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Summary: Summary of discussion on topic one: Timing and Feasibility for the complaints mechanism under the UNCRC. Part of the Working Group meeting that took place in Geneva between 14 and 18 December 2009.
Discussion topic One – Reasons and Timings Yanghee Lee, Chair of the UN CRC introduced the first topic of the Working Group meeting on reasons and timing for elaborating a communications procedure. “The timings and the reasons are so very evident”, she said. “This idea of an OP is not new and was discussed at the drafting of the CRC and the 10th anniversary in 1999. Why? Because the international community was heavily involved in the two OPs and also the hesitance over the ESC rights”. She explained she had been on the CRC Committee for seven years now, and had seen the frustration at not being able to take complaints. In many cases, children do not have access to justice and other cases, the system is just not child friendly. She emphasised that the Committee had given a lot of discussion to such an OP and deemed it feasible and very necessary. She said the General Comment 12 on the right to be heard was a key introduction to pave the way for the OP. Furthermore, the justiciability of ESC rights is not an issue any more – due to OP on ICSECR. Read the full statement Slovenia highlighted the unique rights of children that can only be guaranteed under the CRC. “The Committee has supported the elaboration of a Protocol. It is high time we move this process forward”, he said. “We must do everything in the best interests of the child. So the question shouldn’t be yes or no, it should be what options are best for the child”, he concluded. The representative of the Maldives said they had four reasons for supporting this OP; children have waited long enough for their rights to be fully realised, their rights are unique and therefore require a unique procedure, children's rights must be protected on the national, regional and international level; and it will allow us to bring in a stronger normative international framework. Slovakia said”we must concentrate more on the reasons for this OP, as the timing is absolutely right, no questions”. “If we are discussing whether to have an OP, we should look back at the Summit of 1990 as a point of departure” he continued. Argentina explained their reasons for supporting this initiative, including the specificity of children's rights; the increase of State compliance to the CRC, the strengthening of democratic principles of the CRC, as well as the increase of its scope. “We believe that this communications procedure is an opportunity for countries to rectify problems and to improve policies” he said, “and there has been enough support from countries and civil society to prove that the timing is right” he ended. In response to comments and questions received; Ms Lee explained talked about the frustration of the Committee at not being able to be involved in the court process. “Children do not even have the right to pursue problems until the next periodic report comes along and that can be a long time”. “An OP will give the child the voice that he or she deserves, even in the national mechanism. This is key in that it will help your national systems as well”. Mr Jean Zermatten, Vice Chair of the UN Committee on the Rights of the Child, reiterated the Committee's frustration seeing violations against children and not being able to respond, “imagine how children feel”, he said. “The Committee members conduct a variety of pieces of work, however the largest part should be assessing individual cases, which we aren’t able to do. We are only able to go half way in meeting the mandate”, he explained. The representative from Thailand said children are subject to rights of International Law, hence should be able to seek remedies on the international level. The current lack of this undermines child rights. He agreed that children can already take that communication to other treaty bodies, but those do not have specific expertise in child rights. An OP would help in the interpretation and understanding of the CRC, which will strengthen the national implementation of the CRC. The representative from Uruguay said the time was right. “I won’t repeat what other countries have said, but I do want to stress that specific rights of the child do not appear in other treaties, hence the need for an OP for the CRC. There were cases in other treaties where rights weren’t properly upheld due to the specific nature of children's rights” she said. Italy said they were confident this debate would provide a meaningful solution. The representative said there were issues that needed to be discussed of course, but that there were concrete ways of looking at them. The representative of South Korea asked whether having a domestic system would not be a good alternative to a CRC complaints mechanism. Ms Lee responded that there are often no effective national systems for safeguarding children's rights. “I would like to state that in situations where children do not have the capacity, they need to be represented by somebody and the Committee will be providing a criteria for this representation procedure”, she said with regard to legal representation.. Ms Marta Santos Pais, Special Representative of the Secretary-General on Violence against children, said that if there was no domestic remedy, how could the Committee advise the State on how to deal with the issue? “We have found that no one national system has been found for the process of redress, so the Committee can guide States. “The Committee can advise the State on what type of remedy it could adopt, to try in the first instance to get the issue resolved domestically”, she explained. Indonesia said they wanted more information on the General Comment 12. They said it was a good comment but did not see whether the legal capacity of the child could be strengthened by the representation. Mr Zermatten said there were many cases where children have been represented or have represented themselves. And cases where the children have chosen how to be represented or chosen against an option of representation.
The representative from Syria asked what the added value was and whether the protection of the rights of the child could be guaranteed by other legal instruments. He said his government was not against the procedure, “we will participate and we do feel that children need a protection mechanism, especially within the family, or from say genocide or say military aggression, but we have a number of questions”.
Owner: NGO Working Group for the Complaints Mechanismpdf: www.crin.org/resources/infoDetail.asp?ID=21261