INTERNATIONAL ASSOCIATION OF YOUTH AND FAMILY JUDGES AND MAGISTRATES

Globalisation is something most people associate with industry and commerce. Few people think of the legal community in this context but globalisation is impacting on decisions taken in courtrooms around the world. Judges in almost every country increasingly look to foreign law in interpreting their national law and in solving new problems.

In the Villagran Morales (Street Children) Case the Inter-American Court of Human Rights openly embraced the usefulness of the detailed provisions of the Convention on the Rights of the Child as an interpretive guide to a State’s obligations under Article 19 of the American Convention.

In the Baker case the Supreme Court of Canada decided that Canada’s international legal obligations, even though not incorporated by Act of Parliament into domestic law, were relevant to determining the legality of the exercise of the statutory discretion.

The Australian High Court based its decision in the Teoh case on the legitimate expectations of citizens when a State signs a Convention.

In reaching its decision in Brandt v S, the South African Supreme Court turned to the four key international instruments dealing with children in conflict with the law, as well as the African Charter on the Rights and Welfare of the Child.

At a conference in Beijing in September 2005, Judge Clifford Wallace of the United States Court of Appeals mentioned a recent Namibian case in which the court relied on decisions from India, the United States, Canada, England, Malaysia, South Africa, and the European Court of Human Rights to interpret its constitutional guarantee of equality; a South African death penalty decision considered the law of the United States, Canada, Germany, India, Hungary, and Tanzania, as well as California and Massachusetts; a New Zealand case gave considerable attention to Canadian law.

Until last year the United States stood out as perhaps the most notable exception to the globalisation of the legal community. But the wind of change is blowing there also, as demonstrated by the decision of the Supreme Court in the case of Roper v Simmons. In ruling that the death penalty for minors under the age of 18 was unconstitutional the Court pointed to the growing national and international consensus against the execution of adolescents, noted the existing experiences in other countries, and acknowledged that the principles of International Law for Human Rights are universally accepted.

Globalisation in legal matters is not a new concept. The International Association of Youth and Family Judges and Magistrates has been a pioneer in this field since its inception. Its efforts to promote the best interests of the child on a global basis predates by some considerable time even the earliest international conventions. The Association has its roots in the first international congress of the Tribunaux des Enfants in Paris in 1911. That congress was attended by more than three hundred delegates from across Europe. Those early pioneers agreed that, in practising their vocation, the exercise of jurisdiction over minors, juvenile court magistrates sometimes feel the need to establish that, in other parts of the world, there are others who are fighting the same battle, armed with the same ideals.

Delegates saw the need to strengthen the bond between themselves so that, by the exchange of ideas and experience, they could together attempt to find solutions to common problems. The First World War disrupted progress and the Association was not founded until 1928. Amongst the aims listed in the first Statutes were: to serve as a link between juvenile court magistrates in different countries; to foster international communication of experience in this field; to consider all questions or problems in this field which are affected by international relations; to study collectively the nature of such systems of jurisdiction with the aim of improving them in individual countries; to facilitate, by means of international co-operation between its members, the just treatment of persons concerned in law-suits connected with family or social matters in foreign countries through the interchange of documentation relating to procedures and other difficult points; to encourage research on juvenile crime and its causes in all countries in order both to combat its effects and, particularly, to work towards its prevention; to aim for the moral and material betterment of youth and, in particular, morally abandoned or otherwise unhappy children.

The Association’s current Corporate Plan (2002-2006) lists the following amongst its strategic objectives: Through its Research and Development Committee the IAYFJM will support research which seeks to identify interventions that will stop the violence, abuse and neglect, exploitation and discrimination of children and that will mitigate the impact of those violations. The IAYFJM will identify best practice and garner, collate and disseminate information to members and others as appropriate; support innovative approaches and provide an international view of what works well in the area of child offending and child welfare. The IAYFJM will set up a communications network in order to facilitate the sharing of information, ideas and expertise, further the diffusion of knowledge of laws and practices as they affect children and their families within the various countries of the world, put all information on-line, in its three official languages, giving members access to studies, statistics, research papers, best practices and other relevant information on issues related to children, youth and family, as well as model legislation and advice on drafting or redrafting legislation. The Association assists in the development of curricula and the drafting of judicial training programmes in, and recommends instructors for, developing nations and in newly emerging democracies.

And yet, despite these initiatives by this Association and others, globalisation has not impacted greatly on the majority of judges. Many would argue that few judges get involved in cases which have an international dimension. The most pressing problems facing the majority of judges in the great majority of countries are on a more mundane level - decreasing the court backlog, developing the ability to process cases promptly, instituting alternative dispute resolution processes, and maintaining or establishing the independence of the judiciary.

It has also been argued that judicial education programs necessarily differ depending on whether the legal system is based on civil law or common law. The civil law systems place faith in the traditional law school educational model, while the common law systems prefer the peer group educational model of continuing legal education. American approaches don’t fit neatly into either category but resemble the continuing education of the common law countries more than the law school approach of civil law countries. Several American judicial education systems have focused on educating the judge as a person, improving the judge’s physical and emotional health to prevent burnout. This was a key theme at the NCJFCJ Annual Congress in Pittsburgh in July 2005.

For these reasons, judicial education (and training) has largely been considered to be, necessarily, local. The assumption has been that each country's judicial system is unique and therefore requires a unique type of judicial education. However, much of the individuality among various countries' judicial education results not from necessity, but from not being sufficiently exposed to other methods. With little or no cross-fertilization of ideas, individuality may well occur, but may be based upon a lack of knowledge rather than a perception of specific needs and an understanding of judicial training options.

Despite their differences, all of these approaches are simply different means to the same end: to assist judges in acquiring the knowledge, skills, and attitudes necessary to perform their judicial responsibilities fairly, correctly, and efficiently.

The distinctions between civil law and common law jurisdictions are decreasing or disappearing altogether as countries adopt effective principles of judicial education, regardless of their underlying legal system. These principles do not depend on a particular type of underlying legal system to be effective. Rather, judicial administration principles, and hence judicial education, largely function independently of the type of legal system.

Many principles of judicial education are generic in nature. Judge Wallace argues that the more one sets aside teaching local substantive law to judges and focuses on processes, procedures, and administrative matters, the more generic judicial education becomes.

Although existing education systems have been indispensable in educating judges, these localized efforts should be supplemented by increased dialogue with courts from other states, countries, and continents to enhance and continually enrich what and how judges learn.

This is not to suggest that there is a “right way” to train judges. The aim is to supplement, not replace, existing local education efforts. Despite country differences, judicial education principles are generic, and sharing judicial education ideas based on those universal principles will improve and enhance court systems, irrespective of the country’s legal system, size, wealth, or age.

Further, sharing judicial education ideas is a necessary response to the increasing globalization of the legal community. But why is globalization now having such a major impact on legal systems? There are a number of reasons:

The instant communication of political and legal debates renders the law of different nations increasingly accessible to those on the other side of the globe. Fledgling democracies strive to emulate their established neighbours. Law students around the world seek to enrol for at least part of their studies in a law faculty in a country other than their own.

Similar issues confront courts around the world. These issues may be as diverse as organised crime, international adoption and abduction or phenomena like “Happy Slapping”. I recently sat in on a trial of six young people in Amsterdam charged with assault occasioning actual bodily harm where the defendants said they had learned about “Happy Slapping” by observing, on their mobile phones, young people in England doing it. When Interpol or Europol successfully break up Internet paedophile networks the perpetrators will face similar charges in a range of different countries. Many countries have introduced legislation to allow nationals of one country to be tried for offences committed in another – particularly in cases dealing with the sexual exploitation of children.

The globalization of the legal landscape requires a complementary cross-fertilization of judicial education. Participation in international conferences can help and the IAYFJM has, since its inception, encouraged members to come together to share ideas and seek solutions to common problems. Our Quadrennial Congress turns this aim into reality. Over the years the Congress has been held in many different countries stretching over four continents.

At the same time, judicial education must become broader to address and stay abreast of international changes. Increased international interaction and cross-fertilization of ideas allows judges to have greater understanding of international contexts in an increasingly globalised world.

Judge Wallace has visited and worked with judiciaries in over fifty countries over the last thirty years. He says that the cross-fertilisation of judicial education offers three distinct benefits. First, it enables courts to share and improve on the most effective methodology for judicial education and training. Second, it enables courts to share judicial skills, and perhaps even some substantive law. Third, it provides an invaluable resource for judicial education programs that are beginning or attempting to improve.

Sharing can develop and improve judicial education methodologies. It can be a catalyst for developing regional and local organisations devoted to judicial education. One of the aims of the IAYFJM is to encourage the development of national and regional organisations. The appointment of Regional Commissioners in 2002 was intended to facilitate this process.

Sharing ideas can also improve the substantive output that judicial education is intended to improve. Judges gain new perspectives on old problems and learn techniques for tackling new problems without having to reinvent the wheel. Modern communication techniques encourage dialogue in a worldwide context and allow the exciting possibility of learning from other judiciaries around the globe. In 2002, judges in Singapore set up an “eCorridor” to facilitate discussion on a range of topics by judges from around the world. This was a secure network in which only judges were allowed to participate so that everyone could feel confident in discussing problems and issues of mutual concern. The experiment ran for about one year and, in my view was highly successful – I was honoured to be invited to act as moderator for one of the topics under discussion. Unfortunately it was discontinued due to lack of resources but not before it demonstrated the effectiveness of such an approach.

We are all aware of the need for added resources for judicial education. Sharing ideas helps secure the financial resources necessary to develop or improve existing judicial education systems. Some judicial systems, especially smaller judicial systems, can achieve far more together than what they could achieve alone. Regional training has provided the opportunity for training in areas where countries could not have afforded to have separate institutions.

