Guy S Goodwin-Gill: Strategy and Strategic Litigation
Published on the 14 Apr 2022
Keynote speech to the Global Strategic Litigation Council Annual Conference on 12 April 2022, also available on video.
I am particularly pleased to have been invited by Alex Aleinikoff to speak on strategy and strategic litigation at this, the first annual conference of the Global Strategic Litigation Council on Refugee Rights.
My own involvement in using the courts to win strategic gains for refugees goes back now for quite some time. The 4th edition of my book, The Refugee in International Law, was published last year, now co-authored with Jane McAdam and Emma Dunlop. Much has changed since the first edition was published in 1983. Then, it listed just two pages of cases, while the present edition contains 22 closely typed pages in a larger format, amply demonstrating the extent to which the refugee status determination process has become legalised and judicialised.
Looking back at my own engagement in litigation, I see that not much strategy was involved, at least to my way of thinking. I assisted in drafting the amicus briefs for UNHCR in Stevic, Cardoza-Fonseca, Canas-Segovia and Haitian Right Centers, among others, and then offered my ‘expert’ legal opinion, ad hoc and on demand, in countless other cases on the meaning and application of the 1951 Convention.
These included my views on exclusion, political crime, persecution, non-State actors, safe third country, non-refoulement, non-penalization, and the burden and standard of proof, until finally, dissatisfied with the particular use made of an opinion in the Shah and Islam case (although not the judgment), I decided it was time to practise what I preached. And so I acted pro bono for UNHCR in Roma Rights, El-Ali, and Al-Rawi, and then represented individual claimants in, among others, Al Jedda and MSM (Somalia). In the meantime, I also appeared in the European Court of Human Rights and the International Court of Justice, although not in refugee or related cases.
But as for strategy in all this? Apart from the desire to win for the client, that is? Well, who can say…
Still, there is probably general agreement on meaning...
1. Consensus as to meaning
Coming to think about it now, we probably all know in general what we are talking about when we use or hear the term ‘strategic litigation’. We think of ‘strategy’ as encompassing a plan or course of action that is geared to obtaining a particular aim or goal, especially in the long-term.
In fact, all of us working in the field of international refugee law probably agree that litigation will continue, in both individual and class actions, because governments themselves use the law to allocate rights, to restrict their obligations and to limit access to asylum. Faced with this reality, the strategy here is not just to win the individual case, but to turn policy and practice around or, as some would say, to advocate for social justice and social change.
The unspoken premise, of course, is that of an independent judiciary, one that holds the balance between legislative and executive, on the one hand, and the rule of law, on the other; which offers a forum in which the advocate can draw attention to violations of rights and the duty of the State to fulfil its international obligations, whatever their source or scope. This may include access to land and to protection by indigenous people; or challenging through the submission of amicus curiae briefs what’s to be done in the case of a major oil spill, or of air pollution, as the UN Special Rapporteur on Human Rights and the Environment noted in his newsletter of April 2022.
In a refugee, human rights, or statelessness context, the focus may be on the right of every child to a nationality; or it may go beyond the essential victim-centred focus in a torture case and require the court to address root causes; or it may demand to know whether detention of a non-citizen is automatically valid simply because implemented for the purpose of deciding on the grant of a visa or on removal; or whether government measures taken to maintain the immigration detention system gave rise to a real risk of death or ill-treatment contrary to international law.
In each case, the interests of the individual must always remain a primary consideration. The impact of positive decisions in each case will likely fall wider, however, and in many instances the support of an amicus group will enable the broader, more strategic issues, to be taken up.
We also know that courts once renowned for being open to public interest litigation can also backslide, as Mohsin Alam Bhat pointed out in relation to the record of the Indian Supreme Court in litigation surrounding the National Register of Citizens in Assam. Here, and in other litigation, the Court has now shown itself reluctant to decide, for example, on the extent of constitutional protection due to all, including by way of non-refoulement. Instead of deciding the core legal issues, the Court has opted for interim measures, becoming a court of ‘deferment and indecision’.
What’s to be done? Keep litigating in the hope that good sense will prevail? The overall premise still holds good, even if more effort and commitment is needed to ensure, both through litigation and other capacity-building initiatives, greater familiarity among judges of the basic principles of international refugee law.
Perhaps, as Amnesty International noted in August 2020, finally all that strategic litigation means is going to court to protect human rights, although it qualified this by recognizing that the words ‘strategic’ means that we choose which cases to intervene on, based on ‘our’ objective of achieving systemic change.
