Legal Mobilization: Analyzing law-based advocacy

  • How can civic actors and well-meaning regulatory agencies strategically work together, mobilizing law to ensure accountability for human rights, environmental and other violations, across different issues and political contexts? 

  • Are there common factors that determine the success or failure of legal mobilization to address different issues, such as: climate change, ethnic profiling, elder discrimination, gender-based violence and other social justice issues?

Law promises certainty, but law is also static. In order to bring about or support societal change through law, something needs to happen. Human rights and protection of the environment in particular do not realize themselves. These are contested, and most especially, the law must be mobilized.

International law, like politics and society, may be fragmented, but also has a structure*

Among the many scholars who have influenced us are Richard Abel (1994), who has explained how law has been wielded as a sword and shield in different forms of legitimate politics by other means.

Like Makau Mutua (2016), who has been one of the main figures in the Third World Approaches to International Law (TWAIL) movement, we also regard a critical approach to legal mobilization as key. Moreover, the pioneering research of the late (2020) legal anthropologist Sally Engle Merry has provided a framework to explain how human rights are translated in locally-relevant settings.

Furthermore Lisa Vanhala’s research on legal mobilization has explained the key roles and justifications of social movements in mobilizing the law to address environmental harm, promote disability rights and other issues.

Analyzing the strategic potential and challenges of legal mobilization

As scholars, we critically analyze the strategic potential and challenges of legal mobilization through a generalizable, analytical lens of legal mobilization. This enables us to study different forms of legal and rights-based civic advocacy in comparative perspective.

Legal mobilization compels us to adopt a grounded understanding and critical relationship between law and other fields and disciplines. Through the interdisciplinary field of socio-legal studies, we incorporate a critical approach to analyzing public policy and implementation and the consequences of corporate behaviour.

The legal mobilization research project has its inception in the INFAR Project led by Professor Sanne Taekema of the Erasmus School of Law that ISS was closely involved with, and in various collaborations between ISS and the Wits School of Law and work on the Kids Rights Index, led by Professor Karin Arts.  

In 2020 and 2021 a NIAS Theme Group will further add to the project. In this latest phase of the project, we are both interrogating existing literature on legal mobilization as well as the foundational, liberal values that underpin most state-level and inter-governmental systems of human rights and environmental norm-making and enforcement. We are analysing case studies for example in South Africa and Suriname, and of the global human rights instrument the UN Convention on the Rights of the Child, within United Nations institutions and elsewhere, and on different themes, from climate change to migration, international criminal justice and social inequalities.

Drawing on legal, politics, sociological and socio-legal concepts and methodological approaches, we adopt a critical approach and explore law and its mobilization through various, inter-disciplinary angles. We study law-based interventions in developing and/or transitional justice countries as well as in relation to sustainable development issues, both in the global North and South, and transnationally.

Why is this research relevant?

As a practice, legal mobilization is aimed at advancing social justice. Thus, it is of significant societal relevance, for example to advocacy organizations who want to better understand the strategic value of mobilizing law. One of our partners, Greenpeace, characterizes this in their contemporary work to mitigate climate change and other environmental harms as using law as a sword, shield and armour.

Legal mobilization is intended to function as a legitimate means to resolve conflicts, redress rule of law and justice deficits and address other governance problems. Legal mobilization is not the same as lawfare, whereby companies and governments instrumentalize law in a manner of questionable legitimacy. While lawfare serves to victimize, attempt to bankrupt or in other ways harm social justice advocates, organizations and even government agencies, or social justice causes, legal mobilization can serve as a form of resistance or counterpower.

An important function of legal mobilization is to protect human rights defenders, environmental justice advocates, indigenous leaders and others against lawfare. An example of lawfare includes Strategic Litigation Against Public Participation or 'SLAPP' suits, including lawsuits directed against the environmental group Greenpeace regarding their advocacy on the Dakota Pipeline in the USA.

Another example includes legal mobilization to protect academics, student and social justice activists who speak out for the rights and freedom of the Palestinian people.