In 1992 the Court in Rio de Janeiro, Brazil, set up a “A School for Magistrates” (EMERJ – Escola da Magistratura do Rio de Janeiro) with two goals: to prepare candidates for the difficult public examination to become judges, and to improve the collation and dissemination of information on all the matters concerning the rule of law. New judges have to attend regular courses and lectures for two years. This year, 2006, there are about 700 students, including aspiring judges, new judges and lawyers. Conferences, seminars, courses and lectures are ongoing and attendance is essential for anyone wishing to advance his/her career. Lectures cover items of both national and international interest. I have had the honour to be invited to lecture there on a number of occasions. The School (EMERJ) frequently grants scholarships to judges to enable them to attend courses in foreign countries, mainly in Portugal, France and United States. Legislation concerning children in Brazil, as in other South American countries, takes due note of international law.

In 1998, Brazilian judges were instrumental in the setting up of the South American Association of Judges, mainly covering the countries of Mercosur. The aims of this Association follow closely those of the IAYFJM which I might summarise as encouraging international interaction and the cross-fertilization of ideas amongst youth and family judges in South America. I attended the most recent meeting of the Mercosur Association held in La Rioja, Argentina, last November. This very vibrant gathering was attended by about 350 judges from all over South America.

The Pacific Judicial Education Program is a regional training program housed in Suva, Fiji, which services 14 Pacific island jurisdictions. Its training capability allows basic overarching principles common to many of the island jurisdictions to be taught. Peter Boshier, who is currently Chief Family Court Judge in New Zealand, was seconded by his Government to work in Fiji for a year as part of the Pacific Judicial Education programme. This magazine carried a report by Judge Boshier on his work in Fiji (No. 1 Vol. 12, July/Juillet/Julio 2003).

In the North Pacific, a cooperative judicial education program has been developed by the Pacific Judicial Council, under the leadership of its Executive Committee, made up of the Chief Justices and presiding judges of the U.S. Territories of Guam and American Samoa, the Commonwealth of the Northern Marianas, the Republic of Palau, the Federated States of Micronesia, and the Republic of the Marshall Islands. By working together, they have established a biennial judicial conference, the Pacific Judicial Institute for non-law trained judges, a five-year leadership training program for Chief Justices and presiding judges, plus other needed programs for judges, judicial administrators and so forth.

In 2000 in Bordeaux the European Judicial Training Network was founded by the schools of judges and other institutions specifically responsible for the training of the professional judiciary of all EU Member States in order to develop between them a genuine co-operation. It has now a permanent base in Brussels and there are some 23 members including the three UK judicial training bodies. Members share training events and there are opportunities for judges to sit with judges in other jurisdictions.

The above are just examples of what is going on around the world and not an exaustive list. At the same time I am aware that there is no organized judicial education program in some countries. Those countries could use assistance in developing judicial education programs. Of those countries that have started, many are struggling. Providing a variety of models for individual consideration would assist judiciaries in focusing on the particular model that seems most relevant and adapting that model to meet the needs of that particular country. Still other countries are interested in improving their judicial education. These countries would also benefit from access to a variety of successful educational techniques and ideas. With increased technology and communication, cross-fertilization can widen educational possibilities so that countries can choose and adapt methods and models of judicial education that have been successful elsewhere.

Judicial Education in the 21st Century

Technological advances have resulted in previously undreamed of methods for communication that can provide an unmatched ability to advance the rule of law. It is possible to discuss almost all legal topics in worldwide terms. We have already noted the successful experiment carried out by the judges in Singapore. Advances in computerisation and travel have not only made this approach practical, but, in many instances, indispensable. It will continue at an ever-increasing speed in this century.

Judge Wallace believes that, once the generic nature of judicial education is accepted, awareness of the need for some method of cross-fertilisation of ideas and mutual assistance will emerge. Primarily the need would focus on two areas: what is taught and the best ways to teach, namely curriculum and methodology. The curriculum typically focuses on procedural training or substantive international law - topics that transcend geographic boundaries. Curriculum development in these areas can be shared.

Even the best curriculum and most committed administrative leadership will not guarantee an effective judicial education program. It is worth noting that judges generally prefer to be taught by other judges. The material must be presented to participants in a way that helps them retain what is taught and motivates them to apply it in their judicial capacity. “Active learning” holds out the best prospect of success. The educator is merely a facilitator and not the font of all wisdom. Learning is driven by the active participation of those within the group who draw on what is invariably the vast experience and knowledge of the participants themselves. The educator’s skill is to tap and release the resources of the group and to facilitate the cross-fertilisation of ideas. Knowing where and when to draw on resources from outside can enhance the educator’s ability to be effective.

Conclusion

We have progressed from the practice of each country developing judicial education without outside resources to regional interaction and resource-sharing. The next step must be global interaction.

Readers have an opportunity to interact with colleagues from around the world by coming to our next Quadrennial Congress which will be held in Belfast, Northern Ireland, from August 27 to September 01, 2006. The Congress will provide a unique forum for members to exchange on how the Convention on the Rights of the Child and other international human rights instruments are relevant to their practice. Discussions will stimulate individual reflection and provide an interesting impetus for the application of these instruments. The Congress is an opportunity for the IAYFJM to make a major contribution to the globalisation of perspectives on children’s rights.

Globalisation in the legal context is an idea whose time has come. It is time to share ideas and assistance in a broader context. The rule of law and the concept of justice are worldwide and fundamental principles. We have had enough experience now to conclude that worldwide mutual assistance in judicial education can and should be developed. These goals - improving judicial education worldwide, thereby improving court systems and the global establishment of the rule of law are goals worthy of our best efforts. When valuable ideals like justice and the rule of law are at stake, is it not worth considering whether cross-fertilisation is worth pursuing?

Carpe diem, carpe horam.

Be in Belfast for our Congress next August.

Willie McCarney, President

1. Italy, from a country of emigration to a country of immigration

Over the last fifteen years, Italy, traditionally a country of emigration, has had to face a radical change to deal with a totally new phenomenon: clandestine immigration of a very large number of foreigners coming from poor or war-torn countries. The phenomenon became important at the end of the 1980s when a large number of people entered Italy illegally, coming from Albania, countries of the former Soviet Union, North Africa and also Asia, while others often lost their lives during the journey.

During the 1990s, immigration increased at a very fast pace, and in the decade from 1991 to 2001 the presence of foreigners from outside the European Community rose from 350,000 to more than a million. Since then, the scale of the phenomenon has become even greater. Between 2000 and 2004, the number of immigrants with a residence permit doubled to reach 2.6 million, of whom 400,000 were minors. The latter are increasing in number at a rate of 65,000 per year, with 35,000 new-borns and 25,000 new arrivals in the country. It is estimated that the number of minors from outside the European Community in schools will soon reach 500,000.

For the most part, the immigrants are Romanians, Moroccans and Albanians. There is also a strong presence of Ukrainians, Poles, Latin Americans, Senegalese and Asians (Philippines, India, Sri Lanka). 60% of the immigration is concentrated in the north of the country and 30% in the centre. It is almost equally divided between men (51.61%) and women (48.39%), and the most represented age bracket is 19-40 years.

These figures concern the phenomenon of regular or legal immigration and do not include illegal immigrants. This phenomenon is nonetheless present, both in entries into the country (although they have decreased over the last few years), and in irregular stays (for example overstaying on tourist visas). The number of illegal immigrants is difficult to evaluate. According to estimates made by the Eurispes Research Institute, in 2003 the figure was about 800,000 people. In the same year there were 150,000 expulsions.

2. Unaccompanied minors in Italy: some statistical data

In this general context we find the phenomenon of unaccompanied minors, practically unknown until the end of the 1980s. Their presence is currently estimated to number between 7000 and 8000, with a tendency to decrease. In reality, it is not possible to know with precision their exact number. These figures concern the cases reported in one year to the Committee for Foreign Minors (CMS), a branch of the Ministry of Work I will discuss later. More than 75% of these minors come from Albania, Morocco and Romania. In 75% of cases they are aged between 15 and 17 years, while a fifth of them are aged between 11 and 14. The majority of the minors are aged 16 (35,4%). Boys represent 86% of cases, girls 14%. The majority of the reports to the Committee come from Lombardy, Lazio, Piemonte, Emilia Romagna and Puglia.

Unaccompanied minors can be divided roughly in two categories. The first is made up of minors near the age of majority who have come looking for work, who often already have an adult compatriot in Italy they can turn to. The other consists of younger children and young girls, brought into Italy by criminal organisations with the objective of exploiting them by forcing them into begging or prostitution.

According to data from the Office of Foreign Minors in the city of Turin, in 2002, 67% of interventions concerned minors belonging to the 10-15 age bracket, coming from Romania and used by groups of adults to beg or commit theft. Since Italian law does not permit the incarceration of children aged under 14, when these children are found by the Police they are placed in reception centres, from where they unfortunately very often run away to return to the street and commit the same crimes. According to another enquiry carried out in Naples, where many unaccompanied minors are present, originating from Morocco and trying to earn a living in the streets cleaning the windshields of cars, clandestine passage from Morocco to Italy costs approximately 6000 euros, paid in advance by the family. Each boy earns approximately 200 euros per day, which he uses to reimburse the price of the journey and to send money to his family left behind in his country.

3. First attempts at regulation.

Until the beginning of the 1990s, the absence of specific standards concerning unaccompanied minors was not a problem since the phenomenon was virtually unknown. It is interesting to note that, in 1994, the government felt the need to ratify an old and useless Convention from the Hague in 1970 on the subject of repatriation of minors, which after being signed had been completely forgotten.

The problem was addressed more directly by the Law on Immigration no. 39/1990, but still in a marginal way. The law simply set out the obligation to report unaccompanied minors to the juvenile court in order to take the necessary protective measures. It did not specify what these measures should be. The first attempts to use the law to deal with abandoned children turned out to be useless. This law sets out that the abandoned minor must be declared adoptable and placed with a view to adoption, but unaccompanied minors cannot be considered abandoned, since they have left their families of their own free will, and most of them maintain links with it. Nor was it possible to place them with a view to adoption, taking into account their age and their choice of a completely different life.

Other attempts were made in handing minors over to social services responsible for finding a placement for the child, but all that was only successful whenever the child accepted the measure. In the absence of other provisions, a considerable number of unaccompanied minors were expelled. Many others, to avoid expulsion, became clandestine and victims of exploitation and violence.

In conclusion, we can say that in its initial stages the phenomenon of unaccompanied foreign minors caught both the administrative authorities and the juvenile courts unprepared, which can only partially be justified by the absence of an adequate legal framework.

