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...