The Inter-American Court of Human Rights and Its Contribution to the Protection of Children’s Rights

Novak, Fabián

doi:10.1007/978-90-6704-894-1_38

The Inter-American Court of Human Rights and Its Contribution to the Protection of Children’s Rights

Fabián Novak⁵

Chapter
First Online: 14 March 2013

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Abstract

In this article we will analyze the rulings issued by the Inter-American Court of Human Rights (IACHR) from 1999 until October 2011 with regard to children. We shall go over the concept of “child” set forth by the Court, the child’s recognition as a subject of (special) rights within International Law, the subjects internationally obliged to safeguard them, the guiding principles of child protection and the children’s rights that have been studied by this tribunal.

Keywords

Child Protection
Legal Personality
Special Protection
Life Project
Street Child

These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

Member and Vice-Chair, Inter-American Juridical Committee of the Organization of American States (OAS) Associate member, Institut de Droit International.

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Notes

1.
See the Geneva Declaration on Children’s Rights adopted by the Society of Nations on 26 December 1924.
2.
See Article 25.2 of the Universal Declaration. See Novak and Nahimas 2004, p. 221.
3.
United Nations General Assembly Resolution n. 217(III), UN Doc. A/RES/217(III) (20 November 1959).
4.
Carreras 1992, pp. 186–188.
5.
United Nations General Assembly Resolution n. 1386(XIV), UN Doc. A/RES/1386(XIV) (12 December 2001).
6.
Entered into force on 23 March 1976 (Article 41 on 28 March 1979).
7.
Entered into force on 3 January 1976.
8.
In the first case we have Article 24 (right to a name, nationality, special measures of protection by the family, society and the state) and in the second, Article 10 (against economic and social exploitation of children, against employment harmful to their moral or health, etc.), 13 (right to education) and 40 (on free and compulsory primary education).
9.
This is, for instance, the case of Agreement No. 138 of the ILO on the minimum age required to start working from 26 June 1973; Agreement No. 182 of the ILO on the worst means of infantile work and its immediate action for its elimination from 17 June 1999; the Inter-American Convention on Conflict of Laws with regard to adopting minors from 24 May 1984; the Inter-American Convention on the restitution of minors from 15 July 1989, or the Inter-American Convention on International trafficking of minors from 18 March 1994.
10.
Thus we have the Standard Minimum Rules for the United Nations on the Administration of Juvenile Justice (Beijing Rules 1985), the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children (1986), the United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo Rules 1990), the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines 1990), among others.
11.
United Nations General Assembly Resolution n. 44/25, UN Doc. A/RES/44/25 (20 November 1989).
12.
To this we add the two Optional Protocols to the Convention on the Involvement of Children in Armed Conflict and on the Rights of the Child on the Sale of Children, Child Prostitution and the Use of Child Pornography of 25 May 2000.
13.
See Article VII of this instrument.
14.
Entered into force on 18 July 1978. Article 19: “Every child has the right to the protection that his status as a minor requires from his family, society and the state.”
15.
Entered into force on 16 November 1999. Article 16: “Every child, whatever his parentage, has the right to the protection that his status as a minor by his family, society and state. Every child has the right to grow and under the responsibility of his parents, except in exceptional circumstances, judicially-recognized, the young child should not be separated from his mother. Every child has the right to free and compulsory education, at least in the elementary phase, and to continue his education at higher levels of the education system”. See Cárdenas and Román 1985, pp. 87 et seq.
16.
Entered into force on 2 September 1990. These instruments should be accompanied by a set of institutions for the promotion and protection of human rights such as the Inter-American Children's and Adolescents Institute (1924), the Inter-American Commission on Human Rights has a Special Rapporteur on Children and on the Inter-American Court of Human Rights. Gonzalez Espinoza 2006, pp. 181 et seq.
17.
IACtHR: Juridical Condition and Human Rights of the Child, Advisory Op. (28 August 2002), para 29. This Advisory Opinion was submitted to the Court by the Inter-American Commission on Human Rights, in order to interpret it Articles 8, 19 and 25 of the Convention.
18.
