Complaints Mechanism: Parts III/IV (Inquiry Procedure/Final 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.

Part III. Inquiry procedure/ Part IV. Final provisions

In the interests of time, the Chairperson asked States to consider their positions on Parts III (articles 16 and 17 on the inquiry procedure) and Part IV (articles 18 to 28, primarily on technical matters) together.

The main focus of the discussion on article 16 was the nature of the obligations under the inquiry procedure. Azerbaijan led one group of States advocating that States should be able to “opt out” of the inquiry procedure to allow for greater flexibility and wider ratification. France and a similarly sized group of States argued that the inquiry procedure should be mandatory for all States Parties to the Optional Protocol, especially given the critical importance of creating a mechanism to address grave and systematic violations of children's rights. A smaller group of States followed Egypt's lead in calling for States to – rather than declaring that they do not wish to be bound by the inquiry procedure - affirmatively “opt in” to the inquiry procedure.

On article 20, there was some debate around the ways that States would be required to publicise the Convention. New Zealand raised a concern that States would only need to adopt “active and accessible means” to deliver information and not develop formats that would be accessible for all children, including those with disabilities. The European Disability Forum agreed, and a proposal to include a reference to “accessible formats” in the text received wide support. Turkey welcomed the article's emphasis on being child-friendly, and France, Thailand, and Slovenia suggested adding language to clarify that the burden of facilitating children's access to information on the communications procedure rests squarely with States Parties.

Article 23's provisions limiting communications to violations that occur after the Optional Protocol's entry into force or State Party's ratification were slightly more contentious. Switzerland and a number of other states felt that this provision was already covered in article 9's criteria for admissibility, and wished to delete the article. Thailand and a slightly smaller number of states, however, wished to retain the article to specifically prohibit retroactive communications.

Article 24's prohibition on reservations was similarly polarising. New Zealand spoke first to advocate for the deletion of the article and to allow for reservations not in contravention of the object and purpose of the Optional Protocol. A group of States supported this proposal, but Slovenia and a smaller group of States argued that the ban on reservations must be maintained as the communications procedure is purely procedural and does not create new substantive rights. The Chairperson also reminded States that prohibiting reservations is not an unprecedented move, as a similar provision appears in the Convention on the Elimination of Discrimination Against Women.

The National Human Rights Institutions, NGO Group for the CRC, and International Commission of Jurists (ICJ) then took the floor to agree with the States arguing to make the inquiry procedure compulsory. The NGO Group agreed that “accessible formats” would be a wise addition in article 20, and also argued for the deletion of article 23 as it was not only duplicative, but did not take into account the possibility of continuing violations that commenced before the entry into force of the Optional Protocol. The NGO Group and the ICJ also supported retaining article 24 as they believed that any reservation made to the Optional Protocol would inherently be incompatible with the Protcol's aims.

pdf: http://www.crin.org/resources/infodetail.asp?id=23908

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