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.
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