Article 12(2)(c) ICESCR requires to take the necessary for ‘the prevention, treatment and control of epidemic, endemic, occupational and other diseases’. In General Comment 14, the Committee on Economic, Social and Cultural Rights defines this to mean the establishment of prevention and education programmes for behaviour-related health concerns such as sexually transmitted diseases, in particular HIV/AIDS, and those adversely affecting sexual and reproductive health, and the promotion of social determinants of good health, such as environmental safety, education, economic development and gender equity. The right to treatment includes the creation of a system of urgent medical care in cases of accidents, epidemics and similar health hazards, and the provision of disaster relief and humanitarian assistance in emergency situations. The control of diseases refers to states’ individual and joint efforts to, inter alia, make available relevant technologies, using and improving epidemiological surveillance and data collection on a disaggregated basis, the implementation or enhancement of immunization programmes and other strategies of infectious disease control.
In Miranda Cortez et al. v. El Salvador , a petition was filed against El Salvador before the Inter-American Commission on Human Rights, alleging violation of the right to life, health and full development of personality of persons carrying HIV. The petitioners claimed that El Salvador had failed its obligations by not providing them with the triple therapy medication needed to prevent them from dying and to improve their quality of life. Upon receiving the petition, the Inter-American Commission ordered the state to adopt urgent precautionary measures in respect of the alleged victims so that they could receive the medical treatment and antiretroviral medication needed to prevent them from dying.
Miranda Cortez et al. v. El Salvador
Inter-American Commission on Human Rights
Case 12.249, Report No. 29/01, Admissibility decision of 7 March 2001
Keywords: life – health – HIV
A. Competence of the Inter-American Commission–ratione personae, ratione materiae, ratione temporis, and ratione loci
34. In this case, the petitioners describe the acts that purportedly violate rights recognized and enshrined in the American Convention , which allegedly occurred in El Salvador when the obligation to respect and guarantee all the rights established in this instrument was in effect for that State. Consequently, the IACHR is competent ratione personae, ratione materiae, ratione temporis, and ratione loci’to examine the merits of the case.
35. With regard to the allegations of the petitioners regarding violation of Article 10 of the Protocol of San Salvador , the Inter-American Commission notes that Article 19(6) of this instrument states the following: Any instance in which the rights established in paragraph a) of Article 8 and in Article 13 are violated by action directly attributable to a State Party to this Protocol may give rise, through participation of the Inter-American Commission on Human Rights and, when applicable, of the Inter-American Court of Human Rights, to application of the system of individual petitions governed by Article 44 through 51 and 61 through 69 of the American Convention on Human Rights.
36. The IACHR is not competent ratione materiae to determine independently, violations of Article 10 of the Protocol of San Salvador through the system of individual petitions. However, the Inter-American Commission can consider this Protocol in the interpretation of other applicable provisions, in light of the provisions of Articles 26 and 29 of the American Convention.
B. Other admissibility requirements of the petition
a. Exhaustion of domestic remedies
37. The Inter-American Court of Human Rights has established the following with respect to the rule of prior exhaustion of domestic remedies:
States Parties have an obligation to provide effective judicial remedies to victims of human rights violations (Art. 25), remedies that must be substantiated in accordance with the rules of due process of law (Art. 8(1), all in keeping with the general obligation of such States to guarantee the free and full exercise of the rights recognized by the Convention to all persons subject to their jurisdiction (Art. 1).
38. The information furnished by the two parties in this case confirms that domestic remedies have not been exhausted in El Salvador. In fact, the petitioners filed a petition for amparo proceedings on April 28, 1999 with the Supreme Court of that country seeking the provision of anti-retroviral medication for seropositive patients. According to the information furnished by the petitioners (which was not disputed by the Salvadoran State), on June 15, 1999, the Constitutional Division of the Supreme Court decided to accept the petition. However, as of the date of this report, it had not handed down a final ruling on the merits of the claim.
39. The petitioners allege that as a result of the delay on the part of this Salvadoran legal entity, the exception provided for in Article 46(2)(c) of the American Convention is applicable. The Salvadoran State confines itself to arguing that the petitioners have had access to “adequate and effective domestic remedies,” without addressing the claims of the petitioners regarding the reasonableness of the time period for making a decision related to these remedies.
40. In the view of the IACHR, the petitioners had access to amparoproceedings, the remedy offered by the domestic legal system in this case, and they filed for these proceedings within the time period and in the manner required. However, to date, this remedy has not proven effective in responding to the claims of alleged violation of human rights. Almost two years have elapsed since the petition was filed and no final decision has been handed down by the Salvadoran Supreme Court. These matters will be analyzed during the procedural phase, together with the other allegations pertaining to the right to a fair trial and to effective judicial protection.
