Various provisions in respect of educational and social rights of children
The American Declaration has consistently been applying a single set of general state obligations. Some of these obligations are to ensure that the rights inherent in an OAS member state are implemented in totality. These measures are classified as those pertaining to deterrence and conscientious response whenever individuals’ rights are endangered due to the malafide actions of state agents or private actors. Hence, the responsibility of the State in respect of human rights violation is categorized on the basis of whether the violation is an act of omission or commission.
In other words the important factor for establishing state liability is dependant on the state’s response or lack of it in cases involving alleged harm deemed to have been caused by the response or lack thereof and the alleged harm caused to an individual’s Declaration protected rights. In respect of the right to health, several cases have been decided by the Commission in which the government’s conduct has made the state responsible for violations of the right-to-health norm and the right-to-life norm, under Articles XI and I, respectively, of the American Declaration.
Moreover, in one case, the Commission held Paraguay to be guilty under Declaration Articles XI, XIV, XV and VI, of violating its obligations in respect of the rights to health, to work, to rest, and to special protection of the family. Such an occasion arose as Paraguay failed to take suitable and essential measures, which would have protected the tribe’s members from tangible harm caused by the onset of a fatal epidemic. Moreover, it was held that this epidemic was foreseeable and what is more damning, the state was found to be guilty of having deprived the tribal members of medical attention.
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The state was held to be responsible for the violation of the right to work as it had imposed inhuman working conditions on the tribe and lastly, due to its failure to prevent the sale of Ache children, it was held to have violated the Ache members’ rights to special protection of the family . Further, it has been recognized by the Commission that the Declaration to the right to health makes it mandatory for a state to offer health care services and medicines to persons within its jurisdiction.
In one case the Commission requested Cuba to transfer an inmate with pulmonary cancer to transfer him to a specialized hospital and bestow upon him special treatment. The Cuban government, though not a member of the OAS, nevertheless transferred this patient accordingly and gave him specialized treatment . This same situation was repeated in another case in which the Commission requested successfully the grant of help to a prisoner suffering from a series of health ailments . As per the provisions of Declaration XII, the right to education, involves unambiguous state obligations to implement it.
In Jehova’s Witnesses v. Argentina, it was opined by the Commission that Argentina had dishonored the Article XII right to education of around some three-hundred primary school children, because of a decree that prohibited all activities of the Jehovah’s Witness religious order in Argentina . This act constituted a breach of the right to education. Article XXIII provides protection of the right to property. In the Maya Toledo v. Belize Case, the Commission held Belize accountable for breaching Article XXIII causing harm thereby to the Mopan and Ke’kchi Maya people of the Toledo District of southern Belize.
This was due to the state’s failure “to take the appropriate measures to protect the right of the Maya people in their territory” by adopting apt measures to restrict, segregate and title their territory and not consulting the Maya people regarding the extractive-resource concessions granted by the state . In this manner the state was held to have been guilty of implementing insufficient measures to protect their right to property. San Salvador Protocol The San Salvador Protocol also compels states to espouse all apt and necessary measures to respect and ensure the furtherance of economic, social, and cultural rights.
The San Salvador Protocol comprises of three general obligations clauses as described in Articles 1, 2 and 3, which are applicable to all the rights such as the right to work, satisfactory conditions of work, social security, health, etc. Under the first clause, states that have accepted the Protocol have to agree to adopt the necessary measures required to implement the individual rights fully. The second clause requires states to implement these rights such measures as may be needed in order to make them true .
Lastly, states have to ensure that these rights are made available “without discrimination of any kind . ” In this manner the general obligations of the San Salvador Protocol closely follow the Commission in deciding cases involving transgression of the rights under the American Declaration as well as those found in Articles 1 and 2. Thus, with regard to the right to work, states undertake to adopt measures that will make that right “fully effective” and to “guarantee” in their internal legislation just, equitable and satisfactory conditions of work .
American Convention The American Convention is similarly unequivocal in identifying the “concrete duties” corresponding to the economic, social and cultural rights that it encompasses. This Convention segregates protected rights into Civil and Political Rights and Economic, Social and Cultural Rights, which are expressed in Articles 1 and 2. Moreover, they are applicable to Articles 3 to 26, which deal with the rights and freedoms as set out in the Convention. To achieve this result, states “undertake to adopt . . .
such legislative or other measures as may be necessary to give effect to those rights and freedoms. ” The American Convention establishes both the procedures and substantive rights that govern the adjudication of complaints by the Inter-American Commission and the Inter-American Court of Human Rights in respect of the state parties. Nonetheless, the applicable substantive rights of countries that do not form a part of the American Convention are contained in the American Declaration, which constitutes the principal instrument that defines such rights. The Article 1.
