Strategic litigation and
At the end of this module you will be able to:
- Identify the existing international remedies to be used when children’s rights have been violated if there is no solution at national level
- Identify which mechanism to use and how to make a choice between existing avenues
- Understand what strategic litigation means and how to use it to enhance protection of children’s rights
- Overview of the different Human Rights Treaty bodies dealing with Human Rights / Children’s Rights at International Level
- Overview of the different mechanisms existing at international level to challenge children’s rights violations.
- Identification of the criteria that can help you to make the choice between these mechanisms and bodies that can be used in a particular case
- Identification of the conditions to use one or another mechanism
- Reflection on the use of international mechanisms in strategic litigation
As we will be focusing in this module on international remedies, it would be really helpful to have the following documents at disposal:
- The Convention on the rights of the child and the three optional protocols under this Convention on Sale of children, children in armed conflict, and on the Communication procedure;
- The rules of procedure under the individual complaints/communications;
- The European Convention on Human Rights and the rules of procedure;
- The European Social Charter and the Additional Protocol to the European Social Charter Providing for a System of Collective Complaints
This module will help you to understand existing mechanisms at international level that can be used to pursue children’s rights where domestic remedies have failed. For lawyers in the UK, such avenues are relatively limited in practice because:
- The UK is a dualist system: it has ratified a number of international treaties that relate to children but has not incorporated them into domestic law. This limits the effect of these international treaties to interpretative guides unless there is clear jurisprudence to the contrary.
- The UK has opted out of a number of binding EU laws that confer entitlement on children, particularly in the area of immigration and asylum and criminal justice. This, along with the uncertain nature of the UK’s future relationship with the EU, makes it very difficult to pursue children’s rights through EU mechanisms of redress.
Despite these limitations, it is important for lawyers working in the field of children’s rights to have a basic grasp of some of the international mechanisms because:
- There remain opportunities to exploit some international remedies where domestic remedies have failed;
- There is some potential to use international sources to support strategic litigation in a more creative way.
- If you are dealing with cases involving more than one jurisdiction, or if you have the opportunity to practise law elsewhere, it is important to have a grasp of the international remedies available to litigants in other countries where their status may be very different.
This module considers the bodies in charge of the monitoring and control of the implementation of the Human Rights treaties at the level of the United Nations and the Council of Europe.
A Human Rights treaty is an international agreement, which imposes binding obligations to protect and promote rights and freedoms on States that officially accept it (commonly through “ratification” or “accession”); those States are referred to as States parties to the treaty.
There are many different bodies and mechanisms aiming at monitoring the implementation of the rights of the child at national but also at international level. This training module intends to give an overview of them helping professionals working in the field of children’s rights to make the best use of these mechanisms.
Committees deal with questions linked to the protection of the rights of the child but the most important ones, at the UN level, are the Committee on the Rights of the Child, the Committee for Human Rights and the Committee on Economic, Social and Cultural Rights.
These “treaty bodies”, as they are often called, are composed of independent experts who gather two or three times a year in Geneva and perform number of functions in accordance with the provisions of the treaties that established them. These include consideration of State parties' periodic reports, consideration of individual complaints, conducting country inquiries, adopting general comments, interpreting treaty provisions and organizing thematic discussions related to the treaties.
At the level of the Council of Europe, we will mainly examine the European Court of Human Rights, the Committee for the Prevention of Torture and the European Committee of Social Rights.
The United Nations and Children’s Rights (UNCRC)
Children’s rights are becoming an increasingly integral element of the UN’s work. Children are included within most of the broader UN Human Rights Treaties, Conventions and Declarations, but children are also protected by specific, child-focused instruments and measures to address their distinctive vulnerabilities and interests.
The focus of the UN System on children’s rights has been intensified following the adoption by the UN General Assembly of the Convention on the Rights of the Child. The Committee on the Rights of the Child (CRC) is the main treaty body made up of Independent Experts that monitors implementation of the Convention on the Rights of the Child and its two Optional Protocols by State parties. It also examines complaints under the Communications Procedure (note, however, that this does not currently apply to the UK as it has not yet ratified the relevant Optional Protocol that brings this into effect).
