ as ‘self-employed’, another dimension of these unions’ strategic litigation has been the utilization of the Equality Act 2010 (Equality Act) to allege racial discrimination. The contention advanced in this article is that it might be possible to read unions’ increasing use of the Equality Act as instances of them pursuing a politics of recognition. For those of us interested in analysing and assessing the strategies of unions in respect of their multiracial membership, the critical question is why and how race discrimination claims may act to boost indie unions’ efforts to organize diverse workplaces. Drawing on Nancy Fraser’s work that asserts a politics of recognition can contribute to a politics of redistribution, this article proposes that recognition claims may be advancing the broader goals of labour organizing by building a worker subjectivity poised for action, and a collective identity undergirded by respect, mutual understanding, and solidarity. Discrimination, Migrant Workers, Legal Mobilization, Recognition, Organizing

Labour Movements and the Effectiveness of Legal Strategy: Three Tenets

Social movements of every stripe have mobilized law in order to confront contemporary injustices and redetermine social experiences and expectations. The multiple disciplinary literatures that track and evaluate these strategies provide a rich picture of legal and political mobilization at different scales and relative successes. This article draws together the shared concern for strategic litigation of labour law and legal mobilization scholars in order to confront and rationalize the factors that determine its effectiveness for labour movements. This article sets out three core tenets of strategic litigation to provide a framework for analysing its potential effectiveness: Effective legal arguments; state law’s institutional capacity; and political objectives. Drawing on interdisciplinary insights, these tenets present a sober conception of the ways that law is mobilized by labour movements, to provide a critical conception of the opportunities and limitations of their strategic uses of law. Legal Mobilization, Labour Movements, Institutional Capacity, Political Objectives, Employment Status, Uber Drivers, Limb B Workers

Can We Trust the Courts in Labour Law? Stranded Between Frivolity and Despair

Historically, the ruling theory of British labour law, collective laissez-faire, was rooted in distrust of courts. Over the last forty years, there have been profound and enduring constitutional changes. Successive governments have pursued deregulatory agendas through legislation, and workers and organized labour have turned increasingly to courts to vindicate their fundamental rights. In light of these changes, this article re-assesses the case against courts in British labour law. It identifies a vital yet subsidiary role for courts in labour law. This should lead scholars to reappraise the marginalization of doctrinal legal scholarship, lest the legal academy become stranded between frivolity and despair. Courts, Fundamental Rights, Statutory Interpretation, Trade Unions, Strategic Litigation

Can We Trust the Courts in Labour Law? Stranded Between Frivolity and Despair

Historically, the ruling theory of British labour law, collective laissez-faire, was rooted in distrust of courts. Over the last forty years, there have been profound and enduring constitutional changes. Successive governments have pursued deregulatory agendas through legislation, and workers and organized labour have turned increasingly to courts to vindicate their fundamental rights. In light of these changes, this article re-assesses the case against courts in British labour law. It identifies a vital yet subsidiary role for courts in labour law. This should lead scholars to reappraise the marginalization of doctrinal legal scholarship, lest the legal academy become stranded between frivolity and despair. Courts, Fundamental Rights, Statutory Interpretation, Trade Unions, Strategic Litigation