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States’ Compliance to International Treaties

Louis Bodmer

3. Treaty Accountability Network: UNCRC Analysis

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3.1. Accountability mechanisms stemming from the UNCRC and its related protocols

1The UNCRC and its related protocol establish several legal provisions on how to hold state parties accountable to the Convention. I highlight the main dispositions that pertain to my research question and first hypothesis.

2I first analyze the UNCRC itself, and then examine the three additional protocols.

3In the UNCRC, articles before article 42 focus on the rights of the child strictly speaking, while in those following article 42 there are provisions concerning the procedures and obligations regarding the Convention’s implementation.

4The most important mechanism developed by the Convention is the creation of the UN Committee on the Rights of the Child (hereafter the Committee), composed of 18 child rights experts from different countries. These experts are elected by states but do not represent a specific state, instead acting as individuals (UNICEF, 2020b). Article 43 establishes the Committee and details its functioning, notably the election of its members. Article 44 explains the procedure of submission by states of their reports on the measures adopted regarding the UNCRC (UN, 1989, p. 12). According to this article, states have to submit a report within 2 years after the Convention has entered into force in the country and every 5 years after that (UN, 1989, p. 13). This constitutes an interesting example of direct accountability. In §2, the Convention states precisely what government reports must include:

[They] shall indicate factors and difficulties, if any, affecting the degree of fulfilment of the obligations under the present Convention. Reports shall also contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned. (UN, 1989, p. 13)

5Interestingly, article 43 §8 mentions:

The Committee warmly welcomes international, regional, national and local organizations to submit written reports on how the Convention is being implemented in a country. Information may be submitted by individual NGOs or coalitions of NGOs, as well as by NHRIs and Ombudspersons. Importantly, the Committee greatly welcomes submissions by children. It encourages civil society to coordinate and submit joint comprehensive reports to strengthen national-level cooperation and enhance the impact of the monitoring and reporting process. (OHCHR, 2020a)

6These are important mechanisms of social accountability that enable direct or indirect accountability towards states via the Committee.

7The guidelines on the implementation of periodic reviews further codifies the scope of the intervention of third-party actors, notably by setting rules on how to apply to intervene to the Committee (OHCHR, 2020d, p. 1). This is a complementary mechanism to the redaction of quinquennial reports to states and it improves the network of actors able to address the Committee, which thus can be understood as part of the TRAN.

8Article 44 §5 raises the point that the Committee reports to the UN General Assembly (UNGA) on its activities, through the Economic and Social Committee (ECOSOC) (UN, 1989, p. 13). Thus, the Committee is also accountable and cannot lie with impunity. Another important point is noted by the Convention in §6, as it states tha’ “'States Parties shall make their reports widely available to the public in their own countries” (UN, 1989, p. 13). This corresponds to the community feedback indicator which is included in the conceptualization of accountability.

9An interesting part comes in article 45 as the Convention urges state parties to international cooperation in fields covered by the Convention. Interestingly, it assesses the need for states to engage in discussions with

specialized agencies, the United Nations Children’s Fund, and other United Nations organs [which] shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention. (UN, 1989, p. 15)

10This depicts well the TRAN created around the UNCRC and its protocols as well as the prominent role of UNICEF for the Convention. Furthermore, civic engagement, which is present here, is an indicator of accountability. The Convention also states that the

Committee may invite the specialized agencies, the United Nations Children’s Fund and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. (UN, 1989, p. 15)

11Here, competent bodies can be NGOs and other actors considered as part of my comprehension of the treaty accountability network. Therefore, it corresponds to my hypothesis of having a broad panel of actors surrounding the Convention. Article 45 also states that the Committee “may invite [them] […] to submit reports on the implementation of the Convention in areas falling within the scope of their activities” (UN, 1989, p. 15). This is a good illustration of a direct accountability mechanism created by the UNCRC because it permits stakeholders to provide their point of view on certain situations. Thereby, the special role of UNICEF supports my approach to analyze UNICEF as a case study.

12Below is a map of the state of ratification of the UNCRC in the world. As can be seen, this Convention is ratified by all states but the United States of America which has only signed it. This adds to the relevance of my study to analyze a treaty accountability network related to one of the most ratified international covenants.

Fig. 5: Ratification status of UNCRC (2020) (Source: OHCHR, 2020 (C))

13I now analyze the provisions on accountability to the Optional Protocol (OP) of the UNCRC on the involvement of children in armed conflict which was adopted in 2002.

