Human rights and access to justice

Maurits BarendrechtTISCO (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

Women rights, labor rights, socio-

economic rights

Basic human rights,

property 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

Access = law of procedure + lawyers + courts + police?

Dispute system design

Negotiation theory

Conflict theory

Legal procedure

Economics of settlements

Bargaining theory

Socio-legal research

Barendrecht, M. (2008). In Search of Microjustice: Five Basic Elements of a Dispute System. SSRN.

… informed by good theory?

5 step model of system

Access to JusticeTask Description Basic theoretical approach

1. Meet Centralized forum for information processing in which both parties participate

Make costs and benefits of participation for defendant higher than costs and benefits of fighting, appropriation, or avoiding

2. Talk Communication and negotiation

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

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 mediate2. 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)

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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?