“Since Iran believes that no one is really going to do anything about it, there is no reason to be concerned. The reality is, that since the Convention is an international treaty, other nations could enforce its provisions through litigation….The concept of enforcing treaties in courts of competent jurisdiction is relatively new to the international arena and thus there is little precedence for its implementation.”  

By: D.W. Duke  

The rights of children began to achieve international recognition in the early part of the 20th Century. The first text addressing the rights of children in international law was adopted in 1924 when the League of Nations passed a resolution endorsing the Declaration of the Rights of the Child that was first promoted in 1923 as the NGO “Save the Children” campaign. This became known as the “Declaration of Geneva.” In 1948 it formed the basis for the Declaration adopted by the General Assembly of the United Nations and in 1959 became the Declaration of the Rights of the
Child. The by-product of this agenda to protect the rights of children ultimately became the United Nations “Convention on the Rights of the Child.” Widely heralded as an extraordinary product of human rights enthusiasts, the Convention received only a lukewarm reception in the United States. The UN Convention on the Rights of the Child www.unhchr.ch/html/menu3/b/k2crc.htm was adopted by the General Assembly on November 20, 1989 and went into effect on September 2, 1990. As of this date only two nations of the world have not ratified the Convention on the Rights of the Child. Those nations are the United States and Somalia.

By signing the Convention, the signatory nations agree to afford certain rights to minors regardless of the “child’s or his parent’s or legal guardian’s race, colour, sex, language, political or other opinion, national, ethnic or social origin, property disability, birth or other status.” See Article 2(1). A minor is a person under the age of 18 years unless pursuant to the law applicable to that child majority is attained earlier. See Article 1. (An example of a law applicable to the rights of a child wherein one younger than 18 would be regarded as an adult, might be a law which allows minors to marry. That law does not, however, transform that minor into an adult for all purposes such as the application of the death penatly.) The Convention requires that all actions taken with respect to children must be in the “best interests of the child.” The Convention is designed to prevent the exploitation of children, child selling and trafficking and child abuse. The Convention also prohibits the recruitment of children into the military prior to age of 15 years.

The Committee on the Rights of the Child (CRC) www.ohchr.org/english/bod…/index.htm established by Article 43(1) of the Convention, is responsible to monitor the efforts taken by the various states to comply with the provisions of the Convention. The Committee is made up of ten members of high moral standing and competence in the “field covered by this Convention.” The CRC reviews the reports submitted by the States concerning the steps they have taken to comply with the Convention. The CRC has no power to receive or review complaints from individuals. The members of the Committee are selected by secret ballot from a list of persons nominated by the States. Each State may nominate one person from among its own nationals.

There have been two Optional Protocols to the “Convention on the Rights of the Child.” The first Optional Protocol addresses the recruitment and involvement of children in the armed forces. Under its provisions States are required to take all reasonable steps to assure that children under the age of 18 do not participate in armed conflict. The goal is to see the minimum age of participation in military forces raised to 18 years.

The second Optional Protocol went into effect on January 18, 2002 and concerns child pornography, child prostitution and child trafficking. This protocol requires that each State take steps to assure that these acts are criminalized whether occurring within its borders or outside of its borders. States are required to prosecute offenders found within its territories. The Protocol also established an enforcement mechanism and a procedure for the confiscation of materials and assets used in the crime.

As with the other treaties that have been signed concerning the issue of human rights, enforcement up to the present date has been largely limited to the voluntary cooperation of the member nations. This, in large part is the reason such nations as Iran continue to violate the provisions of the “Convention on the Rights of the Child.” Since Iran believes that no one is really going to do anything about it, there is no reason to be concerned. The reality is, that since the Convention is an international treaty, other nations could enforce its provisions through litigation or even through the use of military force. The concept of enforcing treaties in courts of competent jurisdiction is relatively new to the international arena and thus there is little precedence for its implementation. Thus, for the most part, at present, we are thrown back onto the voluntary cooperation of each nation in assuring that the rights of children are protected.

