Strategic Litigation CRINMAIL 4:

In this issue:

To view this edition of CRINMAIL online, click here.

Strategic Litigation and Economic, Social and Cultural Rights

In preparation for the entry into force of the Optional Protocol to the International Covenant for Economic, Social and Cultural Rights (OP-ICESCR), which provides for a complaints mechanism under the Covenant, ESCR-Net - the International Network for Economic, Social & Cultural Rights - convened a workshop in mid-October on strategic litigation in support of the Optional Protocol and economic, social and cultural rights in general.  The workshop gathered lawyers, academics, and other human rights experts from around the world to develop a strategy for advancing these rights inside and outside the courtroom. 

Sessions covered issues ranging from case selection and substantive legal arguments to possible remedies and challenges for ongoing monitoring and enforcement, all with the aim of offering advocates strong and effective support in their work to guarantee greater respect for economic, social and cultural rights. Read resources and materials related to the workshop here.

3 down, 7 to go

The OP-ICESCR was adopted by the UN General Assembly in December 2008, and has since been signed by over 30 countries and ratified by Mongolia, Ecuador, and Spain.  The Protocol will take effect when 10 countries have ratified, and a campaign for ratification is currently under way. 

In the meantime, for more information about the Optional Protocol, read the Inter-American Institute of Human Rights and the International Commission of Jurists' Commentary on the Optional Protocol here ; or for an overview or economic, social and cultural rights violations and potential remedies, read Amnesty International's report "Make our Rights Law: Enforce Economic, Social and Cultural Rights" here .

Crystal ball for children's rights?

The OP-ICESCR workshop marks the beginning of discussions to create a Strategic Litigation Initiative on the subject, and promises to contribute much to ensuring that these rights have their day in court.  It also comes at a time when children's rights are similarly in the legal spotlight, as progress towards a complaints mechanism under a third Optional Protocol to the Convention on the Rights of the Child marches on. 

In December, the UN Working Group tasked with drafting a CRC complaints mechanism will assemble in Geneva, and it is possible that a finalised Optional Protocol could be open for signature as early as next year.  Read the draft Optional Protocol here; read more about the Campaign for a Complaints Mechanism here.

CRIN believes that all children must have full access to justice if their rights are to be respected, and is confident that a CRC complaints mechanism will offer an opportunity to expand this access on all levels.  Read more about children's rights in the courtroom in CRIN's Guide to Strategic Litigation here.

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LATEST NEWS AND REPORTS

Inhuman sentencing campaign

CRIN has launched a campaign calling for an end to the inhuman sentencing of children.  Children in conflict with the law around the world are beaten, killed, and locked up for life under laws and sentencing regimes that violate their human rights, and the campaign seeks both an end to these practices and the full legal prohibition of all forms of inhuman sentencing to ensure that they do not return.  

As part of this campaign, CRIN has produced a briefing paper on the Human Rights Standards of Inhuman Sentencing, which provides text and commentary on core international and regional human rights instruments, including a section on relevant case law.  

CRIN has also made a number of commitments to furthering the inhuman sentencing campaign on the international and regional levels, in particular to support national campaigns on the issue.  Among other things, CRIN promises to provide advocates with information and advice on using domestic, regional, and international legal action to challenge inhuman sentencing laws when governments do not acknowledge or act on their human rights obligations.  Read all of CRIN's commitments here. 

Life imprisonment without parole - another step forward for children in conflict with the law in the United States?

Meanwhile, in the United States, where children can be lawfully sentenced to life imprisonment without the possibility of release in 43 states, the Wisconsin Supreme Court has agreed to review such a sentence imposed on a 14 year-old boy.  The Equal Justice Initiative, counsel for the child, argues that the sentence is unconstitutional cruel and unusual punishment, and follows on the heels of a U.S. Supreme Court decision earlier this year barring sentences of life imprisonment without parole for non-homicide juvenile offenders.

Click here to read CRIN's editorial on inhuman sentencing in the United States.

U.S. Courts close their doors to human rights abuses

 In September, a federal Court of Appeals panel in New York has found that corporations cannot be sued by foreign nationals for human rights violations abroad under international law.  Under the Court's reasoning, only individuals may now be sued under the Alien Tort Act, which grants U.S. courts jurisdiction to hear violations of international law. 

The decision breaks with the longstanding practice of extending Aleitn Tort Act jurisdiction to corporations, and marks an end - for now - to the claims brought by a group of Nigerians against Shell for the company's alleged complicity in the torture and killing of dissidents in the country in the 1990s.  It is also in line with a controversial report published by the U.S. Chamber of Commerce, a group representing business interests, entitled "Think Globally, Sue Locally." 

Read the report here; read a response to the report from EarthRights International here; and follow the ongoing debate at Business & Human Rights here.

Another chance at bat?

