Author Profiles

John H. Currie, Faculty of Law, University of Ottawa

Craig Forcese, Faculty of Law, University of Ottawa

Valerie Oosterveld, Faculty of Law, University of Western Ontario

Joanna Harrington, Faculty of Law, University of Alberta

The Book

This blog updates the book with developments in international law.

Public International Law Blog Search
Subscribe to Public International Law Blog
« Canada was never Terra Nullius | Main | State immunity, torture and civil actions: the ECHR decision in Jones »
Wednesday
Apr232014

Third Optional Protocol to the Convention on the Rights of the Child Enters into Force, Adding to the Functions of the Committee on the Rights of the Child

2d Ed, Ch. 9, Section D. 2. f) Special Protections for Minors

2d Ed, Ch. 9, Section E. 1) The Treaty-Monitoring Bodies

By Joanna Harrington

The Committee on the Rights of the Child, being the treaty-monitoring body established by states parties to the Convention on the Rights of the Child (CRC), has this month gained additional tasks, with the coming into force on 14 April 2014 of the Optional Protocol to the Convention on the Rights of the Child on a Communication Procedure (CRC-OP-CP). The states that brought the new protocol into effect are Albania, Bolivia, Chile, Gabon, Germany, Montenegro, Portugal, Slovakia, Spain and Thailand. Canada is not a party.

Adopted in late 2011, and opened for signature in 2012, the Communication Procedure Protocol adds the adjudication of complaints (also known as communications) to the workload of the 18-member Committee on the Rights of the Child, with the protocol allowing individual children, or groups of children, to submit complaints about specific violations of their rights against those states that consent to this procedure, subject to the exhaustion of domestic remedies. Complaints can relate to violations of the Convention on the Rights of the Child as well as its two previous optional protocols on the sale of children, child prostitution and child pornography (CRC-OP-SC) and on the involvement of children in armed conflict (CRC-OP-AC). The Communication Procedure Protocol also affirms the principle of the best interests of the child as a guiding principle for decision-making, with a child-friendly guide to the new Protocol being made available here.

Allowing individuals, and in more recent years, groups of individuals, to bring human rights complaints against states before an international body, albeit not a court, is viewed as one of the means, among others, for strengthening a human rights treaty’s implementation within a state. All the major human rights treaties adopted by states under the auspices of the UN have an associated complaints procedure (albeit that the complaints procedure for the Migrant Workers Convention is not yet in force). Thus, the lack of such a procedure for the children’s right convention was viewed as an anomaly needing correction. There is, however, a degree of overlap between the UN human rights treaties, with the Human Rights Committee and the Committee on the Elimination of Discrimination Against Women having competence to consider complaints concerning equality rights, for example. Canada has consented to the bringing of individual complaints to the Human Rights Committee since 1976, to the Committee Against Torture since 1989, and to the Committee on the Elimination of Discrimination Against Women since 2002. (An official description of Canada’s international human rights policy can be found here.)

Notwithstanding its title, the new Communication Procedure Protocol also adds other tasks to the workload of the Committee on the Rights of the Child, including a new inquiry procedure for the initiation of confidential investigations of grave or systematic violations of children’s rights (as well as an inter-state complaints procedure that is unlikely to be used). Again, while these functions have value in encouraging respect for human rights, there is also a sense of ensuring a certain “equality of functions” among the various human rights treaty-monitoring bodies, with a similar inquiry function found within the mandates for the Committee Against Torture, the Committee on the Elimination of Discrimination Against Women, the Committee on the Rights of Persons with Disabilities, the Committee on Enforced Disappearances, and the Committee on Economic, Social and Cultural Rights.

However, the difficulty for the Committee on the Rights of the Child is ironically the popularity of its constitutive instrument, with the Convention on the Rights of the Child having attracted 194 parties, including accession by the State of Palestine this month, on 2 April 2014. Indeed, only three UN member states are not parties to the treaty (Somalia, South Sudan, and the United States), while three more non-member entities, in addition to Palestine, have become parties (the Cook Islands, Niue, and the Holy See).

Having this many parties to a human rights treaty, each with an obligation to engage periodically with the Committee through a state reporting mechanism with a dialogue component, has a downside for an under-resourced part-time body of unpaid experts that meets for only 12 weeks during the year; a downside that is further amplified by the inclusion of a state reporting procedure in the two substantive protocols to the children’s rights convention. In addition to late submissions by states, the Committee itself is often behind in addressing the reports it has received, with the Committee openly recognizing this difficulty in 2010 by considering reports in two parallel chambers of 9 members each, “as an exceptional and temporary measure”, to clear the backlog of reports (see GA Res. 63/244). Any sense of “temporary” was however fleeting, with the Committee in 2011 requesting approval from the UN General Assembly to work in two chambers once a year so as to consider up to 10 additional state reports, and thus attempt to clear the backlog.

In its most recent biennial report (A/67/41), the Committee advises that as of 3 February 2012, the backlog of reports to be considered by the Committee stands at 92 reports: 47 under the Convention, 23 under the Optional Protocol on the involvement of children in armed conflict, and 22 under the Optional Protocol on the sale of children, child prostitution and child pornography. This backlog raises concerns for the currency of the information being reported, and evaluated, with accurate and timely information being crucial for all human rights monitoring activities. Perhaps the answer will lie in the treaty body strengthening process, by which I refer to the intergovernmental and multi-stakeholder consultation process that has been ongoing since 2012, and which resulted this month in an endorsement by the UN General Assembly of a plan to secure additional meeting time and resources for the treaty bodies by streamlining the UN human rights system and imposing certain restraints (see GA Res. 68/268, adopted 9 April 2014).