I. INTRODUCTION
There has long been a tension between individual-only approaches to minority rights and those allowing for collective or group rights,Footnote 1 as is apparent from debates concerning minority rights and multiculturalism.Footnote 2 Both sides raise legitimate concerns: there are valid claims that go beyond strictly individual rights; however, the concept of group rights also holds dangers, for example, of internal oppression.Footnote 3 This article explores the possibility of going beyond this dichotomy and ameliorating these concerns by enforcing rights through collective procedures. It argues that adopting collective procedures for the enforcement of minority rights helps minority rights by extending the ability of law to address inequalities, while also taking account of concerns that collective and group rights threaten individual rights.
Individual rights go a long way in protecting members of minority groups. Nevertheless, otherwise legitimate individualist constraints can filter out many claims that are dispersed, arise from systemic trends or are difficult or impossible to fit within an individual-based legal framework. As Samuel Bagenstos critically notes: ‘By focusing on discrete, identifiable acts of wrongdoing undertaken by specific, blameworthy individuals, the law failed to provide a meaningful response to structural or institutional discrimination that cannot be attributed to the fault of a particular racist or sexist.’Footnote 4
Constraints may be especially restrictive of minority claims. Consider genocidal acts in which no rightful heir survives the purge, potentially meaning that perpetrators are not called on to provide compensation. At the other end of the scale, there may be a pattern of dispersed violations that are systemic but individually too small to be worth pursuing, thus these may also not be addressed through strictly individualist legal approaches. Denial of the right to use a minority language, for example, rarely leads to large numbers of individual victims claiming compensation. The same holds true for desegregation claims: those responsible for maintaining segregation are rarely made to fully compensate individuals for the detrimental impact it has had on their life chances. The list goes on, and the nationalist zeitgeist and securitising trends make it unlikely that important advances can be expected in the robust protection of minority rights in the foreseeable future. Joshua Castellino argues that given the political mood, there is a need for pragmatic and targeted approaches,Footnote 5 while Kymlicka calls for new strategies ‘to revive the flagging political project of diversity in Europe and elsewhere’, given the ‘growing public disenchantment’.Footnote 6
There is, however, another tendency that shows promise. In an era in which even a single act or omission can have far-reaching consequences and result in a multiplicity of claims that may overburden institutions, the need for systemic responses has been recognised.Footnote 7 There has been a proliferation of proposals and regulations permitting judicial and quasi-judicial bodies to consider sets of similar cases, ranging from national laws that permit group actions involving members who have not expressly opted in, to international attempts to address mass and repeat violations. This trend is partly driven by the widespread nature of violations, such as in the impact of corporate activity.Footnote 8 Measures often target groups seen as vulnerable or less powerful, for example, in the context of consumer protection,Footnote 9 but there have also been procedural solutions in the human rights field, such as the pilot judgment procedure before the European Court of Human Rights (ECtHR)Footnote 10 and the system of collective complaints under the European Social Charter.Footnote 11
Comparative scholarship has also shown the benefits of collective procedures, highlighting their regulatory potentialFootnote 12 and arguing for the use of class actions by international human rights bodies,Footnote 13 including improving the pilot judgment procedure before the ECtHR,Footnote 14 and in civil law jurisdictions generally.Footnote 15 The goal of this article is more specific: it aims to show how collective procedures can help minority claims.
Allowing minority claims to rely on collective procedures provides legal avenues and added guarantees for many otherwise unenforced rights. The argument is not meant to suggest that a collective approach should supplant individual procedures,Footnote 16 nor that it is always superior. Neither is it being argued that when a case is litigated as a collective procedure, all remedies should likewise be collective. There are contexts in which other forms of enforcement, such as public interest litigation (actio popularis) and centralised enforcement, could be more effective and, indeed, these avenues may offer comparable protection for victims who fear retaliation.Footnote 17 Furthermore, collective litigation procedures can allow for some individualised remedies.
Thus, the central point is not to argue that collective procedures and remedies are always preferable, but simply to explain that, unless appropriate collective procedures are available, the legal system will leave certain minority claimants without adequate recourse for enforcing their rights.
The merits of the proposal are evident when viewed from the premise of recognising the importance of collectivities. However, in order to make the argument more inclusive, this article works from an individualist premise and argues that making collective procedures available to enforce minority rights is an appealing option, even when considered from a more traditional individual rights perspective.
Existing minority rights norms on the international levelFootnote 18 remain largely grounded in the individualist approach,Footnote 19 with the notable exception of the rights of indigenous peoples,Footnote 20 even if occasionally collective terminology (more on protection than on rights)Footnote 21 leads some to believe that groups also hold certain rights.Footnote 22 This article argues that collective procedures will help, whether or not we accept collective or group rights, and will also work in a setting where only individual rights and claimsFootnote 23 are recognised. Therefore, debates around the existence and desirability of collective or group rights under international (minority) lawFootnote 24 are circumvented by proposing that collective procedures also work with strictly individualist readings, while bringing benefits that proponents of an approach going beyond individualism would welcome.Footnote 25
The rights and related claimsFootnote 26 may involve remedies for various harms, for example, for the effects of colonisation (see the indigenous claims for loss of land and culture) or, more widely, comparable claims by minorities marginalised in the process of nation-building. We may also consider remedies for genocide and other mass killings targeting minorities (the Holocaust, genocide and ‘ethnic cleansing’ in the Balkans, etc). Cases may revolve around other discriminatory policies, such as in the cases of slavery, apartheid, and forced removal from families or territories (as in the Stolen Generation's forced separation and transfer to camps in Australia and Canada).Footnote 27
This article acknowledges the diversity of claims, including the possibility of there being mutually exclusive claims, such as calls for integrated education in a non-segregated environment and aspirations for separate minority institutions. However, it is submitted that any claim brought on behalf of minorities can be more adequately dealt with when collective procedures are available, even when one takes into account concerns related to agency and representation (see Section II.F below).
A collective procedure can also help in the fight against other discriminatory practices that impact disparately on certain minority groups. The discussion will include discrimination claims in minority claims, following the lead of minority rights documents that treat non-discrimination as a keystone of minority rights protection.Footnote 28
Naturally, areas will remain where legal input will do little to rectify the situation. The closer we move toward self-determination claims and questions of redistribution, the less likely it is that courts will be able to provide adequate guarantees.Footnote 29
Section II focuses on what constitutes a collective procedure, as well as on current practice, particularly within international human rights law. It is then argued that the expansion of access to justice resulting from collective procedures is not merely a question of convenience; on the contrary, it is a matter of human rights (A).
The subsequent sections discuss the various benefits that collective procedures may bring to minority rights litigation, addressing related concerns and possible criticisms: Collective procedures help to address violations with dispersed effects (B); claims that are only cognisable on the group level (C); and claims where evidence is largely limited to the collective level (D). Collective procedures allow for remedies that correspond more closely to patterns in the violations, with the possibility of combining individual and collective measures (E). They also make it easier for courts to address the problem of adequate representation, an issue that is often neglected in individual litigation, but impacts on the rights of larger groups (F). The aggregating effect of collective procedures may help to devise meaningful material sanctions, leading to large-scale redistribution from violators to victims, which contributes to deterrence against further violations (G). Finally, collective procedures can increase the efficiency and coherence of judicial procedures (H).
