ࡱ> ac`9 icbjbj%tN_lt t t 8 ,#t "      d#f#f#f#f#f#f#5% U'f#     f#  {# j  d# d#zfrd"Td# l3e t | "d##0#"(R(d#International Conference on the Rights of the Child University of Ottawa, March 15-17, 2007-03-09 The Monitoring System of the UN Convention Jaap E. Doek Chairperson CRC Committee Introduction The development of human rights over the past fifty years, in particular via the adoption and ratification of the two core human rights covenants (ICCPR and ICESCR) and more specific human rights treaties (CERD, CAT, CEDAW, CRC and most recently (at the 61st session of the GA) the adoption of a treaty on forced disappearances and on the rights of persons with disabilities) include the establishment of a monitoring system. The main characteristics of this system are: - a committee of elected experts under each of the Human Rights Treaties, charged with examining the progress made by States Parties in achieving the realization of the obligations undertaken under the treaty/convention concerned (see e.g. art. 43 CRC) (1); - the obligation of States Parties to submit to the responsible committee reports on the measures they have adopted to give effect to the rights recognized in the treaty/convention and on the progress made in the enjoyment of those rights (see e.g. art. 44 CRC); - a dialogue between the reporting State Party and the relevant treaty committee resulting in a report of Concluding Observations with recommendations for further improvements in the realization of the rights in the treaty concerned (2); - the lack of decision-making powers of a judicial or quasi-judicial nature: recommendations of treaty committees are non-binding. But the monitoring of the implementation of human rights is not limited to or exclusively the task of the treaty committees. In the international monitoring of Human Rights other important instruments play a role such as the recently established Human Rights Council, the special (thematic or country specific) rapporteurs, the Security Council (e.g. in the area of children involved in armed conflicts) and the General Assembly. In short, there is a monitoring system but unfortunately one in which the lack of effective coordination and cooperation is a serious shortcoming. Finally, and with due respect of the international monitoring system, I like to underscore the importance of the monitoring of human rights at the national level via an independent body. With a focus on the rights of children I will present and discuss both the national and international monitoring activities. But before doing so some generals remarks on the concept of monitoring. I assume that everybody has some idea what monitoring is, although I was struck by the lack of elaborated discussions on the nature of this activity. I am not going to try to define monitoring, but I like to remind you of the origin of this term. Monitor is a Latin word and means: a person who encourages, advises, admonishes and warns somebody while reminding her/him of something. I think this origin should characterize the work of treaty committees. 2. National monitoring of the CRC States Parties regularly report that a ministry e.g. for children and the family is in charge of monitoring the implementation of the CRC. It is indeed important that governments do monitor, via evaluation and research, the impact of the legislative, administrative and other measures taken to implement the CRC. In too many States Parties such monitoring is very limited or absent. But the Committee regularly explains that this self-monitoring is important but should be distinguished from independent monitoring of the implementation of childrens rights, not only by State actors but also by NGOs and other members of civil society. The CRC does not explicitly require the establishment of an independent monitoring body. But the World conference on Human Rights, held in 1993, reaffirmed in the Vienna Declaration and Programme of Action the important and constructive role played by national institutions for the promotion and protection of human rights and encouraged the establishment and strengthening of such institutions. In line with these statements the CRC Committee requires (Reporting guidelines 1996) that States Parties provide information on any independent body established to promote and protect the rights of the child. As an indication for the importance of this national monitoring the CRC Committees second General Comment (CRC/GC/2002/2) was devoted to: The role of independent national human rights institutions in the promotion and protection of the rights of the child. I cannot fully present and discuss this important General Comment but let me mention some of the important elements. The establishment of an independent body for monitoring the implementation of childrens rights, either as a part of a National Human Rights Institution, e.g. a special department headed by a child commissioner, or as a separate childrens ombudsperson or commissioner is crucial for the following reasons: - childrens developmental stage makes them particularly vulnerable to violations of their rights; - the childs opinions are still rarely taken into account; - children have no vote and cannot play a meaningful role in the political process that determines governments responses to human rights of children; - children encounter significant problems in using the judicial system to protect their rights or to seek remedies for violations of their rights; - childrens access to organizations that may protect their rights is generally limited. The childrens ombudsperson or commissioner should be established and mandated by law. It must be provided with the necessary financial and well-trained human resources. The ombudsperson/commissioner should be accessible for all children and should proactively reach out to, in particular, the most vulnerable children such as children in care or detention, children of minority groups and indigenous peoples, children with disabilities, refugee children and children living in poverty. He/she should ensure that he/she has direct contact with children and that children are involved and consulted e.g. by