Many of the Organization's member states have tailored their national legislations to the principles set forth in the Convention on the Rights of the Child and have formulated special programs designed to deal with the current situation of children in the various groups of society in which they live.
In order to comply with the recommendation of the General Assembly referred to earlier, and at the request by the Commission, a number of OAS member states have furnished information on the action they have taken to devote special attention to respecting and promoting the rights of children. This information is reported below.
Colombian domestic law provides, as it has done for some time, for preventive and special protection of minors through the enactment of various legal instruments and the organization of services and institutions which have evolved in step with the country's needs.
Law 75 of 1968 created the Colombian Institute for Family Welfare (Instituto Colombiano de Bienestar Familiar--ICBF), an agency responsible, under the supervision of the Office of the President of the Republic and the Ministry of Health, for furnishing and organizing preventive and special protection for Colombian children. It also created Protectors of Minors, attached to the ICBF, throughout the country and laid down provisions designed to guarantee responsible paternity.
Law 7 of 1971 created and organized the National Family Welfare System (Sistema Nacional de Bienestar Familiar), with jurisdiction over all public and private entities in Colombia that look after and work on behalf of families, with the object of ensuring that public family welfare services are provided systematically and uniformly throughout the country.
Colombia has posted a number of advances in the protection of children and the family in recent years. They include enactment of Decree-Law 2737 of 1989 (the Minor Children Code--Código del Menor), creation of the office of Special Attorney for Protection of Minors and Family (Procuradoría Delegada para la Defensa del Minor y la Familia), the specialized Family Jurisdiction agency, by means of Decree-Law 2272 of 1989, which also set up 322 Family, Juvenile and Errant Children Courts (Juzgados de Familia, de Menores y Promiscuos) in Colombia's major municipalities; creation of the Presidential Advisory Board for Women, Youth and Family (Consejería Presidencial para la Mujer, la Juventud y la Familia), and finally, ratification of the Convention on the Rights of the Child, approved in Colombia by Law 12 of 1991.
The rights of children under 18 are dealt with in Articles 44, 45, 50 and 67 of Title II (Rights, Guarantees and Duties) of the new Constitution of 1991. Article 44 deserves special mention:
The following are fundamental rights of children: life, physical security, health and social security, balanced nutrition, name and nationality, to have a family and not to be separated from it, care and love, education and culture, recreation, and free expression of opinion. They shall be protected against all forms of abandonment, physical or moral violence, abduction, sale, sexual abuse, labor or economic exploitation, and hazardous work. They shall also enjoy such further rights as are set forth in the Constitution, the laws and the international treaties ratified by Colombia.
The family, society and the state are obligated to assist and protect the child in order to guarantee his/her full and balanced development and the full exercise of his/her rights. Any person may require the competent authority to enforce these rights and punish those who violate them.
The rights of children prevail over the rights of other persons.
According to a report prepared by the Colombian Family Welfare Institute (ICBF), an agency under the jurisdiction of the Ministry of Health, about 46.5 percent of Colombians are under 18 years old. The ICBF has developed a number of programs for the care and protection of this segment of society. They include inter alia: Community Welfare Homes (Hogares Comunitarios de Bienestar), Children's Homes (Hogares Infantiles), School Cafeterias (Restaurantes Escolares), and Comprehensive Family Care Centers (Centros Integrales de Atención Familiar).
The ICBF cares for more than 20,000 abandoned or physically or morally endangered children throughout the country. This care comprises accommodation and protection in regular replacement homes, special replacement homes for incapacitated children and institutions contracted to provide rehabilitation services for physically or mentally deficient children.
Colombia's "Santander Code", which took effect on August 7, 1819, exempted children under 7 years of age from punishment except for care and correction by their families. The 1859 and 1890 codes contain even more precise provisions concerning re-education and exemption from punishment. Turning to the 20th century, Law 98 of 1920 set up Courts and Reform and Correction Institutions for minors under 17 where criminal and police offenses would be dealt with from a standpoint of protection and re-education. Later, Law 83 of 1946, known as the Child Defense Law, widened the competence of the juvenile courts to include cases of abandonment or physical or moral danger of minors, and attached to the courts Juvenile Care officers (Promotor Curador de Menores) responsible for studying the background of each child brought before the court and advising it on the assistance and protection action that would be in the child's best interest.
