Once again, the jurisprudence emanating from Europe has been limited primarily to exceptions to the right to life44 rather than positive provision. However, examining the possible foundations for such an approach, Menghistu cites a 1979 case before the European Court where, although not directly related to the right to life, “[the Court] further reiterated that, the mere fact that an interpretation of the [European] Convention may extend into the sphere of social and economic rights is not a decisive factor against that interpretation: there is no water-tight division between that sphere and the field covered by the Convention” [emphasis added]45. Villagran Morales therefore stands as a precedent should any similar case arise before the European Court in the future46.
III) Inter-American Commission / Court of Human Rights
Historically, the Inter-American human rights system has been primarily concerned with ‘obvious’ violations of civil and political rights due to the widespread violence, political strife and instability that has beset the region (and which Craven claims to have encouraged “a myopic vision of human rights that has excluded from view problems of a broader nature, and particularly those relating to economic, social and cultural rights”47). This extends to the right to life, violations of which have been so “unambiguous and frequently uncontested” that “[t]he Commission and the Court have been able to classify these as violations of the Declaration and Convention without the need for any analysis of their content”48. Despite this observation, it is still possible to chart the evolution of the regional system’s broader interpretation of the right to life leading up to its decision in Villagrán Morales.
For example, during the drafting process of the ‘Declaration of the Fundamental Rights and Duties of Man’, the Council of Jurists, in December 1946, proposed the following text regarding the right to life: “Those incapable of sustaining themselves are entitled to protection and aid; and the abidance of this law is a responsibility of the State.”49
Craven undertakes a detailed study of the Commission’s growing awareness of ‘second generation’ rights throughout the 1980s, but is quick to point out that “there is a difference between giving specific recognition to economic, social and cultural rights qua rights, and recognizing them as background conditions, or contextual constraints [to civil and political rights]”50. In more recent years, he praises the Commission for developing a recognition of the interdependence of rights and for integrating economic, social and cultural rights into its work more51, by adopting the ‘minimum threshold approach’ to implementation52. However, despite the rhetoric, he issues the warning that “[u]nless the Commission puts itself in the position whereby putative violations of economic, social and cultural rights are brought before it, many of its pronouncements in this regard will remain at an abstract level and be devoid of real significance”53.
It is here that Villagran Morales carries particular weight, both morally - by recognising the socio-economic conditions of street children as violative of the right to life per se, under the wider definition of the right to life with dignity - and practically, by bringing these rights down from academic abstraction into practical legal usage. Thus, in the words of the judges, “Paragraph 144 of this judgement, in our opinion, faithfully reflects the evolution of the concept of the right to life within the framework of international human rights law in general, and within the American Convention on Human Rights (Article 4) in particular”54.
As for Asia, however, the complete lack of a regional system in the area continues to pose great problems. In the case of India, though, and with specific regard to the right to life issues raised in this case, it is very possible that the judgement in Villagrán Morales could influence its national legislation directly, particularly should there ever arise a case involving street children. This is due primarily to India’s innovative interpretation of the right to life55 which has so far included wide ranging cases based on Article 21 (right to life) of the Indian Constitution such as: the lack of adequate rehabilitation of released bonded labourers amounted to a denial of their right to live with human dignity56; the non-implementation and enforcement by the State of certain labour laws was likewise found to violate Article 2157; the eviction of pavement dwellers without being afforded alternative accommodation linked the right to life with the right to livelihood58; the right to life includes the right to legal aid59 and the enjoyment of clean air and water60.
To facilitate cross-fertilisation of Villagrán Morales into this arena, the Consortium for Street Children UK intends to produce an article on the implications of this case for publication in regional Asian legal journals, in association with Interights (a legal human rights NGO).
iii) Right to life with dignity: problems and solutions
It is not within the scope of this study to reproduce the debate on the justiciability of ‘second generation’ rights or the ‘layer approach’ to ‘positive’ and ‘negative’ obligations within particular rights61. Nor is it possible to specifically examine States’ obligations and capabilities to ensure socio-economic provisions ‘to the maximum of [their] available resources’62. However, from these debates it is possible to argue that many perceive the real power of rights as lying in their ability to be claimed against someone or something – i.e. the State, and the most effective way of facilitating this process and engaging accountability and enforcement is through the law. This also has ramifications for elevating socio-economic rights from the realm of charity to that of entitlement.
It is worth noting that in this case, unlike previous ‘back door’ attempts to secure social, economic and cultural rights via their reconceptualisation as civil and political rights63, the Inter-American Court has made a deliberate moral statement on the evolution of the law by publically elevating the basic needs necessary to a life with dignity to a position of legal enforceability; and it is from this transposal of moral aspirations to the legal arena that contention arises.
Critics of an expanded definition of the right to life to encompass ‘woolly’ socio-economic aspirations would claim that, not only is such ‘judicial liberalism’ probably contrary to the intention of the drafters64, but the creation of an atmosphere of legislative uncertainty runs contrary to the culture of ‘good faith’ upon which international human rights law is founded65. This is in addition to the practical difficulties inherent in establishing a direct link of causation between State failure to provide (at a level of general governmental policy) and individual cases of specific right to life violations66, not to mention the political fears surrounding ‘floodgate’ claims to economic reparations.
