Strategic Litigation CRINMAIL 7:
In this issue:
To view this edition of CRINMAIL online, click here.
CASE UPDATES
Human rights lawsuits can be incredibly complex and take years to resolve, and cases covered in Strategic Litigation CRINMAIL are certainly no exception. Two cases covered in our first edition on children's right to a clean environment in particular seem to offer new twists and turns at every point:
No resolution in sight for Ecuador and Chevron
As a community in Ecuador's fight to hold oil giant Chevron responsible for extensive environmental damage drags on, U.S. courts have blocked plaintiffs from collecting billions of dollars in damages awarded by a judge in Ecuador. The plaintiffs and their lawyers now face the task of raising funds to challenge the U.S. decision and, ultimately, to collect the sums to which they are now entitled in Ecuador. Follow the last few months' news coverage on the Chevron case here:
Toxic shipping company off the hook?
In April, an appeals court in the Netherlands ruled that British oil trading company Trafigura cannot be brought to task by the Dutch public prosecution department for dumping toxic waste shipped from a Dutch port to Cote d'Ivoire. The public prosecutor had already declined to press charges, but Greenpeace sued in an attempt to force a trial. In response to the judge's decision, a Greenpeace spokesperson commented that “[t]his case shows how multinationals go unpunished for serious environmental crimes.” Read more here.
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HUMAN RIGHTS LITIGATION IN JEOPARDY
Mixed messages for human rights cases in U.S. courts
A number of decisions in United States courts may have ramifications for human rights-based strategic litigation both in the country and far outside its borders. U.S. courts have over the past decade increasingly been seen as a forum for bringing claims of international human rights abuses, but doubts have recently been cast about the domestic justice system's willingness to consider these claims.
In a much watched case, an appeals court in February declined to reconsider a decision that would bar U.S. courts from hearing claims alleging human rights violations abroad. In its decision, the appeals court dismissed a lawsuit brought by Nigerian plaintiffs accusing British and Dutch companies of using the Nigerian government and military to quell resistance against oil exploration. Read more about the case and corporate liability for international human rights abuses:
Meanwhile, that same month, another appeals court breathed new life into a case against a mining company for killing union leaders in the course of its operations in Colombia. Children of three slain leaders have long sought to bring suit against the Drummond mining company, and a new ruling has given them the green light to proceed with claims of wrongful death. Find out more about the case here.
Several months later across the border in Canada, a Quebec court permitted a similar complaint alleging a Canadian mining company's involvement in a 2004 massacre in the Democratic Republic of Congo to proceed. The case, filed by the Canadian Association against Impunity, hinges on the mining company's providing support to the Congolese army who “raped, murdered and brutalised” civilians in the Kilwa region. Read more here.
Back in the U.S., the Supreme Court in April refused on the national front to allow what would have been the largest employment class action case in history to proceed. The case involved allegations of mega-retailer Wal-Mart's systemic discrimination against women, but the ruling means that each female employee must now pursue her claim on her own. Human rights advocates argue that “without class-action treatment, grave but widely dispersed wrongs would never be addressed,” particularly those relating to discrimination and civil rights. Famously, a class action suit filed in this vein in the 1950s led the Supreme Court to order the desegregation of schools. Read more here.
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GLOBAL CASE ROUNDUP
Children's rights under the gavel: cases from around the world
It seems it has been an active season for children's rights cases all over the globe! From Kenya to Canada and Argentina to Italy, courts have been busy delivering judgments on matters from freedom of religion to child labour. CRIN reviews many of these cases below – if you know of others to be included, please let us know at [email protected].
AFRICA
In South Africa, a consortium of organisations that provide care for children with severe intellectual disabilities has successfully challenged the Western Cape government's failure to provide these children with appropriate education. Finding the government's practice of placing intellectually disabled children with NGO “Special Care Centres” to be woefully inadequate, especially given the insufficient number of these Centres, the Court noted violations of the children's rights to education, equality, dignity, and protection from neglect and degradation. Among other things, the Court concluded that the children were excluded, stigmatised, ignored, and effectively denied a chance to develop fully. Read a full summary and review case documents here.