Once every two years, at its September session, the Committee holds a Day of General Discussion (DGD) on a provision of the Convention on the Rights of the Child in order to issue more detailed recommendations to governments. Further, detailed guidance on how to interpret and apply the various provisions of the UNCRC are provided in the form of General Comments. Legal practitioners can gain useful insights, for instance, from General Comment No 14 on the right of the child to have his or her best interests taken as a primary consideration, or from General Comment No 10 on children’s rights in juvenile justice, or from General Comment No 6 on the Treatment of Unaccompanied and Separated Children outside their country of origin.
Besides this Committee, many other bodies work on children’s rights, including:
The UN General Assembly provides a forum for discussion on a wide range of international issues such as development, peace and security and international law. Once a year it hears a report and a statement from the CRC Committee and from the Special Representatives of the Secretary-General on Children and Armed Conflict and on Violence against Children and it adopts Resolutions on the Rights of the Child.
The UN Human Rights Council is the main UN body in charge of monitoring and protecting fundamental rights and freedoms. It holds three regular sessions per year where the broad range of human rights issues are discussed and debated, including children’s rights. In particular, it conducts a review of the human rights records of all UN Member States once every four and a half years, known as the Universal Periodic Review (UPR). This provides the opportunity for each State to declare what actions they have taken to improve human rights situations (including children’s rights) in their countries and to answer for any persistent abuses.
Another avenue in which to promote children's rights in the Council is Special Procedures whereby experts are appointed to examine, monitor, advice, and publicly report on human rights situations in specific countries or territories or on major themes. For instance, there is a Special Rapporteur on the sale and exploitation of children, including child prostitution, child pornography and other child sexual abuse material. There is also a Special Rapporteur on trafficking in persons, especially women and children.
Even the UN Security Council, the UN body with primary responsibility for maintaining international peace and security, focuses on some aspects of children’s rights, mainly on children in armed conflict.
Finally, many UN agencies are directly or indirectly focusing on children’s rights. The United Nations Children's Fund (UNICEF) as lead UN organisation working for the long-term survival, protection and development of children is explicitly concerned with promoting and protecting the rights of the child. The World Health Organisation (WHO) is concerned with children's right to health. The International Labour Organisation (ILO) formulated ILO Convention No. 182 on the Worst Forms of Child Labour and ILO Convention No. 138 on the Minimum Age for Admission to Employment and Work. Both of these instruments inform current EU and domestic law relating to children’s access to and conditions of employment.
Amongst other UN organisations whose work directly affects children are: The Food and Agriculture Organisation (FAO), the Joint United Nations Programme on HIV and AIDS (UNAIDS), the International Monetary Fund (IMF), The Educational, Scientific and Cultural Organisation (UNESCO), the United Nations Development Fund for Women (UNIFEM) and the United Nations Population Fund (UNFPA).
More specifically, there are ten (10) UN treaty bodies of independent experts established to monitor the implementation of each UN Human Rights treaty.
|UN Treaty Body||Monitors implementation of|
|The Committee on civil and political rights (CCPR) or Human right committee||UN Covenant on civil and political rights|
|The Committee for economic, social and cultural rights (CESCR)||UN Covenant on economic, social and cultural rights|
|The Committee against torture (CAT) + Sub-committee on the prevention of torture (SPT)||UN Convention against torture and other cruel and inhuman treatments and its optional protocol (OPCAT)|
|The Committee for the elimination of racial discrimination (CERD)||UN Convention for the elimination of racial discrimination|
|The Committee for the elimination of discrimination against women (CEDAW)||UN Convention for the elimination of discrimination against women|
|The Committee on the rights of the child (CRC)||UN Convention on the rights of the child + 3 Optional protocols|
|Committee on migrant workers (CMW)||UN Convention on the protection of the rights of migrant workers and the members of their family|
|The Committee on the rights of persons with disabilities (CRPD)||UN Convention on the rights of persons with disabilities|
|Committee on Enforced Disappearances (CED)||International Convention for the Protection of All Persons from Enforced Disappearance|
Overview of the different Human Rights Treaty bodies dealing with Human Rights / Children’s Rights at International Level
The Council of Europe
The Council of Europe protects and promotes human rights, which includes the rights of the child. Since 2006, the programme “Building a Europe for and with Children” has striven to protect and promote the rights of the child in Council of Europe member States through:
- Legislative and policy change to improve the protection of children’s rights through a comprehensive set of binding and non-binding standards
- Data collection and monitoring of Member States action in the field of children’s rights
- Providing support to Member States in implementing children’s rights
- Consulting with children in the development of its recommendations
- Developing strong partnerships with other international organisations and non-governmental organisations
- Producing accessible tools, attractive audio-visual material and innovative campaigns
The European Court on Human Rights (ECtHR)
The European Court of Human Rights is an international court set up in 1959. It rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights (ECHR). Since 1998 it has sat as a full-time court and individuals can apply to it directly.
