The CRC Framework

Contents

Optional Protocol to the Convention on the Rights of the Child on a communications procedure (OPIC)

Background on OPIC

The OPIC is the third optional protocol to the CRC that establishes a communications procedure for children to bring complaints to the CRC Committee if they consider that their rights under the CRC have been violated by a State Party to OPIC.

Adoption by the UN General Assembly: 2011; Entry into force: 2014.

Status of ratification OPIC.

The OPIC provides different ways to challenge States Parties’ violations of the CRC, OPAC or OPSC (if ratified):

Individual communications procedure

Under the Individual communications procedure (subject to admissibility conditions (Article 7 OPIC)), children or adults on their behalf can bring complaints about alleged violations of their rights under the CRC, OPAC and OPSC if ratified by the State Party (article 5 OPIC).

A communication can be brought by a child or a group of children alone or with assistance. A communication can also be brought on behalf of the child by a representative or person acting with the express consent of the alleged victim(s) (except if the author of the complaint can justify acting without such consent – see article 5 OPIC).

If the consent requirement is dispensed with, alleged victims may be informed of the complaint if possible, and their views will be given due weight in accordance with their age and maturity (Rule 13 (2) Rules of Procedure under OPIC).

A communication may only be admitted by the CRC Committee if all available domestic remedies have been exhausted (article 7 (e) OPIC) and if not one of the other admissibility criteria applies (article 7 OPIC) (see further Doek 2022).

A communication must be submitted within 1 year of exhaustion of domestic remedies, unless it is demonstrated that this was not possible.

The CRC Committee applies child-sensitive procedures, and the hearings are held in closed sessions (see CRC Committee Rules of procedure and working methods).

Inter-state communications procedure

States Parties can declare that they recognise the competence of the CRC Committee to consider Inter-state communications. These are communications in which a State Party claims that another State Party has breached the CRC and/or its Optional Protocols (article 12 OPIC).

Inquiry procedure

Upon reception of reliable information indicating “grave or systemic violations” by a State Party of rights set in the relevant instruments, the CRC Committee can open an Inquiry procedure (article 13 OPIC). The following applies:

Anyone can send such information to the CRC Committee, including NGOs, NHRIs, Ombudspersons, and children.
There is no requirement to exhaust domestic remedies.
An inquiry takes the form of an investigation.
States Parties can opt out of this procedure. This means that not all States that ratify OPIC necessarily accept the competence of the CRC Committee to conduct inquiries (article 13(7) OPIC).

The OPIC and legislative reform

In all of the three procedures under OPIC, the CRC Committee can provide interpretations of the CRC and its Optional Protocols, resulting in the development of jurisprudence on the CRC and its OPs (Skelton 2019). As a result, the decisions rendered by the CRC Committee can influence legislative reform at the domestic level.

Through individual communications under the OPIC

If, following the examination of an individual communication, the CRC Committee finds that a State Party has violated the CRC and/or its Optional Protocols, it may make recommendations on remedies for the victim. It may also recommend that the State Party takes legislative measures to avoid repeating the violations (Rules of procedure under OPIC, Rule 27.4; Liefaard 2023; Egan 2014).

In a communication brought against Spain relating to a Malian child who was deported from Spain to Morocco, the CRC Committee concluded that Spain had violated the CRC and held, among other things, that Spain was under an obligation to prevent similar violations from occurring in the future, “in particular by revising Organic Act No. 4/2015 on safeguarding the security of citizens”, and that it should revise a specific provision of the law (para. 15). (D.D. v Spain 2019).

Even if the CRC Committee decides that a communication is inadmissible, its decision may still be relevant for legislative reform.

A communication concerning climate change brought by children from five different countries (Argentina, Brazil, France, Germany and Turkey) in 2019 claimed that these countries had failed to take necessary preventive measures to protect and fulfil children’s right to life, health and culture. The children also claimed that, as children, they were among the most affected by the life-threatening impacts of the climate crisis. The CRC Committee held that the communication was inadmissible due to failure to exhaust domestic remedies (Sacchi et al. v. Argentina et al. 2021). However, the CRC Committee did determine that the States had extraterritorial jurisdiction in this case, considering that, when transboundary harm occurs, children are under the jurisdiction of the State on whose territory the emissions originated if there is a causal link between the actions (or omissions) of the State and the negative impact on the rights of children outside its territory when the State exercises effective control over the sources of the emissions (para. 10.7). The Committee found that the States had effective control over their emissions, given their ability to regulate activities that are the source of these emissions and to enforce such regulations (para. 10.9). It also found that the collective nature of the causation of climate change does not absolve States Parties of their individual responsibility (para. 10.10).  

Moreover, the CRC Committee’s inadmissibility decisions under OPIC relating to the exhaustion of domestic remedies underscores the significance of children’s access to justice and effective remedies at the domestic level, which may inspire or even prompt legislative reform on this matter.

Through inquiries

After conducting an inquiry, the CRC Committee will issue a report of its findings as well as recommendations to the State Party, including on legislative measures required to remedy the violations.

In 2018, the CRC Committee conducted an inquiry into the situation of children in residential protection centres in Chile. As a result, the Committee issued recommendations to Chile, including a request to urgently adopt a law on the comprehensive protection of children, in line with the CRC (Inquiry concerning Chile under Article 13 OPIC, report of the CRC Committee 2020) (see also Espejo Yaksic 2018).