Economic and social rights, budgets and the convention on the rights of the child

International Journal of Children's Rights

Volumn 21, Issue 2, 2013, Pages 248-277

  Nolan, Aoife ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

Author keywords

Budget analysis; Budgets; Child rights; Children's rights; Convention on the Rights of the Child; CRC; Economic and; Economic policy; Maximum available resources; Minimum core; Progressive realization; Social rights; Socio economic rights

Indexed keywords

EID: 84893491107     PISSN: 09275568     EISSN: 15718182     Source Type: Journal    
DOI: 10.1163/15718182-02102003     Document Type: Article

References (201)

1. Italics inserted by author.
2. The ICESCR makes explicit reference to children in one of its provisions, with Article 10 providing that: 'the States Parties to the present Covenant recognise that: 1.
3. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses. 2.
4. Special protection should be accorded to mothers during a reasonable period before and after childbirth.
5. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.'
6. However, the use of the language 'everyone' elsewhere in ICESCR makes it clear that all of the rights in that instrument apply to children.
7. For a more extensive discussion of many of the issues raised in this section, see A. Nolan, Children's Socio-economic Rights, Democracy and the Courts (Oxford: Hart Publishing, 2011), Chapter 1.
8. See, e.g., the right to life, survival and development (Article 6) and the right to the child to rest, leisure, play, recreational activities, cultural life and the arts (Article 31 CRC). Neither of these rights is found in ICESCR.
9. Wringe, C., Children's Rights: A Philosophical Study (London and Boston, Routledge and Kegan Paul, 1981), 135-6.
10. ComRC General comment No. 16 on State obligations regarding the impact of the business sector on children's rights, UN Doc. CRC/C/GC/16 (2013), para. 4.
11. For examples of the Committee's recognition of these points, see ibid.
12. For a comparison of the position of children vis-à-vis other vulnerable groups in society, see Nolan above n.4, Chapter 1.
13. See, e.g., Articles 5 and 14(2), CRC.
14. The Committee has noted that 'there is no simple or authoritative division of human rights in general or of Convention rights into two categories' and has emphasised the interdependence and indivisibility of all human rights.
15. ComESCR General Comment No.5 on General Measures of Implementation of the Convention on the Rights of the Child (Arts. 4, 42 and 44, para. 6), UN Doc CRC/GC/2003/5 (2003), para. 6).
16. This is based on a consideration of those rights (and elements of rights) in the CRC that are reflected in ICESCR.
17. Interestingly, a provision outlining the right to food was submitted to the 1983 session of the open-ended Working Group on the Question of a Convention on the Rights of the Child by Algeria but was ultimately not considered by that body, see UN Doc. E/CN/4/1983/62, Annex II.
18. See, e.g., Articles 18(2), 23(2) and 27(3) CRC.
19. For a consideration of non-state actors in the context of a specific ESR, see ComRC General Comment No.
20. on the right of the child to the enjoyment of the highest attainable standard of health (Article 24), UN Doc CRC/C/GC/15 (2003), paras. 79-85.
21. While voting parents certainly play a role in terms of determining legislative/executive mandates with regard to law and policy
22. It cannot be argued convincingly that parents-whether individually or as a group-directly and exclusively set policy or budget priorities.
23. See, e.g., Articles 4, 23 and 28 of the CRC. For an extensive consideration of these obligations
24. see W. Vandenhole, 'Economic, Social and Cultural Rights in the CRC: 'Is There a Legal Obligation to Cooperate Internationally for Development?' (2009) 17 International Journal of Children's Rights 23;
25. M. Nyongesa Wabwile, Legal Protection of Social and Economic Rights of Children in Developing Countries: Reassessing International Cooperation and Responsibility (Antwerp: Intersentia, 2010).
