Netherlands International Law Review’s Special Issue on Public Interest Litigation

The latest issue of the Netherlands International Law Review (issue 3 of 2024) features five articles related to public interest litigation, preceded by an introductory paper by Xandra Kramer. The articles address different aspects of public interest litigation either from a primarily public law or private law perspective.

Xandra Kramer, Public Interest Litigation at the Intersection of Public Law and Private Enforcement

Public interest litigation has played an important role in enforcing rights involving a wide range of public or collective interests over the past decades. In recent years, particularly climate litigation and related social rights have gained substantial attention. This article sketches the background of public interest litigation, addresses the different procedural frameworks through which public interests are litigated, including public international, administrative and private law mechanism, and introduces the topic-specific contributions to this special issue. It concludes that while public interest litigation faces considerable legal, socio-political and financial challenges it fulfils an important role in legal mobilisation with the aim to pursue the enforcement of a multitude of collective interests.

María Carlota Ucín, In the Name of Human Rights: Sketching a Definition of Public Interest Litigation

Public interest litigation is currently receiving considerable attention as an emerging phenomenon in Europe. However, the movement is neither novel nor homogeneous. It is not novel, because over the last six decades many actors have been attempting to provoke social change through the courts in several jurisdictions. And it is not homogeneous, because as soon as the literature is reviewed, several dissimilar names that refer to the same body of cases can be found. Moreover, some cases are in a grey area that raises questions about their inclusion in the definition of public interest. Owing to this lack of clarity, it becomes pertinent to provide a clear concept of public interest litigation geared to inform not only academic discussions and research but also the future design of adequate judicial policies. The aim of this article therefore is to state a definition that isolates the main elements of this litigation experience, and also to offer preliminary guidelines for future regulations that can address the special needs of these cases within court procedures. To achieve this goal, the article will adopt a comparative perspective and explore the elements that appear to be constant in the different jurisdictions: namely, the human rights framework, which is applied to these claims, and the altruistic element, by which civil society actors such as NGOs or public authorities defend ‘other people’s rights’ while facilitating democratic participation geared towards promoting a certain degree of social change. As will be shown throughout the article, these elements allow us to distinguish these collective claims from others that are oriented towards a retributive or strategic rationale.

Gizem Halis Kasap, Defending Privacy Across Borders: Public Interest Litigation in the Fight Against Data Exploitation

This paper examines the pivotal role of public interest litigation in tackling the escalating issue of cross-border data exploitation. In an era where data flows freely across jurisdictions, multinational corporations often exploit legal loopholes to bypass accountability, posing serious risks to individual privacy and data security. Traditional legal avenues, while addressing personal grievances, often fall short of deterring large-scale abuses and do little to address the collective societal impacts that arise from widespread data misuse. Public interest litigation, however, enables individuals, civil society organizations, and advocacy groups to push for more extensive, structural changes that foster greater corporate accountability and compliance on a global scale. Through a thorough review of legal frameworks, real-world case studies, and the intricacies of international jurisdiction, this paper argues that public interest litigation is essential—not just as a complement to private enforcement but as a transformative tool for enforcing data protection laws and protecting collective digital rights. This analysis highlights the capacity of public interest litigation to prompt judicial activism and adapt to global digital challenges, marking it as a powerful pathway toward equitable data privacy protection.

Ignacio Vásquez Torreblanca, Pablo Neupert Kaplan, Public Interest Climate Litigation in Latin America Leading the Way in Addressing Climate Change? The New Focus on Ecocentric and Intergenerational Dimensions

In recent years, strategic litigation has established itself as a fundamental instrument in the defence and promotion of environmental rights in international law. Within this context, this article aims to characterize climate litigation in the Global South, specifically in Latin America. To achieve this, it analyses a series of cases illustrating innovative legal responses in Latin America being directed towards enhanced environmental and human rights protection in the region. The first part explores the phenomenon of climate litigation and its reception in Latin America, distinguishing between strategic litigation and public interest litigation. It concludes that, with some nuances, climate litigation in Latin America falls under the category of environmental public interest litigation. The second part analyses key judicial decisions, which have established significant precedents in terms of their transnational effects, allowing the consolidation of concepts such as intergenerational justice and ecocentric dimension in regional litigation.

Vera Strobel, Litigating and Enforcing International Humanitarian Law before German Courts: Public Interest Litigation via Individual Rights as a Vehicle for Access to Justice in Situations of Armed Conflict

Amidst global armed conflicts, the importance of International Humanitarian Law (IHL) is notably high. Unlike human rights, IHL does not grant individuals direct rights, but modifies individual rights, like the right to life, during armed conflict. Key principles of IHL include distinction and proportionality to limit civilian casualties. However, IHL lacks effective enforcement mechanisms. Public interest litigation offers a potential avenue for enforcing IHL through individual rights-based approaches with the potential to impact domestic and international law. Recent public interest cases range from climate change, digital rights, and corporate responsibility to refugee and human rights cases, often incorporating international law arguments. Resorting to (international) criminal law in the case of war crimes is an established public interest approach. Yet, recently, public interest litigation alleging violations of IHL before administrative, constitutional, and human rights courts has established itself as a novel approach. Scrutinizing such landmark decisions, particularly those involving IHL, provides insights into the approaches and potentials of public interest litigation. This contribution analyzes examples of public interest litigation seeking compliance with IHL in arms export, drone strike and air strike cases to illustrate the procedural avenues, legal arguments, and socio-political implications. The analysis offers a critical evaluation of the potential and challenges of public interest litigation in shaping domestic and international law and practice, especially concerning IHL.

Charlotte de Meeûs, Investing in Responsible Litigation: Third-Party Funding for Public Interest Litigation

While public interest litigation (‘PIL’) is on the rise, it continues to face significant funding challenges. In various sectors, financial barriers to accessing justice such as high litigation costs and a decline in public legal aid have gradually led to the development of private litigation funding mechanisms, such as third-party litigation funding (‘TPLF’). The development of TPLF primarily took place in the context of high-value commercial litigation with funders showing little interest in PIL. However, several recent PIL cases appear to have been backed by TPLF, suggesting that the TPLF market might be evolving in a new direction. Against this background, this paper explores the role that TPLF can play in enhancing access to justice in PIL. It attempts to highlight some of the obstacles that third-party litigation funders may encounter when financing PIL and focuses on two specific hurdles. First, the type of relief sought in PIL, which does not necessarily entail substantial pecuniary damages, does not align with the focus of third-party litigation funders on high-value litigation. Second, the difficulty in determining the law that is applicable to TPLF agreements may arguably affect the role of TPLF in PIL. It is indeed currently not clear whether EU courts will assess TPLF based on the law of the forum or based on the law contractually designated by the parties in the TPLF agreement. The last part of this paper explores some avenues for future research aimed at addressing these obstacles and encouraging the use of TPLF in PIL.