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For a Children’s Rights Approach to Obesity Prevention: The Key Role of an Effective Implementation of the WHO Recommendations

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University of Liverpool, agarde@liverpool.ac.uk.

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University of Liverpool, cappagh1@liverpool.ac.uk.

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University of Liverpool, gokani@liverpool.ac.uk.

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University of Liverpool, hsbmurphy@liverpool.ac.uk.

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1 UN General Assembly Resolution 44/25. The Convention has been ratified by all States in the world except the USA.

2 For more, see generally VeermanPE, The Rights of the Child and the Changing Image of Childhood (Martinus Nijhoff Publishers, 1992).

3 FreemanM, Children’s Rights: A Comparative Perspective (Dartmouth Publishing, 1996) p. 1 .

4 These include the Optional Protocol on the involvement of children in armed conflict (A/RES/54/263, dated 25 May 2000), the Optional Protocol to the Convention on the Sale of Children, child prostitution and child pornography (A/RES/54/263, dated 25 May 2000) and the Optional Protocol on a communications procedure (A/RES/66/138 of 19 December 2011).

5 For more see generally Van BuerenG, The International Law on the Rights of the Child (Martinus Nijhoff Publishers 1995). See also HodginR and NewellP, Implementation Handbook for the Convention on the Rights of the Child (3rd edn, UNICEF, 2007).

6 According to the 1993 World Conference on Human Rights held in Vienna, “all human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.”

7 The definition of a child is provided by Art. 1: “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”.

8 Committee on the Rights of the Child, General Comments N.5 (2003), CRC/GC/2003/5, 4.

9 See generally, AllisonJ, JenksC and ProutA, Theorizing Childhood (Polity Press, 1998).

10 See Convention, Arts. 5 and 12.

11 Friant-PerrotM and GardeA, L’impact du marketing sur les préférences alimentaires des enfants (Institut national de prévention et d’éducation pour la santé [INPES], 2014).

12 GardeA and others, Food Marketing and Children’s Rights (UNICEF, forthcoming, August 2017).

13 GardeA, et al., Food Marketing and Children’s Rights (UNICEF, forthcoming, August 2017), and Tatlow-GoldenM et al., Tackling food marketing to children in a digital world: trans-disciplinary perspectives. Children’s rights, evidence of impact, methodological challenges, regulatory options and policy implications for the WHO European Region (WHO Regional Office for Europe, 2016). There is also growing academic literature on this issue: TobinJ, “Beyond the Supermarket Shelf: Using a Rights Based Approach to Address Children’s Health Needs” (2006) 14(3) International Journal of Children’s Rights 275 ; A Garde, “Advertising Regulation and the Protection of Children-Consumers in the European Union: In the Best Interest of… Commercial Operators?” in H Stalford et al. (eds), “Children’s Rights in Europe” (special issue), (2011) 19 International Journal of Children’s Rights 523; GardeA, “The Best Interest of the Child and EU Consumer Policy: A Major Gap between Theory and Practice?” in J Devenney and M Kenny (eds), The Theory and Practice of EU Consumer Law and Policy (Cambridge University Press, 2012) p. 164 ; MillsL, “Selling Happiness in a Meal: Serving the Best Interests of the Child at Breakfast, Lunch and Supper” (2012) 20 International Journal of Children’s Rights 624 ; HandsleyE et al., “A Children’s Rights Perspective on Food Advertising to Children” (2014) 22 International Journal of Children’s Rights 93 ; and O’CathaoirK, “Childhood Obesity and the Right to Health” (2016) 18 Health and Human Rights Journal 249 .

14 The Amsterdam Treaty contained other developments of relevance to children, even though they did not have children as their direct focus: Art. 13 EC introduced a non-discrimination clause empowering EU institutions to adopt legislation on various equality grounds, including age; Art. 137(j) EC introduced a legal basis for combating social exclusion, and tackling child poverty has become a key objective for EU action. More generally, Art. 6(2) TEU reaffirmed the EU’s commitment to fundamental rights (which include children’s rights). Following the entry into force of the Lisbon Treaty, Art. 13 EC, Art. 137 EC and Art. 6 TEU have been renumbered Art. 19 TFEU, Art. 153 TFEU and Art. 6 TEU, respectively.

