Background

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Access to an effective remedy has been recognized as a fundamental right under international human rights law. Indeed, a large majority of international human rights treaties and conventions recognize access to an effective remedy as a human right, and regional human rights conventions follow the same approach. The Convention on the Rights of the Child and the International Covenant on Economic, Social and Cultural Rights are two exceptions, containing no explicit provisions on the right to an effective remedy. However, the Committee on Economic, Social and Cultural Rights has recognized that those States that have ratified the International Covenant on Civil and Political Rights have an existing legal obligation to ensure access to effective remedies to any person without discrimination1. This, of course, would include children. The UN High Commissioner for Human Rights has confirmed this view, stating that “the right to an effective remedy is an implicit requirement of the Convention [on the Rights of the Child]”. With this background, the Committee on the Rights of the Child has decided to dedicate its 27th General Comment to Children’s Rights to Access to Justice and Effective Remedies (GC27). Indeed, in its concept note for the GC273, the Committee sets forth that:

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“A vast majority of children whose rights are violated do not have access to justice and do not receive remedies following violations of their rights or denial of entitlements. Children’s dependent status, their lack of knowledge about their rights and the capacity to claim them as well as the lack of accessible and effective complaints mechanisms at the local level are immediate barriers. If children do turn to the courts, the fact that legal processes are rarely child-friendly, in addition to the barriers to attaining legal standing in many States, as well as economic, social, and cultural factors, create further impediments for children in pursuing remedies for breaches of their rights.”

 

In its General Comment No. 5, the Committee on the Rights of the Child stated that all children’s rights must be regarded as justiciable, and that it is the role of domestic law to establish adequate measures in detail to enable access to remedy, as well as to the different forms of reparation recognized by international human rights law. This should not be limited to human rights violations committed by State agents, but also cover those caused by private actors, in particular business enterprises.

The UN Guiding Principles on Business and Human Rights (UNGPs), adopted by the Human Rights Council in 2011, are the main international standard on the question of human rights and transnational corporations and other business enterprises. Divided in three pillars, they recognize that States have a duty to protect human rights under international law; that all business enterprises, regardless of their size, sector, or any other characteristic, have a responsibility to respect all internationally recognized human rights; and that victims of business-related human rights abuses have a right to an effective remedy, whether judicial, non-judicial or non-State based.

 

Based on the UNGPs, UNICEF, the UN Global Compact and Save the Children developed in 2012 the Child Rights and Business Principles (CRBPs), which elaborate how child rights can be respected and supported in the context of business activities, particularly in the workplace, marketplace, and community. Indeed, in its first principle, the CRBPs stipulates that all businesses should meet the responsibility to respect children’s rights, including by ensuring that child-sensitive processes are in place to enable remediation. In this regard, it places its focus on the accessibility of operational-level grievance mechanisms to girls and boys, as well as their families and representatives, in line with the effectiveness criteria detailed in UNGP 31.

 

The Committee on the Rights of the Child has also elaborated on the scope of State obligations in the context of business activities with regard to children’s rights. Indeed, in its General Comment no. 16, it reiterated the difficulty for children to access the justice system to seek effective remedies, as well as the importance of operational-level grievance mechanisms as flexible and timely solutions that could be in the child’s best interests to obtain remedy.

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While the UNGPs and the CRBPs are not legally binding, they interpret existing State human rights obligations in the context of business activities; furthermore, they are increasingly being referenced as the basis for the development of national and regional legislation, including in relation to access to remedy. This offers the Committee on the Rights of the Child a window of opportunity to promote alignment of these new legislative standards with the obligations deriving from the Convention on the Rights of the Child. As the Committee of the Rights of the Child is preparing it General Comment #27 on “children’s rights to access to justice and effective remedies”, UNICEF intends to promote a set of consultations and seize this opportunity to gather comments from experts, but also from children and young people, and provide feedback on the basis of challenges and existing good practices in the context of child rights and business and the CRBPs.​

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Objectives

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The consultation will invite different stakeholders to provide their input with respect to specific guiding questions that will be communicated in advance, as well as the concept note of GC 27. In this regard, a short introduction to the concept note of the General Comment No. 27 will be made by a member of the Committee on the Rights of the Child, which will then lead to a moderated discussion with the participants, on the basis of the guiding questions.

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Key questions

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• What elements are critical for ensuring access to justice and effective remedies to all children directly or indirectly affected by business activities? 

• What legislative and policy measures should be taken by States to ensure access to remedy for child rights abuses in the context of business activities, and particularly to remove existing legal and practical obstacles?

• What capacity-building efforts are needed to ensure that States, and businesses, fulfil their respective duties and responsibilities with regard to access to remedy for child rights abuses?

• How can an operational-level grievance mechanism ensure that children that have been directly or indirectly affected by business activities are considered as direct stakeholders? In other words, how can a child rights-based approach be integrated into grievance mechanisms?

• How can children become involved in the design of grievance mechanisms, or in efforts to reform State-based mechanisms, to ensure that their views are duly considered?

• Are there examples of good practice (judicial, non-judicial or operative-level grievance mechanisms) regarding access to remedy for children affected by business activities?

• What has been the experience of regional human rights mechanisms when addressing access to remedy for children? Can these experiences be transposed to the context of business activities?