Episode 4 - Nani Jansen Reventlow on Justice Gaps and Possible Solutions

Nani Jansen Reventlow - Part 2

Intro

[00:00:00] Dr Miranda Melcher: Hello and welcome to Just Access. Too many individuals and groups around the world today are denied access to justice. This access is vital for making human rights effective and securing human dignity, especially for those in situations of vulnerability, including women, children, minorities, migrants, and detainees.

[00:00:25] In this podcast, we speak to academics, international legal experts, and human rights advocates about hot topics in international law, aiming to expose and highlight situations of structural injustice and explore possible solutions to these issues, aiming to protect and enforce the rights contained in international treaties.

[00:00:45] My name is Dr. Miranda Melcher, and I'm a Senior Legal Fellow at Just Access. In this episode, I continue my conversation with Nani Jansen Reventlow, who is an award-winning human rights lawyer specializing in strategic litigation at the [00:01:00] intersection of human rights, social justice, and technology. Our discussion in this episode builds on our conversation in the previous episode, where we discussed Nani's background and her current work at systemic justice. In this episode, we discuss international law and rights more broadly, both in terms of problems and possible ways forward.

 Interview - Part 2

[00:01:20] Dr Miranda Melcher: I suppose I've got a kind of nerdy technical legal question you don't mind in that vein, given, as you mentioned, the number of actors involved. And of course we, if we're talking about digital rights, it's hard to avoid the specter of the big tech companies.
[00:01:46] And yet we are using this language of digital rights. How do we think about that paradigm of rights when so much of this is controlled by corporations rather than states?

[00:02:00] Nani Jansen Reventlow: Yeah, that's a good question. And at the same time, I'm always a bit like we figured that out for a bunch of other systems as well where we have really big corporate actors. I'm not saying we figured it out successfully necessarily, if you think of the financial systems where it's also to a large extent, private actors We're doing similar things right now, also in the climate sphere, right?

[00:02:19] This is all work that's not perfect yet but it's not something that is impossible. And I think actually, in the context of technology in particular, but actually that might apply to some of the other things as well, I often feel that states are underplaying or downplaying the role that they could play in making sure that human rights are protected because it's rather convenient for them to have all of these gray areas.

[00:02:44] And I think that as long as you have a situation where outsourcing tech development that's helpful for state surveillance, as long as you can say oh we just bought it off the shelf, we don't really know how it works, there's, under the idea that there's plausible [00:03:00] deniability which is a fiction, obviously.

[00:03:01] It's pretty convenient. And I think that there's a lot to be done, actually, in making sure that the systems that we do have, that includes the human rights system, but it also includes the regular court systems that we have, the national court systems, and actually pushing states to, to do their bit there, but already address quite a lot of the issues that we're seeing at the moment.

[00:03:24] But I feel that there's this some really like willful ignorance and reluctance because it creates a playing field that can be exploited to the advantage of states as in when they like to.
 
[00:03:36] Dr Miranda Melcher: Yeah, there's a lot of laws on the books that don't get enforced, but they're there and they could be enforced perhaps, so useful to point out. I'd love to ask about, obviously, in some senses, the kind of category of your work, strategic litigation. Perhaps for those less familiar with the term, how do you determine what makes litigation strategic?

[00:03:57] When, what are the factors you consider to go I [00:04:00] could bring a case against this, but is it going to be strategic? How do you decide?

[00:04:05] Nani Jansen Reventlow: That's a really good question. And sometimes you don't really know that in advance, right? Because it could very well be that someone just decides to take on a case that concerns them, but ends up being a much bigger thing. We kind of like work with the idea that a case is strategic when it tries to bring about bigger change and that could be change in law, could be change in policy, could be change in practice, and that the impact of the case doesn't only concern the person who is bringing it, person or persons or entity that is bringing it, and that the case work, so the work that you do in the courtroom, the legal filing, et cetera, is connected to other efforts. So that could be policy work, it could be campaigning work, it could be advocacy work et cetera. To really make sure that you bring about the change that is being pursued.

[00:04:57] That also means that the change [00:05:00] could be brought about by something other than the legal filing, for example. It could very well be that you bring a court case to raise the public profile of an issue to spur public debate to basically nudge lawmakers or policy makers to act. So the change might then happen through a different avenue than the actual case itself.

[00:05:21] But it's about the situation where you have this constellation of different tactics, different strategies come together in order to bring about bigger structural change. 

[00:05:30] Dr Miranda Melcher: Great answer especially the idea that you may not know it in advance because sometimes you do and sometimes you don't. Thinking about kind of the expanse that your organization, that you work over the many different problems and the many things raised by the communities you work with, are there any sort of access to justice gaps, there are many in the system, but are there any kind of in particular that if you could wave a magic wand and go, I'm going to fix that one that maybe you would put at the top of the list?[00:06:00] 

[00:06:00] Nani Jansen Reventlow: The one that is in line with the work that we're trying to do anyway is one in which lawyers themselves start playing a very different role in litigation processes. And there's a bunch of really big structural things. And, There's a lack of resources. There's just generally like the power dynamics within the systems that we have that are supposed to be administering justice. But I do think that lawyers actually have a really big role to play in all of this as well. 

[00:06:27] And I think, having been trained as one and having gone to law school and having trained at a law firm, you're basically constantly yeah, initiated into this narrative that you have very specific skills, you have very specific knowledge and in that sense lawyers almost have a position of superiority, of gatekeeping and not one in which they actually act in service or in deference to the communities that they want to work with or that they say they want to work with.

[00:06:54] And I feel there that just taking a very different approach to that and yeah, maybe letting go a [00:07:00] bit of that big lawyer ego, letting go of the sometimes almost obsessive fear of losing cases and setting bad precedent. There's different ways of being about change.

