Strategic Litigation CRINMAIL 3

In this issue:

EDITORIAL: Children's right to a clean environment

With the oil spill in the Gulf of Mexico dominating headlines for the past three months, it is difficult not to think of the impact it will have on children.  As the risk of exposure to harmful chemicals continues to rise and beaches remain closed for the summer, it has become increasingly clear that the effects of the spill will extend far beyond a temporary swimming ban and linger for many, many years.  Indeed, the damage to the environment is long-term at best, and the staggering loss of marine life threatens to permanently cripple the region's ecosystem.  

Sadly, this oil spill is not alone in terms of large-scale environmental disasters, and children around the world face the devastating consequences of industrial accidents and exploitation.  Although the CRC does not specifically address children's right to a clean environment, it is nonetheless apparent that pollution and destruction of habitat negatively impact on children's lives and violate countless provisions of the Convention.  Among the many other rights guaranteed to children under international human rights treaties, it must be remembered that children have the right under the CRC to:

• Life, survival and development (Article 6)
• The "highest attainable standard of health", including access to emergency services and primary health care (Article 24)
• A standard of living adequate for "physical, mental, spiritual, moral and social development" (Article 27)
• Rest, leisure, recreation and full participation in cultural life (Article 31) 

Despite the CRC's over 20 years in force, corporations and governments have continued to breach children's right to a clean environment with relative impunity.  Even where cases have succesfully been brought to hold polluters responsible and deliver remedies to victims, results have not always been satisfactory.  Nevertheless, there have been landmark decisions as well, forcing those in power to accept their role as stewards of the environment for generations to come.  CRIN has collected a number of relevant legal actions brought to defend children's right to a clean environment, as presented below, and believes firmly that children must be granted full access to justice if these and other violations are ever to be stopped.

Old fires reignited in India

In June, a court in central India convicted top executives and their corporate employer of crimes related to the 1984 industrial disaster at a chemical plant in Bhopal that killed thousands.  The employees were found guilty of negligence, endangering public life, and causing hurt and subsequently sentenced to the maximum allowable punishment by law - two years in prison and fines of roughly 2,000 USD each. 

Almost 4,000 people died in or immediately following the disaster, more than 10,000 other deaths are thought to have been caused by related illnesses, and hundreds of thousands of survivors face adverse health effects like shortness of breath, cancer, loss of vision, fatigue, and heart problems. 

Despite the dramatic scale of the loss of life and continuing ill effects, the International Campaign for Justice in Bhopal reports that survivors have received an average of just 500 USD each.   Indian officials have been heavily criticised for failing to take a hard line with the company, and many advocates have decried the government's reluctance to hold foreign companies responsible for fear of discouraging outside investment.  Notably, the former chairman of the U.S. corporation that owned the plant at the time of the disaster remains at large. 

Slick moves to escape liability in Nigeria

In the Niger Delta region of Nigeria, oil spills have ravaged the environment for the last 50 years.  Indeed, according to a report from the New York Times, "perhaps no place on earth has been as battered by oil", and once vibrant wetlands have been rendered lifeless.  

Environmental protesters have been beaten and suppressed, fisherman have lost their livelihoods, and small children are swimming in increasingly polluted waters.  Oil giants Shell and Exxon-Mobil have admitted minor spills, but blame sabotage and theft for the large majority of the damage. 

In 2008, the Niger Delta youth movement sued five major oil companies and the federal government in a Federal High Court in Abuja amid allegations of flaring gas and pumping noxious substances into the atmosphere.  Sadly, the case has received little attention in the media since its filing and both oil and pollution continue to flow.

Disaster of nuclear proportions in Russia

In the five decades that have passed since one of the largest nuclear disasters in world history struck Russia's Mayak nuclear power plant, local communities have suffered greatly from the effects of radiation.

Beginning in 1957, children from as young as fourth grade were forced to assist with their bare hands in the clean-up of the toxic waste, and those who did not die soon after the accident have lived to face serious health problems.  Even today, radioactive waste continues to flow through the nearby Techa river, placing now three generations in peril with unusually high death rates and nearly half of all babies born with serious genetic defects.

In recent years, victims of these disasters have begun to seek compensation in Russian courts, including a third generation plaintiff with a crippling blood disease whose grandparents were evacuated from a polluted zone. Looking to the Russian Constitution and Civil Code, a court ruled in favor of this plaintiff and awarded “moral damages.” Several other victims have sued and won similarly small but precedent-setting judgments, opening the door for more victims – including those from future generations – to seek reparations in the courts.

