Individual Communications under the Optional Protocol (OPIC): Recent trends and jurisprudence highlights 

Background and trends 

 

The adoption of the third optional protocol under the Convention on the Rights of the Child on a communications procedure (OPIC) in 2014 marked an important point in the achievement of access to justice for children. Until then, children whose rights under the CRC were violated did not have any means to obtain redress at the international level.

The OPIC opened the door to a process whereby individual complaints can be brought to the committee, if certainly admissibility criteria are met. The door is only open, however, to children living within the jurisdiction of the 46 states that have, as of January 2021, ratified the OPIC.

Although the number of ratifications is disappointing, it is important to note that despite being the eighth individual complaints mechanism of the treaty bodies to enter into force, it is currently the third in terms of the number of cases adopted per year (after CCPR and CAT), the fifth both in terms of the number of communications registered (after CCPR, CAT, CEDAW and CESCR), and the number of States parties (after CHR, CEDAW, CAT and CRPD).

 

 

The Committee on the Rights of the Child is recording an increasing number of individual communications each year. In its most recent biennial report to the General Assembly in 2020, covering the sessions held between May 2018 and March 2020, the Committee reported that it had adopted decisions on 31 individual communications under article 5 of the OPIC. During the reporting period, the Committee received over 200 individual communications, of which 71 were registered. This brought the total number of registered cases to 116 as of 6 March 2020. As at the same date, there was a backlog of 78 cases pending examination by the Committee. The pace at which new cases are being received is increasing. In the three-month period between 1 October 2020, and 18 January 2021, the CRC received 43 new individual communications and registered 13 of them, granting interim measures in 9 of these. Although aspects of the Committee’s work have been affected by the COVID-19 pandemic, there has been no slowing down in the handling of communications. As observed by Child Rights Connect, 2020 was the year in which the Committee adopted its highest number of cases. The OPIC working group’s tasks continue inter-sessionally, as decisions about the registration of cases, and in some matters, the granting of interim measures, are continually being made. 

Increased diversity in jurisprudence 

 

The jurisprudence of the Committee is becoming more diverse. For the first few years, cases against Spain dominated the OPIC workload, and many of these cases dealt with age determinations of migrant children. The Committee has adopted 14 decisions against Spain on the issue of age determination of unaccompanied migrant children since 2019. The Committee found various rights violations in these cases, notably, the right to identity, the right to be heard, and the right to special protection of children not living with their families. Still on the theme of migration, the Committee congratulated Spain when it responded to an interim measures request regarding the case of a Moroccan child living in the Spanish enclave of Melilla, who had denied her right to education. The case had a happy ending when the girl was placed in school – she sent a video message to the committee as she celebrated her victory to access to education.  

Staying with the theme of migration, but moving to other countries, the Committee found that a decision by Swiss authorities to transfer two children, originally from Azerbaijan, from Switzerland to Italy under the Dublin regulations, breached their rights by failing to hear their views and not properly assessing their best interests. In another matter, a decision by Danish authorities to deport children to China with their mother was found to breach their procedural right to have their best interest properly considered, and also breached their rights to articles 6 (life, survival and development) and 8 (identity) because as children born to an unmarried mother outside of China, the Chinese authorities were unlikely to record their details in the family register (Hukou), which would impede their rights to education, health care and other support services required for their development. In another case, Denmark decided to rethink its decision to enforce a transfer of six Syrian (Kurdish ethnic) children and their mother to Greece. This development occurred after the Committee received a communication from the mother and children, which resulted in the Committee requesting Denmark to halt the transfer as an interim measure. Denmark complied and reconsidered the asylum application – with a positive outcome, causing the decision for the transfer to Greece to fall away. 

Children of foreign fighters detained in camps in the Kurdish-held part of Syria were the subject of a communication against France. In deciding that the case is admissible in late 2020, the Committee had to grasp the nettle of extra-territorial jurisdiction. France claimed that they did not have jurisdiction over the children because they were not on French territory. The Committee found that jurisdiction extends beyond geographical territority. In the particular circumstances of the case, the Committee found that France has jurisdiction because it has the capability and power to protect the rights of the children in question by taking action to repatriate them or provide other consular responses. The merits of the case have yet to be decided. 

The jurisprudence of the Committee is attracting increasing attention. It is being subjected to academic and analysis and critique. In particular, Child Rights Connect has a series of dedicated web resource pages on OPIC which provide up to date information on ratifications, jurisprudence, pending cases, and procedures. The University of Leiden’s Child Rights Observatory provides an open access online database of commentaries on the CRC views under OPIC, written by international experts in the field. These developments augur well for the development of a vibrant access to justice movement for children, and provide the basis for a carefully constructed children’s rights jurisprudence. 

Ann Skelton

Ann Skelton

Ann Skelton is a Professor of Law at the University of Pretoria. She has worked as a children’s rights lawyer in South Africa for 30 years. Her global influence has been recognised through the Juvenile Justice Without Borders award (2017), her involvement as chairperson of the Advisory Board of the United Nations Global Study on Children Deprived of their Liberty, and being appointed as an Ambassador for the British Society of Criminology.
Ann is currently a member of the UN Committee on the Rights of the Child, having been elected in 2020 for the second term of office.

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