41. The Inter-American Commission decides to apply the exception provided for in the second part of Article 46(2)(b) of the American Convention to this case. The reasons that prevented the exhaustion of domestic remedies will be analyzed in the report to be adopted by the IACHR on the merits of the case, in order to determine whether the American Convention was violated.
b. Time period for submission
42. The IACHR has noted that in this case, after almost two years, a final ruling has not been handed down regarding the claim of the petitioners in El Salvador, and has determined that an unjustified delay has occurred in terms of domestic remedies. The application of Article 46(2)(c) of the American Convention obviates the need for analysis of the requirement set forth in Article 46(1)(b) of the aforementioned international instrument. In the view of the Inter-American Commission, based on the circumstances analyzed, the petition was submitted within a reasonable time period of the date on which the acts were reported in El Salvador.
c. Duplication of proceedings and res judicata
43. No objections were raised by the Salvadoran State to the exceptions provided for in Article 46(1)(d) and Article 47(d) of the American Convention, nor do they emerge from the information contained in the file related to this case.
d. Characterization of the allegations
44. The petition outlines the events which, in the view of the petitioners, violate several articles of the American Convention. The petitioners maintain that in this case, the IACHR should establish the international liability of the Salvadoran State for the delay in providing the proper medication and treatment to the patients and for the discrimination to which they were subjected. The petition further alleges violation of the right to judicial protection due to the failure on the part of the Supreme Court of El Salvador to reach a decision on the petition for amparoproceedings that they filed in that country to protect their rights. In their allegations, the petitioners also mention the inappropriate nature ofamparo proceedings in Salvadoran legislation for the protection of fundamental rights.
45. In the view of the Inter-American Commission, these allegations must be examined during the phase related to the merits of the case, in order to determine whether the facts reported violated Articles 2, 24, 25, and 26 of the American Convention. Consequently, the IACHR concludes that the requirements set forth in Article 47(b) and (c) of that international instrument have been met.
46. The Inter-American Commission considers the allegations made with respect to Articles 4 and 5 of the American Convention to be secondary in nature and to be contingent on the conclusion reached with respect to the merits of the allegations mentioned in the foregoing paragraph. Consideration of the admissibility of the allegations of the petitioners regarding respect of the right to life and humane treatment will therefore be deferred to the phase involving examination of the merits of this case.
47. The Inter-American Commission concludes that it is competent to examine the merits of this case and that the petition is admissible pursuant to Articles 46 and 47 of the American Convention. However, although it is not competent to determine violations of Article 10 of the Protocol of San Salvador, the IACHR will take into account the provisions related to the right to health in its analysis of the merits of the case, pursuant to the provisions of Articles 26 and 29 of the American Convention.
48. The IACHR is aware of the fact that the people of El Salvador are in the midst of a very difficult period brought on by a series of natural disasters, which has placed enormous demands on the health authorities and officials. In that context, the Inter-American Commission appreciates the efforts of the Salvadoran authorities to address the needs of persons infected with HIV/AIDS in that country. The supply of anti-retroviral medications has been steadily increasing in recent months, and the State has announced that it will continue to adopt the measures necessary in that regard.
49. Based on the arguments of fact and law outlined above, and without prejudice to the merits of the case,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS DECIDES TO:
1. Declare this case admissible with respect to alleged violation of the rights protected under Articles 2, 24, 25, 26 of the American Convention.
2. Inform the parties of this decision.
3. Continue analysis of the merits of the case, and
4. Publish this decision and include it in its Annual Report to the OAS General Assembly.
The merits of the case are still to be decided upon, but the Inter-American Commission has declared the petition admissible in respect of alleged violation of, inter alia, Article 26 of the Inter-American Convention on Human Rights, which it interpreted to include the right to health:
[A]lthough it is not competent to determine violations of Article 10 of the Protocol of San Salvador, the IACHR will take into account the provisions related to the right to health in its analysis of the merits of the case, pursuant to the provisions of Articles 26 and 29 of the American Convention. (para.47).
This interpretation is crucial as it empowers the Inter-American Commission to utilize economic, social and cultural rights articles in the Protocol of San Salvador to interpret and define the guarantees under Article 26 of the American Convention on Human Rights.
In the following case, Yanomami Community v. Brazil , a petition was filed with the Inter-American Commission on Human Rights against the Government of Brazil, on behalf of the Yanomami indigenous community. The case was presented because a road was being built across Yanomami territory and land mining licenses had been granted, which had led to a massive presence of foreigners in the said territory. This situation had had serious effects on the community’s well-being, including the alteration of their traditional organisation, emergence of female prostitution, epidemics and diseases, loss of land, forced displacement to lands unsuitable to their ways of life, and death of hundreds of Yanomamis.
