28
impairing the juridical rights protected by human rights. Notwithstanding, between
these two extremes of liability is the conduct described in the Resolution of the
International Law Commission,27 of a person or entity which, though not a state
body, is authorized by the State legislation to exercise powers entailing the authority
of the State. Such conduct, either by a natural or legal person, must be deemed to
be an act by the State, inasmuch as such person acted in such capacity.
87.
Hence, the acts performed by any entity, either public or private, which is
empowered to act in a State capacity, may be deemed to be acts for which the State
is directly liable, as it happens when services are rendered on behalf of the State.
88.
The Court has further established that from the general duties to respect and
guarantee the rights, special duties are derived which are to be determined
according to the specific needs of protection of the legal person, either due to his
personal condition or the specific situation he is in.28
89.
As to the persons who are under medical treatment, and since health is a
public interest the protection of which is a duty of the States, these must prevent
third parties from unduly interfering with the enjoyment of the rights to life and
personal integrity, which are particularly vulnerable when a person is undergoing
health treatment. The Court considers that the States must regulate and supervise
all activities related to the health care given to the individuals under the jurisdiction
thereof, as a special duty to protect life and personal integrity, regardless of the
public or private nature of the entity giving such health care.
90.
The failure to regulate and supervise such activities gives rise to international
liability, as the States are liable for the acts performed by both public and private
entities which give medical assistance, since under the American Convention
international liability comprises the acts performed by private entities acting in a
State capacity, as well as the acts committed by third parties when the State fails to
fulfill its duty to regulate and supervise them. Therefore, the duty of the States to
regulate these acts is not limited to public hospitals, but includes any and all health
care institutions.
*
91.
Under the State coverage, “[h]ealth is a right due to everyone and the
State´s duty, which is guaranteed through social and economic policies which have
the purpose of reducing health risks and guaranteeing the universal and egalitarian
access to health programs and services aimed at ensuring health promotion,
protection, and recovery,” as provided for by Article 196 of its Constitution.
Furthermore, in accordance with Article 197 thereof, it is “the responsibility of the
Power of the State, according to law, to provide for the regulation, supervision and
control of such health programs and services [, … and their] implementation must be
carried out either directly or through third parties, and by private natural or artificial
persons.”
Cf. Liability of the State for internationally unlawful acts. International Law Commission 53rd
session, 2001. UN Document A/56/10. Text introduced in the appendix to UN General Assembly
Resolution 56/83 of January 28, 2002.
27
Cf. Case of Baldeón-García, supra note 4, para. 81; Case of the Sawhoyamaxa Indigenous
Community, supra note 4, para. 154; and Case of Pueblo Bello Massacre, supra note 25, para. 111.
28