A/HRC/17/36
directed to children (not including their representatives) as the ultimate and relevant
beneficiaries of remedies. Delegations rejected having a direct reference to article 4 of the
Convention in this section.
23.
In addition to its complementary nature, the Working Group considered that the
preamble should also highlight the purpose of the Optional Protocol to further enhance
implementation of the Convention and its two substantive Optional Protocols. In this
regard, most delegations favoured the inclusion of language such as “where applicable”,
reflecting the principle that only those States that are parties to one or both of the two
substantive Protocols would be bound thereto.
B.
Competence of the Committee under the optional protocol3
24.
Article 1 of the initial and revised proposals concerned the general competence of
the Committee under the Optional Protocol. Some delegations suggested that this provision
should refer explicitly only to the competence to receive and consider communications and
not to the competence to conduct inquiries. Many delegations, however, preferred to
include both procedures, even if the possibility to opt out of the inquiry procedure was
ultimately maintained. As a compromise, most delegations supported referring to “the
competence of the Committee as provided for by the present Protocol”. One delegation
preferred to retain an explicit reference to the Committee’s competence “to receive and
consider communications”.
25.
Many States supported the inclusion of specific language that “the Committee shall
not exercise its competence regarding a State party to the present Protocol on matters
concerning violations of rights set out in an instrument to which that State is not a party”.
This principle should be stated either in article 1 or in the articles bestowing a monitoring
function on the Committee in order to avoid any ambiguity, as no other provision
comprehensively addressed the Committee’s ratione materiae jurisdiction. There was also
broad support for the inclusion of a provision to the effect that “no communication shall be
received by the Committee if it concerns a State which is not a party to the present
Protocol”. This was agreed language included in similar optional protocols. One delegation
suggested placing this provision under the admissibility criteria for communications.
26.
Other delegations considered, however, that the inclusion of the latter paragraphs
was unnecessary in the light of the general principles of the Vienna Convention on the Law
of Treaties. A consensus was reached to include the proposed paragraphs in article 1.
3
Article 1 of the revised proposal (A/HRC/WG.7/2/4):
“1. A State party to the present Protocol recognizes the competence of the Committee to receive and
consider communications and to conduct inquiries as provided for by the provisions of the present
Protocol.
2. The Committee shall not exercise its competence regarding a State party to the present Protocol
on matters concerning violations of rights set forth in an instrument to which that State is not a
party.”
7
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