By Kirsty Brimelow QC
In the morning of July 23, 1993, the Candelaria Church in Rio de Janeiro was the scene of an unprecedented horrific death squad operation against street children in Brazil.
Police officers opened fire on a large group of children sleeping on the church steps, killing eight of them, and wounding many more. The motives for the “Candelaria Massacre” remain unclear – some say the police were seeking revenge for an earlier confrontation with some of the youths; while others claim that local business owners paid the police to “clear” the area.
Following the massacre there was a surge of international interest in the fate of street children. UN General Assembly Resolutions in 1993 and 1994 and a 1994 Resolution of the UN Commission of Human Rights all called upon the international community to improve the situation of street children, and to ensure greater awareness and more effective action to solve the issue.
Whilst during the last two decades the street children problem had been marginalised in international development debates and national plans of action, it has been firmly back on the agenda since the announcement by the UN Committee on the Rights of the Child in June 2014 that it will develop a General Comment on Children in Street Situations.
The announcement comes two decades after the UN General Assembly for the first time called for such a General Comment. The Committee on the Rights of the Child received about 50 submissions from different stakeholders. Of interest is that consultation events were organised for children from street situations. This was a unique initiative and allowed for voices of street children around the world to be heard. Three hundred and seventy street-connected children from 32 different countries were consulted.
The term “street child”, used by the Commission on Human Rights in 1994, was developed in the 1980s to describe “any girl or boy [...] for whom the street (in the broadest sense of the word, including unoccupied dwellings, wasteland, etc.) has become his or her habitual abode and/or source of livelihood, and who is inadequately protected, supervised or directed by responsible adults.”
Today, the term “street children” is understood as a socially constructed category that, in practice, does not constitute a homogeneous population, making the term difficult to use for research, policymaking and intervention design. Although some estimates of street children run as high as 120 million worldwide, according to a UN study global estimates of the number of children in street situations have no basis in fact. However, there is general agreement that the number is expected to increase amid rising inequalities, climate change and, of course, conflict around the globe.
The 1989 Convention on the Rights of the Child was adopted by the UN General Assembly on 20 November 1989 and entered into force in September 1990. Every country in the world has ratified it with the exception of the USA.
The Convention covers a whole range of rights – civil, political, economic, social and cultural; establishes a framework of duties for different actors; marks a milestone in recognising all children as rights holders and reaffirms the general principles of best interests of the child, non-discrimination, participation, survival and development as the framework for all actions concerning children.
Also, children are recognised as having voices, which should be taken into account. General Comment No 12 (2009) on the right of the child to be heard, mentions that the voices of children have increasingly become a powerful force in the prevention of child rights violations, including providing health services and education to street children which are mentioned as good practice examples.
Human Rights Council Resolution 16/12 of 12 April 2011 deals specifically with the protection and promotion of the rights of children working and/or living on the street. It invited the Office of the High Commissioner for Human Rights to conduct a study on challenges, lessons learned and best practices in a holistic, child rights and gender-based approach to protect and promote the rights of children working and/or living on the street.
In addition, all human rights legislation provides equally to children as well as adults. Children do not have mini rights.
However, the lack of a clear framework from the UN on street children’s rights meant that responsible authorities worldwide have been unwilling or unable to close the policy gaps that street children continuously fall through.
By contrast, a General Comment has the power to influence policy and practice at international, national and local levels to bring about positive change for the situation of children living and/or working on the street. It can be used as a framework for accountability, as well as for pushing for change in legislation. National and international courts can refer to General Comments to clarify legislative provisions and for an authoritative interpretation of rights.
The General Comment improves the implementation of the UN Convention on the Rights of the Child. It establishes new scope for treating street children as a specific area of attention, and for holding governments to account.
Whilst the General Comment slowly takes form, in 2016, children drowning off the shores of Europe dominated the UK news. In recent weeks, the government placed a limitation of 350 upon the admission of refugee children into the UK under Section 67 of the Immigration Act 2016 (the “Dubs Amendment”). After pressure, the government has agreed to review the child asylum application cases where there are direct family links to the UK.
In North East Nigeria, children’s voices cannot be heard; their bodies are too weak to support speech. This part of Nigeria contains the three states hardest hit by Boko Haram. According to UNICEF, in 2017, at least 90,000 children could starve to death. On 20 February 2017, famine was declared in two counties of Unity State of South Sudan; 250,000 children are severely malnourished. The famine is not as a result of drought but is the legacy of conflict; it is impossible to farm food.
Whilst it is encouraging to see the development of child rights in international law, the pace is slow with implementation dragging behind. And when the State is failing – as in Nigeria and South Sudan – humanitarian aid (properly implemented) is an international responsibility. Otherwise child rights do nothing more than stalk the breach; silent witnesses as children die at their feet.
Kirsty Brimelow QC is head of International Human Rights team and Chairperson of the Bar Human Rights Committee. She and the Bar Human Rights Committee have acted as consultants in Child Rights to Unicef Nigeria since 2009. She recently returned from her 14th visit to Nigeria, training stakeholders in Child Rights. Together with Jelia Sane, she monitored child rights non-implementation at the dismantling of the “Jungle” camp in Calais.