THE RIGHTS OF THE CHILD IN THE INTER-AMERICAN HUMAN RIGHTS SYSTEM

SECOND EDITION

CHAPTER I

GENERAL INFORMATION

A.            Creation, Composition, and Mandate of the Rapporteurship on the Rights of the Child

5.         The Rapporteurship on the Rights of the Child of the Inter-American Commission on Human Rights was created during its 100th regular session held in Washington D.C. from September 24 to October 13, 1998, for the purpose of bolstering respect for the human rights of children and adolescents in the Americas.

6.         The mandate of the Rapporteurship is based on Article 41[2] of the American Convention on Human Rights and Article 18 of the IACHR Statute, which together establish specific functions in the sphere of promoting human rights.  In addition, Article 15 of the IACHR Rules of Procedure stipulates that the Commission has the power to create rapporteurships to better fulfill its functions, and sets a few guidelines on the operations of rapporteurships. 

7.         One of the seven Commissioners designated by the Inter-American Commission on Human Rights is responsible for the rapporteurship.  The first Rapporteur on the Rights of the Child was former Commissioner Hélio Bicudo of Brazil (1998-2001).  The second Rapporteur was former Commissioner Susana Villarán de la Puente of Peru (2002-2003).  Since 2004, Commissioner Paulo Sérgio Pinheiro of Brazil has served as Rapporteur.

8.         The primary mandate of the Rapporteurship on the Rights of the Child is the promotion of the human rights of children and adolescents within the jurisdiction of the 35[3] member states of the Organization of American States (OAS).  Thus, it has its office at IACHR headquarters, so that it can perform all of the functions assigned to it to promote and defend human rights.
 

B.              Principal Functions of the Rapporteurship

9.         The Rapporteurship on the Rights of the Child has the following duties:

1.              Analysis of petitions being processed

10.       Provides a specialized analysis in examining petitions lodged with the Inter-American Commission on Human Rights regarding alleged violations of the human rights of children and adolescents.

2.                  Visits to OAS member States

11.       With the consent of the state, the Rapporteurship may visit countries in the region.  During these visits, it establishes contacts with government officials, civil society organizations, and children and adolescents.  The visits make it possible to expand its knowledge of the problems affecting children and adolescents in the region and to make recommendations to states in order to guarantee the full exercise of human rights.

3.                  Preparation of specialized studies

12.       Supports the Commission by preparing studies on the human rights of children and adolescents.  These studies contribute to the development of international human rights law as it pertains to children.  The Rapporteurship also guides states on how to adequately fulfill their international obligations.

4.                  Promotional activities

13.       Conducts promotional activities on protection of the human rights of children and adolescents.  For instance, the Rapporteurship organizes seminars, specialized meetings, and workshops on the international obligations assumed by the states.

            5.         Precautionary and provisional measures

14.       In the case of petitions denouncing serious and urgent situations involving violation of the human rights of children and adolescents in the region, the IACHR may request states to adopt urgent measures to prevent irreparable harm.

15.       In addition, in cases of extreme gravity and urgency, the IACHR may request the Inter-American Court to order states to adopt provisional measures to prevent irreparable harm.

C.       General approach to the inter-American human rights system, with a special emphasis on children

16.       The provisions contained in regional instruments for protection of the rights of children and adolescents are presented below, along with some general considerations regarding rules governing matters pertaining to children in the inter-American human rights system.  To this end, the concept of the term children will be defined, and reference will be made to the corpus juris concept developed by the Inter-American Court, among other aspects.
 

1.        Nature of the instruments in the inter-American system applicable to children

17.       The inter-American instruments of a general nature, such as the 1948 American Declaration on the Rights and Duties of Man and the 1969 American Convention on Human Rights, are applied indiscriminately to protect the human rights of children and adolescents under the jurisdiction of OAS member states.

18.       Both the American Declaration and the American Convention contain provisions that specifically refer to the human rights of children.

19.       The American Declaration contains the following Articles:

Article VII. All women, during pregnancy and the nursing period, and all children have the right to special protection, care and aid.

Article XXX. It is the duty of every person to aid, support, educate and protect his minor children, and it is the duty of children to honor their parents always and to aid, support and protect them when they need it. (...)

20.       The aforesaid provisions view children as human beings that deserve assistance and care due to their status as minors.  Although it is true that the references to the right to support and education are positive, and expressed as a duty of the parents vis-à-vis their children, neither of the provisions manages to go beyond a restricted view of children’s rights.  It was not until the adoption of the American Convention on Human Rights in 1969 that this limited concept of children’s rights was surpassed.

