Can a convincing case still be made that the pursuit of international human rights mechanisms leads to efficacious results? The challenges to, and criticisms of, human rights systems in recent years are legion. Their legitimacy has been questioned (leading in some instances to the threat of state withdrawal, such as the case of Russia within the Council of Europe, complaining that it no longer has a role in electing judges to the European Court of Human Rights). It is also said that human rights mechanisms are inefficient and overloaded and that decisions are not implemented. Litigation can of course set bad precedents, resulting in regression, and even progressive decisions can lead to backlash – as a response, legislation may be introduced which is aimed at narrowing or reversing the positive effects. It remains very difficult to measure the impact of strategic litigation: governments seek to deny any impact; there may be a range of legal, social and political dynamics at play; and a lack of baseline data or analysis.
Their effectiveness relies on a minimum level of good faith shown by the executive and sufficient political will to lead to positive change. How viable is that when increasingly we are faced with the perilous position of the executive taking control of the judiciary, as is already the case in countries like Azerbaijan, and as we are seeing in Venezuela and Poland? It is also suggested that there is an over-legalisation of the human rights movement, which is not capable of addressing complex social problems, as a result of its distance from grass roots and the inadequate contextualisation of human rights issues at the national or local levels.
And yet….recent research suggests on the contrary that these legal mechanisms are indeed productive and viable, although we may need to do more to understand their various impacts and to develop different approaches to ensure we are getting the best out of them.
In her new book, Evidence for Hope, Kathryn Sikkink marshals a compelling argument that human rights laws and institutions have had positive impacts, especially in states undergoing political transition to greater democracy. She discerns both evidence of the socialisation of states taking place within these institutions, and also change from the bottom up: as a consequence of domestic social movements in repressive societies using legal tools. Sikkink suggests that the multiple accountability mechanisms (international and regional) address different kinds of impunity and serve to reinforce one another, and that strong domestic courts act to enhance the effects of states’ international commitments.
Writing recently in the American Journal of International Law, Gráinne de Búrca analyses international human rights mechanisms through the lens of experimentalist governance theory, which views the process of policy development as being iterative and participatory, through the interactions of different stakeholders at various levels. De Búrca detects a positive correlation between the adoption of human rights treaties and improvements in human rights standards, which is most likely where there is a degree of political liberalisation and a strong domestic civil society movement. It is the experimentalist functioning of these treaties which explains their positive impact: any apparent ambiguity in standards or weaknesses of enforcement are actually to be viewed as strengths from this perspective. For de Búrca, certain features of human rights systems serve to achieve progress: the identification of shared perceptions of common problems; a framework of goals; continuous feedback through monitoring and reporting to the ‘centre’ (such as a UN mechanisms); and the periodic revision of practice and goals through experience. These elements, combined with the active participation of NGOs, lead to the ‘vernacularisation’ of international human rights law at the domestic level.
Another strain of recent research has been led by the Open Society Justice Initiative (OSJI) who have published a series of reports analysing the impact of strategic human rights litigation. The most important lesson to be learned from these OSJI reports is the need to recognise and evaluate the full range of different types of impact, direct and indirect. In his report on the Impacts of Strategic Litigation on Indigenous Peoples’ Land Rights, Jérémie Gilbert evaluates three types of impact: material; jurisprudential and policy; and behavioural impacts. Although the actual restitution of land is rarely the result of litigation, Gilbert points to other material impacts, such as the provision of alternative land and shared community resources (vehicles, cattle etc). Moreover, he identifies other collateral benefits of the wider attention which such litigation may create – resulting in the provision of new civil society grants.
Jurisprudential and policy impacts may include changes to legal frameworks, but for Ann Skelton (author of another OSJI report on The Impacts of Strategic Litigation on Equal Access to Quality Education), litigation can also assist in ‘backfilling’ the content of broadly framed rights (to help concretise, for example, what the right to education means). Both Skelton and Gilbert cite examples where new administrative systems and institutions (such as investigative commissions) have been set up as a result of litigation. It can also lead to the reframing of issues: Gilbert describes a process of trespass cases targeting an indigenous community being transformed into land rights cases.
