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Summary: Summary of the Second Meeting of the Working Group on an optional protocol to the Convention on the Rights of the Child to provide a communications procedure that took place in Geneva from December 6 to December 10, 2010.
Articles 3 and 12. Click here to see the draft text of these Articles.
Under Article 3 as drafted, collective communications could be brought by ombudsmen, national human rights institutions or NGOs with consultative status with the UN Economic and Social Council (ECOSOC), so long as the institution or organization has been approved by the Committee on the Rights of the Child to do so. Collection communications would also be limited to grave and systematic violations, making for a relatively high threshold for admissibility.
Moving to Article 12, the Chairperson clarified that inter-state communications procedures are now a standard provision that has been included in existing complaints mechanisms, although these procedures have yet to ever be used.
Slovakia was the first state to take the floor, and began the debate by stating that they had no objections to Article 3 as drafted. Also speaking in favor of Article 3, Serbia agreed shortly thereafter that collective communications could better protect children’s rights.
Iran did not express objections to Article 3 overall, but suggested striking NGOs from the list of parties able to bring collective complaints, and possibly even limiting the number of organizations authorized to bring these complaints to two or even one in the name of avoiding duplication and ensuring a complaining organization’s familiarity with the circumstances of the state involved. In response, Serbia noted that collective communications could be a more efficient way to handle complaints as the Committee need only address one complaint covering an entire situation rather than several separate complaints from individuals whose rights have been similarly violated.
Switzerland, Japan, and Belgium argued that Article 3 should be deleted as the inquiry procedure envisioned under Article 10 of the Optional Protocol would be a better way to address grave and systematic violations. Austria agreed in principle that Article 10 could sufficiently cover these kinds of violations and found the idea of proceeding without a named plaintiff to be problematic, but did not wish to delete Article 3 in the current session. The United Kingdom worried that abstract collective communications might mislead the Committee or sap its limited resources, while the United States, Australia, and Mexico feared collective complaints might overburden the Committee and undermine the integrity of the complaints procedure. New Zealand expressed similar concerns, fearing that collective communications could be very time consuming while contributing little added value.
Sweden felt that the resources of the Committee would be better focused on serious individual cases and the resources of civil society better focused on inquiry procedures or representing individual children with close ties to a particular organization. Germany and the Czech Republic, meanwhile, saw no need for collective communications given the measures already in place for NGOs to raise systematic violations, including state reporting procedures.
Meanwhile, Liechtenstein spoke out strongly in favor of the merits of a collective complaints procedure, although the delegation wished to modify the threshold from “grave and systematic” violations to “recurring” violations. Liechtenstein further suggested that any NGO approved by the Committee to bring a complaint be permitted to do so, regardless of whether the organization had ECOSOC status. Following on this, UNICEF encouraged states to consider retaining Article 3 and emphasized both the added value in allowing collective communications where individual complaints are impossible or impractical and the importance of expanding NGO eligibility beyond those already in regular contact with the UN.
Uruguay was next to express support for Article 3, and Slovenia reiterated Liechtenstein’s suggestion to expand the Committee’s ability to look at collective complaints beyond grave and systematic violations, keeping in mind violations such as child pornography where individual victims cannot be identified. Brazil supported the general ideas behind collective communications and – in line with Liechtenstein and UNICEF - hoped to broaden the type and number of NGOs able to bring these communications. Argentina seconded this notion, reminding delegations that collective communications procedures would be truly innovative in line with the object of the week’s negotiations.
Meanwhile, Denmark, Greece, and the Russian Federation still sought to delete Article 3 entirely, and France suggested suspending debate around collective communications to allow time for rephrasing and pursuing further discussion.
As discussions moved briefly to the proposed inter-state communications procedure, Uruguay, Mexico, and China felt that Article 12 could be deleted as no inter-state communications have ever been filed, but Denmark, France, Argentina and the United States were happy to retain it.
Returning to Article 3, the NGO Coalition for a CRC Complaints Mechanism then expressed strong support for collective communications and for allowing national NGOs without ECOSOC status to bring complaints, sentiments echoed by the International Commission of Jurists (ICJ). The ICJ emphasized that states should not discount collective communications simply because they do not already exist in other UN treaty body procedures. The focus of the negotiations must be to respond to the CRC itself, and collective communications would protect vulnerable children by allowing those who would not otherwise have a voice to draw attention to violations of their rights. Practically speaking, it would also be far more efficient for the Committee to hear one collective communication from a large number of children working at the same factory, for instance, than handling hundreds or even thousands of individual communications. Along these lines, the ICJ further argued that the focus should not be on grave or systematic violations, but rather on the number of victims. Lastly, they clarified the unique value of collective communications, which serve to provide concrete remedies to a number of victims, and are hence not duplicative of inquiry procedures.
Save the Children viewed collective complaints as filling a gap in the Optional Protocol in that the nature of individual complaints risk re-victimization. Considering children’s right to be heard under Article 12 of the CRC, Save the Children continued that collective communications would enable the Committee to address the rights violations of child victims who cannot be identified, such as those appearing in child pornography. The Norwegian Center for Human Rights also welcomed collective communications where large groups of children lack capacity, and supported proposals both to enable a wider category of NGOs to bring these communications and to lower the threshold for doing so. The European Disability Forum agreed, noting that children living in residential institutions would also be able to benefit greatly from a collective communications procedure.
The Chairperson then briefly took the floor to offer his understanding of the words “grave and systematic” in response to a number of questions from states, with “grave” taken to mean serious, life-threatening abuses of one or more rights and “systematic” to mean a practice stemming from the policy or law of a state. An illustrative example of a grave and systematic violation might be child labor, where no particular victim has been identified, but it can be show that 200,000 children in a country are working illegally in poor conditions.
Firmly backing collective complaints, Independent Expert Peter Newell next urged states not to be frightened by innovation and to listen to the words of support coming from the experts and other organizations heavily involved in children’s rights like the European Network of Ombudspersons for Children. Mr. Newell noted that collective complaints are well-established in the European Social Charter, and saw them as a way to provide information on laws and practices concerning children in individual states. Mr. Newell argued that collective complaints are preventive, efficient, protective, and effective in providing remedies to particularly vulnerable children. Removing the collective complaints provision from the Optional Protocol would leave child victims of serious violations who are not in positions to submit complaints, like victims of forced marriage or female genital mutilation, without any recourse before the Committee.
The Vice Chair of the Committee on the Rights of the Child, Jean Zermatten, also favored collective complaints as a way to make sure that children’s rights are better protected and to fill gaps in state reporting procedures. Marginalized children who are not organized and cannot effectively lodge complaints would finally be able to have their rights defended. He challenged arguments that Article 3 of the Optional Protocol should be deleted because it does not “add value”, and encouraged states expressing that initial position to engage in further dialogue.
Bringing the discussion to a close, the Chairperson noted that numerous delegations had expressed concerns around Article 3, and raised the prospect of further difficulties around the exhaustion of domestic remedies requirement and the Committee's workload. On the other hand, he also noted that some delegations, the independent experts, the Committee on the Rights of the Child and the NGO Coalition for a CRC Complaints Mechanism saw value in providing for collective communications to avoid revictimization and address rights violations that would otherwise be left unchecked.
The Chairperson further remarked that while there had been only limited discussions on Article 12, it appeared to be relatively uncontroversial and thus likely to remain in the final draft. Before making any final decisions on the inclusion or wording of the more contentious Article 3, he then brought the session to a close by accepting France's proposal to seek clarification and further discussions around collective communications at a later stage.
Owner: NGO Working Group for the CRC Complaints Mechanismpdf: http://www.crin.org/law/CRC_complaints/