Ruling for Access
Leading court cases in developing countries
on access to essential medicines
as part of the fulfilment of the right to health
Hans V. Hogerzeil
Melanie Samson
Jaume Vidal Casanova
World Health Organization
Department of Essential Drugs and Medicines Policy
Geneva
November 2004
Ruling for Access, version 9, 26 July 2004
Acknowledgements
Jaume Vidal Casanova made the first inventory of 13 cases and collected relevant information
and background references. Melanie Samson identified and analysed a further sevencases,
prepared the summaries of all cases, completed the references and started the final ?? analysis.
The study was conceived, planned and supervised by Hans V. Hogerzeil, who also wrote the
introduction, completed and wrote the final analysis, and technically edited the document.
Comments on the draft were received from Professor Sofia Gruskin, Simon Hogerzeil, Kath
Hurst and Gian Luca Burci. EXPLAIN ASTERISKS done The final text was language edited
and proofread by Kath Hurst.
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Ruling for Access, version 9, 26 July 2004
Contents
EXECUTIVE SUMMARY .................................................................................5
1. INTRODUCTION: ACCESS TO ESSENTIAL MEDICINES AS A HUMAN
RIGHT..............................................................................................................8
The Universal Declaration of Human Rights and the WHO Constitution ........................................8
The International Covenant on Economic, Social and Cultural Rights ............................................9
Essential medicines as part of the right to health ................................................................................9
Three levels of obligations .................................................................................................................10
International obligations.....................................................................................................................11
Core obligations under Article 12 ......................................................................................................11
Violations of the right to health..........................................................................................................11
Access to essential medicines as a human right: summary ...............................................................12
2. OBJECTIVES, METHODS ........................................................................13
Objectives of the study.......................................................................................................................13
Search methods, presentation of findings...........................................................................................13
3. RESULTS: THE CASES AND THE RULINGS..........................................14
General overview ..................................................................................................................................14
Parties, types of cases.........................................................................................................................14
Diseases for which treatment is sought ..............................................................................................14
Human rights treaties ratified.............................................................................................................16
Constitutional framework...................................................................................................................16
Human rights treaties quoted..............................................................................................................16
Other aspects quoted ..........................................................................................................................16
Argentina...............................................................................................................................................17
Constitutional framework...................................................................................................................17
Arg-1: Viceconte Mariela Cecilia vs State of Argentina (Health Department)..................................18
Arg-2: Asociación Benghalensis et al. vs Ministerio de Salud y Acción Social ................................18
Arg-3: Campodonico de Beviacqua, Ana Carina vs Ministerio de Salud y Acción Social................19
Bolivia ....................................................................................................................................................19
Constitutional framework...................................................................................................................19
Bol-1: N.N. vs la Corporación del Seguro Social Militar (COSSMIL)..............................................20
Colombia ...............................................................................................................................................21
Constitutional framework...................................................................................................................21
Col-1: Mr Alonso Muñoz Ceballos vs Instituto de Seguros Sociales (ISS) .......................................22
Col-2: Mr Diego Serna Gómez vs. Hospital Universitario del Valle .................................................23
Col-3: Mr Miguel Angel Ibarguen Rivas vs Instituto de Seguros Sociales (ISS) ..............................24
Col-4: Mr X vs. Instituto de Seguros Sociales (ISS)..........................................................................24
Col-5: Mr X vs. Secretaría de Salud Pública Municipal de Cali ........................................................24
Col-6: Mrs Diana María Pinilla Sandoval vs Salud Colpatria EPS....................................................25
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Costa Rica .............................................................................................................................................25
Constitutional framework...................................................................................................................25
Cos-1: Mrs Sidonia Vargas vs Hospital San Juan de Dios.................................................................26
Cos-2: Mr William García Álvarez vs Caja Costarricense de Seguro Social.....................................27
Cos-3: Ms Vera Salazar Navarro vs Caja Costarricense de Seguro Social ........................................27
Cos-4: Ombudsman for Mrs Ledi Orellana Martínez vs Caja Costarricense de Seguro Social (CCSS)
...........................................................................................................................................................28
El Salvador............................................................................................................................................28
Constitutional framework...................................................................................................................28
Sal-1: Mr Jorge Odir Miranda Cortez vs la Directora del Instituto Salvadoreño del Seguro Social ..29
South Africa ..........................................................................................................................................30
Constitutional framework...................................................................................................................30
Saf-1: Treatment Action Campaign, Dr Haron Sallojee and Children’s Rights Centre vs Republic of
South Africa Ministry of Health.........................................................................................................31
Venezuela ..............................................................................................................................................32
Constitutional framework...................................................................................................................32
Ven-1: Mr J.R.B., et al. vs Ministerio de la Defensa .........................................................................34
Ven-2: Mr N.A., Y.F et al. vs Ministerio de Sanidad y Asistencia Social .........................................34
Ven-3: Cruz del Valle Bermúdez et al. vs Ministerio de Salud y Acción Social ...............................35
Ven-4: Mrs Glenda López et al. vs Instituto Venezolano de Seguros Sociales..................................35
4. DISCUSSION.............................................................................................36
Important conclusions in the rulings ..................................................................................................36
Most rulings have led to better access to life-saving medicines.........................................................36
International treaties create state obligations and individual rights....................................................36
Individual cases can create group rights.............................................................................................36
Government policies can be challenged in court................................................................................36
The right to health is not restricted by limitations in social security coverage, including the national
list of essential medicines...................................................................................................................37
The State has special obligations towards the poor and disadvantaged .............................................37
Progressive realization of the right to health is not often used to restrict access................................38
Success factors ......................................................................................................................................38
Key provisions in the Constitution.....................................................................................................38
Human rights treaties invoked............................................................................................................39
The right to health and the right to life...............................................................................................40
Acquired rights; non-interruption of treatment ..................................................................................40
Non-discrimination ............................................................................................................................40
Involvement of public-interest NGOs ................................................................................................41
5. RECOMMENDATIONS .............................................................................43
To ECOSOC and the UN Special Rapporteur on the Right to Health ...............................................43
To WHO.............................................................................................................................................43
To national governments....................................................................................................................43
To national NGOs ..............................................................................................................................43
6. BIBLIOGRAPHY .......................................................................................44
General works ....................................................................................................................................44
Specific works....................................................................................................................................44
Articles ...............................................................................................................................................44
International organizations' documents ..............................................................................................45
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Executive summary
The World Health Organization's Constitution and the Universal Declaration of Human
Rights establish health as a human right. The International Covenant on Economic, Social and
Cultural Rights specifies that the right to health includes the right to emergency care and the
right to health facilities, goods and services. Authoritative comments by the Committee on
Economic, Social and Cultural Rights have specified that the right to health facilities, goods
and services includes the provision of essential medicines as defined by the World Health
Organization. States parties to the Covenant are under immediate obligation to guarantee that
the right to health will be exercised without discrimination and to take deliberate and concrete
steps towards its full realization, with emphasis on vulnerable and marginalized groups.
By the end of 2002, 142 countries had signed the Covenant, 83 countries had signed various
regional human rights treaties1 and over 100 had incorporated the right to health in their
national constitution. A country's ratification of an international treaty, such as the Covenant,
creates certain state obligations to its people. But are these obligations enforceable in
practice?
Objectives
This study focuses on only one aspect of promoting the right to health: its enforceability
within developing countries. Other very important measures to promote the right to health,
such as advocacy, legislation, programming and reporting, are not considered here.
The objective of the study was to identify, analyse and summarize court cases in developing
countries in which individuals or groups have initiated a case against the government or a
governmental institution, claiming access to essential medicines, fully or partly on the basis of
human rights treaties signed and/or ratified by their government, and have won their case with
(some) reference to the right to health. The study's ultimate goal was to identify success
factors in these cases in order to support the use of legal redress mechanisms in other
countries.
Results
Twenty cases from seven countries (Argentina, Boliva, Colombia, Costa Rica, El Salvador,
South Africa and Venezuela) were identified and are presented here. Seven out of 20 cases
(35%) were strongly supported by nongovernmental organizations. Eleven out of 20 (55%)
were filed against social security schemes, in 6 out of 20 (30%) the defendant was the
Ministry of Health, in two cases an individual hospital and in one the Ministry of Defence.
The majority of cases (13/20, 65%) refer to HIV/AIDS; one of these refers to the prevention
of mother-to-child transmission and all of the others to life-saving treatment with
antiretroviral medicines. Four cases concern life-saving treatments for leukaemia and renal
transplantation; the remaining three cases refer to skin disease, multiple sclerosis and
vaccination.
Important conclusions in the rulings
Although each case must be judged on its individual circumstances and merits, the following
conclusions can be drawn from the group of rulings as a whole:
• Most rulings have led to better access to life-saving medicines (17/20).
1
No regional treaties exist in Asia
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•
•
•
•
•
•
International treaties create state obligations and support individual rights at the national
level (8/20).
Individual cases can create group rights (7/20).
The right to health is not restricted by limitations in social security coverage, including
the national list of essential medicines (4/20).
Government policies can be challenged in court (2/20).
The state has special obligations towards the poor and disadvantaged (2/20).
Progressive realization of the right to health is rarely used to restrict access (1/20).
Success factors
Analysis of the 20 cases identified a number of success factors. These can be either
constitutional provisions present in the country, certain aspects of the case, or certain
principles being quoted either by the plaintiff or the court:
• Constitutional provisions: that international treaties rank higher than national laws (7/7);
on the right to health (6/7); or with defined state obligations with regard to health care
services and social welfare (3/7).
• Constitutional provision that human rights treaties enjoy constitutional rank even though
the right to health itself is not included in the constitution (1 case).
• Linking the right to health to the right to life, in the case of life-threatening disease (13
cases).
• Legal, financial and moral support by public-interest nongovernmental organizations (8
cases).
• Acquired rights and demanding non-interruption of treatment in the case of time-limited
social security rights (4 cases).
• Non-discrimination implying the right to equitable availability of medical care (3 cases).
• Non-discrimination on economic grounds implying special state obligations to the poor (2
cases).
Recommendations
To the UN Economic and Social Council (ECOSOC) and the UN Special Rapporteur on
the Right to Health
• Use constitutional provisions on the right to health, the right to life, the right to nondiscrimination, the legal standing of international human rights treaties in national law,
and state obligations with regard to health care services and social welfare as indicators
of government commitment and action towards the progressive fulfilment of the right to
health.
To the World Health Organization
• Make a detailed analysis of countries' constitutions to identify those with the provisions
mentioned above. These countries would be logical ones for specific litigation on access
to essential medicines.
• Continue an active search for further examples of successful litigation on access to
essential medicines. Use this information to support Member States in creating a
supportive environment for the progressive fulfilment of the right to health in line with
the international human rights treaties they are party to. the information can also support
the responsible use of legal redress mechanisms.
To national governments
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•
Ensure constitutional provisions and obligations under the international human rights
treaties mentioned above; and create the necessary legal instruments for their
implementation and enforcement.
To national nongovernmental organizations
• Promote awareness of constitutional provisions and the international human rights
obligations mentioned above.
• Prepare regular reports on the above for ECOSOC and the UN Special Rapporteur on the
Right to Health, and for the human rights treaty bodies when the government in question
is under review.
• Assist individuals and patient groups in targeted litigation cases on the right to essential
medicines as part of the fulfilment of the right to health; use the information in this
document to support the responsible use of legal redress mechanisms.
• Support implementation of judgements, and monitor and report on changes that occur on
the ground as a result of this type of litigation.
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1. Introduction: Access to essential
medicines as a human right
Summary
Health is a human right. The right to health includes the right to emergency care and the right
to health facilities, goods and services. The right to health facilities, goods and services
specifically includes the provision of essential medicines as defined by the World Health
Organization (WHO). States parties are under immediate obligation to guarantee that the right
to health will be exercised without discrimination and to take deliberate and concrete steps
towards its full realization, with emphasis on vulnerable and marginalized groups.
The Universal Declaration of Human Rights and the
WHO Constitution
The promotion of human rights is one of the principal purposes of the United Nations. In
1997 the Secretary-General of the UN placed human rights among the organization's core
activities. The WHO Constitution of 1946 preceded the Universal Declaration of Human
Rights with the following opening text:
“The States parties to this Constitution declare, in conformity with the Charter of the United
Nations, that the following principles are basic to the happiness, harmonious relations and
security of all peoples.
Health is a state of complete physical, mental and social well-being and not merely the
absence of disease or infirmity. The enjoyment of the highest attainable standard of health is
one of the fundamental rights of every human being without distinction of race, religion,
political belief, economic or social condition.”
All human rights are interrelated. For example, the right to health is integral to realizing other
human rights relevant to health, such as the right to education, information, privacy,
association, equality and participation. Freedom from discrimination, on internationally
recognized grounds, underpins all human rights. It also places particular emphasis on
vulnerable groups.
Human rights primarily concern the relationship between the state and the individual; they
generate state obligations and individual entitlements. Governments commonly have prime
responsibility in public health, hence the need for enhanced ability to combine sound public
health practice with the fulfilment of their obligation towards human rights.
Health is a fundamental human right indispensable for the exercise of other human rights. The
realization of the right to health may be pursued through several, complementary approaches,
such as the formulation of health policies, the implementation of health programmes, or the
adoption of specific legal instruments.
The human right to health is recognized in numerous international instruments. Article 25.1 of
the Universal Declaration of Human Rights (1948) states:
“Everyone has the right to a standard of living adequate for the health and well-being of
himself and of his family, including food, clothing, housing and medical care and necessary
social services”.
