Inter-American Court Enforces Positive Duty of Progressive Realization in Health Case on Persons Living with HIV

Cuscul Pivaral and Others vs. Guatemala

In a case concerning 49 people diagnosed with HIV between 1992 and 2003, the Court found Guatemala had violated the rights to health, life, personal integrity, judicial process, and non-discrimination of the victims, and the right to personal integrity of several family members. The Court noted that Guatemala is the Central American country with the highest number of people living with HIV, approximately 52,000 people in 2018. The Guatemalan government attempted to address this crisis through legislation and public policy, including the availability of anti-retroviral therapy starting in 1999, but its response was inadequate.

The Court reaffirmed that the right to health is an autonomous right derived from Article 26 of the American Convention. To further the right to health, a state must provide permanent and quality medical treatment, with a holistic approach that includes diagnostic services, preventative care, medical treatment, and sufficient legal regulation to support the right. States must implement this and other economic, social, and cultural rights derived from Article 26 in a way that ensures their progressive realization, which entails certain immediate obligations as well as duties to adopt measures to advance the realization of these rights.

The Court found Guatemala had violated several duties in connection with the right to health. First, the Court held that Guatemala had violated its duty to provide available, accessible, and quality healthcare to the victims, since 48 of them had no received treatment prior to 2004, and one had only received irregular care and antiretrovirals. With respect to post-2004, the Court analyzed the situation of each victim, finding numerous violations due to irregular, non-existent, or inadequate access to healthcare; reasons for lack of access were individualized, such as the Court’s examination of how five impoverished petitioners who lived far away from a place of care effectively lacked access. The Court also found violations of the state duty of non-discrimination, noting that HIV+ status was one of the “other social conditions” covered by the American Convention on Human Rights’ equality guarantee, and observing that women, particularly pregnant women, had suffered specific intersectional harms. Finally, regarding the duty of progressivity and the right to health, the Court found that the state had failed to meet this obligation with respect to the period prior to 2004 due to its “inaction” concerning persons living with HIV during that time.

In this case, the Court also outlined in detail how the progressive realization principle applies to all economic, social, and cultural rights that derive from Article 26. Even accounting for a state’s resources, the duty of progressivity requires steps be undertaken, as Guatemala’s inaction in this case contravened its duty to progressively realize the right to health. The Court’s decision is also remarkable for its intersectional analyses concerning HIV+ status, gender, socioeconomic condition, and other factors.

For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.

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