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international human rights law review
9 (2020) 1-26
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The Interpretation of the American Convention on

Human Rights through the Prism of the United
Nations Convention on the Rights of the Child
A Reality, A Promise, A Possibility, or A Problem?
Francesco Seatzu*
Full Professor of International and European Law, University of Cagliari,
Cagliari, Italy
fseatzu@unica.it
Abstract
This article considers the Inter American Court of Human Rights (IACtHR)’s and Inter-
American Commission on Human Rights (iachr)’s approach to interpreting and ap-
plying the American Convention on Human Rights (achr) provisions through the
prism of the United Nations Convention on the Rights of the Child (crc) and ascer-
tains the features of each convention that supports this approach. It concentrates on
the IACtHR’s and iachr’s development and implementation of the principle of the
best interest of the child, and on two specific areas of the IACtHR’s and iachr’s juris-
prudence on children’s rights – children’s migration and trafficking of children – and
concludes with some suggestions as to how this approach might be improved further
in a manner that gives wider scope for the promotion of children’s rights and freedoms
in the achr contracting states.
Keywords
American Convention on Human Rights (achr) – United Nations Convention on the

Rights of the Child (crc) – Human Rights; interpretation; Latin America – child
participation – childhood – judicial protection – children’s migration – trafficking of
children
* JD (Cagliari); PhD (Nottingham).
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1 Introductory Remarks
The American Convention on Human Rights (achr) has always been an effec-
tive tool for protecting fundamental rights and freedoms in the Americas.1
Now, following the affirmation of the doctrine of conventionality control in
the majority of the States parties to the American Convention on Human
Rights,2 including, most recently in Brazil,3 and also the openness towards in-
ternational law in some recent Latin American Constitutions like the Colom-
bian (1991), Peruvian (1993) and Venezuelan (1999) ones facilitating the inte-
gration and implementation of human rights treaties in domestic legal orders4
its potential to influence policy and law may be achieved both at regional as
well as the domestic level.5
1 See Anja Seibert-Fohr, Prosecuting Serious Human Rights Violations (Oxford: oup, 2009),
p. 52, who stresses that under the Inter-American human rights system, there is a growing
trend to require punishment for human rights violations. See also Par Engstrom, The Inter-
American Human Rights System: impact beyond compliance (Amsterdam, Springer, 2019) 15 ff;
Cecilia Medina Quiroga, The American Convention on Human Rights (Antwerp, Intersentia,
2016) 63 ff; Lea Shaver, ‘The Inter-American Human Rights System: An Effective Institution
for Regional Rights Protection?’ (2010) 9 Washington University Global Studies Law Review
639 ff.
2 On this doctrine, see e.g. Pablo González-Domínguez, The Doctrine of Conventionality Con-
trol (Antwerp, Intersentia, 2018) 117 ff, who qualifies the doctrine of conventionality control
as one of the Inter-American Court’ s most recent efforts to increase the influence and
effectiveness of the different sources of law in the Inter-American System at the domestic
level. See also Ariel E. Dulitzky, ‘An Alternative Approach to the Conventionality Control
Doctrine’ (2015) 109 ajil Unbound <https://www.cambridge.org/core/journals/american-
journal-of-international-law/article/an-alternative-approach-to-the-conventionality-
control-doctrine/5317C7F62B4727B38631A0B446875146> accessed 13 January 2020; Eduardo
Ferrer Mac-Gregor, ‘Conventionality Control: The New Doctrine of the Inter-American
Court of Human Rights’ (2015) 93 ajil Unbound <https://www.cambridge.org/core/journals/
american-journal-of-international-law/article/conventionality-control-the-new-doctrine-
of-the-interamerican-court-of-human-rights/CC71A5517CAF78AA4F73FECEC1A041EC>
accessed 13 January 2020.
3 See André de Carvalho Ramos, ‘Control of Conventionality and the struggle to achieve a de-
finitive interpretation of human rights: the Brazilian experience’ (2016) 64 Revista del Insti-
tuto Interamericano de Derechos Humanos (iidh) and p. 11 ff; Cecilia M. Bailliet, ‘The strategic
prudence of The Inter-American Court of Human Rights: rejection of requests for an advi-
sory opinion’ (2018) 15 Brasilian Journal of International Law 255 ff.
4 Venice Commission, ‘Draft Report on the Implementation of International Human Rights
Treaties in Domestic Law and the Role of Courts’ <https://www.venice.coe.int/webforms/
documents/default.aspx?pdffile=CDL(2014)046-e> accessed 20 February 2020. See also Allan
R. Brewer-Carías, Constitutional Protection of Human Rights in Latin America: A Comparative
Study of Amparo Proceedings (Cambridge, cup, 2009) 16 ff.
5 Amplius, see Mariela Morales Antoniazzi, Pablo Saavedra Alessandri, ‘Inter-Americanization:
Its Legal Bases and Political Impact’, in Armin von Bogdandy, Eduardo Ferrer Mac-Gregor,
Mariela Morales Antoniazzi, Flávia Piovesan (eds.), Transformative Constitutionalism in Latin
international human rights law review 9 (2020) 1-26

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The Interpretation of the American Convention on Human Rights 3
The achr’s scope for implementing and defending the rights of children is
not directly clear and evident. Surprisingly, this is notwithstanding the achr is
a comprehensive human rights instrument where all of its articles and provi-
sions apply to youth and children,6 and notwithstanding also the fact that the
achr, unlike the European Convention on Human Rights (echr) and its Ad-
ditional Protocols and unlike also the African Charter on Human and Peoples’
Rights (‘African Charter’), contains an ad hoc provision dealing with the rights
of children (Article 19)7 together with several other provisions that make spe-
cific references to children such as the provisions that deal with children in
conflict with the law (Article 5) and with the children born out of wedlock
(Article 17).8 Strong evidence of the above-mentioned claim lies in that the
achr fails to define, even in principle, who a child or minor is, in so leaving
uncertainty on the interpretation and application of these articles and provi-
sions, and, in particular, of Article 19.9
But this is not all. To further support the above-mentioned claim, one can
also recall that there is no separate convention or declaration on the rights of
children within the Inter-American human rights system, such as there is for
America: The Emergence of a New Ius Commune (Oxford, oup, 2017) 276, also stressing that:
‘the IACtHR have proven to be powerful actors of change’. See also Christina M. Cerna, ‘Inter-
national Law and the Protection of Human Rights in the Inter-American System’ (1997) 19
Hous. J. Int’L., 731, 741–743; Augusto Cançado Trinidade and Antônio, ‘Reflexiones sobre el
futuro del sistema interamericano de protección de los derechos humanos’, in Juan E. Mén-
dez and Francisco Cox (eds.), El futuro del sistema interamericana de protección de los derechos
humanos (San José, 1998) 575 ff.
6 ACtHR, Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of Au-
gust 28, 2002. Series A No. 17, para. 54, stressing that children ‘have the same rights as all hu-
man beings’. See also James L. Cavallaro, Claret Vargas, Caroline Bettinger-Lopez, Doctrine,
Practice, and Advocacy in the Inter-American Human Rights System (Oxford, oup, 2019) 595 ff.
7 Article 19 of the American Convention establishes that ‘every minor child has the right to the
measures of protection required by his condition as a minor on the part of his family, society,
and the state’. Similarly, Article vii of the American Declaration on Human Rights (adhr)
recognizes that ‘All women, during pregnancy and during the nursing period, and all children
have the right to special protection, care and aid’.
8 See e.g. Israel de Jesu ś Butler, ‘The Rights of the Child in the Case Law of the Inter-American
Court of Human Rights: Recent Cases’ (2005) 5 Human Rights Law Review and p. 151 ff. See
also Eva Rieter, Preventing Irreparable Harm: Provisional Measures in International Human
Rights Adjudication (Antwerp, Intersentia, 2010) 358 ff.
9 But see the ACtHR’s Advisory Opinion OC-17/02 of August 28, 2002 on the Legal Status of the
Human Rights of the Child that, at its Section V, indicates that the term child: ‘ … covers boys,
girls, and adolescents’ (I/A Court H.R., Juridical Condition and Human Rights of the Child.
Advisory Opinion OC-17/02 of August 28, 2002. Series A No. 17, para. 42). Accordingly, see I/A
Court H.R., The ‘Street Children’ Case (Villagrán Morales et al.), Judgment of November 19,
1999. Series C No. 63, para. 188, stating that application of Article 19 is restricted to victims
under 18 years of age. See also I/A Court H. R., Case of Bulacio, Judgment of September 18,
2003. Series C No. 100, para 133.
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4 Seatzu
women in the Inter-American Convention on the Prevention, Punishment and

Eradication of Violence Against Women,10 the so called Belèm do Pará
Convention,11 for persons deprived of liberty in the Principles and Best Prac-
tices on the Protection of Persons Deprived of Liberty in the Americas,12 and
for elderly persons in the Inter-American Convention on Protecting the Hu-
man Rights of Older Persons (iachrop).13
10 Organization of American States (oas), Inter-American Convention on the Prevention,