Decree 1818 of 1964 carried the reform further than Law 83. It set up a Council for Social Protection of Minors and Families (Consejo de Protección Social del Menor y de la Família); made the Minors Division of the Ministry of Justice reponsible for handling criminal offenses committed by children under 12 and cases of abandonment and endangerment of those under 18; and provided for coordination between the juvenile courts and the re-education institutions. In this way the Decree definitively instituted a system of justice for minors separate and different from the ordinary system.
In Colombia, some 10,000 minors aged 12 to 18 are brought before the juvenile courts each year for criminal offenses. About 6,000 of these are returned to their family environment by order of the court. The rest are remanded to specialized institutions for observation by multidisciplinary professional teams, composed of psychologists, social workers, doctors and attorneys, for a period averaging 45 days, after which they return home with an undertaking to attend re-education programs conducted by the ICBF.
The remaining juveniles are held by court order for an average of a year in closed institutions, today annexed to the ordinary adult prisons, where they are also dealt with through re-education programs.
The Constitution of Dominica (1978) guarantees the basic rights of all citizens without discrimination. The rights of minors are dealt with in the Child Support Order (Chapter 162), the Child Protection Order (Chapter 161), the Child Labor Prohibition Order (Chapter 110) (see Amendment 5 of 1967), and the Juvenile Delinquents Punishment Order (Chapter 40).
Ecuador's legislation on minors has been revised as part of the process of adjusting and restructuring its local regulations on the protection of children and prevention of discrimination against them. A new Minors Code was drawn up, under the leadership of the Ministry of Social Welfare, International Defense of Children and UNICEF, with the direct participation of some 300 agencies and institutions working with children in Ecuador.
Under the new Code, a minor is not only a person in need of protection, as current law provides, but a person in course of formation who has rights and duties like everyone else. The first responsibility of the law must be to safeguard and guarantee the enjoyment by all of the right to life, health, peace, education, access to culture, dignity and respect for one's own identity, while giving due attention to the special protection that children need owing to their particular situation and the preferential treatment accorded to them by the Declaration and the Convention on the Rights of the Child.
In the case of Ecuador, the basis of the current legislation is to be found in the first Minors Code, enacted in 1938, when the Labor Code was also published. These two laws, which are currently under revision, reflect the views of a time when the state assumed responsibility for protecting the most disadvantaged parties in social relationships. While the government does bear responsibility for ensuring respect for children's rights, it rests mainly with families, communities and society. The new Code reflects this concept of social responsibility in the protection of children.
The problems of minors cannot be completely resolved by applying a Code because their needs go beyond mandates or prohibitions imposed by law. They are human problems whose causes can be economic, social or psychological and which affect not only the minor but also his or her family.
The new Code will promote a more human view of such problems as mistreatment, abandonment, disputes between parents, street labor and other difficult situations in which a minor may find himself or herself. At the present time the response in nearly every case is to separate the child from the family and incarcerate the adults that are "to blame", or even the child, in an institution, a proceeding that is more like a punishment for than a solution to the situation in which the minor and the family find themselves.
In contrast, the new Code will serve to guide and motivate a process of cultural and structural change in society, developed around the rights of the child. To that end it sets guidelines for governmental social policies and promotes the mobilization, within a framework of law, of social attitudes and public opinion in favor of minors. The new Code will be more than a simple set of rules; it will be a functional instrument for ensuring respect for children's rights in Ecuador.
Concerning abandonment, the new Code assigns mistreatment to a separate chapter. It recognizes two levels of abandonment: temporary and definitive. In addition, the ways of dealing with abandonment tend to avoid putting the minor in an institution and to favor family placement. A procedure is laid down which ensures parents of the right to show that they have not abandoned the child.
The protection of minors against mistreatment is dealt with in a special new chapter. It provides that only the juvenile courts are competent to deal with cases of mistreatment. The court can simply issue a warning, can order therapy or, in serious cases where the shattered relationship cannot be repaired, can issue a declaration of definitive abandonment. In cases of mistreatment amounting to criminal conduct, the court has the authority to order the institution of criminal proceedings.
The Code creates a Family Rehabilitation Department responsible for taking preventive action and providing assistance in cases of mistreatment. It recognizes the role of community participation with the government in dealing with mistreatment.
