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Children’s Economic and Social Rights

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International Human Rights of Children

Part of the book series: International Human Rights ((IHR))

Abstract

Recent years have seen a growing understanding of the relationship between poverty and human rights, an explosion in awareness of the status of children as right-holders, and increasing linkages being made between human rights and child poverty in the development context. Galvanized by mounting concerns about the impacts of economic globalization and the 2007–2008 financial and economic crises on children, these developments have unsurprisingly focused academic and practitioner attention on those rights of children that are most directly related to ensuring children’s survival and development needs – namely, children’s economic and social rights (ESR). This chapter focuses on the content of, and obligations imposed by, children’s ESR. It opens by locating ESR under the CRC in terms of the broader international human rights framework on ESR. It then goes on to discuss the duties of States and other actors in terms of those rights, focusing in particular on Article 4 CRC. In doing so, it concentrates in particular on the interaction between the work of the Committee and that of the UN Committee on Economic, Social and Cultural Rights. The chapter concludes with a discussion of what lies ahead for children’s ESR, highlighting crucial challenges, including law’s persistent relative neglect of child ESR, the potential impact of the 2030 Agenda for Sustainable Development, and the ongoing marginalization of children within global society.

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Notes

  1. 1.

    See, e.g., Sustainable Development Goal Target 1.2 on reducing at least by half the proportion of children living in poverty that forms part of (UNGA 2015). For a discussion of child rights and the SDGs, see Sect. 4 below and Arts. in this volume.

  2. 2.

    For more on the impact of the financial and economic crises of 2007–2008 on children, see, e.g., UNICEF (2014).

  3. 3.

    Prior to this, the UN Covenant on the Elimination of All Forms of Racial Discrimination and the UN Covenant on the Elimination of All Forms of Discrimination against Women included provisions requiring States to ensure equality in the enjoyment of economic, social, and cultural rights.

  4. 4.

    Note that the CRC does not specify which rights are ESR. The identification of such in this chapter is based, first, on the inclusion of corresponding rights protections in International Covenant on Economic, Social and Cultural Rights (ICESCR) rather than in the International Covenant on Civil and Political Rights. Where equivalent rights provisions do not appear in those instruments, then I have highlighted those with ESR elements.

  5. 5.

    For more on Article 31 as economic, social and cultural in nature see Lott forthcoming.

  6. 6.

    It should be noted that while the thematic Optional Protocols to the CRC contain provisions that are ESR-related (e.g., Article 6(3) and 7 of the Optional Protocol on the Involvement of Children in Armed Conflict and Article 10 of the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography), these will not be addressed in this chapter.

  7. 7.

    That is not to suggest that this should be the position of children – or all children – with regard to the delivery of social security-related goods and services. The position of child-headed households, for instance, demonstrates that for children to enjoy the right to social security, it is crucial children (or some children at least) be provided with such goods and services directly.

  8. 8.

    Article 10(3) states that “Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labor should be prohibited and punishable by law.”

  9. 9.

    The particular position of children as ESR-holders is dealt with in detail in Nolan (2011, 13–21).There are undoubtedly groups of adults within society that are at least as vulnerable as children due to having a disability, being pregnant, older, or illiterate in a developed country, etc. The observations below are based on a comparison of the relative situation of an adult of reasonable good health and education by the standards of the society of which she forms part with that of an average child in the same society.

  10. 10.

    This point is made explicit by the Committee in its CRC/C/GC/19 (2016b, para 25).

  11. 11.

    The Committee also engaged to a limited extent with ESR or aspects thereof in its General Comment No. 4 on adolescent health and development in the context of the Convention on the Rights of the Child, UN Doc CRC/GC/2003/4 (2003b), and General Comment No. 3 on HIV/AIDS and the rights of the child, UN Doc CRC/GC/2003/3 (2003c).

  12. 12.

    For details of the call for submissions and information on the detailed scope and proposed structure of the General Comment, see: http://www2.ohchr.org/english/bodies/crc/callsubmissionsCRC.htm

  13. 13.