Punishment and Eradication of Violence against Women (“Convention of Belem do
Para”), 9 June 1994, available at: <https://www.refworld.org/docid/3ae6b38b1c.html>
[accessed 29 August 2019]. On the topic, see e.g. Meredith Kimelblatt, ‘Reducing Harmful
Effects of Machismo Culture on Latin American Domestic Violence Laws: Amending the
Convention of Belém Do Pará to Resemble the Istanbul Convention’ (2016) 49 The George
Washington International Law Review 405 ff; Sandra Lando, ‘La perspective de genre dans
la jurisprudence interaméricaine en application de la Convention Belém do Pará’ (2015)
28 Revue québécoise de droit international 81–111; María Alejandra Cárdenas Cerón, Nicolás
Ernesto Lozada Pimiento, ‘Estrategias de litigio de la convención de Belém do Pará ante la
Corte Interamericana de Derechos Humanos’ (2019) 1 Apuntes sobre el Sistema Interameri-
cano 83 ff. See also Victor Rodriguez Rescia, Mark Seittles, ‘The Development of the Inter-
American Human Rights System: A Historical Perspective and Modern–day Critique’
(2000) 16 New York Law School Journal of Human Rights 593, 604.
11 Amplius, see Ann-Charlotte Nilsson, Children and Youth in Armed Conflict (Leiden, Bos-
ton: Martinus Nijhoof Publishers, 2013) 371 ff, who also stresses that there is no separate
convention or declaration on the rights of children within the Inter-American human
rights system, such as there is for women in the Inter-American Convention on the Pre-
vention, Punishment and Eradication of Violence Against Women, the so called Belèm do
Pará Convention which was adopted in 1994.
12 Inter-American Commission on Human Rights (iachr), Resolution 1/08, Principles and
Best Practices on the Protection of Persons Deprived of Liberty in the Americas, 13 March
2008, No. 1/08 <https://www.refworld.org/docid/48732afa2.html> accessed 23 February
2020.
13 Organization of American States (oas), The Americas becomes first region in the world
to have an instrument for the promotion and protection of the rights of older persons
<http://www.oas. org/en/media_center/press_release.asp?sCodigo=E-198/15> accessed 23
February 2020. On the topic, see Aída Díaz-Tendero Bollain, ‘La Nueva Convención Intera-
mericana sobre la Protección de los Derechos Humanos de las Personas Mayores’ (2016)
16 Donostiako Giza Eskubideei buruzko Ikastaroen Urtekaria Bilduma: Anuario de los cur-
sos de derechos humanos de Donostia-San Sebastián, pp. 27–55; Francesco Seatzu, ‘Sulla
convenzione dell’organizzazione degli stati americani sui diritti delle persone anziane =
Sobre la Convención Interamericana sobre los derechos de las personas mayores = On the
Inter-American Convention on the Rights of Older Persons’ (2015) 31 Anuario español de
derecho international, p. 349 ff; Francisco Bariffi, Francesco Seatzu, ‘La convención de la
oea sobre los derechos de las personas mayores y la ratificación del modelo de toma de
decisiones con apoyos’ (2019) 3 Revista Latinoamericana en Discapacidad, Sociedad y
Derechos Humanos, <http://webcache.googleusercontent.com/search?q=cache:t0mFW0
nA0uwJ:redcdpd.net/revista/index.php/revista/article/download/141/71+&cd=12&hl=it&
ct=clnk&gl=it> accessed 23 March 2020.

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Nonetheless, the Inter-American Commission on Human Rights (iachr or

the Commission) and the Inter American Court of Human Rights (‘IACtHR’ or
the ‘Court’) have supplied a noteworthy contribution to the achr member
states in shaping and developing their protection policies and procedures in
the areas of homeless (street) children, judicial protection, the child’s private
and family relations, protection of children of indigenous peoples, in the area
of torture prevention and prohibition,14 and equally significantly, in the area of
precautionary measures to migrant children.15
They have done this, it is submitted, through an ample range of innovative
devices and methods of interpretation, including also often through the not
much commendable practice by the ACtHR to simple quote relevant portions
of the United Nations Convention on the rights of the child (‘crc’)16 as the
starting point of their subsequent analysis and reasoning.17
While it would be hard to argue that the iachr or the ACtHR have used a
consistent and proper pattern of reference to the crc (and to the UN Declara-
tion on the Rights of the Child of the 1959)18 in their practice on children’s
14 See iachr, ‘Fulfillment of Children’s Rights’, <https://violenceagainstchildren.un.org/

sites/violenceagainstchildren.un.org/files/regions/fulfillmentrights-children_0.pdf>
accessed 23 March 2020; Sonja C. Grover, The Torture of Children During Armed Conflicts
(Berlin, Heidelberg, Springer, 2014) 109–126.) and, most recently (See Mónica Feria Tinta,
The Landmark Rulings of the Inter-American Court of Human Rights on the Rights of the
Child (Leiden, Boston: Martinus Nijhoof Publishers, 2008) 452 ff; Ismene Zarifis, ‘Guate-
mala: Children’s Rights Case Wins Judgment at iachr’ (2001) 9 Human Rights Brief
<https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www
.google.it/&httpsredir=1&article=1436&context=hrbrief> accessed 23 February 2020. See
also Ludovic Hennebel, ‘The Inter-American Court of Human Rights: The Ambassador of
Universalism’ (2011) 13 Revue québécoise de droit international 57 ff.
15 On this issue, see Caitlin Behles, ‘iachr Grants Precautionary Measures to Migrant Chil-
dren Separated From Parents in U.S. (August 16, 2018)’ (2018) International Law in Brief
<https://www.asil.org/ILIB/iachr-grants-precautionary-measures-migrant-children-sep-
arated-parents-us-august-16-2018> accessed 23 March 2020.
16 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United
Nations, Treaty Series, vol. 1577, 3 <https://www.refworld.org/docid/3ae6b38f0.html> ac-
cessed 23 February 2020.
17 See Mónica Feria Tinta, ‘Deprivation of Life and Marginalisation: Trends in Children’s
Social Rights’, in Isaac de Paz González (ed.), The Social Rights Jurisprudence in the Inter-
American Court of Human Rights (Cheltenham, Edward Elgar Publishing, 2019), 92 ff; Is-
rael de Jesus Butler, The Rights of the Child in the Case Law of the Inter-American Court
of Human Rights cit., (n. 8), 167.
18 UN General Assembly, Declaration of the Rights of the Child, 20 November 1959,
A/RES/1386 (xiv) <https://www.refworld.org/docid/3ae6b38e3.html> accessed 23 Janu-
ary 2020. On the issue, see Walter H. Jr. Bennett, ‘A Critique of the Emerging Convention
on the Rights of the Child’ (1987) 20 Cornell International Law Journal <http://scholarship
.law.cornell.edu/cilj/vol20/iss1/1> accessed 23 February 2020, stressing that the D
eclaration

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6 Seatzu
rights and freedoms,19 this is not to deny that they had frequently referred to
crc provisions and articles in the children’s cases before them.20
This work considers the Court’s and Commission’s approach to interpreting
and applying the achr provisions through the prism of the crc and ascertains
the features of each convention that supports and encourages this approach. It
focuses on the Court’s and Commission’s elaboration and implementation of
the general principle of the best interest of the child, and on two specific areas
of the Court’s and Commission’s jurisprudence on children’s rights – children’s
migration and trafficking of children – and terminates with some suggestions
as to how this approach could be improved further in a manner that gives wid-
er scope for the defense and promotion of children’s rights and freedoms in the
achr member states.
2 The United Nations Convention on the Rights of the Child (crc):

An Overview
To understand and critically evaluate the use and future possible applications
of the crc by the iachr and ACtHR in their practice on children’s rights it is
useful to first elucidate its general philosophical orientation toward childhood.
The crc, the most ratified international treaty in the world, builds its human
rights approach on an understanding of children as individuals with rights
equal to but strongly different from adults.21 This approach, that might be
is devoted almost entirely to economic, social, and cultural interests as opposed to civil
and political rights.
19 See Mónica Feria Tinta, (n 17) 450 ff.
20 Amplius, see Flávia Piovesan, ‘Children’, in Christina Binder, Jane A. Hofbauer, Flávia Pio-
vesan (eds.), Social Rights in the Case Law of Regional Human Rights Monitoring Institu-
tions (Antwerp, Intersentia, 2016) 397 ff, who also recalls that: ‘the Court has emphasized
that both the American Convention and the Convention on the Rights of the Child form
part of a very comprehensive international corpus iuris for the protection of the child
that should help to establish the content and scope of the general provision established
in Article 19 of the American Convention’. See also Juridical Condition and Human Rights
of the Child, Advisory Opinion OC-17/2002, Inter-Am. Ct. H.R., para 21, that, after having
recalled that the Inter-American Court’s ‘guidelines for interpretation of international
provisions that do not appear in the American Convention’, indicates that ‘the interpreta-
tion of other international instruments cannot be used to limit the enjoyment and exer-
cise of a right’.
21 See e.g. Colette Daiute,’The Rights of Children, the Rights of Nations: Developmental
Theory and the Politics of Children’s Rights’ (2008) 64 Journal of Social Issues 721 ff; MF
Davis, R Powell, ‘The International Convention on the Rights of the Child: A Catalyst for
Innovative Childcare Policies’ (2003) 25 Human Rights Quarterly 689–719; M Freeman,

