Committee on the Rights of the Child (CRC)
- Children, rights — Admissibility — International organizations, procedure
Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.
A. Establishment and Appointments Procedure
1 The Committee on the Rights of the Child (‘CRoC’ or ‘Committee’) was established in terms of Article 43 Convention on the Rights of the Child (‘CRC’ or ‘Convention’) (1989) (Children, International Protection). The first Committee was elected in 1991, and held its first session in October of that year (Lundy and Hanson, 2017, 289). The CRC originally provided for a ten-member body, but on 21 December 1995 this was amended to increase the number to 18—which came into operation on 18 November 2002 when a two-thirds majority had accepted it.
2 Article 43 CRC sets out a detailed procedure for appointment of the committee members. The members must be ‘experts of high moral standing’ and have recognized competence in relation to the Convention. States Parties may nominate such persons—in practice a ‘note verbale’ is sent by the Office of the High Commissioner for Human Rights (‘OHCHR’; Human Rights, United Nations High Commissioner for (UNHCHR)) to States Parties four months prior to the election, inviting them to send in nominations within two months. In fact, it is advisable that states wanting to nominate candidates should be well prepared and start the process earlier, as there is a relatively short period between the submission of the nomination and the holding of the election. In practice, late nominations are accepted up until the date of the election, but the later the nomination is made the less likely the nominee is to be successful. Nominees are generally supported through the pre-election process (of encouraging votes from the nominee by States Parties) by their foreign affairs departments and missions of their countries at the United Nations (UN) in New York.
3 The voting is conducted by secret ballot and the States Parties to the particular Convention are all permitted to vote. For the CRC, which is the most widely ratified treaty (with the United States the only state which has not ratified), this amounts to 197 voting States Parties. The persons elected are those who obtain the largest number of votes and at least more than half of the number of votes cast. Voting may go to second and subsequent rounds where the number of votes is lower than 50 per cent.
4 The 18 members are appointed for a four year term of office, and are eligible for reappointment. Elections take place every two years, so there is a rotation of members which provides for continuity. If a member dies or for any other reason can no longer perform the required duties, the state that nominated him or her shall appoint another expert from among its nationals to serve for the remainder of the term. Despite the involvement of the states in the nomination and election processes, the experts are independent and act in accordance with the OHCHR Guidelines on the Independence and Impartiality of the Members of the Human Rights Treaty Bodies (‘Addis Ababa Guidelines’; Human Rights, Treaty Bodies). Members are not paid for their services, but their travel and subsistence expenses are paid for by the UN.
B. The Role of the Committee on the Rights of the Child
1. Monitoring Progress of States Parties
5 The most significant role of the CRoC is to monitor progress towards full compliance by states with the provisions of the CRC. States that have ratified the CRC must report within two years of entry into force of the Convention for that state, and every five years thereafter. The central role of the CRoC is the consideration of these reports. In addition, there are three optional protocols to the CRC. The first of these is the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (United Nations General Assembly [‘UNGA’] Resolution 54/263  [‘Optional Protocol on Children in Armed Conflict’]). The second is the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (UNGA Resolution 54/263 ). The CRoC also receives reports on these two protocols. The third optional protocol provides for a communications procedure, and will be discussed below.
6 The CRoC sits in Geneva, usually at Palais Wilson, three times a year for a period of four weeks each time. The sessions take place in January–February, May–June, and September–October. The first three weeks are the formal session, and the main work of the Committee during this time is receiving oral presentations of the State Party reports in open sessions, and in writing concluding observations and recommendations during closed ones. The concluding observations are issued at the end of the session in which the State Party reported, which gives a sense of immediacy. The United Nations Children’s Fund ‘(UNICEF) in its fact sheet on CRoC makes the important statement that States Parties should not view reporting as a bureaucratic endeavour, but rather as an opportunity for planning and policy development. The concluding observations and recommendations are made public and thus provide a platform for advocacy and accountability.
7 The fourth week is referred to as the ‘pre-sessional working group’ which is not common to all treaty bodies. During this week, the CRoC hears oral reports from civil society organizations and National Human Rights Institutions (‘NHRIs’), as well as from individuals or groups of children, within closed sessions. The advent of electronic communication technology has permitted a wider range of State Parties, civil society organizations, and children to present without actually travelling to Geneva. Open sessions are live streamed.