15 See in particular Arts. 12 and 7(2) of Regulation 1612/68 (OJ 1968 L 257/2). Claire McGlynn has argued that children were seen as an obstacle to the proper functioning of the Internal Market, rather than as individuals in their own right: McGlynnC, “Rights for Children? The Potential Impact of the European Union Charter of Fundamental Rights” (2002) 8 European Public Law 387, 388 . See also StalfordH, “The Developing European Agenda on Children’s Rights” (2000) 22 Journal of Social Welfare and Family Law 229, 234 .

16 Several other articles of the EU Charter advance the situation of children at EU level. On the role which the EU Charter could play to give more prominence to children’s rights in the EU legal order, see McGlynn, supra note 15; see also CullenH, “Children’s Rights” in S Peers and A Ward (eds), The EU Charter of Fundamental Rights (Hart, 2004).

17 The EU Charter applies only to areas which fall within the scope of EU competence, as explicitly stated in Art. 51. Thus, the situation still is that major policy areas affecting children, including the administration of juvenile justice or the legality of corporal punishments, remain within the remit of Member States’ powers and are not therefore directly affected by the Art. 24. Nevertheless, Member States are all signatories to the Convention and, as such, bound to uphold the best interests of the child principle laid down in Art. 3(1).

18 “Preliminary Inventory of EU Actions Affecting Children’s Rights Commission”, Staff Working Document Accompanying the Communication from the Commission “Towards and EU Strategy on the Rights of the Child”, SEC (2006) 889, 3.

19 COM (2006) 367 final. The Commission Communication provides explicitly that the provisions of the Convention must be fully taken into account: at para. I.3.

20 StalfordH, “The CRC in litigation under EU Law” in T Liefaard and Jaap E Doek, Litigating the Rights of the Child: The UN Convention on the Rights of the Child in Domestic and International Jurisprudence (Springer Publishers, 2015) pp. 211230 .

21 Case C-540/03 Parliament v Council [2006] ECR I-5769.

22 Three Advocates General had referred to the Convention in their opinions prior to the Court’s judgment in Parliament v Council: AG Stix-Hackl on 13 September 2001 in Case C-459/99 MRAX [2002] ECR I-6591; AG Jacobs on 22 May 2003 in Case C-148/02 Garcia Avello [2003] ECR I-11613; and AG Kokott on 11 November 2004 in Case C-105/03 Criminal Proceedings Against Maria Pupino [2005] ECR I-5285 and on 8 September 2005 in Parliament v Council.

23 For example, the Convention has established itself as an indispensable adjudicative tool to the European Court of Human Rights. For more on this question, see generally, U Kilkelly, “The CRC in litigation under the ECHR” in Liefaard and Doek, supra note 20; KilkellyU, “The Best of Both World’s for Children’s Rights: Interpreting the European Convention on Human Rights in light of the UN Convention on the Rights of the Child” (2001) 23(2) Human Rights Quarterly 308 .

24 Case C-244/06 [2008] ECR 1–505.

25 ibid para. 92.

26 Supra note 20 at p. 229.

27 C-491/10 PPU, Aguirre Zarraga v Pelz, 22 December 2010.

28 C-34/09, Gerardo Ruiz Zambrano v Office national de l’emploe (ONEM), 8 March 2011.

29 C-400/10 PPU, J.McB v L.E., 5 October 2010 and C-497/10 PPU, Mercredi v Chaffe (22 December 2010).

30 COM (2006) 367 final.

31 Commission Communication, at para. I.3.

32 Commission Communication, at para. I.2.

33 Commission Communication, at para. I.4.

34 Commission Communication, at para. II.1.

35 For a discussion of these measures, see in particular StalfordH and DrywoodE, “Coming of Age?: Children’s Rights in the European Union” (2009) 46 Common Market Law Review 143 .

36 Emphasis added.

37 For more on the role of the EU in promoting and advancing children’s rights, see StalfordH and IusmanI (eds), The EU as a Children’s Rights Actor: Law, Policy and Structural Dimensions (Barbara Budrich Publishing, 2015).

38 European Commission (2011), Communication from the Commission to European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, An EU Agenda for the Rights of the Child, COM (2011) 60, 14.

39 European Commission (2010) Communication from the Commission, Europe 2020, A Strategy for Smart, Sustainable and Inclusive Growth, COM (2010) 2020.

40 Specifically, the Strategy envisages that by 2020 the share of early school leavers should be under 10% and at least 40% of the younger generation should have a tertiary degree. The Strategy also stipulates that by 2020 20 million fewer people should be at risk of poverty.

