Article Contents

Introduction

With its decision in Gi.C. et al. v. Italy dated 10 June 2025, the UN Committee on the Rights of the Child (the Committee) declared inadmissible a communication submitted by ten talian children concerning a highly sensitive issue: State-imposed restrictions on unvaccinated individuals during the COVID-19 pandemic. While the decision itself avoids any consideration of the merits and offers limited reasoning even on admissibility, the dissenting opinion by Committee Member Benoit Van Keirsblick offers meaningful grounds for reflection.

Facts

The authors of the communication, who were between 12 and 17 years old at the time of the events, claimed that emergency legislation enacted during the COVID-19 pandemic, specifically the requirement of a "Super Green Pass" to access schools and participate in educational and recreational activities, violated their rights under the Convention on the Rights of the Child (CRC). They argued that the State had violated their rights under Articles 27(1) (right to standard of living adequate for the child's development), 28 (right to education), 29(1) (aims of education), and 31 (right to leisure and play). While the children asserted that they faced discrimination based on age and vaccination status, the State maintained that no individual harm had been demonstrated.

Issues

During the pandemic, the Italian government implemented a significant amount of emergency legislation. One key legislative decree, in effect from April 2021 to March 2022, introduced the "Super Green Pass," a document with a six-month validity period starting from the last COVID-19 vaccine shot that was provided to fully vaccinated individuals and allowed them to participate to in-person activities (e.g., access to indoor workplaces, cinemas, restaurants, etc.). The measure was applicable to children as well. In particular, children over the age of 12 needed to hold a "super green pass" to access school premises and participate in educational, cultural, vocational, sporting, and recreational activities. While this decree effectively ended the prolonged period of distance learning and isolation that had affected children of all ages for an entire year, it also created challenges for those children and adolescents who were unvaccinated or who could not provide proof of recent recovery from an infection. They continued to be subject to distance learning, quarantine measures, and restrictions on participation in most indoor activities. As a result, the authors of the complaint, who were part of that age group, argue that they experienced an infringement of their rights. The authors supported their claims with findings from the Italian Ombudsman for Children and their Rights, the National Authority for Children and Adolescents (see para. 2.3), arguing that the legislation impeded their physical, mental, moral, and social development and amounted to indirect discrimination based on age and vaccination status. They also noted that the law further discriminated against a specific group of children based on age, as no restrictions applied to children under 12.

In response, the State Party defended the measure as part of a broader emergency framework intended to protect public health during the global crisis. The State did not deny the limitation of individual rights that indeed occurred during that time; instead, it defended its position by describing it as “in full compliance with international standards” (para 4.3). According to its response, the interference with certain rights was proportionate, necessary, and carefully balanced against the need to safeguard the right to health as a collective interest. It argued that individuals’ rights and freedoms were limited as a result of a reasonable balance between the measures imposed and the aim pursued. More specifically, as concerns the measure’s effect on children, it argued that the temporary nature of the measure, combined with the provision of alternative means (such as distance learning), ensured that no child was prevented “from accessing education at any level” (para 4.2). The State also emphasised that there was no demonstrated causal link between the legislation and any specific harm to the authors and their rights to “education and study, mobility, freedom of association, and assembly”, arguing that they failed to establish their status as victims. Furthermore, according to the State, if the authors had managed to do otherwise, they would have had remedies available at the national level.

The Committee’s views

As required by the Optional Protocol to the CRC on a communication procedure (OPIC), the Committee first analysed the question of the admissibility of the complaint, particularly concerning the claimant’s standing. On the one hand, the Committee agrees with the authors that certain rights may have indeed been adversely affected by the Italian legislation, whose "mere existence" constitutes a violation of those rights. On the other, the Committee also agrees with the State's position that the children failed to demonstrate any "personal, real and significant harm." The authors are part of a group of children who, being older than 12, have been affected by the introduction of this legislation; however, this only shows that, in abstract, their rights have been violated. The Committee maintains that even in group complaints, a certain threshold of proof of individual harm must still be met. The Committee, as a matter of fact, cannot assess abstract claims or actio popularis and is bound by Article 5 of the OPIC to evaluate communications from groups of individuals who are individually affected.

In light of these findings, the Committee declared the communication inadmissible for lack of demonstrated personal impact on the authors.

Commentary

Gi.C. et al. v. Italy centers on the impact of emergency legislation enacted by the Italian government during the COVID-19 pandemic on children’s lives and rights. Unfortunately, however, the Committee’s decision only scratches the surface of this core issue. While strict procedural limitations are vital to preserving the effectiveness of the individual communications procedure, this decision raises serious concerns about the interpretation and application of admissibility criteria.

