Advocacy Roundtable for the Signature and Ratification of the Optional Protocol 3 to the Convention on the Rights of the

Child

CALLING FOR THE RATIFICATION BY BANGLADESH OF THE OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD Bangladesh Legal Aid and Services Trust 1. Summary This paper sets out a call for the Government of Bangladesh to ratify the Third Optional Protocol to the Convention on the Rights of the Child (OP3-CRC), in order to strengthen the remedies available for children to seek legal protection against human rights violations, as well to reaffirm the states commitment to the protection of childrens rights. The OP3-CRC establishes a channel of complaint for children whose rights have been violated, for example through violence, sexual exploitation, or lack of access to education and thereafter are not able to seek redress for the rights violation and are deprived of access to justice. This paper begins with a brief description of the Advocacy Forum, and of consultations regarding the OP3-CRC ratification process in Bangladesh, including with children, which have led to todays call. It then outlines the framework for the protection of childrens rights established by the Convention on the Rights of the Child (CRC) and its three subsequent Optional Protocols (OPs). It then lays out key features of the OP3-CRC and the grounds in support of early ratification of the same by Bangladesh. 2. Advocacy A coalition of six organisations and two networks working on childrens rights has been established to advocate for the signature and ratification of the OP3-CRC. The coalition comprises Action Aid Bangladesh (AAB), Bangladesh Legal Aid and Services Trust (BLAST), , Manusher Jonno Foundation (MJF), Plan Bangladesh , Save the Children in Bangladesh (SC), World Vision Bangladesh (WVB), , Bangladesh Shishu Adhikar Forum (BSAF) and Child Rights Governance Assembly (CRGA) with Plan Bangladesh serving as the Secretariat. The Advocacy Forum has held consultations prior to todays discussion to review the scope and need for ratification of the OP3-CRC. These have included a consultation with 196 children, aged between 12-18 years, facilitated by Action Aid Bangladesh and Ain o Salish Kendra in Dhaka, Faridpur, Keshabpur earlier this month. The girls and boys consulted were from diverse ethnicities and communties and backgrounds, including dalit children and adibashi children, and children of sex workers. They included children who are working, children in schools, children living/working on the streets, children living in char areas, and also children who had come into conflict with the law, as well as children who are survivors of abuse/violence, among others. Some of the concerns raised by children included having to work to earn a livelihood, or being coerced into early marriages, being compelled to drop out from schools due to harassment inside and outside the school, abandonment by their families due to poverty, and the reality of physical and sexual abuse.
Position Paper-Advocacy for Ratification of OP3-CRC

BACKGROUND PAPER :

Others talked of the lack of access to food, education, healthcare and security. They also spoke about the difficulties of speaking out about such abuse or accessing remedies. Regarding access to children, children commented that they usually seek justice from local elites as they fear the police, and find them not child friendly, and also find the legal process is too lengthy. Where they do seek justice, they may face harassment and reprisals from the law enforcing agencies, and from within the community. In several of the consultations they said that they would welcome any procedure that would help them get legal protection and saw the OP3-CRC as helping them in this process. Some of the children said they wanted to speak to their teacher and also to their Member of Parliament to ask the Prime Minister to ratify the Protocol which would help [them] to get justice. 1 3. Background - The Convention on the Rights of the Child The CRC is an international treaty that recognizes the human rights of children, defined as persons up to the age of 18 years. The Convention establishes in international law that States Parties must ensure that all childrenwithout discriminationbenefit from special protection measures and assistance; have access to services such as education and health care; can develop their personalities, abilities and talents to the fullest potential; grow up in an environment of happiness, love and understanding; and are informed about and participate in, achieving their rights in an accessible and active manner. With 193 state parties, the CRC is the most widely and rapidly ratified human rights treaty in history. All member countries of SAARC and the OIC are parties to the CRC. 2.1 Optional Protocols to the CRC: The CRC has two Optional Protocols in addition to the one under consideration in this paper. The First Optional Protocol to the CRC (OP1-CRC) is on the Involvement of Children in Armed Conflict, 2000 which establishes 18 as the minimum age for compulsory recruitment and requires States to do everything they can to prevent individuals under the age of 18 from taking a direct part in hostilities . The second Optional Protocol to the CRC (OP2-CRC) is on the Sale of Children, Child Prostitution and Child Pornography, and focuses on the criminalization of these serious violations of children's rights and highlights the importance of fostering increased public awareness and international cooperation in efforts to combat them. 2.2 The Committee on the Rights of the Child (Child Rights Committee): The Child Rights Committee is a body of 18 independent experts that monitors implementation by State parties of the CRC and any OPs to which they are party. All States parties are obliged to submit regular reports to the Committee on the status of implementation of the CRC within their jurisdiction. States must report initially two years after acceding to the Convention and then every five years. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of Concluding Observations. The Committee reviews additional reports which must be submitted by States who have acceded to the two Optional Protocols to the Convention. The Committee also publishes its interpretation of the content of human rights provisions, known as General Comments on thematic issues. After Optional Protocol 3 comes into force, the Committee will be able to consider individual complaints by children or their representatives. 3. Optional Protocol 3 to the CRC

