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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.
Opening Navanethem Pillay, the High Commissioner for Human Rights, opened the Second Session of the Open-ended Working Group on an Optional Protocol to the Convention on the Rights of the Child by encouraging governments to embrace both consistency with existing international instruments and creative innovation in drafting the complaints mechanism to ensure the best protection for children’s rights. The High Commissioner also encouraged States to draw on the knowledge and opinions of the independent experts present and the Committee on the Rights of the Child, reminding them that while national governments are responsible for crafting international law and meeting their obligations thereunder, the UN treaty bodies play a crucial role in providing guidance about how to do this. Mr. Dharoslav Stefanek from Slovakia, the Chairperson of the Working Group, then offered the draft proposal as a starting point for negotiations, emphasizing that it takes into account not only the recommendations of experts and the views of states expressed during the first session, but also the CRC itself and the special needs of children. Discussion on Articles 1 and 2. Click here to see the draft text of these Articles. UNICEF opened the discussion by commending the Chairperson’s draft proposal and underlined the importance of strengthening the international protection of children’s rights by improving the remedies available on the national and international levels for all children. The United States and Canada found the draft complaints mechanism workable, but stressed the need to use resources effectively and avoid duplications. The delegates from Sweden, however, expressed skepticism about the complaints mechanism and children being involved in legal procedures in general. Slovenia disagreed, noting that the Optional Protocol would be a proper mechanism to remedy violations of children’s rights, and welcomed the best interests of the child as a guiding principle under Article 1. Mexico felt that best interests were already reflected in the Convention, but in line with Slovenia, Uruguay discussed the important role the best interests of the child must play in negotiations. Meanwhile, Chile reminded states that the best interests principle and children’s rights overall require openness to innovation in drafting the complaints mechanism. Argentina worried that best interests were a vague concept, though, and suggested that Article 1 could be strengthened further by including a reference to CRC Article 12 on children’s right to be heard in all proceedings concerning them. Australia, Austria, Switzerland, and Peru generally agreed, with Australia stating that while children’s best interests must be the central focus under the new Optional Protocol, their right to be heard must reflected throughout. Slovakia also sought to add language in Article 1 to explicitly state that children are rights holders, while Poland encouraged including statements under Article 1 to clarify the special situation of the child. Under Article 2, Slovenia, Poland, Slovakia, Uruguay, Liechtenstein and France felt that states should not be able to opt out of applying the complaints mechanism to the existing CRC Optional Protocols. Japan called for more information on the subject matter from the experts, while Thailand, Belgium, Greece, Denmark and the United Kingdom preferred to maintain the opt-out provision. Many governments wished to discuss the submission of communications by adults on behalf of children with or without their consent. Slovakia noted the need to pay special attention to indirect communications, including the general requirements under Article 2 that children give consent to all complaints brought in their name and that the Committee assess the best interests of the child concerned where this is not possible. The delegates from Argentina felt that looking at a child’s best interests would serve as an important check in deciding whether someone else could bring a complaint on behalf of a child where the child is unable to give his or her consent. The Czech Republic, supported by Germany, suggested that where communications may be submitted without a child’s consent under Article 2, this option be limited only to extreme situations to eliminate the possibility of adults abusing the complaints procedure. Along these lines, France called for an additional paragraph to specify under which circumstances an adult would be able to bring a communication on behalf of a child without that child’s consent. Mexico disagreed, wishing to leave things more open in general and to ensure that the Committee does not reject communications where violations have occurred. Along these lines, Liechtenstein reminded states that the Committee is made up of experts who can competently determine whether bringing a communication is in the best interests of a child, and Switzerland supported the draft Protocol’s reliance on the Committee in deciding issues of representation. Belgium hoped to allow persons with parental authority or other adults with close links to a child to bring complaints on behalf of that child, while also bearing in mind the importance of preventing the possible manipulation of children they purport to represent. Sweden, Singapore, New Zealand, and Brazil also noted concerns about the potential manipulation of children, with Sweden and Iran both suggesting that the consent of a parent or legal guardian be required under Article 2 before submitting a communication. Egypt, on the other hand, worried that if representation were restricted to persons