CRINmail 1372

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CHILDREN'S COMPLAINTS MECHANISM TO ENTER INTO FORCE

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. On Monday 14th April, the third Optional Protocol to the Convention on the Rights of the Child (OP3) will enter into force and children will be able to complain to the UN Committee on the Rights of the Child (CRC) when their rights are violated.

This is cause for celebration, but also for reflection. OP3 provides new opportunities to challenge violations of children’s rights, but it also has limitations. As the Protocol enters into force CRIN is dedicating this special edition of the CRINmail to looking at the promise and limitations of the complaints procedure and at its role in challenging violations of children’s rights.

Using OP3

OP3 creates three possible mechanisms to challenge violations of children’s rights:

Individual complaints are the most direct form of complaint, which 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 CRC to investigate large scale abuses of children’s rights, and to address human rights violations without involving individual victims, which can preserve anonymity and protect vulnerable children.

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 need not be 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 (so far Albania, Germany, Portugal and Slovakia).

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 a complaint to the CRC. The violation must also have taken place after the Optional Protocol came into force, so after 14th April 2014. 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.

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 for children project and guide to strategic litigation.

Choosing the right complaints mechanism

The third Optional Protocol is a milestone for children’s access to justice. It can be used to access remedies for children where national legal systems have failed to protect their rights and be used to bring national legal systems 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 established case law or 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 choice to challenge rights violations. Both have an established case law 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 mechanism. 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 (please note 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.

To date, Albania, Bolivia, Costa Rica, Gabon, Germany, Montenegro, Portugal, Slovakia, Spain and Thailand have all ratified and a further 37 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 upcoming new website of the Ratify OP3 Coalition. In the meantime, visit their former site here.

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LATEST NEWS AND REPORTS

Reproductive rights in Senegal & the Philippines

A 10-year old Senegalese girl who became pregnant after being raped is being forced to continue with her pregnancy because of the country’s tight restrictions on abortion. Senegal’s current abortion law, which dates back to 1810 and is thought to be one of the harshest in Africa, only allows abortion after three doctors certify that a woman will die immediately unless she terminates her pregnancy. National advocates are urging the government to bring its abortion law in line with the African charter on women’s rights, which calls for legal abortion services in cases when a woman or girl has been a victim of rape or incest, and when a pregnancy poses a risk to her life or mental health.

Meanwhile the Supreme Court of the Philippines has unanimously approved a reproductive health law, which among other things, mandates sex education in schools. Republic Act 10354, which also requires government health centres to provide free contraceptives to women and girls, was signed into law in 2012 but its implementation was until now put on hold because of a legal challenge from faith-based groups. But in a country where the majority of the population is Roman Catholic, surveys show that 72 per cent of Filipinos support the law. Commentators have welcomed the Supreme Court’s decision, with one congressman saying it “upholds the separation of church and [S]tate and affirms the supremacy of government in secular concerns like health and socio-economic development." The court, however, did strike down several provisions of the law. These include allowing under-18s access to birth control without a parent's written consent; and imposing penalties on health-care providers who, citing religious beliefs, fail or refuse to provide information about contraceptives.

Nine-month-old baby accused of attempted murder

In Pakistan, a nine-month-old boy has been accused of attempted murder in what critics say serves as a microcosm of police incompetence and a fractured criminal justice system. The infant, along with his father and neighbours, were collectively charged with the offence after they - angry over gas shortages and price hikes - allegedly attacked police and gas company officials who had come to collect payment of bills. The family's lawyer said the charges against the child should have been dropped, but the presiding judge in the case chose not to dismiss the complaint against the child, claiming it was not within his jurisdiction. The inspector who was in charge of the alleged crime scene and who had made the accusation has since been suspended. The family has since gone into hiding after coming under intense pressure from the police to manipulate the case, as the police force is facing national humiliation over the incident.

Cyprus separates migrant women from their children

Cyprus continues to detain and separate migrant women from their children, warned Nils Muižnieks, the Council of Europe’s Commissioner for Human Rights. Muižnieks says the practice must end because it conflicts with the State’s legal obligation to ensure the best interests of the child. The commissioner also highlights that migrant women are reportedly arrested because of their irregular entry or stay in the country, and that “[d]epriving migrants, especially women accompanied by dependent children, of their liberty without examining alternatives to detention is not in line with international human rights standards.” In response to the situation, Muižnieks urged the Cypriot Government to end this practice.