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The right to health is also recognized in many other international2,3,4 and regional5,6,7
instruments. But it is especially the International Covenant on Economic, Social and Cultural
Rights, signed and ratified by over 140 countries, which provides the foundation for legal
obligations under the right to health.
The International Covenant on Economic, Social and
Cultural Rights
By the time the states began negotiating to turn the provision of the Declaration into binding
law, the Cold War had overshadowed and polarized human rights into two artificial but
separate categories. The West argued that civil and political rights, such as the right to vote,
had priority, and that economic and social rights were mere aspirations. The Eastern bloc
argued that rights to food, health and education were paramount, and civil and political rights
secondary. Hence two separate treaties were created in 1966, the International Covenant on
Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and
Cultural Rights (ICESCR).
In Article 12.1 of the ICESCR States parties recognize the “right of everyone to the
enjoyment of the highest attainable standard of physical and mental health”. By way of
illustration Article 12.2 enumerates a number of steps to be taken by States parties to achieve
the full realization of this right. In simplified language these include the right to:
(a) maternal, child and reproductive health
(b) healthy natural and workplace environments
(c) prevention, treatment and control of disease
(d) health facilities, goods and services.
Essential medicines as part of the right to health
The implementation of the ICESCR is monitored by the Committee on Economic, Social and
Cultural Rights and the Covenant is supplemented, at regular intervals, by authoritative
comments. In its General Comment 14 of May 20008 the Committee interprets the right to
health, as defined in Article 12.1 of the Covenant, as an inclusive right, extending not only to
timely and appropriate health care but also to the underlying determinants of health, such as
access to safe water and sanitation, food, nutrition and housing, a healthy environment and
health education and information. Several sections of the report are particularly relevant to
essential medicines.
The Committee states that the right to prevention, treatment and control of diseases in Article
12.2(c) includes the creation of a system of urgent medical care in cases of accidents,
2
International Convention on the Elimination of All Forms of Racial Discrimination, Article
5(e) (iv), 1965
33
Convention on the Elimination of All Forms of Discrimination against Women, Article
11.1(f) and 12, 1979
4
Convention on the Rights of the Child, Article 24, 1989
5
European Social Charter, Article 11 (revised), 1965
6
African Charter on Human and People’s Rights, Article 16, 1981
7
Additional Protocol to the American Convention on Human Rights in the Area of Economic,
Social and Cultural Rights, Article 10, 1988
8
Committee on Economic, Social and Cultural Rights. The right to the highest attainable
standard of health. 11/08/2000. E/.12/2000/4, CESCR General Comment 14, 2000
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epidemics and similar health hazards, and the provision of disaster relief and humanitarian
assistance in emergency situations. The right to health facilities, goods and services in Article
12.2(d) includes appropriate treatment of prevalent diseases, preferably at community level;
and the provision of essential drugs.9
The Committee further specifies the following interrelated and essential components for the
fulfilment of the right to health in all its forms at all levels:
•
Availability: Functioning public health and health care facilities, goods and services. The
precise nature of the services depends on many factors (see below) but will include water
and sanitation, hospitals and clinics, trained professional staff with domestically
competitive salaries, and “essential drugs as defined by the WHO Action Programme on
Essential Drugs.”10
•
Accessibility: Accessibility to facilities, goods and services has four components: nondiscrimination, physical accessibility, affordability and access to information.
•
Acceptability: Health facilities, goods and services must respect medical ethics and be
culturally appropriate and sensitive to gender and life-cycle requirements
•
Quality: Health facilities, goods and services must be scientifically and medically
appropriate and of good quality.
It is important to note that the right to health cannot be secured immediately and overnight because States parties may not have the means to do so, and even in resource-rich countries
there is always more that can be done. This is called "progressive realization" and
acknowledges the limits of available resources. However, the Covenant also imposes on
States parties various obligations that take immediate effect, and which ensure that they are
constantly moving progressively to improve the health and well-being of people living within
their borders.
States parties have an immediate obligation to guarantee that the right to health will be
exercised without discrimination of any kind (Article 2.2) and to take steps (Article 2.1)
towards the full realization of Article 12. Such steps must be deliberate, concrete and targeted
towards the full realization of the right to health.11 There is a strong presumption that
retrogressive measures taken in relation to this right are not permissible.12
Three levels of obligations
The right to health, like all human rights, imposes three levels of obligations on States
parties:13
9
Committee on Economic, Social and Cultural Rights. The right to the highest attainable
standard of health. 11/08/2000. E/.12/2000/4, CESCR General Comment 14, para 17, 2000
10
Committee on Economic, Social and Cultural Rights. The right to the highest attainable
standard of health. 11/08/2000. E/.12/2000/4, CESCR General Comment 14, para 12(a), 2000.
In this paragraph the report makes a reference to the WHO Model List of Essential Drugs of
1999 as published in WHO Drug Information Vol 13, No. 4, 1999
11
See General Comment 3, para 43
12
General Comment 3, para 9; General Comment 3, para 45
13
Committee on Economic, Social and Cultural Rights. The right to the highest attainable
standard of health. 11/08/2000. E/.12/2000/4, CESCR General Comment 14, 2000
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1. Obligation to respect: to refrain from interfering directly or indirectly with the enjoyment
of the right to health. This includes the obligation to refrain from denying or limiting
equal access for all persons to preventive, curative or palliative care.
2. Obligation to protect: to take measures which prevent third parties from interfering with
the guarantees of Article 12. This includes the obligation to ensure equal access to health
care provided by third parties, and to ensure that privatization of the health sector does
not constitute a threat to the availability, accessibility, acceptability and quality of health
facilities, goods and services.
3. Obligation to fulfil: this in turn contains obligations to facilitate, provide and promote. It
requires states to adopt appropriate legislative, administrative, budgetary, judiciary and
promotional measures towards the full realization of the right to health.
International obligations
To comply with international obligations in relation to Article 12, States parties have to
respect the enjoyment of the right to health in other countries, and to prevent third parties
from violating the right in other countries. States should facilitate access to essential facilities,
goods and services in other countries, and provide necessary aid when required.14 This
includes their obligations as members of international bodies, such as the IMF and the World
Bank. States parties should refrain at all times from imposing embargoes or similar measures
restricting another State's supply of adequate medicines and medical equipment.
Core obligations under Article 12
In General Comment No.1415 the Committee on Economic, Social and Cultural Rights
confirms that States parties have a core obligation to ensure the satisfaction of, at the very
least, minimum essential levels of each of the rights enunciated in the Covenant, including
essential primary care as described in the Alma-Ata Declaration. According to the Committee,
these core obligations include, as a minimum, the right to:
• access to health facilities, goods and services on a non-discriminatory basis, especially for
vulnerable or marginalized groups
• minimum essential food
• basic housing, water and sanitation
• essential drugs as defined by the WHO Action Programme on Essential Drugs
• equitable distribution of health facilities, goods and services
• a national public health strategy and plan of action, addressing the health concerns of the
whole population, with right to health indicators and with particular attention given to all
vulnerable or marginalized groups.
Violations of the right to health
In determining which actions or omissions amount to a violation of the right to health, it is
important to distinguish between the inability and the unwillingness of a State party to
comply with its obligations under Article 12. However, a State party cannot, under any
circumstances whatsoever, justify its non-compliance with the core obligations mentioned
above.16
14
Covenant, Article 2.1
Committee on Economic, Social and Cultural Rights. The right to the highest attainable
standard of health. 11/08/2000. E/.12/2000/4, CESCR General Comment 14, 2000
16
Committee on Economic, Social and Cultural Rights. The right to the highest attainable
standard of health. 11/08/2000. E/.12/2000/4, CESCR General Comment 14, para 47, 2000
15
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Violations of the obligation to fulfil occur through the failure of states to take all necessary
steps to ensure the realization of the right to health. Examples quoted in General Comment
No.14 include the failure to adopt or implement a national health policy designed to ensure
the right to health for everyone; insufficient expenditure or misallocation of public resources;
failure to monitor the realization of the right to health at a national level; and failure to take
measures to reduce the inequitable distribution of health facilities, goods and services.
Access to essential medicines as a human right:
summary
Article 25.1 of the Universal Declaration of Human Rights states “Everyone has the right to
a standard of living adequate for the health and well-being of himself and of his family,
including food, clothing, housing and medical care and necessary social services.”
In Article 12.1 of the International Covenant on Economic, Social and Cultural Rights,
States parties recognize “the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health”. Article 12.2 enumerates a number of steps to be
taken by States parties to achieve the full realization of this right, which include the right to
prevention, treatment and control of disease, and the right to health facilities, goods and
services.
Article 12.2 of the Covenant is further interpreted and defined in General Comment No.14
by the Committee on Economic, Social and Cultural Rights. The right to prevention,
treatment and control of diseases in Article 12.2(c) includes the creation of a system of
urgent medical care and the provision of disaster relief and humanitarian assistance in
emergency situations. The right to health facilities, goods and services in Article 12.2(d)
includes appropriate treatment of prevalent diseases, preferably at community level; and the
provision of essential drugs.
While the Covenant provides for progressive realization and acknowledges the limits of
available resources, States parties have an immediate obligation to guarantee that the right to
health will be exercised without discrimination of any kind (Article 2.2) and to take
deliberate and concrete steps (Article 2.1) towards the full realization of Article 12. In
General Comment No.3 the Committee confirms that States parties have a core obligation to
ensure the satisfaction of minimum essential levels of each of the rights enunciated in the
Covenant, including essential primary care as described in the Alma-Ata Declaration. These
core obligations are further specified in Comment No.14 and specifically include the
provision of essential drugs as defined by the WHO Action Programme on Essential Drugs*,
and a national public health strategy and plan of action, with particular attention to
vulnerable or marginalized groups.
* Since renamed the WHO Department of Essential Drugs and Medicines Policy
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2. Objectives, methods
Human rights create state obligations, and as discussed in the previous chapter, these are: the
right to health includes the right to emergency care and the right to health facilities, goods and
services. The right to health facilities, goods and services specifically includes the provision
of essential medicines as defined by WHO. In addition States parties are under immediate
obligation to guarantee that the right to health will be exercised without discrimination and to
take deliberate and concrete steps towards its full realization, with emphasis on vulnerable
and marginalized groups.
By the end of 2002, 142 countries had signed the International Covenant on Economic, Social
and Cultural Rights and 83 countries had signed regional Human Rights treaties. All 192
countries in the world have signed at least one global or regional covenant or treaty
confirming the right to health in one way or another. Over 100 countries have incorporated
the right to health in their national constitution. The UN High Commissioner for Human
Rights maintains a database on the status of ratifications of the principal international human
rights treaties.17
Signature and/or ratification of an international human rights treaty makes a state into a State
party to that treaty and creates certain state obligations to its people. Much has been written
about how these obligations can be translated into national law and government policy, in
order to respect, protect and promote the right to health for its citizens. However, this study
focuses only on the question of whether these state obligations are enforceable in practice.
The short answer to this question is: "Yes, if .."
Objectives of the study
The objective of this study is to identify, analyse and summarize court cases in developing
countries in which individuals or groups have initiated a case against the government or a
governmental institution, claiming access to essential medicines, fully or partly on the basis of
human rights treaties signed and/or ratified by their government, and have won their case with
(some) reference to the right to health. This study's ultimate goal ois to identify success
factors in these cases, in order to empower individuals and groups to claim the benefits of the
obligations their governments have taken upon themselves by signing and/or ratifying one or
more international human rights treaties.
Search methods, presentation of findings
Although we cannot claim that the search methods were fully systematic or exhaustive, in
practice all available methods (for example, databases, web searches, follow-up on references
in books and articles, interviews with experts, among many others) were used to identify
cases. The basic search criteria were court cases in developing countries in which individuals
or groups had initiated a case against the government or a governmental institution, claiming
access to essential medicines, fully or partly on the basis of human rights treaties signed and
ratified by their government, and have won their case. Descriptions of cases and original
judgements were reviewed.
For 20 cases which met these criteria, the full text of the judgement was studied. Summaries
of the cases and the rulings were made and are presented in Chapter 3, together with the
original texts and informal English translation(s) of the relevant article(s) in the national
constitution. Chapter 4 identifies success factors in the cases, and Chapter 5 presents a set of
recommendations for further action.
17
Web site of UNHCHR, database of signed/ratified treaties: www.unhchr.ch
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3. Results: the cases and the rulings
General overview
By the end of 2003, 20 different cases from seven countries had been identified and are
presented here. All but one (South Africa) are from Latin America (Table 1).
Table 1
Country cases over time
1992
Argentina
Bolivia
Colombia
1, 2
Costa Rica
El Salvador
South Africa
Venezuela
1994
1995
1997
1998
1
1999
2000
2, 3
2001
2002
2003
1
3, 4
1
5
2
3
1
6
4
1
1, 2
3
4
Table 2 gives a general overview of the characteristics of the 20 cases. It presents a summary
of the constitutional and legal situation in each country regarding the right to health and
social security, the type of litigation case, the main arguments used and the main conclusions
reached in the judgement. This chapter gives a summary of these cases..
Parties, types of cases
Fourteen out of 20 cases (70%) are individual cases. Three of the 14 can also be considered
as "individual" public interest cases. The other 6/20 (30%) are group and/or public interest
cases. Therefore, in total nine (3 plus 6,) out of 20, 45% can be considered public interest
cases. Seven cases (one each in Argentina, Colombia and South Africa and all four in
Venezuela) were strongly supported by nongovernmental organizations (NGOs) (Table 3).
