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Summary: Extract from the Inter-American Court of Human Rights Advisory Opinion OC-17/2002 of August 28, 2002, Requested by the Inter-American Commission on Human Rights.
Extracts:
Positive obligations to provide protection
87. This Court has repeatedly established, through analysis of the general provision set forth in Article 1(1) of the American Convention, that the State is under the obligation to respect the rights and liberties recognized therein and to organize public authorities to ensure persons under its jurisdiction free and full exercise of human rights. According to legal standards regarding international responsibility of the State that are applicable to International Human Rights Law, actions or omissions by any public authority, of any branch of government, are imputable to the State which incurs responsibility under the terms set forth in the American Convention. This general obligation requires the States Parties to guarantee the exercise and enjoyment of rights by individuals with respect to the power of the State, and also with respect to actions by private third parties. By the same token, and for the purposes of this Advisory Opinion, the States Party to the American Convention are under the obligation, pursuant to Articles 19 (Rights of the Child) and 17 (Rights of the Family), in combination with Article 1(1) of this Convention, to adopt all positive measures required to ensure protection of children against mistreatment, whether in their relations with public authorities, or in relations among individuals or with non-governmental entities.
88. Likewise, according to the provisions set forth in the Convention on the Rights of the Child, children’s rights require that the State not only abstain from unduly interfering in the child’s private or family relations, but also that, according to the circumstances, it take positive steps to ensure exercise and full enjoyment of those rights. This requires, among others, economic, social and cultural measures (see General Comment 17). In its first general comment, the Committee on the Rights of the Child specifically emphasized the major importance of the right to education. Accordingly, it is mainly through education that the vulnerability of children is gradually overcome. The State, given its responsibility for the common weal, must likewise safeguard the prevailing role of the family in protection of the child; and it must also provide assistance to the family by public authorities, by dopting measures that promote family unity.
89. It should be highlighted that the Committee on the Rights of the Child paid special attention to violence against children both within the family and at school. It pointed out that "the Convention on the Rights of the Child sets high standards for protection of children against violence, particularly in Articles 19 and 28, as well as in Articles 29, 34, 37, and 40, and others, [...] taking into account the general principles contained in Articles 2, 3 and 12."
90. The European Court, referring to Articles 19 and 37 of the Convention on the Rights of the Child, has recognized the right of the child to be protected against interference by actors other than the State, such as mistreatment by one of the parents; it has also recognized that if children are not cared for by their parents and their basic social needs are not satisfied, the State has the duty to intervene to protect them.
91. In conclusion, the State has the duty to adopt positive measures to fully ensure effective exercise of the rights of the child.
The full text is available here.
Background information on the Inter-American Commission on Human Rights.