with parental authority, street children would have no way to bring complaints. Austria, Russia and Greece suggested that where the consent of children cannot be obtained, the consent of their legal guardian be required, while China argued that children should always be consulted when a legal guardian wishes to submit a complaint on their behalf and Finland posited that children should be represented by a guardian ad litem where there is a conflict of interest with their parents or guardians. Russia, Portugal, and Japan shared an overall view that the circumstances under which a complaint can be brought on behalf of a child should be relatively limited, and that the category of persons able to represent children should not be broadened. Where children submit communications themselves, the Czech Republic emphasized that they should have the right to legal and technical assistance. Germany felt that all children must be represented in proceedings before the Committee, regardless of their age and maturity, while Austria and New Zealand highlighted the importance of supporting children who would otherwise be unable to express their views like those with disabilities or in places of detention. The NGO Coalition for a CRC Complaints Mechanism underscored the need for the new Optional Protocol to strengthen the status of children as rights holders. They welcomed the best interests of the child as a guiding principle, and supported the inclusion of a more specific reference to children’s right to be heard. The Coalition also stood behind deleting the opt-out provision for the first and second Optional Protocols to the CRC under Article 2, and felt that the provisions of Article 2 relating to indirect representation of children provided not only ample opportunities for children who are unable to give consent to bring communications, but also sufficient safeguards to prevent the manipulation of these children. The International Commission of Jurists (ICJ) saw that several elements of the Optional Protocol could be strengthened to better respect and realize the CRC. Because remedies might be ineffective at a national level, remedies under the complaints mechanism should be prompt, accessible, and enforceable. The best interests of the child must guide the committee in all its work, and children’s right to participate and be heard should also be explicitly mentioned in Articles 1 and 2. The European Disability Forum further suggested that the best interests and views of children with disabilities, children in detention, and very young children be taken into consideration when determining whether to accept a communication on their behalf. The ICJ supported removal of the Article 2 opt-out provision, and felt that determination of admissibility of complaints made on behalf of children without their consent could be examined by the Committee on a case-by-case basis. Terre Des Hommes and the Norwegian Center for Human Rights also spoke out against the opt-out provision, and the latter worried that the procedure was not child-sensitive enough and should make specific references to ensure the effective participation of children. Jean Zermatten, Vice Chair of the Committee on the Rights of the Child, felt that children were not visible enough as rights holders in the existing draft, and that no rights under the CRC or its existing Optional Protocols should be excluded from the communications procedure as it is neither in the best interests of states or children. The Committee also reaffirmed that once the Protocol enters into force, the Committee will draft more thorough working procedures which will address delegations’ concerns about child-sensitivity and seek to maximize opportunities for children to express themselves. Importantly, the Committee felt that parents may not always act in the interests of their children’s rights, hence the rules surrounding who may represent children in bringing complaints before the Committee should not be restricted. Independent Expert Peter Newell recognized some states’ concerns about persons submitting complaints on behalf of a child, but reminded states that it is highly unlikely children will be able to submit a communication on their own as even adults are usually represented in bringing complaints. Children already bring cases in this manner to other UN and regional bodies, and small children – who may lack the capacity to submit communications themselves – must still be guaranteed the same rights. There are also many adults in a similar situation, including many with disabilities, and several treaty bodies have recognized that persons other than the victim may bring forward communications where this is necessary. The risk of manipulation is not a new concern, but it is minimal as all communications will be carefully reviewed by the Committee to assess whether they fit the full purpose of the Optional Protocol and are in the best interests of children. Bringing the discussion to a close, the Chairperson searched for the commonalities between the many comments made by states, the Committee, and NGOs on Articles 1 and 2. For Article 1, he promised to include in the next draft some additional language concerning children’s right to be heard, the status of children as rights holders, and the importance of children’s participation in the proceedings. For Article 2, he noted requests to specify the categories of persons who would be able to file complaints on children’s behalf, the debate around maintaining or deleting an opt-out provision with regard to the applicability of the complaints mechanism to the existing Optional Protocols, and the issue of acting with or without a child’s consent.