But who can bring such claims in the first place? How can legal mobilization make issues more visible? How can human rights defenders be protected from the backlash against legal mobilization?

Outputs

Thandiwe Matthews was a discussant to a paper presented by S. Dezalay ‘Africa’s lawyers: From imperial agents to legal brokers on global markets’, Flemish Dutch Association Annual Conference, Netherlands, 15 January 2021.

Thandiwe Matthews presented a paper entitled ‘A socio-legal approach to exploring the transformative potential of the constitutional right to social security to address structural inequalities in South Africa’, at the Cardiff University Socio-Legal Studies Association Annual Meeting, Cardiff, March 2021. 

Thandiwe Matthews was in conversation with Justice Albie Sachs on ‘The Constitution – Intention v Implementation’, hosted by the Tambo Foundation, Johannesburg, 5 May 2021.

Thandiwe Matthews presented a paper entitled 'Interrogating ‘lawfare’ and ‘legal mobilisation’: a literature review’ at the Law & Society Association Annual Meeting, Chicago, May 2021.

Jeff Handmaker, Daphina Misiedjan, Thandiwe Matthews and other colleagues participated in a Roundtable on “Legal Mobilization in the Field of Law and Development” for the 2021 Conference of the European Association of Development Research and Training Institutes (EADI), 5 July 2021.

Thandiwe Matthews was a guest lecturer for an International Public Interest Advocacy Workshop hosted by the Asser Institute, 7 July 2021.

Thandiwe Matthews was in conversation with MPA Faiza Mahamud for the ‘Smaby Peacebuilding Symposium: Healing, Empowerment, Communication and Accountability’,  hosted by the University of Minnesota Hubert H. Humphrey School of Public Affairs, Minnesota, United States, 13 July 2021.

Thandiwe Matthews wrote an opinion piece: “Are human rights expendable in the pursuit of economic development?”, Welternaehrung (German) 

Jeff Handmaker, Daphina Misiedjan and other colleagues participated in a NIAS Seminar at the Netherlands Institute for Advanced Studies in April 2021 as part of the Legal Mobilization Theme group with papers entitled: 'O Lungo Drom: Legal Mobilization as Counterpower'; 'Water rights struggles in Johannesburg and Detroit revisited: Looking beyond law/litigation at the politics/power of rights-based legal mobilization'; 'Litigation in the fog of war: Seeking accountability for breaches of humanitarian law before Dutch courts' and 'Reconciling with nature while reconciling with people: Rights of nature as an articulation of environmental justice'.

Jeff Handmaker participated in a conference organized by NIAS on “Mapping Belonging as a Field of Study, Establishing Future Networks” with a paper on the theme of “Academic Freedom in Relation to Palestine”, 9-11 June 2021.

Jeff Handmaker participated in a Webinar organized by the Erasmus Centre for Liberal Arts and Sciences (ECLAS) at the Erasmus University College, with a presentation on “Understanding Context of Gaza and Sheikh Jarrah”, 1 July 2021.

Jeff Handmaker, Daphina Misiedjan and other colleagues participated in a Roundtable on “Legal Mobilization in the Field of Law and Development” for the 2021 Conference of the European Association of Development Research and Training Institutes (EADI), 5 July 2021.

Jeff Handmaker participated in the ICON-S conference organized by the International Society of Public Law with a co-authored paper with Sanne Taekema on “Legal Mobilization as Counterpower”, 7 July 2021.

Jeff Handmaker participated with Caroline Nalule in a Webinar on “From Control to Deterrence: Assessing Border Enforcement in South Africa (1994-2020) for the Migration and Diversity Seminar Series, ISS 13 July 2021 – this paper was later published as a Working Paper.

Jeff Handmaker participated in an event on “The Ziada Case at the Hague Court of Appeal”, organized by ISS, International Lawyers and the Nuhanovic Foundation, 20 September 2021.

