Deprivation of liberty of children in Argentina and the right to education-What is the content of positive State obligation?
(2007)Department of Law
- Abstract
- According to article 37(b) of the Convention on the Rights of the Child (CRC), a deprivation of liberty of a child must be ''lawful'', ''non-arbitrary'', used as a ''measure of last resort only'' and ''for the shortest appropriate period of time''. Measures that contain deprivations of liberty shall be used in exceptional cases, as sanctions for young law offenders, and never for the sake of a child's own protection. Despite this fact, about one million children worldwide are deprived of their liberty. Children are being arrested, detained and placed in closed custodial institutions for reasons such as public order and State security considerations. Young law offenders are being punished and poor children are deprived of their liberty for... (More)
- According to article 37(b) of the Convention on the Rights of the Child (CRC), a deprivation of liberty of a child must be ''lawful'', ''non-arbitrary'', used as a ''measure of last resort only'' and ''for the shortest appropriate period of time''. Measures that contain deprivations of liberty shall be used in exceptional cases, as sanctions for young law offenders, and never for the sake of a child's own protection. Despite this fact, about one million children worldwide are deprived of their liberty. Children are being arrested, detained and placed in closed custodial institutions for reasons such as public order and State security considerations. Young law offenders are being punished and poor children are deprived of their liberty for the sake of their own protection. In Latin America, Governments and private actors frequently use measures that comprise deprivation of liberty. This master thesis has examined the legality of deprivation of liberty per se as a measure used against children. The situation of deprivations of liberty of children in Argentina has been used as an example in order to illustrate a prevailing situation in a Latin American country. Official data showed that about 19 579 persons under the age of 21 were placed in open&semic semi-open and closed institutions in Argentina in 2005. Moreover, the UN Committee against Torture and the UN Working group on arbitrary arrests and detentions have reported about arbitrary arrests and detentions of children in the country. A child deprived of its liberty is many times prevented to enjoy other rights of the CRC, such as the right to primary education, which is an Economic, Social and Cultural right, established in article 28 (1.a) of the Convention. In this master thesis it has been showed that there exist no exceptions in the international human rights law from the obligation to guarantee children deprived of their liberty the access to the already existing education. States are obligated to respect, protect and fulfil (facilitate and provide) all human rights, which is widely accepted among the legal scholars. The obligation to respect on one hand is considered a negative obligation, while the obligations to protect and fulfil (facilitate and provide) are regarded as positive obligations. The Argentine State has a negative obligation to respect the right to education by not taking measures that interfere with the enjoyment of the right. Accordingly, any deprivation of liberty that hinders or prevents the enjoyment of the right to education constitutes non-compliance with the negative obligation to respect, and a breach of article 28 (1.a) of the CRC. The general principle of non-discrimination in article 2 (1) of the CRC is also being violated in such a case. Moreover, the Argentine State has a positive obligation to protect the right to education by ensuring that the children deprived of their liberty are not hindered or prevented to receive education. Any case of deprivation liberty by a third party that leads to the inability to enjoy the right to education constitutes a non-compliance with the obligation to protect the right to education and consequently a breach of article 28 (1.a) of the CRC. The obligation to fulfil by facilitation requieres States Parties to enable and assist individuals or communities to enjoy a right, while the fulfilment by provision requires States, as a general rule, to enable and assist individuals or groups, which are ''unable to enjoy a right for reasons beyond their control. Thus, the children deprived of their liberty in Argentina shall be enabled and assisted by the Argentine State to enjoy the right to education and the education shall be directly provided. States must take certain measures in order to comply with the positive obligations. According to article 4 of the CRC, the States Parties to the Convention are required to take legislative, administrative and other measures in order to comply with the positive obligations. The obligation to implement the Civil and Political rights is considered immediate, while the obligation to implement the Economic, Social and Cultural rights is of a more long-term character. With regard to the Economic, Social and Cultural rights the States Parties shall realize the rights to ''the maximum extent of available resources'', and ''where needed within the framework of international co-operation''. Thus, it has been accepted that the lack of available resources and the inability of a State to receive help from the international community in some cases can justify a non-compliance with the Economic, Social and Cultural rights. A State Party has to prove that it has utilized its available resources to the maximum extent and that it has sought for international co-operation. Any failure of the compliance with the positive obligations constitutes a breach of the human rights. (Less)