Finally, the OSJI reports identify a range of behavioural results, first and foremost of which are the participatory effects on the affected communities themselves. Gilbert points to communities’ legal and political empowerment, their greater cohesion and enhanced activism. For some there is even cultural regeneration (through mapping the land and gathering together documentation), and an improved synergy between the litigators and social movements. There are impacts too on media and public awareness – reporting of cases can reduce negative stereotypes (although the opposite may also be true). Policy-makers and other officials will have greater awareness of the issues at stake, and litigation can lead more generally to an expansion of the democratic space and increased dialogue between civil society and the state. It can of course impact too on the terms of public discourse: Skelton cites the issue of pregnancy of schoolgirls, no longer being considered as a disciplinary issue, but as a matter of the right to education.
How does this theory of multifarious impacts apply, for example, to the body of litigation which we have brought at the European Human Rights Advocacy Centre (EHRAC), which has been taking cases to the European Court with NGO partners from the former Soviet region since 2003? Certainly for some cases, the direct impacts are clear. Take Oleksandr Volkov v Ukraine, the judgment concerning the unfair dismissal of a supreme court judge, which led not only to his personal reinstatement, but also to changes in legislation and to the Ukrainian Constitution. However, the picture is much murkier in other realms. What has been the impact of the litigation focusing on egregious human rights violations committed by the Russian security forces in Chechnya and other parts of the North Caucasus? Although there have now been in excess of 250 judgments since 2005, finding the Russian authorities responsible for such breaches, there has been little or no political will to respond. However, even here, there are discernible impacts, both present and future. First, the judgments go some way to meeting societies’ need to know what happened – the right to establish the truth. Second, it is possible that their findings could act as a basis for other future justice processes. Third, the decisions have helped to establish relevant European Convention standards across the European continent in national laws – take, for example, the notion of an Article 2-compliant investigation.
The potential impact of other cases is very considerable. Take the Nagorno-Karabakh litigation – cases arising from the ongoing conflict between Armenia and Azerbaijan, concerning the loss of homes and land over decades. There is still no political will within either state to come to terms, but as I have argued before on these pages, the European Court’s judgments from 2015 should now lead to the establishment of a property restitution mechanism, one that could provide a measure of restitution for more than a million refugees and IDPs who were victims of that conflict. It is clear, however, that that will not come about without a range of different actors, local, national and international, working together to bring about change on the ground.
Enhancing international human rights mechanisms
How can we enhance our use of international human rights mechanisms further, in the light of the many challenges, and the lessons from previous strategic litigation? Two broader questions are also raised – given the iterative, participatory nature of these processes, do we need to establish a greater role for civil society organisations, and does greater synergy between litigators and social movements lead to more innovative tactics? In the remainder of this blog, I would like to propose a number of areas where we may need more thinking.
The choice of forum may be critical. That is certainly one of the arguments made by David Cole in his recent study, Engines of Liberty, which discusses the role of civil society in bringing litigation which has changed the Constitution in the United States. Cole recalls that the organisations involved in the campaign for same sex marriage strove to keep the early cases away from the Supreme Court, where they considered they had little or no chance of success, but instead petitioned at the state level. So, do we need to be more adept at invoking multiple fora?
Is it feasible to broaden rules of standing? Skelton suggests that has been the case, for example, for disadvantaged groups in India. At the European Court, the formerly strict ‘victim status’ rule has been relaxed marginally in cases such as Câmpeanu v Romania and Kondrulin v Russia, where NGOs have been allowed to stand in for deceased individuals who would otherwise have been unrepresented. But much wider forms of NGO representation have been common at both the Inter-American and African Courts – an issue which raises broader questions about access to justice.
If the OSJI studies suggest that one of the results of litigation may be to create more opportunities for dialogue, one question which then arises is whether we are fully exploring the potential role of forms of settlement. Are those who represent applicants and states fully aware of the possibilities which settlement can offer? Where governments make specific undertakings (for example, to carry out an effective investigation into the incident in question) which are then incorporated into settlements, does this create additional potential for leverage, in the form of measurable, enforceable obligations?
As regards substantive law, we have seen an increasing emphasis on the notion of positive obligations, allowing for far more ‘horizontal effect’, meaning that human rights standards are applied vis-à-vis non-state actors. Examples of this include litigation relating to domestic violence and gender-based violence, trafficking and domestic servitude. But do we know how far the notion of positive obligations could, or should, go – to require not only that the state should establish an apposite legal framework, but also ensure its effective implementation?