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called the present-oriented approach’ to children, places ultimate emphasis on

the imposition of societal duties to cope with children’s needs for special safe-
guards and care. This ‘present-oriented approach’ was developed by children’s
rights activists and defenders as a conscious political strategy to move away
from traditional constructions of children as not-yet beings and to raise aware
ness of the risks that are inherent in an exclusively future-oriented approach to
children.22 In this sense, the present-oriented approach, that unsurprisingly
took several years to take hold in the negotiations of the crc,23 serves as an
antidote to a ‘future-oriented approach’ to children in which the emphasis is
placed on childhood as a preparation for adult responsibility and, thus, indi-
rectly on the children’s lack of reason compared to adults.24
In a formal sense, the crc does not so much insert new rights and freedoms,
but merely affirms the existing human rights of children that have hither-
to been neglected by earlier international legal tools like the non-binding
UN Declaration of the Rights of the Child of 1959—e.g., the right of indige-
nous children to practice their own culture and the right of a child to preserve
his/her identity.25 At the same time, its normative approach—as articulated
‘The Sociology of Childhood and Children’s Rights’ (1998) 6 The International Journal of
Children’s Rights 433–44.
22 Amplius, see Eugeen Verhellen, ‘The Convention on the Rights of the Child: Reflections
from an Historical, Social Policy and Educational Perspective’, in Wouter Vandenhole, El-
len Desmet, Didier Reynaert, Sara Lembrechts (eds.), Routledge International Handbook
of Children’s Rights Studies (London and New York, Routledge, 2015) 44 ff; Cynthia P Co-
hen, Hedwin Namer, ‘United Nations Convention on the Rights of the Child: Individual
Rights Concepts and Their Significance for Social Scientists’ (1991) 46 American Psycholo-
gist 60–65, also stressing that the crc represents a shift from earlier thinking in the field
of children’s rights.
23 See e.g. A Holzscheiter, Children’s Rights in International Politics: The Transformative Pow-
er of Discourse (London, Palgrave Macmillan, 2010) 141 ff; Nigel Cantwell, ‘The Origins,
Development and Significance of the UN Convention on the Rights of the Child’, in Sha-
ron Detrick, Jaap Doeck, Nigel Cantwell (ed.), The United Nations Convention on the Rights
of the Child: A Guide to the “Travaux Preparatoires (Dordrecht, Boston, 1992) 19 ff.
24 See Chris Jenks, Childhood: Critical Concepts in Sociology (London and New York, Rout-
ledge, 2005) 84; J Hemrica and F Heyting, ‘Tacit Notions of Childhood: An Analysis of
Discourse about Child Participation in Decision-Making Regarding Arrangements in the
Case of Parental Divorce’ (2004) 11 Childhood 449–68. See also Leena Alanen, ‘Rethinking
Childhood’ (1988) 31 Acta Sociologica 53–67.
25 See e.g. Mona Paré, ‘La mise en œuvre de la “Convention relative aux droits de l’enfant”:
une question de principles’, in Barreau du Québec (ed.), Race, femme, enfant, handicap: les
c onventions internationales et le droit interne a la lumière des enjeux pratiques du droit à
l’égalité (Cowansville, Yvon Blais, 2010) 391–427; Mamoud Zani, La Convention Internatio-
nale des Droits de l’Enfant: portée et limites (Paris, Publisud, 2000) 10 ff; Cynthia Price Co-
hen, ‘The United Nations Convention on the Rights of the Child: A Feminist Landmark’
(1997) 3 Wm. & Mary J. Women & L. 36, who also stresses that: ‘Although the crc repeats

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8 Seatzu
in its P reamble and substantive provisions, and as explicated by the crc

Committee—is far-reaching.26 It goes beyond the strengthening of the rights
of children to provide more comprehensive coverage in some areas—for in-
stance, the rights of children with disabilities and safeguards in adoption pro-
cedures, and, perhaps of most relevance, to include an expansive reconceptu-
alization of personal autonomy.
The conceptualization of the child under the crc is undermined by an aim
of setting up a normative background for state obligations and duties to elimi-
nate obstacles that hinder children from taking part in society being on an
equal footing with adults, including exercising the freedom to make their own
choices.27 Reference is here, in particular, to the states’ duties and obligations
to abolish traditional practices prejudicial to the health of children and to pro-
vide for rehabilitative measures for victims of abuse, neglect and exploita-
tion.28 As mentioned above, the crc does not define childhood as such. This is
an implicit acknowledgment that, as a concept, ‘childhood’ is culturally and
socially complex and that there is no single notion of childhood. Its Preamble
and substantive provisions treat childhood as an ‘evolving’ concept that is not
subject to a rigid classification. Instead, the crc explains what constitutes the
objects of its protection: ‘children’. Article 1 states that ‘children are those be-
low the age of eighteen years, unless under the law applicable to the child,
majority is attained earlier’.
The ‘present-oriented approach’ to children of the crc seeks to combat not
just attitudinal obstacles and barriers.29 Even more significantly, it aims to
remove systemic or structural obstacles and barriers that prevent the partici-
pation of children in personal and social spheres including in the sphere of
many of the rights contained in other human rights treaties, it restates those rights so as
to make them appropriate for children’; Dominic Mc Goldrick, ‘The UN Convention on
the Rights of the Child’ (1991) 5 Int’L J. L. & Family 132 ff.
26 See Jaap E. Doeck, ‘The crc: Dynamics and Directions of Monitoring its Implementation’,
in Antonella Invernizzi (ed.), The Human Rights of Children: From Visions to Implementa-
tion (London and New York, Routledge, 2016) 99 ff; ID, ‘The crc 20 years: An overview
of some of the major achievements and remaining challenges’ (2009) 33 Child Abuse &
Neglect 771 ff.
27 See e.g. Articles 5, 12 and 31 of the crc. See also Yanghee Lee, ‘Child Participation and Ac-
cess to the United Nations Convention on the Rights of the Child’ in International justice
for children (Strasbourg, Council of Europe Publishing, 2008) 105–111; Tom Cockburn,
‘Children as participative citizens: A radical pluralist case for ‘child-friendly’ public com-
munication’ (2005) 9 Journal of Social Sciences 19–29.
28 See Sharan E Brown, Michael J. Guralnick, ‘International Human Rights to Early Interven-
tion for Infants and Young Children with Disabilities: Tools for Global Advocacy’ (2012) 25
Infants Young Child 270–285.
29 Amplius, see Ann Quennerstedt,Carol Robinson, John I’Anson, ‘The uncrc: The Voice of
Global Consensus on Children’s Rights?’ (2018) 31 Nordic Journal of Human Rights 38 ff.

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r eproductive autonomy, as indirectly confirmed by the unusually comprehen-

sive scope of its general principle of equality and non-discrimination.30
Achieving equality and eliminating unfair discrimination require states to
adopt positive actions and steps to accommodate children. The provisions of
the crc articulate this very clearly, including in Article 2—the crc’s general
equality and non-discrimination provision. Article 2 prescribes that: ‘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, ir-
respective of the child’s or his or her parent’s or legal guardian’s race, colour,
sex, language, religion, political or other opinion, national, ethnic or social ori-
gin, property, disability, birth or other status’. Moreover, and equally impor-
tantly, it also provides that: ‘States Parties shall take all appropriate measures
to ensure that the child is protected against all forms of discrimination or pun-
ishment on the basis of the status, activities, expressed opinions, or beliefs of
the child’s parents, legal guardians, or family members’. The crc’s articulation
of the state’s equality and non-discrimination duties and obligations are
framed with a view to achieving substantive equality as opposed to merely de
jure or formal equality.
Respect for personal autonomy is not incidental in the protections granted
by the crc, but instead is one of its main purposes.31 Its drafting was deeply
influenced by the work of children’s rights activists. Although the crc does not
explicitly guarantee a right to personal autonomy as such, the importance it
gives to personal autonomy is unambiguously built into the Preamble and sub-
stantive provisions and, therefore, is inseparable from the overall equality and
non-discrimination goal.32 In its Preamble, the crc recognizes the importance
for ‘the children to receive all the necessary protection and assistance so that
they can fully assume their responsibilities within the community’ (para. 6). In
its Preamble and substantive provisions, the crc subscribes an obligation to
give children the chance of being involved in decision-making processes about
the programs that directly concern them (Para. 8 of the crc Preamble and
Article 12 of the crc).
30 See Cynthia P Cohen, ‘The United Nations Convention on the Rights of the Child: A Femi-
nist Landmark’ (1997) 3 The William & Mary Journal of Women and the Law 34.
31 Accordingly, see Brian Milne, ‘Is “Participation” as it is described by the United Nations
Convention on the Rights of the Child (uncrc) the Key to Children’s Citizenship?’, in
Antonella Invernizzi (ed.), Children’s citizenship: an emergent discourse on the rights of the
child? (Delhi, Kamla-Raj Enterprises, 2005) 31–42.
32 See Bruce C. Hafen, Jonathan O. Hafen, ‘Abandoning children to their autonomy: The
United Nations Convention on the Rights of the Child’ (1996) 37 Harvard International
Law Journal 449.

