The 3rd Optional Protocol to the CRC: a step forward in improving access to justice for children

PRI is very happy to welcome into force the 3rd Optional Protocol to the Convention on the Rights of the Child (OP3). OP3 establishes a ‘Communications Procedure’, providing children with an international complaints mechanism to address violations of their rights.

In January 2014, Costa Rica became the 10th country to ratify OP3 – bringing it into effect three months later. This means that from 14 April 2014, children whose rights have been violated can submit complaints of the Committee on the Rights of the Child. The Committee will then assess the complaint, establish if a violation has occurred, and issue concrete recommendations to the State Party. These recommendations may include financial compensation, rehabilitation measures or prosecution of the perpetrators.

Despite this excellent news, it is important that to be aware of the procedure’s shortcomings so that we, as child and human rights activists, can work toward addressing these to strengthen the effectiveness of OP3.

Firstly, this mechanism is limited to children who are citizens of a country that has ratified OP3 – currently Albania, Bolivia, Gabon, Germany, Montenegro, Portugal, Spain, Thailand, Slovakia and Costa Rica.

Secondly, in order to access the complaint mechanism, a child or their representative must have exhausted all national mechanisms.

Finally, while the Committee can issue recommendations to the State, these are not legally binding. Therefore, there is a reliance on the State to ensure that the recommendations are implemented and the child victim receives proper redress.

In addition to reacting to complaints from individual children or representatives, OP3 also allows for the Committee to undertake pro-active inquiries into States. Any individual or NGO may submit information to the Committee on systematic violations of child rights in a country that has ratified the Protocol. The Committee may then analyse the information and launch an investigation into the State, including making an exceptional visit (however, only on allowance of the State). Again, the Committee will then only be able to make recommendations to address the violations.

As we can see, OP3 is a hugely important step forward for child rights and access to justice. However, the caveats mean that much more work must be done to ensure that it is a useful instrument in practical terms. I suggest that our focus going forward must be on 3 things:

• Encouraging ratification of OP3 by all States to allow children across the world to seek redress for the violation of their rights
• In the countries that have ratified the Protocol, we must raise awareness of it, most importantly among children and their representatives, especially those in situations of vulnerability such as when deprived of their liberty
• Finally, when complaints against a State has been brought and where the Committee has found a violation to have occurred, we must push on States to implement the concrete recommendations given by the Committee – both as a redress to the violation of an individual child’s rights and as a preventative measure against continued violation of other children’s rights.

As well as these measures to strengthen the implementation of OP3, we must also remember that the procedure cannot be and should not be the first port of call for response and remedy of a violation of a child’s rights. It should be a last resort when no accountability is forthcoming through State apparatus. Therefore, we must work toward setting up national mechanisms to respond to violations of child rights, including child-sensitive reporting procedures and complaints mechanisms that are accessible for children of all ages, literacy levels, and in situations of additional vulnerability – including those who are deprived of their liberty.

So while we can take a moment to celebrate an important step forward in ensuring children have access to justice at the international level, it must be seen as a starting point for State accountability to child rights, and not as an end in itself.