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resources did not constitute special, opportune or effective mechanisms for the protection of the rights of
the Kuna of Madungandí or the Emberá of Bayano or their members, in violation of the obligations
contained in Articles 8(1) and 25(1) of the Convention, in relation to Articles 1(1) and 2.
C.
Right to equality before the law and non-discrimination – Articles 24
the American Convention
373
and 1(1) of
283.
The American Convention prohibits discrimination of any type, a notion that includes
unwarranted distinctions on the basis of race, color, national or social origin, economic position, birth, or
any other social condition. The principle of equality and non-discrimination is a protection that underlies
the guarantee of other rights and liberties, since in the terms of Article 1(1) of the American Convention,
every person is entitled to the human rights enshrined in those instruments, and has the right to have the
State respect and ensure their free and full exercise, without discrimination of any kind. In the words of
the Inter-American Court: “Non-discrimination, together with equality before the law and equal protection
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of the law, are elements of a general basic principle related to the protection of human rights.”
284.
The scope of Article 24 of the Convention, which enshrines the right to equality before the
law and to receive equal protection of the law, without discrimination, has been described by the InterAmerican Court in the following terms:
Although [the concepts] are not conceptually identical … Article 24 restates to a certain degree the
principle established in Article 1(1). In recognizing equality before the law, it prohibits all
discriminatory treatment originating in a legal prescription. The prohibition against discrimination so
broadly proclaimed in Article 1(1) with regard to the rights and guarantees enumerated in the
Convention thus extends to the domestic law of the States Parties, permitting the conclusion that in
these provisions the States Parties, by acceding to the Convention, have undertaken to maintain
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their laws free of discriminatory regulations.
285.
In this regard, the Inter-American Court has also referred to the obligations that arise for
the States from the principle of equality and non-discrimination, affirming that:
States have the obligation to combat discriminatory practices and not to introduce discriminatory
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regulations into their laws” , and that “[i]n compliance with this obligation, States must abstain
from carrying out any action that, in any way, directly or indirectly, is aimed at creating situations of
de jure or de facto discrimination. This translates, for example, into the prohibition to enact laws, in
the broadest sense, formulate civil, administrative or any other measures, or encourage acts or
practices of their officials, in implementation or interpretation of the law that discriminate against a
377
specific group of persons because of their race, gender, color or other reasons.
286.
One specific manifestation of the right to equality is the right of all persons not to be
victims of racial discrimination. This form of discrimination constitutes an affront to the equality and
373
Article 24 of the American Convention provides: “All persons are equal before the law. Consequently, they are entitled,
without discrimination, to equal protection of the law.”
374
I/A Court H.R., Juridical Condition and Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of September
17, 2003, Series A. No. 18, para. 83. The Human Rights Committee has also noted: “Non-discrimination, together with equality
before the law and equal protection of the law without any discrimination, constitute a basic and general principle relating to the
protection of human rights.” UN Human Rights Committee. General Comment No. 18. Non-Discrimination. November 10, 1989.
para. 1.
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I/A Court H.R., Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica. Advisory
Opinion OC-4/84 of January 19, 1984. Series A No. 4, para. 54. Along the same lines, see IACHR, Report No. 40/04, Case 12,053,
Maya Indigenous Communities of the Toledo District v. Belize, October 12, 2004, paras. 162 ff.
376
I/A Court H.R.. Juridical Condition and Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of September
17, 2003, Series A. No. 18, para. 88.
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I/A Court H.R.. Juridical Condition and Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of September
17, 2003, Series A. No. 18, para. 103.