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10 Seatzu
3 Children and the Inter-American Human Rights System
Although children’s fundamental rights and liberties are underrepresented in

the Inter-American Human Rights System compared at least to the fundamen-
tal rights and liberties of other categories of vulnerable subjects like elderly,
women and persons with disabilities,33 this does not necessarily lessen the rel-
evance and importance of this system of human rights to children and youth
people and its potential utility for protecting their fundamental freedoms and
rights. With that said, it is however true that the text of the achr contains a
relatively limited number of references to either children or their fundamental
freedoms and rights. Children or minors (the text is not very much consistent
in its use of relevant language) appear only six times in the main body of the
Convention, first in Article 5 concerning the right to human treatment, and fi-
nally, and more extensively, in Article 19 in relation to the right to the measures
of protection required by the condition as a minor on the part of the family,
society, and the state. Article 5, one of the most important articles in achr,
protects the integrity of persons in very broad terms, and expressly includes
not only the physical integrity but also the moral psychological integrity of
persons.34 Furthermore, and more significantly for the present work, Article 5
also protects the right of the minors subject to criminal proceedings to be sep-
arated from adults and brought before specialized tribunals, as speedily as pos-
sible, in order to be treated in conformity with their status of minors.35 Article
19 prescribes that the State must assume a special position as guarantor with
greater care and responsibility and must adopt special measures aimed at the
best interest of the child. In addition to this, Article 19 establishes a state duty
to respect and ensure the rights recognized to children in other applicable
international human rights instruments, such as Articles 12 and 22 of the
33 Organization of American States (oas), Inter-American Convention on the Elimina-

tion of All Forms of Discrimination against Persons with Disabilities, 7 June 1999, AG/res.
1608 (xxix-O/99) <https://www.refworld.org/docid/3de4cb7d4.html> accessed 23 Febru-
ary 2020.
34 Amplius, see Julie Lantrip, ‘Torture and Cruel, Inhuman and Degrading Treatment in the
Jurisprudence of the InterAmerican Court of Human Rights (1999) 5 ilsa Journal of Inter-
national & Comparative Law 552 ff.
35 Amplius, see Laurens Lavrysen, ‘Positive Obligations in the Jurisprudence of the Inter-
American Court of Human Rights’ (2014) 13 Inter-American and European Human Rights
Journal 110, who also stresses that the Court has interpreted Article 5 of the achr which
obliges states to treat persons deprived of their liberty with respect for the inherent dig-
nity of the human person in an extensive manner, encompassing a whole range of stan-
dards on prison conditions requiring inter alia the provision of adequate water, food,
health care education work and recreation.

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crc.36 Clearly, in Article 5, but also in Article 19, the main focus is on protec-
tion of the individual. Nevertheless, there is little reference to the parallel ne-
cessity to ensure that children as human rights holders37 are empowered to
claim their rights. The only provision which guarantees a right of special sig-
nificance for children is embodied in Article 16 of the Additional Protocol to
the American Convention on Human Rights in the Area of Economic, Social
and Cultural Rights, the so called ‘Protocol of San Salvador’,38 in the part where
it provides that: ‘Every child has the right to free and compulsory education, at
least in the elementary phase, and to continue his training at higher levels of
the educational system’. And what mentioned so far is not all: the provision
that holds the greatest significance to children – Article 17 of the achr which
protects the right to respect for family and private life39 – curiously makes no
express reference to children or their right to a family.40 Yet this is true if and
only if one does not consider Article 17, para. 4 that deals with the case of the
dissolution of marriage, which provides that: ‘In case of dissolution, provision
shall be made for the necessary protection of any children solely on the basis
of their own best interests’. Although some uncertainties remain about the
meaning, scope and application of Article 17 of the achr,41 it is relevant inso-
far as it contains – together with Article 19 of the achr – the only explicit
36 ACtHR, Case of the Pacheco Tineo family v. Bolivia. Preliminary Objections, Merits, Repa-
rations and Costs. Judgment of November 25, 2013. Series C No. 272.
37 For a recent discussion of children as human rights holders see Kirsten Sandberg, ‘Chil-
dren’s Right to Protection Under the crc’, in Asgeir Falch-Eriksen, Elisabeth Backe-
Hansen (eds.), Human Rights in Child Protection: Implications for Professional Practice and
Policy (Amsterdam, Springer, 2018) 15–38.
38 Organization of American States (oas), Additional Protocol to the American Convention
on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of
San Salvador”), 16 November 1999, A-52, available at: https://www.refworld.org/docid/
3ae6b3b90.html [accessed 4 September 2019]. For a commentary of the Protocol, see Os-
waldo Ruiz Chiriboga, ‘The American Convention and the Protocol of San Salvador: Two
intertwined treaties: Non-enforceability of economic, social and cultural rights in the
Inter-American System’ (2013) 31 Netherlands Quarterly of Human Rights 15 ff.
39 On the right to family under the achr, see e.g. Nadia Melehi, ‘The Right to Family Life
Free from Discrimination on the Basis of Sexual Orientation: The European and Inter-
American Perspectives’ (2014) 29 American University International Law Review 945 ff.,
also stressing that Article 17 achr recognizes the central role of the family and family life
in a person’s existence and in society in general.
40 See also Article 15 of of the Protocol of San Salvador.
41 On the subject, see also Fareda Banda, John Eekelaar, ‘International Conceptions of the
Family’ (2017) 66 iclq 833–86; Lucas Lixinski, ‘Comparative International Human Rights
Law: An Analysis of the Right to Private and Family Life across Human Rights “Jurisdic-
tions” (2014) Nordic Journal of Human Rights 99 ff.

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12 Seatzu
r eference to ‘the best interests of the child’ in the achr.42 The general princi-
ple of the best interest of the child has been discovered to be implicit in other
areas, nevertheless,43 and constitutes a noteworthy feature of the ACtHR’s and
iachr’s practice in areas of increasing significance like privacy, surrogacy,44
reproductive rights45 and in the area social rights of children and young peo-
ple.46 Notwithstanding the Inter-American Human Rights System does not
deal in depth about the fundamental rights and freedoms of children, a num-
ber of its key features suggest the use of the crc as an interpretive instrument
both feasible and desirable.
Firstly and foremost, several of the achr articles are framed in wide terms,
allowing them to be interpreted and applied in an expansive and creative man-
ner.47 Article 13 of the achr, for instance, that protects the freedom of expres-
sion, has been and continues to be creatively interpreted. The reference is here
in particular to the right to freedom of information that, in its line of cases
starting with Claude Reyes et al. v. Chile, the Court has claimed to be a corollary
of the right to freedom of expression in Article 13.48 Moreover, and more
42 On the general principle of the best interest of the child in the crc framework, see Article
3, para. 1 of the crc that asserts the obligation that the best interests of the child shall be
a primary consideration in all actions concerning children. See also Committee on the
Rights of the Child, General Comment No. 5: General measures of implementation of the
Convention on the Rights of the Child (Articles 4, 42 and paragraph 6 of Article 44), crc/
GC/2003/5, para 12, and Committee on the Rights of the Child, General Comment No. 14
on the right of the child to have his or her best interests taken as a primary consideration
(Article 3, paragraph 1), UN Doc. crc/C/CG/14, 29 May 2013.
43 On the ‘importation’ of the principle of the best interest of the child in the Inter American
system of human rights see Fareda Banda, John Eekelaar, op. ult. cit., who recalls that: ‘In
its 2002 Advisory Opinion on the interpretation of Arts 8 and 25 of the achr, which per-
tain to fair trial and judicial protection, insofar as they affected children, the ACtHR …
referred to the ‘best interests of the child’ principle into the interpretation of the achr,
saying: ‘… the phrase “best interests of the child”, set forth in Article 3 of the Convention
on the Rights of the Child, entails that children’s development and full enjoyment of their
rights must be considered the guiding principles to establish and apply provisions per-
taining to all aspects of children’s lives’.
44 See Martín Hevia, ‘Surrogacy, privacy, and the American Convention on Human Rights’
(2018) 5 J Law Bioscience 375–397.
45 See Maja Kirilova Eriksson, Reproductive Freedom: In the Context of International Human
Rights and Humanitarian Law (The Hague, Kluwer Law International, 2000) 215 ff.
46 Amplius, see Isaac de Paz González, (n 96).
47 Amplius, see Lucas Lixinski, ‘The Consensus Method of Interpretation by the Inter-
American Court of Human Rights’ (2017) 3(1) cjccl 65 ff; ID., ‘Treaty Interpretation by the
Inter-American Court of Human Rights: Expansionism at the Service of the Unity of In-
ternational Law’ (2010) 21 ejil 585 ff.
48 ACtHR, Case of Claude-Reyes et al. v. Chile, Merits, Reparations, and Costs, Judgment of 19
Sept. 2006, Series C No. 151, at para. 76.