1 further makes it mandatory for the state agents to refrain from violating individuals’ rights in the absence of suitable bureaucratic protection. Further, this article requires the concerned states to take positive steps of a judicial, legislative and executive nature in order to ensure that all the citizens can enjoy their human rights. The requirement of this is that the state has to examine, avert, penalize and mend infringement of rights set out in Convention, irrespective of whether these have been undertaken by agents of the state or by private third parties.
If it does not do so then the State is deemed to be guilty. Sometimes the state has to involve itself to a greater extent and has to do more than merely preventing and adequately responding to the needs of human rights requirements like provision of court services, housing accommodation, education, etc, for instance in respect of criminals, persons committed to institutions and the unprotected segments of society who depend mainly on the state for their needs and rights enforcement.
Furthermore, the inter-American organs stringently require the states to enforce the positive duties set out in Article 2, especially in respect of health, education, housing, etc . The government of the state of Abandon made Law 1004 in 1998, in respect of the education sector, implementing rationalization procedure as required by the International Monetary Fund to grant low interest loans. As a result of this law, the expenditure incurred on education was drastically reduced due to the closure of schools and the abolition of stacked school days, in which classes in the schools were conducted in two shifts.
This resulted in an over crowding of the schools. Previously, funding of expenditure of these schools was on the basis of the actual requirements, but due to the passing of the Law 1004, the funding pattern was modified and was made on the basis of the data available with the municipality in respect of births. This resulted in the closure of schools located in low population density areas and their merger with schools in higher population density areas.
Due to these changes, the school attendance rate decreased and the educational expenditure for families increased as the schools were no longer located where they were residing in most cases. A lot of money had to be spent on transportation from their residence to the school. The Sierra Morena, located in the district of Kobo Hidalgo was one of the municipalities that was worst affected by this change. This place was in the main rural with a widely dispersed population. The main inhabitants of this area are the Popchak, who were resettled there due to the country’s civil wars.
Their main source of income is agriculture, fishing and seasonal work in the mines to the south. Due to the provisions of the Law 1004, all the schools in this area were closed and students had to attend a school located in the district headquarters. The school curricula were made the same and special needs of students from different cultural backgrounds were ignored. The new system introduced a religious curriculum consisting of Bible classes. Moreover, regulations of the Law 1004, made it illegal to impart knowledge in respect of sexual and reproductive health education.
As a result of this law, schools debarred the entry of pregnant girls into schools. This has brought about an educational crisis in the Sierra Municipality. One of the main reasons for this crisis was the very poor number of birth registrations due to births taking place at home, the registration of children at some other place than the place where the school was located because of the wide geographical dispersion of the populace and finally, due to the bureaucratic hurdles present in registering a birth, which made it almost impossible to do so.
Due to the non availability of proper modes of transport, these children have to stay for the duration of the school week in a place far away from home and such transport is very costly. Many children have to travel by canoe to their school; this is very dangerous especially when the river is in spate and has proved fatal for many children. In addition, the Law 1004, has ignored the fact that children have to necessarily assist the adults in the family during harvest time and therefore that the school should be closed for the duration of this important event.
This has contributed to a reduction in school attendance. Due to the enormous increase in the cost of schooling for their children most of the parents of this region have decided to open a community school conducted by one of its members in roofless structures that are exposed to the elements causing great hardships to the students. The government, though fully aware of this development, has turned a Nelson’s eye to this problem. Being unable to withstand these problems, judicial action was initiated by three groups against the local and state governments.
One of these groups comprised of parents of indigenous children of Popchak. In March 2003, five children drowned due to the overturning of the canoe in which they were going to school. The parents initiated proceedings against the local and state governments representing all the children of the community requesting for a community school with all amenities and infrastructure. Their contention was that the government had violated the provisions of the constitution which assured them the right to life, right to education, right against discrimination and the rights of native people.
However, till date the court has not given any response to these proceedings. In this case despite loss of life, the court has decided to remain silent. The parents can approach the Human Rights Courts for redressal under the provisions of constitution since the state has violated the same. The American Declaration on the Rights of Indigenous People was approved by the Inter-American Commission on Human Rights on February 26, 1997. It has declared that these people have all human rights. These rights include the right to freedom from forced assimilation and discrimination.
Further, these people have the right to cultural integrity, which enshrines the right to select their own philosophies, religions and languages. The state has to not only permit these indigenous people to educate themselves, but it must also ensure that they receive an education. The state must protect their environment. Furthermore, indigenous peoples have to be granted several political rights, like the rights of association and assembly; freedom of thought and expression and the right to self government.
