OPINION OF JUDGE JULIO A. BARBERIS
1.
This judgment finds that the Argentine State violated Articles 8 and 25 of the
American Convention on Human Rights, a finding supported by an analysis of the
facts and of the law set out therein. However, rather than directly stating that
Argentina violated those articles, it uses a peculiar expression to the effect that the
State violated the articles in question “in relation to Article 1(1)” of the Convention.
The Court uses this expression in the title to Chapter VII of the Judgment, in the
conclusion of that same chapter, and in the final decision. In the body of the
Judgment, the Court speaks simply of the violation of Articles 8 and 25, without
adding the reference to Article 1(1). What does it mean that a State has violated
certain articles of the Convention “in relation” to another article of the same text?
For an answer, one has to turn to the Court’s own case law.
2.
Article 1, paragraph 1, of the American Convention on Human Rights reads as
follows:
“The States Parties to this Convention undertake to respect the rights and freedoms
recognized herein and to ensure to all persons subject to their jurisdiction the free and
full exercise of those rights and freedoms, without any discrimination for reasons of
race, color, sex, language, religion, political or other opinion, national or social origin,
economic status, birth, or any other social condition.”
This provision requires States parties to respect the human rights recognized in the
Convention without discrimination of any kind.
This provision can apply to any right protected under the Convention, such as the
prohibition against slavery, the right to judicial guarantees, or freedom of
association. A domestic law that denies a racial minority recourse to the court of last
instance or that allows servitude when the persons involved are certain foreign-born
nationals would be a violation of this provision of the Convention. While, as we see
it, the obligation established in Article 1, paragraph 1, is that of nondiscrimination,
the Court has its own interpretation of Article 1(1).
3.
The Court has had occasion to interpret and apply Article 1(1) in its advisory
opinions, its judgments and its decisions ordering provisional measures. The first
time the Court examined this particular provision was in Advisory Opinion OC-4 of
January 19, 1984. There the Court wrote the following:
“Article 1(1) of the Convention, a rule general in scope which applies to all the
provisions of the treaty, imposes on the States Parties the obligation to respect and
guarantee the free and full exercise of the rights and freedoms recognized therein
‘without any discrimination’. In other words, regardless of its origin or the form it may
assume, any treatment that can be considered to be discriminatory with regard to the
exercise of any of the rights guaranteed under the Convention is per se incompatible
with that instrument.” (1).
By the Court’s interpretation, States parties are obligated to respect the rights and
guarantees enumerated in the Convention, without making distinctions of any kind.
For example, a law that guarantees freedom of expression but that prohibits
publication of magazines in a given language would be in violation of Article 1(1) of
(1)
IACtHR, Series A, N° 4, par. 30.