Public Policy Advocacy: Strategic Litigation and International Advocacy

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1 Public Policy Advocacy: Strategic Litigation and International Advocacy presentation by Ed Rekosh Public Interest Law Initiative Columbia University Budapest Law Center prepared by Barbara Bedont and Mona Nicoara

2 What is Strategic Litigation? Strategy that uses the justice sector to achieve legal and social change through test cases concerned with social justice as much as individual justice

3 Examples of Strategic Litigation Reno v. ACLU Ashcroft v. The Free Speech Coalition Assenov and Others v. Bulgaria

4 Principal Objectives of Strategic Litigation To change laws or policies that violate constitutional protections or human rights To ensure that laws are interpreted and enforced properly To identify gaps in the law

5 Other Objectives of Strategic Litigation To raise awareness To foster public discussion To educate public To build coalitions To bring about pressure for social and legislative change To empower marginalized groups

6 Other outcomes of Strategic Litigation Develops civil society and mobilizes communities Develops democratic values and the Rule of Law

7 Limitations of Strategic Litigation Problem of standing Role of precedent in civil law countries Court-ordered change vs. Negotiated political agreement Difficulties of implementation

8 When to bring a Strategic Litigation case There is a legal issue which relates to a broader social problem Decision will have broad effect Issue can be easily understood by public or media Other methods are not possible or not ideal Courts are independent, sympathetic and respected Potential for media coverage

9 Other practical considerations Resources are available to fund case A sympathetic complainant who has standing can be found Defendant is instrumental to change Good experts are available

10 Who should be involved? Courts Plaintiff Defendant civil society groups legal advisers Experts and amicus curiae

11 Strategic Litigation Tactics Have a comprehensive advocacy strategy Integrate international law Develop legal support Educate the Court Consider safety of complainants and others Have a follow-up strategy Anticipate a longer struggle beyond one court decision

12 Strategy when loss is anticipated Call for measures to reform or monitor courts Plan to overturn decision through extra-legal means (domestic advocacy campaigning) International Advocacy!

13 International Advocacy: Thinking Global and Local Work abroad=words on paper Taking rhetoric back home: MOBILIZING COMMUNITIES RAISING AWARENESS DOMESTIC ADVOCACY

14 Why work abroad? Amplifying domestic advocacy work through: MOBILIZATION OF SHAME ENHANCING CREDIBILITY BEFORE COMMUNITY, AUTHORITIES, COALITION PARTNERS, ETC. MAKING A PATH FOR SIMILAR CASES OVERCOMING INSTITUTIONAL INERTIA OFFERING PEOPLE A PLATFORM FOR THEIR STORIES SEEKING REMEDIES

15 How IGOs work Setting standards: Making and interpreting international law and policies Enforcing standards: Monitoring compliance with int l commitments Periodic reviews Field investigations Report writing Sanctioning violations: Issuing decisions on individual or collective complaints

16 Types of NGO input Shadow reports Focused submissions promoting compliance with treaties Contributions to the work of rapporteurs Lodging individual and collective complaints Contributions to general comments and recommendations Pressing for higher standards Opportunity-based contacts

17 How to do it? Do homework: field research, legal standards Know how, when the body works Know the government s position Use successful models Know who the body is Think through every step Follow-up domestically and internationally

18 Take for instance the UN...

19 More specifically Treaty-based mechanisms... HRC (Human Rights Committee) CAT (Committee Against Torture) CESCR (Committee on Economic, Social and Cultural Rights) CERD (Committee for the Elimination of All Forms of Racial Discrimination) CEDAW (Committee for the Elimination of All Forms of Discrimination Against Women) CRC (Committee on the Rights of the Child)

20 and extra-conventional mechanisms High Commissioner for Human Rights Commission for Human Rights Special Rapporteurs Working Groups

21 For instance in 2002 ERRC s Roma rights advocacy on Hungary March 2002: Shadow report for UN HRC review June 2002: Visit of Council of Europe HR Commissioner and input Roma rights issues into visit report July 2002: Input Roma rights concerns into European Commission Accession Report Brief list of concerns w/ extensive documentation Follow-up meetings with country team officers drafting reports August 2002: Shadow report for UN CERD review Joint NGO Briefing before CERD members Press release on CERD review Follow-up letter to CERD rapporteur on Hungary Press release on CERD Concluding Observations October 2002: Follow-up on EC Accession Report--Letter to Hungarian Prime Minister pressing for adoption of antidiscrimination legislation as recommended by EC Regular Report November 2002: Meeting between NGOs and government officials from Hungary; follow-up: extensive contacts with drafters antidiscrimination law

22 What counts as a victory? E.g. Hungary to CERD Selections from CERD Concluding Observations and Recommendations, August 2002: Education concerns: discriminatory practices resulting from the system of separate classes for Roma students and from private schooling arrangements Recommendation: that new programs integrate Roma children into mainstream schools...that the State party reconsider allocating Roma children to schools and classes for mentally disabled Discrimination in access to public places: discriminatory practices against persons belonging to the Roma minority in respect of access to public places, such as restaurants, bars or cafés Recommendation: that the State party continue to intensify its efforts in combating such behaviour and raise awareness of the population of all aspects related to racial discrimination The Government Delegation present at CERD promised to submit a comprehensive anti-discrimination bill to the Parliament by the end of 2002; a draft was open for consultation in January 2003