39. The Commission and the Court have found that the principle of equal protection and non-discrimination
is a central and fundamental pillar of the inter-American human rights system. The notion of equality springs
directly from the oneness of the human family and is linked to the essential dignity of the individual, and that
principle cannot be reconciled with the notion that a given group has the right to privileged treatment because
of its perceived superiority; it is equally irreconcilable with that notion to characterize a group as inferior and
treat it with hostility or otherwise subject it to discrimination in the enjoyment of rights which are accorded
to others not so classified. The Court’s caselaw has indicated that at the current moment of the development
of international law, the fundamental principle of equal protection and nondiscrimination has taken on the
status of jus cogens. This principle, on which rests the entire legal framework of the national and international
public order, permeates all legal systems.18
40. The principle of equal protection and nondiscrimination incorporates two concepts: “(...) a negative
concept related to the prohibition of arbitrary differentiation of treatment, and an affirmative concept related
to the obligation of States Party to create real equal conditions toward groups who have been historically
excluded or who are exposed to a greater risk of being discriminated.”19
41. With regard to the first concept, which is pertinent to this case, the Inter-American Court has emphasized,
based on the origins of the case law on the subject, that not all differentiated treatment is discriminatory and
that it must be determined whether it is objectively and reasonably justified.20 The Inter-American Court has
emphasized that “with a ban on discrimination based on one of the protected categories set forth in Article
1(1) of the Convention, any restriction of a right must be rigorously justified, with great weight, and the burden
of proof must be inverted, meaning that the authority must demonstrate that its decision has no
discriminatory purpose or effect.”21
42. Likewise, the Commission recalls that one of the immediate obligations emanating from the right to work
consists of guaranteeing its exercise without any discrimination and the adoption of measures or deliberate
and specific steps that are aimed at fully realizing that right and are neither applied progressively nor
dependent on the availability of resources. States have an obligation to adopt all adequate and reasonable
measures to protect the individuals under their jurisdiction from violations of the right to work committed by
third parties.22
2. Analysis of this case
43. In this case, it must first be determined if the alleged victim was restricted from exercising a right
protected by the American Convention, and second, whether the restriction was compatible with the
Convention. Regarding the first aspect, the Commission recalls that the alleged victim studied law and the
notary profession in Guatemala. However, several administrative and judicial rulings prevented him from
exercising the profession of notary based on article 2 of the Code of the Notary Profession, which establishes
Inter-American Court. Case of Flor Freire v. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 31,
2016. Series C No. 315, para. 109.
19 Inter-American Court. Case of Furlan and relatives v. Argentina. Preliminary Objections, Merits, Reparations, and Costs. Judgment of
August 31, 2012. Series C No. 246, para. 267.
20 Inter-American Court. Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica. Advisory Opinion OC4/84 of January 19, 1984. Series A No. 4, paras. 55 and 56.
21 Inter-American Court. Case of Granier et al. (RCTV) v. Venezuela. Preliminary Objections, Merits, Reparations, and Costs. Judgment June
22, 2015. Series C No. 293, para. 228. Also see, IACHR. Application before the Inter-American Court of Human Rights in the case of the
Karen Atala and daughters v. the State of Chile. Case 12,502. September 17, 2010, para. 88. Also CO-24/17, in which the Inter-American
Court underscored that when the differentiating criteria corresponds to characteristics protected under Article 1(1) of the Convention,
referring to: i) the permanent characteristics of persons that cannot be changed without separating them from an identity; ii) groups that
have traditionally been marginalized, excluded, or subordinated; and iii) criteria that are irrelevant for the equitable distribution of goods,
rights, or social responsibilities, the Court views it as an indication that the State has acted arbitrarily. Inter-American Court. Advisory
Opinion OC-24/17 of November 24, 2017, Requested by the Republic of Costa Rica, on gender identity, and equality and nondiscrimination with regard to same-sex couples, para. 66.
22 Committee on Economic, Social and Cultural Rights. General Comment 18, February 6, 2006, para. 31.
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