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.