Substantive Rights

A1: Survival

This section lists those rights that are fundamental to the basic survival of street and working children and without which their lives are often placed in jeopardy.

1.1 Wight to Life

Naturally, this is the most basic right of all which is the precondition for the enjoyment of all others. Indeed, in many provisions it is described as an inherent right which cannot be derogated from in any circumstances [>C:1].

1.1.1 Treaty Provisions Because of its fundamental nature this right is widely protected in many of the major international human rights treaties and in all of the regional documents:

* ART 6 Convention on the Rights of the Child (CRC) [>B:P.1]

* ART 6 International Covenant on Civil and Political Rights (ICCPR) [>B:1.2]

* ART 4 African Charter on People's and Human Rights (AfCHR) [>B:3]

* ART 4 American Convention on Human Rights (AmCHR) [>B:4]

* ART 2 European Convention on Human Rights (ECHR) [>B:5].

It may also be found in ART 3 of the Universal Declaration of Human Rights (UNDHR) and as such has the status of customary international law [>C:1].

1.1.2 Protecting the Right Many factors can threaten a street and working child's right to life. Some can take the form of violating acts by the state and its agents:

* extrajudicial executions

* 'disappearances'.

Because such actions are considered to violate a child's civil rights it has been possible to bring states to account under both the international and regional systems which are described in Section B. Indeed, they even have their own specialist mechanisms within the UN system [>B:2.6].

However, other equally serious threats to the right to life can take the form of omissions which fail to protect certain basic economic and social rights, resulting in:

* poverty

* malnutrition

* lack of decent health care

* lack of adequate shelter.

The remainder of this section focuses on these economic and social rights, which have traditionally been neglected both by states and the international community but for which there is now growing pressure to ensure greater protection within the human rights system.

Any, or a combination, of these factors result in the deaths of thousands of street and working children world-wide every day. Hence, to bring a state to account for its failings as well as its definite abuses, it is important to be aware of the responsibilities that a state has in each area and any special duties it has in respect of children.

1.2 Right to an Adequate Standard of Living

As with the right to life, this incorporates a number of concepts reflected in the variety of definitions adopted by different international treaties and declarations:

* ART 25(1) UNDHR: food, clothing, housing, medical care, necessary social services and social security

* ART 11(1) International Covenant on Economic, Social and Cultural Rights (ICESCR): food, clothing and housing

* ART 27(1) CRC: links a child's standard of living to his physical, mental, spiritual, moral and social development.

Both the Preamble of the CRC and Art 27(3) discuss the need to provide assistance to those children 'living in exceptionally difficult conditions'.

In addition to this general standard, each of its component rights also receives its own protection to a greater or lesser degree under international law.

1.3 Right to Adequate Nutrition and Clean Water

Although the ICESCR is the main substantive document for the protection of economic and social rights, it is noticeable that ART 11, which focuses on the right to food, does not explicitly mention the importance of nutritious food nor the need for access to clean drinking water. This is despite the fact that ART 11(2) highlights the importance of disseminating information on the principles of nutrition.

For the most comprehensive protection for children in this area we must look instead to:

* ART 27(2)(c) CRC – states that one crucial way of combating disease and malnutrition is to provide adequate nutritious foods and clean drinking-water which is not subject to environmental pollution

* ART 14(2)(c) African Charter on the Rights and Welfare of the Child – again guarantees a child's right to adequate nutrition and safe drinking-water.

When the African Charter comes into force it will provide the opportunity for children and their representatives to enforce such rights through individual complaints to a Committee of Experts [>B:3], something that the existing economic and social rights system does not permit [>B:1.3].

Economic and social rights are justiciable

For pregnant street girls malnutrition is a particular danger as they are already weakened by their condition. This interdependence of adequate food and wellbeing is reflected in ART 24 of CRC which sees appropriate nutrition as a vital component of primary health care programmes and calls for the dissemination of information about it to be included within health education.

1.4 Right to Decent Health Care

The marginalization of street and working children limits their access to even the most basic health services, which are sometimes the only facilities many developing states have to offer. Their inability to attend school often means they miss out on the regular health checks and immunization programmes that are carried out there.

However, ART 24(1) of the CRC clearly indicates that no child shall be deprived of access to the highest attainable standard of health available. This taken together with the general non-discrimination indicated in ART 2(1) means that even those children on the fringes of society – indeed especially those children because of their greater susceptibility to disease and ill health – should be able to receive the same standard of treatment as every other child.

The CRC again goes further than the ICESCR in defining exactly what the right to decent health care means, reflecting the passage of time between the two treaties. ART 24 talks of the importance of preventative work and primary health care, taking into account the level of health service technology appropriate to the developing world. In contrast, ART 12 of the ICESCR adopts a much more limited approach.

Note also ART 24(2)(d) of the CRC, which focuses on the need to provide antenatal and post-natal services for mothers implicitly including pregnant girls.

A similar approach to the CRC may again be found in the African Charter on the Rights and Welfare of the Child (ART 14) which, raises the possibility of bringing states (and perhaps ultimately the international community for its failure to provide adequate resources) to account for their failure to make a range of health care services available for all their children.

1.5 Right to Adequate Shelter

By definition, many (but not all) street and working children are denied adequate shelter through their exclusion from a family home or the lack of any suitable temporary or permanent accommodation provided through state agencies or NGOs. Living and sleeping on the streets can quickly have a detrimental effect on a child's health – particularly in those countries where extremes of temperature are commonplace.

Despite its fundamental importance, this issue does not receive separate protection under the ICESCR but is merely listed in ART 11(1)] as one of those rights necessary to ensure a person enjoys an adequate standard of living. Hence, the right is not defined further and no basic standards laid down.

