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Access to Justice: Promoting the Legal System as a Human Right

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Lima, V., Gomez, M., 2019. Access to Justice: Promoting the Legal System as a Human Right, in: Peace, Justice and Strong Institutions. Springer International Publishing, Cham, pp. 1–10.
A
Access to Justice: Promoting
the Legal System as a Human
Right
Valesca Lima
1,2
and Miriam Gomez
2
1
Department of Sociology, Maynooth University,
Maynooth, Ireland
2
School of Law, University College Dublin,
Dublin, Ireland
Definition
Access to justice is a basic principle of the rule of
law. It is a fundamental right that allows individ-
uals to use legal tools and mechanisms to protect
their rights.
Introduction
Access to justice is a fundamental right that must
be guaranteed in democratic, participatory, and
egalitarian societies. It is the right of all individ-
uals to use the legal tools and mechanisms to
protect their other rights. There is no access to
justice when, for economic, social, or political
reasons, people are discriminated against by law
and justice systems.
In general, access to justice guarantees that
people can go before the courts to demand their
rights be protected, regardless of their economic,
social, political, migratory, racial, or ethnic status
or their religious afliation, gender identity, or
sexual orientation. Access, to be real, must be
broad and free from discrimination. Proper access
to justice allows individuals to protect themselves
from violations of their rights, offering a remedy
to the consequences of tort and holding executive
power accountable.
Access to justice is not easily dened. It is
much more than improving an individuals access
to courts or guaranteeing legal representation, but
it can be dened in terms of ensuring that legal
and judicial outcomes are just and equitable
(UNDP 2004). If the modern state has determined
the prohibition of violence, there must exist the
options of access to an impartial body to resolve
the conicts that people may have. The concept of
access to justice has varied throughout history
according to the prevailing ideas, determined by
the era of development of social rights. Not only
must access to the jurisdiction be postulated but
access must be effective, that is, people must have
a real chance of accessing justice (Lugaro 2003).
As an important element of the rule of
law, acess to justice is avital part of civil, criminal,
and administrative law. It is both a process and a
goal, and it is crucial for individuals seeking to
© Springer Nature Switzerland AG 2020
W. Leal Filho et al. (eds.), Peace, Justice and Strong Institutions, Encyclopedia of the UN Sustainable Development
Goals, https://doi.org/10.1007/978-3-319-71066-2_1-1
benet from other procedural and substantive
rights (FRA 2016). Turning now to the Declara-
tion of the High-Level Meeting on the Rule of
Law, this entry considers the access to justice as a
basic principle of the rule of law.
In this entry, we use human rights-based
approach to access to justice from a human rights
perspective. We describe the legal complexity and
richness of the concept of access to justice, includ-
ing formal and informal justice systems, as well as
to the barriers and types of support to promote
access to justice.
The Declaration of the High-Level Meeting on
the Rule of Law and Access to Justice as a
Human Right
Without access to justice, people cannot make
their voices heard, exercise their rights, cope
with discrimination or hold decision-makers
accountable,states in paragraphs 14 and 15 of
the Resolution adopted by the General Assembly
of the 30 November 2012. The Declaration of
the High-Level Meeting on the Rule of Law
emphasized the right to equal access to justice for
all, including legal assistance to vulnerable groups.
It reafrmed the commitment of member states to
take all necessary measures to provide fair, trans-
parent, effective, nondiscriminatory, and account-
able services that promote access to justice. The
activities of the United Nations in support of the
initiatives of member states ensure access to justice
is a basic component of the work in the area of the
rule of law (Elgebeily 2017).
The administration of justice must be impartial
and nondiscriminatory. In the Declaration of
the High-Level Meeting on the Rule of Law,
member states emphasized that the independence
of the judicial system, together with its impartial-
ity and integrity, is an essential prerequisite
for supporting the rule of law and ensuring that
justice is administered without discrimination
(paragraph 13). Following the release of the dec-
laration, in December 2012, the General Assem-
bly unanimously adopted the United Nations
Principles and Guidelines on Access to Legal
Aid in Criminal Justice Systems Document (res-
olution 67/187), the rst international instrument
about the right to legal assistance in criminal
justice systems providing a practical guidance
on how to ensure access to effective legal aid
services in criminal matters.
