Abstract
This chapter examines how the Convention on the Rights of the Child (CRC) has been used as a litigation tool before the Inter-American System of Protection of Human Rights. First, it argues that the CRC is used as a tool of litigation at the substantial level when construing the obligations of States Parties by the Inter-American Court of Human Rights in individual complaints under the American Convention on Human Rights. Secondly, the chapter examines the way in which the CRC is also effectively used at a procedural level. It is submitted that far from departing from traditional interpretative rules under Public International Law, the Inter-American Court’s approach is, on the contrary, in accordance with the basic tools of treaty interpretation as enshrined in the Vienna Convention on the Law of Treaties. It is submitted that this is in agreement with keeping the unity of international law.
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Notes
- 1.
Basic Documents of the Inter-American Court of Human Rights San José, Secretariat of the Inter-American Court of Human Rights San Jose, Costa Rica, 2003, p. 59. Recently, however, the State of Venezuela took the step of denouncing the American Convention, the withdrawal taking effect since September 10, 2013.
- 2.
For a thorough review of the jurisprudence on the Rights of the Child before the Inter-American Court see Feria-Tinta (2008).
- 3.
Organization of American States (OAS) data. Press Release E-345/13, ‘OAS Assistant Secretary General Calls on Member States to Invest more in Children’, 16 September 2013.
- 4.
The American Declaration of the Rights and Duties of Man contains a number of provisions particularly relevant for children rights inter alia, Article VI (Right to a family and to protection thereof), Article VII (Right to protection for mothers and children), Article XII (Right to education).
- 5.
Article 33 of the American Convention on Human Rights establishes both the Commission and the Court as the competent organs with respect to matters relating to the fulfilment of the commitments made by the State parties to the Convention. See also Article 41 f, 44, 46–47, 48–51, and 61 of the American Convention.
- 6.
Article 62.1 of the American Convention. The following countries have accepted the jurisdiction of the Court: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Suriname, and Uruguay. (Venezuela and Trinidad and Tobago had given jurisdiction to the Court but subsequently denounced the Convention.)
- 7.
Article 61 of the American Convention.
- 8.
The Court introduced such changes originally, in its Rules of Procedure of 2000, which entered into force on 1 June 2001.
- 9.
See article 40 of the Court’s current Rules of Procedure approved in November 2009.
- 10.
Int-Am. Ct H.R. Case of the Gómez Paquiyauri Brothers vs Peru, Series C: Decisions and Judgments No. 110, Judgment of July 8, 2004. Separate Opinion (Voto Razonado) of Judge A.A. Cancado Trindade, para. 32.
- 11.
See, for example, Inter-American Commission on Human Rights, Report No. 81/10 Case 12.562, Wayne smith, Hugo Armendariz, et al. United States, July 12, 2010, (a case of deportation from the United States). The case was brought under articles I (right to life, liberty and personal security), V (right to private and family life), VI (right to family), VII (right to protection for mothers and children), IX (right to inviolability of the home), XVIII (right to fair trial) and XXVI (right to due process of law) of the American Declaration on the Rights and Duties of Man. In its report on the merits the Commission stated among other things: ‘[…] the IACHR particularly emphasizes that the best interest of minor child must be taken into consideration in a parent’s removal proceeding. Article VII of the American Declaration states, “all children have the right to special protection, care and aid.” As a component of this special protection afforded children, in the context of legal proceedings that may impact a child’s right to family life, ‘special protection’ requires that the proceedings duly consider the best interests of the child. (para. 56 of the Report)’. The Commission found the USA responsible for, inter alia, the violation of articles V, VI and VII of the American Declaration ‘for failing to hear the [claimant’s] humanitarian defense and duly consider their right to family and the best interest of their children on an individualized basis in their removal proceedings.’ (ibid. para. 60).
- 12.
On the doctrine of margin of appreciation see Harris et al. (2009): 11–14. As explained therein, ‘it means that the state is allowed a certain measure of discretion, subject to European supervision, when it takes legislative, administrative or judicial action in the area of a Convention right’ (p. 11).
- 13.
Int-Am. Ct H.R. Villagrán Morales et al. case, Series C: No 63. Judgment of November 19, 1999.
- 14.
Ibid., at para. 188.
- 15.
Int-Am. Ct H.R. The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law. Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16, para. 113 as cited in Villagrán Morales et al. case, Series C: No. 63., Judgment of November 19, 1999 at para. 192.
- 16.
Villagrán Morales et al. case, ibid., at para. 193.
- 17.
The Right to Information on Consular Assistance, para. 114, as cited in Villagrán Morales et al. case, ibid at para. 193.
- 18.
The Articles read:
ARTICLE 2
-
1.
States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
-
2.
States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.
ARTICLE 3
[…]
-
2.
States Parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
ARTICLE 6
-
1.
States Parties recognize that every child has the inherent right to life.
-
2.
States Parties shall ensure to the maximum extent possible the survival and development of the child.
ARTICLE 20
-
1.
A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
-
2.
States Parties shall in accordance with their national laws ensure alternative care for such a child.
[…]
ARTICLE 27
-
1.
