A.The International Legal Context: The Rights to Life, Health and Survival
Under article 6 of the CRC, states recognize each child's right to life and undertake to ensure 'to the maximum extent possible the survival and development of the child.' This provision, according to UNICEF, is holistic in nature and should inform interpretation of more specific provisions of the CRC, which guide states in their obligations to respect, protect and ensure children's rights in the areas of health, nutrition and the provision of an adequate standard of living. The key provisions are article 23, which protects the rights of disabled children; article 26, which instructs states to offer some form of social security for children whose parents cannot provide for them adequately; article 27, which recognizes each child's right to a 'standard of living adequate for the child's physical, mental, spiritual, moral and social development;' and, most importantly, article 24, which sets the 'highest attainable standard of health' for children as a goal for states party to the CRC. In pursuit of this goal, the Convention requires states to take all available measures:
(a) To diminish infant and child mortality;
(b) To ensure the provision of necessary medical assistance and health care to all children . . . ;
(c) To combat disease and malnutrition . . . within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking water . . .;
. . .
(e) To ensure that all segments of society . . . are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition . . . .
These specific objectives should be pursued in connection with the child's associated rights to an adequate standard of living and a basic education.
With regard to the right to health, the CRC recognizes that limitations on state resources make immediate and complete realization of its goals unrealistic. It therefore emphasizes that the rights specified in article 24 should be pursued 'to the maximum extent of . . . available resources and, where needed, within the framework of international cooperation.' In its initial review of China's report on compliance, the CRC Committee accordingly acknowledged the vast size of China's population and its consequent difficulties 'in meeting the needs of all children under its jurisdiction . . . not least in the economic and social fields.' Even making allowances for these practical difficulties, however, the domestic laws passed by the PRC, at least as of 1995, fail to implement the CRC's provisions in conformity with international standards.
A review of the domestic laws cited by the PRC in satisfaction of its obligations under article 24 reveal strikingly general and often hortatory provisions. The PRC's Protection of Minors Act, for example, provides that: '[School activities] must be conducive to the minors' healthy growth; risks to minors' personal safety must be avoided' (article 17); and '[t]he Health Department and schools shall provide the conditions necessary for the protection of minors' health, and shall take steps to prevent disease' (article 27). Similarly, the 1994 Mother and Infant Health Protection Act instructs the state to 'promote mothers' and infants' health' and to 'support the protection of mothers' and infants' health in outlying and poor districts' (article 2). These provisions provide little guidance about what, if any, specific measures are actually required to implement the right to health recognized in article 24 and elsewhere in the CRC.
International law does recognize resource constraints. It affords states greater flexibility when evaluating their progress in implementing the full spectrum of social and economic rights, such as the right to health, recognized in the CRC. Still, there are some highly effective measures that can be legally implemented but require few resources. A system of health education, for example, could help halt the spread of disease and encourage better hygienic practices, while its cost would be comparatively trivial.
Finally, international law prohibits discrimination by states in the provision of those resources available to them. To the extent that rural regions of Tibet receive a disproportionately low amount of state funding towards children's health, the PRC may be in breach of its obligations under article 2 of the CRC.