the law, and is applicable if discrimination relates to unequal protection by domestic law or
its application. 300
263. The Court also reiterates “that international human rights law prohibits not only
policies and practices that are deliberately discriminatory, but also those whose impact
discriminates against certain categories of persons, even when it is not possible to prove
the discriminatory intention.” 301 In this regard:
A violation of the right to equality and non-discrimination occurs also in situations and cases of
indirect discrimination reflected in the disproportionate impact of laws, actions, policies or other
measures that, even though their wording is or appears to be neutral, or has a general and
undifferentiated scope, have negative effects on certain vulnerable groups. 302
Thus, the Court has also stipulated: “States must abstain from implementing measures
that, in any way, are addressed, directly or indirectly, at creating situations of
discrimination de jure or de facto,” 303 and are obliged “to adopt positive measures to
reverse or change discriminatory situations that exist in their societies that prejudice a
specific group of persons.” 304
264. Regarding the right to nationality, the Court reiterates that the jus cogens principle
of equal and effective protection of the law and non-discrimination 305 requires States,
when regulating the mechanisms for granting nationality, to abstain from establishing
discriminatory regulations or regulations that have discriminatory effects on different
groups of a population when they exercise their rights. 306 In addition, States must combat
Preliminary objections, merits, reparations and costs. Judgment of November 20, 2013. Series C No. 270, para.
332, and Case of Veliz Franco et al. v. Guatemala, para. 204.
300
Cf. Case of Apitz Barbera et al. v. Venezuela. Preliminary objection, merits, reparations and costs.
Judgment of August 5, 2008. Series C No. 182, para. 209, and Case of Veliz Franco et al. v. Guatemala, para.
214.
301
Case of Nadege Dorzema et al. v. Dominican Republic, para. 234, and ECHR, Case of D.H. and Others v.
Czech Republic. No. 57325/00. Judgment of 13 November 2007, paras. 184 and 194.
302
Case of Nadege Dorzema et al. v. Dominican Republic, para. 235. On that occasion, the Court referred to
the comments of the Committee on Economic, Social and Cultural Rights, in its General Comment No. 20 (Nondiscrimination in economic, social and cultural rights, para. 10(b)). In this judgment, the Court also recalled that
the European Court has considered “that where a general policy or measure has disproportionately prejudicial
effects on a particular group, it is not excluded that this may be regarded as discriminatory notwithstanding that
it is not specifically aimed or directed at that group,” in the following decision: ECHR. “Hoogendijk v. The
Netherlands, No. 58641/00. First section. Decision on admissibility of 6 January 2005, p. 21.”
303
Juridical Status and Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of September 17,
2003. Series A No. 18, para. 103, and Case of Veliz Franco et al. v. Guatemala, para. 206.
304
Juridical Status and Rights of Undocumented Migrants. OC-18/03, para. 104, and Case of Veliz Franco et
al. v. Guatemala, para. 206.
305
Cf. Juridical Status and Rights of Undocumented Migrants. OC-18/03, para. 101.
306
Cf. Case of the Yean and Bosico Girls v. Dominican Republic, para. 141. See also: Case of Yatama.
Judgment of June 23, 2005. Series C No. 127, para. 135; Juridical Status and Rights of Undocumented Migrants.
OC-18/03, para. 88, and Juridical Status and Human Rights of the Child. Advisory Opinion OC-17/02 of August
28, 2002. Series A No. 17, para. 44. See also, with regard to the principle of non-discrimination in the granting
or denying of nationality, other international systems and instruments: ECHR, Case of Genovese v. Malta, No.
53124/09. Judgment of 11 October 2011 (Discrimination between legitimate and illegitimate children in relation
to the acquisition of nationality by jus sanguinis); European Commission on Human Rights, Slepcik v. The
Netherlands and Czech Republic, No. 30913/96, Decision of 2 September 1996 (Discrimination based on race or
ethnic group); 1997 European Convention on Nationality, article 5; Convention on the Reduction of
Statelessness, Article 9; Convention on the Rights of the Child, articles 2(2), 7 and 8; Committee on the Rights of
the Child, General Comment No. 6 (Treatment of unaccompanied or separated children), 2005, para. 12,
International Convention on the Elimination of All Forms of Racial Discrimination, article 5 (d) (iii); International
Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, article 29;
African Commission on Human and Peoples’ Rights, 54/91-61/91-96/93-98/93-164/07-196/97-210/98, Malawi
African Association, Amnesty International, Ms Sarr Diop, Union interafricane des droits de l’homme and
86
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos