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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 February 10 to February 16, 2011. Informal consultations - On Monday morning, the Chairperson held an informal consultation to present packages of proposed articles in three clusters based on the level of agreement he saw between States. The first cluster consisted of articles he believed had achieved broad consensus among States and were thus ready to be finalised as currently drafted. These provisions - articles 15, 18, 19, 21, 22, 25, 26, 27, 28 – were mainly of a technical nature, but did also include the section on inter-state communications. The second cluster represented articles where the Chairperson thought States were close to reaching an agreement. The Chair presented these provisions – articles 1, 2, 3, 4, 5, 8, 9, 12, 13, 14 and 20 – for consideration with a number of amendments to reflect compromises reached over weekend negotiations, including: Article 1: Delete the specific reference to “reviewing communications and conducting inquiries”and instead describe the Committee's mandate in general terms. Article 2: Insert language on the child's right to express views taken verbatim from article 12 of the CRC. Article 3: Delete “where relevant” at the end of the article, making the Committee's obligation to develop Rules of Procedure in a child-sensitive manner throughout. Article 4: Require States to take all “necessary” measures to ensure the protection of individuals who communicate with the Committee, not just “appropriate” measures Article 5: Change the title from “Publicity” to “Non-publication of identity” and tighten the language Article 8: Specify that interim measures are only available “in exceptional circumstances” Article 9: Delete the sentence providing for the submission of non-written materials as evidence in support of communications. Article 12: Delete the entire article as the Chairperson's view was that friendly settlements would need to be subject to re-opening by the Committee to be effective, and consensus around this could not be reached Article 13: Include a new paragraph to state that when the Committee requests interim measures, it shall also expedite the consideration of those communications; delete the paragraph on consideration of relevant documentation and leave this provision for the Rules of Procedure. Article 14: Maintain the State party time line as “as soon as possible and within six months.” Article 20: Include an obligation on States to disseminate information on the Protocol and the Committee's views both by active means and in accessible formats, in line with the Optional Protocol to the Convention on the Rights of Persons with Disabilities. As part of the second cluster, the Chairperson also presented a new proposal under article 6 based on the work of New Zealand and Sweden. The proposal would merge the ideas of respecting the best interests of the child and also address concerns of manipulation by allowing the Committee to decline to consider communications that are not in a child's best interests. The third cluster of articles, to be discussed last, contained issues where no agreement had been reached. These provisions consist of the potential “opt-out” for existing Optional Protocols under article 6 on individual communications; article 7 on collective communications; article 10's clear disadvantage requirement; a proposal from African States to amend article 11 to require separate consideration of the admissibility and merits of communications; the Chair's proposal to introduce new considerations for the review of economic, social and cultural rights; the nature of the obligations under article 16's inquiry procedure; article 23 on retroactivity and violations covered by the Protocol; and article 24's prohibition on reservations. The afternoon session was spent discussing the articles from the second cluster. Article 1 was generally accepted, although Russia wanted to ensure that language concerning the Committee's lack of competence to review communications for instruments to which States are not party would remain in the text. Some States including Portugal and Australia did not see the need for this language, but did indicate some level of flexibility. On article 2, New Zealand saw a problem in imposing a new obligation on the Committee to respect the rights of child complainants to express their views in line with article 12 of the CRC. New Zealand argued that States have taken on these obligations, not the Committee, and that transposing such an obligation onto the Committee would not make sense in a procedural instrument. With the support of a number of other delegations, including the United States, Japan, the United Kingdom, Iran, and Egypt, it was suggested that article 2 be moved to the Preamble. Portugal and Slovenia, however, led another group of States including Austria, France and Poland to argue that language concerning children's right to express their views should remain in the operative part of the Protocol. The Committee on the Rights of the Child agreed, and was happy to embrace article 2's mandate to respect CRC article 12 in exercising its competence. Poland was appointed as a facilitator for negotiations on article 2, and a compromise was eventually reached