- 5136. The Court explains that, in the instant case, it will not rule on the alleged
violation of Article 19 of the American Convention to the detriment of the sisters,
Ernestina and Erlinda Serrano Cruz, separately from its consideration of the rights to
the protection of the family and to a name, and also the possible violation of their
right to identity, but will include its decision in that respect when ruling on the other
rights that are alleged to have been violated. In this regard, this Court, among other
norms, will give particular consideration to Articles 7 and 8 of the United Nations
Convention on the Rights of the Child, because they embody the right to identity
explicitly and directly.
*
*
*
137. In relation to the “Promotion and protection of the right of the child,” the
General Assembly of the United Nations, when ruling on identity, family relationships
and the registration of the birth of children, “in particular children in particularly
difficult situations,” in its resolution 58/157 of December 22, 2003, urged and called
upon States:
[…] to undertake to respect the right of the child to preserve his or her identity,
including nationality, name and family relations as recognized by law, without unlawful
interference and, where a child is illegally deprived of some or all of the elements of his
or her identity, to provide appropriate assistance and protection with a view to speedily
re-establishing his or her identity;
[...] to ensure, as far as possible, the right of the child to know and be cared for by his
or her parents[.]
138. Given that the exercise of the right to identity allows the individual to have
access to personal and family information that will enable him to construct his own
personal history and biography, the Court considers that the right to identity is an
essential element of the life of all individuals and not only of children; moreover, its
exercise is essential for establishing relationships with the different members of the
family, and between each individual and society and the State. Consequently, in the
instant case, the Court will examine two rights that form part of the content of the
right to personal identity: a) the rights of the family; and b) the right to a name.
*
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a)
*
Rights of the family
139. The rights of the family, which are expressly established in Article 17 of the
American Convention and Article 15 of the Additional Protocol to the American
Convention on Human Rights in the matter of Economic, Social and Cultural Rights
(“Protocol of San Salvador”), are one of the elements that give content to the right
to identity.
140. As the Court has stated previously, recognition of the family as the natural
and fundamental element of society, with the right to be protected by society and
the State, is a basic principle of international human rights law.5 In addition to being
5
Cf. Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28,
2002. Series A No. 17, para.
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