*Maximising Available Resources? The international child rights

‘Maximising resources? The
International Child Rights Response
to the Economic Crisis’
Professor Aoife Nolan
School of Law, University of Nottingham
[email protected]
Key themes
A slow start…
Why does this slow start matter?
Recent progress
What does the Committee still have to do?
A slow start…
• Historic failure of ComRC (and indeed the
ComESCR) to engage in depth with economic
policy in its work
• Historic failure of the Committee to outline a
convincing child-specific ESR framework
• Inevitable delay before the ComRC was faced
with post-crisis data from states
• Ongoing reluctance to link specific austerity
measures with specific obligations…
Why does this slow start matter?
• Failure to identify rights impacts of austerity –
resulting in non-conception of austerity in
child rights terms
• Failure to provide guidance to states on child
rights parameters of austerity measures
• Failure to provide advocacy tools to child
rights advocates with regard to both national
and supranational austerity agendas.
Recent progress
• ComRC engaging with austerity measures in its
Concluding Observations (e.g., compare Spain:
COs 2010 with Croatia: COs 2014)
• UN actors’ growing awareness of need to engage
with economic policy, budgeting and child rights
– ComRC General Comment on Public Spending on
Children’s Rights (2015)
– OHCHR, ‘Towards a Better Investment in the Rights of
the Child’ (March 2015)
• What does the Committee still have
to do to ensure meaningful child
rights protection in the context of
both the contemporary crisis and
futures ones?
(1) Specify what children’s rights may
require in terms of economic policymaking
• CRC doesn’t prescribe a particular economic model. But
child rights have a lot to say about economic decisionmaking processes and outcomes
• Key provisions: Article 4 CRC and economic and social rights
– States must ‘progressively realise’ rights – states must show that
they are moving as ‘expeditiously and effectively’ as possible
to full realisation of rights
– States must use the ‘maximum’ of the resources available to
them – this means real resources, not just current allocations
– States must ensure children enjoy minimum essential level of
rights (‘minimum core obligations’)
– Prohibition on deliberate retrogressive measures (i.e.,
backwards steps) except in very limited circumstances
(1) Specify what children’s rights may
require in terms of economic policymaking
– The most vulnerable children must be prioritised in
economic policymaking and relevant budget lines
must be protected even in times of economic crisis
– In times of fiscal constraint, efforts must be made to
sustain and expand social investment and social
protection of those in the most vulnerable situations
and to employ an equitable approach, giving priority
to children
– Provide impact assessment of austerity measures
that directly or indirectly affect children’s rights
Based on work of ComRC and ComESCR – MUCH MORE
LEFT TO DO! Where are the obligations?
(2) Consider rights-compliant
alternatives to austerity
• Challenge claims re the resources available to
states for the realisation of children’s rights
– including encouraging state to move from expenditure
contraction to developing fiscal space by
Re-allocating current public expenditures
Increasing tax revenue through progressive taxation
(Re)thinking about monetary policy
Borrowing or restructuring existing debt
Adopting a more accommodating macroeconomic
(Ortiz et al, 2011; Ortiz & Cummins, 2012; CWGL, 2011)
(3) Answer outstanding questions
about the CRC ESR framework
• Clarify what differences (if any) there are between the
ICESCR and the CRC ESR frameworks
• Address the following questions:
– Should the ComRC be more assertive in interpreting the
CRC as imposing immediately enforceable ESR
entitlements than the ComESCR has been vis-à-vis
– Should the ComRC outline a more extensive minimum
core of ESR under the CRC?
– Should the ComRC state that CRC ESR require that child
rights (or the minimum core thereof) should be accorded
priority over those of others in state efforts to satisfy the
ESR (or the minimum core thereof) of ‘everyone’?
(3) Answer outstanding questions
about the CRC ESR framework cont.
• Address the following questions:
– Should the ComRC interpret CRC ESR as imposing
a higher budget of proof on states with regard to
permissibility of backward steps in ESR enjoyment
than is the case under ICESCR?
– The burning issue of age discrimination…
(3) Answer outstanding questions
about the CRC ESR framework cont.
• Address the scope of extra-territorial obligations (e.g,
in the context of (i) state cuts to development
assistance and (ii) the obligations of countries who are
members of international organisations such as the EU
and IFIs) – building on building on GC No.16, paras 4748; the Maastricht Principles on ETOs
• Address the scope of the obligations of non-state
actors including (i) international organisations (e.g.,
‘the troika’) (ii) private service providers
• How to keep child participation front and centre!!