    For the sake of transparency, it should be noted that the author was one of the experts consulted in the production of General Comment No. 19 and played a significant role in relation to the drafting of the elements of that document focused on ESR obligations.

  14. 14.

    The chapter does not however engage with statements made by the Committee in its Concluding Observations on ESR. General Comments are useful authoritative interpretations of the obligations under Article 4. In contrast, statements made in Concluding Observations are frequently context-specific and shaped by the situation under consideration. On that basis, and given the length constraints of this chapter, it is more sensible to focus attention on the General Comments.

  15. 15.

    For a discussion of some of the differences between the wording of Article 2(1), ICESCR and Article 4, CRC, see Rishmawi (2006, pp. 3–8).

  16. 16.

    The ComRC also said that spending should be in line with the budget principles outlined in that General Comment (CRC/C/GC/19 2016b, para 28).

  17. 17.

    For similar language from the ComESCR in the context of the obligation “to take steps,” see its General Comment No. 3 on the nature of States Parties’ obligations (Art. 2 (1)), UN Doc. E/1991/23 (1990), para. 2.

  18. 18.

    See also CRC DGD (2007, para 47). This point is reflected implicitly in the work of the ComESCR, see ibid.

  19. 19.

    In its General Comment No. 3, ComESCR states that “any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources” (ESCR GC3 1991, para. 9). This language is echoed in a number of other General Comments (E/C.12/GC/21 2009, para 65; E/C.12/GC/19 2008, para. 42; E/C.12/GC/18 2005, para. 21; E/C.12/GC/17 2006b, para. 27; ESCR GC15 E/C.12/2002/11 2003, para. 19; ESCR GC14 E/C.12/2000/4 2000, para. 32; and ESCR GC13 E/C.12/1999/10 1999, para. 45). Some of these statements also set out the requirement to ensure “there has been the most careful consideration of all alternatives” (E/C.12/GC/19 2008, para. 42; E/C.12/GC/18 2006a, para. 21; E/C.12/GC/17 2006b, para. 27; ESCR GC15 E/C.12/2002/11 2003, para. 19; ESCR GC14 E/C.12/2000/4 2000, para. 32; and ESCR GC13 E/C.12/1999/10 1999, para. 45), as well as a requirement of “independent review” (E/C.12/GC/19 2008, para 42). A number of other General Comments have highlighted that the adoption of any retrogressive measures incompatible with the “core obligations” under the Covenant would be impermissible (see ESCR GC15 E/C.12/2002/11 2003, para. 42; ESCR GC14 E/C.12/2000/4 2000, para. 48). General Comment No. 22 speaks of States having the “burden of proving” the necessity of such measures but then cites General Comment 14, para 32, so it seems unlikely that this language is meant to constitute an additional justificatory element for States (E/C.12/GC/22 2016, para 38). The Committee has also specified the need for genuine participation of affected groups in examining proposed measures and alternatives (E/C.12/GC/19 2008, para 42).

  20. 20.

    For more on this letter and the ComESCR’s work on retrogression more generally, see Nolan et al. (2014).

  21. 21.

    For an overview of “participatory budgeting” work, see the resources at www.internationalbudgetproject.org. For more of the ComRC’s work on this, see CRC/C/GC/19 (2016b, esp. pars 52–57), supplemented by the discussion in Nolan (2013).

  22. 22.

    The Committee stated that, “The Committee on Economic, Social and Cultural Rights has systematically underlined this obligation of States, to guarantee at all times, the minimum level of protection (the minimum core content) in the provision of: essential foodstuffs, equal access to primary health care, basic shelter and housing, social security or social assistance coverage, family protection, and basic education” (CRC DGD 2007, para. 48). In fact, the ComESCR stated that: “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State Party. Thus, for example, a State Party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant” (ESCR GC3 1991, para. 10).

  23. 23.

    The Committee did, however, appear to confuse the ComESCR’s approach to the issues of “maximum available resources” and “minimum core obligations” somewhat, stating in the context of its discussion of the latter that “where the available resources are demonstrably inadequate, the State concerned is still required to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances” (ibid.). In contrast, the ComESCR made this point about with regard to the enjoyment of ESR generally – not just the “minimum core” of those rights (ESCR GC3 1991, para. 11).

