Precisely because of its potential impact, strategic litigation has been met with concerns and criticism from various perspectives. Concerns for domestic legal systems are frequently raised against strategic litigation by critics in the literature. Thus, issues concerning the separation of powers by allegedly misusing courts to go against the executive and legislative are examined together with questions on the democratic legitimacy of the resulting court decisions. The problem of a possible misuse and instrumentalization of individual rights by strategic litigation is also a focus of this chapter. Next, concerns regarding the international legal order and state sovereignty potentially caused by strategic litigation are scrutinized. The backlash against international courts and conventions is a particular focus in this realm together with the argument of human rights overreach. Moreover, further miscellaneous concerns are examined, in particular issues of lawfare, politization, juridification, ineffectiveness, foreign funding, fragmentation as well as the perpetuation of inequalities, imperialist tendencies and double standards. After an analysis and assessment of these issues, a conclusion is drawn.

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Concerns and Issues Regarding Strategic Litigation

  • Vera Strobel

摘要

Precisely because of its potential impact, strategic litigation has been met with concerns and criticism from various perspectives. Concerns for domestic legal systems are frequently raised against strategic litigation by critics in the literature. Thus, issues concerning the separation of powers by allegedly misusing courts to go against the executive and legislative are examined together with questions on the democratic legitimacy of the resulting court decisions. The problem of a possible misuse and instrumentalization of individual rights by strategic litigation is also a focus of this chapter. Next, concerns regarding the international legal order and state sovereignty potentially caused by strategic litigation are scrutinized. The backlash against international courts and conventions is a particular focus in this realm together with the argument of human rights overreach. Moreover, further miscellaneous concerns are examined, in particular issues of lawfare, politization, juridification, ineffectiveness, foreign funding, fragmentation as well as the perpetuation of inequalities, imperialist tendencies and double standards. After an analysis and assessment of these issues, a conclusion is drawn.