the exercise of the notarial public function.”21 And, this meant that, according to the majority position, the State had not violated Article 24 of the Convention, in relation to Articles 1(1) and 2 of this instrument. 18. Up to a certain point, I agree with the majority position of the Court when it identifies that protecting the possibility of holding those who exercise the notarial profession under the Guatemalan system accountable is a legitimate objective. I consider that the requirement of domicile, which is a component of rootedness, serves this purpose and constitutes a legitimate justification for a restriction to the exercise of the profession. 19. Nevertheless, my disagreement lies precisely with the restrictive approach that selects domicile as the only element in its analysis of the allegation of discrimination in this specific case. This is because the requirement of “nationality” is also a component of rootedness and, of itself, constitutes an impediment to the exercise of the profession in Guatemala. Moreover, this is precisely the reason alleged by the State in the domestic proceedings to prevent Mr. Hendrix from exercising his profession. 20. The right to equality and non-discrimination involves a series of obligations for the State. Among its direct obligations, the following can be identified: (i) the obligation not to introduce discriminatory provisions into its laws, and (ii) the obligation not to act in a discriminatory manner, which includes the situations in which the State applies its laws in a way that generates discriminatory situations. As is explained in the judgment ( para. 21), in order to exercise the notarial profession, article 2(1) of the Guatemalan Notarial Code indicates that it is necessary “[t]o be Guatemalan by birth, at least 18 years of age, a lay person, and domiciled in the Republic, subject to the provisions of paragraph 2 of Article 6.”22 I believe that, bearing in mind the State’s obligation not to introduce discriminatory provisions into its laws, the requirement of both “nationality” and “domicile” should be strictly analyzed as possible discriminatory provisions, and scrutinized to verify if they conform to the Convention. 21. In addition, even though Mr. Hendrix was not domiciled in Guatemala, that was not the specific reason why, at the domestic level, he was prevented from access to the profession of notary. In the three internal decisions that prevented him from exercising the profession – in both the administrative23 and the two judicial decisions24 – the objection presented by the State was based on his foreign nationality. Even the judgment of the Constitutional Court focused specifically on weighing the right acquired by the academic degree against the requirement of possessing Guatemalan nationality in order to register with the professional association.25 Also, I recall that the Constitutional Court established naturalization as the only condition for Mr. Hendrix to be a notary, without referring to his domicile. 22. Accordingly, the case of Hendrix v. Guatemala has a clear factual framework: the conformity with the Convention of the application of the nationality requirement by the Guatemalan administrative and judicial authorities. The discussion concerning the application of the domicile requirement exceeds this framework because it was not addressed by either the Guatemalan notarial or judicial authorities. By making it a focus of analysis, the majority position of the Court unduly modified the factual framework of 21 Cf. Judgment, para. 75. The exception refers to “consuls or diplomatic agents of the Republic, accredited and resident abroad, who are authorized notaries pursuant to this law,” which is not relevant to this specific case. 22 Cf. Transcript of “Resolution 3-2001 of February 6, 2001, of the Guatemalan Lawyers and Notaries Professional Association included in the note of January 16, 2002, of the Board’s Secretary.” 23 24 Cf. Judgment of the Third Chamber of the Appellate Court of June 25, 2002; Judgment of the Constitutional Court of April 21, 2004. 25 Cf. Judgment of the Constitutional Court of April 21, 2004. 5