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Summary: Published by Save the Children and the Global Initiative to End All Corporal Punishment of Children.
[30 March 2009] - The Inter-American Court of Human Rights has confirmed the human rights obligations of Member States of the Organization of American States (OAS) to prohibit and eliminate all corporal punishment of children. In December 2008 the Inter-American Commission on Human Rights formally asked the Inter-American Court of Human Rights to issue an advisory opinion on whether corporal punishment of children is compatible with various articles in the American Convention on Human Rights and the American Declaration of Human Rights and Duties. Referring to articles 1 (non-discrimination), 2 (obligation to adapt domestic law to the American Convention), 5 (right to humane treatment) and 19 (rights of the child) of the American Convention and article VII (right to protection for mothers and children) of the American Declaration, the Commission asked the Court whether these provisions, in light of the best interests of the child, oblige OAS Member States (1) to “regulate paternal authority and protection in such a way as to protect children against all forms of corporal punishment”; and (2) to “adopt legislative and other measures for the purpose of ensuring that children are not subjected to corporal punishment as a method of discipline within the family, at school or in institutions”. The basis for the Commission’s petition was, firstly, that there is no standard in the Inter-American context which clearly states that corporal punishment should be prohibited because it is incompatible with respect for human rights and, secondly, that corporal punishment is widely practised and in most states is lawful, and although nearly all states have ratified the Convention on the Rights of the Child, very few have adapted their national laws in line with the Convention. The Commission argued that a statement by the Court on the issue would have a positive influence on elimination and prohibition of corporal punishment through legislative and other reforms in the states concerned. In its response to the request, the Court makes it clear that there is no need to issue an advisory opinion on this matter because the questions can be answered with reference to the existing jurisprudence of the Court, “as well as from the obligations issued by other international instruments ratified by the States in the region”. The Court refers to the Convention on the Rights of the Child, and notes that the obligation of states to respect the responsibilities, rights and duties of parents is subject to “the duty to establish the best interests of the child as the fundamental elements of his or her upbringing and development, whether this be in the hands of the child’s parents or legal guardians”. The Court also refers to the rights of the child to respect for their human dignity with regard to school discipline (article 28 of the Convention) and to protection from all forms of violence (article 19) and from torture or other cruel, inhuman or degrading treatment or punishment (article 37). With reference to General Comment No. 8 adopted by the Committee on the Rights of the Child, the Court draws particular attention to the definitions of “corporal punishment” and “other cruel or degrading forms of punishment”, their incompatibility with the Convention on the Rights of the Child in the home and family as in any other environment, and the standards set by the Committee for protecting children against corporal punishment which include legislative, educational, monitoring and evaluation measures. The Court stresses the Committee’s view that “eliminating the violence and humiliating punishment of children is an immediate and unqualified obligation of the States Parties”. The Court also highlights its own jurisprudence which has emphasised, for example, that children “have rights and are not just an object of protection”, that they have the same rights as all human beings, that the State must protect these rights in the private as well as the public sphere, and that this requires legislative as well as other measures. The protection of children against corporal punishment begins with the adoption of a legal provision banning the use of corporal punishment, but its effective implementation compels the state to ensure appropriate mechanisms, programs and policies to support families in learning and using positive discipline to upbringing their children. Only in this manner can a state ensure less violent societies that respect human rights. The full text of the Court’s decision is available in English (unofficial translation) and Spanish. General Comment No. 8 adopted by the Committee on the Rights of the Child is available in English, Spanish and French. See also the IACHR press release in English and in Spanish. Further information