4
12.
In actual fact, international human rights protection (essential) and diplomatic
protection (discretional), operating in fundamentally different ways and contexts,
continue to co-exist nowadays, thereby mitigating the extreme vulnerability of many
people. Diplomatic protection is conditioned by nationality (effective) as a vinculum
juris, while international human rights protection emphasizes the general obligation of
States Parties to human rights treaties, such as the American Convention, to respect
and ensure the respect of the protected rights, for the benefit of all individuals subject
to their respective jurisdictions, irrespective of their nationality.
13.
ln this respect, this judgment of the Court provides a timely warning – bearing
in mind the general obligations of the States Parties to the American Convention
stipulated in Articles 1(1) and 2 thereof - that discriminatory administrative practices
and legislative measures on nationality are prohibited (starting with its attribution and
acquisition - paras. 141-142). The judgment takes care to emphasize the fact that
Dilcia Yean and Violeta Bosico were children, which increased their vulnerability, and
jeopardized the development of their personalities, making it impossible to grant them
the special protection of their rights to which they were entitled (para. 167); in this
respect, the Court rightly recalled the important legacy of its own Advisory Opinion No.
17 (on the Juridical Status and Human Rights of the Child, 2002) as regards their
protection as subjects of inalienable and inherent rights (para. 177).
14.
In this case of the Yean and Bosico children, the Court understood that the
violation of the right to nationality and the rights of the child also resulted in the
violation of the rights to juridical personality, to a name and to equal protection under
the American Convention (paras. 174-175, 179-180 and 186-187). Significantly,
following this same line of lucid reasoning – in keeping with the challenges of our times,
which the Court commenced in its historical Advisory Opinion No. 19 on the Juridical
Status and Rights of Undocumented Migrants (2003) – it observed in this case that:
"(...) the obligation to respect and ensure the principle of the right to equal protection and
non-discrimination is irrespective of the migratory status of a person in a State. In other
words, States have the obligation to ensure this fundamental principle to its citizens and to
any foreigner who is on its territory, without any discrimination based on regular or irregular
residence, nationality, race, gender or any other cause.
In view of the above, (...) the Court considers that:
a)
The migratory status of a person cannot be a condition for the State to grant
nationality, because migratory status can never constitute a justification for depriving a
person of the right to nationality or the enjoyment and exercise of his rights;
b)
The migratory status of a persons is not transmitted to their children, and
c)
The fact that a person has been born on the territory of a State is the only fact that
needs to be demonstrated for the acquisition of nationality, in the case of those persons
who would not have the right to another nationality if they did not acquire that of the State
where they were born” (paras. 155-156).
III.
The broad scope of the general protection obligations
(Articles 1(1) and 2) of the American Convention.
15.
Thus, the obligation to respect and ensure respect for the protected rights
(Article 1(1) of the American Convention) is of a continuous and permanent nature; if
the State does not take all possible measures to guarantee this, new victims may arise
leading per se (owing to the State’s inaction) to additional violations, without these
having to be related to the rights that were originally violated. Consequently, my
understanding differs fundamentally from the argument according to which there