4. The immigration law of 1998 and foreign minors.

More detailed legal regulations concerning immigrant minors was given by the Prodi government with the Law on Immigration no. 40/1998, called the Turco-Napolitano law after the Ministers who had proposed it, and who both belonged to the left-wing democratic party (PDS). The 1998 law represents the most systematic attempt to restructure the whole situation. Its aims are: the improvement of control systems as well as guarantees in the case of expulsion; regulation of the numbers coming into the country; and the integration of foreigners who have immigrated legally. The principles which regulate today the condition of foreign immigrant minors can therefore be summed up as follows.

The law sets out a general prohibition on expelling minors (art. 19/2), with the reservation that the child has the right to follow an expelled parent. The only exception to the general rule is expulsion for reasons of public order or national security (eg. minors mixed up in terrorist activities). This however cannot be ordered by the administrative authority (as is the case with adults), but must be decided by the Juvenile Court (Art. 31/4). Also provided are the right of the family to be reunited, and the pre-eminence of the interests of the child (Art. 28/3), which refers back to the 1989 UN Convention on the Rights of the Child.

Children living with their parents legitimately resident in Italy are registered on their parents' residence permits until the age of 14. From 14 to 18, the child benefits from a residence permit "for family reasons". From the age of 18 onwards, a residence permit for reasons of study, work or health can be granted.

5 Decree 535/1999 and unaccompanied minors

In 1999, an ad hoc government decree regulated in more detail the situation of the unaccompanied foreign minor officially defined as such in Italy. According to the definition given by Article 1, unaccompanied foreign minors are minors who do not have Italian nationality or that of another European Union country, and who, not having made an asylum request, are for any reason whatsoever deprived of the assistance of their parents or other adults and deprived of the representation of their parents or other adults responsible for them and capable of representing them in accordance with Italian law.

As a consequence of the general prohibition introduced by the 1998 law I mentioned above, foreign unaccompanied minors cannot be expelled. Nevertheless, the 1998 law has provided a particular form of repatriation called "assisted repatriation" under the responsibility of a particular technical division of the Ministry of Work, the Committee for Foreign Minors (CMS), whose duties are set out by Decree 535/1999.

Any unaccompanied minor found on national territory must be reported to the CMS, which, once the report has been received, must carry out an investigation to find the child's parents, whether in Italy or in the minor's country of origin. In the meantime, an "under-age" residence permit is granted to the child, who then enjoys all rights concerning medical and social assistance, as well as rights to education.

If the search for parents yields positive results, the CMS orders the repatriation of the child "for the purposes of protection and guaranteeing the right to a family unit". The child has the right to be heard before the decision to repatriate is made, and repatriation must be carried out in such a way as to ensure respect for the child and his or her psychological condition, until the child is returned to the family or to his or her country's competent authority.

This measure is reminiscent of the Resolution of June 26^th, 1997 of the Council of the European Union, but it has been criticised as ambiguous and hypocritical, and in addition has turned out to be of very little use. Finding the child's family of origin, even through international organisations such as the International Social Service or the Red Cross, has proved problematic. In addition, it is often the family itself which does not wish the child to return, who through his or her earnings abroad sometimes represents the family's main source of income. Finally, the children themselves can give false information on their origin and nationality in order to avoid repatriation. In fact, contrary to the hopes of the legislator, the majority of unaccompanied children stay in Italy with a residence permit for minors, and the children are assisted in different ways by the national social services.

The real problem arises when they reach the age of 18, at which time the "under-age" residence permit automatically loses its validity. The Ministry of the Interior, through a series of circulars, has tried to give a very restrictive interpretation to the 1998 law, denying the possibility of converting the residence permit for minors into a residence permit for work or education. Consequently, the Ministry has stated that the young person should be expelled, unless he or she was entrusted, while still a minor, to the care of a compatriot legally resident in Italy. Jurisprudence has however resisted this interpretation, and an important decision of the Constitutional Court (no. 198/2003) has confirmed that in the matter of immigrant foreign children, the standards and principles of juvenile law (including the supremacy of the interests of the child), must prevail over principles and legal provisions regulating the immigration of foreigners. As a result, the juvenile residence permit granted to unaccompanied minors can be converted, at the age of 18, into a residence permit for work or education, even if the child could not be entrusted to the care of a compatriot, but only to social services to place him or her in residential care.

6. The reform of 2002.

The regulations described above have been hardened by the modifications introduced by the centre-right government with Law no. 189/2002, known as the Bossi-Fini law. According to these modifications, an unaccompanied foreign minor can obtain a residence permit for study or work subject to having participated for at least two years in an integration project managed by an organisation approved by the Ministry of the Interior, and having lived in Italy for at least three years. This is essentially a partial regularisation, subject to numerous conditions. It is very difficult to apply to unaccompanied minors already in Italy, since very few of them can prove participation in such projects. Moreover, even when these standards can be applied, the minimum limit of three years' presence in Italy will cause the expulsion at age 18 of all children arriving in Italy after the age of 15.

7. To conclude.

Almost 15 years after its emergence, the phenomenon of unaccompanied foreign minors, even though it is diminishing, continues to be worrying. Hopes of resolving it through forms of protected repatriation have turned out to be illusory, while the positive consequences of protective intervention carried out on behalf of minors by social services are very often cancelled out by the risk of expulsion at the age of 18.

The problem cannot be solved by applying asylum laws. Even though the right to asylum is set out in the Constitution of the Republic, these procedures are applied very slowly in Italy and with great difficulty. In 2003, the Commission of the Ministry of the Interior charged with examining applications rejected 10,174 out of 11,319. An even more restrictive reform proposed by the government is currently being discussed in Parliament, and is subject to heavy criticism by the opposition as well as by humanitarian organisations.

As regards unaccompanied minors, asylum procedures are very rarely applied (only 15 cases over the last year). Such a small number is sometimes explained by the fact that the general prohibition on expelling foreign minors makes it useless to invoke asylum law. But as we have seen, the prohibition on expulsion is only applicable before the age of majority. It is therefore evident that asylum law is not applied to minors, not because it is useless, but because an effective system for taking care of these children is lacking.

Unfortunately, budgetary restrictions and policies hostile to immigration brought in by the present government do not leave much hope for the near future.

Abolition of the tutelary system (1991-1992)

The previous tutelary legislation (from 1948) was declared unconstitutional (by STC 14 February 1991) and Organic Act 4/1992 provisionally set up a hybrid model: tutelary / penal / social.

This model –applicable to delinquents between 12 and 16 years of age – was first and foremost based on the principle of concern for the minor (Palacio Sánchez Izquierdo, 2000), considered to be the criterion governing intervention and which essentially boiled down to the minor’s education and social reintegration needs; not punishment or repression.

Consequently, the new penal process opened the way to the implantation of different means of distraction in the Anglo-Saxon line of diversion, making it possible to close proceedings without the imposition of measures, in view of certain circumstances: the crime’s severity, the minor’s circumstances and characteristics, the absence of violence or intimidation or the minor’s efforts to make amends with the victim. It also envisaged referring minors who had committed non-serious acts (which did not involve violence or intimidation) to the social services, either directly or with a warning.

Organic Act 4/1992 also introduced technical teams, insistently requested by the authors (Beristain, 1995, XIV), formed by a psychologist, a social assistant and an educator. The “overriding role” (Urra Portillo, 1995, 8)of the team was to issue a report for the Public Prosecutor and the Judge about the psychological, pedagogical and family situation of the minor and his background, in order to make it easier to take more relevant decisions concerning the minor’s education and social reintegration.

As regards sanctions, new measures, not in the least imaginative (Manzana Laguardia, 1992, 2543) or novel (López Caballero, 1994, 548), took the form of educative interventions lasting up to a maximum of two years. The principle of flexibility in choosing, deciding and applying measures and reserving internment as a last resort were the main characteristics of the Act concerning this matter.

Approval of a new Penal Code (1995)

Moreover, the approval of a new Penal Code in 1995 in Spain had a decisive influence on the development of the new Juvenile Criminal Law.

In fact, the new Penal Code raised the initial age limit for the application of its provisions to 18 and referred the prosecution of minors of that age to the Act regulating the penal liability of minors, thus maintaining the system introduced in 1992 temporarily in force.

Establishment of a new penal system of penal responsibility for minors and juvenile delinquents (2000)

The new Act regulating the penal liability of minors (Organic Act 5/2000) was promulgated in January 2000, and came into force one year after its publication in the State Official Gazette (Boletín Oficial del Estado), that took place on 13^th January 2000.

Although the Act adopts the majority of changes introduced in 1992, an overriding transformation in the treatment of minors’ and juvenile delinquency has undoubtedly taken place^[1].

1. The Act clearly refers to the minor’s “penal” responsibility: a penal responsibility in the formal sense, that is governed by parameters similar to the those for adult liability, but is different from the latter with regard to its consequences, as it must lead to a non-punitive reaction, which is materially educative.

2. Penal responsibility can be demanded for people aged between 14 and 18 years, (art. 1). The Act distinguishes between minors (14-18 years) and young people (over 18 years of age). Amongst minors, a distinction is also made between those who are 14-16 years old and those over 16 years of age, who may be subjected to longer-lasting internment measures (even for up to 8-10 years, followed by probation, in the case of very serious crimes or terrorist acts, respectively). Reaching adult age does not, however, put a stop to execution of the measure, which is pursued until proposed objectives are reached (art. 15). From the age of 23, youngsters are referred to one of the centres mentioned in the General Penitentiary Act (Ley Orgánica General Penitenciaria).

As an exception to the rule, youngsters over 18 and under 21 years of age might also be tried by means of juvenile jurisdiction (art. 4), providing that the crime was not serious and did not involve violence or intimidation towards people or jeopardize human life or physical integrity, that the subject has not been found guilty of committing criminal acts by binding judicial decision since reaching the age of 18 and that their circumstances and degree of maturity recommend following this procedure, especially if it is suggested by the technical team in its report. However, this possibility has still not come into force and it is temporarily suspended (until 2007).

