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Children’s Economic and Social Rights & Finance. Professor Aoife Nolan, School of Law, Nottingham University aoife.nolan@nottingham.ac.uk. Mind the Gap: Children and/or Young People?. ‘Child’ under the UNCRC:

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Children’s Economic and Social Rights & Finance


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children s economic and social rights finance

Children’s Economic and Social Rights & Finance

Professor Aoife Nolan,

School of Law, Nottingham University

aoife.nolan@nottingham.ac.uk

mind the gap children and or young people
Mind the Gap: Children and/or Young People?
  • ‘Child’ under the UNCRC:

‘For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.’

  • Limited focus on adolescents historically in work of the Committee on the Rights of the Child, bar health – but improving.
    • Key gaps remain: Social security? Work?
    • Reflective of historic ‘protectionist’ approach of much child rights work/law?
why look to the crc when considering finance decisions
Why Look to the CRC when considering finance decisions?
  • Imposes legally binding international child rights obligations on UK
  • Reporting mechanism under CRC is a key way to hold the state to account
  • Contains a range of rights relevant to the impact of the crises on children, including economic, social and cultural rights and participation rights
  • Being referred to more and more often in UK law (including jurisprudence) and policy
children s escr under the crc
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 rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts (Article 31)

EVIDENCE THAT ENJOYMENT OF ALL OF THESE RIGHTS HAS BEEN AFFECTED BY THE CRISES AND/OR THE IRISH STATE’S RESPONSE THERETO

so what does the crc say
So What does the CRC Say?

Key Umbrella Provision

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 of international co-operation.

ComRC: ESCR impose a duty of progressive realisation - within maximum available resources

some k ey obligations imposed by art 4 and other escr in the crc maximum available resources
Some Key Obligations Imposed by Art 4 and other ESCR in the CRC: ‘Maximum Available Resources’
  • Real resources – beyond current allocations
    • Need to look at macroeconomic policy (incl taxation)
  • Spending must be sufficient (adequate)
    • Loss of ring-fencing…
  • Spending must be efficient
    • States must channel funding in terms of ESCR-related need (e.g., in UK this would require prioritisation of vulnerable groups of children such as children with disabilities and migrant children)
    • Funding allocated to ESR must be expended for that purpose
  • Funding must be allocated towards smooth administration and management of allocated resources
    • How does this fit with the localism agenda in the UK?
some key obligations imposed by art 4 and other escr in the crc progressive realisation
Some Key Obligations Imposed by Art 4 and other ESCR in the CRC: ‘Progressive Realisation’
  • Refers to progress in actual enjoyment of rights
  • State must show that it is moving as ‘expeditiously and effectively’ as possible to full realisation of rights
  • It involves:
    • expanding ESCR access – larger number of people
    • improving ESCR implementation – wider range of people
  • State must ensure funding/programmatic priority is accorded to the rights of people entitled to special assistance (e.g., children with disabilities, etc)

How does these requirements match up with the post-crises situation of children in UK?

some key obligations imposed by art 4 and other escr in the crc
Some Key Obligations Imposed by Art 4 and other ESCR in the CRC
  • Prohibition on deliberate retrogressive measures (backward steps in rights enjoyment) except in very limited circumstances : ‘require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the [CRC] and in the context of the full use of the maximum available resources’ (see, ComESCR GC No.3, para 9)
  • Need to ensure satisfaction of ‘minimum core obligation’ (minimum essential content related to survival) imposed by ESCR
    • Growth in youth homelessness (16-25) in some areas of England (Homeless Link, 2012)
    • Increased use in foodbanks by youth (18-30) (Trussel Trust, 2011)
non discrimination
Non-discrimination
  • Article 2(1)

‘States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.’

  • But what about non-discrimination between different ages of children in terms of budgets?
  • Lost generation….