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19 December 2011: UN GA Adopts Complaints Mechanism

November 2011: Third Committee of GA adopts Optional Protocol by consensus 

June 2011: HRC Adopts Draft Optional Protocol

Campaign for a CRC Complaints Mechanism

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Menu: What is it / Why such a mechanism / How would this be done? / Latest News / Challenges and objections: Q & A / Supporters / what can you do / links & further reading / petition / Lobby your government


A group of agencies are campaigning for the United Nations to establish a communications/complaints mechanism to the Convention on the Rights of the Child (CRC). Such a procedure would provide a mechanism that would ensure the availability of legal remedies for children at the international level.

What is it?


A complaints or communications procedure allows individuals, groups or their representatives who claim that their rights have been violated by a State that is a party to a convention or covenant to bring a complaint before the relevant committee, provided that the State has recognised the competence of the committee to receive such complaints.


Why such a mechanism?


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. This is a serious matter of discrimination against children. [See existing complaints mechanisms]

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.

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. Similar persuasive arguments were made for the adoption of the communications’ mechanisms under CEDAW and under the new Convention on the Rights of Persons with Disabilities.

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How would this be done?

The most likely method to establish a communications mechanism would be through the development of a new Optional Protocol (OP) to the CRC. This would require:

  • Building momentum for the Human Rights Council (HRC) to establish a UN Working Group with the mandate to consider elaborating such an instrument
  • Lobbying the working group to influence the drafting procedure
  • Lobbying members of the General Assembly to ratify the protocol to bring it into force
  • Undertaking more campaigning to bring about widespread ratification


Latest News:

Representatives of the group met with the UN Committee on the Rights of the Child in September 2007 to seek its support for the drafting and adoption of an Optional Protocol. There was an enthusiastic response from many members and it was agreed that a more detailed paper would be prepared for the Committee's next session in January 2008, setting out possible provisions for the Protocol, answering in more detail the challenges to ensuring a mechanism that is child-sensitive and effective and analysing the experiences of the other treaty bodies and regional mechanisms.

German initiative underway

The German NGO Kindernothilfe started at the beginning of 2000 lobbying for a new Optional Protocol. Meanwhile three Human Rights and Child Rights Networks in Germany are supporting the initiative: German Forum Human Rights (48 organisations), German National Coalition for the Implementation of the UN Convention on the Rights of the Child (102 organisations), ECPAT Germany (31 organisations). A working-group within the German Forum Human Rights, chaired by Kindernothilfe, is coordinating further lobby activities.


African Initiative underway

A group of organisations in Kenya, chaired by The Cradle, recently set up the Complaints Procedure Working Group to campaign for a communications procedure for the UNCRC. Find out more here: http://www.crin.org/resources/infoDetail.asp?ID=15331.

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Challenges and objections: Questions and Answers

Answering arguments put forward against a communications procedure for the CRC

“It would duplicate existing mechanisms”:

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.

“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.

“It would not be effective, its decisions would be non-binding”

This is a defeatist argument against all the other established procedures. While some States have not complied with some decisions on individual communications (just as some States ignore Concluding Observations), there are very positive examples of changes in law and practice following decisions. Communications procedures are complementary to the reporting process; they reinforce each other.

“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.

“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.

“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.

“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.


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Who is supporting the campaign?

A core group of agencies is supporting the establishment of a communications procedure for the CRC, including: World Vision International, Save the Children UK, Save the Children Sweden, Save the Children Norway, the Global Initiative to End All Corporal Punishment of Children, CRIN, Kindernothilfe, the World Organization Against Torture (OMCT), SOS-Kinderdorf International and the European Network of Ombudspersons for Children (ENOC) and Plan International.

What can you do?

If you would like to support this campaign or would like further information, contact CRIN on: info@crin.org

Lobby: Download the lobbying pack

What states are saying so far

European States
Some European States are already supporting the resolution establishing the Working Group, including: France, Slovakia, Slovenia and the Ukraine.

States that support the idea but do not yet have a formal position include Azerbaijan, Denmark, Finland and Liechtenstein.

Sweden and the UK are, for now, the most reluctant : they question the added value that such a procedure would bring to the existing system.

Arguments in support:

  • Although the European Court of Human Rights and other existing international mechanisms have reviewed cases where children were victims, their founding instruments (European Convention on Human Rights, ICCPR, CAT, CEDAW, etc) do not encompass the full range of child rights as provided under the CRC and its two existing Protocols. This means that those unique rights cannot be taken into account.
  • None of the existing bodies have expert knowledge on child rights, contrary to the Committee on the Rights of the Child.
  • Most European States are Parties to other international communications procedures, it might be worth emphasising that establishing a communications procedure under the CRC would strengthen the UN Treaty Body system as a whole and recall that the aim of all those communications procedure is to strengthen the implementation of core UN human rights treaties at the national level.
  • A communications procedure under the CRC would reinforce domestic procedures by setting a model for child-sensitive procedures and providing decisions similar to case-law for a better implementation at the national level.

 


African States
Although all African States support the idea in principle, they generally feel defensive about such a communications procedure as they are concerned about the issue of child representation.

Arguments in support

  • A communications procedure under the CRC would be a very similar mechanism to the existing African Committee of Experts under the ACRWC with similar safeguards as to who can submit a communication (internationally recognised NGOs, for example).
  • The establishment of a communications procedure under the CRC could strengthen the work of the ACERWC thanks to cooperation mechanisms between those two bodies.
  • As the pioneers of a communications procedure dedicated to address violations of child rights at the regional level – the ACERWC is the only existing body to review communications on child rights in the world – African States should be active parts of the process establishing a similar mechanism at the UN level.

 


Latin American States
Although children's rights are generally an important issue for the Latin American and Caribbean States, no State has yet reached a formal position. The key States that could trigger some impetus in Geneva are Uruguay, Mexico and Chile. Other support would of course be welcome.

No particular concerns have been expressed. It would be important to remind them that the current sponsor of the resolution wants to present it for adoption at the next June session and to stress that without their official support, the process of adopting such a resolution might be delayed.

Asian States
The Republic of Korea and the Philippines are cautiously supporting the initiative. Japan and Thailand could be the two other key States to be convinced.

It is not yet clear what impedes them to support the initiative officially and any information in this regard would be extremely useful. It seems that they are not clear about the relationship between domestic procedures and the communications procedure.

Arguments in support

  • A communication or complaint will only be reviewed by the CRC after the exhaustion of domestic remedies.
  • An international mechanism does not aim to contradict national judicial bodies, rather, it aims to strengthen understanding of an international convention.
  • A communications procedure under the CRC will set a model for child-sensitive procedures and provide decisions similar to case-law for better implementation of the CRC at the national level.


Links and further reading:


Existing complaint/communication procedures for international Instruments

Five of the human rights treaty bodies can, under certain circumstances, consider individual complaints or communications from individuals:

Detailed information on these procedures, which states have accepted them and on how to use them is available at: http://www.ohchr.org/english/bodies/complaints.htm

Three newer Conventions include individual complaints/communications procedures which will come into force once they have been accepted by a sufficient number of states:

 

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