Convention prohibits factual or legal discrimination, not only with regard to the rights
contained in this treaty, but also with regard to all the laws enacted by the State and their
implementation.466 This means that, if a State discriminates in the respect and guarantee of
a treaty-based right, it would be failing to comply with the obligation established in Article
1(1) and the substantive right in question. If, to the contrary, the discrimination refers to an
unequal protection under domestic law or its application, the fact should be analyzed in light
of Article 24 of the American Convention467 in relation to the categories protected by Article
1(1) of the Convention.
335. Furthermore, in relation to Article 1(1) of the Convention, the Court has established
that this is a norm of a general nature, the content of which extends to all the provisions of
the treaty, and establishes the obligation of the States Parties to respect and ensure the free
and full exercise of the rights and freedoms recognized therein “without any discrimination.”
In other words, whatsoever its origin or form, any treatment that could be considered
discriminatory in relation to the exercise of any of the rights guaranteed in the Convention
is, per se, incompatible with this instrument.468 The State’s non-compliance with the general
obligation to respect and ensure human rights by any discriminatory treatment results in its
international responsibility.469 This is why there is an indissoluble link between the obligation
to respect and to ensure human rights and the principle of equality and non-discrimination.470
In this regard, the Court stresses that, unlike other human rights treaties, the “economic
status” of the individual is one of the causes of discrimination prohibited by Article 1(1) of
the American Convention.
336. The Court has indicated that “States must refrain from undertaking actions that are
in an way aimed, directly or indirectly, at creating situations of discrimination de jure or de
facto.”471 States are obliged “to adopt positive measures to revert or modify any
discriminatory situations in their societies that prejudice a specific group of people. This
entails the special duty of protection that the State must exercise with regard to acts and
practices of third parties who, with its tolerance or acquiescence, create, maintain or promote
discriminatory situations.”472
337. The Court has established that anyone in a position of vulnerability is owed special
protection, due to the special duties that the State must fulfill to satisfy the general obligation
to respect and to guarantee human rights. The Court recalls that it is not sufficient that States
merely abstain from violating rights; rather, it is essential that they adopt positive measures,
determined on the basis of the particular needs for protection of the subject of law due to his
personal situation or to the specific situation in which he finds himself,473 such as extreme
poverty or marginalization.474
Cf. Case of Yatama v. Nicaragua. Preliminary objections, merits, reparations and costs. Judgment of June 23,
2005. Series C No. 127, para. 186, and Case of Duque, para. 94.
466
Cf. Case of Apitz Barbera et al. (“First Administrative Contentious Court”), para. 209, and Case of Duque, para.
94.
467
Cf. Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica, para. 53; and Case
of Duque, para. 94.
468
Cf. Juridical Status and Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of September 17, 2003.
Series A No. 18, para. 85; and Case of Duque, para. 94.
469
470
Cf. Juridical Status and Rights of Undocumented Migrants, para. 85; and Case of Duque, para. 94.
471
Juridical Status and Rights of Undocumented Migrants, para. 103, and Case of Duque, para. 92.
472
Cf. Juridical Status and Rights of Undocumented Migrants, para. 104, and Case of Duque, para. 92.
Cf. Case of the “Mapiripán Massacre” v. Colombia. Judgment of September 15, 2005. Series C No. 134, paras.
111 and 113, and Case of Chinchilla Sandoval, para. 168.
473
Cf. Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, reparations and costs. Judgment of
March 29, 2006. Series C No. 146, para. 154. The Court has also indicated that “States must take into account that
the groups of individuals who live in adverse circumstances and with less resources, such as those who live in
474
86