The second legal proceedings were initiated in respect of a thirteen year old poor girl, who had been suspended from school by the administration as she had become pregnant. As per the girl’s statement her teacher at school had fathered this baby. Though the parents complained to the school authorities several times, in this regard, this teacher was allowed to continue in his job. Their claim was for readmitting the suspended girl into school and also the dismissal of the teacher who had impregnated this girl.
The court of first instance, dismissed their petition on the basis of two grounds, namely, there was no definite evidence to prove the paternity of the infant and that allowing this petition would only serve to encourage promiscuity in these girls. This decision was confirmed by the highest courts in Abandon and the petitioner was struck down in May 2006. The progress of medical technology is such that by applying the DNA test, paternity can be clearly established. Hence, the Court was wrong in stating that paternity could not be ascertained.
The parents have to approach the Inter American Court of Human Rights in this regard under the provisions of the American Convention on Human Rights. Moreover, they can appeal on the basis of sex discrimination because the man was not punished even though he had impregnated a minor girl by offering her some books and a chair to sit down in school. Further, the school authorities can be impleaded as respondents as they had turned a blind eye to these crimes and allowed this morally corrupt teacher to continue teaching thereby endangering the virtue of other girls in the school.
Finally, the third action was initiated by a local NGO claiming the protection of the right to education of all the children in the state of Abandon seeking the immediate cancellation of the Law 1004. These proceedings were admitted by the court of first instance in Kobo Hidalgo on the 6th of February 2003, the court responded favourably and ordered the government to take all necessary steps to ensure the right to education and also to modify the legislation in dispute. However, the government till date has chosen to ignore this court order.
In this situation the NGO who is the petitioner in this action can file proceedings against the state for not following the court orders. If even this fails to elicit a favourable response from the government, then the NGO can approach the Inter American Commission on Human Rights for proper relief and guidance. If the Inter American Commission on Human Rights decides that the case should be referred to a court of law, then the petitioner can approach the Inter American Court of Human Rights for redressal under the provisions of the American Convention on Human Rights.
The procedure for doing so is described in the sequel. Any individual, group of people or NGOs who are legally recognized in at least one OAS member state are eligible to file a petition. Submission of these petitions can be either by the victim or by a third party. The requirements for a petition to be admissible petition are contained in Articles 44 through 47 of the American Convention, as well as in Articles 26 and 32 through 41 in the Commission’s Regulations.
These petitions must contain information on the individual or individuals filing the petition, the subject matter of the petition, and the “procedural posture” of the petition. These petitions are of two varieties, general petitions and collective petitions. If a human rights violation has taken place that is not restricted to one group of people or just one incident, then a general petition has to be filed. On the other hand a collective petition is filed if a specific incident or practice that has violated human rights has more than one victim.
In all these types specific victims have to be specified and must include the name, nationality, occupation, postal address and signature of the person submitting the petition. In addition an NGO has to furnish its legal address and affix its legal representative’s signature. Moreover, in order to be accepted by the Commission a petition should be made only after the failure of all domestic legal action; the petitioner is expected to prove this and if the petitioner fails to do so then the state’s government may be asked to do so.
At that stage of the proceedings if the state is able to establish that domestic legal opportunities are still available to the petitioner, then the petitioner will perforce have to establish that either there is a denial or prevention of access to these remedies, judgement has been delayed unnecessarily, proper legal counsel was denied or that the rights violated cannot be adequately safeguarded by the extant domestic legislation.
In the event of domestic remedies being exhausted, the petition has to be placed, within six months of the final decision in the domestic proceedings, with the Commission. Otherwise the petition has to be presented to the Commission within a reasonable period of time after the events in respect of which complaint is being file have occurred. The petition has to be filed six months of the final decision of the domestic courts. Extensions for filing petitions are given if the state had interfered with the process, and in such cases the petition has to be submitted within a reasonable amount of time.
In cases of submission of petitions by third parties such submission has to be done within a reasonable amount of time. Conclusion Due to the foregoing reasons, I am of the opinion that there is gross violation of human rights in the state of Abandon. The right to life under the provisions of Article 4 of the American Convention and the right to education for all under the provisions of Article 26 had been violated by the state. Moreover, right to non discrimination has also been violated.
Article 19 of this Convention states that every minor child has the right to the measures of protection required by its condition due to being a minor on the part of its family, society and the state, this right has also been violated by the concupiscent teacher. All these violations are to be challenged by the concerned parties before the court of human rights, because the state courts have failed to render justice in this regard. Moreover, the rights of the indigenous people have been grossly violated, which ultra vires the provisions of the constitution. Please let us know if we can be of further assistance.