to personal integrity.” 15 Since the acts of the health staff constituted obstetric
violence against Ms. Brítez Arce and affected her personal integrity and,
ultimately, her life, it was perfectly possible to maintain the doctrine established
in I.V. v. Bolivia. In that case, the Court held that the medical acts -which
concluded with the forced sterilization of Ms. I.V.- had violated her right to
personal integrity. In the present case, the infringement of the rights to
personal integrity and to life of Ms. Brítez Arce were necessarily declared. For
its part, in view of the recognition of international responsibility by the State,
what must be analyzed is the provision of the State’s health care services in
the framework of Article 26 of the Convention, assessing whether Argentina
had complied with its obligations of progressivity and non-regression in the light
of that norm.
21.
In sum, this manner to proceed affects both the legal security that an
international court must ensure and the legitimacy of its judgments because
the reasoning provided simply ignores a norm that expressly limits the Court’s
jurisdiction to hear eventual infringements of the ESCER.
22.
The proper basis of a judicial decision is that its arguments allow the reader to
follow it and to understand the reasoning employed by a court to arrive at its
final decision. The determination to uphold the justiciability of the ESCER cannot
be built upon the basis of ignoring the norms of jurisdiction that the Convention
and its Optional Protocol establish. In this case, Argentina recognized its
responsibility, which included a violation of Article 26, because it understood
that the conduct of its agents did not attain the level of compliance of its
obligations under the Convention. That does not mean, however, that the Court
has jurisdiction to declare a violation of the right to health, as has been
explained.
23.
It must be remembered that Article 19 of the Protocol of San Salvador defines
two types of protective mechanisms. A general one that is applicable to all the
rights recognized therein, which consists in the investigations, observations and
recommendations that the different bodies of the inter-American system may
formulate in the reports that the States must present on the progressive
development of the ESCER, and the other intended solely for the right to
organize and join trade unions and the right to education and that enables their
eventual violations to be heard by the Court.
24.
Unfortunately, and as Medina and David have pointed out, the position of the
majority undermines the effectiveness not only of the Protocol of San Salvador
but also of Article 26, 16 a conventional provision that has a specific content that
the Court can and should develop in the cases that it is called upon to hear.
25.
A reading of Article 26 indicates that, other than what is contained on the civil
and political rights specified and developed in Chapter II of the Convention, it
establishes the obligation of the States Parties to adopt the “measures,” that
is, the actions, measures or public policies necessary to achieve “progressively”
the full effectiveness of the rights derived from the norms of the OAS Charter
”in accordance with their resources” (which is congruent with the progressive
nature of the obligation) and by “legislation or other appropriate means.” In
other words, each State Party has the obligation to formulate definitions and to
make marked progress in these matters, in accordance with their domestic
deliberative processes.
15
16
Cf. Para. 56.
MEDINA and DAVID, “The American Convention on Human Rights” (2022:28).
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