Legal Advocacy Guide 0
Legal Advocacy Guide 0
ADVOCACY
GUIDE
INTRODUCTION
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The Child Rights International Network (CRIN) and practice is enough to persuade decision-makers to act.
supports organisations and activists around the But only sometimes. Towards the other end of the spectrum
world to advocate effectively for children’s rights. is work that demands more time and resources, including
We are keen to work with organisations using legal taking a government or corporation to court in order to bring
advocacy to strengthen their campaigns, and have about broader social change. A successful case might improve
produced this introductory guide for those who may the legal standards that apply to children, or lead to a major
be interested in this work. policy change of long-term benefit to children.
While many authorities can tolerate some traditional As with all campaigning, the outcomes of legal advocacy are
campaigning methods, it is usually harder to ignore the law. always uncertain, but it has helped to secure many of the
As part of broader campaigns, the law can be a powerful tool rights that children enjoy today. Among the many examples
for achieving the changes that children need. Legal advocacy are preventing the exploitation of children for labour in
is now being used systematically in a few countries – leading Liberia, strengthening protections for children against sexual
to strong outcomes for children – and it has great potential abuse in India, and introducing new laws and policies to
for wider use. prevent corporal punishment in several European countries.
Often, children and their families have stood as witnesses in
There are many occasions for legal advocacy. International
court, or brought cases directly with the support of NGOs and
law sets out the principles and standards that states are
lawyers working for free (pro bono). CRIN’s website includes
obliged to meet but frequently do not, and so their domestic
many stories of litigation for and by children.They show what
law violates children’s rights. Often, a State meets a standard
can be achieved, as well as how much remains to be done as
in domestic legislation but its policy fails to implement the
children continue to live in jeopardy around the world.
law. Sometimes, it is unclear what a law means in practice,
or the meaning is clear but no one knows whether it is being This introductory guide offers a brief overview of avenues for
implemented. These various gaps between international legal legal advocacy. It also offers guidance on how to explore your
standards, domestic law and state policy (or corporate policy) options, and how to promote legal advocacy work with other
present potential opportunities for legal advocacy. children’s rights advocates. This is the first version of the
guide, so please let us know what you think of it, and send us
There are also many avenues for legal advocacy. It is a
any suggestions for improvements – thank you.
broad term, not limited to taking rights violators to court.
Many small-scale legal activities can enhance traditional
campaigning, such as reporting on the implementation of a
law, or raising awareness of what the law says. Sometimes,
simply documenting and publicising the gaps between law
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USING THE LAW FOR CHILDREN’S RIGHTS:
AN INTRODUCTORY GUIDE
MAPPING THE
LEGAL TERRAIN
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Legal advocacy has improved children’s rights in If you can mostly answer ‘yes’ to these questions, then
many countries, but it is an uphill push, which there may be fertile ground for legal advocacy. Where
is more difficult in some countries than others. legal advocacy at the national level is particularly difficult,
Appraising the democratic and legal environment of you might still be able to bring change by working with
your country can help when deciding which kinds of international processes, including UN legal processes, foreign
legal advocacy are most likely to bring results. media, and international NGOs.
Guiding questions about the legal terrain in your Find out more
country
CRIN’s Access to Justice report ranks countries by the
1. Are there people’s movements and NGOs willing, free accessibility of the legal system to children and the means of
and able to stand up for children’s rights? enforcing children’s rights.
2. Can national government, local authorities, and Another resource is the Freedom House annual league table,
corporations be held to account before the law? which uses the Universal Declaration of Human Rights to
rank countries according to democratic freedoms, including
3. Is the judiciary genuinely independent of the
the rule of law.
government?
In most cases, both reports include a detailed assessment for
4. Do government and parliament accept that children have
each country.
rights, including the right to be safeguarded from policies
and laws that undermine their best interests?
5. Do the government and parliament respond to pressure
from NGOs, the media, and the public?
6. Can parliamentarians shape legislation effectively?
7. Can parliamentarians influence government policy?
8. Can the government hold corporations to account? Does
it do so?
9. Does central government properly regulate local
government?
10. Are media organisations free from state and corporate
control?
