CRC Communications Procedure
After several years of discussions and negotiations at the international level, the new Optional Protocol to the UN CRC on a communications procedure was adopted by the UN General Assembly in December 2011. The Optional Protocol is now open for signing and ratification by UN member states.
During a high-profile and symbolic signing last 28 February 2012, the new Optional Protocol was signed by twenty (20) states, namely, Austria, Belgium, Brazil, Chile, Costa rica, Finland, Germany, Italy, Luxembourg, Maldives, Mali, Montenegro, Morocco, Peru, Portugal, Serbia, Slovakia, Slovenia, Spain and Uruguay. These states showed political commitment and strong leadership in protecting children’s rights as the first set of signatories.
Key Features of the Optional Protocol to the CRC on a Communications Procedure
– A “communications procedure” allows a victim, a group of victims or a representative who claim that their rights have been violated by a state to bring a complaint before the UN Committee on the Rights of the Child.
– The Communications Procedure covers complaints alleging violations of the UN CRC, the Optional Protocol to the CRC on the involvement of children in armed conflict and the Optional Protocol to the CRC on the sale of children, child prostitution and child pornography.
– Communications submitted to the Committee on the Rights of the Child follows specific criteria such as the following: it is not anonymous, must be in writing, all available remedies at the domestic level have been exhausted and has not been or being examined by the Committee or other “procedure of international investigation or settlement”.
– The Committee on the Rights of the Child may employ “good offices” approach to reach a friendly settlement of the complaint.
– There are two “opt-out” procedures, i.e. the inquiry procedure and the inter-state communications.
– The Optional Protocol will enter into force after 10 states have ratified or acceded to the treaty.
Background of the Optional Protocol to the CRC on a Communications Procedure
Prior to the adoption of the new Optional Protocol, the only opportunity for children and young people to bring information about child rights violations to the attention of the UN CRC Committee is through the periodic reporting process which cannot address individual situations. Back then, there were no opportunities for individual or groups of children victims/survivors to bring to the attention of the UN CRC Committee violations of their rights under the Convention on the Rights of the Child (UN CRC), the Optional Protocol on the sale of children, child prostitution and child pornography or the Optional Protocol on the involvement of children in armed conflict.
Back then, individuals could only seek redress from UN treaty bodies as manifested in the existence of individual complaints mechanisms related to International Covenant on Civil and Political Rights (ICCPR), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Convention on the Rights of Persons with Disabilities (CRPD), and International Covenant on Economic, Social and Cultural Rights (ICESCR),
Since 2006, an international coalition of child rights and human rights organizations actively campaigned for the HRC to initiate such a process and ensure that an international remedy is available for children victims when national judicial systems fail them. This coalition is coordinated by the NGO Group for the CRC and includes, among others, the following organisations: International Save the Children Alliance, International Federation Terre Des Hommes, Child Rights Information Network, Defence for Children International and PLAN International.
After successfully lobbying the HRC, an Open-ended Working Group (OEWG) was established through an HRC Resolution (A/HRC/RES/11/1) on 17 June 2009to discuss and explore the possibility of having an Optional Protocol to the UNCRC to complement existing CRC reporting procedures and to provide an individual communications procedure. The first session of the OEWG took place from 14 to 18 December 2009. In March 2010, the HRC adopted resolution A/HRC/RES/13/3 by which it decided to extend the mandate of the OEWG and extend it to elaborate an optional protocol.
A first draft optional protocol was prepared by the Chairperson of the OEWG and circulated in September 2010. As the OEWG was given up to ten days by the HRC to fulfill its mandate, the Chairperson decided to hold two rounds of negotiations of five days each to finalize a draft optional protocol, using his first draft as a basis for the negotiations. The first round was held from 6 to 10 December 2010 and the second one from 10 to 16 February 2011. In January 2011, the Chairperson of the OEWG prepared a revised draft OPCRC taking into consideration the inputs by various stakeholders during the December 2010 meeting. There have been some changes as regards certain provisions of the proposed OPCRC. For example, the provision regarding collective communications, i.e. Article 3 in the first draft and Article 7 on the second draft, lowered down the criteria used to determine whether a collective complaint is admissible. In the first draft, the complaint had to allege a “grave or systematic violations” while the second draft changed the standard to “recurring violations affecting multiple individuals” but made the mechanism optional. Another significant change as regards the second draft is the inclusion of an additional criterion to determine admissibility of the complaint. Article 10 of the second draft allows the committee to “decline to consider the communication where it does not reveal that the author has suffered clear disadvantage.”