26. For a discussion of international cooperation by the Committee on the Rights of the Child, see General Comment No. 5, paras 60-64;
27. General Comment No.15, paras 86-89; Committee on the Rights of the Child, 'Day of General Discussion-Resources for the Rights of the Child: Responsibility of States', 46th Session (2007) ('Day of General Discussion'), http://www2.ohchr.org/english/bodies/crc/discussion2013.htm, paras. 50-52.
28. See, e.g., the role of the EU Fiscal Treaty which requires EU member states to constitutionalise a range of budgetary rules that impact upon national budget structure.
29. 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.
30. See UN Economic and Social Council Resolution 1985/17, 28 May 1985.
31. Article 43, CRC.
32. Both instruments include the right to an adequate standard of living (Art. 11, ICESCR)
33. the right to education (Art. 13, ICESCR), the right to the enjoyment of the highest attainable standard of physical and mental health (Art. 12, ICESCR)
34. the right to social security (Art.9, ICESCR) or to benefit from social security. (For relevant provisions of the CRC, see above.)
35. General Comment No.5, para. 5.
36. para. 6 and footnote 4.
37. For a discussion of some of the differences between the wording of Article 2(1), ICESCR and Article 4, CRC
38. see M. Rishmawi, Commentary on the United Nations Convention on the Rights of the Child: Article 4: The Nature of States Parties' Obligations (Leiden: Brill, 2006), 3-8.
39. ComRC Day of General Discussion, para. 24.
40. For similar language from the ComESCR, see its General Comment No.3 on the nature of States parties' obligations (Art.2 (1)), UN Doc. E/1991/23 (1990), para. 9.
41. This point has is reflected implicitly in the work of the ComESCR, see ibid.
42. ComRC Day of General Discussion, paras. 48-49.
43. The Committee stated that, 'The Committee on Economic, Social and Cultural Rights (CESCR) has systematically underlined this obligation of States, to guarantee at all times, the guarantee at all times
44. 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' (ibid, para. 48). In fact, the ComESCR stated that:
45. 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.
46. 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.' (ComESCR GC No.3, para. 10).
47. ComESCR General Comment No.3, para. 10.
48. ComRC Day of General Discussion, para. 48. 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
49. the State concerned is still required to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances' (ibid).
50. In contrast, the ComESCR made this point about with regard to the enjoyment of ESR generally-not just the 'minimum core' of those rights (ComESCR General Comment No.3, para. 11).
51. ComRC General Comment No.15, para. 73.
52. The Committee has adopted this approach in its General Comments since 2000. See ComESCR General Comments 14, 15, 17-19 and 21.
53. See, e.g., ComRC 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 (2003), para. 3; ComRC, General Comment No.16, paras. 26-31;
54. ComRC General Comment No.17 on the right of the child to rest, leisure, play recreational activities, cultural life and the arts (art.31) (2013), para. 54; ComRC General Comment No.15, paras. 1 and 71-74.
55. The ComRC has not, however, always explicitly used the definitions of these obligations adopted by the ComESCR.
56. See, e.g., General Comment No.15 where the ComRC states that the obligation to fulfill entails 'facilitation' and 'provision' (at para. 71).
57. 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.
58. See ComESCR General Comment No.14, para. 37 and footnote 23.)
59. For more on these obligations under ICESCR, see I. Koch, 'Dichotomies, Trichotomies or Waves of Duties?' (2005) 5 Human Rights Law Review 81.
60. See ComRC Day of General Discussion, para. 47; ComESCR General Comment No.3, para. 1.
61. ComRC Day of General Discussion, para. 40.
62. The information below on the drafting negotiations is taken from the reports of such included in the United Nations, Legislative History of the Convention on the Rights of the Child, ols I and II (Geneva/New York: United Nations 2007)
63. S. Detrick, The United Nations Convention on the Rights of the Child. A Guide to the Travaux Préparatoires.
64. Given that neither document provides a complete account of all discussions (nor, indeed, do the working group reports), the argumentation below is reflective of a thorough, but not necessarily complete, account of the draft negotiations.
