Towards Greater Tolerance? commetnary by dr. Jeff Handmaker

INFAR member dr. Jeff Handmaker has recently penned an online commentary at issblog.nl on legal mobilization and the case of the Dutch traveller community. The blogpost is reproduced below.

Toward greater tolerance? Ethno-nationalist lawfare and resistance through legal mobilisation by Jeff Handmaker

JeffHandmakerISS_smallAbout the author:

Jeff Handmaker teaches law, human rights, development and governance and conducts research on legal mobilisation at the ISS. He is also an associate member of the Faculty of Law at the University of the Witwatersrand in Johannesburg, Editor-in-Chief of the South African Journal on Human Rights and a member of the EUR INFAR Project.


In September 2014 Henk van Oss, a caravan dweller and member of the Dutch traveler community, received a letter from the Dutch municipality of Oss. Condolences were expressed for the recent death of his mother. And, in accordance with the Dutch “extinction policy”, he was informed that the permit for his mother’s caravan had been withdrawn and that he had to leave. His story of ethno-nationalist lawfare and the struggle for citizens to defend themselves reveals the importance of research on the contested terrain of legal mobilisation.


Victory for van Oss

Mr. van Oss, who had cared for his mother until her death, did not accept the municipality’s demands. He came in contact with the Dutch organisation Public Interest Litigation Project, who took his case to the Netherlands Human Rights Institute and brought a legal claim against the municipality of Oss. While the legal battle continued for some years, it was ultimately successful. The Human Rights Institute declared that the actions of Oss Municipality were unlawful. The courts (on appeal) declared that the municipality had acted illegally by withdrawing their permission for the caravan stand.

It was in some respects a legal tale of David and Goliath.  From an analytical standpoint it was a classic case study of how ethno-nationalist lawfare to end what the Dutch government regards as an undesirable cultural practice met the counterpower of the Sinti, Roma and Traveler community, who used strategic litigation, a form of legal mobilisation, to claim their rights.

The traveler community: A precarious existence

The history of the Sinti, Roma and Traveler community in Europe is not an altogether happy one. Historicially, the community travelled for economic opportunities or to escape persecution. But this wasn’t always enough. During the Second World War, several hundred members of the community were arrested and deported from the Netherlands by the Nazi occupation authorities. They were sent to concentration camps; most died. While the number of persecuted travelers in the Netherlands was relatively small, they met a similar fate as several hundred thousand other travelers did across Europe.

Ander-kamp-Oss-in-2013-grotendeels-ontruimd-3
A modern-day caravan in the Netherlands.

Over the course of the past few decades, a range of restrictive legal measures have been taken against Sinti, Roma and Travelers by both national and municipal governments across Europe. These measures frequently reflect ethno-nationalist, autocratic tendencies rather than the values expected of liberal democratic states. Such measures are also rooted in populism. They are framed by over-exaggerated perceptions of criminality and sometimes invoke the mantra of integration or even emancipation as a thin, and disingenuous form of justification.

It is not surprising, therefore, that the Dutch “extinction policy1, largely implemented at the municipal government level, and sometimes containing a benevolent, moral message aimed at improving the socio-economic conditions of the community, is met with such revulsion and hostility. Ultimately, the government’s legal measures represent an oppressive use of law, with the overall aim of reducing, if not completely eliminating the community; in other words, these measures are a form of lawfare.

Resistance through legal mobilisation

Meanwhile, civic-led, law-based efforts to protect members of the community facing discrimination and to advocate for more rights-respecting policies make it difficult for such restrictive measures to take hold legally, particularly at the local/municipal level. These efforts serve as a counterpower to the exercise of ethno-nationalist lawfare against these legally-recognised ethnic groups.

As I argued in a paper presented at the Dutch-Flemish Socio-Legal Studies Association (VSR) in January 2018, legal mobilisation as an analytical lens can help to explain the potential for civic-led legal instrumentalism to protect groups against retrogressive measures by the state. According to my colleague Sanne Taekema, Professor of Legal Theory at Erasmus School of Law and leader of the project on Integrating Normative and Functional Approaches to the Rule of Law and Human Rights (INFAR) in which I am also participating,

traditional separation or balance of powers focuses on formal mandates of public actors and their interactions. Given the fact that in many states executive and legislative powers have become strongly intertwined, a veritable trias politica is merely an ideal.

Taekema’s research explores whether a model of balance of powers can be extended to include non-state actors. Together, we are investigating whether it is possible to revise the theory to include counterpowers outside of the state and serve as “direct and indirect checks” on government abuse of power. More broadly, my research explores how an analytical lens of lawfare can explain governmental-led instrumentalisation of law against communities, such as the Sinti, Roma and Travelers community, and how an analytical lens of legal mobilisation can explain the strategic potential of law-based, civic-led social justice claims.

