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Seeking Remedies For Violations of Children’s Rights in Dive rse Legal Traditions and Systems This conference, as we heard this morning is an initiative that focuses on examining the possibilities for using the Convention as the Rights of the Child as a legal instrument so that the standards and norms it has set on children‟s rights are not merely aspirational moral obligations but can provide legal remedies for infringement of those rights. Several years ago the Global Policy Division in UNICEF New York commissioned a study that tried to examine this issue, but in the context of different approaches to enforcement of children‟s rights in three of the major legal traditions of the world – the Common Law, the Civil Law and the Islamic Law. The study also focused on selected countries which did not have a homogenous system derived from any of these legal traditions. They had faced the challenge of integrating child rights in an environment where several of these legal traditions had, for historical reasons influenced the legal system. I was privileged to be part of that team, and our work was published in 2007. I would like to thank the organizers of this meeting and UNICEF for inviting me to speak on this panel, and share our experiences from that work. Our prior work as well as this particular study reminded us that even as CRC sets universal norms on child rights, seeking enforcement and remedies must address the reality of diverse legal traditions embedded in national systems. A national system‟s approach can be influenced by a single homogenous tradition like the Common law, the Civil law or Islamic law, or a combination of them, and be shaped by these influences in determining both the legal norms and the institutions and procedures that provide remedies for infringement of rights. This reality must be understood and addressed if our work on enforcement and remedies is to impact and achieve results. By ratifying CRC almost all States have recognized their obligations to bring universal children‟s rights home, and incorporate them at the national level. State accountability and the CRC obligation of the community and stake holders to monitor and partner in that initiative can be facilitated or restricted by the nature of the legal traditions and system. 1 Many of the standards of CRC reflect the influence of Western jurisprudence on human rights in general, and child rights in particular. Our study therefore found that the Common law derived from English law and the Civil law derived from Roma n law already provided a legal context that facilitated the recognition of individual participation rights of children, and the concept of autonomy as a child acquired evolving capacity. These concepts were more difficult to accommodate in legal traditions derived from Islamic law or plural legal traditions where Common law and Civil law had fertilized the legal system, and there was also a body of customary legal traditions, and Islamic law. Nevertheless there were spaces for promoting CRC norms. The concept of “social responsibility” for children in Islamic law, and community rights responsibility and familial assistance to children, a common thread in Customary laws in Asia and Africa reinforced CRC‟s socio-economic rights of survival and development and basic needs as basic rights. This was a focus absent in the Common law and Civil law due to a legal culture stressing civil rights. Our study also noted that standards of the Western systems such as the „Best Interests of the Child‟ and „Non-discrimination‟ had traveled globally and already been internationalized and accepted as part of national law, either through national post- independence Constitutions that incorporated Bill of Rights or jurisprudence in the courts. This cross fertilization of systems had already created a core of common principles of law, and procedures of enforcement that linked and harmonized with CRC. Similarly national legal systems derived from Common law, Civil law, Islamic and diverse customary laws had all tried to address the need for achieving a balance between parental rights and responsibilities and or the extended family and the rights of the child as an autonomous individual who gradually moves from a status of total dependence to individual autonomy. Thus the concept of an “age of puberty” in Islamic law had a link to the concept of “an age of discretion” in Common law and Civil law and mixed legal systems. Our study therefore reinforced the idea that adopting a culturally relativist approach is not an inherent dimension of recognizing the diversity in legal traditions and systems. Rather there was a common foundation for holding ratifying States accountable for implementing CRC, and providing a procedure for enforcement and remedies at the national level. In Common law and Civil law countries litigation in the courts is a critical aspect of providing remedies for infringement. Our study found that litigation in countries following these 2 traditions and systems, or plural legal traditions with Common law influences, was indeed important for implementing CRC. Apart from providing individual relief, litigation could become a catalyst for creating an understanding of the norm, further legislative and policy reform at the national level, and, or, regional and international activism. This was seen especially in the area of protection rights, and issues such as corporal punishment, child labour, sexual exploitation and abuse. Nevertheless, in general, litigation was a less dynamic strategy at national level than ot her methods of incorporating and implementing CRC, in all systems. This was due to the fact that either the law incorporating a CRC standard was not in place, or there were not connected social policies and resource allocation for law enforcement. This was particularly evident in developing countries of Asia and Africa. For instance, colonial Criminal law norms or gender biased norms on family law derived from early English or Civil law that