(vii) The Progress Indicators in Respect of Rights Contemplated in the Protocol of
San Salvador. 60 o
(viii) General comment No. 14 of the United Nations Committee on Economic, Social
and Cultural Rights, on “The right to the highest attainable standard of health (Article
12)”;61 Article
(ix) General comment No. 9 of the United Nations Committee on Economic, Social
and Cultural Rights, on “The domestic application of the Covenant.” 62
(x) General comment No. 3 of the United Nations Committee on Economic, Social
and Cultural Rights, on “The nature of States parties' obligations (paragraph 1 of Article 2 of
the Covenant).” 63
30.
Similarly, when the Judgment examines the violation of the right to judicial
guarantees and to judicial protection established in Articles 8(1) and 25(1) of the American
Convention, in relation to the obligations of respect and guarantee of Article 1(1) of this
instrument, the Inter-American Court determined that there had been errors, delays and
omissions in the criminal investigation proceedings, and that therefore “the State authorities
did not act with due diligence or in keeping with the obligations to investigate and to ensure
effective judicial protection within a reasonable time, in order to guarantee to Melba Suárez
Peralta a reparation enabling her to have access to the medical treatment required by her
health problems” 64 (underlining added).
31.
I consider that, with all these precedents in the corpus juris with regard to protection
of the right to health — in the sphere of the inter-American and the universal system —
mentioned and used in the Judgment that prompts this separate opinion, even having
recourse to very relevant decisions of the United Nations Committee on Economic, Social
and Cultural Rights, as well as other recent international sources, such as the Social Charter
of the Americas, adopted in June 2012 by the OAS General Assembly, the Inter-American
Court could have approached this social rights Article autonomously, in relation to the
obligation of guarantee referred t in 1(1) of the Pact of San José.
32.
This is so, because, on the one hand, the interdependence and indivisibility of rights
and the absence of a hierarchy among them is expressly recognized in the Judgment and,
on the other hand, the OAS Charter and the American Declaration on the Rights and Duties
of Man are used, even deriving the right to health from that instrument in relation to the
60
Cf. Footnote 172 of the Judgment: Organization of American States, Progress Indicators in Respect of
Rights Contemplated in the Protocol of San Salvador, adopted by the General Assembly, Resolution 2713 (XLII0/12), forty-second regular session, Cochabamba, Bolivia, June 2012, paras. 66 and 67. In footnote 172 of the
Judgment, the Inter-American Court transcribes part of this document: “The Protocol refers to observance of the
right in the framework of a health system that, however basic it may be, should ensure access to primary health
care and the progressive development of a system that provides coverage to the country’s entire population. […]
as well as being culturally acceptable, health facilities, goods and services must also be scientifically and medically
appropriate and of good quality. This requires, inter alia, skilled medical personnel, scientifically approved and
unexpired drugs and hospital equipment, safe and potable water, and adequate sanitation.” In addition, the said
indicators include: “Existence of administrative instances to submit complaints in matters of non-compliance with
obligations related to the right to health. Competences of Ministries or of Superindences to receive complaints from
the health system users. Policies for training judges and lawyers on the right to health.”
61
Cf. footnotes 175, 182, 217, 220, 221 and 222 of the Judgment.
62
Cf. footnotes 175 and 179 of the Judgment.
63
Footnote 176 of the Judgment.
64
Para. 122 of the Judgment.
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