Strategic Human Rights Litigation: Understanding and Maximising Impact

Human Rights

Strategic Human Rights Litigation: Understanding and Maximising Impact

By Helen Duffy
Hart Publishing September 2018

Specifications

ISBN-13
9781509921973
Publisher
Hart Publishing
Publication
September 2018
Format
Hardback
Jurisdiction
U.K. ? Countri(es) for reference only

Details

Strategic human rights litigation (SHRL) is a growing area of international practice yet one that remains relatively under-explored. Around the globe, advocates increasingly resort to national, regional and international courts and bodies ‘strategically’ – to protect and advance human rights in a way that has a positive impact beyond the particular outcome of the case, or the parties to the litigation.

This book provides a framework for understanding SHRL and its impact, alongside its limitations and the many tensions and challenges it gives rise to. It suggests a reframing of how we view impact in its multiple dimensions, positive and potentially negative. Five detailed case studies, drawn predominantly from the author’s own experience, explore litigation in a broad range of contexts (genocide in Guatemala; slavery in Niger; forced disappearance in Argentina; torture and detention in the ‘war on terror’; Palestinian land rights) to surface the complexity of the role of SHRL in the real world. The book considers the implications of the impact analysis for the development of effective litigation strategies in the future.

Table of Contents

Part I
1. Introduction
I. Introducing ‘Strategic’ Human Rights Litigation
II. Overview of Chapters
2. The Growing Field of ‘Human Rights’ Litigation in the World Today: Context, Trends, Opportunities and Challenges
I. An Expanding Panorama of Human Rights Litigation
II. Challenges and Limitations to Pursuing Human Rights Litigation
3. Understanding Impact: Bursting the Bubble on the Champagne Moment
I. Adjusting the Lenses to Capture the Impact of SHRL
II. Approaches to Impact and the Meaning of Success
III. Monitoring and (the Challenge of) Measuring Impact
IV. Classifications and Distinctions
4. Identifying Levels of Impact
I. Victim Impact
II. Legal Impact
III. Impact on Policy and Practice
IV. Institutional Impact, Including Judicial Strengthening
V. Information, Truth and the Historical Record
VI. Social or Cultural Impact
VII. Mobilisation and Empowerment
VIII. Democracy and the Rule of Law Impact
IX. Negative Impact

Part II
5. Case Study—Hadijatou Mani v Niger: Slavery before the ECOWAS Court
I. Introduction
II. Background
III. The Hadijatou Mani Case before the ECOWAS Court
IV. The Impact of the Mani Case
V. Conclusions
6. Case Study—Plan de Sánchez v Guatemala: Genocide in the Inter-American System
I. Introduction
II. Background
III. The Plan de Sánchez Case
IV. The Impact of the Plan de Sánchez Litigation
V. Conclusions
7. Case Study—Arbitrary Detention, Torture and Extraordinary Rendition: Litigating the ‘War on Terror’
I. Introduction
II. Litigating Arbitrary Detention
III. Litigating Rendition and Torture
IV. Conclusions
8. Case Study—Justice for Enforced Disappearance in Argentina
I. Introduction
II. Background
III. The Nature and Cumulative Impact of Litigation on Enforced Disappearance in Argentina
IV. Conclusions
9. Case Study—Litigating Palestinian Land Rights
I. Introduction
II. Background to Land Rights Litigation in Israeli Courts
III. Impact of Litigation on Land Rights before Israeli Courts?
IV. International Litigation on Palestinian Land Rights
V. Conclusions

Part III
10. Litigating Strategically and Meeting the Challenges
I. Strategic Planning (and its Limits)
II. Identifying Goals and Realistically Assessing Risks
III. Litigating in Context: Understanding, Naming and Framing the Problem
IV. Litigating for the Long Term: Incremental Change and the Question of Timing
V. Strategic Nibbling at the Edges of Injustice v Judicial Confrontation?
VI. Exploiting Litigation Synergies: Movement Building, Legal Advocacy and Reaching beyond the Court
VII. Case Selection, Sourcing and Tactics: Is there a Right Case at the Right Time?
VIII. Strategic Use of Fora
IX. The Victim in the Human Rights Process: Whose Case is this Anyway?
X. Additional Litigation Roles: Amicus, Expert or Observer?
XI. Effecting Change in Real Time: Litigating to Stop or Prevent Violations
XII. Creative Remedies and Implementation
XIII. The Economy of Human Rights Litigation
11. Conclusion: Appreciating and Demythologising Strategic Human Rights Litigation
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