Respect of human rights of Roma remains unfulfilled

The commitment to combatting discrimination and human rights abuses against Roma in Europe remains largely no more than a promise, said the European Roma Rights Centre (ERRC) last week following a meeting between EU Member States and candidate countries to assess progress in addressing the problem of Roma exclusion in Europe. The ERRC proceeded to give examples from recent years. The Czech Republic, for instance, has failed to establish an inclusive education system, instead continuing to segregate Romani children as well as children with disabilities in inferior schools and classrooms, despite a 2007 ruling by the European Court of Human Rights charging the State with discrimination over this practice. Violence against Roma is also a concern, with attacks on six Romani youths in Serbia recorded so far this year, yet police consistently fail to acknowledge evidence that attacks are often hate crimes.

The organisation has also recorded illegal evictions in Romania, Italy and France. While recognising that Member States and the candidate countries bear primary responsibility to protect fundamental rights, the ERRC says the EU also has a responsibility to enforce its own norms. The organisation therefore urges the EU to move beyond rhetoric to action. Read the organisation’s recommendations here.

Armenian activists urge adoption of domestic violence law

Women’s rights groups in Armenia have criticised the government’s lack of political will in the adoption of a law covering domestic violence. In January the government rejected a proposed bill on domestic violence citing alleged shortcomings in its provisions. But activists say that since then, Prime Minister Tigran Sarkisian has fallen silent on the issue despite frequently addressing it in the past, work with the UN Population Fund ended after 2011 with the conclusion of a project against gender-based violence, and lobbying efforts from local NGOs go nowhere.

But in a country where there is only one shelter for abused women, the need for such legislation has not vanished. Women still usually refrain from going to the police about abuse, and many of those who do go then retract their complaint because the officer tells the woman she has to pay an administrative fee or shames her for complaining about her husband. Women’s rights activists underline the need for a preventative law that provides for training for police officers and social workers, restraining orders on abusive husbands, and shelters for abused women. The Coalition to Stop Violence Against Women has now redrafted the domestic violence bill, and intends to show it to the labour and justice ministries this spring before resubmitting it to parliament. 

HIV infection case reaches Inter-American court

A case in Ecuador of a child who was infected with HIV through a blood transfusion with blood obtained from a private blood bank has been filed with the Inter-American Court of Human Rights. The complaint alleges that the State failed in its international responsibility to protect the child’s right to a life of dignity and humane treatment. The State is also accused of failing to provide the victim with the specialised medical care she needed, and for not meeting the minimum standards of due diligence to offer effective redress, claiming that the time for legal action had lapsed. The Inter-American Commission says the case gives the Court the chance to expand its case law on States’ obligations in relation to private entities that provide health services.

Gender identity changes to birth certificates

The parents of a transgender child in Canada say the ‘sex’ box on their child’s birth certificate should be removed. This case is just one of a number of similar complaints received by human rights commission across the country. Birth certificates often cause embarrassment and stress to transgender children. One 12-year-old transgender girl whose birth certificate says she is a boy said the following: “I don’t see why gender has to be on there. I feel really stressed showing it to them [authorities] and they have to ask questions and it makes me really uncomfortable. And I don’t think I should have to go through that every time.” One activist said that listing a baby’s sex is archaic in the same way that birth certificates once listed race and the father’s occupation. Another activist said that the complaints prove Canada “is waking up to the fact that gender isn’t one pink box and one blue box.”

Meanwhile the High Court of Australia has ruled that a person can be legally recognised as gender neutral. Read more on the case here. 

Participation and right to vote in India

With India’s general election already under way, some national media providers have been covering the right to vote for disenfranchised groups, namely children. The most prominent issue is that despite children constituting over a third of India's 1.21 billion population, they cannot vote or make political demands, and therefore do not have any say in electoral outcomes. Worryingly, political parties have been ignoring the needs of children in their poll agenda. In response, children in the city of Bhubaneswar, the state capital of Odisha, have created a Children’s Manifesto and Charter of Demands for political parties as part of the Humara Bachpan national campaign on a safe and healthy environment for young children living in urban poverty. Also read a CRIN analysis on children’s right to participate in public life.

Armed conflict in Colombia, new resources

Peace talks in Colombia between the government and rebel groups have been ongoing since November 2012, but neither side has declared a permanent ceasefire since negotiations began. An annual UN human rights report released in January recorded a rise in the number of children recruited into rebel groups, while human rights activists and families continue to be killed or forced to flee their homes. Meanwhile new criminal groups have formed, some with at least 4,000 members, and many linked to former paramilitary groups. The report says that 39 human rights defenders were killed last year in Colombia, mostly in rural areas, 12 of whom had received death threats before being killed. There were also 48 civilian deaths attributed to the army which are being dealt with in military courts, despite the government’s assurance that human rights violations would be tried in civilian courts. Also read a CRIN analysis of the conflict in Colombia.

