A/HRC/17/36
Optional Protocol to the Convention on the Rights of Persons with Disabilities did not
require communications to be submitted in writing.
54.
A majority of States also favoured the inclusion of a time limit between exhaustion
of domestic remedies and the submission of a communication to the Committee. In the
view of most delegations, this was necessary to allow States to investigate and provide a
response on a communication. The majority of States agreed to a time limit of 12 months,
following the precedent of the Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights (art. 3(2)(a)). Some States, however, proposed a
shorter time limit of six months since the last domestic decision. Many States in favour of
the inclusion of such a time limit also proposed including an exception to the rule, where
the author could demonstrate that it was not possible for him to submit a communication
earlier (following article 3(2)(a) of the Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights). Two delegations proposed the introduction of a
time limit of one year, which would be triggered upon the age of majority if it was
demonstrated that the child could not bring a complaint before. Two delegations pointed to
an apparent contradiction between the Committee’s ability to dispense with non-exhaustion
of domestic remedies if they were unduly prolonged and the introduction of a strict time
limit.
55.
Non-governmental organizations and national human rights institutions stated that
they did not consider it appropriate to apply time limits to the submission of
communications following exhaustion of domestic remedies in the light of the particular
status of children and the fact they lacked knowledge and understanding of the availability
of the international communications procedures. While regional bodies were close to
potential complainants and well-known by them, international communications procedures
did not enjoy the same level of knowledge at the national level. This was not a standard
requirement at the United Nations and ran counter to the expressed desire of many
delegations to make this communication procedure child-sensitive and easily accessible to
children. If a timeline was to be introduced, it would be preferable to follow the language
under article 56 of the African Charter on Human and People’s Rights, which referred to
“within reasonable time”.
56.
With regard to the exhaustion of domestic remedies, some delegations did not
support the idea that the rule would not apply when those remedies were regarded by the
Committee as unlikely to provide effective relief, as the Committee could not be in a
position to prejudge on the outcome of any internal remedy. A proposal to replace “unlikely
to bring effective relief” by “unlikely to provide effective reparation” was not supported by
most delegations, as it departed from the wording used in other instruments. For similar
reasons, a proposal to provide that the Committee “shall interpret the application of the
remedies in a manner sensitive to the impact that delays may cause to a child’s well-being
and development” did not find sufficient support.
57.
One delegation was against extending the Committee’s ratione temporis competence
to facts that occurred prior to the entry into force of the optional protocol for the State party
concerned but that continued after that date. Another delegation concurred with the
Chairperson that continuing facts referred to situations such as disappeared children, not to
historic claims.
58.
Some delegations proposed the inclusion of language specifying that the Committee
would declare inadmissible communications that had been or were being examined not only
under another procedure of international investigation or settlement but also under another
regional procedure. Other delegations, as well as non-governmental organizations and
experts, including Committee members, were not in favour of this proposal. They recalled
that regional bodies did not have competence to adjudicate many of the rights protected
under the Convention or its optional protocols. Regional bodies could only apply their
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