18”Such factors have generated some public support for harsh policing to put a stop to crime, but it is Amnesty International’s view that the desire to control crime cannot be used as an excuse for violating basic human rights, including the right to life.” Amnesty Report, supra note 5, Summary. Amnesty International also attributes the specific 1990 crackdown on street crime as being fuelled by a US Department of State ‘travel advisory’ warning about Guatemala, leading to police attempts to convince US and other critics “that a serious effort is being made to combat crime in the capital,” Id., at 2.
19All of the preceding cases, including that of Villagrán Morales, are reported in id.,at 4-25 and Appendix 1.
20Testimony of Beto, aged 15 who has been on the streets since he was 10 and has suffered this particular form of abuse five times. Human Rights Watch, Guatemala’s Forgotten Children: Police Violence and Abuses in Detention (July 1997) at 12 [hereinafter Human Rights Watch Report]. Available online: http://www.hrw.org/hrw/reports/1997/guat1 [4 August 2000].
21 “’The official’ position, dating back to the Universal Declaration and reaffirmed in innumerable resolutions since that time, is that the two sets of rights are, in the words adopted by the Second World Conference on Human Rights in Vienna, ‘universal, indivisible and interdependent and interrelated’ (Vienna Declaration, para. 5).” Henry J. Steiner & Philip Alston, International Human Rights in Context: Law, Politics, Morals 256 (Clarendon Press 1996).
23B. G. Ramcharan, The Concept and Dimensions of the Right to Life [hereinafter Ramcharan], inThe Right to Life in International Law 1 (B. G. Ramcharan ed., 1985) [hereinafter The Right to Life].
26 “The right to life is...a fundamental right in any society, irrespective of its degree of development or the type of culture which characterises it, since this right forms part of jus cogens in international human rights law.” A Special Rapporteur for the UN Commission on Human Rights A/37/564, para. 22, quoted in Ramcharan, supra note 23, at 14. See also: “It is the Supreme right from which no derogation is permitted even in times of public emergency which threatens the life of the nation.” UN Human Rights Committee, General Comment 6 on the right to life, 30/07/82, para. 1.
27 “Protection against arbitrary deprivation of life must be considered as an imperative norm of international law, which means not only that it is binding irrespective of whether or not States have subscribed to international conventions containing guarantees of the right, but also that the non-derogability of the right to life has a peremptory character at all times, circumstances and situations.” Kurt Herndl, Assistant Secretary-General for Human Rights, United Nations, Foreword, inThe Right to Life, supra note 24, atXI.
28Ramcharan, supra note 23, at 3.
29Judgement, para. 143 cites Paniagua Morales et al, Judgement of 8 March, 1998. Series C No. 37, para. 120. Judgement, para. 145 cites the UN Human Rights Committee, General Comment 6, supra note 26, para. 3: “The protection against arbitrary deprivation of life [...] is of paramount importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of utmost gravity. Therefore, [the State] must strictly control and limit the circumstances in which [a person] may be deprived of his life by such authorities.”
30Velásquez Rodríguez v. Honduras, Judgement of 29 July 1988. Series C No. 4.
31Judges A.A. Cançado Trindade and A. Arbeu Burelli, Joint Opinion: Inter-American Court of Human Rights, Villagran Morales et al v. State of Guatemala, 19 November 1999 [hereinafter Joint Opinion]. See Appendix C for full text.
32“The Special Rapporteur on Violence Against Women has documented a persistent pattern of state complicity in domestic violence through states’ non-prosecution.” Lisa M. Kois, Dance, Sister, Dance!, inAn End to Torture 85 (B. Dunér ed., 1998), citingReport of the UN Special Rapporteur on Violence Against Women: Its Causes and Consequences, U.N. Doc. E/CN.4/1996/53, 5 February 1996. See also: Rhonda Copelon, Intimate Terror, Understanding Domestic Violence as Torture, inHuman Rights of Women, National and International Perspectives 116-153 (R. Cook ed., 1994); Kenneth Roth, Domestic Violence as an International Human Rights Issue, in id., at. 326-339; Donna Sullivan, The Public / Private Distinction in International Human Rights Law, in Women’s Rights, Human Rights 126-134 (Peters and Wolper, eds., 1994).
33For this debate in relation to domestic violence, see Roth, supra note 32 at 333-336.
34Joint Opinion, supra note 31.