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s ignificantly here, Article 17 of the achr that protects the right to family and
private life has also been interpreted widely and inclusively,49 as proven by the
following two examples. In its practice, the ACtHR has accepted that Article 17,
para. 2 of the achr, when referring to the ‘right of men and women of mar-
riageable age to marry and to raise a family’, is only establishing, explicitly, the
treaty-based protection of a specific model of marriage.50 In other terms, in the
Court’s view, the language of Article 17 neither indicates a narrow definition of
how marriage and family shall be conceived nor means that this is the only
type of family protected by the achr.51 The second example is the right to
identity, and in particular gender and sexual identity, that, again according
to the Court’s case-law, can be derived from the right to respect for private life
in Article 17.52 Given these and other examples, it is evident that the broad
character of the achr provisions helps their adaptation in a manner that takes
into consideration the specific rights, freedoms and needs of the child.
Secondly, one of the noteworthy features of the achr, and also of the
echr,53 is its nature as a ‘living instrument’, that is, as an instrument that
should be interpreted by reference to current values and conditions, not those
that existed when the Convention was adopted in 1969.54 To put it clearly, this
implies that surrounding social and normative influences cannot be disregard-
ed in the application of the achr’s articles and provisions. And, in fact, this is
why the ACtHR has often drawn on factors outside of the achr in interpreting
and applying this Convention. The Court’s decision on the Las Palmeras case
49 See e.g. Jennie I. Medina, ‘In Vitro Fertilization: The Right to Give Life or Taking the Fun-
damental Right to Life’ (2015) Law School Student Scholarship <https://scholarship.shu
.edu/cgi/viewcontent.cgi?referer=https://www.google.it/&httpsredir=1&article=1809&co
ntext=student_scholarship> accessed 20 February 2020.
50 Advisory Opinion OC-24/17 of November 24, 2017. Series A No. 24.
51 For further references to this issue, see Yuval Merin, ‘The Right to Family Life and Civil
Marriage Under International Law and its Implementation in the State of Israel’ (2005) 28
B.C. Int’l & Comp. L. Rev. 79 ff.
52 See Theodore McCombs, Jackie Shull González, ‘Right to Identity – International Human
Rights Law Clinic’ <http://scm.oas.org/pdfs/2007/CP19277.PDF> accessed 20 February
2020.
53 See George Letsas, ‘The echr as a Living Instrument: Its Meaning and its Legitimacy’
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2021836> accessed 2 February
2020.; Rachael Ita, ‘The Interpretation of the echr as a Living Instrument: Demise of
the Margin of Appreciation Doctrine?’ <https://blogs.uta.fi/ecthrworkshop/2015/12/07/
rachaelita/> accessed 23 February 2020.
54 See e.g. Marijke De Pauw, ‘The Inter-American Court of Human Rights and the Interpre-
tive Method of External Referencing: Regional Consensus v. Universality’, in Yves Haeck,
Oswaldo Ruiz Chiriboga, and C. Herrera (eds.), The Inter-American Court of Human Rights:
Theory and Practice, Present and Future (Cambridge, Intersentia, 2016) 4–2.

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14 Seatzu
concerning Colombia, where the ACtHR held, that though it lacked the com-
petence directly to apply the Geneva Conventions of 1949 since it was only
empowered by States Parties to interpret human rights provisions,55 it could
use them to assist its interpretation of the achr provisions56 offers a vivid ex-
ample of this trend.57 Although there is no specific provision for this interpre-
tative approach in the achr itself, as long as it does not lead to an interpreta-
tion and application of the achr’s articles and provisions that goes beyond its
spirit and aim, this approach should be considered as a useful and valuable
instrument. Indeed, its merits are clear and noteworthy in children’s cases,
where achr guidance is either precarious or lacking, and detailed crc provi-
sions may be used to enhance creative interpretation generally.58
Article 1 of the achr grants freedoms and rights to ‘everyone’ within the
jurisdiction of the achr’s Contracting Countries, and clearly this provision has
a key role in the way in which the Convention is applied and interpreted.59
Although only indirectly, the child’s equal treatment under the achr is en-
forced further by Article 24, which provides that: ‘all persons are entitled, with-
out discrimination, to equal protection of the law’. At least in theory, therefore,
achr’s freedoms and rights are granted to all people, and there is nothing to
hinder their application to minors, children and youth. Furthermore, in prac-
tice, the iachr and ACtHR have refrained from introducing explicit or general
restrictions to the application of the achr in children’s cases. Recurring refer-
ences to crc’s provisions and articles have supported this approach and have
generally upgraded children’s rights in achr proceedings.
The lack of a comprehensive child protection system in the achr has in-
duced the ACtHR to look beyond the Convention for advice and guidance on
certain specific issues. In 2004, the ACtHR considered whether the failure of
55 Preliminary Objections, Judgment of 4 February 2000, 1 33.

56 See ACtHR, Bamaca-Velasquez v. Guatemala, Judgment of 25 November 2000, 1 209, stat-
ing that ‘the relevant provisions of the Geneva Conventions may be taken into consider-
ation as elements for the interpretation of the American Convention’.
57 On the topic, see e.g. Francesco Seatzu, ‘On the Interpretation of Derogation Provisions in
Regional Human Rights Treaties in the Light of Non-Binding Sources of International Hu-
manitarian Law’ (2011) 4 Inter-American and European Human Rights Journal 19 ff.
58 On the detailed character of crc’s articles and provisions, see recently Jaap E. Doek, ‘The
UN Convention on the Rights of the Child: An Instrument for Creating a Healthy Environ-
ment for the Child’, in James Garbarino, Garry Sigman (eds.), The UN Convention on the
Rights of the Child: An Instrument for Creating a Healthy Environment for the Child (Am-
sterdam, Springer, 2010) 139 ff.
59 See e.g. José Louis Caballero Ochoa, Marisol Aguilar Contreras, ‘New Trends on the Right to
Non-Discrimination in the Inter-American System of Human Rights’ (2016) 8 Inter-Am. &
Eur. Hum. Rts. J. 80 ff.

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Paraguay to set up a specialized court system and procedure for the implemen-
tation of juvenile criminal justice constituted a violation of the right to fair
trial protected in Article 8 of the achr. In claiming that it did, the Court relied
both on Article 40, para. 3 (b) of the crc and the UN Standard Minimum Rules
for the Administration of Juvenile Justice (Beijing Rules) as evidence of an in-
creasing acceptance of the need of a separate and specialized criminal justice
system for children.60 In other children’s cases, the Court has referred to the
1959 Declaration of the Rights of the Child, as well as the Geneva Conventions
and the Additional Protocol to the UN Convention on the Rights of the Child,
on the sale of children, children’s prostitution and children’s pornography.61
4 References to the crc by the Inter American Court of Human

Rights
Although the reference by the iachr and the ACtHR to other international
human rights conventions and instruments is certainly significant like the ref-
erence to the Geneva Conventions of 1949 and their Additional Protocols,62 the
use of the crc constitutes a particular noteworthy development, given the fact
that the crc is the most ratified UN treaty and also given the specific and de-
tailed character of most of its articles and provisions. Both the iachr and the
ACtHR have used crc articles as sign-posts in the interpretative process of the
achr in several children’s cases since it entered into force in 1990,63 and, what
is equally noteworthy, also in the interpretation of the American Declaration
of the Rights and Duties of Man (‘adhr’).64 The iachr’s report ‘Towards the
Effective Fulfillment of Children’s Rights: National Protection Systems’ of 2018
60 Amplius, see Linda Gröning, Hilde Švrljuga Sætre, ‘Criminal Justice and Detention’
<https://www.idunn.no/childrens_rights_in_norway/5_criminal_justice_and_
detention)> accessed 12 February 2020.
61 For references to this case law, see ‘The United Nations Special Rapporteur on the Sale
and Sexual Exploitation of Children’s Expert Opinion before the ACtHR’ <https://www
.ohchr.org/Documents/Issues/Children/Submission/Opinions28April2017.PDF>
accessed 13 February 2020; Lucas Lixinski, ‘Treaty Interpretation by the Inter-American
Court of Human Rights: Expansionism at the Service of the Unity of International Law’
(2010) 21 European Journal of International Law 585 ff.
62 Amplius, see Lucas Lixinski, op. ult. cit., 585 ff.
63 See United Nations Treaty Collection, Chapter iv Human Rights: 11, Convention on the
rights of the child, <https://www.refworld.org/docid/3ae6b38f0.htm> accessed 23 Febru-
ary 2020.
64 Inter-American Commission on Human Rights (iachr), American Declaration of the
Rights and Duties of Man, 2 May 1948 <https://www.refworld.org/docid/3ae6b3710.html>
accessed 23 February 2020.