One of the focuses of our current research within the Human Rights Law Implementation Project (HRLIP) is the form of redress provided by international human rights systems. In Europe, we have seen the use in recent years of evolving and ground-breaking remedies, but they remain relatively rare, and their development arguably requires further impetus from both within the systems, and the ‘users’. The identification and analysis of systemic violations, and forms of collective redress (pilot judgments and Article 46 judgments) arguably signal an attempt by the European Court to exert greater influence on the execution of its judgments. One of the questions we are grappling with at the HRLIP, is whether greater specificity in terms of remedies, leads to better implementation.
The international and regional human rights systems continue to struggle with the question of the implementation of decisions. Some commentators, such as Helen Keller and Cedric Marti, have called for a greater judicialization of implementation processes. To an extent, this seems to have been acknowledged by Council of Europe states when it introduced the notion of infringement proceedings – enabling the Committee of Ministers to refer unimplemented cases back to the European Court. Only now, the Committee of Ministers has signalled its intention to use this mechanism for the first time – as regards Azerbaijan’s recalcitrance over the continuing imprisonment of opposition politician Ilgar Mammadov.
Establishing a facet of implementation which is independent of states themselves would certainly seem to be important, but the domestic context will remain the most significant element, and changes will only follow where the conditions at the national level are sufficiently receptive. Within the HRLIP, we hold to the premise that human rights systems represent a complex web of interaction and interdependence between institutional actors, both domestic and supranational, each of which has different functions, expertise and competences. No one of these actors could secure the objectives of the system alone. Further, states are of course not monolithic entities, but a collection of actors which, acting both collaboratively and competitively, in practice determine whether and to what extent implementation occurs. Taking, broadly, a constructivist approach to international relations, this emphasises the non-coercive, norm-shaping and socialising role of international law. Such an understanding lays down a challenge to civil society to find new, productive ways of engaging with states and the full range of state bodies, in tackling the thorny issue of implementation.
We do need to be able to see, and communicate, the positives. Kathryn Sikkink, and others, have provided an emphatic rebuttal to the prevailing pessimism about human rights laws and institutions. It is true that change may only come slowly and as the result of struggle, but in the long term, human rights movements have been vastly effective. The evidence shows that human rights progress has been greatest where there are strong regional human rights institutions, and strong social movements. This necessitates collaboration – we need even stronger domestic movements that engage both at the domestic level and internationally. David Cole describes civil society organisations as vital agents of constitutional change, often succeeding against daunting odds, and Chris Stone has recently reminded us that it was Wiktor Osiatyński who argued that it is civil society not states which contribute most to the protection of rights.
However, some significant challenges remain. As Cole makes clear, framing and messaging can be as important as legal argument. He emphasises the importance of seeking cultural transformations – for example, some of the most important gay rights advocacy was focused not on legal and political change but on cultural and political campaigns.
More fundamentally, Stone underscores Osiatyński’s call (made back in 2009) for the human rights movement to close the gap between itself and the public, especially, in an era of globalisation, for those who have not seen the benefits of economic growth. This point is echoed by the Ford Foundation’s Martín Abregú in his challenging call for the need to do more to make human rights real by engaging with non-human rights sectors, to challenge the very structural inequalities which underlie so many human rights violations.
We should continue to respond to, but also challenge, the idea that the human rights movement is an elite which is disconnected from the public or in thrall to foreign powers. For example, research published recently by the Pew Research Center about public attitudes showed that NGOs are not seen as elite or the tools of foreign states. Of course, some authorities (such as those currently in power in states like Poland, Hungary, Russia and Azerbaijan) view human rights as an effective and unwanted challenge to their hold on power, and who see human rights standards as an inconvenient obstacle. In the light of states’ cynicism towards human rights, Chris Stone suggests that we should insist on the legitimacy of civil society organisations as independent pillars of constitutional democracy. We also need more thinking about how to develop the existing human rights processes, so that they can be enhanced and diversified, not least by building stronger domestic collaborations. Effectively communicating the results and worth of litigation before human rights mechanisms should be a high priority. Strategic human rights litigation represents just one of many tools of social change, and requires a long term strategy, but it continues to be a viable and effective lever for change.