Internationally, the UN Human Rights
Committee has pioneered the treaty bodies of
the United Nations in interpreting the concepts
of access to justice. Access to justice is also
protected in UN instruments such as the 1998
Aarhus Convention on Access to Information,
Public Participation in Decision-Making and
Access to Justice in Environmental Matters, and
the Convention on the Rights of Persons with
Disabilities in 2006 and other convent, as, for
example, the Convention on the Elimination of
All Forms of Discrimination against Women
(CEDAW) adopted in 1979 by the UN General
Assembly.
In European human rights law, the notion of
access to justice is incorporated into Article 6 and
13 of the European Convention on Human
Rights (ECHR) and Article 47 of the Charter of
Fundamental Rights of the EU, which guarantee
the right to a fair trial and to an effective remedy,
respectively, in the interpretation of the European
Court of Human Rights (ECHR) and of the Court
of Justice of the European Union (CJEU). These
rights are also foreseen in international instru-
ments such as, for example, in Article 2 paragraph
3 and Article 14 of the UN International Covenant
on Civil and Political Rights (ICCPR) and in
Article 8 and 10 of the Universal Declaration of
Human Rights. The main elements of these rights
include the effective access to a dispute resolution
body, the right to a fair trial and the timely reso-
lution of disputes, the right to an adequate remedy,
as well as the general application of the principles
of efciency and effectiveness of justice. More
recently, the UN General Assembly, in resolution
67/1 on 24 September 2012, expressed its willing-
ness to guarantee the right to equal access to
justice for all, including to people belonging to
vulnerable groups.
While plenty has been done at the international
and European levels, a lot still needs to be done in
regards to effectiveness and awareness of access
to justice. Daily challenges have hindered this
access, especially for disadvantaged and vulnera-
ble groups.
2 Access to Justice: Promoting the Legal System as a Human Right
Access to Justice Perspectives
The legal complexity and richness of the concept
of access to justice lie in the fact that it is both a
right and the means of restoring the exercise of
rights that have been disregarded or violated.
As an indispensable component of specic rights,
such as the right to liberty and to personal safety,
it is closely linked to the right to effective judicial
protection (fair trial or due process), the right to
an effective remedy, and the right to equality
(Despouy 2008).
There are three main mechanisms of justice:
formal justice systems, informal justice systems,
and transitional justice and restorative justice.
Formal Justice Systems: The structure and
competence of formal mechanisms derive
from laws, policies, and regulations developed
by the government. They operate as part of
the government and are nanced by the state.
Its function is to interpret and resolve conicts
over the laws, as well as to determine the
responsibility for its violation. In federal sys-
tems, formal justice mechanisms can also
derive from the power of a specic federal
entity within the national state. The ofcial
courts are the center of the formal justice sec-
tor. The principal actors in the formal justice
sector may include judges, prosecutors, attor-
neys, court support personnel, and those who
provide services to survivors by court order.
The formal justice sector can also include
mechanisms outside the courts, such as arbitra-
tion, mediation, or restorative justice. Law
enforcement ofcers, such as the police, also
interact closely with both the formal and infor-
mal justice sectors (Silvers et al. 1998).
Informal Justice Systems: The power of infor-
mal justice mechanisms comes from social
groups or community structures that are not
part of the government. These social groups or
structures may include specicethnicorreli-
gious communities, rituals or traditions, indige-
nous governance systems, or local community
organizations. In informal justice sector, leaders
or local decision-makers are selected from
within the community to implement justice
through informal mechanisms. They preside
over instances similar to courts of law, or they
may act in a totally different environment (such
as a community meeting or a private house).
They can receive payment from the parties or
from an external entity, or they can provide their
services free of charge as part of their role in the
community. The community and the public can
also play an important role in informal proce-
dures and in the implementation of decisions
(UNDP 2017;Thomasetal.2011).
Transitional Justice: It derives from account-
ability and reparation for victims, as they are
recognized their dignity as citizens and as
human beings. Some government and institu-
tions opt for ignoring the massive abuses as a
way to deal with this issue, but it destroys the
values in which any worthy justice system
must settle. Massive atrocities and systematic
abuses destroy societies, and their legacy can
produce fragility, weakness, instability, politi-
cization, and scarcity of resources to political
and judicial institutions such as Parliament, the
courts, the police, prosecutors, etc. Violations
of rights undermine citizens condence in the
ability of the state to safeguard their rights and
security. It not uncommon for communities to
be destroyed and social and political organiza-
tions weakened in this context. The need to
respond with legitimacy to these violations of
massive rights is what denes transitional jus-
tice (ICTJ 2009).
