First, they are issuing guidance about the rights that require special attention in the state response. This focuses on the way that the rights of certain people or groups, such as indigenous peoples, persons deprived of liberty, and women, among others, may be at special risk during the pandemic. Second, in the most direct protective response to date, the IACHR and I/A Court have each issued protective measures for one group at heightened risk due to COVID-19. Third, the more concrete response in the longer term may be through the individual case system. The system’s experience in cases involving health and human rights, most directly HIV/AIDS, provides a basis to consider the scope and content of state obligations in the current pandemic.

In terms of guidance, the IACHR has published resolutions and held hearings and webinars. For example, its resolutions on the Pandemic and Human Rights in the Americas of April 10, 2020, and Human Rights of Persons with COVID-19 of 27 July 2020, focus on the need for states to respond to groups at special risk. This focus largely tracks the IACHR’s thematic rapporteurships, and considers the differentiated risk and impact for indigenous peoples and persons deprived of liberty, for example, and the way that restrictions on movement have led to a rise in domestic violence in many places. More recently the IACHR issued a “practical guide” on ensuring respect for those grieving and funeral rites for persons who have died in the pandemic.

The I/A Court has issued a Declaration laying out basic principles on human rights in this context, carried out webinars, and published an infographic laying out core principles about the right to health. The principles in the info graphic were developed in the cases Cuscul Pivaral v. Guatemala and Poblete Vilches v. Chile. On July 13, 2020, it held a virtual dialogue with the European Court of Human Rights and African Court of Human and Peoples’ Rights on COVID-19 and human rights.

In its press releases the IACHR has taken a stronger tone, calling out inadequate state response and calling for action to protect particular people or groups. Press releases have looked, for example, at high rates of COVID-19 in the indigenous population of the Amazonian region and Gran Chaco, with little or no access to culturally adequate medical attention and profound consequences across communities, especially those in initial contact or voluntary isolation. Some have focused on the situation in particular countries, such as the collapse of medical services in Venezuela; refusal of Nicaragua to accept the return of citizens waiting in dire conditions for re-entry; or of migrants in detention in the US and prisoners in Brazil with little or no access to information, testing and medical attention.

The most direct protective response to date has been the issuance of two measures of protection requiring specific, concrete action to safeguard the rights of particular people at urgent risk of irreparable harm. Such measures often aim to protect life and personal integrity, and have referred to the right to health and required access to medical care. Precautionary measures are exceptional: of the over 1000 requests in 2019, the Commission issued 74 measures. The I/A Court issues such measures in more limited circumstances, and they are even more exceptional. In 2019 it issued four provisional measures and rejected four others.

On July 17, 2020, the IACHR issued precautionary measures in favour of the Yanomami and Ye´kwana peoples in Brazil. The extensive scope of coverage is unusual. The beneficiaries number about 26,000 persons in 321 villages. Most are in recent contact with outsiders; some remain in voluntary isolation. The IACHR found it had been shown that this group had a history of high rates of respiratory infection and there had been a rapid rise in coronavirus cases, with deaths. Medical treatment was scarce, and when available, poor, with an absence of tests and treatment, as well as lack of protection for medical workers. The IACHR required the state to provide access to medical treatment from a culturally appropriate perspective. The state was required to consult the beneficiaries as to the measures to be taken and obtain their agreement.

The I/A Court granted provisional measures in favour of Jesús Tranquilino Veléz Loor and others held in migrant detention in Darién, Panama. Mr. Veléz Loor, who is Ecuadorean, had been the subject of an earlier case against Panama for human rights violations he suffered as a migrant detained in substandard conditions and deported in violation of due process. The provisional measures concern him and others detained in Darién. Migrants pass through Panama to Costa Rica, but with the pandemic the border had been closed. As of July, when the I/A Court held its hearing, there were 1500 migrants – men, women and children – held in a facility for 500. Conditions included lack of: ventilation, drinkable water, sufficient food, toilets, and showers. In May there had been 58 positive coronavirus cases; by the end of June the number of infections had jumped to 158. The I/A Court is generally very targeted when issuing such measures, but in this instance the required action is quite broad.

In the longer term, individual cases may help set out most concretely what individual rights require of the state in practice. While it will take time for these to work their way through the system, past cases demonstrate where the system stands in its approach to the rights to health, personal integrity and life, and how denial of these rights is often linked to discrimination. This can be seen by starting with the IACHR’s first case on human rights and HIV/AIDS, Miranda et al. concerning El Salvador, and moving forward to the I/A Court’s 2018 decision in Cuscul Pivaral et al. vs. Guatemala. The system went from focusing on the right to judicial protection to obtain access to medical treatment to focusing on access to medical treatment as a right and the basic standards it has to meet.

Cuscul Pivaral concerned 49 men and women, living in poverty, diagnosed with HIV from 1992 to 2004. They had pursued judicial action to obtain access to medical treatment, without effect. Twelve had died. Even the structure of the decision reflects advances in approach. It first analyses the right to health as autonomous and justiciable. It then considers discrimination, violation of the principle of progressivity, violation of the right to life and personal integrity, and finally, denial of justice. With respect to health, the focus is on the duty of the state to ensure access to essential services. The link between denial of care and discrimination based on poverty in the case is relevant to our understanding of the heightened risks of COVID-19 for those without resources. In Cuscul Pivaral, the I/A Court also gave attention to forms of intersectional impact – considering, for example, the situation of five women victims, living in poverty, who were pregnant when or after being diagnosed with HIV and received no medical attention.

In their work with the pandemic the IACHR and the I/A Court have emphasized that situations of exclusion and discrimination can lead to denial of access to essential medical care. Both are also working to require states to respond to the fact that restrictions put in place to confront the pandemic do not affect everyone in the same way. Access to information about the pandemic, its effects and medical responses also remains a critical concern moving forward.

Cite as: Abi-Mershed, Elizabeth. "COVID-19, Health and Human Rights: the Inter-American System’s Response", GC Human Rights Preparedness, 12 November 2020, https://gchumanrights.org/preparedness/article-on/covid-19-health-and-human-rights-the-inter-american-systems-response.html