65. Please note that the article numbers referred to in this section are those ultimately assigned to the respective ESR under the CRC-they do not reflect the Article numbers employed during the draft process.
66. While there is no express reference to ICESCR in the Travaux Préparatoires with regard to the right to an adequate standard of living in Article 27, that provision bears a very strong resemblance to Article 11, ICESCR.
67. See, e.g., E/CN.4/1324, para. 1 and E/CN.4/L.1575, para. 43.
68. See, e.g., E/CN.4/1985/64, paras. 60, 62, 76; E/CN/4/1989/48, paras. 461-463.
69. E/CN.4/1988/WG.1/NGO/2, para. 3.
70. See, e.g., E/CN.4/1985/64, para 15.
71. See, .e.g., E/CN.4/1989/48, paras. 441, 446
72. See, e.g., E/CN.4/1983/62, para. 60.
73. See E/CN.4/1983/62, para 60.
74. See, e.g., Working Group discussions of the child's right to an adequate standard of living (inter alia E/CN.4/1985/64, paras 43-52), the right to education (inter alia E/CN.4/1985/64, paras 58-67), Article 4 (inter alia E/CN.4/L.1575, paras 44; E/CN.4/1989/48, paras 172-174)
75. the right to social security (inter alia E/CN.4/1984/71, paras 83, 90), and the right to health (see inter alia E/CN.4/1986/39
76. Annex IV p.3, in which Bangladesh submitted that that Articles 'such Articles as "health", "standards of living", "compulsory free education" should be made subject to a clause on the economic feasibility in particular countries').
77. In the context of disabled children's rights, concerns about resources are reflected in the wording of Article 23(2)'s on 'subject to available resources' and Article 23(3)'s inclusion of the language 'whenever possible'.
78. With regard to Article 6, negotiating states considered the inclusion of language on 'within their capacities' and 'available resources'
79. see E/CN.4/1988/28, paras 14 and 15, respectively) but this was ultimately not included in the final provision.
80. For examples of such wording, see, e.g., E/CN.4/L.1575, Annex, p.3; E/CN.4/1988/WG.1/WP.1/Rev.2, p. 7.
81. This is the sister instrument to ICESR which contains civil and political rights. Together with the Universal of Declaration of Human Rights, these instruments make up the international bill of rights.
82. See E/CN.4/1989/48, para. 172.
83. See E/CN.4/1989/48, paras. 460, 463 and 466. See the express reference to progressive achievement of the right to education in Section 28(1).
84. See, e.g., E/CN.4/1988/WG.1/NGO/2.
85. See, e.g., ECN.4/1984/71, paras. 86-93.
86. See the implicit incorporation of 'progressivity' in the language of Section 26(1)
87. which refers to the State obligation to 'take the necessary measures to achieve the full realisation of this right'.
88. See Article 24(2)'s requirement that states 'shall pursue full implementation of the right' and the reference to 'progressive achievement' in Section 24(4).
89. The inclusion of 'progressive' in this latter provision seems to have been a last minute decision-it was literally the last change made to the wording of the Article (E/CN.4/1989/48 para. 431).
90. The documents contained in United Nations and Detrick above, n. 44, include no material that suggests why this wording was included.
91. There was also no reference to progressivity with regard to Article 6.
92. See E/CN.4/1989/WG.1/CRP.1.
93. While the Travaux Préparatoires do not reflect all Working Group discussion/proposals, it would seem highly unlikely that such a significant proposal would not have been recorded.
94. See P. Alston & G. Quinn, 'The Nature and Scope of States Parties' Obligations under the International Covenant on Economic, Social and Cultural Rights' (1987) 9(2) Human Rights Quarterly 156, 172-177 and 228.
95. See, e.g., ComESCR General Comment No.3, para. 9.
96. For an excellent discussion of the drafting processes and Article 6 generally, see N. Peleg, The Child's Right to Development (PhD defended at University College London, 28 January 2013).