Also in South Africa, the Constitutional Court has ruled that the country's criminal courts must take the best interests of the child into account when sentencing a primary caregiver. In granting the request of a mother of two young children convicted of forgery and fraud to have her sentence reduced from a years-long period of incarceration to correctional supervision, the Court reaffirmed that “every child has the right to enjoy special care.” Given children's vulnerability and need for a nurturing, secure family, the Court clarified that “sentencing courts must perform their function in matters concerning the rights of children which at all times shows due respect for children's rights and that brings to bear focused and informed attention to the needs of the children at appropriate moments in the sentencing process.” Read the Court's decision here.
Members of ESCR-Net, the International Network for Economic, Social and Cultural Rights, were granted permission last week to intervene in a case involving forced evictions in Kenya. According to ESCR-Net, "[t]he petitioners in this case were evicted and had their homes demolished in December 2010, rendering them homeless without the provision of alternative land or housing. Due process protections - adequate notice, the ability to make representations to challenge the eviction, or the opportunity for meaningful participation in decisions related to the eviction - were not provided. The eviction resulted in households being forced to relocate to areas with no access to free and compulsory basic education for children or to other essential services. Livelihood opportunities were compromised, affecting the rights to food, water and sanitation, and health care." Read more about the case here.
ASIA
India's Supreme Court has put an end to child labour in circuses and further ordered the government to police these practices. The country's Child Labour Act has long banned the employment of children under 14, and was recently extended to bring circuses within its ambit. Many circuses have ignored this prohibition, leading national children's rights organisation Save the Childhood Movement to challenge the ongoing use of children to perform dangerous stunts. In enforcing the ban, the Court instructed the Government to conduct raids on circuses and either return children found to be working to their parents or, if their parents are unable to care for them, make other arrangements for their care and education. Read more about the case here.
EUROPE
In March, the European Court of Human Rights again addressed issues of children's right to education and religious freedom in a challenge to the placement of crucifixes in public school classrooms in Italy. While the Court reaffirmed the importance of religious neutrality in public schools, it interpreted this requirement only to forbid religious indoctrination and not the “passive” presence of religious symbols. Human rights NGOs including the International Commission of Jurists, Human Rights Watch, and INTERIGHTS, however, had argued that neutral education in Europe's multicultural societies could indeed be threatened by the officially sanctioned display of a crucifix. Read more about the case here.
The European Court of Justice has ruled that foreign national parents of European Union citizen children must be allowed to live and work in their children's country of citizenship. The case comes from Belgium, where a Colombian couple living in the country were refused residency after their asylum claims were rejected. While their applications were under review, however, the couple had two Belgian citizen children, prompting the European Court to find that the children's rights required that their parents be allowed to remain in the country to care for them. Otherwise, the Court reasoned, the children would likely be forced to leave the EU and hence be deprived of the “genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the union.” Find out more about the decision here; or read an analysis of it here.
Similarly, in cancelling the deportation of a Tanzanian mother who had made fraudulent asylum claims, the Supreme Court of the United Kingdom has ruled that parents of British citizen children should generally be permitted to remain in the country. Noting that it would be unfair to hold children responsible for their parents' shortcomings, the Court cited children's right under the CRC to have relationships with both of their parents. The case also demands a shift in the ways that immigration authorities handle cases involving children, with one judge stating that “[i]mmigration authorities must be be prepared to consider hearing directly from a child who wishes to express a view and is old enough to do so.” Read more about the judgment here.
In the same vein, a newly launched Refugee Children's Rights Project in the UK seeks to enforce the CRC in the immigration system. The Project intends to use strategic litigation to ensure respect for the rights of refugee children, many of whom come from areas of the world where war, conflict, and human rights abuses are widespread. For more details on the Project, click here.
AMERICAS
The Inter-American Commission on Human Rights has announced it will be taking cases related to children's rights against Argentina and Guatemala. In Argentina, the Commission is challenging sentences of life imprisonment imposed on five men for offences committed when they were children, in violation of international juvenile justice standards which mandate that imprisonment only be used as a measure of last resort and for the shortest appropriate period of time. In the case against Guatemala, the Commission alleges that the Government has failed to adequately investigate the detention and torture of a female child. Read the Commission's press releases here and here.