3. The minors and juvenile process is fully approved with regard to all matters concerning guarantees of the presumption of innocence and of the rights of defence, which leaves interesting possibilities open for exercising the “regulated” opportunity (Bueno Arús, 1997, 164) in proceedings. The Public Prosecutor’s participation is intense both in the investigation of facts and in the institution of proceedings. He must also ensure that juvenile rights are respected and watch over minors’ interests (art. 6). The Public Prosecutor can not take decisions restricting the fundamental rights of minors; this is the exclusive competence of the Juvenile Judge at the Public Prosecutor’s request and by justified ruling (art.23-3).

4. The Act includes a whole list of measures (art. 7)^[2] and regulates their application and execution, based on the legality principle (art. 43) and under the control of the Juvenile Judge. When imposing a measure, the facts and their legal qualification must be taken into account, but the minor’s age, family and social circumstances, personality and interest are more important aspects for consideration (art. 7.3). The execution of measures is the competence of Autonomous Communities and the proximity principle applies: the minor must be sent to the most suitable centre near his home, unless agreed otherwise by the Juvenile Judge in the interest of the minor.

Internment is divided into two phases: internment in the centre and probation (art. 7.2). Interment in a closed centre is only applied to intentional crimes with violence or intimidation or serious risk to human life or physical integrity (art. 9.2ª).

The maximum duration of measures for criminal acts is two years, 100 hours, in case of community service, and 8 for the weekend stays (art. 9.3ª). Those over 16 years of age may be subjected to measures lasting up to 5 years, depending on the violence of the acts, the threat or serious risk to human life or physical integrity and whether the individual has educative needs that justify extending the measure^[3] In extremely serious cases (and repeated offences are always considered to be extremely serious) the judge may impose a measure of internment in a closed centre for one to five years and, then, probation for another five years; in these cases, modification or suppression of the measure can not be pronounced until after the first year of effective execution of the measure of internment (art. 9.5ª).

Despite the above, for very serious crimes (homicide, murder, rape and qualified sexual assaults, terrorism and, in general, crimes punished by the Penal Code with penalties of over fifteen years’ imprisonment), the duration of interment is longer and may reach up to four years (five, for terrorist acts) for those under 16 years of age, and eight years (ten, for terrorist acts) for those over 16 years of age (Organic Act 7/2000, of 22 December), followed by probation and in cases of terrorism by an additional absolute disqualification (four to fifteen years).

5. As occurred with the previous legislation, Organic Act 5/2000 regulating the penal responsibility of minors also excluded “the actions by private people” (art. 25) and guaranteed the “monopoly of penal action” by the Prosecution Service. Victims could denounce, but it was the prosecutor’s task to accuse. This exclusion of the victim from the legal processing of the minor was criticized (Landrove Díaz, 1988, 293; Ventura Faci & Peláez Pérez, 2000, 124), although in exceptional circumstances the victim was allowed to participate during the instruction and also in the hearing regarding certain cases but in a limited way.

Organic Act 15/2003 has put an end to this exclusion of the victim and has modified Article 25. This one allows the victim’s intervention as an actor in the penal process for minors.

The exclusion of victims from the penal process has never affected their involvement in the process to establish civil liability. The civil process is examined in a ‘separate file’ (Article 61-64). Organic Act 5/2000 established indeed a new procedure, before the Judge of Minors but independent from the penal action and also regulated the liability of parents and legal guardians to pay victims compensation for damages caused by the minor’s behavior.

6. There are, finally, two legally approved possibilities for avoiding trial against a minor:

- abstention from starting proceedings on the part of the Prosecution Service for those acts which constitute misdemeanours or less serious crimes^[4], not involving violence or intimidation and whenever the minor has not committed similar acts in the past; and

- dismissal because of reconciliation or reparation (or a promise of reparation) between the minor and the victim (Article 19). According to Art. 19.2 of the Act “reconciliation has occurred when the minor recognises the harm caused and apologises to the victim and the latter accepts his apologies”; on the other hand, reparation is legally identified to “the undertaking assumed by the minor with the victim to perform certain deeds in the interest of the latter or the community and their effective completion”. In the event of non-compliance with the reparation or educative activity, case proceedings continue (art. 19.5).

7. Brief comment

Generally, there has been a need and demand for the Act for a long time. The text is positive because of its integral nature: it regulates all aspects of intervention regarding juvenile delinquents (14-18, exceptionally, 21), not only proceedings and measures, but also the principles to be applied, the execution of sanctions and civil liability.

Many points are worth commenting on. Let’s just briefly say that despite the great effort to make the educative model compatible with the sanctioning model and the guaranteeing model, looking to make solutions more flexible and to favour non-intervention... we are faced with outlooks and ideologies which are not always compatible.

Moreover, it is based on the fundamental principle of greater concern for the minor; this continues to be, however, an ambiguous concept –concerning the minor’s personal development, his educative needs, his social reintegration -, which has not been sufficiently developed content-wise.

According to Article 19 of the new 1995 Penal Code (Cuello Contreras, 2001, 49), the new system clearly refers to the penal responsibility of minors; this is upheld (Article 5 Organic Act 5/2000) in the commission of punishable acts and the absence of any of the circumstances of exemption or extinction of the criminal responsibility envisaged by the Penal Code for adults. Thus there are already enough reasons for affirming that in Spanish Law the age limit for penal imputability (“irrefutable presumption of irresponsibility”) (Sánchez García de Paz, 2000, 706) has been nowadays fixed at 14 years of age (art. 3 Organic Act 5/2000) and that, between 14 and 18 years of age, penal imputability may occur.

The act makes an important distinction between two age brackets (14-15; 16-17); but the difference of treatment is sometimes too great. With regard to those over 18 years of age, the best solution would be to refer them to the adult magistrate, authorising the latter to apply minors’ and juvenile legislation for matters concerning measures and possibilities of avoiding or suspending proceedings.

Proceedings are too similar to adult proceedings, even though there are large differences. In principle, possibilities open to diversion should be considered to be sufficient. The Public Prosecutor still has to perform an excessively wide range of functions and faculties. The regulation of preventive measures is too restrictive and the period of precautionary internment can be, in practice, too long. Conferring the prosecution of minors under the age of 18 accused of terrorist acts to the National Count of Justice (Audiencia Nacional) (brought in by Organic Act 7/2000) breaks the proximity principle and merely copies the system applied to adults. With regard to the technical team’s participation, greater emphasis should have been placed on communication between the technical team and the Juvenile Judge.

In view of their regulation measures should be considered as genuine juvenile penalties (Cerezo Mir, 2000, 106; García Pérez, 2000, 686; Etxebarria Zarrabeitia, 2001, 32; against Feijoo Sánchez, 2001, 27 ff.), in other words, “punitive sanctions” (Sánchez García de Paz, 2000, 719). There is a broad list of measures, but there is also a lack of more imaginative solutions that could perhaps be put into practice through socio-educative programmes. Finally, the duration of interventions anticipated for extremely serious cases is generally considered as excessive.

REFERENCES

Beristain, A. (1995), “Prólogo”. In Urra Portillo, J. (1995), Menores, la transformación de la realidad, Ley Orgánica 4/1992, Madrid.

Bueno Arús, F: (1997), “El Anteproyecto de Ley Orgánica reguladora de la Justicia de Menores elaborado por el Ministerio de Justicia”. In Eguzkilore. Cuaderno del Instituto Vasco de Criminología, 11, 159 ff.

Cerezo Mir, J. (2000), Derecho Penal. Parte general. Lecciones, 2ª ed., Madrid.

Cuello Contreras, J. (2001), El nuevo derecho penal de menores, Madrid, 2001.

de la Cuesta, J.L.(1999),"El abandono del sistema tutelar: evolución del derecho español en materia de protección y de tratamiento de los menores delincuentes y en peligro". In Annales Internationales de Criminologie, 37 1/2, 101 ff.

Etxebarria Zarrabeitia, X. (2001), “Aspectos sustantivos. Edad. Medidas. Contenido. Prescripción. Concursos. Régimen Transitorio”. In Consejo Vasco de la Abogacía (2001), La Ley Orgánica 5/2000 de Responsabilidad Penal de los Menores, Bilbao, 7 ff.

Feijoo Sánchez, B. (2001), “Sobre el contenido y la evolución del Derecho Penal español tras la LO 5/2000 y la LO 7/2000”. In Revista Jurídica Universidad Autónoma de Madrid, 4, 9 ff.

García Pérez O. (2000), “La evolución del sistema de justicia penal juvenil. La Ley de Responsabilidad Penal del Menor de 2000 a la luz de las directrices internacionales”. In Actualidad Penal, 32, 682 ff.

Gómez Rivero, M.C. (2001), “Algunos aspectos de la Ley Orgánica 5/2000, de 12 de enero, reguladora de la responsabilidad penal del menor”. In Actualidad Penal, 10, 163 ff.

Lamo Rubio, J. (1999) “La víctima en el actual proceso de menores: presencias y ausencias”. In La Ley, núm. 4897, 1 ff.

Landrove Díaz, G. (1998), La moderna victimología, Valencia.

Landrove Díaz, G. (2001), Derecho Penal de Menores, Valencia.

López Caballero, J.C. (1994), “La Legislación reformadora de menores en España u Brasil: un análisis comparativo”. In Revista de Derecho Penal y Criminología, 4, 491 ff.

Manzana Laguardia, M.P. (1992), “Notas acerca del Proyecto de Ley sobre Reforma urgente del procedimiento de Menores”. In Revista General de Derecho, 571, 2543 ff.

Palacio Sánchez Izquierdo, J.R. (2000) “El principio del superior interés del menor”. In Surgam, 466-467, 55 ff.

Sánchez García de Paz, I. (2000) “La nueva ley reguladora de la responsabilidad penal del menor”. In Actualidad Penal, 33, 699 ff.

Urra Portillo, J. (1995), Menores, la transformación de la realidad, Ley Orgánica 4/1992, Madrid.

Ventura Faci, R. & Peláez Pérez, V. (2000), Ley Orgánica 5/2000 de 12 de enero reguladora de la responsabilidad penal de los menores. Comentarios y jurisprudencia, Madrid.