Eleven out of 20 cases (55%) were against social security schemes, usually public schemes
but also one private scheme (Col-6). For the rest, in 6 out of 20 cases (30%) the defendant
was the Ministry of Health, in two cases an individual hospital and in one the Ministry of
Defence.
Diseases for which treatment is sought
The majority of cases (13/20, 65%) concern HIV/AIDS. One of these refers to the prevention
of mother-to-child transmission and all others to life-saving treatment with antiretroviral
medicines. Four other cases refer to life-saving treatments for leukaemia and renal
transplantation, and the remaining cases to skin disease, multiple sclerosis and vaccination.
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Table 2
General overview of cases
Country
Case number
International law and Constitution
Right to health in the Constitution
Health care is part of collective welfare
Health (care) is a State obligation
Int'l. treaties rank higher than domestic law
Type of case
Individual case
Public interest case
NGO-supported case
Social security
State / Min of Health
State / Min of Defence
Health institution /hospital
Human Rights instruments quoted/used
Unspecified
ICESCR
Universal Declaration of Human Rights
Rights of the child
Regional HR instruments
Other aspects quoted/used
Right to life
Acquired right, non-interuption
Non-discrimination
Social justice
Benefit of scientific advances
Human dignity
Physical integrity
Conclusions reached
Required treatment to be given/continued
Int'l.treaties create obligation towards
individuals
Judgement extended to all similar individuals
Right to health is stronger than Soc Sec limits
Right to health is stronger than EML limits
State policy can be checked in court
State obligation towards poor/disadvantaged
Progressive realization
Disease aspects
HIV/AIDS treatment
HIV testing
MTCT
Leukaemia, blood disease
Vaccines
Skin disease
Renal transplantation
Diabetes
Multiple sclerosis
Pharmaceutical aspects
National list of essential medicines
Generic substitution
Risk, safety
Arg
1 2
3
x
x
x
x
x
x
x
x
x
x
x
x
Bo
1
x
x
x
x
x
x
x
x
Col
1 2
x
x
x
x
x
3
4
5
6
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
CR
1 2
3
4
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
ES
1
SA
1
Ven
1 2
3
4
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
1
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
no
x
?
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x strong link
x link or quote
Legenda: Arg=Argentina, Bo=Bolivia, Col=Colombia, CR=Costa Rica, EML=Essential Medicines List, ES=El Salvador, MTCT=
Mother-to-child transmisión, SA=South Africa, Ven=Venezuela.
15
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Ruling for Access, version 9, 26 July 2004
Human rights treaties ratified
All seven countries have acceded to or ratified the International Covenant on Economic,
Social and Cultural Rights and the International Convention on the Rights of the Child
(Table 3). In all seven countries the constitution includes a provision indicating that
international treaties signed by the state have constitutional rank and/or override domestic
laws in case of conflict. In all seven countries the participation in international human rights
treaties and their constitutional recognition show a clear government commitment to human
rights.
Table 3
Accession/ratification of human rights treaties by countries, 17 June 2002
(Source:UNHCHR)
Argentina
Bolivia
Colombia
Costa Rica
El Salvador
South Africa
Venezuela
Legenda
ICESCR
ICCPR
CCPR-OP1
CCPR-OP2
ICERD
CEDAW
CEDAW-OP
CAT
CRC
CRC-OP-AC
CRC-OP-SC
ICESCR
ICCPR
CCPROP1
1986
1982
1969
1968
1979
1994
1978
1986
1982
1969
1968
1979
1998
1978
1986
1982
1969
1968
1995
1978
CCPROP2
1997
1998
1993
ICERD
CEDA
W
CEDA
W-OP
CAT
CRC
CRCOP-AC
1968
1970
1981
1967
1979
1998
1967
1985
1990
1982
1986
1981
1995
1983
2000
2000
1999
2001
2001
1986
1999
1987
1993
1996
1998
1991
1990
1990
1991
1990
1990
1995
1990
2000
2000
2000
2000
2002
2002
2000
International Covenant on Economic, Social and Cultural Rights
International Covenant on Civil and Political Rights
Optional Protocol to CCPR
Optional Protocol to CCPR
International Convention on the Elimination of All Forms of Racial Discrimination
Convention on the Elimination of All Forms of Discrimination against Women
Optional protocol to CEDAW
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Convention on the Rights of the Child
Optional protocol to CRC on involvement of children in armed conflict
Optional protocol on CRC on sale of children, child prostitution and child pornography
Constitutional framework
In six countries (all except Argentina) the right to health is specifically included in the
constitution. In these six countries therefore a double guarantee exists for the right to health:
mention in the constitution and a provision that international treaties have precedence over
domestic laws. In Argentina health care is considered part of collective welfare.
Human rights treaties quoted
Eight cases from Argentina, Colombia, Costa Rica, El Salvador and Venezuela refer to the
international human rights treaties signed by the State. The treaties are usually referred to as
a group, although Arg-3 lists them by name. Col-1 specifically refers to the International
Covenant on Economic, Social and Cultural Rights and Sal-1 to regional treaties.
Other aspects quoted
In 13 out of 20 cases (65%) the right to life is quoted as a supportive argument; this is always
linked to life-threatening disease. In 4 out of 20 cases (20%) acquired rights are quoted as a
reason not to stop treatment, usually when social security rights ran out after a certain period
of treatment. Non-discrimination was used in 5 out of 20 cases (25%), and social justice in 3
out of 20. In two cases in Venezuela the right to the benefit of scientific advances was
mentioned.
16
CRCOP-SC
2001
2000
2002
2002
Ruling for Access, version 9, 26 July 2004
Argentina
Constitutional framework
The Argentine Constitution does not contain any express provision recognizing or defining
the right to health as one of the human rights. However, it should be stressed that the lack of
specific recognition is not an obstacle regarding petitions on access to health care, which is
now considered as an essential element of individual and collective welfare and development
(Preamble to the Constitution).
Since the 1994 constitutional reform, international treaties ratified by Argentina rank higher
than domestic law in accordance with Article 75 paragraph 22; Argentina has adopted a clear
monist18 position regarding human rights treaties. As a result individuals have gained the
possibility to directly invokeg these treaties' provisions concerning the right to health, before
national courts.
Finally, under Article 43 of the 1994 Constitution, an application for amparo (a specific
procedure aiming to protect constitutional rights) may be filed in the event of a breach of any
of these health rights.
1994 Constitution
Artículo 75.- Corresponde al Congreso: 22. Aprobar o desechar tratados concluidos con las demás naciones y
con las organizaciones internacionales y los concordatos con la Santa Sede. Los tratados y concordatos tienen
jerarquía superior a las leyes. La Declaración Americana de los Derechos y Deberes del Hombre; la Declaración
Universal de Derechos Humanos; la Convención Americana sobre Derechos Humanos; el Pacto Internacional de
Derechos Económicos, Sociales y Culturales; el Pacto Internacional de Derechos Civiles y Políticos y su
Protocolo Facultativo; la Convención sobre la Prevención y la Sanción del Delito de Genocidio; la Convención
Internacional sobre la Eliminación de todas las Formas de Discriminación Racial; la Convención sobre la
Eliminación de todas las Formas de Discriminación contra la Mujer; la Convención contra la Tortura y otros
Tratos o Penas Crueles, Inhumanos o Degradantes; la Convención sobre los Derechos del Niño: en las
condiciones de su vigencia, tienen jerarquía constitucional, no derogan artículo alguno de la primera parte de esta
Constitución y deben entenderse complementarios de los derechos y garantías por ella reconocidos. Sólo podrán
ser denunciados, en su caso, por el Poder Ejecutivo nacional, previa aprobación de las dos terceras partes de la
totalidad de los miembros de cada Cámara. Los demás tratados y convenciones sobre derechos humanos, luego
de ser aprobados por el Congreso, requerirán del voto de las dos terceras partes de la totalidad de los miembros de
cada Cámara para gozar de la jerarquía constitucional. 23. Legislar y promover medidas de acción positiva que
garanticen la igualdad real de oportunidades y de trato, y el pleno goce y ejercicio de los derechos reconocidos
por esta Constitución y por los tratados internacionales vigentes sobre derechos humanos, en particular respecto
de los niños, las mujeres, los ancianos y las personas con discapacidad.
Artículo 43.- Toda persona puede interponer acción expedita y rápida de amparo, siempre que no exista otro
medio judicial más idóneo, contra todo acto u omisión de autoridades públicas o de particulares, que en forma
actual o inminente lesione, restrinja, altere o amenace, con arbitrariedad o ilegalidad manifiesta, derechos y
garantías reconocidos por esta Constitución, un tratado o una ley. En el caso, el juez podrá declarar la
inconstitucionalidad de la norma en que se funde el acto u omisión lesiva.
Article 75 Congress is empowered: 22. To approve or reject treaties concluded with other nations and
international organizations, and concordats with the Holy See. Treaties and concordats have a higher hierarchy
than laws.
The American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the
18
The Argentine position regarding international law can be described as monistic, since it views national and international law as
equal parts of a unified system. This means that an international norm, which a country has ratified, acquires immediate national
validity. There is no need therefore to take any special steps to transform it into national legislation. International norms thus
become part of the country's legal system from the time that they come into effect. From that moment on, and as long as they are
binding, all organs of the state must respect and apply them.
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American Convention on Human Rights; the International Pact on Economic, Social and Cultural Rights; the
International Pact on Civil and Political Rights and its Empowering Protocol; the Convention on the Prevention
and Punishment of Genocide; the International Convention on the Elimination of all Forms of Racial
Discrimination; the Convention on the Elimination of all Forms of Discrimination against Women; the
Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishments; the Convention
on the Rights of the Child; in the full force of their provisions, they have constitutional hierarchy, do not repeal
any section of the First Part of this Constitution and are to be understood as complementing the rights and
guarantees recognized herein. 23. To legislate and promote positive measures guaranteeing true equal
opportunities and treatment, the full benefit and exercise of the rights recognized by this Constitution and by the
international treaties on human rights in force, particularly referring to children, women, the aged, and disabled
persons.19
Article 43 (1) Any person shall file a prompt and summary proceeding regarding constitutional guarantees,
provided there is no other legal remedy, against any act or omission of the public authorities or individuals which
currently or imminently may damage, limit, modify or threaten rights and guarantees recognized by this
Constitution, treaties or laws, with open arbitrariness or illegality. In such a case, the judge may declare that the
act or omission is based on an unconstitutional rule.
Arg-1: Viceconte, Mariela Cecilia vs State of Argentina (Health
Department)
Federal Administrative Court, File No 31.777/96, 2 June 1998
Available at: http://www.cels.org.ar/Site_cels/trabajo/c_desc/desc_casos/tribunales_locales_casos.html
Facts: Up to 3,500,000 Argentine inhabitants in certain areas of the country are exposed to
Argentinean haemorrhagic fever, an infectious disease for which a vaccine named “Candid
1” has been shown to be effective. Nevertheless, the quantity of vaccine doses stocked
within and outside the country was limited (approximately 400,000 doses). The plaintiff filed
a public interest litigation seeking protection of the right to health of people threatened by
this fever. The applicant sought to compel the Government to produce (as this disease only
exists in Argentina), and to provide Candid 1 vaccine to all inhabitants threatened by the
fever, and also to improve the ecological system that was facilitating the spread of the
disease.
Decision: Despite the fact that the Court dismissed the claim on the right to a healthy
environment, it issued a declaratory order that required the State to fulfil its duty to protect
the health of its population by manufacturing and providing this vaccine. Regarding the
justiciability of this right in Argentina, the Court noted that any individual could bring
complaints concerning the right to health due to the constitutional incorporation of
international treaties referring to it. The Court delivered a consistent interpretation of the
Constitution with its preamble objectives of social justice and collective welfare.
Arg-2: Asociación Benghalensis et al. vs Ministerio de Salud y
Acción Social
Constitutional Court, File No A.186.XXXIV, 1 June 2000
Available at: http://www.cuadernos.bioetica.org/fallos12.htm
Facts: In 1996, eight NGOs working in the field of HIV/AIDS, submitted a joint amparo
action (a collective protection measure) against the National Ministry of Health and Social
Welfare for the failure to supply medicines to people living with HIV/AIDS, for which it
was responsible under the Argentinean AIDS law (law no. 23798). The applicants sought to
compel the Ministry to provide all HIV-positive people with full coverage of medications at
19
The English translation is given for the benefit of the reader but is not legally binding
18
Ruling for Access, version 9, 26 July 2004
all national public hospitals/health care units in Argentina. The Ministry's main arguments
were that responsibility had to be sought at the provincial not the federal level, and that the
management of the medicines programme was not subject to control by the courts.
Decision: This action was ratified in 72 hours and the Ministry was obliged to supply
antiretrovirals to people living with HIV. The decision was confirmed in February 1998 by
the acknowledgment that the Ministry had not complied with its obligations to assist and
treat HIV patients nationwide. In 2000, the Supreme Court challenged all arguments from
the Ministry and reaffirmed strongly that the Ministry was responsible for ensuring the
effective compliance of the AIDS programme. This constitutional protection brought
immediate benefit to 15,000 people.
