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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.
Informal Consultation: Article 3 (Collective Communications) Yanghee Lee, Chair of the Committee on the Rights of the Child, began the informal discussion on Article 3 by affirming that collective communications would be an important tool for the Committee. To further strengthen the procedure, she suggested that collective communications be authorized for all repeated or widespread violations, and that more organizations be allowed to bring them. She also did not feel that the Committee would be overburdened or stretched beyond its resources in reviewing collective communications. Speaking next, independent expert Peter Newell set out to correct some misconceptions about the definition of collective communications. Because collective communications would not require any individual child victims to be identified, he saw Article 3 as a substantive addition to the Optional Protocol rather than just duplicating provisions for group communications under Article 2. Mr. Newell presented some of the further benefits of collective communications, including: There would be no risk of harm to any individual child victims, nor any need for protection measures. Collective communications would effectively address widespread violations of children's rights, and because of the special difficulties in pursuing individual and group communications, disallowing them would mean that many violations could never be brought to the Committee. Because they can address potential violations before they occur, collective communications serve as a preventive mechanism. The Committee would be able to build a valuable jurisprudence under Article 3 and give illuminating interpretations of CRC provisions without being restricted to the specific facts of individual cases. By providing for one blanket solution rather than requiring numerous individual remedies, collective communications would decrease the number of individual communications submitted and better use the Committee's resources. Mr. Newell then addressed the concerns expressed by States in the week's earlier formal consultation on Article 3, stating first and foremost that arguments against innovation and for consistency with other Optional Protocols must be rejected as successive UN complaints mechanisms have always evolved and developed from one to the next. He noted that identifying individual victims is in no way essential to providing a large scale remedy, and that worries about duplication between collective communications and inquiry procedures could be assuaged by broadening the scope of Article 3. Lastly, Mr. Newell reassured States with concerns about the possible manipulation of children by NGOs that the admissibility criteria and filtering by the Committee would reduce this to a minimum. Jean Zermatten, Vice Chair of the Committee on the Rights of the Child, emphasized the unique value of collective communications, especially for particularly vulnerable children like victims of prostitution, child labor, and harmful traditional practices. The CRC imposes a duty to protect all children, and there is a need to allow for the kind of action that collective communications would provide. These communications would be more than just a second reporting procedure, he reminded States, they would be a quasi-judicial procedure for large numbers of child victims. As the first State to take the floor, Brazil then delivered a joint statement from MERCOSUR and associated countries in support of collective communications. They welcomed the Optional Protocol in general, and felt that Article 3 should be maintained in the draft until its content has been sufficiently discussed. Collective communications would not be duplicative of inquiry procedures under Article 10; rather, they would be complementary. MERCOSUR also urged other States to consider the positive views expressed by the independent experts and the Committee on the Rights of the Child. Iran, however, remarked on the opposition expressed by numerous States in the initial discussions, and still favored the deletion of Article 3. The UK also restated its opposition, and the delegation from Canada reiterated that it was not convinced that there was a gap in the Optional Protocol for collective complaints. Canada felt that periodic reporting already offered a chance for in depth analysis of specific issues, and that systemic violations could be readily addressed in an individual or group communication under Article 2. NGOs' opportunities for involvement with the Committee would also not be limited under Article 3, Canada argued, as they are very active in the periodic reporting process and could bring individual communications on behalf of children or supply information to the Committee to initiate inquiry procedures. Despite the Committee's reassurance to the contrary, Canada also worried that collective communications might strain the resources of the Committee and weaken the treaty body system. The United States voiced similar reservations about the added value of Article 3, and held firm in its stance that at least one victim should be identified. The U.S. noted that there are class action lawsuits already available in some countries, but felt that these kinds of cases require significant procedural safeguards that are not present in Article 3. Australia agreed, and Germany expressed additional concerns about the capacity of the Committee to review collective complaints and the lack of existing collective communications procedures under other Optional Protocols. Greece believed that in quasi-judicial procedures such as those envisioned under Article 3, the link to factual circumstances would be important. Greece further thought that accreditation procedures for NGOs wishing to bring collective complaints would be burdensome for the Committee, and – along with New Zealand - that Article 2's individual and group communications and Article 10's inquiry procedures made Article 3 redundant. Greece also picked up on an earlier concern expressed by Canada about the relationship between collective communications and the exhaustion of domestic remedies requirement, to which expert Peter Newell responded that national remedies providing for collective action to be brought before a tribunal akin to a Constitutional Court would presumably need to be exhausted. Citing many of the reasons above, the Czech Republic and Denmark, Japan, the Russian Federation, and China also called for the deletion of Article 3. UNICEF, however, saw a strong child protection advantage in collective communications and felt that more NGOs should be empowered to bring them, noting certain cases where individual communications might be harmful to child victims like child pornography. Slovenia expressed similar support for collective communications, and Costa Rica praised Article 3 as an innovative mechanism to support Articles 2 and 10, enabling the exploration of complaints where individual communications would be difficult and thereby better protecting children. Slovakia agreed, while Brazil, France, and Argentina advocated that discussions around collective communications not be brought to a close in order to provide for more detailed negotiations to reach a formulation of Article 3 that would be acceptable to all States. In an effort to reach a compromise, Mexico proposed that the Committee might be able to operate similarly to the Inter-American Court of Human Rights by offering two distinct phases, the first being on admissibility, where no identification would be required, and the second on examination of the merits, where individual victims would need to come forward. The experts, however, noted that this would still require there to be identifiable individual victims, thus undercutting the purposes of Article 3. Experts Peter Newell and Jean Zermatten then offered their concluding thoughts. Mr. Newell felt it important that States look at the reality of the situation and accept that many child victims would be unable to bring individual complaints. He cited research on young adults showing that many suffered extensive violations as children, but did nothing for fear of aggravating the situation. He advocated strongly that collective complaints would give these children a voice. Mr. Zermatten concurred that there were inevitably children who were going to fall through the cracks without Article 3, and encouraged States to give the idea a chance. Drawing the debate to a close, the Chairperson echoed the experts' sentiments called on States to continue discussing collective communications. Recognizing that there might be differing viewpoints on the subject, he promised to circulate several alternative versions of Article 3 in the intersessional period and to resume the consultation during the next meeting.