Internationally Children’s Rights Boosted as UN Body Gains Power to Hear Individual Complaints

Friday 31 January 2014 @ 10.48 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research | Immigration

Recently media releases posted by the United Nations Human Rights Office advised that children whose rights had been violated would soon be able to make a complaint to a key UN Committee. This follows after ratification by the required tenth country of a new legal instrument on the rights of the child known as the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure.

The tenth country to ratify the protocol was Costa Rica on 14 January 2014 meaning the protocol will take effect there three months from that date.

The Committee on the Rights of the Child (CRC)

The CRC is a UN Committee composed of 18 international independent human rights experts who monitor the implementation of the UN Convention on the Rights of the Child and the Optional Protocols. Countries that have ratified the Optional Protocol are: Albania, Bolivia, Gabon, Germany, Montenegro, Portugal, Spain, Thailand, Slovakia and Costa Rica.

What Ratification of the Protocol does for Costa Rica and other Ratifiers?

Ratification of the Protocol means that children or their representatives are able to submit complaints to the CRC. The CRC will then have the power to decide whether to review the case and where it finds a violation will recommend that the State concerned takes action to remedy the situation.

The CRC Chair Kirsten Sandberg is quoted as saying:

“The Optional Protocol gives children who have exhausted all legal avenues in their own countries the possibility of applying to the Committee, . . . It means children are able to fully exercise their rights and are empowered to have access to international human rights bodies in the same way adults are under several other human rights treaties, . . .”

As to how the CRC operates the CRC Chair pointed out that the committee's procedures attempt to be child sensitive, seeking to safeguard children from being manipulated or used to make the complaint. During its investigations the CRC may ask a relevant State to take interim measures to protect a child or a group of children or to prevent any reprisals. When a review is completed, if the State concerned is found to have violated the Convention, the CRC will issue specific recommendations which the State must implement.

How the Protocol Relates to Australia?

As to how the protocol relates to Australia? - as of today, the answer is not at all because Australia has not ratified it. Australia ratified the main convention on the Rights of the Child in 1990 and to date Australia has ratified two of the other Optional Protocols, namely, the protocol relating to child soldiers and the protocol on the sale of children into prostitution and child pornography.

The Conversation reporting on this topic looks at when Australia is likely to ratify this protocol and states as follows:

"The answer is probably 'eventually'. In other words, we should not hold our breath."

The article points out that while Australia has previously been quick to sign up to UN Conventions, as it was under the Hawke government to ratify the Convention on the Rights of the Child, Australia has been less speedy in taking up the complaints procedures and associated requirements under various UN treaties. Of seven UN committees able to receive individual complaints of human rights abuses (soon to be eight) Australia has submitted itself to the jurisdiction of only five.

Possible reasons for hesitating in ratifying the protocol are several as The Conversation also points out, for example, Australia has the fourth-highest number of adverse findings by UN treaty committees, or the Australian government might have concerns about the protocol because the CRC recently conducted a periodic review of Australia’s overall compliance with the convention, a review which was highly critical of the treatment of children, particularly indigenous children, children seeking asylum and children with disabilities.

Given these factors, it does not seem likely the protocol will be ratified in the life of the current government and for those advocates of children's rights, particularly those concerned about children seeking asylum, the protocol does not appear to present new avenues of legal attack until Australia ratifies it.

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