UN HRC Approves Complaint Mechanism for Children


Wednesday, June 22, 2011

from Global Governance Watch

An Optional Protocol to the United Nations Convention on the Rights of the Child (“CRC”) recently approved by the UN Human Rights Council (“HRC”) raises the prospect of children from around the world filing grievances with an international human rights treaty committee alleging that their governments have violated, or not adequately protected, their civil, political, economic, social, or cultural rights.

On November 20, 1989, the United Nations General Assembly adopted the CRC and opened it for signature by Member States. On September 2, 1990, after being ratified by the required 20 countries, the CRC came into force. Of the members of the United Nations, only Somalia and the United States of America have not ratified the CRC. In the case of the United States, lawmakers have been hesitant to ratify the Convention due, in large part, to the impact ratification would have on America’s sovereign ability to determine its own domestic policies on the rights of children and their parents.

In the United States of America, society and the law still view parents as being responsible for their children’s care, including, but not limited to, the promotion of their children’s education, health, and character. Nevertheless, throughout America, laws exist to protect children from parental neglect or abuse. These laws are passed as part of the democratic process. On the other hand, the CRC contains provisions that deal with these same issues, sometimes in a manner which conflicts with national laws. For instance, in America, within certain limits, parents have the right to discipline their children, including corporal punishment (i.e., spanking). However, in 2006, the Committee on the Rights of the Child, which is the treaty body responsible for the monitoring and facilitating the implementation of the CRC by States Parties (the “Committee”), adopted General Comment No. 8, which provides:

The Committee is issuing this general comment to highlight the obligation of all State parties to move quickly to prohibit and eliminate all corporal punishment…. Addressing the widespread acceptance or tolerance of corporal punishment of children and eliminating it, in the family, schools and other settings, is … an obligation of State parties under the Convention. United Nations Committee on the Rights of the Child, General Comment No. 8 (2006): The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia), CRC/C/GC/8, (2006).

Since the CRC came into force, the Committee has monitored the degree to which each State Party to the CRC is complying with the provisions of the CRC. Periodically, the CRC investigates each State Party; provides the State Party with an opportunity to respond to a list of questions about its compliance with the CRC; conducts a hearing at which the State Party can defend its record on CRC implementation and hear and respond to criticism from other States Parties; and issues recommendations for improvement. In each instance, the Committee works closely with non-governmental and civil society organizations claiming to represent the interests of children. Until now, no mechanism existed for the Committee to hear official complaints about a State Party’s failure to protect the rights of a child as set forth in the CRC—a procedure that could significantly impair a State Party’s sovereign right to develop and implement domestic policies relating to children’s rights and the related childrearing rights of parents.

During the 17th Session of the CRC, which concluded on June 17, 2011, the HRC adopted the Optional Protocol to the Convention on the Rights of Child on a communications procedure (the “Optional Protocol”). The Optional Protocol, which will likely be opened for signature at a signing ceremony in 2012, would, for the first time, allow a complaint to be communicated to the Committee by or on behalf of an individual or group of individuals, within the jurisdiction of a State party, claiming to be victims of a violation by that State party of any of the rights set forth in the CRC. Where a communication is submitted on behalf of an individual or group of individuals, it must be with their consent, unless the author can justify acting on their behalf without such consent.

According to the communication procedures for other treaty bodies published by the UN High Commissioner for Human Rights, treaty body committees consider each case where a proper complaint is communicated in closed session. To communicate a proper complaint under a relevant human rights treaty, an individual (or someone acting on that person’s behalf), must show that the individual is “personally and directly affected by the law, policy, practice, act or omission of the State party” which the individual claims has violated or is violating his or her rights. There is no appeal against committee decisions and, as a rule, the decisions are final. When the committee decides that an individual has been the victim of a violation by the State party of an individual’s rights, it generally invites the State party to supply information within three months on the steps it has taken to give effect to its findings.

The HRC’s adoption of the Optional Protocol has been a long-time goal of the international human rights community, as it provides NGOs with a means of instigating individual communications that can be used to challenge national child and family policies, especially in the areas of education and health care (including the controversial area of so-called “reproductive rights”). It is up to each State Party to the CRC to decide whether to adopt and ratify the Optional Protocol. For the U.S., the HRC’s adoption of the Optional Protocol and its mechanism for enabling children and their representatives to communicate alleged violations of their human rights to the Committee provides opponents of America’s ratification of the CRC with another compelling argument against ratification.