[00:07:09] We're just talking about that. You can lose a case and still win for the cause. And actually understanding that it can be your role sometimes to bring a case that might technically not be the legal victory of the century, but that could actually lead to significant change for the community partners that you work with and that should be, that you should feel okay with that.

[00:07:30] It's not for everyone. It's fine. And it's also fine, we also need contract lawyers and and corporate lawyers and all the things we don't all have to do this kind of work, but I do feel that If we can bring about this mind shift with a good group of lawyers who are interested in doing public interest work, who are interested in doing human rights work, social justice work, et cetera that we really could start shifting the balance.

[00:07:53] Because right now what we heard anyway from a lot of people in the conversation we've been having with them [00:08:00] is that they actually also felt that they were being almost disenfranchised in the conversations that they had with lawyers, even when they were interested in pursuing litigation, that their suggested solutions weren't really taken seriously, that their bigger vision for change got lost when it got translated into a legal filing.

[00:08:17] Those are all really fundamental things and that kind of undermines the confidence that people have. And actually considering a legal route as one of the routes that they can consider taking when they're trying to change something. 

[00:08:30] Dr Miranda Melcher: That would be fabulous to see. Thank you for highlighting it. In a similar vein of asking you to pick amongst many things and choose one, though instead of the biggest problem one thing that I find fascinating talking to people all around this space of trying to improve human rights access to justice, is that some of these solutions, we don't know what they are yet.

[00:08:54] Some of the solutions, we know what they are, but how to get there, there's a bunch of things we have to work out. [00:09:00] And sometimes there are aspects of the solution where we know what the solution is, but for whatever reason, it doesn't actually seem to happen. And we often call these sort of the low hanging fruit solutions, right?

[00:09:13] The if you as the person who's an expert in this space working on it, were actually in charge, you could actually go on day one: you know what? This is what we're gonna do and this would make an impact. Are there any things like that in your space?

[00:09:29] Nani Jansen Reventlow: Wow! There are plenty of them. But then I'm going to answer the question a little bit more broadly than just focus on strategic litigation, because I think that one of the fundamental things that need to be reversed is the backtracking on legal aid across the region. It just yeah, it's eviscerating people's possibility to really have their rights protected and have their rights enforced.

[00:09:54] And yeah, it just like amplifies this complete [00:10:00] unbalance that we're seeing at the moment between people who have the resources and the power to use the courts for their own means and everyone else, right? So I think that is one thing that just big fundamental thing that actually you know, it never worked perfectly, but at least there were systems place.

[00:10:20] Dr Miranda Melcher: There was a system. There was system. It did help a lot of people. The system now has no money. One straightforward solution could be put money back into it.

[00:10:29] Nani Jansen Reventlow: Yeah, exactly. So reinvigorate those support systems and the other thing is basically making sure that for public interest cases, so for strategic cases the risk for like punitive cost awards in case such efforts are lost, are capped. Because that needs to be limited. Right now, it's actually quite ridiculous that you have to factor in the fact that you might end up in a really dire financial position because you're [00:11:00] actually trying to bring about something that would serve the public good.

[00:11:03] And you could lose cases for all sorts of reasons, right? That doesn't have to it doesn't have to necessarily lead to incentivizing people to just frivolously take cases and so on. There's many different ways in which you can put in the necessary checks and balances, but these cost awards can be really punitive and they can deter people from actually undertaking work that could be transformative for huge groups of people, beneficial to society as a whole, and just because there's this, Damocles hanging above your head.

[00:11:34] So those would be two bits of low hanging fruit.

[00:11:39] Dr Miranda Melcher: Yeah, no, those are great ones. Yeah, those are great ones. Thank you. I think from that answer, there's probably going to be a number of listeners that are frantically now looking those two issues up in particular to learn more. But as a final question, we know we have a lot of students or newcomers to this field of human rights and justice work.

[00:11:59] Is there anything you'd [00:12:00] particularly recommend to them in terms of how they can get involved, whether in your work specifically or in this area more broadly?

[00:12:08] Nani Jansen Reventlow: So with us specifically we, we're always looking for student researchers. We have we have a roster open where people can just apply and we do quarterly recruitment there. And that means that people will just be asked to support with sometimes factual, sometimes legal research on the issues that we work on.

[00:12:26] I Think generally what I would recommend is something that I also did when I was a student and try to get involved with like your local chapter of, so I for example joined a working group within the the Dutch branch of the International Commission of Jurists and that way there are many other kind of Initiatives that you could join locally.

[00:12:45] I think seeing if you could volunteer or do some work with legal aid bureaus legal aid centers, there's quite often many wonderful initiatives that are in need of support and clever people to actually help deal with the 

[00:13:00] caseload. Quite often also focused on specific issues.

[00:13:02] So there's one specifically for people in a migration context for women, et cetera, so you could even pick and choose topics that you're really interested in. That would be a recommendation. And generally yeah, just trying to keep an eye on what's happening around you, if you're interested in litigation obviously subscribe to a good blog or whatever, where you can keep yourself up to date on what's happening within the European Court of Human Rights if you're based in Europe, Court of Justice of the European Union as well, because there's interesting stuff happening there too.

[00:13:35] You can't follow all the courts all over the world or over the country, but yeah, make sure that you're tapped into a couple of like really good news outlets. And another thing I really recommend is also just to try and write a little bit about it, because actually I have always found that just trying to formulate a position or an analysis, et cetera, of current issues and placing them in context of what you already know [00:14:00] is a really good way to like further develop your thinking on these topics and that will serve you really well no matter where you go with it.

[00:14:09] Dr Miranda Melcher: Thank you so much, Nani, for speaking with us! Stay tuned for future Just Access interviews, and do get in touch with us if you have any suggestions for people or topics we should cover, either on the podcast or on the blog.