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Summary: Summary from discussion on topic four on unique rights of the CRC of the UN Working Group for the communications procedure.
Discussion Topic Four – Unique nature of Rights Ms Marta Santos Pais, the UN Special Representative on violence against children, stated that she was encouraged by the rich discussions that had taken place throughout the conference so far. She said “there is a sense of a strong commitment to address remedies for children's rights and a strong will to take on discussions in a constructive manor”. She continued by saying that “this elaboration discussion is very timely, partly due to the 20th anniversary and also it is time to renew our commitment to child rights. The last 20 years have changed the perceptions of children and shown us how international and national mechanisms can work best. We now have strong confidence and experience with which to proceed”. She told the delegations about some examples unearthed in a review conducted by the UNICEF Innocenti Research Centre, where countries have adopted successful domestic remedies. She sited legislation in the Philippines as an example and told how in this country, courts have to give priority to children with complaints of violations. She highlighted the fact that there existed a number of examples of best practices. Referring to the UN Study on Violence against children, she talked about two recommendations: The call for an ombudsman office to receive complaints and monitor violations, and the call for effective complaints mechanisms in justice systems. She stated how further information can be obtained from her written report and concluded with a powerful message to delegates, saying “we can’t ignore or bypass the opportunity to strengthen child rights in a normative human rights framework.” The expert Mr Zermatten, Vice Chair of the CRC, says that his paper is an overall consideration of the elaboration of a communications procedure under the CRC. He further argues that the special status of children means that they are in need of an individual communications mechanism. In response to the question about unique rights, he responds, “nearly all the rights under the CRC are specific rights. It is much easier to mention the rights that are not specific to children; they are the thematic rights such as non discrimination and so on, which apply to all treaties” He further explained that it was appropriate that the same experts who monitor the implementation of the CRC would be the ones examining the complaints. This would develop jurisprudence. He concluded by stressing that information is vital to the complaints mechanism if it is to be efficient. He also said that there are existing methods at a national level and ombudsmen and a complaints mechanisms would encourage States to set up courts of appeals and to generally improve the whole system for children. Argentina opened up the discussion by saying that “with regard to children having capacity to submit a complaint. There is no doubt that this move towards making children subjects not objects has moved children further into the limelight. It is the last body not to have a complaints mechanism and this has been seen as a disadvantage. But we must look at the disabilities convention, where individuals are often seen as objects, but they have a complaints mechanism” Argentina drew upon the valuable lessons to be learned here from experience, “ we can learn from national systems, ombudsmen and so on. We are not starting from scratch, we have experience”. South Korea agreed that there is a need for better protection of children through national institutions such as ombudsmen, before proceeding to question whether the Committee’s General Comments could be more influential. The NGOs then delivered their statement. Read here. Syria took to the floor and asked whether there were any distinction in the application of the convention between the different stages of the development of a child. They also asked how we can ensure then that the best interests of the child are placed. They finally asked if it was possible to have an example of best practice of how children can participate in drafting legislation that includes their basic rights. Ireland told delegates that participation rights for children in Ireland are a priority. The delegation said “we would like to echo the comments made by Slovenia that children should be informed about the work of this working group and get their input on the drafting of a procedure, what it means and how it can be used”. Sweden raised the issue of manipulation asking how we ensure that the child is not manipulated through the complaints procedure. Sweden also asked the working group how one could determine when national remedies have been exhausted and when they should be waived if they entail unreasonably prolonged processes. They asked whether this would be done on a case by case basis. Uruguay took to the floor stating: “In our opinion, there is a clear need for a specific mechanism so that children can submit their complaints. We agree these are unique rights that have not been covered by existing treaties”. The delegate continued by saying “we urge that children should be allowed to participate and to be safe from manipulation and protected when making a complaint”. Uruguay further stated that legal counsel must be available to children, outlining how in the case of Uruguay a new code on children acknowledges the right of children to have access to courts to defend their rights. Peru asked if experts could share some examples and specific measures that show how manipulation is avoided. China told the delegates that they have noticed the special feature of the right of the child is the right to be heard. They said they attach great importance to this right. China stated “we also have some provisions which are specific to children. At the same time, the child or his representative can participate in the judicial proceedings. From our experience, the most important thing is that we should work according to the maturity of the child. The delegate just now said that they are growing, so to what extent should we respect their views? We need to be flexible on this according to their age”. China argued that the local institutions would be better placed to judge whether the child is old or mature enough to be heard rather than an International treaty body, like the CRC Committee. In terms of the specific rights of the child, China stated “there are so many rights in the CRC, we should really analyse in future discussions which rights we should cover”. China continued their address by saying “we should consider the child as a rights holder and at the same time, the Convention has other principles, for example Article 5 points out that the state parties shall respect the parent or members of extended family. We don’t deny that the child is a rights holder but he is still a child after all. He should recognise the guidance of his family. We want to hear the views of the expert.” Ms Pais responded to a number of issues raised by the delegations. She started by saying, “I want to echo South Korea’s point that we have a great opportunity to strengthen existing mechanisms for child rights. What is missing, why do we want an effective remedy? "The Convention says we must have a remedy and it doesn’t do it explicitly so we need an OP. Secondly children can make use of other existing mechanisms, so yes they can have access, however we don’t have the opportunity yet of using all the provisions of the CRC because of the lack of an OP. Finally, there is no way other treaty bodies can assess child violations with the same expertise that the CRC Committee can assess”, she continued. In answering the question as to whether such a mechanism should address all rights of the CRC, or new ones or just some of the rights, Ms Pais responded “children are equal to all human beings and so should receive access to all rights and indeed there is no legal argument or any other to limit the number of provisions”. Responding to the point by China on Article 5, she responds “we know that children are evolving in their capacities, hence Article 5 is important as it implies the family can assist the child. But the wording of that article was discussed at length as it clearly says that the child can assert his right to get help from the family or not”. In response to Sweden’s question on how we should secure the protection of children from manipulation in the process, she replied “we find this provision in all other treaties so let’s apply that precedent”. Mr Zermatten joined the discussion on the specific nature of rights, stating that “all the rights in the Convention are specific because of the interpretation given to them”. On the age of the child, he continues “the Convention doesn’t give a minimum age to hear from a child, but the convention states that once we hear from a child and once specific attention has been given to the child’s complaint, we will then need to look at his age and then make a decision, based on the situation in which the complaint is made, the age of the child and so on. It depends on the subject in hand", he said. In response to China’s comment on Article 5, he says “the child comes from a family, a community and a state. He is equal in rights and dignity to other persons and this equality means there are obligations”. Mr Zermatten stated that to ensure protection of the child during the complaints procedure, it is important to limit the number of questions, use all of the avenues that exist in hearings and avoid confrontations when they are not useful. Ms Lee, responded to Sweden's question about the prolonged response to complaints, telling delegates that this must be discussed in the drafting stage of this working group. In response to China’s point as to how the Committee would determine the mental capacity of the child, she stated “I want to reflect on the CRPD and persons with mental impairment. This has passed the complaints procedure, so this is a strong source of support for the CRC process” Ms Lee did raise the point about General Comments stating that “they are not binding but we have noticed over the years that they get taken on board at a high level but often it doesn’t filter down to a lower level and we constantly push governments to do this. Governments do set up local mechanisms but when governments change over, this gets stopped sometimes”. The Chair rounded off the session highlighting the importance of the issue of violence towards children and the significant impact a future complaints mechanism would have on this issue. Further information
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