97. ComRC General Comment No.15, para. 71.
98. The statement in question follows this passage: 'States have three types of obligations relating to human rights, including children's right to health: to respect the freedoms and the entitlements, to protect both freedoms and entitlements against third parties or against social or environmental threats, and to fulfil the entitlements through facilitation or direct provision.' (Ibid, para. 72).
99. See, e.g., M. Nyongesa Wabwile, Legal Protection of Social and Economic Rights of Children in Developing Countries: Reassessing International Cooperation and Responsibility (Antwerp: Intersentia, 2010), Chapter 2. ;
100. G Van Bueren, 'Combating Child Poverty: Human Rights Approaches' (1999) 21(33) Human Rights Quarterly 680, 690
101. See, e.g., G. van Bueren in M. Langford (ed.), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (New York: CUP, 2008 569, 572.
102. For more on this point, see QUB Budget Analysis Project, Budgeting for Economic and Social Rights: A Human Rights Framework (Belfast, QUB, 2010).
103. For pieces highlighting confusions and gaps in the ICESCR framework
104. see, e.g. K. Young, 'The Minimum Core of Economic and Social Rights: A Concept in Search of Content' (2008) 33 Yale Journal of International Law 113;
105. A. Nolan, 'Putting ESR-Based Budget Analysis into Practice: Addressing the Conceptual Challenges' in Nolan, O'Connell & Harvey (eds), Human Rights & Public Finance (Oxford: Hart Publishing, forthcoming 2013).
106. For evidence of this, see C. Price Cohen, The Jurisprudence on the Rights of the Child, Vol III (New York: Transnational Publishers, 2005). More recently, none of the Concluding
107. Observations of the Committee from 20 February 2012 to 20 February 2013 included a reference to 'progressive achievement' or 'minimum core'.
108. While there were a small number of references to 'maximum available resources', this was solely in the context of the Committee reiterating the duty rather than evaluating States Parties compliance with such. (See, e.g., Concluding Observations: Madagascar, CRC/C/MDG/CO/3-4, para. 50; Concluding Observations: Cyprus, CRC/C/CYP/CO/3-4, para 16.)
109. ComRC General Comment No 5, para. 51.
110. ComRC General Comment No.5, para. 45.
111. The Committee made this observation when discussing the state's duty to ensure both that the best interests of the child are a primary consideration in all actions concerning children in terms of Article 3(1) CRC, and that the Convention is respected in legislation and policy development and delivery at all levels of government.
112. ComRC Day of General Discussion, para. 30(c).
113. See, e.g., ComRC, General Comment No.17, para. 54; ComRC General Comment No.16, para. 29
114. ComRC 'State Reporting Guidelines', UN Doc. CRC/C/58/Rev.2 (2010), Annex, para 3.
115. ComRC General Comment No.5, para. 51.
116. Although the issue of resources is addressed in a considerable number of General Comments, budgets are dealt with in some detail in ComRC General Comment No.9 on the rights of children with disabilities, UN Doc. CRC/C/GC/9 (2007), para 20;
117. ComRC General comment No. 13 on the right of the child to freedom from all forms of violence, UN Doc. CRC/C/GC/13 (2011), paras. 40-42, 71-72 and 74-75; and ComRC General Comment No.17, para. 57(d).
118. UN Doc, CRC/C/58/Rev.2 (2010), para. 19(d).
119. ComRC Day of General Discussion, para. 34(c).
120. For an example of such a measure, the Transitional Provisions of the Ecuadorean Constitution 2008 obliges the state to assign public resources from the General Budget in a recommendations
121. progressive manner for the initial basic and secondary education (Dispociones Transitorias, point 18), stipulating an annual increase of at least 0.5 per cent of the GDP until a minimum of 6 per cent is reached (ibid).
