Can laws protect the world's children?
An international legal framework for children's rights was created 25 years ago, but enormous challenges remain in the adoption and enforcement of national legislation aligned with international law. White & Case works closely with leading nongovernmental organizations to help protect children around the world.
In a seminal 1973 article in the Harvard Educational Review, Hillary Rodham Clinton, at the time a lawyer with the Children's Defense Fund, called children's rights a "slogan in search of a definition." Sixteen years later, the term was not only defined, it was codified in the 1989 Convention on the Rights of the Child (CRC), the most widely ratified international human rights treaty aiming to protect all children, in all countries and cultures, at all times, regardless of race, gender or class. In the years since the treaty was drafted, further progress has been made regarding children's rights, on both domestic and international levels.
Does society evolve in response to legal reforms, or do legal reforms merely reflect, and adapt to, societal changes? When accepting pro bono projects, we look for work which seems capable of creating conditions for genuine reform.
Ian Forrester, Retired Partner, former Global Pro Bono Practice Leader
The CRC does not take precedence in most countries over domestic law, yet its existence has inspired change at the national level. South Africa has implemented changes such as the prohibition of corporal punishment and the development of a separate legal system. Morocco has established a National Institute to Monitor Children Rights. Numerous countries have adopted new codes on intercountry adoption, sexual exploitation and juvenile justice, overturning previous laws that are incompatible with the treaty's principles.
But challenges remain. "The most obvious issue is incorporation, bringing international law into national law," said Leo Ratledge, Research and Policy Officer at the Child Rights International Network (CRIN).
A global database on children's rights
CRIN called on White & Case to create a database profiling the legal framework for children's rights in each country and its relationship to the CRC. More than 200 lawyers and legal staff across our network researched the legal regimes in 172 countries.
As the first comprehensive collection of its kind, the database focuses on access to justice for children and looks at different ways in which national legal systems have used international instruments to enforce rights. Each country profile includes information on whether the CRC can be enforced directly in that system's courts, as well as information on a child's access to venues, legal aid, representatives, evidence, resolutions, appeals and more.
Reflecting on the value of the database, CRIN's Leo Ratledge notes, "I think the two most important sides of the project are putting together information on access to justice for children around the world—because there is such a lack of comprehensive information now—and providing a tool that individuals and nongovernmental organizations can use to bring more countries into alignment with the principles of the CRC. We want to pick out good examples from around the world to find ways that national legal systems can provide children with access to justice. Ultimately it is about highlighting gaps where reform is needed. The next challenge for us and our partners, once we have identified those gaps, will be to pursue reform." Leo adds, "There's no ideal country. For example, in some states the CRC is directly enforceable but legal aid provision is patchy, and in other states the opposite is true."
Read "Implications of the USAID Partner Vetting System and State Department Risk Analysis and Management System under European Union and United Kingdom Data Protection and Privacy Law" by our lawyers Neal Cohen, Robert Hasty and Ashley Winton about our work on behalf of Save the Children Intl.
This Research and Policy Paper of the Counterterrorism and Humanitarian Engagement Project is used under CC BY 3.0/reformatted for presentation purposes only.
Global law firms and the international legal community can play a role in addressing many of these issues. Ian Forrester, a retired partner and the Firm's former Global Pro Bono Practice Leader, reflects on our approach: "Over the years, we have acted for children facing a range of problems, including the threat of deportation, inadequate education, even accusations of being the child of a witch. At the same time, we have an interest in pro bono projects that might offer the chance of changing the legal environment for children and their families. Does society evolve in response to legal reforms, or do legal reforms merely reflect, and adapt to, societal changes? When accepting pro bono projects, we look for work which seems capable of creating conditions for genuine reform." We do thousands of hours of pro bono work and volunteering each year dedicated to protecting vulnerable children. The situation is often dire, but progress is being made. Our work has brought the following examples to the fore.
It is against international law to execute a person who committed a crime before the age of 18. Child execution is one of the most brutal problems in the treatment of children who come into conflict with the law, but it is not the most prevalent.
Lack of access to legal assistance, the right to privacy, the right to protection through the CRC, and unfair treatment in juvenile detention are far more common challenges faced by a child who comes into contact with the law, whether by committing, witnessing or being victimized by a crime.
CRIN has launched a campaign against inhumane sentencing that aims to end the death penalty, life imprisonment, corporal punishment and other such violations of children's rights. CRIN's Leo Ratledge notes that there are a range of forms of life imprisonment, from the direct sentence of life imprisonment without parole, used only in the United States, to many less overt forms with the same result. "This is one of the areas that's very poorly understood and hasn't really been addressed properly at the international level," he said.