The ECtHR monitors respect of the human rights of 800 million Europeans in the 47 Council of Europe Member States that have ratified the Convention. Over the past fifty years, it has delivered more than 10,000 judgments, about 20% of which involve children. These judgments are binding on the countries concerned and have led governments to alter their legislation and administrative practice in a wide range of areas. The ECtHR’s case-law makes the ECHR a powerful living instrument for meeting new challenges and consolidating the rule of law and democracy in Europe. It has a particular potency in the UK since its incorporation into domestic law by virtue of the Human Rights Act 1998 (see module 3 on how to use ECHR provisions in your substantive submissions on behalf of child clients).
For more information concerning the ECtHR and the procedure to lodge an application click here.
European Committee of social rights (ECSR)
The European Committee of Social Rights is composed of 15 independent, impartial experts, elected by the Council of Europe Committee of Ministers for six years, renewable once. It monitors compliance with the European Social Charter (ESC) through States’ reports and collective complaints lodged by the social partners and NGOs. The ESC was adopted in 1961 and revised in 1996. Its focus is on the protection of social and economic rights such as housing, health, welfare, education, employment, the movement of individuals as well as the protection, in particular, of the family, elderly people, children and people with disabilities. It provides that the enjoyment of these rights must be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status, including disability (principle of non-discrimination). In that sense, the ESC complements the ECHR which focuses much more on protecting civil and political rights.
The Charter contains specific rights relating exclusively to children. Notably :, Article 7 provides that children and young persons have the right to protection in the context of employment and education; and Article 17 contains more wide-reaching protection against violence and against social and economic exploitation or marginalisation.
European Committee for the prevention of Torture (CPT)
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) was set up under the Council of Europe’s European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT). It builds and seeks to ensure compliance with Article 3 of the European Convention on Human Rights which provides that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
The CPT is a specialised independent monitoring body consisting of independent, impartial experts such as lawyers, medical doctors and specialists in prison or police matters. It visits places of detention periodically (usually every four years, but it also conducts ad hoc visits) to see how persons deprived of their liberty are treated. Examples of places of detention are: police stations, prisons, juvenile detention centres, immigration detention centres, psychiatric hospitals or social care homes.
For more information on monitoring in the places where children may be deprived of liberty, see: the Practical Guide - Monitoring places where children are deprived of liberty
Overview of the different mechanisms existing at international level to challenge children’s rights violations
A human rights complaints mechanism is a means for someone whose rights have been violated to seek redress outside their national justice system. Complaints mechanisms take a number of different forms and procedures.
Individual Communications (Complaints):
Conditions and Procedure
Individuals can submit complaints to all UN human rights mechanisms, including the European Court of Human rights. The only exception is the Committee on migrant workers (CMW) where the individual complaint mechanism exists but has not entered into force.
Any individual may introduce a complaint to one of these Committees against a State, if he/she considers that he/she has been victim of a violation of his/hers rights and:
- If the State is party to the treaty in question (through ratification or accession) providing for the rights which have allegedly been violated;
- That State has accepted the Committee’s competence to examine individual complaints, either through ratification or accession to an Optional Protocol (in the case of ICCPR, CEDAW, CRPD, ICESCR and CRC) or by making a declaration to that effect under a specific article of the Convention (in the case of CERD, CAT, CED and CMW).
