Judicial Review of The Right to Health and its Progressive Realisation: the Case of the Constitutional Court Of Peru

Illari Aragon Noriega

Abstract


Notions of justice have historically been attributed to the range of civil and political rights, most prominently set forth in the International Covenant on Civil and Political Rights (ICCPR). The ICCPR imposes upon states clear obligations to respect and guarantee these rights to everyone within their respective jurisdictions; with the result being that civil and political rights are unquestionably the subject of judicial adjudication at the national and international level. A somewhat different approach has been taken to economic, social and cultural rights, often referred to as second generation rights. These are often associated with ideas of 'aspirational' policy goals, rather than of rights that impose specific and judicially enforceable obligations. Nonetheless, in some jurisdictions, constitutional litigation has proved to be an effective avenue for the realization of economic, social and cultural rights, and particularly of the human right to health.
The purpose of this paper is to analyze the judicial review undertaken by the Constitutional Court of Peru of the human right to health, and particularly the notion of progressive realisation. Through interpretation carried out in four different cases, this national court has examined the scope and contours of the human right to health, analyzing elements of its normative content, and elucidating in concrete cases the often vaguely understood principle of progressive realisation. As will be demonstrated in this paper, the Peruvian Constitutional Court has contributed to the consolidation of the case for judicial enforcement of the right to health in domestic law, joining the efforts of a handful of other domestic courts in the world which, through innovative approaches, have taken steps forward in clarifying the content of this right and the parameters for its implementation in line with international human rights law.

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