Strategic Litigation CRINMAIL 5:

In this issue:

To view this edition of CRINMAIL online, click here.

Monitoring and Enforcing Human Rights Decisions

As much work as it is, getting the courts to recognise that a child's human rights have been violated is only the beginning. Indeed, the tatse of victory can be sweet and good decisions should undoubtedly be shared and celebrated, but a judge's words alone are little consolation to victims who continue to endure violations of their rights. Particularly in the case of children, whose sense of time passing is often much more acute than adults, translating a positive decision into a meaningful outcome on the ground is a matter of urgency.  

In this vein, a number of organisations have published reports over the past several months to highlight the importance of follow up in the wake of major human rights decisions. The reports offer different perspectives and concrete examples of judgments that have required significant investment in monitoring and enforcement. As advocates, they both provide creative inspiration for our desire to bring lasting change and remind us that our work is never done.

OSJI

The Open Society Justice Initiative (OSJI) has launched a report on the implementation of international human rights decisions. Entitled "From Judgment to Justice", the report reviews the practical effects of judgments from the Inter-American, European, African and UN systems. The report includes recommendations to improve the effectiveness of each system and points of common concern across all international human rights mechanisms. Download the report here.

INTERIGHTS

To complement the OSJI report, INTERIGHTS' latest Bulletin aims to maximise the impact of strategic litigation. The issue focuses in particular on the practical aspects of bringing human rights decisions into effect, and includes many specific examples from cases on the domestic, regional, and international levels in Europe, Africa and the Americas. Articles highlight common challenges and suggest opportunities for improved enforcement, and also contains a selection of case summaries from the free International Human Rights Law Database on INTERIGHTS website. Read the Bulletin here.

Economic, social and cultural rights

The International Network for Economic, Social and Cultural Rights (ESCR-Net), the Center for the Study of Law, Justice and Society (DeJusticia), and the Norwegian Centre for Human Rights have published a report to present the discussions that took place at their Workshop on Enforcement of ESC Rights Judgments held in Colombia this past May. The report addresses conceptual issues in enforcing economic, social and cultural rights; factors that affect the implementation of judgments; strategies for increasing compliance; and plans for moving forward. Download the report here; find out more about the Project on Enforcement of ESCR Judgments here.

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CASE ROUNDUP

Victory for LGBT parents in the Americas one of many to come?

The Inter-American Human Rights Commission has challenged a Chilean court's order that a woman relinquish custody of her three children to her estranged husband because she is in a lesbian relationship. The Supreme Court of Chile had earlier affirmed the order on the basis that being raised by homosexual parents is harmful for children, a “long-discredited and unsupportable notion.” In the case – Karen Atala Riffo v. Chile - the Commission ruled that Chile had violated Ms. Atala's right to live free from discrimination, and urged the Government to adopt laws and policies to prohibit and eliminate discrimination on the basis of sexual orientation. Read the full story here; read the Commission's decision here.

To encourage others to bring cases like these, an advocacy toolkit has recently been published to assist activists around the world in using the Yogyakarta Principles on the Application of International Human Rights Law to Sexual Orientation and Gender Identity. The toolkit – an Activist's Guide to the Yogyakarta Principles – describes the creative ways that advocates have used the Principles to advance the rights of lesbian, gay, bisexual, transgender and intersex individuals. Among other victories, it discusses the 2009 decriminalisation of homosexual acts in India by the Delhi High Court. Download the Guide here.

Ecuador in the hot seat

Matters have gotten complicated for attorneys seeking to hold Chevron responsible for extensive environmental damage in Ecuador. Counsel for the plaintiffs in a $113 billion environmental lawsuit against the company, DC-based law firm Patton Boggs, claim that Chevron has resorted to bullying and intimidation techniques and “will not be content until there remains no attorney left in [the United States] who will dare provide representation to the Ecuadorian plaintiffs, lest their good name be dragged through the mud.” Despite Chevron's having fought to have the case heard in Ecuador, Patton Boggs contends that the company is now desperate to throw a wrench in these proceedings as it no longer expects a favourable outcome. In the latest turn of events, Chevron filed what Patton Boggs claims are bogus conflict of interest charges against the firm. Read the full story here.

Also in Ecuador, environmentalist organisations from India, Nigeria, Mexico and Ecuador brought a lawsuit in November against BP following the company's catastrophic oil spill in the Gulf of Mexico. According to the complaint, Ecuador is “the only country that recognizes nature as a subject and protects its rights in the Constitution.” The organisations do not seek damages, but instead hope to use this provision to draw attention to the urgent need to change the energy system on a global level. The Court accepted the filing and will now decide whether it has jurisdiction to hear the case. Read the full story here; download the English language version of the complaint here.