21.       The American Convention contains 26 Articles pertaining to rights, all of which apply to the protection of the rights of the child.  Moreover, the Convention contains specific references to children, as seen in the provisions referring to children in conflict with the law and the right of children deprived of their liberty to be separated from adults, established in Article 5, as well as Article 17, that regulates matters related to protection of the family, such as the equal rights of children born out of wedlock and those born in wedlock.

22.       Article 19 of the American Convention on Human Rights determines a special scope for protection of the human rights of children and adolescents, and regulates the special protection obligations of states, in the following terms:

Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.

2.         Definition of the child in international human rights law

23.       The definition of child[4] as right holders under international law and the scope of application of international standards in matters related to childhood must be examined on the basis of preparatory documents and studies leading up to the adoption of the Convention on the Rights of the Child (hereinafter "CRC"), the text of the Convention, and the decisions of the Committee on the Rights of the Child.
 

a.         Review of the preparatory work of the Convention on the Rights
            of the Child

24.       As indicated earlier, the definition of the child as a subject of international human rights law is established in the 1989 Convention on the Rights of the Child.  It is therefore especially important to consider the arguments used to define the child as a right holder on the basis of the objective category of age.  In this context, it is interesting to note that the first text adopted on the first reading (E/CN.4/1988/WG.1/WP/Rev.1), during the process of drafting the Convention on the Rights of the Child established:

Article 1

In accordance with the Convention, a child is every human to the age of 18, unless, under the law of the State, he has attained his age of majority earlier.”[5]

25.       However, a review of later texts and proposals of state delegations refers to a definition of a child that specifies the age range to include only human beings “who have not attained 18 years of age.”  Based on the texts cited, the Convention adopted the text that refers to “every human being below the age of eighteen years” in its Article 1.[6]

b.         Definition of the child in the Convention on the Rights of the Child and in decisions adopted by the Committee on the Rights of the Child

26.       The Convention on the Rights of the Child is the international norm that defines who must be considered as a child for legal purposes, hence to whom the effects of this treaty apply.  Thus Article 1 of the Convention on the Rights of the Child defines “child” for the purposes of interpreting and applying this treaty as “every human being below the age of eighteen years.”  In this way, the Convention establishes a legal definition of children on the basis of the objective category of age.

27.       According to the Convention itself, majority age may be attained prior to 18 years if the national law of a state so establishes, but in that case the Convention will be applicable until the person reaches 18 years of age.  It is important to note that the Convention does not use as a parameter the term “of legal age” (age of legal competence), but instead simply states “the age of 18 years.”  On this point, it is relevant to point out that the Human Rights Committee has established that “the ages for protection” should not be “unreasonably brief” and that in no case may a state fail to comply with its obligations of protection of children and adolescents, even if they attained legal age prior to 18 years  under national legislation.[7]

28.       On the contrary, the Convention does not establish an exception to the age limit to consider a person as a child; consequently the provisions of this treaty are applicable to them after completing 18 years.  In this regard, the Committee on the Rights of the Child has stated that Article 1 establishes “a general maximum reference age of 18 years. States parties should use this age limit as a norm and a reference for establishing any other age for specific purposes or activities.

29.       Moreover, this provision emphasizes that states parties must guarantee special protection to every child below that age limit...”.[8]

30.       Along the same lines as the Convention on the Rights of the Child, Agreement 182 of the International Labour Organization (ILO), on the Worst Forms of Child Labour, establishes in its Article 2 that the term child designates “(...) every person under 18 years of age,” as does the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, that supplements the United Nations Convention Against Transnational Crime.[9]

c.         Definition of the child in the Inter-American Human Rights System

31.       In the inter-American arena, there is no standard definition of the child for legal purposes.  On the one hand, the American Declaration of the Rights and Duties of Man only provides for protection of the child, but does not define the term.[10]  Although the Convention on the Rights of the Child establishes the scope for protection of the human rights of the child, it does not define the child as a legal subject either.[11]

32.       By virtue of the foregoing, both the Inter-American Court of Human Rights[12] and the Inter-American Commission on Human Rights[13] have stipulated that the definition of the child is based on the provisions of Article 1 of the Convention on the Rights of the Child.[14]  The Inter-American Court stated in its Advisory Opinion 17 that the term child “obviously covers boys, girls, and adolescents.”[15]  Section V of Advisory Opinion 17 on the Legal Status of the Human Rights of the Child entitled “Definition of Child” establishes who should be considered as a child for legal purposes:

Indeed, taking into account international norms and the criterion upheld by the Court in other cases, “child” refers to any person who has not yet turned 18 years of age.[16]