2. The Process of Reporting
8 The CRoC has issued two sets of guidelines on the form and content of the report to be submitted by States Parties under Article 44 (1) (a) CRC General Guidelines regarding the Form and Content of Initial Reports to be Submitted by States Parties under Article 44, paragraph 1 (a), of the Convention (1991) and the Guidelines regarding the Form and Contents of Periodic Reports to be Submitted by States Parties under Article 44, paragraph 1 (b), of the Convention (1996). The CRoC has adopted a ‘cluster’ approach to reporting, in which it has grouped issues and articles together under several headings, and States Parties must report under each of these clusters. For each State Party report, rapporteurs are appointed from the Committee members, who take the lead on the reporting process for that country; for larger and more complex countries, the practice is that a ‘task team’ of four or five rapporteurs is appointed. The presentation of the State Party report is followed by a ‘constructive dialogue’ in which the rapporteurs or task team members take the lead, but in which all Committee members participate. All Committee members decide on the concluding observations in a plenary, closed session.
9 After the initial report, reporting is a cyclical process and States Parties can expect at each successive session to be asked about their progress against the concluding observations and recommendations handed down to them by the Committee on the occasion of the previous report.
10 The cycle begins when the secretariat receives the State Party report on the CRC. Although State Party reports are often overdue, when they are filed they will take their place in the queue unless the Committee in consultation with the secretariat decides to consider them sooner, which may occur if they also report on the optional protocols around the same time and the Committee decides that it is practical to schedule the consideration of all the reports at the same time. The Committee encourages the optional protocol reports being submitted at the same time as the CRC report, preferably as one integrated report.
11 The format of the reports is that a common core document (used for all UN reporting) is submitted together with the treaty-specific report. The contents of the report are guided by the CRoC’s cluster approach. This approach has been criticized by Lundy and Hanson for the fact that it over-emphasizes certain overarching principles (life, survival and development, best interests of the child, nondiscrimination, and respect for the views of the child) which are not given any special hierarchical status in the CRC (2017, at 292). The authors argue that these general principles were developed in a largely untheorized manner by the first Committee in 1991 and have continued to be over-emphasized in an uncritical manner by subsequent differently-constituted Committees.
12 The State Party report is a public document. Civil society organizations (such as non-governmental organizations [‘NGOs’] and NHRIs) are at liberty, having read the State Party report, to submit complementary reports, which are sometimes referred to as alternative reports. UN Agencies and international NGOs (‘INGOs’) also submit reports in this round. This assists the CRoC in obtaining a more holistic account of the children’s rights situation in the country concerned. These reports can be joint reports written by coalitions or can be by individual NGOs; the latter tend to be thematic in nature and the former more overarching. Children’s groupings may also submit reports. An alternative report is not made public unless the relevant NGO, INGO, NHRI, or Agency has indicated that it is comfortable doing so with its report. The maximum word length is 20,000 words. An organization called Child Rights Connect, based in Geneva, works closely with the CRoC and assists with facilitating civil society participation in the reporting process. A comprehensive guide to the reporting procedure and the process for complementary reports is available on its website.
13 The complementary reports are considered by the CRoC at a ‘Pre-sessional Working Group Meeting’, which is a closed meeting held for one week immediately after each of the three sessions. At the end of that week a list of issues is completed, based on the State Report, the Alternative Reports, and the dialogue with civil society. Within a week or two of the completion of the list of issues, it is sent to the State Party. The list of issues requests additional information that is to be presented to the CRoC as a ‘reply to the list of issues’. States usually have approximately six weeks to provide this, and it should reach the CRoC at least one month before the date for consideration of the report at a plenary session of the Committee.
3. Simplified Reporting Procedure in Development
15 Pursuant to the UNGA Resolution 68/268 ‘Strengthening and enhancing the effective functioning of the human rights treaty body system’ (21 April 2014), all the UN treaty bodies have been requested to devise a simplified reporting procedure. The CRoC is developing such a process and intends to pilot the simplified procedure with States Parties due to report in September 2019; the first two countries which have agreed to use the pilot process are Croatia and Hungary.
4. Issuing Suggestions and General Recommendations to State Parties
16 According to Article 45 (d) CRC, the CRoC may make suggestions and recommendations to State Parties. In practice these are referred to as ‘concluding observations’. They are agreed upon by the CRoC in the days following the oral presentation of reports by State Parties, and they are issued at the end of that session.
5. Fostering Effective Implementation of the Convention
17 Article 45 CRC allows for UNICEF and other competent bodies to be present at the open hearings, and they are invited to submit reports as well. The CRoC may make referrals to such agencies with a request to provide technical assistance to states where appropriate. Article 45 also empowers the Committee to request the undertaking of studies.