Altogether, these benefits show that opening the way to enforcing minority rights through collective procedures would contribute to bridging the gap between minority claims that rely on collective notions, and the individualist framework that most legal systems offer.
II. COLLECTIVE PROCEDURES
For the purposes of this article, ‘collective procedure’ refers to legal procedures before courts or other bodies tasked with the implementation of minority rightsFootnote 30 in which a claim may be brought on behalf of a group defined therein, without requiring that all members of that group opt into the procedure.Footnote 31 A procedure of this kind allows for claims to be aggregated, even when not all the victims participate in the action. Inevitably, such procedures raise the problem of absent parties and representation.
Class action in the United States is the most extensively explored type of collective procedure, but discussions in other jurisdictions,Footnote 32 including that of the European Union, have also taken place over the past decade or so.Footnote 33 This article broadly outlines what collective procedures do, but avoids detailed discussion of technical specificities. While technicalitiesFootnote 34 may prove crucial for the success of procedural instruments, the deeper we go, the greater the need for specific contexts that cannot be explored here.
Therefore, the analysis is limited to a discussion of central elements that should be common to the implementation of all types of collective procedure. The goal is to show that any workable collective procedure that (also) covers minority claims will bring important benefits. The focus is further limited to racial, ethnic, national, linguistic and religious minorities, terms often used within the UN context.Footnote 35
A collective procedure is a legal device that can be applied under certain conditions (the input side) and that may lead to the application of specific provisions (the output side). On the input side, claims qualify for collective procedures under certain conditions. In the class action terminology, the requirements of numerosity, commonality, typicality and adequacy of representation should be assessed before one or more members of a class are allowed to bring a claim on behalf of all its members.Footnote 36 Thus, claims should be sufficiently numerous to warrant triggering a collective procedure;Footnote 37 they should have key elements in common that make aggregation meaningful; the initial claims should show features typical of the class as a whole; and representatives should demonstrate that they are in a position to speak on behalf of the entire group. On the output side, collective procedures require additional procedural guarantees, especially in ensuring that absent group members are represented fairly, and the way remedies are devised should also consider the group aspect.
Although the most established version of a collective procedure is to be found in the United States, similar attempts have been made in other jurisdictions.Footnote 38 In fact, there are numerous ongoing efforts to provide more systemic legal responses to widespread violations.Footnote 39
In the European Union, collective procedures are already available to victims of violations of consumer law,Footnote 40 and the Commission has issued a recommendation that collective redress mechanisms be implemented in respect of a wide range of violations of rights granted under EU law.Footnote 41 The European Law Institute and UNIDROIT have also published draft recommendations for a unified European collective action regulation.Footnote 42 National laws on collective procedures also exist, both inside and outside the European Union,Footnote 43 for example, the collective procedural solutions in Commonwealth countries, including group litigation in the United Kingdom.Footnote 44
In 1998 the filtering function of the Commission on Human Rights ended and the ECtHR became the place where individual complaints were considered. This led to a considerable backlog that, in turn, inspired the pilot judgment system set up in 2004. This mechanism is described as ‘a means of dealing with large groups of identical cases that derive from the same underlying problem’.Footnote 45 However, representative-type actions are still not recognised, and complaints can only be filed by those who are able to claim victim status.Footnote 46
Compared to class actions, pilot judgments stop halfway, and fail to provide for a fully-fledged collective procedure that extends remedies to a group of claimants with comparable claims. This has resulted in criticism and a proposal that the European system should be brought closer to class actions.Footnote 47 In a memorandum, the then president of the ECtHR, Jean-Paul Costa, described class actions as a new idea that ‘can be explored immediately’, to address the most pressing challenges affecting the Court's operation.Footnote 48 The merits of class actions have also been addressed in Strasbourg case law, including an argument for pilot judgments to be brought closer to class action judgments.Footnote 49
The European Social Charter includes a collective complaints mechanismFootnote 50 that can accommodate group claims, see for example, the various (successful) complaints filed by the European Roma Rights Centre (ERRC), the European Roma and Travellers Forum (ERTF) and other NGOs in this field.Footnote 51 The Inter-American human rights system has famously dealt with collective claims, the most important of which are probably the Aloeboetoe Footnote 52 and the Plan de Sanchez Massacre Footnote 53 cases. In both instances, the Inter-American Court of Human Rights awarded remedies that were collective in nature to a group of applicants (families of seven individuals and hundreds of other individuals, respectively). The African human rights system has always placed a strong emphasis on collectivities.Footnote 54 The post-apartheid constitution in South Africa specifically mentions the rights of a ‘group or class of persons’ to judicial relief,Footnote 55 with case law specifically referring to links to ‘the vulnerability of the people previously disadvantaged by apartheid’.Footnote 56 The UN General Assembly's definition of victims includes those who have ‘collectively suffered harm’.Footnote 57 The International Criminal Court has a separate Victims’ Trust Fund that targets larger groups of victims.Footnote 58
What is also often forgotten is that the very idea of legal protection for minorities began with a group-based approach in interwar Europe. Mark Mazower reminds us that ‘[t]he League of Nations came to stand for a system that … accepted (perhaps thereby sometimes encouraging the creation of) minorities as collective entities’.Footnote 59 We have come a long way since then, and there is no need to revert to the standards of a bygone era that was swept away by the failure to prevent another war. Be this the case, it does indicate that a focus on groups is not in itself alien to the European approach to the minority question. The landscape shows that collective procedures primarily target groups that have dispersed claims and are for some reason considered vulnerable. This presumption generally holds true for minorities who are commonly defined by their non-dominant position.Footnote 60
Mass reparations often follow large-scale violations and system changes and are often discussed in the transitional justice context. Many such remedies require special attention to violations experienced by minorities. What recent developments such as the Black Lives Matter movement have brought to the forefront, building on earlier accounts of majority biases, namely, systemic racism and microaggressions, is the experience of everyday injustice by minorities. This injustice leads to calls for a break with the past, and for transition, reparation and reform, akin to the mass reparations in the transitional context. It is thus not surprising that collective procedures invoked in transitions also seem applicable to minority claims.
In what follows, eight sets of benefits resulting from collective procedures are listed, while possible challenges are also addressed. Although the effects of collective procedures are discussed in separate sections, they are intrinsically linked and interdependent.
A. Increasing the Availability of Remedies
From a human rights perspective, collective procedures are not only important because they can further rights enforcement in general. Indeed, the efficacy of a legal remedy is not simply a policy question concerning better enforcement or a benefit of a good system of tort law. The failure to provide for effective remedies is not a mere inconvenience, an injustice or a moral failure, it is also a violation of a universal legal principle and a recognised human right. From a positive perspective, the provision of collective procedures can itself constitute the implementation of a human right: the right to effective remedies.Footnote 61 International norms require States to provide adequate, effective remedy for various human rights violations,Footnote 62 and the right to adequate remedy is also part of customary international law.Footnote 63
It is safe to assume that barriers to accessing justice impede claims from disadvantaged sections of society disproportionately, thus many minorities are particularly affected. Not only can collective procedures act against this disparate overall effect, but they can also help to ensure that the enforcement of minority rights does not favour relatively privileged sections within minority communities. Collective procedures extend remedies to entire groups of victims, regardless of who has brought the claim. Therefore, they may help legal systems to deliver on their promise of effective remedies and, ultimately, of equality.