A legal mobilisation lens: Useful in practice

The usefulness of a legal mobilisation lens is is further affirmed by Dutch attorney Jelle Klaas, litigation director of PILP, who led the strategic litigation on behalf of Henk van Oss. The Amsterdam-based organisation pursues what it describes as strategic litigation, a concept that is in fact broader than what most legal advocacy organisations traditionally understand strategic litigation to be, and incorporates various forms of law-based, civic-led advocacy. Klaas has noted that

sometimes, alternative routes to justice are blocked. Sometimes dialogue and lobbying are ineffective on their own. In these cases, legal action may be necessary as a form of counterpower to curb government overreach or harms caused by corporations.

PILP’s work is about using legal action to bring about social, political or legal changes. The goal is not necessarily to win a case for a particular client. Strategic litigation complements other ways of bringing about change: from lobbying and advocacy to community organising and protests. According to this approach, an organisation focused on strategic litigation should act as an ally to activists, NGOs and grassroots organisations. Klaas further explains PILP’s litigation strategies:

Usually, the aim is to go to court for a legal victory, but sometimes you can win by losing a case. Where injustice is exposed and publicity generated, there is often an opportunity for non-state actors to be a form of counterpower, regardless of the outcome of the case.

Conclusion

The case brought by Henk van Oss was “won” by PILP-supported lawyers in 2017, albeit not on the grounds of human rights violations as PILP had hoped and eloquently argued for. However, the case elevated the plight of Sinti, Roma and Travelers to the national spotlight. Furthermore, in laying out a detailed dossier of state-based discrimination, the case produced a vivid portrait of the community, giving the legal issue a human face and according credibility to the Sinti, Roma and Traveler movement’s campaign to end discrimination.

Beyond this particular issue, I feel it is crucial to understand the dynamics of legal mobilisation, both in a specific case and – generally – as a form of counterpower against lawfare exercised by state and indeed corporate actors. In this regard, context always shapes the socio-cultural possibilities for legal mobilisation. Furthermore, it is crucial to understand the structural bias embedded within national and international laws that condition the opportunities for exercising agency. Finally, the existence of structural bias, carefully leveraged, can form a powerful basis for advancing a social justice claim.


1The “extinction policy” is known in Dutch as the “uitsterfbeleid”.
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Call for Papers: Human Rights Inside and Outside

Human Rights Inside and Outside: civil participation, contested constitutionalism, and corporate responsibility

The INFAR research program at Erasmus School of Law and the International Institute of Social Studies invites paper submissions for an international conference to be held in The Hague, The Netherlands, 31 May – 1 June, 2018.

This conference builds on the core idea of the INFAR (Integrating Normative and Functional Approaches to the Rule of Law and Human Rights) project, and applies this to human rights discourse and practices. Human rights are a core normative idea for law, but need to be used in practice by various actors in order to function. What happens when that is done? More particularly, what side effects does the use of human rights by various actors have for human rights as a normative proposition within law and politics?

Paper abstracts are due by 31 March 2018, and should be sent to dr. Nathanael Ali, Email: ali(at)law.eur.nl

For details, please see the call for papers below.

INFARconferenceMay2018_CallforPapers

 

Dr. Jeff Handmaker speaks at Leiden and Ostende

On 3 February 2017, INFAR member dr. Jeff Handmaker has delivered an invited public lecture at the Leiden Socio-legal Seminar Series, organised by Leiden University. The lecture was entitled ‘Peering through the legal mobilisation lens to analyse the potential of legal advocacy’. Full announcement and the abstract of the lecture can be found here: https://www.universiteitleiden.nl/en/news/2017/01/peering-through-the-legal-mobilisation-lens-to-analyse-the-potential-of-legal-advocacy

14-16 September, 2017, dr. Handmaker also presents a paper at the European Law and Development Research Conference in Ostende, Belgium, hosted by the University of Antwerp. His presentation will be based on his paper titled ‘Evaluating the potential of law and development through the lens of legal mobilization.’ The conference focuses on perspectives from the Global South on the field of Law and Development. For full program of the conference, see here: https://www.uantwerpen.be/en/conferences/law-development-conference-days/

 

INFAR Colloquium and Seminar at Princeton University

12-13 June, 2017 INFAR members dr. Jeff Handmaker, prof. Sanne Taekema, prof. Karin Arts and INFAR visiting professor Kim Lane Scheppele organised a colloquium at Princeton University.

The colloquium, entitled ‘Legal Mobilization in a World Marked By Populism and Crisis‘, drew a select group of speakers from across the USA and abroad. The goals of the invitation-only colloquium was to bring together scholars and experts to better understand legal mobilization (LM), both as an academic concept and approach, and as a strategy for advocates; to stimulate a relevant research agenda on LM that is informed by current, pressing challenges faced by legal advocates; and to share strategies for LM in light of contemporary political crises in the USA and the Netherlands.