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16 Seatzu
offers a recent and vivid example of this interpretative trend, where, after hav-
ing claimed that ‘It is not sufficient simply to intervene to protect boys and girls
from violations of their rights once these have occurred, nor to create welfare-
type programs that fail to address the causes of these violations of rights or
help to prevent them’, it explains that this is a conclusion that can be deduced
from the achr and the crc as they both demand that all their rights and free-
doms should be effectively and actively protected.65 Another example is found
in the ACtHR’s Advisory Opinion 17 on the Juridical Condition and Human
Rights of the Child,66 where it is stipulated that the best interests of the child
is a ‘regulating principle regarding children’s rights based on the very dignity of
the human being, on the characteristics of children themselves, and on the
need to foster their development, making full use of their potential, as well as
on the nature and scope of the Convention on the Rights of the Child’.67
Indeed, this is a commendable and useful trend for more than one reason.
The most important of which is that it has allowed and allows the two supervi-
sory bodies of the achr, the iachr and the ACtHR, to develop their practice
on children’s rights and freedoms not in isolation68 but in relation to the cor-
responding practice of the crc Committee and, in so doing like the ECtHR, by
fully benefiting of the ‘socialising effect’ of the crc.69
4.1 Children’s Migration

One of the areas of the iachr’s and ACtHR’s practice in which the influence of
the crc is more clear and prominent is in relation to cases of children’s migra-
tion. There are, in fact, several references to the crc’s articles and principles
in the ACtHR’s Advisory Opinion OC-21/14 on the rights and guarantees of
65 The text of the Report <https://violenceagainstchildren.un.org/sites/violenceagainstchil

dren.un.org/files/regions/fulfillmentrights-children_0.pdf> accessed 23 February 2020.
66 ACtHR, Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02
of August 28, 2002. Series A No. 17, para 37, 53.
67 Ibidem.
68 On the risks ensuing from fragmentation of international human rights law, see Marjan
Ajevksi, ‘Fragmentation in International Human Rights Law – Beyond Conflict of Interna-
tional Courts in a State of Nature: Foreword’, in Marjan Ajevksi (ed.), Fragmentation in
international human rights law: Beyond conflict of laws (London, Abingdon, Routledge,
2015) 10 ff.
69 For this expression, see Ryan Goodman & Derek Jinks, Socializing States: Promoting Hu-
man Rights Through International Law (Oxford, oup, 2013), p. 10 ff. See also Katre Lu-
hamaa, Marit Skivenes, ‘Discriminating Against Children’, in Marit Skivenes, Karl Harald
Søvig (eds.), Child Rights and International Discrimination Law: Implementing Article 2 of
the United Nations Convention on the Rights of the Child (Abingdon, Rutledge, 2019) and
p. 12 ff, stressing that the socialising effect of the crc has been notable globally.

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c hildren in the context of migration and/or in need of international protec-

tion.70 The Opinion was requested to the Court by the founding states of South
America’s Mercosur, namely Argentina, Brazil, Paraguay and Uruguay, that ex-
pressed their concern about the lack of interrelation between migratory poli-
cies and child protection policies among Latin American countries, on one
hand, and the use of a criminal justice approach to approach the different
challenges posed by child migration, on the other.71 In releasing its Opinion,
the ACtHR, for the first time in its jurisprudence, gave legal standards and pol-
icy guidelines—in some instances, with great detail—on state obligations
concerning migrant children to be observed by all branches of government
within all states that have adopted the adhr—e.g., the United States—and
not just those that have ratified the achr.72 In reaching this determination,
the Court gave particular regard to the opinion that the legal protections for
children must always prevail and recalled the state’s prohibition on the use of
detention measures against children ‘as a precautionary measure [or due to a]
failure to comply with the requirements to enter and remain in a country’.73 In
this regard, it was noted that the provisions of the achr and the adhr shall be
interpreted expansively consistent with international human rights norms.74
The Court held, in line with the ECtHR’s case law and the crc Committee’s
consolidated practice, that deprivation of liberty should always be deemed as
‘inappropriate when children are unaccompanied or separated from their
family’.75 Importantly, support for the ACtHR’s assertion that the oas member
states should seek alternatives to detention of children was found in Article 37
of the crc, as constantly interpreted by the crc Committee in its prevailing
practice. Therefore, the ACtHR went on to cite paragraph 1, b) of that provi-
sion, which puts an obligation on states to take all measures to ensure that
detention, arrest, 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
70 Advisory Opinion OC-21/14, “Rights and Guarantees of Children in the Context of Migra-
tion and/or in Need of International Protection”, OC-21/14, Inter-American Court of Hu-
man Rights (IACrtHR), 19 August 2014 <https://www.refworld.org/cases,IACRTHR,54129
c854.html> accessed 23 February 2020.
71 On this topic, see Jorge Contesse, ‘Rights and Guarantees of Children in the Context of
Migration and/or in Need of International Protection” (Inter-American Court of Human
Rights)’ (2017) 47 International Legal Materials, p. 839, who also stresses that ‘the request
for the advisory opinion prompted significant interest from a number of stakeholder
participants’.
72 See Jorge Contesse, op. ult. cit., p. 841.
73 Advisory Opinion OC-21/14 cit., paras 144–160.
74 Ibid., para 144.
75 Ibid., paras 144–160.

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18 Seatzu
a ppropriate period of time. The Court relied on this provision to conclude that
the state cannot reduce its responsibility by interpreting the principle of non-
refoulement—the ‘cornerstone of international refugee protection’—narrowly
that is, as only encompassing non nationals (refugees and asylum seekers), but
extensively as also encompassing ‘persons who are not considered nationals …
either because they have lost ex lege their nationality or because a decision has
deprived them of this nationality’.76
As it has happened in other contexts, the iachr has referred to the crc for
appropriate guidance when interpreting and applying the achr provisions to
youth and children. Yet, the iachr has went even further than the ACHtR by
referring to the concluding observations and general comments of the crc
Committee, where appropriate.77 A recent example may be of help in clarify-
ing this point. In two resolutions on precautionary measures granted in 201878
in favor of children and adolescents who were separated from their families of
origin as a result of the implementation of the ‘Policy of Zero Tolerance’ in the
United States,79 the Commission directly referred to the General Joint Obser-
vations 3/22 and 4/23 of the UN Committee on Migrant Workers and their
Families and the Committee on the Rights of the Child to justify the existence
of the general principle that separating families due to the violation of immi-
gration laws leads to a disproportionate restriction of the fundamental right to
family protection.80 Moreover, again in the same reports, the Commission has
also referred to the Joint General Comment No. 4 of 2017 of the Committee for
the Protection of the Rights of All Migrant Workers and Members of their Fam-
ilies and of the crc Committee and to General Comment No. 23 of the crc
76 Ibid., para 218.

77 See also Ana Aliverti, ‘The Promise of Human Rights? The Inter-American Court’s Advi-
sory Opinion on the Rights of Migrant Children’ <https://www.law.ox.ac.uk/research-
subject-groups/centre-criminology/centreborder-criminologies/blog/2014/10/promise-
human> accessed 23 February 2020, stressing that ‘Over the last few years, the Inter
-American system of human rights has been receptive to requests by member states and
human rights activists in the region to establish states’ human rights obligations in the
exercise of migration controls’.
78 The resolutions are available at <https://www.oas.org/en/iachr/decisions/pdf/2018/64-
18MC731-18-US-en.pdf> accessed 20 February 2020.
79 Amplius, see Caitlin Behles, (n 15).
80 UN Committee on the Protection of the Rights of All Migrant Workers and Members of
Their Families (cmw), Joint general comment No. 3 (2017) of the Committee on the Pro-
tection of the Rights of All Workers and Members of Their Families and No. 22 (2017) of
the Committee on the Rights of the Child on the general principles regarding the human
rights of children in the context of international migration, 16 November 2017, cmw/C/
GC/3-crc/C/GC/22 <https://www.refworld.org/docid/5a1293a24.html> accessed 20 Feb-
ruary 2020.

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Committee, together with the Special Rapporteur on Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment’s statement that ‘the depri-
vation of liberty of children based on their or their parents’ migration status is
never the best interests of the child […]’,81 to reach the conclusion that the
separation of children from their families in the migration context may ulti-
mately lead to cruel, inhuman and degrading treatment of migrant children.
The Commission therefore referred to the practice of the crc Committee, not
merely to support its own statements, but in pointing to further evidence of
the problem which it identified. It then went on to add its own concern about
the need of precautionary protection in the migration contexts when the sepa-
ration of children, due to the specific circumstances in which this occur, can
have prima facie an irreparable impact on the rights to family protection, per-
sonal integrity and identity. In particular, the Commission observed that the
United States did not provide information on the specific situation of the per-
sons proposed as beneficiaries, nor on whether the reunification has effective-
ly been planned for the short term, if there is a timeline for reunification in
place, or whether effective means of communication have been enabled. And
that was not all: the ACtHR further observed that the United States has not
provided detailed information on the specific circumstances of the proposed
beneficiaries, their health or detention conditions. As a result, unconvinced by
the Government’s response, the iachr held that U.S law had failed to provide
the applicants with adequate and effective protection.82 Therefore, it conclud-
ed by requesting the United States to adopt several operative measures to pro-
tect the rights to family life, including the introduction of measures to facili-
tate communication between adolescents, children and their families, the
provision of medical and psychological aid, as well as the suspension of migra-
tion procedures that can divide children from their families of origin.83
Even though in its judgment on the Familia Pacheco Tineo case the ACtHR
endorsed the conclusions expressed by the iachr in its report, it phrased its
judgment in more broad and generic terms.84 And, in fact, the ACtHR restrict-
ed its references to the crc to the issue of state responsibility where it held
81 Joint general comment No. 4 (2017) of the Committee for the Protection of the Rights of
All Migrant Workers and Members of their Families and No. 23 (2017) of the Committee
on the Rights of the Child on the obligations of States regarding human rights of children
in the context of international migration in countries of origin, transit, destination and
return. cmw/C/GC/4, crc/C/GC/23, para 9.
82 For further references, see Caitlin Behles, (n 15).
83 Ibid.
84 ACtHR, Caso Familia Pacheco Tineo vs. Estado Plurinacional de Bolivia, 25 November 2013
<https://www.refworld.org/cases,IACRTHR,52c53b154.html> accessed 13 February 2020.

