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Summary: Speech delivered at the hearing at the Inter-American Commission on Human Rights on corporal punishment, organised by Save the Children Sweden and the Andean Commission of Jurists, in Washington DC, on 20 October 2005.
Inter-American Commission on Human Rights Presentation PN It’s my task to outline briefly the relevant international and European human rights standards and global progress towards realising children’s right to respect for their physical integrity and human dignity and to equal protection under the law. These are detailed in our submission. While the Universal Declaration and the two International Covenants guarantee these rights for "everyone", it is the adoption and almost universal ratification of the Convention on the Rights of the Child which has underlined that children are people and rights holders too. The Committee on the Rights of the Child, treaty body for the Convention, realised when it started to examine States’ reports in 1993, that the almost universal legality and social approval of corporal punishment of children plainly conflicted with the principle of respect for the dignity of every individual, the foundation of international human rights law, and that it also conflicted with specific articles in the Convention. From early on, the Committee was convinced that it is not possible to draw lines and try to define acceptable or "reasonable" forms of violence against children, nor to try to justify violence as "discipline", any more than it would be for women or for elderly people. The Committee has therefore been consistent in its interpretation of the Convention. It has recommended prohibition of all corporal punishment, in the family and other settings, to 130 states in all regions. It has confirmed its interpretation in other statements, including in its first General Comment on "The aims of education" in 2001; also in recommendations issued following two days of "General Discussion" on violence against children. After the 2001 Discussion, on violence in families and schools, the Committee proposed that states should – I quote - "enact or repeal, as a matter of urgency, their legislation in order to prohibit all forms of violence, however light, within the family and in schools, including as a form of discipline, as required by the provisions of the Convention…" Other UN human rights treaty bodies, in their examination of reports, have also recommended, although not so consistently, that states should prohibit all corporal punishment, including in the family. For the moment, there has been most progress towards explicit prohibition of all corporal punishment of children in Europe. Since 1978, a series of judgments of the European Court of Human Rights, all against the UK, have condemned first penal corporal punishment of juveniles; then school corporal punishment including in private schools, and most recently corporal punishment in the family – a 1998 judgment "A. v UK". It is not easy for children to bring cases to challenge violent punishment, especially when their parents are the perpetrators. But in this case, the application was made by a nine year old boy who had been beaten severely with a cane by his stepfather. The stepfather was prosecuted in an English court, used the ancient English common law defence of "reasonable chastisement" and was acquitted. The European Court found that the punishment breached the boy’s right to protection from degrading punishment, and that the UK was responsible because its law allowing "reasonable chastisement" did not provide "adequate protection" including "effective deterrence". The European Court has not, as yet, condemned all corporal punishment. The Court limits judgments to the particular circumstances of the case, and A v UK involved a severe beating, causing injury. But the Court interprets the European Convention as a "living instrument" and it has more recently asserted that the Convention on the Rights of the Child provides the detailed human rights standards for children which states must respect. In other decisions, the Court has indicated that prohibition of all corporal punishment, in the family and in schools, is a reasonable measure to take and does not conflict with any "family" rights or freedom of religion. Most recently, another Council of Europe human rights mechanism, the European Committee of Social Rights, which monitors states’ compliance with the European Social Charter and Revised Social Charter, has issued a general observation echoing the Committee on the Rights of the Child and asserting that compliance with the Charters requires prohibition of all corporal punishment and any other form of degrading punishment or treatment of children, in the family and elsewhere. It highlights the need for equal protection for children – I quote: "The Committee does not find it acceptable that a society which prohibits any form of physical violence between adults would accept that adults should subject children to physical violence." Since 2003, the Committee has concluded after examining reports that 13 states are not in compliance because they have not prohibited all corporal punishment in the family. In response to a series of "collective complaints" under the Charters, taken by the World Organisation Against Torture, in May this year the Committee concluded that Belgium, Greece and Ireland are not in conformity with the Charters because their laws do not effectively prohibit corporal punishment in the family. Greece has already announced that it will reform its law to comply. 14 of the 46 member states of the Council of Europe have explicitly prohibited all corporal punishment, and in two others (Italy and Portugal) there are Supreme Court decisions confirming that no form of corporal punishment is lawful. At least six other countries, including Greece, under pressure from the human rights mechanisms, have committed themselves to prohibition. Children have had to wait a long time for confirmation of their equal human right to legal and other protection from being hit, hurt and humiliated by their parents and carers. But now that the issue has gained visibility, there is growing progress. We hope the Inter-American Commission will help to speed reform on this issue, which is of such fundamental and symbolic importance to children’s status as rights holders, as well as to their protection.