Representation in Human Rights Litigation

April 6, 2000

In modern liberal rule-of-law systems, the prevalent image of a human rights claim is of a victim instructing a public-spirited lawyer, who then goes to court and obtains a judgment upholding the claimant and ordering a suitable remedy. In practice, however, the pursuit of human rights through litigation is vastly more complex.

Human rights litigation involves difficult questions of power and representation for lawyers, NGOs, and plaintiffs: How can the interests of plaintiffs be served by those who are far removed by geographic and cultural distances? What if a group’s own priorities are overwhelmed by external actors? Who decides which group interests can be compromised in negotiations for a litigation settlement? These questions of transnational litigation arise repeatedly in practice, but have not been discussed widely enough in the rush to foster new cultures of public-interest litigation in the many countries that lack such a tradition.

Litigation can be valuable or disruptive to a community in ways that may have little to do with the delivery of basic justice. Some losing cases set disastrous precedents, while others build community and draw attention to issues. Some winning cases can be counterproductive, others transformative. Litigation, along with the political and media activity that accompanies it, creates expectations, channels concerns, structures community organization, and even molds people’s sense of identity. Often, litigation shapes the future relationship between parties so that there is no going back to what existed prior to the human rights violations that brought the parties to court.

For human rights litigation to meet its potential as a means of political expression and community mobilization for human rights victims depends, in part, on the extra judicial skills of the lawyers who represent them. Plaintiffs often have little background in legal language and procedure, while lawyers may not have a full understanding of the community. In order for the plaintiffs to be involved in developing their legal strategy and in framing the issues, a two-way process of translation and adaptation must take place between the plaintiffs and their lawyers.

Where litigation involves a large and diverse group, there is frequently confusion over the boundaries of the relevant community, who exactly is a leader with a mandate to instruct the lawyers, whether dissenting views within the community have been adequately aired, and who controls the presentation of the group’s case in national politics and the news media. These problems are magnified when the plaintiffs are physically or culturally distant from the site of the litigation and when there are other intermediaries, such as NGOs, priests, anthropologists, politicians, or confederations of indigenous organizations. Such issues arose almost from the outset in the ongoing case in U.S. courts against Texaco for damage in its Ecuadorian Amazon operations (see Kimerling, p. 6), and became a problem as a financial settlement looked likely in the U.S. case brought by victims of the Marcos government in the Philippines(see Casiple, p. 8).

Different problems of representation arise as foreign NGOs, and in some cases foreign governments, are becoming increasingly involved in local proceedings in which they have a particular interest. An example is the amicus briefs submitted by international NGOs to the South African Constitutional Court in its case on the illegality of the death penalty in South Africa. Some of these NGOs want to establish a global norm against the death penalty and are interested in using a decision from this widely respected court to persuade courts and politicians in other countries. Sometimes foreign NGOs provide most of the legal staff for a case, transmitting legal theories and arguments between countries, as with the aboriginal land title claim brought (without judicial success) in 1996 in the Supreme Court in Belize by the Toledo Maya Cultural Council with the aid of the U.S.-based Indian Law Resource Center.

In both the South Africa and Belize cases, the external involvement likely reinforced rather than redirected the basic objective of one local party in the case. But in other cases, external actors may have separate political interests that result in legal or strategic positions that differ from and subsume those of the local parties. Outside organizations may supply so much expertise, strategy, funding, lobbying, and public relations to local parties that these parties become in effect proxies for external interests.

Many legal systems are designed so that complicated cases often get resolved not by the court alone, but by the parties to a case negotiating and implementing a settlement. The process of reaching a settlement adds to the problems of representation, as the case arising from oil operations in Ecuador shows. The various parties involved in the issue include an organization of Huaorani Indians with only intermittent involvement in the cash economy; a larger Indian confederation in Quito dominated by members of non-Huaorani groups with more experience of politics; foreign church personnel and lawyers with considerable local knowledge; and an activist, legally oriented NGO in California. The cast of characters also includes national and international oil companies and a large environmental NGO in New York that sought, apparently with limited familiarity with or endorsement from the Amazon peoples involved, to negotiate the terms of a multimillion dollar NGO–oil company deal for environmental cleanup and protection. On top of this came influential U.S. journalists, several lawsuits in the United States, including one run with some success by a large U.S. law firm, and a remarkable reversal by the Ecuador government from opposition to endorsement of the case.

Any settlement agreement in such a case would involve most of these myriad actors and their diverse interests. Even with the utmost good faith, it is a staggering task for a foreign law firm to brief clients sufficiently for them to make informed choices, ensure the necessary political and media support, then cut deals with other more powerful interests, all the while preserving the wishes of the clients––leaving aside questions related to the considerable litigation costs.

