Introduction: Human Rights Litigation: Promise v. Perils

From international tribunals, to groundbreaking suits against multinational corporations that pollute, to the precedent-setting case against General Augusto Pinochet of Chile, litigation is fundamental to building international justice and is becoming an increasingly attractive tool for human rights movements throughout the world. But when is human rights litigation worthwhile from the perspective of those whose rights have been abused?

This issue of Human Rights Dialogue examines human rights litigation as one aspect of the “human rights box.” Introduced in our last issue, the metaphor of the “box” encompasses a set of historical and structural circumstances that allow the human rights framework to gain currency among elites while limiting advances, and even creating setbacks, for the awareness and acceptance of human rights among the general population. The goal of this series is to investigate ways of overcoming barriers to greater participation in the human rights movement. Toward this end, this issue explores the effectiveness of litigation in bringing human rights violators to justice and, in so doing, increasing the broader public legitimacy of human rights.

Are the grievances of victims of human rights violations ultimately heard and addressed through the litigation process? What is the impact of human rights litigation on affected communities? Do lawsuits help to mobilize victims and increase awareness of human rights, or do they result in factionalization and dashed hopes?

In the following essays, these questions are addressed by the plaintiffs of human rights litigation and by the lawyers, nongovernmental organizations (NGOs), and scholars who work closely with them. Their stories speak to the challenges and possibilities of litigation. They cover a wide spectrum of completed and ongoing cases around the world––concerning pollution, social discrimination, abuses of state power, and war crimes––pursued in a number of different venues: national courts or tribunals of the country in which the violation occurred, the courts of a foreign country, and judicial or quasi-judicial bodies established by interstate agreements or organizations.

All of the cases in this sampling aim to uphold human rights principles, even if they do not necessarily access human rights law. However, the degree to which the claimants consider their rights to have been violated varies. In some situations, such as the legal action against Arco Oriente in the Ecuadorian Amazon (p. 15), indigenous groups gained broad awareness of human rights in the course of bringing their case to court. At other times, the lawyers or activists who organized plaintiffs came to associate their struggle with international human rights, as we see in Clarice Friloux's account of the dumping of oilfield waste in her Southern Louisiana neighborhood (p. 17). In cases such as the Ok Tedi litigation against the Australian multinational, Broken Hill Proprietary, in Papua New Guinea (p. 10), the claimants had little awareness of human rights. They did, however express ideas such as equality before the law and the right to an adequate standard of living, even if they did not specifically refer to "human rights."

What may appear to the casual observer as an instance of successful human rights litigation––a case won––can be seen quite differently by those seeking redress. As Benedict Kingsbury tells us in his essay on the problems of representation in litigation (p. 3), all too often neither the lawyer nor the resulting terms of the case adequately take into account the interests of the plaintiffs. Sometimes, especially when a large and diverse group of victim-claimants is involved, competing ideas of justice emerge, making it difficult to bring justice to all.

Some of the best opportunities for litigation to broaden public awareness and support for human rights occur outside the courtroom. Intermediaries––such as lawyers, NGOs, and churches––play a pivotal role in raising awareness, organizing campaigns, empowering local people, and addressing specific grievances. But frequently such opportunities are lost. In Judith Kimerling’s account of contested representation in a case against Texaco in Ecuador (p. 6), the failure of lawyers and NGOs to foster transparent, accountable, and participatory processes in local decision making threatens the case’s potential to leave an enduring human rights legacy. Ramon Casiple, the leader of the largest Philippine victim-claimants’ group in the litigation against former president Ferdinand Marcos, describes the delays and frustrations experienced by the claimants when “advocates” tried to speak for them (p. 8). Revisiting Papua New Guinea nearly four years after a settlement agreement was reached in the Ok Tedi mine case, anthropologist Stuart Kirsch finds that, despite a victory in the courtroom, social justice cannot be realized without alternatives to the affected communities’ economic dependency on an environmentally devastating mine. Aloys Habimana’s essay, on Rwandans’ negative image of inter-national justice, challenges the International Criminal Tribunal of Rwanda to better serve its objectives by becoming more engaged with the people of Rwanda (p. 14).

Other articles provide instructive examples on the positive role of intermediaries. Tamara Jezic and Chris Jochnick’s case study demonstrates that litigation is successful and human rights legitimacy is broadened when litigation is used as a tool to catalyze community participation and support a larger struggle. Similarly, Clarice Friloux’s formidable fight against the oil industry in Louisiana illustrates the power of a unified community and good representation. Using their experience in opposing the appropriation of Palestinian land by the Israeli state, Samera Esmeir and Rina Rosenberg demonstrate that litigation is just one tool for social justice; they argue that it should not be used if it limits community mobilization and fails to reflect the values of those seeking redress (p. 18).

In the case of the Mapalad farming cooperative in the Philippines, external actors helped make the litigation experience worthwhile for claimants, despite ultimately losing in court (p. 19). Authors Josel Gonzales, Kaka Bag-ao, and Azon Gaite-Llanderal illustrate the tension between realizing benefits for the claimants and seeking wide-ranging strategic impact through litigation. This theme is expanded in the concluding interview with Ndubisi Obiorah, a human rights lawyer in Nigeria, who discusses the effect litigation has had on awareness of human rights in his homeland (p. 22).

This issue of Dialogue takes as its starting point the idea that law is the basis of human rights. The power of the human rights regime depends on enforcement backed by a punitive legal structure. In the course of strengthening the application of law as a tool for the protection of human rights, we must maintain our focus on the purpose of human rights work: to promote and protect the vital human needs of all. By spotlighting the perspectives of affected groups, the essays that follow illustrate how human rights litigation can fulfill its promise while avoiding its perils.

Read More: Human Rights, Justice, Human Rights, International Law

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