(please ignore the text in brackets – this will not be spoken)

Alan Kikuchi-White

INTRODUCTION

It’s my pleasure this afternoon to make some closing remarks about potential follow-up activities from this conference and to present what appears to be a very long list of potential activities;

Despite limited grasp of the English language, and my natural born Scottish predilection for speaking at 100 kilometres an hour – much to the annoyance of our most important collaborators in the interpreter’s booth – I plan to try and do this in as coherent and concise a manner as possible.

In preparing this presentation I have been listening intently the expert presentations, workshop discussions and reviewing application forms all of you submitted prior to the event. Based on that I will make reference to,

  • internal and external awareness raising,
  • to training, mentoring, and capacity-building,
  • to establishing and strengthening strategic partnerships and networks,
  • to planning and preparing activities to take up the legal use of the CRC,
  • before finishing with general comments for an extremely varied audience in terms of experience, roles, and potentials.

I will try to present those with respect to short, medium, and long term activities that can contribute to a plan of action along the lines of a five-year plan.

AWARENESS RAISING and TRAINING

Awareness-raising, communicating the lessons learned from the conference, and developing capacity building training for internal and external audiences, have been identified by many participants. Clearly the dissemination of the outcomes and report of this meeting is an important starting point to bringing the ideas we have all learnt to a wider audience of internal colleagues, coalition partners, judicial organisations, and other state and non-State agencies.

On this issue a number of relatively short to medium term initiatives may be relevant for all of us.

  • Arranging the translation of the outcomes into national/local languages.
  • Holding internal and external workshops to discuss and explore issues.
  • Making use of media contacts to get messages to a wider possible audience.
  • Designing and delivering in-house and external training programmes.
  • For example through “certified training” and “action learning”
  • Organising national/regional conferences along the same lines as this event.

All initiatives to raise awareness and provide training are important first steps in the process of generating interest, building capacity, and inspiring action, and on this point in particular, it seems important to emphasise the need to ensure the continued sharing of the expertise and experience in this room through the development of new partnerships and networks at the national, regional, and international level.

PARTNERSHIPS & NETWORKS

The potential impact of Strategic Litigation has been a key discussion throughout our discussions and it is perhaps with reference to this issue that the varying levels of experience and expertise in the room should be highlighted. One need only look to representatives here from Argentina (via Texas), the Gambia, South Africa, and Hungary, to name only a few, to find extensive experience of the use of strategic litigation as an organisational “flagship” programme. On the other hand for many of us, and I include myself in this category, many of the ideas discussed here are both novel and, I hope, inspiring.

How then, following this conference, can those with an interest in developing activities to promote the legal use of the CRC strategic litigation within their organisations and coalitions, continue to benefit from this experience and expertise as they venture into relatively new and potentially complex territory?

You may recall from your conference handbook, and from Peter Newell yesterday, that CRIN will very shortly be launching a new CRINMail dedicated to child rights litigation including a database of jurisprudence. So in some ways questions about the need for a repository of knowledge and experience, and opportunities for global information sharing, are ready to be answered.

  • We encourage all of you to sign up to this new CRINMail and also to contribute documentation on your experiences and other resources to this initiative.

In addition to these initiatives we also suggest that the NGOs and international agencies form a Working Group to explore the feasibility and funding opportunities to establish a global focal point - to develop and expand the capacities of regional programmes to develop networks and partnerships to promote the legal use of the CRC

The intention being, to ensure the direct exchange of expertise and advice from individuals and organisations with relevant experience to encourage and support less experienced organisations, to develop litigation strategies, to identify and pursue cases, or otherwise contributing to the legal impact of the CRC through case referrals, amicus curiae, or campaigning work. For example, we identify the need for:-

  • Global coordination to ensure cross-regional strategic exchange and partnership contacts. Working in collaboration with and in support of….
  • Assigned regional/national mentors to provide advice, capacity-building, and other support to organisations and coalitions at the national level.

STRATEGIC LITIGATION

For national NGOs and coalitions, particularly those seeking to develop strategic litigation as a programmatic approach certain initial steps seem to be required before engaging fully with, and seeking to file particular cases, in what can be a highly rewarding activity which is, as we have heard, also not free of risk.

As a fundamental starting point situation analysis on various issues are suggested,

For example,

  • a Comprehensive review of national legislation to identify legislative gaps relating to the convention (posing a basic question on the presence or lack of, for example, a specific and comprehensive Child Act in line with the CRC.)
  • also specific child rights situation analysis to identify broad social issues with a view to identifying potential cases (which serve to exemplify the need for legislative reform, development, or enforcement).
  • an Analysis of previous strategic litigation in the national context and the factors behind, its successes and failures.
  • an Examination of the national rules and procedures of court systems with respect, for example, the standing of children or NGOs before the court, the rules of evidence, and appeals procedures with respect to moving complaints up to higher national or regional courts, or to Treaty Body mechanisms – perhaps even through a future complaints mechanism to the Committee on the Rights of the Child in the future.