"On February 23^rd, 2005, on the occasion of the 10th session of the States Parties to the Convention on the Rights of the Child, held in New York, Jean Zermatten of Switzerland was elected with 111 votes, a good result, in the capacity of an expert, to the Committee for the Rights of the Child, for a term of four years. Judge Zermatten is the first Swiss national to sit in this international context". It is with this laconic communiqué that the Federal Department of Foreign Affairs of the Swiss Confederation announced this great piece of news.

"The Convention, a fine declaration!" exclaimed, in November 1995, Jean Zermatten, President of the International Institute for the Rights of the Child, on the occasion of the first seminar he organised in Sion/Switzerland, but "it must not remain a mere paper agreement!", he continued.

The International Association of Youth and Family Judges and Magistrates, "a fine Association!", cannot today remain silent regarding the brilliant promotion of one of its members who was particularly influential between 1986 and 1994. It is therefore time to praise the achievements of our former Treasurer and President.

"Children are allowed to live, adolescents are waiting to live, men try to live and old men try to survive!"

This maxim from Maurice Chapelan no doubt contains some humour and seems to make some sense. Does it apply to Jean Zermatten? Let me tell you about him and I will let you come to a conclusion.

Born in 1948, Jean Zermatten, as he likes to put it, grew up in a normal family: a father, a mother and five brothers and sisters. A balanced family life which brought him that calm and benevolent strength, but still such powerful authority, in order to carry out over more than 30 years the incomparable mission of a juvenile court judge, a mission which, to quote Verlaine once again, is a "task which requires a lot of love". As for the Zermatten brotherhood, it certainly helped him to develop his immense skills in the art of communication.

He obtained a classical Maturité (High School diploma) in his native canton of Valais, more precisely at the Collège de Sion, a city which has had occasion to remember and retain him, then a law degree from the University of Fribourg in Switzerland, a city which brought him good fortune, since it was there that he found his first job which guided him all his life and met a genuine Fribourgeoise woman whom he took as a wife and has kept all his life!

Barely emerging from "young adulthood", Jean Zermatten hesitated between diplomacy and journalism, two professions which he has never disavowed and which, without him actually having the relevant job description, he exercises regularly today. Therefore, already at that moment, just like throughout his long career as a judge, he had to take a decision and chose the right solution in finally opting for the post of registrar in the Juvenile Court of the canton of Fribourg.

This was a good move, since with President Bugnon he formed a remarkable duo, an effective and appreciated tandem, thus acquiring experience which led to him occupying, from September 1^st, 1980, the presidency of the Juvenile Court of the canton of Valais, a function he carried out until August 31^st, 2005, or for twenty-five years to the day!

And it was during this period that he actively defended the interests of the Swiss Juvenile Criminal Law Society, serving as President from 1984 to 1989, which led him to become involved with the International Association of Juvenile and Family Court Magistrates, at first in the capacity of Treasurer from 1986 to 1994, then as President from the Congress in Bremen, Germany in 1994 to the Buenos Aires, Argentina Congress in 1998. Under his presidency, we must mention in particular: the modification of the IAYFJM statutes, with its new headquarters in Geneva; the very firm position of the IAYFJM concerning the Committee for the Rights of the Child for the Children's Rights Day of November 13^th, 1995, for which our Association made a commitment to creating a "culture" or "mindset" oriented towards the rights of the child; the new format of the Chronicle and the centralisation of translations in Belfast/Northern Ireland; the many co-ordination projects presented in all corners of the world, the positive resolution of the delicate question of the appropriateness of an "International Court of the Rights of the Child" which finally never came into being and which caused something of stir within the committee of our Association; and finally the immense workload constituted by the preparation of the Buenos Aires Congress.

It was then on August 31^st, 2005 that Jean Zermatten left his small office in Sion and the Court where he had occupied the centre seat for a quarter century, to enter the plush premises of the Palais Wilson, in Geneva.

The struggle was intense to obtain this very high office. Jean Zermatten thus had to scale the slopes of world diplomacy, involve himself in lobbying strategy and multiply his number of bilateral meetings, thus making a diplomatic nod to his first loves!

In parallel, he has published "stories to prevent falling asleep" and "other stories of toil", bringing the reader into the complex and fascinating world of the rights of the child. He has also been author of countless articles on the Convention and the Rules, Laws, Principles, regulations and Ordinances connected with it, thus making a journalistic nod to his first loves!

During his evenings, he has improved his knowledge of English and Spanish, which, in addition to mastery of French, German and Italian, makes him a polyglot and has allowed him to run training courses and hold conferences on all continents.

Leaving aside somewhat the pursuit of tennis and mountain walks, he drafted, with talent and speed, the plans for the uniform criminal procedure code for Switzerland and the agreement on the practice of detaining juveniles in French-speaking Switzerland.

Jean Zermatten also found the resources to direct the International Institute of the Rights of the Child, his creation, and launch the world's first Master's Degree in the Rights of the Child. A successful enterprise, if the first 19 graduates are to be believed and if we refer to the interest of the second group taking the course.

Finally, he continued to "crack down" in his native Valais, thus protecting to the last the juveniles who needed help and penalising without reserve those who deserved it.

What a task!

Therefore this prestigious nomination by the UN is not a surprise for those who have had the good fortune to know Jean Zermatten well. It was a foregone conclusion and arrives today to crown a most distinguished career.

"Living with the same woman for thirty years, with the same ideas, with the same job; all this is not very adventurous or exciting", declared Jean Zermatten recently to the Swiss press. This stability nevertheless gave him the balance necessary to exercise the wonderful but difficult function of juvenile court judge and the strength and the health to encourage the whole world to respect the point of view of the child. He has accomplished this task with wisdom, mixing on the one hand the will and the ability never to give up before reaching the summit, and on the other hand simplicity and warmth, two qualities which characterise great men.

His response to a journalist's question: "What do you dream of, Mr. Zermatten", was faithful to his image: "a little vineyard on a hillside, which would produce a little very mature Petite Arvine [white wine from Valais], which I would drink well chilled with my wife in our garden".

May he not only dream of grapes and the garden, but continue to drink white wine at the table with his wife for a long time. These are the wishes addressed to him by all members of the International Association of Youth and Family Judges and Magistrates to our UN expert!

Michel Lachat

Treasurer IAYFJM

Fribourg, 14.10.05

In 2001, the Chairperson of the United Nations Committee on Economic, Social and Cultural Rights requested the Office of the United Nations High Commissioner for Human Rights (OHCHR) to develop draft guidelines on a human rights approach to poverty reduction strategies.^[5] As a first step, three experts, Professors Paul Hunt, Manfred Nowak and Siddiq Osmani, prepared a discussion paper that identifies some of the key conceptual and practical issues that arise from the integration of human rights into poverty reduction strategies. The present publication is a revised version of the discussion paper.

Following the Secretary-General’s reforms of 1997, a major task for the United Nations, and in particular the OHCHR, is to integrate human rights into all of the Organization’s work, including the overarching development objective of poverty eradication.

In recent years, international human rights norms have acquired a high level of global legitimacy for three interrelated reasons. First, it is commonly recognized that human rights derive from “the dignity and worth of the human person”^[6] which lends them considerable moral authority.

Second, human rights instruments are widely endorsed in each region of the world: all States affirm the Universal Declaration of Human Rights, while almost 150 States have ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). The Convention on the Rights of the Child (CRC) has secured almost universal ratification: only two States have yet to ratify this wide-ranging human rights treaty. Third, all States have chosen to ratify at least one human rights treaty; consequently, they all have some international legal obligations, binding under the law of treaties, in relation to human rights.^[7]

One of the most distinctive features of a human rights approach to poverty reduction is that it is explicitly based upon the norms and values set out in the international law of human rights. All policies are imbued with norms or values, just as all institutions operate within a normative framework.

Whether explicit or implicit, norms and values shape policies and institutions. A human rights approach is explicit about its normative framework: international human rights. Underpinned by universally recognized moral values and reinforced by legal obligations, international human rights provide a compelling normative framework for the formulation of national and international policies, including poverty reduction strategies (PRSs).

Many existing PRSs already have features that reflect international human rights norms.^[8] The emphasis placed on civil society participation reflects the right of individuals to take part in the conduct of public affairs, as well as the related rights of association, assembly and expression.

The introduction of social safety nets resonates with the rights to a reasonable standard of living, food, housing, health protection, education and social security. Anti-poverty strategies that demand transparent budgetary and other governmental processes are consistent with the right to information, while the insistence that strategies be “country-owned” corresponds with the right of peoples to self-determination.

This congruence between features of many existing PRSs and international human rights gives rise to two crucial points. First, the departure represented by the introduction of a human rights approach to poverty reduction should not be overstated. Second, the considered and consistent application of human rights to poverty reduction reinforces some of the existing features of anti-poverty strategies. Hence the view of the Committee on Economic, Social and Cultural Rights: “Anti-poverty policies are more likely to be effective, sustainable, inclusive, equitable and meaningful to those living in poverty if they are based upon international human rights.”^[9]

There is a perception in some quarters that the inclusion of too many issues in PRSs will serve only to overload the process, cause priorities to become diffuse and render the exercise ineffective. This may be a problem where there is not a close nexus between a particular issue and poverty.

But this is not a difficulty in the context of human rights and poverty because of the striking congruence between the concerns of the poor and key features of international human rights - an issue that is explored further in chapter 2. Indeed, one of the central themes of this paper is that poverty reduction and human rights are not two projects, but two mutually reinforcing approaches to the same project.

Poverty is a specific, local, contextual experience. As Voices of the Poor: Can Anyone Hear Us?, the compelling World Bank study, puts it: “Poverty is experienced at the local level, in a specific context, in a specific place, in a specific interaction.”^[10] Mindful of this, international human rights law provides a framework within which detailed national and community-level PRSs can be constructed. The application of this normative framework helps to ensure that essential elements of PRSs, such as accountability, equality and non-discrimination, participation and empowerment, receive the sustained attention they deserve.

But, for the most part, international human rights law does not – and cannot – provide detailed prescriptions for action. Building on the normative foundation established by international human rights, detailed anti-poverty programmes must be developed, through participatory processes, at the national and local levels.