conflict with child rights norms continued to be the laws applicable in the courts. Where legislative reform had taken place and there were minimum age laws, or Constitutional provisions prohibiting child marriage, child labour or trafficking in harmony with protection and participation rights, obtaining court decisions in litigation could not impact on the problem because there was no effective structure for registration of birth and marriage, access to education and health, as equally important dimensions of a child‟s right to development. Nor was there resource allocation and institutional support for effective law enforcement. Social action litigation in India on child labour for instance demonstrated the need to incorporate a right to education as an aspect of the right to life in the Indian Constitution. Art 21 of the Constitution was amended after this litigation. Yet access to secondary education has only recently been recognized in national policy. The need for a litigation strategy to address socio- economic rights as well as incorporating law enforcement dimensions into litigation , thus reflecting the equal importance of civil rights as well as socio-economic rights appears therefore to be a vital aspect of implementing CRC as a legal instrument. Recognizing the linkages seemed essential to realizing the holistic CRC concept of a child‟s development, protection and participation rights. This experience suggests that we must therefore avoid a situation where a cynic can ask: “What happens after success in a high profiles case?” and we cannot provide a satisfactory answer. The study that we undertook demonstrated very clearly therefore that in all systems a litigation strategy must ensure that providing relief and remedy goes beyond courts and tribunals. Non-litigation measures such as providing shelter, systems for recovery of compensation awarded, 3 mediation and counseling, and even alternative dispute resolution methods can and indeed sometimes must be worked into a litigation strategy if effective remedies are to be provided. A litigation strategy as we heard this morning cannot be effective unless there is an environment in which CRC norms and standards have been incorporated at the national level. Studies in diverse systems indicate that in the Common law and mixed or plural legal systems with a foundation of judicial precedent, the absence of a principle of law or norm on children‟s rights in legislation or codes has not prevented judicial creativity in recognizing child rights. However Children‟s Acts or Codes of law or specific legislation in selected key areas that incorporates a norm made it easier to use litigation as a strategy to provide a remedy. Whether relief was granted no longer became a guessing game, prior to litigation. Litigation could commence with the confidence that „ubi jus, ibi remedium‟ – where there is a right there is a remedy in the courts. It is for this reason that it seems important to understand the approach of a legal system to CRC incorporation and also develop a national jurisprudence through litigation which encourages courts to be catalysts in incorporating international standards including CRC. The CRC‟s Committee‟s General Comment No 5 suggests that direct incorporation of CRC is a necessary dimension of State obligation under the Convention. The last three decades of CRC implementation at the national level demonstrates that this is not enough. CRC implementation is also linked to the incorporation of other treaties, especially the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW). Our study of diverse systems indicated that „protective‟ approaches to women and children were embedded in the history of all legal traditions, and this had and sometimes continues to have a powerful impact on bias in the law, and their capacity to acquire or enforce their rights. CEDAW incorporation was therefore critical to realizing children‟s rights. Our study of diverse legal systems indicated that national systems derived from English law, Civil law or Islamic law or combining their influences adopted different approaches to incorporation depending on whether they adopted a „monist‟ or duallist approach to international law. The Civil law systems, and some Islamic countries tended to be „monist‟ in their approach. This was an advantage because the act of ratification brought CRC into national law. This had the 4 salutary impact of encouraging prior scrutiny and efforts at harmonization prior to ratification. Reservations were rarely found in Civil law countries. Yet Civil law countries that followed a „monist tradition‟ did not enter reservations but it was pointed out that they sometimes provided no strategies for enforcement, leading to a „token‟ monism. Reservations were common in Islamic countries due to a sense that there could be conflict with religion based norms. This also resulted in the entry of reservations in an area like nationality where Islamic law norms actually harmonized with CRC norms, and a reservation was unnecessary. The study on Islamic jurisprudence that was undertaken demonstrated how the concept of „social responsibility‟ for children provided a conceptual foundation for harmonizing CRC norms, making the entry of broad reservations unnecessary. On the other hand countries influenced by the Common law tended to adopt a duallist approach – a perception that international law was a separate regime and CRC did not apply in the absence of legislation or a regulatory framework incorporating the standards. Though reservations were sometimes entered, Common law countries tended not to introduce reservations at the time of ratification. However a duallist approach encouraged passivity rather than an activist approach to incorporation. Countries with plural or mixed systems and Common law or Civil law influences tended to adopt either a duallist or monist system according to the dominant system in the jurisdiction. Monist approaches encouraged courts to use CRC in interpretation, while a duallist approach encouraged legislative