“INTERNATIONAL HUMAN RIGHTS
LAW IN EVOLUTION”:
THE IMPLICATIONS OF
VILLAGRAN MORALES ET AL V. GUATEMALA
(THE ‘STREET CHILDREN’ CASE,
INTER-AMERICAN COURT OF HUMAN RIGHTS) FOR
INTERNATIONAL HUMAN RIGHTS LAW.
By
Marie Wernham
MA Understanding and Securing Human Rights
Institute of Commonwealth Studies
University of London
September 15, 2000
“INTERNATIONAL HUMAN RIGHTS
LAW IN EVOLUTION”:
THE IMPLICATIONS OF
VILLAGRAN MORALES ET AL V. GUATEMALA
(THE ‘STREET CHILDREN’ CASE,
INTER-AMERICAN COURT OF HUMAN RIGHTS) FOR
INTERNATIONAL HUMAN RIGHTS LAW.
By
Marie Wernham
This dissertation is submitted in partial fulfillment of the
requirements for the degree of
MA in Understanding and Securing Human Rights
of the University of London.
September 15, 2000
(10,992 words, excluding footnotes, bibliography and appendices)
“Faced with the imperative of protecting human life, and
the uncertainties and reflections provoked by death, it is
very difficult to separate dogmatically judicial from moral
concerns: we are before an order of higher values – the
substratum of judicial norms – which helps us to find the
meaning for the existence and destiny of each human
being. International human rights law, in evolution on the
threshold of the 21st century, must not remain insensible
or indifferent to these questions.”
Judge Antônio Augusto Cançado Trindade
Judge Alirio Abreu Burelli
Joint Opinion, Villagrán Morales et al v. Guatemala,
19 November 1999
Inter-American Court of Human Rights
ABSTRACT
In June 1990, in Guatemala City, five friends were tortured and murdered by the police. Three of
them were children. No attempt was made to identify the bodies and they were buried in
unmarked graves. The police investigation was as half-hearted as the domestic judicial
proceedings were negligent. However, nearly ten years later, in the Inter-American Court of
Human Rights, November 1999, these five unfortunate street children and youths – albeit at far
too great a price - made posthumous legal history.
The first child murder case, the first arbitrary detention case involving children, and the most
severe threshold of torture in relation to children to come before a judicial international human
rights tribunal, Villagrán Morales et al v. Guatemala sets two remarkable legal precedents.
Firstly, its expanded definition of the right to life to encompass the right to life ‘with dignity'
brings State responsibility for the provision of a minimum threshold of socio-economic rights
into an enforceable legal arena. Secondly, the Court has effectively established the world's first
judicial mechanism by which to hold States accountable for non-implementation of the rights
contained in the UN Convention of the Rights of the Child.
This study sets out to examine both these and other implications of this recent, innovative
judgement, with a view to establishing the place of Villagrán Morales in the pantheon of
landmark human rights cases to have significantly contributed to the promotion and protection of
human rights everywhere.
TABLE OF CONTENTS
Introduction
Page
Summary of the case
Background context: Guatemala in 1990
Street children in Guatemala
Implications
1
4
5
7
Chapter 1: Right to Life
Introduction
1) ‘Negative’ aspects
2) ‘Positive’ aspects
a) State complicity via failure to investigate and prosecute
b) Right to life with dignity
9
10
11
11
12
Chapter 2: Rights of the Child
1) Defining parameters
a) UN Convention on the Rights of the Child
b) UN ‘Riyadh Guidelines’ and ‘Beijing Rules’
2) Applying parameters
3) Implications for internatinal children’s rights law:
a) UN Committee on the Rights of the Child
b) UN Human Rights Committee
c) European Court of Human Rights
d) African human rights system
26
27
28
30
32
32
33
33
34
Chapter 3: Right to Humane Treatment
1) ACHR Article 5.1 and 5.2
2) IACPPT Articles 1, 6, 8
35
41
Conclusions: Wider implications
1) Profile of street children
2) Inter-American System / Rule of Law
3) National level
Bibliography
42
43
44
48
Appendix A:
Text of ACHR / IACPPTarticles
Appendix B:
Key paragraphs of the Judgement, 144 and 191
57
Appendix C:
Joint Opinion of Judges Trindade and Burelli
58
54
INTRODUCTION
Summary of the case
On 15 June 1990, a group of friends named Henry Giovanni Contreras (18), Federico Clemente
Figueroa Túnchez (20), Julio Roberto Caal Sandoval (15) and Jovito Josué Juárez Cifuentes (17)
were violently apprehended, mid-morning, in an area of Guatemala City centre where they were
often seen together - an area infamous for its high crime rate and large number of street children 1
and youths, including the four in question. They were held up at gunpoint by armed men in
civilian clothes (identified as police agents2) before being handcuffed, beaten with pistols and
taken away in a pick-up truck.
The next day, on 16 June, the tortured and mutilated bodies of Jovito and Federico were found
thrown in the San Nicolas Woods (Bosques de San Nicolás) in an isolated area of Mixco, a
suburb of Guatemala City. The day after that, Henry and Julio were likewise found in the same
place. Their eyes had been burned or gouged out, ears and tongues severed, and the youngest,
Julio, had had a boiling liquid poured over his chest and chin. All of them had been shot multiple
times through the head at close range3.
At midnight, ten days later, on 25 June 1990, Anstraum Aman Villagrán Morales (17), a friend of
the other victims, was approached by the same two policemen, Samuel Rocael Valdes Zúñiga and
Néstor Fonseca López, in the same area where his friends had been kidnapped4. They spoke with
him alone, let him walk away, and then fatally shot him in the back.
The case was taken up by Casa Alianza (a regional non-governmental organisation (NGO)
working with street children5). During the course of the investigation, key witnesses were
Use of the term ‘street children’ and definitions thereof are contested within NGO circles. For the purposes of this
dissertation, the term ‘street children’ is used to refer to both ‘street living’ (homeless) street children (also known as
children ‘of’ the streets who maintain little or no contact with their families) and ‘street working’ children (children
‘on’ the street who maintain regular contact with their families). However, the unique situation of each individual
case is acknowledged as often defying any such generalisations. A popular accepted definition is that formulated by
the Inter-NGO Programme for Street Children and Street Youth: “Street children are those for whom the
street...more than their family has become their real home, a situation in which there is no protection, supervision or
direction from responsible adults.” (SAVE THE CHILDREN, STREET AND WORKING CHILDREN: A GUIDE TO PLANNING
DEVELOPMENT: MANUAL 4 (1994) at 15).
2
Testimony of Rosa Angélica Vega, street child at the time the events occurred; in Villagrán Morales et al v.
Guatemala, Int. Am. Ct. H. R. Judgement of 19 November 1999 [hereinafter Judgement], para 65(d). All quotations
in this study are taken from the English translation available at http://www.casa-alianza.org
3
Expert witness evidence of Roberto Carlos Bux, Deputy Director of the Bay County Forensic Center, San Antonio,
Texas; Judgement, para 66(a).
4
He had just been threatened using the words “you are going to turn up dead like your friends, the others” by Rosa
Trinidad Morales Pérez, a kiosk woman known for both her hatred and mistreatment of street children (throwing hot
coffee at them) and for her friendship with the police in question. She was implicated in both sets of murders. See
Testimony of Rosa Angélica Vega, Judgement, para. 65(d); Testimony of Julia Griselda Ramírez López, who
worked in a kiosk on 18th Street, Judgement, para. 65(e); and the police report sent to the Second Criminal Trial
Court (Guatemala City) (case No. 1, 712/90) on 25 March 1991, Judgement, paras. 98-99.
5
Casa Alianza is the Latin American branch of New York-based NGO Covenant House, providing educative,
rehabilitative programmes and legal aid to street children in Guatemala, Honduras, Mexico and Nicaragua. Casa
Alianza began working in Guatemala in 1981. At the time of the events, according to Amnesty International, it had
approximately 570 children in programmes in Guatemala and had suits pending against 25 policemen for
involvement in 13 incidents of alleged abuses against street children. (Amnesty International, Guatemala:
1
threatened (two of whom subsequently died6) and workers at Casa Alianza were intimidated to
the extent that three of the staff had to leave Guatemala. Bruce Harris, Regional Director,
testified that in July 1991 “three men came to look for him in an amoured vehicle without license
plates and, as he was not at Casa Alianza, ‘they covered the facade of our building with bullet
holes’”7.
Despite strong evidence to support the plaintiff’s case, including ballistics tests linking one
policeman directly to the crime, the case was subject to arbitrary consideration, judicial partiality
and omission of vital evidence and investigation at every level of the Guatemalan judicial system
right up to the Supreme Court appeal, which upheld the decision in favour of the defendants.
Having exhausted all domestic remedies, this led to the decision by Casa Alianza in association
with CEJIL (Centre for Justice and International Law - based in Washington) to present the case
to the Inter-American Commission on Human Rights (Commission) on 15 September 1994.
Having examined the admissibility and merits of the case, and both parties being unwilling to
negotiate a friendly settlement, the Commission presented the case to the Inter-American Court
of Human Rights (Court) on 30 January 1997.
On 19 November 1999, almost nine and a half years after the events took place, the Court
unanimously found the State of Guatemala in violation of the following articles of the American
Convention on Human Rights8:
Article 1
- Obligation to respect rights
Article 4
- Right to life
Article 5(1), (2)-Right to humane treatment
Article 7
- Right to personal liberty
Article 8(1) - Right to a fair trial
Article 19
- Rights of the child
Article 25
- Right to judicial protection
In addition, the Court found violations of the following articles of the Inter-American Convention
to Prevent and Punish Torture9:
Article 1 - Obligation to prevent and punish torture
Article 6 - Obligation to take effective measures to this effect
Article 8 - Right to impartial examination, investigation and criminal process of a case
Extrajudicial Executions and Human Rights Violations Against Street Children, AMR 34/37/90, (July 1990)
[hereinafter Amnesty Report] at 3).
6
Rosa Caal Sandoval, mother of the victim Julio (who was, at one stage, the private prosecutor of the case in
Guatemala), apparently received threats and later died in a traffic accident. Gustavo Adolfo Cóncaba Cisneros, alias
‘Toby’, a street child who had been an eye witness and who had identified one of the policemen involved also died,
apparently stabbed by another street child. No direct connection has been proved between the threats and the
subsequent deaths, however.
7
Testimony of Bruce Harris, Casa Alianza Regional Director for Latin America, Judgement, para. 65(c).
8
American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 entered into force July
18, 1978, reprinted in Blackstone’s International Human Rights Documents, 1st Ed., P.R.Ghandi, 1995, at 147.
Guatemala ratified the American Convention on Human Rights (hereinafter Convention or ACHR) on 25 May 1978,
and accepted the contentious jurisdiction of the Court in accordance with Article 62 therein on 9 March 1987.See
Appendix A for full text of articles relevant to this case.
9
Inter-American Convention to Prevent and Punish Torture, opened for signature December 9, 1985, entered into
force 28 February 1987, OAS Treaty Series, No. 67, reprinted in Blackstone’s International Human Rights
Documents, 1st Ed., P.R.Ghandi, 1995, at 171 [hereinafter IACPPT or Torture Convention]. The IACPPT was
ratified by the State of Guatemala on 29 January 1987. See Appendix A for full text of the articles relevant to this
case.
The reparations phase is still in progress. A decision is expected in spring 2001.
Background context: Guatemala in 1990
The events of this case took place in the context of the 36-year Guatemalan civil war, six and a
half years before the signing of the Peace Accords. The death toll during that period has been
estimated at 200,00010. To quote Amnesty International’s 1990 report on street children:
“Tens of thousands of people have been victims of human rights violations in Guatemala over the
past two decades. Trade unionists, academics and students, priests and catechists have been
abducted, tortured and killed. Indian villagers have been seized, mutilated and shot dead.
Thousands of men and women detained by the military and the police have ‘disappeared’...”11
In October 1990 Amnesty International “quoted official reports of over 240 killings in the first
half of the year alone, believed to be the work of ‘death squads’ drawn from the security forces.
[...] In only two of the thousands of cases of gross violations in the past four years does Amnesty
International know of any charges being brought against members of the security forces allegedly
responsible...”12 It is against this background of gross and systematic human rights violations in
general, combined with an institutionalised culture of impunity for State actors, that the events of
the present case took place.
Even today, in the wake of attempts at national healing through the work of the Commission for
Historical Clarification (Comision por el Esclarecimiento Historico - CEH13) and the election in
January 2000 of the apparently more ‘pro-human rights’ President Alfonso Portillo, Guatemala is
still struggling unsuccessfully to “counteract the culture of violence that has remained ingrained
in Central America’s most populous country. Mob violence, lynchings and incessant urban street
crime have marred Mr Portillo’s term...”14.
Street children in Guatemala
As in any country, the reasons for children migrating to street life are individual and complex:
poverty, neglect, physical, emotional and sexual abuse, abandonment, disease, disability, parental
death and hope for a better future. In addition to these common criteria are added regional and
country-specific factors: in the case of Guatemala in 1990, some street children were casualties of
displacement and family fragmentation caused by the army counter-insurgency campaigns of the
early 1980s, whilst others were refugees escaping political violence in neighbouring El Salvador
and Nicaragua. Amnesty International estimated numbers of street children in Guatemala City in
1990 as totalling about 5000, aged between 5 and 1815. It is estimated that nearly all, both in 1990
and today, sniff glue or paint thinner16 and are involved in petty, ‘survival’ theft.
10
Jan McGirk, Guatemalan leader admits civil war atrocities, Independent, 11 August 2000, at 12.
Amnesty Report, supra note 5, at 1.
12
Amnesty International, Government Sponsored Killings: Strategies For Combating Extrajudicial Executions In The
World Today, AI Index: ACT 30/04/90 (10 November 1990).
13
Established by the Accord of Oslo, June 1994. The CEH received information on the human rights violations
committed during the 36 years of Guatemalan civil war and published its final report in 1998.
11
14
Jan McGirk, supra note 10.
Amnesty Report, supra note 5, at 1. It is important to note that any quantitative statistics on street children quoted
without reference to definition, or unqualified by qualitative criteria, are to be approached with great caution. As a
group of people so uniquely mobile, unsupervised by adults and beyond all regular institutional census categories
15
In terms of violence against these street children, in the first six months of 1990, “according to
confidential police reports, at least 17 unidentified minors have died as a result of violence in
Guatemala City... Some 20 other unidentified victims of violence listed by police as between 20
to 25 years old are believed to actually have been minors.”17 Compounding the background
atmosphere of extreme violence and impunity created by the wider political events of the civil
war (which sets the scene for the abduction and murder in broad daylight, and the horrific torture,
mutilation and murder of the present case), was the rising crime rate in the city, attributed by the
public and authorities to street children and therefore seen as ‘justifying’ harsh policing measures
against them18.
