Children in Court CRINMAIL 8:
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News from CRIN
Children in Court CRINMAIL: New name, same content
This marks the first edition of the Children in Court CRINMAIL, which will replace the Strategic Litigation CRINMAIL. While the content of the newsletter will remain the same, we realise that the focus of this CRINMAIL has always been broader than strategic litigation. We will continue to cover court cases, legal advocacy campaigns, news stories, publications and other resources that relate to children's rights, and we hope that you continue to share these with us by contacting [email protected].
OPSC Legal Reform Project launched
This fall, CRIN launched a new project to examine the implementation of the Optional Protocol on the sale of children, child prostitution and child pornography (OPSC) in national law around the globe. Looking at how the OPSC has influenced legal reform in individual countries across different regions, we hope to inspire advocates in these and other jurisdictions to promote national legislation and policies that better respect the rights of children under the OPSC. Through this, we also seek to encourage positive legal change in the ways that our justice systems address child victims of exploitation and violence in general. So far, we have prepared country reports on Poland, Japan and Morocco. Visit the project homepage here.
Child-friendly justice in the air
In November, CRIN attended a conference organised by the African Child Policy Forum and Defence for Children International to bring together children's rights advocates from around the world and discuss child justice in Africa. The conference aimed to raise awareness about international and regional child rights standards on children's access to and treatment in justice, to identify and share good practices in child-friendly justice, and to promote and contribute to the development of African Guidelines on Child-Friendly Justice. Read more about the event here, and read conference documents including the draft Munyonyo Declaration on Child Justice in Africa, draft Guidelines on Action for Children in the Justice System in Africa, and the draft report “Towards Child-Friendly Justice in Africa” on the conference homepage.
For more information on child-friendly justice, read CRIN's updated Toolkit on Children's Rights and Child-Friendly Justice or visit CRIN's special page on Child-Friendly Justice offering the latest news and resources.
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Case Updates
Bad medicine for children's rights
This summer, pharmaceutical giant Pfizer began making payments to families of Nigerian children who died of meningitis following a controversial drug trial marred by allegations of lack of consent, inadequate documentation and medical malpractice. Compensation has been slow to arrive, however, and Pfizer has now been threatened with a lawsuit demanding prompt payment for valid claims. At the same time, other advocates have begun to voice concerns about a DNA testing requirement imposed on claimants - because many victims do not understand what DNA testing is and fear any further medical interaction with the drug company, some have opted to abandon their claims. Read the full story and learn more about the global testing of pharmaceutical drugs on children here.
Big business off the hook for human rights abuses?
In both the United States and United Kingdom, where many of the world's largest corporations are headquartered, it may soon get a lot more difficult to hold companies responsible for international human rights violations. In the U.S., lawsuits brought to address human rights abuses in Nigeria, Indonesia, Colombia, Argentina and Liberia are in jeopardy as the Supreme Court prepares to rule on whether foreign citizens are entitled to bring cases related to overseas human rights abuses in U.S. Courts. In the UK, a bill under consideration would severely restrict the legal costs that can be recovered from defendants after pursuing a successful case against them, making it virtually impossible for victims of rights violations to find a lawyer who can afford to represent them. Read more about these developments here.
Dirty Dealings in Ecuador and Nigeria
Several high profile cases that affect children's right to a clean environment continue to make their way through the courts. In the latest development in a lawsuit against Chevron over oil pollution in Ecuador, a U.S. court has now lifted a bar on enforcement of an $18.2 billion ruling against the company issued by an Ecuadorean judge. Nonetheless, the plaintiffs are not yet breathing a sigh of relief and have agreed not to collect these damages until the appeals process in Ecuador has been completed.
In other news, Shell has accepted liability for two massive oil spills in the Niger river delta region of Nigeria following a class action suit brought in the UK. The clean-up may take twenty years or more and could cost the company hundreds of millions of dollars, which will also include compensation for the loss of livelihood to affected members of the local community. The settlement has already sprung other villages in the heavily polluted region into action to seek similar relief from Shell, including a $1 billion case filed in the U.S. in October.
Worldwide gay rights litigation campaign under way
Last month, the Human Dignity Trust launched a strategic litigation campaign to overturn laws in about 80 countries that make consensual sexual activity between adults of the same gender illegal. The campaign plans to bring 5 to 10 cases globally every year, and is already off and running with a team of lawyers now supporting a challenge to a homophobic law in Belize and further lawsuits planned in Northern Cyprus and Jamaica before the end of the year. Relying in part on a ruling from the UN Human Rights Committee, the Trust will argue – among other things – that criminalising homosexuality is illegal under international law.