But ‘choice’ is important, not only to us – the lawyers – but also to those whom we represent, the refugees. A choice is made, over and above the facts and merits of an individual claim, which in turn means that resources will be allocated to support the case, in order to pursue or promote a wider goal. But how will this impact the individual? What are the criteria by which we choose? How transparent and honest are we? And in what degree are the refugees involved?
And is it not rather self-indulgent to tell ourselves that the record litigation, good and bad, has value as history?
So, there is some dissensus as to ways, means and objectives... And yes, there is such a word as ‘dissensus’, the first use of which is noted in 1962 by both the Oxford English Dictionary and Merriam Webster...
2. Dissensus as to ways, means and objectives
Given the variety of issues and detail in every case across different jurisdictions, there will always be both consensus and dissensus regarding litigation strategy. What is good for the individual claimant is not always good for refugees at large; he or she may be released or not prosecuted, but detention and prosecution may continue for dozens, if not hundreds of others.
First of all in deciding to engage in strategic litigation, we need to identify the litigable case. That may well mean picking the particularly egregious example, where (1) the policy or practice touches several cases; (2) the additional attention, for instance, through an amicus or intervenor brief, is not likely to harm or prejudice the individual claimant or others similarly situated; and (3) the chances of success are particularly strong. Always problematic, assessing the chance of success is nonetheless essential, for we are about to commit ourselves and others to time and money.
I rated our chance of success in a statelessness case, Al Jedda, at 75%. We lost all the way to the Supreme Court, where we won... And the government promptly changed the law.
Which reminds me that we need also to beware of legal ideology as the answer to settled political or legislative positions on refugee protection, asylum and citizenship. In Hoxha, it was argued, not that a particular interpretation was needed to fulfil a humanitarian gap, but that additional words should be implied in the text to achieve the desired result. Not surprisingly, the court rejected the argument, which would have been better employed in canvassing the legislature for a change in the law.
And then we need to be on guard against reverse strategic litigation, not so common in the refugee law field as in that of environmental protection. The danger involves governments and corporations engaging in litigious harassment, seeking to stifle public participation; or to obstruct access to information, for example, regarding the costs of detention on the specious ground of commercial confidentiality; or to limit knowledge of concessions and settlements by way of non-disclosure agreements.
For the individual seeking release after years of detention in appalling conditions, release accompanied by compensation and an NDA can be a very seductive package; court oversight may be the only way to ensure a measure of integrity, but I don’t know of any jurisdiction where that is the norm.
In the professional relationship between lawyer and client, there may be little room for strategy apart from individual interests, and any broader impact of success may be no more than incidental and co-incidental.
We have doubtless all had the dream, as Scott Cosgriff remarked, that the one case we are litigating today will finally crack the system. The reality is that, and Australian experience confirms this only too well, offshore detention has to be fought and won (or sometimes lost), case by individual case, as the journalist Ben Doherty recently noted. Ideally, again, the sum of individual cases ought to add up to change in policy, but governments can be intransigent; and so it goes...
3. A strategy for collaboration and coordination
All of which leads me to the here and now, to the question of how we as individuals and as members of the GSLC, can contribute to and benefit from a more pro-active, co-ordinated and needs-based approach to strategic litigation.
First, I am delighted with this initiative, which will find, in its own words, the Council ‘as a hub for activists seeking to use strategic litigation to advance the protection of refugee rights and the consistent and progressive development of international law.’
Progress in international protection has long been driven by lawyers presenting claims and fighting cases in first instance, appeal and supreme courts, and before regional and universal oversight mechanisms.
The growth in national procedures and the judicialisation of process have led the 1951 Convention to be one of the most highly litigated treaties at the domestic level, with courts and tribunals around the world engaged almost daily in a common purpose – elucidating the meaning of and applying the refugee definition and other Convention provisions relevant especially to protection, including admission, access to asylum, non-penalisation, residence, and non-removal.
This means that domestic courts have considerable potential as ‘agents of development’, and the absence of a centralised authority or treaty supervisory body simply accentuates their responsibilities in compliance and development. Precisely because their decisions, as organs of the State, can amount or contribute to practice for customary international law purposes, so we need to ensure, not only that judges are increasingly familiar with international law, but also that the courts are provided with the best evidence of the applicable law, of commonly accepted interpretations, and of what is best for the refugee.