C. Procedural Rules Adopted by the Committee on the Rights of the Child
1. Overview of the Rules
18 Article 43 (8) CRC provides that the CRoC will establish its own rules of procedure. Pursuant to this the Committee established written rules at its 22nd meeting (first session) and revised it on several occasions. The current rules were issued on 18 March 2015. These rules set out detailed procedures for sessions, agenda setting, membership of the Committee, the establishment of a bureau, the establishment of a secretariat, language, public and private meetings, record keeping, distribution of official documents, conduct of business, voting within the CRoC, subsidiary bodies (sub-committees), and the making of regular reports to the General Assembly (United Nations, General Assembly). The rules also provide for the functions of the CRoC, in particular the receiving of reports from State Parties. The rules are very detailed and it is advisable to consult them if working with or evaluating the work of the CRoC.
2. The Bureau
19 The rules relating to the ‘machinery’ that drives the CRoC are set out in the rules of procedure. The work of the CRoC is led by a bureau comprising the chairperson, four vice-chairpersons, and a rapporteur. These are elected by the CRoC, and the rules indicate that in order to ensure an equitable geographical distribution the chairperson and the four vice-chairpersons should as far as possible represent different geographic regions and the languages of the committee. The bureau is reelected every two years, at the start of the session in May–June. In 2017 the CRoC decided that the chairperson should only have one consecutive term of office, and that the chairperson position should rotate in a manner that promotes geographical representation. The bureau meets once a week during the session. The CRoC has sub-committees in which members work on different themes, which change from time to time. These sub-committees elect their own officers and may adopt their own rules of procedure, but if they are unable to agree the general rules of procedure apply.
20 The Committee has six official languages: Arabic, Chinese, English, French, Russian, and Spanish. There are three working languages, namely English, French, and Spanish. Statements in any of the official languages are translated into the other official languages, and persons making statements in other languages can make arrangements for their own interpreters to interpret into the working languages.
21 The Committee is supported by a small permanent secretariat which is housed within the OHCHR in Geneva. A representative of the secretariat is present at all Committee sessions and may make written and oral submissions. The secretariat makes all the practical arrangements for the sessions and keeps the Committee informed of any questions, communications, and information that may be brought before it. Important services provided by the secretariat are background research by officers on the State Party reports and support in the drafting of documents such as concluding observations and general comments. General editing and translation support is provided through the OHCHR secretariat.
5. Drafting and Issuing of General Comments
22 The rules of procedure provide for the drafting of General Comments, though this task is not included in the CRC. The CRoC issues General Comments from time to time, which set out its interpretation of provisions of the CRC. The CRoC has issued 23 General Comments as of October 2017. The Committee has also written joint General Comments with other treaty bodies: one with the Committee for the Elimination of Discrimination Against Women, in 2014, and two (which are expressly intended to be read together) with the Committee on Migrant Workers, in 2017. At the 27th meeting of Treaty Body Chairs, held in Costa Rica in 2015, the Chairpersons acknowledged the importance of consultation for the ‘transparency, legitimacy and publicity of general comments’. It was observed that posting draft General Comments on the OHCHR website and inviting comment from States Parties, NGOs, NHRIs, UN agencies, and other interested bodies and persons was to be the general practice going forward. Submissions will be taken into account but the final responsibility for drafting rests with the Committees (UNGA Resolution 70/302, ‘Draft Outcome Document of the High-level Plenary Meeting of the General Assembly on Addressing Large Movements of Refugees and Migrants’  paras 21–25).
6. Days of General Discussion
23 The rules of procedure (and the CRC itself) are silent on one aspect of the CRoC’s work: the hosting of Days of General Discussion (‘DGDs’). These DGDs, as they are known, do not have their genesis in the CRC, nor in the CRoC rules of procedure. The first one, on ‘children in armed conflict’, was held in 1992, two years after the CRC came into force. At the CRoC’s 61st session, a decision was taken to hold a DGD every two years, though prior to that a DGD was held annually. Proposals made by civil society on the themes for DGDs are considered by the CRoC, whereupon a specific theme is selected. The most recent theme, in 2016, was ‘children’s rights and the environment’. The DGDs are held in Geneva and are open to participation by government representatives, UN mechanisms, bodies, and agencies, NGOs, national human rights institutions, and individual experts and children. Written submissions of up to seven pages in length can be made, and there are presentations by selected experts. The purpose of the DGDs is to develop a deeper understanding of the Convention and to explore topical themes within the context of the CRC. In some cases it has explored themes not directly addressed in the CRC, such as the DGD on ‘children of incarcerated parents’. It provides a platform for advocacy and reflection, and several of the DGD themes have developed into General Comments (eg HIV/AIDS and the rights of the child; the rights of children with disabilities; the right to be heard). Two have prompted global studies (children in armed conflict; violence against children) and some have also initiated new instruments (eg Optional Protocol on Children in Armed Conflict; International Standards for the Protection and Alternative Care of Children without Parental Care). On the day following the DGD, the CRoC adopts a series of recommendations for State Parties.