Yanomami Community v. Brazil
Inter-American Commission on Human Rights
Case No. 7.615, Resolution No. 12/85, Decision of 5 March 1985
Keywords: culture – health - indigenous peoples – land - property
1. That the petitioners reported to the Commission the violation of the human rights of the Yanomami Indians by the Government of Brazil and by the National Foundation for Indians (FUNAI) the government agency of guardianship of the Indians established to administer the Government’s Indian policy and to implement Law 6,001 of December 19, 1973, called the “Statute of the Indians.”
2. That the reported violations have their origin in the construction of the trans-Amazonian highway BR-210 that goes through the territory where the Indians live; in the failure to establish the Yanomami Park for the protection of the cultural heritage of this Indian group; in the authorization to exploit the resources of the subsoil of the Indian territories; in permitting the massive penetration into the Indians’ territory of outsiders carrying various contagious diseases that have caused many victims within the Indian community and in not providing the essential medical care to the persons affected; and finally, in proceeding to displace the Indians from their ancestral lands, with all the negative consequences for their culture, traditions, and costumes.
3. That the Federal Constitution of the Republic stipulates in Article 4.IV that the patrimony of the Union includes “the lands occupied by forest-dwelling aborigenes,” and that, moreover, in Article 198 it states:
Lands inhabited by forest-dwelling aborigenes are inalienable under the terms that federal law may establish; they shall have permanent possesion of them, and their right to the exclusive usufruct of the natural resources and of all useful things therein existing is recognized.
4. That for legal purposes, Law 6,001 in its Article 3, established two groups of Indians:
a. the “Indians or Forest-dwelling Aborigenes,” that is to say, individuals of pre-Colombian origin whose cultural characteristics distinguish them form the national society; and;
b. the “Indian Community or Tribal Group,” which refers to groups that may live isolated from, or in any case not integrated into, the national community.
5. That, moreover, for the protection of the Indian territory, Law 6,001 (the Statute of the Indians) provides as follows:
On the initiative and under the supervision of the federal organ for assistance to the Indians, the Indian lands shall be administratively demarcated in accordance with the procedure established in a decree of the Executive Branch.
Recognition of the right of the Indians or tribal groups to have permanent possession of the lands they inhabit, under the terms of Article 198 of the Federal Constitution, shall not depend on the demarcation of those lands, and shall be ensured by the federal organ for assistance to the forest-dwelling aborigenes?
6. That Article 20 of Law 6,001 stipulates that the Union, by decree of the President of the Republic, may intervene in the areas occupied by Indians in exceptional cases, such as: a) for national security reasons; b) to carry out public works of interest to national development; and c) for the exploitation of resources of the subsoil that are of great interest for security and national development.
7. That international law in its present state, and as it is found clearly expressed in Article 27 of the International Covenant on Civil and Political Rights , recognizes the right of ethnic groups to special protection on their use of their own language, for the practice of their own religion, and, in general, for all those characteristics necessary for the preservation of their cultural identity.
8. That on the subject of indigenous populations the Commission, in an earlier recommendation it adopted, has pointed out:
That for historical reasons and because of moral and humanitarian principles, special protection for indigenous populations constitutes a sacred commitment of the states;
That on various occasions this Commission has had to take cognizance of cases in which it has been verified that abuses of power committed by government officials responsible for administrative work in connection with indigenous communities have caused very serious injury to the human rights of their members;
That these offenses against human rights are all the more reprehensible considering that they are committed by agents of the public power and have as their victims persons or groups for whom the effective exercise of the means of defense established by the laws of the respective states is particularly difficult;
It therefore recommended:
1. That all the states pay very special attention to the suitable training of the officials who are to perform their work in contact with the aforementioned populations, awakening in those officials an awareness rights of indigenous persons, who should not be the object of discrimination of any kind. [?].
9. That the Organization of American States has established, as an action of priority for the member states, the preservation and strengthening of the cultural heritage of these ethnic groups and the struggle against the discrimination that invalidates their members’ potential as human beings through the destruction of their cultural identity and individuality as indigenous peoples.
10. That from the careful examination made by the Commission of the facts, including the replies from the Government of Brazil, it finds the following:
a. That on account of the beginning, in 1973, of the construction of highway BR-210 (the Northern Circumferential Highway), the territory occupied for ages beyond memory by the Yanomami Indians was invaded by highway construction workers, geologists, mining prospectors, and farm workers desiring to settle in that territory;
b. That those invasions were carried out without prior and adequate protection for the safety and health of the Yanomami Indians, which resulted in a considerable number of deaths caused by epidemics of influenza, tuberculosis, measles, venereal diseases, and others;
c. That Indian inhabitants of various villages near the route of highway BR-210 (the Northern Circumferential Highway) abandoned their villages and were changed into beggars or prostitutes, without the Government of Brazil’s taking the necessary measures to prevent this; and
d. That after the discovery in 1976 of ores of tin and other metals in the region where the Yanomamis live, serious conflicts arose that led to acts of violence between prospectors and miners of those minerals, on one side, and the Indians, on the other. Such conflicts, which occurred especially in the areas of the Serra dos Surucucus, Couto de Magalhäes, and Furo de Santa Rosa, affected the lives, security, health, and cultural integrity of the Yanomamis.
