‘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 framework (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 ICESCR? – 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 • ADDRESSING THE CRISIS ENTAILS LOOKING BEYOND THE NATION STATE… • How to keep child participation front and centre!!