A/HRC/13/43
the child, waiving the requirement for the exhaustion of all available domestic remedies
when the application of such remedies would be unreasonably prolonged or unlikely to
bring effective relief. Further discussions in the elaboration of the optional protocol would
provide an opportunity to address these and further issues in detail, while taking into
account the need to build on a firm and sound normative framework, the progressive spirit
of the Convention and the experience developed at the national and regional levels.
65.
In his intervention, Mr. Zermatten noted that the Convention was a holistic
instrument, covering children’s civil, political and economic, social and cultural rights.
While some articles mirrored guarantees established for everyone in other human rights
treaties, most of its provisions provided unique rights for children. Furthermore, all
provisions of the Convention had to be interpreted in the light of its main principles, i.e.
non-discrimination (art. 2), best interest of the child as a primary consideration in all
actions concerning children (art. 3), obligation to ensure maximum survival and
development of the child (art. 6) and the obligation to give due weight to children’s
expressed views in all matters affecting the child (art. 12).
66.
In connection with the right of the child to be heard, Mr. Zermatten referred to
resolution 64/146 on the rights of the child, in which the General Assembly recognized,
inter alia, that the full enjoyment of the right of the child to be heard and to participate
requires adults to adopt an appropriate child-centred attitude, listening to children and
respecting their rights and individual points of view (para. 32). That resolution, together
with the Committee’s general comment No. 5 (General measures of implementation of the
Convention on the Rights of the Child) clearly recognized the special status of children,
which meant that children had become rights holders and not simply individuals who
needed care and protection. Consequently, it was necessary to provide children with the
legal means to file complaints when their rights have been violated and obtain reparation. In
Mr. Zermatten’s view, the special status together with the fact that other human rights
treaties did not respond adequately to the specific needs of children justified the
establishment of a specific communications procedure. That procedure would complete the
Committee’s monitoring mandate, and the ensuing jurisprudence would provide guidance at
the national level, including by mainstreaming the general principles enshrined in the
Convention.
67.
Mr. Zermatten considered that the Committee’s general comment No. 12 on the
right of the child to be heard (article 12 of the Convention) should inspire the working
group’s discussions. Paragraph 47 of that comment indicates that “if the right to be heard is
breached with regard to judicial and administrative proceedings, the child must have access
to appeals and complaints procedures which provide remedies for rights violations.
Complaints procedures must provide reliable mechanisms to ensure that children are
confident that using them will not expose them to risk of violence or punishment”. In Mr.
Zermatten’s view, the reference to the access to appeals and complaints procedures could
be interpreted so as to include the possibility for a child to file an individual communication
before the Committee claiming the violation of his or her rights. Finally, Mr. Zermatten
recalled that almost half of the world population was under 18 and that it would thus be
paradoxical if half of the world population were excluded from access to an appropriate
communications procedure.
68.
Ms. Santos Pais’s and Mr. Zermatten’s statements were followed by a debate in
which many delegations explored the links between the unique nature of the rights of the
child and a communications procedure. The following issues were raised in that regard:
(a)
While the child has been recognized as a rights holder with specific, unique
rights and the Committee is the treaty body with the most relevant expertise to deal with
them, the Convention is the only core human rights treaty that lacks a communications
procedure;
GE.10-10385
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