41 United Nations Convention on the Rights of the Child (1989). See, further, human rights instruments of general application: Universal Declaration of Human Rights (1948), Art. 25(1); International Covenant on Economic, Social and Cultural Rights (1966), Art. 12. See also instruments addressing the human rights of specific groups: International Convention on the Elimination of All Forms of Racial Discrimination (1965), Art. 5(e)(iv); Convention on the Elimination of All Forms of Discrimination against Women (1979), Art. 12; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), Arts 28, 43(e) and 45(c); Convention on the Rights of Persons with Disabilities (2006), Art. 25.

42 At para. 1.

43 General Comment No 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (Art. 24), CRC/C/GC/15.

44 General Comment No 14 (2000) on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (Art. 12), E/C.12/2000/4.

45 Preamble to the Constitution of the WHO as adopted by the International Healthy Conference, New York, 22 July 1946, available at apps.who.int/gb/bd/PDF/bd47/EN/constitution-en.pdf.

46 General Comment No 15 (2013), at para. 1.

47 This was forcefully reiterated in World Health Organization, “Report of the Commission on Ending Childhood Obesity” (WHO, January 2016).

48 As Tobin notes, this stems clearly not only from the text of Article 24 itself, but also from the drafting history of the Convention: TobinJ, The Right to Health in International Law (Oxford University Press, 2012) p. 131 .

49 “Children’s health is affected by a variety of factors, many of which have changed during the past 20 years and are likely to continue to evolve in the future”, including NCDs: General Comment No 15 (2013), at para. 5.

50 UN Human Rights Office of the High Commissioner, The right of the child to the highest attainable standard of Health (2013), at para. 99.

51 General Comment No 15 (2013), at para. 20. See also the report of the UN Special Rapporteur on the Right to Health, Dainius Puras, of 2 April 2015, A/HRC/29/33, at para. 86.

52 Recommendation 1.2.

53 More generally, Art. 4 provides that “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”. On the relationship between budgetary decision-making and the Convention, and child rights-based budget analysis, see NolanA, “Economic and Social Rights, Budgets and the Convention on the Rights of the Child” (2013) 21 International Journal of Children’s Rights 248 .

54 See, for example, the resolution of the Human Rights Council on the right of the child to the enjoyment of the highest attainable standard of health, 17 April 2013, A/HRC/22/32, at para. 28.

55 General Comment No 15 (2013), at para. 1.

56 The obligation of States to respect, protect and fulfil human rights has become an increasingly accepted typology of duties, especially with respect to economic, social and cultural rights. Its roots can be traced to Asbjørn Eide, then Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights of the UN Commission on Human Rights, whose three-fold framework has become the substructure upon which State duties towards the realisation of their obligations are both founded on and assessed against. UN Commission on Human Rights, “Final Report submitted by A. Eide, Special Rapporteur on the Right to Adequate Food as a Human Right, The Right to Adequate Food as a Human Right” (1987) UN Doc. E/CN.4/Sub.2/1987/23. The ESC Committee has subsequently extended this typology to other rights, including the right to health in its General Comment 14 where the ESC Committee extended the obligation to fulfil to contain “obligations to facilitate, provide and promote”. ESC Committee, General Comment No 14: The Right to the highest Attainable Standard of Health (11 August 2000) UN Doc E/C.12/2000/4, at para. 33.

57 General Comment No 15 (2013), at para. 47.

58 See for example the statement by the Special Rapporteur in the field of Cultural Rights, 8 August 2014, A/69/286: “many products, behaviours and attitudes promoted by commercial advertising are harmful to people’s health and social relationships, as well as to the environment”.

59 Report on “Unhealthy foods, non-communicable diseases and the right to health” presented at the 26th session of the Human Rights Council in June 2014, Document A/HRC/26/31, at para. 25.

60 Report on “The Right to an Adequate Diet: the Agriculture-Food-Health Nexus”, presented at the 19th Session of the United Nations Human Rights Council, 26 December 2011, A/HRC/1/9/59.

61 Report of the Special Rapporteur on sport and healthy lifestyles as contributing factors to the right to health of 4 April 2016, A/HRC/32/33.

