Strategic litigation: opportunities and pitfalls

Yola Verbruggen, IBA Multimedia Journalist

A new report from the Open Society Justice Initiative highlights the impact strategic litigation can have in achieving social change for entire communities. As governments fail to address injustice, courts become an important arena for the acknowledgement of rights and the empowerment of those affected.

In 1896, Homer Plessy refused to ride in a railway car designated for people of colour. He bought a first class ticket and sat down in a ‘whites-only’ carriage instead. He was arrested and brought to trial, which was just what the people who inspired him to this act of civil disobedience had hoped for.

Plessy was only one-eighth black and had been chosen by the Citizens’ Committee, a group of black rights activists, as a test case to challenge new legislation in Louisiana, United States, that required blacks and whites to ride in separate train carriages. Plessy was arrested and charged with violating state law. His lawyers defended him, stating that his arrest violated his 13th and 14th amendment rights under the US Constitution, which provide for equal treatment under the law. But things did not go as planned. Instead of repealing the law, Judge Ferguson ruled that Louisiana had acted within the law.

Plessy had to pay a fine and the decision would legitimise racial segregation for decades to come. ‘That’s an example where strategic litigation very well intended, very well thought through, ultimately resulted in reinforcing a negative law, hardening a step backward in jurisprudence which took over a half century to overcome,’ says James Goldston, Executive Director of the Open Society Justice Initiative (OSJI). Fifty-eight years later, in Brown v Board of Education, the Jim Crow laws – the local and state laws enforcing racial segregation – were reversed. Ten years later, the Civil Rights Act prohibited racial segregation.

A century ago, strategic litigation was already a tool for, in this case, civil rights activists to challenge the law to achieve social change beyond the fight for the rights of one particular individual. Today, lawyers continue to play an important role in challenging governments around the world. In a major research project spanning several years, the OSJI, an arm of the Open Society Foundations, provides insight into the complexities of the impact of strategic litigation as an ‘engine of social change’ beyond the courtroom.

Goldston refers to the Plessy v Ferguson case as he explains the risks that come with strategic litigation, pointing out that it could lead to ‘jurisprudential backsliding’. Though carefully mapping out a variety of challenges in the pursuit of social justice, the OSJI’s report paints a hopeful picture of strategic litigation as a tool to empower communities, challenge power imbalances and raise rights awareness around the world. ‘The extraordinary importance was the declaratory relief that, even if the case loses, the fact that somebody came to your defence and put forward a sophisticated, law-based argument is a validating process that some have described as justice in their own terms,’ says Erika Dailey, senior Officer for Research and Publications at the OSJI.

Drawing careful conclusions about the outcomes of the research, Goldston emphasises that only a small percentage of the ‘giant pool of human rights violations in the world’ are the subject of strategic litigation; cost, time and access being some of the obstacles most difficult to surmount. ‘In between, a number of efforts are underway to address rights problems through non-litigation means but using the law through what some call legal empowerment,’ he says. Strategic litigation, the research found, has the most impact when combined with other tools aimed at achieving social change, Goldston adds.

David and Goliath

Most strategic litigation cases target states but, increasingly, affected communities are suing companies for violations of environmental rights. It’s a ‘hugely burgeoning area,’ says Dailey. The global rush on land implicates private companies, not only states, as actors in legal cases over rights violations, including environmental degradation, human rights violations and pollution.

‘Regardless in a way of the outcomes of the cases, the fact that the process itself can help to challenge that power imbalance is extraordinarily important. It’s very empowering for communities, it puts corporations on notice that they will be held to account, and oftentimes you get some extraordinary victories,’ she says.

Fighting for land and environmental rights can be a dangerous undertaking. Campaigning organisation Global Witness has conducted extensive research on the persecution of environmental defenders and found that 200 of them were killed in 2016. In May of this year, the number stood at 98, with indigenous communities disproportionally affected. Hardly ever are those behind the killings held to account. ‘A lack of prosecutions also makes it hard to identify those responsible, but we found strong evidence that the police and military were behind at least 43 killings, with private actors such as security guards and hitmen linked to 52 deaths,’ states Global Witness.

The right to land is ‘for most people, rapidly and permanently disappearing,’ according to the thematic report on indigenous land rights, part of the OSJI’s research on strategic litigation. ‘In particular, indigenous peoples, who represent roughly five per cent of the world’s population, struggle to exercise their right to land [and are forced] to cede ground to state development, corporate land grabs, armed conflict, rising sea levels, and exponential population growth,’ writes Jérémie Gilbert, author of the report.

