REPORT ON CORPORAL PUNISHMENT AND HUMAN RIGHTS
OF CHILDREN AND ADOLESCENTS
 

VIII.    THE STATES OBLIGATION TO RESPECT AND TO PROMOTE RESPECT OF CHILDREN HUMAN RIGHTS IN THE RELATIONS AMONG PRIVATE INDIVIDUALS

68.              Studies done on corporal punishment and its impact on children and adolescents[95] show that in most regions of the world the practice of corporal punishment is accepted and tolerated when used by adults responsible for the care and protection of children and adolescents as a means to discipline and control them.  Thus, for example, the 2006 Report of the Independent Expert for the United Nations Study on Violence against Children shows that the discipline exercised through corporal punishment is often regarded as normal and inevitable, especially when no “visible” or “lasting” injury results.”[96]  The study finds that only a small percentage of cases of violence against children are reported and investigated and that, worldwide, only 2% of children and adolescents are protected against corporal punishment in the home; 4% of children in alternative care institutions are protected, 42% are protected against corporal punishment committed in the school, 42% are protected against corporal punishment imposed by the penal system as part of a judgment, whereas 81% of children are protected against corporal punishment imposed by the penal system as a disciplinary measure used on child offenders.[97]

69.              Domestic courts and the international bodies that oversee human rights[98] have underscored the importance of the erga omnes nature of the duties that States have to respect and to ensure respect for the rights of children and adolescents to special protection vis-à-vis the actions of private third parties.[99]  Domestic and international jurisprudence clearly holds that states must oversee the provision of services that are in the public interest, such as health or education, when those services are supplied by private parties.[100]  This obligation of supervision is of fundamental importance when the services being supervised are those provided by public or private institutions charged with the protection, safekeeping, care and education of children, to guard them against corporal punishment.

70.              International human rights law does not admit arguments based on a dichotomy between the public and private spheres that would tend to ignore or place unjustified restrictions on human rights. Thus, the Preamble to the Universal Declaration of Human Rights refers to the responsibilities of nongovernmental agents vis-à-vis human rights in the following terms:

Every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms.[101]

71.              Similarly, the jurisprudence of the European Court has addressed the State’s obligations vis-à-vis the actions of private citizens. Specifically, the topic of corporal punishment was dealt with in connection with the United Kingdom’s obligations regarding the forms of discipline used in private schools in the case of A v. the United Kingdom, 1998.[102]

72.              In this regard, the Commission notes that States are obliged to uphold the principle of the limits that exist between the rights and duties of private citizens enshrined in Article 32.2 of the American Convention on Human Rights. That Convention, in contrast to the Convention on the Rights of the Child, stipulates in Article 32 that the relationship between people’s rights and duties must be ensured. It states that, to ensure that relationship:

The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society.

73.              The joint interpretation of these provisions requires States to bring their domestic laws into line with the Convention’s standards, in order to ensure that a correlation between rights and duties always exists in relations among private citizens. In this regard, the Court has ruled that: “the general duty set forth in Article 2 of the American Convention implies the adoption of measures on two fronts. On the one hand, elimination of any norms and practices that in any way violate the guarantees provided under the Convention; on the other hand, the promulgation of norms and the development of practices conducive to effective observance of those guarantees.”[103]

74.              In addition, Article 32 underscores the horizontal dimension of the State’s obligation of upholding human rights. Thus: “States are obliged erga omnes to protect all people under their jurisdiction, and that obligation is imposed not only with respect to the power of the State, but also as regards the actions of private third parties.”[104] The Inter-American Commission has addressed the scope of Article 32 in the following terms:

Article 32.2 recognizes the existence of certain inherent limitations to the rights of all persons which are a normal consequence of life in society.[105] 

75.              In addition, as stated by the Court in Advisory Opinion 17, no room for discretion exists in the private sphere, particularly as regards the full respect for the human rights of children and adolescents.[106] Accordingly, the IACHR holds that States are obliged to take steps of all kinds to ensure a correlation of rights between the adults responsible for the care, guidance, and education of children and the international standards applicable to minors and the way in which States can ensure that correlation in accordance with international human rights law.

