A new perspective on international children's rights jurisprudence
What does the Leiden Children's Rights Observatory hold for the study of international children's rights and access to justice?
To enhance access to justice for children, Leiden Law School launched the Leiden Children's Rights Observatory (The Observatory) in August 2018; a unique platform to review and discuss the decisions of the UN Committee on the Rights of the Child (CRC Committee) under the Third Optional Protocol to the UN Convention on the Rights of the Child on a Communication Procedure (CRC OP3). What is the Observatory, and how does it further the understanding of international children’s rights and access to justice?
Unpacking the CRC OP3
The CRC OP3, which entered into force in 2014, established a complaints procedure for alleged violations of rights under the CRC and/or its Optional Protocols. At the time of its adoption, the CRC OP3 was considered a milestone for children's rights, and was the first UN-level mechanism aimed at children's communications.
The CRC OP3 allows individuals, groups of individuals, and States Parties to bring communications before the CRC Committee, and provides the CRC Committee with new competences, including, among others, to receive communications (Art. 5); apply interim measures, if necessary (Art. 6), and publish its views and recommendations on the issues at hand (Art. 10). In that regard, while the views and recommendations of the CRC Committee are not legally binding, they are considered authoritative and, to some degree, compelling. According to the CRC OP3, the State Party involved must give the CRC Committee's views and recommendations 'due consideration' (Art. 11), as well as submit a written response on the actions and measures taken in light of them. Thus, decisions under the CRC OP3 impact domestic laws and policies relating to children and can potentially bring changes to the national legal regime.
To date, 41 State Parties ratified the CRC OP3 (UN Treaty Collection). Yet, it is only recently, almost five years after its adoption, that communications are being filed and the CRC OP3 is gaining traction at the international level. This relatively slow response to the CRC OP3 can be attributed to its admissibility criteria, which require that the facts of the communication occurred after the Protocol's entry into force in the State Party, and that the applicant first exhausted 'all available domestic remedies' (Art. 7). In addition, raising awareness among litigators to the CRC OP3 as a possible legal route in cases involving violations of children's rights takes time (and even now, it is conceivable that many lawyers are still uninformed about it). So far, the CRC Committee has published 12 decisions on its website, most of which concerned inadmissibility and discontinuance decisions. In addition, it has issued 1 interim decision (not published) and 1 report of an investigation under article 13 CRC OP3. There are also dozens of pending cases on various issues relating to children's rights, including the treatment of asylum-seeking children; children in migration; juvenile justice; violence against children; contact with parents, and more.
Still, while the CRC OP3 is intended to enhance access to justice for children, and give effect to their rights as anchored in the CRC and its Optional Protocols, it is not a 'perfect' instrument. For example, scholars have already raised concerns over the CRC OP3 lack of binding power, absence of effective remedies, and the position of children throughout the communication process (see: Smith, Grover, De Beco). Especially now - as the use of the CRC OP3 is increasing, and children's rights jurisprudence is being developed by the CRC Committee on a case-by-case basis - academic attention is particularly timely and important.
Introducing the Leiden Children's Rights Observatory
The Leiden Children's Rights Observatory was founded by the Leiden Child Law Department in order to study the CRC OP3, exploring and commenting on the views and other decisions of the CRC Committee and making those commentaries freely accessible through an open-access online database.
The commentaries are written by renowned experts on international children's rights, and aim to present the case and views of the CRC Committee, as well as offering an original analysis and critical observations on the issues at hand. The commentaries may also connect the cases before the CRC Committee to other children's rights cases before regional human rights courts, relevant decisions of other UN treaty bodies, as well as to children's rights cases at the national level. The case commentaries also interact with other sources of international children's rights law (i.e., the CRC Committee's general comments or Concluding Observations), thus providing an interconnected, multilayered and comparative examination of children's rights jurisprudence.
For example, the first commentary, written by Prof. Julia Sloth-Nielsen, concerned a deportation order of a girl from Denmark to Somalia where she would face the risk of female genital mutilation (FGM). The commentary (I.A.M v. Denmark) found that the CRC Committee's decision could force changes to the domestic refugee regime and included a critical reflection on the issue of remedies. The second commentary, written by Dr. Nicolás Espejo Yaksic, reviews the CRC Committee's inquiry report on children in residential care in Chile, and its impact 'on the ground'. The commentary outlines the report’s findings of grave violations of children's rights in residential care, and discusses the CRC Committee's interpretation of States’ obligations concerning residential care, also in the context of privatization.
The Observatory: A Spotlight on International Children's Rights Jurisprudence?
The CRC OP3 is a positive development for children's rights and access to justice, but it is still in its early stages. Many questions relating to the Protocol remain unanswered. For instance, how will the CRC OP3 work in practice? How will emerging issues be interpreted and decided upon by the CRC Committee? To what extent and how will child applicants be heard in the proceedings, and how can one assess their level of participation? What remedies might be available? How will the CRC Committee follow up on the enforcement of its decisions? And to what extent will decisions under the CRC OP3 filter down to national or regional courts, or into policymaking?
As the use of the CRC OP3 advances, the accompanying academic perspective of the Observatory (as well as other academic writing) is necessary in order to answer these (and other) questions; raise new ones; and offer critical reflections on the emergence and operation of the CRC OP3. We hope that the Observatory's focus on the CRC Committee's decisions will assist in their dissemination and raise awareness about the legal route of the CRC OP3, its successes, impact and pitfalls. In doing so, the Leiden Law School’s Department of Child Law aims to make a contribution to the body of knowledge and discourse on international children's rights and children’s access to justice. We invite you all to join us in this effort, by visiting the Leiden Children’s Rights Observatory, here.