7 33. The State points out that Mr. Duque’s pension situation, and that of the entire LGBTI community, has been determined by the progressive development and advances in guaranteeing ESCR to the entire population. The State therefore argues that this case ought not to focus on determining whether the effect on Mr. Duque has been discriminatory; this kind of situation happened because of the mechanism of “progressive realization” with respect to the ESCR and the margin of flexibility that the States have to guarantee rights of this kind to its entire population. The State contends that it is impossible to make the case that every situation that is less advantageous to a given group engages the State’s international responsibility. 34. The State also observes that no proof has been offered of the harm that the alleged victim is said to have sustained, from which one can conclude that: (i) this claim alleging the discrimination that Mr. Duque supposedly experienced is not grounds for concluding that the State bears responsibility, as this would be contrary to the principle of progressive realization; and (ii) no link has been established between the supposed discrimination and any actual harm to Mr. Duque’s interests or rights. 35. As for the rights to judicial guarantees and to judicial protection, the State alleges that if Mr. Duque believed that due process of law was not available in Colombia, he would not have applied, via the administrative avenue, for recognition of a pension right. The State further maintains that Mr. Duque was never denied access to justice; it also argues that the fact that the decisions of first and second instance by the constitutional judge did not go in his favor does not mean that due process of law does not exist in Colombia. Similarly, the State observes that the judges who decided his actions seeking tutela did not base their decisions on the fact that he was homosexual; instead, they reasoned that there was no provision in Colombian law for the circumstance of homosexuality. 36. The State also points out that the rulings of the courts notwithstanding, Mr. Duque has never proven to COLFONDOS that he was JOJG’s pension beneficiary, which is a precondition for obtaining an analysis by COLFONDOS of his status as beneficiary. According to the State, the fact that COLFONDOS has indicated who could qualify to be the beneficiary of a survivor’s pension in no way implies that a formal application claiming a survivor’s pension has been received, or that Mr. Duque has in fact proven the existence of a de facto marital union or that he meets the requirements that the law prescribes to apply for recognition as beneficiary. 37. The State contends that Mr. Duque should submit the documents that the law prescribes to formally begin the process of applying for a survivor’s pension and that if COLFONDOS does not accept his claim, Mr. Duque has an action of tutela available to him, as an effective and suitable remedy to seek correction of any improper interpretation of the laws in force on the subject of social security, inasmuch as the Constitutional Court has ruled that “although a survivor’s pension is an economic benefit, it has also been classified as a basic right.” Specifically the State alleges that through the advances it has made on the subject of social security, the jurisprudence of Colombia’s Constitutional Court has upheld recognition of the survivor’s pension: (i) irrespective of whether Mr. JOJG’s death occurred prior to notification of judgment C-336 of 2008, and (ii) allowing same-sex couples to use all the means of proof that heterosexual couples can use to demonstrate the existence of a permanent union in order to qualify for a survivor’s pension. Consequently, the State contends that based on the advances in jurisprudence, the legal conditions have been created to allow Mr. Duque to claim the survivor’s pension if he proves his status as JOJG’s beneficiary and permanent partner.