76.              Further to this, in Advisory Opinion 17, the Court ruled that there must be a fair balance between the interests of the individual and those of the community, as well as between those of minors and those of their parents.[107] It also stated that the authority of the family does not entitle it to exercise arbitrary control over a child that could pose a threat to the minor’s health or development.[108] In its reply to the request for an Advisory Opinion on the topic of this report, the Court said that:

States are responsible for the actions of both public and private entities that provide services which affect the life and integrity of people. In this respect, “the States must regulate and supervise […] as a special duty to protect life and personal integrity, regardless of the public or private nature of the entity giving such services […], since under the American Convention international liability comprises the acts performed by private entities acting in a State capacity, as well as the acts committed by third parties when the State fails to fulfill its duty to regulate and supervise them.”[109]

77.              In light of the Court’s rulings, the IACHR holds that in meeting their international obligations vis-à-vis the protection of children, States must ensure that the rights exercised by parents, guardians, and others responsible for the care and education of children under the age of 18 does not mean that the rights of those children and adolescents are ignored.

78.              In this context, the IACHR points out that since corporal punishment is seen in the Americas as a “reasonable” and “moderate” practice and is broadly accepted and allowed as a necessary method of correcting children’s behavior, the result is a situation of disproportionate and unreasonable differentiation with regard to persons under the age of 18. The result of this is that only cases of extreme violence or those that leave physical marks on children and adolescents are sanctioned. The IACHR sees a contradiction in this situation, in that when the practice is used against adults, it is ruled illegitimate; this is exemplified by the fact that domestic laws contain criminal provisions that prohibit all forms of aggression and abuses against adults, defined as crimes of criminal injury and offenses against physical integrity. Thus, it could be held that with respect to children, the principles of nondiscrimination and of equal protection of the law are being violated.

79.              In conclusion, it could be suggested that a State that permits or tolerates the use of corporal punishment as a form of discipline by private citizens – be they parents, teachers, or other adults with responsibilities in caring for children and adolescents – could be in violation of its international obligations to ensure the enjoyment and exercise of the right to humane treatment and a life without violence for all individuals aged under 18.

IX.     CORPORAL PUNISHMENT OF CHILDREN AND ADOLESCENTS AND THE INSTITUTION OF PATRIA POTESTAD

80.              It should be noted, at the outset, that this section of the report is intended to assist States in adopting comprehensive public policies intended to educate families and institutions about the distinction that exists between corporal punishment, even the lighter forms thereof, and nonviolent discipline methods.

81.              Corporal punishment administered by parents and other family members to correct and discipline children and adolescents is a widespread practice around the world.  Various studies and statements made by the children and adolescents in the regional consultations conducted prior to preparation of the United Nations World Report on Violence against Children underscore the physical and psychological harm and damage they suffer as a result of corporal punishment.[110]  As observed in the Study on Violence against Children,[111] the family can become a dangerous place for children and adolescents and this is one of the spheres that pose the most serious challenges in the struggle to combat violence against children and adolescents.[112]

82.              By way of example, the majority of the member states of the OAS have not yet adopted specific measures to protect children and adolescents from the use of corporal punishment as a disciplinary method.  That omission is evident in the fact that most states in the hemisphere still have laws on the books that, in either ambiguous or explicit terms, allow parents to moderately correct and punish their children.[113]  While this is true, there are a number of states in the region that do have laws establishing penalties for the improper exercise of patria potestad.  These penalties consist of limitations or restrictions imposed when the parents endanger their children’s personal integrity.  They apply only when the punishments inflicted by the parents are unreasonable or excessive.  It is important to point out that the goal here is not that parents be penalized or sanctioned; instead, the goal is for States, in furtherance of their obligation to prevent and to act with due diligence, to promote stronger family units and family institutions by taking steps to eradicate the use of violence of any kind in the private sphere, which includes the family and the school.  In most States of this hemisphere, the prevailing climate is one of permissibility and legal acceptance of punishments provided they are neither excessive nor unreasonable.[114]

83.              The Committee on the Rights of the Child is troubled by the social tolerance for corporal punishment.  To those American states that have submitted their periodic reports, it has consistently recommended the adoption of a law “explicitly prohibiting the use of corporal punishment in the home, in schools and in other institutions.”[115]  An examination of the domestic laws in most member States of the OAS finds that while moderate corporal punishment is practiced that does not jeopardize the personal integrity of children and adolescents, corporal punishment is not prohibited.

