difficult decisions to be taken at the political level in fixing the health budget, and at the
functional level in deciding upon the priorities to be met.” 30 The courts should not interfere in the
decisions of those organs that are better equipped to take them, unless such decisions violate the
rights recognized in domestic law or the American Convention. It should also be noted that this is
consistent with the judgment when it asserts that “[t]he State’s compliance with its obligation to
respect and ensure this right should include special care for vulnerable and marginalized groups,
and should be provided progressively in accordance with available resources and applicable
domestic law.”31
17.
All these issues should be adequately taken into account by this Court when ordering
reparations, which need to achieve a balance between the objective pursued – that is, full redress
for the violations suffered by the victims – and the need to accord the State the necessary margin
of flexibility and action when rights of a social benefit nature, such as the right to health, are
involved. Accordingly, in a region where resources are limited and, moreover, where there are
significant disparities within the region as regards available resources, the role of a regional
human rights court such as the Inter-American Court cannot be to order inflexible measures. This
is because, this could jeopardize not only the possibility of complying with the measures ordered,
but also have a negative effect on the allocation of resources to other rights that it is equally or
more urgent to satisfy.
18.
Based on the above, I consider that the measure ordered by the Court, if it is interpreted
in the sense of establishing an obligation to guarantee the provision of antiretroviral drugs and
the other medication prescribed to those living with HIV as an obligation of results, and
irrespective of any consideration concerning the reasonableness of the allocation of resources, is
contrary to the social benefit nature of the right to health, and to the role entrusted to this Court
by the American Convention.
Humberto Antonio Sierra Porto
Judge
Pablo Saavedra Alessandri
Secretary
Cf. Constitutional Court of South Africa, Thiagraj Soobramoney v. Minister of Health (Kwaxulu-Natal). Judgment
of November 27, 1997, para. 29.
30
Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs. Judgment of
August 23, 2018. Series C No. 359, para. 107.
31
7
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