The objectives of transitional justice will vary
in each situation, although its features the rec-
ognition of the dignity of individuals, the repara-
tion and admission of violations of rights, and
the objective of preventing their repetition are
constant. Among its complementary objectives
are (ICTJ 2009):
Create responsible institutions and regain
condence in them.
Enable access to justice for the most vulnerable
social sectors after violations of rights.
Ensure that women and marginalized groups
truly participate in the search for a just society.
Access to Justice: Promoting the Legal System as a Human Right 3
Respect the rule of law.
Facilitate peace processes and promote durable
resolutions for conicts.
Laying the foundations to address the underly-
ing causes of conict and marginalization.
Promote reconciliation.
The magnitude of the abuses and the social
fragility mean that sometimes not all violations
of rights are addressed as would be done under
normal circumstances. Normally, four types of
approaches are implemented (ICTJ 2009):
Criminal proceedings, at least against
those most responsible for the most serious
crimes.
–“Truth claricationprocesses (or investiga-
tions) on violations of rights by non-judicial
bodies. They are diverse initiatives, but they
tend to focus not only on events, but also on
their causes and consequences.
Reparations of various forms individual,
collective, material, and symbolic in case
of human rights violations.
Legal and institutional reforms that may affect
the police, justice, military, and military infor-
mation services.
These approaches should not be considered
mutually exclusive. For example, truth commis-
sions do not replace judicial processes, because
their objectives are different, as they offer a
much greater degree of recognition and combat
the culture of denial. Likewise, constitutional,
legal, and institutional reforms do not exclude
other measures but directly point to the recovery
of trust and the prevention of new abuses.
Normative Framework
The triad of the Universal Declaration of Human
Rights, the International Covenant on Civil and
Political Rights, and the International Covenant
on Economic, Social and Cultural Rights forms
the core of international human rights law. States
ratifying the Covenants agree that they will abide
by the rights enshrined in these treaties and work
toward respecting, protecting, and fullling these
obligations domestically through institutional
mechanisms (Francioni 2007).
According to the above international instru-
ments, the fundamental right of Access to Justice
has been enshrined in the:
1. Universal Declaration of Human Rights
(UDHR): The Universal Declaration of
Human Rights (UDHR) is the cornerstone of
international human rights law. The UDHR
was proclaimed by the United Nations General
Assembly in Paris on 10 December 1948
as General Assembly Resolution 217A (UN
1948). Article 7 and 8 provide for the right to
equality before the law without discrimination,
equal protection of the law, and the right to an
effective remedy by competent national
tribunals.
2. International Covenant on Civil and Political
Rights (ICCPR): It is one of the two
treaties that give legal force to the Universal
Declaration of Human Rights. Article 2 of
the International Covenant on Civil and
Political Rights builds on the UDHR. Like
Article 7 of the UDHR, Article 2.1 of the
ICCPR provides for nondiscrimination, nota-
bly on the basis of social origin or status,
meaning that ability to pay should not be a
barrier to claiming rights. This is also
reinforced in Article 26 which provides
that all persons are equal before the law and
entitled to equal protection of the law, without
discrimination; the ICCPR also contains
Article 14 which specically addresses the
administration of justice and equality before
the courts and tribunals. The ICCPR reinforces
the principles of equal (nondiscriminatory)
access, which entails equality of arms between
parties and an effective system of competent
authorities for hearing disputes (Kovacs 2016).
3. The International Covenant on Economic,
Social and Cultural Rights (ICESCR): The
International Covenant on Economic, Social
and Cultural Rights (ICESCR) contains no
direct counterpart to Article 2 of the ICCPR,
which obligates state parties to provide judicial
4 Access to Justice: Promoting the Legal System as a Human Right
remedy. However, the ICESCR notes in its
preamble that in accordance with the Univer-
sal Declaration of Human Rights, the ideal
of free human beings enjoying freedom from
fear and want can only be achieved if condi-
tions are created whereby everyone may enjoy
his economic, social and cultural rights, as
well as his civil and political rightswhich
includes appropriate means of redress, or
remedies and appropriate means of ensuring
governmental accountability(UN CESCR
1998).
Other instruments deserve to be mentioned,
such as the Convention on the Elimination of All
Forms of Discrimination Against Women
(CEDAW), the Convention on the Elimination of
All Forms of Racial Discrimination (CERD),
or the International Convention on the Protection
of the Rights of Migrant Workers (ICMW) and the
members of their families.