122. See also Article 212 of the Brazilian Constitution which requires that: 'the Union shall apply, annually, never less than eighteen percent, and the states, the Federal District, and the municipalities, at least twenty-five percent of the tax revenues, including those resulting from transfers, in the maintenance and development of education.'
123. Article 164 of the Constitution of Taiwan states that 'expenditures of educational programs, scientific studies and cultural service shall be, in respect of the Central Government, not less than 15 per cent of the total national budget; in respect of each province, not less than 25 percent of the total provincial budget; and in respect of each municipality or hsien, less than 35 percent of the total municipal or hsien budget. Educational and cultural foundations established in accordance with law shall, together with their property, be protected'.
124. Admittedly 'education' is not limited to children but children tend to be the main beneficiaries of such.
125. ComRC General Comment No.15, paras. 104-107.
126. ComRC General Comment No.5, para. 51.
127. General Comment No.15, para. 74
128. ComRC Day of General Discussion, para. 31.
129. See, e.g., I. Ortiz, J. Chai & M. Cummins, Austerity Measures Threaten Children and Poor Households: Recent Evidence in Public Expenditures from 128 Developing Countries (New York: UNICEF, 2011)
130. ComRC Day of General Discussion, para 30(b).
131. In its General Comment No.16, the Committee stated that states should adopt child rights-based impact assessments in relation to 'business-related policy, legislation, regulations, budget, or other administrative decisions which affect children and the enjoyment of their rights' (para. 78).
132. See, e.g., Pakistan, CRC/C/15/Add.2/7 (2003); Nepal, CRC/C/15/ADD/261 (2005).
133. See, e.g., Bangladesh, CRC/C/BGD/CO/4 (2009). For an example of a 'half-way house' between these approaches on the Committee's part, see Sri Lanka, CRC/C/15/Add/228 (2004).
134. For some recent examples, see Albania, CRC/C/ALB/CO/2-4 (2012); Canada, CRC/C/CAN/CO/3-4 (2013); and United Kingdom, CRC/C/COK/CO/1 (2012).
135. For an outline of a 'violations' approach of monitoring ESR, see A. Chapman, 'A "Violations Approach" for Monitoring the International Covenant on Economic, Social and Cultural Rights' (1996) 18(1) Human Rights Quarterly 23.
136. I am grateful to Noam Peleg for his insight on this point. (In conversation, November 2012).
137. For an example of the Committee expressing 'concern' at what it termed 'extensive budget cuts', see Iceland, CRC/C/ISL/CO/3-4 (2012), para. 18-10
138. For examples of child rights-budget analysis, see International Budget Project's resource page on 'Children and Youths: http://internationalbudget.org/ budget-analysis/sectors-issues-demographic/children-youths/.
139. For further examples, see, P. Shastri and E. Ganguly Thukral, Budget for Children Analysis: A Beginner's Guide (Save the Children: Kathmandu, 2010).
140. See also E. Ganguly Thukral (ed), Every Right for Every Child: Governance and Accountability (London, Routledge, 2011).
141. See, e.g., the work of Imali Ye Mwana, IDASA (previously Child Budget Unit) such as S. Cassiem and J. Streak, Budgeting for Child Socio-economic Rights: Government Obligations and the Child's Right to Social Security and Education (Cape Town: IDASA, 2001)
142. J. Streak, Monitoring Government Budgets to Advance Child Rights (Cape Town: IDASA, 2003) http://www. idasa.org/our-products/resources/output/ monitoring-government-budgets-2/.
143. Other groups, such as the Indian-based HAQ Centre for Child Rights, which produces analyses of the impact of national and state budgets, from a child rights perspective, also address civil and political rights-focussed child rights-based budget analysis in the context of child protection and juvenile justice.
144. OHCHR, Report of the High Commissioner for Human Rights on Implementation of Economic, Social and Cultural Rights (8 June 2009), UN Doc. E/2009/90, 14.