Specific, documented cases of police or security forces human rights violations of street children
in Guatemala in 1990, other than the present case include: a 13-year-old kicked to death; a 12year-old fatally shot in the back of the neck whilst running away, having stolen a pair of
sunglasses; a 14-year-old beaten and killed; a 12-year-old and a 15-year-old deliberately injured
by attack dogs; two 14-year-olds forced to swallow the plastic bags containing their glue, left
vomiting and choking; witnesses to another street child murder were beaten with heavy electric
cable, forced to drink sewage water and had their glue poured on their heads and faces; 14 more
incidents of severe beatings; 7 more incidents of children having their glue or paint thinner
poured over their heads19 (“It’s awful, it hurts really bad. It gets in your eyes and burns; for half
an hour you can’t see anything”20.)
The contextualisation of the events of this case - within a framework of both general societal
violence and specific antagonism towards street children as a group - is in no way intended to
minimise the suffering of these five children and youths, nor that of any other victims of such
appalling contemporary (and tragically on-going) violence; nor is it intended to excuse the
perpetrators of their actions. Instead it is meant to highlight the significance of the decision in this
case which has contributed to the delegitimisation of State complicity and neglect in such
‘commonplace’ atrocities and has served to elevate the status of a particularly marginalised group
of rights holders. This contextualisation also mirrors the extent to which the Court incorporates
this same background information on street children into its findings. The case thus has an
obvious symbolic and representative value for street children in general in terms of the legal
precedents set.
(i.e. school, family etc), street children defy head counts. Thus the number of street children worldwide (street living,
street working or temporary) is unknown.
16
Inhaling the fumes of shoe glue or paint thinner eases hunger pangs, pain and desolation. Solvent abuse amongst
street children is strongly related to a sense of identity and belonging in the context of street gang culture. Long term
effects of solvent fume inhalation include mental impairment and destruction of organ tissues.
17
Amnesty Report, supra note 5, at 4.
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.
19
All of the preceding cases, including that of Villagrán Morales, are reported in id.,at 4-25 and Appendix 1.
20
Testimony 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].
Implications
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.
“’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).
21
CHAPTER 1
RIGHT TO LIFE
Introduction
“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.
23
B. G. Ramcharan, The Concept and Dimensions of the Right to Life [hereinafter Ramcharan], in THE RIGHT TO LIFE
(B. G. Ramcharan ed., 1985) [hereinafter THE RIGHT TO LIFE].
24
Id., at 1-2.
25
Judgement, para. 144. See also Franciszek Przetacznik, The Right to Life as a Basic Human Right, 9 REVUE DES
DROITS DE L’HOMME 585, 585-609 (1976).
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, in THE RIGHT TO LIFE, supra note 24, at XI.
28
Ramcharan, supra note 23, at 3.
IN INTERNATIONAL LAW 1
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.
29
Judgement, 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.”
30
Velásquez Rodríguez v. Honduras, Judgement of 29 July 1988. Series C No. 4.
31
Judges 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!, in AN END TO TORTURE 85
(B. Dunér ed., 1998), citing Report 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, in HUMAN RIGHTS OF WOMEN, NATIONAL AND INTERNATIONAL
PERSPECTIVES 116-153 (R. Cook ed., 1994); Kenneth Roth, Domestic Violence as an International Human Rights
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
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).
33
For this debate in relation to domestic violence, see Roth, supra note 32 at 333-336.
34
Joint Opinion, supra note 31.
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 biochemical 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,
and the 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
35
SYLVANUS NDUBISI OKECHUKWA, THE RIGHT TO LIFE AND THE RIGHT TO LIVE: ETHICS OF INTERNATIONAL
SOLIDARITY. 181 (Peter Lang 1990).
36
A. Redelbach, Protection of the Right to Life by Law and Other Means, in THE RIGHT TO LIFE, supra note 23, at
195.
37
Przetacznik, supra note 25, at 586.
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 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. The Commission repeated these statements in its resolution 1983/43 adopted on 9 March 1983.” Id.,
at.4-5.
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.
II) European Commission / Court of Human Rights
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
40
UN 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.
41
See 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.
43
The 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.)
44
See 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.
45
F. Menghistu, The Satisfaction of Survival Requirements, in THE RIGHT TO LIFE, supra note 23 at 66, referring to
Airey v. Ireland, Eur. Ct. H. R. (1979), which found a violation of 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,
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
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.
47
Matthew 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.
48
Scott Davidson, The Civil and Political Rights Protected in the Inter-American System, in Harris and Livingstone,
supra note 47, at 221.
49
Comité 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, in THE RIGHT TO LIFE, supra note 23, at 35.
50
Craven, 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, (at 301). (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.)
51
Id., at 320-321.
52
Id., at 317-318.
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.
IV) Asia
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 livelihood 58; 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
53
Id., at 319.
Joint 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).
56
Bandua Mukti Morcha case, cited in id., at 53.
57
Asiad Workers case, id., at 52.
58
Olga Tellis v Bombay Municipal Corporation, AIR 1986, SC 180. id., at 53.
59
Suk 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? in PERSPECTIVES IN ENVIRONMENTAL LAW 165 (London, 1995).
60
Subhash 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) in STEINER & ALSTON
54
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 rights 63, the InterAmerican 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.
a) Problems
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 founded 65.
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.
279, 282 and Asbjrn 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 socioeconomic 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.
66
Id.
67
J. Fawcett, The Application of the ECHR (1969) at 31, cited in Ramcharan, supra note 23, at 3.
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.
b) Solutions
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.
68
Samuel S. Kim, Global Human Rights and World Order, in THE 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.
73
Jeremy McBride, The Violation of Economic, Social and Cultural Rights as Torture or Cruel, Inhuman or
Degrading Treatment [hereinafter McBride], in CHILDHOOD ABUSED 112 (G. Van Bueren ed., 1998) [hereinafter
CHILDHOOD ABUSED].
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 nonpecuniary 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.
74
This 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.
76
See supra note 62 on the unequal distribution of wealth in Guatemala.
CHAPTER 2
RIGHTS OF THE CHILD
[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.
a) UN Convention on the Rights of the Child
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.
77
See Appendix A for text.
The 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.
80
Specific 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.
78
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 Delinquency 83, 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
See 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.
82
Many 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).
83
United 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).
84
United 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).
81
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
85
Riyadh Guidelines, supra note 83, Chapter III, para. 9.
Beijing Rules, supra note 84, Part V, Treatment in prison establishments, para. 26.1.
87
See 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.
88
For 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.
89
The 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.”
86
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
90
Ennew, supra note 81, at 9. It must be noted, however, that Ennew is also critical of the implications of this
symbolism - she speaks elsewhere of street children ‘hijacking’ both the urban agenda and the child rights agenda, at
2-3.
91
Andre Alen and Wouter Pas, The UN Convention on the Rights of the Child’s Self-executing Character, in
MONITORING CHILDREN’S RIGHTS 176 (E. Verhellen, ed., 1996).
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 socioeconomic 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 Rights 94, but via the huge legal potential
The Court’s evolving acceptance of CRC standards can be chartered from Nielsen v Denmark (1989) 11 E.H.R.R.
175 where the emerging principles of the CRC were ignored, via Costello-Roberts v UK (1993) 19 E.H.R.R. 112, to
Keegan v Ireland (1994) 18 E.H.R.R 342, para. 50 where reference was made to CRC Article 7, and, most recently,
A v UK (1998) 27 E.H.R.R. 611 where the European Commission draws not only on Article 19 of the CRC, but also
on the Committee on the Rights of the Child’s 1995 concluding observations of the UK’s State Report (para. 49 and
52).
