The Protocol of San Salvador is an additional protocol to the American Convention on Human Rights. It entered in force the 16th of November fo 1999 and it concerns the area of Economic, Social, and Cultural Rights.
It deals with several issues: nondiscrimination, right to work, equitable conditions at work, trade union rights, rights to social security, to health, healthy environment, education, right of the benefits of culture, among many other rights.
There are three set of rights that are dealt with special care: the rights of children, the rights of the elderly and ,the ones we want to highlight in this piece, the right to the formation and protection of the family.
Firstly, we want to make a brief comment on the rights of the children and the elderly. Regarding the latter, to find them here is most astonishing, since International Treaties do not usually focus their attention on older people. It was only last year that the OAS issued its Interamerican Convention on the Rights of the Elderly, and it has not yet entered into force. And yet, the Additional Protocol of San Salvador, protects the elderly since 1999. State parties agree to take progressively the necessary steps to provide for this protection.
As for the children, the protection is lesser than in specific treaties (e. G. the Convention on the Rights of the Child, or the protection children receive in the Interamerican Convention on Human Rights).
Returning to the subject of this blog: the most detailed article in the Protocol is undoubtedly the one addressing the right to formation and protection of families. It is regulated in several paragraphs in Art. 15, and it’s wording presents us with some peculiarities, if compared to other treaties, that are worth our consideration.
Firstly, as in many other international treaties it considers the family to be a natural and fundamental element in society. The protocol prescribes that it ought to be protected by the State. In the context of the Protocol, and in the light of Art. 1, the State parties are to adopt the necessary measures, whether domestically or by international cooperation, in order to provide for the full observance of the rights recognized by the Treaty. Art. 15 establishes that the State should see to the improvement of spiritual and material conditions of families, which implies a positive obligation to provide for the spiritual and economic well-being of families.
The second paragraphs deals with the right to form a family. But it is the third paragraph, which is the most astounding. We will transcribe only one of the several measures the Protocol expects the State parties to undertake: « The States parties hereby undertake to accord adequate protection to the family unit and in particular (…) d) To undertake special programs of family training so as to help create a stable and positive environment in which children will receive and develop the values of understanding, solidarity, respect and responsibility ».
Therefore, the Treaty deals with stability as a value much needed for the development of children, and then, for the development and well-being of the family. And that the State undertakes the obligation to provide programs to that end. The Treaty links stable and positive family environments with the possibility to provide children with values such as solidarity, understanding, respect.
The sole idea of an obligation to provide stability towards family is a major step, which can condition the decisions that the States make towards family. From this point of view, many laws may appear to be in breach of what the Treaties committed themselves to. A State that is issues these kind of laws would be hindering the creation of an environment in which children can develop positively, it would be hampering the quality of the education given to the children..
Maybe by looking back to this Protocol, we can hope for a better protection for the families, by a profound reflection of the States on the laws they have, to see if these provide stability to family. And then, for the States to act in consequence of this reflection.