PARTIALLY DISSENTING OPINION OF JUDGE HUMBERTO ANTONIO SIERRA PORTO CASE OF CUSCUL PIVARAL ET AL. V. GUATEMALA JUDGMENT OF AUGUST 23, 2018 (Preliminary objection, merits, reparations and costs) 1. With my usual respect for the decisions of the Inter-American Court of Human Rights (hereinafter also “the Court” or “the Inter-American Court”), allow me to present this partially dissenting opinion. The opinion focuses on the Court’s analysis of the merits relating to the international responsibility of the State (hereinafter “the State,” “the State of Guatemala” or “Guatemala”) for the violation of the right to health and the principle of progressivity. Specifically, I will explain my discrepancy with the position adopted in operative paragraphs 1, 2 and 4 of the judgment in which it was determined that, in this case, those rights had been violated. In this regard, I note that my considerations supplement what I have already indicated in my partially dissenting opinions in the cases of Lagos del Campo v. Peru,1 Dismissed Employees of Petroperú et al. v. Peru,2 and San Miguel Sosa et al. v. Venezuela;3 as well as in my concurring opinions in the cases of Gonzales Lluy et al. v. Ecuador4 and Poblete Vilches et al. v. Chile.5 I will make my analysis in the following order: A. The fundamental, or social benefit, nature of the right to health in the American Convention on Human Rights (hereinafter “the American Convention” or “the Convention”), and B. Guarantees of non-repetition and public health policies in this case. I. THE FUNDAMENTAL, OR SOCIAL BENEFIT, NATURE OF THE RIGHT TO HEALTH IN THE AMERICAN CONVENTION 2. In the judgment in this case, the Court recalled that “the right to health refers to the right of every human being to enjoy the highest attainable standard of physical, mental and social wellbeing. This right encompasses prompt and appropriate health care provided in keeping with the principles of availability, accessibility, acceptability and quality.”6 In addition, the Court reiterated that it had recognized health as “a fundamental human right, essential for the adequate exercise of the other human rights, and that every individual has the right to enjoy the highest attainable standard of health that allows him or her to live a full life, understanding health not only as the absence of disease or illness, but also as a state of complete physical, mental and social wellbeing, derived from a lifestyle that allows the individual to achieve an overall balance.” In addition, the Court has specified that “the general obligation to protect health results in the State Cf. Case of Lagos del Campo v. Peru. Preliminary objections merits, reparations and costs. Judgment of August 31, 2017. Series C No. 340. Partially dissenting opinion of Judge Antonio Antonio Humberto Sierra Porto. 1 Cf. Case of the Dismissed Employees of Petroperú et al. v. Peru. Preliminary objections merits, reparations and costs. Judgment of November 23, 2017. Series C No. 344. Partially dissenting opinion of Judge Antonio Humberto Sierra Porto. 2 Cf. Case of San Miguel Sosa et al. v. Venezuela. Merits, reparations and costs. Judgment of February 8, 2018. Series C No. 348. Partially dissenting opinion of Judge Antonio Humberto Antonio Sierra Porto. 3 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. 4 5 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. 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. 6