Defending Human Rights in Court

Will the courts be a bulwark to protect human rights?

Human rights are set out and protected in law—international treaties, national constitutions, and many other laws set out key human rights protections and guarantees. Human rights advocates try to have these laws enforced, including by taking cases to court.

But a court is not necessarily a rights-friendly venue. Costly delays, obstructive procedural rules, legal chicanery, and unsympathetic judges may individually or in combination mean even the most compelling cases of injustice are dismissed. The risks of failure are even higher in countries where the judiciary’s full independence and impartiality is in doubt. Judges may be wary of upholding rights when repressive and/or discriminatory laws enjoy wide support and are championed by politicians.

Still, experience in many countries shows there are real victories to be won in court. The question is when to seek justice through the courts, and – beyond success or failure in an individual case—what might be achieved by litigating rights? What might be lost? As discriminatory policies gain greater political support, will the courts be a bulwark to protect human rights, or is it naïve to expect judicial rulings will stem the populist tide?     

 

Unprecedented ruling for Indigenous peoples by Inter-American Court of Human Rights

By: Matías Duarte & Diego Morales & Erika Schmidhuber Peña
Español

The Inter-American Court of Human Rights has set a precedent with its decision to grant territorial and ancestral rights to Indigenous peoples in Argentina—how ...

Using legal empowerment to fight exploitative land investors in Sierra Leone

By: Hassan Sesay & Daniel Sesay
Español | Français

Legal empowerment helps locals to understand and claim their rights, resulting in a legal victory for communities in Sierra Leone against exploitative corporations.

Fighting for rights in the streets—not just the courts—of Hong Kong

By: Katrin Kinzelbach & Eva Pils
Español | 简体中文

The Hong Kong protest movement has long given up hope that Hong Kong’s rule of law can be protected with judicial means only.

Economic and social rights force us to pressure a return to the state

By: Katharine G. Young
Español | Français

Constitutional entrenchment is only part of the battle for recognition of economic and social rights, as many South African cases have made clear.

Polish activists fight for rights already guaranteed in their constitution

By: Małgorzata Szuleka
Español

The democratic community in Poland is under threat, but activists and judges who use the constitution to push back against the government and fight for human rights ...

Engaging justice amidst inequality in Latin America

By: Lisa Hilbink & Janice Gallagher & Juliana Restrepo Sanin & Valentina Salas
Español | Português

Despite low levels of trust in the justice system, citizens in Chile and Colombia still make legal claims, but marginalized groups opt for informal strategies over ...

Strategic litigation in a perfect storm—South Africa

By: Jason Brickhill
Español | isiXhosa

The courts have done much in South Africa to advance human rights and promote equality, but in what remains a grossly unequal society they can only do so much.

Litigating rights under occupation

By: Jessica Montell
Español | עברית | العربية

Israeli occupation is the root cause of Palestinian suffering. Litigation won’t change that, but it has nevertheless proven a successful tactic to defend Palestinian ...

Landmark case from Romania expands possibilities for LGBT rights

By: Adrian Coman
Español

A landmark case on same-sex marriage in Romania could expand the possibilities for LGBT rights in the region.

Seizing opportunities and broad strategy both essential in human rights litigation

By: Wolfgang Kaleck
Español | Deutsch

To bring real human rights change, legal actions usually need to be linked to broader political strategies, but that doesn’t preclude seizing opportunities as they ...

Human rights—tackling inequality by catalyzing the agents of social change

By: Jackie Dugard
Español | Français

Some argue human rights are insufficient to tackle inequality but overlook the emancipatory power of rights—to create the space to mobilize for change, a dynamic ...

Turning to the courts: lessons from Amnesty Canada’s litigation experience

By: Alex Neve
Español | Français

When human rights NGOs go to court, there are many key factors to consider beyond just “winning”.

Litigating rights carries risks as well as rewards

By: Martín Abregú
Español

Where possible, challenging authoritarian and illiberal regimes in court is an important tactic, but it should be done with full consideration to the potential ...

Caliban Unleashed: What role for strategic litigation in an illiberal era?

By: Alicia Ely Yamin
Español

There are inherent limitations in litigating health rights, but it has led to important victories, and must remain a key strategy as populism surges.

India’s Supreme Court is making landmark judgements in social change

By: Jayna Kothari
Español

In the last few years, public interest litigation at India’s Supreme Court has brought significant wins for human rights—but success is best assured when litigation ...

Strategic human rights litigation in tough times

By: Dimitrina Petrova
Español | Русский | 简体中文

There are many good reasons to pursue human rights claims in the courts, especially given the rise of illiberal regimes; not least, it is simply the right thing ...

The value of strategic litigation amidst rising illiberal democracies

By: James A. Goldston
Español | Français | العربية

In an increasingly authoritarian world, courts are among the few spaces where ordinary people can challenge power, voice dissent, and apply independent scrutiny.

Court judgements are shaking political foundations—and upholding rights

By: James A. Goldston
Español

In Kenya, Guatemala and Brazil, courts have defied presidents and shaken up politics—is court-centric advocacy one of the few remaining avenues to legitimately ...

Closing the doors of justice? The South African Constitutional Court’s approach to direct access

By: Jackie Dugard
Español

Legal interventions can help improve poverty and inequality, but in South Africa the poor don’t have sufficient access to courts.

Legal mobilization: a critical first step to addressing economic and social rights

By: Shareen Hertel

Legal mobilization for economic and social rights is a critical first step, not the end goal, as India's Right to Food campaign demonstrates.

Can legal interventions really tackle the root causes of poverty?

By: Sara Bailey

Legal interventions can ameliorate some of poverty’s most harmful consequences, but they cannot address poverty’s root causes. This can only be done through major ...

Poverty and human rights: can courts, lawyers and activists make a difference?

By: Chris Jochnick
Français

We have long known that poverty is rooted in power, yet traditional power-blind approaches to poverty remain predominant. Can a human rights lens and the traditional ...