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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 7, 8, 9 and 13. Click here to see the draft text of these Articles.
Opening discussion on the second group of procedural articles, the Chairperson explained the background behind the drafting of Articles 7, 8, 9 and 13.
Article 7's provisions on friendly settlement were taken from the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.
In setting the parameters on consideration of the merits, Article 8 also borrowed from the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the Optional Protocol to the Convention on the Elimination of Discrimination Against Women, and other UN complaints mechanisms. Notably, the last paragraph of the Article tasks the Committee on the Rights of the Child with drafting Rules of Procedure, taking into account the best interests of the child as a primary consideration.
Article 9 on follow-up to the views of the Committee again contains agreed language from other Optional Protocols and reflects current treaty body practice by treaty.
Finally, the Chairperson highlighted the importance of Article 13 and the need to keep strong language on protection measures.
The United Kingdom then began the debate by suggesting that the Committee be encouraged to consider the merits of communications as quickly as possible under Article 8, a notion seconded by Sweden and later supported by Slovenia, Germany, and Thailand.
With regard to communications concerning economic, social and cultural rights, the United Kingdom further proposed that the Committee be required to take into account the reasonableness of State actions and the variety of acceptable policy alternatives, as stipulated in the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. New Zealand, Switzerland, and Canada expressed support for this suggestion, while Sweden, the United States and Algeria proposed extending considerations of reasonableness to all communications brought under the Optional Protocol. Denmark shared the UK's concern over economic, social and cultural rights, and called for further examination as to whether these rights should be treated differently.
When considering the merits of any communication, France felt that the Committee should be obligated to look at all relevant documentation from other international and regional sources, and Japan thought that this matter should be addressed in the Committee's Rules of Procedure rather than the Optional Protocol itself.
China expressed a desire for the Committee to consult with States during the drafting process, while Slovenia and Brazil wanted to ensure that the Committee incorporated child-sensitive and child-friendly provisions into the Rules of Procedure, including a means to hear from children where appropriate.
Finland liked Articles 7, 8 and 13 as drafted, but wished to extend the time limit in Article 9 for a State to follow up with the Committee from three months to six months. Poland agreed, noting that States could report to the Committee not only on measures already taken to remedy a violation, but measures envisaged to address the broader situation like changes in practice or legislation. Further support for an extension came from France, Japan, Australia, the Russian Federation, Canada, Denmark, Singapore, the United States, Thailand, Algeria, Brazil and South Korea.
Germany felt that a six month follow-up would be reasonable in general, with responses possible within three months for situations requiring urgent action. Argentina believed keeping a three month limit for all cases would better serve the best interests of children, while Iran thought that even six months' time would be insufficient for States to prepare follow-up reports.
With regard to friendly settlements, France and Brazil believed that the Committee should be able to monitor friendly settlements under Article 7 and question States concerning their efforts to implement any agreed remedies. Slovenia supported this proposal, and Sweden and Spain agreed that providing an option to re-open friendly settlements within a set period of time would be necessary to prevent misuse of the procedure. Germany and South Korea further wondered whether the Committee should be required to determine whether a friendly settlement would be in the best interests of the child, but Denmark, Thailand, and Brazil preferred to keep Article 7 as drafted.
The United Kingdom sought to ensure that protection measures under Article 13 were construed as broadly as possible to include all persons involved in submitting a communication to the Committee. France, Switzerland, Slovenia, the United States, Spain, and South Korea also supported broadening the language, and Poland emphasized the particular importance of protection measures to the Optional Protocol.
For similar reasons, New Zealand also wished to ensure that it was clear in the text that all communications received be examined in closed meetings, not simply those reaching consideration on the merits under Article 8. Belgium, however, felt there should be an exception to closed meetings if in the best interests of the child.
Remarking on the positions taken by States in the discussion, the NGO Coalition for a CRC Complaints Mechanism, the International Commission of Jurists (ICJ), Vice Chair of the Committee on the Rights of the Child Jean Zermatten, and independent expert Peter Newell all advocated for retaining shorter time limits for state responses and reiterated suggestions that additional safeguards be included in Article 7 to allow the Committee to monitor and re-open friendly settlements.
The NGO Coalition also argued firmly against proposals to treat economic, social and cultural rights differently from civil and political rights, which would undermine existing precedents that all provisions in a convention be applied equally. On a practical level, the ICJ found such proposals unworkable as communications would not be labeled or neatly divided into those addressing economic, social and cultural rights and those addressing civil and political rights. Mr. Zermatten also felt that the rights contained in the CRC should not be separated into categories, and Mr. Newell noted that such categories might be difficult to define in the first instance.
Lastly, the NGO Coalition and the ICJ both agreed that the language in Article 13 should be broadened to prevent intimidation or any form of human rights violation.
To sum up the afternoon's discussions, the Chairperson then reviewed the proposals made.
For Article 7, suggestions were offered to give the Committee the final say as to whether a friendly settlement was in line the best interests of the child.
Under Article 8, it was felt that the Committee should act as soon as possible and that its Rules of Procedure should be child-friendly and child-sensitive.
Many states wished to extend the time limit in Article 9 from three months to six months, and State follow-up reports could indicate all measures envisioned to remedy a rights violation. There was similar support for broadening the language of Article 13 to ensure that all who need protection are entitled to it.
In conclusion, the Chairperson saw that the Working Group was close to reaching a preliminary agreement on the articles discussed, and hoped to confirm this during the course of the week.
Owner: NGO Working Group for the Complaints Mechanismpdf: http://www.crin.org/law/CRC_complaints/