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Summary: Summary of discussion on efficiency of protection under existing mechanisms. This is the third topic for discussion from the UN Working Group for the communications procedure.
Discussion Topic Three – Efficiency in protection Peter Newell spoke as one of the experts during the Working Group meeting. His written submission includes analysis of use of existing complaints mechanisms. Overall, there is a substantial gap between the ratification of the CRC and the implementation of those gaps. He said that “progress and persisting violations seem to be going hand in hand”. “Evidence suggests that many States are far from there in offering effective remedies, not surprising given the late take up of child rights worldwide”. Mr Newell highlighted the growth in the number of ombudsmen institutions – 60 worldwide and the Committee praises this, however many institutions do need additional powers in line with the Paris principles, many cannot take complaints to court. Further he explained how one of the main ways to improve national remedies is to bring in the OP. “If national remedies and regional ones are effective enough, then the use of the OP CRC will be less needed but it is not a case of one or the other”, he said. “Many adults lack a capacity to represent themselves – disabled, mentally ill, elderly, those in detention etc. – so it is not just younger children that have this issue. But States still have to offer a remedy to these groups, so why not children”, he continued. This highlights the universal expression of human rights and there can be no justification of excluding children as a group from an international remedy mechanism (a specialist one). He said the question was not whether this OP was needed – “it is shall we continue to elaborate. That is not to say that nothing new needs to be considered in the elaboration to take into account for special needs of children”. Liechtenstein said they welcomed the potential this new OP could have on the domestic system. He also asked Peter Newell for further information on the representation of children in family law at the European Court and whether that experience could help in forming the OP for the CRC. The representative from Italy asked about timing in dealing with cases. “On the one hand there is an urgent situation which characterises any situation where a violation on the rights of the child takes place. On the other, the length of time of any legal instrument can be very lengthy, particularly if it applies after domestic remedies have been exhausted” he explained. Canada said they wanted to have more discussion about the collective complaints issue and that a full discussion was needed on this. Canada, the representative explained, sees a distinction between individuals having a complaint and complaints brought by individuals with no specific apparent violations. The representative from Belgium said they did not want to take a position on the issue of a collective complaint at this stage, but said they wanted to look at the criteria that can be used regarding this possible provision. He also asked about accessibility – how and under which conditions they would access it, and for instance; how a child with disabilities would be using the mechanism. Iran explained they had a children's parliament as one national system and suggested a database on best practises be developed. Poland also wanted to explain how things work at national level, for instance, he explained, if there is a conflict between the international treaty and the national law, the international treaty would prevail. He also mentioned they had an ombudsman who was independent to take action. A representative from the NGOs said that national remedies are often inadequate or non existent and national systems are often not in sync with international law. Apart from the African Charter, no other regional treaties were designed with children's rights in mind, and Asia has no regional system at all. Germany talked about their child sensitive legislation. The representative specified that all children have full legal capacity from birth. In answering questions from States delegates, Mr Newell highlighted some examples of how the Inter-American system had made positive use of the CRC in interpreting the American Convention on Human Rights. (He referred to Paulo Pinheiro’s paper on this). In general, he explained, there was a welcome convergence of human rights standards across international and regional mechanisms. “None of this reduces the need for a communications procedure under the CRC”, he said, “on the contrary, I am sure that both the Inter-American system and the European Court will welcome the jurisprudence that is likely to emanate from the Committee on the Rights of the Child when it starts to issue decisions and views on communications: both systems have already quoted Committee General Comments for example”, he continued. He then responded to Belgium's question on whether a child with disabilities would use the Disability Convention’s procedure or the CRC one: again, a useful choice. The CRPD includes detailed provisions on people - including children - with disabilities, which complement and in some cases, add to the rights of children with disabilities in the CRC (for example a more explicit right to inclusive education). There are also some specific provisions for children with disabilities, reinforcing rights in the CRC. This is a question of choice, not duplication, and the choice would depend largely on which rights the victim was claiming are violated, and in the circumstances, which appears to be the more appropriate specialist Committee to consider the communication. He reminded that the OPs to CEDAW and the Economic Rights Covenant do allow communications from both individual victims and groups of victims claiming violations. He explained that there was no requirement to exhaust domestic remedies because the complaint concerns the existence or the absence of a law or policy necessary to achieve compliance with the Convention. "If States want to develop a communications procedure which can constructively influence national laws and policies as well as providing individual remedies, then it would be good to add the possibility of collective complaints", he said, "But I stress again, as Poland noted, it is not an alternative to allowing individual and group communications", he continued. “More generally”, he continued, “surely we have to accept and welcome a dual aim of communications – to achieve individual remedies where violations have occurred as speedily as possible, but also to prevent further, similar violations from occurring.” Mr Newell explained that if a communication was submitted on behalf of a child, by a parent, NGO, a children’s ombudsperson, a lawyer, the Committee will have to determine first if the child has the capacity to consent to the communication being made and if so, if they have consented. If the child does not have capacity to consent – a baby for example, or the circumstances make it impossible for the child to submit the communication on their own behalf, then the Committee will have to determine whether consideration of the communication is in the best interests of the child. Further information
The representative from Mexico said they believe their own national legal system and the Inter-American system can contribute good experience to this procedure. Both in the national and regional instances, the courts very often use interpretations from the international courts.
On collective complaints, he asked whether there that could be contradictory to strengthening national systems, because the collective complaint does not require the exhaustion of national remedies.