living with HIV. The Court therefore concluded that the State was responsible for the violation of
the right to personal integrity of these individuals. 14
5.
From reading these different parts of the judgment, it is possible to observe, as in
previous cases before the Court,15 that the analysis of the violation of the right to health is closely
linked to the violations of the rights to life and to personal integrity of the victims in this case. In
reality, it is quite difficult, if not impossible, to discern where the internationally wrongful act
begins and where it ends in relation to each of the rights that the Court has declared violated.
Thus, it can be claimed that the considerations on the State’s obligations in the area of health
that appear in the judgment make practical sense when they are reflected in the analysis of
Articles 4(1) and 5(1) of the Convention. In my opinion, as in the case of Poblete Vilches et al. v.
Chile, it was unnecessary to analyze Article 26 understood autonomously, even though it has
great relevance when it is considered in connection with the rights to life and to personal
integrity.16 Indeed, in this specific case, such an analysis involved an unnecessary duplication as
regards the declaration of the treaty-based rights that have been violated, as revealed by the fact
that the acts and omissions attributed to the State as violating the rights to health, life and
personal integrity are, in essence, the same.
6.
This underlines the prudence of the thesis that maintains that the right to health should be
analyzed, in its “individual” aspect, in relation to the connected fundamental rights that may be
affected; in this case the rights to personal integrity and to life, and in its “progressive” aspect, in
relation to the sufficiency of the health services provided by the State. Approaching the analysis
in this way would allow the Court, on the one hand, to identify when the State’s actions in the
area of health services can be linked to the violation of the personal integrity or the life of an
individual and, on the other hand, to evaluate when the State’s public policy in the area of the
ESCER is, per se, a violation of the obligations of progressivity established in Article 26 of the
Convention. In the former hypothesis, the analysis would be made based on Article 4 and/or 5 in
relation to Articles 26 and 1(1) of the Convention and, in the second, it would be made directly on
the basis of Article 26 in relation to Article 1(1) of this instrument. 17
7.
In addition, as I have already indicated in other cases, the use of connectivity as a
mechanism for the indirect protection of the ESCER can be an effective mechanism for the
protection and guarantee of the rights of the victims, while it has not been demonstrated that this
type of protection does not guarantee rights. 18 This line of argument does not prevent the Court
from making important progress concerning the requirements of the availability, accessibility,
acceptability and quality of the provision of health services, and the obligation to regulate,
monitor and supervise the provision of services in private health care centers. This does not entail
the creation of a new right, but rather gives content and scope to rights such as to life and to
integrity which are recognized in the Convention and, therefore, accepted by the States Parties. 19
Cf. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs. Judgment of
August 23, 2018. Series C No. 359, para. 163.
14
Cf. Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018. Series C No.
349, Concurring opinion of Judge Humberto Antonio Sierra Porto, para. 6.
15
Cf. Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018. Series C No.
349, Concurring opinion of Judge Humberto Antonio Sierra Porto para. 6.
16
Cf. Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018. Series C No.
349, Concurring opinion of Judge Humberto Antonio Sierra Porto, para. 12.
17
Cf. Case of Gonzales Lluy et al. v. Ecuador. Preliminary objections merits, reparations and costs. Judgment of
September 1, 2015. Series C No. 298. Concurring opinion of Judge Humberto Antonio Sierra Porto, para. 30.
18
Cf. Case of Gonzales Lluy et al. v. Ecuador. Preliminary objections merits, reparations and costs. Judgment of
September 1, 2015. Series C No. 298. Concurring opinion of Judge Humberto Antonio Sierra Porto, para. 31.
19
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