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USING THE LAW FOR CHILDREN’S RIGHTS:
AN INTRODUCTORY GUIDE
Legal advocacy can help to stop abuses of rights • International Labour Organisation (ILO) Conventions
which have been allowed to persist by laws that are 138 and 182, which cover child labour.
absent or weak, or laws that violate children’s rights
• Several regional conventions on human rights, such as
directly. This section outlines four kinds of legal
the African Charter on the Rights and Welfare of the
advocacy: exposing gaps in the law, using the law to
Child, and the European Convention on Human Rights.
improve policy and practice, improving the law, and
bringing legal complaints. 2. These are not the only treaties that address the rights of
children. You can see a longer list of the treaties ratified
by your state on the UN human rights site (see ‘Find out
Option One: Expose the legal gaps more’, below)
One of the simplest forms of legal advocacy is to research and
3. Domestic law. Which domestic laws apply and what do
publicise the gaps in the law, and between the law and policy
they say? Do they reflect international law or are there
or practice. It is also the first step when contemplating more
significant differences? This work is made easier if the
complex forms of legal work.
state keeps an online database of legislation, and/or if
One way of framing children’s legal rights is as a ‘cascade’: you have access to pro bono or low-cost legal advice.
from internationally agreed standards, through national
4. Policy versus practice. What is the policy of the local
legislation and policy, to the lives of children in their families
authority, government, or corporation in question? Is
and communities.
this followed in practice? Does the policy/practice violate
• International human rights law sets the standards by the law, and how? (It is important to distinguish whether
which all states must abide. the government or a corporation is behaving unethically
from whether it is breaking the law.) You can use ‘hard’
• Domestic law should reflect, and ideally directly
evidence, such as documented proof of violations,
incorporate, these standards.
or ‘soft’ evidence, such as eyewitness accounts and
• In turn, state and corporate policy should comply anecdotes – both matter.
with domestic law – on paper and in practice – so that
5. Remedy. What could the government or parliament do to
children can enjoy their rights.
close the legal gaps that you have identified? How would
The gaps in this ‘cascade’ are many and need to be named. this improve the lives of children in practice?
The research need not be exhaustive; it only needs to
establish: a) that the legal gaps exist; b) that they adversely
Find out more
affect children (and how); and c) and that a remedy is available.
The UN human rights site shows which treaties have been
ratified by your state. Select your country page and then click
Guiding questions for legal research
‘Status of ratifications’.
It may be useful to order your research by the following areas:
The country pages of CRIN’s Access to Justice database
1. International law. Which treaties has the state ratified outline the status of treaties in domestic law.
and what do they say? Some of the main treaties covering
This work is easier if the public has freedom of information
children’s rights are:
rights and/or parliamentarians have a right to ask for
• Convention on the Rights of the Child (and its three government information. The International Consortium of
Optional Protocols, which are binding once a state has Investigative Journalists has a list of countries with freedom
ratified them). This is the main children’s rights treaty. of information laws and how to use them.
• International Covenant on Civil and Political Rights, Some pro bono advice from a lawyer may be needed,
which is a major international treaty covering a broad particularly if the law is ambiguous. CRIN’s legal assistance
range of human rights. page explains how to find free or low-cost legal help.
• Convention on the Elimination of All Forms of
Discrimination Against Women
• International Covenant on Civil and Political Rights
• International Covenant on Economic, Social and Cultural
Rights
• Convention on the Rights of People with Disabilities.
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USING THE LAW FOR CHILDREN’S RIGHTS:
AN INTRODUCTORY GUIDE
Option Two: Use legal research in Option Three: Use children’s rights
political advocacy principles to improve the law
While local authorities, governments and corporations often When laws are made or refreshed, they can be strengthened
ignore evidence that they are acting unethically, they may be in the interests of children. This work involves following
more likely to respond to evidence that they are also acting the legislative agenda, assessing its potential impact on
unlawfully. children’s rights, and intervening when opportunities arise,
Even if they still ignore or discredit your case, it might usually at an early stage. In practice, this means working with
persuade important other parties which have influence. parliamentarians to promote amendments to draft legislation,
For example, your work could strengthen the hand of and to speak up for these in debate.