Furthermore, what attracts external actors to a settlement package may not be viewed the same way locally––for example, an environmentally inspired requirement that an existing forest remain undisturbed may conflict with the land-use priorities of local people. As the ongoing debate about Broken Hill Proprietary’s settlement with residents affected by the Ok Tedi Mine in Papua New Guinea illustrates, the local ramifications of some large settlements are not always well understood by unfamiliar outsiders (see Kirsch, p. 10).

Yet external involvement can also yield benefits for affected communities. In certain cases concerning indigenous peoples played out in the Inter-American Commission on Human Rights (IACHR), positive outcomes have occurred. Several of these cases have been filed and argued by foreign NGOs, often in situations where local groups of victims were not organized, lacked institutional capacity, or were impeded by violence or distance. For example, the case involving atrocities committed in 1993 in Colotenango, Guatemala, by civil defense patrols was filed by the human rights office of the archbishop of Guatemala, together with the external Centro por la Justicia y el Derecho International and Human Rights Watch Americas. The case was resolved by a “friendly settlement” that made reparations to victims and to the whole community in the form of development projects. The settlement was reached after considerable negotiation with the government, active encouragement and pressure from the IACHR, NGO lobbying, and possibly some connections to external development assistance funds.

In this case and others of its kind, marshalling these processes in Washington, D.C., and other capitals would be beyond the capacities of many indigenous groups. The involvement of outside organizations reduced the threat of local leaders’ being co-opted, corrupted, or coerced by sub optimal settlement offers. Moreover, external monitoring by a body such as the IACHR may have improved delivery of the promised settlement.

If courts and tribunals are to be significant sites for human rights struggles, lawyers and activists must be more systematic and reflective in facing questions of representation and power, particularly in transnational human rights litigation. Within the legal profession, useful actions may involve transnational ethical codes, training and sharing of practical experience, extension of the supervisory competence of local bar associations to the international level, and the development of transnational accountability. For lawyers and NGOs, high priority must be given to the resource- intensive process of translation and adaptation between them and their clients to ensure comprehensive representation. Clearer ethical standards may be required concerning responsibilities to clients in the context of litigation aimed largely at setting precedents for others, and concerning responsibilities to weigh the substantive consequences of litigation against its symbolic, often momentary, value.

On the client side of litigation, increased funding from foundations and greater effort on the part of NGOs could help address problems of representation. These bodies should routinely encourage and fund local meetings and education about the issues facing communities considering or involved in human rights litigation. Polling devices or other local processes can be used to establish the wishes of large, affected groups as well as distill community ideas for suitable settlement terms. Much more could be done to facilitate the sharing of grassroots experiences in different parts of the world, as well as to promote comparative studies of the successful and unsuccessful experiences of such groups with litigation and with different settlement structures. Institutional efforts to support lawyers and other activists, such as the International Commission of Jurists and the UN Working Group on Human Rights Defenders, could be broadened into networks of plaintiffs and complainants. The actions of multinational corporations are frequently the impetus for human rights litigation, so corporate training programs to improve understanding and respect for communities may have a considerable impact in averting the demand for litigation. Finally, the education of judges about the community and lawyering dynamics of complex human rights cases, including the problems of the settlement processes, may improve the management of representation problems.

International NGOs and government institutions are having an impact on the number, roles, visibility, and prestige of local NGOs oriented toward legal proceedings. Local groups have become more sophisticated in using the international litigation machinery directly, or have become more influential partners whose involvement adds legitimacy. This process of diffusion, learning, emulation, and professionalization may well generate increased demand within states for more legalistic procedures and judicial innovation. The need to overcome problems of transnational and local representation is thus intensifying, but at the same time a useful repository of experience is being built, as many essays in this issue of Dialogue indicate.

But countertendencies are also present, fueled by the resistance of the powerful to social change, the frequently mixed results of litigation for the most disadvantaged, and a suspicion among some activists that the courts only protect the rights of the neoliberal economic order and the rising middle class. Suspicion is heightened by concerns about the “democratic deficit” of international institutions––the fear that their composition and decision-making processes are unrepresentative and involve too little public participation.

In this essay I have addressed process problems in the representation of plaintiffs by lawyers and NGOs, and argued that solving them is a neglected precondition for the global development of human rights litigation. But this is only a precondition. Which plaintiffs and which causes different legal systems are really able to protect are substantive problems that improvements in representation may ameliorate, but cannot solve.