discrimination in access to employment by the State constituted a violation of the right to
work.161
109. Therefore, the sphere of protection of Article 26 of the Convention, as it has been
interpreted by the Inter-American Court, protects the individual not only against arbitrary
removal (job stability), but also against the denial of access to a job based on
discriminatory barriers.
110. In the preceding sections, it has been demonstrated not only that (i) Mr. Hendrix
was deprived of obtaining the job he sought owing to the application of a discriminatory
condition, but also (ii) he did not enjoy adequate judicial protection to redress the harm
to his rights. Thes two circumstances analyzed based on the Inter-American Court’s
standards lead, per se, to the conclusion that the petitioner was arbitrarily prevented from
enjoying his right to work based on discriminatory reasons in violation of Article 26 of the
Convention.
111. Thus, in the instant case, it can be seen that the foreign nationality of Mr. Hendrix
placed him at a disadvantage. Access to a career is an advantage because jobs are
opportunities not only to obtain an income, but also for self-fulfillment, which, in turn, is
an evident component of the notion of a decent life. However, as it is regulated in
Guatemala, not everyone can exercise the notarial career. In this context, guaranteeing
equal opportunities of access to employment is a necessary condition to avoid
discriminatory treatment.162
112. According to the opinion provided by expert witness Gabriel Orellana Rojas during
the public hearing, in Guatemala most lawyers are also notaries and, therefore, those who
do not exercise notarial activities are at a clear disadvantage in relation to the others.163
In this case, one of the problems encountered refers to whether or not non-arbitrary
reasons existed to support the validity of the nationality requirement in the procedure for
access to the notarial career in Guatemala.
113. In its final arguments, Guatemala asserted that the “nationality” requirement for
the notarial practice was common among Latin American countries. It added that this
requirement was not exclusive to Guatemala, but had been adopted by several countries
of the Americas.164 Accordingly, it indicated that there was “a general, uniform and
harmonious practice that has existed over time in relation to the nationality requirement
for the exercise of the notarial function and, therefore, it complied with one of the elements
for recognition of an international custom.”165
114. However, exercise of the functions of notary and lawyer is incompatible in many
Latin American countries that also establish nationality as an essential requirement for the
exercise of the notarial profession. This is a sign that, in those countries, the objectives of
the notarial profession and the law are more significantly different that in Guatemala:
while the former seeks to be fully impartial in the name of legal security and the interests
of the State (although in weak sense), the latter seeks to harmonize the interests of society
with private interests.
115. Thus, the references to comparative law are, more than sources of inspiration, an
interpretive necessity. However, comparative analyses must be aware of certain
methodological risks; especially that of the irrelevance of suggested relationships and the
161
Cf. Case of Guevara Díaz v. Costa Rica. Merits, reparations and costs. Judgment of June 22, 2022. Series
C No. 453, para. 79.
162
For a more direct defense of the relationship between non-discrimination and equal opportunities, cf.
SEGALL, Shlomi, ¿What’s so Bad about Discrimination? Utilitas, v. 24, n. 1, p. 82-100, 2012.
163
Cf. Expert opinion provided by Gabriel Orellana Rojas during the public hearing held on March 28, 2022.
164
Cf. The State’s brief with final arguments of April 28, 2022, para. 112.
165
Cf. The State’s brief with final arguments of April 28, 2022, para. 127.
28