parliamentarians, faith groups, investigative reporters, or This work is valuable in at least four ways. First, it creates
some parts of the state, such as children’s commissioners (if opportunities to pass amendments to improve the law
they exist in your country). It can also provide a platform for directly, though this usually depends on a broad base
children to speak out, and it can strengthen the rest of your of parliamentary and public support. Second, the draft
campaigning on the issue. amendment can force the government to discuss the issues
One way to strategise this work is to draw an ‘influence map’. with senior parliamentarians, which can lead the government
Taking a large sheet of paper with your child rights issue to amend its own draft legislation as a compromise. Third,
in mind, decide which individual or group has the political it can publicly expose a government’s unwillingness to use
authority to make the change you seek, and write them in the legislation to promote the highest standards of children’s
middle of the page. Then ask: under what circumstances will rights, particularly if the issue attracts media attention. And
this individual or group make the change you seek? Usually, fourth, it is an opportunity to build parliamentary support for
this will depend on first persuading people who are likely to your cause for the long term.
have the most influence on the people with the power to make
the final decision. There might be several of these critical In the UK the law governing the armed forces is refreshed
influencers; add these in a circle around the centre. Can you every five years, which offers campaigners an opportunity to
influence this second group directly with your legal evidence? work with parliamentarians on amendments that challenge
If not, whom else do you need to persuade first? Add these the enlistment of children. In 2016, when the government
to a third circle out from the centre, and keep going until you refused, as expected, to support two amendments to
reach the edge of the paper (or further!). Each circle moving improve the rights of children in the armed forces, more
outwards is less directly influential on the change you seek, parliamentarians began to question the policy of enlisting
but is also easier for you to reach. them, and became strong advocates for change.
Bringing a case to court 4. Is there only a low risk of a backlash from the
government/corporation, and could you manage it?
Strategic litigation is the use of the legal system to correct
law, clarify law, or bring policy into line with the law. In these 5. Is low-cost or pro bono legal help available, and would it
ways, it can bring broader, long-term changes in society. It remain available for the duration of the case?
begins by bringing a case to court. Sometimes, the case is 6. Do you have the time, commitment and funds to sustain
based on a legal complaint by an individual whose rights have your involvement in the legal process?
been violated. Other times an NGO or other agency can apply
to challenge a law or policy directly, without a formal plaintiff. 7. Are you confident that bringing the case is a better
use of your time and resources than other avenues for
If the court agrees to hear the case, then the government campaigning?
or a corporation has to respond to your legal evidence and
arguments, and so devote serious attention to the issue. If the 8. Will litigation support your broader campaign (rather
case is won, a state or corporation may be legally required to than distract from it) and if you lose the case, will the
change its policy; a judge could also rule that the law must be campaign still benefit?
changed to protect children’s rights more effectively. 9. Are the full financial costs of losing the case manageable?
If the case is lost, there can still be many benefits. Over 10. Is there only a low risk that an adverse ruling could set
the course of the case, a government often has to release back your campaign?
information that is not normally public; the media may
become interested; and the process can strengthen your If the answers to most or all of these questions is yes, then it
own expertise. Sometimes, the case prompts elements of is worth giving strategic litigation serious consideration.
government and parliament, who might previously have
ignored or discredited you, to discuss the change you are
calling for on its merits.
There are also risks, such as having to pay legal costs – your
own and your opponent’s – if you lose, although costs are
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USING THE LAW FOR CHILDREN’S RIGHTS:
AN INTRODUCTORY GUIDE
Sentenced to death for a crime allegedly committed when paper rather than in person, and within set time limits.
he was just 14, Shukur Ali became the centre of a lengthy Treaty bodies are only ‘quasi-judicial’ – they cannot force a
legal battle which ultimately led to mandatory executions government to change its policy or law – but a favourable
being declared unconstitutional. At a sham trial, Shukur judgement can support children to gain redress, while
Ali was convicted of the rape and murder of a young girl, strengthening your advocacy with parliamentarians, the
and sentenced to death by hanging. Bangladesh Legal Aid media and others.