States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.
[…]
-
3.
States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programs, particularly with regard to nutrition, clothing and housing.
ARTICLE 37
States Parties shall ensure that:
-
(a)
No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below 18 years of age;
-
(b)
No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
-
(c)
Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
-
(d)
Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
-
1.
- 19.
Villagrán Morales et al. case, op cit, at para.196.
- 20.
Ibid.
- 21.
Ibid, citing the United Nations Minimum rules for the administration of justice for minors (‘Beijing Rules’). Adopted by the General Assembly of the United Nations in its resolution 40/33, of 29 November 1985, Fifth Part, Treatment in prison establishments, para. 26.1.
- 22.
Gomez Paquiyauri Brothers case, supra note 11, at para. 166 reiterating the same principle reflected in Street Children case, para. 194; Int-Am. Ct. H.R., Juridical Status and Human Rights of the Child, Advisory Opinion OC-17/02, August 28, 2002, Series A No. 17, para. 37 and 53; Int-Am. Ct. H.R. Case of the Juvenile Reeducation Institute. Series C No. 112, Judgment of September 2, 2004 at para. 148.
- 23.
IACHR, ‘The Rights of the child in the Inter-American Human Rights System’, OEA/SER.L/V/II.133 Doc 34, 29 October 2008, para. 53.
- 24.
IACHR, “Report on Corporal Punishment and Human Rights of Children and Adolescents”, OEA/Ser.L/V/II.135, Doc 14, 5 August 2009, at para. 21.
- 25.
Villagrán Morales et al. case, at para. 192.
- 26.
IACHR, Report No. 41/99, Case 11.491, Minors in Detention, Honduras, March 10, 1999, paragraph 72. The Inter-American Commission on Human Rights pointed out therein in that sense:
72. For an interpretation of a State's obligations vis-a-vis minors, in addition to the provision of the American Convention, the Commission considers it important to refer to other international instruments that contain even more specific rules regarding the protection of children. Those instruments include the Convention on the Rights of the Child and the various United Nations declarations on the subject. This combination of the regional and universal human rights systems for purposes of interpreting the Convention is based on Article 29 of the American Convention and on the consistent practice of the Court and of the Commission in this sphere. (Emphasis added).
- 27.
Int-Am. Ct H.R., Advisory Opinion OC-16/99, Series A. No 16, The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, October 1, 1999, para. 115.
- 28.
For example, the Court referred to articles 13, 15 and 16 of the said Protocol in its interpretation of article 19 in its Advisory Opinion on the Juridical Condition and Human Rights of the Child, Series A: No 17; Advisory Opinion OC-17/2002 of August 28, 2002, Requested by the Inter-American Commission On Human Rights.
- 29.
Int-Am. Ct. H.R., Case of the Massacre of Mapiripán vs Colombia, Series C: Decisions and Judgments No 134, Judgment of September 15, 2005.
- 30.
Case of the Massacre of Mapiripán at para. 148 d) and e). Translation by Barry Cheetham and revised by the author.
- 31.
Ibid at para. 151.
- 32.
Ibid at para. 152 citing Int-Am. Ct. H.R. Series C No 112; Case of the Juvenile Reeducation Institute v Paraguay (‘Case of the Children’s Rehabilitation v Paraguay’), Judgment of September 2, 2004 at para. 147; Case of the Gómez Paquiyauri Brothers supra note 11 at para. 164; and Int-Am. Ct. H.R. Series A: No 17; Advisory Opinion on the Juridical Condition and Human Rights of the Child, Advisory Opinion OC-17/2002 of August 28, 2002 at para. 54.
- 33.
Whereas Article 6 and 37 of the CRC refers to the right to life and freedom from torture, Article 38 and 39 provide:
Article 38
-
1.
States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.
-
2.
States Parties shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities.
-
3.
States Parties shall refrain from recruiting any person who has not attained the age of 15 years into their armed forces. In recruiting among those persons who have attained the age of 15 years but who have not attained the age of 18 years, States Parties shall endeavour to give priority to those who are oldest.
-
4.
In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.
Article 39
States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.
-
1.
- 34.
Cfr. Observaciones finales del Comité de los Derechos del Niño: Colombia, 16/10/2000, CRC/C/15/Add.137, 25º periodo de sesiones, Comité de los Derechos del Niño, párr. 10.
- 35.
Cfr. Observaciones finales del Comité de los Derechos del Niño: Colombia, 16/10/2000, párr. 34.
- 36.
Cfr. Informe del Representante Especial del Secretario General encargado de la cuestión de los niños en los conflictos armados. Doc. de la Asamblea General de Naciones Unidas A/54/430 de 1 de octubre de 1999, párr. 25.
- 37.
Case of the Massacre of Mapiripán at paras. 156 and 157. Free translation by Barry Cheetham and the author.
- 38.
Cfr. declaración jurada rendida por el testigo Gustavo Caicedo Contreras el 16 de febrero del 2005 (expediente sobre declaraciones rendidas o autenticadas ante fedatario público, folio 4566).
- 39.