Complaints may also be brought by third parties on behalf of individuals, provided they have given their written consent (without requirement as to its specific form). In certain cases, a third party may bring a case without such consent, for example, where a person is in prison without access to the outside world or is a victim of an enforced disappearance. In such cases, the author of the complaint should state clearly why such consent cannot be provided.
Note: before submitting a complaint to an international treaty body, there is a need to exhaust national remedies
While there are some procedural variations between the nine mechanisms, their design and operation are very similar. It is not necessary to have a lawyer prepare the complaint, though legal advice may improve the quality of the submissions. Be aware, however, that legal aid is not provided under the procedures.
It is important to submit the complaint as soon as possible after the exhaustion of domestic remedies. Delay in submitting the case may make it difficult for the State party to respond properly and for the treaty body to evaluate the factual background thoroughly. In some cases, submission after a protracted period may result in the case being considered inadmissible by the Committee.
Click here For more information concerning individual complaints
Conditions and Procedure
The collective complaints mechanism is available for alleged breaches of the European Charter of Social Rights (ECSR). It is aimed at increasing the effectiveness, speed and impact of the implementation of the Charter by enabling the social partners and NGOs to lodge collective complaints to the European Committee for social rights (which cannot consider individual applications) on possible non-implementation of the Charter (in the States which have accepted its provision and the complaints mechanism).
Complaints may raise questions concerning non-compliance of a State’s law or practice with any provision of the Charter. Complainants do not have to have exhausted domestic remedies need not necessarily have been a victim of the relevant violation.
An accredited NGO (such as a children’s rights NGO) may introduce a collective complaint to this Committee min relation to an alleged violation of the European Social Charter.
Note: no need to exhaust national remedies; and no need to identify every single victim
The Committee will first decide on the admissibility of the complaint even if a similar case has already been submitted to another national or international body. After the admissibility phase, there will be a decision on the merits.
Since 2011, following a decision on the admissibility, the Committee may, at the request of a party, or on its own initiative, indicate to the parties any immediate measure the adoption of which seems necessary with a view to avoiding the risk of serious damage and to ensuring effective respect for the rights recognised in the Charter.
Identification of the criteria that can help you to make the choice between these mechanisms and bodies that can be used in a particular case
This part considers the conditions required to lodge a complaint at international level in case of a violation of the rights of a child, to help list all the available mechanisms or bodies, before making the choice of the most strategic one to use.
The choice of an international mechanism: checklist
Applicability of international obligations
Identification of the conditions to use one or another mechanism
This part considers how to make a strategic choice of a mechanism or body to help the claimant to decide to which one to give priority.
Choice of mechanism strategy: checklist
This list has been drafted in the first place by the International Commission of Jurists, in the frame of several European projects, and adapted for this online training tool. To help the claimant to make a choice between many bodies or mechanisms available, use the following checklist.
One or more bodies?
Which body is more strategic?
Participation of the client (child)
Effect in the domestic system
Reflection on the use of international mechanisms in strategic litigation
This module considers the use of international mechanisms and remedies in a strategic way, as a part of a global advocacy, to ensure fundamental changes in the legal position of the children in the Country, the respect of their fundamental rights, their access to justice, the availability of remedies, compensations, in case of violation of their rights.
Lawyers have the power to further develop legislation and to change practices far beyond the individual file of their client. Strategic litigation is a way for lawyers to bring systematic violations of human rights (more specifically children’s rights in the context of this training) that their clients are facing before the national and/or international judicial or quasi-judicial bodies that will deal with their complaint. The decision that will be made by the body, whether it is binding or not, may generate a legislative change and/or a change in practice at a national, regional or even international level.
Therefore, this training aims to raise awareness among lawyers, NGOs and to inform them about the existence and the relevance of the regional and international monitoring bodies before which they can bring the violations of human rights. These violations may have been observed 1) in the individual file of one of their clients, 2) systematically, in several files or even more broadly. In the latter case, fighting collective issues or structural problems requires global strategic actions in order to bring about changes in the practices. These actions can be pursued alongside NGOs specialised in the field of strategic litigation
Strategic litigation is a powerful tool to promote the rights of the children on a more global scale. A clear example is a judgment of the European Court of Human Rights: this impacts not only on the individual and Member State involved in the original action; it also influences law and practice in many different ways across all Member States of the Council of Europe.
