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) [email protected]
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) - PowerPoint PPT Presentation
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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)
• 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
• 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