indirectly aimed at creating situations of de jure or de facto discrimination.42 The Court’s
case law has also indicated that at the current moment of the development of
international law, the fundamental principle of equal protection and nondiscrimination
has taken on the status of ius cogens. On it rests the entire legal framework of the
national and international public order, and it permeates all legal systems.43
47.
Additionally, the Court has established that Article 1(1) of the Convention is a
general norm the content of which extends to all the provisions of the treaty and
establishes the obligation of the States Parties to respect and ensure the full and free
exercise of the rights and freedoms recognized therein “without any discrimination.” In
other words, whatever the origin or the form it takes, any conduct that could be
considered discriminatory with regard to the exercise of any of the rights guaranteed in
the Convention is per se incompatible with it.44 The State’s non-compliance with the
general obligation to respect and ensure human rights through any different treatment
that may be discriminatory—that is, that does not pursue legitimate purposes, is
unnecessary, and/or is disproportionate—generates international responsibility. Thus,
there is an indissoluble connection between the obligation to respect and ensure human
rights and the principle of equality and non-discrimination.45
48.
Additionally, this Court has found that while the general obligation set forth in
Article 1(1) addresses the State’s duty to respect and guarantee, "without
discrimination," the rights set forth in the American Convention, Article 24 protects the
right to "equal protection of the law."46 That is, Article 24 of the American Convention
prohibits discrimination not only as regards the rights enshrined in the treaty but also
with respect to all laws enacted by the State and their application.47 In other words, if a
State discriminates in respecting or guaranteeing a right set forth in the Convention, it
fails to comply with the obligation set forth in Article 1(1) and the substantive right in
question. On the other hand, if the discrimination involves unequal protection under a
domestic law or its application, the facts should be reviewed pursuant to Article 24 of
the American Convention, read in conjunction with the categories protected by Article
of articles 13, 15, 16, 24, 25, and 26 in relation to articles 1(1) and 2 of the American Convention on Human
Rights; articles 3, 6, 7, and 8 of the Protocol of San Salvador; articles 2, 3, 4, 5, and 6 of the Convention of
Belém do Pará; articles 34, 44, and 45 of the Charter of the Organization of American States; and articles II,
IV, XIV, XXI, and XXII of the American Declaration on the Rights and Duties of Man). Advisory Opinion OC27/21 of May 5, 2021. Series A No. 27, para. 152.
Cf. Juridical Condition and Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of September
17, 2003. Series A No. 18, para. 103, and Advisory Opinion OC-27/21, supra, para. 152.
42
43
Cf. Advisory Opinion OC-18/03, supra, para. 101, and Advisory Opinion OC-27/21, supra, para. 152.
Cf. Advisory Opinion OC-4/84, supra, para. 53; and Case of Pavez Pavez v. Chile. Merits, Reparations,
and Costs. Judgment dated February 4, 2022. Series C No. 449, para. 65.
44
45
Cf. Advisory Opinion OC-18/03, supra, para. 85; and Case of Pavez Pavez v. Chile, supra, para. 65.
46
Cf. Advisory Opinion OC-4/84, supra, paras. 53 and 54; and Case of Pavez Pavez v. Chile, supra, para.
65.
Cf. Case of Yatama v. Nicaragua. Preliminary Objections, Merits, Reparations, and Costs. Judgment of
June 23, 2005. Series C No. 127, para. 186; and Case of Pavez Pavez v. Chile, supra, para. 66.
47
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