Magazine article Forced Migration Review

A Role for Strategic Litigation

Magazine article Forced Migration Review

A Role for Strategic Litigation

Article excerpt

Strategic litigation seeks to achieve significant changes in the law, practice or public awareness using methods such as the bringing of test cases to court, submitting amicus curiae briefs in ongoing cases, consistently advancing arguable points across a range of similar cases over time and so forth.

Discussion of protection gaps relating to cross-border displacement in the context of disasters and the adverse effects of climate change often takes place at the relatively abstract level of provisions of international legal instruments. Less attention has been paid to the practicalities of securing protection for individuals at risk of disaster-related harm both in terms of how the law can be interpreted against specific factual scenarios and in terms of the roles that academics, NGOs, lawyers and courts can play in addressing individual protection needs and clarifying the scope of host state obligations.

In addition to the (sometimes surmountable) challenges presented by the law itself, a further 'protection gap' may operate if lawyers are not identifying cases where individuals may risk being exposed to disaster-related harm on return to their home countries.1 Lawyers may be constrained from asking relevant questions because they are conditioned by mental or actual checklists relating to the requirements for securing refugee status or complementary forms of protection, and it can be difficult to think outside of that box. Or claimants may not point to a fear of disaster-related harm because they feel they need to present their protection narrative in terms easily reconcilable with established refugee categories.

A strategic litigation initiative around these matters should, firstly, provide the opportunity to test the actual scope of hoststate protection obligations. Two cases in New Zealand have made useful contributions to our jurisprudential understanding of how the law applies in this emerging area, despite the fact that in both cases the claimants were considered not to be in need of international protection.2

Secondly, it provides the opportunity to raise public awareness. Media coverage of the above-mentioned cases was substantial, with articles appearing in a number of international as well as local newspapers.

Thirdly, strategic litigation can add some political pressure on states to focus on the phenomenon. A strategic litigation initiative that brings actual cases of human suffering linked to disasters and the adverse effects of climate change through media and judicial channels can focus attention on finding appropriate responses where existing instruments currently are inadequate.

Finally, it signals to individuals that their risk of exposure to serious disaster-related harm can support a claim for international protection, thereby promoting claimant self-identification and ongoing development of the law.

The strength of strategic litigation lies in its ability to incrementally develop the law against real-life scenarios. Close judicial scrutiny of the kinds of harm that individuals fear being exposed to in concrete disaster contexts, assessment of the sufficiency of protection that is available in the home country, and application of relevant law have the potential to deepen our understanding of the circumstances in which people displaced across borders in the context of disasters and the adverse effects of climate change are in need of international protection and when such people are actually entitled to it. …

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