e.         Non-discrimination


333.      Clearly all of the foregoing standards must be observed without discrimination on the basis of "race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition," as stated in the Declaration of Principles on Freedom of Expression.[794]  This report has also addressed, in the section on privacy, the problems with different types of surveillance of individuals even in cases in which there is no reasonable suspicion that they are linked to terrorist activity.  A lengthy discussion of such activity is not necessary here, but it should be stated that these types of activities also produce effects on the full enjoyment of the right to freedom of expression.


Unjustified investigations of political expression and dissent can have a debilitating effect upon our political system. When people see that this can happen, they become wary of associating with groups that disagree with the government and more wary of what they say and write. The impact is to undermine the effectiveness of popular self-government. If people are inhibited in expressing their views, a nation's government becomes increasingly divorced from the will of its citizens.[795]  

F.         The Obligation to Respect and Ensure, Non-Discrimination and the Right to Judicial Protection


1.         International Human Rights Law


334.      As with all international commitments, states are bound to perform their international human rights obligations in good faith.[796] This includes conducting themselves so as to respect and to ensure to all persons subject to their jurisdiction the free and full exercise of human rights without discrimination of any kind.[797] As discussed in previous sections of this report addressing the right to personal liberty and security[798] and the right to due process and to a fair trial,[799] the availability of simple and prompt access to the courts is essential to ensuring respect for rights under domestic and international law. According to the Inter-American Court of Human Rights,


the right of every person to simple and rapid remedy or to any other effective remedy before the competent judges or courts, is one of the fundamental pillars not only of the American Convention, but of the very rule of law in a democratic society in the terms of the Convention.”[800]


335.      The principle of non-discrimination is a particularly significant protection that permeates the guarantee of all other rights and freedoms under domestic and international law and is prescribed in Article II of the American Declaration and Articles 1(1) and 24 of the American Convention:


American Declaration


Article II. All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.  

American Convention


Article 1.1. The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.


Article 24. All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.


336.      The Inter-American Court has stated in respect of the right to non-discrimination under the American Convention that Articles 24 and 1(1) are conceptually distinct,[801] but at the same time that the notion of equality common to these provisions


[s]prings directly from the oneness of the human family and is linked to the essential dignity of the individual. That 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 that are inconsistent with their unique and congenerous character. [802]


337.      In the same spirit, the UN Human Rights Committee has defined the term “discrimination” under the ICCPR as implying


any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.[803]


338.      While the doctrine of the inter-American human rights system, like that of other human rights regimes, does not prohibit all distinctions in treatment in the enjoyment of protected rights and freedoms, it 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 the end sought.[804] Distinctions based on grounds explicitly enumerated under pertinent articles of international human rights instruments are subject to a particularly strict level of scrutiny whereby states must provide an especially weighty interest and compelling justification for the distinction.[805] The principle of equality may also sometimes require member states to take affirmative action as a temporary measure in order to diminish or eliminate conditions which cause or help to perpetuate discrimination, including vulnerabilities, disadvantages or threats encountered by particular groups such as minorities and women.[806]  

339.      The obligation to respect and ensure human rights without discrimination and the right to judicial protection are also reflected in several provisions of the American Declaration and the American Convention, including the following:


American Declaration


Article XVIII. Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.


Article XXIV. Every person has the right to submit respectful petitions to any competent authority, for reasons of either general or private interest, and the right to obtain a prompt decision thereon


American Convention


Article 1.1 The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.


2.             For the purposes of this Convention, "person" means every human being.


Article 2. Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.


Article 3. Every person has the right to recognition as a person before the law.


Article 25.1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.


2.             The States Parties undertake:

a.             to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state;

b.             to develop the possibilities of judicial remedy; and

c.             to ensure that the competent authorities shall enforce such remedies when granted.


340.      According to these provisions, not only do states have the paramount responsibility to conduct themselves so as to ensure the free and full exercise of human rights,[807] but also an implicit duty to organize the governmental apparatus and all the structures through which public power is exercised so that they are capable of juridically ensuring the free and full enjoyment of those human rights.[808] In this sense, the availability of recourse to an effective and independent legal system to evaluate and enforce these obligations serves as a crucial fortification for the protection of human rights. These commitments also require that states use the means at their disposal to prevent human rights violations and to provide effective remedies for any violations that do occur, including undertaking thorough and effective investigations capable of identifying and punishing persons responsible for human rights infringements.[809] In this respect, the Inter-American Court has recognized an inherent interconnection between member states’ duties to respect, ensure, and give effect to human rights and to provide effective judicial protection for rights in accordance with the requirements of due process, as provided for in Article 1(1), 8 and 25 of the American Convention.[810]


341.      The availability of prompt and effective access to courts in turn necessitates recognition of the right to legal personality and to be recognized as a person before the law. Moreover, the requirement of judicial protection, when taken together with the right to due process and a fair trial, may necessitate the provision of legal assistance free of charge to pursue such remedies where the interests of justice so require. Factors pertinent to this determination include the resources available to the person concerned, the complexity of the issues involved, and the significance of the rights involved.[811] 


342.      The obligation to respect and ensure the full and free exercise of human rights must also be discharged without discrimination of any kind, as defined above.[812]


343.      It must also be emphasized that the requirement that states respect and ensure fundamental human rights through judicial protection without discrimination is non-derogable. As discussed in Part II(B) of this report, the declaration of a state of emergency, whatever its breadth, cannot entail the suppression or ineffectiveness of the judicial guarantees that states are required to establish for the protection of the rights not subject to derogation or suspension by the state of emergency.[813] Moreover, the right to juridical personality is counted among the rights from which no derogation is permitted under Article 27(2) of the American Convention, and the authority of states to suspend guarantees under Article 27(1) of the Convention is expressly limited so as to prohibit discrimination. This means that even if a state takes legitimate measures of derogation in accordance with Article 27(1) of the Convention, the measures can never discriminate on the grounds mentioned under that article. For these reasons, then, the right to judicial protection, and with it the obligation to respect and ensure fundamental human rights without discrimination, may not be suspended under any circumstances.