Ain o Salish Kendro and Save the Children, Report on Consultation with Children on OP3-CRC, Action Aid, OP3-Findings of Childrens Consultation, 24 January 2013; World Vision, Report on Consultation with Children on OP-3 (on file) Position Paper-Advocacy for Ratification of OP3-CRC 2

In 2006, child rights organisations launched a campaign to frame the third Optional Protocol (OP) to the CRC. In 2008, the campaign was established as a Working Group of the NGO Group (NGO Group WG) which prepared a draft protocol and engaged in awareness raising campaigns to mobilise support from UN Member States. On 19 December 2011, the OP3-CRC was finally adopted at the sixty-sixth session of the General Assembly of the United Nations by resolution 66/138 . It was opened for signature in Geneva, Switzerland, on 28 February 2012 and now remains open for signature thereafter at United Nations Headquarters in New York. It currently has 35 signatories and 2 parties. Prior to the new Optional Protocol, the only opportunity for children and young people to bring information about child rights violations directly to the attention of the UN Child Rights Committee was through the periodic reporting process which cannot address individual situations. 3.1 Key Features of the Optional Protocol to the CRC on a Communications Procedure: The OP3 shares certain key features of any communications procedure under any treaty body, as set out below: A communications procedure allows a victim, a group of victims or their representative who claims that the victim/s rights have been violated by a state to bring a complaint directly before the Child Rights Committee. This procedure covers complaints alleging violations of the CRC, the OP1-CRC on the involvement of children in armed conflict and the OP2-CRC on the sale of children, child prostitution and child pornography (if the state in question is party to all three). Any communication submitted to the Child Rights Committee follows specific criteria such as the following: it is not anonymous, must be in writing, all available remedies at the domestic level have been exhausted and the same issue has not been or is not being examined by the CRC Committee or by any other procedure of international investigation or settlement. The CRC Committee may employ its good offices approach to reach a friendly settlement of the complaint. There are two opt-out procedures, i.e. the inquiry procedure and the inter-state communications. The OP3-CRC will enter into force only after ten states have ratified or acceded to the treaty. To date, only two states, namely Thailand and Gabon have ratified the OP3 CRC. It is imperative for other states to ratify the OP3 CRC so that it can enter into force as soon as possible. 4. Bangladesh and the CRC Bangladesh was one of the first countries in the world to sign and ratify the CRC in 1990. Bangladesh has also signed and ratified the 2 Optional Protocols to the CRC in the year 2000. In its Concluding Observations of on the 3rd & 4th Periodic State Reports by Bangladesh, the Child Rights Committee welcomed the states efforts to enforce the Committees previous recommendations, and also made several new recommendations to bring the laws of Bangladesh in conformity with the CRC. The most notable of these relate to the forming a uniform legal standard defining a child in accordance with Article 1 of the CRC, defining and implementing the principle of the best interests of the child, and taking steps to protect the rights of children with disabilities. With respect to OP3 CRC, Bangladesh co-sponsored the resolution adopting the protocol at the Human Rights Council in June 2011 and the General Assembly in December 2011.