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20 Seatzu
that children are entitled to state protection against breaches of their right to
be heard in any proceedings and of their right to seek refugee status and hu-
manitarian assistance to safeguard his or her rights, a propos Articles 12 and
22 of the crc.85 Therefore, notwithstanding the ACtHR did not make refer-
ences to the crc Committee’s pertinent practice, it nonetheless made the all-
important link between Article 19 of the achr and the equivalent, but more
detailed and specific provisions of the crc Convention.
Another good example of the iachr’s use of the crc provisions is found in
the iachr Report ‘Immigration in the United States: Detention and Due Pro-
cess’ of 2011.86 Here, the Commission held that the failure of the U.S authorities
to take effective and practical steps to protect unaccompanied minors from
detention breached Article vii of the adhr.87 Even though it observed that
the U.S was not expected to exclude deprivation of liberty for immigration vio-
lations under any circumstance, the Commission found it significant that the
authorities did not admit detention of children and other vulnerable persons
just in the most extreme cases.88 This gave rise to a violation of the State’s posi-
tive duty under Article vii to grant special protection for children.89 Therefore,
in addition to relying on its previous practice and on the ACtHR’s case-law,
notably the ACtHR’s Advisory Opinion on the Juridical Condition and Hu-
man Rights of the Child in which it is states that that: ‘deprivation of liberty
as a penalty or a punitive sanction in the area of immigration control […]
must be regarded arbitrary and thus contrary to the Convention and American
Declaration’,90 the Commission referred expressly to the fact that under Article
37, para. 1, b) of the crc, which the United States signed but is not party to,
‘[t]he arrest, detention or imprisonment of a child shall be in conformity with
85 Ibidem., para. 219.

86 iachr, ‘Immigration in the United States: Detention and Due Process’, <http://www.oas
.org/en/iachr/migrants/docs/pdf/Migrants2011.pdf> accessed 13 February 2020.
87 Under Article vii of the adhr ‘[a]ll women, during pregnancy and the nursing period,
and all children have the right to special protection, care and aid’.
88 ACtHR, Caso Familia Pacheco Tineo vs. Estado Plurinacional de Bolivia (n 84), para 49.
89 Incidentally, it is worth noting that, according to the Commission, the adhr has acquired
legally binding force since it was the only human rights instrument in existence in 1967,
when the Charter of the Organization of American States (oas) was amended and elevat-
ed the Inter-American Commission to the status of a main organ of the regional body.
Amplius, see Christina M. Cerna, ‘Reflections on the Normative Status of the American
Declaration of The Rights and Duties of Man’ <http://www.corteidh.or.cr/tablas/r31598
.pdf> accessed 13 February 2020.
90 Advisory Opinion OC-21/14 cit., para. 147.

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the law and shall be used only as a measure of last resort and for the shortest
appropriate period of time’.91
4.2 The Sale of and Trafficking of Children

Article 6 of the achr guarantees the freedom from slavery—stating, at its
paragraph 1, that ‘no one shall be subject to slavery or to involuntary servitude,
which are prohibited in all their forms, as are the slave trade and traffic in
women’. The second and third paragraphs set out the specific safeguards which
are to apply to persons subjected to forced labour, such as the prohibition of
forced and compulsory labour in any case in which this activity would adverse-
ly affect the dignity or the physical or intellectual capacity of the person in-
volved. However, surprisingly enough, Article 6 offers no special protection for
the rights of children and young people involved in forced and compulsory la-
bour. And this is so notwithstanding children, adolescents and young people in
general have been used globally as forced labour in construction, mining, fish-
ing, forestry, agriculture and hospitality.92 Having said that, it is nevertheless
clear that Article 6 has an obvious significance and impact on the situation of
both children and young people who are in forced or compulsory labour. Al-
though the main content of Article 32 – the equivalent forced labour provision
in the crc – is little different (though more sophisticated) than Article 6 of the
achr, fundamentally, Article 32 provides that children must be protected
from economic exploitation and from performing any work that is likely to in-
terfere with the child’s education, or to be harmful to the child’s health or so-
cial development. Neither the iachr nor the ACtHR has ever attempted to
restrict the application of Article 6 in children’s cases. However, it is only in
relatively recent times that the ACtHR have recognized the importance of us-
ing this Article against children’s forced and compulsory labour in its case-law.
Worth noting here is that the confirmation of this approach as an established
achr’s general principle would, at least in our view, be unlikely without the
guidance offered, directly or indirectly, by the crc.
Nevertheless, ACtHR’s case-law highlights how complex was for the Court to
interpret the prohibition of slavery under Article 6 broadly, that is, as encom-
passing sale of and trafficking in children for the purpose of illegal adop-
tion and as also encompassing the new emerging forms of harm, violence and
91 Ibid.
92 Australian Government (Attorney’s General’s Department), ‘Right to freedom from slav-
ery and forced labour’, <https://www.ag.gov.au/RightsAndProtections/HumanRights/
Human-rightsscrutiny/PublicSectorGuidanceSheets/Pages/Righttofreedomfromslavery
andforcedlabour.aspx> accessed 13 February 2020; see also Sophie Tena, L’interdiction de
l’esclavage et du travail forcé en droit européen et international (Montpellier, 2010) 20 ff.

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22 Seatzu
e xploitation of children and youth people. In Gelman v. Uruguay, for instance,

a case that concerns a child who after his parents were forcibly disappeared
and killed during the period of the military juntas in Argentina and Uruguay
was abducted and placed with an Uruguayan couple who was unable to have
children, the Court characterized ‘the results achieved by the illegal kidnap-
ping and abductions’ as, among other things, ‘a form of ‘human trafficking for
the irregular adoption of children’, though curiously without clarifying the
meaning of the term ‘trafficking’ and/or discussing the elements of human
trafficking.93 In so doing, the Court, that did not considered Gelman under the
rubric of Article 6, implicitly aligned itself to the expert opinion expressed by
the UN Special Rapporteur on the sale and sexual exploitation of children,
Maud de Boer-Buquicchio, in the case of Ramirez Brothers v. Guatemala, where
it is claimed that the sale of and trafficking in children for the purpose of illegal
adoption can constitute a violation of Article 6 of the American Convention on
Human Rights, even in the absence of violence, abuse or forced labour at the
end destination.94 In the same case, the Court also referred to Article 11 of the
crc, which requires States to adopt measures and steps to combat the illicit
transfer and non-return of children abroad. Moreover, and equally important-
ly, it referred to several other crc Articles, including Article 16 of the crc, that
prescribes that ‘No child shall be subjected to arbitrary or unlawful interfer-
ence with his or her … family’.
The achr’s supervisory organs have only rarely been faced with issues re-
garding the application of Article 6. The Court was the first institution to deal
with these issues head on in the case of Negro Massacres v. Guatemala, which
involved (in relevant part) seventeen children who were abducted following a
massacre of their families and community.95 The ACtHR recalled the context
in which children of indigenous communities were exposed to several breach-
es of their fundamental freedoms and rights during the internal armed c onflict.
This encompassed ‘a pattern of separating children from their families after
the massacres, and taking and retaining them illegally’ by the military forces
and illegal armed groups’.96 Against this background, the Court enumerated
93 ACtHR, Gelman v. Uruguay, Judgment of Feb. 24, 2011 (Merits and Reparations) <http://
www.corteidh.or.cr/docs/casos/articulos/seriec_221_ing.pdf> accessed 23 March 2020,
para 63.
94 ‘The United Nations Special Rapporteur on the Sale and Sexual Exploitation of Chil-
dren’s Expert Opinion before the ACtHR’> <https://www.ohchr.org/Documents/Issues/
Children/Submission/Opinions28April2017.PDF>, para 15 accessed 20 February 2020.
95 ACtHR, the Rio Negro Massacres v. Guatemala, Judgment of Sept. 4, 2012 (Preliminary Ob-
jections, Merits, Reparations and Costs) <http://www.corteidh.or.cr/docs/casos/articulos/
seriec_250_ing.pdf> accessed 20 February 2020.
96 Ibidem., para 35.

