Entry into force of the third Optional Protocol to the Convention on the Rights of the child (OP3-CRC)
On April 14, 2014, the third Optional Protocol to the Convention on the Rights of the Child (OP3-CRC) entered into force, allowing the Committee on the Rights of the Child to receive complaints from individuals or groups of individuals against states that have ratified the instrument. On this occasion, ESCR-Net would like to congratulate involved members for their hard work that has this achievement possible.
We are happy to be able to share following two interviews with ESCR-Net Members who have been central to advancing children’s ESCR and the OP3-CRC, namely Veronica Yates and Leo Ratledge from the Child Rights International Network (CRIN), and Professor Aoife Nolan, from the University of Nottingham School of Law.
Interview with Veronica Yates and Leo Ratledge from Child Rights International Network (CRIN)
CRIN is a global research, policy and advocacy organisation. Our work is grounded in the Convention on the Rights of the Child. Their goal is a world where children's rights are recognised, respected and enforced, and where every rights violation has a remedy. More info here.
What do you think are the main achievements relating to the passage of the OP3-CRC?
Until December 2011, the CRC was the only treaty with a mandatory reporting procedure that did not have a communications procedure. The OP to the International Covenant on Economic, Social and Cultural Rights (adopted in 2008 and entered into force in May 2013) was one of the few treaties that had a long negotiation process. That it has taken this long is indicative of the low status given to children as rights holders and so the fact that we have a complaints procedure at all is a major achievement. Even if this is just a beginning, it is a sign that access to justice for children is starting to be taken seriously.
It is also a strong feature of the complaints procedure that States aren’t able to opt-out of the Committee’s mandate to hear complaints related to the Optional Protocol on Children in Armed Conflict (OPAC) and the Optional Protocol on the Sale of Children (OPSC). The new complaints procedure will be able to address a broader range of children’s rights violations than any other international mechanism.
Having said this, there are some disappointing aspects of OP3 that we need to acknowledge. The biggest disappointment for us was the deletion of the collective complaints procedure. The proposal for such a procedure had been included in an earlier draft of the OP3 and supported by the Committee on the Rights of the Child and a number of States, and it would have allowed the Committee to consider complaints alleging violations of the Convention without the identification of specific child victims or groups of victims. All that would be required is evidence of the law and/or policy which is causing violations. Because of the particular situation of children, their dependence on adults, their vulnerability, their inability to access mechanisms to seek redress themselves in many cases, this would have been especially useful.
How was CRIN involved in the drafting and ratification of the OP3-CRC?
Children’s rights organisations have been discussing the possibility of a complaints procedure for the CRC for some time. Kindernothilfe published a report in 2003 - Children as Strong as Nations - which in many ways marks the start of the campaign. CRIN became involved in late 2007 as part of a small group of NGOs who met to begin lobbying the UN. In January 2008, we launched an online petition calling for the UN to draft and adopt the complaints procedure. Within a couple of months, we had about 800 signatures from NGOs around the world. This list became our campaign base. Once the campaign had achieved its initial goal of getting the UN to begin drafting, we continued to work in the NGO coalition to try as much as possible to influence the drafting itself.
Once adopted, the NGOs that were lobbying for the OP3-CRC set up a new coalition for ratification of the OP3-CRC called "International Coalition for the OPCRC on a Communications Procedure". This coalition, of which CRIN remains a member, is now campaigning for ratification of the new OP3-CRC.
What was learned from this process?
This new complaints mechanism is prompting many of us to examine how other rights groups, such as women’s rights organisations or environmental groups, have made huge gains by making strategic use of all available complaints mechanisms, be they national, regional, or international. It’s shameful that the CRC was the last of the core UN human rights treaties to gain a complaints mechanism, but it means that children’s rights advocates can draw on the experience of other human rights advocates.
