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GI-ESCR Blog series
The COVID-19 Pandemic And Its Impact On Economic, Social And Cultural Rights
Of Limitations and Retrogression: Assessing COVID-19’s Impact on Children’s ESC Rights
By Aoife Nolan & Judith Bueno de Mesquita
On 13 May, UNICEF stated that the impact of COVID-19 on health systems and services meant that an additional 6,000 children could die every day from preventable causes.[1] Compounding the direct and indirect health implications of the virus for children, there is growing recognition of, and concern about, the multidimensional effects of COVID-19 on the lives and well-being of children around the world. Employing language that has since been taken up by numerous domestic and global actors, UNICEF has referred to the pandemic as a ‘child rights crisis’. However, this crisis is not solely attributable to COVID-19 itself; rather, some aspects of state responses to the pandemic constitute restrictions or limitations on children’s rights, while others appear to amount to retrogression.
When it comes to the UN Convention on the Rights of the Child (UNCRC), perhaps the most headline rights impacts of COVID-19 and state responses are socio-economic in nature: the impact of school closures on the right to education; the effects of parental job losses from the perspective of the child’s right to a standard of living adequate for their development (Article 27); the impact of lockdown on children’s enjoyment of right to the highest attainable standard of health, and mental health (article 24); reduced access to food undermining the child’s right to adequate nutritious food (articles 27 and 24); the inability of homeless children or children in poor quality housing to avoid infection (Article 27); the requirement that children remain indoors and abide by social distancing protocols raises issues in terms of their right to play. However, just as many of the rights under the CRC cannot be neatly categorised as specifically social, economic, political, civil or cultural in nature, nor are the pandemic’s impacts on children limited to the economic and social spheres.
In its commendably clear COVID-19 Statement, the UN Committee on the Rights of the Child has called on states to take a wide range of measures in order to ‘respect the rights of the child in taking measures to tackle the public health threat posed by the COVID-19 pandemic’. Amongst the many important functions of the Statement is its clarification of States’ duties in the context of lockdown and quarantine – an issue that has not been directly addressed in its previous General Comments, such as its 2013 General Comment No.15 on the right of the child to the highest attainable standard of health (Article 24) and General Comment No. 3 on HIV/AIDS and the rights of the child (2003). (Indeed, this is consistent with the relative neglect of these issues by international human rights bodies generally).
From an ESCR perspective, the Committee identified that States should: ensure that that online learning does not exacerbate existing inequalities or replace student-teacher interaction; activate immediate measures to ensure that children are fed nutritious food; maintain the provision of basic services for children including healthcare, water, sanitation and birth registration; explore alternative and creative solutions for children to enjoy their rights to rest, leisure, recreation and cultural and artistic activities; and provide professional mental health services for children living in lockdown. The Committee also made clear that states should disseminate accurate, accessible, child-friendly information about COVID-19, in line with the requirements of both Article 24 (the right to the highest attainable standard of health) and Article 13 (the right to freedom of expression) of the CRC.
The Committee also urged states to protect children whose vulnerability is further increased by the exceptional circumstances caused by the pandemic, including children living in poverty, children with disabilities, minority and indigenous children, and other children with precarious enjoyment of ESCR. Significantly, the Committee made clear that states should respect the right of every child to non-discrimination in its measures to address the COVID-19 pandemic – as well as take targeted measures to protect children in vulnerable situations.
But what of the question of limitations on children’s rights during the time of COVID-19? Consistent with the crisis/emergency framing that has dominated much human rights and other work around the pandemic, the Committee’s Statement dealt with this issue front and centre. First, it explicitly recognised that ‘in crisis situations, international human rights law exceptionally permits measures that may restrict the enjoyment of certain human rights in order to protect public health. However, such restrictions must be imposed only when necessary, be proportionate and kept to an absolute minimum.’ This would appear to be the (admittedly broad) parameters of the criteria the Committee will use to assess the permissibility of the state-imposed limitations on children’s rights in the COVID-19 context. Looking beyond interferences with rights in the form of specific limitations, and of particular relevance to economic and social rights realisation in terms of Article 4 of the Convention, the Committee also stated that ‘while acknowledging that the COVID-19 pandemic may have a significant and adverse impact on the availability of financial resources, these difficulties should not be regarded as an impediment to the implementation of the Convention.’ This would appear to engage with the issue of progressive realisation – and indeed retrogression – in the context of COVID-19.
Importantly, the Committee went on to say that States parties should ensure that ‘responses to the pandemic, including restrictions and decisions on allocation of resources, reflect the principle of the best interests of the child’. Yet, perhaps surprisingly, the other General Principles of the CRC - non-discrimination (Article 2), the right to survival and development (Article 6), the child’s right to express their views in all matters affecting them (Article 12) – were not cited here. Given that the UNCRC does not contain a general limitations provision (although rights-specific limitations are included in some UNCRC civil and political rights protections), this is a very significant statement on the part of the Committee with regard to what the priorities of states should be when considering rights restrictions in the COVID-19 context. Thus, it is vital that the Statement be interpreted in a joined up way so that the crucial emphasis on non-discrimination, the threats posed to children’s survival and development, and the Committee’s recommendation to states to ‘provide opportunities for children’s views to be heard/taken into account in COVID-19 decision-making processes’ elsewhere in the Statement are also taken into account in state decision-making in relation to restrictions on rights.
Of course, when it comes to assessing state performance on COVID-19 in terms of its reporting and complaints systems, the Committee will draw on its extensive previous work. This includes the criteria that states need to satisfy in terms of justifying ESCR retrogression in times of economic crisis such as General Comment 19 on public budgeting for the realization of children’s rights, which may to a large extent be ‘repurposed’ for a health crisis context. However, given the Committee’s relative silence on limitations to ESCR thus far, engagement with COVID-19 will furnish it with an excellent opportunity to flesh out how it will assess limitations on UNCRC rights, and on ESC rights in particular.
[1] The Lancet-published study that served as the basis for UNICEF’s statement estimates that an additional 1,157,000 under-five deaths (and 56 700 maternal deaths) could occur in just six months. This is due to reductions in routine health service coverage levels and an increase in child wasting.
Aoife Nolan is Co-Director of the Human Rights Law Centre and Professor of International Human Rights Law at the University of Nottingham. Since 2017, she has been a member of the COE European Committee of Social Rights. Professor Nolan has acted as an expert advisor to a wide range of international and national organisations and bodies working on human right issues, including UN Special Procedures, UN treaty bodies, the Council of Europe, the World Bank, and multiple NHRIs and NGOs. She has held visiting positions at academic institutions in Europe, Africa, the US and Australia. She is an Academic Panel member of Doughty Street Chambers, where she co-leads the Children’s Rights Group.
Judith Bueno de Mesquita, LLM MA, is Co-Deputy Director of the Human Rights Centre and a Lecturer in International Human Rights Law at the School of Law and Human Rights Centre, University of Essex. She is the current Coordinator of the Economic and Social Rights Academic Network, UK and Ireland. She has worked extensively as a consultant with UN agencies including the WHO and UNFPA, and as Senior Research Officer to the first UN Special Rapporteur on the right to health. Her research focuses on health and human rights and economic, social and cultural rights.