The institutional aspect of the question is the ability of human rights fora to deliver on their ultimate goal of responding to violations: ‘Devising a system of adequate reparation is a litmus test for human rights bodies’ and courts’ ability to respond adequately and effectively to mass violations.’Footnote 64 Lutz Oette advises all such institutions to ‘explore further the use of compensation schemes … that have the potential to provide a measure of justice to all victims of mass violations’.Footnote 65
B. Collective Procedures, Minority Claims and Structural Disadvantage
Parties responsible for violations often go unpunished simply because the resulting harm is diffuse. Certain tortfeasors have to pay, while others who cause damage that is too thinly spread among victims do not. Not enforcing claims that are individually too small to warrant a legal challenge leads to a denial of rights, a type of discriminatory underenforcement based on the incidental structure of violations.
Aggregation can effectively counter this inherent bias in the tort system.Footnote 66 In the minority rights context, this can make claims against widespread but hard-to-quantify—and, as a result, neglected—forms of cultural discrimination viable. Aggregation of seemingly minor (eg language-based) instances of discrimination might allow such claims to move forward and deter further violations through damages awards, even in the absence of an available injunctive relief. Aggregation in these cases is a precondition of enforcement, ie of the fulfilment of the right to remedy.
Aggregation is also beneficial because it can empower plaintiffs. Economies of scale may permit more investment in areas that are important for winning a case, such as legal representation, discovery and organisation. These features are acknowledged in the class action literature to the extent that public debates in the United States point to a resulting imbalance to the advantage of plaintiff classes. Indeed, concerns that excessive empowerment can lead to a flood of frivolous claims, have informed legislativeFootnote 67 and judicialFootnote 68 moves to restrict the scope of application of class actions.
However, it is submitted that concerns around frivolous claims and unfair settlements in the United States do not apply in the context of human rights litigation in Europe,Footnote 69 where litigation motivated by direct financial gains is not a defining factor. It is for this reason that excessive incentives for plaintiffs and their attorneys are discussed outside the human rights context.Footnote 70 Furthermore, in the context of minority claims, the criticism that class actions over-empower plaintiffs can be reinterpreted simply as a move towards restoring balance. It is difficult to imagine how collective procedures could tip the scales ‘too much’ in favour of enforcing minority rights. Any pro-plaintiff bias would be one step towards redressing the overall prejudice of a legal system built on majority biases.
The NAACP Legal Defense & Educational Fund argues that class actions ‘offer remedies for civil rights violations in circumstances where individuals are unlikely to proceed on their own because they lack timely notice, have insufficient resources, or fear retaliation’.Footnote 71 This might be of particular relevance in the minority context, where class actions can be used to vindicate rights and damages that are contrary to the established views within mainstream society.Footnote 72
In a system in which only the particular individuals bringing the claim can obtain remedies, many victims in an underprivileged position will miss out. It might, for example, be particularly difficult to reach such victims to invite them to join as parties to litigation, or to obtain the necessary evidence to deliver individual justice for everyone. In areas such as ‘prisoners’ rights, school desegregation, and employment discrimination … class actions have played a vital role. They have made it possible to afford relief to large numbers of persons who, realistically, could not have been parties to litigation.’Footnote 73 Similarly, William J Aceves argues for the benefits of the collective approach to human rights litigation and the help it potentially offers to the least well-off.Footnote 74
With these concerns in mind, it should be acknowledged that collective procedures, as they are understood here, are neither the sole alternatives to individual litigation nor necessarily superior to other procedures. Sometimes representative action or public interest litigation—where organisations litigate on behalf of wider groups or interests without the requirement to legally represent plaintiffs—or centralised enforcement through State or quasi-State bodies could offer vulnerable victims better shielding from further victimisation.
Where collective procedures do offer more is in providing guarantees of adequate representation, and legal recognition of a group and its suffering, with the empowerment that brings with it. The procedural recognition of a collectivity can help minorities gain leverage in political struggles. If we see rights litigation as part of a broader strategy for political emancipation, a class action could embody a cause, creating an issue that all concerned can relate to: ‘for individuals who have experienced discrimination and other civil rights violations, … association for litigation may be the most effective form of political association’.Footnote 75 This potentially goes beyond strictly symbolic benefits, and links back to the empowerment argument. Individual litigation risks reinforcing existing inequalities and organisational disadvantages. Luc Walleyn compares successful Holocaust claims to the lack of resolution ‘for the less organised Roma community’.Footnote 76 Collective procedures will not make such differences disappear, but they can make up for some of the organisational disadvantages.
Furthermore, the recognition of a group in the proceedings may be more than merely symbolic since it may contribute to the remedial goal itself: ‘The class certification process, as well as the public and media attention that class actions generate, broadens awareness about and expand[s] participation in civil rights and other litigation.’Footnote 77 Collective procedures, under this wider reading, also contribute to the empowerment of minority groups.
C. Collective Procedures and Minority Claims with Collective Dimensions
Existing minority rights guarantees that focus exclusively on individual rights often fail because they miss the collective element inherent in many minority rights claims.Footnote 78 Many minority rights violations target minorities as groups, an aspect often overlooked once the resulting claims are transformed into legal claims. While the individualist approach can provide important safeguards by constraining collective overreach and the possible oppression of individual group members, there are cases where the limitations of individualism are overly constraining and act as a barrier to legitimate claims.
As background, there is the Western State that treats other, potentially competing, collective entities with suspicion or outright hostility, something that Gerald Frug calls ‘a continuing liberal unwillingness to tolerate an intermediate entity that appears to threaten the interests of both the state and the individual’.Footnote 79 Hans Kelsen also identifies this seemingly ‘insoluble conflict’ between the individual and the community, arguing that it ‘is simply an ideology in the struggle of certain interests to resist containment by a collective system’.Footnote 80 Jacob T Levy considers that there exists an irreconcilable conflict between the rationalist and the pluralist traditions of liberal thought, the former undermining the recognition of intermediate groups, the latter endangering individual liberty.Footnote 81 For the purposes of this argument, it is enough to acknowledge that some group claims that do not threaten the State or the individual are lost as a result of the individualist filter, but could be ‘saved’ by collective procedures, without interfering with a system built on individual guarantees.
Daryl Levinson describes how law tends to neglect social context and to imagine ‘atomistic individuals who interact only at the point of a discontinuous event’.Footnote 82 The human ideal of our legal tradition is an independent actor, largely free from outside interference. On the other hand, States are very much entrenched actors in law and politics, so much so that there are accounts that justify the protection of minority rights by the need to provide balance.Footnote 83 Collective procedures are, on this reading, a welcome addition towards restoring the balance in what is still an era of national(ising) States and filling the void between States and individuals.
Acceptance of the idea of the individualist and statist biases described are not essential in order to recognise the need for collective procedures. It is sufficient to accept that in certain cases individualist selectivity may turn into a distinctive ignorance of what cannot be readily presented as a sum of individual rights, claims or interests.
