A/HRC/15/29 20. Certain general principles underline the obligation of States to protect the rights of all children, and are of relevance to the situation of children in the context of migration. A. Non-discrimination 21. The principle of non-discrimination, as set out in article 2, paragraph 1, of the Convention provides that all rights contained therein are applicable “to each child within their [States Parties’] jurisdiction without discrimination of any kind”. This would include a prohibition on discrimination on the basis of nationality, immigration status or statelessness. Children should also be protected against discrimination or punishment on account of the status of their parents, legal guardians or family members (art. 2, para. 2). The Committee on Economic, Social and Cultural Rights has further elaborated that the “ground of nationality should not bar access to Covenant rights, e.g., all children within a State, including those with an undocumented status, have a right to receive education and access to adequate food and affordable health care.”17 22. The Committee on the Rights of the Child has emphasized that discrimination, “whether it is overt or hidden” is an affront to the human dignity of children.18 The Committee has addressed the issue of disparities that exist between especially vulnerable children (which would include children affected by migration) and other children, noting that these disparities often amount to de facto discrimination in the areas of health care, education and social services.19 The Committee on Economic, Social and Cultural Rights has similarly noted that both direct and indirect discrimination will have an impact on the enjoyment of Covenant rights.20 23. Recognizing that, in some situations, such as in the context of certain political rights, limited distinctions can be made between nationals and non-nationals, the Committee on the Elimination of Racial Discrimination has nevertheless stated that “differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation … are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim”.21 The principle of non-discrimination thus prohibits distinctions that are unjustifiable, unfair or arbitrary. B. The best interests of the child 24. The principle of the best interests of the child is derived from article 3, paragraph 1, of the Convention on the Rights of the Child which states that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a 17 18 19 20 21 Committee on Economic, Social and Cultural Rights, general comment No. 20 on non-discrimination in economic, social and cultural rights (art. 2, para. 2). The Committee on the Rights of the Child has specified that in view of the absolute nature of obligations deriving from the Convention and their lex specialis character, article 2 paragraph 3, of the Covenant on Economic, Social and Cultural Rights would not apply with regard to unaccompanied and separated children (see its general comment No. 6). Committee on the Rights of the Child, general comment No. 1 on the aims of education (art. 29, para. 1). Jaap E Doek, “The CRC General Principles”, 18 Candles: The Convention on the Rights of the Child Reaches Maturity (Sion, OHCHR and Institut international des droits de l’enfant, 2008), p. 33. Committee on Economic, Social and Cultural Rights, general comment No. 20. Committee on the Elimination of Racial Discrimination, general recommendation No. 30 on noncitizens. 7