Complaints Mechanism: Part I (General Provisions)

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.

The Chairperson opened the Second Session of the Working Group Meeting to draft a CRC Complaints Mechanism after what he emphasised had been a busy two months of negotiations and consultations since the last meeting in December. He informed States that during the break, he had had the opportunity to meet with all five regional groups, and that these discussions had been fruitful.

The Chairperson highlighted a number of new features of the Draft Optional Protocol, including the placement of some of the Protocol's core provisions at the beginning of the document, the addition of new provisions to address concerns around the manipulation of children, and the adjustment of collective communications to an “opt-in” mechanism with a lower threshold than the inquiry procedure.

Moving forward, he then began debate on Part I of the Optional Protocol, the General Provisions, comprising articles 1 through 5 on the Competence of the Committee on the Rights of the Child (article 1), General principles guiding the functions of the Committee (article 2), Rules of Procedure (article 3), Protection measures (article 4), and Publicity (article 5).

Slovenia welcomed negotiations with a view “to make the text as strong and as widely acceptable as possible.” Slovenia also expressed firm support for the Optional Protocol to be as child-sensitive as possible, and wanted to see this principle more comprehensively applied. In keeping with this, the delegation – with the support of Chile, Brazil, Finland and several other States - suggested that requirements to be child-sensitive throughout be absolute and not qualified with “where relevant” as currently done in article 3. Some states were less certain about the necessity of making the Rules of Procedure child-sensitive, but most – like Greece – saw the principle as important.

Russia, Egypt and China argued that because the main purpose of the Optional Protocol was to provide a communications procedure, this should be the sole function of the Committee mentioned in article 1 and the reference to “conducting inquiries” should be deleted. Liechtenstein and France disagreed, noting the importance of the inquiry procedure to the Optional Protocol.

On article 2, Australia made a proposal that the text be revised to reflect the language in article 12 of the CRC on the child's right to express their views and to be heard. With the exception of Haiti and Nigeria – who did not wish to mention children's right to participate at all – this idea received broad support.

There were many suggestions made to adjust the wording of article 4, with most delegations interested in ensuring that State protection be extended to all persons who might in any way be put in danger by virtue of using the communications mechanism. To broaden the actions covered, Belgium proposed including protection from “threats, pressure, intimidation, ill-treatment, or sanctions” and Peru agreed that threats should be covered alongside other human rights violations.

To strengthen the obligation to provide protection, Denmark proposed with Portugal's support that States be required to take all necessary steps to ensure protection instead of whatever steps they might deem appropriate.

Nigeria sought to limit protection only to individuals directly involved and Haiti to limit it to cover only human rights violations, but these suggestions met with firm opposition from many States including the United Kingdom, Poland, and Finland.

In keeping with the meaning of article 5, Japan took the floor to suggest that the article's title be changed from “Publicity” to “Non-publication of identity.” The new title was welcomed by many States, and Slovakia and Canada further suggested that the identities of all individuals concerned not be published, not simply the individuals submitting communications.

When there was a desire to publicise a particular case, Belgium felt that the consent of individuals concerned would not only need to be expressed, but also informed. Some states, including Russia, the United States, Austria and Algeria, also felt that it should be made clear that the bar on publicity does not prevent the identity of individuals involved from being revealed to States, which the Chairperson assured was already the case. France wasn't sure that it had been agreed that the identity of the individual or individuals submitting a communication should without exception be revealed to the State, and hoped for further debate.

The NGO Group for the CRC welcomed the new structure and improvements made to Part I. The NGO Group was in favour of the new language in article 1 to incorporate conducting inquiries into the Committee's competence, the reference to children's right to be heard in article 2, broad protections for any and all individuals who might become involved with the Optional Protocol under article 4, and the strengthening of article 5's banning of publicity.

The International Commission of Jurists (ICJ) reminded States that the underlying principle to respect in creating a communications procedure was children's fundamental right to a remedy. The ICJ argued that the Optional Protocol to the CRC should not simply be a reproduction of other Optional Protocols, but must be specifically adapted to children's needs. Along these lines, the European Disability Forum felt that in order to be an important and useful tool for children with disabilities, the right to be heard must receive special attention for those children who may have an even greater time expressing their viewpoints.

The Committee on the Rights of the Child applauded the inclusion of conducting inquiries in its competence, and favoured proposals to strengthen protection measures. Independent expert Peter Newell seconded these notions, and also hoped that some of the general provisions might influence the development of strong and effective national remedies. He also echoed France's statement around revealing the identity of complainants to States, and hoped that there would be progress towards creating certain exceptions to this rule as negotiations progressed.

Owner: NGO Working Group for the CRC Complaints Mechanismpdf: www.crin.org/law/CRC_complaints/

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