Counter-Rejoinder: Justice vs. Justiciability?: Normative Neutrality and Technical Precision, the Role of the Lawyer in Supranational Social Rights Litigation
Tara J. Melish
SUNY Buffalo Law School
New York University Journal of International Law and Politics (JILP), Vol. 39, No. 2, 2006
An important debate is currently underway in the inter-American human rights system involving the proper approach litigators, adjudicators, and advocates should take to supranational litigation of economic, social and cultural rights. Centered on questions of jurisdiction and the proper characterization and limits of justiciability, its resolution has tremendous implications for the tools available to on-the-ground advocates, their real-world effectiveness and sustainability in adjudicatory and advocacy contexts alike, and the rationalization of the system's developing jurisprudence over the long-term.
This article book-ends a trilogy of pieces appearing in the NYU Journal of International Law and Politics by two sets of authors, each taking largely opposing views on the issue. One, represented in Less as More and Rejoinder: Justice Before Justiciability, advocates a norm-based approach to social rights litigation - with civil and political rights deemed appropriate for litigation, and social rights deemed inappropriate, even when they represent the same underlying facts and claims. The other, represented in Rethinking the 'Less as More' Thesis and this counter-rejoinder, advocates a claim-based approach that is ambivalent to norm-based distinctions in the abstract. Rather, it looks to the long-term sustainability of the system's case-based jurisprudence by seeking to promote rationality and effectiveness in the adjudication of all rights, through proper duty-based adjudicatory standards and attention to the limits of system-specific justiciability doctrine.
After putting the debate in larger context, and responding to Rejoinder's principal arguments, Counterrejoinder argues that the safest and most effective course for rights advocates in the Americas today is not to artificially limit litigation to one certain set of jurisdictionally-proper norms. This guarantees neither justice nor justiciability. Rather, it is precisely to privilege normative neutrality and technical precision in the framing of all human rights litigation, through proper attention to claim-based justiciability and a genuine embrace of the wishes, visions, priorities, and social justice agendas of the communities with which we work, whatever these may be. Indeed, the role of lawyers should not be in limiting litigation options a priori, but in explaining, in normatively-neutral and technically-precise ways, the full set of tools available to local groups and allowing them to decide their preferred strategic course based on their own self-assessed needs, priorities, and visions for their struggle.
Number of Pages in PDF File: 28
Keywords: litigation, social rights, inter-american system, human rights, justiciability
Date posted: June 28, 2007