establishing childrens advisory councils (e.g. childrens commissioner of New Zealand, Northern Ireland and New South Wales in Australia ). The General Comment contains a list of possible activities of the childrens commissioner/ombudsperson but of crucial importance is that he/she has the power to consider individual complaints and petitions and to carry out investigations including the right to question witnesses and to access all relevant documents and to visit places of detention. The childrens ombudsperson also should have the power to support children taking cases to court. He/she should independently contribute to the reporting process under the CRC and it is not appropriate to delegate the drafting of the State Party report to the childrens ombudsperson (or NHRI) or to include her/him in the delegation of the government when the State Partys report is examined before the CRC Committee. Much more can be said (see GC No 2) but experiences so far with childrens ombudsperson/commissioner have shown that they can and do make a difference and contribute in a significant manner to the implementation of childrens rights at the national level. The establishment of such independent monitoring bodies must be a matter of high priority and we should actively advocate for it so that all States Parties to the CRC have such institutions. The European Network of Ombudspersons for Children (ENOCH), with a membership of 32 institutions in 23 countries, can play an important role in that regard and deserves to receive the necessary support from e.g. the European Union, in particular for the work of its secretariat in Strasbourg (accommodation offered by the Council of Europe). It is necessary to develop similar regional networks elsewhere in the world (Africa, Asia/Pacific and Latin-America) to strengthen existing independent institutions for monitoring childrens rights and to promote the establishment of such institutions in all States Parties. 3. International monitoring: the CRC Committee I assume that most of you are more or less familiar with the monitoring activity of the CRC Committee and it has the characteristics I mentioned in my introduction. So I will limit myself to some specific comments, while emphasizing the very crucial role (inter)national NGOs and UNICEF (and other UN agencies) play in the monitoring process. The effectiveness and credibility of the monitoring process depends on various factors: - timely reporting is in the first place the responsibility of States Parties. So far almost all States Parties ( 97%) have submitted their first report, some with considerable delays of almost 10 years (e.g. Brazil and most recently Malaysia). It is a remarkable record: under no other treaty so many States have submitted their reports (on an average a score of 85% or less). This is undoubtedly thanks to the active promotion of and support from UNICEF and national NGOs. In the coming years the focus has to be on timely submission of 2nd and 3rd reports. The CRC Committee should continue its policy of direct approach of States Parties who are overdue with their next report more than 5 years after they met with the Committee. In order to facilitate this reporting and in order to make it possible for States Parties to report in accordance with the rules of the CRC the Committee allows them to combine two or sometimes even three reports. This a temporary measure. - timely examination. This became a serious problem for the CRC Committee. Reports were waiting two years or even more for examination by the Committee. Measures taken in this regard were: increasing the number of sessions per year from two to three followed by the decision (1999) to increase the number of reports considered per session from 5 6 to 9. But the backlog was still unacceptable affecting also the effectiveness and credibility of the monitoring process. Therefore the Committee took the rather unorthodox and unprecedented decision to work in two chambers meeting in parallel. The decision was supported by the General Assembly that approved the additional budget needed for this unusual working method. In 2006 the Committee operated with two chambers and achieved a significant reduction of the backlog. The current situation is that reports submitted will be examined within about one year or less which is, given the need of translating the report and organizing a pre-session meeting with NGOs and UN agencies, the optimum we can achieve. It is possible that a new backlog develops given the fact that the Committee also has to deal with a growing number of initial reports under the Optional Protocols. The Committee may then again apply the two-chamber-method; - role of NGOs, UNICEF and others. From the start of its monitoring activities in 1992 the CRC Committee has encouraged NGOs, UNICEF and other UN agencies to actively contribute to the reporting process and to provide information complementary to the State Partys report. It is also important that NGOs and other members of civil society are involved (input, consultation) in the preparation of the State Partys report and recommendations in that regard are regularly made by the Committee. There is a risk: in some countries NGOs were so much involved in the preparation of the official report that they did not feel free (comfortable) to submit their own separate report. Just as a reminder (see par. 2): National Human Rights Institutes/childrens ombudspersons should submit their separate report. This additional information plays an important role in the monitoring process because it provides for a better understanding of the practical problems in implementing childrens rights in the country. States Parties reports are often rather/very descriptive (presentation of laws, programmes) without much information on difficulties encountered in the implementation. for measures the SP can/should take to address the problems. These suggestions are often (partly) reflected in the Committees Concluding Observations. - dialogue and concluding observations The CRC does not oblige a State Party to send a delegation to Geneva for a dialogue with the Committee about the