Although there is no specific complaint procedure for the Convention on the Rights of the Child, there are procedures for bringing individual complaints under four of the UN treaties. Here is a link to a page of the Office of the High Commissioner for Human Rights which explains the complaint process: www.ohchr.org/english/bod…ncications

In addition, there are procedures for bringing complaints on matters where an individual complaint procedure is not available under a particular treaty. These include the newly established Human Rights Council www.ohchr.org/english/bod…/index.htm with its new complaint procedures including the 1503 procedure www.ohchr.org/english/bod…laints.htm

While these complaint mechanisms are a step in the right direction, it remains to be seen how effective these processes will be in dealing with specific violations. Several years ago I lodged a 1503 complaint which received no response whatsoever with the exception of acknowledgement of receipt so I have not been overly optimistic about the procedure. Nonetheless, the 1503 procedure was fairly new at that time which could account for the apparent nonresponsiveness. It may be that SCE Campaign should begin the process of lodging 1503 complaints in cases involving violations of the “Convention on the Rights of the Child.” If nothing else, it would keep this issue in the presence of the Office of the High Commissioner.

Partial List of References:

1. United Nations Charter
2. United Nations Universal Declaration of Human Rights
3. United Nations Covenant on Economic, Social and Cultural Rights
4. United Nations Covenant on Civil and Political Rights (ICCPR)
5. The First Optional Protocol on the Covenant on Civil and Political Rights
6. The Second Optional Protocol on the Covenant on Civil and Political Rights
7. The United Nations International Covention on the Rights of the Child
8. J. Robinson, Human Rights and Fundamental Freedoms in the Charter of the United Nations: A Commentary (1946)
9. L. Sohn & T. Buergenthal, International Protection of Human Rights 556 (1973) and L. Henkin The Age of Rights 51 (1990)
10. D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights 300 (1994)
11. International Human Rights, 3d edition, Buergenthal,Shelton and Stewart, (2002) West Publishing Company
12. International Human Rights in Context, 2d edition, Steiner and Alston, (2000) Oxford University Press

By: D.W. Duke 

Part I 

Part II: The Optional Protocols of the ICCPR

The Optional Protocols of the ICCPR (International Covenant on Civil and Political Rights), are separate treaties from the ICCPR yet function much like addendums to the ICCPR. The First Optional Protocol authorizes private persons to file complaints with the Human Rights Committee alleging violations of the ICCPR. Under the Optional Protocol the complaint may be filed only against those nations that have ratified the ICCPR. Prior to filing the complaint the Complainant is required to have exhausted all domestic remedies with the nation alleged to have violated the ICCPR. (Domestic remedies would refer to such acts as filing a discrimination action against one’s own government in that nation’s courts, or appealing an adverse order. In reality, many nations that routinely violate human rights have little or no internal remedies for aggrieved citizens.)

For a complaint to be considered under the Optional Protocol it cannot be a matter under examination in another procedure of internal investigation or settlement. See Optional Protocol, art. 3. Additionally, the complaint cannot be anonymous, violate the right of submission or be otherwise incompatible with any provision of the Covenant. See Optional Protocol, art. 5(2)(a). The State has two months to submit an objection to the admissibility of the written information of the complaint and the Complainant has a period of time, set by the Committee, to reply to the objection. If the State does not object to the admissibility of the communications and information, it has six months to prepare and submit its arguments of the case. See HRC, Rules of Procedure 91. The Committee prepares its findings and statement of decision based upon the written reports of the Complainant and the State respondent.