84.              The gaps and shortcomings of the domestic laws of the OAS member states with respect to the rights and authorities given to parents to discipline their children point up the fact that the Court needs to give the States its guidance as to how to regulate the institution of patria potestad.  Thus, the interpretation of the scope and limits of the mutual rights and duties of parents and children is of particular importance in counseling the States as to how they can best ensure full respect for the human rights of children and adolescents within the family.

85.              The IACHR recognizes that patria potestad is a basic institution in family law and has been recognized in international human rights instruments.[116] The IACHR contends that parental authority must be interpreted as a function of the indivisibility of human rights[117] to ensure that the rights of the child are protected.  The member States’ domestic laws must regulate this matter in such a way that the human rights of children and adolescents are protected and observed.

86.              It is self-evident that the special measures of protection required under Article 19 of the American Convention include the obligation to prevent and to adopt such legislative and other measures as may be necessary, pursuant to Article 2 of the Convention. Improper exercise of patria potestad may lead to violation of various human rights of the child, beyond the right to humane treatment.  Therefore, the requested interpretation of Article 19, taking Article 5 of the American Convention into account and rendered in light of the Convention on the Rights of the Child, is crucial to determining the State’s added obligation to regulate this institution in such a way that the principle of the best interests of the child is properly served, and to establishing the measures that must be taken to provide parents with assistance and comply with international human rights standards.

87.              The indivisibility and interdependence of human rights must be reflected in all measures that States adopt, since violations of certain human rights may imply the abridgment of others. For example, if a child suffers corporal punishment, that undermines not only his right to humane treatment, but also his right to a decent life, free of violence. Consequently, it is imperative that the regulation and exercise of parental custody (patria potestad) reflect the recognition that human rights are indivisible and interdependent.

88.              The IACHR notes that the aforesaid provision refers to the basic elements that make up parental custody, an institution that is protected by international human rights law and, in particular, by the Convention on the Rights of the Child, and that established responsibilities, rights, and duties with respect to children and adolescents; at the same time, however, the guiding principle behind that institution must be the supremacy of the child’s best interests, ensuring that children and adolescents can exercise the rights granted to them by the Convention on the Rights of the Child.

89.              At the same time, in line with the position held by the Committee on the Rights of the Child in its General Comment No. 8, the IACHR believes it must be pointed out that although parenthood and child custody demand frequent physical actions and interventions to protect them (for example, holding a child so that a doctor can apply an inoculation, and “time outs” and other methods of “positive discipline”), that cannot justify the use of physical force to discipline a child. Of course, there are many other situations similar to those described in this section that neither the Commission nor the Court can catalogue. The topic of corporal punishment cannot be dealt with casuistically. That is not the aim of this study.

90.              Of course, the use of physical actions and interventions to protect children are clearly different from the deliberate and punitive use of force to cause a degree of pain, discomfort, or humiliation. As the Committee on the Rights of the Child concluded, “as adults, we know for ourselves the difference between a protective physical action and a punitive assault; it is no more difficult to make a distinction in relation to actions involving children.”[118]

91.              Accordingly, the IACHR holds that laws allowing parents to punish their children in a “moderate” or “reasonable” way by using corporal punishment are not in line with the international standards applicable to the institution of parental custody and, consequently, fail to afford the child due protection from corporal punishment.

X.        MEASURES INTENDED TO ERADICATE THE CORPORAL PUNISHMENT OF CHILDREN AND ADOLESCENTS

92.              As previously noted in this report, meeting the obligation of respecting and upholding human rights assumed by States in the protection of children and adolescents against corporal punishment requires measures of many different kinds, the goal of which must be the absolute eradication of the practice. In that regard, a consensus can be seen to exist within the international community regarding the urgency of legally prohibiting corporal punishment against children. This legal ban, however, must be accompanied by measures of other kinds – judicial, educational, financial, etc. – that, taken together, serve to eradicate the use of this form of punishment in the everyday lives of all children and adolescents.

93.              Accordingly, in this section the Commission will propose a series of criteria that should form part of any strategy intended to eradicate the practice, and it then proposes a range of specific measures to guide States in their efforts to eradicate corporal punishment.

