The Strategic Litigation Working Group (SLWG) has launched a discussion paper with eight key proposals regarding the follow-up on views issued by United Nations human rights treaty bodies (UNTBs). ESCR-Net’s SLWG recognises the significance of decisions issued by UNTBs under the complaints procedures (Views) in the advancement of human rights enjoyment by people around the world, and welcomes the past action and willingness of the UNTBs to continue developing constructive practices regarding the impact and implementation of such Views.

Three principles underpin the SLWG’s proposals: the principle of non-repetition (consistently applied by the HRC in its views and by the CESCR in its General Comments); the principle of reasonableness (developed by the CESCR through its General Comments and 2007 Statement on Maximum Availability of Resources, and made explicit in the OP-ICESCR); and the principle of participation (recognised under a number of UN human rights treaties). Taking into account the practice of different international and regional human rights bodies, the SLWG proposes that the three principles should be applied during the consideration of a case, follow up and implementation, in order to maximise the effectiveness of human rights remedies.

While many authorities can tolerate some traditional campaigning methods, it is usually harder to ignore the law. As part of broader campaigns, the law can be a powerful tool for achieving the changes that children need. Legal advocacy is now being used systematically in a few countries – leading to strong outcomes for children – and it has great potential for wider use.

There are many occasions for legal advocacy. International law sets out the principles and standards that states are obliged to meet but frequently do not, and so their domestic law violates children’s rights. Often, a state meets a standard in domestic legislation but its policy fails to implement the law. Sometimes, it is unclear what a law means in practice, or the meaning is clear but no one knows whether it is being implemented. These various gaps between international legal standards, domestic law and state policy (or corporate policy) present potential opportunities for legal advocacy.

There are also many avenues for legal advocacy. It is a 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 and practice is enough to persuade decision-makers to act. But only sometimes. Towards the other end of the spectrum is work that demands more time and resources, including taking a government or corporation to court in order to bring broader social change. A successful case might improve the legal standards that apply to children, or lead to a major policy change of long-term benefit to children.

This introductory guide offers a brief overview of avenues for legal advocacy. It also offers guidance on how to explore your options, and how to promote legal advocacy work with other children’s rights advocates.

In South Africa, SECTION27 has used rights-based strategies, including litigation, to hold the state accountable for not ensuring the procurement and delivery of textbooks to schools across Limpopo, a poor rural area of the country.

Key resource

RTE's background paper for the Global Education Monitoring Report 2017/8: Accountability in education: Meeting our commitments.

The purpose of the paper is to show how a human rights-based approach offers insights and practical solutions to address the accountability deficits found in both education policy decision-making and implementation, and the 2030 Agenda for Sustainable Development.

Specifically, the paper argues that a human rights-based approach to accountability can bolster public policy accountability by defining the responsibilities of authorities, ensuring they are answerable for actions regarding those responsibilities, and how they can be subject to forms of enforceable sanctions or remedial action for failures to carry out those responsibilities.

The second half of the paper explores the prevalence of the right to education in national laws and the conditions necessary for the right to education to be successfully adjudicated at the national level. It provides an overview of how countries have incorporated the right to education in their domestic legal orders, as well as a list of countries where the right to education is justiciable. This is complemented by a series of case studies that draw out the requirements for successful adjudication at the national level.

This paper examines court cases from countries around the world to identify the conditions that enable the right to education to be realised through adjudication.

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