2
5.
In sum, nowadays, the right of the individual to international justice under
the American Convention is safeguarded both by the relevant treaty-based norms
and by the Court’s resolve, which has perfected its interna corporis notably
(particularly over the period November 2000 to January 2004), by not admitting
undue restrictions to that right. This contributes, in my opinion, to the actual process
of humanization of international law, in addition to constituting a definitive conquest
of contemporary civilization within the framework of the American Convention.
6.
The second point I wish to emphasize in my separate opinion concerning this
judgment, which is the Inter-American Court’s first judgment on political rights in a
democratic society3 under Article 23 of the American Convention, is the relevant
connection that the Court has made between political rights and the right to equal
protection of the law, embodied in Article 24 of the American Convention. The latter
is constituted by a basic principle that the Court itself has recognized as belonging to
the domain of international jus cogens: the principle of equality and nondiscrimination.
7.
In this judgment in YATAMA v. Nicaragua, the Court confirms the significant
advance in its case law with regard to the historic Advisory Opinion No. 18 on the
Juridical Status and Rights of Undocumented Migrants (2003), by reasoning (in
paragraphs 184 to 186 that:
"The principle of the equal and effective protection of the law and of nondiscrimination constitutes an outstanding element of the human rights protection system
embodied in many international instruments and developed by international legal
doctrine and case law. At the current stage of the evolution of international law, the
fundamental principle of equality and non-discrimination has entered the realm of jus
cogens. The juridical framework of national and international public order rests on it and
it permeates the whole juridical system.
This principle is fundamental for the safeguard of human rights in both
international and national law; it is a principle of peremptory law. Consequently, States
are obliged not to introduce discriminatory regulations into their laws, to eliminate
regulations of a discriminatory nature, to combat practices of this nature, and to
establish norms and other measures that recognize and ensure the effective equality
before the law of each individual. A distinction that lacks objective and reasonable
justification is discriminatory.
Article 24 of the American Convention prohibits any type of discrimination, not
only with regard to the rights embodied therein, but with regard to all the laws that the
State adopts and to their application. In other words, this article does not merely
reiterate the provisions of Article 1(1) of the Convention concerning the obligation of
States to respect and ensure, without discrimination, the rights recognized therein, but,
in addition, establishes a right that also entails obligations for the State to respect and
ensure the principle of equality and non-discrimination in the safeguard of other rights
and in all domestic laws that it adopts.
8.
Regarding the broad scope of the basic principle of jus cogens, equality and
non-discrimination, I have already referred to this in my extended concurring opinion
to the Court’s Advisory Opinion No. 18 on the Juridical Status and Rights of
Undocumented Migrants, which I will refer to here. In this concurring opinion I
stated, for example, that this principle permeates the whole corpus juris of
international human rights law (para. 59) of which it is one of the pillars,4 in addition
.
And, in this Case of YATAMA, as the Court’s judgment recognizes, the exercise of political rights
is increasing in importance, because it has a direct impact on the need to preserve the right to cultural
identity and the right to participate in public life of the indigenous communities of the Atlantic Coast of
Nicaragua (paras. 226-228).
3
.
4
A. Eide and T. Opsahl, Equality and Non-Discrimination, Oslo, Norwegian Institute of Human
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