From rights on paper to rights in fact

Mary Beloff

Twentieth Pan American Child CongressLima, Peru

22 - 25 September 2009

Limits and potential of the legal reform in the promotion and

effective protection of the rights of children

Impact of international children’s human rights law (20 years after CRC)

legal reform

content method (e.g. Brazil)

human rights Art. 12 CRC (participation)

“States Parties shall undertake all appropriate

legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, Party States shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.” (Art. 4).

What does substantial adaptation imply?

• codes or laws (all)

institutional redesign(institutional adaptation)

• protection of rights (social policies and specific protection measures)

plus • justice (criminal, family)

• specific new laws or modification of existing laws (repeal of tutelary statutes)

• comprehensive or• criminal code (juvenile justice)• civil (family)• administrative (institutional

reform)

mission accomplished?

(placebo effect)

Substantial adaptation or comprehensive adaptation?

• legal reforms mirror classic tutelary forms• legal adaptation synonymous with substitution

of classic tutelary statutes• CRC as a break v. CRC as improvement• persistence of the special protection idea in

international HHRR for children law

20 years after the CRC and other laws on human rights of children

• full incorporation of HHRR of children (constitutional)

• legal reductionism • criminal reductionism (laws and jurisprudence)

problems with Latin American translation of the CRC

stronger protection of first generation rights (right to freedom, due process, etc.)?

in exchange for

less protection for economic, social and cultural rights? (think State model)

Brief history of a cooperative? comprehensive? relationship

1. human rights and the protection of children in separate compartments

2. children’s rights as human rights

3. the construction of specialness not as autonomy but as an expression of justified paternalism towards children (see among others, IACHR “Villagrán Morales et al” and OC 17)

Guarantees for Economic, Social and Cultural Rights of Children

legal reform as a permanent activity (but not CENTRAL)

guarantees for sustainability of policies

• legal reform (stricto sensu)• judicial activism (direct implementation of treaties

and strong control of constitutionality)• civil society activism (resorts to international

agencies)• training of human resources at all of these levels

evolve from the rhetoric of rights to the effective custody of rights in order to ensure that children have “lives worth living” (IACHR)