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The ‘Strategy’ in Strategic Litigation: The Why and How of Strategic Litigation by Civil Society Organizations in the Field of Asylum Law in Europe

The ‘Strategy’ in Strategic Litigation: The Why and How of Strategic Litigation by Civil Society Organizations in the Field of Asylum Law in Europe

Author: Kris van der Pas
Publisher: Europa Law Publishing
ISBN: 9789462513518

Published In: September 2024
Format: Paperback
Jurisdiction: Netherlands ? Disclaimer:
Countri(es) stated herein are used as reference only

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This book gives insight into why and how Civil Society Organizations (CSO) pursue strategic litigation in the fi eld of asylum law in Europe. Increasingly, CSOs turn to the courts to create change beyond the individual. They use judicial procedures to create social, political and/or legal impact. This is very pertinent in the field of asylum law, where refugees and asylum seekers lack access to justice. CSOs, therefore, step in. But why and how do they do so?

In this book, several case studies have been carried out through a qualitative, empirical research design in order to give insight into the ‘black box’ of strategic litigation procedures and decision-making by CSOs in such procedures. By relying upon literature from political science and socio-legal research on legal mobilization, as well as literature from the United States on public interest litigation, a range of factors are identifi ed as possibly relevant. With this framework in mind, the research addresses questions such as: why do CSOs use litigation? What courts do they go to? How are CSOs involved in proceedings?

Six CSOs, spread out across three jurisdictions (the Netherlands, Italy, and Germany), have been inquired about these questions. The_answers reveal important information on the political, legal and organizational context in which strategic litigation to protect the rights of asylum seekers and refugees is carried out. The law, political perceptions, resources, all these factors infl uence the approach of CSOs in strategic litigation in the fi eld of asylum law in Europe. This book provides an important contribution to discussions on the interaction between law and politics.

Preface

Acknowledgements

Table of Contents

Abbreviations

Overview of Figures and Tables

Chapter 1 Introduction

1.1 Introduction to Strategic Litigation in Europe

1.2 Research Aim and Questions

1.3 Theoretical Framework

1.4 Methodology

1.5 Demarcation

1.5.1 General Demarcation

1.5.2 Stages of Strategic Litigation

1.6 Contribution to Existing Scholarship

1.7 Structure of the Book

Chapter 2 Conceptualizing Strategic Litigation and the Approach of Civil Society Organizations

2.1 Introduction

2.2 Conceptualizing Strategic Litigation

2.2.1 Background Concept: Method and Preliminary Observations

2.2.2 Systematized Concept: Internal Dimensions and Definition

2.2.3 External Conceptual Relations

2.3 The Approach of CSOs in Strategic Litigation

2.3.1 Civil Society Organizations

2.3.2 The Approach in Strategic Litigation

2.4 Conclusion

Chapter 3 Theorizing the Approach of CSOs in Strategic Litigation

3.1 Introduction

3.2 External Factors

3.2.1 Political Opportunity Structures and the Political Disadvantage Theory

3.2.2 Legal Opportunity Structures

3.3 Internal Factors: Resources Broadly Conceived

3.3.1 Financial and Other Material Resources

3.3.2 Human Resources and Organizational Identity

3.3.3 Relations

3.4 Conclusion

Chapter 4 Methodology & Case Selection

4.1 Introduction

4.2 Methodology

4.2.1 Research Method: Case Studies

4.2.2 Data Collection, Operationalization and Analysis

4.3 Case Selection

4.3.1 Legal Opportunity Structures: Access Dimension

4.3.2 Selection of states and Civil Society Organizations

4.4 Conclusion

Chapter 5 The Netherlands – Different Approaches in a Similar Context

5.1 Introduction

5.2 Introducing the Civil Society Organizations

5.2.1 Public Interest Litigation Project (NJCM)

5.2.2 Dutch Council for Refugees

5.3 Approaches in Strategic Litigation

5.3.1 Litigation as Strategy

5.3.2 Forum Selection

5.3.3 Type of Involvement

5.3.4 Drafting of the Legal Claim and Argumentation

5.4 Conclusion

Chapter 6 Italy – Division and Coordination

6.1 Introduction

6.2 Introducing the Civil Society Organizations

6.2.1 Associazione Ricreativa e Culturale Italiana (ARCI)

6.2.2 Associazione per gli Studi Giuridici sull’Immigrazione (ASGI)

6.3 Approaches in Strategic Litigation

6.3.1 Litigation as Strategy

6.3.2 Forum Selection

6.3.3 Type of Involvement

6.3.4 Drafting of the Legal Claim and Argumentation

6.4 Conclusion

Chapter 7 Germany – Collaborative Efforts

7.1 Introduction

7.2 Introducing the Civil Society Organizations

7.2.1 European Center for Constitutional and Human Rights (ECCHR)

7.2.2 Pro Asyl

7.3 Approaches in Strategic Litigation

7.3.1 Litigation as Strategy

7.3.2 Forum Selection

7.3.3 Type of Involvement

7.3.4 Drafting of the Legal Claim and Argumentation

7.4 Conclusion

Chapter 8 Turning Back to Theory

8.1 Introduction

8.2 External Factors

8.2.1 Political Opportunity Structures & Political Disadvantage Theory

8.2.2 Legal Opportunity Structures

8.3 Internal Factors

8.3.1 Financial Resources

8.3.2 Identity and Human Resources

8.3.3 Relations

8.4 Inductive Findings

8.4.1 Additional Factors

8.4.2 Interplay External & Internal Factors

8.5 Conclusion

Chapter 9 Concluding Remarks

9.1 Design of the Thesis

9.2 The Organizations: Same but Different?

9.3 Strategic Litigation: A Diffuse Concept?

9.4 Some Comments on the Theory and the Field of Asylum Law

9.5 Suggestions for Future Research

Bibliography

Annex 1: Tables with Definitions/Descriptions of ‘Strategic Litigation’

Annex 2: List of Questions

Annex 3: Research Information Sheet

Annex 4: Table with EU Member States and CSOs

Summary in Dutch – Samenvatting

Curriculum Vitae

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