Ibidem paras 24 and 30. In this same sense, see IACtHR: “Street Children” (Villagrán-Morales et al.) v. Guatemala, Judgment (19 November 1999), para 148: “To establish the contents and scope of this article [19 of the American Convention], [the Court] shall consider the corresponding rules from the Convention on the Rights of the Child (…) since they form part of a very comprehensive international corpus iuris on the protection of children which the Court must respect.”
19.
Juridical Condition and Human Rights of the Child, supra n. 18, paras 38, 40 and 42. Years before, in the same sense as the Court had ruled in the: “Article 19 of the Convention does not define what is meant by “child”. For its part, the Convention on the Rights of the Child considered as such (Article 1) every human being who has not attained 18 years of age (…). 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” (“Street Children” (19 November 1999), supra n. 19, para 188).
20.
Villanueva Castilleja 2005, p. 227.
21.
Juridical Condition and Human Rights of the Child, supra n. 18, para 41.
22.
Ibidem, para 54.
23.
Ibidem, para 55.
24.
See IACtHR: Mapiripán Massacre v. Colombia, Judgment (15 September 2005), para 152. Likewise, see IACtHR: “Juvenile Reeducation Institute” v. Paraguay, Judgment (2 September 2004), para 147; Street Children (19 November 1999), supra n. 19, para 187.
25.
Juridical Condition and Human Rights of the Child, supra n. 18, paras 62, 66–68. In IACtHR: Chitay Nech et al. v. Guatemala, Judgment (25 May 2010), paras 2, 153, 157–164 and 170, the Court established how the forced disappearance of the indigenous Mayan political leader Chitay Nech, executed by gunmen in Guatemala, involved the failure of the State’s duty to protect the family, for such disappearance involved the disintegration of the family of Chitay Nech, making it a monoparental family, hindering the overall development of the children (Eliseo, Estermerio, Pedro, Encarnación and María Rosaura), precluding the coexistence between parents and children. More so, in the case of an Indian family where the parents who transmit their knowledge to their children orally (thus depriving them of their cultural life) are also those who stay with their sons. In IACtHR: Atala Riffo y Niñas v. Chile, Judgment (24 February 2012), para 142, the Court observed that there is no closed concept of family determined in the American Convention much less does it define and protect just one "traditional" model of it. The concept of family life is not uniquely reduced to marriage and it must include other family ties of fact where the parties share a life in common outside the institution of marriage.
26.
Juridical Condition and Human Rights of the Child, supra n. 18, paras 62, 71, 75–77 and 88. The Court has effectively established that separating children from their family constitutes, in some cases, a violation of their right to family. See IACtHR: “Las Dos Erres” Massacre v. Guatemala, Judgment (24 November 2009), paras 2, 179–180, 187, 190 and 198. In this case the minor child Ramiro Osorio (6 years old) during the slaughter of 25 people in the subdivision of Las Dos Erres in December 1982, was kidnapped by the Kaibil (specialist group of the Armed Forces of Guatemala) Santos López Alonso, who took him home, registered him under his surname and his wife’s, separating him from his biological family for 18 years without any action from the State to reunify him with his family, after a knowing the fact, which was a clear violation of his right to family. In the same sense, see IACtHR: Gelman v. Uruguay, Judgment (24 February 2011), paras 125–126; Forneron e hija v. Argentina, Judgment (27 April 2012), para 47.
27.
Juridical Condition and Human Rights of the Child, supra n. 18, paras 62 and 67.
28.
García Ramírez 2010, p. 81.
29.
Juridical Condition and Human Rights of the Child, supra n. 18, paras 62–67.
30.
Ibidem paras 56 and 57.
31.
Ibidem para 58.
32.
Ibidem para 65.
33.
IACtHR: Girls Yean and Bosico v. Dominican Republic, Judgment (8 September 2005), para 134; IACtHR: “Ituango Massacres” v. Colombia, Judgment (1 July 2006), para 244.
34.
IACtHR: Bulacio v. Argentina, Judgment (18 September 2003), para 134. In the same sense, see IACtHR: Gómez-Paquiyauri Brothers v. Peru, Judgment (8 July 2004), para 163; “Juvenile Reeducation Institute”, supra n. 25, para 160; Girls Yean and Bosico, supra n. 34, para 134.
35.
Cillero Bruñol 1998, pp. 75, 79 and 84. It should be added that in Atala Riffo and Niñas v. Chile (24 February 2012) , Para 110, the Court dictated that the best interest of the child cannot be used as a recourse to discriminate against the mother or the father because of the sexual orientation of either of them. Therefore, the judge cannot take into consideration this social condition as a factor to make a decision regarding alimony or custody.
36.
