the child), together with different international instruments and the American Convention,
were used in the Case of the “Mapiripán Massacre” v. Colombia: 109
153. The content and scope of Article 19 of the American Convention must be defined, in cases such
as this, taking into consideration the pertinent provisions of the Convention on the Rights of the
Child, 110 in particular articles 6, 37, 38 and 39, and of Protocol II Additional to the Geneva
Conventions, because these instruments and the American Convention form part of a very
comprehensive international corpus juris for the protection of children that States must respect.111
Added to this, in application of Article 29 of the Convention, the provisions of article 44 of the
Constitution of the Republic of Colombia must be taken into consideration. 112
68.
As we have indicated previously, the pro persona principle implies, inter alia, making
the most favorable interpretation for the effective enjoyment and exercise of the
fundamental rights and freedoms, which, also, prevents using other international
instruments to restrict the rights of the American Convention. 113 The Inter-American Court
has indicated: 114
51.
With respect to the comparison between the American Convention and the other treaties
already mentioned, the Court cannot avoid a comment concerning an interpretation suggested by
Costa Rica in the hearing of November 8, 1985. According to this argument, if a right recognized by
the American Convention were regulated in a more restrictive way in another international human
rights instrument, the interpretation of the American Convention would have to take those
additional restrictions into account for the following reasons:
“If it were not so, we would have to accept that what is legal and permissible on the universal
plane would constitute a violation in this hemisphere, which cannot obviously be correct. We
think rather that with respect to the interpretation of treaties, the criterion can be established
that the rules of a treaty or a convention must be interpreted in relation to the provisions that
appear in other treaties that cover the same subject. It can also be contended that the
provisions of a regional treaty must be interpreted in the light of the concepts and provisions of
instruments of a universal character. (Underlining in original text)
It is true, of course, that it is frequently useful – and the Court has just done this – to compare the
American Convention with the provisions of other international instruments in order to stress
certain aspects concerning the manner in which a certain right has been formulated, but that
109
Case of the “Mapiripán Massacre,” supra, para. 153, and Case of the Mayagna (Sumo) Awas Tingni
Community, supra, para. 148.
110
Ratified by Colombia on January 28, 1991, and entering into force on February 27, 1991.
111
Cf. Case of the “Children’s Rehabilitation Institute,” supra, para. 148; Case of the Gómez Paquiyauri
Brothers. Merits, reparations and costs. Judgment of July 8, 2004. Series C No. 110, para. 166; Case of the “Street
Children” (Villagrán Morales et al.), supra, para. 194, and Legal Status and Human Rights of the Child, Advisory
Opinion OC- 17/02, para. 24.
112
Cf. Article 44 of the Constitution of the Republic of Colombia: “The fundamental rights of the child are: life,
physical integrity, health and social security, a balanced diet, name and nationality, to have a family and not be
separated from it, love and care, education and culture, recreation and freedom of expression. They shall be
protected against any form of abandon, physical or moral violence, kidnapping, sale, sexual abuse, economic or
labor exploitation, and hazardous work. They shall also enjoy the other rights embodied in the Constitution, in the
laws and in the international treaties ratified by Colombia. The family, society and the State have the obligation to
assist and protect the child in order to ensure his or her comprehensive and harmonious development and the full
exercise of his or her rights. Anyone may require the competent authority to ensure compliance with the foregoing
and to punish offenders.
113
See the separate opinion in the Case of Cabrera García and Montiel Flores v. Mexico. Preliminary
objections, merits, reparations and costs. Judgment of November 26, 2010. Series C No. 220, para. 38.
114
Advisory Opinion OC-5/85. November 13, 1985. Series A No. 5, concerning Compulsory Membership in an
Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 of the American Convention on
Human Rights) paras. 51 and 52.
23