Cfr. declaración jurada rendida por el testigo Gustavo Caicedo Contreras el 16 de febrero del 2005 (expediente sobre declaraciones rendidas o autenticadas ante fedatario público, folio 4567).
- 40.
Cfr. declaración jurada rendida por la testigo Johanna Marina Valencia Sanmiguel el 16 de febrero del 2005 (expediente sobre declaraciones rendidas o autenticadas ante fedatario público, folio 4577).
- 41.
Cfr. Caso de los Hermanos Gómez Paquiyauri, párrs. 124 y 171, y Caso Bulacio, párr. 138.
- 42.
Case of the Massacre of Mapiripán at paras. 159–162. Free translation by Barry Cheetham.
- 43.
Case of the Massacre of Mapiripán at para. 163.
- 44.
Int-Am. Ct. H.R., Case of Vargas Areco v. Paraguay, Series C: No 155, Judgment of September 26, 2006.
- 45.
Ibid., at para. 71.27 referring to the UN, Committee on the Rights of the Child, survey of the reports submitted by States pursuant to Article 44 of the Convention on the Rights of the Child. Paraguay Report. CRC/C/65/Add.12, of March 15, 2001.
- 46.
UN, Concluding Observations of the Committee on the Rights of the Child: Paraguay, June 18, 1997, CRC/C/15/Add.75, para. 17 and 36.
- 47.
UN, Concluding Observations of the Committee on the Rights of the Child: Paraguay, November 06, 2001, CRC/C/15/Add.166, para. 46(a).
- 48.
Vargas Areco case, supra note 45, at para. 133.
- 49.
Ibid., at para. 134.
- 50.
Article 63.1 of the American Convention states: ‘If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.’
- 51.
As it was in the Gómez Paquiyauri Brothers case, where Rafael Gómez Paquiyauri (17) had left a pregnant girlfriend whose child could not take the name of her father since he was no longer there to recognise her as his child. The child, through her mother, requested before the Court, that as a way of restitution, the State should facilitate the registration of the name of the minor with the paternity of Rafael Gómez Paquiyauri acknowledged.
- 52.
See for example Int-Am. Ct H.R., Molina Theissen vs Guatemala case, Reparations, Judgment of July 3, 2004, Series C: No 108, Operative paragraph 7 at para. 106. The Court ordered the State of Guatemala to create an expeditious mechanism to obtain the declaration of absence and presumption of death for cases of enforced disappearances.
- 53.
See Int-Am. Ct H. R., Series C: Decisions and Judgments No 100; Case of Bulacio v Argentina, Judgment of September 18, 2003, operative paragraph 13 at page 61 and ‘Gómez Paquiyauri Brothers’ case para. 248.
- 54.
This refers to entire changes in legal systems to bring State practice into compliance with the American Convention’s standards such as in the case of Juvenile Reeducation Institute” v Paraguay (‘Instituto del Menor Panchito López’) case. See also Operative paragraph 5 in the Bulacio case, ordering Argentina to adjust its domestic legal system to comply with international human rights provisions and make them fully effective.
- 55.
See the Villagrán Morales et al. case, Reparations, 26 May 2001 at para. 103; Case of Molina Theissen vs Guatemala, Reparations, July 3 2004, Operative paragraph 6 at para. 106 and the ‘Gómez Paquiyauri Brothers’ case, at para. 236.
- 56.
See Int-Am. Ct H.R., Case Servellón García and Others vs. Honduras, Series C No 152, Judgment of 21 September 2006 at para. 199, in which the Court ordered Honduras to name a square or a street in Tegucigalpa in memory of the victims, two of whom were children. See also the Vargas Areco vs Paraguay case where the Court ordered Paraguay to put a plaque in the community where Gerardo Vargas Areco, a child soldier, had lived, to keep his memory alive. Case Vargas Areco vs Paraguay, supra note 45 at para. 158.
- 57.
See Operative paragraph 8 at para. 106 in the Molina Theissen vs Guatemala Case, Reparations, July 3 2004 and Operative paragraph 7 at page 106 in the Serrano Cruz Sisters case; Int-Am Ct. H.R. Series C: No 120, Case of Serrano Cruz Sisters vs. el Salvador, Judgment of March 1, 2005.
- 58.
See, in that sense, the remarks of Judge Cançado Trindade in his Separate Opinion in the Bulacio case, at para. 27–40.
- 59.
Ibid., at para. 26.
- 60.
Ibid., at para. 30.
- 61.
See Juridical Status and Human Rights of the Child, Advisory Opinion OC-17/02, supra note 23, at para. 25.
References
Feria-Tinta, M. (2008). The landmark rulings of the inter-American court of human rights. Leiden: Martinus Nijhoff Publishers.
Harris, D. J., O’Boyle, M., Bates, E. P., & Buckley, C. M. (2009). Harris, O’Boyle & Warbrick: Law of the European convention on human rights. Oxford: Oxford University Press.
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Feria-Tinta, M. (2015). The CRC as a Litigation Tool Before the Inter-American System of Protection of Human Rights. In: Liefaard, T., Doek, J. (eds) Litigating the Rights of the Child. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9445-9_14
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