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CRC – Optional Protocol 3 (OP3/OPCP)

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OP3-CRC

Photo Credit: http://darylbc.blogspot.com/2014/04/op3-crc-third-optional-protocol-to.html

by Joti Kohli

“Children will now be able to join the ranks of other rights-holders who are empowered to bring their complaints about human rights violations before an international body”  UN High Commissioner for Human Rights Navi Pillay

As a member of Child Rights Coalition Asia, Protect and Save the Children organised a round-table on Optional Protocol 3 (OP3/OPCP) in October. VoC participated in this roundtable, where the two main speakers were Dr. Victor Karunan, Deputy Representative, UNICEF Malaysia and Dr. Raj Karim, President of Malaysia AIDS Council.  Since many people are either unaware or not clear about what OPCP entails, a brief about the importance of OPCP follows below.

The purpose of Optional Protocols is to address gaps within an International Instrument.  The Convention on the Rights of the Child (CRC) has three Optional Protocols; Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (known as OP1 or OPSC), Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (known as OP2 or OPAC) and Optional Protocol to the Convention on the Rights of the Child on a communication procedure (known as OP3 or OPCP).

OPSC and OPAC were approved by the UN General Assembly (UNGA) and ready for ratification by States in May 2000.  Malaysia has ratified both these protocols but has yet to sign and ratify OPCP.  This protocol was approved by the UNGA in December 2011 and opened for signature and ratification in February 2012.  According to the procedures, for the OPCP to come into force, 10 states have to sign and ratify it.  With 14 states having ratified it, the OPCP is ready for signatures from other States.[i]  On November 20, 2014 the world celebrates 25 years of the CRC and in February Malaysia celebrates 20 years since the signing of the CRC.  This is an apt occasion for Malaysia to remove reservations it still maintains to 5 articles of the CRC[ii] as well as sign OPCP.

So what is OPCP CRC?

A communication procedure, allows individuals or groups of individuals (in this case children) to bring their complaints before the UN Committee on the Rights of the Child, which is an independent committee comprising of 18 child rights experts.  OPCP fills this important protection gap and strengthens the implementation of children’s rights at the national level and raises international recognition of children as rights holders.  It also further strengthens Article 12 of the CRC which highlights the child’s right to participation which states:

  1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
  2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

OPCP[iii] is divided into four parts:

i.        Part 1 defines the rules of procedure and functioning of the committee (articles 1-4)

ii.        Part 2 looks at the communications procedure (articles 5-12)

iii.        Part 3 provides for inquiry procedure for grave or systematic violations and follow up (articles 13-14)

iv.        Part 4 provides the final provisions related to international assistance and cooperation (articles 15-24)[iv]

Here are the steps to the Complaints Procedure:

Complaint Procedure

Fig. 1: Special Representative of Secretary General on Violence against Children (2013). “Raising Understanding Among Children and Young People on the OPCP “. Retrieved from: http://srsg.violenceagainstchildren.org/story/2013-09-19_898

The complaints can be brought forward by an individual, a group of individuals or by a State against another State.  This can only be done once all possibilities in the domestic arena have been exhausted, right from the lower courts to the highest court of the State.  Though it may seem that this provision makes it almost impossible for children to file a complaint to the UN Committee, a commitment to such a process by signing and ratifying OPCP will definitely initiate the development of complaints mechanisms in Domestic Law, which are currently very weak in Malaysia.

Another point of objection to OPCP maybe that it is a quasi-judicial mechanism and the Committee’s decision on the complaint will not be legally binding on the State concerned.  But by becoming party to OPCP the State would have taken it upon itself to address the issue raised by the victim/complainant.  This will also lead to the strengthening of children’s rights in that State.

Malaysia is in a unique position to provide leadership on children’s rights.  As the non-permanent member of Security Council addressing the issue of child soldiers it has already made a firm stance on the protection of children.  The country’s permanent representative to the UN, Datuk Hussein Haniff stated,

 “Malaysia thus reaffirms its strong commitment to the efforts in protecting and promoting the rights of its children. Protecting our children is a priority as they are the ones to safeguard the well-being of our community, nation and future. It is only fair that we leave them with a world that is truly fit for all.”[v]

By taking up the Chairmanship of ASEAN next year, Malaysia is further given the opportunity to enhance children’s rights in the region.  By signing the OPCP and removing the current reservations on the CRC, it will celebrate the 20 years of signing the CRC with a firm commitment to the rights of children.  This will pave the way both regionally and internationally for other countries to follow the footsteps of Malaysia and show the world that it is not only the Nobel Committee that acknowledges the rights of children but so does Malaysia.

 

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[i] See the International Coalition for the OPCRC on a Communications Procedure http://ratifyop3crc.org/

[ii] Malaysia maintains reservation to Articles 2, 7, 14, 28.1 (a) and 37 of the CRC.

[iii] You can find the full text of OP3 CRC here https://treaties.un.org/doc/source/signature/2012/a-res-66-138-english.pdf

[iv] Quoted in CRC- Optional Protocol – 3, paper presented by Dr. Victor Karunan at the Protect and Save the Children roundtable on OP3 CRC, October 7, 2014.

[v] Malaysia to Focus on Children’s Issues, New Strait Times, October 19, 2014. Retrieved from http://www.nst.com.my/node/44329

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