 

On 13 June, 2017, a public seminar was organized as an extension of the colloquium. At the seminar titled ‘Legal Mobilization at a Time of Political Crisis in Europe and North America‘, INFAR members dr. Jeff Handmaker and prof. Sanne Taekema presented their research at a panel along with prof. Susam Akram of Boston University, Jelle Klaas from the Public Interest Litigation Project, and Baher Azmy from Center for Constitutional Rights.

For full announcement, see here https://lapa.princeton.edu/content/legal-mobilization-time-political-crisis-europe-and-north-america

 

Both the colloquium and the public seminar were organised by INFAR in co-operation with the Public Interest Litigation Project (PILP) of the Dutch Section of the International Commission of Jurists (NJCM), the Mamdouha S. Bobst Center for Peace and Justice, Princeton Institute for International and Regional Studies (PIIRS) and the Law and Public Affairs Program of Princeton University.

Seminar: Recent Developments in Militant Democracy

The INFAR Research Excellence Initiative at Erasmus School of Law invites you to a seminar on:

 

“Recent Developments in Militant Democracy”

 

In this seminar, prof. Roel de Lange and dr. Nick Efthymiou will give a presentation of a new report they wrote, discussing ways constitutional systems – in particular those of Germany, France, Spain, the United Kingdom and the United States of America – defend themselves against the rise of anti-democratic organisations. The report was written on request of the Dutch government. It was submitted to the Dutch parliament earlier this year.

Prof. Kim Lane Scheppele, professor of sociology and international affairs at Princeton University, will serve as a discussant.

 

Date: Friday, 2 June 2017, 14:00-15:45.

Venue: Erasmus University Rotterdam, Woudestein Campus

 

To register, please RSVP by sending an email to Marielle Duijndam, duijndam@[remove-this]law.eur.nl

Joint Research Seminar: Challenges to the Rule of Law in Europe

A joint research seminar, organized by Erasmus School of Law, University of Groningen and European Research Centre for Economic and Financial Governance (euro-cefg.eu)

Wednesday, 31 May 2017 from 15:30 h until 17.45 h
Erasmus School of Law, Burgemeester Oudlaan 50, Rotterdam, Sanders Building, Room 0-12

The INFAR Research Excellence Initiative at Erasmus School of Law and the European Research Centre for Economic and Financial Governance (EURO-CEFG) invite you to a joint research seminar on ‘Challenges to the Rule of Law in Europe’. The seminar brings together the contributors and editors of two important new books on the rule of law problem in Europe:

  • Closa/Kochenov (eds.), Reinforcing the Rule of Law Oversight in the European Union
    (Cambridge, 2016)
  • Jakab/Kochenov (eds.), The Enforcement of EU Law and Values (Oxford, 2017)

To attend, please RSVP by sending an email to Marielle Duijndam (secretariaatM5@[removethis]law.eur.nl)

Confirmed speakers:

  • Prof. Dr. Dimitry Kochenov (University of Groningen)
  • Prof. Dr. Fabian Amtenbrink and Dr. René Repasi (Erasmus University Rotterdam)
  • Prof. Dr. Kim Lane Scheppele (Princeton University)
  • Prof. Dr. Laurent Pech (Middlesex University London)
  • Prof. Dr. Leonard Besselink (University of Amsterdam)

Integrating Normative and Functional Approaches to Rules of Law (INFAR) is a research project of Erasmus School of Law, Erasmus School of History, Culture, and Communication, and the Institute of Social Studies. EURO-CEFG is a joint research initiative initiated by researchers from the Leiden University, Delft University of Technology and Erasmus University Rotterdam conducting interdisciplinary reasearch around the theme of economic and financial governance in the EU.

SEMINAR: The Sustainable Development Goals and Human Rights: Synergies or Tensions?

The International Institute of Social Studies and Erasmus School of Law, in collaboration with the Economic, Social and Cultural Rights Working Group of the School of Human Rights Research invite you to attend a seminar on:

The Sustainable Development Goals and Human Rights: Synergies or Tensions?

Date: 29 May, 10.00-13.30 hrs.

Venue: ISS, The Hague

In this seminar, the speakers and participants will investigate in what way human rights protection interacts with promoting Agenda 2030, and more in particular the Sustainable Development Goals (SDGs), and which synergies and tensions can be identified.

More particular questions to be explored include:

  1. if synergies are to be expected, which human rights (aspects) are most likely to contribute to sustainable development, and
  2. how does the interdependence of human rights affect the interplay with the SDGs: is a focus on particular human rights or on inequality advisable or does it require integral human rights protection (and is the latter feasible?)

The seminar is an activity of the Research Excellence Initiative INFAR (Integrating Normative and Functional Approaches to Rule of Law and Human Rights), which is a collaborative project involving Erasmus School of Law (ESL) and the ISS.

In case you wish to attend or if you wish more information, please register through secretariaatM5@law.eur.nl and send us your name, and contact details.

On Friday 26 May all registered participants will receive an email with the latest update and logistical details.