D. The Third Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure
24 Some treaty bodies, like the African Committee of Experts on the Rights and Welfare of the Child (ACERWC), have ‘built in’ communications procedures, but the CRC does not. The drafting of the CRC took place over a decade, and compromises were made on contentious issues in the interests of finalization. According to Lee, the inclusion of a communications procedure did not receive sufficient support to be included in the original text of the Convention (2010, at 569). In 2007, NGOs began a rigorous campaign for the creation of an optional protocol to the CRC that would allow for communications to be made to the CRoC. In the same year the chairperson of the CRoC opened discussions surrounding a communications procedure (Lee, 2010, 570). The CRoC formally endorsed the process in 2008. An NGO working group was formed in that year and, in combination with the OHCHR and the CRoC, encouraged ‘friendly states’ to establish what they termed an ‘open-ended working group’ (‘OEWG’), which was done in 2009. Two sessions of the OEWG were held, culminating in the approval of the final Optional Protocol to the Convention on the Rights of the Child on a communications procedure (‘OPIC’) by the UNGA. It was adopted and opened for signature, ratification, and accession by UNGA Resolution 66/138 in December 2011 and came into force on 14 April 2014, three months after the tenth state ratified it. As of 31 August 2017 there were 51 signatories to OPIC and 34 States Parties had ratified it.
25 OPIC makes use of the format and style similar to communications procedures of other international treaties. There are three ways in which child rights violations can be brought to the relevant Committees: individual complaints, inquiries, and interstate communications. Complaints may be brought before the Committee by any individual or group of individuals whose rights under the CRC or the first two optional protocols have been violated by the state, provided that the state has signed and ratified OPIC. The individual or individuals may make the application and the protocol includes an important protection that the application may be made regardless of whether the applicant’s legal capacity is recognized in their own state. The child may receive assistance in bringing the application, or the application may be brought on his or her behalf by a designated representative or a person acting with the express consent of the victim or victims. The consent requirement can be dispensed with if the author of the complaint can justify his or her action. If possible the alleged victim may be informed of the complaint and his or her views will be given due weight in accordance with his or her age and maturity.
26 A complaint must be submitted within one year of the exhaustion of domestic remedies, unless it can be demonstrated that this was not possible. The CRoC may invite the complainant or victim, as well as the State Party, to provide further clarification, which can be done in person or via teleconference. The CRoC guarantees child-sensitive procedures, and the hearing is held in a closed session. Rhona Smith has posed the question as to whether OPIC should have provided for the appointment of a curator ad litem, guardian, or ‘litigation friend’ to assist the child with the communication process (2013, at 315). A consideration of further child-friendly measures will be considered later in this section.
27 An inquiry can be instituted when the relevant Committee receives reliable information indicating grave or systematic violations by a States Party of rights. An inquiry can be instituted by any person and this opens the way for NGOs, NHRIs, and ombudspersons to lodge reports, make complaints, and make other kinds of communications of rights violations. An inquiry is similar to an investigation, whereas an individual complaint takes the form of a quasi-judicial proceeding and is undertaken by the Committee itself after receipt of the information (Buck and Wabwile, 2013, 211). An inquiry may be instituted by anyone, regardless of their designation or location, which some authors have pointed out helps to ameliorate the lack of a collective complaints procedure (Buck and Wabwile, 2013, 224). There is also no need to first exhaust domestic remedies, as is the case with an individual complaint (Buck and Wabwile, 2013, 218).
28 An inter-state communication occurs when one State Party institutes a complaint against another State Party concerning the application or interpretation of the relevant treaty. A process of negotiation, or failing that, arbitration, then commences. In addition, it is also possible for the relevant Committee to arrange a friendly settlement between states before the matter is considered, or to insist on interim measures being taken should there be severe actual or imminent harm to those concerned between submission of the communication and a decision being made.
29 A feature that OPIC lacks is that of a collective complaints mechanism. This would allow a complaint to be made by NHRIs, NGOs, and ombuds institutions without the need to identify any individual victims (Buck and Wabwile, 2013, 217).