93
Inze v. Austria, Eur. Ct. H. R. (1987) 10 E.H.R.R. 394. See also inter alia, Johnson et al v. Ireland (1986) 8
E.H.R.R. 214. This concept in relation to children’s rights can be traced back to Marckx v. Belgium (1979) 2
E.H.R.R. 330: “the Convention had to be interpreted in the light of present day conditions.”
94
African [Banjul] Charter on Human and People’s Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5,
21 I.L.M. 58 (1982), entered into force 21 Oct 1986. Article 18(3) provides: “The State shall ensure the elimination
92
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.
Summary
The key importance of Villagrán Morales in relation to children’s rights therefore lies in its
incorporation of the CRC into Article 19, and the emphasis on the indivisibility of the rights
therein, once again opening up the judicial field to socio-economic claims, as with the right to
life.
of every discrimination against women and also ensure the protection of the rights of the woman and the child as
stipulated in international declarations and conventions.”
95
African Charter on the Rights and Welfare of the Child, adopted by the Organisation of African Unity (OAU) at
26th Ordinary Session 1990, entered into force 29 November 1999.
CHAPTER 3
RIGHT TO HUMANE TREATMENT
[NB: This section applies to four of the five victims: Jovito, Federico, Julio and Henry.]
This aspect of the case is considered under two conventions: the American Convention on
Human Rights and the Inter-American Convention to Prevent and Punish Torture.
1) American Convention on Human Rights, Article 5.1 and 5.2
“The Court considers that the violation of this Article should be examined from two angles. First
whether or not Article 5.1 and 5.2 have been violated to the detriment of the youths...should be
analysed. Second, the Court should evaluate whether the families of the victims were,
themselves, subjected to cruel, inhuman and degrading treatment” (para. 156).
a) The victims:
i) Evaluation of evidence
In its evaluation of evidence both generally in the case, and specifically in relation to torture96,
the Court has established wide parameters of interpretation of both direct and indirect evidence
(paras. 69-71). This interpretive latitude is particularly significant in the present case on two
counts.
Firstly, the facts surrounding the torture of the victims are unclear: Amnesty International’s
graphic report (which was not contested by the State in its defence and therefore may be
presumed by the Court to be true97) details eyes gouged / burnt out, tongues and ears cut off and
burning liquid thrown on the chest and chin of the youngest victim, Julio (15). However, the
exact nature of these injuries could not be corroborated due to the complete inadequacy of the
Guatemalan autopsy reports and minimal forensic and photographic evidence collected by the
State at the time of the murders98. [It must be remembered that the Inter-American Court
judgement was made over nine years after the actual events.]
“With specific regard to the evidence of torture, the Court deems it pertinent to state that, in order to establish if
torture has been inflicted and its scope, all the circumstances of the case should be taken into consideration, such as
the nature and context of the respective aggressions, how they were inflicted, during what period of time, the
physical and mental effects and, in some case, the sex, age and state of health of the victim.” Judgement, para. 74,
citing the following cases from the Eur. Ct. H. R.: Costello-Roberts v UK (1993) Series A no. 247-C, p. 59, para. 30;
Soering v UK (1989) Series A no. 161, p. 39, para. 100; Ireland v UK (1978) Series A no. 25, p. 65, para. 162; Tyrer
v UK (1978) Series A no. 26, pp. 14-15, paras. 29-30.
97
Judgement, para. 68: “the Court considers, as it has done in other cases, that when the State does not specifically
contest the application, the facts on which it remains silent are presumed to be true, provided that the existing
evidence leads to conclusions that are consistent with the facts.” Based on Godínez Cruz case. Judgement of 20
January 1989. Series C No. 5, para. 144 and Velásquez Rodríguez , supra note 30, para. 138.
98
See Judgement, paras. 158, 160, and para. 66(a) summarising the findings of the expert witnesss Roberto Carlos
Bux, Deputy Director of the Bay County Forensic Center, San Antonio, Texas.
96
Circumstantial, corroborative evidence is provided, once again, by the background context of a
systematic pattern of torture and mistreatment of street children in Guatemala at that time (paras.
161 and 167), along with the testimony of a street girl who had been abducted previously under
similar circumstances (para. 161). With this in mind, the Court stated that, in spite of the lack of
other evidence, given the violent nature of the victims’ abduction and the state of their bodies
recovered subsequently, abandoned in a wood with gunshot wounds to their heads, it is
reasonable to assume that the treatment they received during the 10 - 21 hours of their illegal
detention was “extremely aggressive” (para. 162)99.
Secondly, it may be claimed that, by giving the victims ‘the benefit of the doubt’, this
interpretation of the facts reflects the “rising global insistence that States, governments,
institutions and laws exist to serve the people…The human factor is emerging, at last, as the
factor which should govern in every situation”100. This approach is inherent in the Court’s
reasoning throughout this case.
As regards responsibility, the Court draws on European jurisprudence to establish that “the State
is responsible for ill-treatment exhibited by a person who has been in the custody of State agents,
if the authorities are incapable of demonstrating that those agents did not incur in such
behavior.”101
ii) Definitions of torture, cruel, inhuman and degrading treatment
Even without concrete evidence of physical torture, the Court considers that, based on its own
and European case law102, the mere fact of the victims being held incommunicado constituted a
violation of Article 5: “While they were retained, the four youths were isolated from the external
world and certainly aware that their lives were in danger. It is reasonable to infer that, merely
owing to this circumstance, they experienced extreme psychological and moral suffering during
those hours” (para. 163)103.
See also Velásquez Rodríguez, supra, note 30, para. 188: “the context in which the disappearance of Manfredo
Velásquez occured and the lack of knowledge seven years later about his fate create a reasonable presumption that he
was killed”, cited in Scott Davidson, supra note 48, at 220.
100
Ramcharan, supra note 23, at 1.
101
Judgement, para. 170, citing Eur. Ct. H. R. cases: Aksoy v. Turkey (1996) Reports of Judgements and Decisions
1996-VI, p. 2278, para. 61; Ribitsch v. Austria (1995) Series A, no. 336, p. 26 et seq., para. 34; Tomasi v. France
(1992) Series A no. 241-A, pp. 40-41, paras. 108-111.
102
In Castillo Páez, Judgement of 3 Nov. 1997. Series C No. 34, para. 66, the Court stated that the mere fact of being
placed in the trunk of a car constitutes a violation of Article 5, “even if no other physical or ill-treatment occurred”,
due to it contravening “the respect due to the inherent dignity of the human person”. Similarly, in Suárez Rosero,
(Judgement of 12 Nov. 1997. Series C No. 35, para. 90), the Court outlines the grave moral and psychological effects
of incommunicado detention which exacerbates the victim’s vulnerability and increases the risk of aggression. Citing
the European Court decision in Campbell and Cosans v UK (1982) Series A No. 48, p.12. para. 26, the InterAmerican Court states that the mere threat of torture, “when it is sufficiently real and imminent” may, in some
circumstances, constitute inhuman treatment (Judgement, para. 165).