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the breaches related to the case of the children abducted during the Río Negro
massacre, and reached the conclusion that the children had been ‘submitted to
conditions of slavery and servitude’, quoting the prohibition of Article 6, para.
1 of the achr.97 Although the Court did not rely directly on the crc in elabo-
rating its conclusion, the judgment’s language and context show that the
ACtHR was informed by the crc’s provisions on the right to be protected from
economic exploitation and other, more general rules, including Article 3 on the
best interests principle.
The iachr as well dealt with these issues. It did so in particular in its recent
and detailed report ‘Human Rights of Migrants, Refugees, Stateless Persons,
Victims of Human Trafficking and Internally Displaced Persons: Norms and
Standards of the Inter-American Human Rights System’,98 which aims to pro-
vide human rights guidelines to the oas Member States when it comes to
adopting laws, public policies, and practices related to migrants, asylum seek-
ers, refugees, persons in need of complementary protection, stateless persons,
internally displaced persons, victims of human trafficking including victims of
human trafficking for purposes of forced labour. While the Commission did
not refer explicitly to the crc in its interpretation and application of Article 6
achr (but only to the Protocol to Prevent, Suppress and Punish Trafficking in
Persons, especially Women and Children to the UN Convention against Trans-
national Organized Crime), its opinion tersely reflects both the crc’s general
principles, including the principle of the best interests of the child under
Article 3 as well as the right to be protected from economic exploitation under
Article 32. There is therefore clear and firm evidence that the crc’s standards
in the areas of compulsory/forced labour and human trafficking have been rec-
ognized and accepted both by the iachr and the ACtHR, which, as achr’s
supervisory organs, are entitled to enforce them.
5 The Future of the Use of the crc as an Interpretative Instrument

of the achr
In addition to the areas of children’s migration and the sale of and trafficking
of children, there is evidence of the use of the crc as an interpretative tool of
the achr also in different areas of the iachr’s and ACtHR’s practice. For
97 Ibid., paras 128–141.

98 Inter-American Commission on Human Rights (iachr), Human Rights of Migrants, Refu-
gees, Stateless Persons, Victims of Human Trafficking and Internally Displaced Persons:
Norms and Standards of the Inter-American Human Rights System, 31 December 2015,
OEA/Ser.L/V/II.;Doc. 46/15 <https://www.refworld.org/docid/5821c778b.html> accessed
23 February 2020.

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24 Seatzu
i nstance, there is a solid link between much of the ACtHR’s case-law concern-
ing various forms of abuses and mistreatments of children in detention cen-
ters and the general principles and provisions of the crc.99 In particular, much
of the ACtHR’s case-law on youth people and children indicates the reliance on
the best interests principle in Article 3 of the crc as well as the importance of
humane treatment, personal liberty and judicial protection, as recognised re-
spectively by Articles 5, 7 and 25 of the crc.100 That said, there are, however,
areas within the context of respect for children’s life and learning that would
greatly benefit from the guidance given by the crc. The question of quality
education for children is indeed one such area. In particular, Article 29 of the
crc, which defines the aims of education to include high quality education as
well as tolerance, equality and respect for human rights migh effectively in-
form the ACtHR’s deliberations on the claim of a child or a young person. Such
a claim might arise under Article 13 of the Additional Protocol to the American
Convention on Human Rights in the Area of Economic, Social and Cultural
Rights (the so called ‘San Salvador Protocol’), which guarantees that ‘education
should be directed towards the full development of the human personality and
human dignity and should strengthen respect for human rights, ideological
pluralism, fundamental freedoms, justice and peace’.101 Indeed, there is scope
for maitaining that this is exactly the kind of duty the iachr was trying to de-
velop in the landmark case of Adolescents in the custody of febem v. Brasil,102
when it has ordered provisional measures which include the execution of
socio-educational measures in an open or partial open regime.103
Other areas in which reference to the provisions of the crc is influential are
in relation to the child’s right to relax and play and to the right to equal oppor-
tunities in education contained respectively in Articles 31 and 28 of the crc.
99 Amplius, see Ciara M Smyth, ‘Towards a Complete Prohibition on the Immigration Deten-
tion of Children’ (2019) 19 Human Rights Law Review and pp. 1–36. See also Aquila Mazz-
inghy, ‘Please, Hear My Cry: Judicial Interpretation of Children’s Human Rights under the
Jurisprudence of the Inter-American Court of Human Rights’ (2020) 43 Hastings Interna-
tional and Comparative Law Review and pp. 60 ff.
100 See Aquila Mazzinghy, op. ult. cit., p. 63, stressing that: ‘The principle of the best interest
of the child has been well established and consolidated throughout the Inter-American
Court’s jurisprudence’.
101 Organization of American States (oas), Additional Protocol to the American Convention
on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San
Salvador”), 16 November 1999, A-52 <https://www.refworld.org/docid/3ae6b3b90.html>
accessed 13 February 2020.
102 iachr, Adolescents in the Custody of the Febem v. Brazil, Petition 12.328, Inter-Am. C.H.R.,
Report No. 39/02, oea/Ser.L/v/ii.117, doc. 1 rev. 1 (2002).
103 Amplius on this case, see Andrea Morgan, ‘The Protection of the Right to Education in
International, European and Inter American Human Rights System’ <http://www.etd.ceu
.hu/2012/morgan-alarcon_andrea.pdf> accessed 13 February 2020.

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The ACtHR’s consideration of these two issues thus far has been rather hesi-
tant. Were the ACtHR to revisit them, reference to the crc articles could be of
great aid in better developing and protecting the above mentioned rights with-
in the context of the achr. Useful guidance could be derived from its provi-
sions, as well as from the crc Committee’s interpretation and application of
them.
6 Final Remarks
The practical significance of considering the crc an interpretative instrument

of the achr should not be underestimated, especially given the consolida-
tion of the doctrine of conventionality control in the majority of the States
parties to the achr but not to the crc. Current practice of both the iachr
and the ACtHR easily demonstrates that there is room for using the crc arti-
cles and provisions to support an evolutive interpretation of the achr in the
domestic courts of the achr Contracting States, as well as in Washington and
Costa Rica. Nevertheless, it is fundamental for avoiding fragmentation of the
Inter-American human rights system that references to the crc’s provisions,
general principles and articles are restricted to where they are strictly indis-
pensable to guide its interpretation and application as a ‘living instrument’.104
That said, it is clear, however, that the crc constitutes a useful interpretive
instrument that, given especially its detailed character, may produce positive
results in the interpretation and application of the achr to youth people and
children, as the above mentioned examples indicate. Furthermore, consider-
ing that the crc is the most ratified human rights convention in history and it
implies a wide array of crucial changes and transformations in the social group
of childhood such as the introduction of the idea of children’s participation,
the iachr and ACtHR will likely rely more and more often on the crc’s provi-
sions and articles as intepreted and applied by the crc Committe. Although
such reliance may not always be evident in the ACtHR’s judicial decisions
and iachr’s reports, there is no much uncertainty today that, at the Inter-
American level, the crc’s principles and provisions have already began to im-
pact in any decision-making process concerning youth people and children.
104 On the problematicity of the fragmentation of the Inter-American Human Rights system,
see in particular Lea Shaver, ‘The Inter-American Human Rights System: An Effective In-
stitution for Regional Rights Protection?’, (2010) 9 Washington University Global Studies
Law Review <https://openscholarship.wustl.edu/law_globalstudies/vol9/iss4/4> accessed
23 February 2020, stressing that: ‘ … fragmentation is problematic … to the extent that the
Inter-American system relies on the oas for its enforcement since many members of the
oas are already committed to not participating in that system.

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26 Seatzu
herefore, the conclusion here, is that referring to the crc for the interpreta-
T
tion and application of the achr and the adhr in children’s cases, either
explicitly or implicitly, increase the capacity of these two international legal
instruments to guarantee and defend children’s fundamental freedoms and
rights.

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international human rights law review

The Interpretation of the American Convention on

American Convention on Human Rights (achr) – United Nations Convention on the

* JD (Cagliari); PhD (Nottingham).

© koninklijke brill nv, leiden, 2020 | doi:10.1163/22131035-00901007

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women in the Inter-American Convention on the Prevention, Punishment and

10 Organization of American States (oas), Inter-American Convention on the Prevention,

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Nonetheless, the Inter-American Commission on Human Rights (iachr or

14 See iachr, ‘Fulfillment of Children’s Rights’, <https://violenceagainstchildren.un.org/

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2 The United Nations Convention on the Rights of the Child (crc):

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called the present-oriented approach’ to children, places ultimate emphasis on

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in its P­ reamble and substantive provisions, and as explicated by the crc

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r­ eproductive autonomy, as indirectly confirmed by the unusually comprehen-

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3 Children and the Inter-American Human Rights System

Although children’s fundamental rights and liberties are underrepresented in

33 Organization of American States (oas), Inter-American Convention on the Elimina-

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55 Preliminary Objections, Judgment of 4 February 2000, 1 33.

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4 References to the crc by the Inter American Court of Human

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4.1 Children’s Migration

65 The text of the Report <https://violenceagainstchildren.un.org/sites/violenceagainstchil

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c­ hildren in the context of migration and/or in need of international protec-

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76 Ibid., para 218.

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85 Ibidem., para. 219.

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4.2 The Sale of and Trafficking of Children

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e­ xploitation of children and youth people. In Gelman v. Uruguay, for instance,

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5 The Future of the Use of the crc as an Interpretative Instrument

97 Ibid., paras 128–141.

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The practical significance of considering the crc an interpretative instrument

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in its P reamble and substantive provisions, and as explicated by the crc

r eproductive autonomy, as indirectly confirmed by the unusually comprehen-

c hildren in the context of migration and/or in need of international protec-

e xploitation of children and youth people. In Gelman v. Uruguay, for instance,