94.              In addressing some of the measures for eradicating the use of corporal punishment as a means of disciplining children and adolescents in the OAS member states, the IACHR proposes the adoption of legislative, educational, and other measures that recognize the following criteria:

a. The child as a subject of rights: this criterion requires that States ensure that children are aware of their right to freedom from corporal punishment and have access to appropriate mechanisms for defending themselves. In addition, children must be allowed to participate and express their opinions in the actions taken toward eradicating corporal punishment.

b. A differentiated and specific approach for the effective protection of children in situations of greater vulnerability: children with disabilities, those held in detention centers, etc.

c. Efforts to bring about a change in social awareness regarding attitudes toward children, ensuring full respect for their rights through public policies in the social and educational spheres.

A.        Legislative measures

95.              By legislative measures intended to protect children from corporal punishment, the Commission means both the repeal of provisions that explicitly authorize the use of corporal punishment on children under the age of 18, the elimination of the “corrective measures” guidelines that are still a part of the regulations governing parental custody in many countries, and the adoption of provisions that explicitly prohibit corporal punishment.

96.              The Inter-American Court has said that:

One of the obligations of the State to protect children against mistreatment involves taking positive measures. Furthermore, the Court considered that “if the States, pursuant to Article 2 of the American Convention, have a positive obligation to adopt the legislative measures necessary to guarantee the exercise of the rights recognized in the Convention, it follows, then, that they also must refrain both from promulgating laws that disregard or impede the free exercise of these rights, and from suppressing or modifying the existing laws protecting them.” In the same respect, the Tribunal has pointed out in various cases that the general duty under article 2 of the American Convention implies the adoption of measures of two kinds: on the one hand, elimination of any norms and practices that in any way violate the guarantees provided under the Convention; on the other hand, the promulgation of norms and the development of practices conducive to effective observance of those guarantees. Furthermore this adoption of measures becomes necessary when there is evidence of any practice which is contrary to the American Convention in any area.[119]

97.              The Commission notes with concern that although many countries of the region have laws that protect children and adolescents against physical violence and child abuse, the same provisions do not guarantee appropriate protection for ensuring that minors do not receive corporal punishment. Thus, from a general perspective, States must afford absolute protection for the dignity and integrity of children and adolescents. That demands eliminating, in their legal frameworks, the use of such nonjuridical concepts as “moderation” to define what kind of discipline can be used against a person of minor age. Neither is it permissible for States to remain neutral vis-à-vis the widespread social acceptance of corporal punishment or for them to attempt to justify it as a necessary disciplinary measure that corresponds to positive goals, arguing that its application is deemed beneficial for the child or adolescent.

98.              In addition, it is vital that States explicitly prohibit corporal punishment, in particular, for two reasons: first, because it enhances the recognition of corporal punishment as a form of violence and a violation of human rights, which has an absolute effect on the actions of state agents; and, second, because although the goal of prohibition is not to penalize the actions of parents in the private arena, it is important to acknowledge that a legislative ban offers a reference point for the actions of legal officials responsible for enforcing domestic law in order to ensure protection for people aged under 18 who claim they have been victims of punishment. Furthermore, the experiences of other countries that have already taken a stance against the corporal punishment of children offers an argument in favor of an explicit ban covering such violations of children’s human rights.

99.              In addition, to be effective, the adoption of legislative measures requires the State to provide guidelines for their enforcement, such as, for example, the dissemination of those provisions and the promotion of the human rights of children and adolescents.

100.          With reference to our region, the IACHR notes that almost three years have passed since the Study on Violence against Children was presented, urging States to prohibit child corporal punishment by 2009, and that only three of the 35 member states of the Organization of American States have enacted legislation explicitly banning the use of corporal punishment on children and adolescents. Those countries are Uruguay, Venezuela, and Costa Rica.

B.        Educational measures

101.          Since the use of corporal punishment as a way to discipline children and adolescents is an accepted practice in many of the Hemisphere’s societies, it is vital that both the adults responsible for caring for children under the age of 18 themselves receive education about the rights of children, about the protection mechanisms available, and about discipline methods that are in no way based on violence.