103
On this subject, see also Geraldine Van Bueren, Opening Pandora’s Box - Protecting Children Against Torture,
Cruel, Inhuman and Degrading Treatment and Punishment [hereinafter Van Bueren], in CHILDHOOD ABUSED, supra
note 73, at 66: “The prohibition on torture, cruel, inhuman and degrading treatment and punishment is not limited to
institutional deprivations of liberty, but when children are deprived of their liberty they may become more vulnerable
to such treatment and punishment. Hence during the drafting of the Convention on the Rights of the Child,
Venezuela proposed that the imprisonment of children per se constituted a specific form of abuse to which Article 39
and the right to rehabilitation would automatically apply. It would be an understatement to record that the proposal
did not meet with the approval of the majority of states.”
99
This leads into the current debate concerning the definition of torture in relation to children: i.e. is
it sufficient and appropriate to rely on the existing ‘adult’ definition such as that contained in
Article 1 of the UN Convention Against Torture (CAT)104?
“Children may also fall through the net of international legal protection because they may suffer
the effects of traumatic events in ways which are different from adults. The jurisprudence of
regional and international human rights fora appears to be based principally on adult victims, and,
despite some judicial dicta to the contrary, there is a real risk that international and regional
standards may mechanically be applied to cases involving child victims. Such an approach is
inappropriate because it promotes an analysis which fails to address both the particular
vulnerabilities of children and the role of children as social actors”105.
Much work is being done on this issue currently, concentrating on aspects such as the degree of
suffering -which should be established by taking into account the “effect experienced” and the
age of the child, rather than a so-called ‘objective’ examination106: “A child may experience the
same event as an adult but perceive it in a completely different manner and be unable to assess it
cognitively. Consequently, events can be more frightening and disturbing, and hence ‘cruelty is
more terrifying’ for children”107.
It is therefore unfortunate that, given the contemporary academic debate on this subject and
combined with the excellent opportunity afforded by this case to examine such issues, although
raised by the Commission (para. 152), the Court does not specifically consider the violation of
Article 5 in the context of two of the victims being children. Therefore, although reference is
made to Article 37 of the CRC (concerning torture) in the context of the rights of the child
generally (see Chapter 2), it is not mentioned specifically here, in the context to which it applies
directly. (This is the same as in the case of Article 6 of the CRC on the right to life which is
likewise mentioned with regard to Article 19 but not in the direct context of Article 4 of the
ACHR (see Chapter 1). However, the decision in this case will nonetheless stand as a reference
for future cases in international human rights law involving children as victims of inhumane
treatment.
Finally, although not a subject of consideration in this particular judgement, treating deprivation
of social and economic rights as ‘inhuman and degrading treatment’ offers a further means by
104
Adopted and open to signature, ratification and adhesion by the General Assembly of the United Nations in its
resolution 39/46, of 10 December 1984: entered into force 26 June, 1987. Guatemala is a party to this Convention
since February 1990.
105
Van Bueren, supra note 103, at 57-58.
106
Eric Sottas, Director of the World Organisation Against Torture (OMCT), statement made to the Committee on the
Rights of the Child, 13 November 1995, Geneva. Cited in Judith Ennew, Shame and Physical Pain: Cultural
Relativity, Children, Torture and Punishment, [hereinafter Ennew, Shame and Physical Pain] in CHILDHOOD
ABUSED, supra note 73, at 16. See also Martin Richards, The Ill-Treatment of Children - Some Developmental
Considerations, in id., at 36: “expectations, perceptions and the social context are everything in assessing the
consequences of experiences in childhood.”
107
Van Bueren, supra note 103, at 60, citing the record of an interview by Jill Peasley with Dr. Naomi Richmond.
Institute of Child Health, University of London. Project for Care of Children in War and Disasters. See also Ennew,
Shame and Physical Pain, supra note 106, at 27-30 on the issue of a child’s sense of dignity: “Whatever adults may
feel about the idea of physical pain inflicted on children, this may not be the prime definitional factor for children
themselves. Children’s dignity is fragile, their self-awareness (whether based in group or individual identity) is in the
process of development. Thus punishments and maltreatments that infringe that dignity may be worse than physical
pain, not only at the time inflicted but also with respect to their long-term effects” at 30. For a fuller dicussion on
these issues, see, Eric Sottas, A Non-Governmental Organisation Perspective of the United Nations’ Approach to
Children and Torture, in CHILDHOOD ABUSED, supra note 73, at 143-150.
which to engage State responsibility for their positive provision (as examined in Chapter 1 on the
right to life incorporating quality of life108).
b) The families of the victims:
The Court, in addition to finding that Article 5 had been violated to the detriment of the four
youths themselves, also found a violation of Article 5(1) to the detriment of their mothers. This
ruling was made on the basis of the anxiety and distress caused by the unknown fate and
whereabouts of their children (drawing on European and Human Rights Committee
precedents109), the fact that no attempts were made by the authorities to identify the bodies or
notify the next of kin, the burial of the bodies in unmarked graves and the failure of the
authorities to investigate the crimes and punish those responsible (para. 173).
Also, citing its previous decision in Blake v Guatemala110, the Court stated that “the treatment
given to the remains of the victims [abandoned to the weather and animals in the wood], which
were sacred to their families and particularly their mothers, constituted cruel and inhuman
treatment for them” (para. 174). This is stated more eloquently and poignantly by the judges in
the Joint Opinion:
“The children who were murdered on a street and in a wood (ironically, the wood of St. Nicolas, a
figure with such symbolism for children) not only did not have the opportunity to reconcile
themselves to their passage to eternity; the respect of the physical remains of those children would
have ensured that the mothers at least had the opportunity of maintaining alive within themselves
the memory of their children prematurely disappeared.”111
2) Inter-American Convention to Prevent and Punish Torture, Articles 1, 6, 8
Villagrán Morales constitutes only the second ever finding of a violation of this convention112,
therefore adding to the body of regional jurisprudence on serious human rights violations and
making use of all available treaties in the promotion and protection of human rights. However,
although the definition of torture in Article 2 is comparatively wider than that in the UN CAT113,
“a former president of the Inter-American Court has characterised this convention as a
See e.g. McBride, supra note 73, at 107-116; Van Bueren, supra note 103, at 58-59 on “the argument that poverty
is inherently degrading”; Sottas, Perpetrators of Torture, in CHILDHOOD ABUSED, supra note 73, at 71 on the “link
between socioeconomic underdevelopment and massive violation of civil and political rights” and at 79 on the
effects of socioeconomic exclusion and inequality on violence (with specific reference to street children); Antonio
Cassese, Can the Notion of Inhuman and Degrading Treatment be Applied to Socio-Economic Conditions? , supra
note 63.
109
Judgement, para. 176 citing: Eur. Ct. H. R. Kurt v Turkey (1998), Reports of Judgements and Decisions 1998-III,
p. 1187 §§ 130-134; Human Rights Committee, Quinteros v Uruguay, (1983) (19th Session) Communication No
107/1981, para. 14.
110
Blake v Guatemala (1998). Series C No. 36, para. 115: “the burning of Mr Nicholas Blake’s mortal remains...is an
assault on the cultural values prevailing in Guatemaln society, which are handed down from generation to
generation, with regard to respecting the dead. [This action] increased the suffering of Mr Nicholas Blake’s
relatives.”
111
Joint Opinion, supra note 31. See Appendix C for full text.
112
The first was Paniagua Morales et al (1998), Series C No. 37, para. 136.
113
The IACPPT definition, unlike CAT, makes no reference to the severity of pain inflicted and the necessity of
involvement of a ‘public official’, and it adds that “[t]orture shall also be understood to be the use of methods upon a
person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if
they do not cause physical pain or mental anguish”. The regional definition would therefore appear to be wider in
scope than that of the UN CAT.
