COMPLAINTS MECHANISM: Summary of Final Drafting Meeting

Summary: Summary of the third and final working group meeting to draft the communications procedure under the UNCRC.

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Draft report on the second full drafting session on a CRC complaints mechanism, including the current agreed text of the Optional Protocol here. 

The third drafting meeting for the complaints mechanism opened last week in Geneva. The Chairperson emphasised it 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 met with regional groups, and that these discussions had been fruitful.

He 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 optional mechanism with a lower threshold than the inquiry procedure.

One issue often discussed was the necessity for the communications procedure to be child friendly. There was also a discussion about Article 12 of the CRC and the importance of the child's right to be heard in the context of the complaints mechanism. With the exception of Haiti and Nigeria – who did not wish to mention children's right to participate at all – the idea of including language from Article 12 in the Protocol received broad support.

The protection that persons submitting complaints should receive against possible retaliation was also debated. Similarly, it was discussed whether the identity of persons submitting complaints should be public information or kept confidential, and the Committee on the Rights of the Child welcomed proposals to strengthen protection measures for anyone involved in filing a complaint.

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As the debate moved to individual communications, a number of delegations voiced their disagreement with the new proposal that States be allowed to "opt-out" of allowing complaints under the existing Optional Protocols to the CRC, meaning that they would not have to respond to violations of rights under the Optional Protocols if they made that clear at ratification. These States included Liechtenstein, France, Belgium, Poland, Germany and Slovakia, although other States like the United Kingdom, Thailand, Canada, and Pakistan thought that retaining the Optional Protocol "opt-out" would be a way to encourage wider ratification.

Next on the agenda was collective communications, the most hotly debated topic last session. The latest wording on collective communications had been modified and broadened to cover any recurring violation of children's rights, but would now require States to "opt in" to allowing these communications. This would mean that it would not be mandatory for States to respond to collective communications - instead, States would have to specify when they ratified the Protocol if they wish to participate in the collective communications mechanism.

Brazil, Peru and Liechtenstein were not pleased with the proposal as they felt that collective communications should be compulsory. Other States in favour of collective communications like Slovakia, Uruguay, Portugal, Chile and Costa Rica were more accepting of an "opt-in" mechanism as a genuine attempt at compromise, and some States that had been previously against or unsure about collective communications like Mexico, Lithuania , Turkey, Switzerland, Thailand, France and the Maldives were also willing to accept an "opt-in" compromise.

Haiti, Ethiopia, China and Pakistan were still generally against collective communications and Iran, Germany, Austria, the Netherlands, Egypt, Japan, Canada, the United States, and South Korea spoke firmly in favour of its deletion.

Nevertheless, opposition from States who had been previously negative about collective communications like New Zealand, Russia, the United Kingdom, India, the Czech Republic, Australia, and Greece appeared to have softened.

Independent expert Peter Newell explained that States should not be afraid of introducing a newer procedure into the Optional Protocol and that collective communications already function well in other systems, and would in fact address many concerns expressed by States in avoiding the manipulation of children, obviating the need for protection measures, and more efficiently using the Committee's time and resources.

Mr. Newell expressed hope that the Draft Optional Protocol overall would encourage the development of strong and effective national remedies.The National Human Rights Institutions (NHRIs) also praised collective communications and highlighted the distinctive knowledge and experience NHRIs could offer to support the process.

The NGO Group for the CRC was surprised at the opposition to collective communications from European and African States, both of which already have similar mechanisms in place. They also saw collective complaints as a way to ensure that all children have access to the communications procedure, including those who are not in position to bring complaints and those who cannot be identified.

The discussion moved on to the issue of who can submit a communication. Some States wanted children to be able to decide who could represent them, while others believed that only parents or legal guardians should be able to submit a communication on behalf of a child. Yet other States were strongly against NGOs submitting complaints on behalf of children.

Portugal, Lithuania and Japan also wanted the Committee to be given more tools to be able to evaluate whether the child's best interests were being taken into account when a communication is submitted.

