State to take a series of measures to ensure treatment for people living with HIV in
Guatemala.
43.
The Court knows – as does the General Assembly – that achievement of the target of
eradicating HIV/AIDS depends to a certain extent on the different levels of development of
the States, but one of the most important considerations that arises in this case is that the
progressive realization of the ESCER cannot mean the failure to adopt effective measures to
achieve the full realization of the right to health. This is especially urgent in cases in which
the personal integrity and the life of the individual is at risk. The measures of reparation
ordered, as well as the Goals of the 2030 Agenda, point precisely in that direction aimed at
the full realization of the right to health of people living with HIV.
IV. CONCLUSI0N
44.
The judgment represents a key development in the jurisprudential line that addresses
a crucial issue in our region: the need for States to comply with their obligations to respect
and ensure the economic, social, cultural and environmental rights. The case of Cuscul
Pivaral addresses the specific issue of the obligation to ensure the right to health of people
living with HIV, and also the content of the obligation of progressivity in ensuring this right.
45.
This case is important if we consider that, forty years after the entry into force of the
American Convention, it is the first time that the Court has addressed both dimensions of an
ESCER (immediate enforceability and progressivity) and established measures of reparation
in relation to both dimensions. This will be the path to follow in the future and, even though
it involves both normative and methodological challenges, the Court cannot stand on the
sidelines in the face of the serious problems of inequality, inequity, and social exclusion that
subsist in the region together with the lack of protection of the ESCER, especially for the
most vulnerable groups.
46.
Regarding the above, it should be recalled that the Economic Commission for Latin
American and the Caribbean (“ECLAC”) has remarked that, “in spite of the progress made
over the past decade, [Latin America and the Caribbean] is still the world’s most unequal
region in terms of the distribution of income.” 96 And that “equality of rights” is “the basic
axis of equality, covering the full realization for economic, social and cultural [and
environmental] rights as the regulatory and practical horizon for all persons (without
distinctions on the grounds of sex, race, ethnicity, age, religion, origin, socioeconomic
situation or any other condition) and the inclusion of all citizens in the dynamics of
development, which implies a genuine belonging to society and full exercise of citizenship.” 97
It cannot be overlooked that poverty and extreme poverty continue to be factors of special
concern in the region, “that affect children, adolescents and young people more than other
age groups” together with, especially, the increase in the “feminization of poverty in the
youth and adult population.”98
47.
The Court cannot ignore this regional inequality – and its consequences on the
protection of human rights – in its jurisprudence, or the regional challenges for achieving the
ECLAC, Social Panorama of Latin America 2016, United Nations (LC/PUB.2017/12-P), Santiago, 2017, p.
44. Available at: https://repositorio.cepal.org/bitstream/handle/11362/41599/4/S1700566_en.pdf
96
97
Ibidem, p. 45.
98
Cf. ECLAC, Social Panorama of Latin America 2017, United Nations (LC/PUB.2018/1-P), Santiago, 2018, p.
14.
17
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