Walleyn argues that ‘[c]ollective forms of reparation are often a logical approach to offer redress to traumatised communities’ and that individualisation risks that ‘no compensation is to be paid to families who were totally exterminated’.Footnote 84 Consider the question of how to capture cultural loss, central to many minority cultures. Applicants in the Plan de Sanchez Massacre case sought remedies for material and immaterial losses after the extermination of members of an indigenous community and cultural losses due to the killing of the tribe's elders. Members of the Maya-Achí tribe were raped, tortured and assassinated by armed forces and civil patrols as part of a massacre on 18 July 1982. In addition to public (and publicised) acknowledgment, the Inter-American Court of Human Rights provided remedies, including pecuniary damages of $5,000 and non-pecuniary damages of $20,000 per person; funds for a commemorative chapel; health institutions (including a local health centre); a special psychological and psychiatric programme benefiting the victims; adequate housing; a State-financed study of Maya-Achí culture; maintenance and improvement of the road system; a sewage and water supply system; and schooling with bilingual teaching personnel.Footnote 85
Collective procedures also mean that minority groups will be recognised on a per case basis, ie the relevant group in any particular case is simply the group of victims of the violation in question. This avoids the complexities involved in according legal recognition to minority groups, which involves determining what constitutes a single minority group as opposed to separate or loosely federated groups; how stable the group's boundaries are; and who precisely belongs to it. Some groups emerge largely as a response to violations, while others may have been pre-existing communities. Legal recognition within the limits of one procedure and one set of claims (‘procedural recognition’) can offer a better match between victims and violations.
Procedural recognition may serve not only as a makeshift solution in the absence of group recognition but may even be a superior option to rigid definition of what constitutes a group. Consider cases where proxies like religious organisations or even States are used in claims concerning large-scale violations—a situation that may be far less satisfactory than recognition of a group of victims in a collective action.
The mismatch between victim group and assigned entity may become intolerable, and the lack of an adequate claimant may make an otherwise valid claim unenforceable. One example is the genocide case of Bosnia and Herzegovina v Serbia and Montenegro. Ultimately, the International Court of Justice avoided the issue of compensation in this case.Footnote 86 However, had it not done so, compensation would have been paid to the claimant State of Bosnia and Herzegovina with no guarantee it would benefit victims. This case also illustrates that it is problematic for the defendant group not to be identified, as compensation would have been paid by the State of Serbia and Montenegro, meaning that ethnically non-Serbian citizens residing and paying taxes in Serbia would have contributed to the compensation payment.
On another occasion, the ECtHR was faced with a different problem of mismatch when deciding on remedies for a governmental decision causing detriment to an orthodox church. The Court awarded damages to the Church ‘to be paid to [the Church] leader at the relevant time, for the benefit of the religious community’Footnote 87 and dismissed related claims by individual worshippers. The Court argued that all members’ claims were subsumed under the ‘collective’ claim filed by the comprising Church: ‘since the leadership directly affected by the violation … claimed compensation for the non-pecuniary damage suffered by the religious community it leads, there is no room for separate awards to the six individual applicants’.Footnote 88 The judgment added that damages for similar violations of religious rights are, in the Court's case law, due ‘only to the ousted leaders or members of governing bodies’.Footnote 89 Judge Kalaydjieva noted in her dissent that this effectively amounts to a ‘“class action” approach’.Footnote 90 In fact, a class action-like collective procedure would have allowed all the victims to receive compensation: it would have been possible to define two sub-classes and design the damages accordingly.Footnote 91
The leading international minority rights case, Lovelace v Canada,Footnote 92 concerned a situation in which a minority community had violated the rights of one of its members. The minority community responsible for the violation was not represented (unless we count the majoritarian representation of the central government). In this case, the presence of the collective party would have made no difference to the outcome, and the remedy sought (an end to the violating practice) did not require a complex approach. Yet, if women in a similar situation had been asking for compensation for harm they had suffered (denial of residency, housing and a series of other benefits, in addition to non-material damages), a clearer procedural structure (victim group as plaintiff and the tribe as defendants) would have allowed responsibility to play out legally.
The recent Okpabi case from the United Kingdom, where group litigation is available, shows the potential and flexibility of group actions. The central point of contention is the court's jurisdiction to hear a claim brought against a UK parent company for environmental damage and human rights abuses allegedly committed by one of its foreign subsidiaries in a foreign jurisdiction. However, it is the composition of the claims and the plaintiff side that merit attention here. The first set of claims is part of a group action brought by 20 named claimants, among them the 17 members of the Council of Chiefs of the Ogale Community, including Okpabi, their king. They make claims not only in their personal capacity, but also ‘on behalf of the people of the Ogale community,Footnote 93 ‘a Nigerian farming and fishing community of approximately 40,000 individuals in Rivers State, Nigeria’.Footnote 94 In another set of claims litigated in the same proceedings, individual claims are presented by ‘2,335 individuals who live in the Bille Kingdom, a remote riverine community in Rivers State, Nigeria’.Footnote 95 The case demonstrates how collective and individual claims can be combined to match the immense complexity of violations and harms.
D. Collective Procedures and Minority Claims Concerning Systemic Harm
Discrimination that is only apparent from a broader perspective might be impossible to prove with sufficient certainty if only strictly individual evidence is accepted. Without being forced to see the overall context or the pattern of decisions that have a discriminatory impact, underlying claims may be dismissed as non-litigable political claims that fall outside equality guarantees provided under law. That courts ought to consider social context has been a largely uncontroversial view ever since the sweeping challenge to formalism by legal realism in the USA. More recently, critical legal studies have emphasised the role of the oft-hidden social vision of the law. For example, in considering accident law, Henry J Steiner argues that courts ‘increasingly understand accidents not as random events first linking a defendant and victim, but as a serious problem of systematic incidence’.Footnote 96
The very fact of aggregation may show a different picture, helping the plaintiffs use evidence that would otherwise be rejected as irrelevant statistical data about issues outside the scope of the litigation. Showing the entire picture, or a larger part of it, might in itself tilt the scales: ‘It's difficult for an individual to persuade a jury that he's telling the truth, [but] when you have 50 or 60 or 100,000 people coming in, … it really changes the balance of power. It's like having a union.’Footnote 97 There are many types of claims in which only statistical evidence can come close to offering conclusive proof of the victimisation of minorities.
Part of the problem can be remedied by accepting evidence that goes beyond the case at hand. A pertinent illustration of how that is relevant is to consider the restrictive American approach. The fact that a black defendant in a criminal trial was convicted by a jury that had no black jury members might not prove much; however, if precisely the same pattern is repeated and demonstrated across hundreds upon hundreds of cases without, or almost without, exception, then the court's assessment might be different. If a court rejects statistical evidence, for example, because it rejects disparate impact assessment,Footnote 98 it will become hard to prove that the lack of black jurors in a case is a result of a discriminatory practice rather than an isolated instance.Footnote 99 When Southern racist policies switched to non-written rules of exclusion, it became easy to avoid the conclusion that discrimination was demonstrably present in individual cases, as in jury selection cases or voting rights litigation.Footnote 100 It is easier to establish a discriminatory practice through a class of cases rather than isolated instances which can be explained away as having non-systemic causes. This can work to the detriment of minority interests, which are especially vulnerable to individualisation: if presented and assessed in isolation, one case might not prove the pattern that persuasively shows the existence of discrimination.