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Global Case Roundup
International accountability in sight for child sexual abuse?
Victims of childhood sexual abuse have asked the International Criminal Court to investigate the Pope and top Vatican officials for possible crimes against humanity. The request comes from the Center for Constitutional Rights on behalf of the Survivors Network of those Abused by Priests, which argues that the catholic church has maintained a "long-standing and pervasive system of sexual violence". The ICC prosecutor has received close to 9,000 similar requests in the past decade, but is unlikely to open an investigation on a request alone and matters are further complicated by the Holy See's failure to recognise the jurisdiction of the Court.
Regional run-down: Africa, Americas
This fall, the African Committee of Experts on the Rights and Welfare of the Child published its first ever decision on a communication in Institute for Human Rights and Development in Africa & Open Society Justice Initiative (on behalf of children of Nubian descent in Kenya) v. Kenya. The Committee found that Kenya had violated the rights of Nubian children to non-discrimination, nationality and protection against statelessness. Among other things, the Committee recommended that Kenya ensure that stateless Nubian children be given Kenyan nationality, implement its birth registration system in a non-discriminatory manner, and adopt a plan to guarantee the highest attainable standard of health and the right to education.
Meanwhile, the Inter-American Court of Human Rights is now set to hear a case against Colombia stemming from the 1998 Santo Domingo Massacre. The case relates to the Colombian Air Force's bombing of a village, which left 11 adults and 6 children dead and a further 18 adults and 9 children wounded. It is alleged that those responsible for the massacre remain at large as the Colombian Government had failed to conduct an effective investigation into the attack.
In other news from the Inter-American Court, the MERCOSUR governments of Argentina, Brazil, Paraguay and Uruguay have requested an advisory opinion on migrant children's rights. This marks the first time that a group of four member States has made such a request, in which they argue that assessing the situation of migrant children's rights is of the utmost importance in the quest to fulfil human rights in the region.
National news: Japan, Australia, India, U.S., Brazil
A ruling is expected later this month in a lawsuit filed in Japan by children in the Fukushima prefecture at continued risk of radiation exposure from the country's nuclear emergency. In November, the children lodged a complaint against Koriyama city asking the court, among other things, to evacuate them to areas with safe levels of radiation and to provide support for families who have already voluntarily evacuated.
In Australia, a High Court decision has stymied the government's plans for a refugee swap with Malaysia under which 800 asylum seekers were to be sent to the country over the next 4 years. Although both governments insisted that the swap provided all necessary human rights safeguards, the deal had been heavily criticised in light of Malaysia's poor human rights record in regards to the treatment of refugees. The head of the Australian Human Rights Commission was particularly vocal on the potential negative impacts a refugee swap might have on children, observing that “[i]t is very difficult to see how [the Immigration Minister] can be satisfied that it is in the best interest of an unaccompanied child to send that child to Malaysia, a country that is not a signatory to the refugees convention”.
In India, the Supreme Court has ordered the release of an offender who had been tried in an adult criminal court despite being only 16 years of age. The Court affirmed that a defendant may at any time during the trial and appeals process present evidence that he or she was under 18 at the time of the offence, and that – if this evidence is accepted – the defendant's case must immediately be forwarded to the Juvenile Justice Board.
There has also been much activity in courtrooms across the United States, where children have filed lawsuits demanding that schools tackle homophobic bullying and revise admissions criteria that discriminate against children with HIV. In the first case, six students in Minnesota sued to challenge their school district's policy of “neutrality” on issues of sexual orientation, which they claim has silenced teachers and miserably failed to keep antigay harassment in check. In the second, a boy in Pennsylvania has sued a boarding school that refused to allow him to attend because he is HIV-positive. The suit was filed on the eve of December 1st, the 30th annual World AIDS Day.
Also in the U.S., the Supreme Court has ruled that a suspect's age must be taken into account by police officers when determining when to inform that person about his or her legal rights. The case concerns the interrogation of a 13-year-old boy by a uniformed officer and school officials behind closed doors, who only advised the child of his rights after he confessed to committing a number of recent neighbourhood burglaries. “The pressure of custodial interrogation is so immense that it can induce a frighteningly high percentage of people to confess to crimes they never committed,” wrote the Court, a “risk that is all the more troubling – and recent studies suggest, all the more acute – when the subject...is a juvenile.”