The current Minor Children Code designates as "juvenile delinquents" or minors exhibiting irregular behavior persons who, being minors, commit acts that constitute punishable behavior, as defined by the Code, and the punishment falls on the minor that commits the act.
The proposed reformed Minors Code avoids the use of terms that stigmatize minors. The Code recognizes parents' priority right to deal with behavioral problems of their children. It encourages community participation in supervising minors and assisting them to resume their place in society.
Guatemala is developing a human rights education project through its Ministry of Education. The purpose of the project is to involve all segments of society, governmental and others, in protecting the rights of children, among others, with the object of instilling a sharpened awareness of the importance of those rights in the Guatemalan community.
In the case of Mexico, the legislative framework for protection of the rights of minors is laid down in the Constitution. Article 3 of Mexico's Political Constitution establishes the rights of minors to education and to training in the balanced development of their faculties and respect for the dignity of the individual, supported on the ideals of the brotherhood and equality of rights of all human beings. In Mexican law, the term minor means a person under the age of 18. Article 4 of the Constitution prescribes that it is a prime duty of parents to safeguard the rights of minors to physical and mental health and satisfaction of their needs. It also provides that supportive measures for their protection shall be defined by law and implemented under the responsibility of the public institutions.
Concerning labor rights, sections II, III and V of Article 123 of the Mexican Constitution set forth specific protective rules governing labor by minors.
Sections II and III contain provisions prohibiting the employment of children under 14 years of age, setting the maximum workday for children over 14 but under 16 at 6 hours and prohibiting their employment on unhealthy or hazardous tasks or on industrial or any other night work after 10 p.m.
In the case of working mothers, child protection begins during pregnancy. Thus, section V of Article 123 prohibits the employment of pregnant women on work that involves substantial physical effort or endangers the course of the pregnancy. They are entitled to a compulsory rest period of 6 weeks prior to the expected date of delivery and 6 weeks thereafter, on full pay, and to retain both their jobs and all vested rights arising out of the labor relationship. Nursing mothers are allowed two special half-hour rest periods per day in order to feed their children.
These basic principles have been respected by the ordinary legislator in the Federal Labor Law and the head of the Federal Executive Branch in the regulations to it.
The constitutional provisions relating to minors have generated a series of legislative and regulatory provisions which specifically regulate the legal situation of minors, each within its particular sphere of application, with the object of guaranteeing the coherent and balanced satisfaction of minors' needs and the special protection they require against abuse, abandonment and exploitation.
Rules are laid down covering a series of legal situations that define the position of minors in their family life. The living conditions of the core family and a dignified environment for the development of its members are factors decisive to the social life and well-being of children. In that connection, Article 4 provides that the law "shall safeguard the organization and development of the family".
Public institutions exist in Mexico for the protection of children and adolescents. An example is the National System for Comprehensive Family Development (Sistema Nacional para el Desarrollo Integral de la Familia--DIF), set up in 1977, which brings to bear the experience of several decades of systematic effort by the Mexican Government in the service of children. The DIF's institutional forerunners include the National Institute for Protection of Children (Instituto de Protección a la Infancia), created in 1961, and its successors: first the Mexican Institute for Assistance to Children (Instituto Mexicano de Asistencia a la Niñez), with expanded facilities and resources, and later the Mexican Institute for Child and Family (Instituto Mexicano para la Infancia y la Familia).
Mexico operates foundling homes for children and adolescents without family, which provide comprehensive temporary protection for abandoned children under six, in exercise of dative guardianship, and also homes for minors which care for children and adolescents aged 6 to 18 who are regarded, in light of their social situation, as fully or partly orphaned or abandoned.
These care services include accommodation, food, clothing, medical attention, educational and recreational activities, social services and legal support for minors deprived of protection by their families.
As regards the health and education rights of children, Mexico operates a number of programs with a direct impact on the well-being of children and adolescents. The National Health System operates the Maternal and Child Health Program and the School Health Care and Promotion Program. The National System for Comprehensive Family Development operates inter alia the Nutritional Care and Improvement Program, the Minors Special Situation Program (whose purpose is to care for minors for whom the streets have become their habitat), the Program for Prevention of Mistreatment of Minors and the Program for Total Development of the Adolescent.