Most European legal fora are more open to the type of broader evidence that can uphold claims of systemic discrimination. However, the way claims are framed can reflect narrow readings of violations, to the detriment of claims related to systemic violations. Control over the right ‘framing’, as Daryl Levinson calls it, will decide what counts as violation and as adequate remedy. Examining violations as resulting from isolated transactions can sink minority calls for remedial measures:
the model of transactional harm offers no guidance as to how to frame constitutional transactions and places no limits on aggregation over time, scope, and group. Because the model relies on such a thin and simplistic understanding of undesirable government behaviour – discrete instances of individualized harm-infliction – it simply lacks the conceptual resources to generate a normative theory of how harms and benefits ought to be framed against the background of the continuous relationship between government and citizens.Footnote 101
The judicial approach that grants heightened protection to some groups and classifications is also based on a collective assessment of social and political factors. Programmes based on positive discrimination and affirmative action also follow collective assessment to justify individual differentiation. It is true that the nature of political and legal decision-making is different and arguments for more inclusive processes in the political arena do not readily translate into the judicial arena.Footnote 102 In the minority field, however, the argument can rely on an established claim that judicial protection is most legitimate for groups that are systematically disadvantaged by political processes primarily built on majoritarian decision-making.Footnote 103
By aggregating harms and benefits, on the procedural level, we switch ‘the unit of constitutional analysis from the net welfare of an individual, to, at the limit, the net welfare of society as a whole’.Footnote 104 What makes class action special in this context is that it provides a powerful device through which the plaintiffs can create the frame, or present the relevant group, which can then influence the judgment of the substantial claim. As a result, the ‘framing’, which is usually hidden, will become part of the litigation and part of the problem that the parties and the court will need to address in a transparent process.
The ability to present context can work in a manner akin to shifting the burden of proof for every individual case in the class, like the relevant rule of the EU's Racial Equality Directive.Footnote 105 Even with strong anti-discrimination standards of evidence in place, allowing groups of claimants to litigate makes it more likely that courts will see the wood for the trees.
Indigenous groups have been making land rights claims all over the world. The attempts by the Sami in Norway and Sweden provide for a more positive storyline than, for example, the Aboriginal land cases in Australia. Claims by the Sami were in limbo for a considerable time because the indigenous group could not produce the type of evidence that is normally required to prove land rights, ie official, State-certificated documents. It was impossible for the Sami to meet these requirements because their ownership is not a result of State-issued title; rather, it survived despite the expansion of the State. In Norway, the Supreme Court adopted a standard sensitive to the peculiarities of the case and accepted historical evidence in lieu of official documents attesting property rights. The Court reversed the burden of proof, stating that it was well known that Sami herders had long been present in the area, so it was not Sami ownership that had to be proven but the claim that later rights extinguished it.Footnote 106 Without this move away from the traditional standards of the legal system, these minority claimants would have found themselves not only without legal protection, but in a situation where the law is in fact mobilised to deny their long-standing usage rights. Since the precedent set by the Norwegian Supreme Court, the Swedish Supreme Court has adopted a somewhat similar standard.Footnote 107
The impact of a collective, historical assessment is also reflected in the approach taken by the ECtHR in the leading Roma case, DH and Others v Czech Republic (also dubbed the ‘European Brown v Board of Education’),Footnote 108 where the finding of a violation (school segregation) was preceded by an overview of a long list of documents describing the general plight of European Roma.Footnote 109
It is essential to stress the importance of legal culture in assessing claims that are related to culture and cultural rights. This article has argued that there are cultural losses that are difficult to identify at the level of the individual, but that can easily be demonstrated on the level of a tribe or other community. This aspect is especially important if we consider that Western legal systems, especially when applied to non-Western cultures, tend to be selective and filter out interests that might be pressing for these cultures yet are not valued when viewed through the lens of law.Footnote 110 The problem is most apparent when we consider claims resting on less individualistic notions that underpin many indigenous claims. Reassessing the individualistic approach of law allows us to uncover hidden assumptions inherent in the way litigation is set up in civil procedural rules,Footnote 111 and in adjudication generally. A collective procedure may be a powerful tool for addressing these inherent obstacles.
E. Collective Procedures and Damages Better Reflecting Patterns of Violations
Human rights violations require effective and adequate remedies, but it is not always clear what types of remedies are effective or adequate. The most common remedy is monetary compensation to those harmed, but there are cases where the defendant is obliged to do, or to cease doing, something. In the case of an injunction, as when challenging the constitutionality of certain provisions and practices, the identity of the plaintiffs might be unimportant: a single plaintiff representing a larger group can litigate and may have the given policy eliminated (eg ending racial segregation in a school system).
A document adopted by the UN General Assembly in 2005 lists three types of remedies that victims are entitled to: access to justice, reparation and access to information. Under reparation, the document lists restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.Footnote 112 Assessing these from the point of view of groups (comprising all those who have suffered legally cognisable violations), compensation is decidedly individual-oriented in that it is difficult to conceive of payments without identifying the entitled payees.Footnote 113 For restitution, it is possible to implement measures that go beyond individual plaintiffs and thus address a wider class of victims. Nevertheless, most judicial remedies apply only to those who are parties to a case. With rehabilitation, satisfaction and restitution, it is easier for remedies to go beyond the plaintiff group, by rehabilitating or apologising to an entire group of victims. When it comes to guarantees of non-repetition, policy changes most often radiate out more broadly.
When examining remedies from a procedural perspective, the problem of collectivities does not arise everywhere. Certain remedies are likely to be collective in nature, with a radiating effect going beyond those directly involved in the lawsuit, regardless of the underlying procedure or the number of plaintiffs: an apology can be addressed to large groups without naming members and guarantees of non-repetition can include institutional reform with an impact on bystanders. Where the problem of individualisation is most pronounced is compensation, or individual payments to victims.
This article argues for the availability of collective procedures and their benefits for minority rights. However, the fact that certain claims could or should be dealt with in an aggregate fashion does not mean that individualisation is necessarily excluded, for example, it might remain with regard to the distribution of remedies to members of the group. Under collective procedures, individual remedies may coexist with collective remedies in a way that is not possible in individual actions. Courts can also design mechanisms to deal with a high volume of cases, assuring conformity to all victims. Statistical sampling or the use of random sampling, possibly involving subcategories, could address this issue, as indeed happened with regard to the claims of torture victims in the Marcos litigation, where the Court created five categories for statistical random sampling.Footnote 114 The estate of the former dictator ‘was found specifically liable to a class of ten thousand Filipinos and twenty-three named plaintiffs for torture, summary execution, disappearance, and prolonged arbitrary detention’.Footnote 115 What makes the procedures interesting for our purposes is the way they dealt with the enormous complexity of the resulting claims that could have undermined the entire procedure.Footnote 116
The normal procedure would have been to have waited for legislative or executive action to draw up a scheme for the determination and distribution of funds. However, the Court came up with its own procedure. Based on expert testimony, District Judge Manuel Real determined that a sample of 137 would yield 95 per cent accuracy regarding the 9,541 claims.Footnote 117 Of these, ‘67 were torture victims, 52 were execution victims and 18 were disappearance victims.’Footnote 118 Based on a standard established by Judge Real, a court-appointed Special Master considered various factors (eg in the case of torture: the methods of physical torture, mental abuse, the length of abuse and detention, the resulting injuries and losses, and the victim's age).Footnote 119 Statistical sampling thus allowed the Court to balance the interest of maintaining consistent standards applied through a unified procedure with the goal of individualisation. The case also shows that defining subsets of claims (or subclasses) within the broader group of claims and victims can facilitate remedies that better match the impact of violations.