In trying to incorporate the human rights perspective into the strategy for poverty reduction, it is first necessary to address a basic conceptual issue: How can we think of poverty in a way that is most appropriate for a human rights approach? There is an emerging view that poverty constitutes a denial or non-fulfillment of human rights. But does this mean that poverty is the same thing as non-fulfillment of human rights in general – i.e. does the non-fulfillment of any kind of human rights constitute poverty? Or should only certain kinds of human rights matter in the context of poverty? If so, how are we to decide which ones, and can the discourse on poverty be indifferent to the rest? These are the kinds of question that need to be addressed.

The simplest approach to take would be the all-embracing one – i.e. to define poverty as non-fulfillment of any kind of human right. This approach would obliterate any conceptual distinction between poverty and non-fulfillment of human rights by definition, but it would not be appropriate to do so. For it would clearly be odd to characterize certain cases of non-fulfi lment of rights as poverty, no matter how deplorable those cases may be. For instance, if a tyrant denies his political opponent the right to speak freely, that by itself would not make the latter poor in any plausible sense. Certainly a deprivation has occurred in this case, but it seems implausible to characterize this deprivation as poverty. The reason it seems implausible is that when viewed as a social problem, and in the context of practical policy-making, the concept of poverty has acquired a specific connotation that ties it closely with lack of command over economic resources.^[11]

Of course, in our day-to-day life, we tend to use the word “poor” in many diverse ways. For example, we might refer to the “poor chap” who has narrowly missed a lottery jackpot, or to the “poor old man” who has no heir to whom to bequeath his vast wealth, and so on. The common element in all these cases is some kind of deprivation that evokes the description “poor”. However, when poverty is discussed as a social problem, the concept has a much more restricted domain because of its well-established link with deprivation caused by economic constraints. We cannot deny this link.^[12]

These considerations suggest that we need a definition of poverty that refers to the non-fulfilment of human rights, but without delinking it from the constraint of economic resources. It is argued below that Amartya Sen’s “capability approach” provides a concept of poverty that satisfies these twin requirements. The capability approach has already inspired a significant broadening of the concept of poverty – replacing a narrow focus on low income with a multidimensional view of poverty. Most of the current discussions of poverty in academic circles, as well as in international organizations such as the World Bank and the United Nations agencies that deal with poverty, draw upon this approach either explicitly or implicitly. As a rule, these discussions do not use the language of rights. But a little reflection shows that there exists a natural transition from capabilities to rights. Most human rights are concerned with the human person’s rights to certain fundamental freedoms, including the freedoms from hunger, disease and illiteracy. The capability approach requires that the goodness of social arrangements be judged in terms of the flourishing of human freedoms. The focus on human freedom is thus the common element that links the two approaches. Looking at poverty from the perspective of capability should, therefore, provide a bridge for crossing over from poverty to human rights.

The capability approach to poverty

Underlying the capability approach is a specific conception of what constitutes human well-being. At a very basic level, well-being can be thought of as the quality or the “well-ness” of a person’s being or living, and living itself can be seen as consisting of a set of interrelated “functionings” – the things that a person can do or be. The level of well-being thus depends on the level of those functionings, i.e. how well a person can do or be the things she has reasons to value – for example, to what extent can she be free from hunger or take part in the life of a community, and so on. The concept of “capability” refers to a person’s freedom or opportunities to achieve well-being in this sense.

To see the relevance of capability for understanding poverty, we may begin by noting that the defining feature of a poor person is that she has very restricted opportunities to pursue her well-being. Poverty can thus be seen as low levels of capability, or, as Sen puts it, “the failure of basic capabilities to reach certain minimally acceptable levels”.^[13] A couple of properties of this concept of poverty are worth noting. First, not all kinds of capability failure would count as poverty. Since poverty denotes an extreme form of deprivation, only those capability failures would count as poverty that are deemed to be basic in some order of priority. Different communities may of course have different orders of priority and hence a different listing of what would qualify as ‘basic’ capabilities. To that extent, there is some degree of relativity in the concept of poverty. But from empirical observation it is possible to identify certain basic capabilities that would be common to all – for example, being adequately nourished, being adequately clothed and sheltered, avoiding preventable morbidity, taking part in the life of a community, and being able to appear in public with dignity.

Second, once poverty is seen to consist in the failure of a range of basic capabilities, it immediately becomes a multidimensional concept. Poverty can no longer be defined uni-dimensionally as lack of adequate income, as has traditionally been done. In fact, in this conception inadequate income ceases to be a dimension of poverty at all because income is not a capability and hence not an aspect of well-being in itself, although it may contribute to the achievement of capabilities.

It is nonetheless important to acknowledge that the concept of income – more generally, command over economic resources – does play an important role in defining poverty. The way it does so is not by adding a dimension to poverty but by helping to distinguish the phenomenon of poverty from a low level of well-being in general. This distinction is important because while poverty implies a low level of well-being, not every case of a low level of well-being can be regarded as poverty. For example, while the absence of the capability to live a healthy life is certainly a case of a low level of well-being, the specific case of ill-health caused by a genetic disorder (for which no remedy currently exists) will not in itself be recognized as poverty;^[14] whereas ill-health caused by lack of access to basic health-care resources will be. In general, for poverty to exist, lack of command over economic resources must play a role in the causal chain leading to a low level of well-being.

Several clarifications should, however, be made at this point so as to avoid misunderstanding. First, while the concept of poverty does have an irreducible economic connotation, the relevant concept here is not low income but the broader concept of inadequate command over economic resources, of which inadequate personal income is only one possible source. Other sources include insufficient command over publicly provided goods and services, inadequate access to communally owned and managed resources, inadequate command over resources that are made available through formal and informal networks of mutual support, and so on. If a person’s lack of command over any of these resources plays a role in precipitating basic capability failures, she would be counted as poor.

Second, the recognition that poverty has an irreducible economic connotation does not necessarily imply the primacy of economic factors in the causation of poverty. For example, when discrimination based on gender, ethnicity or any other ground denies a person access to health-care resources, the resulting ill-health is clearly a case of capability failure that should count as poverty because the lack of access to resources has played a role here. But causal primacy in this case lies in the sociocultural practices as well as the political-legal frameworks that permit discrimination against particular individuals or groups; lack of command over resources plays merely a mediating role. However, as argued before, the existence of this mediating role is crucial in distinguishing poverty from a low level of well-being in general.

Third, it is important to emphasize that even though the link with economic resources must be maintained, this does not render the capability based concept of poverty equivalent to a uniformly low level of command over economic resources. The two would be equivalent only if everyone had the same capacity to convert resources into capabilities, but that is not the case. For instance, people with different biological characteristics may require different amounts of food and health care in order to acquiring in different cultural environments might feel that they need different amounts of clothing in order to have the capability to be clothed at a minimally acceptable level. In other words, the degree of command over resources that may be adequate for one person may not be adequate for another. It would, therefore, be a mistake to define and measure poverty in terms of a uniformly low level of command over economic resources, when the fundamental concern is with a person’s capabilities.

Poverty and human rights

Freedom: the common denominator

The capability approach defines poverty as the absence or inadequate realization of certain basic freedoms, such as the freedoms to avoid hunger, disease, illiteracy, and so on. Freedom here is conceived in a broad sense, to encompass both positive and negative freedoms.

Thus, a person’s freedom to live a healthy life is contingent both on the requirement that no one obstructs her legitimate pursuit of good health – negative freedom, and also on the society’s success in creating an enabling environment in which she can actually achieve good health – positive freedom.^[15]

The reason why the conception of poverty is concerned with basic freedoms is that these are recognized as being fundamentally valuable for minimal human dignity. But the concern for human dignity also motivates the human rights approach, which postulates that people have inalienable rights to these freedoms. If someone has failed to acquire these freedoms, then obviously her rights to these freedoms have not been realized. Therefore, poverty can be defined equivalently as either the failure of basic freedoms – from the perspective of capabilities, or the non-fulfilment of rights to those freedoms – from the perspective of human rights.

Using this conceptual equivalence between the perspectives of capabilities and rights, we can now answer the question posed at the beginning:

Which cases of non-fulfilment of human rights would count as poverty, when poverty is viewed from the perspective of human rights? Recalling the features of the capability view of poverty discussed earlier, we can now stipulate that non-fulfilment of human rights would count as poverty when it meets the following two conditions:

· The human rights involved must be those that correspond to the capabilities that are considered basic by a given society.

· Inadequate command over economic resources must play a role in the causal chain leading to the non-fulfilment of human rights.

The relevance of all human rights

“[Human rights] act as a constraint on the types of action that are permissible in the quest for reducing poverty.”

The idea that non-fulfilment of only certain kinds of human rights and not others will count as poverty may seem to militate against the principle of indivisibility of rights, which states that all human rights are equally important. However, it does not.

The principle of the indivisibility of human rights does not mean that all social phenomena must be defined by reference to all rights. The principle does not mean that torture, sexual stereotyping, or unfair trials must be defined by reference to all the rights enumerated in the Universal Declaration of Human Rights. On the contrary, a human rights definition of these phenomena would certainly be confined to a limited range of international human rights. However, a strategy to combat torture, sexual stereotyping or unfair trials would have to address a much wider range of rights than those by which these phenomena are defined. Thus, a human rights definition of unfair trials would include article 14 of the ICCPR, but it may exclude just and favourable conditions of work for judges (article 7 of the ICESCR). On the other hand, an effective strategy for tackling the problem of unfair trials would not only include issues relating to ICCPR, article 14, such as the presumption of innocence, but also the terms and conditions of judges’ employment (ICESCR, article 7).

The same argument applies to poverty. The principle of the indivisibility of human rights does not demand that poverty be defined by reference to all the rights set out in the International Bill of Rights, but it does demand an inclusive strategy for addressing poverty. The approach adopted in this paper is perfectly consistent with this principle. While poverty may be defined by reference to a limited range of human rights – which will vary from one society to another, although empirical evidence suggests some rights will be common to all – an effective anti-poverty strategy will certainly have to address a much wider range of human rights. This is because human rights can be relevant to poverty in multiple ways. It is useful to distinguish three different ways in which human rights can be relevant to poverty: constitutive relevance, instrumental relevance and

constraint-based relevance. If the non-fulfilment of a certain human right meets the two conditions mentioned above, it can be said to have constitutive relevance to poverty. But even when a right does not have constitutive relevance in this sense, it may still be relevant to poverty for the other two reasons. Instrumental relevance refers to the ability of certain human rights to promote the cause of poverty reduction. Two different types of instrumental relevance may be distinguished, viz. causative and evaluative.

