discrimination is an international obligation erga omnes, derived “from the principles and rules
concerning the basic rights of the human person” and, therefore, is binding on all the States.218
142. Furthermore, Article 19 of the American Convention establishes that “[e]very minor
child has the right to the measures of protection required by his condition as a minor on the
part of his family, society, and the State.” In the Court’s opinion, “this provision must be
understood as an additional, complementary right that the treaty establishes for individuals
who, based on their physical and emotional development, require special protection.”219
Therefore, the State must assume a special position of guarantor with greater care and
responsibility, and must take special measures based on the principle of the best interest of
the child.220 This principle is founded “on the very dignity of the human being, on the
inherent characteristics of children, and on the need to promote their development taking
full advantage of their potential.”221 Hence, the State must pay special attention to the
needs and rights of children, based on their special condition of vulnerability.222 In addition,
the Court has repeatedly stated that “both the American Convention and the Convention on
the Rights of the Child are part of a very comprehensive international corpus juris for the
protection of children that must be used […] to establish the content and scope of the
general provision defined in Article 19 of the American Convention.”223
143. Thus, the Court considers it important to indicate that the special measures of
protection that the States must adopt in favor of indigenous children include the promotion
and protection of their right to live according to their own culture, their own religion and
their own language,224 an additional and complementary obligation defined in Article 30225 of
218
Cf. International Court of Justice, Case of the Barcelona Traction, Light and Power Company, Limited.
Judgment of 5 February 1970, p. 32, paras. 33-34. See also, Human Rights Committee, General Comment 24, para.
8, and the Concurring opinion of Judge A. Cancado Trindade, Juridical Status and Rights of Undocumented
Migrants. Advisory Opinion OC-18/03 of September 17, 2003. Series A No. 18, para. 75.
219
Juridical Status and Human Rights of the Child. Advisory Opinion OC-17/02, supra, paras. 53, 54 and 60,
and Case of Chitay Nech et al. v. Guatemala, supra, para. 164.
220
Cf. Juridical Status and Human Rights of the Child. Advisory Opinion OC-17/02, supra, para. 164.
221
Cf. Juridical Status and Human Rights of the Child. Advisory Opinion OC-17/02, supra, para. 56, and Case
of Atala Riffo and daughters v. Chile, supra, para. 108.
222
Cf. Case of the Dos Erres Massacre v. Guatemala, supra, para. 184, and Case of Rosendo Cantú et al. v.
Mexico, supra, para. 201.
223
Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits. Judgment of November 19,
1999. Series C No. 63, para. 194, and Case of Fornerón and daughter v. Argentina. Merits, reparations and costs.
Judgment of April 27, 2012. Series C No. 242, para. 137.
224
In addition to article 30, the Convention on the Rights of the Child contains several provisions that
underscore the importance of the cultural life of indigenous children for their formation and development. Thus, the
Preamble declares that: “[t]he States Parties [have signed] this 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(1) establishes the obligation of the States to ensure the rights set forth in the Convention
without discrimination based on the “ethnic […] origin” of the child. Similarly, article 17(d) establishes that: “the
States Parties 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(3) determines that, in the case of a child deprived of
his or her family environment, the State must provide special measures and, when 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.” Similarly, article 29(1) subparagraphs (c) and (d), indicate that “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; [and also 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.” Finally, 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,
57
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