Take a number in Côte d'Ivoire

According to Amnesty International, thousands of people in Côte d'Ivoire are still waiting to receive compensation from an out-of-court settlement with oil-trading company Trafigura. The claims date back to August 2006 when a ship chartered by Trafigura brought toxic waste to Abidjan, where it was then dumped in locations around the city in what Amnesty calls a “human rights tragedy”. More than 100,000 people were forced to seek medical attention, with at least 15 deaths reported. In September 2009, an English court approved a $45 million settlement between Trafigura and a group claiming to represent some 30,000 victims. There have been questions surrounding the legitimacy of the victims' representation, and the payment of claims has been marked by numerous delays and a lack of transparency since it began last February. Read Amnesty's public statement here.

Dirty drugs and discrimination in the United States

British pharmaceutical company GlaxoSmithKline has paid $750 million to settle criminal and civil complaints in the United States over, among other things, having knowingly sold contaminated baby ointment over a period of years. This marks a growing trend of whistle-blower lawsuits against drug makers, who have been accused of misleading patients and defrauding the federal and state governments that foot much of the bill for health care. Read the full story here.

In other news from United States courts, a large network of private schools has paid $215,000 to settle a 2009 lawsuit alleging discrimination against children with disabilities. The complaint, filed by the U.S. Department of Justice, alleged that schools operated by Nobel Learning Communities, Inc. (NLC) had excluded children with autism, Down Syndrome, ADHD, and developmental delays from its programmes in contravention of the Americans with Disabilities Act. “All children should have an equal opportunity to attend any school for which they qualify, and schools must make reasonable modifications to policies, practices or procedures in accordance with the law,” said the acting U.S. Attorney for the case. As part of the settlement, NLC agreed to pay compensation to the children who had been excluded and take formal measures to ensure that its schools are open to children with disabilities. Read the full story here.

Get back to work in Uzbekistan, Argentina

In October, the European Center for Constitutional and Human Rights and its partner organisations filed complaints with the Organisation for Economic Cooperation and Development (OECD) against four cotton dealers in three countries who trade in cotton from Uzbekistan, where, according to the complaint, "the industrial system of harvesting cotton is founded on the systematic and exhaustive use of child and forced labour." This past September, evidence again surfaced that government officials had closed down schools and forced children into the fields, giving way to civil society's demands that the EU cease providing preferential tariffs for the import of Uzbek cotton. The apparent human rights violations sparked sharp rebukes from German officials, and calls were made for the UK government to investigate British cotton traders. Most recently, however, the EU has been slated by activists for hosting a visit from Islam Karimov, Uzbekistan's de facto dictator. Follow CRIN's coverage of the issue here; read more about forced child labour in the cotton harvests of Uzbekistan here.

Meanwhile, in Argentina, a complaint was filed in November against the Nuestra Huella agricultural group alleging serious health and labour law violations on behalf of a 7-year-old child working on one of the company's farms. These and other violations were documented in photographs published by national newspaper Página/12 in 2008, which revealed that families employed on the farms work in conditions of slavery and that children are forced to come into regular contact with toxic chemicals. Sadly, the young subject of the complaint died of cancer just days after the suit was filed. Read the full story here.

Roma rights reconfirmed across Europe, but violations persist

In response to a petition filed by the Centre on Housing Rights and Evictions (COHRE), the European Committee of Social Rights found in November that Italy's treatment of its Roma population was discriminatory and a violation of economic, social and cultural rights. Roma camps in the country have been destroyed, with occupants forcibly evicted and deported with little or no notice. Where official action is not taken, camps are frequently vandalised and burned down with impunity by groups and individuals motivated by racial hatred. In light of these occurrences, the Committee condemned Italian policies and practices “that have left Roma residents living in segregated and grossly inadequate housing conditions." Read COHRE's press release here.

November also marked the third anniversary of a landmark decision from the European Court of Human Rights on the segregation of Roma students in the Czech Republic, D.H. and Others v. the Czech Republic. Despite the favourable judgment, however, discrimination in education remains the norm in many European states according to a complaint filed with the Council of Europe by the Open Society Justice Initiative, European Roma Rights Centre and Greek Helsinki Monitor. The complaint notes that the Czech government has taken no action to desegregate schools, and that Roma children in the country are still overall 12 times more likely than non-Roma children to be sent to schools for the learning disabled. It further calls on the Committee of Ministers, the body responsible for monitoring compliance with judgments of the European Court, to “demand an immediate halt to segregation of Romani children, along with the adoption within six months of the legal and budgetary measures essential to secure equal opportunity.” Read more here.