The Mexican Government also operates broad drug dependency prevention and care programs.
The National Health System's programs reach 94 percent of Mexico's population. Average life expectancy at birth has risen from 47 years in 1950 to 70 years for the generation born in 1990, while infant mortality has fallen from 132 deaths per 1,000 live births in 1950 to 38 in 1990.
In education, according to the information furnished, the scale of the efforts made can be gauged from the following indicators: 27 percent of the population is in the 5-14 years age group, which covers the 10 years of basic education; primary-school enrollment in 1990 totaled 14.6 million, including the 583,000 indigenous students in the bilingual and bicultural primary education program. Some 4.5 million children attend secondary school. Illiteracy has been reduced from 23.7 percent in 1970 to 8 percent in 1990.
The framework of international efforts to promote the welfare and protect the rights of the child population has been expanded with the Convention on the Rights of the Child and the World Summit Conference on Children.
On September 21, 1990 Mexico ratified the Convention on the Rights of the Child. It was also one of the countries that sponsored the World Summit Conference on Children, held under United Nations auspices in September 1990 and attended by more than 70 heads of state and government. The President of Mexico stressed the need not only to assign a priority place to the world's children but also to promote sharpened awareness of the serious abuses suffered by minors who migrate with their families, those that seek asylum, and the many that live in poverty. "Only a global initiative to promote development can sow the seed of true hope for the world of the 2lst century".
Concerning the treatment of juvenile offenders, Article 18 of the Mexican Constitution makes it a duty of the Federation and the State Governments to set up special institutions for their rehabilitation.
The Law creating the Minors Guardianship Council (Consejo Tutelar para Menores) is designed to promote social readjustment of criminal offenders under 18 years of age. Article 34 of the Law provides that any authority before which a juvenile is brought must immediately place him or her at the disposal of the Guardianship Council.
In addition, Articles 44 through 46 of the Law creating the Guardianship Councils for Juvenile Offenders in the Federal District prescribe the treatment of minors, comprising observation to determine their personality traits by means of medical, psychological, pedagogical and social studies, the appropriate techniques being applied in each particular case.
The Mexican Government is currently studying possible reforms to this Law, on the basis of a preliminary draft drawn up by the National Commission on Human Rights, with the object of strengthening the guardianship system to tailor it to the needs arising out of the social situation as it exists and to the constitutional principles of legality and proportionality.
In Nicaragua, the family, the community and the Government are responsible for and guarantors of the physical, mental and social development of minors, operating within parameters defined by the country's laws.
However, those laws are not adequate to permit effective protection of minors on the basis of the agreements under the Convention on the Rights of the Child. They include: the Minors Guardianship Law, the Adoption Law, Law No. 38 (dissolution of the marriage bond at the will ofeither party); Decree 10.65 (regulating mother, father and children relationships), and the Regulations to Article 73 of the Labor Code (food allowances).
The Department of Protection is responsible for implementing the existing laws, in coordination with the Social Welfare teams in the various departments at the national level. The Department acts as plaintiff defending the rights of minors pursuant to Article 39 of the Minors Guardianship Law. In addition, it protects abandoned, orphaned and mistreated children by placing them in centers or foster homes and/or arranging for their adoption by decision of an Adoption Council, which conducts a prior case study to ensure that the child will have a better future.
The Nicaraguan Social Security and Welfare Institute (Instituto Nicaraguense de Seguridad Social y Bienestar--INSSB) conducts the care and services programs for minors. The Institute's task is to provide minors up to 15 years old with the care and attention they need for their proper development by means of preventive, protective and re-educational activities conducted through a national network of centers and Community Work activities.
Nicaragua's current under-15 population numbers about 1,790,000 persons of whom only 56,219 are being cared for by the INSSB under its various programs. The following are the major parameters:
- Nicaragua will continue to have a population with an average of 40 percent under 15 years of age until the beginning of the 21st century;
- Forty six percent of the current population is in the 0-14 years group;
- Seventy five percent of the under-10 population lives in places stricken by poverty;
- Infant mortality is 71.8 per 1,000 live births;
- Eighty six of every 1,000 Nicaraguan children in the 0-6 years group have no access to either daily care programs or preschool education;
- Some 150,000 children aged 7 to 12 do not attend primary school.