Meanwhile the Protecting Education in Insecurity and Conflict coalition has launched its new Legal Research Series - ‘The Legal Protection of Education in Insecurity and Armed Conflict’. The series comprises a handbook on relevant provisions of international law that protects education in times of insecurity and armed conflict; an analysis of the current and potential contribution of UN mechanisms that monitor and supervise the implementation of relevant international law; and a publication on how attacks on education during insecurity and armed conflict have been redressed in the past and may be redressed in the future. All publication are available here.

Calls for submissions: OHCHR, IACHR

The Human Rights Committee is inviting comments on its draft General Comment on article 9 of the International Covenant on Civil and Political Rights on the right to liberty and security of person and freedom from arbitrary arrest and detention. Comments must be submitted by 1 June 2014. More details here.

The Inter-American Commission on Human Rights has extended the deadline to answer a questionnaire on organised armed violence and the rights of boys, girls and adolescents in the Americas. The main purpose of the study is to develop recommendations to States on actions they must take for the effective protection of the fundamental rights of children in this context. The information gathered through this questionnaire, which is available in Spanish, English, Portuguese and French, will be one of the sources for a regional report on the issue. The deadline to receive responses is now 30 April 2014. For more details click here.

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ACCESS TO JUSTICE IN THE REPUBLIC OF KOREA 

In the fourth instalment of our access to justice report series, we assess children’s access to justice in the Republic of Korea.  

The Convention on the Rights of the Child has an ambiguous status in South Korean law. Though formally part of national law, the CRC does not take precedence over domestic legislation and has rarely - if ever - been used by national courts. In most circumstances, children are reliant on their parents or guardians to bring cases on their behalf, though since 2013, it has been possible to appoint a supervisor that can resolve conflicts of interests between a child and a guardian. However, a well established legal aid system is in place for civil, criminal, administrative, constitutional and family cases and can support challenges to children's rights in a variety of settings.

Read the full report on children’s access to justice in the Republic of Korea.

We welcome feedback on these reports, if you would like to review any of the reports published as part of this project please contact us at [email protected].

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UPCOMING EVENTS

Mechanisms: Engaging regional human rights mechanisms
Organisation: New Tactics in Human Rights
Date: 21-25 April 2014
Location: Online

Child rights: Course on child rights programming
Organisation: HREA - Human Rights Education Associates
Date: Two courses between April & November
Location: Online

Course: Children's rights foundation course
Organisation: HREA - Human Rights Education Associates
Date: Two courses between May & November
Location: Online

Corporal punishment: Children's Rights and Advances in Protection from Corporal Punishment
Organisation: Center for the Human Rights of Children, Loyola University Chicago
Date: 23-24 May 2014
Location: Chicago, United States

Justice: International conference on child-friendly justice 
Organisation: Stockholm Centre for the Rights of the Child
Date: 16-18 May 2014
Location: Stockholm, Sweden

Asia: Rethinking urbanisation & equity - the potential of urban living for all children
Organisation: UNICEF & Institute of Development Studies
Date: 9-10 June 2014
Location: Nottingham, United Kingdom 

Course: Summer school - Children at the heart of human rights 
Organisation: University of Geneva
Date: 16 June - 4 July 2014
Location: Geneva, Switzerland

Course: Summer school on the rights of the child 
Organisation: University of Nottingham
Date: 23-27 June 2014
Location: Nottingham, United Kingdom

Psychology: Children's Rights and Needs - Challenges to School, Family and Society
Organisation: International School Psychology Association (ISPA)
Event date: 15-18 July 2014
Location: Kaunas, Lithuania

Bodily integrity: Whole bodies, whole selves - Activating social change
Organisation: Genital Autonomy et al.
Event date: 24-27 July 2014
Location: Colorado, United States

Participation: Children as Actors for Transforming Society - Young Advocates for Change
Organisation: Initiatives of Change et al. 
Date: 26 July - 2 August 2014
Location: Caux, Switzerland

Africa: Keeping Children Safe in Africa - Identifying and addressing the challenges
Organisation: Keeping Children Safe et al.
Date: 3-5 September 2014
Location: Cape Town, South Africa

Statelessness: Global Forum on Statelessness
Organisation: Tilburg University
Date: 15-17 September 2014
Location: The Hague, Netherlands 

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EMPLOYMENT

European Roma Rights Centre: Researcher 
Application deadline: 11 April 2014
Location: Budapest, Hungary 

Church of Sweden: Psychosocial Adviser (Humanitarian Team)
Application deadline 27 April 2014
Location: Uppsala, Sweden

Inter-American Commission on Human Rights: Fellowship for lawyers
Application deadline: 2 May 2014
Location: Washington DC, United States 

Leak of the Week

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