62 At para. 19.

63 See in particular the resolution of the Human Rights Council on the right to health of 14 July 2014, A/HRC/Res/26/18.

64 At para. 32.

65 At para. 33.

66 Report on the right of adolescents to the enjoyment of the highest attainable standard of health of 4 April 2016, A/HRC/32/32.

67 At paras. 35 and 36.

68 At para. 37.

69 For example, in its Concluding Observations on the combined third and fourth periodic reports of Poland, on 30 October 2015 (CRC/C/POL/CO/3-4), the Committee recommended that Poland should “collect data on child nutrition, covering both undernutrition and overweight, and further develop measures for improved child nutrition, which should include regulations to restrict advertising and marketing of junk, salty, sugary and fatty foods and their availability to children” (at para. 37(d)).

70 Van BuerenG, The International Law on the Rights of the Child (Save the Children, 1995) p. 46 . See also AlstonP, “The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights” (1994) 8 International Journal of Law and the Family 1 , 4.

71 It has been noted that Art. 24(2) EU Charter and Art. 3 Convention are not identical to the extent that Art. 24(2) states that the best interest principle will apply in all actions “relating” to children, whereas Art. 3 refers to all actions “concerning” children. It is not clear whether this change is deliberate and how significant it might be in practice. Writing in 2002, Claire McGlynn argued that “concerning” children may encompass many more indirect measures than the formulation “relating to” children. If it seems clear that all policies, practices and other measures which have a direct impact on children will “relate to” them, it is not so obvious for indirect measures. A measure may not have been adopted with children in mind, it might make no reference to children, but it might “concern” children as it has an impact on them. Can it equally be said that the same measure “relates” to children? A policy may be too general to be said to “relate to” children, even if it is not child-neutral: McGlynn, supra note 15, 396. The Commission Communication seems to imply, however, that the difference in wording should not bear any consequences and that a broad understanding of Art. 24 should be adopted, as it provides that “it is important to ensure that all internal and external EU policies respect children’s rights in accordance with the principles of EU law, and that they are fully compatible with the principles and provisions of the Convention and other international instruments”, and that “children’s interests should be considered across all policy areas relevant to children” (Impact Assessment annexed to the Communication, at para. 3.2.1), which includes both direct and indirect measures – the degree of relevance being proportionate to the degree of directness of a given measure.

72 Committee on the Rights of the Child, General Comment No. 14 (2013).

73 Committee on the Rights of the Child, General Comment No. 14 (2013) at para. 4.

74 Supra note 70.

75 Report on Benin in 1999, CR/C/15/Add. 106, at para. 14. Cited in M Freeman, “Article 3: The Best Interests of the Child” in A Alen et al, A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff Publishers, 2007) p. 46.

76 At para. 17.

77 See Committee on the Rights of the Child (2009), General Comment No. 7 on implementing child rights in early childhood, [13(b)].

78 De VylderS, “Macroeconomic Issues and the Rights of the Child” in A Weyts (ed.), Understanding Children’s Rights: Collected Papers Presented at the Seventh International Interdisciplinary Course on Children’s Rights (University of Ghent, 2004) p. 431 .

79 Garde (2012) supra note 13, p. 164.

80 For more, see FreemanM, The Best Interests of the Child (Martinus Nijhoff Publishers, 2007) pp. 2574 .

81 See footnote 16 at para. 37.

82 Committee on the Rights of the Child, 2003, para. 45.

84 Information Note from the President to the Commission, “Better Regulation and Enhanced Impact Assessment”, 28 June 2007, SEC(2007) 926.

85 GardeA, “Freedom of Commercial Expression and Public Health Protection in Europe” in C Barnard and O Odudu (eds), (2009–2010) 12 Cambridge Yearbook of European Legal Studies 225 .

86 A Garde, “Advertising Regulation and the Protection of Children-Consumers in the European Union: In the Best Interests of ... Commercial Operators?” in H Stalford et al. (eds), Children’s Rights in Europe, a Special Issue of the International Journal of Children’s Rights 19 (2011) 523.

87 See AlemannoA and GardeA, Regulating Lifestyles in Europe: How to prevent and control non-communicable diseases associated with tobacco, alcohol and unhealthy diets? (Swedish Institute for European Policy Studies, December 2013), available at www.sieps.se/sites/default/files/Sieps_2013_7%20WEBB.pdf .

* University of Liverpool, .

** University of Liverpool, .

*** University of Liverpool, .

**** University of Liverpool, .

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