The various types of care provided by Social Welfare include: Infant Development Centers (CDIs), Communal Preventive Centers, Juvenile Protection and Re-education Centers, Community Work, and Mass Education.
Community Work operates through case-by-case attention. It provides care to minors who suffer mistreatment, abandonment, initial vagrancy and violation, and also food allowances and spouse and family guidance, with the aim of helping to lower the incidence of psychological problems in Nicaraguan families.
For the period 1990-91 Nicaragua has managed to sustain the level of care furnished to minors and families in its more vulnerable sectors.
Through coordination with other institutions and agencies it has raised the quality of the services in terms of techniques and methods. Nicaragua receives financial support for the conduct of its programs from international agencies that work on behalf of children, such as Norway's Red Barna, Sweden's Barnen, and UNICEF.
On the other hand, Nicaragua faces difficulties in applying its child protection programs. These include serious deterioration of the physical plant of the juvenile care centers; Social Welfare's low operating budget; serious deterioration in the Nicaraguan child nutrition and health sectors owing to the dearth of human and financial resources; and shortcomings in the current child protection legislation, which does not afford full protection of minors: violation of the rights of minors is classified as a private offense, which means that the state cannot take the initiative in protecting them, and the lack of a Family Code means that the family protection legislation continues to be dispersed.
Articles 40 through 43 of the Uruguayan Constitution lay down the general framework of protection of minors' rights and the obligations of parents toward their children.
The provisions of the Constitution are in turn developed and supplemented by a compendium of legal regulations on the subject of minors known as the "Children's Code" (Código del Niño). The Code deals comprehensively with all aspects of the treatment of minors. The various topics dealt with in it include inter alia: prenatal protection; infancy; childhood; adolescence and labor; hygiene; intellectual and moral protection of minors; abandoned minors and juvenile offenders; loss of parental authority; adoption; investigation of paternity, and fixing of the food allowances system.
The inhuman conditions under which so many children live in our hemisphere are tangible evidence of violation of the most elementary human rights, aggravated by exploitation, violence and the armed hostilities of modern society.
The rights provided for in the Convention on the Rights of the Child constitute the minimum rights that every society must guarantee to its children. Despite the serious violations of children's rights that take place in our region, it is noted that the Convention has been very well received, as is attested by the large number of OAS member states that have ratified it.
Attention is also drawn to the importance of enforcing the rights set forth in the Convention in order to ensure its effective implementation.
The Convention includes mechanisms for applying it or putting it into effect on a smaller scale than that prescribed for the implementation of human rights principles at the international level.
One such mechanism comprises the education of government officials and of individual members of society.
The other comprises revision of the national legislations of the States Parties to adjust them to the provisions of the Convention.
In addition, the second part of the text of the Convention sets up a Committee on the Rights of the Child to monitor compliance with the obligations of the signatory states, which are required to present reports to it describing the measures they have taken to give effect to the rights recognized in the Convention. They are also required to furnish in these reports information on the progress they have accomplished with respect to enjoyment of those rights and any difficulties or other circumstances that could impair their compliance with the obligations set forth in the Convention.
The Committee on the Rights of the Child, which is composed of experts appointed in their personal capacity by the Convention's signatory states, has no competence whatever to consider complaints of specific cases of violation of the rights recognized by the Convention.
At the regional level, however, the American Convention on Human Rights includes a mechanism which allows the Inter-American Commission on Human Rights to receive and deal with reports of individual cases of violation of human rights. Such complaints can also refer to specific cases of violation of children's rights, since they fall within the compass of the human rights covered by the American Convention.
Bearing in mind that, vulnerable as they are, children have become the victims of violence, torture and extermination, sexual abuse, drug addiction and crime, forced labor under conditions that can best be likened to slavery, illiteracy and malnutrition, kidnapping for purposes of adoption or involuntary organ transplants, and the armed conflicts in which they are often forced to participate, the Commission has decided:
1. To recommend to the member States that they adopt the necessary measures, both on the domestic front and through international cooperation, to guarantee observance of the rights of children in accordance with articles 1, 2, 19 and 26 of the American Convention on Human Rights and the provisions of the Convention on the Rights of the Child, approved and ratified in the United Nations by majority of American States.
