Litigating the rights of street children in regional or international fora: trends, options, barriers and breakthroughs.

• Date: 01 January 2006
• Author: Ewelukwa, Uche U.

This article focuses on the fate of street children and interactions between street children and international law and international institutions. The landmark November 1999 decision of the Inter-American Court of Human Rights, Villagran Morales v. Guatemala, provides the basis for this article. Villagran Morales was the very first case in the history of the Inter-American Court where the victims of human rights violations were children, and the first case ever involving street children before an international adjudicatory body. This article examines the significance of this decision for street children.

A world which abandons its children in the streets has no future; it no longer renders it possible to create and develop a project of life.... A world which tries to ignore the precariousness of the human condition inspires no confidence.... It is a world wherein each one survives amongst a complete spiritual disintegration. It is a world that has become simply dehumanized, and which today needs urgently to awake to the true values. (1)

--Judge A.A. Cancado Trindade, The Inter-American Court of Human Rights

INTRODUCTION

On November 19, 1999, the Inter-American Court of Human Rights, in Villagran Morales v. Guatemala, (2) rendered a landmark decision in which the Court found the Republic of Guatemala in violation of several provisions of the Inter-American Convention on Human Rights ("IACHR") (3) on account of the 1990 abduction, detention, and/or murder of five street youths (three of whom were minors). On May 26, 2001, the Court awarded damages totaling $508,865.91 against Guatemala in favor of the surviving relatives of the murdered children. (4) The Villagran Morales case was significant for two reasons. It was the first case involving street children ever to come before an international adjudicatory body. (5) It was also the first case in the history of the Inter-American Court in which the victims of human rights violations were children. (6)

Focusing on the Villagran Morales decision and drawing on subsequent discussion with the National Director of Casa Alianza Guatemala (one of the organizations that filed the petition in the Villagran Morales case), this Article examines the effectiveness of litigation before international human rights tribunals as a strategy for protecting the rights of street children across the globe. (7) This inquiry is relevant because more than six years after this landmark decision, the plight of street children in Guatemala, other Latin America countries, and other parts of the developing world remains bleak. (8) However, international human rights litigation frequently involves difficult choices and trade-offs, and the rewards for the actual victims of abuse often come at a cost. In the context of limited resources, advocates must evaluate the wisdom of pursuing litigation before a regional or international human rights tribunal at the expense of diverting resources from alternative advocacy strategies and important social welfare programs for street children.

In this Article, I argue that international human rights litigation can be a powerful means of political expression and community mobilization for abused and victimized children in developing countries and can result in precedent-setting interpretations of core treaties affecting the rights of children. However, the potential for such litigation to bring about tangible changes in the living conditions of street children is limited by a number of factors, particularly weaknesses in international human rights laws and processes. Moreover, international human rights litigation hardly addresses the core factors that contribute to the street children problem and that frequently shape the experiences of street children, such as underdevelopment, systemic poverty, economic disparities, armed conflict, inequitable socio-economic structures, and discriminatory attitudes--especially discrimination on the basis of race and ethnicity.

The Villagran Morales case signals a welcome turning point in the history of international law's engagement with poor children, (9) suggesting a new willingness on the part of international human rights bodies to subject states' observance of their international legal obligations to heightened scrutiny whenever the interests of children are implicated. However, in the short term, the effectiveness of international litigation as a strategy for improving the lives of street children may be minimal.

The Villagran Morales case could potentially influence national courts, other regional human rights institutions, and the United Nations' human rights bodies. (10) It is, however, unlikely that regional and international human rights bodies will experience a flood of petitions on behalf of street children. There will probably not be a wave of decisions by human rights bodies holding states or individuals in violation of international human rights law as a result of their treatment of street children. This is unlikely for three reasons. First is the continued exclusion of non-state actors from the domain of international human rights law. Thus, when the aggressor is a non-state actor, it is extremely difficult to utilize the regional and international human rights complaints mechanisms to hold that actor responsible. Second, in contrast to civil and political rights, economic and social rights remain neglected and under-theorized in international human rights law. Thus, because most of the deprivations that street children experience are economic and social in nature, the Villagran Morales case may have a limited impact on the actual living conditions of street children. Third, there are a limited number of fora (regional or international) where these children's human rights claims may be brought. Currently, there are only three major regional courts that hear cases concerning human rights violations. (11)

This paper is comprised of five sections. In Section I, I offer a brief overview of the street children phenomenon. In Section II, I introduce the Villagran Morales case. This Section provides a useful background to the street children problem in Guatemala and highlights the core holdings of the Court. In Section III, I analyze the Villagran Morales case with a view toward highlighting its significance in the growing international children's rights law jurisprudence. In Section IV, I examine the limitations of international human rights litigation as a strategy for safeguarding the rights of street children and improving the conditions of their lives today. I offer my conclusions in Section V.

1. STREET CHILDREN--GLOBAL PERSPECTIVE

   The phenomenon of street children is a worldwide problem involving both sexes, and is in no way limited to poor countries. (12) In Europe, though some countries deny it, the problem of street children is immediate. (13) In a study of thirty-one countries in Europe conducted by the Council of Europe Study Group on Street Children, (14) only three countries--Cyprus, Liechtenstein, and San Marino--reported a total lack of street children. (15) The Study Group on Street Children predicts that in Europe the problem "is likely to become more and more visible" and that "the situation of street children will deteriorate" in the coming years. (16) Street children are also a feature of urban life in Latin America, where they are regarded with a mix of fear and pity and have increasingly become victims of violence and murder. (17)

   Former socialist countries are also seeing rising numbers of street children, some for the first time. In Poland and Hungary, for example, an increase in the number of children living in desolated buildings, cellars and railway stations has been reported. (18) Street children are emerging in Mongolia as well--a fall-out from the economic crisis precipitated by the collapse of the Soviet Union. (19) Systemic poverty, civil strife, and the HIV/AIDS epidemic have led to a surge in the number of street children in Africa. (20)

   Who are street children? How many street children are there in the world today? Although the street children phenomenon is a global problem of growing magnitude, there is still little official recognition of this phenomenon and reliable statistics are lacking; in Europe, the Study Group on Street Children notes that "precise knowledge about the phenomenon of street children ... is in general limited." (21)

   1. The Problem of Definition: Who is a Street Child?

      There is no commonly accepted definition of street children, although numerous attempts to establish one have been made. (22) Underlying these attempts are fundamental disagreements about the relevant criteria for determining who is a street child. (23) The problem of definition is compounded by the fact that the street has different meanings and connotations in different contexts. (24)

      Because children craft different relationships with the street, no one definition can capture the totality of the experiences of street children worldwide. A street child may be "of the street" or "on the street." A child "of the street" has no home but the street; (25) such a child may have abandoned or been abandoned by his family, or he may have no surviving family member--a situation increasingly common with the AIDS epidemic. A child "on the street" is one who has not severed all family ties; such a child spends a considerable amount of time on the street but returns home either every night or periodically. (26) Children who are part of street families (in the sense that they live on the sidewalks or city squares with the rest of their families) do not generally fall under the heading of "street children" for research and advocacy purposes. (27) They are differentiable both in the sense that they definitively lack any alternative and in the sense that they stay with their families. Their concerns are more likely to be dealt with under the heading of homelessness and poverty in general. This...