14The OP mentions that there is a need for cooperation on technical and financial issues between states and “relevant international organizations” (OHCHR, 2002a, p.239) in article 7 §1. States can also tackle issues raised by the O’ “'through existing multilateral, bilateral or other programmes, or, inter alia, through a voluntary fund established in accordance with the rules of the General Assembly” (OHCHR, 2002a, p. 239), according to §2. This can also relate to asking the TRAN to tackle issues. Thus, it reflects the multidirectionality of accountability among TRAN actors because it refers to back and forth movements among them, notably to provide assistance. The OP is included in the state reports that need to be submitted for the UNCRC to the Committee. Governments therefore need to account also for the specific subjects relative to the involvement of children in armed conflicts in the same report, according to article 8 §1-2. In §3, the OP adds a mechanism such that the Committee has the power to request more information from state parties (OHCHR, 2002a, p. 240).

15There are 170 states that have ratified the Optional Protocol while 10 are signatories.

Fig. 6: Ratification status of Optional Protocol to the UNCRC on the involvement of children in armed conflicts (in 2020) (Source: OHCHR, 2020c)

16The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (OP2) entered into force in 2002. It aims to regulate and ban child prostitution, pornography and sale.

17In article 8 of OP2, the need to inform is clearly stated,

[a]llowing the views, needs and concerns of child victims to be presented and considered in proceedings where their personal interests are affected, in a manner consistent with the procedural rules of national law. (OHCHR, 2002b, p. 251)

18This opens up a door for children to be heard. OP2, as the earlier OP, reaffirms the need to promote awareness about the related topic in article 9 §2. Interestingly, it adds that

States Parties shall encourage the participation of the community and, in particular, children and child victims, in […] information and education and training programmes, including at the international level. (OHCHR, 2002b, p. 252)

19This element fosters the creation of mechanisms to link local to international levels, promoting the inclusion of children and communities’ voices. Fostering participation resonates with accountability mechanisms and is also part of children’s empowerment. OP2, in article 10 §1, raises the necessity for states parties to cooperate internationally with other states but also with NGOs and IOs (OHCHR, 2002b, p. 252). This goes in the direction of my second hypothesis that numerous actors, and, particularly IOs and NGOs, have an important role to play to enable cooperation in this case, and become vehicles of accountability.

20Finally, OP2 also reaffirms, in article 12 §1-3, the need to submit, as part of the quinquennial report, the progresses and measures taken to implement OP2 (OHCHR, 2002b, p. 253).

21Below is the ratification status of the second Optional Protocol at the global level. Only 12 states are not signatories and 9 are signatories but did not ratify it.

Fig. 7: Ratification status (in 2020) of Optional Protocol on the Convention on the Rights of the Child on Sale of Children, Child Prostitution and Child Pornography, (Source: OHCHR, 2020c).

22The last Optional Protocol (OP3) on a Communication Procedure – (Raising Understanding among Children and Young People) entered into force in 2014. This protocol provides the most salient mechanisms for my research because it establishes further pathways for groups and individuals to communicate with the Committee. This mechanism is clearly stated in article 5 §1 and stipulates that communications can be submitted either directly or indirectly:

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 of any of the rights set forth in any of the […] instruments to which that State is a party. (OHCHR, 2014, p. 3)

23This article demonstrates the aim to provide indirect accountability mechanisms by going through the Committee to hold states accountable regarding the UNCRC and the OPs. Moreover, it takes into account the possibility that individuals would need to gather into groups (supposedly with the help of NGOs or IOs) to reach the Committee. Furthermore, it adds that if the communication is sent on behalf of an individual or a group, it has to be with the consent of the individual(s) in cause (OHCHR, 2014, p. 3). Thus, article 5 provides a tool that completes the UNCRC and the two other protocols as it creates new mechanisms for individuals and groups to communicate with the Committee. This can be considered as an indirect mechanism of accountability as well since it is clearly stated in article 8 §1 that

[t]he Committee shall bring any communication submitted to it under the present Protocol confidentially to the attention of the State party concerned as soon as poss’ble'. (OHCHR, 2014, p. 5)

24At the same time, OP3 reaffirms in article 10 §5 that the Committee will, “without delay, transmit its views on the communication, together with its recommendations, if any, to the parties concerned” (OHCHR, 2014, p. 5). Once communicated, states have to submit an explanation regarding the specific situation within 6 months (OHCHR, 2014, p. 5).