It is speculated that the case may be reheard by the full Court of Appeals or the Supreme Court in the near future.  In the meantime, cases against corporations for human rights abuses abroad have already begun to be dismissed, including a lawsuit seeking compensation for victims of forced child labour on rubber plantations in Liberia. 

Read the full decision, Kiobel v. Royal Dutch Petroleum, here. Read editorials from EarthRights International and the New York Times on what the decision means for human rights here and here . 

Roma rights hit the press
In July, the European Roma Rights Centre published the first issue of its new Roma Rights journal.  The issue focuses on the Implementation of Judgments, or - often  more aptly - the lack thereof.  Pieces address the follow-up, fallout, and continuing supervision of judicial decisions enforcing Roma rights, including those handed down by the European Court of Human Rights.  Among many other judgements under the microscope, articles address the European Court's groundbreaking decision in 2007 that Roma children in the Czech Republic had been wrongly channelled into special education classes as a result of racial discrimination. For the full Roma Rights issue, click here.

Calling all children's rights lawyers in Central/Eastern Europe
Interrights is looking for practising lawyers to attend a Litigation Surgery on the Right to Education in Central and Eastern Europe.  The workshop will be held in London on 9 and 10 December, with the objective of identifying and providing substantive support to cases on the right to education that could be pursued before domestic, regional or international judicial bodies and to build relationships with lawyers undertaking these and other similar cases.  Apply to particpate here. 

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CASE ROUNDUP

 Corporal punishment - Bad news, Good news
Go right ahead in the UAE...
The UAE's highest court ruled that a man may physically discipline his wife and children under Islamic law , as long as he has previously tried other methods of punishment and does not leave any marks on the skin.  Although the Court in this particular case found that the man in question had exceeded his authority given the severity of the beating inflicted on his wife and the older age (23) of his daughter, the ruling has given the green light to corporal punishment of women and children in the home.  There is disagreement about the soundness of the judgment, however, with some Islamic scholars claiming that it is "absolutely unlawful to abuse a wife, injure her, or insult her dignity."  

...but check your switch at the schoolhouse door in Bangladesh 
In July, the High Court ordered the government to put an end to corporal punishment in schools.  In August - in line with the judgement - the government publicly denounced the widespread corporal punishment of children as "inhuman and merciless" and followed suit by announcing a ban on the practice in all educational institutions, including madrassas.

Scaling up damages in India
In late August, India’s Supreme Court allowed a government petitition that seeks harsher punishment against officials of Union Carbide Corp.’s local unit convicted of negligence in the infamous 1984 Bhopal toxic gas leak that killed thousands.  The courts' and government's handling of the case has been the subject of much controversy this year, after initial charges of homicide were reduced and compensation to victims and surviving families proved inadequate.

Chilly reception for a power company in Iceland
The parents of an Icelandic child suffering from leukaemia are investigating their legal rights in preparation for a lawsuit against a power company which they blame for their five year-old daughter’s illness. The parents want to sue Reykjavik Energy following a test which revealed their house has much higher than recommended electromagnetic charge readings. Unusual electromagnetic readings have been found in the homes of three Icelandic children with leukaemia.

Police violence against indigenous children in Chile
The Anide Foundation and the NGO Network for Children and Adolescents in Chile are demanding a stop to state violence against the indigenous Mapuche children.  The Mapuche are an indigenous people in Chile and Argentina, and the call for action cites high incidence of Chilean police violence against children living within the community.  There is fear that the situation is worsening amid stricter anti-terrorism laws, under which four children have already been charged in 2010.   

Chevron fighting dirty in Ecuador?   
In the latest chapter of an ongoing multi-billion dollar lawsuit seeking to hold Chevron responsible for extensive environmental damage in Ecuador, the company has alleged that the persons bringing the case and their legal counsel may have committed fraud.  Chevron is now seeking to prove in U.S. courts that the main trial in Ecuador has been corrupted by judicial misconduct and government interference.  To support these assertions, Chevron has - among other things - called the authenticity of certain environmental reports commissioned by the plaintiffs into question.  The plaintiffs' lawyers deny these allegations, and the fight continues.  Read CRIN's editorial about children's right to a clean environment here.

African Commission takes a stand against Sudan
In a landmark decision, the African Commission on Human and Peoples’ Rights has ruled against the Sudanese government, accusing it of committing a wide range of human rights violations against the people of Darfur.  The ruling, released on July 29, was made in a case brought by the Centre on Housing Rights and Evictions (COHRE) in 2005.  In its decision, the African Commission found Sudan responsible for large-scale forced evictions and violations of a wide range of human rights, including the rights to life, housing, food, health, judicial remedies and to be free from torture, including rape. The Commission also issued notable decisions on the right to water and the collective right to economic, social and cultural development, as contained in the African Charter on Human and People's Rights.

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