Arg-3: Campodonico de Beviacqua, Ana Carina vs Ministerio de
Salud y Acción Social
Constitutional Court, File C.823.XXXV, 24 October 2000
Available at: http://www.legalmania.com/rincon_estudiantes/el_rincon/Beviacqua.htm
Facts: This amparo action was filed by parents acting on behalf of their son suffering from a
bone disease (a severe congenital neutropenia also known as Kostman’s syndrome, children
with this condition get frequent severe infections) and needing a specific medicine,
“Neutromax 300”. This vital treatment had been given free of charge to the child for two
years when its provider, an agency dependent on the Ministry of Health, decided to stop the
treatment. The main argument used to justify this interruption was that the previous
provisions were made purely on humanitarian grounds and that the agency was able to
decide to stop it at its discretion. The parents based their claim mainly on international
provisions concerning the right to health and similar provisions in children's rights protection
treaties.
Decision: The Court issued a declaratory order that required the Ministry of Health to oblige
its agency to continue to provide the drug to the child. It based its decision mainly on
international provisions including Article 3 of the Convention on the Rights of the Child
(best interest of the child as a primary consideration), Article 25 of the Universal Declaration
of Human Rights, Articles 10 and 12 of ICESCR and Articles 4.1 and 19 of the Pact of San
José. The Court also insisted on the federal responsibility for the fulfilment of the right to
health, and strongly refuted the Ministry's humanitarian argument.
Bolivia
Constitutional framework
The Bolivian Constitution, and subsequent legislation, considers the right to health and the
right to social security as autonomous and fundamental rights (Article 7). In the Constitution
health is considered as a right of public order, which must be inalienable. The State appears to
be responsible for health, for the people and for society as a whole. According to the Health
Codes adopted in 1995 “Health is an asset of public interest, and the State is obligated to care
for the health of the individual, the family and the population in its entirety.”
These dispositions are reinforced by the fact that all international treaties ratified by Bolivia,
including the International Covenant on Economic, Social and Cultural Rights, benefit from
the authority of constitutional rank and are directly justiciable before national courts.
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Finally, Article 19 of the Constitution establishes a recourse to constitutional protection
known as amparo. Citizens can file a claim before national courts against illegal acts or
improper omissions by public entities that restrain the rights and guarantees enshrined in the
Constitution, including the right to health.
Web link: 1967 Constitution with Amended Text of 1995
ARTICULO 7. Toda persona tiene los siguientes derechos fundamentales, conforme a las leyes que reglamenten
su ejercicio:a) A la vida, la salud y la seguridad…; k) A la seguridad social, en la forma determinada por esta
Constitución y las leyes.
ARTICULO 19. El recurso de amparo se interpondrá por la persona que se creyere agraviada o por otra a su
nombre con poder suficiente, ante las Cortes Superiores en las capitales de Departamento y ante los Jueces de
Partido en las provincias, tramitándoselo en forma sumarísima. El Ministerio Público podrá también interponer de
oficio este recurso cuando no lo hiciere o no pudiere hacerlo la persona afectada.
ARTICULO 158. I. El Estado tiene la obligación de defender el capital humano protegiendo la salud de la
población; asegurará la continuidad de sus medios de subsistencia y rehabilitación de las personas inutilizadas;
propenderá asimismo al mejoramiento de las condiciones de vida del grupo familiar.
II. Los regímenes de seguridad social se inspirarán en los principios de universalidad, solidaridad, unidad de
gestión, economía, oportunidad y eficacia, cubriendo las contingencias de enfermedad, maternidad, riesgos
profesionales, invalidez, vejez, muerte, paro forzoso, asignaciones familiares y vivienda de interés social.
ARTICULO 164. El servicio y la asistencia sociales son funciones del Estado, y sus condiciones serán
determinadas por ley. Las normas relativas a la salud pública son de carácter coercitivo y obligatorio.
Article 7. Each individual benefits from the following fundamental rights: a) to life, health, and safety… k) to
social security, in the form established by this Constitution and the laws.
Article 19. A writ of amparo may be entered by the person believing himself to be aggrieved or by another
person on his behalf, with sufficient power of attorney, before the Supreme Courts of the Departments' capitals,
and the juez de partido in the provinces, in a very summary form. In addition, the Attorney General may exofficio enter into a writ of amparo when the affected individual has not or cannot do so.
Article 158. The State is obligated to defend its human assets by protecting the health of the population; it will
ensure the continuity of their means of subsistence, and the rehabilitation of the disabled, in addition it will foster
the improvement of family living conditions.
The social security system should be founded on the principles of universality, solidarity, unity of administration,
economy, timeliness and effectiveness […]
Article 164. Social and welfare services are functions of the State, and their conditions should be determined by
law. Public health norms are enforceable and compulsory.
Bol-1: N.N. vs la Corporación del Seguro Social Militar (COSSMIL)
Supreme Court, expediente n° 2002-05354-10, 8 January 2003-12-16
Available at: http://www.tribunalconstitucional.gov.bo/modules.php?id=5796&name=consultas&file=look
http://www.tribunalconstitucional.gov.bo/gpwtc.php?id=05354&name=consultas&file=expediente&B2=Buscar
Facts: The Defensor del Pueblo, acting on behalf of an HIV-positive person, filed an
amparo action in order to prevent the interruption of reimbursement of HIV medications by
the COSSMIL. This interruption came after two years of free treatment through this
institution because of the social security law, which imposes compulsory reimbursement of
those drugs for two years only. The plaintiff challenged these dispositions of the social
security code, alleging their inadequacy relating to the constitutional and international right
to health connected to the patient's right to life when life-long treatment is needed, and the
right to social security.
Decision: The Supreme Court considered that the right to health enshrined in Article 7 of the
Constitution, related to the right to life, must be considered as a fundamental right with
20
Ruling for Access, version 9, 26 July 2004
constitutional value.20 It logically prevails over all inferior laws. It therefore ordered the
COSSMIL to continue providing the claimant with the medication, regardless of the social
security law.
Colombia
Constitutional framework
In its Constitution, last revised in 2001, Colombia is defined as a State founded upon respect for
human dignity, the work and the solidarity of its people and the general welfare. The essential
functions of the Colombian State are to serve the community, promote general prosperity and
guarantee the effectiveness of the principles, rights and duties established in the Constitution. As
a result of these general goals, the Colombian Constitution contains guarantees in respect to
health care and social services, especially with regard to the most precarious groups in
Colombian society.
The Constitution recognizes health as a fundamental right of citizens. What is more, Article 49
of the Constitution states that it is the responsibility of the State to ensure that this right is not
infringed and to take positive steps to implement it through national laws. In a manner similar to
Article 12 of the International Covenant on Economic, Social and Cultural Rights, this Article
provides that all citizens will be guaranteed access to medical services in order to promote,
protect and restore health. It is also determined that the law will designate the terms on which
basic health care for all inhabitants will be free and mandatory.
Under Article 93 international human rights treaties ratified by Colombia rank higher than national
laws and may not be restricted in states of emergency. It also provides that the rights and duties
established in the Constitution shall be interpreted in accordance with international human rights
treaties ratified by Colombia.
Web link: 1991 Constitution updated by 2001 reforms
ARTICULO 2. Son fines esenciales del Estado: servir a la comunidad, promover la prosperidad general y
garantizar la efectividad de los principios, derechos y deberes consagrados en la Constitución; facilitar la
participación de todos en las decisiones que los afectan y en la vida económica, política, administrativa y cultural
de la Nación; defender la independencia nacional, mantener la integridad territorial y asegurar la convivencia
pacífica y la vigencia de un orden justo. Las autoridades de la República están instituidas para proteger a todas las
personas residentes en Colombia, en su vida, honra, bienes, creencias, y demás derechos y libertades, y para
asegurar el cumplimiento de los deberes sociales del Estado y de los particulares.
ARTICULO 11. El derecho a la vida es inviolable. No habrá pena de muerte.
Articulo 13. Todas las personas nacen libres e iguales ante la ley, recibirán la misma protección y trato de las
autoridades y gozarán de los mismos derechos, libertades y oportunidades sin ninguna discriminación por razones
de sexo, raza, origen nacional o familiar, lengua, religión, opinión política o filosófica. El Estado promoverá las
condiciones para que la igualdad sea real y efectiva y adoptará medidas en favor de grupos discriminados o
marginados. El Estado protegerá especialmente a aquellas personas que por su condición económica, física o
mental, se encuentren en circunstancia de debilidad manifiesta y sancionará los abusos o maltratos que contra
ellas se cometan.
20
“En nuestro ordenamiento jurídico, el derecho a la salud es un derecho fundamental, que debe ser
resguardado con mayor razón cuando se encuentra en conexidad con el primigenio derecho a la vida
o a la dignidad humana, especialmente en el caso de personas vulnerables de la población, como son
los niños, las personas con discapacidad, de la tercera edad y los enfermos terminales.” Judgement
N.N, paragraph III-2.
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ARTICULO 49. La atención de la salud y el saneamiento ambiental son servicios públicos a cargo del Estado.
Se garantiza a todas las personas el acceso a los servicios de promoción, protección y recuperación de la salud.
Corresponde al Estado organizar, dirigir y reglamentar la prestación de servicios de salud a los habitantes y de
saneamiento ambiental conforme a los principios de eficiencia, universalidad y solidaridad. También, establecer
las políticas para la prestación de servicios de salud por entidades privadas, y ejercer su vigilancia y control. Así
mismo, establecer las competencias de la Nación, las entidades territoriales y los particulares, y determinar los
aportes a su cargo en los términos y condiciones señalados en la ley. Los servicios de salud se organizarán en
forma descentralizada, por niveles de atención y con participación de la comunidad. La ley señalará los términos
en los cuales la atención básica para todos los habitantes será gratuita y obligatoria. Toda persona tiene el deber
de procurar el cuidado integral de su salud y la de su comunidad.
ARTICULO 93. Los tratados y convenios internacionales ratificados por el Congreso, que reconocen los
derechos humanos y que prohiben su limitación en los estados de excepción, prevalecen en el orden interno. Los
derechos y deberes consagrados en esta Carta, se interpretarán de conformidad con los tratados internacionales
sobre derechos humanos ratificados por Colombia.
Article 2. The State has three essential purposes: to serve the community, to promote the general welfare and to
guarantee the effectiveness of the principles, rights and duties upheld in the Constitution; to enable all persons to
participate in the decisions that affect them and in the economic, political, administrative and cultural life of the
nation; to defend national independence, preserve its territorial integrity and ensure peaceful coexistence and
justice. The authorities of the Republic are instituted to protect the lives, honour, property, beliefs and other rights
and freedoms of all persons living in Colombia, and to see to it that the social duties of the State and of private
parties are fulfilled.
Article 11. The right to life is inviolable. There shall be no capital punishment.
Article 13. All individuals are born free and equal before the law and are entitled to equal protection and
treatment by the authorities, and to enjoy the same rights, freedoms, and opportunities without
discrimination on the basis of gender, race, national or family origin, language, religion, political opinion
or philosophy. The State will promote the conditions necessary in order that equality may be real and effective, it
will adopt measures in favour of groups which are discriminated against or marginalized. The State will
especially protect those individuals who on account of their economic, physical, or mental condition are in
obviously vulnerable circumstances and will sanction any abuse or ill-treatment perpetrated against them.
Article 49. Public health and environmental protection are public services for which the State is
responsible. All individuals have guaranteed access to services that promote, protect and rehabilitate
public health.
It is the responsibility of the State to organize, direct, and regulate the delivery of health services and of
environmental protection to the population in accordance with the principles of efficiency, universality, and
cooperation, and to establish policies for the provision of health services by private entities and to exercise
supervision and control over them. In the area of public health, the state will establish the jurisdiction of the
nation, territorial entities, and individuals, and determine the shares of their responsibilities within the limits and
under the conditions determined by law. Public health services will be organized in a decentralized manner, in
accordance with levels of responsibility and with the participation of the community.
The law will determine the limits within which basic care for all the people will be free of charge and
mandatory. Every person has the obligation to attend to the integral care of his/her health and that of his/her
community.
Article 93. International treaties and agreements, which have been ratified by Congress, which recognize human
rights and which prohibit their restriction during states of emergency shall take precedence over internal law.
These fundamental constitutional rights must be interpreted in the context of the public human rights treaties
ratified by Colombia.
Col-1: Mr Alonso Muñoz Ceballos vs Instituto de Seguros Sociales
(ISS)
Constitutional Court Judgement n°T-484, 11 August 1992
Available at: http://bib.minjusticia.gov.co/jurisprudencia/CorteConstitucional/1992/Tutela/T-484-92.htm
Facts: Mr Ceballos, an HIV-positive person, had been receiving free medical treatment in a
public health facility, through the Public Social Security Scheme (ISS). He had been
affiliated to the ISS long before he became infected. He was informed that the hospital
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would stop providing him with free medical treatment or assistance within 180 days. He filed
an amparo action in order to prevent the interruption of his treatment. He lodged a protection
writ to know whether or not he was entitled to the protection of his right to health as
enshrined in Article 49 of the Constitution.
Decision: In this judgement, the Constitutional Court ruled that this employee with AIDS
had a right to access to certain health services. The scope of the right to health in the
Colombian Constitution was analysed substantially. The Court explained that this specific
right had two functions: first, connected to the right to life (Article 11 Colombian
Constitution) it constitutes a fundamental right to be protected for health threats; secondly, it
constitutes also a social right, which implies positive obligations binding on the State. These
obligations permit citizens to have access to public health institutions, to hospitalization, to
medical examination and to medication. It also declared that the right to health connected to
the right to be free from any discrimination in the Colombian Constitution requires that
equality be created for persons in unfavourable positions. The State is required to provide
health services which are fundamental in nature and vital for the patient, as opposed to those
of a more general character. Although the Court did not define the line between the two
kinds of services, it did rule that the right to health is fundamental when it is related to the
protection of life.