The availability of a range of remedies is a great leap forward from the individualised remedies that are more usually associated with rights violations. Lump sum compensation, together with other collective remedial measures, can address the effects of violations more broadly. More generally, ‘injuries caused by public law violations frequently are intangible, symbolic and difficult to measure’, which affects judicial remedies.Footnote 120 Collective procedures enable courts to adopt similar schemes in response to the complex effects of large-scale violations. The ECtHR relied on a similar form of partial individualisation when deciding on moral damages for victims of HIV-contaminated transfusions, awarding damages of either EUR 20,000, 25,000 or 30,000 in 364 individual cases.Footnote 121
While individualisation is possible in group litigation, courts may nonetheless be reluctant to allow such litigation to proceed if they consider that the individual variation between victims is too great. This was a major blow to gender pay gap litigation in the United States, where, in 2011, the argument of managerial discretion when determining individual wages sank a class action claim that had been based on statistical evidence of discrimination.Footnote 122 Courts can easily present requirements for individualisation that make it impossible to certify a class, as every individual claim in the victim group is different. Even if plaintiffs have been subject to the very same policy, the actual harm, the evidence, the length, the timing and several other circumstances might differ. On the other hand, there is a common core element, namely the policy that could be litigated across the class, presenting each case in a unified action. We have also seen how variation within the group of claims and victims can be considered in a collective procedure. The willingness of courts to consider such responses to violations is especially important where enforcement through isolated lawsuits is not viable.
It is often the complex interplay between political and legal responses to widespread violations that leads to the compensation of larger groups. The combined effects of fact finding and litigation, and public discussions and government response can be seen in the Canadian regime set up to respond to Indian Residential School cases, in which around 150,000 native children were forcibly removed from their families between 1879 and 1986.Footnote 123 In similar cases, collective procedures can help present the broad scope of the claims and push for a comprehensive response.
F. Collective Procedures and Procedural Safeguards for Adequate Representation
A common argument against collective procedures is the problem of representation. It is true that the question of who can represent whom is an important aspect of collective claims, given the internal diversity of groups and interests of members.Footnote 124 It will be argued that this is an issue common to many claims, not only in a collective procedural setting, and that collective procedures have built-in judicial guarantees.
Probably the most contested element of collective procedures is the seeming disregard for a traditional element of court procedures: party autonomy or the principle that all parties must be present or represented in a case, or that they have the right to have their ‘day in court’ when a judge considers claims that concern them.Footnote 125 Framing the issue in this way, however, misrepresents the nature of the problem. The real difference does not lie between collective procedures that disregard the day-in-court ideal and individual litigation that respects this rule, but between judgments with less or more external impact, between courts that try to consider the extra-party impact of their decisions and those that disregard this effect. One litigant may challenge a discriminatory practice in an individual case, and when this practice is eliminated, a wider group or even society as a whole may feel the consequences. Remedies directly aimed at policy changes and deterrence are inherently more open and can go beyond the plaintiffs’ concerns. Forward-looking remedies seek change directly, mostly through injunctions, with a high potential for impact on non-parties. If it is ordered that a discriminatory practice should be terminated, the order will have an impact on people not represented in the case.
Establishing liability and applying certain standards of negligence always have a systematic effect on future behaviour because norms and their applications are (ideally) general. In this sense, all judgments are collective, because they provide defendants with an indication of how similar cases are likely to be decided in the future, and thus how defendants should adjust their behaviour to avoid incurring further liability. Taking the UN typology cited earlier,Footnote 126 externalities may be present in rehabilitation, satisfaction and guarantees of non-repetition. The deterrence effect inherent in compensation also means that non-parties are likely to feel the effects of the judgment. While this ‘radiation’ is more or less pronounced, depending on the case, what we see is a structural violation of the ‘day-in-court’ requirement: those who are not parties to the case see their interests being litigated without actually being represented themselves.
In this sense, the collective approach is better, not worse, at considering individual differences, intra-group variation and possible internal divisions. However, even if we establish the move to accept interests as the ground for claim-making, as opposed to individual decisions to litigate, we should address the problem of the diverging interests of victims.Footnote 127 Under US class action practice, it is also possible to identify sub-classes with differing sets of claims and interests. In a school desegregation case, a primary interest for former students might be in receiving compensation, while prospective students might be more interested in ending segregation, and current students and the local community might have an interest in both. A court in a collective procedure is better suited to designing remedies that mirror this complexity and to determining whether legal representation is fair to all victim groups.
Consider the case litigated by a minority Jewish community after France refused to recognise the right to maintain kosher slaughterhouses outside the one and only recognised Jewish association. The majority in the Strasbourg court decision did not find a violation, effectively forcing a minority within a minority to adhere to the rules of a religious body (including paying them a tax per kilo of beef sold) that they specifically refused to belong to.Footnote 128 In this case, the rigidity of the (once-and-for-all) political recognition translated into exclusivity. Judicial recognition of a group as part of a collective procedure allows for less sweeping decisions that look at the specific claim and only recognise the group in relation to that.
G. Collective Procedures, Remedies and Improved Deterrence
Empowerment may be transitory if rights are not backed up with material guarantees. The key debate in political philosophy is about the need to focus on recognition as well as redistribution.Footnote 129 Collective procedures help both: the recognition of groups and their sufferings in a legal procedure may be part of a symbolic remedy, while aggregation helps minorities extract compensation on a larger scale. The latter may help in making up for a key deficiency of minority rights guarantees: the lack of regard for material resources, which could cripple the effective enjoyment of rights and render the right to maintain minority institutions meaningless. As demonstrated by the Plan de Sanchez Massacre case, funding can be part of a comprehensive remedial package.
The breadth of remedies has wider social and regulatory consequences. Without aggregation, society is less just and less safe because ‘eliminating the risk of liability for aggregated civil rights violations means that some number of those injuries will remain unredressed’.Footnote 130 Allowing compensation claims to go forward in cases that would otherwise be thrown out also serves the goal of prosecuting defendants who would otherwise not be made liable, effectively triggering a deterrence effect. The more completely we hold such defendants liable, including claims that would not meet the full individualisation test, or claims that are too small to be litigated individually, the better the deterrence effect is served. This leads to the question of what is expected of remedies.
Ideas ranging from a purely compensatory logic to deterrence-based approaches are used to explain the goals of remedies. The former seeks to right past wrongs to the extent possible, addressing claims by those who suffered violations and their consequences. The goal of deterrence, on the other hand, is more concerned with preventing violations that have not yet occurred. The latter is prospective or future-oriented, while the former is retrospective or past-oriented. Retrospective remedies seek damages and compensation for past harms without necessarily being preoccupied with what will happen in similar future cases.
