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.
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.
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.
The Obligation to Respect and Ensure, Non-Discrimination and the
Right to Judicial Protection
As with all international commitments, states are bound to
perform their international human rights obligations in good faith.
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.
As discussed in previous sections of this report addressing the right to
personal liberty and security
and the right to due process and to a fair trial,
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 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
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.
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.
24. All persons are equal before the law. Consequently, they are
entitled, without discrimination, to equal protection of the law.
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,
but at the same time that the notion of equality common to these
[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. 
In the same spirit, the UN Human Rights Committee has defined the
term “discrimination” under the ICCPR as implying
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.
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.
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
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.
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:
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.
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
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.
For the purposes of this Convention, "person" means
every human being.
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.
3. Every person has the right to recognition as a person before the law.
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.
The States Parties undertake:
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;
to develop the possibilities of judicial remedy; and
to ensure that the competent authorities shall enforce such
remedies when granted.
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,
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
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.
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.
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.
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.
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.
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.
 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.
Philip B. Heymann, Civil Liberties and Human Rights in the Aftermath
of September 11, 2002, Harv.
J.L. & Pub. Pol'y 441, 444.
Vienna Convention on the Law of Treaties, supra
note 109, Article 26.
Rodríguez Case, supra
note 249, para. 167.
Part III(B), para. 140.
Part III(D), para.
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
supra note 702, para. 135; Constitutional Court Case, supra
note 545, para. 90, Bámaca Velásquez Case, supra
note 73, para. 191.
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.
Id. See also
Ferrer-Mazorra et al.
Case, supra note 114,
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.
Advisory Opinion OC-4/84, supra note 801, para. 56. See
also Ferrer-Mazorra et
al. Case, supra note
114, para. 238.
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.,
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.
Velásquez Rodríguez Case, supra
note 249, para. 167.
Id. See also Advisory Opinion OC-11/90, supra
note 545, para. 23.
Velásquez Rodríguez Case, supra
note 249, paras. 172-174.
I/A Court H.R., Velásquez Rodríguez Case, Judgment on Preliminary
Objections, June 26, 1987, Ser. C Nº 1, para. 90.
See, e.g., Desmond McKenzie Case, supra
note 272, paras. 311-314.
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
Advisory Opinion OC-9/87, supra
note 342, para. 25. See also
American Convention on Human Rights, supra
note 61, Article 27(2).