Col-2: Mr Diego Serna Gómez vs Hospital Universitario del Valle
Constitutional Court, Judgement n° T-505, 28 August 1992
Available at: http://bib.minjusticia.gov.co/jurisprudencia /CorteConstitucional/1992/Tutela/T-505-92.htm
Facts: The plaintiff, who suffered from AIDS and was in a precarious financial situation,
challenged the refusal of a hospital to provide him with free medical services. He claimed
that this refusal violated the right to health as related to the right to be free from any kind of
discrimination enshrined in Article 13 of the Constitution. In the first instance, the
Administrative Contentious Chamber dismissed his claim on the grounds that the right to
equality had not been violated, and affirming that the right to health was not to be considered
as a fundamental right and so could not be constitutionally protected through a tutela action.
The plaintiff appealed against this decision.
Decision: The Constitutional Court revoked the first sentence from the Administrative
Court, judging that the right to health could be considered as a fundamental right, above all
when it is connected to the right to life. In an extensive ruling, the Court considered not only
the plaintiff's personal situation, but also the legal implications of broad constitutional
principles, such as the definition of Colombia as a social state and the meaning of social
justice and solidarity principles, which are also considered into considered in OR written into
OR part of ???KH the Constitution. The Court declared that because the State has only
limited resources, it is not required to provide free health care to all. It ruled that
nevertheless, the State is required by the rights guaranteed in Article 13 to provide special
protection when lack of economic resources “prevents a person from decreasing the
suffering, discrimination and social risk involved in being afflicted by a terminal,
transmissible and incurable disease”.21
21
Translation from the text : “La atención integral y gratuita hace parte de la protección especial a cargo del Estado cuando
la ausencia de medios económicos le impide a la persona aminorar el sufrimiento, la discriminación y el riesgo social que le
implica sufrir una enfermedad terminal, transmisible, incurable y mortal”. Judgement T-505, Paragraph 7.
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Col-3: Mr Miguel Angel Ibarguen Rivas vs Instituto de Seguros
Sociales (ISS)
Constitutional Court, Judgement n° T-158, 5 April 1995
Available at: http://bib.minjusticia.gov.co/jurisprudencia/CorteConstitucional/1995/Tutela/T-158-95.htm
Facts: The plaintiff, suffering from a skin disease, was treated free of charge by a public
social security institution, the ISS, until his employer stopped paying contributions to the
ISS. His legal representative argued that his right to life and health had been threatened by
the ISS' refusal to provide him with the drugs. The defendant's main argument was that the
ISS could not be held responsible for a situation that had been provoked by the non-payment
of contributions by the plaintiff’s employer.
Decision: The Court ruled that the benefit of the social security services, which is considered
as a precondition to fulfil fundamental rights, such as the right to life (physical integrity) and
the right to health, must prevail over the non-payment by his employer of the contribution.
The Court also highlighted the permanent character of the right to social security, stating
that, like medical treatment, it could not be interrupted.
Col-4: Mr. X vs Instituto de Seguros Sociales (ISS)
Constitutional Court, Judgement n° T-271 of 23 June 1995
Available at: http://bib.minjusticia.gov.co/jurisprudencia/CorteConstitucional/1995/Tutela/T-271-95.htm
Facts: An HIV-positive person receiving medical treatment through the ISS, challenged this
public social security scheme for refusing to provide him with the cocktail of antiretrovirals
that he needed to avoid deterioration of his health. The institution argued that it could not
provide him with those drugs as they were not included in the Official Drugs List because of
their high cost.
Decision: Considering the right to health as a fundamental right when it is connected, even
indirectly, with the right to life, the Court ruled that the State, through the ISS, had the
obligation to provide treatments in order to alleviate the condition of people living with
serious illnesses.
Col-5: Mr X vs Secretaríia de Salud Pública Municipal de Cali
Constitutional Court, Judgement n° T-177, 18 March 1999
Available at: http://bib.minjusticia.gov.co/jurisprudencia/CorteConstitucional/1999/Tutela/T-177-99.htm
Facts: The plaintiff, acting on behalf of an HIV-positive person, challenged the ISS' refusal
of social security rights for this person under a special scheme named SISBEN, aimed to
guarantee to the most vulnerable in society the benefit of certain health services and
treatments. This person had been unable to work for more than a year and was in a
financially precarious situation. As he was not benefiting from any social security scheme,
the hospital refused to provide him with the medications needed (antiretrovirals). The
provincial Public Health Unit's main argument was that this case was not a priority under the
SISBEN programme and it was not obliged to guarantee him these social security rights.
Decision: The Court held that this person had a fundamental right to benefit from social
security rights in order to have free access to medications essential for the improvement of
his quality of life. It noted that HIV/AIDS sufferers needed special protection by the State
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and that the provision of free treatment for all HIV-positive people was a priority. Therefore,
the precarious situation of some of them must not become a subject of discrimination, and so
they must benefit from this special SISBEN scheme.
Col-6: Mrs Diana María Pinilla Sandoval vs Salud Colpatria EPS
Constitutional Court, Judgement n°170, 8 March 2002
Available at: http://bib.minjusticia.gov.co/jurisprudencia/CorteConstitucional/2002/Tutela/t-170-02.htm
Facts: In 1993 the Colombian Government decided to end the monopoly of the Social
Security Institute on the administration of obligatory health care insurance, making it
possible for private enterprises (both profit and non-profit), for cooperative enterprises and
also for other public or mixed enterprises, to compete. They were all to be known as "Health
Promoter Entities" (EPS - after their initials in Spanish).
The case concerns the refusal by one private EPS to reimburse the plaintiff a vital
medication for the follow-up of a renal transplant. The refusal was mainly based on the fact
that this medicine was not included in the official drugs list. The applicant filed a tutela
action alleging that this private social entity denied her the right to health (connected to the
right to life), and was not applying the specific exceptions permitting the reimbursement of
medicines not included in the list when their provision is essential to the life of the patient.
Decision: The Court ruled that the exceptions prevailed in this case as the right to life of the
plaintiff was at stake. For this reason the priority was to provide these medications free of
charge to the patient. It cited all previous jurisprudence concerning the right to health and to
have access to essential drugs, and issued a declaratory order requiring this EPS to reimburse
and provide medication to the plaintiff.
Costa Rica
Constitutional framework
The Costa Rican Constitution, last revised in 2001, does not include any express recognition
of a right to health. However, there are juridical norms that guarantee the right to health and
the protection of human rights in Costa Rica. Indeed, the Political Constitution of Costa Rica
establishes that it is incumbent on the President of the Republic and the Minister of Health to
define health policies, as well as the planning of all these activities. On the other hand, Article
73 of the Constitution states that the administration and direction of social security will be
entrusted to an autonomous institution named the Caja Costarricense de Seguro Social (Costa
Rican Social Security Administration). This institution will be in charge of offering health
services to the whole population.
Costa Rica has also ratified diverse international instruments on human rights, such as the
Universal Declaration of Human Rights, the International Pact of Economic, Social and
Cultural Rights, the American Convention on Human Rights, also known as the Pact of San
José, and the Convention on Children’s Rights (see Table 2). Costa Rica has not only
incorporated several international level agreements in its juridical system, but has also
designed the mechanisms to enforce them by establishing institutions where people are able
to defend their rights against any type of violation. The Constitutional Court and the
Ombudsman's Office are two examples of where the people can go to defend their basic
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rights. Mechanisms also exist to guarantee appropriate care for patients without any
restriction, and regarding other fundamental rights, such as the right to life.
Web link: 1949 Constitution updated through 2001 Reforms
ARTICULO 7. Los tratados públicos, los convenios internacionales y los concordatos,
debidamente aprobados por la Asamblea Legislativa, tendrán desde su promulgación o desde
el día que ellos designen, autoridad superior a las leyes.
ARTICULO 21. La vida humana es inviolable.
ARTICULO33.- Toda persona es igual ante la ley y no podrá practicarse discriminación
alguna contraria a la dignidad humana.
ARTICULO 50. El Estado procurará el mayor bienestar a todos los habitantes del país,
organizando y estimulando la producción y el más adecuado reparto de la riqueza. Toda
persona tiene derecho a un ambiente sano y ecológicamente equilibrado. Por ello, está
legitimada para denunciar los actos que infrinjan ese derecho y para reclamar la reparación
del daño causado. El Estado garantizará, defenderá y preservará ese derecho. La ley
determinará las responsabilidades y las sanciones correspondientes.
ARTICULO 73. Se establecen los seguros sociales en beneficio de los trabajadores
manuales e intelectuales, regulados por el sistema de contribución forzosa del Estado,
patronos y trabajadores, a fin de proteger a éstos contra los riesgos de enfermedad, invalidez,
maternidad, vejez, muerte y demás contingencias que la ley determine. La administración y
el gobierno de los seguros sociales estarán a cargo de una institución autónoma, denominada
Caja Costarricense de Seguro Social.
Article 7. Official treaties, international agreements and concordats that have been duly
approved by the Legislative Assembly shall, from the date of their promulgation or the date
designated by them, have precedence over laws.
Article 21. Human life is inviolable.
Article 33. All people are equal before the law and there shall be no discrimination against
human dignity.
Article 50. The State shall procure the greatest welfare of all inhabitants of the country,
organizing and promoting production and the most adequate distribution of wealth.
Every person has the right to a healthy and ecologically balanced environment, being
therefore entitled to denounce any acts that may infringe said right and claim redress for the
damage caused.
The State shall guarantee, defend and preserve that right. The Law shall establish the
appropriate responsibilities and penalties.
Article 73. Social security is established for the benefit of manual and intellectual workers,
regulated by a system of compulsory contributions by the State, employers and workers, to
protect them against the risks of illness, disability, maternity, old age, death and other
contingencies as determined by law.
The administration and direction of social security shall be entrusted to an autonomous
institution called Caja Costarricense de Seguro Social (Costa Rican Social Security
Administration).
Cos-1: Mrs Sidonia Vargas vs Hospital San Juan de Dios
Constitutional Court, File 2390- C- 94, 7 September 1994
Available at: http://www.poderjudicial.go.cr/scij/index_pj.asp?url=busqueda/jurisprudencia/jur_ficha_completa_sentencia.asp?nBaseDatos=1&nS
entencia=97797
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Facts: A woman suffering from acute leukaemia and diabetes asked the San Juan de Dios
Hospital, where she went periodically to get medical attention, to provide her with the
necessary medicines so that she could administer them herself at home. The hospital refused
to provide the medicines for safety and administrative reasons, and because its own query to
the National Health System to permit reimbursement of this type of provision had been
refused. Ms. Vargas filed an amparo in order to challenge this refusal, alleging a violation of
her right to health, related to her right to life.
Decision: The Court ruled that, taking into account the importance of the right to life
inscribed in the Constitution, the rules on compulsory administration of such drugs in the
hospital would allow for exceptions. This case represented a possible exception when the only
way to provide the medicine was to do it in the patient’s home under the supervision of a
qualified doctor. By referring to the right to health as an essential component of the right to
life, the Court established a logical link between collective and individual rights. Finally, this
judgement illustrates a specific role of the right to have access to medicines and its practical
application.
Cos-2: Mr William García Álvarez vs Caja Costarricense de Seguro
Social
Constitutional Court, File 5778-V-97, 23 September 1997
http://www.poderjudicial.go.cr/scij/index_pj.asp?url=busqueda/jurisprudencia/jur_ficha_completa_sentencia.asp?nBaseDatos=1&nS
entencia=159805
Facts: An HIV-positive person challenged the social security institution for its refusal to
provide him with the needed antiretroviral treatment, as these medications were not included
in the official national drugs list. Antiretroviral treatments were not, at that time, considered
essential by Social Security, therefore, they were not included in medical treatments
delivered free of charge in public health facilities. This person was unable to afford these
medications in the private sector and challenged the refusal, basing his claim on the
imminent violation of the right to life. He also based his arguments on scientific and clinical
evidence of the effectiveness of the new medications.
Decision: Unlike a 1992 decision in which the Court dismissed a similar claim regarding
antiretrovirals, the Court ruled here in favour of the plaintiff and ordered the National Health
Care System to provide him with the medications free of charge. The judges based their
decision on the right to life and health as enshrined in the national Constitution and as
endorsed by Costa Rica in international treaties. The judges also noted that the Social
Security System and its functioning is one of the pillars of a democratic society and stated
that “If the right to life is especially protected in each modern State and with it the right to
health, any economic criteria that pretends to deny the exercise of those rights, has to be of
second importance […] without the right to life, all the remaining rights would be useless”.
Cos-3: Ms Vera Salazar Navarro vs Caja Costarricense de Seguro
Social
Constitutional Court- File n°01-009007-CO, 26 September 2001
http://www.poderjudicial.go.cr/scij/index_pj.asp?url=busqueda/jurisprudencia/jur_ficha_completa_sentencia.asp?nBaseDatos=1&nS
entencia=179548
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Facts: The applicant, suffering from multiple sclerosis (a chronic debilitating disease)
challenged the refusal of the Social Security Institution to reimburse the branded drugs
prescribed by her doctor and its proposition to replace them by a cheaper generic drug. The
applicant therefore argued that this replacement of drugs violated her right to health and
asked the Court to order the Social Security institution to provide her with the patented
drugs. The defendant's main argument was that the effects and composition of the generic
drugs were the same as the branded ones.
