Exploding Myths around Childrens Economic, Social and Cultural - - PowerPoint PPT Presentation

‘Exploding Myths around Children’s Economic, Social and Cultural Rights (ESCR)’

Professor Aoife Nolan aoife.nolan@nottingham.ac.uk

What Are We Talking About? Children’s ESCR under the CRC

– State duty to ensure to the maximum extent possible the survival and development of the child (Art. 6) – Right of disabled children to special care (Art. 23) – Right to the enjoyment of the highest attainable standard of health (Art. 24) – Right to benefit from social security (Art. 26) – Right to a standard of living adequate for the child's physical, mental, spiritual, moral and social development (Art. 27) – Right to education (Arts 28, 29) – Right to the enjoyment of the child’s own culture (Art. 30) – Right to rest, leisure, play and to participate in cultural life and the arts (Art. 31)

What Duties Do Children’s ESCR Impose?

Key obligation:

• Article 4: States Parties shall undertake all appropriate

legislative, administrative, and other measures for the implementation of the rights recognized in the present

• Convention. With regard to economic, social and

cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework

• f international co-operation.

Primary duty of progressive realisation - within maximum available resources

Key ESCR Obligations under CRC As Set Out by the Committee

• States must ‘progressively realise’ ESCR – states must show that

they are moving as ‘expeditiously and effectively’ as possible to full realisation of ESCR (Art. 4)

• States must use the ‘maximum’ of the resources available to them –

this means real resources, not just current allocations (Art. 4)

• States must ensure children enjoy minimum essential level of ESCR

(‘minimum core obligations’) (Art. 4)

• Prohibition on deliberate retrogressive measures (i.e., backwards

steps) except in very limited circumstances (Art. 4)

• States must shall ‘respect’ and ‘ensure’ children’s ESCR without

discrimination of any kind (Art. 2)

• The most vulnerable children must be prioritised in state efforts to

realise ESCR (Art. 2)

• States must respect, protect and fulfil ESCR (multiple General

Comments)

Key Myths About Children’s ESCR – A Comparison With the Rights We Have Under UK Law

• ESCR impose exclusively positive obligations, while civil and political

rights (CPR) only give rise only to positive ones

– Compare obligations imposed by right to a fair trial (Art. 6 ECHR) vs prohibition on forced evictions in terms of right to an adequate standard of living (Art. 27 CRC)…

• ESCR are resource dependent and impracticable where resources

are limited, while CPR are costless and immediately realisable

– Since when have CPR been costless (e.g., child protection system required to give effect to Arts 2 and 3 ECHR) ?

• ‘Vague’ ESCR are inherently so indeterminate as to be incapable of

judicial enforcement (unlike ‘precise’ CPR)

– Compare right to highest attainable standard to health (Art. 24 CRC) vs vague right to respect for private life and family life (Art. 8 ECHR)

Key Myths About Children’s ESCR

• ESCR will lead to the displacement of the family

– State has key supplementary and supportive role in terms of the CRC (Art. 18 and 27)

• ESCR will place an impossible burden on the Treasury

– Fundamental misunderstanding of ‘maximum available resources’ – State not required to do more than it can!

• If we have legally enforceable ESCR, this will result in a violation of

the separation of powers doctrine as it involves the courts exercising functions of the other branches of government

– But court decisions in non-ESCR areas also often have implications for budgetary allocations or policy-making

• Legally enforceable ESCR are ‘undemocratic’

– What about other rights? – And what about the fact that children don’t have a say in democracy?

• Floodgates argument…

Key Things to Keep An Eye On In Terms

• f Addressing Myths
• Committee General Comment on Public Spending on

Children’s Rights ( forthcoming 2015)

• New Optional Protocol (OP3) establishing a complaints

mechanism to the CRC

– But are ESCR a barrier to UK signing up?

• OHCHR, ‘Towards a Better Investment in the Rights of

the Child’ (March 2015) All will provide: (i) clarification of obligations imposed by ESCR and (ii) detail on how ESCR standards should apply in relation to policy and law-making development and implementation in practice.