and judicial apathy or timidity in internalizing CRC in national systems. These complexities in regard to incorporation of CRC suggests that a litigation strategy must understand and address the dynamics of the approach to international law in general within the national legal system. The challenge is to both recognize the legal environment on receptivity to international law, and create a legal culture in which strict dualism is challenged, even as efforts are continuously made to ensure that a Constitutional or legislative reform agenda on children‟s rights facilitates incorporation. It is in this context that there has to be a clear understanding of the role of the courts and the space for judicial activism. Common law countries and mixed legal systems where the dominant influence is Common law had an established system of courts and doctrines of binding 5 judicial precedents. This provided opportunities for judicial activism and positive interpretation of child rights. The incorporation of a Bill of Rights in Constitutions, with specific provisions on child rights or general norms on equality with a complaints and enforcement procedure, provided the courts with the opportunity to integrate child rights or interpret legislation and the Common law principles in harmony with CRC. In this regard, the Bangalore and Victoria Falls Principles of Commonwealth Judicial Colloquia on the judicial role in harmonizing international standards in duallist countries, and the space for harmonizing international law has proven to have influenced judges in some countries with dominant Common law jurisdictions. By contrast the role of the judiciary was seen as somewhat limited in Civil law countries with civil codes and a different approach to judicial precedent. Juristic writing and interpretation was also more important as an influence in incorporating CRC in Islamic law and Civil law countries. Judicial discretion was wide, but also not necessarily used to harmonise CRC. Yet the focus on juristic interpretation and the capacity to refer to diverse meanings in the law also provided space for changing the discourse and trying to harmonise human rights and CRC concepts. Creating a judiciary that understands CRC and can champion child rights therefore was seen as an important need in all legal systems. Encouraging lawyers to use comparative case law and materials was a challenge, but was also seen to have led to a cross fertilization of ideas in law courts influenced by a Common law or Civil law based legal traditions and systems. This was also seen as creating a „travelling jurisprudence‟ on challenging received colonial laws that conflict with human rights standards of non discrimination through judicial review. The sharing of this case law in books and through the internet has also become a powerful method of ensuring that litigation within national borders impacts across borders. Some of the major treaties, ICCPR, CEDAW, CAT and more recently, ICESCR have adopted a complaints procedure. The fact that CRC protocols only elaborate standards and do not recognize a complaints mechanism has meant that there is no room for an international procedure to catalyse exhausting local remedies through national courts, and an opportunity for these courts to review decisions and act on the communications in a complaint to a treaty body. However regional standard setting and a complaints procedure in Europe and Latin America, and the work of the regional courts was seen in our study as an important method of reinforcing CRC 6 standards, and also impacting on national law and jurisprudence. The jurisprudence of the Inter- American and European Courts on liability of a State for human rights violations by Non-State actors on the basis of State inaction has influenced national courts in countries outside those regions. This jurisprudence has been path breaking in challenging the traditional view that the State is only liable for State action in violating human rights. Regional standard setting in Africa and Islamic countries even without a complaints mechanism (at the time of our study) had not in general undermined the universalist approach of CRC. The litigation model has been in many ways an underutilized method of integrating and harmonizing CRC at the national level. Litigation has also traditionally been und erstood as an action for an individual remedy. However the important developments on public interest litigation in countries in South Asia and in South Africa have provided an opportunity for civil society organizations and even adolescent child rights groups to be pioneers in pushing the boundaries of jurisprudence on child rights. It has also provided the judiciary with an opportunity to respond to weaknesses in the legislative and executive commitment on child rights, and space for democratic participation in the enforcement of remedies for child rights violations. In this era where there is a focus on achieving Millenium Development Goals, a litigation strategy can help to focus on the fact that the integration of a child rights perspective is an essential dimension of good and accountable governance. I believe that it is important to have a North South dialogue on litigation strategies, sharing positive experiences in different legal traditions and systems in the awareness that an adversarial strate gy is not the only way to claim and assert rights and obtain relief. A litigation strategy must also address problems related to the powerlessness of communities to obtain access to justice, the lack of cultural legitimacy for adversarial dispute settlement, and the need sometimes to incorporate alternative dispute resolution approaches into traditional litigation strategies. The awareness of diversity in legal traditions can help to gain strength from shared experiences without alienating us from the gro und realities on administration of justice in this near universal community of States that has accepted CRC norms on children‟s rights. 7
"Savitri Goonesekere - Seeking Remedies For Violations of"