Once the access to justice problem has been
broadly identied, it needs to be interpreted in
terms of Human Rights. To do this, this entry
compares the current situation to how it should
ideally be according to international human rights
conventions and treaties and the national legal
framework (UNDP 2005). The relevance of
access to justice within the human rights frame-
work must be considered at least at three levels: as
a fundamental human right recognized for all
persons; in terms of its linkages with a range of
human rights issues, especially in relation to
human rights in the administration of justice; and
the role of access to justice in the enforcement of
human rights in general. The next section intro-
duces the approach of human rights regarding to
guidance on access to justice.
Human Rights-Based Approach to
Access to Justice
Through ratication of international human rights
treaties, governments committed to put into
place domestic measures and legislation compat-
ible with their treaty obligations and duties.
Where domestic legal proceedings fail to address
human rights abuses, mechanisms and procedures
for individual complaints or communications are
available at the regional and international levels to
help ensure that international human rights stan-
dards are indeed respected, implemented, and
enforced at the local level (Desai 2013).
The sources of international law reect access
to justice as equivalent to access to courts and put
strong focus on judicial remedies, as stated in the
Universal Declaration of Human Rights (1948).
In its Article 8, it declares that everyone has the
right to an effective remedy by the competent
national tribunals for acts violating the fundamen-
tal rights granted by the constitution or by law.
Other classic sources of international law offer
similar concepts pointing in the same direction,
such as the International Covenant on Civil and
Political Rights which in its Article 2, which refers
in a similar way to an effective remedy for all
the rights in the convention and further guarantees
the right to take proceedings before a court, or its
Article 9 about the right to a fair and public
hearing.
At the international level, the United Nations
Human Rights Committee has since its establish-
ment led the way among the UN treaty bodies
on interpreting concepts related to access to jus-
tice. However, more recently, better and broader
concept in other international instruments are
available. An example of attemps to broader con-
cept of access to justice is the 1998 Aarhus Con-
vention on Access to Information, Public
Participation in Decision-Making and Access to
Justice in Environmental Matters. This is a Con-
vention of the UN Economic Commission for
Europe (UNECE) focused on transparency and
accountability which links human and environ-
mental rights. The concept of access to justice is
referred to in the title, the preamble and in Article
1, 3, 9, and 10. According to this concept, positive
obligations are imposed upon the state parties.
The most important feature of the Convention is
that it establishes quite rm parameters and stan-
dards which must be satised in order to fulll the
statesduties and grant adequate enjoyment of the
right of access to justice for individuals and the
general public (Pinedo 2011).
Access to Justice: Promoting the Legal System as a Human Right 5
This Convention denes access to justice as
access to a review procedure before a court of
law or another independent and impartial body
established by law. The public has the right to
judicial or administrative recourse procedures
in case a contracting party violates or fails to
adhere to environmental law and the conventions
principles.
In the second place, is the 2006 Convention on
the Rights of Persons with Disabilities, as the
notion of effective access to justice is now dened
in a broad manner in a United Nations treaty,
calling for exibility in procedural law and train-
ing. Article 13 of the Convention places an obli-
gation upon states to ensure equal access to justice
to persons with disabilities: 1. States Parties shall
ensure effective access to justice for persons
with disabilities on an equal basis with others,
including through the provision of procedural
and age-appropriate accommodations, in order to
facilitate their effective role as direct and indirect
participants, including as witnesses, in all legal
proceedings, including at investigative and other
preliminary stages. 2. In order to help to ensure
effective access to justice for persons with disabil-
ities, States Parties shall promote appropriate
training for those working in the eld of adminis-
tration of justice, including police and prison
staff(CRPD 2006).
While in the European law, the notion of access
to justice has been restricted to access to courts
and the existence of a judicial remedy, it is
now obvious that this is not so anymore in inter-
national law. For the United Nations Development
Program (UNDP), the concept extends to all dif-
ferent stages of a justice process, starting at the
moment an individual recognizes a grievance and
ends with the exercise of a concrete procedural
remedy that respects fundamental rights (UNDP
2004). An important avenue for improving access
to justice is the provision of legal services to the
poor. The next section analyzes the empowerment
of the poor via access to justice.
Empowerment of the Poor Through Access to
Justice
In many developing countries, laws, institutions,
and policies governing economic and social
interactions do not afford equal opportunity and
protection to a large segment of the population,
who are mostly poor minorities, women, and other
disadvantaged groups. Instead of fostering inclu-
sive and equitable growth, some laws and institu-
tions tend to impose barriers and biases against
those groups. Even where there are laws that
protect the rights of the poor, they are often too
ambiguous and costly for them to access (UN-
General Assembly 2010).