Lastly, four women from Brazil have filed a complaint in a U.S. court alleging that they were coerced to serve as child prostitutes for Americans on Amazon fishing expeditions. The suit seeks to recover damages from a businessman under the Victims of Trafficking and Violence Protection Act 2000, and is the first of its kind against a putative sex tour operator. The defendant in the case also faces potential charges from ongoing criminal investigations into the matter in both Brazil and the United States.
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New Legal Resources:
Publications
A review of the international case law concerning children affected by armed conflict is now available on CRIN. The review presents and analyses key decisions from relevant international judicial bodies on the subject matter, highlighting that “[d]espite all the progress made in this field, the situation of children affected by armed conflicts remains particularly critical” while also noting that “international jurisdictions developed an interesting case law in this area which deserves more attention”.
Also on the subject of children and armed conflict is a new publication from the International Center for Transitional Justice, which examines how and to what extent transitional justice approaches have engaged children and considered their needs and perspectives, analysing the experience of truth-seeking mechanisms, criminal justice, reparations, and institutional reform. It analyses experiences of four countries – Liberia, Democratic Republic of Congo, Colombia and Nepal – and identifies some key lessons on children’s participation in transitional justice measures.
UNICEF, UNDP and UNODC have jointly authored a new guide on Child-Friendly Legal Aid in Africa. The guide aims to explore the legal, policy, and practical issues involved in creating and maintaining “child-friendly” legal aid programmes in Africa. In so doing, it both discusses the key aspects of child-friendly legal aid in formal court proceedings and also makes preliminary observations about the provision of child-friendly legal aid in traditional justice systems.
The Australian Human Rights Commission has published a guide to using the Optional Protocol to CEDAW and other international complaints mechanisms, offering lawyers, advocates and women experiencing violations of their rights practical guidance on how to seek redress for alleged violations of women’s human rights. The guide includes key documents and identifies further sources for information and assistance to women considering using international complaints mechanisms.
And finally, the African Commission on Human and Peoples' Rights has formally launched its Principles and Guidelines on Economic, Social and Cultural Rights and Reporting Guidelines on Economic, Social and Cultural Rights. The Principles and Guidelines provide detailed guidance to States on drafting and implementing development policies on ESC rights and also provide civil society, as well as official monitoring bodies, with benchmarks against which national policies can be assessed.
International NGO INTERIGHTS hopes that the Principles and Guidelines will be used both by national ministries and by advocacy and litigation NGOs in giving life to the various economic, social and cultural rights guaranteed under the African Charter on Human and Peoples' Rights at the national level. The Principles and Guidelines can also be used by litigation NGOs at the regional and national level with the aim of both improved redress for victims and progressive development of standards. At the same time it is envisaged that increased litigation of economic, social and cultural rights will allow the Commission to apply the Principles and Guidelines to individual facts and further develop and explain the protection of ESC rights under the Charter.
Legal databases and other resources
Advocates for International Development (A4ID) has established a new free to access online resource centre. The resource centre is a searchable public library of best practice, research and training on the key issues and debates related to law and international development. Among other things, available resources include introductory legal guides, notes on best practice, video and audio podcasts, research reports, and interviews and reports by experts on specialist law and development topics.
The Belgium-based Children's Rights Knowledge Centre has launched the first part of a new children's rights database. At present, the database contains legal instruments and important policy documents on children’s rights at the international, regional, national and local levels, and can be accessed in English and Dutch.
The Institute for Human Rights and Development in Africa is celebrating the 10,000th visitor to its African Human Rights Case law Analyser. The Case law Analyser offers the most exhaustive access to the decisions of the African Commission on Human and Peoples’ Rights in English and French. It not only lists existing relevant human rights case law, but also aims to offer tools to enable effective legal analysis.
The Council of Europe has released the latest issue of its Human rights information bulletin covering the period from March to June. The bulletin includes discussions of new key decisions from the European Court of Human Rights and reports on the execution of previous Court judgments, as well as general updates on relevant human rights law and policy.
And last but not least, the South African Department of Justice and Constitutional Development has developed an online FAQ on the country's Children's Act. The website seeks to inform the public, in particular children, about matters covered by the country's most comprehensive piece of children's rights legislation.
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