García Ramírez and Islas de González Mariscal (2007), pp. 51 et seq. Also (Islas de González Mariscal 2007), p. 1.
37.
Juridical Condition and Human Rights of the Child, supra n. 18, paras 53 and 57; IACtHR: Caracazo v. Venezuela, Judgment (29 August 2002), para 102; “Mapiripán Massacre”, supra n. 25, para 152, “Ituango Massacres”, supra n. 34, para 244. Also O’Donnel 1988, p. 317.
38.
Girls Yean and Bosico, supra n. 34, para 133; “Juvenile Reeducation Institute”, supra n. 25, para 147.
39.
Juridical Condition and Human Rights of the Child, supra n. 18, paras 60 and 61. In the same sense, see “Mapiripán Massacre”, supra n. 25, para 152: “Article 19 of the Inter-American Convention must be understood as a complementary right that the treaty establishes for human beings who because of their physical and emotional development need special protective measures.” Later and in the exact sense, see “Ituango Massacres”, supra n. 34, para 244. In IACtHR: Sawhoyamaxa Indigenous Community v. Paraguay, Judgment (29 March 2006), para 177, the Court mandated in regard to children that: “(…) the State must assume its special position as warrantor with great care and responsibility, and that it should take special measures.” In this case, the Paraguayan responsibility was established with regard to the Sawhoyamaxa Indians who traditionally inhabited the Paraguayan Chaco, who were deprived from their property of their traditional lands, as a result of which, they were subject to deplorable living conditions that caused their death (including children), malnutrition, situations of lack of health, etc. (para 73).
40.
Thus, in IACtHR: González et al. (“Cotton Field”) v. Mexico, Judgment (6 November 2009), paras 2, 165, 167, 403, 404 and 408, the Court established a violation of this principle by considering that Mexico had not complied with its right to provide a citizen special care in favor of the minors Laura Ramos Moárrez 17 years of age and Esmeralda Herrera Monreal, 15 years of age, who were raped, tortured and murdered in a cotton field in Ciudad Juarez, despite the full knowledge of the existence of a pattern of violence against women in that city, which left hundreds of women and girls murdered. Similarly, in IACtHR: Tiu-Tojín v. Guatemala, Judgment (26 November 2008), paras 40, 41, 48 and 50, the Court noted how the internal armed conflict in that country created a scenario to cause a multitude of violations against children, including forced disappearances, especially among the Mayan population (83.3 %) which was precisely what happened to Josefa Tiu Tojín less than a month old and her mother, arrested by the army and taken to a military base, after which nothing else was ever heard of them. Finally, this principle was also violated in “Las Dos Erres” Massacre, supra n. 27, paras 213–216.
41.
Beloff 2007, p. 272. Also González Contró 2008; Gutiérrez Contreras 2006.
42.
Street Children (19 November 1999), supra n. 19, para 191. This case was based on kidnapping, arbitrary detention (between 10 and 21 h), torture followed by murder by means of gun of three minor children and a fourth one who “lived” on the streets, in hands of members of the Guatemalan National Police (paras 161–170). See also “Juvenile Reeducation Institute”, supra n. 25, para 156; Barrios family v. Venezuela, Judgment (24 November 2011), para 68.
43.
See Bulacio, supra n. 35, para 138. This case involves the disappearance of a child under 17 years, Walter David Bulacio, which occurred on April 19, 1991, whose body then appeared buried in a private cemetery, after being arrested by police at a rock concert (para 56). We also have Gómez-Paquiyauri Brothers, supra n. 35, para 171. In this case, Raphael Samuel and Emilio Moisés Gómez Paquiyauri were children of 14 and 17 who were illegally and arbitrarily detained, tortured and extrajudicially executed by members of the National Police of Peru. See also “Mapiripán Massacre”, supra n. 25, para 162. In this case, the responsibility of Colombia was established in a slaughter that killed about 49 people from the village of Mapiripan, including two minors, also causing the forced internal displacement of the survivors, there being no further judicial clarification or redress for victims (paras 146–148 and 159–163). Also IACtHR: Servellón-García et al. v. Honduras, Judgment (21 September 2006), para 116. In this case it was established that from 1997 to 2005 there was a significant number of juvenile violent deaths in Honduras, including that of Marco Antonio Servellón Garcia, Romy Alexis Betancourth Vasquez, Orlando Alvarez Ríos and Diomedes Obed García Sánchez, in a context characterized by violence and impunity for extrajudicial executions (paras 105–109). Also see “Juvenile Reeducation Institute”, supra n. 25, paras 183 and 184. This case consisted in determining the responsibility of Paraguay for the failure to take measures for prevention and minimum security prison in this country, causing death, severe burns and injuries to many people because of three fires that took place there, in addition to detaining 3744 juveniles in an adult prison, violating numerous provisions concerning the treatment of a child which is in conflict with the law. Finally, see Sawhoyamaxa, supra n. 40, para 178.