108
‘disappointing instrument’, since it has eliminated the reaffirmation of torture as an international
crime…”114
In its arguments, the Commission referred to the UN CAT (Articles 7 and 12), the UN
Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment115, and the UN Body of Principles for the
Protection of All persons under Any Form of Detention or Imprisonment116. Although these
documents were not referred to directly by the Court, reference to them by the Commission
provides another example of the Inter-American Human Rights system accepting crossfertilisation of all available standards, thus indirectly enhancing receptivity of its own
jurisprudence by cultivating a general atmosphere of reciprocity within the international human
rights community.
The quotation continues: “and [it] also allows for continued application of the right to asylum, thereby suggesting
that torture may be considered as a political crime, excluding it from the application of extradition treaties as well as
eroding the principle of universal jurisdiction.” Love Kellberg, Torture: International Rules and Procedures, in AN
END TO TORTURE, supra note 32, at.28, citing Pedro Nikken, L’Action Contre le Système Interaméricain des Droits
de l’Homme, in THE INTERNATIONAL FIGHT AGAINST TORTURE (Antonio Cassese ed., 1991).
115
Adopted by the General Assembly of the United Nations in its resolution 3452 (XXX), of 9 December 1975.
116
Adopted by the General Assembly of the United Nations in its resolution 43/173, of 9 December 1988.
114
CONCLUSIONS
The implications of Villagrán Morales for international human rights law are therefore immense,
particularly in terms of accessing socio-economic rights through the reconceptualisation of the
right to life as encompassing the right to life with dignity, and by establishing a judicial
implementation mechanism for the UN Convention on the Rights of the Child.
Thus the main focus of this study has been on the legal precedents set by this case. However, the
ramifications of these judicial findings will hopefully extend beyond the legal sphere and impact
(to varying degrees) on different aspects of work with street children, as well as on the specific
situation in Guatemala. A full exploration of the extent of these ramifications lies beyond the
scope of this study, but their brief mention here is intended to indicate the potential of this case
for bridging the divide between international legal theory and grassroots promotion and
protection of human rights.
1) Profile of street children
The effect of an official, high-profile and well-respected regional legal mechanism making a
sympathetic, intelligent and holistically considered judgement in favour of street children has
great symbolic significance for the profile of this particularly vulnerable and marginalised group.
It is fair to say that the most dangerous threat posed to street children lies in their dehumanisation
in the eyes of society in that it absolves people, especially the authorities, of the obligation to
accord them their human rights. Their transposal from children to street children to undesirables
to discardables is expressed in many countries by annihilation - either actively by death squads or
passively by neglect. This judgement confronts such widely held perceptions and challenges
those in power to face up to their responsibilities by addressing the root causes of the problem
from a socio-economic perspective, in addition to combating impunity in civil and political rights
violations.
2) Inter-American human rights system / Rule of law
This decision marks another phase in the evolution and strengthening of the regional system,
representing a landmark example of the Court delivering controversial, well-considered, impartial
decisions which have the effect of “de-politicising” contentious issues in a politically turbulent
region117. Whilst accepting the limitations of legal decisions to have immediate, concrete,
grassroots effect, the Inter-American system is nonetheless central to the advancement of the rule
of law and the discouragement of violations of human rights by State agents acting with
impunity:
“Courts really make only minor contributions to the solution of societal problems. We
live in a part of the world with tremendous societal problems: economic, social, and
political problems. No court, regardless of its power, is going to solve those problems. So,
you cannot have illusions of grandeur that you are going to do this.
117
See inter alia Harris and Livingstone, supra note 47, at 20-23; Lynda E. Frost, The Evolution of the InterAmerican Court of Human Rights: Reflections of Present and Former Judges, 14 HUM. RTS. Q. 171.
What you can do, in my opinion, is strive to create, through very responsible judicial
decisionmaking, a climate in which compliance with a judicial decision legitimises
governmental behavior and where noncompliance illegitimises governmental action. And
the more legitimacy, or delegitimacy if you will, you can create through your opinions,
the more you move to a climate in which law, as distinguished from arbitrary action, can
play a role. Here a court can play a very important role...”118
2) Implications at the national level in Guatemala
In the decade that has passed since the events of the case took place, there has been a marked
reduction in levels of violence against street children in Guatemala (although they are still
unacceptably high119):
“A few years ago it was very common to see kids who had been beaten up by the police.
They would beat them, sometimes severely...I saw burst bladders and intestines, broken
ribs. They’d make the children swallow bags of glue. I still see these kind of abuses, but
less than before. Five years ago, I’d see four or five cases of police beatings a day. Now, I
see five or six a month. Bruises, contusions.”120
The reasons for this improvement may be attributed to any combination of the following factors:
the peace accords of 1996; the attempted process of healing through the Commission for
Historical Clarification 121; the introduction of a trained police force122; and, undoubtedly, the
work of courageous NGOs holding the State accountable for cases such as this one and pursuing
the government to uphold its responsibilities to protect victims and punish perpetrators who
would otherwise literally get away with murder.
More recently, the election in January 2000 of President Alfonso Portillo has resulted in a climate
more receptive to the improvement of human rights123: President Portillo has abolished the
previously powerful army unit attached to the presidency (Estado Mayor de Presidencial); he has
created a new ‘strategic civilian office’ with input from human rights NGOs; and he has spoken
of his intention to reform the judiciary124.
In a move very likely linked directly to the negative publicity and the embarrassment caused by
the Villagrán Morales case, “[t]he State has entered into friendly settlement negotiations in
relation to approximately 15 of the 75 cases pending against it before the Commission. It is
apparently studying which other cases it might be able to move forward with in the same manner.
The Portillo administration has indicated its interest in pursuing a permanent dialogue with the
nongovernmental organisations involved in cases before the Commission in order to pursue
negotiated settlements. [...] Friendly settlement is more a process than a result, so we will have to
118
Thomas Buergenthal, United States Judge, Inter-American Court of Human Rights (1979-1991) in id., at 201
[hereinafter Buergenthal].
119
See Human Rights Watch Report, supra note 20.
120
Dr René Zamora, Casa Alianza doctor, Guatemala City, 4 September 1996 - Human Rights Watch Children’s
Rights Project interview, in id., at 9.
121
See supra note 13.
122
As referred to by the State in its defence, Judgement, para. 215.
123
The following information is courtesy of Juan E. Mendez, Inter-American Commission on Human Rights,
personal interview, 18 March 2000. Notes on file with the author.
124
See Amnesty International, New President Should Fulfil his London Human Rights Promises News Release AMR
34/02/00 (14 Jan 2000). Available online: http://www.amnesty.org/news/2000/23400200.htm [3 March 2000].
see steps toward implementation of agreements before we can know how these processes will
unfold.”125
It will therefore be interesting to see how the reparations phase of the Villagrán Morales case
,due to be completed in the spring of 2001, will affect the State’s attitude and actual behaviour,
particularly bearing in mind the petitioners’ insistence on a national plan to help street children
and the passing of the Children and Adolescents’ Code126 as part of the reparations127. It would
also be interesting to see if the findings from this case could be incorporated into police training
programmes with the preventative aim of reducing police violence against street children.