A court in Belize has declared that sentences of life imprisonment without the possibility of release imposed on juvenile offenders are unconstitutional and a violation of the country's obligations under the CRC. The Court ordered that two such sentences be reduced, reasoning among other things that they effectively nullify the rehabilitative goals of juvenile justice. Read CRIN's case summary here; learn more about our campaign against the inhuman sentencing of children here.
In a short but sweet victory for children's rights, a federal court in Oklahoma in the United States has found that clothing retailer Abercrombie & Fitch had unlawfully discriminated against a Muslim teenager. The company declined to hire her when she refused to remove her headscarf, allegedly in violation of the company's oft-maligned “look policy.” Read the full story here.
And lastly, a recently published article highlights a lawsuit brought to challenge the Government of Canada's continued discrimination against indigenous children:
“Repeated reports indicate that First Nations children on reserve receive less child welfare funding than other children in Canada despite the fact that First Nations children have higher child welfare needs. After the Government of Canada failed to implement two joint solutions to address the inequality, First Nations organizations in Canada filed a human rights complaint alleging that the Government of Canada is discriminating against First Nations children on the basis of race and national ethnic origin. This historic case is now before the Canadian Human Rights Tribunal and marks the first time that Canada has been held to account before a legal body for its current treatment of First Nations children and their families.”
The article reviews the facts leading up to the case, the advocacy and legal efforts since filing, and the implications for indigenous children and the country as a whole. Read it in full here.
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CHILD-FRIENDLY JUSTICE
News and Resources
Following the publication of CRIN's new toolkit on child-friendly justice, we are more on alert than ever for news and resources that cover aspects of children's interaction with legal systems. We will continue to update our dedicated child-friendly justice page with stories and new reports on the subject matter; check out some of the latest additions below:
News
A charity in the United Kingdom argues that the country's justice system is failing child victims of sexual exploitation. Among other things, Barnardo's cites an over-reliance on child victims as witnesses, traumatic and painful trials, and the low conviction rate for offenders. The Ministry of Justice responded, "We are determined to support children within the justice system. They are only required to give evidence where absolutely necessary, and measures taken to protect them include children giving evidence by video-link, or being supported by an intermediary in court." Read the full story here.
The European Commission has proposed a set of rights for victims of crime throughout the European Union. The Commission aims to improve the treatment that citizens in foreign countries within the EU receive from police and to standardise a “minimum level of protection, support and access to the legal system in every EU country.” Among other things, these new rights would mandate that police and others working in the criminal justice system provide extra protection for the most vulnerable victims, including children. For more details, click here.
Resources
The Interagency Panel on Juvenile Justice (IPJJ) and the UN Office on Drugs and Crime (UNODC) have published new Criteria for the Design and Evaluation of Juvenile Justice Reform Programmes. The Criteria are based on the CRC, and seek to provide useful guidance in shaping the way that legal systems handle children in conflict with the law, child witnesses, and child victims. Read the full Criteria here.
The IPJJ has also published a report on a side-event the Panel co-hosted with UNODC in April to address violations of children's rights in police custody and pre-trial detention. Read the report here.
The UN Secretary-General has released a report on national and international efforts for child justice reform, which describes trends in legal and policy reform with a focus on child-sensitive procedures and institutions. Download the report here.
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BUSINESS & CHILDREN'S RIGHTS
With the approval of the UN Guiding Principles for Business & Human Rights and the launch of an initiative to write new Chidlren's Rights and Business Principles, the relationship between business activities and children's rights has received much attention over the past year. Recent international and national developments in the field are plenty, some of which we highlight below.
Guiding Principles in action
The Corporate Social Responsibility Initiative at Harvard University in the U.S. has released a report on the ways that the UN Guiding Principles could work to enhance access to justice for violations of human rights by improving company grievance mechanisms. Read the report here; read CRIN's submission on the Guiding Principles and children's access to justice here.
Closing the courtroom door in the UK?
