The Communications Procedure to the UN Convention on the Rights of the Child

Wednesday 28 December 2011

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1. This brief note looks at the Communications Procedure to the UN Convention on the Rights of the Child and brings practitioners up to date on where the Optional Protocol is at in terms of adoption and ratification by the General Assembly. The Protocol has been approved by the UN General Assembly and is open for signing and ratification. It will come into force once at least 10 states have signed and ratified the Protocol.

What is this?
2. The 3rd Optional Protocol to the UNCRC will establish a complaints / communications mechanism to allow individuals who claim that their rights have been violated by a State that is party to the UN Convention on the Rights of the Child to bring a complaint before the Committee on the Rights of the Child.

3. Currently, five of the human rights treaty bodies can, under certain circumstances, consider individual complaints or communications from individuals:

(i) Human Rights Committee under the International Covenant on Civil and Political Rights - States must have ratified the First Optional Protocol to the ICCPR)

(ii) Committee to Eliminate Racial Discrimination, under the Convention on the Elimination of All Forms of Racial Discrimination - States must have made the necessary declaration under article 14 of the Convention

(iii) Committee against Torture, under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment - States must have made the necessary declaration under article 22 of the Convention

(iv) Committee to End Discrimination against Women, under the Convention on the Elimination of all Forms of Discrimination against Women - States must have ratified the Optional Protocol to the Convention

Why such a mechanism?
4. The Convention on the Rights of the Child is the only international human rights treaty with a mandatory reporting procedure which does not have, in addition, an existing or draft communications procedure.

5. While children and their representatives can use the mechanisms established under other international instruments to pursue many of their rights, those instruments do not cover, separately or together, the full range and detail of rights in the CRC.

6. Furthermore, communications or complaints made on behalf of children to the other bodies will not be considered by a Committee with special expertise on children’s rights.

7. This mechanism would give the child a voice of his/ her own to take up violations directly with the UN Committee on the Rights of the Child.

What will this mechanism give to the voice of the child?
8. Requirements for the mechanism are in some ways similar to the requirements for other existing complaints mechanisms:

• a specific individual or group of individuals must be identified (Article 5(1)) and must consent to bring complaint forward. (Article 5(2))
• complaint alleges in good faith that the State Party in question has violated one of the rights in the convention / covenant
• effective domestic remedies have been exhausted (Article 7(e))
• case is not already under consideration by another international or regional communications procedure
• complaint is submitted within a certain time period after the final decision on the case by a national authority

9. What is different about the CRC complaints mechanism?

• Committee would be guided by the principle of the best interests of the child (Article 2)
• Must have regard to the rights and views of the child and those views must be given due weight in accordance with age / maturity of the child (Article 2)
• Must be child-sensitive procedure (including preventing the manipulation of child by those acting on his / her behalf) (Article 3(2))
• May decline to examine any communication it considers not to be in the child’s best interests. (Article 3(2))
• Provision for anonymity in complaint from individual or group of individuals. (Article 4(2))

10. Pursuant to Article 6, the complainant child may ask for interim measures “as may be necessary in exceptional circumstances” to avoid possible irreparable damage to the victim / victims of the alleged violations.

11. The test for admissibility is set out in Article 7:

(a) cannot be anonymous
(b) must be in writing
(c) must not be an abuse of the right to make a submission of a complaint;
(d) must not have been / is being examined by another procedure of international investigation or settlement
(e) domestic remedies must be exhausted BUT not if “application of the remedies is unreasonably prolonged or unlikely to bring effective relief”
(f) must not be manifestly ill-founded or not sufficiently substantiated
(g) must not be facts arising before entry into force of the protocol (unless those facts continued after that date)
(h) must be submitted within 1 year of exhaustion of domestic remedies (save for where can demonstrate that it had not been possible to submit the communication within that time limit)

12. Procedure:

(i) Is it admissible?
(ii) If yes, then Committee will communicate the complaint to the State Party “as soon as possible”: Article 8(1)
(iii) State will then reply with written explanation/ statement clarifying matter and the remedy, if any. This must be done within 6 months of communication: Article 8(2).
(iv) Committee shall consider all evidence “as quickly as possible”: Article 10(1). What this means is undefined.
(v) In respect of allegations re: violations of economic, social and cultural rights, Committee should consider reasonableness of steps taken by the State party in accordance with Article 4 of the UNCRC.
(vi) Committee shall communication its view with recommendations.
(vii) State shall ‘give due consideration’ to the views of the Committee together with its recommendations and submit a response, including information on any action taken and envisaged in light of views and recommendations. Again, this is done within 6 months: Article 11(1).
(viii) Committee may invite State to submit further information about any measures the State has taken in response to views / recommendations or arising from friendly settlement: Article 11(2).