Although it always helps to come at issues with a fresh and open mind, it is important that we do not continually re-invent the wheel. Refugee law arguments will contain both national and international characteristics, joining domestic, constitutional and public law elements with international law. The interpretation of treaty terms requires knowledge of the Vienna Convention on the Law of Treaties, of customary international law, and of comparative jurisprudence – How are the courts of other countries applying and understanding the terms of the 1951 Convention and the 1967 Protocol, or of other relevant human rights provisions? What does the data, from different jurisdictions, tell us about the impact of detention on the health and well-being of children and adults?
All of this, or aspects of it, has been dealt with before; the information and the arguments are out there. There is room here for someone – or a team of someones – to pull things together, but cooperation is a two-way street and does not just happen. I hope that ‘someone’ in GSLC is even now taking the initiative, together with the membership, to see what strategic litigation is being considered and to assess what has been done already and what might be done to help.
Working groups have already been set up around two themes, ‘Legal status and lawful stay’, and ‘Detention and due process.’ They will take account of several of the issues I have mentioned already, namely, whether litigation fits within the priorities and needs of refugee communities; the likelihood that it will result in the recognition and protection of rights; the likelihood of a successful outcome, and its overall impact. I look forward to hearing more of their work.
Above all, however, let us not forget the very important role of UNHCR, both in supporting strategic litigation and in running its own interventions, often with the assistance of lawyers and counsel here today.
UNHCR, of course, has a wealth of experience, deriving from over 70 years exercising its supervisory responsibility. It is expressly accepted by States, and its guidelines on protection, issued since 2000 and supplementing its 1979 Handbook, are soundly based in the jurisprudence of courts across multiple jurisdictions (leavened with a dash of principle).
UNHCR’s Refworld records some 247 instances of ‘intervention’ by various means, including as amicus or by way of expert testimony, in courts and proceedings that range from, among others, the High Court of Kenya, the Court of Appeals of the Hong Kong SAR, the Supreme Courts of Canada, Israel, the United States, and the United Kingdom, the Court of Justice of the European Union, the European Court of Human Rights, the Inter-American Court of Human Rights, the Swedish Migration Court of Appeal, the Netherlands Council of State, the US Court of Appeals for the First, Ninth and D.C. Circuits, and the Board of Immigration Appeals.
UNHCR’s role is special, in the sense that it is formally entrusted under its Statute and the Convention and Protocol with responsibility to supervise the application of treaties for the protection of refugees. But it is also required to be ‘non-political’, which can dictate – as I know from personal experience – a reluctance to intervene in matters deemed ‘delicate’, where intervention is likely to be ‘misunderstood’ by States.
For UNHCR, strategic litigation is part of a broader protection strategy, and ideally will reinforce other non-judicial approaches, including the dissemination of texts, training and capacity-building. One area in which, as I see it, UNHCR and the GSLC would benefit is from a pro-active approach, in which knowledge of initiatives is shared and even on occasion, co-ordinated. This means that early attention should be given to identifying priority areas in jurisdictions open or potentially open to intervention in one form or another – access to asylum procedures, detention and treatment would seem ripe for attention.
Even if, for political or resource or other reasons, UNHCR is unable to participate, it may be able to lend its support informally, while knowing of the intervention can strengthen its hand vis-à-vis the authorities in the State in question.
In addition, judicial dialogue across jurisdictions is an important dynamic, especially in the evolution of the terms of the refugee definition, such as persecution, protection, social group, or political opinion. Here, the work of the International Association of Refugee and Migration Judges will be known to many of you.
Finally, there is the question of evaluation, which needs to be undertaken regularly, even though it can be hard to identify cause and effect. In Roma Rights, we won, but on local non-discrimination law, rather than international refugee law strictly so called; in El-Ali, we lost the key issue of relevant date, but eight years later saw our argument accepted by the European Court of Justice in Bolbol; and in Al-Rawi, we lost in the Court of Appeal and were on our way to the House of Lords when the government conceded. I like to think that our arguments strengthened the protection dimension to possession of a Convention travel document, and recognized the relevance to protection of the fact that both the United Kingdom and the United States were party to the 1967 Protocol; sadly, however, the only ruling is the negative one in the Court of Appeal...