The causative relevance of some human rights is illustrated by the well known example provided by Amartya Sen in his pioneering work on famines. His analysis points to the empirical regularity that famines never occur in a functioning democracy with a reasonable degree of civil-political freedom, especially with a relatively free media that is allowed to openly criticize the powers of the day. The reason for this regularity lies in the fact that democratically elected politicians cannot afford to be oblivious to the hue and cry that a free media would raise in the event of a famine, with the result that the Government tends to take appropriate preventive measures before an impending famine has the chance to strike. Civil and political rights thus play an important causative role in preventing the worst manifestation of poverty associated with famines. Obviously, however, the same causative relevance can also exist even in a situation of less extreme but persistent poverty.

The idea of evaluative relevance stems from the observation that the analysis of poverty requires social evaluation of various kinds. Recall, for instance, the point made earlier that the characterization of poverty calls for a prior judgement as to which capabilities are to count as basic. In order to be ethically defensible, this judgement must be arrived at through a process of social consultation in which people from all walks of life are able to participate fully. But such participation is only possible respected. The fulfilment of these rights is, therefore, an essential precondition for an ethically defensible evaluation of poverty. As such, all these rights have evaluative relevance to poverty, even if they do not form part of the definition of poverty.

The final way in which human rights can be relevant to poverty, even if they are not part of the definition of poverty, is to act as a constraint on the types of action that are permissible in the quest for reducing poverty.

For instance, while it is entirely sensible that a highly populous but resource-poor country would want to adopt measures for population control as part of a strategy for poverty reduction, it would not be permissible to adopt draconian measures such as forced sterilization that violate people’s personal integrity and privacy. The general point is that the human rights whose non-fulfilment is not in itself constitutive of poverty, and whose promotion may not have instrumental value for reducing poverty either, may still have a bearing on the nature and contents of a PRS by ruling out certain types of action as impermissible.

To conclude, although only some human rights may form part of a human rights definition of poverty, a much wider range of rights will be vital in any discourse on poverty and indispensable in the formulation of PRSs. It is on the basis of this fundamental proposition that the following section delineates the main features of a rights-based approach to poverty reduction.

About 10.6m children under five die each year, most from preventable causes, World Health Organisation advisers estimate. Almost four in 10 die within 28 days of birth and more than four in 10 deaths are in southern and western Africa.

The figures, published soon after Tony Blair's Commission for Africa called for huge injections of aid to improve health on the continent, confirm the size of the global public health disaster international bodies such as the G8, the WHO and Unicef are trying to tackle.

Scientists believe their latest estimates, based on an analysis of death registrations, long-term research and improved models for calculating mortality rates between 2000 and 2003, are the most accurate yet.

The deaths are mainly from pneumonia (19%), diarrhoea (17%), malaria (8%), measles (4%), HIV/Aids (3%) and injuries (3%). Premature birth (28%), sepsis or pneumonia (26%), and asphyxia (23%) are the most common causes of very early death.

Poor nutrition is an underlying factor in more than half of all the deaths under five, according to the figures, published in the Lancet medical journal.

The statistics are still imperfect, the advisers admit, but will act as the benchmark against which progress on WHO initiatives can be measured.

WHO's Africa region, which covers all but the north-east corner of the continent, has the biggest disease burden, with 4.4m deaths each year - accounting for 94% of the global total linked to malaria, 89% to HIV/Aids, 46% to pneumonia and 40% to diarrhoea.

Nearly 3.1m under-fives die in south-east Asia.

Robert Black, of the Johns Hopkins Bloomberg school of public health, Baltimore, Maryland, head of the independent advisers, said the main causes could be tackled "through existing, available and affordable interventions".

In an accompanying commentary, Peter Byass of Umea University, Sweden, said: "It is important to look at the single most important determinant of childhood death, which has to be poverty.

"Childhood mortality is strongly inversely correlated with per capita health expenditure. In today's world, an Ethiopian child is over 30 times more likely than a western European to die before his or her fifth birthday."

The Lancet also reports promising news of the battle against pneumonia. Trials involving more than 17,000 children in Gambia yielded encouraging results for vaccination against the bacterium streptococcus pneumoniae, which is responsible for about half the cases of severe childhood pneumonia in the developing world.

The findings suggest that a million of those 10.6m deaths could be prevented by universal vaccination programmes.

The four-year study by the Medical Research Council and the London School of Hygiene and Tropical Medicine found that the vaccine reduced cases of pneumonia diagnosed by x-ray by 37% and deaths and hospital admissions from all causes by nearly a sixth.

A form of the vaccine is already used in many industrialised countries and is likely to be added to the routine baby vaccination programme in Britain within the next few years.

The vaccine used in Gambia was designed to combat more strains of the infection.

Lee Jong-Hook, the WHO director general, said: "The results of the vaccine trial hold great promise for improving health and saving lives in resource-poor populations.

"The international community's task now is to continue to work together productively to make the pneumococcal conjugate vaccine widely available to children in Africa."

This article appeared in the Guardian (London) on March 25, 2005. I am grateful to the editor for permission to reproduce it here.

In a world beset by terrorist violence, natural disasters and war, small signs of progress are often overlooked. So it's no surprise that even as Western donors spend millions to foster the "rule of law" from Baghdad to Bolivia, recent advances across three continents have attracted little notice.

In each instance, ordinary people, with extraordinary courage, have gone to court to rectify a government injustice. And each time, the judiciary - in Africa, Europe, and Latin America - has responded just as the civics textbooks prescribe: with wisdom, reason and a touch of humanity. The results - landmark judgments vindicating fundamental human rights - demonstrate that independent courts rendering impartial justice are more than a pipe dream.

The first case comes from the Dominican Republic, where the government has for decades denied citizenship - and all the public benefits that flow from it - to tens of thousands of Dominican-born (and often darker-skinned) ethnic Haitians, despite the Constitution's promise of citizenship to all native-born residents. Several years ago, two girls of Haitian descent denied Dominican birth certificates and the right to attend public school brought a legal challenge.

On Oct. 7, the Inter-American Court of Human Rights, a regional tribunal with jurisdiction throughout the Americas, ruled for the first time that governments may not discriminate on the basis of race in granting citizenship. The court held that the government's discriminatory policies left the girls - and thousands of others like them - effectively stateless, in breach of international law. The court ordered the government to reform its birth registration system; to open school doors to all children, including those of Haitian descent; and to pay monetary damages.

Three weeks later, across the Atlantic, a district court in Bulgaria's capital, Sofia, made history. Echoing the U.S. Supreme Court decision of Brown v. Board of Education, the Bulgarian court affirmed that racial segregation in education is unlawful. The case concerned School 103, located in the Roma ghetto of Filipovtsi. Like many other ghetto schools in Bulgaria, School 103 is attended only by Roma students and suffers from substandard material conditions and educational performance. The court found that racially discriminatory patterns of school assignment violated Bulgaria's newly enacted antidiscrimination legislation, which faithfully incorporates European Union requirements. As Bulgaria prepares for EU accession, the decision is significant not only for the children at School 103, but for the thousands of Roma across Europe shunted into second-class schools and denied equal educational opportunities.

Finally, just this week, a federal high court judge in Nigeria authorized a groundbreaking lawsuit that seeks to lift the asylum status of the former Liberian ruler and warlord Charles Taylor. In March 2003, Taylor was indicted by the UN-mandated Special Court for Sierra Leone for his contribution to crimes of murder, rape and mutilation during that country's decade-long civil war. Shortly thereafter, Taylor was granted asylum by Nigeria's president, Olusegun Obasanjo, and he has since resided in a private compound in the Nigerian city of Calabar.

In May 2004, two Nigerian nationals petitioned Nigeria's high court to overturn the grant of asylum. The men had had their arms chopped off in Freetown by soldiers of the Taylor-supported Revolutionary United Front. Rather than shelter Taylor, they argued, Nigeria must prosecute him or send him to the special court to face trial. In rejecting the government's objections, the high court held that the claimants had a right to sue for redress so long as Taylor enjoyed asylum. The government has said it will appeal. Whatever the outcome, the decision stands as a powerful example of an independent court standing up to strong political currents.

What do these cases teach?

First, in an era marred by the resort to force as an arbiter of disputes, the law as applied by capable judges still counts.

Second, don't underestimate the power of civil society. Each of these cases was made possible by the determined persistence of victims, private aid groups and lawyers working for little pay and at great risk.

Third, now comes the real test. These rulings have articulated - with the full legal authority that only courts possess - basic principles that governments may not breach.

But the challenge is to enforce them.

Will Bulgaria desegregate its school system?

Will the Dominican Republic grant citizenship to its ethnic Haitian minority?

Will Nigeria turn Charles Taylor over to the Special Court for Sierra Leone?

Supporters of the rule of law will be watching.

James A. Goldston
International Herald Tribune
THURSDAY, DECEMBER 22, 2005

The International Herald Tribune

Justice is best achieved through the implementation of the various international instruments concerning the rights of the child. The theme puts the focus on children’s rights and considers what progress has been made putting theory into practice. It highlights the very important role of the judiciary not only as guarantors of justice but also in advancing the rights of the child.

The theme will focus on the extent to which the rights of children are protected and/or promoted by international instruments.

The IAYFJM draws members from more than 80 countries and from every continent. These instruments are the only legal instruments they all have in common. The Congress will provide a unique forum for members to exchange on how the CRC and other international human rights instruments are relevant to their practice. Discussions will stimulate individual reflection and provide an interesting impetus for the application of these instruments. The Congress is an opportunity for the IAYFJM to make a major contribution to the globalisation of perspectives on children’s rights.

Speakers will be invited to reflect critically on the way the rights of children are viewed, implemented and monitored in their respective countries and how national practice tries to meet, or fails to meet, the requirements of international standards. The consequences of non-implementation and even violations will be highlighted.

