A children’s rights complaints mechanism at the UN has been a long time in the making. Almost 25 years have passed since the Convention on the Rights of the Child entered into force, and nearly every country in the world has now accepted its duty to respect and uphold children’s international human rights. As of 14th April 2014, the third Optional Protocol to the Convention on the Rights of the Child (OP3) will be in force and children will be able to complain to the UN Committee on the Rights of the Child (CRC) when their rights are violated.
Using OP3
Types of complaint
OP3 creates three possible mechanisms to challenge violations of children’s rights.
Individual complaints are the most direct form of complaint under the communications procedure and allow individuals or groups of individuals to complain about a violation of their rights, either themselves or through their representatives.
Inquiries adopt a less judicial model, looking at serious or widespread violations of children’s rights across a country, rather than whether an individual’s rights have been violated. The advantage of the inquiry process is that it allows the Committee on the Rights of the Child to investigate large scale abuses of children’s rights, but also that it allows for complaints that do not directly involve a specific child. Inquiries also allow for greater anonymity for people wishing to raise violations with the government responsible.
Inter-State communications allow States to lodge complaints against other governments that have failed to live up to their children’s rights obligations. This procedure offers the broadest scope to raise potential violations of children's rights: complaints need not identify individual child victims and they are not limited to serious or widespread rights violations. Inter-State communications also offer the greatest flexibility and simplicity in terms of review procedures, but have been little used by other Treaty Bodies, and risk being more about politics than children’s rights.
This procedure can only be used against a government that has specifically given the Committee permission to do so.
You can read more about the way the procedure itself will work, including a plain language explanation of the Optional Protocol in our Toolkit on the complaints procedure.
Exhausting domestic remedies
The third Optional Protocol, like other international human rights mechanisms, exists for when protection fails at the national level. Complaints are not accepted for review until “domestic remedies have been exhausted”, meaning that complainants will have to try to resolve matters through the national legal system before bringing the situation to the Committee’s attention. The violation in question must also have taken place after the Optional Protocol came into force, so after 14th April 2014 (for States that ratify after this date, there will be 3 months before the procedure enters into force for them). This barrier may substantially delay the first complaint to reach the Committee. It may well take years for a case to work its way through the necessary appeals processes.
However, for some violations it may be possible to expedite this process. It will be for the CRC to decide whether domestic remedies have been exhausted, but where there is no possible remedy at the national level, it may be possible for the Committee to hear complaints without waiting for national courts to confirm that they cannot provide a remedy. For example, where a particular children’s rights violation is lawful and the law has already been unsuccessfully challenged as a violation of the Constitution, it may be possible to petition the Committee without using national courts.
For more information on navigating national legal systems to challenge violations of children’s rights, see our access to justice project and guide to strategic litigation.
Choosing the right complaints mechanism
The third Optional Protocol is milestone for children’s access to justice. It can be used by children to access remedies where national legal systems have failed to protect their rights and be used to ensure that national legal systems are brought into conformity with the Convention on the Rights of the Child.
However, OP3 has to be seen as one tool among many: it will not always be the most effective mechanism to address a particular rights violation. The procedure will often be slow to respond - as children will have to exhaust domestic remedies - and it does not yet have a record of implementing its decisions. For many rights violations in Europe and the Americas, for example, the European Court of Human Rights and the Inter-American Court of Human Rights are likely to remain a preferable option to challenge most rights violations. Both have an established case law and a strong record of enforcing judgments.
That is not to play down the possibilities that OP3 presents. By creating the opportunity to bring a complaint on any issue related to the Convention on the Rights of the Child or its Optional Protocols, OP3 protects a broader range of children’s rights than any other international mechanisms. OP3 may present a means of complaining about issues that are not covered by other human rights treaties, permits children and their advocates to petition experts on children’s rights and provides another means of putting pressure on governments when other forms of advocacy have been blocked.
For more information on the human rights mechanisms available to challenge children’s rights, you can browse the complaints page on our website and find summaries and analysis of how these mechanisms have been used to promote children’s rights through our legal database (this page is still under construction).
The ongoing campaign for ratification
Though OP3 is now coming into force, it is not yet accessible for most children around the world. States must ratify the Protocol for the complaints procedure to by children in their jurisdictions.
As of 21 April 2015, Albania, Andorra, Andorra, Belgium, Bolivia, Costa Rica, El Salvador, Gabon, Germany, Ireland, Monaco, Montenegro, Portugal, Slovakia, Spain, Thailand and Uruguay have all ratified and a further 34 States have signed but not ratified.
You can keep up to date on ratification progress around the world and find the latest news on the ratification campaign through the website of the Ratify OP3 CRC Coalition.
