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Summary: Report from the innovative conference
Read speeches from the conference
Taking children's rights into a new age, where they are universally recognised as legal requirements rather than mere verbal commitments, is on the agenda for more than 120 experts and advocates in Geneva, Switzerland.
The innovative conference, Moral Imperatives to Legal Obligations – In search of Effective Remedies for Child Rights Violations - is being held on Thursday 12 and Friday 13 November.
Lawyers, academics, NGO representatives, and members of the Committee on the Rights of the Child are among those who have gathered to discuss means of enforcing the Convention.
Professor Ariel Dulitzky, Professor of Law and Director of the Human Rights Clinic, University of Texas, began the morning's presentations, speaking about what it means to use the CRC as an enforceable treaty.
He said: “The CRC has a legal basis. We don't have the right not to use it as a legal tool.”
He added access to justice is crucial, although “in the case of the CRC this does not mean access for you – sorry! - it's access for the child, not for NGOs.”
In addressing injustice, Professor Dulitzy concluded, advocates need to: 1) See how the injustice can be framed as a human rights violation; 2) See what legal venues you have to challenge that violation, and 3) Be creative and have the courage to challenge State power and injustices.
Elizabeth Dahlin, CEO of Save the Children Sweden spoke of practical steps towards using the CRC as a legal instrument. She said: “We have the responsibility to ask: what more can we do?”
No excuse
NGOs should consider litigation as another tool to fight for children's rights, she said, adding that while she was conscious this kind of activity might seem scary for many organisations, including her own, because of fear of damaging relationships or appearing confrontational and so on, “these should never be used as excuse for non-action, but as a challenge to address.”
Edo Korljan, of the Council of Europe, noted that there are many Council of Europe soft law instruments being used by the European Court of Human Rights, but the CRC is little invoked.
He said that there were many cases in national courts where the CRC should have been deployed, but was not. He mentioned one European country where custody proceedings for a child lasted for more than five years.
Mr Korljan also drew attention to the European guidelines on child friendly justice which are currently open for public consultation.
Savitri Goonesekere, of the University of Colombo, Sri Lanka, was involved in a study to consider the implications of cultural systems on the implementation of the CRC. She noted that there were some Western-based norms in the CRC, but the study found “a core of commonality in the legal systems which made it possible to emphasise some universal characteristics.” For example, the rights of children to national resources, and the concept of best interests or non-discrimination, could be incorporated widely.
These could act as a basis to “push forward this notion of universality”, she added.
Ms Goonesekere's study also concluded that “litigation has to be contextualised with other methods of enforcement.” For example, child labour laws may exist, but this may not be matched in policy. In India, laws against child labour needed to be linked with other law and policy on the right to primary education.
The study also found that in monist countries, where, if ratified, the CRC must be incorporated directly into national law, there was “token monism” - in other words, no enforcement. Meanwhile, in dualist' countries, where extra legislation has to be enacted to give the CRC direct effect in national courts, the study found that there could be apathy, or “we have ratified, so we don't need to do anything else.”
Ms Goonesekere also spoke of the need for a complaints mechanism to the CRC. She said: “It may motivate courts, and catalyse an international response.”
Nevena Vučković Šahović, human rights lawyer and former member of the Committee on the Rights of the Child, of Serbia, spoke on the subject of enforcing children's rights in inefficient national systems. She mentioned, for example, the need for an independent judiciary, effective enforcement, political commitments and broad participation, including from civil society.
Constraints, she said, could include a lack of capacity, insufficient training, a lack of transparency, corruption and impunity.
'Prevention key'
Professor Vučković Šahović concluded: “Litigation should not be our aim, although it can of course be very useful. Ideally, we would like to have preventative measures. She added she was “optimistic that when we meet again in 20 years, although everything may not be perfect, we will have come a long way.”
Participants at the conference were split into workshops, according to regional groupings, to address different themes: how national systems can be used to enforce children's rights; how regional and international systems can be used for such enforcement; and designing a strategic litigation strategy. Panel speakers also presented on a range of related topics.
Conclusions
At the end of the conference, Veronica Yates, of CRIN, summarised the findings from the first of the working groups.
