the rule most favorable to the individual.”215 The specific criteria for which discrimination is
prohibited in this article are not a taxative or exclusive list, but merely declarative. The wording
of this article “leaves the criteria open-ended with the inclusion of the expression ‘any other
social condition,’ to incorporate other categories that had not been explicitly indicated.”216
203. Several international treaties expressly prohibit discrimination based on ethnic origin.217
Moreover, other international instruments reaffirm that indigenous peoples should not be
subjected to any form of discrimination.218
204. The Court takes into account that ethnic group refers to communities of individuals who
share, among other aspects, characteristics of a socio-cultural nature, such as cultural,
linguistic, spiritual affinities and historical and traditional origins. The indigenous peoples fall
within this category, and the Court has recognized that they have specific characteristics that
constitute their cultural identity,219 such as their customary law, their economic and social
characteristics, and their values, practices and customs.220
205. In Chile, the Mapuche indigenous people are recognized as an indigenous ethnic group
under article 1 of Law No. 19,253 (“Indigenous Peoples’ Act”), promulgated in September 1993
(supra para. 88), which establishes that:
The State recognizes that the indigenous peoples of Chile are the descendants of the groups of humans
who have lived on national territory since pre-Colombian times, who conserve their own cultural and
ethnic characteristics and for whom the land is the bedrock of their existence and culture.
The State recognizes as the main indigenous ethnic groups of Chile: the Mapuche, Aimará, Rapa Nui or
Easter Islanders, that of the Atacaman, Quechuas and Collas communities in the northern part of the
country, and the Kawashkar or Alacalufe and Yámana or Yagán communities in the austral fjords. The
State values their existence, because they are an essential element of the origins of the Chilean nation, as
well as their integrity and development, in accordance with their customs and values.
215
Cf. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29
American Convention on Human Rights). Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5, para. 52, and
Case of Atala Riffo and daughters v. Chile, para. 84.
216
Cf. Case of Atala Riffo and daughters v. Chile, para. 85.
217
For example, article 2 of the International Convention for the Elimination of All Forms of Racial Discrimination
establishes the obligation of the States parties “to engage in no act or practice of racial discrimination against persons,
groups of persons or institutions” and, in its article 1, determines that “the term ‘racial discrimination’ shall mean any
distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has
the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human
rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” Article 2 of
the Convention on the Rights of the Child establishes that States “shall respect and ensure the rights set forth in the
Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or
her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or
social origin, property, disability, birth or other status,” thus including the category of “race” separately from
“national, ethnic or social origin.” Article 1 of the International Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families stipulates that “[t]he [said] Convention is applicable, except as
otherwise provided hereafter, to all migrant workers and members of their families without distinction of any kind
such as sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin,
nationality, age, economic position, property, marital status, birth or other status.”
218
The fifth paragraph of the preamble to the United Nations Declaration on the Rights of Indigenous Peoples reaffirms
“that indigenous peoples, in the exercise of their rights, should be free from discrimination of any kind” and, in article
2, stipulates that “indigenous peoples and individuals are free and equal to all other peoples and individuals and have
the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their
indigenous origin or identity.” Cf. UN Doc. A/RES/61/295, 13 September 2007, United Nations Declaration on the Rights of
Indigenous Peoples, Resolution 61/295 of the General Assembly of the United Nations.
219
Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, para. 51, and Case of the Afro-descendant
Communities Displaced from the Río Cacarica Basin (Operation Genesis) v. Colombia, para. 354.
220
Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, para. 63, and Case of the Afro-descendant
Communities Displaced from the Río Cacarica Basin (Operation Genesis) v. Colombia, para. 354.
71
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