Human rights and access to justice
Maurits Barendrecht
TISCO (Tilburg Institute for Interdisciplinary Studies of
Civil Law and Conflict Resolution Systems)
www.uvt.nl/tisco
Microjustice Initiative www.microjustice.org and
www.microjustice.net (Beta wiki best practices)
j.m.barendrecht@uvt.nl
Property Grabbing
• Mostly women after death of husband
• Forced eviction, collection of bank accounts, pensions, etc.
• Backgrounds
– Scarcity of good land/poverty
– Aids
– Men seen as sole property owners
• Source: Township Blues, Legal needs of individuals in Ndirande,
Blantyre, Malawi, Mirjam Vossen en Michel Knapen
Justice needs individuals
•
•
•
Protection against violence and
appropriation
Protection of specific investments in long
term relationships
– Family, work, housing/land use,
business
– In transitions
Redress for complaints about quality
– Goods, services, government
services
Source: survey of legal needs studies,
see Barendrecht, Kamminga &
Verdonshot 2008
Basic human
rights,
property rights
Women rights,
labor rights,
socio-economic
rights
Access to justice
•
Shopping for justice:
– Friends, relatives, uncles (ankhoswe), chief, police, lawyers, courts
• Sometimes successful, often not, or unfair outcomes
• For the poor: little/no help from formal system (police, courts, lawyers)
Source: Legal needs studies all over the world
Bottom up access to justice =
1. Understanding this process
2. Designing ways to improve it
Barendrecht, Understanding the Market for Justice, 2009, see
www.ssrn.com
Facilitadores Judiciales Rurales
Bottom up realization of human rights
• Best practices
– Example: Growing justice in rural communities in
Latin America: Facilitadores Rurales Judiciales
• Informed by good theories of access to justice
– Legal empowerment and Microjustice
• How to evaluate the level of access and measure
progress (measuring costs of access to justice,
quality of procedures and quality of outcomes)?
Best practices Facilitadores Judiciales …
• Invitation to mediate
• Discussing possible consequences of behavior in domestic
violence cases
• Implementing equal treatment in every day life
• Making judges visible in community
• One page written settlement in book facilitator
… informed by good theory?
Access = law of procedure + lawyers + courts + police?
Dispute system design
Negotiation theory
Conflict theory
Legal procedure
Economics of settlements
Bargaining theory
Socio-legal research
5 step model of system
Barendrecht, M. (2008). In Search of Microjustice: Five Basic
Elements of a Dispute System. SSRN.
Access to Justice
Task
Description
Basic theoretical approach
1. Meet
Centralized forum for
information processing in
which both parties
participate
Communication and
negotiation
Make costs and benefits of participation
for defendant higher than costs and
benefits of fighting, appropriation, or
avoiding
Support integrative negotiation
(interest based)
3. Share
Distributing value fairly
Supply information about fair shares
(sharing rules, objective criteria)
4. Decide
Decision making procedure
Make option of a neutral decision
available (at low cost)
5. Stabilize
Transparency and
compliance
Supply tools to make arrangements
explicit;
Make costs and benefits of compliance
higher than those of non-compliance
2. Talk
Capabilities to go through these steps
“The economic lives of the poor”, living on less than 2$ person/day
(E.Duflo c.s. 2007):
• 7-8 members family; 3 adults
• 2/3 income spent on food
• if they have land, around 1 hectare, uncertain status
• unhealthy
• 50% children goes to school, but bad service
• several sources of income: small business, day labor, migrant
labor, farming
• social network is insurance
• saving possible, but very hard
• income fluctuates
UN Commission for Legal Empowerment of the
Poor
• World leaders co-chaired by Madeleine Albright and Hernando
de Soto
• Highligts Report 2008
– Creation of wealth and development rest upon legal
protections, norms, and contracts governing business,
labour, tradable assets, and associations.