Jeff Handmaker presented in the SDG Action Day at The Humanity Hub with a presentation on “Legal Mobilization”, 25 September 2021.

Jeff Handmaker participated in a Book Launch at the ACMES, University of Amsterdam on Enforcing Silence: Academic Freedom, with his own chapter on “Lawfare against Academics and the Potential of Legal Mobilization as Counterpower”, 4 November 2021.

Jeff Handmaker and Daphina Misiedjan participated in Whose Climate Change is it?, a NIAS-organized webinar with Spui25 in Amsterdam 15 October 2020.

Daphina Misiedjan moderated a discussion (in Dutch) on Rechten voor Natuur, organized at Pakhuis de Zwijger, 19 October 2020.

Jeff Handmaker and Daphina Misiedjan participated in Whose Climate Change is it?, a NIAS-organized webinar with Spui25 in Amsterdam 15 October 2020.

Daphina Misiedjan on River Rights: Pathways to Sustainability, Utrecht University, 26 March 2020.                                                                                                                                                                                                                                                                                                                                        Jeff Handmaker delivered Seeking Peace through the Lenses of Law, Studium Generale lecture at Wageningen University on 5 February 2019.

Daphina Misiedjan delivered Who’s Got the Right to Water? Studium Generale lecture at Utrecht University on 7 January 2019.

Jeff Handmaker delivered Seeking Peace through the Lenses of Law, Studium General lecture at Wageningen University on 5 February 2019.

Call it what it is. Seminar, with the Refugee Law Project (Uganda) and Women's Initiative for Gender Justice, ISS, 9 October 2019.
                
Confronting Apartheid: A Critical discussion, Seminar, ISS, 11 April 2019: 

Human Rights Inside and Outside, International Conference of the INFAR Project, ISS, 31 May and 1 June 2018.

Israel’s Nation-State Law, Public Discussion with Ali Abunimah and Eitan Bronstein, ISS, 4 October 2018.    
        
International Courts and the African Woman Judge, Book Launch with the African Foundation for International Law, ISS, 7 May 2018.    

Karin Arts, Presentation on ‘Agenda 2030, Children’s Rights and Data in the Caribbean: The Contribution of the Kids Rights Index’ at the 13th annual Caribbean Child Research Conference, November 15-16 2018, University of the West Indies, St. Augustine Campus, Trinidad and Tobago.

Jeff Handmaker, Moderator of Ecocide: The Fifth International Crime Against Peace, 25 November 2015.

Karin Arts, Presenter We need hard data to improve children's living conditions, 19 September 2014.

 

When should you call it what it is? Seminar, with the Refugee Law Project (Uganda) and Women's Initiative for Gender Justice, ISS, 9 October 2019.
                
Confronting Apartheid: A Critical discussion, Seminar, ISS, 11 April 2019. Recording available here.

Human Rights Inside and Outside, International Conference of the INFAR Project, ISS, 31 May and 1 June 2018.

Israel’s Nation-State Law, Public Discussion with Ali Abunimah and Eitan Bronstein, ISS, 4 October 2018.  

International Courts and the African Woman Judge, Book Launch with the African Foundation for International Law, ISS, 7 May 2018.   

These events have already been organized in 2022

Jeff Handmaker co-organized and moderated the Webinar “Israel's demonization of Palestinian human rights defenders”, hosted by ISS, ACMES and others, Thursday 27 Jan 2022, 18:00 - 19:30

Jeff Handmaker participated in “Legal mobilization, cause lawyering and crimmigration law”, speaking on the mantra of irregular migration, Webinar organized by Border Criminologies Oxford University, Friday 25 Feb 2022, 16:30 - 18:00

During the course of 2022, the researchers in the Legal Mobilization Project intend to

  • Finalize a provisional structure to support a Research Consortium, consisting of 6 academic partners and more than a dozen societal partners
  • Develop its research programme, as a product of co-creation with its research and societal partners
  • Produce short knowledge clips / videos
  • Organize and participate in cutting-edge, in-person and webinar events on a variety of Legal Mobilization Themes
  • Publish research on legal mobilization

Research collaboration will continue with the University of the Witwatersrand School of Law, including multiple faculty exchanges, seminars and – since 2017 – a joint PhD programme, co-ordinated by Handmaker, whereby successful candidates are to obtain a doctoral degree recognized by both Wits and Erasmus universities. ISS has invested substantially in this programme with funds from the Deputy Rector for Research, the Governance, Law and Social Justice research group, EUSA-ID programme and Erasmus + (European Commission).

