LAW & SOCIETY REVIEW
VOLUME 57 | NUMBER 1
Activists in international courts: Backlash, funding, and strategy in international legal mobilization
Freek van der Vet, Lisa McIntosh Sundstrom
Regional human rights courts like the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the African Court of Human and People’s Rights (ACtHPR) have become popular sites of mobilization for victims and activists who seek justice when justice fails at home. Besides being platforms for individual remedy, human rights courts increasingly shape social norms and state policy within countries, making them attractive avenues for rights advocates to develop new norms or to push domestic authorities to reform legislation. The judges of these courts can decide, for example, whether same-sex couples have a right to be married, if prisoners have the right to vote or receive HIV/AIDS treatment, or when a state can deport illegal immigrants to a country where they will likely be tortured. As these courts pass their judgments, they often find themselves in conflict with states that are violating human rights of marginalized groups on a large scale and are unwilling to implement international rulings.
Foreign agents or agents of justice? Private foundations, backlash against non-governmental organizations, and international human rights litigation
Heidi Nichols Haddad, Lisa McIntosh Sundstrom
The premise of Russia’s 2012 “Foreign Agents” Law, one of the first such laws restricting foreign funding for non-governmental organizations (NGOs), is that foreign monies equal foreign agendas. Since then, over 50 countries have adopted similar laws using a similar justification. This paper interrogates this claim of foreign donor influence through examining legal mobilization by human rights NGOs at the European Court of Human Rights (ECtHR). We track donor support for litigation by providing an overview of all foundation grant flows relating to strategic litigation for 2013–2014, and then matching the granting activities of two major U.S. foundations over 14 years to human rights NGO participation in cases before the ECtHR. Further, through case studies of Russian NGOs, we assess the causal role that donor support has played in facilitating their increased involvement in ECtHR litigation. The combined analysis indicates broad patterns of private foundation support to litigating NGOs, but uncovers no evidence that foreign donors were “pushing” NGOs toward litigation as a strategy, but instead more evidence suggesting that NGOs convinced donors to support human rights litigation. Despite the inaccuracy of the justification underpinning Russia’s foreign agent law, the law threatens the survival of human rights organizations.
NGOs, international courts, and state backlash against human rights accountability: Evidence from NGO mobilization against Tanzania at the African Court on Human and Peoples’ Rights
Nicole De Silva, Misha Ariana Plagis
When nongovernmental organizations (NGOs) encounter state resistance to human rights accountability, how do NGOs use international courts for their human rights advocacy strategies? Considering the overlapping phenomena of shrinking civic space within authoritarian, hybrid, and democratically backsliding regimes, and state backlash against international courts, NGOs navigate two potential levels of state backlash against human rights accountability. Building on the interdisciplinary scholarship on legal mobilization, we develop an integrated framework for explaining how states’ two-level (domestic and international) backlash tactics can both promote and deter NGOs’ strategic litigation at international human rights courts (IHRCs). States’ backlash tactics can influence NGOs’ opportunities, capacities, and goals for their human rights advocacy, and thus affect whether and how they pursue strategic litigation at IHRCs. We elucidate the value of this framework through case studies of NGOs’ litigation against Tanzania at the African Court on Human and Peoples’ Rights, an understudied IHRC. Drawing on an original data set, interviews, and documentation, we process-trace how Tanzania’s various backlash tactics influenced whether and how NGOs litigated at the Court. Our framework and analysis show how state backlash against human rights accountability affects NGOs’ mobilization at IHRCs and, relatedly, IHRCs’ opportunities for influence.
What makes an international institution work for labor activists? Shaping international law through strategic litigation
Studies on international legal mobilization often analyze the mobilization efforts of activists at a single international court. Yet we know little about how activists choose among multiple international institutions to advance social justice claims. Drawing on comparative case studies of Turkish and British trade union activists’ legal mobilization efforts and case law analysis, I show that activists, guided by their lawyers, probe multiple avenues to identify the legal institution with the highest judicial authority and is most responsive to activists’ claims. Once they identify their target institution, the iterative process between a responsive court and activists’ strategic litigation can build a court’s jurisprudence in a new issue area, even if the court provides limited de jure rights protections. Activists primarily use international litigation strategy to leverage structural reforms at the domestic level and to set new international norms through precedents.
Based on ethnographic research, this article shows how legal orders are being established in spaces where the state law is absent. The case of refugee camps—often discussed as sites of legal limbo and state of exception—seems to be a space of legal pluralism. However, when observing local legal practices, this pluralism is dissolved into a powerful local camp law. This characteristic type of legal order is produced by social camp-specific mechanisms, camp materiality as well as the remaking of pre-camp structures. Therefore, refugee camps should be viewed as extraterritorial spaces with a high degree of legal autonomy that enables and forces residents to create a local camp law. The findings of this study add to the literature of law and order in camps and to the debates on plural configurations in extraterritorial spaces.
The aftermath of enforcement episodes for the children of immigrants
Joanna Dreby, Eric Macias
For 30 years, U.S. immigration policy has increasingly focused on enforcement. This article goes beyond cataloging the harms of such policies to document the processes by which they become more or less salient in the lives of children of immigrants over time. In-depth interviews with 86 young adults raised in New York show that enforcement policies shape children’s lives either through lived experiences of enforcement episodes or through diffuse fears arising from indirect threats. Qualitative analysis of narratives of (a) deportations post-incarceration, (b) removals, (c) arrests and detentions (d) direct threats, and (e) diffuse fears identifies characteristics related to each that may affect children even after they age into adulthood.
Death by prison: The emergence of life without parole and perpetual confinement. By Christopher Seeds. Oakland, CA: University of California Press, 2022. 288. $29.95 paperback
Surviving solitary: Living and working in restricted housing units. By Danielle S. Rudes, with Shannon Magnuson and Angela Hattery. Palo Alto, CA: Stanford University Press. 2022. 252 pp. $26 paperback
The politics of rights and southeast Asia. By Lynette Chua. Cambridge, UK: Cambridge University Press. 2022. 66 pp. $22.00 paperback