Detention blasted in the United Kingdom

A High Court judge in the United Kingdom has acknowledged for the first time that placing children in immigration detention “is capable of causing significant and in some cases long-lasting harm to children,” including acute illnesses and Post-Traumatic Stress Disorder. In a case brought by Public Interest Lawyers (PIL) on behalf of two single mothers and their children who were taken into custody following raids on their homes last year, the judge declared the families' detention to be woefully unlawful. Far from a rare occurrence, 1,085 children were detained in the UK in 2009, and PIL sees this case as highlighting the Government's patent disregard for the welfare of children. For some, the judgment has also called into question the UK's promise to end immigration detention for children by March. Read more here.

The price of poverty in the Czech Republic

The Supreme Court of the Czech Republic ruled this month that poverty alone is not a sufficient reason to remove children from their families. Rather, according to the Court, children may only be removed when other measures have failed to achieve any improvement in their living conditions. In the wake of this ruling, Czech courts will now have to determine on a case-by-case basis whether sufficient government assistance has been provided to a family before ordering that a child be placed in institutional care. Read more on the story here.

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CAMPAIGNS AND WORKSHOPS

Right to legal assistance

The International Juvenile Justice Observatory (IJJO) has launched a campaign demanding legal assistance for children in conflict with the law. “Far too often children are locked up in prison conditions which often do not meet the international criteria; sometimes with adults, sometimes for very minor offences or no offences at all,” notes the IJJO. “Nevertheless the right to defence and legal representation is a fundamental one. Children left alone without any independent legal counsel are not only deprived of their voice, but are also subject to numerous abuses as they are often intimidated and not aware of their rights, although these are guaranteed by almost all of the countries in the world."

The campaign seeks:

• to create a global database of information and domestic legislation concerning the right to legal assistance for children,

• to name and shame those countries that do not meet their obligation to provide this assistance, and

• to motivate all countries to revise their national laws on juvenile justice in the spirit of the CRC, ensuring that every child is provided with prompt and independent access to legal assistance.

Further information:

-  UN Standard Minimum Rules for the Administration of Juvenile Justice (the "Beijing Rules")

-  UN Guidelines for the Prevention of Juvenile Delinquency (the "Riyadh Guidelines")

-  UN Rules for the Protection of Juveniles Deprived of their Liberty (the "Havana Rules")

-  Guidelines for Action on Children in the Criminal Justice System ("Vienna Guidelines")

Pre-trial detention

To challenge another pervasive issue faced by children in conflict with the law, the Interagency Panel on Juvenile Justice's (IPJJ) November newsletter tackles pre-trial detention. According to the IPPJ, “pre-trial detainees are subjected to the worst conditions of confinement in their national prison systems, as detention facilities are often overcrowded, unsanitary and unsuited for children.” Because it can lead to serious violations of children's rights, the IPJJ asserts it is a settled matter of international law that pre-trial detention be used only as a matter of last resort. The newsletter assembles a wide range of resources on the subject, including information on relevant international standards, specific national examples, and recommendations for reform. The IPJJ has also announced its intention to draw further attention to the issue by organising side-events this year at the Human Rights Council and the Commission on Crime Prevention on Criminal Justice, details to follow. Read the full newsletter here.

Fighting the man in Latin America

In September, the European Center for Constitutional and Human Rights (ECCHR), Miseror, and Brot für die Welt (Bread for the World) led a workshop on strategic litigation against corporations in Latin America. The workshop explored ways to find redress for human rights violations committed by transnational companies and to fight against oppressive tactics used by these companies against human rights defenders like intimidation, criminalisation, surveillance, deportation, or even murder. Participants concluded, however, that the biggest barrier to bringing cases against corporations was not necessarily these tactics, but rather the lack of solidarity among victims and the relative scarcity of competent lawyers. Future workshops are planned for Africa this year and Asia in 2012. Read more here.

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CASE LAW DATABASE

African Human Rights Case Law Analyser

The Institute for Human Rights and Development in Africa (IHRDA) and Human Rights Documentation Systems (HURIDOCS)  have launched a new online database containing jurisprudence from the African Human Rights System in English and in French. It is searchable by country, outcome, and relevant Article of the African Charter of Human and Peoples' Rights, and offers calculations of decisions' jurisprudential value based on the frequency of citation. Search the database here.

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