In this discussion topic, we will explore how regional and international complaints mechanisms can be used to help improve access to justice for children and teens at the national level. Share your thoughts, experiences, questions, challenges and ideas by replying to the comments below.
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I'll start the discussion by suggesting two ways to think about this question:
First, international complain mechanisms can provide an addiitional opportunity for a remedy if a child has not been able to secure a remedy at the national level. The most notable recent example is the new optional protocol to the CRC on a communications procedure. There are also cases in regional human rights courts and other treaty bodies. The challenge is that there is an obligation to exhaust domestic remedies first, so in most cases, a significant amount of time will have passed before a child's case gets to an international tribunal or treaty body. That time delay can be particularly harmful for children.
Second, less directly, international law can provide a framework for reviewing and improving access to justice at the national and local level. Provisions in various human rights treaties can inform countries on how they need to reshape their laws and procedures. For example, the Council of Europe Convention on Action against Trafficking in Human Beings provides for a mandatory 30-day recovery period (article 13) for suspected victims, during which they would not be pressured to provide witness testimony. This procedural requirement would help victims and survivors access services without the immediate pressure of testifying and reliving the trauma they experienced. This is just one example. Many other provisions in international and regional human rights treaties, if realized, would provide greater protections for children and greater access to justice.
Thanks Jonathan for starting the discussion!
A third way - which is in fact a combination of your first two points - would be to use international complaints procedures as a strategic/advocacy tool to change national legislations and policies, including those that affect children's access to justice.
I have already mentioned in a reply to Meagan's post the inquiry procedure that could challenge "grave or systematic" violations of children's rights. While this mechanism has been underused under other similar procedures, it could be a powerful tool depending on the interpretation the Committee will have of "systematic"...
But I would also suggest that individual (or group) cases be submitted to address elements of child-friendly justice, e.g. on the violation of a child's right to be heard in a judicial proceeding affecting him/her. We could even think of addressing time delays of judicial proceedings, if we can link the impact of those time delays on the child to a violation of one of his/her rights (or maybe just to the child's best interest....?)
There is a range of international and regional complaints mechanisms available to challenge violations of children’s rights. For an overview of these mechanisms, see CRIN’s guide on the UN and the international human rights system: https://www.crin.org/en/guides/un-and-international-human-rights-system
The obvious start is the third optional protocol to the CRC (OP3), as mentioned above. Through the OP3, children can bring complaints about violations of their rights under the CRC to the Committee on the Rights of the Child. Andorra is the latest state to ratify the OP3, giving a total of 14 states that have now ratified the OP3. CRIN has created a toolkit on how to use the OP3: https://www.crin.org/en/guides/legal/crc-complaints-mechanism-toolkit
Certain mechanisms permit collective complaints. For example, for those states that have ratified the Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, complaints about violations of rights contained in the European Social Charter can be made to the European Committee of Social Rights by certain international NGOs. Groups of individuals or NGOs may submit petitions to regional bodies such as the European Court of Human Rights and the Inter-American Commission on Human Rights regarding alleged human rights violations. Provisions for collective complaints at the regional and/or international level can assist groups of children seeking collective remedies who would ordinarily lack such recourse at the national level.
Legal aid may be available to children or their advocates bringing cases to regional courts or mechanisms. For example, for complaints brought to the African Court on Human and Peoples’ Rights, the court may, in the interest of justice, provide free legal representation and/or legal assistance to the applicant.
There may be conditions to bringing complaints using regional or international mechanisms. For example:
As pointed out above, most regional mechanisms require all available domestic remedies to first be exhausted. But some don’t. For example, for individuals to bring complaints about violations of human rights in a Member State of ECOWAS to the Community Court of Justice, they do not first need to pursue national judicial remedies before filing the case with the Community Court.
There may be language requirements for filing complaints. For example, an OP3 complaint must be filed in a working language of the UN. For the African Court on Human and Peoples’ Rights, it must be filed in an official language of the court.
In some cases, details of the complainant’s identity must be provided in the complaint (e.g. OP3 complaints, African Court on Human and Peoples’ Rights, European Court of Human Rights). Though in other cases, complainants can request to remain anonymous (e.g. African Committee of Experts on the Rights and Welfare of the Child, African Commission on Human and Peoples’ Rights).
CRIN intends to include information about relevant regional complaints mechanisms in each of our country reports on access to justice for children, which will be made available at: https://www.crin.org/en/home/law/access.
We’re also looking to publish case studies on strategic children’s rights cases. If you have suggestions for case studies, especially ones involving regional mechanisms, please let us know.
Meagan, have a look at IHRDA and OSJI(on behalf of children of Nubian descent in kenya) vs Kenya.
It addresses the right to a name and nationality.
Thanks Naomi!
We're in touch with Sebastian at OSJI about this case, and have it listed as one for a case study. Was Girl Child Network also involved in this case? If so, let me know - we'd be keen to hear about your contribution.
No Girl Child Network was not involved in the case.
Thanks Meagan for the comprehensive overview!
While one of the general rules to access international human rights complaints mechanisms is that domestic remedies should be exhausted first, I think it is worth highlighting that this condition does not need to be fulfilled if such remedies are considered "ineffective" or "unduly prolonged" by the international body receiving the complaint. In such cases, a complaint could be submitted directly at the international level.
From a children's rights perspective, "unduly prolonged" may concern a period that would be 'acceptable' for adults and this exception could therefore cover a high number of cases concerning child complainants. It would be worth testing OP3 on this alone to get recommendations to create proper child sensitive justice systems in that sense!
On another note, the inquiry procedure, triggered by allegations of "grave or systematic" violations of children's rights, without requiring the identification of individual victims or the exhaustion of domestic remedies could also be a powerful tool to address institutional issues restricting children's access to justice!
We have developed a number of publications on OP3 explaining its different mechanisms and what they mean for the International Coalition Ratify OP3 CRC that was set up to campaign for its universal ratification, and especially an "Information Pack" for those who would like to know more about it.
We are also finalising a legal commentary on the provisions of OP3 to help practitioners, which will be launched in April 2015 and available at www.childrightsconnect.org
Anita's point that what counts as unduly prolonged when a child is involved is different than when adults are involved. The time-sensitive nature of children's rights violations does not always get the attention it deserves but is an important piece of the conversation. There is ample evidence that even short denials of rights (e.g., health or education rights) can have lifelong consequences. Anita, thanks for highlighting this.
Meagan -- Two examples come to mind immediately (you might have both on your list already): Villagran-Morales et al. v. Guatemala (The Street Children Case) in the Inter-American Court and A v. UK in the European Court.
Thanks Jonathan!
We've prepared one for A v. UK already, which should be up on our website soon. I'll post a link when it's available. Thanks also for the street children case - this is on our list already but I'll flag it as one to prioritise. If you are in contact with anyone who worked on this case, please let me know.