Some countries have introduced programs to support imprisoned children. In Argentina, the 2005 national Law for the Integral Protection of Children and Adolescents calls for institutionalized children to be integrated back into society and protects them from abuse and exploitation. In Austria, the sentencing judge meets with detained children once a month and drafts follow-up reports.
Estimated percentage of trafficked victims who are children
Children without parents
The number of children deprived of parental care is on the rise in many countries. According to a report issued by UNICEF's Monitoring Eastern Europe Project, no country in Eastern Europe shows a declining rate. There are millions of orphans who live in institutions or on the streets and are at risk for disease, exploitation, trafficking, malnutrition and death. In many cases, legal help and other services to parents in times of short-term hardship can prevent overly hasty decisions to place children in orphanages and foster care.
An estimated 20 percent of trafficking victims are children. Whether forced into criminal behaviors, labor, begging or the sex industry, children are trafficked in virtually every country in the world, yet there are few consequences for traffickers.
Governments are faced with several obstacles to prosecution. Among them is the difficulty identifying a victim—many do not even know they are being trafficked—which can result in inadvertent deportation. Enforcement is also a key issue. For example, the government of Zimbabwe created the Children's Protection and Adoption Act, which ensures the safety of children under 16 years of age, but the state admits it lacks the resources required to enforce it.
In the latest twist of an age-old scourge, digital technology has made it harder to protect victims because there is no longer the option to destroy the negative. "People will be trading and looking at these images forever," said Carol Smolenski, Executive Director of the US chapter of the End Child Prostitution and Trafficking (ECPAT) network. In a recent report, ECPAT International emphasized the importance of recognizing "the role of the sexual exploiter as sometimes being separate from that of the sexual abuser," as it would "possibly mean legislating more firmly against some exploitative practices."
This issue was recently tested before the US Supreme Court in Doyle Randall Paroline v. Amy Unknown, which will decide the extent of the harm for which the viewer of the pornography is responsible. White & Case submitted an amicus brief on behalf of ECPAT International in support of the respondent. "The fact is, lots can be done and lots has been done," said Carol. "It is important for me to say, because some people think the problem is so awful, such a big thing, that nothing can be done."
The fact is, lots can be done and lots has been done. It is important for me to say, because some people think the problem is so awful, such a big thing, that nothing can be done.
Carol Smolenski, Executive Director, End Child Prostitution and Trafficking-USA
In an era marked by globalization and an expanding array of treaties and customary norms that seek to regulate prior national legislation, incorporation remains at the forefront of the challenge. By conducting research that sheds light on these issues, providing pro bono legal representation and helping draft legislation or promoting prosecution, global law firms have many opportunities to help ensure a better future for the world's children.
Here are a few examples of our work with some of the world's leading non-governmental organizations on behalf of children around the world.
- Center for Reproductive Rights
A survey of legal approaches countries have taken to adolescents' ability to consent to marriage or sexual conduct, as well as access to health services for adolescents.
- Child Rights International Network
More than 200 lawyers and legal staff researched the rights of children in 172 countries.
- Family Academy Center
Corporate advice to this NGO, which seeks to improve the child rights infrastructure and the quality of family- and child-oriented social services in Kazakhstan.
- Seeds of Peace
Corporate and employment advice to this international NGO, which runs a camp for youth from areas of conflict and offers leadership development programs globally.
- SOS Children's Villages
Advice to a growing number of Villages, including those in the Czech Republic, Germany, Italy, Kazakhstan, Mexico, the United Arab Emirates and the United States, which provide long-term care for orphans and children in need.
- Worldwide Orphans Foundation
Corporate advice to this international NGO, which seeks to enrich the lives of children living in orphanages around the world.
A LANDMARK VICTORY FOR NEW YORK CITY SCHOOLCHILDREN
White & Case earned a "Highly Commended" rating from the Financial Times in its 2013 US Innovative Lawyers report for our partnership with New York Lawyers for the Public Interest to convince the City of New York to remove aging light fixtures containing toxic polychlorinated biphenyls (PCBs) from the
city's public schools by 2016, five years earlier than the previous deadline of 2021. As described by the Financial Times, the Firm "used a novel interpretation of environmental law to argue for the removal of lights containing a harmful chemical from New York schools."
In the United States, White & Case lawyers handle numerous adoptions, guardianships and guardian ad litem matters, as well as work on foster care system reform and access to education for special needs children.