Some of the challenges we face are specific to children, but many have been met and addressed by advocates working in other fields. Children are marginalised and may struggle to access justice mechanisms on their own, but this is a common problem in bringing any complaint or litigation. It is likely that many complaints or class action suits brought on behalf of adults were at the initiative or with the support of well organised NGOs or advocates and lawyers who went out to find the victims. We, as children’s rights advocates, can learn from this experience and do the same.
In your opinion, what types of cases should be brought under the OP3-CRC to further strengthen jurisprudence around the rights of children?
It’s important to use the OP3 strategically. The early years of the OP will be vital in establishing the effectiveness of the complaints procedure and building jurisprudence. We need to be looking at the cases where there aren’t already effective mechanisms - where OP3 can add something new.
For many violations of traditional rights, at least in some regions, there are already effective mechanisms. In Europe, the ECtHR is likely to remain the most effective international route to challenge violations of more established rights: it has extensive case law and a good record of implementing its judgments. The advantage of OP3 is that it covers a broader range of children’s rights than any other mechanism. It present a means of complaining about issues that are not covered by other human rights treaties, permits children and their advocates to petition experts on children’s rights and provides another means of putting pressure on governments when other forms of advocacy have been blocked.
For most States, the same issues come up in CRC Concluding Observations - and those of the other UN Treaty Bodies - every review. These are the kinds of issues that need other forms of advocacy and that OP3 is in a good position to address. These are also the issues that the Committee already has experience of. It would be a mistake to bring early complaints on issues that the Committee hasn’t taken a strong position on. The risk is too high of setting a bad precedent and hampering the work of the Committee in the future.
What resources or materials are available (published either by CRIN or others) that should be disseminated in efforts to promote awareness and use of this instrument?
CRIN has been working to identify how human rights bodies, complaints procedures and courts have addressed children’s rights violations. We think this is the kind of information children’s rights advocates will need to pick the best means of challenging a particular rights violation. Through the Children’s Rights Wiki, it is possible to see which recommendations UN Treaty Bodies, Special Procedures and other regional bodies have made as well as complaints made on violations of children’s rights before other courts and complaints mechanisms. We’ve also produced research on how UN Treaty Body complaints have been used by children. The idea is to bring together all of the information that people will need to work out which mechanism is best suited to a particular issue.
In order to use OP3, claimants will first have to navigate the national legal system to “exhaust domestic remedies”. With this in mind we’ve launched a global research project on access to justice for children at the national level, looking at how children can challenge rights violations, access legal assistance and use their rights under international law in national courts.
Focusing directly on using OP3 itself, we’ve also published a toolkit on using the procedure, including an explanation of how the process works, a plain language explanation of the Protocol and a comparative guide to how the procedure fits in with other UN complaints mechanisms.
There are also some really good resources that have been developed by other organisations. The International Coalition for the International Coalition for the OPCRC on a complaints procedure helps coordinate the ratification campaign and has a website with advocacy tools, official documents and information about the campaign. The Special Representative of the Secretary-General on Violence against Children has also published a child friendly guide to the protocol.
Interview with Professor Aoife Nolan
In this interview, Professor Aoife Nolan, from the University of Nottingham School of Law, and an individual member of ESCR-Net, explores new possibilities for the protection of children’s economic, social and cultural rights that have been created by OP3-CRC and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR), which entered into force on May 5th 2013.
How would the OP3-CRC contribute to children's right protection, maybe complementing the existing mechanism under OP-ICESCR?
OP3-CRC is a huge step forwards in terms of the international human rights protection of children’s rights, including their economic, social and cultural rights (ESCR). The Protocol establishes a mechanism that children and their representatives can use to bring complaints about violations of children’s rights under the Convention on the Rights and the Child, as well as the Optional Protocols to that instrument on the Sale of Children and Children in Armed Conflict. It also provides for the possibility of inter-state complaints, as well as an inquiry procedure ‘for grave or systematic violations’ of children’s rights. Like all international human rights complaints mechanisms, OP3-CRC can only serve as the basis of complaints against states that have ratified it.
