B.3 Human rights and business: standards on equality and non-discrimination based on sexual orientation, gender identity and gender expression 95. This Court has established that the obligation to guarantee rights contained in Article 1(1) of the American Convention extends beyond the relationship between State agents and the persons subject to their jurisdiction, and encompasses the duty to prevent, in the private sphere, third parties from violating the protected legal interests. 116 However, the Court has held that a State cannot be held liable for all human rights violations committed by private individuals within its jurisdiction. The erga omnes nature of the State’s treaty obligations does not imply its unlimited liability for any act committed by private individuals. Thus, even if an action, omission or behavior of a private individual has the legal consequence of violating the rights of others, this is not automatically attributable to the State; rather, it is necessary to analyze the particular circumstances of the case and the specific nature of the obligations of guarantee. 117 96. However, it is also important to remember that States must refrain from actions that in any way are aimed, directly or indirectly, at creating situations of de jure or de facto discrimination. 118 Indeed, States are required to adopt positive measures to reverse or change discriminatory situations existing in their societies that prejudice a specific group of people. This means that the State must exercise a special duty of protection with regard to the actions and practices of third parties who, with its tolerance or acquiescence, create, maintain or facilitate discriminatory situations. 119 97. Regarding the State’s obligations in relation to business activities, in the case of the Miskito Divers v. Honduras the Court found it pertinent to refer to the “Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy’ Framework” (hereinafter “Guiding Principles”). 120 In particular, the Court highlighted the three pillars of the Guiding Principles, namely: (i) the State’s duty to protect human rights, (ii) the corporate responsibility to respect human rights and (iii) access to remedies, as well as the foundational principles derived from these pillars, which are fundamental in determining the scope of the human rights obligations of States and business enterprises. 121 116 Cf. Case of the "Mapiripán Massacre" v. Colombia. Judgment of September 15, 2005. Series C No. 134, para. 111, and Case of Vera Rojas et al. v. Chile. Preliminary objections, merits, reparations and costs. Judgment of October 1 2021. Series C No. 439, para. 83. 117 Cf. Case of the Pueblo Bello Massacre v. Colombia. Judgment of January 31, 2006. Series C No. 140, para. 123, and Case of Vera Rojas et al. v. Chile, supra, para. 83. 118 Cf. Juridical Condition and Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of September 17, 2003. Series A No. 18, para. 103, and Case of Pavez Pavez v. Chile, supra, para. 65. 119 Cf. Advisory Opinion OC-18/03, supra, para. 104, and Advisory Opinion OC-24/17, supra, para. 65. Similarly, the UN Human Rights Committee concluded in General Comment No. 18 that “the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant.” Cf. UN Human Rights Committee, General Comment No. 18, “Non-discrimination,” adopted at the 37th Session of the Human Rights Committee, on November 10, 1989, para. 10. 120 Cf. Human Rights Council, “Human rights and transnational corporations and other business enterprises” - A/HRC/17/31, July 6, 2011, first operative paragraph, and Committee on Economic, Social and Cultural Rights. General Comment No. 24 on State obligations in the context of business activities and the International Covenant on Economic, Social and Cultural Rights, E/C.12/GC/24, August 10, 2017, para. 14. 121 Cf. Case of the Miskito Divers (Lemoth Morris et al.) v. Honduras. Judgment of August 31, 2021. Series C No. 432, para. 47. 32

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