UN Committee on the Rights of the Child acts beyond its authority: Analytical Report 2014
The new Report by FamilyPolicy.ru documents ultra vires actions of the UN Committee on the Rights of the Child - including its 2014 concluding observations on the Holy See and Russia – providing their in-depth analysis.
Executive Summary
The present Report deals with issues around the actions of the UN Committee on the Rights of the Child charged with overseeing the implementation of the Convention on the Rights of the Child.
Particular attention is given to past ultra vires (beyond its authority) acts by the Committee. The Report notes with concern that many CRC acts can be viewed as being:
- contrary to the principle of sovereign equality of UN member States (Article 2 of the UN Charter);
- beyond the mandate of the Committee;
- contrary to or not based on intergovernmental consensus.
In particular, its acts included:
- pressuring states to change their abortion laws irrespective of intergovernmental consensus and with no foundation in international human rights instruments;
- indirectly promoting controversial concepts with no established intergovernmental consensus behind them (legalising same-sex sexual relationships, legal recognition of same-sex marriages and partnerships, decriminalisation of prostitution);
- demanding that states should give children sexuality education regardless of and access to reproductive health services regardless of and without parental consent and knowledge, with no basis in the UNCRC or other international human rights instruments whatsoever and contrary to the Cairo Programme of Action and the Beijing Platform for Action (both showing a degree of intergovernmental recognition at the UN level);
- using an ultra vires (beyond its authority) interpretation of the UNCRC to unlawfully introduce a new ‘obligation’ for the states parties (to outlaw any parental corporal punishment of children) not following from the UNCRC itself, and then demanding compliance, up to the point of changing their national legislation;
- demanding of states (contrary to the principle of the sovereign equality of states and with no basis in the UNCRC) ratification of international agreements hitherto not signed by them.
- unlawfully interfering in religious freedoms.
All these acts (documented in the Appendix), regardless of their ethical assessment, are shown to be ultra vires and must be recognised as violating the principle of sovereign equality and exceeding the treaty monitoring body mandate. The Committee’s ultra vires acts, though not directly legally binding, seriously affect the legal regime in the states parties to the UNCRC. They affect national law enforcement practice, changes to national legislation, and influence legally binding decisions by other international bodies.
Such ultra vires acts by the Committee must, nevertheless, be recognised as internationally illicit and, therefore, null and void.
Ultra vires acts by the Committee can seriously threaten the sustainability of international human rights framework, the sovereignty of the states parties, the cultural identity of their peoples, and the standing of the family, which is ‘the natural and fundamental group unit of society and is entitled to protection by society and the State’ (Article 16(3) of the Universal Declaration of Human Rights), and, therefore, by the international community.
In these circumstances it is deemed inappropriate and dangerous for the states parties to grant the Committee new powers by signing and ratifying the Optional Protocol to the Convention on the Rights of the Child on a communications procedure (A/RES/66/138).
A special section of the Report highlights specific problems inherent the Protocol, such as:
- procedural flaws in its development;
- its undermining of domestic legislation and judicial systems;
- its erosion of the exhaustion of domestic remedies rule;
- its potential belittlement of the value of the family.
The Report points out that to remedy the situation created by the Committee’s ultra vires acts, legitimately concerned states parties can employ a number of means, such as:
- exercising their right to issue interpretative declarations on the UNCRC;
- exercising their right to point out the limits of the Committee’s mandate in replying to its requests for additional information related to periodic reports, as well as in other kinds of official statements;
- warning the Committee of the possibility of their denunciation of the UNCRC in case a relevant reform of its activities does not take place;
- refusing to ratify the Optional Protocol to the Convention on the Rights of the Child on a communications procedure until a relevant reform of the Committee is taken place;
- actively participating in reforming UN treaty bodies to bring their activities into strict conformity with their mandates, to give it greater transparency, and to bring it under more effective states parties’ control.
These means can, after due assessment of the consequences of their implementation, be employed at the discretion of states to protect the rights of their sovereign peoples, the family, and their cultural, religious, and moral identity.
Apart from containing additional information on the Committee’s activities post-2012 (including its 65th session), the present revised version of the Report has been substantially restructured for improved readability and expanded with new sections on various issues, miscellaneous addenda, as well as a special Appendix containing excerpts from CRC documents published in 2012-2014.
Download the complete Report (pdf)
