45
relation to Article 1(1) of the same, to the detriment of Encarnación, Pedro, Eliseo,
Estermerio, and María Rosaura Chitay Rodríguez.
B.2
The right to cultural life of indigenous children
164. Article 19 of the American Convention establishes that “[e]ach child has the right to
the measures of protection that their condition as a minor child requires from their family,
from society, and from the State.” According to the criteria of the Court, “this disposition
must be understood as an additional and complementary right that the treaty establishes
that for them to have physical and emotional development they need special protection.”179
So the State must assume a special position of guarantor with greater care and
responsibility, and must take measures especially oriented in the principle of the best
interest of the child.180 This principle is founded “in the dignity itself of the human being, in
the characteristics themselves of children, and the need to provide the means of
development for them, taking full advantage of their potential.”181 In this sense, the State
must give special attention to the needs and to the rights of children, in consideration of
their particular condition of vulnerability.182
165. The Court has affirmed repeatedly that both the American Convention as well as the
Convention on the Rights of the Child form part of the international corpus juris of
protection of children,183 and in various contentious cases has defined the content and
scope of the state obligations that derive from Article 19 of the American Convention in
light of the rules of the Convention on the Rights of the Child.184
166. Taking into account that highlighted, it is evident that the measures of protection
that the State must adopt vary in accordance with the particular circumstances of the case
and of the personal condition of the children. The Tribunal makes note that in the present
case, at the moment that the State recognized the contentious jurisdiction of the Court, on
March 9, 1987, the alleged victims, Eliseo, Estermerio, and María Rosaura Chitay
Rodríguez, kaqchikel Mayan indigenous persons, they were 15, 10, and 7 years old,
respectively, and therefore, were still children.
179
Cf. Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, supra note 108, paras.
53, 54 and 60; Case “Juvenile Reeducation Institute” V. Paraguay. Preliminary Exceptions, Merits, Reparations and
Costs. Judgment of 2 of September of 2004. Series C No. 112, para. 147; Case González et al. (“Cotton Fields”)
V. México, supra note 13, para. 408, and Case of the Dos Erres Massacre v. Guatemala, supra note 12, para. 184.
180
Cf. Juridical Condition and Human Rights of the Child, Advisory Opinion OC-17/02, supra note 108, paras.
56 and 60; Case Bulacio V. Argentina, Merits, Reparations and Costs. Judgment of 18 of September of 2003.
Series C No. 100, paras. 126 and 134; Case Sawhoyamaxa Indigenous Community V. Paraguay, supra note 103,
para. 177, and Case Servellón García V. Honduras, supra note 92, para. 116.
181
Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02, supra note 108, para. 56;
Cf. Case Masacre of Mapiripán V. Colombia, supra note 14, para. 152, and Case Masacres of Ituango V. Colombia,
supra note 24, para. 244.
182
Case Dos Erres Massacre V. Guatemala, supra note 12, para. 184.
183
Cf. Case of the “Children of the Street” (Villagrán Morales et. al. ) V. Guatemala. Merits. Judgment of 19 of
November of 1999. Series C No. 63. paras. 194 and 196; Case of the Gómez Paquiyauri Brothers V. Perú. Merits,
Reparations and Costs. Judgment of 8 of July of 2004. Series C No. 110, para. 166, and Case “Juvenile
Reeducation Institute” V. Paraguay, supra note 179, para. 148.
184
Cf. Case of los "Children of the Street" (Villagrán Morales et. al. ) V. Guatemala. Merits, supra note 183,
paras. 194 a 196; Case “Juvenile Reeducation Institute” V. Paraguay, supra note 179, para. 161, and Case of the
Gómez Paquiyauri Brothers V. Perú, supra note 183, paras. 167 and 168.
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