145. For an example of a recently developed methodology designed to evaluate macroeconomic policies from an ESR perspective (albeit not a child-specific one)
146. see R. Balakrishnan, D. Elson & R. Patel, Rethinking Macroeconomic Strategies from a Human Rights Perspective (Why MES with Human Rights II) (New York: Marymount Manhattan College/US Human Rights Network 2009).
147. For more on the project, see www.qub.ac.uk/schools/SchoolofLaw/Research/ HumanRightsCentre/ResearchProjects/BudgetAnalysis/.
148. QUB Analysis Project, Budget Analysis and Economic and Social Rights: A Review of Selected Case Studies and Guidance (QUB: Belfast, 2010), 6.
149. See, e.g., the work of IDASA, which has produced 'Budgetbriefs' analysing both national and provincial budgets from a child ESR perspective.
150. QUB Analysis Project above n. 112, 5.
151. See, e.g., Shastri & Ganguly above n. 107.
152. See, e.g., the Ireland-based Children's Rights Alliance's 'Analysis of Budget 2013 and its Impact on Children' (Dublin: CRA, 2012)
153. which highlights the impact of budgetary decisions on the realization of a range of CRC rights and does mention some ESR obligations but does not engage with these in any depth.
154. See also D. Budlender and P. Proudlock, 'Child-centered Analysis of Government's Budgets 2010-2012' (Cape Town: Children's Institute, University of Cape Town, 2010)
155. which provides an excellent overview of budgetary allocations on children, does not go beyond specifying which constitutional rights are impacted upon by particular budgetary decisions.
156. See, e.g., A. Nolan, "Budget Analysis and Economic and Social Rights' in E. Riedel et al (eds.), Contemporary Issues in the Realisation of Economic, Social and Cultural Rights (Oxford: Oxford University Press, forthcoming).
157. For a discussion of the ComESCR's reluctance to engage with macroeconomic policy issues more generally
158. see M. Dowell-Jones, Contextualising The International Covenant On Economic, Social And Cultural Rights: Assessing The Economic Deficit (Leiden: Martinus Nijhoff, 2004).
159. See, e.g., the language of ComRC General Comment No.5, para. 8, discussed above in the context of discussions of Article 4.
160. See, e.g., Constitutional Court of Colombia, Tutela Judgment,T-200/93 (holding that 'the right to health held by children, as opposed to that of other people was established in the constitution as fundamental' and hence immediately enforceable).
161. See also Constitutional Court of Colombia, Unification Judgment, SU-225/98 (iterating that the ESR of the child set out in Article 44 of the Colombian Constitution have an essential content of immediate application).
162. See, e.g. Constitutional Court of Colombia, Tutela Judgment, T-760/08 (Court ordered the legislatively established contributory and subsidised benefits regimes to be unified.
163. This was to be done in the first case for children and youth, while, with regard to adults, it was to be done progressively taking into account sustainable funding).
164. See, e.g., European Committee of Social Rights, Complaint No. 14/2003, International
165. Federation of Human Rights Leagues (FIDH) v. France, 8 September 2004 (finding that children's.
166. For discussion of these cases from a child ESR perspective, see Nolan above, n. 3 and 'The Child's Right to Health and the Courts' in J. Harrington and M. Stuttaford (eds), Global Health.
167. See, e.g., the contrasting approach of the South African and Colombian Constitutional Courts on the question of whether children's constitutional ESR give rise to immediately enforceable entitlements on the part of right-holders.
168. ComRC Day of General Discussion, para. 48; ComESCR General CommentC No.3, para. 10.
169. See Young, above, n. 79.
170. ComESCR General Comment No.3, para. 10.
171. ComESCR 'Letter from CESCR Chairperson to States Parties in the context of the economic and financial crisis', CESCR/48th/SP/MAB/SW, 16 May 2012, http://www2.ohchr.org/english/bodies/cescr/docs/LetterCESCRtoSP16.05.12.pdf.
