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Strategic Litigation Impacts Strategic Litigation Impacts INSIGHTS FROM GLOBAL EXPERIENCE OPEN SOCIETY JUSTICE INITIATIVE Strategic Litigation Impacts Insights from Global Experience Strategic Litigation Impacts Insights from Global Experience Open Society Justice Initiative Copyright © 2018 Open Society Foundations. This publication is available as a pdf on the Open Society Foundations website under a Creative Commons license that allows copying and distributing the publication, only in its entirety, as long as it is attributed to the Open Society Foundations and used for noncommercial educational or public policy purposes. Photographs may not be used separately from the publication. The Open Society Institute Budapest Foundation constitutes a foreign financed organi- zation under the par. 1.1 of the Act LXXVI of 2017. ISBN: 978-1-940983-8-44 Published by Open Society Foundations 224 West 57th Street New York, NY 10019, USA www.opensocietyfoundations.org For more information, please contact: Erika Dailey Senior Research Officer [email protected] Cover photo © Roberto Jayme | Reuters | Newscom Design and layout by Judit Kovács l Createch Ltd. Printing by GHP Media, Inc. Table of Contents Acknowledgments 7 Foreword 11 I. Executive Summary 13 II. About the Strategic Litigation Impacts Inquiry 21 Strategic Human Rights Litigation and the Open Society Foundations 21 Methodology 23 What Do We Mean by “Strategic Human Rights Litigation”? 25 What Do We Mean by “Impact”? 26 How Do We Measure Impact? 27 The Challenges of Identifying Impacts, Correlation, or Causation 28 III. Strategic Human Rights Litigation as a Catalyst of Change 31 Strategic Litigation’s Distinctive Role as a Social-Change Tool 32 Criticism 36 A Growing Phenomenon 38 IV. Insights from Global Experience 41 1. Strategic Human Rights Litigation Matters 41 2. From a Binary to a Multidimensional Impact Model 42 5 3. The New Model: Material, Instrumental and Non-material Impacts 43 4. Strategic Litigation Is a Process, Not a Single Legal Intervention 74 5. Litigation and Social Movements Should Be Mutually Reinforcing 81 6. Strategic Litigation Is Often Repeat Litigation 86 7. Strategic Value Can Be Derived from a Case after the Fact 88 8. The Litigator Should Be Part of a Multidisciplinary Team 91 V. Conclusion 95 VI. Appendices 97 Appendix A: Interview Questionnaire 97 Appendix B: Legal Citations 103 Appendix C: Select Academic Resources 107 Appendix D: Research Hypotheses about Strategic Litigation 111 Endnotes 115 6 TABLE OF CONTENTS Acknowledgments Executive director of the Open Society Justice Initiative James A. Goldston conceived of the inquiry into the impacts of strategic litigation on which this capstone report, which he co-wrote, is based. Erika Dailey, the Justice Initiative’s senior officer for research, co-wrote the report, and operationalized and managed the Strategic Litigation Impacts Project. This report was edited by David Berry, the Justice Initiative’s senior communi- cations officer, with the assistance of consultant Heather Ryan. The authors gratefully acknowledge the efforts of the hundreds of people around the world who have informed our thinking and ultimately helped bring this reflection to fruition by generously sharing their personal experience, insights, and time—and often their expertise and scholarship. They are thanked here for variously agreeing to be interviewed; for participating in peer consultations and public discussions in Budapest, Istanbul, London, Nairobi, New Delhi, New York, Palo Alto (USA), rural Paraguay, and São Paulo; and for sharing advice, countervailing views, and solidarity at various stages of the research, writing, and editing. Without doubt, the greatest thanks goes to the authors of the four thematic studies that comprise the Strategic Litigation Impacts Inquiry: Helen Duffy, Jérémie Gilbert, Ann Skelton, and Adriána Zimová. Given only a rough road map, they used their remarkable analytical tools, expertise, and commitment to pioneer this new body of knowledge. Thirteen field researchers and specialists in domestic and international human rights law, sociology, statistics, politics, indigenous peoples’ rights, torture, education, and other fields spent between three and six months each conducting hundreds of interviews in 11 countries. Thiago Amparo (Brazil), Joel Correia (Paraguay), Ays¸e Bingöl Demir (Turkey), Roland Férkovics (Hungary), Lucie Fremlová (the Czech Republic), Dani 7 Maniou (Greece), Cameron McConnachie (South Africa), Anabella Museri (Argentina), Colin Nicholas (Malaysia), Anita Nyanjong’ (Kenya), Aparna Ravi (India), Kanyinke Sena (Kenya), and Yogeswaran Subramaniam (Malaysia) helped us learn about otherwise unfamiliar cases and listen to the perspectives of stakeholders whose voices