The obligations upon states are elaborated in slightly more detail in ART 27(3) of the CRC, where it states that in relation to enabling a child to enjoy an adequate standard of living it '... shall in the case of need, provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing'. Implicit in this clause is the recognition that unless states adopt an integrated approach to providing enjoyment of certain fundamental economic and social rights then the neglect of any one could threaten the right to life.

A2: Fair Treatment

This section looks at those rights that are designed to ensure that street and working children are not badly treated or exploited – they could also be labelled the protection or equal respect rights.

Street and working children can often find themselves in a number of situations where their rights are not being respected by either commercial institutions, agents of the state or private individuals.

The introduction of the CRC, which builds upon the existing UN International Labour Organisation (ILO) and regional human rights law, now means that there is a sufficient set of standards to make it clear that marginalized children have the right not to be sexually or commercially exploited or inhumanely treated under any circumstances. The implementation of these rights – as with all human rights – is another matter, but through skilful reconceptualization (see below) even this can begin to be addressed by NGOs and advocates.

Six areas involve particular threats to the fair and equal treatment of street and working children:

* right not to be tortured or suffer inhumane and degrading treatment

* right to fair treatment while in detention

* right to fair treatment under the law

* right not to be commercially exploited

* right not to be sexually exploited

* right not to be socially exploited.

2.1 Torture

Like the right to life, the right not to be tortured or suffer cruel, inhumane or degrading treatment is a fundamental freedom which cannot be derogated from in any circumstances. However, it is only too apparent that for many countries torture remains a routine – sometimes systematic – practice which is often the first recourse for police and security forces who deal with street children.

The right is protected by all the main general treaties we are concerned with:

* ART 37 CRC

* ART 7 ICCPR

* ART 5(2) AfCHR

* ART 5(2) AmCHR

* ART 3 ECHR.

It also benefits from having its own treaty – the Convention Against Torture [>C:2] together with a monitoring committee with some unique powers of investigation [>B:1.4] and an individual expert (special rapporteur) appointed by the UN [>B:2.6]. The result is that victims of torture have a number of options to bring violators to account, depending of course upon which treaties the particular state has ratified [>C:3].

Given the wide range of protection that exists it is not surprising that the different aspects of ill treatment have been analysed quite closely by different human rights bodies:

Torture Inhuman treatment with a purpose such as obtaining information or confessions ... generally an aggravated form of inhuman treatment.

Inhuman Treatment At least [that which] ... deliberately causes suffering, mental or physical, which in the particular situation is unjustifiable.

Degrading Treatment Grossly humiliates [an individual] before others or drives him to act against his will or conscience.

[European Commission in Denmark et al. v. Greece]

The majority of treaties define the right in a similar way. However, note that the ECHR omits the word 'cruel' which, given that some treatment or punishment may amount to cruelty while not being considered torture or inhumane, may be a drawback when considering bringing a case under that system [>B:5].

However, in most cases the choice will probably depend more upon the relative effectiveness of each protection system (speed, openness, result) than the substantive wording. More than one system can be used, provided the relevant rules are followed about which can be used first or at the same time.

2.2 Treatment while in Detention

Many street children are regularly held without charge, often in terrible conditions, as a means of 'cleaning' them off the streets. Even if they are found guilty of crimes such as stealing or drug abuse and imprisoned – an act which is still not outlawed by international law – the standards of their detention often fall well below that laid down by international guidelines such as the Body of Principles for the Protection of All Persons under Any form of Detention or Imprisonment, the United Nations Standard Minimum Rules of the Administration of Juvenile Justice [The Beijing Rules] or (most importantly) the Standard Minimum Rules for the Protection of Juveniles Deprived of their Liberty 1990 (contact the UN Centre for Human Rights or Defence for Children International – who also provide a free commentary – [>C:5] for copies, or they may be found in International Documents on Children (edited by Geraldine Van Bueren 1993) but note that, unlike the CRC, these are not binding law).

Until the Standard Minimum Rules in 1990 and the CRC, international law had not catered for detained children as well as it had for adults. However, there is now a body of standards designed to ensure that if children are detained this must be done in accordance with the rule of law and humanely.

ART 37(b) of the CRC establishes that detention should be used only as a means of last resort – as does Rule 1 of the 1990 Standard Minimum Rules. This is a higher standard than in treaties which apply equally to adults and children, such as the ICCPR which prohibits pre-trial detention only 'as a general rule' (ART 9(3)) – therefore the CRC standard should always be quoted provided the state is a party to it.

As Van Bueren points out [1994 p. 2101 there is a particular danger for street children that courts will use pre-trial detention as the only option to secure their whereabouts until trial, given that they will be unable to supply an address and will not be able to meet any bail payment. However, routine use of detention without the state seeking to provide any alternative through other agencies, such as social services, will surely be a breach of the 'last resort' clause of ART 37(b).

ART 37(c) provides the framework within which states must operate when choosing to detain children:

Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of their age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.

Although this does not lay down a minimum age at which children may be detained, a further duty on states in ART 40(3) obliges them to 'seek to promote' the establishment of a minimum age 'below which children shall be presumed not to have the capacity to infringe the penal law' – in other words, also below which they should not be detained.

As pointed out above, although the needs of detained children are clearly different from adults the relevant general treaty provisions also apply to them and may be found in the following articles:

* ART 10 ICCPR

* ART 5(2) AmCHR.

2.3 Treatment under the Law

It is one of the foundations of a civilized state that the rule of law should prevail and that justice should be administered fairly and consistently. Again, juvenile justice has traditionally been neglected in regard to standard setting compared to its adult counterpart.