In July I had the privilege of attending the Central European University summer school in Budapest at the invitation of the Open Society Foundations’ Justice Initiative. The program brought together strategic human rights litigators to share our experiences in using law to change the world and to learn best practices from the Justice Initiative’s expert staff.
This is how we win
There were lawyers and legal advocates from almost every corner of the globe: a Russian lawyer who litigates for victims of police torture; activists from Romania and Hungary who defend the rights of Roma people; advocates from Nepal who represent women experiencing violence and empower entire communities through community paralegal programs; a lawyer from Argentina taking money out of the hands of corrupt politicians and putting it back into the public purse—I could go on.
One of the central issues we grappled with was how to leverage our efforts to ensure effective and positive change in our communities. In short, what constitutes a win?
The answer might seem clear, especially to lawyers sitting at our desks. A win is a positive court decision for your client. Winning a major court victory is a massive achievement and one that is hard fought, usually over many years. It is essential to recognize and celebrate those landmark victories.
That win, however, is only part of the work of a strategic litigator. Striking down bad laws is, in itself, is not the goal. It is a means to an end to achieve positive social change.
As strategic litigators we must be positioning the ‘chess pieces’ outside the courtroom while we are pursuing litigation. Failure to do so, or to realize what other forces are at play, can jeopardize all of the hard work done in the courtroom.
For example, the seminal U.S. case of Roe v. Wade, which paved the way for legal access to abortion, was seen as the win for the pro-choice movement. What many did not see at the time was that, during all those years of litigation, a minority of pro-life advocates was organizing to carry on the fight against reproductive rights. More than 40 years after Roe v. Wade, that minority continues to keep the abortion debate alive, making access to abortion more and more difficult in many states.
Alternatively, what do we do when government responds to our wins with new, more harmful laws? Our federal government is leading the way on this tactic, to the disappointment of many Canadians. Bill C-36—which introduces laws criminalizing the purchase of sex and puts the health and safety of vulnerable sex workers at risk—and Bill C-2—which threatens InSite and will make it nearly impossible to open new safe injection sites—are disturbing examples of this kind of reactionary governance.
As effective strategic litigators, we need to be ready to face those challenges, to take the court to the streets and demand that our country take note and take action.
During the Justice Initiative course, I saw how advocates around the world are celebrating their legal victories and ensuring that the fight doesn’t end there. Collectively, we are building our capacity through international legal and political advocacy, creating allies across borders, and recognizing that our jobs do not end at the courthouse steps.
I left the course with a lot of hope and inspiration for the potential of strategic human rights litigation, and with lessons to apply to Pivot’s work.
We win by identifying the cases that have the potential to change the social fabric of our country for the better. We win by engaging the community to join us in continuing to fight outside of the courthouse. Each is a step towards building a more just and equal society.