Strategic Litigation and Legal Advocacy

Strategic Litigation and Legal Advocacy

The Global Initiative for Economic, Social and Cultural Rights believes that one of the best means by which to promote social and economic justice is to ensure that economic, social and cultural human rights are legally enforced and to build the capacity of grassroots and community-based organizations and human rights advocates to utilize enforcement mechanisms and strategies aimed at enforcing their economic, social and cultural rights (ESC rights).  Our philosophy in this regard is to continue to build a body of progressive jurisprudence that not only protects economic, social and cultural rights in practice, but informs those rights from the perspective of marginalized communities.  We must also advance new frontiers in ESC rights and continue to ensure that these rights are legally enforced; thereby ensuring the strength, coherence and continued relevance of the international human rights framework and the accountability of actors that violate human rights.

Because litigation and other forms of legal advocacy play an important role in protecting an individual’s or a community’s existing social and economic entitlements as well as improving those situations, and because litigation is often necessary to prevent, halt or remedy violations of ESC rights, it is critical not only to catalyze and intervene in legal cases but also to empower local actors to undertake legal action on their own behalf.  This strategy not only ensures protection of rights for claimants, it also creates beneficial jurisprudence in the area of ESC rights at various levels which will have far-reaching structural impact.  Enabling this work entails building the capacity of grassroots individuals, groups and communities, as well as of lawyers and other human rights advocates, to claim and enforce rights through legal advocacy, as well as creating resources and tools explaining how ESC rights can be claimed and enforced.

Goals of the GI-ESCR regarding strategic litigation and legal advocacy are first and foremost aimed at holding perpetrators of human rights violations accountable and at achieving access to justice and remedies for victims and survivors for those violations.  Beyond that, however, the Global Initiative for Economic, Social and Cultural Rights seeks to achieve structural and transformative change by engaging in legal advocacy with the aims of: (1) demonstrating the justiciability of economic, social and cultural rights; (2) achieving broad public-interest remedies; (3) expanding the scope of human rights protections; (4) expanding the scope of human rights mechanisms; and (5) furthering the accountability element of the human rights-based approach to development.

Demonstrating the justiciability of economic, social and cultural rights

While there now exists a large body of case law demonstrating the justiciability, or legal enforceability, of economic, social and cultural rights, much still needs to be done in many national contexts where such rights are not explicitly justiciable in national constitutions or domestic legislation.  The Global Initiative for Economic, Social and Cultural Rights works with local lawyers and other human rights advocates to bring economic, social and cultural rights arguments and strategies into their legal advocacy at the local or national level and directly litigates at the international and regional levels, thereby working to build a growing body of evidence that economic, social and cultural rights are indeed rights that can be and have been legally enforced.

Achieving broad public-interest remedies

A key goal of the legal advocacy of the Global Initiative for Economic, Social and Cultural Rights is to ensure that remedies are achieved that result in structural or systemic transformative change, including the creation of progressive jurisprudence as well as progressive revision of legislation, policies and practices that fail meaningfully to fulfill or otherwise violate human rights.  A key factor will be to use litigation to ensure that the voices and perspectives of marginalized groups and communities have an impact on shaping norms, standards, laws and policies that affect their daily lives.

Expanding the scope of human rights protections

Strategic litigation and other forms of legal advocacy will be employed to inform and define human rights and thereby expand the scope of rights protection to more meaningfully ensure that they promote and protect the underlying principle of human dignity.  It is also critical to demonstrate how previously defined, ‘generic’ standards in the area of ESC rights can be made most meaningful to marginalized groups and individuals around the world, including the poor, women, indigenous peoples, and minorities who often face multiple forms of discrimination and exclusion.  In this process, it is also imperative to change the pattern of ESC rights being defined by global elites so that human rights are increasingly given meaning by those most impacted in real-life by violations of their rights, including via engagement with social movements and civil society actors.  Examples of such advocacy include informing rights through the construction of progressive jurisprudence and other pronouncements such as General Comments and Concluding Observations of treaty-monitory bodies.  Such advocacy has resulted in defining human rights to water and sanitation, for example, and beginning to elaborate on other aspects of human rights such as the gender dimensions of rights protection, rights related to access to, control over and use of land, and rights related to livelihood.

Expanding the scope of human rights mechanisms

Another strategy successfully used by staff of the Global Initiative for Economic, Social and Cultural Rights has been to use the principle of indivisibility, interrelatedness and interdependence of human rights to enforce aspects of economic, social and cultural rights before human rights mechanisms that have traditionally enforced only civil and political rights.  The Global Initiative for Economic, Social and Cultural Rights has worked, for example, to broaden the scope of the International Covenant on Civil and Political Rights (ICCPR) by successfully advocating for the Human Rights Committee to hold states accountable for violations related to housing, water and sanitation under the ICCPR.  A key result of this advocacy was the opening of opportunities to use individual complaints to prevent or remedy such violations, which the Global Initiative for Economic, Social and Cultural Rights successfully accomplished in 2011 with the first ever injunction under the ICCPR preventing the forced eviction of an impoverished minority community.

Furthering the accountability element of the human rights-based approach to development

A key element of the human rights-based approach to development is accountability to human rights standards.  The Global Initiative for Economic, Social and Cultural Rights complements the work of development organizations by seeking accountability and remedies when development falls short of meeting those standards, including when development schemes have the intent or effect of not prioritizing the needs or excluding the active, free and meaningful participation of rights holders, including marginalized groups and communities.

For an example of strategic litigation success see HERE.

Networks and Partners:

The Global Initiative for Economic, Social and Cultural Rights is a member of the ESCR-Net Adjudication Working Group

The Global Initiative for Economic, Social and Cultural Rights is a member Steering Committee of the ESCR-Net Strategic Litigation Initiative

The Global Initiative for Economic, Social and Cultural Rights is a member of theExtra-Territorial Obligations Consortium

Further Resources: