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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 4, 5 and 6. Click here to see the draft text of these Articles. The Chairperson opened the session on the first package of procedural articles by explaining the ideas behind Articles 4, 5 and 6. Article 4 largely borrows the language on admissibility of communications from the Optional Protocol on the Rights of Persons with Disabilities, and includes a requirement that children's well-being and development be taken into account when assessing whether domestic remedies have been exhausted in a timely manner. Article 5 is a standard provision on interim measures, also included in the Optional Protocols to the Convention on the Elimination of Discrimination Against Women, the Convention on the Elimination of Racial Discrimination, and the Convention Against Torture. The Human Rights Committee has already developed a strong jurisprudence on the subject under the International Covenant on Civil and Political Rights communications procedure, and there were strong calls to include a similar provision in previous discussions of the Working Group. Article 6 on transmission of communications sets a three month time limit for states to respond to complaints in light of the need to resolve matters concerning children expeditiously, and further requires confidentiality and anonymity for all complainants given the special and often uniquely vulnerable situation of children. Following the Chairperson's introduction, Finland was the first state to take the floor and expressed support for Articles 4 and 5 as drafted. The delegation wished to amend Article 6, however, as providing for anonymity of complainants would be in clear contradiction with Finnish national legislation. Recognizing the need to provide special protection for children and also the practical necessity of knowing victims' identities if appropriate remedies are to be provided, the delegation proposed revising the language on anonymity to instead state that the identity of complainants not be made public and be revealed to the State party only for the purposes of the communications procedure. Poland supported this suggestion, and went on to propose a requirement under Article 4 that all communications be submitted in writing in line with the Optional Protocols to the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of Discrimination Against Women. The delegation also wished to introduce additional admissibility criteria, including – barring exceptional circumstances – a time limit of either six months or one year following the exhaustion of domestic remedies to submit a communication. Austria, the Russian Federation, Japan, Switzerland, New Zealand, Spain, Greece, China, Egypt, South Korea, Singapore and Sweden supported Poland and Finland's proposed revisions to Articles 4 and 6, respectively, although South Korea wondered whether it might be important to provide for child-friendly procedures beyond written complaints like oral hearings to help make rights violations known. Denmark and Canada agreed that a time limit was necessary for submitting complaints, which France and Greece favored setting at one year provided a safeguard be included for cases where this is not possible. The United Kingdom and South Korea similarly supported a one year time limit, while the Czech Republic and Sweden preferred a six month deadline. Belgium thought that a one-year time limit could be justified, but that it should not begin to run until the child reached adulthood if the domestic legal system did not allow for children to file complaints. Brazil, on the other hand, believed that imposing a time limit would weaken access to justice and make the complaints procedure less child-friendly. The Russian Federation, the United Kingdom and China sought to add language in Article 4 clarifying that complaints not be admissible if based exclusively on information provided by the media. Mexico proposed specifying the actions that would constitute abuse of the right to submit communications under Article 4, and asked for further discussion around what bases “ill-founded” communications could be rejected. In line with the European Convention on Human Rights, Austria proposed declaring communications where the victim has not suffered significant disadvantage to be inadmissible in order to reduce the Committee on the Rights of the Child's workload. Along these lines, the Russian Federation also argued that communications should demonstrate that a victim has suffered clear disadvantage or raise an issue of general importance to be considered by the Committee. Slovakia, meanwhile, wished to interpret Article 4's exhaustion of domestic remedies requirement less strictly in order to make the communications procedure more accessible and child-friendly. As the discussion moved to Article 5, Liechtenstein opined that States must go beyond simply considering requests made by the Committee for interim measures. To this end, the delegation proposed including additional language to require that States take all appropriate steps to comply with such requests, leaving a certain margin of appreciation for acceptable responses. Mexico felt furthermore that provisional measures should be taken by State parties as soon as communications are received, and the Chairperson noted that communications and interim measures could be transmitted to States simultaneously if the Rules of Procedure so specify. Taking the opposite position, the United States wished for Article 5 to include wording to reflect that interim measures are not considered binding, and China and Singapore also emphasized that the decision whether to take interim measures must rest with States. Australia underscored this point, but saw no need for additional language, and the United Kingdom similarly approved of the provision as originally drafted. Sweden put forward the idea of removing interim measures entirely, but alternatively favored limiting Article 5 to apply only to situations of extreme risk where, for example, a complainant's life might be at risk. Similarly, although New Zealand generally welcomed interim measures, they wished that these measures be requested only in exceptional circumstances. With a view to protecting sensitive personal information under Article 6, the delegation from Canada proposed that all disclosures by third parties – for example, hospitals – require the complainant's consent. With backing from the United Kingdom, Egypt, Argentina and China, Canada also agreed that it would be important to know the identity of the victim to understand the circumstances of the violation alleged. The United States further argued that it would be reasonable for States to know the identity of victims to ensure that concrete violations had taken place and effective remedies could be provided, and Mexico added that the identity of the victim must be known to determine whether domestic remedies had been exhausted. Recognizing the importance of confidentiality, though, the U.S. proposed that complainants' identities not be disclosed without their consent, and Germany suggested moving Article 13 on protection measures to Article 6 to make States' obligations clearer. On a practical level, New Zealand also noted that confidentiality could be provided for under Article 6 by registering applications with a code rather than a surname. Japan asked for more information on the rationale behind Article 6's three-month time limit for state responses, which the Chairperson clarified was to speed up procedures involving children as discussed in the previous sessions of the Working Group. Both Canada and the United States, however, felt that a six-month time period for States to respond would be more appropriate as a three-month limit would be especially difficult to meet for federal states, where it can take more time to gather the necessary facts and information. As the discussion progressed, Thailand, the Czech Republic, Germany, Singapore, Belgium, Brazil, Egypt, New Zealand and Australia all supported extending the deadline from three months to six months. The United Kingdom and Argentina advocated retaining the three-month response time to ensure quick responses to children's concerns. As a compromise, France proposed extending the time limit to six months in general but allowing for the possibility of a three-month deadline for urgent cases at the Committee's discretion, which drew support from Greece and Germany. France also hoped that communications could be transmitted to States parties in their national language in order to facilitate speedy responses. Returning to Article 4, Thailand questioned how the exhaustion of domestic remedies requirement would work in relation to collective complaints, while Spain worried that the time required to exhaust domestic remedies might have a negative impact on the ability of the communications procedure to itself provide an effective remedy. Australia argued that if a child is unable to bring a complaint in a domestic legal system, the Committee should consider domestic remedies to be exhausted, so long as that child can demonstrate that he or she has sought out remedies and taken steps to secure support from a guardian in drawing attention to rights violations where possible. Meanwhile, the Czech Republic, France, the United Kingdom, Egypt and Germany all found the exception to the exhaustion requirement for unreasonably prolonged or ineffective remedies to be too vague and open to interpretation, and Brazil hoped that further guidance would be provided in the forthcoming Rules of Procedure. Looking to international remedies, the delegate from New Zealand put a question to other governments as to whether they would prefer cases before regional mechanisms to be inadmissible under Article 4. Drawing on their experience with the European Court of Human Rights, the United Kingdom and Greece answered in the affirmative. Denmark and the United Kingdom further doubted the necessity of considering a child's well-being and development in determining whether domestic remedies have been exhausted, given that children's best interests must already be taken into account under Article 2 of the draft Protocol. The Chairperson responded that the relevant provision of Article 4 had been inserted to reflect earlier discussions emphasizing that the special situation of children be taken into account. As State comments drew to a close, the NGO Coalition for a CRC Complaints Mechanism took the floor to strongly back Article 4 as drafted. The Coalition believed that setting a time limit for submitting a communication would particularly disadvantage children, who are often not aware of such limits until the deadline has passed. On the question of regional mechanisms, the Coalition advocated that regional court judgments or procedures should not preclude bringing a complaint under the Optional Protocol as these courts do not apply the CRC. Moving to Article 5, the Coalition wished to retain interim measures and endorsed Liechtenstein's proposal to include a requirement that States take all appropriate steps to give effect to interim measures. The Coalition also supported the existing three month response time under Article 6, and agreed with Finland's suggestion on confidentiality that complainants' identities be revealed only to the State concerned and only for the purposes of the communications procedure. In line with the NGO Coalition, the International Commission of Jurists (ICJ) argued against setting a time limit for the submission of complaints, requiring applicants to demonstrate a “clear disadvantage”, or excluding cases being examined by regional mechanisms. The ICJ also welcomed Liechtenstein's proposal to ensure that these measures are seen and accepted to be obligatory for all States, and offered support to Article 6's provisions on anonymity as this is necessary to protect the interests of the child. The Vice Chair of the Committee on the Rights of the Child, Jean Zermatten, provided further guidance on the ways that communications might be submitted to the Committee. Although the large majority would likely be in written form, he emphasized that children might want to express themselves in other ways. Egypt questioned the Committee's plans for receiving non-written submissions, a matter which Mr. Zermatten saw as open to negotiation, but one that must not be ignored entirely, especially in matters concerning very young children. Zermatten continued that setting time limits for submission would similarly disadvantage young children, who already face great obstacles in accessing domestic remedies. Independent Expert Peter Newell agreed, stating that any statute of limitations set must be at least one year with exceptions for cases where this was not possible, as may often occur in the context of child abuse. Mr. Newell also cited the restrictive nature of proposals to limit the admissibility of cases before regional mechanisms, and expressed concerns that forcing children to identify "significant disadvantage" might shut out a number of valid communications in practice. In discussing Article 5, Zermatten endorsed interim measures as a key component of the Optional Protocol and affirmed the Committee's desired competence to ask that States take steps to avoid irreparable damage. In line with Liechtenstein's proposal, the NGO Coalition, and the ICJ, Zermatten and Newell both favored including language to clarify the binding nature of any interim measures ordered. Recapping the debate on Article 6, Zermatten separated the issues of anonymity and disclosure to the public. He argued that a child victim's anonymity must be preserved pursuant to Article 8 of the CRC on private life, and that in all cases children must consent to any moves to bring their case into the public eye. Newell agreed that anonymity should be guaranteed, especially given fears of reprisal. Regarding the time limit for States to respond, Zermatten and Newell felt that communications from child victims should be handled as quickly as possible. Zermatten considered that it would be acceptable to extend the deadline to six months so long as there were provisions to reduce the time limit to three months in exceptional cases, or alternatively to set a three-month rule with six months as a possible exception where necessary. To sum up the morning's discussions, the Chairperson then reviewed the common threads between the comments made on Articles 4, 5 and 6. For Article 4, suggestions were made to require that submissions be in written form, to add a time limit following the exhaustion of domestic remedies, and to introduce regional mechanisms into admissibility criteria. For Article 5, opposing suggestions were made on the one hand to strengthen the language and make interim measures more compulsory, but on the other hand to leave greater discretion to States as to whether to take the actions requested. For Article 6, States proposed granting confidentiality rather than anonymity to complainants and extending the time period for State response to six months. Finally, the Chairperson reminded States that Articles 4, 5 and 6 were drafted based on agreed language in other UN human rights instruments, and affirmed that the CRC Optional Protocol would not go below current international law standards.