Summary: This speech was delivered during the conference: Moral Imperatives to Legal Obligations – In search of Effective Remedies for Child Rights Violations -held in Geneva on 12 and 13 November 2009. Peter Newell, Co-Convenor of the Working Group campaigning for a new Optional Protocol to provide a communications procedure under the CRC and Coordinator, Global Initiative to End All Corporal Punishment of Children
The need for a Complaints Procedure under the CRC
As most of you will know, the Human Rights Council agreed in June to establish an Open-Ended Working Group to consider elaborating the necessary Optional Protocol to establish a communications procedure (and hopefully also an urgent inquiry process) for the CRC. The Working Group meets for the first time in the week of December 14th and we hope its role will quickly evolve to get on with the drafting of this long-overdue complement to the CRC reporting process.
I’ve been asked to focus on what is needed to ensure the new communications procedure is used effectively, rather than on the “need” for it. Anyway, I’m sure the need is fairly obvious to those who are aware of how many additional and unique rights the CRC contains for children, which cannot be effectively addressed under other procedures. It bewilders me why we should be called on to justify the need for a specialist communications procedure for children, when the need has been consistently accepted by the UN system for women, for people with disabilities and so on. Every other core human rights instrument has a communications procedure.
My starting point is that advocacy of children’s rights is still in its infancy, in comparison, for example, with advocacy for women’s rights, or on environmental issues. The failures of advocacy are starkly revealed in the yawning gap in most states between the detailed legal obligations established in the CRC and the reality of children’s lives. The reporting process under the Convention documents this in detail, but it has not proved effective in turning obligations into action. Children’s disempowered and initially entirely dependent status obviously causes special difficulties. Or rather, it implies special responsibilities for adults, who are, after all, responsible for more or less all of the violations of children’s rights.
This conference could be a highly significant catalyst in developing stronger and more legalistic advocacy of children’s rights: one spin-off already is CRIN’s initiation of a global strategic litigation network and of a detailed data-base of use of the CRC in high-level courts and by existing human rights mechanisms.
Assuming we can persuade states to delay no longer the drafting of the necessary new CRC Optional Protocol, we could hope for adoption by the end of 2010, or 2011 at the latest. The OP providing a communications procedure for the Convention on the Rights of Persons with Disabilities entered into force just 17 months after its adoption. So it is realistic to believe that we could have a communications procedure for the CRC in force within four years.
It is good to have an optimistic deadline to work to anyway. So - what do we need to do in the immediate future to ensure that such a procedure is used effectively to realize children’s rights? And I would emphasise that the sort of preparations I am proposing are not particularly focused on the new, additional mechanism we hope for. All these preparations are essential to achieving growing respect for and use of the CRC as a legal instrument - in national courts and in other, already existing, regional and international human rights mechanisms. We have to use the language of obligations and violations, get beyond concerns and recommendations.
We have to be convinced ourselves that the CRC is a legal instrument. Because governments don’t behave in general as though they have taken on legal obligations, because judges and courts do not refer to and apply the Convention routinely, it is hard to bridge the credibility gap and assert the true status of the Convention. If we don’t pursue it, who will?
The use of external human rights mechanisms almost invariably involves the exhaustion of any available and effective domestic remedies. So in preparing to hold states externally accountable for their violations of children’s rights, it will be necessary to research the extent to which children – and of course we are talking about the full definition of child up to 18 – have real and accessible remedies, including legal remedies, for breaches of the full range of their rights at national level.
In almost every state, governments and to a varying extent NGOs and human rights institutions have already had to engage with the CRC reporting procedure. Only 20 or 30 states, mostly very small island and other states, have not seen serious engagement. So in most states there has already been some identification of violations of the CRC and probably some identification of available ways to challenge them.
The NGO Group believes there are around 100 children’s rights coalitions, developed to respond to the reporting process and with varying capacity to coordinate or engage in advocacy including legal advocacy. In a minority of states there is quite well-developed advocacy of children’s rights in general, the forming of alliances around particular issues, production and dissemination of publications and briefings, direct lobbying of government and parliament for changes in law or policy, highlighting particular cases involving individual children or groups of children, using the media and so on. In a small minority of countries there are established children’s rights legal centres, some of them represented here. To gain strength, there plainly needs to be more sharing of experiences and in particular of successes in advocacy.
Proposals for increasing respect for and use of the CRC as a legal instrument must build on what already exists. In many states it will be obvious which national organization or coalition should take the lead; in others, it may be up to individual children’s rights activists to initiate discussion and research. The International Save the Children Alliance, other INGOs, UNICEF, the Office of the High Commissioner could decide to offer various forms of technical advice and support regionally or nationally. And CRIN is already offering much through its website.
