way in which the principal interested parties can be part of the decision-making that will
have an impact on them.92
39.
In this regard, it is important to underline that the judgment pays special attention to
women who have been victims of discrimination. Thus, the Court ordered guarantees of nonrepetition aimed at ensuring that pregnant women living with HIV have a series of minimum
conditions that allow them to confront the different forms of discrimination that collectively
affect them.
40.
The Court opted to require the State to take steps in the area of health with an
intersectional approach as a result of the discrimination declared in the judgment, taking
into account the urgency of the needs of pregnant women living with HIV in Guatemala. This
signifies a step forward in the development of the Court’s case law, because the InterAmerican Court recognized the relevance of adopting different measures for the treatment of
intersectional discrimination for all the women in Guatemala. In other words, the Court
indicated that the adoption of measures with a unitary approach may not be sufficient to
alleviate these forms of discrimination, because it perpetuates the inequalities that coalesce
in a single social sector.
41.
Without doubt, the reparations ordered in Cuscul Pivaral, as regards measures of
rehabilitation and guarantees of non-repetition, have the dual purpose of redressing the
omissions that led to the violations of the rights to health, life and personal integrity of the
victims, and serving as a way of urging the State to comply with its obligation of progressive
protection of the right to health of people living with HIV in Guatemala. This dual dimension
has been a constant throughout the Court’s case law and, doubtless, will play a central role
in those cases in which – as this one – the actions aimed at making systemic changes in the
States are essential for the effective protection of an ESCER in a specific context.
42.
In this regard, it is important to reflect on how the judgment, by ordering guarantees
of non-repetition, took into consideration the Goals and targets established by the United
Nations General Assembly in the 2030 Agenda for Sustainable Development. 93 One of these
Goals is that the States ensure healthy lives and promote well-being for all at all ages,
taking into consideration the vulnerability of people living with HIV. 94 The States undertook
to take the necessary steps to end, by 2030, epidemics such as AIDS and other
communicable diseases such as HIV, 95 in the same sense in which the judgment ordered the
On this issue, General Comment No. 14 of the CESCR has specified that: “54. The formulation and
implementation of national health strategies and plans of action should respect, inter alia, the principles of nondiscrimination and people’s participation. In particular, the right of individuals and groups to participate in decisionmaking processes, which may affect their development, must be an integral component of any policy, programme
or strategy developed to discharge governmental obligations under article 12. Promoting health must involve
effective community action in setting priorities, making decisions, planning, implementing and evaluating strategies
to achieve better health. Effective provision of health services can only be assured if people’s participation is
secured by States.” CESCR, General Comment No. 14, The Right to the Highest Attainable Standard of Health (Art.
12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, August 11, 2000, para.
54. Similarly, the former Special Rapporteur on extreme poverty and human rights, Magdalena Sepúlveda
Carmona, in the right to participation of people living in poverty. See: Report of the Special Rapporteur on extreme
poverty and human rights, Magdalena Sepúlveda Carmona, A/HRC/23/36, March 11, 2013, paras. 21, 22 and 23.
92
Cf. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs.
Judgment of August 23, 2018. Series C No. 359, para. 224.
93
UN, General Assembly Resolution “Transforming our world: the 2030 Agenda for Sustainable
Development.” A/70/L.1 adopted on September 25, 2015, paras. 23, 55 and 66, Goal 3, targets 3.3 and 3.8,
Available at https://undocs.org/en/A/RES/70/1
94
Cf. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs.
Judgment of August 23, 2018. Series C No. 359, para. 109.
95
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