Poverty is not simply the lack of material
goods and opportunities such as employment
and ownership of productive assets and savings.
It is also the lack of intangible assets and social
goods, such as legal identity, good health, physi-
cal integrity, freedom from fear and violence,
organizational capacity, the ability to exert politi-
cal inuence, and the ability to claim rights and
live in respect and dignity. The poor are not a
homogenous group; vulnerabilities and chal-
lenges faced vary among persons living in pov-
erty. A human rights approach to development is
fundamentally concerned with empowerment,
believing that poverty results from disempower-
ment and multiple exclusions. Poverty can be seen
as both the cause and consequence of the exclu-
sion from the rule of law (UN and the Rule of Law
2009).
Justice for the poor reects an understanding of
the need for demand-oriented, community-driven
approach to justice and governance reform, which
values the perspectives of the users, particularly
the poor and marginalized as women, youth, and
ethnic minorities (The World Bank 2006). The
capacity of marginalized groups is inuenced by
their legal awareness (basic knowledge of the
justice system), legal counsel (access to legal ser-
vices availed by government and non-government
institutions, availability of formal and informal
mechanisms), and capacity to access justice ser-
vices judicial and quasi-judicial services (Maru
2010).
The UNDP hosted the Commission on Legal
Empowerment of the Poor as an independent
international organization. This Commission was
established in 2005 as the rst global initiative
to focus on the link between exclusion,
poverty, and the law.Drawing upon 3 years of
6 Access to Justice: Promoting the Legal System as a Human Right
research, the Commission proposed strategies for
creating inclusive development initiatives that
would empower those living in poverty through
increased protections and rights. Its nal 2008
report, Making the Law Work for Everyone,
argued that as many as four billion people world-
wide are robbed of the chance to better their
lives and climb out of poverty, because they are
excluded from the rule of law(UNDP 2008).
To escape the poverty trap, the poor need
a legal system that enables them to realize the
full value of their physical and human capital.
For the legal system to play a role in empowering
the poor to lift themselves out of poverty, they
need more than laws conferring the appropriate
mix of rights, powers, privileges, and immunities;
they also need a legal and judicial system that can
make these legal entitlements practical and mean-
ingful. Empowering the poor and disadvantaged
to seek remedies for injustice requires efforts to
develop and strengthen linkages between formal
and informal structures and to counter biases
inherent in both systems (UNDP 2008).
Access to justice as a human right is essential
to address the origin of poverty. Without access to
justice, people living in poverty can neither claim
nor exercise a wide range of human rights nor face
the abuses or violations committed against them.
People living in poverty face serious obstacles
to accessing justice systems, which include phys-
ical, social, and nancial barriers and perpetuate
and exacerbate their disadvantages. The lack of
information about their rights and illiteracy or
language barriers, together with the entrenched
stigma associated with poverty, also hinder the
interaction of the poor with the justice system.
In these circumstances, a person living in poverty
cannot defend their rights or face justice
(OACNUDH 2012).
The legal system can play an important role in
supporting poverty eradication by giving poor
people access to the appropriate mix of rights
and remedies. However, laws that discriminate
against, or ignore, the rights and livelihoods
of the poor can pose serious obstacles to the erad-
ication of poverty. In a system that works against
them, the poor survive by mixing customary prac-
tice with ingenuity, creating informal structures
that can at times be more effective than their
formal counterparts (UN and the Rule of Law
2009).
Ensuring access to justice for the poor requires
laws and judicial systems that work well and
that not only reect the interests of rich and
more powerful groups, but also consider income
and power inequalities. Reforms should be
implemented with the effective and meaningful
participation of people living in poverty. It is
important to highlight that women living in pov-
erty face particular difculties in accessing
justice, which is a major cause of their increased
vulnerability to poverty, which means that efforts
to address poverty must include the empowerment
of women to that seek justice and ensure that the
justice system does not discriminate against them
(OACNUDH 2012).
Despite some advances in expanding access to
justice to vulnerable groups, there are barriers that
stand between ordinary people with legal prob-
lems and their effective access to justice. These
barriers are considered in the follow section.
Barriers to Access to Justice
The access to justice is often hindered by eco-
nomic, structural, and institutional factors. In
many situations, the complexity and the cost of
legal processes, as well as geographical and
physical constraints, prevent poor and marginal-
ized groups from accessing the justice system.
Among other factors, costs and trust in the justice
system determine whether someone will seek
legal assistance or act to resolve their legal prob-
lems (Barakat 2018).
