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 us, Makau Mutua (2016) regards a critical approach to legal mobilization as key to Third World Approaches to International Law (TWAIL). The pioneering research of the late (2020) legal anthropologist Sally Engle Merry has explained 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

  • Relevant academic and socially relevant publications

    • J.D. Handmaker (2020) ‘Lawfare against Academics and the Potential of Legal Mobilization as Counterpower’. (pp. 233-260) in David Landy, Ronit Lentin, and Conor McCarthy (Ed.), Enforcing Silence: Academic Freedom, Palestine and the Criticism of Israel London: Zed Books

      D. Misiedjan (2020) ‘Exploring the Road to Justiciability of the Human Right to Water in Suriname’ Utrecht Law
      Review (16)2, 1–12.

      J.D. Handmaker & T. Matthews (2019) ‘Analysing legal mobilisation’s potential to secure equal access to socioeconomic justice in South Africa’ Development Southern Africa, 36 (6), 889-904.

      J.D. Handmaker (2019) ‘The Legitimacy Crisis Within International Criminal Justice and the Importance of Critical, Reflexive Learning (pp. 189-206) in B Jessop & K Knio (Eds.), The Pedagogy of Economic, Political and Social Crises: Dynamics, Construals and Lessons. London: Routledge

      J.D. Handmaker & K. Arts (Ed.). (2019) Mobilising International Law for 'Global Justice' Cambridge: Cambridge University Press

      K. Arts. (2019) ‘Children’s Rights and Climate Change’. (pp. 216-235) in Claire Fenton-Glynn (ed.), Children’s Rights and Sustainable Development: Interpreting the UNCRC for Future Generations, Cambridge: Cambridge University Press.

      K. Arts, (2019) ‘Children’s Rights and the Sustainable Development Goals’. (pp. 537-561) in Ursula Kilkelly and Ton Liefaard (eds.), International Human Rights: International Children’s Rights Law. Singapore: Springer.

      D. Misiedjan and S. McKenzie (2019) ‘The Human Right to Water’ pp. 335-346 in J. May and E. Daly (eds) Human Rights and the Environment: Legality, Indivisibility, Dignity and Geography. Cheltenham: Edward Elgar. 

      D. Misiedjan (2019) Towards a Sustainable Human Right to Water. Supporting vulnerable people and protecting water resources. Antwerp: Intersentia.

      J. Van Garderen & J.D. Handmaker (2018) Change will come in a barrel’: a tribute to Rudolph Jansen South African Journal on Human Rights, 34 (1), 140-142. 

      G. Bisharat, J.D. Handmaker, G. Karmi & A. Tartir (2018) Mobilizing International Law in the Palestinian Struggle for Justice Global Jurist, 18 (3), 1-6. 

      K. Arts and Joyeeta Gupta. (2018) ‘Achieving the 1.5°C Objective: Just Implementation Through a Right to (Sustainable) Development Approach’, International Environmental Agreements: Politics, Law and Economics 18(1): 11-28.
       

    • J.D. Handmaker (2020) Countering attempts to undermine the rule of law through lawfare in Suriname. (blog). blISS - The ISS Blog on Global Development and Social Justice. (available: 13 Jan 2020).

      J.D. Handmaker & A. Tartir (2020) ICC and Palestine Symposium: The (Non) Effects of Oslo on Rights and Status. (blog). OpinioJuris. (available: 6 Feb 2020).

      Led by Karin Arts and Dinand Webbink and co-ordinated by Myrthe de Jong, the Kids Rights Index produces annual reports. In 2020, the latest Kids Rights Index report 2020 was produced.

      Karin Arts and Martijn Scheltema (2019) ‘Territorialiteit te Boven – Klimaatverandering en Mensenrechten’, 149 Handelingen Nederlandse Juristen-Vereniging, Wolters Kluwer, pp. 59-134

      K. Arts, J.B. Opschoor, J. Gupta, M.M. Jansen, C.W.A.M. van Paridon, and L.G.J. Wijnands, International Climate Policy, Advisory Letter No. 33, The Hague: Advisory Council on International Affairs, 2019, https://www.advisorycouncilinternationalaffairs.nl/documents/publications/2019/07/05/international-climate-policy.

      J.D. Handmaker (2019) Learning from the crisis in international criminal justice. (blog). blISS - The ISS Blog on Global Development and Social Justice. (available: 8 Feb 2019).

      A.M. Arbeláez Trujillo & J.D. Handmaker (2019) Confronting Apartheid Through Critical Discussion. (blog). blISS - The ISS Blog on Global Development and Social Justice. (available: 17 Jun 2019).

      J.D. Handmaker (2019) Legal mobilization to end impunity for international crimes. (blog). blISS - The ISS Blog on Global Development and Social Justice. (available: 16 Sep 2019).

      K. Arts, J.B. Opschoor, J. Gupta, M.M. Jansen, C.W.A.M. van Paridon, and L.G.J. Wijnands (2019) International Climate Policy, Advisory Letter No. 33, The Hague: Advisory Council on International Affairs.

      L. Houwing & J.D. Handmaker (2018) Legal mobilisation in the court of public opinion. (blog). blISS - The ISS Blog on Global Development and Social Justice. (available: 12 Sep 2018).

      J.D. Handmaker & K. Arts (2018) Globalisation, international law and the elusive concept of ‘global justice’. (blog). blISS - The ISS Blog on Global Development and Social Justice. (available: 29 Nov 2018).

      J.D. Handmaker (2018) Toward greater tolerance? Ethno-nationalist lawfare and resistance through legal mobilisation. (blog). blISS - The ISS Blog on Global Development and Social Justice. (available: 26 Jan 2018).
       

  • Jeff Handmaker and Daphina Misiedjan participation 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.

     

  • During the 2020-21 academic year, ISS senior researchers Dr Daphina Misiedjan and Dr Jeff Handmaker will be research fellows at the Netherlands Institute for Advanced Study in the Humanities and Social Science (NIAS) to pursue their legal mobilization research in a special theme group, led by Handmaker. Supported by grants from the Royal Dutch Academy of Sciences, Erasmus University Rotterdam and the Research Innovation Fund, they will join three other colleagues, Dr Margaretha Wewerinke-Singh (University of Leiden), Dr Frederiek de Vlaming (War Crimes Centre, University of Amsterdam) and Dr Jackie Dugard (University of the Witwatersrand).

    As part of the NIAS Theme Group, we will organize a number of seminars and webinars. In addition, we have committed ourselves to producing peer-reviewed journal articles, book chapters and to complete a full-length book on legal mobilization (authored by Handmaker, contract with Edward Elgar).

    The collaboration with Dugard forms part of a long-term partnership between ISS and the University of the Witwatersrand, which has supported multiple faculty exchanges, co-organized seminars, joint teaching projects 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 through the Deputy Rector for Research and the Governance, Law and Social Justice research group. 

    The work on the KidsRights Index will continue.

Collaborations

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 Misedjan 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

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.