Notably, in just a few effective words, Committee Member Benoit Van Keirsblick's dissenting opinion highlights the implications of a narrow interpretation of victim status and the risks this poses for future communications. Van Keirsblick agrees with the majority that the authors failed to specify how their rights were individually and specifically affected. However, Van Keirsblick also finds that because COVID legislation was very targeted and specific about which activities were restricted and how, the Committee applied a disproportionately burdensome standard of proof on the authors, especially concerning the right to education. Since the applicants were all of compulsory school age, Van Keirsblick asks what else they should have had to prove beyond “the undisputed fact that they were unable to attend school but could only follow distance learning” (para. 4 Dissenting Opinion).

This point exposes a tension between the current decision and the previous jurisprudence of the Committee. First, the Committee determined that the authors had not demonstrated with sufficient precision and individuality the damage caused by the contested legislation to their rights and, in doing so, required the same standard of proof for each of them. However, by failing to distinguish between different situations, such as the restriction on access to educational facilities infringing the right to education (art. 28), and those related to sports and recreational activities affecting the right to play (art. 31), the Committee also failed to consider the differences between the obligations arising from these rights. Especially concerning economic, social, and cultural rights, the Committee has, over time, distinguished between rights that entail a positive obligation on the part of the State to ensure a minimum level of services (such as compulsory education) and those that do not (cfr. CRC/C/GC/19 paras 28-34). Regarding education, the CRC provides for more comprehensive obligations than other economic and social rights, encompassing both a quantitative and qualitative aspect of education (CRC/C/GC/1 para 2). The right to education is closely linked to the interconnected nature of the CRC’s provisions and its core role in children’s holistic development, which does not diminish with adolescence but perhaps even strengthens (CRC/C/GC/16 para 69). The State has a binding obligation to guarantee access to “universal, quality and inclusive education,” and any restrictions must be carefully justified (CRC/C/GC/16 para 68). A different evidentiary threshold may therefore be appropriate for claims related to education compared to those concerning extracurricular or leisure activities. From this perspective, it would have been reasonable to analyse the admissibility of the claims separately, a common and well-established practice with other international bodies, such as the European Court of Human Rights (ECtHR). Doing so would have allowed for an individual assessment of the grounds for violation of each right and related legal provision, potentially leading to a conclusion of partial inadmissibility.

Second, this narrow understanding of the locus standi requirement under article 5.1 OPIC seems to be inconsistent with the Committee’s broader approach to strategic litigation. Because education, especially if compulsory, should be accessible to all children “on the basis of equal opportunity” (Art. 28 CRC), the alleged harm was arguably neither limited to the individual authors nor an abstract challenge, but was likely shared by all children over 12 who were subjected to the same restrictions. In particular, when a violation of rights subject to the complaint before the Committee arises from a specific policy rather than a particular conduct by the State, the children who file the complaint are both holders of individual interests and representatives of a larger group of children who found themselves in the same situation. From this perspective, a decision by the Committee serves not only the children directly involved but also all others in the same situation. In this case, the complaint thus arguably raised a systemic issue caused by a specific policy that targeted a certain group of children and whether or not it constituted a violation of children's rights would then have to be determined by an assessment of the merits (see e.g. Sacchi et al. v Argentina, et al.; M.E.V et al. V Finland). By treating this group claim as an actio popularis, the Committee seems to have missed the mark and to have take a step in the opposite direction of that of its usual approach towards encouraging the use of individual communications procedure “in the context of strategic litigation to advance children's rights in a comprehensive manner" (para 6 Dissenting Opinion).

Even if victim status had been granted solely regarding the right to education, this would not have assured a ruling on the merits. As the Dissenting Member pointed out, the Committee would still need to address the issue of exhaustion of domestic remedies, an almost equally thorny issue. In fact, on the one hand, the quasi-federal structure of the Italian legal system, especially concerning health matters, creates a complicated interplay of regional and national laws. This, combined with the emergency nature of the measures, hampers, if not even prevents, the availability of domestic remedies. While this might favor the authors’ position, the existence of previous rulings by the Italian Constitutional Court upholding the constitutionality of the “Green Pass” (Constitutional Court Judgments n. 14, 15 and 16/2023) argues against it.

Nonetheless, it would have been valuable to see the Committee’s stance on the substantive issues and how they might have addressed them. This includes considerations of the proportionality of restrictions on rights, the balancing of the right to health (article 24) against other rights, whether children’s opinions were taken into account in the vaccination decisions, and in light of it, which responsibilities should be borne by the State and which by the parents. Even more so, given the numerous COVID-19 crisis related cases that were dismissed on admissibility grounds by the ECtHR, the Committee had a significant chance to set a leading jurisprudence and to provide insights into the legality of restrictions on children's rights implementation and protection during a public health emergency. Their decision could have provided essential guidance for future situations of crisis by setting limits for policymakers and preventing undue unjustified breaches of fundamental rights.

Further Reading