Rights and Courts in Pursuit of Social Change: Legal Mobilisation in the Multi-Level European System (Oñati International Series in Law and Society)

Over the past few decades, European countries have witnessed a proliferation of legal norms concerning marginalised individuals and minorities who increasingly invoke them in front of courts to assert their rights and claim protection. The present volume explores the relationship between law, rights and social mobilisation in Europe. It specifically enquires into the extent and ways in which legal processes and entitlements are mobilised by less privileged social actors to advance their rights claims and pursue social change. Most distinctly, it explores such processes in the context of the multi-level European system, characterised by the existence of multiple legal and judicial arenas at the national, subnational and supranational/transnational level. In such a complex system of law and governance in Europe, concepts like legal opportunity structures, as well as the factors shaping them need to be reconceptualised. How does the multi-level European context distinctly shape the nature and salience of rights, as well as their mobilisation by individuals and minority actors? Cover 1 Half-title 3 Title 5 Copyright 6 Acknowledgments 7 Contents 9 List of Contributors 11 1. Law and Rights’ Claiming on behalf of Minorities in the Multi-level European System 13 I. RIGHTS, COURTS AND JUDICIAL REVIEW: THE EUROPEAN CONTEXT 18 II. MOBILISING LAW AND RIGHTS IN THE MULTI-LEVEL EUROPEAN SYSTEM: ANALYTICAL AND SCHOLARLY PERSPECTIVES 27 III. PURPOSE AND OVERVIEW OF THE VOLUME 32 Part I: Law, Rights and the Politics of Minorities in National Context 37 2. Linguistic Minorities in Western Europe: Expansion of Rights Without (Much) Litigation? 39 I. THE OVERALL EVOLUTION AT THE NATIONAL LEVEL: INCREASED LEGAL RECOGNITION AND PROTECTION OF LINGUISTIC DIVERSITY 42 II. THE EUROPEANISATION OF LANGUAGE RIGHTS: THE COUNCIL OF EUROPE CONVENTIONS 45 III. ITALY 49 IV. FRANCE 52 V. BELGIUM 54 VI. UNITED KINGDOM 58 VII. SWITZERLAND 60 VIII. CONCLUSION: NATIONAL VARIATIONS ON A COMMON THEME OF ‘RIGHTS WITHOUT LITIGATION’ 63 3. Legal Mobilisation at the Subnational Level: The Case of Language Rights in the Spanish Autonomous Community of Navarre 65 I. THE LEGAL FRAMEWORK 67 A. The Constitutional Level: the Spanish Linguistic Model 67 B. The Subnational Level: From Official Status to the Linguistic Zoning Approach 69 C. The International Framework: the European Charter for Regional or Minority Languages 73 II. MINORITY LANGUAGE LEGAL MOBILISATION IN NAVARRE: AN OVERVIEW 75 A. Targets and Grievances 76 B. Litigation 79 C. Europeanisation of Language Rights 81 III. THE IMPACT OF MINORITY LANGUAGE LEGAL MOBILISATION IN NAVARRE 83 A. Legal Mobilisation and Courts 83 B. Legal Mobilisation and Politics 85 IV. CONCLUSION 89 4. Rights on the Left? Social Movements, Law and Lawyers after 1968 in France 91 I. THE POLITICISATION OF LAW IN THE LATE 1960S 94 II. INNOVATIVE PRACTICES AND LEGAL MOBILISATION 97 A. New Forms of Collective Action Among Lawyers 97 B. Unions in the Legal Field 98 C. Transformation of Lawyering 102 III. HELPING IMMIGRANTS WITH LAW: THE CASE OF THE GISTI 105 A. Birth of the GISTI 106 B. Between Political Radicalism and Legal Technique: the Use of Law 108 C. The Use of Litigation: Between Legal Struggle and Recognition of Legal Competence 110 IV. CONCLUSION 113 Part II: European Courts as Arenas for Legal Mobilisation 115 5. A Tool-box for Legal and Political Mobilisation in European Equality Law 117 I. ENFORCEMENT OF EU EQUALITY LAW BY PRIVATE PARTIES 120 A. Private Parties v EU Institutions 120 B. Private Parties v Member States 122 C. Private Parties v Private Parties 124 II. THE ENFORCEMENT OF EU EQUALITY LAW BY INSTITUTIONS 127 A. Institutions v EU Institutions 127 B. Institutions v Member States 128 III. THE ENFORCEMENT OF EU EQUALITY LAW BY ‘COLLECTIVE ACTORS’ 131 A. Collective Actors v EU Institutions 132 B. Collective Actors v Member States or Private Parties 134 C. Equality Bodies and the Court of Justice of the European Union: the Belov Case 138 IV. CONCLUSION 139 6. European Courts and the Rights of Migrants and Asylum Seekers in Greece 141 I. EVOLVING PATTERNS OF LITIGATION IN THE ECTHR 145 II. THE MSS CASE AND THE CHALLENGE TO THE DUBLIN REGULATION 149 III. THE MOBILISATION OF EU FUNDAMENTAL RIGHTS 156 IV. CONCLUSION 163 Part III: The Role of NGOs and Transnational Human Rights Networks 167 7. From Belfast to Diyarbakir and Grozny via Strasbourg: Transnational Legal Mobilisation Against State Violations in Contexts of Armed Conflict 169 I. A SOCIO-LEGAL PERSPECTIVE ON THE CONSTRUCTION OF EUROPEAN HUMAN RIGHTS LAW 174 II. ALLEGED VIOLATIONS UNDER A STATE OF EMERGENCY IN NORTHERN IRELAND, 1970S–1980S 176 III. TRANSNATIONALISING THE STRUGGLE: HUMAN RIGHTS LAW JOINS FORCES WITH ACTIVISM 180 IV. CONCLUSION 189 8. Activists and Lawyers in the ECtHR: The Struggle for Gay Rights 193 I. THE ECHR AND RIGHTS MOBILISATION 194 II. MOBILISING FOR GAY RIGHTS BEFORE THE ECTHR 197 A. Privacy Rights: Out of the Closet and into the Court 198 B. Professionalising Dissent: Stonewall and the ECtHR 200 C. ILGA-Europe: A Transnational Network is Established 203 III. NGOS AS LEGAL AND SOCIAL CHANGE ACTORS 205 A. A Lack of Democratic Accountability? 206 B. A Lack of Accountability to Applicants? 208 C. The Ineffectiveness of NGO Litigation? 209 IV. CONCLUDING OBSERVATIONS 211 9. Law and Rights as Opportunity and Promise for Minorities in Europe? Concluding Observations and Research Agendas 217 I. LEGAL OPPORTUNITIES AND JUDICIAL ARENAS BETWEEN THE NATIONAL AND EUROPEAN LEVELS 218 II. PURSUING RIGHTS MOBILISATION: DO ISSUES AND NATURE OF MINORITY GROUP MATTER? 220 III. CAUSE LAWYERS, NGOS AND TRANSNATIONAL NETWORKS 225 IV. DO LEGAL MOBILISATION AND COURT DECISIONS PROMOTE SOCIAL REFORM AND JUSTICE? 227 Bibliography 231 Index 249 This book explores the relationship between law, rights and social mobilisation in Europe, and examines the ways in which legal processes are mobilised by less privileged social actors to advance their rights claims and pursue social change.