Ongoing human rights monitoring (more information is available in the Legislation: Monitoring section of this website) can often provide the basis for identifying cases that should be litigated as part of an overall strategy of justice sector reform – this is known as strategic litigation, also called impact litigation or public interest litigation. Strategic litigation uses the justice sector to achieve legal and social change through test cases. Strategic litigation is also sometimes called impact litigation because it seeks to have an impact beyond the actual outcome of the case. Unlike the provision of legal services, strategic litigation’s goals are broader than helping an individual client. Even if losing the case is the most likely result, organizations may decide to engage in strategic litigation as part of a broader campaign on a human rights issue. Strategic litigation can be used to:
Strategic litigation can be conducted in any judicial forum, whether local or national courts, or before international judicial and quasi-judicial bodies. Strategic litigation has been used for many years to advance civil and political rights, women’s rights, the rights of indigenous people and other minorities, the rights of prisoners, the rights of children, housing rights, and many other human rights issues.
Potential Benefits of Strategic Litigation
Potential Risks of Strategic Litigation
When should practitioners consider strategic litigation?
Effective strategic litigation requires that many variables come together in the right way and at the right time. Strategic litigation is much more than a simple legal case – it is an entire strategy and involves assessing the characteristics of the client, the legal issues, media interest, partnerships with other groups, judicial history on this and similar issues, costs, timing, etc. The following are some key questions to consider before starting litigation:
Questions excerpted from: Wilson, and Rasmussen, Promoting justice: A Practical Guide to Strategic Human Rights Lawyering, 2001, at 61-62; Geary, Children’s Rights: A Guide to Strategic Litigation, 2009, at 8.
India and Bangladesh – Landmark Public Interest Litigation
In 1997, a group of activists and NGOs in India filed a class action alleging that the pervasive sexual harassment of women in the workplace violated several articles of the Constitution of India. Specifically, the action alleged that sexual harassment violated the right to gender equality, the right to life and liberty, and the right to practice any profession, trade, or occupation. The case was filed after the brutal gang rape of a social worker in Rajasthan. The Court noted that the laws in India had not sufficiently protected the rights of women workers and that the Court had a duty to “fill the legislative vacuum.” See: Vishaka and others v. State of Rajasthan, para. 3.
In its opinion, the Court stated that “[g]ender equality includes protection from sexual harassment and [the] right to work with dignity, which is a universally recognized basic human right.” (Vishaka, para. 10) The Court also specifically referenced the Convention on the Elimination of All Forms of Discrimination Against Women, recognizing the Indian government’s ratification of CEDAW and its commitments regarding women’s rights made at the Fourth World Conference on Women in Beijing.
Vishaka has had broad implications in India and beyond. Several cases have come before the Indian courts and led to further interpretation of Vishaka. Moreover, in 2008, a coalition of NGOs in Bangladesh filed a petition similar to that in Vishaka alleging that sexual harassment constituted a violation of Bangladesh’s constitution (Bangladesh National Women Lawyers Association v. Gov. of Bangladesh and Others). Following much of the reasoning of Vishaka, and quoting the Indian Supreme Court among others, the Supreme Court of Bangladesh issued guidelines with the force of law similar to those issued in Vishaka.
One of the defining features of strategic litigation is that the broader policy goals behind the litigation generally trump the interests of an individual client. This raises important ethical considerations that must be extensively examined and discussed with the client early on. In particular, if the litigation is likely to fail to bring a remedy for the client but there are reasons to pursue it nonetheless, there are some critical questions that must be explored:
Strategies to Support Strategic Litigation
NGO Participation at CEDAW sessions (International Women’s Rights Action Watch Asia Pacific (IWRAW Asia Pacific)) gives details on how to submit a shadow report to the CEDAW committee, by a non-governmental organization which distributes NGO shadow reports to CEDAW experts in advance of the session. Available in English.
Working with the United Nations Human Rights Programme: A Handbook for Civil Society (United Nations, Office of the High Commissioner on Human Rights, 2008). Available in Arabic, English, French, Russian, Spanish, and Chinese.