If we consider the deterrence effect that any type of remedy ought to exert on potential tortfeasors, these distinctions quickly dissolve. Compensation paid by wrongdoers will have an inherent effect on future behaviour. While in some cases—eg in the determination of the precise amount of damages—the choice of approach will be significant, the two goals often go hand in hand. Compensation and guarantees of non-repetition are usually seen as two distinct types of reparation;Footnote 131 however, on a more general level, the two are inherently linked. Courts can seek to end violating practices by specifically ordering the cessation of certain activities (injunctions), as well as by making certain activities too costly to be worth pursuing. The law and economics literature describes this as the goal of optimal deterrence.Footnote 132 It is clear that collective procedures could help this goal considerably and lead to better enforcement, if they are designed well. Van den Bergh and Visscher discuss the ways in which collective procedures could address the problem of under-enforcement in the European consumer protection context.Footnote 133
Michael Thad Allen offers an interesting account of how the logic of deterrence can inform compensation calculations. He considers the difference between quantum meruit (the value of service/labour) and unjust enrichment (profit) as a way of calculating forced labour compensation in Nazi Germany. He argues that such a calculation might create new injustices: restitution claims tend to distort history. Establishing compensatory amounts based on gains might differentiate between companies based on their economic performance rather than on the harm they have inflicted, potentially shielding an employer whose performance is low or negative.Footnote 134
It could be argued that in the human rights context, enforcing damages could or should not be the most important element, even when it constitutes the core of the legal claim, because ‘class action litigation may bring public attention to human rights atrocities’.Footnote 135 Litigation and the seeking of compensation can be part of a broader strategy,Footnote 136 which is best understood if we take a ‘public law’ view of what courts (ought to) do, or what law and litigation are good for.Footnote 137 Only complex remedies can adequately address complex violations, which is often the case with lasting, systemic minority rights violations. Collective procedures can help in this conundrum by providing more possibilities for courts to design a set of remedies covering a broad class of plaintiffs.
From a policy perspective, the changes that collective procedures are able to trigger might not be best captured by the legal nature of the remedy actually sought. While an injunction or a declaratory judgment is usually seen as leaning toward a push for change, damages may ultimately be more effective in influencing decision-makers through deterrence because they make potential defendants internalise the economic costs of the harm. The price tag that damages represent might also make defendants (as well as the public) aware of the actual harm they are causing.
It is easier for defendants to oppose and defeat a court-mandated desegregation plan than it is to question the loss of the life opportunities of children forced into segregated environments and to refuse to pay them compensation. This is not to say that failure to compensate is impossible, but it is probably more likely in a legal system that diverts from rule of law commitments. The Hungarian experience with school desegregation litigation illustrates the potential of aggregation even in hostile political environments.
Desegregation of schools for Hungarian Roma started in the 2000s. The underlying legal framework was adopted in 2003 as a run-up to EU accession, going, in fact, beyond the requirements of the Racial Equality Directive.Footnote 138 Subsequently, a series of judgments established the widespread practice of school segregation and ordered desegregation.Footnote 139 Procedurally, this took place through representative actions started by an NGO, without the need to recruit plaintiffs.Footnote 140 The trend was broken with the 2010 regime change in Hungary, which introduced a policy that seeks to legalise and even promote segregation under the pretext of religious education. This policy undermines the desegregation standards established in 2003, and risks undoing the progress made by successful desegregation litigation.
If all achievements are lost, the only remaining avenue might be to revert to tort law. Indeed, this possibility has already been explored in one high-profile case where, instead of directly asking for an end to segregation, the litigants sought compensation, in an aggregated fashion, for the harm caused by segregation.Footnote 141 The effectiveness of this strategy is evidenced by the fact that the governing majority responded by amending the Act on Public Education to rule out financial compensation as a remedyFootnote 142 in a blatant violation of rule of law requirements. The case demonstrates how compensation might be the last resort for challenging practices that victimise minorities, with the caveat that an overhaul of rule of law guarantees may reach a point where no legal action can override the political tide of anti-minority measures (save for intervention by European institutions). Short of such a political override, mass compensation seems to be a powerful tool. In the Hungarian case, 63 students asked for compensation, but one can imagine the transformative potential of thousands of former and current students harmed by segregated and substandard education coming forward with claims.
In Cordella and Others v Italy, the ECtHR merged applications filed by 180 applicants that arose from the same polluting activity into a single procedure.Footnote 143 While the applicants wanted a pilot judgment, the Court considered it unnecessary. It referred to the complexities of the case and simply noted that, regardless, Italy has an obligation to act vis-à-vis all those concerned, and not only the applicants.Footnote 144 The Court then moved to dismiss the applicants’ request for non-pecuniary damages with the usual formula that the finding of violation should suffice as a remedy.Footnote 145
Without discussing the specifics of the case, it is easy to see how the deterrence effect of the judgment could have been improved by a long line of damages threatening Italy in the event of continued non-compliance. The ability to rule on damages beyond the named applicants to the entire class of victims would have allowed the Court to add real bite to the finding of a violation. In addition, this would have served the goal of compensating those who had not joined the application (which could be for a variety of reasons, including lack of information). Furthermore, obliging the party responsible for the violation to identify all potential victims can be seen as part of taking responsibility for the action: in many cases, violators (and responding States) are better positioned to make such determinations, and this move can compensate for the informational disparity.
There are cases, however, where compensation is not the preferred remedy. Victims might be hostile to compensation, particularly in instances of egregious violations such as loss of life and sexual violence in wartime, but also with other human rights violations. In the case of disappearances, family members might be reluctant to accept compensation because this could be seen as an acknowledgment that their loved one will not come back. Payments in the Indian Residential Schools Settlement in Canada also had a less-than-ideal impact on victims.Footnote 146 Similarly, compensation might be seen as offending if seen as ‘paying off’ rape. The judgment granting damages might seem like a ‘forced sale’, resulting in a devaluation of life, health, bodily integrity, or emotional suffering:
when it is the wrongdoer who chooses whether, when, and – to a large extent – at what price injury will be inflicted … Money damages can never fully compensate for personal injuries that result in death or severe disability. Translating such losses into dollars and cents … demeans the individual rights at stake.Footnote 147
In these cases, collective procedures may allow courts to order a type of collective remedy, such as commemoration, research aimed at a better historical understanding, or free services for the victims and their families (all remedies that lack strict individualisation), when these might better serve the goal of remedies, even when remedies are construed in a strictly individualist reading. On the other hand, it is the definitive closure of a matter by compensation that makes collective procedures attractive to defendants: they can be freed from future claims by agreeing to a one-time award.
In conclusion, aggregation, which may at first glance seem to be a mere question of numbers, will result in a qualitative change that might determine outcomes and contribute to deterrence. Allowing claims to be litigated in an aggregated fashion can broaden the scope of the application of substantive rights. Courts will be more likely to discover and address patterns of rights violations as opposed to isolated cases or acts.Footnote 148 The class action literature recognises the transformative potential of procedural rules allowing aggregation,Footnote 149 which often changes the content of the underlying substantive rights.