 

The work on the KidsRights Index will continue

Collaborations

Project leader - Dr Jeff Handmaker

Karin Arts, Professor of International Law and Development and Deputy Rector for Educational Affairs (ISS)
Jeff Handmaker, Senior Lecturer (ISS) and Senior Research Fellow (Wits) 
Roy Matika, Government Official and Joint ISS/Wits PhD candidate (joined in 2017)
Thandiwe Matthews, South African Attorney and Joint ISS/Wits PhD candidate (joined in 2018)
Daphina Misiedjan, Assistant Professor at the ISS (joined in 2019)
Rima Rassi, Program Manager (American University), Beirut and ISS PhD candidate (joined in 2018)
Charmika Samaradiwakera-Wijesundara, Lecturer (Wits) and Joint ISS/Wits PhD candidate (joined in 2019)
Yuyun Wahyuningrum, Member of the Asian Intergovernmental Commission on Human Rights and ISS PhD candidate (joined in 2017)
Ayhan Işık, guest researcher (joined in 2021)

Jackie Dugard, Associate Professor, School of Law, University of the Witwatersrand
Frederiek de Vlaming, Researcher, War Crimes Centre, University of Amsterdam
Margaretha Wewerinke-Singh, Assistant Professor, Grotius Centre for International Legal Studies, Leiden University
Jeff Handmaker, Senior Lecturer in Law, Human Rights and Development, ISS
Daphina Misiedjan, Assistant Professor in Human Rights and the Environment, ISS

Funding

Earlier funding accruing to the ISS for our role in the Research Excellence Initiative on Integrating Normative and Functional Approaches to the Rule of Law and Human Rights (INFAR): Euros 81 K.

Total funding committed for 2020-21: Euros 115 K.

Key Funders

  • Erasmus Trust Fund: 2015-2020, Research Excellence Initiative led by Professor Sanne Taekema, in which various ISS researchers have participated.
  • ISS, Erasmus School of Economics and KidsRights: 2012-2022, coverage of all expenses involved in producing and publishing the annual KidsRights Index. 
  • European Commission: 2019, Erasmus + programme, substantial grant to support staff and student mobilities during the course of 2020 - 2022.
  • NIAS-KNAW (Royal Dutch Academy of Sciences): 2021, Teaching replacement grants for Misiedjan and Handmaker.
  • Leiden University: 2021, The Van Vollenhoven Institute runs an MSc in Law and Society in which the ISS have been closely involved, both in supporting Leiden obtain accreditation, and through (compensated) teaching contributions, in particular an elective in Mobilizing Rights and Social Justice.

Contact

Email address
handmaker@iss.nl

For more information, please contact the project leader, Dr Jeff Handmaker.

'To persist in asking the question "but is the jurist or the politician right?" is like asking whether the image really is that of a (Wittgenstein) rabbit or a duck. All depends on the background assumptions against which we examine the image, the vocabulary through which we try to grasp its meaning.' From: M. Koskenniemi in Mobilising International Law for 'Global Justice' (2019:27).

Other relevant content

* Reference to Kandinsky’s Composition VIII (1923) is inspired by the work of Koskenniemi, and other critical legal scholars, including those applying Third World Approaches to International Law (TWAIL). These scholars argue that international law, like politics and society, may be fragmented, but also has a structure. For legal mobilization scholars, the institutional biases contained in this structure and the historical context in which they were framed, are strategically important to understand. 

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