Vindication of the right to health in the framework of progressive international obligations under the perspective of the Peruvian Constitutional Court

Abstract

The Inter-American Human Rights System has developed several international obligations that States must comply with in order to ensure minimum levels of protection of the right to health. Although these duties –of a general and specific nature– have been developed throughout the case law issued by the Inter-American Court of Human Rights, the problem resides not only in the difficulty of identifying the specific obligations that emanate from the mandate of progressiveness in health matters, but also in monitoring their compliance, which is not satisfied with the commitment contained in the Protocol of San Salvador to submit periodic reports regarding the progressive measures adopted at a national level. It is for this reason that this paper, based on an analytical-jurisprudential methodology, attempts to scrutinize the obligations derived from the progressivity clause: to ensure access to health systems and to guarantee that health services are provided according to the principles of availability, accessibility and quality. In addition, and in consideration of the fact that the fulfillment of these obligations requires an active intervention on the part of the State –whose realization depends largely on the design and execution of government policies–, it is also essential to analyze from the perspective of the Peruvian Constitutional Court the scope of the power of control and evaluation of government policies in application of the “deferent test”, by virtue of which the constitutional justice is competent to order the elaboration or reevaluation of public policies or even to declare a state of unconstitutionality.