2. To reiterate to those Member States of the OAS that have not yet done so the necessity that they transmit the information requested by the IACHR concerning strengthening of the OAS in the area of human rights of minors, pursuant to Resolution AG/RES. 1112 (XXI-0/91), approved by the General Assembly at its twenty-first regular session.
3. To urge those states that have not yet done so to ratify or accede to, as appropriate, the Convention on the Rights of the Child, the American Convention on Human Rights, the Additional Protocol to the American Convention on Human Rights Concerning Economic, Social and Cultural Rights, the Inter-American Convention on Support Obligations, the Inter-American Convention on the International Return of Minors, and the Inter-American Convention on Conflict of Laws Concerning the Adoption of Minors.
In addition to the specific recommendations made in this report, the Commission would like to make the following general recommendations:
1. That member states not party to the 1969 American Convention on Human Rights (Pact of San Jose) ratify or accede to that instrument; to those states that have not yet done so, that they recognize the competence of the Inter-American Commission on Human Rights to admit and examine communications between states, pursuant to Article 45.3 of the Convention, and that they recognize the compulsory jurisdiction of the Inter-American Court of Human Rights, pursuant to Article 62.2 of the Convention.
2. To those states that have not done so, that they ratify or accede to, as appropriate, the Inter-American Convention to Prevent and Punish Torture and the Additional Protocol on Abolition of the Death Penalty.
3. That at its next session, the General Assembly adopt the Inter-American Convention to Prevent and Punish the Forced Disappearance of Persons, proposed by this Commission.
4. That the member states implement the recommendations of the Inter-American Commission on Human Rights contained in this Annual Report.
5. That the General Assembly declare that the obligation of the States to promote, insofar as they are able, the enjoyment of the economic, social, and cultural rights is the basis of genuine, lasting development and is part of the inalienable enjoyment of human rights. That, accordingly, economic adjustments must be structured in such a way that they do not do further injury to the most needy and most vulnerable sectors, those who have suffered most as a result of internal violence and recession.
6. That to those member states that have not yet done so, the General Assembly recommend and urge that they ratify the Protocol of San Salvador, so as to be able to offer their citizens an instrument that protects their economic, social, and cultural rights both nationally and internationally.
7. That to those member states that have not yet done so, the General Assembly again request that they send the information requested by the IACHR concerning the strengthening of the Organization in the field of human rights, pursuant to AG/RES. 1112 (XXI-0/91), adopted by the General Assembly at its twenty-first regular session.
8. That the General Assembly recommend that the member states adopt the domestic measures needed to guarantee the observance of the rights of children, in accordance with articles 1, 2, 19, and 26 of the American Convention on Human Rights and the provisions of the Convention on the Rights of the Child.
9. That the General Assembly urge those member states that have not yet done so, to ratify or accede to, as appropriate, the Convention on the Rights of the Child, the Inter-American Convention on Support Obligations, the Inter-American Convention on the International Return of Minors, and the Inter-American Convention on Conflict of Laws concerning the Adoption of Minors.
10. That the General Assembly request the governments of the member states to take the necessary measures to prevent attacks or threats to members of the Judiciary and to protect their autonomy, independence, and integrity to enable them to investigate human rights violations properly and exercise their functions to the fullest.
11. That the General Assembly request the governments of the member states to give the IACHR their fullest cooperation, pursuant to resolution AG/RES. 1022 (XIX-0/89), approved by the General Assembly at its nineteenth regular session on the matter of the autonomy, independence, and integrity of the members of the Judiciary.
12. That the General Assembly request the governments of the member states to cooperate fully with the IACHR in the consultations on an inter-American instrument to protect the rights of indigenous peoples, AG/RES. 1022 (XIX-0/89), and that the indigenous peoples themselves participate in those consultations.
13. That the General Assembly exhort the Government of Honduras to comply fully and promptly with the judgment handed down by the Inter-American Court of Human Rights on August 17, 1990, in the Velasquez Rodriguez and Godinez Cruz cases.
14. That the member states guarantee greater respect for and protection of nongovernmental human rights organizations operating within their territory, thereby acknowledging the very crucial role that these organizations play in monitoring the observance of human rights.
15. That the General Assembly recommend to the General Secretariat that when preparing the proposed budget for the biennium 1994-95, provision be made for the resources that the IACHR needs and requested, but that could not be provided in the 1992-93 biennium.