Author: Samiksha Gupta
Founder, Editor and Writer | Leagle Samiksha
The UNCRC is universally ratified by 196 countries, with the exception of the United States of America alone. This goes on to show that the global community takes the subject of children with utmost seriousness and is committed to preventing any violations of their rights. Continuing with the same spirit, 170 countries have ratified the Optional Protocol 1 on the involvement of children in armed conflict, and 176 countries have ratified the Optional Protocol 2 on sale of children, child prostitution and child pornography.
The Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (Optional Protocol 3) came into force on 14th April, 2014. In sharp contrast to the above trend, after more than half a decade, 52 countries have signed the OP3 and only 46 countries have ratified it so far.
Enabling Provision under Optional Protocol 3:
The innovative part of OP3 is the provision for Individual Communication established under Art V. It reads as follows: “Communications may be submitted by or on behalf of an individual or group of individuals, within the jurisdiction of a State party, claiming to be victims of a violation by that State party…”
This provision effectively enables anyone and everyone – be it a child, a group of children, an adult individual, a group of adult individuals, or an NGO, etc, to approach the Committee on the Rights of Child directly and register their complaint against their State or any other State that is violating the right of the children.
The mere filing of a ‘communication’ is not enough to bring about any difference. In Article VII, we can find eight riders that a complaint must pass in order to be considered “admissible” by the Committee.
The most inhibiting of these riders is sub-clause (e), which requires that all domestic remedies must be exhausted before approaching the Committee, except in cases where the application of the remedies is unreasonably prolonged or unlikely to bring effective relief. This stipulation requires the persons lodging the communication to run from pillar to post before the State that is causing the violation of the rights.
Furthermore, as per Article I, if a State has not ratified an instrument bestowing certain rights upon the children, then a complaint regarding the violation of matters contained in such an instrument cannot be entertained by the Committee. It implies that for a right to be violated, it must be first recognised by the State. The State must firstly have undertaken the international obligation to uphold a right, in order to be held liable for the violation of such a right.
Reasons for Non-ratification:
Article I.3 clearly established that the Committee on the Rights Child lacks jurisdiction in complaints communicated to it against any State that is not a party to the present Protocol. This means that unless a State is not party to the OP3, it can never be held liable based on a communication forwarded by an individual.
The review process under UNCRC takes place every 5 years. Therein, the States are required to furnish a status report regarding the condition of child rights prevalent in their jurisdiction. In contrast, a communication under Optional Protocol 3 can be brought at any point in time. It does not allow the State to have a half-a-decade long window to cover its tracks.
Thus, by not ratifying OP3, states shut down a direct door for investigating the miscarriage of child rights taking place under their noses. Non-ratification is the easiest way to sweep the problems under the rug and evade answerability on those accounts.
This provision has the effect of implying that a child or an individual residing within a country that has not ratified the Optional Protocol 3 cannot bring a communication to the Committee regarding violation of rights by the State in which such a person resides. Therefore, the implementation of the rights of the child gets subjected to the wishes of the State.
The OP3 is a vigorous attempt to ensure that States do not violate the rights of the children. It brings the right of participation granted to children under UNCRC to fruition. Theoretically, it is a very powerful tool that could bring a paradigm shift in the approaches of the States in dealing with the sensitive issue of child rights.
However, the limited acceptance by three-fourths of the world shows that this might not be a welcomed step from the States’ sides. The reluctance shown by most countries is unfounded, especially when the OP3 contains enough checks and balances before accepting and acting upon the received communications.
It is important for countries to be answerable to their children. 30 years ago, the world made a commitment to its children. The time has come that the children are holding their leaders answerable to it. It is nothing but irresponsible and cowardly on part of the States to turn their back on their unfulfilled promises now. Therefore, it is high time that a universal ratification of the OP3 is achieved.
 Optional Protocol on the Involvement of Children in Armed Conflict, https://childrenandarmedconflict.un.org/tools-for-action/opac/
 United Nations Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11-c&chapter=4&lang=en
 United Nations Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11-d&chapter=4