Overall, participants felt that most countries have integrated the CRC in domestic law, to some extent, but that does not mean it is recognised by Judges or used by lawyers. There was one case, for instance, where the court was very dismissive about the CRC being mentioned.
Participants concluded that strategic litiagtion for child rights is not being used by NGOs. Although there is some interest from such organisations, they are still in the early stages. The baulk of any work on strategic litigation is being carried out by creative lawyers, usually working independently from NGOs.
There was overall agreement that the CRC has not been used enough in courts, but there was certainly a growing interest in doing so. The work of NGOs mostly concerns entails lobbying on the CRC, rather than any litigation.
The legal status of the Convention differs according to a specific county's legal framework, and we are still mostly talking about the CRC in terms of moral obligations.It was noted that there is a lack of funding, skills and knowledge for NGOs to consider how litigation may further the rights of children.
Everyone also agreed, however, that litigation is just one of many strategies that can be used to enforce children's rights. Child protection dominates the child rights agenda.
NGOs need to consider integrating strategic litigation into their work – not necessarily undertaking it themselves but perhaps just identifying new allies.
Child rights organisations need to become more creative and efficient in using the CRC as a legal tool. A case taken by a coalition carries more weight than if taken by single organisation, it was observed. Process and preparation can be just as important if not more so than the case itself. For example by raising awareness, building alliances, process can generate public awareness.
The point was also made that the approach must be multi-disciplinary: it is not just a legal problem, but also a social problem.
Moreover, the wellbeing of a victim should never be sacrificied for the greater good
Challenges:
- How do you pick a strategic case? They need to be chosen carefully, so courts are not overrun.
- When should you decide to take a case?
- Who becomes part of the alliances – how do we decide?
- How do we deal with structural problems in different countries, for example corruption, poor understanding of human rights, slow legal processes, poor victims, and so on.
It was also remarked that litigation is not always necessary – NGOs can participate through other means e.g amicus curiae, advice to lawyers.
Using regional and international systems
There were very different levels of experience; some NGOs were very new to this area, others were quite experienced.
Participants from Central and Latin America had used the Inter-American system in different ways, either by taking cases directly or participating in thematic hearings on children's rights. Governments in the region have very different views of the Commission, for example it has a lot of legitimacy in Argentina and Peru where it helped recover democracy after dictatorships. On the other hand,
Some regional mechanisms exist and work to a certain extent, but may not have been used enough. Some of the discussion in the Americas group touched on the fact that the Inter American Court was always looking for new cases and we should be using it more. To quote one of the participants: “when we have power and we don't use it, we lose it”.
Asia, for instance, does not have any regional mechanism, but they discussed existing UN mechanisms that can be used, such as through Special Procedures, complaints mechanisms under other treaty bodies and the UPR.
It was noted that the rules of procedure for bringing cases under international mechanisms, such as the African Committee, may be flexible or open to being challenged, for example the exhaustion of local remedies.
All regions expressed some concern about who were the commissioners/experts/members of the regional courts and participants asked whether there is anything NGOs can do to ensure the best people are on these committees.
Overall observations:
- NGOs tend to lobby on the CRC, rather than litigate.
- There was overall agreement that legal procedures are best pursued along with other strategies – everything doesn’t have to end in the courtroom.
- There were concerns about costs and lack of funds/other resources
- There were also concerns about the lack of knowledge and experience on this issue
- A lack of knowledge on existing mechanisms, nationally, regionally and internationally, was noted, as we as, in some cases, concern about inefficient existing mechanisms and how these might be improved
Overall commitments/recommendations
We must:
- Convince our own organisations to adopt this new approach
- Campaign for complaints mechanism
- Build better partnerships: both with lawyers/law firms, and among other organisations
- Gather and share knowledge systematically, this has to be two way
- Lobby your governments to ensure the best people are sitting on these committees
- Make efforts to network both within and outside our countries
- Eucate and train lawyers, teach people about their rights
- Make more active use of existing forums
CRIN staff acted as rapporteurs at the conference, and we will be producing a full report in the coming weeks.
Please note: Presentations from the above speakers will be available on the CRIN website soon.
Further information