What is an Optional Protocol?
The CRC complaints mechanism was created by treaty in 2011 with the adoption of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure. Optional Protocols are directly related to existing United Nations human rights "instruments", also known as "treaties" or "conventions". Optional Protocols don't make changes to instruments that have already been agreed, and not every country that has "ratified" or formally accepted a treaty has to do the same for an Optional Protocol. In terms of the CRC complaints mechanism, this means that children can't challenge violations of their rights unless their governments ratify the new Optional Protocol.
The Optional Protocol on the complaints mechanism is the third Optional Protocol to the CRC. The first two Optional Protocols, approved in 2000, are about the involvement of children in armed conflict and the sale of children, child prostitution and child pornography. Because these Optional Protocols expand children's rights in specific areas, they are sometimes referred to as "substantive." The Optional Protocol on the complaints mechanism doesn't add new rights in the same way, and is sometimes referred to as "procedural" because it provides a process for bringing violations of existing children's rights to attention.
What is a human rights complaints mechanism?
A human rights complaints mechanism is a means for someone whose rights have been violated to seek redress outside their national justice system. There is no single way to design a complaints mechanism, and these can be tailored for specific purposes or groups of people. Each complaints mechanism operates on its own terms, and mechanisms don't all have the same powers to receive, look at or respond to complaints. For these reasons, it's important to look at how the CRC complaints mechanism compares to other complaints mechanisms and what exactly it gives children and their advocates a chance to do.
Where can human rights complaints mechanisms be found?
Human rights complaints mechanisms exist on the national, regional and international levels. National human rights complaints mechanisms are mostly offered by government "ombudspersons", which are publicly funded independent institutions that make sure the government isn't abusing its power. Regional human rights complaints mechanisms are similarly designed to make sure that governments respect their citizens' rights, but are broader than national mechanisms because they cover more than one country in the same part of the world. International human rights complaints mechanisms are even more open than regional mechanisms, and can give people from around the globe a way to challenge violations of their rights. The CRC complaints mechanism, like the Convention itself, is part of the United Nations human rights system and hence international in nature.
What is the difference between a complaints mechanism and a court?
Complaints mechanisms at the UN, also called "communications procedures", are not the same as courts. They are, however, sometimes referred to as "quasi-judicial" because they have some things in common with the way that courts operate. In both national courtrooms and international communications procedures, a dispute between two or more parties can be raised for review before an independent body. Complaints relating to violations of human rights are brought by or on behalf of the person whose rights were breached, and the parties are each given a chance to present their arguments and basic documentary evidence about what happened. Once all information has been received, the reviewing body then issues a final opinion on the matter, including directions on what must or should be done to right any wrongs committed.
Unlike courts, however, international communications procedures only accept complaints against national governments, and these complaints can only relate to violations of human rights in international conventions. Given this limitation, communications procedures tend to be far less complicated and involved than typical court cases, and are by and large conducted on paper rather than in person. They are governed by often simple and straightforward rules of procedure, and set clear, universal time limits for response and review. Communications procedures are in many ways more accessible and user-friendly than national justice systems, but are also less authoritative as the recommendations they issue are without the binding legal force of court orders or decisions.
What is special about a children's rights complaints mechanism?
Because it was designed with children in mind, the CRC complaints mechanism is different from other human rights communications procedures. For one thing, special child-sensitive guidelines for how complaints are submitted and reviewed, known as "Rules of Procedure", have been written to make sure that children are able to use the mechanism. Complaints are also examined with children's rights and best interests in mind, and child victims' views are taken into consideration throughout the process in line with their age and maturity. In addition, there are special safeguards in place to make sure that children genuinely want to file complaints before these are accepted for review, and that doing so wouldn't clearly run against their best interests.