[794] Declaration of Principles on Freedom of Expression, supra note 641, Principle 2. For a discussion of the authoritative status of this Declaration, see supra  para. 265.

[795] Philip B. Heymann, Civil Liberties and Human Rights in the Aftermath of September 11, 2002, Harv. J.L. & Pub. Pol'y 441, 444.

[796] Vienna Convention on the Law of Treaties, supra note 109, Article 26.

[797] Velásquez Rodríguez Case, supra note 249, para. 167.

[798] See supra Part III(B), para. 140.

[799] See supra  Part III(D), para. 229.

[800] I/A Court H.R., Castillo Páez Case, Judgment of November 3, 1997, Ser. C No. 34, para. 82. See also I/A Court H.R., Mayagna (Sumo) Awas Tingni Community Case, August 31, 2001, Ser. C Nº 79, para. 112, citing Ivcher Bronstein Case, supra note 702, para. 135; Constitutional Court Case, supra note 545, para. 90, Bámaca Velásquez Case, supra note 73, para. 191.

[801] The Inter-American Court has stated that ”[a]lthough Articles 24 and 1(1) are conceptually not identical–the Court may perhaps have occasion at some future date to articulate the differences–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 their laws free from discriminatory regulations.” I/A Court H.R., Advisory Opinion OC-4/84, Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, January 19, 1984, Series A Nº 4, para. 54.

[802] Id. See also Ferrer-Mazorra et al. Case, supra note 114, para. 238.

[803] UN Human Rights Committee, General Comment Nº 18 (Non-Discrimination), Thirty-seventh session (1989), UN Doc. HRI/GEN/1/Rev.5 [hereinafter UNHRC General Comment Nº 18], para. 7.

[804] Advisory Opinion OC-4/84, supra note 801, para. 56. See also Ferrer-Mazorra et al. Case, supra note 114, para. 238.

[805] Numerous pertinent domestic and international courts have subjected governments to an enhanced burden to justify distinctions or classifications that are based upon such grounds as nationality, race, color or gender. See, e.g., Repetto, Inés, Supreme Court of Justice (Argentina), November 8, 1988, Judges Petracchi and Bacqué, para. 6 (finding that every distinction between nationals and foreigners, with respect to the enjoyment of rights recognized in the [Argentine] Constitution, “is affected by a presumption of unconstitutionality”, and therefore whoever sustains the legitimacy of the distinction “should prove the existence of an urgent State interest in order to justify [the distinction] and it is not sufficient merely to argue that the measure is ‘reasonable.’”); Palmore v. Sidoti, 4666 US 429 (1984) (holding that racial classifications “are subject to the most exacting scrutiny; to pass constitutional muster, they must be justified by a compelling governmental interest and must be necessary […] to the accomplishment of their legitimate purposes.”); Loving v. Virginia, 388 US 1, 87 (1967) (concluding that “at the very least” the Equal Protection Clause of the US Constitution “demands that racial classifications, especially suspect in criminal statutes, be subjected to the most rigorous scrutiny.”); Eur. Court H.R., Abdulaziz v. United Kingdom, Judgment of 28 May 1985, Ser. A Nº 94, para. 79 (stating that “the advancement of the equality of the sexes is today a major goal in the Member States of the Council of Europe. This means that very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the [European] Convention.)". Constitutional scholars have expressed similar views. See, e.g., Constitutional Law 142 (D. Farber, W. Esckridge & P. Frickey eds., 1998).]

[806] See e.g IACHR Report on the Status of Women in the Americas 1998, OEA/Ser.L/V/II.100 Doc. 17 (13 October 1998), Part I(A)(1); Annual Report of the IACHR 1999, OEA/Ser.L/V/II.106 doc. 6 rev. (April 13, 1999), Ch. VI “Considerations Regarding the Compatibility of Affirmative Action Measures Designed to Promote the Political Participation of Women with the Principles of Equality and Non-discrimination"; UNHRC General Comment Nº 18, supra note 803, para. 10.

[807] Velásquez Rodríguez Case, supra note 249, para. 167.

[808] Id. See also Advisory Opinion OC-11/90, supra note 545, para. 23.

[809] Velásquez Rodríguez Case, supra note 249, paras. 172-174.

[810] I/A Court H.R., Velásquez Rodríguez Case, Judgment on Preliminary Objections, June 26, 1987, Ser. C Nº 1, para. 90.

[811] See, e.g., Desmond McKenzie Case, supra note 272, paras. 311-314.

[812] American Declaration, supra note 63, Article II; American Convention on Human Rights, supra note 61, Article 1(1). See similarly International Convention on the Elimination of all Forms of Racial Discrimination, supra note 123.

[813] Advisory Opinion OC-9/87, supra note 342, para. 25. See also American Convention on Human Rights, supra note 61, Article 27(2).