35Sylvanus Ndubisi Okechukwa, The Right to Life and the Right to Live: Ethics of International Solidarity. 181 (Peter Lang 1990).
38”Thus, in a resolution which it adopted on 18 December 1982, the General Assembly expressed its firm conviction that all peoples and all individuals have an inherent right to life and that the safeguarding of this foremost right is an essential condition for the enjoyment of the entire range of economic, social and cultural, as well as civil and political rights.” Ramcharan, supra note 23, at 4, referring to General Assembly resolution 37/189A, paras. 1 and 6.
39”In its resolution 1982/7 adopted on 19 February 1982, the Commission had expressed its firm conviction that all peoples and all individuals have an inherent right to life, and that the safeguarding of this foremostright is an essential condition for the enjoyment of the entire range of economic, social and cultural, as well as civil and political rights. The Commission repeated these statements in its resolution 1983/43 adopted on 9 March 1983.” Id., at.4-5.
40UN Human Rights Committee, General Comment 6, supra note 26, para. 5. See also Ramcharan, supra note 23, at 9, on the drafting of the ICCPR.
41See Dominic McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights 328-362 (Clarendon Press 1994).
42 Id., at 347. See also the section of this study below on the problems perceived in such an approach.
43The Judges of the Inter-American Court of Human Rights were approached for comment on this and other aspects of the judgement, but were unable to offer any response as the case is still pending before this tribunal. (Manuel E. Ventura Robles, Secretary of the Court, personal communication, 5 September 2000. Notes on file with the author.)
44See e.g. Eur. Ct. H. R. McCann, Farrell and Savage v. UK (1995) 21 E.H.R.R. 97; Eur. C. H. R. Stewart v.UK (1984) 7 E.H.R.R. 453; Kelly v. UK (1993) 16 E.H.R.R. 20.
45F. Menghistu, The Satisfaction of Survival Requirements, inThe Right to Life, supra note 23 at 66, referring to Airey v. Ireland, Eur. Ct. H. R. (1979), which found a violationof Article 6(1) of the ECHR (right to a fair trial) on the grounds that securing access to the High Court necessitated (on occasion) positive State action. Also with regard to positive provision and the right to life, Ramcharan cites a European Commission ruling that “the concept that ‘everyone’s life shall be protected by law’ enjoins the State not only to refrain from taking life ‘intentionally’ but, further, to take appropriate steps to safeguard life.” Ramcharan, supra note 23, at 10, referring to European Commission on Human Rights, Decision on Admissibility, Application 7154/75.
46 Harris and Livingstone’s book on the Inter-American system (see infra note 47) is based on a conference held by the Human Rights Law Centre, University of Nottingham in November 1995, on the basis that the Inter-American experience “may have increasing resonance” “with Europe now having to confront gross human rights violations, notably in former Yugoslavia and Turkey.” See preface, at v-vi.
47Matthew Craven, The Protection of Economic, Social and Cultural Rights under the Inter-American System of Human Rights, in The Inter-American System of Human Rights 289 [hereinafter Craven] (D. Harris and S. Livingstone eds., 1998) [hereinafter Harris and Livingstone]. Craven also argues that “it is undoubtedly the case that the protection of economic, social and cultural rights has in general suffered as a result of the apparent replacement of the Declaration by the Convention.” Id., at 295. He adds that “[u]ltimately, Article 26 of the American Convention is a disappointment. Although it provides some recognition of the existence of economic, social and cultural rights, it does little to give that recognition substance.” Id., at 299. For a discussion on the San Salvador Protocol on Economic Social and Cultural Rights, see id., at 307-311.
48Scott Davidson, The Civil and Political Rights Protected in the Inter-American System, in Harris and Livingstone, supra note 47, at 221.
49Comité Jurídico Interamericano, Recomendaciones e Informes, Documentos Oficiales, 1945-1947 (Washington D.C.: Organisation of American States, 1948), at 49, quoted in (and translated by) J. Colon-Collazo, The Drafting History of Treaty Provisions on the Right to Life, inThe Right to Life, supra note 23, at35.
50Craven, supra note 47, at 313 (311-320 in general). It is to be noted that his concentration on the Commission rather than the Court in relation to economic, social and cultural rights is due to his prior contention that they are afforded greater protection under the Declaration rather than the Convention, (at301). (It should be remembered, however, that the Commission still acts as a ‘filter’, and indeed as the petitioner, in all cases before the Court and thus the complex relationship between the two organs produces considerable overlap as regards evolution of these concepts.)