Meanwhile, Professor John Ruggie, the UN Secretary-General's Special Representative for business and human rights responsible for drafting the Guiding Principles, has warned that the United Kingdom's proposed cuts to the legal aid budget and reforms to conditional fee agreements will severely curtail human rights litigation against business enterprises. These concerns come in the wake of a class action suit brought in a UK court against British oil trading company Trafigura, accused of dumping toxic waste in Cote D'Ivoire. In response to the Government's plans, the opposition justice spokesman warned: “If cases like Trafigura aren't brought to justice, it sends the worst kind of signal. Corporate wrongdoing will flourish around the world and lives will be lost.” Read more here.
Outrage in India
In May, the Human Rights Law Network held a national consultation on “Litigating against Corporations for Human Rights” in India. Addressing a wave of recent corruption in the country, one participant stated that “[i]t is the fundamental right of everyone to have a government that works in the public interest. Corporations have become too powerful and [the] judiciary is not immune from corporate influence.” Find out more about the consultation here.
New resources on business & children's rights
The Business & Human Rights Resource Centre has debuted a new portal to provide up-to-date information on the many ways that companies' activities impact children’s rights. Issues covered range from child labour to workplace parental leave, from sexual exploitation to education. Each topic includes a concise introduction followed by examples of positive initiatives companies are taking, allegations of abuses, and company responses. Learn more about the portal here, or dive in straightaway here.
The Center for Human Rights and Global Justice (CHRGJ) at NYU School of Law and the International Network for Economic, Social and Cultural Rights (ESCR-Net) have launched the Business and Human Rights Documentation (B-HRD, or Be Heard) Project. B-HRD is billed as “an interactive, multi-lingual information portal that provides grassroots groups, NGOs, experts, advocates, academics, and the public at large with vital information about the human rights impacts of business activities, and with much needed advocacy tools to hold businesses accountable in a globalized world.” Visit the new website here: www.b-hrd.org.
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NGOs AND STRATEGIC LITIGATION
Right to Education in the spotlight
Over the past few months, INTERIGHTS hosted a litigation surgery in Tanzania and arranged a consultative meeting in South Africa on the enforcement of the right to education in Africa.
The litigation surgery aimed “to increase the enforcement of the right to education in Africa through developing strategic litigation, to develop jurisprudence on the right to education...to use international and regional human rights law in the enforcement of the right to education, and to build a network of lawyers and NGOs working on...the right to education.” Participants addressed cases from Nigeria, Swaziland, Zimbabwe, Kenya and Tanzania on issues ranging from discrimination and corporal punishment to lack of universal primary education and non-availability of resources.
In the consultative meeting, INTERIGHTS discussed “litigation priorities with...practitioners on the right to education...and measures that can be taken to encourage and assist litigation at national, sub-regional, regional and international levels in Africa.” As noted in the consultation, the right to education is protected under numerous African Union and United Nations treaties, and INTERIGHTS plans to take a take a strong role in leading and assisting cases to enforce that right.
Read more about the meetings here.
Monitoring, enforcing and engaging civil society
In June, INTERIGHTS and the Open Society Justice Initiative held a meeting in London on the implementation of international human rights decisions in Europe and Africa. Read more details here.
In March, the Open Society published a new report, Improving Implementation and Follow-up, to summarise the conclusions of a November conference in Geneva on improving the national implementation of the findings and recommendations of United Nations' human rights mechanisms, including treaty bodies, Special Procedures, and the Universal Periodic Review (UPR). For more resources on monitoring and enforcing human rights decisions, read our Strategic Litigation CRINMAIL on the subject here.
Save the Children Sweden and Plan International have also published a new edition of “Advancing Children's Rights – A Guide for Civil Society Organisations on how to engage with the African Committee of Experts on the Rights and Welfare of the Child.” The Guide aims to be a resource for civil society organisations who are interested in finding out more about the ACRWC and the Committee. It contains practical advice and information on how civil society can engage with the Committee to advance children’s rights in Africa, and recent revisions reflect important developments relating to the Committee’s work and the functioning of the CSO Forum on the ACRWC. Read the Guide online here.
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