102.          Essential in this area are campaigns to raise society’s awareness about refraining from the use of corporal punishment and, instead, to promote the understanding and use of nonviolent methods of discipline. Public education campaigns might be vital in order to create an understanding about the negative consequences of the corporal punishment and the need to promote preventive programs, including programs aimed at families on mechanisms that promote positive forms of discipline.

103.          For example, reference may be made to the experiences of other countries, such as Sweden,[120] the first country in the world to embark on the eradication of corporal punishment, which implemented a series of mechanisms to educate its citizens about the need to eradicate corporal punishment. So, for example, the government of Sweden sent educational pamphlets to all homes and schools, to ensure that children and adolescents were aware of their rights.

104.          In accordance with Article 19 of the American Convention on Human Rights and the Convention on the Rights of the Child, the IACHR urges the States to promote nonviolent forms of discipline that respect the rights of the child, to assist children in successfully attaining their goals by providing them with appropriate information and supporting their development as human beings.[121] The IACHR holds that this new form of learning must be based on the recognition of children and adolescents as full subjects of rights and on respect for their dignity. This view consequently admits no method that in any way affects or undermines the right of people aged under 18. It unavoidably involves shared learning among parents, adults, and children under the age of 18, and this poses particular challenges in that it entails teaching this new approach to discipline to adults, almost all of whom were disciplined through the use of corporal punishment.

105.          In addition, the IACHR believes that the Convention on the Rights of the Child helps identify some of the basic elements in the concept of discipline. Thus, the second paragraph of Article 28[122] of that Convention provides that school discipline must be compatible with the child’s human dignity. Although this provision deals with the right of children to education and the exercise of that right within educational establishments, the IACHR maintains that the discipline of children and adolescents can only be addressed in consideration of the human dignity of children; otherwise, it becomes an empty concept, one that is contrary to the rights of the child.

106.          Finally, the IACHR notes the existence of various studies and manuals that provide reference points for guiding the adoption of measures to promote positive discipline or rights-based discipline within the family, at school, and in other institutions responsible for the protection and care of children and adolescents.[123]

C.        Other measures to promote the eradication of corporal punishment against children and adolescents

107.          In addition to these legislative and educational measures, the eradication of corporal punishment against children and adolescents demands comprehensive action from the State. In connection with this point, the Commission does not intend to offer an exhaustive list of the range of measures that can be used to create a state policy for the eradication of corporal punishment. Nevertheless, it can identify a number of areas in which immediate action by the State would be necessary. These include health, justice, domestic security, etc.

108.          A comprehensive and effective course of action to eradicate child corporal punishment demands the development of appropriate skills among the public officials and other individuals who are responsible for children and who act with the consent of the State. The development of skills necessarily demands the creation and facilitation of rights-based training programs covering all the agencies involved in the promotion and protection of children and adolescents.

109.          In the sphere of justice, for example, the relevant measures include offering advisory services and specialized legal counsel for minors, so they are aware of and can act in situations in which they are victims of different forms of violence. In addition, consideration could be given to including the child-rights approach in the training courses given to justice system workers with responsibilities over children’s matters.

110.          At the same time, different forms of violence, even the milder forms, create public health problems which, if not addressed, could have a negative impact on both the social life and personal development of individuals.[124] Because of this, States should recognize that the use of corporal punishment to discipline children has a direct repercussion on physical and mental health, which requires the allocation of adequate specialized human and financial resources to ensure that the health system respects and protects the rights of children.

111.          Since corporal punishment is a form of violence, it is, simultaneously, a mechanism that teaches violent ways to relate to others, and this, in conjunction with factors of exclusion such as poverty, can lead to law-and-order problems. As this report has already emphasized, the aim of banning corporal punishment is not to penalize the actions of adults, but it does require, inter alia, a greater awareness and preparation on the part of the individuals responsible for upholding law and order. Instead, the aim is to encourage the effective compliance by States of their international obligations in protecting children and adolescents from all forms of violence.

112.          It is also important that regular research efforts are conducted to obtain updated information on children’s experiences with the topic of corporal punishment and on the perceptions and attitudes of parents and other responsible adults, to be used as ingredients in the design of new strategies.

