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The 3rd Optional Protocol to the CRC: Actions Speak Louder than Words...
There have been many criticisms about the non-judicial nature of the Committee on the Rights of the Child (CRC) (S. Egan). In response to these criticisms the third Optional Protocol to the CRC was adopted. The Protocol introduces a communication procedure, which 'allows children to approach the UN if their rights are not protected in their country and they have exhausted all domestic remedies to seek justice' (Katherine). Article 5 provides for an individual complaint mechanism for children, groups of children or representatives. In theory the Protocol is a good thing because allows for the possibility of international judicial remedies. It is also fair and equal (R Smith). Some obvious challenges for realising children’s rights were even acknowledged in the Protocol itself; for example, the Committee recognised that 'that children’s special and dependent status may create real difficulties for them in pursuing remedies for violations of their rights. The preamble also reaffirms 'the status of the child as a subject of rights and as a human being with dignity and evolving capacities.' However, the rest of the text is not 'context-specific', it is akin to 'other UN treaty individual complaints procedures' and so may have 'affirmed that children are mini-humans with mini-rights' (S. Egan).
Another problem is that there are only 8 State Parties to the Protocol so far,[9] but it needs 10 to enter into force. This is problematic because children can only raise a complaint 'against any ratifying State' (R Smith). Therefore, the complaints mechanism is of no use to a child in a State that has not ratified. Furthermore, if it does not achieve 10 ratifications, it will not be legally binding on any State. However, even then it may still serve as inspiration for States to protect children’s rights more effectively themselves, but is still leaves us questioning if States will take it seriously.
Even in States that do ratify will children know their rights and know to complain when they are violated? It is clear that 'public awareness of human rights standards and … mechanisms … is … a determinative factor' for the effectiveness of the procedures in the Protocol (R Smith). Unfortunately, though, there isn’t a lot of awareness of the rights or the mechanisms in many States. Furthermore, children inevitably lack the mental and legal capacity to access judicial proceedings in their own country, never mind accessing this new, international system. This problem may be lessened somewhat by the fact that adults can act on behalf of children in the communications procedure. However, there still needs to be more education about the rights and procedures too. There has been some progress in this matter - for example, in September the UN 'launched a child-friendly version of the Third Optional Protocol to inform children them about their rights and prevent their victimization' (UN News Centre) - but there is still a long way to go.
It has been argued 'that strengthening national complaints procedures will have more effect than adding a complaints mechanism to the UN Convention on the Rights of the Child' (L Smith). Regrettably, the Protocol can only encourage 'States parties to develop appropriate national mechanisms to enable a child whose rights have been violated to have access to effective remedies at the domestic level'. This is does not create an obligation. However, '[t]he creation of national mechanisms may be a ‘side effect’ of the protocol, irrespective of the number of ratifications it may attract. This will certainly have the potential to enhance children’s rights' (R Smith).
The Protocol is a 'positive step' in theory (R Smith), but it 'disappointed' in practice because there are still many difficulties to overcome (S Egan). However, these difficulties are not necessarily insurmountable.