  24. 24.

    The Committee has adopted this approach in its General Comments since 2000. See, e.g., ESCR GC14 E/C.12/2000/4 (2000); ESCR GC15 E/C.12/2002/11 (2003); E/C.12/GC/17 (2006b); E/C.12/GC/18 (2006a); E/C.12/GC/19 (2008); E/C.12/GC/21 (2009).

  25. 25.

    For more on these obligations under ICESCR, see Koch (2005).

  26. 26.

    Prior to General Comment No. 19, the ComRC had not always explicitly used the definitions of these obligations adopted by the ComESCR. See, e.g., General Comment No. 15 where the ComRC states that the obligation to fulfill entails “facilitation” and “provision” (at para. 71). This is despite the fact that the ComESCR has made it clear that “promotion” is also a key element of that duty in the context of health (see ESCR GC14 E/C.12/2000/4 2000, para. 37 and footnote 23). The approach in General Comment 19 can thus be regarded as being somewhat of a “correction” in terms of previous practice on this point.

  27. 27.

    For an expert overview of the extraterritorial obligations imposed by ESR generally, including those imposed by Article 4, see De Schutter et al. (2012). For more on the ComESCR’s work around the obligation of international cooperation, see various contributions in Langford et al. (2013b). For a thoughtful analysis of how Article 4 should work in terms of the fulfillment of children’s ESR, see Nyongesa Wabwile (2010).

  28. 28.

    While this comment was made in the context of the right to the highest attainable standard of health, it is true of all ESR.

  29. 29.

    For more on the Committee’s views on steps that IFIs and the WTO should take, see CRC DGD (2007) on resources, para 52(d) and (e).

  30. 30.

    For more on privatization and child ESR, see Nolan (2018).

  31. 31.

    For more on domestic child ESR jurisprudence, see Nolan (2011). For more on regional child ESR jurisprudence, see Nolan and Kilkelly (2016).

  32. 32.

    Evidence of the extent to which ESR remain unprioritized by States working at an international level is made clear through the comparative neglect of such rights in the recommendations to States emerging from the Human Rights Council Universal Periodic Review process (see, e.g., CESR 2016). For evidence of the greater attention paid to civil and political rights at a regional level, see Nolan and Kilkelly (2016). For evidence of how civil and political rights remain more predominant in national constitutional human rights provisions than ESR, see the following databases: www.constituteproject.org and www.tiesr.org/data_cr.html, accessed 6 December 2016.

  33. 33.

    For more on Agenda 2030 and children’s rights, see Arts’ in this volume.

  34. 34.

    The threat of “rights blindness” in terms of the implementation of the SDGs is perhaps unsurprising in light of the general exclusion of rights language and concepts in the Millennium Development Goals and the work around them. See, e.g., Langford et al. (2012); Alston (2005).

  35. 35.

    For more on the social, legally and economically constructed obstacles faced by children in the exercise of their ESR, see Nolan (2011).

  36. 36.

    Here, the Committee stated that “It is generally challenging for children to obtain remedy – whether in the courts or through other mechanisms – when their rights are infringed upon, even more so by business enterprises. Children often lack legal standing, knowledge of remedy mechanisms, financial resources, and adequate legal representation.”

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Authors and Affiliations

  1. School of Law, The University of Nottingham, Nottingham, UK

    Aoife Nolan

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  1. Aoife Nolan
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Editors and Affiliations

  1. School of Law, University College Cork, Cork, Ireland

    Ursula Kilkelly

  2. Leiden Law School, Leiden University, Leiden, The Netherlands

    Ton Liefaard

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Nolan, A. (2019). Children’s Economic and Social Rights. In: Kilkelly, U., Liefaard, T. (eds) International Human Rights of Children. International Human Rights. Springer, Singapore. https://doi.org/10.1007/978-981-10-4184-6_10

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