How does litigation relate to advocacy?

Litigation in international, regional, and national courts is an important advocacy strategy available to women's advocates around the world.

Litigation and legal advocacy may be used to clarify and fill the gaps in domestic legislation and may be used to promote and protect the human rights of women and girls. When used appropriately, human rights litigation can broadly impact the law by challenging existing legal interpretations, which do not conform to international human rights standards nor enforce the rule of law. (See: Promoting Women’s Human Rights: A Resource Guide for Litigating International Law in Domestic Courts, Global Rights, 2006) Litigation and legal advocacy can also expose gaps in the justice systems’ implementation of laws.

Both lawyers and judges may use international human rights standards in their work. Lawyers may litigate impact or test cases, initiate class action lawsuits or mass filings where class actions are not allowed, or offer legal services to underserved or marginalized populations. In assessing whether international human rights law may be used in litigation, lawyers should consult the international law flowchart developed by Global Rights, which helps lawyers frame legal arguments in terms of international human rights. (See: Promoting Women’s Human Rights: A Resource Guide for Litigating International Law in Domestic Courts, Global Rights, 39, 2006)

Examples: The United Nations Division on the Advancement of Women has organized judicial conferences on the promotion of women’s rights in domestic courts. The judicial conferences were first held in 1999 (Vienna, Austria) and then again in 2002 (Bangkok, Thailand), 2003 (Arusha, Tanzania), 2004 (Nassau, The Bahamas), and 2005 (Santiago, Chile). The conferences provided an important opportunity for judges and magistrates to discuss international human rights standards addressing violence against women and how such standards could be applied in their respective countries.

In 2005, judges and magistrates from Bolvia, Brazil, Colombia, Cuba, Mexico, Paraguay, Peru and Uruguay met in Santiago, Chile to discuss violence against women, among other women’s human rights issues. The judges identified several critical factors which stand in the way of the effective implementation of international human rights standards including: the persistent patriarchal system, traditional notions of the nuclear family, perceptions that women’s roles are fundamentally to procreate, the tendency to control women’s sexuality, and unfamiliarity with women’s human rights among other factors. The group also proposed strategies for promoting and protecting women’s human rights, including promoting the immediate implementation of the Convention on the Elimination of Discrimination Against Women (CEDAW) and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Belem do Para) and the adoption of specific laws to prevent and eliminate violence against women. See: Final Report of the Judicial Conference about the Application of International Human Rights at the Domestic Level, United Nations, Division for the Advancement of Women, 2005 (Spanish).

In 2003, judges and magistrates from eleven African countries at the conference considered and examined judicial developments and trends in the areas of the human rights of women and girls as relates to nationality, family law, and violence against women, and the extent to which domestic jurisdictions have incorporated international human rights law in their decisions in those named areas. The 2003 conference resulted in important acknowledgements and a declaration of commitments, including the judges’ intent to use CEDAW in relevant decisions interpreting domestic law. (See: Arusha Declaration of Commitments on the Role of the Domestic Judge on the Application of International Human Rights Law at the Domestic Level, United Nations, Division for the Advancement of Women, 2003; Promoting Women’s Human Rights: A Resource Guide for Litigating International Law in Domestic Courts, Global Rights, 25-26, 2006)

The International Association of Women Judges (IAWJ) has also been honored by UNIFEM for its work in training judges under its Jurisprudence of Equality Program. The program provides training for members of the judiciary, female and male, on the domestic application of international, regional and national law on issues dealing with discrimination and violence against women. Judges are trained by other judges, leading to enhanced credibility of the information. The program has trained judges and magistrates in 21 countries and led to important decisions, particularly in East Africa. In Kenya, Tanzania, and Uganda rulings from judges trained in the program have cited to the UDHR, Article 3 of the Convention on the Rights of the Child, the Declaration on the Elimination of Violence Against Women, and Articles 2, 15, 16 of CEDAW and addressing issues of equal protection of the law, property rights, rape, domestic violence, and divorce. See: Jurisprudence of Equality Program, IAWJ; Jurisprudence of Equality Program Decisions, IAWJ. (See Implementation Section of this Module)

CASE STUDY: A legal team of lawyers from the Columbia Law School Human Rights Clinic and the American Civil Liberties Union represented Jessica Lenahan (formerly Gonzales), a domestic violence survivor in the United States, claiming that her human rights were violated in 1999 by local police who ignored her calls for help when her husband violated a restraining order. He kidnapped and murdered their three children. Her suit against the Castle Rock, Colorado, Police Department, ultimately failed in 2005, when the United States Supreme Court held she had no constitutional right to have the Police Department enforce her restraining order. Lenahan then filed suit against the United States at Inter-American Commission on Human Rights (IACHR) arguing that the American Declaration on the Rights and Duties of Man required the United States to protect domestic violence victims from private acts of violence. As of November 2009, a decision in the case was pending. See: Update on Jessica Gonzales v. U.S. Merits Hearing, StopVAW, The Advocates for Human Rights, 2008) and the ACLU website for more information.

CASE STUDY: Impact litigation, meaning litigation of cases that have the potential to broadly impact conditions for many similarly situated people or to highlight a particular issue, is an important form of advocacy to protect women’s rights. Many civil society organizations partner with international NGOs to litigate high impact, high visibility cases.

For example, in the case of Opuz v. Turkey, the European Court of Human Rights ordered the government of Turkey to pay damages to a woman who had suffered devastating domestic violence from her husband and who the state had failed to protect in any meaningful way. Link to CASE STUDY: Obtaining redress for domestic violence through human rights bodies, 68, Domestic Violence section of this Knowledge Asset.

The case marked the first time that the European Court recognized states’ failure to protect women from domestic violence as a form of gender discrimination. The European Court had previously recognized a state’s obligation to provide domestic violence victims with redress in the case of Bevacqua and S. v. Bulgaria. Link to CASE STUDY: Obtaining redress for domestic violence through human rights bodies, 68, Domestic Violence section of this Knowledge Asset.

In the Opuz case, women’s groups from Turkey were engaged and the international NGO INTERIGHTS was a third party intervener before the court. After the ruling, women’s groups in Turkey used the case as a rallying cry for further advocacy, demanding education on issues of gender equality and domestic violence, demanding funding for shelters and police training, and demanding that government ministries take effective action to broadly address gender equity in Turkey. See: Women’s groups urge mobilization on gender equality, Today’s Zaman; Opuz v. Turkey – European court Clarifies State Obligations to Protect Women from Domestic Violence, INTERIGHTS.

Example: In Egypt, non-governmental organizations closely monitored and challenged a series of decrees issued by the Minister of Health, first in 1994 permitting the practice of female genital mutilation in hospitals, and again in 1996 when a decree banning the practice was challenged by opponents in the courts. The decree was challenged, but upheld by the highest administrative court. See: Female Genital Mutilation: A Guide to Laws and Policies Worldwide, Anika Rahman and Nahid Toubia, p. 82, 2000. See: Health Regulatory Measures, 63-64, Female Genital Mutilation Section of this Module.