On interim measures, the Chairperson noted that there had been proposals both to strengthen and to weaken these measures, and that the current text reflected a balance between these two positions. A number of States thought the Committee should only be able to use interim measures in 'exceptional circumstances', but others, including Liechtenstein and Slovenia disagreed and felt that if interim measures were to be further limited, language would also need to be changed to require greater commitments from States to prevent further harm to victims.

Next came a discussion on time limits for the submission of communications after the exhaustion of domestic remedies where some States like Sweden wanted to reduce the current proposal of a one year window to six months. On the other side of the debate, others including Australia and the Czech Republic expressed serious doubts about the wisdom of a time limit given the special vulnerabilities of children.

On friendly settlements, the big issue was whether the Committee should be allowed to re-open communications where it felt that friendly settlements were not in the best interests of children. States were very divided, with some wanting greater powers for the Committee and others wanting far less.

The NGO Group recognised the confusion around provisions for monitoring friendly settlements, and advocated that the Committee be able to re-open friendly settlements that have not been successfully implemented.

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On the inquiry procedure, Azerbaijan led one group of States advocating for States to be able to "opt out" of allowing the Committee to consider inquiries filed against them. France and a similarly sized group of States, however, argued that it should be mandatory for all States to accept inquiries, especially given the critical importance of creating a mechanism to address grave and systematic violations of children's rights.

A smaller group of States, meanwhile, followed Egypt's lead in calling for a system where rather than declaring that they do not wish to be bound by the inquiry procedure, States would have to affirmatively "opt in" to the inquiry procedure.

Another polarising issue was the prohibition on reservations. New Zealand spoke out on behalf of States who wanted to allow for reservations as long as they did not go against the aims of the Optional Protocol. Disagreeing, Slovenia and a smaller group of States argued that reservations should be banned as the complaints mechanism is designed to be a procedural addition to the CRC 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.

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Take it or leave it

After the weekend, the three remaining days were mostly dedicated to informal consultations. By the end of Tuesday evening, however, the Chairperson made a surprising announcement and proposed a take-it-or-leave-it package. He felt that it was important to present States with a final compromise option in the interest of having a draft Optional Protocol ready for submission to the Human Rights Council in June. With this in mind, he proposed a number of changes for States to consider in a last ditch effort to reach consensus.

Among other things, the Chair suggested that the draft Optional Protocol allow States to "opt-out" of applying the complaints mechanism to existing Optional Protocols, remove the collective communications mechanism, allow States to "opt-out" of participating in the inquiry procedure, and allow for reservations.

Before the day closed, the Committee on the Rights of the Child took the floor to express deep disappointment at the Chair's proposal. "We must remember that we are engaged in this process to protect the best interests of the child; the CRC is a legal instrument that recognises children as holders of rights," Chair of the Committee Yanghee Lee began.

Noting the two decade long journey towards creating an effective and accessible mechanism for children, she gave an impassioned speech urging States to reject the package: "We would like to make a plea to you not to lower the bar any lower than you should, not to lower the threshold below what is guaranteed, what is already established in other instruments for children. Children should not be marginalised...and have a lesser instrument than anyone else."

The Chairperson closed the meeting admitting that he sometimes "had the feeling that many of us have been protecting more the rights of States than the rights of the child."

Reactions to the Chair's Proposal

The final day of negotiations opened with reactions to the proposal package made by the Chairperson.

Nigeria said they still had difficulties and concerns and that the Africa Group would raise specific points but “our feeling and understanding is that we are not yet there”, they said.

The representative from Liechtenstein said nothing was agreed until everything was agreed. And that compromise should be based on give and take, which had not been the case.

Paraguay, which spoke on behalf of MERCOSUR, explained they had supported this initiative from the beginning, but viewed with concern the proposed compromise because it does not meet the expectations of many delegations and thought speeding up the process for the sake of time would undermine coming up with an appropriate and effective mechanism for children.

Uruguay, Costa Rica, Brazil and Mexico aligned themselves with Paraguay saying their delegations were very committed to this process, but that the package was not ambitious enough, nor balanced, and that it was weaker than any other existing mechanisms.