Throughout the negotiations of the text, States expressed diverse, and sometimes contradicting, positions. In particular, there were some diverging views regarding the proposal to allow the UN CRC Committee to receive and consider “collective communications”, i.e. communications brought by national human rights institutions, ombudsman institutions and NGOs without identifying individual child victims. Discussions mainly concerned the added value of such a mechanism, the actors that could bring collective communications and the kind of violations that could be brought through such communications. In particular, some States didn’t want NGOs to be able to bring collective communications; others wanted it to be restricted to NGOs with ECOSOC consultative status while others wanted to allow all child rights NGOs to submit collective communications. The nature of the violations that could be brought through a collective communication was also discussed: some States supported the proposal of the Chairperson to restrict them to allegations of ‘grave or systematic violations’ while other States felt it should be broadened to ‘recurring violations’. Despite the attempt to strike a balance by the Chairperson in his revised draft optional protocol circulated in January 2011, where the collective communications mechanism became an optional mechanism (‘opt-in’) open to all child rights NGOs for all ‘recurring violations affecting multiple victims’, the collective communications provision got deleted on the last day of the OEWG negotiations on 16 February 2011.
Amongst the other concerns expressed by States were the risk of overburdening the CRC Committee which is already facing delays in reviewing state reports, and the need for legal representation for child victims.
Civil society organizations have been engaged from the beginning of the process and were coordinated by the NGO Group for the CRC. They produced several joint NGO submissions at each step of the process, namely in December 2009, October 2010 and January 2011 and delivered joint oral statements during the negotiations. One key element they pushed for was the introduction of the collective communications procedure, which exists under the African and European human rights systems so that the Committee could examine children’s rights violations without directly involving the victims in the process and thereby guaranteeing confidentiality and preventing re-victimization of children. Despite the support of civil society, UNICEF, international experts and a number of States, the mechanism was deleted from the final draft OP CRC that was adopted by the HRC.
On 17 June 2011, the Human Rights Council passed a resolution adopting the final draft of the OPCRC. The countries in Asia who co-sponsored the resolution were Thailand, Timor-Leste and Japan. The resolution recommends to the UN General Assembly to adopt the OPCRC and recommend that the OPCRC be opened for ratification by states at a signing ceremony to be held in 2012 with the assistance of the UN Secretary General and the UN High Commissioner on Human Rights. The UN General Assembly adopted the final text in 19 December 2011.
Now that the Optional Protocol has been adopted, it is important that child rights organizations in Asia, particularly members of CRC Asia, engage in the ratification campaign of the new OPCRC and raise awareness about this new international remedy for children’s rights violations. In addition, the UN CRC Committee will have to develop new rules of procedures taking into account the best interests of the child, the child’s right to be heard and making sure that the communications mechanism is child-sensitive. It will be important to provide the UN CRC Committee with inputs from national NGOs to make sure that the new procedure will make a difference on the ground. The NGO Group for the CRC will continue to coordinate civil society inputs into this new process.
Join the campaign:
Read the official text of the Optional Protocol to the CRC on a communications procedure.
Learn about the global campaign and how your organization can become involved by reading the advocacy toolkit prepared by the NGO Group for the CRC.
Joint Press Release of the NGO Group for the CRC, International Commission of Jurists and Child Rights Coalition Asia: “NGOs call on States to ratify the UN complaints procedure on children’s rights”, 12 February 2012.
Write a letter to relevant officials to your government to sign or ratify the Optional Protocol. Read our sample letter.