47.
It is clear that the Inter-American Court cannot declare the violation of the right to
health under the Protocol of San Salvador, because this can be observed from the literal
meaning of its Article 19(6). However, it is possible to understand the Protocol of San
Salvador as one of the interpretative references concerning the scope of the right to health
protected by Article 26 of the American Convention. In light of the human rights corpus
juris, the Additional Protocol throws light on the content that the obligations of respect and
guarantee should have in relation to this right. In other words, the Protocol of San Salvador
provides guidance on the application corresponding to Article 26 together with the
obligations established in Articles 1(1) and 2 of the Pact of San José.
48.
The possibility of using the Protocol of San Salvador in order to define the scope of
the protection of the right to health contained in Article 26 of the American Convention is
not unfamiliar to the case law of the Inter-American Court; neither is the use of other
international sources or the OAS Progress Indicators in Respect of Rights Contemplated in
that Protocol, in order to define different State obligations in this regard. Indeed, the InterAmerican Court performed this exercise in the Case of the “Children’s Rehabilitation
Institute” v. Paraguay, in which it expressly stated that, in order to establish the content
and scope of Article 19 of the Pact of San José, it would take into consideration the
Convention on the Rights of the Child and the Protocol of San Salvador, because these
international instruments formed part of a very comprehensive international corpus juris for
the protection of the child. 86
49.
In the same way, in the Case of the Yakye Axa Indigenous Community v. Paraguay,
when analyzing whether the State had created the conditions that increased the difficulties
of access to a decent life of the members of the Community and whether, in that context, it
had adopted the appropriate positive measures, the Court chose to interpret Article 4 of the
American Convention in light of the international corpus juris on the special protection
required by members of indigenous communities. Among other provisions, it mentioned
Article 26 of the Pact de San José, and Articles 10 (Right to Health), 11 (Right to a Healthy
Environment), 12 (Right to Food), 13 (Right to Education) and 14 (Right to the Benefits of
Culture) of the Protocol of San Salvador (on Economic, Social and Cultural Rights), and the
pertinent provisions of ILO Convention No. 169. The Court also noted the observations of
the United Nations Committee on Economic, Social and Cultural Rights in its General
Comment No. 14. 87
50.
The Case of the Xákmok Kásek Indigenous Community v. Paraguay is another
example of a matter in which the Inter-American Court made an even more thorough
analysis in order to determine that the assistance provided by the State with regard to the
access to and quality of water, food, and health and education services had been insufficient
to overcome the situation of special vulnerability of the Community. When determining this,
Peru. Preliminary objection, merits, reparations and costs. Judgment of September 22, 2009. Series C No. 202, the
Inter-American Court used the rulings of constitutional courts of the countries of the Americas to support its definition
of the concept of forced disappearance. Other examples are the Case of Atala Riffo and daughters, supra, and the
Case of the Kichwa Indigenous People of Sarayaku v. Ecuador. Merits and reparations. Judgment of June 27, 2012.
Series C No. 245.
86
Case of the “Children’s Rehabilitation Institute,” supra, para. 148. Similarly, the Case of the Yean and
Bosico Girls, supra, para. 185. In my opinion, implicit in the concept of the corpus juris is the interdependence and
indivisibility of the rights of which it is composed. Regarding the indicators, see Abramovich, Víctor and Pautassi,
Laura (comps.), La medición de derechos en las políticas sociales, Buenos Aires, Editores del Puerto, 2010.
87
Cf. Case of the Yakye Axa Indigenous Community, supra, para. 163; mutatis mutandi, Case of the
Sawhoyamaxa Indigenous Community, supra, para. 155, and Case of the Xákmok Kásek Indigenous Community,
supra, paras. 215 and 216.
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