Sunday, January 19, 2014

New complaint mechanisms -- rights of the child

Costa Rica became the 10th ratifying country this week under the Optional Protocol for a communications procedure under the Convention on the Rights of the Child.  This means the procedures described in the Optional Protocol will come into force three months later, on April 14, 2014.

It also means that there are now 19 mechanisms in total available in the UN human rights treaty system. See my earlier post on the other mechanisms.

The Optional Protocol creates both an individual complaint mechanism and an inquiry procedure. However, the inquiry procedure may be "opted out" of if the country declares that intention at the time of its ratification. So far no country has opted out of this procedure.

The protocol also establishes an inter-state complaint mechanism, where one country can bring a complaint against another country claiming that it has breached the treaty by violating human rights.  But like other such mechanisms in most of the other human rights treaties, it is unlikely that this particular mechanism will ever be used.

Individual complaint mechanism 

For the most part the individual complaint mechanism created by the Optional Protocol will be handled in a similar manner to the other complaint mechanisms already established under the other treaties. The one unusual aspect of this particular procedure, however, is the requirement in article 2 that the Committee give due regard for the rights and views of the child, in accordance with the age and maturity of the child.  The Committee is authorised to dismiss claims if they feel that the child who is the subject of the complaint is being manipulated or disregarded.

Procedures for handling claims and inquiries were issued by the Committee last year, in anticipation of the protocol eventually coming in to force. I did not see anything in the procedures explaining exactly how this "rights and views of the child" element should be covered in the complaint. It is not clear whether this is something that should be expressly referenced in the complaint itself, or whether it is something the Committee will be investigating on its own and requesting information where it has some concern.

Also, might it be possible for a child to file a submission on his or her own behalf, without the assistance of a parent, guardian or representative?  Yes, apparently this is possible, since nothing in the Protocol or Rules of Procedure appears to prohibit it.

The other important requirements to make sure you have submitted a valid claim include:

1. The names of the victims must be submitted; the complaint must not be anonymous (although the Committee will honour requests to keep the complaint anonymous after it has been submitted)
2. It must allege facts of violation that took place after the Optional Protocol went into effect in the country that is the subject of your complaint
3. It must be in writing
4. There must not be a parallel investigation taking place in another international body, or which has been completed on the same facts (some limited exceptions may apply)
5. Available domestic remedies must have been exhausted before submitting a complaint to the Committee (some exceptions apply)
6. You must file your complaint within 12 months of the date when domestic remedies were exhausted (some exceptions apply)
7. If you are bringing a complaint on behalf of a group of victims, the consent of those victims must first be obtained (some exceptions apply)

You may also bring a complaint on the basis of the rights described in the Convention on the Rights of the Child itself, or under either of the two other Optional Protocols -- one on children in armed conflict and the other on the sale/pornography of children.

The Office of the High Commissioner on Human Rights also provides a useful introduction to the individual complaint process for the human rights treaties, including a model complaint form.

Inquiry procedure 

The new inquiry procedure is described in articles 13 and 14 of the Optional Protocol.  The Committee is authorised to launch an inquiry against any country about which it has received reliable information, indicating grave or systematic violations by a state party.  Like the inquiry procedures available under some of the other human rights treaties, the question of who can submit information to launch such an inquiry procedure is left open ended. This means a victim, or group of victims, or NGO could submit a request. Or the Committee can take up the matter on its own initiative.  Rule 31 of the Committee's new Rules of Procedure indicate that it is the Secretary General or the Committee itself which will bring the information to the attention of the Committee.  This would mean that a victim or NGO interested in making a submission should probably direct it to the Secretary General's office or to the Committee's attention, or to both.

There is less formality around the requirements to submit such a request.  There is no specific or recommended format. It would be important to describe the facts, and make clear why the information is reliable, and how it demonstrates grave or systematic violations.  There is no requirement for exhaustion of remedies or against bringing requests relating to actions also pending in other courts or bodies.  In a case where there are other pending actions, however, it would be advisable to bring this to the attention of the Committee and to explain why an inquiry procedure would be important to establish, regardless of the outcome of those other proceedings.

The inquiry procedure remains confidential while it is pending, with the primary contact being between the Committee and the state party. However, the Committee is authorised to request additional information from various parties while the investigation is proceeding, including from NGOs, and individuals, including children (Rule 35).  A country visit by one or more Committee members may also be scheduled.


It will take some time for these new procedures to become actively utilised but it is good to see new mechanisms become available for victims of human rights violations, especially in this case for the rights of children.

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