Soledad García Muñoz

The COVID 19 pandemic is a test to the strength and capacity of current governments around the world, to respond to a grave public health crisis. This sad global event puts the protection of the wellbeing, health and integrity of all people, in the forefront of the agenda of States, of intergovernmental organizations and civil society. However, this crisis is rapidly showing the deep fissures of our social fabric; making it more obvious the immense disparities in and between our countries, which in its place, puts people in vulnerable situations in a special dangerous position.

Being the most unequal region in the world, this crisis in the Americas will undertake a major toll on the most vulnerable population. Particularly, those who are left without any type of health coverage and are unable to access the public health system, either because it is at capacity, or because there is none in place. Hence, this crisis will test the health not only of people but of entire societies and economies.

In this vein, the Inter-American Commission on Human Rights (IACHR) adopted on the 10th of April its Resolution (Resolution 1/20), on Pandemic and Human Rights. This historic document has been elaborated by the IACHR with the support of its two Special Rapporteurs. Specifically, the Office of the Special Rapporteur on Economic, Social, Cultural and Environmental Rights (REDESCA) contributed substantially in everything related to the right to health and other ESCER rights.

The resolution synthesizes the main obligations for States to observe, under the current legal framework of the Inter-American System in the context of the pandemic. Regarding the context, the Resolution recognizes “the pandemic poses even more significant challenges for the countries of the Americas, both in terms of health policies and measures, and in their economic capacities, to enable them to set in motion measures to address and contain the virus. These measures are urgently needed to protect their peoples under international human rights law adequately.”

With this, the IACHR, along with its REDESCA, aims to promote a policy framework that looks to guarantee to all the population, especially to those in a more vulnerable population, health as a fundamental right and a public good. This analysis includes considerations regarding the protection of health workers and other healthcare professionals and people working in essential industries. This decision, from the principal organ of the Organization of the American States (OAS), adds onto the ample existing legal authority that cover thi right. The American Declaration of Rights includes the right to health in article XI, and is also contained in the Protocol of San Salvador, in article 10; plus it is found in the Charter of the OAS and in the Social Charter of the Americas.

Finally, the Resolution is also building upon the current jurisprudence and case law developed by the Inter-American Court on Human Rights, were it has also established the autonomy of the right to health and has addressed on its direct justiciability based on article 26 of the American Convention on Human Rights. With this, REDESCA aims too also, further the development of new standards on the right to care in the Inter-American system and the pandemic undoubtedly requires rapid progress in that direction.

The resolution systematizes on how the elements of the right to health (accessibility, availability, acceptability and quality), will have to be assessed in the context of the present crisis, putting at the center the needs and rights of the more disadvantage people and groups. As well, as it has been expressed by the United Nations Committee on Economic, Social and Cultural Rights, the complete protection of health workers, constitutes part of the complete guarantee of the right to health. Thus, the State must ensure not only that all health workers are equipped with the appropriate protection, but also that there are legal protections in place against discrimination, intimidation or any general harassment towards the integrity and work stability of health workers and professionals.

Beyond this step, as it was mentioned in the beginning, this crisis is also tackling the capacity of the social and economic response from States. Recognizing this, the Resolution states “that the countries of the hemisphere have recognized the great importance of the protection of economic, social, cultural and environmental rights as an essential condition for democracy, the rule of law, and sustainable development and that health is a human right recognized in the international human rights body of laws.” Later on it has established that as part of the action undertaken by the State should be focused on the complete protection of  “the human right to health and its basic social determinants, which are related to the content of other human rights such as the right to life and personal safety, and other economic, social, cultural and environmental rights, such as access to drinking water, nutritious food, access to means of cleaning, adequate housing, community cooperation, mental health support, and integration of public health services”.

In this sense, the IACHR, along with REDESCA, looks to put into the center of the public policy agenda of the American hemisphere; the response to the pandemic as an issue that has to be addressed focusing on human rights, gender equality and intersectionality. Hence, the resolution highlights the importance of keeping in mind that this public health crisis is questioning the societal models that favor privilege and do not protect those who are more exposed to the violations of their most basic dignity. This makes urgent the need to take innovative social measures and redistributive fiscal policies, along with a deep reflection on the relationship we as societies have with nature and the exploitation of its resources.

To close, the resolution also calls for the cooperation amongst all actors, and especially amongst States, to look for immediate answers on how to address this situation. Hence, from REDESCA we will continue contributing to the work of the Commission, through its Rapid and Integrated Response Coordination Unit (SACROI) COVID-19 and the Inter-American System mechanisms, seeking to strengthen the standards and measures for the protection of the right to health and other economic, social, cultural and environmental rights in their indivisibility and interdependence with all human rights. Faced with this pandemic, the affirmation of human dignity and universal rights, is an essential vaccine against the impact of inequalities and social injustices affecting the most excluded sectors of our societies.

Soledad García Muñoz, Special Rapporteur on Economic, Social, Cultural and Environmental Rights (REDESCA). The REDESCA is an autonomous office of the IACHR and was especially created in 2017 to brace the Commission’s compliance with its mandate to promote and protect economic, social, cultural, and environmental rights in the Americas. Twitter: @DESCA_CIDH.

The Special Rapporteur acknowledges the valuable support of the consultant, Daniel Noroña, in preparing this note.

*The translation into English is the responsibility of the author.