30 Most international human rights treaties do not permit collective complaints, but rather limit the standing of the complainant to a person who is a direct victim of the rights violation (Human Rights, Individual Communications/Complaints). Collective complaints examples can be identified at the regional level, for instance the European Social Charter, regarding which the European Committee on Social Rights has developed a substantial jurisprudence). Another example is the complaints procedure established by the African Charter on the Rights and Welfare of the Child (Sloth-Nielsen, 2015, 250).
31 According to Buck and Wabwile, the question of whether to include a collective complaints procedure was a contentious issue during the OEWG process (2013, at 217). Eventually the proposed clause was excluded on the premise that it overlapped with the inquiry procedure and with country reporting. There was also a view that the individual communication procedure already envisaged submission by groups of individuals and by parties acting on behalf of individuals.
32 Those advocating for a collective complaints procedure were of the view that it would have provided increased protection, and it could have reduced caseloads as it would preclude the examination of identical individual communications. Pertinently, it would eliminate the difficulties in identifying individuals; it would be very relevant to vulnerable groups and would reduce the risk of reprisals; there would be no overlap with the inquiry process, and it would help to exert an impact on the CRoC’s interpretation of the CRC (Buck and Wabwile, 2013, 218). Despite these arguments, a collective communications channel was not established.
33 Various findings can be made by the CRoC. It can find communications to be inadmissible. If it accepts the communication, it may or may not find that an article or articles of the CRC have been violated; and it can provide remedies. OPIC itself does not spell out the kind of remedies that the CRoC can apply. Obviously the remedies that are available in most complaints mechanisms will apply—namely determinations in the form of ‘findings’ on the merits of individual complaints (Buck and Wabwile, 2013, 221).
34 As of October 2017 the CRoC had considered four cases and had found three of those to be inadmissible—two due to the fact that they were manifestly ill founded, and one as a result of ratione temporis. The other was discontinued. It is therefore too early to judge how successful the process of OPIC is going to be.
35 The CRoC has been in operation since 1990 and has well-established procedures. It is supported by a small but effective secretariat and is currently reasonably up-to-date with the reporting processes. Given the fact that it is the most ratified treaty in the world, with 197 States Parties, this is no small feat. The Committee has also taken an innovative approach to the involvement of civil society and, particularly, children in its deliberative processes. The Committee’s record with General Comments and DGDs has also been strong. The Committee is entering a challenging phase with OPIC, as this will add to its workload considerably.
Y Lee, ‘Communications Procedure under the Convention on the Rights of the Child: 3rd Optional Protocol’ (2010) 18 International Journal on Children’s Rights 567–83.
T Buck and M Wabwile, ‘The Potential and Promise of Communications Procedures under the Third Protocol to the Convention on the Rights of the Child’ (2013) 2 International Human Rights Law Review 205–39.
R Smith, ‘The Third Optional Protocol to the UN Convention on the Rights of the Child? Challenges Arising Transforming the Rhetoric into Reality’ (2013) 21 International Journal of Children’s Rights 305–22.
J Sloth-Nielsen, ‘Children’s Rights Litigation in the African Region: Lessons from the Communications Procedure under the ACRWC’ in T Liefaard and J Doek (eds), Litigating Children’s Rights: The UN Convention on the Rights of the Child in Domestic and International Jurisprudence (Springer Dordrecht 2015) 249–65.
L Lundy and K Hanson, ‘Does Exactly What it Says on the Tin? A Critical Analysis and Alternative Conceptualisation of the So-called “General Principles” of the Convention on the Rights of the Child’ (2017) 25 International Journal on Children’s Rights 285–306.
Child Rights Connect, <www.childrightsconnect.org> (accessed 24 May 2018).
Child Rights International Network, <http://home.crin.org/> (accessed 24 May 2018).
Committee on the Rights of the Child, ‘General Guidelines regarding the Form and Content of Initial Reports to be Submitted by States Parties under Article 44, paragraph 1 (a), of the Convention’ (15 October 1991) UN Doc CRC/C/5.
Committee on the Rights of the Child, ‘General Guidelines regarding the Form and Contents of Periodic Reports to be Submitted by States Parties under Article 44, paragraph 1 (b), of the Convention’ (11 October 1996) UN Doc CRC/C/58.
UNGA Res 54/263, ‘Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography’ (adopted 25 May 2000, entered into force 12 February 2002) UN Doc A/RES/54/263, Annex I.
UNGA Res 54/263, ‘Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography’ (adopted 25 May 2000, entered into force 12 February 2002) UN Doc A/RES/54/263, Annex II.