and Services Trust (BLAST) contacted Ali. Their lawyers
In the case of the main children’s rights treaties – the
filed a case that the law he had been tried under was
Convention on the Rights of the Child and its Optional
unconstitutional. After nine sessions in court, the Supreme
Protocols – states activate the communications procedure by
Court agreed. Eventually, Ali’s sentence was commuted,
ratifying the CRC’s third Optional Protocol, known as OPIC.
but he will still spend the rest of his life in prison unless
the President pardons him. Since his imprisonment, the Under OPIC, any child or group of children may bring a
death penalty and life imprisonment can no longer be complaint, with the support of a representative if they wish,
used for convicted children, although the age of criminal if they believe that a state party has violated one or more of
responsibility in Bangladesh remains very low, at nine. Read their rights guaranteed by the Convention (and its Protocols
about Shukur Ali’s case on our case studies page. if they have been ratified). Special arrangements ensure that
the complaint is the genuine wish of the child or children
concerned. If the complaint is admissible, children are
Find out more supported through the process, which is conducted with their
best interests in mind, according to their age and maturity.
CRIN has published a comprehensive guide to strategic
The UN has published guidance and a model complaint form,
litigation.
which further ease the process.
CRIN also has a detailed guide on getting legal help.
The CRC’s complaint mechanism is very new and few
Read stories of strategic litigation for children’s rights on complaints have been complete, but the Convention’ covers
CRIN’s case studies page. a broader range of chidlren’s rights than any of the other
international mechanisms.
CRIN’s case law database documents cases involving
children’s rights around the world and their outcomes. You Find out more
can search by keyword to see whether your potential case has
The UN human rights site shows whether your state has
been brought in a similar form in another country.
ratified the relevant treaties and opted in to the complaints
Sign up for CRIN’s Children in Court monthly email. procedures. Select your country page, click ‘Status of
ratifications’, and scroll down to ‘Acceptance of individual
Bringing complaints to UN treaty bodies
complaints procedures’.
Eight of the nine major global human rights treaties are
CRIN has published a comprehensive guide to bringing
overseen by treaty bodies (committees), which can receive
a complaint under OPIC and another guide for bringing
complaints from individuals and groups of individuals. The
complaints to other treaty bodies.
main conditions are that:
1. The state has ratified the treaty and has opted in to its
complaints mechanism;
2. The complainant can substantiate their complaint with
evidence, and show that the state party is responsible for
the violation of their treaty rights; and
3. The complainant has exhausted domestic legal avenues,
unless those avenues are ‘unlikely to bring effective relief’
and/or would be ‘unreasonably prolonged’ (e.g. they may be
corrupt, very costly or too lengthy).
Most European and Latin American states have opted in to
at least some of the main treaties’ complaints mechanisms,
whereas most North American, Middle Eastern, African and
South and East Asian states have not; see map.
The process is usually simpler and quicker than bringing
a case to a national court. It is normally conducted on
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SCOPING
A LEGAL
ADVOCACY
STRATEGY
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There are so many avenues for legal advocacy that • For guidance, see Forms of legal advocacy, above.
finding the right way forward can be confusing. This
4. Focusing on the most promising options, how would you
section offers some guidance about how to scope
take this work forward?
your options and decide on a course of action.
• What are the prospects for success, in your view? What
are the ‘best’ and ‘worst’ outcomes?
Guiding questions
• What resources would be needed (time, money,
1. How and why are children’s rights being violated, and
people, legal advice)?
how does this affect children’s lives?
• Who are your potential partners?
• Which children’s rights issue are you and children most
concerned about, to which legal advocacy might make a • What are the obstacles and risks (to your organisation, to
difference? your campaign, to people)?
• Why does the violation persist? Why have traditional Having scoped your options, you may be ready to make
forms of advocacy and campaigning not yet stopped it? concrete plans to build a legal advocacy approach into your
campaign on the issue.
• Would successful legal advocacy bring lasting benefit to
children in practice? How?