Please use this url to cite or link to this publication:
http://lup.lub.lu.se/student-papers/record/1560718
- author
- Nordh, Susanna
- supervisor
- organization
- year
- 2007
- type
- H3 - Professional qualifications (4 Years - )
- subject
- keywords
- Folkrätt
- language
- English
- id
- 1560718
- date added to LUP
- 2010-03-08 15:55:27
- date last changed
- 2010-03-08 15:55:27
@misc{1560718,
abstract = {{According to article 37(b) of the Convention on the Rights of the Child (CRC), a deprivation of liberty of a child must be ''lawful'', ''non-arbitrary'', used as a ''measure of last resort only'' and ''for the shortest appropriate period of time''. Measures that contain deprivations of liberty shall be used in exceptional cases, as sanctions for young law offenders, and never for the sake of a child's own protection. Despite this fact, about one million children worldwide are deprived of their liberty. Children are being arrested, detained and placed in closed custodial institutions for reasons such as public order and State security considerations. Young law offenders are being punished and poor children are deprived of their liberty for the sake of their own protection. In Latin America, Governments and private actors frequently use measures that comprise deprivation of liberty. This master thesis has examined the legality of deprivation of liberty per se as a measure used against children. The situation of deprivations of liberty of children in Argentina has been used as an example in order to illustrate a prevailing situation in a Latin American country. Official data showed that about 19 579 persons under the age of 21 were placed in open&semic semi-open and closed institutions in Argentina in 2005. Moreover, the UN Committee against Torture and the UN Working group on arbitrary arrests and detentions have reported about arbitrary arrests and detentions of children in the country. A child deprived of its liberty is many times prevented to enjoy other rights of the CRC, such as the right to primary education, which is an Economic, Social and Cultural right, established in article 28 (1.a) of the Convention. In this master thesis it has been showed that there exist no exceptions in the international human rights law from the obligation to guarantee children deprived of their liberty the access to the already existing education. States are obligated to respect, protect and fulfil (facilitate and provide) all human rights, which is widely accepted among the legal scholars. The obligation to respect on one hand is considered a negative obligation, while the obligations to protect and fulfil (facilitate and provide) are regarded as positive obligations. The Argentine State has a negative obligation to respect the right to education by not taking measures that interfere with the enjoyment of the right. Accordingly, any deprivation of liberty that hinders or prevents the enjoyment of the right to education constitutes non-compliance with the negative obligation to respect, and a breach of article 28 (1.a) of the CRC. The general principle of non-discrimination in article 2 (1) of the CRC is also being violated in such a case. Moreover, the Argentine State has a positive obligation to protect the right to education by ensuring that the children deprived of their liberty are not hindered or prevented to receive education. Any case of deprivation liberty by a third party that leads to the inability to enjoy the right to education constitutes a non-compliance with the obligation to protect the right to education and consequently a breach of article 28 (1.a) of the CRC. The obligation to fulfil by facilitation requieres States Parties to enable and assist individuals or communities to enjoy a right, while the fulfilment by provision requires States, as a general rule, to enable and assist individuals or groups, which are ''unable to enjoy a right for reasons beyond their control. Thus, the children deprived of their liberty in Argentina shall be enabled and assisted by the Argentine State to enjoy the right to education and the education shall be directly provided. States must take certain measures in order to comply with the positive obligations. According to article 4 of the CRC, the States Parties to the Convention are required to take legislative, administrative and other measures in order to comply with the positive obligations. The obligation to implement the Civil and Political rights is considered immediate, while the obligation to implement the Economic, Social and Cultural rights is of a more long-term character. With regard to the Economic, Social and Cultural rights the States Parties shall realize the rights to ''the maximum extent of available resources'', and ''where needed within the framework of international co-operation''. Thus, it has been accepted that the lack of available resources and the inability of a State to receive help from the international community in some cases can justify a non-compliance with the Economic, Social and Cultural rights. A State Party has to prove that it has utilized its available resources to the maximum extent and that it has sought for international co-operation. Any failure of the compliance with the positive obligations constitutes a breach of the human rights.}},
author = {{Nordh, Susanna}},
language = {{eng}},
note = {{Student Paper}},
title = {{Deprivation of liberty of children in Argentina and the right to education-What is the content of positive State obligation?}},
year = {{2007}},
}