Emerging from a network/mentoring approach, and the need to develop new partnerships, we also note the important role of academic institutions and, in particular, establishing working relationships with between NGOs and university legal clinics. It is clear from the jurisprudence presented in the conference literature that such clinics have played an important role in many specific cases.

Within national NGOs where there are potential concerns with respect to a lack of in-house legal expertise, research capacity, or the financial resources to pursue a case…then the active participation of an expert legal department, the potential for pro-bono legal research by law students, and the potential to take advantage of the litigation experience of an important academic figure of potentially international standing may provide vital support.

Of course, as we perhaps begin to foresee the development and growth of strategic litigation as a result of the follow-up activities of this conference we should perhaps also flag the need to identify new potential academic partners within suitably eminent academic law departments who can provide a focus on the links between international law and domestic legislation. As this kind of resource also has limited capacity there may also be a need to be proactively advocating for necessary increased capacity in this valuable resource in institutions where this kind of clinic is not currently available.

We also highlight the need, for all present, to proactively seek out new potential partners to bring multi-disciplinary expertise and perspectives into strategic litigation. How, for example, can litigation focussed NGOs and organisations be brought together with advocacy focussed NGOs to work together on establishing jurisprudence through strategic litigation and maximising the broader social impact through campaign or advocacy initiatives?

OTHER POSSIBILITIES

Of course it has been noted that strategic litigation remains only one possible option for national and international NGOs to promote and participate in the legal use of the CRC. Given for example, potential costs, and possible risks of engaging directly in strategic litigation a number of other activities remain open to NGOs who are able to contribute in other ways.

Child rights NGOs can, of course, bring their specific expertise and experience of their programmes into legal proceedings in a number of ways in support of litigation. For example:

  • Acting as a friend of the court and providing the court with, for example, expert guidance (on the obligations) of the convention, research (materials) on violations, reviews of (relevant) jurisprudence, and the Concluding Observations of the Committee on the Rights of the Child, in the form of Amicus Curiae briefs.
  • In this regard one specific follow-up activity is to investigate the procedural rules on being recognised as a friend of the court.
  • As we have also heard child rights NGOs, with campaigns and advocacy experience, can become key partners in working towards the broader social impact of individual judgements (and the need to lobby for reform, enforcement, or the development of legislation.)
  • In this regard a specific follow-up activity for litigation focussed organisations could be actively seeking out relevant campaigns focussed partners to engage in ongoing or intended litigation.
  • Alternatively for national and international NGOs with ongoing campaigns there is an opportunity, through research into ongoing litigations, to identify relevant cases which might provide the specific example to add substantial weight to the campaign.
  • Also, the difficulty of identifying significant and strong cases that exemplify particular social issues has been identified and this offers another opportunity for national and international NGOs to provide specific referrals to litigation partners to jointly assess the potential to pursue a case.

GENERAL COMMENTS

In summary, it is clear to me that we all share a common goal to ensure that States execute their obligations under the Convention there are a few general and varied messages for follow-up by the various organisations represented here.

For international, regional and national organisations with experience particularly in strategic litigation the question is how can that expertise and experience be brought to the fore in support of developing strategic litigation programmes with other NGO partners at any level, through knowledge sharing, mentoring or other capacity building activities?

For national and international NGOs seeking to develop initiatives to promote the use of the CRC as a legal instrument the questions relate primarily to issues of programme development, available funding, capacity, and staffing.

Any NGO unsure of the potential of, or concerned with potential risks or costs, in directly bring litigation can investigate other avenues to contribute expertise or resources such as, for example, providing case referrals to litigating partners, providing expert advice on issues to litigants, establishing amicus curiae status to bring that expertise into the courtroom, or providing advocacy expertise to work towards the broader social impact of any case – which of these represents the best opportunity for you to get involved?

For the donors the main question is clear. Do funding programmes include a specific strand to ensure support for national NGOs, national coalitions, international NGOs, child rights networks, university legal clinics, or other initiatives to promote the use of the CRC as a legal instrument.

For States party to the CRC the main question is to what extent is the CRC fully integrated in domestic legislation and is further analysis and/or action required to ensure adequate domestic remedies for violations of child rights and, as such, to guarantee the justiciability of all child rights in domestic law. In terms of shifting the emphasis from legal reform to implementation one might also pose the questions whether or not the legal commitment to child rights is reflected in appropriate budget allocations to child oriented services.

In suggesting one final activity, as the climax to a longer term “five-year plan” of activities to promote the legal use of the CRC we suggest an evaluation focussed follow-up conference in 2014, to share progress on cases, lesson learned, successes and challenges, in ensuring the legal enforcement of the CRC.

In conclusion,

I hope you will share with me, the ambition that the follow-up to this event is an opportunity, once and for all, to dispel the myth that the Convention presents an aspirational “wish-list”, with which we ask States to take action. That from now on we we “take the bull by the horns” and take matters of violation, accountability, and redress, into our own hands as defenders of children’s rights! With that spirit of action, and the need to begin the work without delay I close with one final question “what are your plans for Monday morning?”

Thanks you for your attention…and for all your hard work over the last two days!