United Nations Convention on the Rights of the Child (UNCRC): clarification of inherent obligations

5. Progressive realisation

Public authorities may find it useful to consider the international legal concept of ‘progressive realisation’ when reflecting on how best to fulfil their duties under the Act. Under the Act, public authorities will have a duty to not act in a way which is incompatible with the UNCRC requirements as set out in the Schedule to the Act. However, it is not yet known how the term ‘progressive realisation’ will be interpreted in the context of domestic legislation.

Progressive realisation requires States to work gradually towards the full realisation of rights, based on the maximum resources available. This means that States are expected to take continuous and purposeful steps forward, rather than achieving full compliance instantly. The concept has been interpreted by the CRC as applying to Articles 4 and 24-32 of the UNCRC.

Article 4 of the UNCRC states that States are required to “undertake all appropriate legislative, administrative and other measures to implement the rights recognised in the Convention”. In the context of the UNCRC, progressive realisation particularly applies to economic, social, and cultural rights. This includes ensuring the right to education, the highest attainable standard of health, and an adequate standard of living. States are required to demonstrate that they are making measurable progress towards these goals, based on their available resources, and are also expected to prioritise these rights in their policy and budget decisions.

Progressive realisation does not mean indefinite postponement of action but rather a steady and purposeful advancement towards the full realisation of children’s rights, while immediately respecting and protecting the rights that can be addressed without substantial resource allocation. It encompasses the principles of:

• Use of Maximum Available Resources: States are obliged to utilise the maximum of their available resources to fulfil human rights. This includes financial, natural, human, technological, and organisational resources.
• Non-Retrogression: Under this principle, States must avoid taking steps backwards. In times of economic crisis, regressive measures may only be considered after assessing all other options and ensuring that children are the last to be affected, especially children whose rights are at risk.
• Minimum Core Obligations: Despite the allowance for phased implementation, States have immediate obligations to ensure at least the minimum essential levels of each right are met.

Central to this concept in international law is that progress must be made over time towards the full realisation of these rights, in recognition that this process can be hampered by a lack of resources and may only be achieved over a period of time. States’ plans to take action to improve child rights realisation are an important mechanism for showing progress and are viewed in the light of the resources available to them. The Implementation Handbook for the Convention on the Rights of the Child clarifies that the term ‘resources’ includes not only financial means but may also refer to human or organisational resources.

In Frequently Asked Questions on Economic, Social and Cultural Rights, the OHCHR has provided some examples of steps that States could take towards progressively realising rights in line with international requirements. It is important to keep in mind that these examples are not definitive or authoritative as to how the UNCRC requirements as defined by the Act will be interpreted in Scots law as applying to public authorities. However, public authorities may wish to take these examples into account when considering their duty to not act incompatibly with the UNCRC requirements as defined by the Act:

• Assessing the current state of enjoyment of children’s rights, including ensuring adequate mechanisms to collect and assess relevant and suitably disaggregated data;
• Formulating strategies and plans, incorporating indicators and time bound targets, which should be realistic, achievable and designed to assess progress in the realisation of children’s rights;
• Adopting child rights-based practices and policies, and providing adequate resources to put the plans and strategies into practice;
• Regularly monitoring and assessing the progress made in the implementation of the plans and strategies;
• Establishing or utilising existing complaints mechanisms so that children and young people and their families or carers can complain if a public authority is not meeting their responsibilities.

Monitoring the progressive realisation of children’s rights

The gathering of reliable and relevant information on the status of children’s rights, e.g. the extent to which they are implemented and being enjoyed by children, is important for monitoring States’ progressive realisation of rights in international law. With precise data, discussions regarding steps to be taken will be better informed and focused. In considering their duties under the Act, public authorities may therefore wish to monitor the realisation of children’s rights in order to understand what further steps need to be taken.

This may include identifying trends, such as measuring changes in literacy rates and any inequalities in educational attainment over time and the analysis of budgets, and in particular, trends in budget allocations (for a fuller explanation, see section 4.2.2 on budget allocation in non-statutory guidance on taking a children’s human rights approach). The findings from this monitoring could be used to comply with the reporting duty under Section 18(1) of the Act, which provides that listed authorities must publish a report on the actions it has taken during a reporting period, and intends to take over the next period, to both ensure compliance with the section 6 duty as well as to secure better or further effect of the rights of children.

Maximum available resources

Under the Act, public authorities have a duty to not act in a way which is incompatible with the UNCRC requirements set out in the schedule to the Act, however, it is not yet known how the term “to the maximum extent of their available resources” will be interpreted in the context of domestic legislation.

Article 4 also specifies that in regard to economic, social and cultural (ESC) rights, States must "undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation”.

The term “maximum extent of their available resources”, contained within Article 4 of the UNCRC, is understood in international law as containing two important elements: firstly, the recognition that the availability (or absence) of resources plays a crucial role in the realisation of children’s rights in the economic, social and cultural sphere; and secondly, that where those resources are available, States should make efforts to deploy them in ways that further the fulfilment of rights. The UNCRC recognises that some of the more costly reforms cannot take place overnight. It specifies, for instance, that the rights to health care (Article 24) and education (Article 28) may be achieved ‘progressively’.

To comply with effective implementation of children’s rights, States must show that the rights have been progressed using the "maximum extent of available resources". In international law this is understood to mean generating, allocating and spending resources in a way that is effective and efficient for the realisation of children's rights (see section 4.2.2 on budget allocation in non-statutory guidance on taking a children’s human rights approach) and States are expected to demonstrate they are taking steps to improve the enjoyment of children’s rights, even when resources are scarce.

Non-retrogression

The principle of non-retrogression, in the context of international human rights law, and particularly in the context of Economic, Social, and Cultural (ESC) rights is generally understood to mean the obligation of states to not take regressive measures, as in doing so they would be departing from their obligation to take steps for the progressive realisation of these rights.

Minimum core obligations

There are substantive and procedural elements of ESC rights within the UNCRC which are not subject to progressive realisation, but certain elements within the overall right are interpreted in international law as requiring immediate protection, such as the provision of free primary education within Article 28, basic shelter and housing within Article 27 and access to specific medicines at all times within Article 24. These are known in international law as minimum core obligations (MCOs). General Comment No.3 from the Committee on Economic, Social and Cultural Rights states “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each article of the rights”. Public budgeting for the realisation of children’s rights is more widely covered under General Comment No.19.

The Act does not define the minimum core of each of the UNCRC requirements as defined by the Act and so it will be a matter for the courts, when interpreting the compliance duty in the Act, to decide what the appropriate minimum essential levels for ESC rights might be in Scotland.