51Id., at 320-321.
52Id., at 317-318.
53Id., at 319.
54Joint Opinion, supra note 31.
55”The fundamental ‘right to life’ which forms the basis of all other rights has been interpreted by the Supreme Court of India in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity and worth of the human person.” Dilbar Kaur Bajwa, Right to life: Its Study Under Indian Political System 2 (Amar Prakashan, 1996).
56Bandua Mukti Morcha case, cited in id., at 53.
57Asiad Workers case, id., at 52.
58Olga Tellis v Bombay Municipal Corporation, AIR 1986, SC 180. id., at 53.
59Suk Das v Union Territory AIR 1986 SC 991, cited in M.R Anderson, Public interest Perspectives on the Bhopal Case: Tort, Crime or Violation of Human Rights? inPerspectives in Environmental Law 165 (London, 1995).
60Subhash Kumar v State of UP 1991 (1) SCC 598, cited in id., at 165. See also Anderson in general on the Bhopal disaster considered as a violation of the right to life.
61 see e.g. inter alia, G. J. H. van Hoof, The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views, in The Right to Food (Philip Alston and K. Tomasevski eds., 1984) inSteiner & Alston 279, 282 and Asbjrn Eide, Realisation of Social and Economic Rights and the Minimum Threshold Approach, 10 HRLJ 35, 37 (1989).
62[International Covenant on Economic Social and Cultural Rights, Article 2(1)]. “In its report on Guatemala, the Inter-American Commission on Human Rights found that ‘malnutrition and infant mortality are the result of an unequal distribution of income, and not of a shortage of food. Although the GDP quadrupled between 1950 and 1970, the unequal distribution of income has become worse over time, because of the emphasis on increasing exports and expanding capital-intensive industry…’” Ramcharan, supra note 23, at 10.
63 See Antonio Cassese, Can the Notion of Inhuman and Degrading Treatment be Applied to Socio-Economic Conditions? 2 EJIL 141 (1991) in which he examines the European Commission case Francine van Volsem v Belgium (1990), (application No. 14641/89) where the court considered deprivation of certain ‘second generation’ rights under the ambit of ‘inhuman and degrading treatment’. Although the claim in this case was declared inadmissible, “the Committee did not dismiss out of hand the contention that Article 3 also bans any social and economic treatment of persons that is so humiliating as to amount to inhuman treatment”, at 143. In relation to Villagrán Morales, see Chapter 3 of this study on how this approach could be used for the protection of the socio-economic rights of street children.
64 See e.g. McGoldrick, supra note 41, at 347. It is the duty of human rights organs to interpret provisions in good faith, according to the intentions of the drafters. However, in the case of the ACHR, note the reference to the drafting cited supra p. 18, note 49 of this study.
65“The danger of too positive and liberal an interpretation of rights is that it may leave States parties uncertain of their obligations and discourage other States from undertaking the obligations at all.” Id., at 347.
68 Samuel S. Kim, Global Human Rights and World Order, inThe United Nations and a Just World Order 356.(R. Falk et al eds., 1991).
69 Id., at 368.
70 Bruce Harris, Regional Director, Casa Alianza. Personal communication, 5 September 2000. Notes on file with the author.
71 Menghistu, supra note 45, at 64.
72 UNICEF report, cited in Herndl, supra note 27, at XI.
73Jeremy McBride, The Violation of Economic, Social and Cultural Rights as Torture or Cruel, Inhuman or Degrading Treatment [hereinafter McBride], inChildhood Abused 112 (G. Van Bueren ed., 1998) [hereinafter Childhood Abused].
74This relates to the wider discussion on the proliferation of rights in general where the consideration of bringing new issues under the rights banner (or into the legal arena in this case) should be considered individually, on the basis of what value such an approach would add to both the issue itself, and to the rights machinery as a whole.
75 Bruce Harris, supra note 70, in addition to the economic reparations for the families of the victims –including the (now) 11-year-old son of Anstraum Aman Villagrán Morales. The petitioners are also calling for the passing of the Children and Adolescent’s Code into domestic Guatemalan legislation, although it is doubtful that this will be accepted. This piece of legislation is intended to implement many provisions of the CRC into domestic legislation and was due to take effect in the last quarter of 1997. It has been delayed, however, due to right wing opposition in Congress. It remains to be seen whether the Court will accept this broader approach to reparations under ACHR Article 63.