11. That from the facts set forth above a liability of the Brazilian Government arises for having failed to take timely and effective measures to protect the human rights of the Yanomamis.
12. That the Government of Brazil, in the last few years, has taken various measures to overcome or alleviate the problems that have come up with the Yanomami Indians. In that direction, the Government of Brazil has reported, through a note from its Permanent Representative to the Organization of American States dated February 13, 1985, that it has taken the following measures to protect the security, health, and integrity of the Yanomamis:
a) The President of the FUNAI sent a proposal to the inter ministerial working group on September 12, 1984, requesting the definition and demarcation of the boundaries of the future Yanomami Park, which would have an area of 9,419,108 hectares;
b) The area proposed for that Park would cover the isolated areas of Ajarani, Catrimani, and Pacu, as well as four control posts, three surveillance posts, and a number of religious missions that would be able to provide medical and other services to the Indians;
c) The FUNAI, with the cooperation of the French association “Médecins du Monde” and the Committee for the Establishment of the Yanomami Park, is carrying out a health program among the Yanomamis, which especially includes mass vaccinations and control of epidemics;
d) The President of the FUNAI has prohibited the transits or stay of non-Indian individual or groups, especially mining prospectors, in the area proposed for the establishment of the Yanomami Park;
e) Up to now, no mining company has entered the Yanomami’s region; and
f) The plan for aid and assistance to the Yanomamis continues being carried out by Regional Delegation Nº 10 of the FUANI, which has its headquarters in Boa Vista, Roraima.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, RESOLVES:
1. To declare that there is sufficient background information and evidence to conclude that, by reason of the failure of the Government of Brazil to take timely and effective measures in behalf of the Yanomami Indians, a situation has been produced that has resulted in the violation, injury to them, of the following rights recognized in the American Declaration of the Rights and Duties of Man : the right to life, liberty, and personal security (Article I); the right to residence and movement (Article VIII); and the right to the preservation of health and to well-being (Article XI).
2. To recognize the important measures that the Government of Brazil has taken in the last few years, particularly since 1983, to protect the security, health, and integrity of the Yanomami Indians.
3. To recommend:
a) That the Government of Brazil continue to take preventive and curative health measures to protect the lives and health of Indians exposed to infectious or contagious diseases;
b) That the Government of Brazil, through the FUNAI and in conformity with its laws, proceed to set and demarcate the boundaries of the Yanomami Park, in the manner that the FUNAI proposed to the inter ministerial working group on September 12, 1984;
c) That the programs of education, medical protection, and social integration of the Yanomamis be carried out in consultation with the indigenous population affected and with the advisory service of competent scientific, medical, and anthropological personnel; and
d) That the Government of Brazil inform the Commission of the measures taken to implement these recommendations.
4. To include this resolution in its Annual Report to the General Assembly of the Organization of American States.
In contrast to the case of Miranda Cortez et al. v. El Salvador above, this case was solved on the basis of the rights consecrated in the American Declaration of the Rights and Duties of Man and not the American Convention on Human Rights.
The significance of this case is mainly due to the fact that the Commission has reaffirmed its doctrine on the right of indigenous peoples to receive special protection, referred to the indigenous peoples as an ethnic group, and pointed out their right to the preservation of their culture and their right to health.
At the national level, the Constitutional Court of Ecuador decided recently in Edgar Carpio Castro Jofre Mendoza et al. v. Ministry of Public Health and the Director of the HIV-AIDS National Programme on the right to health regarding people living with HIV/AIDS. The applicants were four persons living with HIV-AIDS. In May 2003, the public hospital where they were receiving treatment stopped providing them with one of the three required triple therapy (tri-therapy) drugs. In September 2003, the hospital further reduced the therapy to only one of the three drugs. As a result of this, the plaintiffs were forced to abandon the treatment altogether because if the drugs are not used in the correct combination, they may potentially do more harm than good. The Constitutional Court found that the interruption of the triple therapy greatly harmed the conditions of life of those living with HIV/AIDS and amounted to a violation of their right to life and right to health, as guaranteed by the Constitution and by international instruments that Ecuador has ratified and incorporated into its national legislation. The Constitutional Court concluded that the right to health of the applicants is directly enforceable in this case since they had previously had this right fulfilled by receiving a medically necessary treatment.