INTRODUCTION

Article 1 of the Convention sets forth that States must respect and ensure the full and free exercise of human rights without discrimination. The provision reflects an essential principle of human rights law: human rights are universal so all human beings are entitled to them. As a consequence there can be no discrimination in respect of any human being on any grounds regarding these rights. The right to equality before the law enshrined in Article 24 of the Convention further supplements this principle. The rights set forth in the Convention are formulated in terms that reflect this basic tenant, as they refer to “every person,” “everyone,” “no one” and “anyone.” The equality that we, human beings, are entitled to is in dignity and rights. In the inter-American system, dignity underlies all human rights. One could say that the human rights contained in the American Convention stand against different forms in which dignity may be transgressed. Those bound to respect and ensure human rights are the States and it is to them that the prohibition on discrimination is directed. The principle of non-discrimination has been found by the Court to be a jus cogens norm.

Much has been written on the principle of equality and non-discrimination and by now there is widespread agreement that when one speaks of equality it is referring both to formal equality and material or substantive equality. Equality should respond to the reality that society is not composed of homogenous persons but by people with a variety of particularities: some more talented than others; some richer than others; we also have different sexes and sexual orientations, different backgrounds and different religions or cultural affiliations. Likewise, power and disadvantages are unevenly distributed in society. The purpose of human rights is to respect and protect individuals in their own individualities as well as redress exclusion and subordination. Luigi Ferrajoli sums this position up very eloquently; equality is “the equal right of everybody to the affirmation and protection of their own identity in virtue of the equal value associated to the differences that make of each person an individual different from all the others and of an individual a person as all the others.”