However, from a grassroots perspective, in reply to queries as to the tangible benefits of this case,
Casa Alianza is circumspect: “I don’t think there will be any direct benefits to the policeman on
the beat as a result of this case. [...] Once we set (high) reparations and the government has to
cough up money then there may be more attention paid to the ruling. But don’t hold your
breath...”128
It is an uphill battle, and of the other NGOs working with street children in the area, very few are
actively involved in such contentious advocacy work due to both the physical dangers involved
(harassment, death threats, attempted murder, suspicious death of two witnesses etc 129) and the
threat to project funding from the very governments under criticism: “Governments are very
smart and will often give small amounts of funding to NGOs which has the effect of shutting
them up. […] Advocacy will inevitably cost the agency funding”130.
Despite the difficulties, although early days, Villagrán Morales already seems to have had a
direct impact on Guatemala’s attitude towards other cases before the Commission. Although it
will undoubtedly take time for these changes to filter down the judicial and police hierarchy, and,
bearing in mind the words of the former Court judge, Thomas Buergenthal, on the limited power
of any court to effect real ground level societal change, the potential still exists for this case and
others like it to make a contribution to combating a climate of impunity and institutionalised
violence against vulnerable members of society. Buergenthal concludes his observations with: “a
lot of lives can be saved in situations where a government says, ‘Listen, we can’t do this because
if we do it, the Court is going to decide this, and if the Court decides this, we are going to have
all sorts of adverse political reactions.’”131
125
Elizabeth Abi-Mershed, Secretariat Staff Attorney assigned to the case of Villagran Morales, Inter-American
Commission on Human Rights, personal communication, 22 Aug 2000. Notes on file with the author. She
emphasises, however, that “the Commission still has to review the settlement for conformity with the principle of
respect for the American Convention prior to ‘signing off’ on any settlement.” (N.B. statistics here refer to all cases,
not just those involving children / street children).
126
See supra note 75.
127
Bruce Harris, supra note 70. “Anstraum [Aman Villagran Morales] has a (now) 11 year old son for whom we will
get compensation. The other family members will also receive compensation. I guess my principal interest at the
moment is to milk as much money out of the government as possible.”
128
Id..
129
See background information on the case, p. 2 of this study.
130
Bruce Harris, supra note 70.
131
Buergenthal, supra note 118, at 201.
For Casa Alianza, at the cutting edge of both ends of the process, this case has shown
“[t]hat justice can prevail. The Inter-American system is slow, inefficient and hardly
perfect. But it is there and should be used by more and more agencies. This case took us
10 years from start to finish and it’s still not over... and, if we added up all the expenses
involved, probably cost us over US$ 100,000. But these were five children who deserved
better...[...] It is a lesson to human rights defenders that they should not give up. That
systems can be changed. That our loyalty should be to the children we serve rather than to
the organisation that employs us. That children do matter and are important and should
never be forgotten”132.
132
Bruce Harris, supra note 70.
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APPENDIX A
American Convention on Human Rights ('Pact of San Jose, Costa Rica') (1969)133
Article 1 - Obligation to respect rights
1. The States Parties to this Convention undertake to respect the rights and freedoms recognized herein
and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and
freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or
other opinion, national or social origin, economic status, birth, or any other social condition.
2. For the purposes of this Convention, ‘person’ means every human being.
Article 4 - Right to life
1. Every person has the right to have his life respected. This right shall be protected by law, and, in
general from the moment of conception. No one shall be arbitrarily deprived of his life.
2. In countries that have not abolished the death penalty, it may be imposed only for the most serious
crimes and pursuant to a final judgement rendered by a competent court and in accordance with a law
establishing such punishment, enacted prior to the commission of the crime. The application of such
punishment shall not be extended to crimes to which it does not presently apply.
3. The death penalty shall not be reestablished in states that have abolished it.
4. In no case shall capital punishment be inflicted for political offenses or related common crimes.
5. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were
under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.
6. Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of
sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a
petition is pending decision by the competent authority.
Article 5 - Right to humane treatment
1. Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All
persons deprived of their liberty shall be treated with respect for the inherent dignity of the human
person.
3. …
4. …
5. …
6. …
133
Reprinted in Blackstone's International Human Rights Documents, 1st Ed., P. R. Ghandi, 1995 at 147.
Article 7 - Right to personal liberty
1. Every person has the right to personal liberty and security.
2. No one shall be deprived of his physical liberty except for the reasons and under the conditions
established beforehand by the constitution of the State Party concerned or by a law established pursuant
thereto.
3. No one shall be subject to arbitrary arrest or imprisonment.
4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly
notified of the charge or charges against him.
5. Any person detained shall be brought promptly before a judge or other officer authorized by law to
exercise judicial power and shall be entitled to trial within a reasonable time or to be released without
prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his
appearance for trial.
6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that
the court may decide without delay on the lawfulness of his arrest or detention and order his release if
the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes
himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in
order that it may decide on the lawfulness of such threat, this remedy may not be restricted or
abolished. The interested party or another person in his behalf is entitled to seek these remedies.
7. No one shall be detained for debt. This principle shall not limit the orders of a competent judicial
authority issued for nonfulfillment of duties of support.
Article 8 - Right to a fair trial
1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a
competent, independent, and impartial tribunal, previously established by law, in the substantiation of
any accusation of a criminal nature made against him or for the determination of his rights and
obligations of a civil, labor, fiscal, or any other nature.
2. …
3. …
4. …
5. …
Article 19 - Rights of the child
Every minor child has the right to the measures of protection required by his condition as a minor on the part of his
family, society and the state.
Article 25 - Right to judicial protection
1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent
court or tribunal for protection against acts that violate his fundamental rights recognized by the
constitution or laws of the state concerned or by this Convention, even though such violation may have
been committed by persons acting in the course of their official duties.
2. The States Parties undertake:
(a) to ensure that any person claiming such remedy shall have his rights determined by the competent
authority provided for by the legal system of the state;
(b) to develop the possibilities of judicial remedy; and
(c) to ensure that the competent authorities shall enforce such remedies when granted.
Inter-American Convention to Prevent and Punish Torture (1985)134
Article 1
The States Parties undertake to prevent and punish torture in accordance with the terms of this Convention.
Article 6
In accordance with the terms of Article 1, the States Parties shall take effective measures to prevent and punish
torture within their jurisdictions.
The States Parties shall ensure that all acts of torture and attempts to commit torture are offenses under their
criminal law and shall make such acts punishable by severe penalties that take into account their serious nature.
The States Parties shall likewise take effective measures to prevent and punish other cruel, inhuman, or
degrading treatment or punishment within their jurisdiction.
Article 8
The States Parties shall guarantee that any person making an accusation of having been subjected to torture within
their jurisdiction shall have the right to an impartial examination of his case.
Likewise, if there is an accusation or well-grounded reason to believe that an act of torture has been
committed within their jurisdiction, the State Parties shall guarantee that their respective authorities will proceed
properly and immediately to conduct an investigation into the case and to initiate, whenever appropriate, the
corresponding criminal process.
After all the domestic legal procedures of the respective State and the corresponding appeals have been
exhausted, the case may be submitted to the international fora whose competence has been recognized by that State.
134
Reprinted in Blackstone's International Human Rights Documents, 1st Ed., P. R. Ghandi, 1995 at 171.
APPENDIX B
Key paragraphs of the Judgement
Paragraph 144
The 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. Owing to the fundamental nature of the right to life,
restrictive approaches to it are inadmissible. 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.
Paragraph 191
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’ [CRC Preamble, para. 6], even though every child has the right to
harbor a project of life that should be tended and encouraged by the public 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.
