19 69. In two cases whose circumstances were similar to those of this case, the UN Human Rights Committee found violations of the principle of equality and non-discrimination based on the fact that while it was not open to the author to enter into marriage with his same-sex permanent partner, the Act does not make a distinction between married and unmarried couples but between homosexual and heterosexual couples. The Committee finds that the State party has put forward no argument that might demonstrate that such a distinction between same-sex partners, who are not entitled to pension benefits, and unmarried heterosexual partners, who are so entitled, is reasonable and objective. Nor has the State party adduced any evidence of the existence of factors that might justify making such a distinction. In this context, the Committee finds that the State party has violated article 26 of the Covenant by denying the author’s right to his life partner’s pension on the basis of his sexual orientation. 53 Application to the case at hand 70. In this case, the petitioners allege that Mr. Duque was the target of unfair discrimination as he was denied his partner’s survivor’s pension based on his sexual orientation. The petitioners also argue that this discriminatory situation left Mr. Duque unprotected and adversely affected, inter alia, his chances of getting the health services he needed giving his condition as a person living with HIV. They also point out that the denial of Mr. Duque’s legitimate right to the pension and his lack of protection generated in him a sense of stigmatization, mental suffering, and anxiety. For its part, the State argues that this case ought not to focus on determining whether Mr. Duque was the victim of discrimination, since a situation of this kind was bound to happen as a consequence of the mechanism of progressive realization in the area of ESCR and the margin of flexibility that States have to guarantee rights of this kind to all their inhabitants. The State further argues that this case concerns hypothetical damages, since there is no record showing that Mr. Duque did not have access to the medications needed to treat his illness. 71. At the international level before the Commission, the State has alleged that the facts of this case should be analyzed as a function of the progressive realization of the ESCR. The Commission reiterates that the obligation of “progressive realization” of the ESCR is related to: (i) the resources that the State earmarks to fulfill its obligations in this area; (ii) the organization of the State apparatus to guarantee these rights; (iii) satisfaction of the minimum essential levels, and (iv) the guarantee of fullest possible enjoyment of these rights in a given country at a given moment in time.54 53 See, inter alia, UN, Human Rights Committee X vs. Colombia, Communication No. 1361/2005, CCPR/C/89/D/1361/2005, May 14, 2007, par. 7.2.; Young vs. Australia, Communication No. 941/2000, CCPR/C/78/D/941/2000, September 18, 2003, par. 10.4. For its part, the Court of Justice of the European Communities held that the refusal to grant the survivor’s pension to life partners constitutes direct discrimination on grounds of sexual orientation, if surviving spouses and surviving life partners are in a comparable situation as regards that pension. Court of Justice of the European Communities, Case C-267/06, Tadao Maruko v Versorgungsanstalt der deutschen Bühnen, April 1, 2008. Information available at: http://curia.europa.eu/en/actu/communiques/cp08/aff/cp080017en.pdf. It has also held that an occupational pension scheme in the form of a supplementary retirement pension paid to a member of a civil union and less than the amount paid had the same person been married may constitute discrimination based on sexual orientation if the civil union is between persons of the same sex and if the situation is legally and factually comparable to a marriage. Court of Justice of the European Communities, 147/08, Jürgen Römer v Freie und Hansestadt Hamburg, May 10, 2011. Information available at: http://curia.europa.eu/juris/liste.jsf?language=en&num=C-147/08. 54 See, inter alia, IACHR, The Work, Education and Resources of Women: the Road to Equality in Guaranteeing Economic, Social and Cultural Rights, OEA/Ser.L/V/II.143, Doc. 59, November 3, 2011, par. 49, citing UN, Committee on Continues…