79
359.
As regards the contents of the concept of equality, the Inter-American Court has
explained that this springs directly from the single nature of the human family and it is inseparable from
the essential dignity of the individual in regard to which any situation is impermissible which considers a
certain group as being inferior, leads to treating them with hostility or in any other way discriminates
against them in the enjoyment of rights which are accorded to others not so classified. It is impermissible
to subject human beings to differences in treatment that are inconsistent with their unique and
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congenerous character.
On the principle of equality reposes the judicial framework of national and
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international public policy and that permeates all laws.
This principle is a rule of jus cogens.
360.
The Commission will analyze the possible discrimination against the displaced Afrodescendants, the victims in the present case. In this sense, the IACHR reiterates (see above IV C.1.) that
it considers it necessary to give a broad interpretation to the rights of the American Convention based on
other relevant international instruments, by virtue of the clause set out in Article 29.b, which allows a fuller
characterization of the events.
361.
A special manifestation of the right to equality is the right of everyone not to be a victim of
racial discrimination. This type of discrimination constitutes an attack on the equality and essential dignity
of all human beings and has been the object of unanimous condemnation by the international
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community, as well as by an express prohibition in Article 1.1 of the American Convention.
362.
In this respect, the IACHR recalls that both the UN's International Covenant on Civil and
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Political Rights (hereinafter ICCPR),
as well as the Inter-American Democratic Charter,
and the
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American Declaration of the Rights and Duties of Man, contain specific provisions regarding racial and
ethnic discrimination; the International Convention on the Elimination of All Forms of Racial Discrimination
…continuation
Discrimination,
November
11,
1989,
para.
http://www.unhchr.ch/tbs/doc.nsf/0/3888b0541f8501c9c12563ed004b8d0e?Opendocument.
1.
At:
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I/A Court H.R., Advisory Opinion OC-4/84 of January 19, 1984: Proposed Amendments to the Naturalization Provisions
of the Constitution of Costa Rica. Series A No. 4, para. 55.
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Cf. I/A Court H.R. Legal Status and Rights of Undocumented Migrants, Advisory Opinion OC 18/03, para. 101. Cf. I/A
Court H.R., Case of Yatama v. Nicaragua. Judgment of June 23, 2005. Series C No. 127, paras. 184-185.
381
I/A Court H.R., Case of Yatama v. Nicaragua. Judgment of June 23, 2005. Series C No. 127, para. 184.
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See, inter alia, Annex 101. UN Declaration on the Elimination of All Forms of Racial Discrimination of November 20,
1963, [Resolution 1904 (XVIII) of the General Assembly] which solemnly affirms the necessity of speedily eliminating racial
discrimination throughout the world, in all its forms and manifestations, and of securing understanding of and respect for the dignity
of the human person. At: http://www.un-documents.net/a18r1904.htm.
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The ICCPR establishes in its Article 2.1 the obligation of each State party to respect and ensure to all individuals within
its territory and subject to its jurisdiction the rights recognized in the Covenant, without any distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In the same respect,
para. 5 of General Comment No.17 (of April 7, 1989) of the UN Human Rights Committee, relating to Article 24 of the International
Covenant on Civil and Political Rights, which recognizes the rights of the child establishes as follows: "the Committee notes that,
whereas non-discrimination in the enjoyment of the rights provided for in the Covenant also stems, in the case of children, from
article 2 and their equality before the law from article 26, the non-discrimination clause contained in article 24 relates specifically to
the measures of protection referred to in that provision. Reports by States parties should indicate how legislation and practice
ensure that measures of protection are aimed at removing all discrimination in every field, including inheritance, particularly as
between children who are nationals and children who are aliens or as between legitimate children and children born out of wedlock."
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The Preamble to the Inter-American Democratic Charter stresses that the American Declaration of the Rights and
Duties of Man and the American Convention on Human Rights contain the values and principles of liberty, equality, and social
justice that are intrinsic to democracy. For its part, Article 9 of the Charter establishes that: "[t]he elimination of all forms of
discrimination, especially gender, ethnic and race discrimination, as well as diverse forms of intolerance, the promotion and
protection of human rights of indigenous peoples and migrants, and respect for ethnic, cultural and religious diversity in the
Americas contribute to strengthening democracy and citizen participation."
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The American Declaration of the Rights and Duties of Man stresses in its preamble that "[a]ll men are born free and
equal, in dignity and in rights", and it Article II establishes that "all persons are equal before the law and have the rights and duties
established in this declaration as to race, sex, language, creed or any other factor."