One is the national plane, where by a democratic process, the citizenry decides
to give expression to the ESCER in its respective juridical order, incorporating
also the international law on this matter, as occurs in the vast majority of the
Member States of the inter-American system of human rights. In this context,
it is the national courts that -within the scope of their competences- exercise
their authority with respect to the interpretation and the justiciability of the
ESCER, in accordance with their constitutions and laws.
17.
Another plane, distinct -although complementary- is the international. As an
international court, the role of the Inter-American Court on this plane is to
decide whether a State, whose responsibility has been claimed, has violated
one or more of the rights established in the Convention. In light of the
normative design of and in accordance with Article 26, the Court is authorized
to declare the State’s international responsibility if it has not complied with the
obligations of progressive development and non-regression, but not of the
ESCER considered individually.
18.
This affirmation is in line with what was expressed in previous opinions, 12 since
the proper doctrine that the Court should follow is precisely to consider the
economic, social, cultural and environmental dimensions of the rights
recognized in the conventional norms and to exercise its adjudicative
jurisdiction by means of connectivity. With respect to the right to health, that
was the manner that the Court employed in fourteen cases prior to the
judgment in Poblete Vilches v. Chile (2018), the first case in which the Court
declared the autonomous violation of the right to health on the basis of Article
26 of the Convention. The adjudication of the responsibility through
connectivity was the path followed in cases such as Villagrán Morales et al.
(Street Children) v. Guatemala (2004), “Juvenile Reeducation Institute” v.
Paraguay (2004), Yakye Axa Community v. Paraguay (2005), Ximenes Lopes
v. Brazil (2006), Artavia Murillo et al. v. Costa Rica (2012) and I.V. v. Bolivia
(2016. Needless to say, the declaration of responsibility on the basis of
connectivity in no way empowers the Court to declare the violation of rights not
recognized in the text of the Convention. That procedure simply allows
establishing the necessary relationship between ESCER and civil and political
rights recognized in the Convention.
19.
Finally, the judgment proposes that it is possible to distinguish two dimensions
of the right to health. First, a general obligation to protect health related to the
obligation to ensure quality medical care 13 and, second, an obligation related
to the individual right to health. 14 In line with the previous paragraph, it is
possible and desirable that the right to health in its individual aspect be
analyzed in connection with the rights to life or to personal integrity (linking
Articles 4 or 5 with Article 26 of the Convention) and their general and
progressive aspects in the light of Article 26, read in conjunction with Article
1(1) of the Convention. This would allow the Court to determine when deficient
sanitary care has produced a harm to the life or to the personal integrity of an
individual (as precisely happened in this case) and when the benefit offered by
the State or, in other terms, the implemented public health policy does not
attain the level of its commitment to progressivity and to non-regression in the
terms of Article 26.
20.
In fact, it was thought necessary to make a statement in the judgment on the
State’s obligations “in providing health services during pregnancy, childbirth
and post-partum and its relationship to the guarantee of the rights to life and
12
13
14
See para. 3 of this opinion.
Cf. Para. 61.
Cf. Para. 60.
4