47
principle cannot be reconciled with the notion that a given group has the right to privileged treatment
because of its perceived superiority. It is equally irreconcilable with that notion to characterize a group as
inferior and treat it with hostility or otherwise subject it to discrimination in the enjoyment of rights which
are accorded to others not so classified. It is impermissible to subject human beings to differences in
177
treatment that are inconsistent with their unique and congenerous character.”
162. The Inter-American Court has also explained the relationship between the notion of
equality before the law and non-discrimination where it wrote that “[t]he element of equality is difficult to
separate from non-discrimination. Indeed, when referring to equality before the law, the [international]
178
instruments (…) indicate that this principle must be guaranteed with no discrimination.”
The Court
explained the obligations that the principle of equality and nondiscrimination impose upon states, where
it wrote that:
“States have the obligation to combat discriminatory practices and not to introduce discriminatory
179
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
180
specific group of persons because of their race, gender, color or other reasons.
163. The inter-American system does not prohibit every distinction in treatment in the
enjoyment of fundamental rights and freedoms; nevertheless, to be permissible, any such distinction
must have an objective and reasonable justification, must serve a legitimate purpose, must respect the
prevailing principles in democratic societies, and must be established by reasonable means and
181
proportional to the end sought.
164. Interpreting the American Declaration, the Commission has written that “[t]he notion of equality
before the law set forth in the Declaration relates to the application of substantive rights and to the protection to be
given to them in the case of acts by the State or others. Further, Article II, while not prohibiting all distinctions in
treatment in the enjoyment of protected rights and freedoms, requires at base that any permissible distinctions be
based upon objective and reasonable justification, that they further a legitimate objective, regard being had to the
principles which normally prevail in democratic societies, and that the means are reasonable and proportionate to
182
the end sought.”
165.
In this same line of reasoning, the Inter-American Court has written the following:
Precisely because equality and nondiscrimination are inherent in the idea of the oneness in dignity
and worth of all human beings, it follows that not all differences in legal treatment are discriminatory
as such, for not all differences in treatment are in themselves offensive to human dignity. The
European Court of Human Rights wrote that “(…) a difference in treatment is only discriminatory
177
/A Court H.R., Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica. Advisory
Opinion OC-4/84 of January 19, 1984. Series A No. 4, paragraph 55.
178
I/A Court H.R., Juridical Condition and Rights of the Undocumented Migrants.
September 17, 2003, Series A. No. 18, paragraph 83.
Advisory Opinion OC-18/03 of
179
I/A Court H.R., Juridical Condition and Rights of the Undocumented Migrants.
September 17, 2003, Series A. No. 18, paragraph 88.
Advisory Opinion OC-18/03 of
180
I/A Court H.R., Juridical Condition and Rights of the Undocumented Migrants.
September 17, 2003, Series A. No. 18, paragraph 103.
Advisory Opinion OC-18/03 of
181
In the words of the IACHR: “While the doctrine of the inter-American human rights system does not prohibit all
distinctions in treatment in the enjoyment of protected rights and freedoms, any permissible distinctions must be based upon
objective and reasonable justification, must further a legitimate objective, regard being had to the principles which normally prevail in
democratic societies, and the means must be reasonable and proportionate to the end sought.” IACHR, Report on Terrorism and
Human Rights, OEA/SER.L/V/II.116, Doc. 5 rev. 1 corr., October 22, 2002, Executive Summary, paragraph 15.
182
IACHR, Case 9903, Report No. 51/01, Ferrer-Mazorra et al. (United States). Annual Report of the IACHR 2000,
paragraph 238.