Leaders and rulers increasingly disregard laws created to protect a country’s people and natural resources, instead circumventing those laws to allow private actors to exploit its citizens and lands. As a reactive response to injustice becomes strategic, courts become an ‘ally’ in speaking to the government, says Gilbert, who is Professor of Human Rights Law at Roehampton Law School, Roehampton University in the United Kingdom. ‘If it wasn’t for the courts, there would be no stop to this. Governments decide to ignore the legal framework which is there to protect their own natural resources,’ he says.

The large obstacles in bringing such cases to a trial are weak knowledge of the court of relevant legal norms and a tendency to focus on formal law and land title, as well as an ‘onerous burden of proof’ on the indigenous plaintiff. Cost, language barriers, political and judicial corruption and the physical remoteness of the plaintiffs further frustrate paths to justice.

But, with perseverance and legal assistance, some communities achieve extraordinary results. The Ogiek, an indigenous community in Kenya, won a significant victory in May this year when the African Court on Human and Peoples’ Rights ruled in their favour on an eviction from their ancestral lands that had been dragging in the courts for years. It was the first time the African Court ruled on an indigenous people’s rights case, thereby setting ‘an important precedent for indigenous land rights struggles in the region,’ according to Minority Rights Group International (MRG).

The impact of the case is significant, though the government might lack the political will to implement the ruling. Therefore, the victory for the Ogiek might be mainly symbolic though no less important. It gave the Ogiek momentum for their case and the fact that they were heard in court empowered the community. ‘For the Ogiek, this is history in the making,’ Daniel Kobei, Executive Director of Ogiek Peoples’ Development Program (OPDP) says in a MRG statement released after the court announced its decision. In Kenya, the case also changed the attitude of the authorities toward the Ogiek. In their eyes, they ‘went from being regarded as savages to people with rights,’ says Gilbert, who emphasises that litigation is only one of the tools at the community’s disposal.

Suing corporations 

While bringing cases against corporations for rights abuses committed outside of the parent company’s home country might be an upcoming area, it is extremely difficult. ‘Sometimes the mere initiation of a case may already be defined as a success,’ says Liesbeth Enneking, Special Chair on the Legal Aspects of International Corporate Social Responsibility with Erasmus School of Law at Erasmus University, Rotterdam, who has conducted extensive research on the subject. ‘Many are rejected on preliminary grounds, including for issues such as jurisdiction,’ she says.

Courts in the plaintiff’s home country often don’t have jurisdiction over foreign corporations, leading people to try their luck in courts overseas. Dissatisfaction with court proceedings in the claimant’s home country because of corruption, a lack of expertise or independence are also reasons to start looking for litigation options overseas. There, however, judges often find that abuses committed on foreign soil do not fall within their jurisdiction, leaving the affected without clear opportunities for redress.

The case brought by citizens of Nigeria against Royal Dutch Shell for rights abuses in the 1990s is an exemplary display of these challenges. The case, Kiobel v Royal Dutch Petroleum Co, sought justice for the Ogoni Nine, a group of men from an indigenous community who were vocal opponents of the oil industry in their native land that they said was causing environmental destruction. In an ensuing crackdown by the military government, the men were arrested and later sentenced to death.

In the US, the court ruled that the abuses allegedly committed by Shell did not fall under the Alien Tort Claims Act (ACTA), which allows victims of serious human rights abuses committed abroad to sue those allegedly responsible in its federal courts.

A case was brought against Shell in the Netherlands by four Nigerian citizens and Friends of the Earth Netherlands. Whereas the case in the US restricted the use of ACTA, the Netherlands case opened the door to more claims against corporations and even their subsidiaries for abuses committed overseas. Heard under Nigerian law but in a Dutch district court, the judge ruled Shell PLC had no general duty of care for the harm caused by its subsidiary, Shell Nigeria. Shell Nigeria was held liable for oil spills in 2006 and 2007. It was the first such ruling in the Netherlands where a court ruled on liability claims against a non-Dutch subsidiary. It was a strategic move by Friends of the Earth Netherlands, which opened the door to further claims.

It is a rare example of a case against a large corporation that passed the preliminary phase and actually went to trial. Most cases, as soon as they are about to go to trial, are settled in often undisclosed agreements with the plaintiffs, says Enneking. The content of such cases is therefore never heard, and a chance for setting a legal precedent that could curb the freedom of corporations’ operations abroad is averted. ‘Only a very small number of cases have come to a final judgment by the judge. It’s an exception,’ she says.