According to UNDP (2004), the rst step of the
access to justice reform is the identication of
barriers. These should be categorized and identi-
ed in order to promote better lawmaking and
policies. As summarized by UNDP, there are bar-
riers in access to justice from the users perspec-
tive, which is frequently weakened by:
1. Long delays; prohibitive costs of using the
system; lack of available and affordable
legal representation that is reliable and has
Access to Justice: Promoting the Legal System as a Human Right 7
integrity; abuse of authority and powers,
resulting in unlawful searches, seizures,
detention, and imprisonment; and weak
enforcement of laws and implementation of
orders and decrees
2. Severe limitations in existing remedies pro-
vided either by law or in practice. Most legal
systems fail to provide remedies that are pre-
ventive, timely, nondiscriminatory, adequate,
just, and deterrent
3. Gender bias and other barriers in the law and
legal systems: inadequacies in existing laws
effectively fail to protect women, children,
poor, and other disadvantaged people, includ-
ing those with disabilities and low levels of
literacy
4. Lack of de facto protection, especially for
women, children, and men in prisons or cen-
ters of detention
5. Lack of adequate information about what is
supposed to exist under the law, what prevails
in practice, and limited popular knowledge of
rights
6. Lack of adequate legal aid systems
7. Limited public participation in reform
programs
8. Excessive number of laws
9. Formalistic and expensive legal procedures
(in criminal and civil litigation and in admin-
istrative board procedures)
10. Avoidance of the legal system due to eco-
nomic reasons, fear, or a sense of futility of
purpose
Amid the main obstacles above, legal aware-
nessthat is the access to understandable rules is
of chief importance. The lack of statistics avail-
able to the public and the lack of information
offered to citizens about their own rights are an
acute impediment for the realization of the access
to justice. Ideally, citizens should have access to
appropriate information on public authorities and
the conditions in which the laws are drafted. It
is also just as important for citizens to have infor-
mation how judicial institutions work, so to
become more understandable to stakeholders,
especially to ordinary citizens and vulnerable
groups (Carboni 2014). It is important to consider
that despite the determination to remove barriers
and the good intentions of regulators and supra-
national agencies, it is necessary to revisit the
barriers now and then to evaluate whether new
solutions may be available and how effective or
successful any previous endeavor to remove bar-
riers was.
After identifying obstacles to access to justice,
this entry now moves to an examination of the
different types of support to promote access to
justice and overcome barriers.
Types of Support to Promote Access to
Justice
By strengthening access to justice, the United
Nations system collaborates with national part-
ners to develop strategic plans and programs
for justice reform and service delivery. United
Nations entities provide support to member states
in strengthening justice in areas such as monitor-
ing and evaluation; the empowerment of the poor
and marginalized to seek resources and repara-
tions in the face of injustice; the improvement of
legal protection, legal awareness, and legal assis-
tance; the supervision of civil and parliamentary
society; the response to challenges in the justice
sector such as police brutality, inhuman condi-
tions of incarceration, prolonged periods of pre-
ventive detention, as well as the impunity of
perpetrators of sexual and gender-based violence
and other serious crimes related to conicts; and
the strengthening of links between ofcial and
informal structures (UNDP 2017).
Specic justice mechanism relates to
supporting justice and related systems, with focus
on formal mechanisms of justice, especially pro-
cesses of adjudication through the judiciary. The
most relevant are (UNDP 2004,2005):
Legal protection: Provision of legal standing in
formal or traditional law involves the develop-
ment of capacities to ensure that the rights of
disadvantaged people are recognized within
the scope of justice systems, thus giving enti-
tlement to remedies through either formal or
traditional mechanisms such a ratication and
implementation of treaties in local law or
implementation of constitutional law.
8 Access to Justice: Promoting the Legal System as a Human Right
Legal awareness: Lack of legal awareness is a
serious impediment to accessing justice, in
particular for the poor who are less likely to
be familiar with their rights and less likely to
use the formal system. Information needs vary
signicantly depending on local context. For
instance, labor rights tend to be more important
in urban areas, whereas land rights are the main
concern in rural areas. Linking judges, prose-
cutors, and police with community groups can
enhance community legal awareness, increase
public trust in the state, and improve the capac-
ity of the legal apparatus to respond to the
needs of the poor.
Enforcement: For rights to be effective they
have to be capable of being enforced. It is
critical to support the capacities to enforce
civil court decisions and to institute reasonable
appeal procedures against arbitrary actions.