I’m afraid this is all rather obvious, but I feel that what has been lacking is a systematic exploration of the possibilities for advocacy based on the foundation of the CRC as a legal instrument. In most states - certainly in mine, the UK – we know that simply telling Government it has these obligations, quoting and publicizing the Committee’s concluding observations, and using other forms of soft advocacy simply doesn’t work – at least on issues that the Government regards as unpopular or difficult – in our case juvenile justice and detention, corporal punishment in the family, treatment of refugee and asylum seeking children, full inclusion of children with disabilities, religious freedom for children and a whole range of discrimination issues..
So I suggest the following as a basic exercise needed in all states if it hasn’t happened already:
First, the identification and engagement of leading children’s rights NGOs, human rights organizations and institutions and any legal centres/legal firms known to have an active interest in children’s rights;
Through a questionnaire or other research, collect all available information on the status and use of the CRC as a legal instrument at national level. This will include finding detailed answers to the following questions:
Is there a clear understanding of the status of the CRC in national law (as we all know, it is not enough to say it is incorporated, or not incorporated: in reality there is a wide range of situations following ratification, with widely varying respect for the CRC, in theory and in practice).
Do children of any age, or over a certain age, have independent legal standing and thus the ability to challenge, through adult next friends or otherwise, breaches of their rights before national courts? In some countries it appears that children have no legal standing independent of their parents. In some there are independent bodies established specifically to represent those, including children, regarded as unable to represent themselves before the courts.
If it appears that children do have legal standing, in reality are there further limitations on their access to courts?
Organise a series of meetings (or the exercise could initially be done electronically). The purpose of these is to:
- identify clear and significant violations of CRC rights;
- identify which of these could potentially be challenged through legal action – first at domestic level and then if necessary through use of a regional or international human rights mechanism (and you can include use of the hoped-for CRC mechanism in the exercise);
- identify whether pursuing a legal challenge to the violation would require finding an individual victim or group of victims (or whether it may be possible to challenge the offending law or policy without the identification of a victim – sometimes possible with constitutional courts and also for example through the European Social Charter collective complaints procedure);
- if victim(s) are needed, consider how to find them, secure their consent and ensure their protection – this, given how disempowered children are and feel, is probably the most difficult challenge and has to engage those in direct contact with children.
In the UK we carried out a limited exercise of this kind, when our Human Rights Act, incorporating the European Convention into UK law, came into force. We divided children’s rights broadly into areas – education, juvenile justice, health and child protection, immigration and nationality. We then brought together people working directly with children in these sectors (and known to have sympathy for children’s rights) together with children’s rights activists and specialist lawyers and where possible children with relevant experience in the sectors: the purpose was to identify the known violations that could be challenged first in the domestic legal system and then if necessary beyond it to the European Human Rights Court.
Another task – an easy one – for every state is to check the ratification tables and identify which of the existing communications procedures and regional human rights mechanisms your state has accepted and which of these could be used to challenge which children’s rights
The new communications procedure under the Disability Convention has already been ratified by 45 states; the CEDAW one by 99 states and the Optional Protocol to the ICCPR by 113 states: in how many states has there been a systematic look at how these existing mechanisms could be used effectively now on behalf of children with disabilities, girls, or in the case of the International Covenant procedure, to pursue many of the civil and political rights of children?
There is no magic solution in resorting to these mechanisms. There are enforcement problems with the decisions of all of them. The European Court is generally regarded as one of the strongest, but the process for supervision of execution of the Court’s judgments is ultimately more political than judicial, and sadly some countries including my own are less than supportive of enforcement now.
But use of them can provide further and stronger pressure on states. And anything which helps to remind governments that the CRC and other Conventions are legal instruments, that by ratifying them they take on legal obligations, must be useful to children. Even the general investigation of the possibilities for legal action, the research into what if any domestic remedies exist, can be valuable and perhaps edge governments nearer to taking their obligations seriously – or at least understanding that they exist.
The exercise I have described seems to me to be a basic one which should happen, or have happened, in every state, and made as visible as possible. It is about adding use of the CRC as a legal instrument to existing, softer forms of advocacy. It’s not an alternative and obviously, to make the most of legal advocacy, it has to be linked to the other forms. While the first goal of pursuing litigation is requiring states to fulfill their legal obligations to realize children’s rights, the exercise should also:
- Raise awareness of rights among children and their communities;
- Contribute to other political, parliamentary and media campaigns for reform;
- Bring together more evidence on violations of rights;
- Develop and activate networks of children’s rights advocates including legal experts; and so on.
The new CRC communications mechanism will provide a long-overdue essential tool – and all of you can help put pressure on your governments to get on with the drafting – see the CRIN website for ideas. But there is plenty to do right now to encourage respect for and use of the CRC as a legal instrument.