Position Paper-Advocacy for Ratification of OP3-CRC

5. Why should Bangladesh ratify the OP3 CRC? 5.1. To demonstrate international leadership in child rights and human rights: By ratifying OP3 CRC, States demonstrate a strong commitment to respect, protect, and fulfil child rights and lead by example at international level. Bangladesh has already accepted international communications procedures, such as that to CEDAW, and has been a party to the CRC since 1990.The procedure established by the OP3-CRC is similar to the international communications procedures to which Bangladesh is already a Party. Bangladesh would manifest its leadership on child rights issues, by being among the first States to ratify the OP3-CRC. Ratification of the OP3-CRC is the logical next step for Bangladesh in reaffirming its commitment to the protection of child rights under international human rights law. The protection afforded to children by OP3-CRC assumes special significance in light of the fact that there exists no international or regional mechanism to which Bangladesh can accede in order to better protect the rights of children. Bangladesh has demonstrated its support and commitment to international human rights law by signing on to the majority of the international human rights treaty mechanisms. This commitment was recently reiterated when Bangladesh became one of the first state parties to the Convention on the Rights of People with Disabilities, leading to its subsequent entry into force. This not only promoted the protection of the rights of disabled people at the international and national levels but also contributed to international recognition of Bangladeshs status as state that is respectful and protective of human rights. 5.2. To reaffirm its recognition of children as rights-holders: The OP3-CRC provides that child rights violations can be addressed directly at the international level in the same way as violations of any other human rights. Prior to OP3-CRC, children were the only recognised right holders in international law who did not have a specific complaints mechanism for the enforcement of their rights. Bangladesh by becoming a party to the CRC has undertaken the obligation to grant the rights guaranteed by the CRC to all Bangladeshi children. The OP3-CRC is the procedural medium under international law for Bangladesh to fulfil its obligations under the CRC. Furthermore, OP3-CRC will reinforce the recognition and protection that has already been granted by the laws of Bangladesh to children as rights holders. According to Article 28 (4) of the Constitution of Bangladesh, the State is mandated to make special provisions for the advancement of the rights of among others, children. Also the Constitution of Bangladesh has provisions relevant to children's rights in its chapter on directive principles of state policy [Chapter 2: Articles 15, 17 and 25(1)] and its chapter on fundamental rights [Chapter 3: Articles 27, 28(1)(2)(3)(4), 31, 32, and 39(1)(2)]. This includes the right of all citizens being equal before the law and being entitled to equal protection to be treated in accordance with law without any discrimination. 5.3. To reinforce its national remedies: The scheme for protection of human rights as envisaged by the core international human rights treaties is similar. At the most basic level, states undertake obligations, by virtue of their ratifying and becoming parties to these treaties, to put into place domestic (national) measures and legislation to meet their treaty obligations and duties. To this end, all branches of the state are obliged to be respectful and protective of human rights. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual complaints or communications are available at the regional and international levels to help ensure that international human rights standards are indeed respected, implemented, and enforced at the local level.
Position Paper-Advocacy for Ratification of OP3-CRC 4

In the context of children, the OP3CRC will allow children to address comunications directly to the UN on serious violations, such asviolence, exploitation or discrimination, which have not been resolved at the national level. Laws such as the Children Act, 1974, the Suppression of Violence against Women and Children Act, 2000 (as amended in 2003), the Domestic Violence (Prevention and Protection) Act, 2010, and the Bangladesh Labour Act, 2006 all protect specific children against specific forms of rights violations such as situations of conflict with the law, violence in the home or community or in custodial institutions, or in workplaces. With regard to Bangladeshi children, the OP3-CRC will be invoked only if the children are unable to secure protection under the comprehensive range of remedies currently in force in, that is if the threshold bar of exhausting all domestic remedies is overcome. No complaints can be brought under this Procedure if it is already being examined by the Child Rights Committee or other procedure of international investigation or settlement. 5.4. To strengthen its commitment to a new procedural mechanism o ensure that children in Bangladesh receive protection commensurate to international standards: The OP3-CRC is an additional tool for the implementation of child rights, similar to the communications procedures which are now in place under the other core UN human rights treaty treaties. It does not introduce new substantive rights and therefore does not create new obligations for States to implement. The mechanisms set up under OP3-CRC are quasi-judicial. If the Child Rights Committee finds that a violation has occurred, it will make concrete recommendations to the State concerned in the form of views. The recommendations detail specific measures the State can take to address the violations and ensure that they will not reoccur. While the recommendations are not legally binding, States commit to follow them and provide redress to the victim. Such views if expressed in any communications procedure emanating from Bangladesh would provide useful and relevant guildelines to facilitate relevant reforms. 6. Conclusion For the reasons set out above, we urge the Government of Bangladesh to consider ratification of the OP3-CRC signalling its commitment to child rights protection and establishing its role as a global leader in developing and implementing standards on childrens rights. We hope that concrete steps would be taken by the concerned authorities, in particular the Ministry of Foreign Affairs and the Ministry of Women and Childrens Affairs to enable early ratification. We hope that the National Human Rights Commission can plan a leading role in advocating for ratification.

Position Paper-Advocacy for Ratification of OP3-CRC