2
principle (equality and non-discrimination) forms part of
general international law. At the existing stage of the
development of international law, the fundamental principle
of equality and non-discrimination has entered the realm of
jus cogens” (para. 101).
4.
In its recent Judgment in the case of Yatama versus
Nicaragua, adopted yesterday, June 23, 2005, the Court has
confirmed the great jurisprudential advances reached by its
Advisory Opinion No. 18, which has reaffirmed the nature of jus
cogens of the principle of equality and non-discrimination (para.
184), and has stated that,
“Consequently, the States have the obligation to not
introduce
in
their
legal
system
discriminatory
laws,
eliminate regulations of a discriminatory nature, fight the
practices of this nature, and establish laws and other
measures that acknowledge and ensure effective equality
before the law for all people. A distinction that lacks an
objective and reasonable justification is discriminatory.
Article
24
of
the
American
Convention
prohibits
discrimination of fact and of law, not only regarding the
rights enshrined in said Convention, but in what refers to
all laws passed by the State and their application. That is,
it is not limited to repeating that stated in Article 1(1) of
the same regarding the States’ obligation to respect and
guarantee, without discrimination, the rights acknowledged in
said instrument, but instead it also enshrines a right that
obligates the State to respect and guarantee the principle of
equality and non-discrimination in the safeguarding of other
rights and all internal legislation passed by them” (paras.
185-186).
5.
In the instant case of Acosta Calderón, the same legal
stipulation that the Court concluded caused damage to the victim
in the case of Suárez Rosero, also caused an undue harm to the
victim in the cas d’espece, when the facts occurred. Even though
the two first paragraphs of Article 114 bis of the Ecuadorian
Criminal Code, in force at that time, assigned the persons
imprisoned the right to be freed when the indicated conditions
were present, its last paragraph included an exception to said
right, 1 - which this Court considered incompatible with the
American Convention (Article 2).
6.
Taking into account the Court’s jurisprudential development,
from the case of Suárez Rosero up to the present case of Acosta
Calderón (Advisory Opinion No. 18 and case of Yatama, supra para.
3 and 4), I do not see how we can exclude from the instant
Judgment that the mentioned Article 114 bis, in fine, of the
1
In detriment
trafficking.
of
the
accused
for
alleged
involvement
in
drug