Decision: The Court held that, according to constitutional and international obligations of
the State in regard to the right to health, when a doctor prescribes a given drug to his patient,
it should be this exact drug and not another one that must be delivered by the Social Security
scheme. Rendering its decision in favour of the plaintiff, it considered that the replacement
of the drugs constituted a breach of her right to health.
Cos-4: Ombudsman for Mrs Ledi Orellana Martínez vs Caja
Costarricense de Seguro Social (CCSS)
Constitutional Court, File n°02-007871, 24 September 2002
Available at: http://www.poderjudicial.go.cr/scij/index_pj.asp?url=busqueda/jurisprudencia/jur_ficha_completa_sentencia.asp?nBaseDatos=1&nS
entencia=219018
Facts: Costa Rica’s Ombudsman lodged a protection writ on behalf of Mrs. Ledi Orellanan
Martinez, a woman affected by chronic myelocytic leukaemia, to whom a CCSS’dependent
hospital had denied the provision of needed medicines. This treatment was refused because
of its high cost.
Decision: The Court focused on the point that the initial decision not to provide the medicine
constituted a threat to the physical integrity of the plaintiff and a violation of the right to
health. The Court recalled other rulings on the grounds that the State was obliged to take any
possible and necessary measures to protect human life and dignity. It based its decision both
on international obligations of the State and on constitutional provisions regarding the right
to health connected to the right to life. It therefore ordered the Social Security System to
provide the plaintiff with the needed medications immediately.
El Salvador
Constitutional framework
In El Salvador there is a body of legal provisions which refer to health as the absence of
illness or disease and as a state of complete physical, mental and social well-being. These
provisions construe the right to health as an autonomous right. Moreover, in Salvadoran
constitutional law (Articles 65 and 66) health is a duty of the State; the State must endeavour
to promote its preservation and rehabilitation??? Sense?? Just put promote it and delete
rest?? YES PLEASEas a vital factor for the country’s development. PROPOSE: the State
must endeavour to promote health as a vital factor for the country’s development.
Regarding the domestic application of international law, Article 144 of the Constitution
prohibits the legislature from imposing legislation contrary to international treaties which
have been signed by the country. In case of conflict these treaties prevail over national
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legislation. Therefore, human rights treaties’ provisions with respect to the right to health
benefit from constitutional rank and are justiciable before courts.
The Constitution of El Salvador assigns specifically to the Supreme Court of Justice, and in
some cases to the appellate court, the responsibility for protecting the constitutional rights of
the inhabitants of the Republic. Any person may seek protection before the Supreme Court
on account of the violation of rights granted by the Constitution. The Law on Constitutional
Procedures governs the exercise of these rights. A writ of amparo is filed against any type of
action or omission on the part of any State authority that violates or impedes the exercise of
the rights granted to every individual under the Constitution.
Web link: 1983 Constitution, updated to 2000 Reforms
Chapter II Social Rights Section IV Public Health and Social Welfare
ARTICULO 65. La salud de los habitantes de la República constituye un bien público. El
Estado y las personas están obligados a velar por su conservación y restablecimiento. El
Estado determinará la política nacional de salud y controlará y supervisará su aplicación.
ARTICULO 66. El Estado dará asistencia gratuita a los enfermos que carezcan de recursos, y
a los habitantes en general, cuando el tratamiento constituya un medio eficaz para prevenir la
diseminación de una enfermedad transmisible. En este caso, toda persona está obligada a
someterse a dicho tratamiento.
ARTICULO70.- El Estado tomará a su cargo a los indigentes que, por su edad o incapacidad
física o mental, sean inhábiles para el trabajo.
ARTICULO 144.- Los tratados internacionales celebrados por El Salvador con otros estados
o con organismos internacionales, constituyen leyes de la República al entrar en vigencia,
conforme a las disposiciones del mismo tratado y de esta Constitución. La ley no podrá
modificar o derogar lo acordado en un tratado vigente para El Salvador. En caso de conflicto
entre el tratado y la ley, prevalecerá el tratado.
Article 65. The health of the inhabitants of the Republic is a public asset. The State and all
persons are obligated to care for its preservation and improvement. The State shall establish
national health policy and shall control and supervise its implementation.
Article 66. The State shall provide free assistance to the ill who lack resources, and to the
population in general when the treatment is an effective means of preventing the spread of a
communicable disease. In such cases, every person is obligated to submit to such treatment.
Article 70. The State shall care for the indigent who, because of age or physical or mental
disability, are unable to work.
Article 144. International treaties between El Salvador and other states or international
institutions, are laws of the Republic when they enter into force, in accordance with the
provisions of such treaties and of this Constitution. [National] law cannot modify or repeal
what has been agreed in a treaty that is in force. In case of conflict, the treaty will prevail over
national law.
Sal-1: Mr Jorge Odir Miranda Cortez vs la Directora del Instituto
Salvadoreño del Seguro Social
Constitutional Court, File n°348-99, 4 April 2001
Available at: http://www.jurisprudencia.gob.sv/jur_bs1.htm (click on buscar/propiedades then fill in the form with
the file number in the box headed "Expediente")
Facts: The plaintiff, an HIV-positive person, filed an amparo action in 1999 against the
Social Security Institution for refusing to provide him, with antiretroviral treatment free of
charge. He alleged that this general denial regarding antiretrovirals violated his right to life,
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right to health and his right to be free from discrimination because of his precarious financial
situation. Indeed, antiretrovirals were available at this time in El Salvador but patients had to
pay for hem.
Although the Supreme Court accepted this petition in June 1999, it continuously postponed
its decision. As a result, in January 2000, the plaintiff and 25 other people living with HIV,
supported by health advocacy NGOs, filed a complaint before the Inter-American
Commission on Human Rights, alleging the State’s failure to provide them with the
antiretroviral therapy. In February 2000, as a provisory measure, the Commission solicited
the Salvadoran State to comply with its regional obligations and to provide the needed
medications. It thus admitted the petition (Report No 29/01, March 2001,available at:
http://www.cidh.org/annualrep/2000sp/capituloiii/admisible/elsalvador12.249.htm)
However,
before starting the hearing procedures, presumably prompted by the precedent
recommendation, the Salvadoran Constitutional Court came to a decision.
Decision: The Supreme Court issued a ruling in favour of the plaintiff’s claim, ordering the
Social Security Institute to provide him the needed antiretroviral treatment. It based its
decision on the right to life and health as entrenched in the Constitution (Article 65) and in
international treaties ratified by El Salvador. As a consequence, the complaint before the
Inter-American Commission was rendered moot.
South Africa
Constitutional Framework
The Constitution of the Republic of South Africa, Act 108 of 1996, is sometimes regarded as
one of the most progressive constitutions in the world, with a Bill of Rights that is often seen
as second to none. Human rights are given clear prominence. They feature in the Preamble,
with its stated intention of establishing “a society based on democratic values, social justice
and fundamental human rights”. Among the rights stipulated, access to health care is
considered as one of the fundamental basic human rights. Section 27, para 1 guarantees the
right to "health care services, including reproductive health care." In addition, according to
Article 27 (2), the State is responsible for realizing the goals regarding public health
established in the Constitution.
The principle of equality and non-discrimination underpins the entire health system. Support
for this can be found in the White Paper for the Transformation of the Health System in
South Africa (April 1997) as well as the Promotion of Equality and Prevention of Unfair
Discrimination Act No. 4 of 2000.
These rights can be directly invoked before national courts, and the Constitution itself
requires the State to “respect, protect, promote and fulfil” these rights along with the
obligations from international treaties' provisions.
Constitution of the Republic of South Africa
Act 108 of 1996
Health care, food, water and social security
27. (1) Everyone has the right to have access to - health care services, including reproductive
health care; sufficient food and water; and social security, including, if they are unable to
support themselves and their dependants, appropriate social assistance.
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(2) The State must take reasonable legislative and other measures, within its available
resources, to achieve the progressive realization of each of these rights.
(3) No one may be refused emergency medical treatment.
Children
28. (1) Every child has the right - c. to basic nutrition, shelter, basic health care services and
social services;
Enforcement of rights
38. Anyone listed in this section has the right to approach a competent court, alleging that a
right in the Bill of Rights has been infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights. The persons who may approach a court
are:
- anyone acting in their own interest;
- anyone acting on behalf of another person who cannot act in their own name;
- anyone acting as a member of, or in the interest of, a group or class of persons;
- anyone acting in the public interest; and
- an association acting in the interest of its members.
International agreements
231. (4) Any international agreement becomes law in the Republic when it is enacted into law
by national legislation; but a self-executing provision of an agreement that has been approved
by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act
of Parliament.
Application of international law
233. When interpreting any legislation, every court must prefer any reasonable interpretation
of the legislation that is consistent with international law over any alternative interpretation
that is inconsistent with international law.
Saf-1: Treatment Action Campaign, Dr Haron Sallojee and
Children’s Rights Centre vs RSA Ministry of Health
High Court of South Africa, Transvaal Provincial Div., 12 December 2001
Available at: http://www.tac.org.za/
Facts: In a joint claim against the South African Ministry of Health, national health
advocacy NGOs and individuals challenged one of the most controversial actions of the
Government - to restrict the use of nevirapine, a medication aimed at preventing mother-tochild transmission of HIV. Their main argument was that the restriction on procurement of
this medicine, as it was only available in 18 public hospitals conducting a pilot study,
violated the right to health, to life, to equality and the right to human dignity. They also
noted that the Ministry's failure to conduct a programme promoting the availability of the
medicine was also a breach of its obligations under constitutional and international law. The
main argument of the defendant was that the effects of this medicine were not clearly
established at this time, and that the 18 pilot studies were a reasonable temporary solution.
Decision: Basing its decision on a precedent case involving similar issues (Grootboom vs
Soobramoney, October 2001), the Court stated that the restriction of availability of
nevirapine “is not reasonable and is an unjustifiable barrier to the progressive realization of
the right to health care” as enshrined into the Constitution. Therefore, the Court ordered the
Government and provincial health officials to make nevirapine available in all public health
facilities. It also solicited the Government to plan an effective and comprehensive
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programme to prevent mother-to-child HIV transmission, including the provision of
nevirapine.
Decision of the Constitutional Court: case CCT 8/02, 5 July 2002 available at:
http://www.tac.org.za/
Following this first decision, the Government decided to seek leave to appeal before the
Constitutional Court. In response, Treatment Action Campaign’s legal team filed an
application for an execution order arguing that an “irreparable harm” was imminent and that
“every day in which the implementation of paragraphs one and two of the order is delayed,
results in unnecessary infection and death of 10 children”.22 These applications were heard
together before the Pretoria High Court and 10 days later, the decision was made in favour of
TAC.
The Government decided again to seek leave to appeal, this time directly before the
Constitutional Court. For Treatment Action Campaign’s legal advisers, the Minister's
strategy was viewed purely an abuse of the legal process. On 5 July 2002, the Constitutional
Court handed down its final judgement on this case and stated that “ The policy of confining
nevirapine to research and training sites fails to address the needs of mothers and their
newborn who do not have access to these sites. It held that the restriction on nevirapine
availability was unconstitutional and ordered the Government “without delay” to assure the
availability of this medicine.
Venezuela
Constitutional framework
According to the 1999 Constitution, health is a "fundamental social right; an obligation by
the State to guarantee health as part of the right to life. " (Tit. 3, Article 83). Like the 1961
Constitution (Article 76), the 1999 Constitution contains a provision which defines health as
a right of immediate and actual effectiveness, supplemented by the obligation imposed on
the State to oversee the maintenance thereof.
This statement, together with the technical provisions on Public Health (Article 84),
constitutionally expresses the function of the Venezuelan State in the promotion and
protection of health and in the process of cure and rehabilitation. In addition, the right to
health is of the highest level in Venezuela’s legal order, through international treaties which
are considered to have constitutional rank.
In Article 27 it is stated that each citizen can file a claim for the protection of his
constitutional rights and guarantees before all courts. This constitutional protection named
tutela is the procedure used in the following cases involving treatment access and
constitutional guarantees.23
22
See Heywood M. Preventing mother-to-child HIV transmission in South Africa: Backgrounds,
strategies and outcomes of the Treatment Action Campaign case against the Minister of Health, South
African Journal of Human Rights, (2003)19, p278-315. Also, Annas G.J. The rght to health and the
nevirapine case in South Africa, New England Journal of Medicine, February 2003, Vol. 348:750-754.
23
See Torres M.A. Access to treatment as a human right: A discussion of the aspects of the right to
health under national and international law in Venezuela, L.L.M Thesis, 2000.
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Web link: 1999 Constitution
ARTICULO 19. El Estado garantizará a toda persona, conforme al principio de
progresividad y sin discriminación alguna, el goce y ejercicio irrenunciable, indivisible e
interdependiente de los derechos humanos. Su respeto y garantía son obligatorios para los
órganos del Poder Público de conformidad con la Constitución, los tratados sobre derechos
humanos suscritos y ratificados por la República y las leyes que los desarrollen.
ARTICULO23. Los tratados, pactos y convenciones relativos a derechos humanos, suscritos
y ratificados por Venezuela, tienen jerarquía constitucional y prevalecen en el orden interno,
en la medida en que contengan normas sobre su goce y ejercicio más favorables a las
establecidas por esta Constitución y la ley de la República, y son de aplicación inmediata y
directa por los tribunales y demás órganos del Poder Público.
ARTICULO 27. Toda persona tiene derecho a ser amparada por los tribunales en el goce y
ejercicio de los derechos y garantías constitucionales, aun de aquellos inherentes a la persona
que no figuren expresamente en esta Constitución o en los instrumentos internacionales
sobre derechos humanos.