APPENDIX C
Inter-American Court of Human Rights
Villagrán Morales et al v. State of Guatemala
19th November 1999
Joint Opinion of the Judges A. A. Cançado Trindade and A. Arbeu Burelli
Destiny would have it that the last judgement of the Inter-American Court of Human Rights this year, and on the eve
of the year 2000, should be passed on a situation which affects a particularly vulnerable section of the population of
Latin America: the sufferings of street children. 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 Law of Human Rights in
general, and within the American Convention on Human Rights (Article 4) in particular. It stresses the fundamental
nature of the right to life, which apart from being non-derogable, requires positive measures of protection on the part
of the State (Article 1 (1) of the American Convention).
The right to life implies not only the negative obligation of not arbitrarily depriving anyone of life, but also the
positive obligations of taking necessary measures to ensure that this basic right is not violated. This interpretation of
the right to life today finds backing both in international jurisprudence as in theory 135, in order to ensure that it
encompasses [in practice] positive measures of protection on the part of the State. There can be no doubt that the
fundamental right to life belongs to the category of jus cogens.136
The right to life cannot continue to be perceived restrictively, as it has been in the past, to refer only to the
prohibition of depriving another of physical life. We believe that there are several ways of depriving a person of life
arbitrarily: when a person’s life is expropriated directly by the act of homicide, but also when the circumstances
which conduce to [original emphasis] death are not prevented - as in the present case. In the present case, Villagrán
Morales et al v. Guatemala pertaining to the death of children by police agents of the State, there is the additional
aggravating circumstance that the lives of those children had already lost meaning: that is, the children who were
victims already were deprived of the possibility of creating and developing the project of their life and of finding a
meaning for their own existence.
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. The
arbitrary privation of life is not limited, then, to the illegal act of homicide: it extends to the deprivation of the right
135
See e.g. B. G. Ramcharan (ed.), The Right to Life in International Law, Dordrecht, Nijhoff, 1985, pp. 1-314; J. G.
C. van Aggelen, Le rôle des organisations internationales dans la protection du droit à la vie, Bruxelles, E. StoryScientia, 1986, pp. 1-104; D. Prémont and F. Montant (eds.), Actes du Symposium sur le droit à la vie - Quarante
ans après l’adoption de la Déclaration Universelle des Droits de l’Homme: Evolution conceptuelle, normative et
jurisprudentielle, Genève, CID, 1992, pp. 1-91; A.A. Cançado Trindade, “Human Rights and the Environment”,
Human Rights: New Dimensions and Challenges (ed. J. Symonides), Paris/Aldershot, UNESCO/Dartmouth, 1998,
pp. 117-153; F. Przetacznik, “The Right to Life as a Basic Human Right”, 9 Revue des droits de l’homme/Human
Rights Journal (1976) pp. 585-609. And see General Comments 6/1982 and 14/1984 of the Human Rights
Committee, on the UN ICCPR reproduced in: United Nations, Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, U.N. doc. HRI/GEN/1/Rev. 3, of 15.08.1997, pp. 6-7
and 18-19.
136
See e.g.., W. Paul Gormley, “The Right to Life and the Rule of Non-Derogability: Peremptory Norms of Jus
Cogens”, The Right to Life in International Law, op. supra n. (1), pp. 120-159; Y. Dinstein, “The Erga Omnes
Applicability of Human Rights”, 30 Archiv des Völkerrechts (1992) pp. 16-37; and see in general, inter alia, Alfred
Verdross, “Jus Dispositivum and Jus Cogens in International Law”, 60 American Journal of International Law
(1966), pp. 55-63; Charles de Visscher, “Positivisme et jus cogens”, 75 Revue générale de Droit international public
(1971) pp. 5-11; see also: International Court of Justice, South West Africa Cases (2a. fase, Ethiopia and Liberia v
South Africa), Dissenting Opinion of Judge K. Tanaka, ICJ Reports (1966) p. 298: “(...) surely the law concerning
the protection of human rights may be considered to belong to the jus cogens”.
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.
The Inter-American Court has indicated in the present Judgement (paragraph 193) and in its 16th Advisory Opinion
on the Right to Information on Consular Assistance in the framework of the Guarantees of Due Legal Process
(1999)137 that the interpretation of an international instrument of protection must ‘accompany the evolution of time
and current conditions of life’ and that this understanding that interpretation of law is evolutionary, in harmony with
the general rules of interpretation of treaties, has contributed decisively to the advances of international human rights
law.
Our conception of the right to life under the American Convention (Article 4, in conjunction with Article 1 (1)) is
manifested in this evolutionary interpretation of international norms of protection of the rights of the human being.
The last years have seen the deterioration of the conditions of life of broad sectors of the population of the States
Parties to the American Convention, and an interpretation of the right to life cannot treat this reality as an abstraction,
above all when it refers to the condition of children at risk in the streets of our Latin American countries.
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 life with dignity [una vida digna]. This is the
reason for which we stress the inexorable link in the present case between Articles 4 (the right to life ) and 19 (rights
of the child) of the American Convention, so well articulated by the Court in paragraphs 144 and 191 of the present
Judgement.
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 human person to have security and humane
treatment. In our unanimous decision on the case Loayza Tamayo v. Peru (Reparations, 1998), we maintained that
damage to the project of life must be integrated within the conceptual universe of reparations under Article 63 (1) of
the American Convention.
We expressed that:
The project of life is indissolubly bound to liberty, as is the right of each person to elect their own destiny.
(....) The project of life encompasses the ideal of the American Declaration of the Rights and Duties of Man
(1948) of the elevation of the spirit as the supreme and maximum objective of human existence. 138
A person who in their infancy lives, as so many do in Latin America, in the humiliation of destitution, without
having the minimum conditions in which to develop their own project of life, experiences a state analogous to a
death of the spirit. The physical death which follows in these circumstances is the culmination of the total destruction
of the human person. These violations do not only victimise the persons who suffer them directly in their body and
spirit: they are projected painfully onto those who love them, and in particular their mothers, since these usually also
find themselves in the same condition of abandonment. Added to the suffering which follows the violent loss of their
children is the indifference with which the mortal remains of these children are treated.
In circumstances such as those of the present case, as the Court has recognised (para. 174 - 177), it is impossible not
to encompass in the wider concept of victims, the mothers of the murdered children 139. The vision which we maintain
corresponds to the deeply rooted beliefs held by the peoples of Latin America: the idea that the death of the spirit of
a human being is consummated only when that person is forgotten. The children who were murdered on a street and
in a wood (ironically, the wood of St. Nicolas, a figure with such symbolism for children) not only did not have the
opportunity to reconcile themselves to their passage to eternity; the respect of the physical remains of those children
would have ensured that the mothers at least had the opportunity of maintaining alive within themselves the memory
of their children prematurely disappeared.
Faced with the imperative of protecting human life, and the uncertainties and reflections provoked by death, it is very
difficult to separate dogmatically judicial from moral concerns: we are before an order of higher values - the
137
Inter-American Court on Human Rights, El Derecho a la Información sobre la Asistencia Consular en el marco
de las Garantías del Debido Proceso Legal - Advisory Opinion OC-16/99, of 01.10. 1999, Series A, n. 16, para.
114.
138
Inter-American Court of Human Rights, Loayza Tamayo versus Peru (Reparations), Judgement of 27.11.1998,
Series C, n. 42, paras. 15-16.
substratum of judicial norms - which helps us to find the meaning for the existence and destiny of each human being.
International human rights law, in evolution on the threshold of the 21st century, must not remain insensible or
indifferent to these questions.
Antonio Augusto Cancado Trinidade, Judge
Alirio Abreu Burelli, Judge
Manuel E. Ventura Robles, Secretary