report (the same applies for other human rights treaties). But it has become standard practice that the SP does send a delegation. The Committee has no say in the composition of the delegation but has expressed the wish that the delegation is headed by a person with political It is also very important that NGOs, UNICEF and others present their suggestions responsibility (a minister or deputy) and that the members do have in-depth knowledge/experiences in the fields covered by the CRC. In general the States Parties do send a delegation sometimes with up to 20 or more members capable of engaging in a fruitful and informative dialogue. It sometimes happens that the State Party for whatever reason cannot send a delegation and requests for the postponement of the dialogue. The Committee regrets this, particularly when the request is made rather late because it is then not possible to schedule another SP for consideration of its report. But the postponement is usually granted because an examination without a dialogue is worse. But if the SP again does not send a delegation it only happened once over the 8 years I have been a member of the Committee at the last session with Marshall Islands the Committee will examine the report without the benefit of a dialogue. The Concluding Observations are drafted by the country rapporteur the member of the Committee who leads the examination with significant support of the secretariat, discussed in the full Committee and approved (formally at the end of the session). The Concluding Observations is a rather long document (too long for some people). But that is in this stage of the monitoring process (most SPs second reports are considered) necessary. The CRC is a long and rich document covering many rights and in most States Parties a lot still has to be done to improve the implementation of these rights. But in the coming years the Committee should try to produce more focused (and shorter) Concluding Observations. This is possible because the emphasis also in the reporting should be on the implementation of previous recommendations. The Committee does not set priorities because this is considered to be the privilege and responsibility of the State Party. But at the State Partys request the Committee certainly is willing to indicate the (possible) priorities. The current texts of Concluding Observations do already contain guidance in that regard when the Committee uses terms like The State Party is (strongly) urged to () or even the State Party should as a matter of priority, take measures to (..). - follow-up Concluding Observations are not meant for the shelves in the ministry of foreign affairs in the State Party concerned. The recommendations of the Committee may not be binding, but it expects States Parties to take them seriously and to undertake concrete measures for their implementation. This is a matter of respect for the rights of children in their countries and if you want of respect for the work of a committee they themselves have elected. The Committee cannot impose sanctions in case a State Party ignores the recommendations and personally I think the power to enforce childrens rights should be left to the national institutions such as parliaments, courts and independent monitoring bodies. The role of the Committee is to assist as much as possible the States Parties in their efforts to implement the recommendations. Members of the Committee, who do have time, visit States Parties and meet with governmental representatives, NGOs and UNICEF to promote the necessary follow-up to the recommendations. That is possible thanks to the support of, inter alia, UNICEF and NGOs; the Committee does not have a budget for these activities. In addition and with the support of the OHCHR the Committee organizes regional seminars for the follow-up to Concluding Observations; so far in Syria, Thailand, Qatar, Argentina and Costa Rica while preparations are underway for seminars in South Korea and Burkina Faso. The number of States Parties varies, depending on the region, from 4 to 10; in total about 35 countries participated so far in these seminars. But at the national level NGOs, UNICEF and other UN agencies can and do play a crucial and active role in promoting the implementation of the recommendations of the Committee. It is thanks to their activities that so much progress has been made in implementing childrens rights. - childrens involvement The Committee encourages the States Parties, NGOs and UNICEF to actively involve children in the monitoring process, both in the preparation of reports and in the follow-up activities. Sometimes children come to Geneva to participate to the pre-sessional meeting, but the costs of such participation are often a barrier. The Committee very much appreciates this participation and has separate meetings with these children but the emphasis should be on involvement at the national level. One of the reasons for country visits by members of the Committee is that it allows a direct contact with a wider variety of children. Further developments in the participation of children is needed an I hope that the General Comment the Committee is preparing on child participation will contribute to this development. General Comments Over the last 6 years the Committee has issued 10 General Comments. They constitute an impressive body of guidance and recommendations for States Parties in their effort to implement the CRC. At the same time, they are instruments for monitoring the States Parties performances in the various areas covered by the General Comments. Crucial in this regard is that States Parties do use the General Comments and follow-up is therefore essential. The Committee undertakes efforts to organize this follow-up with the support of NGOs and UNICEF e.g. by piloting the implementation of a General Comment in one or more States Parties. Currently the General comment on Early Childhood is piloted in Jamaica with the support of the Bernard van Leer Foundation. In collaboration with DCI a plan is developing for follow-up to General Comment no 10 on Childrens rights in Juvenile Justice. Much more should be done