On 17 September 2014, the new Minister for Children and Youth Affairs, Dr. James Reilly, announced that Ireland would sign and ratify the Third Optional Protocol to the UN Convention on the Rights of the Child (UNCRC). This will allow children and young people an international route by which to vindicate their rights where this has not been possible through state agencies or the courts at domestic level.
The Third Optional Protocol to the UNCRC establishes a communications procedure or, in effect, a complaints mechanism. This is a quasi-judicial mechanism that allows children and their advocates (parents, guardians etc.) to submit a complaint to the UN Committee on the Rights of the Child, a group of 18 international children’s rights experts. Complaints must relate to specific violations of rights under the UNCRC and its first two optional protocols, if ratified. Violations must be ongoing when the Protocol is ratified or occur after ratification in order to be admissible under the procedure.
Because the original text of the UNCRC did not include a communications procedure, a new Optional Protocol is required in order to facilitate its establishment. Ireland ratified similar communications procedures under Optional Protocols to the International Covenant on Civil and Political Rights in 1989 and the Convention on the Elimination of Discrimination against Women in 2000. In 2011, the State committed to ratifying the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights which also establishes a complaints procedure. This has yet to happen.
As with other similar regional or international mechanisms, a complaint under the new mechanism can only be made after domestic remedies have been exhausted. In Ireland, there are, of course, a variety of existing legal and quasi-legal remedies open to children and families when their rights are violated such as taking a case through the courts, the Equality Tribunal or the Ombudsman for Children’s office.
Unlike complaints taken to the European Court of Human Rights, decisions by the Committee are non-binding on States. However, by ratifying the Optional Protocol, States commit themselves to follow the decisions and provide redress to victims. There is also provision for the facilitation of friendly settlements, if parties to the communication find an agreeable solution between them.
The Protocol provides for three separate procedures:
- The Individual Communications Procedure allows individuals, groups of children and their representatives to bring complaints in respect of alleged violations of rights under the UNCRC and its Optional Protocols.
- The Inquiry Procedure provides for any person or organisation to submit information to the UN Committee on the Rights of the Child alleging grave or systematic children’s rights violations under the UNCRC by a State. If the Committee receives reliable information indicating that grave or systematic children’s rights violations have occurred, it can decide to conduct an inquiry. The inquiry procedure is an “opt-out” mechanism, meaning that States can chose not to be subject to the inquiry procedure when they ratify the Optional Protocol.
- The Inter-State Communications Procedure allows the Committee to receive and consider communications from a State against another State that is not fulfilling its obligations under the UNCRC. The inter-state communications procedure is an optional mechanism and both States must have ratified the Optional Protocol in order for it to be invoked.
Complaints have been taken against Ireland under similar international complaints mechanisms, under the UN International Covenant on Civil and Political Rights for example. In 1998, in the case of Kavanagh v Ireland, the UN Human Rights Committee found that Ireland had breached the applicant’s rights under Article 26 of the Covenant (equality before the law). The Committee found that the State failed to provide him with a reasonable and objective justification for its denial of his right to a trial by jury by trying him before the Special Criminal Court. He was again before the Committee in 2002 claiming a violation under Article 2(3) of the Covenant for the State’s failure to provide him with an effective remedy but this was deemed inadmissible.
Ireland will be the twelfth State to ratify the Protocol after Albania, Belgium, Bolivia, Costa Rica, Gabon, Germany, Montenegro, Portugal, Slovakia, Spain and Thailand. It entered into force on 14 April 2014 after its tenth ratification.
The UNCRC has two other Optional Protocols – First Optional Protocol on the Involvement of Children in Armed Conflict was signed by Ireland on 7 September 2000 and ratified on 18 November 2002) and the Second Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography was Signed by Ireland on 7 September 2000 but it has not yet been ratified.
Now that this commitment has been made, signature and ratification of the Optional Protocol should happen simultaneously and without delay, in order to open up this important new avenue of redress for children in Ireland who have been unable to receive an effective remedy at home as quickly as possible.