44.
Juridical Condition and Human Rights of the Child, supra n. 18, para 137 (numeral 7), emphasis by the author.
45.
Ibidem, numeral 8. See also paras 80 and 81. Also, “Ituango Massacres”, supra n. 34, para 234. This case established the responsibility of Colombia in relation to the massacres carried out in the town of Ituango, killing some of the people, torture, destruction of livestock and housing, all of which in turn determined the displacement of 702 survivors, including several children whose right to a decent life was disrupted (paras 230–235).
46.
Servellón-García et al. supra n. 44, para 117.
47.
IACtHR: Yakye Axa Indigenous Community v. Paraguay, Judgment (17 June 2005), para 172. In this case, the Yakye Axa indigenous community that ancestrally occupied the Paraguayan Chaco, claimed Paraguay their land, their traditional territory and natural resources, from it which had been deprived by selling them on the London stock exchange in the nineteenth century. This dispossession determined that members of this community (including several children) live in extreme poverty, unable to cultivate and practice their traditional subsistence activities in the claimed area. It also lacked basic minimum services (water, sewage, electricity), which generated cases of anemia and malnutrition (para 50 and following), affecting their life project.
48.
“Juvenile Reeducation Institute”, supra n. 25, para 158; IACtHR: Vargas-Areco v. Paraguay, Judgment (26 September 2006), paras 75 and 77.
49.
Gómez-Paquiyauri Brothers, supra n. 35, para 170.
50.
“Mapiripán Massacre”, supra n. 25, para 154.
51.
“Juvenile Reeducation Institute”, supra n. 25, para 157.
52.
Ibidem, paras 165–177.
53.
Vargas-Areco, supra n. 49, paras 129–131. In this case the responsibility of Paraguay was determined as to the torture and disappearance of the minor child Gerardo Vargas Areco, who tried to abandon the military service several times and was shot to death on one of these attempts.
54.
Gelman, supra n. 27, para 118. The forced separation of a child from his family in order to hand him over to another, implies the violation of his right to psychic and moral integrity, by altering his life project and by generating a severe impact on his being, by discovering that his name, nationality an identity and family relationships were fake.
55.
IACtHR: Serrano-Cruz Sisters v. El Salvador, Judgment (1 March 2005). In this case the Court determined the violation of the right to personal integrity of the relatives of the girls Ernestina and Erlinda Serranos Cruz, who had disappeared without the Salvadorian state determining what had happened, punishing those responsible or searching for the whereabouts of these girls (paras 113–115).
56.
Thus, in Servellón-García et al., supra n. 44, para 112, the Inter-American Court noted that under the principle of equality, “the state can not allow its agents, nor encourage practices in society that reproduce the stigma that poor children and young people are conditioned to crime or necessarily linked to an increased public insecurity. This stigma creates a positive environment for those minor children at risk who face a potential threat of their lives and liberty being unlawfully restricted.”
57.
IACtHR: Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica, Advisory Op. (19 January 1984), para 55; Juridical Condition and Human Rights of the Child, supra n. 18, paras 44 and 45.
58.
Juridical Condition and Human Rights of the Child, supra n. 18, paras 46 and 47. In the same sense, see Naturalization Provisions of the Constitution of Costa Rica, supra n. 59, para 57. Here it was noted that there will be no discrimination if the difference in treatment has a legitimate purpose, that is, if not intended for arbitrary, capricious, and despotic or in any way in conflict with the essential oneness and dignity of the human nature.
59.
Juridical Condition and Human Rights of the Child, supra n. 18, para 55.
60.
Bulacio, supra n. 35, para 135; Gómez-Paquiyauri Brothers, supra n. 35, para 169. In the same sense, Salado Osuna 2010, pp. 98–99.
61.
“Juvenile Reeducation Institute”, supra n. 25, paras 159, 161, and 173–174; Bulacio, supra n. 35, paras 126 and 136; Street Children (19 November 1999), supra n. 19, para 197.
62.
Gelman, supra n. 27, para 132.
63.
Entered into force on 23 December 2010.
64.
See for example Viñas Farre 2010, pp. 57–58.
65.