– 4 Billion excluded from formal legal system
Microjustice Challenge
•
Best practices that make justice affordable and sustainable
(around 100 times cheaper)
• For each of 5 necessary and sufficient steps
1. Meet: create reasons to participate in cooperative process
2. Talk: provide interest based (problem-solving) negotiations
3. Share: provide criteria for solving distributive issues
4. Decide: provide the option of a (low cost) neutral decision
5. Stabilize: provide means to make future arrangements
explicit (registrations, contracts) and enforcement
(Ury, Brett and Goldberg 1993; Bordone 2008; Bingham 2008;
Barendrecht 2009)
Strategy Microjustice
Look in the following directions:
• Self help > negotiation techniques?
• Low cost (paid) services by local labor > paralegals > ??
• Neutrality > informal justice systems?
• Providing information > education about rights?
• Using internet and mobile phones > ??
• Economies of scale across borders > ??
– Problems are similar; solutions may be different
• Focus on 3-5 most urgent justice needs > HR??
• Experimenting and learning
– ILA Microjustice4all Boliva Peru (identity documents/
– www.microjustice.org and www.microjustice.net (Beta of wiki)
Microjustice: Systematic Innovation Process
Combining best practices and interdisciplinary research:
1. Meet: create reasons to participate in cooperative process
• Invitation to mediate
2. Talk: provide interest based (problem-solving) negotiations
• Discussing possible consequences of behavior in domestic
violence cases
3. Share: provide criteria for solving distributive issues
• Implementing equal treatment in every day life
4. Decide: provide the option of a neutral decision
• Making judges visible in community
5. Stabilize: provide means to make future arrangements explicit
(registrations, contracts) and enforcement
• One page written settlement in book facilitator
Current research projects and deliverables
• Microjustice Facilitator Toolbox (City of the Hague and Ministry
Economic Affairs)
– Best practices > tools neutral justice facilitator; tested in 6
countries/locations (probably Oxfam Novib legal aid projects)
• Microjustice Sharing Rules (under consideration by same
sponsors)
– Process for bottom up codification of fair solutions to justice
problems of everyday life; ‘going rates of justice’ transparent
on website (10 urgent justice needs in 6 countries)
• Measuring Access2Justice (Hiil; EU subsidy)
– Measuring instrument for costs (3 dimensions), procedural
justice (3 dimensions), outcome justice (4 dimensions)
Employment Litigation Bulgaria
Monetary costs
5
4.78
Functionality Outcome
Opportunity costs
4
4.70
3.14
3
Transparency Outcome
2.98
Intangible costs
1.92
2
1
2.50
2.04
Quality of the Outcome
2.85
3.45
Restorative Justice
2.72
Informational Justice
Procedural Justice
Interpersonal Justice
ID Documents Bolivia
Monetary
5
5
4.69
4
Informational
4.37
Opportunity
3
2.58
2.75
3
1
Interpersonal
3.09
Administrative
Review NL
Monetary costs
4.78
4
3
2.04
4.70
Opportunity
costs
2
1
2.72
1.92
Intangible costs
2.50
2.85
Interpersonal
Justice
2.77
Interpersonal 3.75
Justice
Procedural
Justice
Quality of
Outcome
3.89
Intangible costs
Informational
Justice
3.22
Intangible
5
4.51
Opportunity
costs
2
2.15
2.38
4.50
4
Quality of
Outcome
2
1
Informational
Justice
Consumer
Disputes NL
Monetary costs
Procedural
Justice
Procedural
Justice
Employment Litigation Bulgaria
Monetary costs
5
4.78
Functionality
Opportunity costs
Outcome
4
4.70
3.14
3
Transparency
2.98
Intangible costs
1.92
2
Outcome
Quality of the
Outcome
2.04
1
2.50
2.85
Restorative 3.45
Justice
Procedural Justice
2.72 Interpersonal
Justice
Informational
Justice
17
Challenges for research
•
•
•
•
•
•
•
•
What are most urgent justice needs? What explains them? Do they
match HR and underlying normative assumptions?
Which capabilities do people have to satisfy needs/implement HR?
What are best practices for satisfying specific justice needs/HR?
– Domestic violence, property grabbing, child support
Test the five step model empirically
To what extent can legal services/informal processes satisfy justice
needs/implement HR?
Where does “the market for justice” fail (transaction costs analysis)?
Which justice policies support/hinder bottom up justice?
How to measure progress in satisfying justice needs/HR?