23
the State84 for there is an “inseparable connection” between that obligation and the principle of equality
and non-discrimination.85
89.
On the principle of equality, the Inter-American Court has noted:
The notion of equality springs directly from the oneness of the human family and is linked to the
essential dignity of the individual. That principle cannot be reconciled with the notion that a
given group has the right to privileged treatment because of 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. It is impermissible to subject human beings to differences in treatment that are
86
inconsistent with their unique and congenerous character.
90.
On the concept of discrimination, the Court has held that it constitutes:
… any distinction, exclusion, restriction or preference which is based on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property, birth
or other status, and which has the purpose or effect of nullifying or impairing the recognition,
87
enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.
91.
As regards the scope of the principle of non-discrimination in the inter-American
system, the Court has distinguished between autonomous and subordinate clauses of the American
Convention, establishing from its early case-law that Article 1(1) incorporates a prohibition on
discrimination in the exercise and application of the rights enshrined in that instrument, whereas Article
24 prohibits such discrimination as regards not only the rights established in the Convention, but “all the
laws approved by the State and their application.”88 This distinction has been reiterated by the InterAmerican Court in the case Apitz Barbera et al. v. Venezuela, in the following terms:
The difference between the two articles lies in that the general obligation contained in Article
1(1) refers to the State’s duty to respect and guarantee “non-discrimination” in the enjoyment of
the rights enshrined in the American Convention, while Article 24 protects the right to “equal
treatment before the law.” In other words, if the State discriminates upon the enforcement of
conventional rights containing no separate non-discrimination clause a violation of Article 1(1)
84
I/A Court H.R. Case of the Xákmok Kásek Indigenous Community v. Paraguay. Merits, Reparations and Costs.
Judgment of August 24, 2010 Series C No. 214, para. 268; I/A Court H.R. Legal Status and Rights of Undocumented Migrants.
Advisory Opinion OC-18/03, September 17, 2003. Series A No. 18, para. 85.
85
I/A Court H.R. Legal Status and Rights of Undocumented Migrants. Advisory Opinion OC-18/03, September 17,
2003. Series A No. 18, para. 85.
86
I/A Court H.R. Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica. Advisory
Opinion OC-4/84, January 19, 1984. Series A No. 4, para. 55.
87
I/A Court H.R. Legal Status and Rights of Undocumented Migrants. Advisory Opinion OC-18/03, September 17,
2003. Series A No. 18, para. 92; Fourth Progress Report of the Special Rapporteurship on Migrant Workers and their Families in
the Hemisphere, OEA/Ser.L/V/II.117, Doc. 1 rev. 1, Annual Report IACHR 2002, March 7, 2003, para. 87; IACHR, Report on the
Merits No. 4/01, Case 11,626, María Eugenia Morales de Sierra (Guatemala), January 19, 2001. See also: United Nations,
Human Rights Committee, General Comment 18, Non-discrimination, 10/11/89, CCPR/C/37, para. 7.
88
I/A Court H.R. Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica. Advisory
Opinion OC-4/84, January 19, 1984. Series A No. 4., para. 54. I/A Court H.R. Yatama Case. Judgment of June 23, 2005. Series C
No. 127, para. 186.