As in Gelman, supra n. 27, paras 2 and 122, where the disappearance in 1976 by action of Argentine and Uruguayan state agents as part of Operación Condor, María Claudia García Iruretagoyena de Gelman and her daughter in her womb, who was given to a family in Uruguay after birth, was described by the Court as a violation of the right to identity, since the girl Maria Macarena Gelman Garcia Iruretagoyena learnt of her true identity, nationality, name and family relations at the age of 24. And, as stated by the Court: “(…) the abduction of boys and/or girls carried out by state agents to be handed illegitimately to another family for raising, changing his identity and without informing his biological family about his whereabouts, as occurred in this case, is a complex act that involves a series of illegal actions and violations of rights (…)” (para 120).
66.
Serrano-Cruz Sisters v. El Salvador, supra n. 56, para 117.a.
67.
Girls Yean and Bosico, supra n. 34, paras 175–176, 178–180 and 185–187. Here the Court discussed how the denial of birth registration in the registry office of the Dominican Republic of Dilcia Yean and Violeta Bosico along with the Prosecutor's decision confirming the refusal, determined that both girls have no nationality until September 25, 2001, depriving them of all legal protection, despite having been born in the Dominican Republic from Haitian migrant workers.
68.
Ibidem, paras 182–184. In this sense, a child cannot be deprived of his name, as in “Las Dos Erres” Massacre, supra n. 27, paras 192, 195, 198 and 200. Here the six year old Ramiro Osorio Cristales was deprived of the name and surname of his biological parents, to give him the name of his kidnapper, regaining his real name after 21 years. See also Gelman, supra n. 27, para 127.
69.
Girls Yean and Bosico, supra n. 34, paras 136–138.
70.
Ibidem, para 140.
71.
Ibidem, paras 141–142 and 156. At this point we must refer to Argentina, Brazil, Uruguay and Paraguay, that on 7 July 2011, filed a joint request for an advisory opinion for the Court to determine the obligations of the States with regard to measures likely to be taken on children associated with their migratory status. This will no doubt be a great opportunity for the Court to establish certain basic principles of child protection.
72.
Juridical Condition and Human Rights of the Child, supra n. 18, paras 94 and 96.
73.
Ibidem, para 97.
74.
Ibidem, paras 99 and 102.
75.
Ibidem, para 103.
76.
Ibidem, para 109.
77.
Ibidem, para 116.
78.
Ibidem, paras 119–121, 124–125 and 129.
79.
Ibidem, paras 130 and 131.
80.
Ibidem, para 134.
81.
Ibidem, para 135.
82.
“Juvenile Reeducation Institute”, supra n. 25, paras 111 and 149.
83.
Juridical Condition and Human Rights of the Child, supra n. 18, para 84.
84.
IACtHR: Xákmok Kásek Indigenous Community v. Paraguay, Judgment (24 August 2010), para 211. In this case, the responsibility of Paraguay was determined for the situation of nutritional, medical and sanitary vulnerability to which the Indian community was exposed (among them several children) while being dispossessed of their ancestral property, even causing the death of eleven children, alongside the fact that they could not live up to their own culture, their religion, their own language, and thus depriving them of their cultural identity (paras 2, 201, 203, 260, 261 and 263).
85.
Ibidem, paras 213 and 263.
86.
On this issue, see Gómez 2010, pp. 139 and following.
87.
“Mapiripán Massacre”, supra n. 25, paras 154 and 156.
88.
With regard to this, see García Ramírez 2010, pp. 87–91.
89.
IACtHR: “Street Children” (Villagrán-Morales et al.) v. Guatemala, Judgment (26 May 2001), paras 79, 81, 84, 88–90; “Juvenile Reeducation Institute”, supra n. 25, paras 274, 288, 289, 300–304; Gómez-Paquiyauri Brothers, supra n. 35, paras 206 and 216; Bulacio, supra n. 35, paras 84, 85, 98 and 104; Servellón-García et al., supra n. 44, paras 174, 176, 180 and 185 among others.
90.
IACtHR: Aloeboetoe et al. v. Suriname, Judgment (10 September 1993), paras 100–101.
91.
“Juvenile Reeducation Institute”, supra n. 25, para 319.
92.
Yakye Axa Indigenous Community, supra n. 48, para 221.
93.
Aloeboetoe et al., supra n. 91, para 96.
94.
Servellón-García et al., supra n. 44, paras 201–202.
95.
“Juvenile Reeducation Institute”, supra n. 25, paras 316–317.
96.
Girls Yean and Bosico, supra n. 34, paras 236–251.
97.
“Street Children” (19 November 1999), supra n. 19, paras 196–197; Gómez-Paquiyauri Brothers, supra n. 35, para 76; Servellón-García et al. supra n. 44, paras 125, 154.
98.
Serrano-Cruz Sisters, supra n. 56, paras 183–191.
99.
Bulacio, supra n. 35, para 136; Servellón-García et al., supra n. 44, para 200; Girls Yean and Bosico, supra n. 34, para 242.
100.
“Street Children” (26 May 2001), supra n. 90, para 103; Servellón-García et al., supra n. 44, para 199, etc.
101.
Serrano-Cruz Sisters, supra n. 56, para 196.