Finland and Belgium said they were committed to reaching a compromise that suited everyone, but there were a number of issues in the proposal that clearly weakened the mechanism and this would need to be changed.

A number of States said they could come to some agreement on the proposal as it would encourage wide ratification; they included the United States, Australia, the Czech Republic, Poland, Russia, Switzerland, Japan, New Zealand, Denmark, China, the UK and Egypt.

UNICEF aligned itself with the Committee on the Rights of the Child saying the compromise package "would unreasonably and unnecessarily limit children's ability to obtain remedies for violations of their rights" and that there was a need for an enhanced - not a weakened - instrument for children's rights.

The NHRIs said the compromise package was regrettable. The representative explained collective complaints were nothing new and already accepted by more than 100 states. “We urge all those present not to throw the baby out with the bath water in the race against time”, she continued.

The NGOs shared the concerns expressed by the Committee, UNICEF, and other delegations. “Compromises that have been made serve to weaken, and not to strengthen protection for the rights of children”, the representative said.

"We are unable to support an instrument that does not achieve a sound balance to address violations of children's rights... We urge States to reject the package proposed and take further time as necessary to achieve an effective protocol."

Jean Zermatten spoke on behalf of the Committee reiterating their deep disappointment. He said it was already an optional protocol with too many added options. The instrument was too flexible, he explained. And as the Committee they would not know what they could do with it.

The Chairperson then announced that as too many States disagreed with the proposal, he was withdrawing it altogether. Ethiopia, Russia, Egypt and Algeria asked him not to withdraw it, but discuss it again, to which he replied that this was his proposal and he had the right to withdraw it.

The meeting was closed shortly thereafter to leave time for informal meetings. It was only at 7 p.m. that States came back to announce that they had reached an agreement on a final text.

Closing session

Following intense negotiations, the Chairperson returned shortly before 7 p.m. to present a final compromise proposal in an effort to bring the drafting process to a close. As he had hoped, the final text was approved with oral amendments and was largely in line with the take-it-or-leave-it proposal on contentious articles presented on Tuesday afternoon. 

Consistent with Tuesday's proposal, the agreed text included the complete deletion of collective communications, the deletion of the clear disadvantage clause, and the deletion of the provision on reservations (meaning that States can make reservations when ratifying the protocol). The one notable change was that the agreed text would not allow for States to "opt-out" of applying the communications procedure to existing Optional Protocols to the CRC.

Nonetheless, a few States said they still had concerns and wanted clarification on certain issues. Russia and China, for example had reservations about who could represent a child in bringing a communication, and wanted to limit representation to adults with close connections to the child. 

Similarly, Iran felt that a child's consent to representation should be required in all instances. With the support of Nigeria, Iran also called for the return of the option to "opt-out" of accepting complaints under the existing Optional Protocols.

On a more sombre note, Uruguay spoke to express regret that it felt it had no choice but to sacrifice certain mechanisms that were essential for the protection of children in order to reach consensus.

Although acknowledging that the week's proceedings had indeed resulted in a historic event, the Chair of the Committee on the Rights of the Child, Yanghee Lee spoke with great sadness and disappointment. "I am afraid that we have affirmed that children are mini humans with mini rights"*, she said, "and the current draft fits this idea of children." 

Ms. Lee felt she had no choice but to apologise to children for what she viewed as a truly missed opportunity for children's rights, lamenting "I am deeply sorry to every child that we have not succeeded in recognising them fully as rights holders."

On an ever so slightly more upbeat note, the International Commission of Jurists (ICJ) and NGO Group for the CRC reminded States that the process had been rushed, and that they still had four months before the presentation of the draft to the Human Rights Council to make things right.

*Ms. Lee quoted the famous words of Maud de Boer Buquicchio, Deputy Secretary General for the Council of Europe

Owner: NGO Working Group for the Communications Procedurepdf: http://www2.ohchr.org/english/bodies/hrcouncil/OEWG/index.htm