XI.       CONCLUSIONS AND RECOMMENDATIONS

113.          Pursuant to the provisions of the American Convention on Human Rights, interpreted in light of the Convention on the Rights of the Child, the IACHR affirms that the use of corporal punishment as a way to discipline children and adolescents, whether imposed by state agents or when a State permits or tolerates it, constitutes a form of violence against children that wounds their dignity and hence their human rights.  The IACHR affirms that pursuant to the terms of Article 19 of the American Convention on Human Rights and Article VII of the American Declaration of the Rights and Duties of Man, the member states of the Organization of American States are obliged to guarantee children and adolescents special protection against the use of corporal punishment.

114.          In accordance with the international standards governing the rights of children and adolescents, the IACHR emphasizes the urgent need to adopt a state policy for children that transcends individual governments and short-term needs and, at the same time, ensures the sustainability of the measures adopted to comply with international obligations relating to the protection of child rights in the Hemisphere.

115.          Both the IACHR and the Court have identified the need to implement appropriate measures, based on the particular vulnerability of children and adolescents that guarantee full respect for their rights.

116.          The Inter-American Commission has determined that under the domestic laws of the member states of the Organization of American States, the use of corporal punishment as a way to discipline children is accepted by societies and tolerated by the States. The IACHR consequently attests that the State’s duty of ensuring respect for the rights of the child requires the adoption of legislative measures that explicitly prohibit the corporal punishment of children and adolescents in the home, at school, and in institutions responsible for their care. Parallel to this, the IACHR recommends the adoption of other measures to assist in eradicating corporal punishment and to make the Americas a region free of corporal punishment for children and adolescents.

117.          The IACHR underscores the need to ensure that a comprehensive approach to children’s rights is followed in all areas that have an impact on their full development as human beings. In this regard, the IACHR notes that the legal institutions applicable to the family jurisdiction are still conceived of and constituted juridically as institutions unaffected by the doctrine of comprehensive protection set out in the Convention on the Rights of the Child: a relationship of absolute authority and subordination continues to exist between children and their parents and other adults with responsibilities for the care of children under 18.

118.          The Commission believes that under the principles of nondiscrimination and equal protection of the law, States cannot tolerate social practices that allow children to be victims of corporal punishment.

119.          The IACHR notes that although States have a margin of discretion in regulating laws applicable to families and institutions, that obligation must be met in accordance with principle of the indivisibility and interdependence of human rights and the principles that govern children’s affairs – such as the child’s best interests and nondiscrimination – in order to ensure that children’s rights are respected in relations among private citizens. Therefore, the Commission recommends:

1.                  That States prohibit all forms of violence against children, in all settings, within the family, schools, alternative care institutions and detention facilities, places where children work and communities, as required by the inter-American jurisprudence and international treaties, including the American Convention on Human Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of the Child; taking into account the General Comment No. 8 (2006) of the Committee on the Rights of the Child on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (articles 19, 28, paras. 2, and 37, inter alia) (CRC/C/GC/8) and the United Nations World Report On Violence Against Children.

2.                  That the member states incorporate an integral awareness of the rights of the child in designing public policies applicable to children, with particular emphasis on the eradication of corporal punishment in public institutions, such as detention centers, shelters, orphanages, hospitals, psychiatric institutions, schools and military schools, among others.  The IACHR therefore recommends that the States take steps for the due implementation of such policies, by assigning adequate amounts of human and financial resources to areas that affect children.

3.                  That, in accordance to the corpus juris related to the rights of children, the member states take actions for the promotion of educational measures for adults and children that, based on an awareness of child rights, can assist the effective enforcement of laws banning corporal punishment, and promote alternative disciplinary measures that are participatory, positive and not violent in society in such a way, that children's human dignity is respected. 

4.                  That the States implement initiatives of prevention and response to all forms of violence against children, creating mechanisms directed at facilitating children who have been victims of violence, including corporal punishment, to be heard and to present claims.

5.                  That the member States report back to the IACHR on the measures adopted to eradicate corporal punishment as a way of disciplining children and adolescents and to make the Americas a region free of child corporal punishment by 2011.

120.          Finally, the IACHR reiterates its commitment toward cooperating with States in the promotional activities they undertake at the domestic and regional levels in order to eradicate corporal punishment as a way of disciplining children and adolescents.

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