Very often, it is the combination of many judgments, decisions and recommendations on a particular issue that will provoke the expected changes. The latter will not always be immediate and may often take a long time. Sometimes, the change occurs only little by little.
When a UN Human Right body issues recommendations that are referred to by a Court or another body, that are used by experts visiting the Country or for an inquiry,… it is the whole action that will finally lead to the improvement of the situation.
It is therefore extremely important to choose the cases to use in this strategy in an extremely careful way and measure the risks of obtaining a negative decision. Such a decision, may undermine years of efforts and spoil many other actions. For this reason, we encourage lawyers to liaise with other lawyers or NGOs, to think collectively of the consequences of a given action and measure the risks.
They can be mitigated if some people, NGOs,… make a third party intervention or support the case in one or another way.
But all this keeping in mind that it is the interest of the client (the child) that should prevail at all stages of the procedure. A comprehensive action should not be pursued to the detriment of the rights and well-being of the child concerned, keeping in mind that such procedure may be onerous and stressful for them and a long-term burden that will affect their lives.
Seven children are removed from the care of their mother, placed in several institutions pending permanent adoption Court decision: In 2012, the Family and Child Court decided that 7 (out of 10) of Liliana’s children should be institutionalized, in order to be adopted. The children were in institutions all over the Country, separated from each other. Facts: In 2005 child protection systems started to work with that family because, among other issues, the mother had no job for 4 years. The father was often absent (having 2 more families- one in the same Country, another one in Africa- , as per his religion). They had economic and financial problems. But there are strong affective bonds in the family. The parents were notified to go to Court and missed it several times. In 2012 Liliana has 10 children. The mother asked the Court not to take her their children, because she loved them very much, she did not mistreat them and “they were her whole life”. On judgement day, Liliana and her husband, the children’s father, were not allowed to attend the proceeding of their own case. They were not informed that they had the right to appeal the court’s decision. The parents were not represented by a lawyer (it was not mandatory at the time). The children were never heard. The children had a lawyer appointed by the court on the very same day of the court’s judgment, and that lawyer had no specific knowledge of Family and Child Protection Law. That same day Liliana was informed about the court’s decision: their children should be institutionalized, with the goal of being adopted. The lawyer took that decision to superior courts. That sentence was confirmed every time.
Alain claims he is 17 years old. He is homosexual and when this was discovered his life was in danger so he fled his home country. He has been disowned by his family. He has no family or friends in the host Country and is extremely reluctant to disclose the full details of his situation. He has a basic grasp of the national language. He has been referred to you for legal advice and representation by an organisation that supports young gay men. When he arrived in the Country, the authorities requested an age assessment of Alain. The age assessment was not carried out properly. Alain did not have an appropriate adult at all the meetings, he was not provided with an opportunity to address the evidence used by the authorities and he was not given a written copy of the decision. The conclusion of the age assessment was that Alain is over 18 years old and plans were put in place to remove Alain from local authority housing and the Country. Alain became very distressed and overwhelmed and subsequently ran away. He was found several months later. During this time, he was detained unlawfully, sexually abused and potentially at risk of trafficking. These risks were not taken seriously by the local authority. Judicial review proceedings were started to challenge the defects in the age assessment procedure.
- What are all the international mechanisms and bodies that could be used to appeal this case at international level or to bring the issues to international monitoring bodies?
- What are the conditions to appeal at international level?
- If more than one Court or mechanism could be used, which one would you give the priority to and why?
- Could you use different mechanisms at the same time? If yes, how and what would be the advantages?
- What would be the expected outcome of the procedure for the individuals concerned and on the legislation and practice of the State?
- What are the risks in case of a negative decision?
- Who would you identify to support you in these proceedings?
- Would there be an NGO willing to make a third party intervention? How would you proceed for this?