46
167. The Court observes that due to the context of familial disintegration previously
accredited, this had repercussions, in an accentuated manner, on the condition of the
children. Due to the particularities of the case sub judice, the Court finds it important to
note the special measures of protection that the States must adopt in favor of indigenous
children. The Court deems that a State, in addition to the obligations which must be
guaranteed to all persons under its jurisdiction, must also comply with an additional and
complementary obligation defined in Article 30185 of the Convention on the Rights of the
Child,186 which gives content to Article 19 of the American Convention and consists of the
obligation to promote and protect the rights of indigenous children to live in accordance with
their own culture, religion, and language.187
168. In its General Observation No. 11, the Committee on Rights of the Child has
considered that “[t]he effective exercise of the rights of indigenous children to culture,
religion, and language constitute essential foundations of a culturally-diverse State,”188 and
that this right constitutes an important recognition of the traditions and collective values of
185
Article 30 states that “[i]n those States in which ethnic, religious or linguistic minorities exist, a child who
pertains to this community or is indivenous, shall not be denied their corresponding rights, in community with the
other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their
own language.” This disposition originates from Article 27 of the International Covenenat on Civila nd Political
Rights, adopted by the Geneeral Assembly during Order 2200 A (XXI), 16 of December of 1966, which recognizes
this right of minotirites without mentioning indigenous persons explicitly. Article 27 of the ICCPR establishes: “In
those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not
be denied the right, in community with the other members of their group, to enjoy their own culture, to profess
and practise their own religion, or to use their own language.”
186
Conventionon the Rights of the Child, A.G. res. 44/25, anexo, 44 U.N. GAOR Supp. (No. 49) p. 167, UN
Doc. A/44/49 (1989), came into force on September 2, 1990. The State of Guatemala signed said Convention on
January 26, 1990 and ratified it on June 6, 1990.
187
The Convention on the Rights of the Child, aside from Article 30, contains various provisions that highlight
the importante of the Convention on the Rights of the Child, moreover Article 30, contains various provisions that
highlight the importance to the cultural life of the rights of the indigenous child for their development and
formation. In this sense, the Preamble states: “States Party to the present Convention, […] […] [t]aking due
account of the importance of the traditions and cultural values of each people for the protection and harmonious
development of the child.” Article 2, subsection 1 establishes the obligation of the State to assure the application
of the rights established in the Convention, without distinction, by “ethnic origin.” In the same sense, Article 17
subsection d states that: “the States shall […] [e]ncourage the mass media to have particular regard to the
linguistic needs of the child who belongs to a minority group or who is indigenous.” Article 20, subsection 3
determines that, when children are deprived of their family environment, the State has to adopt special mesuares
and in considering them, “[…] due regard shall be paid to the desirability of continuity in a child's upbringing and to
the child's ethnic, religious, cultural and linguistic background.” In this same line, Article 29 subsection 1 states
that “ En la misma línea, el artículo 29 inciso 1 señala que “States Parties agree that the education of the child shall
be directed to [t]he development of respect for the child's parents, his or her own cultural identity, language and
values, for the national values of the country in which the child is living, the country from which he or she may
originate, and for civilizations different from his or her own; [as well as t]he preparation of the child for responsible
life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all
peoples, ethnic, national and religious groups and persons of indigenous origin.” Lastly, Article 31 determines that:
“States Parties recognize the right of the child to […] participate freely in cultural life and the arts. […]States
Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall
encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure
activity.”
188
Cf. U.N. Committee on the Rights of the Child. General Observation Nº 11 (2009). The indigenous
children and their rights due to the convention, February 12, 2009, par. 82.
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