The implementation of rights is likely to be made differently depending on the legal tradition of each country, the social and economic resources it has, or does not have, culture and traditions, and so forth. Speakers will be invited to reflect on the underlying substantive policy issues, particularly on the need to provide economic support to developing nations. They will consider the legal aspects of rights and explore the values and the conception of children and justice which underpin the rights as outlined in the instruments.

Linguistic sessions and workshops will be divided according to types of rights and/or the types of interventions or proceedings to which these rights apply. They will start with brief presentations by people from different countries / continents, that might be viewed as representative of main trends, with a view to stimulating the reflection and discussion that should take place.

To take into account necessary distinctions between children in conflict with the law and children in need of care and protection, delegates will be invited to look at the various rights and reflect on how they apply (similarly or differently) to the various categories of cases.

Similarly, delegates will be invited to consider the extent to which the holistic approach needed in family and youth justice is reflected in practice. How well does the judiciary and all those court-connected professionals, whose work supports the courts, succeed in putting the pieces together again?

Rights tend to undergo some evolution over time, as values and conceptions change. Delegates will have an opportunity to consider the relevance of the instruments and whether any or all need to be updated.

Simultaneous translation will be available in each of our three official languages - English, French and Spanish - for all plenary sessions.

Included among the hundreds of delegates from around the world will be senior representatives of the judiciary and all the professions whose work supports the courts in dealing with children, families and youth justice.

This will be a major international conference embracing both an international and a multi-disciplinary approach to children worldwide and which will endeavour to deliver enduring outcomes throughout the globe.

The aim of the Congress will be to promote fresh initiatives internationally for the protection of children’s rights and the progress of youth justice.

The primary objective of the Congress will be to draw up a set of recommendations which will serve as an inspiration to policy makers, professionals and judges throughout the world in the formulation, development and application of youth and family justice.

Issues touching on the administration of justice as it affects the main influences on children and youth: family, community, society and youth justice will be considered within the overall context of a set of themes that reflect the rights enshrined within the UN Convention on the Rights of the Child and other relevant international instruments.

The development of youth justice in a worldwide context will be a key ingredient in our discussions.

Speakers

Speakers will be drawn from around the world and will represent a range of nationalities and cultures.

Target Audience

Our target audience includes judges, magistrates, psychiatrists, educators, legal professionals, social scientists, police, academics and representatives from government departments, human rights organisations, community groups and welfare agencies.

Organising Committee

The Congress Organising Committee is chaired by the Honourable Mr Justice Gillen – the senior Family Judge for Northern Ireland and comprises representatives from the main agencies supporting the Congress:

Northern Ireland Court Service

Northern Ireland Office

The Public Prosecution Service

Police Service of Northern Ireland

Probation Service of Northern Ireland

Social Services Inspectorate

Office of the First Minister and Deputy First Minister

Programme

Following a Welcome Reception for delegates on Sunday 27 August 2006, the Congress programme will cover 5 days and will strongly reflect the Congress theme.

MONDAY The Child in the Family -

A Child’s Right to Family Life

(i) The meaning of “family life” in a diverse early 21st Century.

(ii) What is the meaning of “abuse”?

(iii) Children as parents.

(iv) Recent developments in the law of international abduction and access.

(v) Parental responsibilities within the family.

TUESDAY A Child in the Community - A Child’s Right to Survival and Development

(i) How are we to hear the voice of the child?

(ii) Rights of child refugees.

(iii) A child’s right to marry.

(iv) Discrimination against children worldwide.

(v) The menace of the Internet.

WEDNESDAY Morning - An opportunity to visit children’s courts and various institutions for children.

Afternoon - Social programme.

THURSDAY Children in Conflict with the Law

(i) Child soldiers - children in war zones.

(ii) The right to protection against trafficking and child prostitution.

(iii) Restorative justice - a fair alternative?

(iv) The right to a fair trial.

(v) Children in custody.

FRIDAY

Drafting recommendations and resolutions.

Closing Address

Call for Papers

The deadline for the submission of papers has now passed. Applicants will be notified of the outcome by the end of February.

Veillard Cybulski Award

The Veillard Cybulski Award will be presented on Monday night.

Congress Website:

Please visit the Congress website.

www.youthandfamily2006.com

Delegates will be able to register, select workshops, book accommodation, book pre- or post-Congress tours etc.

For further information contact:

Gerry McLaughlin

Head of World Congress Secretariat

Northern Ireland Court Service

t. +44 28 9041 2270 / +44 28 9041 2267

f. +44 28 9023 8506

email: wcongress@courtsni.gov.uk

Philippa Spiller

Professional Congress Organiser

The Ovation Group

t. +44 28 9042 4215

f. +44 28 9042 4216

email: Philippa.spiller@ovation-ni.com

Articles for the Chronicle should be sent directly to

Dr Willie McCarney,

Editor-in-Chief,

“St. Martin”, 175, Andersonstown Rd., Belfast. BT11 9EA

N Ireland.

Tel: +44 28 9061 5164; Fax : +44 28 9061 8374;

E-mail: w.mccarney@btconnect.com

Articles should be typed.

Copies in our three working languages

(English, French and Spanish)

would be appreciated.

Alternatively, articles may be directed to any member of the Editorial Panel. Names and addresses are given below, together with telephone and fax numbers, where available.

Honorable Oscar d'Amours, juge, Cour du Québec,

Chambre de la jeunesse

Palais de Justice,

1111, boulevard Jacques-Cartier Est,

Longueuil,(Québec) CANADA

J4M 2J6

Téléphone: (450) 646-4077

Email odamours@sympatico.ca

Jacob J. van der Goes

Molenstraat 15,

4851 SG Ulvenhout,

Holland.

Tel/Fax: 31 76 5612640

E-mail address:

j.vandergoes@tip.nl

Mónica Vazquez Larsson,

Av. Coronel Diaz 2333

piso 13 “A”

(1425) Buenos Aires

Argentina

Tel: (54 -11-) 48001160

Fax: (54 -11-) 48001161

E-mail address:

larsson@satlink.com

Dra Gabriela URETA

Juez 7° Juzgado Menores

Talavera de la Reina, calle 17, n° 656,

Las Condes 6780453

Santiago

Chile

E-mail address: gureta@vtr.net

Prof. Jean Trepanier,

École de criminologie,

Université de Montréal,

C.P. 6128,

Succursale Centre-Ville,

Montréal, Québec,

H3C 3J7, Canada.

Tel: 1 514 343 7325

E-mail address:

jean.trepanier.2@umontreal.ca

Dr Atilio J. ALVAREZ

Defensor de Menores

Santos Dumont 2380

1426 Buenos Aires

Argentina

E-mail address:

infanciayjuventud@yahoo.com.ar

^[1] In summer 2004 was approved the administrative regulation necessary to assure the adequate application of the Act (see Royal Decree 1774/2004, of 30th July; published by the Official Journal –Boletín Oficial del Estado, 209- on 20^th August 2004).

^[2] Internment in a closed centre, in a semi-open centre, in an open centre; therapeutic internment; outpatient treatment; attendance at a Day centre; weekend stays; probation with intensive supervision; simple probation; living with a family or educative group; community services; carrying out socio-educative tasks; warning; deprival of motorcycle or motor vehicle driving licence, of the right to obtain them, or of administrative permits for hunting or fishing or the use of any type of weapon; absolute disqualification (this last measure, introduced by the reform brought about by Act 7/2000, of 22 December, concerns terrorism)

^[3] In these circumstances, community service may reach up to 200 hours and weekend stays up to 16 weekends (art. 9.4ª).

^[4] In Spanish law, less serious crimes are generally those punished with less serious penalties; in general, in the case of imprisonment, those lasting three months to five years (art. 33.3, a) PC).

^[6] Universal Declaration of Human Rights, preamble.

^[7] The global legitimacy of international human rights norms was reaffi rmed by the Vienna Declaration and Programme of Action adopted unanimously by representatives of all 171 States attending the World Conference on Human Rights (14-25 June 1993).

^[8] For an overall view of the Poverty Reduction Strategy Paper (PRSP) process, see International Monetary Fund and International Development Association, Poverty Reduction

Strategy Papers – Progress in Implementation, September 2003, 67 p., available at http://poverty.worldbank.org/fi les/091503.pdf.

^[9] Poverty and the International Covenant on Economic, Social and Cultural Rights: statement adopted on 4 May 2001 by the Committee on Economic, Social and Cultural Rights

(E/C.12/2001/10), para. 13.

^[10] D. Narayan with R. Patel, K. Schafft, A. Rademacher and S. Koch-Schulte, Voices of the Poor. Volume 1 - Can Anyone Hear Us?, New York, published for the World Bank by Oxford

University Press, 2000, p. 230.

^[11] That is why Amartya Sen, who has done more than anyone else to broaden the concept of poverty, insists that “there are some clear associations that constrain the nature of the concept, and we are not entirely free to characterize poverty in any way we like.” See, A. Sen, Inequality Re-examined, Cambridge, Harvard University Press, 1992, p. 107.

^[12] The implications of this link are explored more fully below.

^[14] Once ill-health has been caused by a genetic disorder, this may of course lead to a state of poverty, for example by preventing the affl icted person from taking up any productive activity, but the point is that ill-health in this case will have played an instrumental role in causing poverty rather than constituting a dimension of poverty in its own right. Once ill-health has been caused by a genetic disorder, this may of course lead to a state of poverty, for example by preventing the affl icted person from taking up any productive activity, but the point is that ill-health in this case will have played an instrumental role in causing poverty rather than constituting a dimension of poverty in its own right.

^[15] For more on the concept of freedom, see, among others, Isaiah Berlin, Four Essays on Liberty, (2nd ed.), Oxford, Oxford University Press, 1969, and Amartya Sen, Development as Freedom, New York, Alfred A. Knopf, 1999.

THE GLOBALISATION OF THE LEGAL COMMUNITY AND

5 Decree 535/1999 and unaccompanied minors

THE NEW SPANISH CRIMINAL LAW

FOR MINORS AND JUVENILE DELINQUENTS