Amparo action alleging lack of production of a vaccine. Direct application of right to health standards enshrined in international treaties. The role of the State as guarantor of health care services. Judicial control of budgetary allocations and execution.
Mariela Viceconte filed a collective amparo action seeking to force the Argentine State to produce the Candid 1 vaccine. Her case was based on her own right to health and that of other persons exposed to contracting Argentine Hemorrhagic Fever, including in Argentina approximately 3.5 million people. The action specifically alleged a violation of the obligation to prevent, treat and fight epidemic and endemic diseases arising from article 12.2.c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The most effective sanitary measure against the disease is to supply the Candid 1 vaccine, which is 95% effective and has been approved by the World Health Organization (WHS). The vaccine is an orphan drug, which means that its production is not profitable for drug manufacturers. The Court of Appeals found that the State’s failure to arrange the production of the vaccine was a violation of the right to health under article 12 of the ICESCR. Therefore, the Court stated the State had the obligation to manufacture the vaccine and ordered it to comply strictly and without delays with a schedule that had already been designed for such purposes by the Ministry of Health. The Court also asked the National Ombudsman to follow-up on the schedule.
Keywords: Viceconte, Mariela c. Estado Nacional (Ministerio de Salud y Ministerio de Economía de la Nación) s/ Acción de Amparo., Enforceability, ESCR, Domestic, International, Law
During the decision implementation process and until today, the Court of Appeals has been remarkably active, monitoring compliance of the measures ordered within the framework of the decision, as well as controlling the management and execution of the budget allocations aimed at producing the vaccine. Production is currently in progress: the vaccine has already been tested in animals and is now being tested in humans.
This case shows the positive role the Judiciary can play in monitoring public policies, as well as budgetary allocations and execution. The decision also reaffirms the State’s role as guarantor of the right to health when certain services or benefits are not profitable or convenient for private providers.
Claimant: Mariela Viceconte, supported by Centro de Estudios Legales y Sociales (www.cels.org.ar)