33.       Thus, for example, in the first case that the Court heard on children, it established that application of Article 19 is limited to victims under 18 years of age:

Article 19 of the American Convention does not define the term “child.’  The Convention on the Rights of the Child defines a child as every human being below the age of 18 years, “unless under the law applicable to the child, majority is attained earlier.” (Article 1).  According to Guatemalan legislation in force at the time the events of this case occurred, persons who had not attained 18 years of age were also minors. According to these criteria, only three of the victims, Julio Roberto Caal Sandoval, Jovito Josué Juárez Cifuentes, and Anstraum Villagrán Morales, had the status of children.  However, in this judgment, the Court uses the colloquial expression “street children” to refer to the five victims in the present case, who were living in the streets, in a situation of risk.[17]

34.       In the case of Bulacio versus Argentina, the court reiterated:

Walter David Bulacio was 17 years of age when he was arrested by the Argentine Federal Police.  The Court established in its Advisory Opinion OC-17 that:  “definitively, taking into account international law and the criterion upheld by the Court in other cases, a ‘child’ is understood as every person who has not attained 18 years of age.”[18] 

35.       In the case of the girls Dilcia Yean and Violeta Bosico versus the Dominican Republic, the Court states that “at the time that the State accepted the contentious jurisdiction of the Court, Dilcia Yean and Violeta Bosico were children,[19] who by virtue of that condition had special rights entailing special duties on the part of their family, society, and the state, and required special protection from the State, which should be understood as an additional, complementary right.”[20]

36.       It is important to note that in later cases involving children, the Court does not include considerations that define the child in greater detail.  However, it is interesting to observe that in its judgment in the 2004 case involving the Juvenile Reeducation Institute versus Paraguay, the Court used the criterion of majority age to establish the level of protection, and held that since domestic legislation in force at the time the events occurred established majority age as 20 years, it considered it necessary to refer to Ricardo Daniel Martínez, who died at 18 years of age, as a child.  It should be pointed out that in this line of reasoning, the Court did not apply the objective criterion of age established in the Convention on the Rights of the Child and recognized in its previous decisions, but instead used the criterion of majority age, which is not consistent with the definition in Article 1 of the Convention on the Rights of the Child, as cited earlier.[21] 
 

d.         Definition of the child in the European Human Rights System

37.       The European system for the protection of human rights applies the same objective criterion to define the time that childhood ends.  Thus, for instance, Article 1 of the European Convention on the Exercise of Children’s Rights establishes that its provisions apply to children, namely, to every human being who has not attained 18 years of age.[22]  Along the same lines, the European Convention on Protection of Children against Sexual Exploitation and Sexual Abuse, adopted in Lanzarote, Spain on October 25, 2007, defines the child as “any person less than 18 years of age.”[23]

e.         Definition of the child in the African Human Rights System

38.       The African Charter on the Rights and Well-being of Children, adopted in July 1990, defines as a child every human being less than eighteen years of age.[24]

3.         Concept of corpus juris in the human rights of children and adolescents

39.       The concept of corpus juris[25] in matters related to children implies recognition of a series of fundamental norms that are linked for the purpose of guaranteeing the human rights of children and adolescents.  In this regard, the Inter-American Court of Human Rights has established that “the corpus juris of International Human Rights Law is formed by a series of international instruments with different legal content and effects (treaties, conventions, decisions, and declarations), in addition to the decisions adopted by international organizations.  Its dynamic development has had a positive impact on international law, by confirming and developing the capacity of the latter to regulate relations between states and the human being under their respective jurisdictions.”[26]

40.       In this context, the Inter-American Court has recognized through its jurisprudence the existence of a corpus juris on the human rights of children and adolescents, as the following text indicates:

Both the American Convention and the Convention on the Rights of the Child are part of a very comprehensive international corpus juris on protection of children which should be used by this Court to determine the content and scope of the general provision established in Article 19 of the American Convention.[27]

41.       The Court has emphasized that the existence of the so-called corpus juris is the result of the evolution of international human rights law in matters related to children, which focuses on recognition of children and adolescents as persons with legal rights.  Consequently, the legal framework of protection of the human rights of children is not confined to the provisions of Article 19 of the American Convention, but also includes, for purposes of interpretation, the terms of the Declarations on the Rights of the Child of 1924 and 1959, the 1989 Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (1985 Beijing Rules), the Standard Minimum Rules for Non-Custodial Measures (1990 Tokyo Rules), and the United Nations Guidelines for the Prevention of Juvenile Delinquency (1990 Riyadh guidelines), in addition to international instruments on human rights in general.

42.       The Court has examined human rights cases involving children and adolescents from this perspective, applying corpus juris in children’s matters, and establishing that:

To determine the content and scope of this Article, consideration will be given to the pertinent provisions of the Convention on the Rights of the Child, which was ratified by Paraguay on September 25, 1990, and took effect on September 2, 1990, and the Additional Protocol to the American Convention on Human Rights on Economic, Social, and Cultural Rights (Protocol of San Salvador), which was ratified by Paraguay on June 3, 1997 and entered into force on November 16, 1999, since these instruments and the American Convention are part of an extremely comprehensive international corpus juris for protection of children’s rights that the Court is bound to observe.[28]

43.       It is therefore possible to conceive that the concept of corpus juris allows us to use the laws and decisions that have been adopted, as tools for interpretation, including those outside the regional system for the protection of human rights.  In this way, it is possible to use the text of the United Nations Convention on the Rights of the Child and decisions adopted by the Committee on the Rights of the Child, in compliance with its mandate to interpret the content and scope of the children’s rights enshrined in Article 19 of the American Convention.

44.       In this context, it is critically important to incorporate the fundamental principles on children established in the text of the Convention on the Rights of the Child, such as the principle of nondiscrimination, the principle of participation, the principle of the development and survival of children, and the principle of the best interests of children which are reflected in decisions adopted in the regional system.  For example, one of the first references to the best interests of the child in decisions of the Commission appeared in its 1997 Annual Report, where it determined that (...) in all cases involving decisions that affect the life, liberty, physical or moral integrity, development, education, health, or other rights of minors, these decisions must be made on the basis of what is most advantageous to the child.[29]  For its part, the Inter-American Court of Human Rights, in Advisory Opinion 17 on the Juridical Condition and Human Rights of the Child, also conceived of the best interests of the child as a “regulating principle regarding children’s rights based on the very dignity of the human being,[30] on the characteristics of children themselves, and on the need to foster their development, making full use of their potential, as well as on the nature and scope of the Convention on the Rights of the Child.”[31]

45.       This approach represents a significant step forward that shows not only a common legal framework in international human rights law applicable to children, but also the global interdependence of the different international systems for protection of human rights of children and adolescents.

4.         Prohibition of suspension of international obligations related to the human rights of children

46.       International human rights law establishes that the fundamental obligations of states in the area of human rights are to respect and guarantee the full exercise of those rights.  International law also provides for suspension of these obligations in highly exceptional circumstances in which certain human rights are restricted or limited.  This does not imply the temporary suspension of the rule of law, or the absence of legal limits on the action of the state.[32]

47.       Thus suspension of the obligations assumed by a state party to an international instrument is not absolute under exceptional regimes, or in other words, it may not indiscriminately affect any one of those obligations.

48.       In this context, both the International Covenant of Civil and Political Rights (Art. 4.2) and the American Convention on Human Rights (Art. 27.2)[33] establish that states may not suspend their international obligations regarding the right to life, prohibition of torture and cruel, inhumane, or degrading treatment or punishments, prohibition of slavery, trafficking in persons and servitude, prohibition of imprisonment for noncompliance with contractual obligations, observance of the principle of legality in criminal matters (there is no punishment or crime without the law), the principle of application of the punishment most favorable to the convicted person, the right to recognition of legal personality, and to freedom of conscience and religion.

49.       Moreover, the American Convention on Human Rights adds to this list the impossibility of suspending obligations assumed regarding protection of the family, the right to a name, the right to nationality, political rights, and the rights of the child.  The Convention is the only binding international human rights instrument that prohibits suspension of international obligations related to the human rights of children and adolescents.

50.       The American Convention on Human Rights further establishes the non-suspension of the right to a fair trial, which is essential to protect all the aforesaid rights that may not be suspended.  For the Inter-American Court of Human Rights, included among the judicial guarantees that may not be suspended during exceptional regimes are habeas corpus, amparo, and any other effective remedy available in the competent courts or before the competent judges that is designed to guarantee respect for the rights and liberties that may not be suspended in such situations.[34]

51.       Therefore, judges must always process legal actions brought for protection of the human rights of children and adolescents during states of emergency, and must, as applicable, exercise judicial control based on the reasonability and proportionality of the restricted act.

5.        Interaction between the inter-American and the universal systems for protection of the rights of children

52.       The inter-American system coexists with other international human rights systems, such as the universal system, in addition to regional systems in place in Europe and Africa.  This means that the different systems for protection of human rights are inter-related and complement each other in developing international human rights standards.  For instance, in the case of children, it is possible to observe how the interaction between the inter-American system and the universal system has occurred essentially in the following areas:

i)                     Scope of substantive development:  This is based on recognition and application of a corpus juris of the human rights of children and adolescents that allows both systems to exert mutual influence in the substantive development of the scope and content of their human rights.

ii)                   Scope of evidence:  the evidentiary value of decisions adopted in both systems to demonstrate the violation of the human rights of children and adolescents or to support a general human rights situation within the scope of a state’s international responsibility.  This effect is clearly seen in the inter-American system, where there is a procedure for the processing of individual cases, in which evidence of the alleged violations must be presented.  It is important to note that in processing individual cases, evidence of a specific situation could be brought in the form of the final comments issued by the Committee on the Rights of the Child regarding the country that is alleged to have international responsibility.  Moreover, one should bear in mind that within the jurisdiction of the universal system, there are various international organizations monitoring human rights that are competent to hear individual cases, and that, in processing these cases, may present decisions adopted by institutions of the inter-American system relevant to the specific case under examination in the universal system.

iii)                  Scope of monitoring and evaluation of general situations:  both systems analyze and evaluate the human rights situation of children and adolescents in states.  In the case of the United Nations, the Committee on the Rights of the Child evaluates the situation in the countries that are states parties to the Convention on the Rights of the Child, whereas in the case of the IACHR, it may evaluate the situation of states that are parties to the American Convention, as well as that in other states that have not ratified this treaty, but are members of the OAS.

53.       The interaction between the two systems is seen in the mutual references by the Inter-American Commission and Court on the one hand and the Committee on the Rights of the Child, on the other, in the international decisions they adopt.  An example of this is the statement by the Inter-American Court regarding the concept of corpus juris in cases regarding children in international human rights law.  The Court has applied this conceptual development to expand the legal framework governing the human rights of children and to strengthen the protection offered in the regional system.[35]  In this way, the text of the Convention on the Rights of the Child and decisions adopted by the Committee--such as their General and Final Comments on the periodic reports presented by the states parties to the Convention on the Rights of the Child—are incorporated into the system as reference material for interpretation purposes.

54.       This relationship strengthens the defense and promotion of the human rights of children and adolescents.  A concrete example of how the Committee on the Rights of the Child uses decisions of the inter-American system is found in General Comment No. 8 on protection of children against corporal punishment and other forms of cruel, inhuman, or degrading treatment, where the Committee cites the jurisprudence of the Inter-American Court to establish the scope of the state’s obligation to adopt positive measures to guarantee the rights of children and adolescents.  On this point, the Committee maintained:

24.       An advisory opinion of the Inter-American Court of Human Rights on the Juridical Condition and Human Rights of the Child (2002) holds that states parties to the American Convention on Human Rights “have the duty ... to adopt any positive measures that ensure protection of children against mistreatment, whether in their relations with public authorities, or in interrelationships with individuals or nonstate entities.”  The court cites provisions of the Convention on the Rights of the Child, conclusions of the Committee on the Rights of the Child, and also judgments of the European Court of Human Rights regarding the obligations of states to protect children against violence, including in the family.  The Court states in conclusion that “the state has the duty to adopt positive measures to fully ensure the effective exercise of the rights of the child.[36][37]

55.       In addition, the Committee on the Rights of the Child, in evaluating the situation of children and adolescents, takes into account compliance with decisions adopted by regional institutions for protection of human rights.  An example of this can be found in the observations issued by the Committee in relation to the periodic report presented by the State of El Salvador, in respect of which it stated:

The Committee is concerned that the resources needed to duly implement the decision issued by the Inter-American Court of Human Rights in the case of the Serrano Cruz Sisters vs. El Salvador of March 1, 2005, have still not been allocated.[38]

56.       For its part, the IACHR has also referred to the comments issued by the Committee on the Rights of the Child regarding situations existing in OAS member states.  For instance, in its Special Report on “Justice and Social Inclusion: the Challenges of Democracy in Guatemala,” the IACHR stated:  “The IACHR adopts the recommendation made by the United Nations Committee on the Rights of the Child to the State of Guatemala to suspend adoptions until it puts in place adequate legislative and institutional measures to prevent the sale of and trafficking in children, and to establish an adoption procedure that is consistent with the principles and provisions of the Convention.”[39]

57.       This interaction is also appreciated in evidentiary matters, where the IACHR, in analyzing an individual case, may refer to observations of the Committee regarding the existence of patterns of systematic violations of the human rights of children and adolescents in a state.  As a rule, the final comments on situations of countries issued by the Committee on the Rights of the Child are used for reference purposes by the IACHR in monitoring human rights situations in the region.