76See supra note 62 on the unequal distribution of wealth in Guatemala.
77See Appendix A for text.
78The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, Inter-American Court Advisory Opinion OC-16/99 of 1 Oct 1999. Series A No. 16.
79“This evolutive interpretation is consequent with the general rules of the interpretation of treaties embodied in the 1969 Vienna Convention. Both this Court [...] and the European Court [...] have indicated that human rights treaties are living instruments, the interpretation of which must evolve over time in view of existing circumstances.” Id., para. 113, cited in Judgement, para. 193.
80Specific reference is made to the following articles of the CRC, with emphasis on those relating to State provision: 1 (definition of a child); 2 (non-discrimination); 3(2) (protection and care); 6 (right to life, survival and development); 20 (special protection and assistance for children deprived of a family environment); 27(1) and (3) (adequate standard of living / State provision of material assistance, particularly with regard to nutrition, clothing and housing); 37 (torture, cruel, inhuman, degrading treatment / punishment, deprivation of liberty, access to legal assistance),Judgement, para. 195.
81See e.g. Judith Ennew, Why the Convention is Not About Street Children (1999) [pending publication]: “The writer of a UNICEF report claims that ‘no less than seven’ Articles of the CRC cover children outside adult love and care in difficult circumstances. Yet, I would suggest that some 32 Articles have direct daily relevance to these children most days of their lives...” at 13, referring to Maggie Black, Street and Working Children: Innocenti Global Seminar, Summary Report, Florence, UNICEF 1993. Ennew also explores the difficulty of categorising such rights due to the infamous defiance of ‘street children’ to conform to particular definitions. See also her discussion on the unsatisfactory lumping of street children into the broad, inadequately defined categories of ‘children in exceptionally difficult conditions’ (preamble) and ‘other forms of exploitation’ (Article 36) and the need for additional provisions specifically tailored to their requirements.
82Many of the CRC’s articles can be applicable to street children ‘in general’ (see supra note 80). Others that might have been mentioned here are Articles 24 (access to health care), 28 (right to education), 31 (right to rest, leisure and play), 32 (protection from economic exploitation), 33 (protection from narcotic and psychotropic substances), 34 (protection from sexual exploitation), 36 (protection from other types of exploitation) and 39 (physical / psychological recovery and social reintegration).
83United Nations Guidelines for the Prevention of Juvenile Delinquency (‘The Riyadh Guidelines’), G.A. res. 45/112, annex, 45, U.N. GAOR Supp. (No. 49A) at 201, U.N. Doc A/45/49 (4 December 1990).
84United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’), G.A. res. 40/33, annex, 40 U.N. GAOR Supp. (No. 53) at 207, U.N. Doc. A/40/53 (29 November 1985).
85Riyadh Guidelines, supra note 83, Chapter III, para. 9.
86Beijing Rules, supra note 84, Part V, Treatment in prison establishments, para. 26.1.
87See e.g. Human Rights Watch, Guatemala’s Forgotten Children (1997), Police Abuse and Killings of Street Children in India (1996), Kenya: Juvenile Injustice (1997) and Amnesty International, A Waste of Lives (July 2000) on juvenile detention centres in Brazil.
88For a summary of the main aspects of street children and juvenile justice, see e.g. Consortium for Street Children UK, Written Submission to the Committee on the Rights of the Child: Day of General Discussion on ‘State Violence Against Children’, 22 September 2000, 24 August 2000. This document calls for the naming of a Special Rapporteur on Street Children to holistically research the complex causes and consequences of the street children phenomenon, in order to make recommendations and mobilise awareness at a national and international level so as to formulate intelligent responses to the problems.
89The Commission cites as evidence the State’s own acknowledgement of such problems in its 1995 State report to the UN Committee on the Rights of the Child,Judgement, para. 183: “Guatemala presented a report in which it stated that ‘it could only provide information on the situation [of ‘street children’] as of 1994” and added that “although the number of complaints about police brutality suffered by street children had declined, the problem had not been resolved and the police force had not been completely restructured”. Moreover, it stated that, in Guatemala, there was ‘a violent culture and that the police force did not receive training on how to deal with these children’. Lastly, the State ‘acknowledged that 84 children had been murdered in the first three months of 1996 and that, according to available information, there had only been seven [convictions]’. The Commission asserted that this declaration was a unilateral acknowledgement of facts generating international responsibility.”