ARTICULO 83. La salud es un derecho social fundamental, obligación del Estado, que
lo garantizará como parte del derecho a la vida. El Estado promoverá y desarrollará políticas
orientadas a elevar la calidad de vida, el bienestar colectivo y el acceso a los servicios. Todas
las personas tienen derecho a la protección de la salud, así como el deber de participar
activamente en su promoción y defensa, y el de cumplir con las medidas sanitarias y de
saneamiento que establezca la ley, de conformidad con los tratados y convenios
internacionales suscritos y ratificados por la República.
ARTICULO 84. Para garantizar el derecho a la salud, el Estado creará, ejercerá la rectoría y
gestionará un sistema público nacional de salud, de carácter intersectorial, descentralizado y
participativo, integrado al sistema de seguridad social, regido por los principios de
gratuidad, universalidad, integralidad, equidad, integración social y solidaridad. El
sistema público de salud dará prioridad a la promoción de la salud y a la prevención de
las enfermedades, garantizando tratamiento oportuno y rehabilitación de calidad. Los
bienes y servicios públicos de salud son propiedad del Estado y no podrán ser privatizados.
La comunidad organizada tiene el derecho y el deber de participar en la toma de decisiones
sobre la planificación, ejecución y control de la política específica en las instituciones
públicas de salud.
Article 19: The State shall guarantee to every individual, in accordance with the progressive
principle and without discrimination of any kind, not renounceable, indivisible and
interdependent enjoyment and exercise of human rights. Respect for and the guaranteeing of
these rights is obligatory for the organs of Public Power, in accordance with the Constitution,
the human rights treaties signed and ratified by the Republic and any laws developing the
same.
Article 23: The treaties, pacts and conventions relating to human rights which have been
executed and ratified by Venezuela have a constitutional rank, and prevail over internal
legislation, insofar as they contain provisions concerning the enjoyment and exercise of such
rights that are more favorable than those established by this Constitution and the laws of the
Republic, and shall be immediately and directly applied by the courts and other organs of
Public Power.
Article 27: Everyone has the right to be protected by the courts in the enjoyment and
exercise of constitutional rights and guarantees, including even those inherent individual
rights not expressly mentioned in this Constitution or in international instruments concerning
human rights.
Article 83: Health is a fundamental social right and the responsibility of the State, which
shall guarantee it as part of the right to life. The State shall promote and develop policies
oriented toward improving the quality of life, common welfare and access to services. All
persons have the right to protection of health, as well as the duty to participate actively in the
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furtherance and protection of the same, and to comply with such health and hygiene
measures as may be established by law, and in accordance with international conventions
and treaties signed and ratified by the Republic.
Article 84: In order to guarantee the right to health, the State creates, exercises guidance
over and administers a national public health system that crosses sector boundaries, and is
decentralized and participatory in nature, integrated with the social security system and
governed by the principles of gratuity, universality, completeness, fairness, social integration
and solidarity. The public health system gives priority to promoting health and preventing
disease, guaranteeing prompt treatment and quality rehabilitation. Public health assets and
services are the property of the State and shall not be privatized. The organized community
has the right and duty to participate in the making of decisions concerning policy planning,
implementation and control at public health institutions.
Ven-1: Mr. J.R.B. et al. vs Ministerio de la Defensa
Supreme Court, expediente n°14000, 20 January 1998
Available at: http://www.tsj.gov.ve/sentencias/spa/spa20011998-14000.html
Facts: This amparo action against the Ministry of Defence was introduced by an NGO
named ACCSI (Acción Ciudadana Contra el Sida) on behalf of four members of the army,
for violation of honour, private life, violation of the right to health and to the benefit from the
advancement of science and technology, and imminent violation of the right to life. The
applicants alleged discrimination because, as drafted soldiers, they were not entitled to health
care and prescription drugs, including the treatment of HIV/AIDS, although army officers
were.
Decision: The Court analysed the right to health as related to the right to life, and concluded
that: “the right to health implies a right to the protection of health and imposes upon the
State the duty to care for public health, mainly through the adoption of measures to prevent
the spread of disease”.
Therefore, the Court ordered the Ministry of Defence to solicit funds from the National
Congress to implement adequate preventive measures, as well as to provide antiretroviral
treatments, and more precisely to provide promptly needed medical treatments to the HIVpositive petitioners through their military social security scheme. Regarding collective
interest, the Court voluntarily extended its decision to all army members living in the same
circumstances as the plaintiffs, a point which constitutes a significant victory.
Ven-2: Mr N.A., Y.F. et al. vs Ministerio de Sanidad y Asistencia
Social
Supreme Court, expediente n°14625, 14 August 1998
Available at: http://www.tsj.gov.ve/sentencias/spa/spa14081998-14625.html
Facts: This case was the first in a series to be presented against the Ministry of Health,
which is in charge of social welfare and public health policies. The applicants challenged the
Ministry for the failure to ensure coverage for HIV/AIDS medications through the public
health care system for those who were not eligible under the social security scheme.
Moreover, they asked the Court to extend the effect of the decision to all patients in the same
circumstances as the petitioners and to issue recognition of “collective interest”.
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Decision: The Court ruled that the provision of antiretroviral treatment was a state obligation
according to Article 76 of the 1961 Constitution. It linked the fundamental duty of the State
to preserve life with the obligation to adopt public health measures against the HIV
epidemic. It based its decision on the interdependence of the right to life, to an adequate
standard of health, and to benefit from scientific advances. The Court did not honour the
requested extension of the decision to all HIV/AIDS sufferers, on the basis that an amparo
decision is limited to its petitioners.
Ven-3: Cruz del Valle Bermúdez et al. vs Ministerio de Salud y
Acción Social
Supreme Court, expediente n°15789, 15 July 1999
Available at: http://www.tsj.gov.ve/sentencias/spa/spa15071999-15789.html
Facts: This amparo action was brought by over 170 people living with HIV/AIDS, who
alleged that the Ministry failed to supply prescribed antiretroviral treatments. The petitioners
claimed a violation of their right to life, health, liberty and security of the person, equality
and benefits from scientific advancement. This plea, also supported by ACCSI, appeared to
be an exact copy of the first one, except for the identity of its petitioners. Once again, the
petitioners demanded the recognition of diffuse interest on the basis of equal treatment
before the law and judicial economy.
Decision: Although the claims regarding liberty, security of the person and equality were
dismissed, the Court ordered the Ministry to comply with its legal obligations and ordered it
to provide antiretroviral treatment for all people in the same circumstances as the petitioners.
In contrast to the first case, the collective interest was accepted by the Court. It thus stands
not only as the most rewarding legal strategy in terms of the recognition of the right of
access to treatments, but also as the most relevant court decision related to diffuse interests.
Ven-4: Mrs Glenda López et al. vs Instituto Venezolano de Seguros
Sociales
Supreme Court, expediente n°00-1343, 6 April 2001
Available at: http://www.tsj.gov.ve/decisiones/scon/abril/487-060401-00-1343.htm
Facts: In 1997, 29 people living with HIV/AIDS brought an amparo action against the
Venezuelan Social Security Institute (IVSS). They alleged that the IVSS had failed to
provide antiretrovirals in a regular manner, and that this institution also refused to cover the
costs of specialized laboratory tests necessary for the proper administration of combination
therapy. They based their claims mainly on international treaties and on the relevant
provisions of the national Constitution. This decision represents the final stage of a four-year
battle supported by national NGOs.
Decision: As in the Cruz del Valle Bermudez case (Ven-3) the Court decided to extend its
decision to all people in the same circumstances as the petitioners. It reaffirmed that the
IVSS had infringed the petitioners’ human rights and ordered the institution to provide, free
of charge, needed medications and to cover the costs of the necessary laboratory tests for the
treatment of HIV and opportunistic infections.
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4. Discussion
Important conclusions in the rulings
Although each case needs to be judged on its individual circumstances and merits, we have
tried to draw a few general conclusions from the group of rulings as a whole. References to
the individual cases mentioned in the text below can be traced back in Table 2.
Most rulings have led to better access to life-saving medicines
All 20 cases have led to new, continued or expanded access to treatment. This is no surprise
as this successful outcome was the original selection criterion for the cases. The majority of
cases (13/20, 65%) refer to HIV/AIDS. One of these refers to the prevention of mother-tochild transmission and all others to life-saving treatment with antiretroviral medicines. Four
other cases refer to life-saving treatments for leukaemia and renal transplantation. The other
cases refer to skin disease, multiple sclerosis and vaccination.
As 17 out of 20 cases (85%) concerned potentially life-saving medicines, they can be
considered as good examples of successful public health litigation. The fact that the
treatment was basically life-saving was probably an important factor in the outcome of the
case; in many cases the right to health was linked to the right to life.
In two of these 17 cases the judgement awarded medicines not included in the national
essential medicines list, which is used to define social security coverage. In one non-lifesaving case the principle of generic substitution was not supported by the court. The
potential negative effect of these four rulings on public health principles and financial
management of health care is discussed below.
International treaties create tate obligations and individual rights
Eight cases from five countries refer to international human rights treaties signed by the
state. These cases confirmed the important point that signing an international treaty creates
state obligations regarding individual rights of the population. In Argentina, which does not
have the right to health included in its Constitution, this was based on the provision that
international treaties enjoy constitutional rank. In Colombia, Costa Rica and Venezuela it
was based on the "double guarantee" (right to health in the Constitution and constitutional
rank for international treaties). In El Salvador an ongoing national case was accelerated
when a parallel case was filed before the Inter-American Commission on Human Rights,
with reference to regional treaties.
Individual cases can create group rights
In seven cases from four countries (Argentina, Colombia, South Africa and Venezuela) the
conclusions of the case has led to group rights, by extending the judgement (usually the
treatment awarded) to other individuals in similar situations. In three cases (Col-2, Col-5 and
Ven-1) these were originally filed as purely individual cases, not presented in the public
interest; only the last case was supported by an NGO. The other four cases leading to group
rights were specifically presented as group- or public interest cases.
Government policies can be challenged in court
In two of the cases leading to group rights, it was specifically confirmed that government
policies can be challenged in court. In Argentina the Court ordered a policy change resulting
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in antiretrovirals being made available to 15,000 people, and in South Africa the nationwide
expansion of a pilot programme to prevent mother-to-child-transmission of HIV.
The right to health is not restricted by limitations in social security
coverage, including limitation to medicines on the national list of
essential medicines
Four cases from Colombia and Costa Rica concluded that the right to health is not restricted
by limitations in social security coverage, for example by non-payment of contributions or by
the exhaustion of time-limited coverage. In both countries the right to health was also defined
as extending beyond the limits of the essential medicines list, which was used to define
coverage.
In two cases (Col-4, Cos-2) the judgement awarded life-saving treatment with antiretrovirals
when these were not listed on the national list of essential medicines and for that reason were
not given. From a public health point of view these cases have both a positive and a negative
side. It is good that they led to the availability of antiretroviral treatment for patients with
HIV/AIDS - and that is enough justification. However, the judgements could also be seen as
challenging the principle of a national list of essential medicines as the basis for the social
security scheme, and that would be a negative outcome. Here the principle of the list was not
challenged - only the fact that antiretrovirals were not included.
The negative aspect of these cases is that they could be interpreted as overruling the official
medicines list. In these two cases of life-saving treatment this is probably an acceptable and
necessary conclusion; the list was perhaps not adequate or up-to-date. However, it would be
worrying if the same judgement was expanded to any treatment, as this could seriously
undermine the principle of comparative efficacy, safety and cost-effectiveness in selecting
treatments for reimbursement, as used by the appropriate national drug selection committee.
There is a risk of "frivolous" court cases trying to force reimbursement of medicines which
had, on good medical and/or public health grounds, been excluded from reimbursement. The
question should be asked whether a civil court is the best place to judge or to appeal a
decision in such technical matters.
The same applies to Cos-4, in which life-saving treatment of leukaemia was awarded, having
been originally excluded from social security benefits because of its high cost. From a public
health point of view this interpretation of the right to health may have negative elements. As
long as the public budget for medicines is sufficient, there is no problem. However, most
public budgets are not infinite and at a certain point choices have to be made. It could
perhaps be preferable that a scientific committee, rather than a court of law, advises the
government on the efficacy, safety and comparative cost-effectiveness of treatment
alternatives, in order to ensure that public funds are spent in the most cost-effective manner.
However, a mechanism for appeal and redress should also be available.
The state has
disadvantaged
special
obligations
towards
the
poor
and
In two cases in Colombia (Col-2 and Col-5) state obligations towards the poor were specified.
In the first case the Court noted not only to the personal situation of the plaintiff, but also the
legal implications of broad constitutional principles, such as the definition of Colombia as a
social state, and the meaning of social justice and solidarity principles, which are also
considered in the Constitution. The Court declared that because the state has only limited
resources, it is not required to provide free health care to all. It ruled nevertheless that the
state is required by the rights guaranteed in the Constitution to provide special protection to
those with lack of financial resources. This case therefore constitutes an important precedent
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regarding the principle of non-discrimination in access to health care. The discrimination was
based on economic grounds and even if the state had only limited resources at its disposal, it
was still obligated to avoid this kind of discrimination.
In Col-5 the Court held that HIV/AIDS sufferers needed special protection by the State and
that the provision of free treatment for all HIV-positive people was a priority. The main
conclusion here is that in cases in which patients cannot afford the medicines they need, the
State has the duty to do all in its power to provide (permit sounds too much like the state
just allows someone else to sort out access KH access to health care.
