15
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.” 30 Even more, the Court has indicated that at the present stage of
development of international law, the fundamental principle of equality and non-discrimination has
entered the realm of jus cogens.31
61.
In this vein, the Inter-American Court has repeatedly held that that there is an
inseverable link between the obligation to respect and ensure human rights and the principle of equality
and non-discrimination.32 Furthermore, the right to equal protection of the law and non-discrimination
means that States have an obligation to (i) abstain from enacting regulations that are discriminatory or
have discriminatory effects on certain population groups in the exercise of their rights; (ii) eliminate
discriminatory regulations; (iii) combat discriminatory practices, and (iv) establish norms and adopt the
measures necessary to recognize and ensure the effective equality of all persons before the law.33
Furthermore, the Court has held that States must refrain from taking any actions that in any way are
either directly or indirectly aimed at creating situations of de facto or de jure discrimination.34 States
have an obligation to take positive measures to reverse or change discriminatory situations within their
societies, situations that are prejudicial to a certain group of persons. This involves the special duty of
protection that the State must exercise with respect to the actions and practices of third parties that,
with its tolerance or acquiescence, create, maintain or foster discriminatory situations.35
62.
written that
As for the prohibition of any arbitrary difference in treatment, the Commission has
[w]hile the doctrine of the inter-American human rights system, like that of other human rights
regimes, does not prohibit all distinctions in treatment in the enjoyment of protected rights and
freedoms, it requires at base that any permissible distinctions be based upon objective and
reasonable justification, that they further a legitimate objective, regard being had to the
principles which normally prevail in democratic societies, and that the means are reasonable
30
I/A Court H.R. Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica. Advisory
Opinion OC-4/84 of January 19, 1984. Series A No. 4, par. 55.
31
I/A Court H.R. Case of Atala Riffo and Daughters v. Chile. Merits, Reparations and Costs. Judgment of February 24,
2012. Series C No. 239, par. 79; I/A Court H.R. Juridical Condition and Rights of the Undocumented Migrants. Advisory Opinion
OC-18/03 of September 17, 2003. Series A No. 18, par. 101;
32
I/A Court H.R. Juridical Condition and Rights of the Undocumented Migrants. Advisory Opinion OC-18/03 of
September 17, 2003. Series A No. 18, par. 85.
33
IACHR, The work, education and resources of women: the road to equality in guaranteeing economic, social and
cultural rights, OEA/Ser.L/V/II.143, Doc. 59, November 3, 2011, paragraph 17, citing from I/A Court H.R. Case of the Girls Yean
and Bosico v. Dominican Republic. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 8, 2005.
Series C No. 130, par. 141; Juridical Condition and Rights of the Undocumented Migrants. Advisory Opinion OC-18/03 of
September 17, 2003, Series A No. 18, par. 88; Case of López Álvarez v. Honduras. Preliminary Objections, Merits, Reparations
and Costs. Judgment of February 1, 2006. Series C No. 141, par. 170; Juridical Condition and Human Rights of the Child. Advisory
Opinion OC-17/02 of August 28, 2002. Series A No. 17, par. 44.
34
Cf. I/A Court H.R. Juridical Condition and Rights of the Undocumented Migrants. Advisory Opinion OC-18/03 of
September 17, 2003. Series A No. 18, par. 103; Case of the Xákmok Kásek Indigenous Community v. Paraguay. Merits,
Reparations and Costs. Judgment of August 24, 2010. Series C No. 214, par. 271.
35
I/A Court H.R. Case of Atala Riffo and Daughters v. Chile. Merits, Reparations and Costs. Judgment of February 24,
2012. Series C No. 239, par. 80, citing from, inter alia, Juridical Condition and Rights of the Undocumented Migrants. Advisory
Opinion OC-18/03 of September 17, 2003. Series A No. 18.