172. ComRC General Comment No.17, para. 55. The right to rest, leisure and play is a cultural right and hence subject to the same umbrella obligation as ESR in terms of Article 4.
173. As such, we can extrapolate from the Committee's consideration of the obligations imposed by that right.
174. In its General Comment No.3, the 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'.
175. This language is echoed in a number of other General Comments (General Comment No.21 on Right of everyone to take part in cultural life, UN Doc. E/C.12/GC/21 (2009), para 65;
176. General Comment No. 19 on the right to social security, UN Doc. E/C.12/GC/19 (2008), para. 42;
177. General Comment No. 18 on the right to work UN Doc., E/C.12/GC/18 (2005), para. 21;
178. General Comment No. 17 on the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author, UN Doc. E/C.12/GC/17 (2006), para. 27;
179. General Comment No.15 on the right to water (Arts. 11 and 12), UN Doc. E/C.12/2002/11 (2003), para. 19;
180. General Comment No.14 on the right to the highest attainable standard of health (Art. 12), UN Doc. E/C.12/2000/4 (2000), para. 32;
181. General Comment No.13 on the right to education (Art. 13), UN Doc. E/C.12/1999/10 (1999), para. 45.).
182. Some of these statements also set out the requirement to ensure 'there has been the most careful consideration of all alternatives'. (General Comment No. 19, para. 42;
183. General Comment No. 18, para. 21; General Comment No. 17, para. 27; General Comment No.15, para. 19;
184. General Comment No.14, para. 32; and General Comment No.13, para. 45).
185. 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.
186. See ComESCR General Comment No.15, para. 42; ComESCR General Comment No.14, para. 48).
187. While no mention is made of non-discrimination either, the fact that this is an immediate obligation means that retrogressive measures that are discriminatory would be in violation of the Convention anyway.
188. ComRC General Comment No.15, para. 72.
189. ComESCR General Comment No. 20 on non-discrimination in economic, social and cultural rights, UN Doc E/C.12/GC/20 (2009), para. 29.
190. See, e.g., ComESCR General Comment No.6 on the economic, social and cultural rights of older persons, 13th Session (1995).
191. Indeed, the ComESCR has gone so far as to say: 'the Committee on Economic, Social and Cultural Rights is of the view that States parties to the Covenant are obligated to pay particular attention to promoting and protecting the economic, social and cultural rights of older persons.
192. The Committee's own role in this regard is rendered all the more important by the fact that, unlike the case of other population groups such as women and children, no comprehensive international convention yet exists in relation to the rights of older persons and no binding supervisory arrangements attach to the various sets of United Nations principles in this area.
193. (ComESCR General Comment No.6, para. 13).
194. See, e.g., Report of the Independent Expert on the question of human rights and extreme poverty, Ms. Maria Magdalena Sepúlveda Carmona on the human rights based approach to recovery from the global economic and financial crises, with a focus on those living in poverty, UN Doc. A/HRC/17/34 (2011), para. 23
195. which states that children have suffered devastating and disproportionate effects of the global economic and financial crises.
196. See, e.g., ComRC General Comment No.5, para. 12.
197. As of 6 June 2013, there were 36 signatories and six parties to the Optional Protocol. Ten ratifications are required before the Optional Protocol comes into force.
198. Ortiz, I., J. Chai an M. Cummins, Austerity Measures Threaten Children and Poor Households: Recent Evidence in Public Expenditures from 128 Developing Countries (New York: UNICEF, 2011), 21.
199. For a consideration of the different ways in which Article 8(4) might be interpreted
200. see C. Mahon, 'Progress at the Front: The Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights' (2008) 8 Human Rights Law Review 617;
201. B. Porter, 'The Reasonableness of Article 8(4): Adjudicating Claims from the Margins' (2009) 27(1) Nordic Journal of Human Rights 39.