Another fear of the legal purists revolves around the phenomenon of ever decreasing circles of ‘silliness’ in opening the right to life to such claims as State responsibility for failure to enforce speed limits etc67, thus resulting in over-inflation of the rights currency leading inevitably to devaluation - with particularly dangerous consequences for the right to life due to its primacy in the rights hierarchy.
Furthermore, would such an expansion of the right to life also involve the notoriously amorphous ‘third generation’ right to development? The right to a clean environment? The right to peace? And if so, at what expense to the core protection of ‘traditional’ arbitrary deprivation of life / death penalty claims? In short, traditional adherents to a ‘black letter’ concept of human rights law would argue that any blurring would necessarily undermine the whole human rights legal infrastructure and must therefore be avoided at all costs.
However, although it is reasonable to be cautious, and even sceptical, of sweeping rhetorical statements which go unused, (particularly in legal arenas which depend upon precision for their objectivity and authority), the denial of an expanded definition of the right to life flies in the face of the need – established from the outset of this study – to encompass an evolutive approach to human rights law which is required in order to adequately address the development of societal needs in an increasingly globalised and accountable world: “In a world of increasing interdependence and instant communications, it is becoming more and more difficult for an oppressor to hide oppression, for the oppressed to be resigned to hopelessness, and for the rest of us to remain indifferent”68.
In addressing the question of the value of legal mechanisms in protecting rights in the first place, it should be remembered that: “Even in Western countries with well-established court systems, the status of law as an instrument of human rights and human dignity is problematic. Law is a powerful instrument in the hands of those who have money, power, influence, and knowledge, but it is a remote abstraction for the poor, the powerless, and the inarticulate”69. Casa Alianza estimates the cost of pursuing the Villagrán Morales case through the courts at US$ 100,00070, prohibitive to the average claimant, indeed even to the average NGO, to say the least.
Add to that the limitations currently prevalent in regarding only ‘first generation’ rights as applicable to the legal arena and the relevance of judicial enforcement of human rights at all to those most in need of it becomes the domain of the privileged few of the Western world. Indeed the question “whether the millions of poor people around the world have rights at all”71 in a world where 40,000 children die each day of hunger and malnutrition72, demands the reconceptualisation of the right to life if human rights are to have any meaning or relevance whatsoever for the vast majority of humanity.
The need for a wider legal definition of the right to life having been established, the practical problems associated with such an expansion need to be addressed. It would appear that the solution to the traditionalists’ concerns as outlined above lies in individualising the issues. McBride rightly points out that successfully drawing ‘second generation’ rights into the legal arena pivots on the need “to abandon the traditional way of viewing [these rights] as situations and turn them into individual cases”73. The suitability of this approach derives not only from the need to pander to the structures of international legal mechanisms (which preclude class actions), but also from other advantages.
Firstly, examination of issues on an individual, case by case basis engages judicial control over the scope of claims, thus avoiding the aforementioned descent into distracting over-proliferation of ‘silly’ demands74.
Secondly, fears concerning the ‘woolliness’ of unspecified calls for greater State attention to socio-economic provisions can be addressed through the reparations process. For example, in addition to narrow financial compensation for the victims’ immediate families, wider non-pecuniary reparations may also be sought for the benefit of the social group represented. In the present case, the five victims have a representative value for street children beyond their own immediate situation, and the petitioners (in addition to the standard financial compensation) have demanded the implementation of a national plan for street children, the benefits of which could prove enormous75.
This legal approach, although costly, does not therefore need to be taken up by each individual, poverty-stricken claimant of a State. It would be enough for a few courageous and tenacious pioneers to secure hard-won landmark precedents, engaging wide-ranging but realistic reparations, for the impact to filter down for the benefit of the group as a whole.
Hence the importance of Villagrán Morales in the present debate: the ‘woolly’ aspiration to improve the socio-economic conditions of street children in Guatemala has been transformed into the concrete, enforceable legal claim for a national plan of action for street children.
Therefore, the expansion of the legal right to life to include wider socio-economic provisions need not adversely affect the prerequisite precision of legal claims. It may also contribute to the process (as pioneered by the UN Committee on Economic, Social and Cultural Rights) of engaging State responsibility for implementing policies to the ‘maximum of its available resources’ based on a minimum threshold approach76. It should therefore be welcomed and encouraged, thus kickstarting the process of bringing the reality of all rights within the realm of those most in need of their provision and protection.
In conclusion, Villagrán Morales has the potential to make a significant contribution to international human rights jurisprudence, especially bearing in mind the universal customary international law audience established courtesy of the right to life. In an era of increasing willingness of international human rights tribunals to draw on cases and theories beyond their immediate jurisdictions, it is hoped that this recent decision may contribute to the ongoing reconceptualisation of legal approaches, with the ultimate aim of extending and strengthening the promotion and protection of human rights globally.