di Mônia Clarissa Hennig Leal* e Fernando Roberto Schnorr Alves**
The direct justiciability of Economic, Social, Cultural and Environmental Rights has been recognised since the Chilean conviction in the Poblete Vilches case before the Inter-American Court of Human Rights. Thus, the work aims to answer the following question: how has the right to health, in cases in which the violation of Article 26 of the American Convention has been recognized, been dealt with by the Inter-American Court of Human Rights in the last three years (2024, 2023 and 2022)? The time frame seeks to analyse only the most recent cases and verify the evolution of understanding in relation to the Chilean conviction in 2018. To this end, the research will be built and elaborated using the inductive approach method, the analytical procedural method, as well as the bibliographic technique. An analysis will be made of the reasons behind the published decisions, but without ignoring the historical context which preceded the judgements selected. As a result, it is possible to see that the majority view adopted since 2018 (Case of Poblete Vilches et al v. Chile) has been maintained, even if not unanimously by the judges, ratifying a jurisprudence that assumes the direct justiciability of the right to health and its immediate applicability.
* With a Post-Doctorate at Ruprecht-Karls Universität Heidelberg (Germany) and a Doctorate in Law from the University of Vale do Rio dos Sinos – UNISINOS (with research carried out at Ruprecht-Karls Universität Heidelberg, in Germany). Professor of the Postgraduate Program in Law – Master’s and Doctorate at the University of Santa Cruz do Sul – UNISC, where she teaches the subjects of Constitutional Jurisdiction and Judicial Control of Public Policies, respectively. Coordinator of the Research Group Jurisdição Constitucional Aberta (Open Constitutional Jurisdiction), linked to CNPq. Productivity scholarship holder in CNPq research. Lattes: http://lattes.cnpq.br/6628165246247243. Orcid: https://orcid.org/0000-0002-3446-1302. E-mail: moniah@unisc.br.
** Lawyer. PhD Candidate in the Postgraduate Program in Social Rights and Public Policies at the University of Santa Cruz do Sul – UNISC, in the research line Instrumental Dimensions of Public Policies. PROSUC/CAPES scholarship holder, modality I. Guest researcher at the Max Planck Institute for Comparative Public Law and International Law with CAPES funding through the Programa Doutorado Sanduíche no Exterior (“Sandwich” Doctorate Program Abroad – PDSE). Master in the Postgraduate Program in Social Rights and Public Policies at the UNISC, in the research line Contemporary Constitutionalism. PROSUC/CAPES scholarship holder, modality II. Postgraduate in Public Law at the Federal Magistracy School in Rio Grande do Sul – ESMAFE. Graduated in Law from UNISC. Member of the research group Jurisdição Constitucional Aberta (Open Constitutional Jurisdiction), coordinated by Prof. Dr. Mônia Clarissa Hennig Leal. Lattes: http://lattes.cnpq.br/0483602345250103. Orcid: https://orcid.org/0000-0002-4714-7697. E-mail: fernandorsalves@hotmail.com.