While children have always been covered by, and could bring complaints under, the human rights complaints procedures in relation to other core international human rights treaties, they now have their own group-specific mechanism. The coming into force of OP-ICESCR made clear that ESCR were of equal status to civil and political rights and were justiciable at the international level. The OP3-CRC does the same for children’s rights.
But what is so special about children’s ESCR? Why do children need their own mechanism?
Children are generally in a very different position from adults with regard to their enjoyment of ESCR. First, child and adult members of the same family or society are not necessarily accorded the same ESCR. For instance, under the CRC children are accorded ESCR that differ from those of ‘everyone’ under ICESCR. Furthermore, there are principles in the CRC (including the best interests principle (Article 3(1)) and the child’s right to have their views heard in all matters affecting them (Article 12)) that will have important implications for how children’s ESCR are interpreted and given effect to. These principles are not found in ICESCR and have not been employed by the Committee on Economic, Social and Cultural Rights in fleshing out the ESCR obligations under that framework.
Second, children are often affected differently – and more severely – by ESCR violations than adults. This is true in terms of both the immediate and more long-term impacts of ESCR violations. In addition, children are more vulnerable to violations of their ESCR than adults due to both a frequently limited capacity to meet their own ESCR-related needs themselves or through negotiating special rights to community resources. With regard to the right to housing, for instance, children may not only be unable to construct adequate housing for themselves, but may also not be able to successfully use the mechanisms that adults employ to access housing that others provide (e.g., market processes).
Children also face distinct challenges in terms of the vindication of their ESCR compared with many other vulnerable groups due to their political exclusion (children can’t vote), frequent denial of their legal standing, and their limited economic power (children are consumers at whom advertising campaigns are increasingly aimed but may lack the knowledge, experience and judgment required in order to use the money they have in a strategic way). Crucially, children generally have a more restricted ability to make rights claims than adults in the same societies, whether through political or legal processes.
How could the OP3-CRC increase the possibilities of outlining a child rights specific ESCR framework?
So far the Committee on the Rights of the Child has only paid relatively limited attention to children’s economic, social and cultural rights and the obligations they impose. The Committee gave its most extensive interpretation of the obligations imposed by child ESCR under the Convention in its General Comment No.5 on General Measures of Implementation of the Convention on the Rights of the Child. This General Comment relies heavily (and explicitly) on the approach adopted to ESCR under ICESCR by the Committee on Economic, Social and Cultural Rights, with the Committee on the Rights of the Child making it clear that obligations imposed by ESCR in terms of Article 4 CRC are very similar to those Article 2(1) ICESCR. This approach is also evident in the recommendations emerging from the Committee’s Day of General Discussion on ‘Resources for the Rights of Children – Responsibility of States’ in 2007. Only one ESC right under the CRC – the right to the highest attainable standard of health – has been the subject of a specific General Comment.
At this stage, the Committee on the Rights of the Child has not considered how the obligations imposed by children’s ESCR may differ from those of adults. Key questions include: are the minimum core obligations imposed by children’s ESCR more extensive than those imposed by ESCR generally? Do ESCR under the Convention on the Rights of the Child give rise to more immediately enforceable duties than those under ICESCR? Do CRC ESCR impose higher burden of proof on States parties with regard to the extent to which retrogressive measures, than those under ICESCR do? The OP3-CRC will give the Committee an opportunity to grapple with those questions in the context of concrete factual situations.
What types of complaints should be brought in order to foster a more child rights specific ESCR framework?
Given the significant questions that exist around the scope of the obligations imposed by ESCR under the CRC, it would be important for complaints involving ESCR to be structured so to encourage the Committee to engage with those obligations head-on. So it is important that complaints should be designed to maximize the likelihood that the Committee will deal with ESCR directly.
