As the first ever ruling of the Inter-American Court on children as victims of human rights violations, this landmark decision sets an important precedent for international human rights jurisprudence, particularly in terms of the right to life, children’s rights and the concept of torture in relation to children.
Firstly, of particular significance is the judges’ definition of the right to life that has been expanded to encompass the ‘right to life with dignity’ via positive State provision of a minimum threshold of economic and social standards. This decision therefore concretely underlines the indivisibility and interdependence of rights as increasingly accepted in human rights theory and as expounded at the 1993 World Conference on Human Rights in Vienna21.
Secondly, the judgement adds to the relatively sparse international case law on children’s rights, further enhancing the status of international standards of protection and provision as stated in the almost universally ratified UN Convention on the Rights of the Child (CRC)22. By incorporating the standards of the CRC into its interpretation of ACHR Article 19 on the rights of the child, the Court has created the first international mechanism to provide direct judicial access to the provisions of the CRC.
Thirdly, this is the first ever case in contentious international human rights law to consider such a clear-cut and extreme example of torture against children and it thus contributes to the contemporary debate about the applicability of ‘adult’ definitions of torture in relation to children. It is also only the second time ever that the regional torture convention has been found to have been violated.
Beyond the purely legal implications, this high-level, powerfully worded decision has important symbolic significance in terms of the public recognition and elevation of the rights of street children, an all-too-often neglected, abused and vulnerable societal group. It also contributes to the encouragement, publicity and strengthening of the reputation of the Inter-American human rights system specifically, and of international human rights mechanisms in general, as well as nurturing international and public encouragement for the maintenance and advance of the rule of law in countries throughout the region and the discouragement of a climate where violations are committed with impunity.
The current study will focus primarily on the significance of this case at the international legal level, but brief attention will be paid to the wider implications outlined above with a view to indicating how this landmark decision could be made to have concrete ground-level ramifications in the future, in an attempt to analyse the significance of such international decisions in ‘real’ terms, bridging the divide between legal theory and the actual promotion and protection of human rights at grassroots level.
CHAPTER 1 RIGHT TO LIFE
“The branch of international law concerned with the promotion and protection of human rights must..., of necessity, be in the forefront of the discipline, charting new courses, breaking new ground, and establishing new models and methods.”23 This increasingly acknowledged theory that “[i]nternational human rights law...is ‘avant garde’ international law”24 is strongly reflected in the thinking of the Inter-American Court in general and in this case in particular, which centres on that most fundamental of all human rights - the right to life.
It has been affirmed time and time again both in academic legal theory and in jurisprudence (reiterated in the present case) that “[t]he right to life is a fundamental human right, and the exercise of this right is essential for the exercise of all other human rights. If it is not respected, all rights lack meaning”25. Likewise its non-derogable character under jus cogens26 is accepted, as is its status as a norm of customary international law27. The undisputed, universal acknowledgement of the primary importance of the right to life has particular relevance for the implications of the present case because the audience for its findings is thus truly universal, reaching beyond the immediate jurisdiction of the Inter-American Court: “In examining the nature and meaning of the concept, as part of general international law, therefore, it is not necessarily limited by the provisions of particular international conventions or declarations, but must have recourse to the totality of evidence and practice available within the international community” emphasis added]28.
Until recently, however, this acknowledgement has referred mainly to the traditional ‘negative’ aspect of the right to life, i.e. the right not to be arbitrarily deprived of life. This obviously applies in the present case and will be dealt with briefly here before examining the greater significance of this case in terms of the evolution of the ‘positive’ aspects of the right to life.
1) ‘Negative’ aspects of the right to life:
- the right not to be arbitrarily killed / the obligation on the State not to kill
Consistent with its own case law, and taking into account the “generalised pattern of violence against ‘street children’ by agents of State security units” (para. 142) the Court held the State of Guatemala responsible for the actions of its agents (National Police Force in this case)29. The State, via its agents, thus violated the victims’ right to life.
2) ‘Positive’ aspects of the right to life: a) State complicity via failure to investigate and prosecute
A person’s ‘negative’ right not to be arbitrarily deprived of their life actually translates into a State’s ‘positive’ obligation to protect and preserve that life. In practical terms, building on the judgement in Velásquez Rodríguez30, this translates into a State’s duty to investigate and prosecute with ‘due diligence’ those responsible for violations of the right to life. Failure to do so implies State negligence bordering on actual complicity in the violations. In the present case, the Commission (acting as petitioner on behalf of Casa Alianza and CEJIL / the victims) claimed that State failure to investigate and prosecute cases of violence against street children “gave rise to the de facto impunity that allowed, and even encouraged, the continuation of these violations against the ‘street children’, increasing their vulnerability” (para. 139).
Thus, in Villagrán Morales, not only did the State fail in its ‘positive’ obligation to protect against arbitrary deprivation of life, but its failure to do so was compounded by the fact that this obligation to protect in the first place was particularly great: not only due to the age of the victims, three of whom were children (para. 146), but also due to the situation in which they, as street children and youths, found themselves particularly vulnerable to State endorsed violence. As the Joint Opinion states: “The duty of the State to take positive measures is accentuated [original emphasis] precisely in relation to the protection of the life of people who are defenceless and vulnerable, and who are at risk, as are street children”31.
