Image courtesy of the Inter-American Court of Human Rights
The past couple of years have brought interesting developments regarding the adjudication of the right to health at an international level. Following years of debate within the legal community as to the possibility of direct adjudication of social, economic and cultural rights under the American Convention on Human Rights (“Convention”), in 2017 the Inter-American Court of Human Rights (“Court”) took a stand on the issue by declaring a violation of article 26 of the Convention—about the progressive development of this set of rights—in Lagos del Campo v. Peru. Until then, the right to health had always been analyzed by the Court in connection to other rights. Though groundbreaking in many senses, this ruling received criticism for not being sufficiently thorough in its arguments, including by renowned scholars and fellow judges of the Court Vio Grossi and Sierra Porto.
Last month the Court issued a new ruling that addresses many of these concerns: Cuscul Piraval et al v. Guatemala, a case about the right to health of people living with HIV. Once more, the Court declared a violation under article 26 of the Convention. It is one of the few rulings to do so, and probably the most in-depth to date. Indeed, there is no doubt that Cuscul Piraval et al took the precedent set in Lagos del Campo to another level.
For one thing, in Cuscul Piraval et al the Court declared for the first time the responsibility of a State for the violation of the progressivity principle, since Guatemala failed to comply with their obligation to progressively develop the right to health. In this ruling, among other things, the Court indicated that the progressivity principle requires the effective improvement of the conditions of enjoyment of the right to health, in a way that corrects social inequalities and facilitates the inclusion of marginalized groups. In this sense, States violate their conventional obligations of progressive realization by not having public policies or programs that de facto—and not only de jure—allow them to advance in the fulfillment of the obligation to achieve the full effectiveness of the right to health.
The comprehensiveness of these conventional obligations are reflected in the measures of reparation ordered to Guatemala. They include implementing mechanisms to supervise health services; improving the accessibility, availability and quality of health benefits for people living with HIV; ensuring the provision of antiretroviral and other medication prescribed to all affected persons; offering the population tests for HIV detection; implementing a training program for the health personnel; guaranteeing adequate medical treatment for pregnant women living with HIV; and carrying out a national awareness campaign. Such measures indicate the complexity of the adjudication of social, economic and cultural rights at an international level.
In a continent that is famous for its shortcomings in respect to this set of rights, Cuscul Piraval et al showcases the magnitude—and challenges—of an underexplored part of the Convention. However, it also sets useful parameters for the States on how to fulfill their international obligations regarding the progressive realization of social, economic and cultural rights. Just as important is the fact that it indicates a path forward to civil society, in the effort to ensure that eventual changes of government do not lead to the disruption of progress made in the protection of human rights.