The functioning of enforcement systems is
key to minimizing disadvantaged peoples
insecurity. It is a precondition for accountabil-
ity and the elimination of impunity. Many
crucial problems in justice systems, both for-
mal and traditional, can often be traced back
to decient systems of enforcement. The
performance of, for example, prosecution
departments in government inuences the
effectiveness of the criminal justice system;
the police also play a fundamental role in
ensuring access to justice, particularly since it
is the point of rst contact in the criminal
justice (UNDP 2004).
Public participation: The creation of civic
oversight mechanisms can be a major entry
point for larger reforms in the justice system,
particularly in developing democracies.
For instance, the Independent Complaints
Directorate (ICD) of South Africa ensures
civilian participation in the process of handling
citizenscomplaints against police personnel,
and it may be a strategic entry point for a larger
process of reform within the police.
Legal Aid: Development of the capacities
that people need to enable them to initiate and
pursue justice procedures. Legal aid and coun-
sel can involve professional lawyers, parale-
gals, or both. Legal awareness can help
disadvantaged people understand they have
valuable rights, such as protection from forced
evictions, forced labor without pay, or torture.
Availability, affordability, and adequacy are
the three major challenges faced by poor peo-
ple and other disadvantaged groups when it
comes to legal aid. Legal aid, like legal aware-
ness, requires the intervention of both govern-
ment and non-government actors.
The direct and indirect effect of provisions to
expand the access to justice have a strong impact
on poverty. Public participation, for example, is
closely linked with poverty reductions, since
being poor and marginalized means to be deprived
of choices and opportunities. It also has strong
impact on crime and conict reduction (Jodoin
and Segger 2013). Reforms in the judiciary seek-
ing to increase access to justice require an
approach that involves building support from
pre-existing strengths and protection of rights,
specially the rights of the disadvantaged groups.
Conclusions
Currently, access to justice is connected to inter-
national and national structures for the protection
of human rights. It is a fundamental human right,
as well as a key to defend other rights. The rise of
access to justice suggests that there may be an
opportunity to get this right effectively recognize
as a fundamental right and prerequisite to the
effective enjoyment of all rights guaranteed by
international, regional, and national norms. Yet,
several challenges to legal and judicial access
remains rmly in place, and access to justice is
insignicant if not implemented equitably and
uniformly in light of constitutional rights (Lam
2006). Individual access to international justice
remains exceptional and based on specic treaty
arrangements, rather than on general principles of
international law, and also, even when such a right
is guaranteed as a matter of treaty obligation, other
norms or doctrines of international law may
effectively impede its exercise, as in the case of
sovereign immunity or non-reviewability of UN
Security Council measures directly affecting indi-
viduals (Francioni 2007).
Access to Justice: Promoting the Legal System as a Human Right 9
Cross-References
Climate Justice
Environmental Justice
Globalisation and Social Justice
Human Rights
Informational Justice
International Human Rights Treaties
Legal Right to Access Information
Regulatory Framework for Social Peace and
Justice
Restorative Justice: Emergence, Institutionali-
zation, and Critiques
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10 Access to Justice: Promoting the Legal System as a Human Right
Article
As an objective in international legal cooperation, interventions with the aim to enhance access to justice are a relatively new phenomenon that has famously been described as the ‘legal empowerment alternative’ which goes ‘beyond the rule of law orthodoxy’. Generally speaking, while traditional approaches primarily aim at promoting the rule of law ‘top–down’ by strengthening state structures and capacities, access to justice projects take a ‘bottom–up’ approach focusing on the empowerment of ‘users’ of justice systems. The overarching theory of change behind this approach is that empowered citizens are better able to participate in decision-making processes at the grassroots level, helping build greater trust and confidence in the justice system and public institutions, particularly in fragile and conflict-affected situations. Focusing on the provision of legal aid services, this article outlines the international normative framework, depicts the various practical approaches, and reflects some findings resulting from a recent evaluation commissioned by the German Federal Foreign Office on its engagement in enhancing access to justice, drawing from examples in Palestine, Ukraine, and Pakistan.