25Article 11 also adds provisions on follow-up measures for states parties. In case of systemic or grave violations, article 13 states that the Committee

shall invite the State party to cooperate in the examination of the information and, to this end, to submit observations without delay with regard to the information concerned. (OHCHR, 2014, p. 6)

26Moreover, the Committee may visit the state in question to analyze the situation in the field (OHCHR, 2014, p. 6). This provision, even though it might appear to be soft, is still a mechanism of surveillance of states and can be used, for instance to blame and shame states when they do not comply with their obligations.

27Article 15 also raises the need for international assistance and cooperation. It invites states to cooperate with UN agencies, funds and programs in §1. This is also an interesting example of how the TRAN is constituted. The Committee may transmit a situation, with the consent of the state party concerned, to cooperate and communicate with

United Nations specialized agencies, funds and programmes and other competent bodies its views or recommendations concerning communications and inquiries that indicate a need for technical advice or assistance, together with the State party’s observations and suggestions, if any, on these views or recommendations. (OHCHR, 2014, p. 7)

28As can be seen below, OP3 is not as widely ratified as the two others the UNCRC. This may result from several reasons such as the recency of it or, as Anne Grandjean from UNICEF argues, because most adults do not recognize children as full rightsholders since that would challenge their authority (UNICEF, 2021). Only 46 states have ratified this protocol, mostly in Europe and South America, while 18 states have signed but not ratified it, notably in Eastern Europe and Sub-Saharan Africa.

Fig. 8: Ratification status (in 2020) of Optional Protocol to the Convention on the Rights of the Child on a communications procedure (Source: OHCHR, 2020c).

3.2. Actors surrounding the UNCRC

29As seen in the analysis of the UNCRC and its related protocols, different actors are directly involved in holding states accountable for their commitments. The Convention and its OPs mention the role of international organizations, non-governmental organizations and individuals, groups, communities, civil society actors and experts. International, national and local level organizations play a role as well. These actors have the possibility to engage with the Committee on the rights of the child and plead their cause or advocate for one. Moreover, Child Rights Connect, which is an association that federates several NGOs working on child rights, is able to foster any of the above-mentioned actors to engage with the Committee (OHCHR, 2020a). These actors specifically surround the Committee because it is the central organ to supervise the Convention. Regarding other actors’ involvement surrounding the UNCRC and its protocols, I may find them while analyzing IOs, NGOs and states’ policies and mechanisms.

30To sum up this first part of the analysis, taking into account the indicators of each concept, it is salient to affirm that many of the concepts I hypothesized are present empirically. Firstly, the presence of a TRAN is ubiquitous in the UNCRC and its OPs. Indeed, the Convention states multiple times that states have to collaborate with other actors. It mentions the UN specialized agencies, such as UNICEF and other relevant actors, which obviously includes other actors such as NGOs. It is also stated that local, regional or international organizations have the opportunity to raise their voice to the Committee. Hence, these actors are given by the Convention and its OPs a role as members of a TRAN. Secondly, there are, in the UNCRC and the OPs, numerous references to the direct accountability of states regarding their obligations and the most relevant mechanism is that states have to submit a report every five years to the Committee on the Rights of the Child. Another example of direct accountability is the one from the Committee to the UNGA, which demonstrates that the Committee itself is not operating with impunity as well and reflects the multidirectional aspect of accountability. Thirdly, there are also examples of indirect accountability mechanisms, notably because the Committee welcomes different actors, such as international, local or regional organizations. Thus, these organizations have the opportunity to go through the Committee to hold states accountable. Fourthly, this indirect accountability opportunity for organizations and, also for individuals (namely in the OP3) to be heard by the Committee is also salient evidence of accountability which coincides with the indicator of civic engagement. In OP3, accountability mechanisms are even more developed as the protocol gives citizens and individuals access to hold their states accountable indirectly through the Committee. Moreover, the mention in OP2 that “states shall encourage the participation of the community and, in particular, children and child victims” (OHCHR, 2002, p.252 (B)) in different programs and decision-making is strong evidence of accountability mechanisms as I have theorized them. It also refers to the indicators of empowerment that aim to provide space, voice and influence on decision-making for children. Finally, it is possible to assume that peer accountability occurs when the Committee reviews a country’s submission. However, this is not mentioned clearly and it would be too assertive to affirm its presence here without proper evidence.

31To conclude, this first analysis provides interesting insight into the TRAN of the UNCRC, the mechanisms developed by the Convention and its OPs. Furthermore, it provides a compelling look at the TRAN as a multi-directional path as actors may reinforce and work together in multiple ways and not only hold each other accountable. However, it does not assess the specific direct and indirect mechanisms created by these actors to hold each other accountable without going through the Committee.

Fig. 9: Summary of TRAN and mechanisms developed by the UNCRC


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