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Senior Professor in Public International Law and Director, International Studies Institute (IDEI), Pontificia Universidad Catolica del Peru, Lima, Peru
Fabián Novak

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, Dipartimento di diritto pubblico, University of Milan - Statale University, Via Festa del Perdono 7, Milan, 20122, Italy
Nerina Boschiero
Bicocca University, Dipartimento giuridico, University of Milan, Piazza dell’Ateneo Nuovo 1, Milan, 20126, Italy
Tullio Scovazzi
, Dipartimento di Diritto,, University of Parma, Via Università 12, Parma, 43121, Italy
Cesare Pitea
, Dipartimento di diritto pubblico, University of Milan - Statale University, Via Festa del Perdono 7, Milan, 20122, Italy
Chiara Ragni

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Novak, F. (2013). The Inter-American Court of Human Rights and Its Contribution to the Protection of Children’s Rights. In: Boschiero, N., Scovazzi, T., Pitea, C., Ragni, C. (eds) International Courts and the Development of International Law. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-894-1_38

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DOI: https://doi.org/10.1007/978-90-6704-894-1_38
Published: 14 March 2013
Publisher Name: T.M.C. Asser Press, The Hague, The Netherlands
Print ISBN: 978-90-6704-893-4
Online ISBN: 978-90-6704-894-1
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)

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