In 1989 the Committee established the office of the Special Rapporteur on New Communications to assess whether a new communication requires clarification or modification for admissibility or whether it should be referred to State parties to assess admissibility and substance. Special equitable authority exists in the Special Rapporteur where irreparable harm is likely to occur to the victim of the act alleged, in the absence of extrordinary relief. The Special Rapporteur may recommend admissibility or exclusion of the communication. If admissible, the case is examined by a subcommittee called a “Working Group” which makes a recommendation to the Committee. Decisions by the Committee are called “Views” and the individual members of the Committee may submit dissenting or concurring opinions. Although the Optional Protocols do not set forth any method of assuring that the States comply with the Views, the Special Rapporteur is charged with the responsibility to “follow up” with the States. Additionally, States are then required to state in their reports what measures have been taken to comply with the Views. The annual report of the Committee to the General Assembly contains a section on the “follow up” results focusing specifically on cases where the State failed to comply. The Special Rapporteur also meets in Geneva or New York with diplomats from the States out of compliance. At that time the Special Rapporteur attempts to persuade the diplomats to encourage their governments to comply. Because of the large number of admissible cases in recent years a large body of case law has developed that interprets and applies the ICCPR and the Protocols .

The Second Optional Protocol went into effect on July 11, 1991. The primary objective of this Protocol was the elimination of the death penalty. All nations that sign this Protocol agree to take the necessary measures to abolish the death penalty within that nation’s jurisdiction. There is an exception for “the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.”

Next: Enforcement Under the Convention on the Rights of the Child

Partial List of References:

1. United Nations Charter
2. United Nations Universal Declaration of Human Rights
3. United Nations Covenant on Economic, Social and Cultural Rights
4. United Nations Covenant on Civil and Political Rights (ICCPR)
5. The First Optional Protocol on the Covenant on Civil and Political Rights
6. The Second Optional Protocol on the Covenant on Civil and Political Rights
7. The United Nations International Covention on the Rights of the Child
8. J. Robinson, Human Rights and Fundamental Freedoms in the Charter of the United Nations: A Commentary (1946)
9. L. Sohn & T. Buergenthal, International Protection of Human Rights 556 (1973) and L. Henkin The Age of Rights 51 (1990)
10. D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights 300 (1994)
11. International Human Rights, 3d edition, Buergenthal,Shelton and Stewart, (2002) West Publishing Company
12. International Human Rights in Context, 2d edition, Steiner and Alston, (2000) Oxford University Press

Following are a series of articles written by SCE Campaign member D.W. Duke in response to a question that was raised at the Stop Child Executions Discussion Forum :

Does United Nations have any means to question or penalize countries such as Iran who are signatories to CRC and ICCPR but contiinue to violate its rules ?

The most basic enforcement authority probably derives from Article 56 of the UN Charter whereby all member nations pledge to “take joint and separate action in cooperation with the Organization (UN) for the achievement of the purposes set forth in Article 55.” Article 55 includes several paragraphs most notably here “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.”
So how does this language translate into “real world” enforcement? Standing alone not very well. Despite its broad language Article 55 only confers limited powers on the Organization. The obligation to “promote” lies with the UN General Assembly and the Economic and Social Counsel whose resolutions on the subject are not legally binding. Moreover, the vague language imposing the obligation of member states to promote human rights and fundamental freedoms and to take joint and separate action in furtherance thereof is likely too vague for serious enforcement. Article 13(1) of the Charter requires the General Assembly to conduct studies and make recommendations to accomplish the objectives of Article 55. Although the impact of the Charter was initially in question See J. Robinson, Human Rights and Fundamental Freedoms in the Charter of the United Nations: A Commentary (1946) a member nation can no longer assert that mistreatment of its citizens is a subject only for its own sovereign concern. See L. Sohn & T. Buergenthal, International Protection of Human Rights 556 (1973) and L. Henkin The Age of Rights 51 (1990).

The United Nations has also promulgated the International Bill of Human Rights which consists of provisions of the UN Charter, the Universal Declaration of Human Rights, the Covenant on Economic, Social and Cultural Rights, the Covenant on Civil and Political Rights and the Optional Protocols to the Covenant on Civil and Political Rights. These documents are seen as a code of human rights which provide guidance in understanding the meaning of the phrase in Article 55 “human rights and fundamental freedoms.”