H. Collective Procedures and Improving the Judicial Process by Enhancing Coherence and Efficiency
Listing the advantages and disadvantages of class action in general,Footnote 150 Judge Jack B Weinstein discussed the reduction of duplication, in discovery and other procedural aspects, including appeal. This allows a judge to have a more holistic view of the case,Footnote 151 helps in consistency and facilitates closure (through a single judgment or facilitating global settlements). Consistency—equal results—will satisfy a basic sense of justice about similar cases being decided alike. On the other hand, defendants might benefit from the fact that their liability is more calculable, or at least appears as ‘a single fair punitive damage amount instead of repetitive and overlapping punishment’.Footnote 152 The wider public also benefits from aggregation, as ‘class actions serve broader public interests by effectively remedying and deterring civil rights violations and especially systemic discrimination’.Footnote 153
Consistency is served when the result of and liability for widespread damages are judged in one lawsuit, rather than through a series of cases. This is especially so with public law litigation. Brandon L Garrett argued that in the case of developing constitutional values, ‘[b]igger lawsuits may sometimes be better’ than a purely individual approach: ‘If constitutional litigation becomes a purely solitary affair, sporadic cases may have an outsized impact, but in an ad hoc way that provides poor notice to government officials. Aggregation can improve clarity, legitimacy, participation, and representation.’Footnote 154
Consistency does not only mean that the same standards are applied to all defendants found liable for a particular violation, or that the same types of remedies and amounts of damages are awarded, but also that there is a hierarchy of claims, and that some payments should be made before others. Such considerations are decisive in the case of limited funds. Budgetary constraints are a legitimate concern with respect to claims for widespread violations, especially in the context of transitional justice. Under traditional judicial treatment, early claims might end up consuming the funds available, assuming that there are available funds in the first place—a central concern in the practice of mass violations claims. Claims aggregation, a measure used in class actions, aims at solving this problem, by denying exclusive preference to claims made prior to other claims.
Aggregation and economies of scale allow for more focused and better funded work on discovery and legal strategies. Aggregation can improve legitimacy through greater participation, access to information, better representation and discovery, as well as allowing for a more effective use of resources.Footnote 155 Aggregation can level the playing field for plaintiffs with fewer resources who might lose out if forced to pursue individual litigation. Instead of favouring ‘the most assertive ones, those with the highest education and sometimes the most wealthy’Footnote 156 collective procedures can benefit the entire victim group. ‘Aggregation may result in greater equality in results.’Footnote 157 If we are concerned with vulnerable group members, this is a key benefit.
III. CONCLUSION: LIMITS, CHALLENGES AND BENEFITS
Collective procedures present promising opportunities for the better implementation and enforcement of minority rights. They can contribute to empowerment by giving voice and weight to victims and by allowing claims that do not fit the strictly individualist framework to be legally cognisable. They can provide balance to majority biases that misrecognise claims and their contexts. They present a set of cases and victims and reduce the likelihood of claims being thrown out simply because courts are unwilling to engage with the broader context that makes violations apparent, including, among other things, statistical evidence. The resulting broader view allows courts to shift the burden of proof for individual claims, even where the legislature has not provided for that rule. Collective procedures can boost minority claims by relying on aggregation and economies of scale in representation, discovery and organisation alike. In addition, by distributing any remedies awarded across the entire group, including its less affluent members, collective procedures remediate equality claims in a manner that also acts against internal inequalities within the group.
The procedural approach achieves these goals without upsetting the overall individualist framework of the legal system. Admittedly, collective procedures are sometimes seen as antithetical to party autonomy because they do not allow those concerned to have their days in court. A proper reading, however, reveals how this criticism applies to both individual and collective actions: individual litigation can bring about changes touching upon individual interests not represented in the litigation. In contrast, collective procedures have built-in guarantees for assessing the fairness of representation, with room for acknowledging and accommodating variation within the claimant group.
Another concern posits collective responses outside the scope of proper judicial action and voices a fear of the politicisation of courts. Again, we should begin by acknowledging that rights enforcement happens in a political context. Public law remedies often require policy reforms and action by political bodies. Similarly, human rights litigation tends to seek broader political changes, regardless of whether the underlying procedure is individual or collective. Collective procedures make this aspect more apparent, forcing courts to deal with it more consciously.
A related criticism is that courts cannot cope with complex patterns of violations. However, experiences with collective actions show that they can help courts design remedies that effectively address complex and widespread violations. This includes combining collective and individualised remedies, which also addresses the criticism that collective procedures disregard individual variation and concern for individual justice. We have seen that complex damages resulting from losses of life and culture, or oppression resulting in torture and illegal detention can indeed be addressed in a judicial setting. As part of a collective procedure, tools such as statistical sampling can serve consistency and judicial efficiency, as well as mitigating the problem of limited funds.
One could reject collective procedures as a US peculiarity and a tool to be confined to specific areas of law, such as competition law. It has been seen, however, a growing acknowledgment in other jurisdictions, including the ECtHR, that effective implementation of human rights should include comprehensive responses to mass phenomena. The alternative is not only judicial logjam but a denial of justice. Individualist selectivity is problematic not only when the filtering described reflects an inherent difference. If such an individualistic approach arbitrarily neglects values and interests, that will, in turn, call into question the basic functioning and legitimacy of the legal system.
Collective remedies can extend the law's ability to recognise legitimate claims in two interrelated ways. First, it allows us to see that collective forms of remedies can be applied in more areas than is usually assumed. Second, where they do (or should) apply, they can provide benefits that are not available under a strictly individual scheme.
What the argument does not claim is that a collective remedy will always be superior. Many minority claims will still be litigated via individual lawsuits, actio popularis and representative action. Collective procedures should be seen as complementary, expanding the scope of the judicial enforcement of minority rights.
The call, in this article, to allow minority rights litigation to reap the benefits of collective procedures comes with another caveat. As much as judicial sanctions require some level of political commitment to rights and the rule of law—short of which legal guarantees will make little difference—judicial (and quasi-judicial) avenues cannot cover all aspects of minority rights. Struggles for self-government can well be phrased as a matter of rights, but this goal is seldom reached through judicial enforcement.
All this means that lawmakers would be well advised to adopt a framework that allows for collective procedures in minority rights enforcement, particularly when it is politically difficult to strengthen minority rights through substantive—non-procedural—measures.Footnote 158 This article could not explore the concrete forms and technical details of what specific rules this requires, since that would depend on the specificities of the given jurisdiction. What the overview did show is that such a move is an appealing option for bridging the gap between minority claims that include collective rights and legal systems that reject the legal recognition of minorities as groups.
There have been calls to refocus the global struggle for human rights on core legally binding obligations and to rein in perceived attempts to answer every social problem with an appeal to human rights law.Footnote 159 More specifically for minority rights, it might make sense to work towards equality in areas that do not require major shifts such as the recognition of new collective or group rights.
What collective procedures offer is the opportunity to reap many of the benefits of the collective approach through the existing platform of individual rights. These procedures allow us to sidestep controversies around the expansion of rights and instead to focus on ensuring fundamental human rights guarantees for minorities by extending effective remedies to a more complete group of victims, while also contributing to optimal deterrence and a decrease in violating practices as a result.
The most important innovation that this approach could bring is its transformative potential: just as class actions for faulty products and services call attention to the full scope of damages, minority rights advanced in collective procedures can transform our vision of what violations do, what responses are due and, ultimately, what these minority rights are. What starts as a technical and procedural solution goes a long way in transcending the individual/collective minority rights divide, bringing us closer to the type of equality that is the promise of democracies and rule of law regimes.
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