to make General Comments the effective instruments they intend to be. 5. Individual complaints Under 5 of the 7 Human Rights Treaties it is possible to file an individual complaint about a violation of a provision of that treaty with the important condition that all available national remedies have to be used first. This possibility does not exist under the ICESCR although work is underway to introduce it, nor under the CRC. Various NGOs and individual experts have argued in favour of the introduction of such an individual complaint possibility for children (directly and/or via their representatives). I think this possibility is the keystone in the system of monitoring the CRC. The fact that it exists for e.g. women and migrant workers and is foreseen under the new Treaty on the right of persons with disabilities shows that it is considered to be an important part of the monitoring system. Why does the CRC not have this individual complaint mechanism? By lack of a public debate within the UN concerning proposals in this regard the answer to this question can only be tentative/speculative. - the child does not have or: should not have the legal capacity to file a complaint and/or be involved in ensuing procedures; this is not a convincing argument because in many countries children mature enough to do so can independently file a complaint in courts and international regional courts ( European/Inter American) do accept complaints filed by children; in addition: for the (very) young children legal representatives (should) have the right to file a complaint; - children should not/are not mature enough/lack the necessary experiences, understanding to challenge the State, let alone their parents or other caretakers before an international body such as the CRC Committee. It amounts to undermining parental authority and entails a threat to their autonomy and family values. Again: not convincing given national and international possibilities that already exist and are used. Other arguments against it may exist, but the key is that children should have the right like all other human beings to file a complaint about a violation of their rights. Before you start thinking let us introduce this possibility right away so that by January 1, 2008 every child has this important right to file a complaint, I have to present some of the obstacles: - the introduction requires the drafting of an optional protocol by most likely a working group of the Human Rights Council (HRC), Lets assume that the HCR agrees with the need for such an Optional Protocol and establishes the working group, it may easily take 5 years or more (see experiences with drafting of OP for ICESCR) before there is an agreed text. This text goes for approval to the GA of the UN, will be approved (perhaps not unanimously) and is then open for ratification. Usually an OP requires 20 ratifications before it can enter into force. This may take another 2 years (the current OPs on Sale of Children etc. and on Children in armed conflict were approved in May 2000 and entered into force in January/February 2002). So at least it may not be before 2015 that such OP will enter into force; - the OP will apply in States that ratify it and it is not likely, in my estimate, that all 193 SPs to the CRC will ratify it rather soon (almost 7 years after approval by the GA the existing two OPs have been ratified by just over 110 SPs). In conclusion: it is a long road so we better start travelling it as soon as possible. There is perhaps a shorter road but it may be just my little dream. In the current Human Rights Treaty Bodies reform activities one idea is to harmonize (as much as possible) the existing complaint procedures (under the HR treaties) and create one unit (of representatives of the 5 treaty bodies concerned) for dealing with all complaints. The little dream: State Parties (some/many) are willing to expand the authority of this unit, via an informal agreement for a period of e.g. 5 years, for handling complaints filed under the ICESCR and the CRC. One could argue that such an agreement is operational if 20 or more States are willing to join. This little dream is not only quite optimistic, but also depends on the establishment of the harmonized unit I mentioned. How likely is that establishment? I dont know but not very high (50%?) and will also take some time. Final remarks Monitoring the implementation of the CRC requires ongoing efforts and investments, both at the national and international level. And at both levels still a lot needs to be done. Only with the ongoing pressure of NGOs and UN agencies, but above all with a strong political commitment of States Parties, it will be possible to create an effective system for monitoring the implementation of the CRC, not as a goal in and of itself, but as an instrument to ensure for each child the full enjoyment of her/his rights. Notes 1. It is noteworthy that in most Human Rights the establishment of a committee is not linked with a brief description of its monitoring task (see e.g. art. 28-35 ICEPR, art. 8 CERD, art. 17 CAT) although it is stated that they shall consider the reports of States Parties e.g. art. 74 CMW The Committee shall examine the reports (..) and art. 17 CEDAW: For the purpose of considering the progress made (.) 2. This is a practice developed by each of the committees although the text of the treaties is quite general, vague and not consistent on what the committee should do after the examination/consideration of the report. Most treaties state that the committee may make general comments, suggestions or just comments as it may consider appropriate to the States Parties or State Party concerned (see art. 40(4) ICCPR, art. 9(2) CERD, art. 21(1) CEDAW, art. 19(3) CAT and art. 74(1) CMW. PAGE  PAGE 14  ##p%%''''E)W)K.k.~3339A>J>EEHHHJLLN]]____;cNcOcUcVcWcYcZc`cacccdcechcic0JmHnHu0J j0JU>*>*CJmH sH CJH*mH sH  CJmH sH 84bc  W  I$WddNchc y#`d%g####%p%P'S(C)I.q12{3|339>>?>dd?> @ABkDEEHHHHJLLLLLLNNOPR8TTUUXddhd^hdXY,Z[]]]]___________QaRa;cc?c@cAcBcdddBcCcDcEcFcGcHcIcJcKcLcMcNcWcXcYcecfcgchcich]h&`#$d# 01h. 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