A justiciabilidade direta do direito à saúde : análise dos fundamentos da Corte Interamericana de Direitos Humanos para tutela do direito à saúde.

Abstract

The Inter-American Human Rights System, having as its main normative the American Convention on Human Rights, protects not only civil and political rights, but also economic, social and cultural rights. Despite the fact that the right to health is not expressly provided for in the American Convention, there is only a mention of the progressive development of this social right. From this, it is necessary to analyze the foundations present in the judgments of contentious cases of the Inter-American Court of Human Rights in relation to the right to health as an autonomous and justiciable right. of the right to health - as part of the DESC (Economic, Social, Cultural Rights) -, based on article 26 of the American Convention on Human Rights? For this research, the deductive method, the analytical procedure and the bibliographic and jurisprudential research technique were used, starting from the analysis of the judgments of the contentious cases of the Inter-American Court of Human Rights in the period between 2017 and July 2020. This work is linked to the research line of Contemporary Constitutionalism, and this phenomenon seeks to understand the legal guarantees consolidated in the Constitution, based on a plurality of norms that are characteristic of a complex and modern society. In this sense, understanding how a norm external to the national legal system such as the American Convention on Human Rights can produce effects in Brazil from the protection of human rights is extremely relevant, given that the judgments of the inter-American court called Inter-American Court of Human Rights imposes a binding character on the condemned State. This dissertation is linked to the research area of Professor Post Doctor Clóvis Gorczevski, considering that the professor studies the limits of action of the Inter-American Court of Human Rights, it is also linked to the research area of Professor Post Doctor Rosana Helena Maas, as he studies the right to health in the Inter-American Court. This research was carried out with the support of the Coordination for the Improvement of Higher Education Personnel (CAPES), funding code 001. Four cases were found involving the right justiciability of the right to health, and the sentences were based on: the literal, systemic and teleological interpretation of Article 26 of the American Convention; in the derivation of the Charter of the Organization of American States in which the right to health derives from the economic, social, educational, scientific, and cultural norms contained in the Charter of the OAS; on the grounds of the Court that it would be carrying out an interpretation in accordance with the American Declaration; in the international and internal corpus iuris of each violating State; and, in the most recent decisions, the Inter-American Court bases the right to health as an autonomous right based on Article 10 of the Protocol of San Salvador.