Another case was brought related to Shell’s alleged culpability in the killing of the Ogoni Nine by Ken Saro-Wiwa Jr, son of one of the executed men, where a US court assumed jurisdiction. Days before the case was due to go to trial, Royal Dutch Shell quickly settled, making a $15.5m payment. No details about Shell’s role in the killings ever came out and the oil giant continued to deny any wrongdoing.

Delaying the court proceedings is another strategy employed by corporations’ lawyers to avoid the case coming to a verdict. ‘The tactics are often aimed at delaying the procedure as much as possible, to postpone treatment of the merits of the case by filing motions of dismissal relating to all sorts of preliminary issues,’ says Enneking. Many cases drag on for years, if not decades.

Despite the myriad challenges, including evidence, cost and the ability to file collective action suits, research conducted through a project by the University Centre for Accountability and Liability Law in the Netherlands and Utrecht University found a ‘surge in cases against corporations’ in recent years.

Disagreement about a global treaty

Setting a legal precedent is difficult under current rules and regulations. As the Kiobel case shows, even a case as groundbreaking as this one in terms of jurisdiction is limited in what it means for future cases. Though litigated in a Dutch court, the case was decided under Nigerian law, as determined under the Rome II Regulation.

Ogiek tribesmen display their title-deed in the Teret settlement scheme of the Mau Forest Complex in the Rift Valley, Kenya.

Enneking sets out the main ways in which cases against corporations could be strategic. On top of setting a legal precedent, for the person bringing the case, raising awareness could serve a higher goal. Publicity of abuses can lead to reputational damage which, in turn, could lead to political and societal questions and even to questions and discussion in parliament. In some cases, consumer boycotts were started as a result of increased public knowledge about rights violations. ‘Whether such lawsuits have an impact on the way companies do business is difficult to say. If anything, it keeps them sharp and aware,’ Enneking says.

The complexity of responsibility for violations leads Martijn Scheltema, Dispute Resolution Expert at Pels Rijcken & Droogleever Fortuijn and Chair of the IBA Corporate Social Responsibility Committee, to say that litigation is not always the most suitable solution. While strategic litigation is often a useful tool to ‘raise attention or awareness for violations’, it is no ‘silver bullet,’ says Scheltema. He questions the suitability of litigation for finding solutions to complex situations and says the focus should be on advising companies on how to comply. ‘What’s needed is building a more resilient dialogue, a collaboration, as a more effective way to deal with complex situations,’ he says.

The intricate nature of business and human rights trials has led to calls for the creation of a global treaty that would regulate the issue worldwide. Until now, the only global guidelines available were the United Nations Guiding Principles on Business and Human Rights, which were endorsed by the Human Rights Council in 2011. The guidelines are based on the ‘Protect, Respect and Remedy’ framework, which rests on the duty of states to protest against human rights abuses by third parties, the responsibility of corporations to respect human rights through practicing due diligence, and greater access for those affected to effective remedy.

In June 2014, a resolution tabled by Ecuador and South Africa for the establishment of a working group mandated to design an international, legally-binding instrument on transnational corporations and other business enterprises with respect to human rights was adopted by the Human Rights Council.

Opinions are divided over the desirability and need for such a treaty. ‘There are different regulations in various countries, which is confusing. An international treaty would therefore not necessarily be a disadvantage for companies. The main question might be whether non-governmental organisations (NGOs) should want it, as a treaty is often a compromise on the lowest common denominator,’ says Enneking. In the meantime, we have to keep going with what we have, she adds.

Corporations hit back

However, corporations are not taking this trend lying down. Inventive lawyers have devised a counter strategy known as Strategic Litigation Against Public Participation, or SLAPP, where aggressive counter suits target claimants, their lawyers, NGOs and journalists. Those critical of the strategy say they are designed to silence and intimidate critics: ‘radical counterstrategies,’ as Enneking describes them.

A target of two such suits – one of which, if successful, could bankrupt the organisation – is Greenpeace. Most recently, the campaigning group was, together with Earth First! and other groups, the subject of a suit brought by Kasowitz Benson Torres, a New York-based law firm, representing the operator of the Dakota Access Pipeline, Energy Transfer Partners. The same law firm brought a suit against Greenpeace last year for Resolute Forest Products Inc.

As well as suing NGOs or claimants, some firms have gone after journalists. Bob Murray, the Chief Executive Officer of America’s largest privately owned coal company, has slapped John Oliver, the host of ‘Last Week Tonight’, and The New York Times with a suit over reporting about the 2007 coalmine disaster that killed nine miners. It’s not the first time he’s sued media outlets for defamation. The merits of the case have yet to be heard in court.

Yola Verbruggen is Senior Reporter at the IBA and can be contacted at yola.verbruggen@int-bar.org