2. Is there a strong legal case for change, and evidence to During CRIN’s workshop on child rights advocacy in
support it? Turkey, a group working on corporal punishment identified
a specific article of the Turkish Penal Code which needed
• With your chosen issue in mind, which international
to be challenged, and set out a plan to take this issue to the
laws are being violated in your country, and how? Which
constitutional court and then, if necessary, to the European
domestic laws are being violated, and how?
Court of Human Rights. Once they had decided on a target
• Do you have objective evidence – ‘hard’ or ‘soft’ – that and a pathway for their campaign, they were able to begin
these legal violations are occurring? How strong is the planning for the specific actions they would need to take in
evidence, in your view, and how much further research is order to achieve their target - i.e. the preparation of legal
needed to make the case? opinions, liaising with state authorities, involvement of the
legislature and the judiciary and fulfilling the conditions for
• What legal challenges have been made on the issue in the
appealing to regional human rights bodies.
past? What were their outcomes?
3. Which options for legal advocacy seem most promising?
• How viable is legal advocacy in your country? For
guidance, see Mapping the legal terrain, above.
• Of the four options for legal advocacy outlined in
this guide, which one or two seem the most likely to
strengthen your work on the issue, and which the least?
• Publicly exposing legal gaps.
• Using legal arguments to challenge policy and/or
practice.
• Using children’s right principles to improve the law.
• Bringing a legal complaint.
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USING THE LAW FOR CHILDREN’S RIGHTS:
AN INTRODUCTORY GUIDE
DEVELOPING LEGAL
ADVOCACY IN YOUR
REGION:
ORGANISING AN
NGO WORKSHOP
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To promote the use of legal advocacy around the Substantive agenda: Day one
world, CRIN has begun a series of workshops for
Plenary:
children’s rights advocates to devise their own legal
advocacy strategies. This section provides an outline • Introducing legal advocacy, with discussion.
template for organising a workshop in your own
• Naming the persistent violations of children’s rights in
country/region. CRIN can offer some support for this.
the country/region.
To date (2017), four workshops have taken place, each
• Grouping the violations as the themes for working
supporting participants with and without a background in law
groups.
to develop legal advocacy in the following issue areas:
Working groups:
• Turkey, 2011: Corporal punishment and children’s
economic and social rights. • Understanding the violation, how it affects children, and
why it persists.
• Nepal, 2013 (with participants from Afghanistan,
Bangladesh, India, Nepal and Pakistan): Juvenile justice • Recalling any legal advocacy on the violation so far.
and the trafficking of children. • Exploring options for legal advocacy now, and their
• Tanzania, 2015 (with participants from Kenya, Tanzania obstacles and risks.
and Uganda): A range of regional persistent violations of Substantive agenda: Day two
children’s rights, including privatisation of education and
ritual killings of children with albinism. Working groups:
• Ukraine, 2015: Children with disabilities, the oppression • Working towards concrete legal advocacy plans (template
of Roma children, violence against children, and access to of key questions is available).
justice. Plenary:
Workshop outline • Reports from working groups.
Below, in brief outline, are the process and agenda that • Agree next steps.
were used to organise these events, which can be adapted as
needed. If you are interested in organising a workshop, please • Final discussion and close.
contact CRIN and we can discuss the process in more detail. Follow-up
Preparation • Workshop report (template available).
• Identify potential sources of funding. • Follow-up meetings to take forward the commitments
• Identify potential participants from legal and non-legal made.
backgrounds and gauge their interest. Resources
• Secure funding. CRIN has published the reports from previous legal advocacy
• Agree a date, venue, partner/host organisation(s), and workshops.
participant commitment. CRIN can also provide examples of the papers, agendas and
• Agree working language(s) and arrange evaluation materials used in these workshops.
interpretation if necessary. If you want to organise a similar workshop in your country or
• Prepare evaluation form (template available). region, please contact CRIN.
Mail-out
With partner/host organisations, prepare and send out short
introductory briefing on persistent children’s rights violations
in the country/region.
• Send out draft agenda.
• Send out questionnaire asking participants to identify:
their current legal advocacy work, if any; examples
of successful legal advocacy action; any forthcoming
opportunities for such action; and any other issues
that may be relevant to the workshop.