The outbreak of COVID-19 has produced serious consequences on children. The predominant analysis mainly refers to four different effects, as to say the increase in number of children in conditions of extreme poverty; criticalities in accessing education, depending on social and economic condition of the family, as a consequence of the closure of many schools and the conversion of teaching activities into e-learning; difficulties in guaranteeing an adequate protection of health, considering the overload of national health systems; the increased risk of violence for children, both in the domestic environment and in de jure or de facto detention situations. On a normative level, the pandemic response has been characterized by a plethora of legal acts which do not partially or fully consider the major interests of children. In order to better take into account children's rights and interests, the guiding light for the adoption of regulatory measures with an impact on minors is the principle of the best interests of the child. The research, analysing legal measures adopted during the health emergencies responses, will specifically deal with the impact of the mentioned principle in international, European and national laws as well as its procedural implementation. The main case study for the project will be the COVID-19 emergency response.
So far, the doctrinal analysis has only occasionally analysed the interplay between the best interests of the child at large and the specific procedural aspects in law-making process. This project aims at filling this gap and dealing with childrens' rights and interests at large, procedural measures to include those interests within legislation, and consequences of the misapplication of such procedural obligations.
On the latter issues, the analysis of the consequences of the misapplication of the procedural obligations, lesser analysed by doctrine, will be focused on three main aspects. First of all, given the self-executing nature of the BIC principle, there would be the possibility for individuals to ask for a judicial enforcement within the territory of the state. Nevertheless, if we consider, as stated above, that the principle has a customary status in international law, the mentioned possibility of judicial enforcement would universally apply.
In any event, one should consider that this kind of enforcement would intervene in the issue only once that the emergency situation is, possibly, over and, as such, could lack of effectiveness, even if it could represent a good opportunity to make a legal rule on the procedural requirements deriving from an adequate implementation of the BIC principle.
The second possible consequence of non-compliance with the principle could be, for states parties to the third Optional Protocol to the UNCRC, the possibility that a child, or group of children, files a communication before the CRC. The Committee will evaluate the situation and consequently publish a specific view with recommendations to the state concerned.
Furthermore, in addition to the adoption of a view, at any time after the receipt of a communication and before a determination on the merits has been reached, may transmit to the state party concerned for its urgent consideration a request that the state party take such interim measures as may be necessary in exceptional circumstances to avoid possible irreparable damage to the victim or victims of the alleged violations.
Lastly, there could be a third consequence, ascribed in the framework of the state reporting cycle.
A specific aspect not at all considered by the scientific literature so far is that embedding the BIC in policy and legislation would have been of paramount importance in order to give an effective and practical response to the COVID-19 emergency. The research will advance the idea that, in the case of children, there is a sort of "intergenerational equity" to be taken into account, because the measures adopted by governments, as to say adults, can have disruptive effects on children, which will manifest also over the years. In this sense, equity is in fact more a necessity and the project will seek to demonstrate that the BIC principle has both the power and the function to address and drive the states¿ ships on the rough seas of the pandemic storm.
Notwithstanding its recognized legal value in the framework of international environmental law, particularly in the context of climate change law and policy, the principle of intergenerational equity could have a significance in other areas of international law, due to the implied intertemporal dimension. Already the 1997 UNESCO Declaration on the Responsibilities of the Present Generations toward Future Generations refers, in its Art. 11, to the responsibility of present generations to refrain from taking any action or measure which would have the effect of leading to or perpetuating any form of discrimination for future generations.
The link between intergenerational equity and BIC has been at the core of the Communication to the CRC No. 105-108/2019 of 23 September 2019, in the case of Greta Thunberg et al v. Argentina, Brazil, France, Germany, and Turkey.
In the Communication, the applicants point out that the BIC transversely invests every right guaranteed under the Convention, is trampled on flagrantly by the conduct of States that do not comply with it in adopting state policies on greenhouse gases (CRC, 2019, para. 301-308). On the contrary, state actions that postpone the abandonment of fossil fuels, pursuing short-term objectives, do not take into consideration the interests of the youngest, who will then have to face hopelessly compromised situations. The applicants complain, therefore, that in postponing the adoption of serious measures to combat climate change, the States do nothing but shift the burden of tackling the phenomenon on children and future generations, thus violating the cardinal principle of the Convention (CRC, para. 308).
Thus, the intergenerational perspective is part of international human rights of children. While the UNCRC does not explicitly mention the future generations, their interests are ensured by the perspective laid down by the BIC principle, which is implicitly future-oriented and involves the interests of both present and future generations.