A related issue worth considering for the future is how to engage State responsibility for violations of street children’s rights by private (as opposed to State) actors. A possible approach would be that advocated by women’s rights groups as an alternative mechanism to combat domestic violence, i.e. by establishing a pattern of State complicity via failure to prosecute 32. This could prove equally relevant to defenders of street children’s rights. Similarly, another legal route to engage State responsibility that has yet to be explored in relation to street children is that of ‘discrimination’ based on their socio-economic (or often racial / ethnic / indigenous) status33.
b) Life with dignity
The ‘positive’ obligation on States to offer judicial protection and to prosecute those responsible for violations of the right to life is therefore not new, as evidenced by Velásquez Rodríguez and all subsequent jurisprudence on the issue. However, the present case of Villagrán Morales takes judicial interpretation of the ‘positive’ aspects of the right to life one step further, beginning with an expanded definition of ‘life’ to encompass ‘life with dignity’, and following with a State’s corresponding duty to ensure access to the means by which such a life may be enjoyed. It is here that the true import of this case in relation to international human rights law is realised.
i) Right to life with dignity: the moral basis
The key paragraph of the judgement in Villagrán Morales concerning the right to life culminates thus:
“In essence, the fundamental right to life includes, not only the right of every human being not to be deprived of his life arbitrarily, but also the right that he will not be prevented from having access to the conditions that guarantee a dignified existence. States have the obligation to guarantee the creation of the conditions required in order that violations of this basic right do not occur and, in particular, the duty to prevent its agents from violating it” [emphasis added] (para. 144).
The Joint Opinion on the case by Judges Cançado Trindade and Arbeu Burelli elaborates this concept further, and deserves to be quoted at length [emphases added]:
“The arbitrary privation of life is not limited, then, to the illegal act of homicide: it extends to the deprivation of the right to live with dignity. This conception of the ‘right to life’ extends not only to civil and political rights but also to economic, social and cultural rights, illustrating the interrelationship and indivisibility of all human rights. [...]
In the present case..., there is the additional aggravating circumstance that the lives of those children had already lost meaning: that is, the children who were victims were already deprived of the possibility of creating and developing the project of their life and of finding a meaning for their own existence.
The need to protect the most vulnerable people - as in the case of street children - definitely requires an interpretation of the right to life which encompasses the minimum conditions for a life with dignity [una vida digna]. [...]
We believe that the project of life is consubstantial with the right to existence, and that its realisation requires the conditions which make possible a life with dignity and enable the person to have security and humane treatment. [...]
As enunciated by the Judges themselves in this case, when considering the right to life, “it is very difficult to separate dogmatically judicial from moral concerns”34. Questioning the value of life as mere existence, devoid of quality of life, strikes at the core of human nature and jus natural upon which human rights law is ultimately founded:
“The moral theologian, Volker Eid, rightly says that insofar as the concept of life is not limited to its biological or medical aspects, human life is not merely a situative existence or simply a presence. It is more of a personal history which extends from conception to death. Consequently, he asserts that the idea of human life cannot be limited to pure vitality or to the continuity of bio-chemical processes. It consists of the integral whole of psychic existence which is primarily directed by reason, will, dispositions, traits etc; and which concretely expresses itself in human needs such as happiness, knowledge, communication, love, work, freedom, etc”35.
“[L]ife has a higher value as a process, as a result of which the right to life is also a right to access the necessary means for supporting human life” [emphasis added]36.
There is no lack of academic literature calling for an expanded conception of the right to life: the novelty of Villagrán Morales is that it represents the first case in international human rights jurisprudence to have adopted this position concretely. The evolution of the right to life and the implications for cross-fertilisation of this case in international human rights law will be examined, followed by an analysis of the problems inherent in such an expanded definition.
ii) Right to life with dignity: evolution and implications
I) General academic theory and the UN
The traditional, narrow interpretation of the right to life is best expressed by Przetacznik, writing in 1976 (the year which saw the entry into force of the symbolically divided twin Covenants): “Therefore, for the sake of clarity, the term ‘the right to living’ should be used for the determination of the economic, social and cultural rights, and the term ‘the right to life’ for this right sensu stricto”37.
Since that time, statements and resolutions about the indivisibility of rights (and the foremost position of the right to life within that scheme) have been made by the UN General Assembly38 and the Commission on Human Rights39, epitomised in the influential Human Rights Committee’s General Comment 6 which famously declares:
“the Committee has noted that the right to life has been too often narrowly interpreted. The expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, andthe protection of this right requires that States adopt positive measures. In this connection, the Committee considers that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics” [emphasis added] 40.
In reality there is a yawning disparity between the Committee’s wide consideration of positive measures of the right to life under the reporting system (including labour safety measures, public health, combating crime and drug abuse, reducing unemployment etc) and the fear of such an approach being applied to concrete judicial consideration under its Optional Protocol mechanism (such jurisprudence being mainly limited to arbitrary death, death in detention and death penalty cases)41: “If a liberal interpretation is given to the right to life this inevitably introduces the concept of progressive obligations into the Covenant. It also inevitably leads to some overlapping between civil and political and social and economic rights. This in turn raises the question of the applicability of the Optional Protocol procedure to a liberally interpreted right to life”42. Only time will tell how the Committee reacts to the Inter-American Court’s concrete transposal of these concepts to the judicial realm; and whether or not it may be encouraged to follow suit.
The first official linking of the socio-economic and civil and political aspects of the right to life is in Article 6 of the 1989 Convention on the Rights of the Child:
1. States Parties recognise that every child has the inherent right to life.
2. State Parties shall ensure to the maximum extent possible the survival and development of the child.
Although the Inter-American Court in the present case refers to this CRC article in the context of its general consideration of the rights of the child (see Chapter 2 of this study), it does not expressly refer to it here in the context of the right to life. This would seem to represent a missed opportunity to have strengthened the cross-fertilisation of international legal norms specifically in regard to the linking of the two generations of rights under the right to life banner43.