to specify that in fulfilling functions conferred on it by the Protocol, the Committee should both be guided by the best interests of the child and have regard to the rights and views of children in line with the language of CRC article 12. New Zealand next proposed that the new language on manipulation of children and best interests be moved to article 3, which received support from most other States with the notable exceptions of Egypt and Finland. In article 4, Japan, Iran and Egypt argued that States should not be required to take “necessary” protection measures as suggested in the new text, but rather only “appropriate” measures as originally envisioned and consistent with other Protocols. The Chairperson accepted this proposal, but Liechtenstein, Portugal, Finland and the National Human Rights Institutions disagreed with the change. Ethiopia questioned the change of article 5's title, but the Chairperson responded that many States had been in favour of the change as more indicative of the meaning of the article. Belgium and Russia thought it should be made clearer that States had the obligation not to reveal complainants' identities, not to ensure that their identities were not in any way publicly revealed. The United Kingdom, meanwhile, felt that it would be important to have a clearer link between anonymity and submitting a communication. The Chairperson accepted a proposal to that effect, and moved the provision to the second paragraph of article 4 under the heading “protection measures” as suggested by Ethiopia, Egypt and a number of other States. The International Commission of Jurists (ICJ), however, expressed misgivings about only providing protection to individuals submitting complaints, since a broader class of individuals would need protection and this might not even include the child victim. Brazil, Uruguay, Mexico, Switzerland, Austria and Finland agreed with the ICJ that protecting only individuals submitting complaints would be inadequate. Prompting a return to the prior language, Canada indicated that as the newer more restrictive wording might exclude child victims from protection where others submitted complaints on their behalf, it would be important for all States to accept less specific wording as a compromise position. Moving to article 8, Germany, Portugal and Brazil argued that the new wording to limit interim measures to “exceptional circumstances” was unnecessary and too broad to give the Committee useful guidance in knowing when to act. Along with the ICJ and the Committee on the Rights of the Child, they felt that restricting interim measures would create a very high threshold and not be in the best interests of the child. New Zealand and Iran disagreed, and the Chairperson opted to retain the phrase in keeping with his view of the sentiment from earlier discussions. France, with the support of a group of States, proposed adding further language in the article to ensure that the Committee engaged with the State in issuing interim measures and took State observations into account. Another group of States led by Canada disagreed, seeing no need to require this as States could always send their observations to the Committee. New Zealand and the ICJ also feared that adding new language requiring the Committee to consider State obligations would possibly introduce another level of delay in urgent procedures.
Monday, February 14/Tuesday, February 15
Taking the floor for the first time, South Africa then spoke out against the deletion of language in article 9 about the admissibility of non-written supporting materials. A number of States agreed that this language was important to ensure the Protocol's accessibility for children, and Belgium and the NGO Group for the CRC felt that it could also include an express reference to the Committee's Rules of Procedure. A smaller number of States disagreed, arguing that the article should be about admissibility of communications, not evidence. Nevertheless, the Chairperson opted not to reinsert language about the submission of non-written materials.
Many States spoke out against the deletion of article 12 on friendly settlements. Some, like China, Poland and Ethiopia, felt that the entire article should be reintroduced. Others, like the United Kingdom and Sweden, argued that the agreed language was too weak, and that the specifics on follow-up and whether the Committee would be able to reopen friendly settlements should be left to the Rules of Procedure. The Committee on the Rights of the Child also underscored the importance of follow up, bearing in mind that children are in a particularly vulnerable negotiating position. Taking into account the divisions in the room, the Chairperson appointed Slovenia as facilitator to reach acceptable compromise language.
On the new time line in article 13 for communications where interim measures have been ordered, Ethiopia felt that the provision was unnecessary as the Committee would already be giving strong attention to such serious cases. Sweden and Switzerland, however, disagreed, noting that interim measures often do not guarantee speedy consideration, but can in fact take more time to resolve as they present difficult issues.
Owner: NGO Working Group for the CRC Complaints Mechanismpdf: http://www.crin.org/law/CRC_complaints/