13. There can also be inter-state communications: Article 12. (Currently, under CAT CEDAW and Convention re: Migrant Workers, this can be done)

14. Inquiry procedure is set out in Article 13. (Currently under CAT and CEDAW, committee can initiate inquiries on own initiative.)

15. Under the Optional Protocol, this can be initiated where: (Articles 13 & 14)

(i) Committee receives reliable information indicating grave / systematic violation by a State party;
(ii) Shall invite State party to cooperate in examination of information and submit observations with regard to information concerned;
(iii) Inquiry shall be conducted confidentially with cooperation sought from the State party;
(iv) Findings shall be communicated to State with comments and recommendations
(v) State party to respond with observations within 6 months
(vi) Committee may decide to report to member states about the inquiry upon consultation with State party
(vii) Committee may follow-up with recommendations from the inquiry with the State.

16. State party may make a declaration at any stage of signature or ratification or accession to the Protocol that it does not recognise the competence of the Committee: Article 13(7).

Arguments made against the Protocol and Answers to those arguments
17. “It would duplicate existing mechanisms”:

18. Given the universality and inter-dependence of human rights there is of course overlap among the various instruments. However the CRC provides distinctive and in some cases additional rights for children and its Committee has special expertise on children. None of the other relevant mechanisms have been designed with the special status of children in mind. Provisions in the Protocol would avoid duplication.

19. “It would be preferable to establish a joint procedure for considering communications/complaints under all the major international instruments”

This proposal, made in the context of proposals for a single standing treaty body, has never had the support of the Committee nor of the wider children’s rights community because of the dangerous risk of a loss of focus on children’s rights. It would undermine the purpose and power for children of the CRC. And if there is, in time, some centralising of response to communications, children’s position will be relatively weak if there is no procedure linked to the CRC.

20. “It is better for the Committee to focus on persuading States to improve national remedies for breaches of children’s rights”

This is not an alternative; of course States need to develop effective remedies for breaches of all children’s rights. Children and their representatives also need to be able to appeal beyond the State when rights are breached and national remedies do not exist; having international remedies available in fact encourages the development of national remedies.

21. “The CRC covers economic, social and cultural rights, which are not justiciable like civil and political rights”

In its General Comment No. 5 on general measures of implementation, the Committee emphasises, echoing other Treaty Bodies, “that economic, social and cultural rights, as well as civil and political rights, must be regarded as justiciable”. Regional complaints mechanisms already consider economic, social and cultural rights and an OP to the International Covenant on Economic, Social and Cultural Rights is currently being drafted.

22. “The Committee does not have the capacity to deal with communications on top of its very demanding reporting process”

The Committee and the Secretariat have risen to the challenge of the massive workload of reporting under the CRC and the two existing Optional Protocols, removing the backlog through the temporary two-chamber system, supported by additional resources. Similarly, with appropriate specialisation and additional resources, it could - like other Committees - process communications.

23. “The Committee would be swamped with complaints, undermining its credibility”

Other procedures have not been swamped. All have reasonable gate-keeping devices which could be incorporated.

What stage is it at?
• June 2011 – Optional Protocol adopted by Human Rights Council
• November 2011 – Third Committee adopts Optional Protocol by consensus
• Now ready for adoption by the UN General Assembly probably in December and will be open for signature and ratification thereafter.

What this means domestically?
24. UK has been resistant to the idea of the Optional Protocol and has contended that this procedure does not bring value to the existing system of monitoring by the Committee on the Rights of the Child.

25. UK will still need to sign and ratify the Optional Protocol.

26. It is difficult to see how the UK could avoid doing so in light of the judgment of the Supreme Court in ZH (Tanzania) [2011] UKSC 4 per Lady Hale at §34:

34. Acknowledging that the best interests of the child must be a primary consideration in these cases immediately raises the question of how these are to be discovered. An important part of this is discovering the child's own views. Article 12 of UNCRC provides:
"1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law."
27. Children may have access to publicly funded lawyers and may also have advocates and social workers willing to speak up for them, but they can in reality only pursue their rights through what is provided for in the present legislation and policies. UNCRC is after all not incorporated into UK law and we tend to be heavy on civil liberties and less on socio-economic rights (see for example no legal aid for education / special needs cases, etc).

28. Role of the Protocol in the context of domestic law: this would potentially create an additional means of ensuring the best interests of children are protected.

29. Committee on the Rights of the Child may create ‘case law’ to ‘interpreter the UNCRC – could read in tandem with the Vienna Convention on the Law of Treaties: see Article 18 of the Vienna Convention.

CRIN produces a helpful guide on international child rights mechanisms - http://www.crin.org/docs/CRIN_Mechanisms_2011.pdf

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