Article
Full-text available
The EU accession process is the main driver of judicial reforms in Western Balkan countries. The judicial reforms have been a continuous process for over 15 years, and each Western Balkan country adopted several strategies as a key policy document. As a result of reforms, all countries established new judicial bodies, transferred governance powers from executive to the judicial councils, introduced new judicial professions (notaries, bailiffs), adopted and strengthened rules and procedures for the appointment of judges and prosecutors, optimised court network, etc. Despite the fact that reforms were conducted with the aim to increase efficiency and integrity of judiciary, trust in the justice system across Western Balkans is still low, and position on international indices raises concerns on the impact of reforms. In the article, the author will analyse and compare the results of reforms in the Western Balkan countries in the key justice areas: efficiency, access and independence of the judiciary. The purpose of the analysis is to find out whether countries in the region are closer to the EU judicial standards and what has to be done to align the judiciary with EU standards.
Chapter
In 2009, the Fundamental Rights Enforcement Procedure (FREP) Rules of 1979 was revised to ease the cumbersome process encountered by applicants/lawyers in advocating for the enforcement of fundamental human rights in court. Despite this, human rights lawyers still encounter several challenges when representing applicants for the enforcement of fundamental human rights in court. This chapter examines these challenges and adopts primary research method. Data were gathered from human rights lawyers via video conferencing platforms: Skype and Zoom. Findings reveal that issues of procedural rules of court and disrespect for court orders are some of the challenges encountered by human rights lawyers. The chapter recommends that judges should avoid placing unnecessary emphasis on the procedural rules of court. In addition, human rights lawyers and non-governmental organizations (NGOs) should maintain continuous advocacy for the enforcement of fundamental human rights towards holding government and its agencies more accountable for disrespect of court orders.
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Cambridge Core - Environmental Law - Sustainable Development, International Aviation, and Treaty Implementation - edited by Armand L.C. de Mestral
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This paper reviews the World Bank's existing work in access to justice and suggests directions for further Bank engagement in this area. Access to justice efforts are grouped here into six categories: court reforms, legal aid, information dissemination and education, alternative dispute resolution, public sector accountability, and research. The paper is motivated in part by recent discussions of ‘legal empowerment’; a thread of inquiry that runs through the review is: how do World Bank efforts to increase access to justice affect the agency of poor people? The paper concludes with insights and recommendations that emerge from the Bank's experience.
The cost of justice: exploratory assessment on women's access to justice in Lebanon
  • S Barakat
Barakat S (2018) The cost of justice: exploratory assessment on women's access to justice in Lebanon, Jordan, Egypt and Yemen. Policy and Practice. Oxfam report. https://doi.org/10.21201/2018.2593 ISBN 978-1-78748-259-3
The paradigm of international social development: ideologies, development systems and policy approaches
  • N Carboni
Carboni N (2014) From quality to access to justice: improving the functioning of European judicial systems. J Civil Legal Sci 3:1-9. OMICS International Desai M (2013) The paradigm of international social development: ideologies, development systems and policy approaches. Routledge, New York, USA
Report of the Special Rapporteur on the independence of judges and lawyers (A/HRC/8/4)
  • L Despouy
Despouy L (2008) Report of the Special Rapporteur on the independence of judges and lawyers (A/HRC/8/4). Human Rights Council, United Nations, Geneva
Manuale di diritto europeo in materia di accesso alla giustizia. European Union Agency for Fundamental Rights
  • S Elgebeily
Elgebeily S (2017) The rule of law in the United Nations Security Council decision-making process: turning the focus inwards. Routledge, New York FRA (2016) Manuale di diritto europeo in materia di accesso alla giustizia. European Union Agency for Fundamental Rights, Wien
Access to justice and the international human rights framework
  • P R Kovacs
Kovacs PR (2016) Access to justice and the international human rights framework. Canadian Lawyers for International Human Rights (CLAIHR)
The rise of the NGO in Bangladesh: lessons on improving access to justice for women and religious minorities note
  • J H Lam
Lam JH (2006) The rise of the NGO in Bangladesh: lessons on improving access to justice for women and religious minorities note. Geo Wash Int Law Rev 38:101-130
Un derecho humano esencial: el acceso a la justicia
  • Jam Lugaro
Lugaro JAM (2003) Un derecho humano esencial: el acceso a la justicia. Anuario de Derecho Constitucional Latinoamericano. Instituto de Investigaciones Jurídicas, National Autonomous University of Mexico, Mexico
Addressing poverty requires improving the access of the poor to justice. Statement from the Office of the United Nations High Commissioner for Human Rights
OACNUDH (2012) Addressing poverty requires improving the access of the poor to justice. Statement from the Office of the United Nations High Commissioner for Human Rights. Available at: https://www.unric.org/en/ latest-un-buzz/27928-tackling-poverty-requires-improvingaccess-to-justice-for-the-poor-un-expert-onextremepoverty