Conclusion
Control over borders is rapidly moving beyond the physical – the line in the land, the sea between, the wire and the wall – and into all the possibilities of surveillance and monitoring that technology has to offer. This is new terrain in which we lawyers must repeatedly carve out our role, seeking to resolve or mediate that tension and that conflict, but always with a bias towards international protection – a vision, which, despite its ups and downs, continues to place value on human dignity, privacy, agency, identity, equality before the law, and security from harm.
It is that practice over decades that enables us, as advocates and international lawyers, to speak with confidence of the right to seek asylum (though the road may be fraught); of the right not to be refouled; of the right to claim protection and to be heard; of the right not to be penalised for illegal entry or presence; of the right to be protected against torture or inhuman and degrading treatment; of the right to family reunion; of the right to education; of the right to work; of the right of the child in flight to decisions that take due and proper account of his or her best interests, that do not rob the child of their childhood, or damage their physical or mental health, or otherwise deny them, in the short time allowed by childhood, of the opportunity to prepare for a meaningful life in community.
We now know, or ought to, that refugee situations are not temporary and exceptional, and that unilateralism does not produce solutions to displacement commensurate with human dignity, let alone with international law.
International law defines the refugee and the rights of the refugee, but it leaves open certain critical issues. The law in its ordinary aspect – the criminal law, the law of tort, labour law – also protects the refugee. Using the courts and the opportunities for strategic litigation, it is our task to make that protection real and effective.
Good hunting, and good luck!
Thank you.
Annex: Selected references
Amnesty International, ‘Going to court to protect the rights of refugees and migrants: An overlooked tool for positive change’, 18 August 2020
Bhat, M. A., Introduction to ‘National Register of Citizens and Exclusion’, Paper presented at the APPRN Regional Roundtable of Legal Practitioners on Refugee Rights in South Asia, Bangkok, 7–8 December 2019
Carvalho, S. & Baker, E., ‘Strategic Litigation Experiences in the Inter-American Human Rights System’, (2014) 20 SUR 449
Detention Action v Secretary of State for the Home Department [2020] EWHC 32 (Admin)
Doherty, Ben, ‘“Everyone asks about Novak” but Mehdi has languished for nine years in Australian immigration detention’: 7 January 2022
Doherty, Ben, ‘Iranian refugee Mehdi Ali released after nine years in Australian immigration detention’, 3 March 2022
European Council on Refugees and Exiles, ‘Strategic Litigation’, n.d.
Fair Trials and REDRESS, ‘Tainted by Torture: Examining the Use of Torture Evidence’, May 2018
Goodwin-Gill, G. S. & McAdam, J., with Emma Dunlop, The Refugee in International Law, 4th edn., Oxford: Oxford University Press, 2021
Goodwin-Gill, G. S., The Refugee in International Law, Oxford: Clarendon Press, 1983
Goodwin-Gill, G. S., ‘The Office of the United Nations High Commissioner for Refugees and the Sources of International Refugee Law’, (2020) 69 International and Comparative Law Quarterly 1
Institute on Statelessness and Inclusion, ‘The World’s Stateless: Deprivation of Nationality’, March 2020
Kaldor Centre for International Refugee Law, ‘Courts at the frontier: Can strategic litigation in Australia advance refugee protection?’ Podcast: Kaldor Centre Conference 2020
Kaminski, I., ‘Legal eagles: how climate litigation is shaping ambitious cases for nature’
Pillai, S., ‘AJL20 v Commonwealth: Non-refoulement, indefinite detention and the “totally screwed”’
The Queen (Al Rawi and others) v Secretary of State for Foreign and Commonwealth Affairs and another [2006] EWCA Civ 1279
UNHCR, Asylum Access, Global Strategic Litigation Council & HIAS, ‘Ninth Annual Strategic Litigation Roundtable’, September-October 2021
UNHCR, Asylum Access & HIAS, ‘Second Annual Roundtable on Strategic Litigation and International Refugee Protection: Trends and Best Practices’, 20 June 2014
UNHCR, Refworld
UNHCR, ‘Written Case in R (ex parte Roma Rights Centre et al) v Immigration Officer, Prague Airport and another’, (2005) 17 International Journal of Refugee Law 427
United Nations, ‘Situation of human rights defenders. Note by the Secretar-General’, Report of the Special Rapporteur, Michel Forst: UN doc. A/71/281, 3 August 2016
Zolberg Institute on Migration and Mobility, ‘Launching the Global Strategic Litigation Council for Refugee Rights. A Concept Note’, September 2021