In terms of issues that might be raised, a complaint about post-global crisis austerity measures that impact negatively – and perhaps disproportionately - upon children’s ESCR could result in the Committee dealing with the issue of the extent of permissible retrogressive measures. A complaint focused on child homelessness, or child hunger/malnutrition would bring the minimum core into play.
As with complaints under OP-ICESCR, communications that allege violations of the obligations of maximum available resources and progressive realisation will be critical to developing a proper understanding of the steps that states must take (and avoid!) to advance ESCR. One example of where a complaint might be brought with regard to maximum available resources is where it is clear that a state budget allocation devoted to, for instance, the child’s right to education, is not actually being spent on that.
However, encouraging the Committee to develop a more child rights-specific framework will obviously be only one of many concerns on the part of children and their representatives. The principal goal for those bringing complaints will be to ensure a concrete improvement in terms of rights enjoyment. This will involve bearing in mind the best interests of the children whose rights are the subject of the complaint in bringing the complaint and in deciding what issues to prioritise. Crucially, it will also require children’s representatives and advocates to listen to children and ensure their views are accorded due weight in decisions about initiating and prioritising issues within complaints. The OP3-CRC is a mechanism for children - not just a mechanism about them.
Do you envision advocates adopting a synergy of strategies on the use of OPs-CRC and the OP-ICESCR?
Absolutely. The OP3-CRC and OP-ICESCR offer advocates mechanisms that are complementary and may be mutually-supporting. While ICESCR furnishes advocates with a well-established framework upon which to base arguments, the CRC includes both ESCR and civil and political rights, thereby making more ‘holistic’ rights litigation possible. Advocates’ choice of mechanism will very much depend on the facts of the case and the respective advantages that each one is perceived to have in light of the situation at issue.
The coming into force of the OP3-CRC so soon after OP-ICESCR will also enable ESCR and child rights advocates to engage with potential areas of concern that arise in relation to both complaints mechanisms. Like OP-ICESCR, OP3-CRC provides that when examining communications alleging violations of ESCR, ‘the Committee shall consider the reasonableness of the steps taken by the State party in accordance with article 4 of the Convention. In doing so, the Committee shall bear in mind that the State party may adopt a range of possible policy measures for the implementation of the economic, social and cultural rights in the Convention’. The way in which the Committee on Economic, Social and Cultural Rights addresses Article 8(4) OP-ICESCR is likely to have a very significant influence on how the Committee on the Rights of the Child ultimately approaches Article 10(4) in its work.
Another shared feature of the complaints mechanisms under OP-ICESCR and OP3-CRC is that communications can only be submitted by or on behalf of an individual or group of individuals, ‘within the jurisdiction’ of a State party. Like ICESCR, the CRC potentially gives rise to extraterritorial obligations. Indeed, the requirement of ‘international cooperation’ with regard to the achievement of ESCR in particular is emphasised in the CRC’s provisions on the rights to disabled children, the right to the highest attainable standard of health and the right to education. However, as with OP-ICESCR, complaints about violations of extra-territorial obligations will not be possible in terms of OP3-CRC.
Both of these complaints mechanisms are relatively new and work around them will provide an opportunity for mutual education on the part of ESCR advocates and child rights advocates. When it comes to advocacy, child rights advocates have much to learn from the growing body of work around strategic litigation of ESCR based on domestic and regional experience. However, the work of child rights advocates (including, importantly, non-lawyers) around issues such as voice and participation will be vital to the development of responsive and responsible ESCR litigation strategy approaches.
As work develops around the complaints mechanisms, there will be a need for care, however; an effective synergy of strategies will require the development of relationships between historically separate elements of civil society. For instance, both OP3-CRC and OP-ICESCR state that a complaint will be inadmissible where ‘the same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement’. Ensuring that complaints are not ruled out on this basis will call for effective communication between groups of advocates that, at present, do not have great experience of working with each other. Ensuring a joined-up and mutually supportive approach will be particularly important when it comes to the challenge of ensuring follow-up on, and enforcement of, the decisions from both Committee’s on complaints submitted to them.