Part I State Obligations and Rights Protected, Ch.II Civil and Political Rights, Art.17: Rights of the Family

Abstract

This chapter analyzes Article 17 of the American Convention on Human Rights (ACHR), which protects the rights of the family. These rights encompass mainly the right to marry and the right to found a family. In addition, various guarantees, such as the freedom of marriage and the equality between spouses and of the children, aim at organizing and protecting the institution of marriage. This is the only provision of the Convention that protects a status regulated under private law as a human right. Article 17 encompasses five paragraphs whose aims and content are rather different. The first paragraph recognizes the family as the core community and the “fundamental group unit” of each society. As such, it must be protected by States. The second and the third paragraphs are focused on the institution of marriage based on free consent of spouses and the right to “raise a family,” while the two last paragraphs concern the domestic implementation of the “equality of rights” between spouses before, during, and after the marriage and also the special protection of children, especially in case of dissolution of marriage. In this context, Article 17-5 is unique compared to other international human rights instruments for it affirms the “equal rights” of children born in or out of wedlock.