Access to Justice / Advocacy / Strategic Litigation

Being Strategic about Strategic Litigation: Four Things We’ve Learned from a Public Health Context

tamar ezer headshot

Tamar Ezer, Former Deputy Director of Law and Health at the Open Society Public Health Program

In Kenya, restrictions on accessing critical HIV treatment endangered the lives of hundreds of thousands of people living with HIV. In Uganda, hundreds of women died during childbirth due to the failure of the government to provide appropriate maternal health care. In Namibia, the forced sterilization of dozens of women living with HIV led to grief, loss of economic support upon abandonment by partners, and fear of the health system. In Ukraine, unreasonable restrictions on access to treatment for drug use resulted in the deterioration of patients’ health. And sex workers in Canada risked their health and lives each day due to laws criminalizing activities related to sex work.

As these examples illustrate, human rights violations threaten the health of already marginalized people. Fortunately, advocates were able to address these violations and help advance health through strategic litigation—a tool that is increasingly supported by human rights funders.

priti patel headshot

Priti Patel, Consultant for the Open Society Public Health Program

Strategic litigation, sometimes referred to as impact litigation, is litigation that intends to influence broader change at the level of law, policy, practice, or social discourse. This definition of strategic litigation recognizes that change is not always aimed at the legal or policy-level, but sometimes at enforcement and practice or raising the visibility of an issue and changing attitudes.

For almost a decade, the Open Society Foundations has supported strategic litigation in the context of health. This has included support to lawyers and legal teams litigating these cases, civil society organizations using litigation as part of their advocacy strategy, and community-based organizations mobilizing affected populations.

In our recently-released publication, Advancing Public Health through Strategic Litigation, we and our partners reflect on this work, draw lessons, and identify good practices through a discussion of six cases from around the world.

Four key lessons emerged as particularly relevant for human rights funders:

  1. Litigation is only one component. Strategic litigation should be part of a sustained, multi-pronged advocacy strategy, involving partnership with social movements, community-based groups, and relevant experts. Advocacy in different forums and media engagement are a critical component of strategic litigation. Thus, funding to the litigators alone is not enough.
  2. Support should be flexible and multi-year. Human rights violations have immediate and dangerous ramifications, yet the conclusion of litigation and the effective implementation of a judicial order can take years. Additionally, opportunities for strategic litigation are often unplanned and require immediate action. Strategic litigation cases can be powerful at times of crisis, rallying people to engage and making an issue politically relevant. Thus, providing multi-year support for litigation and maintaining flexibility in funding is critical.
  3. Strategically build on ordinary cases. Organizations and human rights funders in particular should consider an incremental approach to litigation. Rather than waiting to identify an “ideal” case, it may at times be more productive to highlight and promote existing cases. Additionally, in cases involving marginalized communities and controversial issues, an incremental approach where legal judgments gradually build on each other in protecting rights may be most effective.
  4. Plan for implementation. One of the most overlooked aspects of litigation is the implementation of a positive judgment. Implementation should be part of the litigation plan from the outset and built into the organizational strategy and grant applications. Indeed, achievement of a positive judgment should be considered as only the midpoint in a strategic litigation project. The role courts can play in monitoring the implementation of their orders should be taken into account when crafting remedy requests.

In addition to our report, other organizations have published practical guides on utilizing strategic litigation for advancing human rights and social change:

We hope our report will be useful for funders and organizations that care about advancing human rights and the health and rights of marginalized populations.

This In Focus article was contributed by Tamar Ezer, Former Deputy Director of Law and Health at the Open Society Public Health Program and Priti Patel, Consultant for the Open Society Public Health Program.

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