Progressive realization of the right to health is not often used to
restrict access
In just one case (Col-2, already quoted above) progressive realization of the right to health is
mentioned as a potential reason to limit access to care. In this case the Court declared that
because the state has only limited resources it is not required to provide free health care to all
persons. It ruled nevertheless that the state is required by the rights guaranteed in the
Constitution to provide special protection to those who cannot afford to pay.
It should be noted that this study only identified and analysed successful cases, and that there
is an unknown number of cases in which progressive realization is used to restrict or refuse
access; these cases were not revealed by our search.
Success factors
Key provisions in the Constitution
Constitutional success factors in each of the seven countries are summarized in Table 4. All
countries except Argentina have a "double guarantee": international treaties rank higher than
national laws, and the right to health is mentioned in the Constitution. In Argentina the right
to health is not included in the Constitution and success is probably due to the constitutional
provision that international treaties rank higher than domestic law. This was specifically
confirmed in ruling Arg-3.
The Constitutions of Bolivia and South Africa are generally regarded as strongly based on
human rights principles. The Constitution of Bolivia is progressive in respect to the right to
health and its implementation, promotion and protection. The Constitution of South Africa
considers access to health care as one of the fundamental, basic human rights, and states that
the principle of equality and non-discrimination underpins the entire health system. This
Constitution requires the state to “respect, protect, promote and fulfil” these rights along with
the obligations from international treaties provisions.
THIS IS OK THEN AS STATED IN PARA 2. THANKS
Table 4
Constitutional success factors
Argentina
Constitutional provision that international treaties rank higher than
domestic law; access to health care is essential part of social welfare.
Bolivia
Right to health and its implementation, promotion and protection mentioned
in the Constitution; international treaties rank higher than national laws.
Colombia
Right to health mentioned in the Constitution and international treaties rank
higher than national laws.
Costa Rica
State obligations with regard to the availability of health services to the
whole population are mentioned in the Constitution; international treaties
rank higher than national laws.
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El Salvador
South Africa
Venezuela
Right to health mentioned in the Constitution and international treaties
ranking higher than national laws; regional human rights instrument
accelerated national case.
Detailed and extensive inclusion of right to health and to health care
services in the Constitution; international treaties rank higher than national
laws.
Right to health mentioned in the Constitution and international treaties rank
higher than national laws.
From this analysis is becomes clear that the following are obvious factors for success:
• Constitutional provision that international human rights treaties, when signed and
ratified by the state, enjoy constitutional status and rank higher than domestic laws (7/7).
• Right to health mentioned in the Constitition (6/7).
• State obligations with regard to health care services and social welfare defined in the
Constitution (3/7).
In all seven countries in this study one or more court rulings confirm that these constitutional
rights are indeed enforceable (key cases are indicated in Table 2). However, the number of
countries not included in our study where a similar constitutional framework exists but
where the enforceability has not been tested or confirmed is unknown.
Human rights treaties invoked
Eight cases from Argentina, Colombia, Costa Rica, El Salvador and Venezuela refer to the
international human rights treaties signed by the State; these are usually mentioned as a
group. In nearly all cases the reference to the treaties is used in a supportive role. This is
probably logical when the right to health and/or to health care is already enshrined in the
Constitution.
There are two examples where the international human rights treaties have really made a
difference. In Argentina the right to health is not mentioned in the Constitution, and could
not be invoked. In an important case (Arg-3) the Court listed the international treaties
(LEAVE THIS FIRST BIT OUTConvention on the Rights of the Child, Article 25 of the
Universal Declaration of Human Rights, Articles 10 and 12 of ICESCR and Articles 4.1 and
19 of the Pact of San José) Argentina had signed and used this as the main argument to rule
that life-saving treatment of a child with a blood disease could not be interrupted. Within our
group of cases this is the only clear ruling where international human rights treaties create a
state obligation in the absence of a constitutional right to health.
In El Salvador the same point was made, but it did not come to a full ruling. Here a rather
slowly progressing Constitutional Court case was accelerated by filing a parallel case before
the Inter-American Commission on Human Rights, alleging the State’s failure to provide the
plaintiffs with antiretroviral therapy. As a provisory measure, the Commission solicited the
Salvadoran State to comply with its regional obligations and to provide the needed
medications. Before starting the hearing procedures, presumably prompted by the precedent
recommendation, the Salvadoran Constitutional Court came to its decision.
We conclude that human rights treaties usually constitute a supportive argument, in addition
to binding constitutional obligations; and that this supportive argument is most valid when
there is a constitutional provision that international treaties enjoy rank higher than domestic
law. However, the single case in Argentina shows that international human rights treaties can
also successfully be invoked in the absence of a constitutional right to health - but under
such circumstances the outcome of the case is probably much less secure.
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The right to health and the right to life
In 13 out of 20 cases (65%) and in all countries except South Africa, the right to health was
specifically quoted as related to the right to life. Logically, this argument was always linked
to cases of life-threatening disease, in which treatment was potentially life-saving. In nine
cases this was linked to HIV/AIDS, but it was also used in other life-threatening conditions
such as leukaemia and renal transplantation. In non-life threatening conditions more general
arguments such as human dignity and physical integrity were used.
On the basis of the above it seems a good approach, in case of life-threatening conditions
such as HIV/AIDS, to invoke the right to life besides the right to health, provided this is
mentioned in the Constitution.
Acquired rights; non-interruption of treatment
In 4 out of 20 cases (20%) acquired rights are quoted as a reason not to stop treatment. In
three cases (severe congenital neutropenia in a child and two cases of HIV/AIDS) the
argument of acquired rights was used by the plaintiff, when social security rights ran out
after a certain period of treatment. It was also used when social security reimbursement of
treatment of a chronic skin disease was interrupted because the employer had failed to pay
the contribution.
The general conclusion seems to be that the right to health cannot be restricted by legal,
financial or administrative restrictions in the social security coverage. Indeed, the coverage
of truly life-saving treatment should probably be life-long and not subject to a maximum
period. In that sense the rulings have redressed an unjust situation.
Non-discrimination
Non-discrimination was evoked in 5 out of 20 cases (25%), in three cases together with
arguments of social justice. Non-discrimination is included in many national constitutions
and seems to have provided a strong basis for many of these rulings. It is surprising to note
that it was only mentioned in a quarter of successful judgements. One possible explanation is
that, although non-discrimination may have been used by the plaintiff, the judges did not
choose to pursue that line of argument for fear of creating undesired precedents in other
areas.
In the three cases from Colombia non-discrimination was used in an economic context,
confirming a special state responsibility towards the poor and disadvantaged when resources
are insufficient to ensure health care for all citizens. In this approach non-discrimination was
used as an affirmation of social solidarity.
In two cases there was real discrimination between people in equal circumstances. In South
Africa there was discrimination between the few infected mothers who could receive
treatment to prevent mother-to-child-transmission of HIV in the 18 test sites, and the large
numbers of similarly infected mothers in the rest of the country who could not. In the
Venezuelan case (Ven-1) soldiers were not entitled to receive antiretrovirals while officers
were.
We conclude that non-discrimination is a potentially powerful argument when certain
treatments are inequitably available within a country, for example only in larger cities or in
certain types of hospitals, or for certain categories of people only. In an economic sense nondiscrimination has been used occasionally to argue in favour of social solidarity and state
obligations towards the poor and disadvantaged.
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Involvement of public-interest NGOs
In 7 out of 20 cases (35%), extensive support was given by national public interest NGOs.
These cases are among the most important and far-reaching. For example, this group
includes the two cases in which it was officially confirmed that government policies can be
challenged in court. Several NGO-supported cases have led to group rights.
The first NGO-supported case took place in 1995 in Colombia (Col-4). An HIV-positive
individual challenged the public social security scheme (ISS) for its refusal to provide him
with antiretrovirals. The Court ruled that the State, through the ISS, had the obligation to
provide antiretrovirals although they were not included in the national list of essential
medicines. This case was part of a strong activist movement in Colombia. Active lobbying
led to a legal reform in 1997 by which antiretrovirals were included in the official medicines
list, and this ruling probably played an important part in this decision.
The first collective action brought by NGOs in Latin America took place in Argentina (Arg2). In 1996 eight NGOs working in the field of HIV/AIDS submitted a joint amparo against
the Ministry of Health for the failure to supply medicines to all people living with
HIV/AIDS, for which it was responsible under the Argentinean AIDS law. The Minsitry's
main arguments were that responsibility was at the provincial level and that the management
of the medicines programme should not be controlled by courts. This amparo action was
ratified in 72 hours and was confirmed in February 1998. In 2000, the Supreme Court
reconfirmed strongly that the Ministry was responsible for the effective compliance of the
AIDS programme. Fifteen thousand people immediately benefited from this constitutional
protection.
The most important point of this ruling and the great victory for the applicant was that the
Court ruled that the State, in applying its health policy and related budgetary measures, is
always subject to controll by the courts regarding its duty to promote, protect and fulfil the
right to health.
The case of South Africa is famous. In a joint claim against the Ministry of Health, national
health advocacy NGOs and individuals challenged the restriction of the use of nevirapine to
prevent mother-to-child transmission of HIV to 18 public hospitals conducting a pilot study.
The Court ruled that the restriction to 18 sites was an unjustifiable barrier to the progressive
realization of the right to health care as enshrined in the Constitution. This decision was
appealed twice by the Government but in July 2002 the Constitutional Court upheld that the
restriction was unconstitutional and ordered the Government to assure the availability of this
medicine without delay. This lawsuit followed five years of active lobbying by civil-society
organizations, and its outcome was a great victory for all activists. The case shows that
skillful litigation can force the government to implement constitutional promises. As with
case Arg-2, it also confirms that government health policies can be challenged in court.
The final example is found in Venezuela. Here an NGO named ACCSI (Acción Ciudadana
Contra el Sida) supported a carefully constructed series of four consecutive court cases
between 1998 and 2001. In the first case, on behalf of four soldiers, it asked the Ministry of
Defence for health care and prescription drugs, including HIV/AIDS treatment. The Court
analysed the right to health as related to the right to life, and concluded that: “the right to
health implies a right to the protection of health and imposes upon the State the duty to care
for public health, mainly through the adoption of measures to prevent the spread of
disease”. The Court voluntarily extended its decision to all army members living in the same
circumstances as the plaintiffs.
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The second case challenged the Ministry of Health for its failure to ensure coverage of
HIV/AIDS medications through the public health care system for those who were not
eligible under the social security scheme. The Court ruled that the provision of antiretroviral
treatment was a state obligation according to the Constitution and awarded the requested
treatment. However, it did not honour the requested extension of the decision to all
HIV/AIDS sufferers. A third case was therefore filed by over 170 people living with
HIV/AIDS. This plea was exactly the same as the previous one, except for the identity of the
petitioners. In this case the collective interest was accepted by the Court. In a final case, 29
people living with HIV/AIDS brought an amparo action against the Venezuelan Social
Security Institute alleging its failure to provide antiretrovirals in a systematic manner, as well
as the specialized laboratory tests necessary for the proper administration of combination
therapy. Again the Court decided to extend its positive decision to all people in the same
circumstances as the petitioners. These examples show that careful litigation, supported by
NGOs, can force the government to implement its constitutional and human rights treaty
obligations. In each case the state obligations with regard to the right to health were further
defined and expanded.
We conclude that legal, financial and moral support by NGOs can help to identify the legal
possibilities for litigation, can support plaintiffs in the presentation and defence of their case
and subsequent appeal procedures, can plan a series of cases to progressively define and
expand state obligations with regard to the right to health, and can also mobilize public
support and media interest for the case and the cause. In many of the most far-reaching cases
NGO support seems to have contributed to their final success.
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5. Recommendations
To ECOSOC and the UN Special Rapporteur on the Right to Health:
•
Use constitutional provisions on the right to health, the right to life, the right to nondiscrimination, constitutional rank for international human rights treaties, and state
obligations with regard to health care services and social welfare as an indicator of
government commitment and action towards the progressive fulfilment of the right to
health.
To WHO:
•
Make a detailed analysis of countries' constitutions to identify those with provisions on
the right to health, the right to life, the right to non-discrimination, constitutional rank for
international human rights treaties, and state obligations with regard to health care
services and social welfare. These countries would be logical ones for specific litigation
on access to essential medicines.
•
Continue an active search for further examples of successful litigation on access to
essential medicines. Use this information to support Member States in creating a
supportive environment for the progressive fulfilment of the right to health in line with
the international human rights treaties they are party to. The information can also support
the responsible use of legal redress mechanisms.
•
To national governments:
•
Ensure constitutional provisions on the right to health, the right to life, the right to nondiscrimination, constitutional rank for international human rights treaties, and state
obligations with regard to health care services and social welfare; and create the
necessary legal instruments for their implementation and enforcement.
To national NGOs:
•
•
•
•
•
Promote awareness of constitutional provisions on the right to health, the right to life, the
right to non-discrimination, constitutional rank for international human rights treaties,
and state obligations with regard to health care services and social welfare.
Prepare regular reports on the above for ECOSOC and the UN Special Rapporteur on the
Right to Health.
Assist individuals and patient groups in targeted litigation cases on the right to essential
medicines as part of the fulfilment of the right to health; use the information in this
document to to support the responsible use of legal redress mechanisms.
Support implementation of judgements, and monitor and report on changes that occur on
the ground as a result of this type of litigation.
43
Ruling for Access, version 9, 26 July 2004
6. Bibliography
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45