Victory still blows like wind through the trees in the Philippines

In 1993, a group of children in the Philippines - including those of renowned environmental activist Antonio Oposa - brought a lawsuit in conjunction with the non-profit Philippine Ecological Network to stop the destruction of the fast disappearing rain forests in their country.

The plaintiff children based their claims in the national Constitution, which recognises the right of people to a “balanced and healthful ecology” and the right to “self-preservation and self-perpetuation."  Oposa also raised the idea of “intergenerational equity” before the court, which is the notion that natural resources belong to people of all ages and that if adults were to harvest all of a country’s resources, they would be stealing from their children, their children’s children, and all future generations.

The Supreme Court ruled in favor of the children, issuing several groundbreaking statements that still resonate nearly two decades later.  Among other things, the Court found the right to a clean environment and to exist from the land, and - perhaps more importantly - a justiciable intergenerational responsibility to maintain a clean environment, meaning that each generation has a responsibility to the next to preserve the environment.

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CASE ROUNDUP

The end of early marriage in India?: 
The Delhi High Court ruled that child marriage is a violation of human rights and ordered that a 40 year-old man refrain from consummating his marriage with a 17 year-old.  The Court stated that "in actuality, a child marriage is a violation of Human Rights, compromising the development of girls and often resulting in early pregnancy and social isolation, with little education and poor vocational training reinforcing the gendered nature of poverty."

In the wake of this and several other high-profile cases of child marriage, including a 12 year-old who obtained an annulment from her 80 year-old husband in Saudi Arabia, Indian Lawmakers are now considering a proposal to set the minimum age of consent and minimum age for marriage at 18 for women and 21 for men.

Forced disappearances in El Salvador take centre stage: 
The Inter-American Commission on Human Rights announced that it has filed a case against El Salvador in the Inter-American Court of Human Rights involving the forced disappearances of six children.  The whereabouts of five of these six children remain unknown, and the government has yet to clarify the circumstances surrounding the disappearances, let alone identify or sanction those directly responsible.  The Commission alleges that El Salvador has violated the rights to life, personal integrity, personal liberty, and judicial protection, among other things.

Separate is not equal in Hungary: 
The Hungarian Supreme Court awarded compensation to five Roma children who had been forced to attend special primary schools in the northeastern part of the country.  The case was brought under the 2004 Equal Treatment Act, which demands equality and non-discrimination in education.  Each of the five children received 100,000 HUF (around 450 USD), and the Hungarian NGO Chance for Children Foundation expects that similar cases brought in light of the ruling could benefit up to 150,000 students.

Fight to keep the faith in Italy: 
Italy continues to fight against a ruling from the European Court of Human Rights that placing crucifixes in the classroom violates students' right to freedom of religion.  The case was brought by an Italian mother who wished to raise her children in a secular environment, and the Court awarded her 5,000 EUR in damages this past November.  The Grand Chamber of the Court heard Italy's appeal earlier this month, and will issue a decision at a later date.

Human rights lawsuit gets green light in the United States:  The United States Supreme Court has allowed a case to proceed against pharmaceutical company Pfizer concerning the company's alleged nonconsensual drug testing on Nigerian children in 1996.  Pfizer asserts that the experiments - which resulted in blindness, deafness, paralysis, brain damage, and even death - were conducted with full consent and knowledge of both the children and their guardians. The case, filed under a statute empowering federal judges to hear civil lawsuits for violations of the "law of nations", is now set to proceed to trial.

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LATEST NEWS AND REPORTS

Access to justice

The International Commission of Jurists has published reports on access to legal remedies for corporate human rights abuses in Poland and South Africa.  The studies - part of the series "Access to Justice: Human Rights Abuses Involving Corporations" - examine criminal prosecution and civil remedies, while also presenting obstacles to the pursuit of effective justice.

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Legal materials for young people

UK:  The Children's Legal Centre has recently launched a new website to provide young people in the UK with a wide range of information about their legal rights and laws affecting them.  Designed with the help of young people, it seeks to cover all aspects of children's lives, including education, health care, discrimination, policing, age-based laws and leaving home.

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Call for Expert

The African Commission on Human and People's Rights (ACHPR) has issued a Call for Nomination of an Independent Expert Member from North Africa to serve on the African Commission's Working Group on Extractive Industries, Environment and Human Rights Violations in Africa.  Among other things, the Expert sought will "undertake research on the violations of human and peoples' rights by non-state actors in Africa."  The deadline for nominations is August 31, 2010.

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THE LAST WORD

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