would have otherwise gone unheard. Members of the inquiry’s oversight advisory panel—Hossam Bahgat, Charles R. Epp, and Jennifer S. Martinez—provided invaluable insights and guidance from the inception of the project, with additional inputs from Open Society Foundations (OSF) colleagues Emily Martinez and Borislav Petranov. Professor Jennifer S. Martinez also led a policy lab practicum at Stanford University School of Law, developing the research hypotheses included in Appendix D and supervising background research.1 Advisory panels made up of independent experts from a variety of disciplines shepherded each of the four thematic studies. Dia Anagnostou, Gráinne de Búrca, and Bruno de Witte served as members of the advisory panel for the pilot study on Roma and education desegregation, with inputs and financial support from the OSF Roma Initiatives and the Roma Education Fund. Sylvain Aubrey, Octavio Luiz Motta Ferraz, Sandra Fredman, Sudhir Krishnaswamy, Janet Love, and Salomão Barros Ximenes served on the advisory panel for the report on equal access to quality education. Bas¸ak Çalı, Juan E. Méndez, and Andrew Songa were advisors for the report on torture in custody. Ramy Bulan, Lucy Claridge, Daniela Ikawa, Fergus Mackay, José Parra, Andrew Songa, and Victoria Tauli-Corpuz served on the advisory panel for the report on indig- enous peoples’ land rights. Several donor organizations have also enriched our understanding of strategic human rights litigation with their experience and thoughtful reflections. We are indebted to colleagues at Atlantic Philanthropies, the Ford Foundation, the Raith Foundation, and the Social Change Initiative, and to the International Human Rights Funders Group for hosting two sessions examining the topic, and we wish to acknowledge Dugan Frazier, Brian Kearney-Grieve, Nicolette Naylor, and Martin O’Brien in particular for accompanying us. Numerous OSF colleagues co-sponsored convenings and made other rich contri- butions to the project, including Pedro Abramovay, Francis Akorikin, Mireille de Koning, Mburu Gitu, Anuja Gopalan, Fatima Hassan, Alison Hillman, Zeljko Jovánovic, Magdalene Wanza Kioko, Sarah Klaus, Tirza Leibowitz, Emily Martinez, Ostalinda Maya, Hugh Mclean, Binaifer Nowrojee, Borislav Petranov, Ana Paula Santos, Karam Singh, and Vinay Viswanatha, among others. Guiding the inquiry throughout were the members of the Justice Initiative project team, including: Chidi Anselm Odinkalu, Laura Bingham, Peter Chapman, Alexandra Cherkasenko, Alison Cole, Christian De Vos, Aidan Harris, Masha Lisitsyna, Emi Maclean, Tehtena Mebratu-Tsegaye, Sharon Nakandha, Erin Neff, Zsuzsanna Nyitray, 8 ACKNOWLEDGMENTS Stella Obita, Erica Razook, Rupert Skilbeck, Katalin Szarvas, Réka Takács, and Marina van Riel. Ben Batros, Sandra Coliver, Toby Collis, Simon Cox, Steve Kostas, Mercedes Melon, and other staff attorneys provided important critiques, and Betsy Apple, Christian De Vos, Masha Lisitsyna, Ostalinda Maya, Zaza Namoradze and others shared thoughtful inputs at the consultations. Dia Anagnostou, Lucy Claridge, Maja Daruwala, Christian De Vos, Helen Duffy, Jérémie Gilbert, Steve Kostas, Philip Leach, Aryeh Neier, Fritz Streiff, and Adriána Zimová commented on the draft, substantially improving it. Anna Emokey, Zachary Gioia, Adela Ruiz, Katalin Szarvas, Réka Takács, and others helped administer the complex meetings, contracts, and publications, and interns Maisha Kamal and Brydne Slattery helped fact-check this document. The authors are deeply grateful for these and other contributions. Any errors in this paper are the sole responsibility of the Open Society Justice Initiative. INSIGHTS FROM GLOBAL EXPERIENCE 9 Foreword As a woman of color growing up in apartheid South Africa, justice and human dignity always spoke to me in the language of the law. This may be paradoxical, as the law itself, demanding the unequal treatment of people such as myself based on race, was inher- ently unjust. Indeed, the first time I entered a judge’s chambers was when I walked into my own office at the South African High Court in 1995. Over the years, I have witnessed firsthand the multifaceted value of strategic human rights litigation from different perspectives—as an activist and lawyer for victims of torture and women’s rights, as a national and then an international judge, and as UN High Commissioner for Human Rights. In the 1970s, litigation I pioneered secured the right of political prisoners on Robben Island, including Nelson Mandela, to access to counsel. A quarter century later, I was proud to serve on the panel of the International Criminal Tribunal for Rwanda that found for the first time that rape and sexual assault could constitute acts of genocide. These cases produced real and meaningful change for
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