[NB: This discussion technically applies only to three of the five victims in the present case: Jovito (17), Julio (15) and Anstraum (17). “However, in this judgement, the Court is using the colloquial expression ‘street children’ to refer to the five victims in this case, who lived on the streets, in a risk situation” (para. 188).]
1) Defining Article 19
Villagrán Morales is the first time ever that the Inter-American Court has considered a case with children, let alone street children, as victims of human rights violations and it thus represents the first finding of a violation of Article 1977 of the American Convention on the rights of the child. As such, the Court explores the parameters defining the ‘measures of protection’ referred to in Article 19, thus setting a framework for future consideration of similar cases.
In line with the Court’s thinking on the right to life, and consistent with its 1999 Advisory Opinion78, the consideration of Article 19 refers specifically to the importance of an evolutive interpretation of international protection instruments 79:It is on this basis that the Court draws on universal human rights standards in its first interpretation of Article 19 of the ACHR.
The Court takes its lead predominantly from the UN Convention on the Rights of the Child. This is to be applauded, naturally, for encouraging the incorporation of the universal standards of the CRC into more enforceable legal arenas. However, ten years after the adoption of this (arguably) most influential of international human rights treaties, it would have been a sad indictment of international human rights law in general, and of promoters of children’s rights in particular, if the Court had failed to refer to the CRC in a case with implications of such obvious magnitude for the rights of the child80.
In summing up this section, the Court states: “These provisions allow us to define the scope of the ‘measures of protection’ referred to in Article 19 of the American Convention, from different angles. Among them, we should emphasize those that refer to non-discrimination, special assistance for children deprived of their family environment, the guarantee of survival and development of the child, the right to an adequate standard of living, and the social rehabilitation of all children who are abandoned or exploited” (para. 196).
Although there is much debate currently as to the relevance of particular articles (or indeed of the CRC itself) to street children81, and although the Court specifically limits itself to consideration of those articles deemed immediately relevant to the present case (para. 195), it is somewhat surprising that no reference is made to Article 4 which sets the framework for State implementation of all the provisions in the Convention, with particular reference to economic, social and cultural rights. This would appear to be directly relevant to the ‘measures of protection’ required by Article 19 of the ACHR which the Court seems to be interpreting as inclusive of positive State assistance, based on its reference to the other articles and in relation to the discussion above on the expanded definition of the right to life 82. The Court also fails, despite its concluding remarks above, to specifically reference CRC Article 39 which refers explicitly to social rehabilitation and reintegration.
However, despite these quibbles, the general implications are immense. By basing an interpretation of the free-standing provision of Article 19 on the UN Convention, the Court has established the world’s first international human rights mechanism by which to directly access the CRC’s provisions and to hold States accountable for their non-implementation, representing a truly great achievement for children’s rights.
b) UN ‘Riyadh Guidelines’ on the Prevention of Juvenile Delinquency83, and the ‘Beijing Rules’ on the Administration of Juvenile Justice84
Despite its omission in relation to Article 39 of the CRC, the Court does, however, refer to rehabilitation again, in a particularly innovative example of cross-fertilisation of international human rights standards, and in a way that has a symbolic importance for wider issues of street children in detention / juvenile justice systems around the world. The text of paragraph 197 of the Judgement reads as follows:
“The file contains documentary references to the fact that one of the three children in this case, Jovito Josué Juárez Cifuentes, was registered in the ‘criminal archives’ of the Identification Office of the National Police Force. In this respect, the Court considers that it is relevant to stress that, if the State had elements to believe that ‘street children’ are affected by factors that may induce them to commit unlawful acts, or has elements to conclude that they have committed such acts, in specific cases, it should increase measures to prevent crimes85 and recurrence. When the State apparatus has to intervene in offenses committed by minors, it should make substantial efforts to guarantee their rehabilitation in order to ‘allow them to play a constructive and productive role in society’86. In this case, it is clear that the State seriously infringed these directives” [emphasis added].
The Court’s reference to preventative and rehabilitative measures demonstrates an increasingly mature and longer term approach to issues affecting street children which reflects the work of NGO practitioners on the ground. In particular, this aspect of the judgement hits on one of the most pressing problems faced by street children everywhere. The horrific abuses and injustices suffered by children in juvenile justice systems around the world - which have been the subject of numerous reports by major human rights organisations87 - disproportionately affect street children who are doubly at risk in such situations: firstly, they are more likely to come into conflict with the law in the first place (albeit on dubious charges such as ‘vagrancy’ and ‘offense to public morals’) and secondly, they are subsequently less able to defend themselves from violations within that system. International attention is increasingly focusing on this matter - the High Commissioner for Human Rights has called for a thematic UN meeting on the subject in 2002 - and reference to it in the context of this landmark case, in an authoritative legal forum, is to be warmly welcomed88.
2) Applying Article 19
Having established the framework of interpretation of Article 19 of the ACHR as inclusive of the CRC, the Court continues by emphasising the indivisibility – and hence the socio-economic aspects - of the rights therein.
As has already been pointed out, throughout the case, both the Commission (acting as petitioner) and the Court repeatedly refer to the overall context of deprivation and violence which the victims - as representative of street children in general, at that time in Guatemala - endured. Here, the Commission outlines this background situation with particular emphasis on the dual nature of the violations suffered, not only the more obvious examples of violence and harrassment 89, but also the wider socio-economic deprivation experienced. The Commission speaks of “their abandonment and social exclusion” (para. 180), and of children “who lived in extremely precarious socio-economic conditions and who fought to survive alone and fearful of a society that did not include them, but rather excluded them” (para. 184), calling for a “special State obligation encompass[ing] the protection of a wide range of social, economic, civil and political interests of the child” (para. 185).
The full significance of the Court’s proclamation on the indivisibility and interrelationship of socio-economic and civil and political rights (as embodied in the CRC) is to be seen in paragraph 191. (This paragraph should be read in conjunction with the Court’s ruling on ‘positive’ State obligations as defined under both the American Convention and the CRC, and as discussed in Chapter 1 of this study on the right to life):
“In the light of Article 19 of the American Convention, the Court wishes to record the particular gravity of the fact that a State Party to this Convention can be charged with having applied or tolerated a systematic practice of violence against at-risk children in its territory. When States violate the rights of at-risk children, such as ‘street children’, in this way, it makes them victims of a double aggression. First, such States do not prevent them from living in misery, thus depriving them of the minimum conditions for a dignified life and preventing them from the ‘full and harmonious development of their personality’, even though every child has the right to harbor a project of life that should be tended and encouraged by the authorities so that it may develop this project for its personal benefit and that of the society to which it belongs. Second, they violate their physical, mental and moral integrity and even their lives” [emphasis added].
Therefore, the import of this case lies not only in the representative value of the victims in relation to street children in general, but also as championing the ‘indivisibility’ theory of both generations of rights in a concrete legal decision: “The idea of street children, whose civil and political rights to identity and equal treatment under the law are violated, while their rights to family, schooling, food security, health and shelter are not met, becomes thus coterminous with the sum of all violations and non-achievements.”90
3) Implications for international / regional children’s rights law
This decision adds to the relatively sparse international case law on children’s rights and is particularly significant in terms of the gravity of the rights violated. It is the first child murder case in contentious international human rights law, the first arbitrary detention case involving children, and represents by far the most serious threshold of child torture. The sheer moral weight and unambiguous findings of the strongly worded judgement also enhance the status of law in general as a protective, investigative, retributive and preventative tool in the protection and promotion of children’s rights. Its potential as a precedent to be cited in universal and regional cases involving children in future is therefore immense.
a) UN Committee on the Rights of the Child
Villagrán Morales is an excellent example of regional case law supplementing the implementation mechanism of the CRC, which is particularly important “given the fact that [the CRC’s] enforceability in international law is practically inexistent”91. Given that the direct implementation mechanism of the CRC is limited to the examination of State Reports submitted on a five-yearly basis to the grossly over-burdened and under-resourced Committee, it is accepted that real legal implementation of children’s rights is dependent on their incorporation into regional and, ideally, national legislation and jurisprudence. The geographical lack of a regional human rights system in Asia, and the thematic lack (or limitation) of economic, social and cultural rights in currently existing international judicial / quasi-judicial fora, is an obvious stumbling block to this approach. However, the Inter-American Court has nonetheless demonstrated a laudably bold and innovative - and hopefully influential - approach to the promotion and protection of children’s rights.
It will be interesting to see how the Committee on the Rights of the Child addresses the case during its forthcoming consideration of Guatemala’s second periodic report on the CRC, in January 2001.
b) UN Human Rights Committee
Although, to the author’s knowledge, the Human Rights Committee has yet to examine an Optional Protocol case involving children, should the occasion ever arise under Article 24 of the ICCPR, then it would be expected to look to the precedent of Villagrán Morales to establish of the parameters of protection required by States under Article 24 (1): “Every child shall have, without any discrimination..., the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State” [emphasis added]. As touched on previously, however, it will be interesting to note how the Committee deals with the CRC’s ‘indivisible’ (i.e. socio-economic) approach to children’s rights should such a case arise, bearing in mind the fears for the Optional Protocol mechanism outlined in Chapter 1 with regard to the right to life.
c) European Court of Human Rights
The European Court of Human Rights has shown itself to be increasingly receptive to importing standards from the CRC into its judgements92 and, as for Inter-American jurisprudence in general, Velásquez Rodríguez has become a benchmark reference. However, it should be remembered that the European Convention is limited to civil and political rights in the main, and has no equivalent to Article 19 of the American Convention. Thus the impact of the socio-economic aspects of the decision - which are arguably the most significant - will be dependent on the European Court’s incorporation of such concepts (on the grounds that the ECHR “is a living instrument to be interpreted in the light of present day conditions”93) into its ‘first generation’ substantive articles such as the right to life and the right not to be subjected to inhuman or degrading treatment.
d) African Human Rights System
The weight of the Villagrán Morales decision may prove to be more influential in the African human rights system: not only in relation to the specific mention of children’s rights in Article 18(3) of the African Charter on Human and People’s Rights94, but via the huge legal potential offered by the recent entry into force of the African Charter on the Rights and Welfare of the Child 95 with its wide-ranging petition mechanism open to individuals, groups, NGOs, Organisation of African Unity member States and the UN itself (Article 44(1)). In addition, Article 46 of the Charter permits the Committee to draw on virtually all other international human rights instruments in the interpretation of its provisions.
The effectiveness of this innovative instrument in real terms remains to be seen, but it could, in theory, have a huge impact on the advancement of African children’s rights, and if the Committee were ever to consider the problems of street children which affect so much of the continent, then the seminal case of Villagrán Morales could prove decisive in extending ‘positive’ State obligation to provide for a minimum threshold of socio-economic conditions.