Today the question is seen as one of compliance with the responsibility to promote “human rights and fundamental freedoms.” The question is often phrased in terms of whether a member nation engages in acts that constitute a “consistent pattern of gross violations.” The UN has created Charter based institutions designed to insure compliance by member states. For example, the UN has established the UN Commission on Human Rights and its bodies to establish procedures for reviewing allegations of abuse.

The Universal Declaration of Human Rights is not a treaty and thus, has no legal force and effect except perhaps in the generic concept of international human rights law. However, The Covenant on Economic, Social and Cultural Rights and The Covenant on Civil and Political Rights are actual treaties and are binding on the member nations. The Covenants each establish a distinct international enforcement system to insure compliance by member nations which are expanded in the ICCPR by the Optional Protocols which permits private individuals to file petitions charging violations of rights under the Covenant.

The ICCPR established the Human Rights Committee (HRC) which has been given various administrative and reporting functions designed to insure that ratifying nations are in compliance. It established an interstate complaint mechanism and the private right of petitions. This Committee consists of 18 members nominated by the State Parties but who serve in their individual capacities rather than as government representatives. (This is designed to avoid bias). The State parties are required to give reports on their progress which are then examined by the Committee members. The Committee has established comprehensive reporting guidelines for dealing with the reports. The State representatives may be called upon to address specific concerns and non-compliant acts consisting of grave violations may be reported to the UN General Assembly and the UN Secretary General.

Article 40(1) of the ICCPR requires ratifying nations to submit reports concerning the progress made toward promoting the rights secured by the Covenant. The reports are to identify any difficulties experienced by the member State that has impacted the implementation of those rights. The initial report is to be submitted within one year of entry into the Covenant and whenever requested thereafter. Generally, the report is to be made every five years. Generally, designated members of the Committee prepare questions to ask of the State representative and one full day is usually devoted to the oral examination of a member State. After completing the public hearing the Committee prepares its “Concluding Observations.” These general observations are transmitted to the member State and also to the UN General Assembly.

One of the primary problems with this reporting system is that it is dependent upon the cooperation of the member nation. If a nation does not submit its report in a timely fashion, which is commonly the case, then the Committee is limited in its ability to prepare a timely report. Unfortunately, at present the Committee only meets three times per year and for only three weeks. Thus, only about five reports can be addressed in a single session. As a result there is a serious backlog in addressing the reports. Moreover, serious financial limitations within the UN have forced a reduction in the Committee staff further hampering the ability to study the information and to complete reports. As a result the Committee has adopted a practice of submitting General Comments to the State members which are designed to provide guidance in discharging reporting obligations. The General Comments have become a vehicle for interpreting the language of the ICCPR which is now accepted as the authoritative word on this issue.

Another feature of the ICCPR is that Articles 41 and 42 provide for interstate communications thus allowing one state to charge another with violation of a treaty. However, given the optional nature of this procedure it can only be used against nations that recognize the jurisdiction of the Committee to receive and act on complaints. Generally, however, the Committee has no jurisdictional authority to act on a given complaint. Instead its authority is one of mediation or conciliation. In cases where a settlement is reached, the Committee reports the terms of the settlement. But where there is no settlement, the Committee must within 12 months prepare a report containing a brief submission of the facts and the oral statements of the parties. In this situation the Committee can form its own recommendation of how a given matter should be addressed. In most cases, the proceedings terminate upon the recommendation by the Committee. Where, however, the States so choose, they may form an ad hoc Conciliation Commission consisting of five members who serve in their individual capacities. This Commission will make further efforts to settle the dispute. Where the parties are still unable to resolve their disputes, Article 44 of the ICCPR authorizes the States to utilize other procedures for resolving the disputes in a manner consistent with the international agreements that are in effect between the parties. Where both States accept the jurisdiction of the International Court of Justice, the dispute may be presented to that forum. Unfortunately, it is often the case that a State will accept the jurisdiction of this court when it suits that State’s purpose but not where the Court is likely to rule in a manner contrary to that State’s position.

Next: UN Reporting mechanism and consequential actions