the inter-American norms as a whole, as the Inter-American Court has been doing with
regard to civil and political rights.
101.
The essence of the right to health is its interdependence with the right to life and
the right to personal integrity. However, this does not justify denying autonomy to the
scope of that social right based on Article 26 of the American Convention in relation to the
obligations of respect and guarantee contained in Article 1(1) of the Pact, and this requires
interpreting the Pact of San José in light of the corpus juris on the right to health — as is
done in the Case of Suárez Peralta that prompts this separate opinion, even though it is
called personal integrity, limiting significantly by way of connectivity the real scope of the
right to health.
102. This vision of direct justiciability means that the methodology to attribute
international responsibility is circumscribed to the obligations regarding the right to health.
This signifies the need for more specific arguments on the reasonableness and
proportionality of a certain type of public policy measures. In view of the sensitive nature of
an assessment in this sense, the Inter-American Court’s decisions acquire greater
transparency and strength if the analysis is made directly in this way with regard to the
obligations surrounding the right to health, instead of with regard to the sphere more
closely related to the consequences of certain effects on personal integrity; that is,
indirectly or by connectivity with the civil rights. Similarly, the reparations that the Court
traditionally grants, and that in many cases have an impact on services related to the right
to health, such as measures of rehabilitation and satisfaction, may acquire a real causal
nexus between the right violated and the measure decided with all its implications. 184
Furthermore, when we speak of direct justiciability, this implies changing the methodology
based on which compliance with the obligations of respect and guarantee (Article 1(1) of
the Pact of San José) is assessed, which is evidently different with regard to the right to life
and the right to personal integrity, than it is with regard to the right to health and other
social, economic and cultural rights.
103. Social citizenship has made significant progress throughout the world and, evidently,
in the countries of the American continent. The “direct” justiciability of economic, social and
cultural rights constitutes not only a viable interpretative and argumentative option in light
of the actual inter-American corpus juris; the Inter-American Court, as the jurisdictional
organ of the inter-American system, has the obligation to move in this direction of social
justice, because it has competence with regard to all the provisions of the Pact of San José.
The effective guarantee of economic, social and cultural rights is an alternative that would
open up new possibilities in order to achieve transparency and the full realization of rights,
without artifices and directly, and thus acknowledge what the Inter-American Court has
been doing indirectly or in connection with the civil and political rights.
104. Ultimately, the objective is to recognize what the Inter-American Court and the
highest national jurisdictions are, in fact, doing, taking into account the corpus juris on
national, inter-American and universal social rights, which would also constitute a greater
and more effective protection of the fundamental social rights, with clearer obligations for
the States Parties. All this is in keeping with current signs of the full effectiveness of human
rights (in the national and international spheres), without any categorization or distinction
between them, which is particularly important in the Latin American region where,
regrettably, high rates of inequality persist, significant percentages of the population live in
184
Cf. Case of Ticona Estrada et al. v. Bolivia. Merits, reparations and costs. Judgment of November 27,
2008, Series C No. 191, para. 110.
35
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents