The CROC without Bite : An evaluation of whether a complaints procedure will give the Convention on the Rights of the Child its bite

Abstract

The Convention on the Rights of the Child (CRC) is now the only treaty with a mandatory reporting procedure not to allow individual petitions or complaints. Is this discriminatory treatment justified? This thesis explores the need for an optional protocol to the CRC, whereby children can seek redress for the substantive provisions of the CRC. I consider the philosophical underpinnings and justifications for children’s moral rights, in order to apply them to their human rights with a view to strengthening the basis from which a claim for a complaints procedure can be made. I then proceed to survey the field of international human rights law, to examine the extent to which children’s rights are effectively protected by the treaty bodies, followed by an analysis of the CRC as the concrete expression of the rights of children in the international legal framework. I examine the effectiveness of the CRC through the lens of the need for a complaints mechanism, facilitated by a third optional protocol to the Convention. Here, the added value and assumptions of individual complaints procedures are evaluated and applied to children. Comparison is made to the Optional Protocol to the Convention on the Elimination of all forms of Discrimination Against Women (OP-CEDAW): its history and justifications.

These considerations are highly pertinent given the decision by the Human Rights Council (HRC) in March to extend the mandate of the intergovernmental Working Group to begin drafting an optional protocol. The first session of the Working Group is expected to take place in December 2010 and the new instrument could be adopted by the end of 2011. This thesis provides a critical background for academics, practitioners and diplomats to contribute to the process of the drafting of an optional protocol to the CRC and thus speaks to the reasons states should ratify such an instrument.