Skip to Content

Viceconti v. Ministry of Health and Social Welfare - Poder Judicial de la Nación

Name of Case

Viceconti v. Ministry of Health and Social Welfare - Poder Judicial de la Nación

 

Keywords, Forum, Remainder of Citation, Context, On what breach of law was the case brought?, Process, Result of case, What has this case done to further the right to education? 

Keywords

health rights, positive obligations, domestic application of international law (monist system), constitutional law, national court, preamble, Argentina

 

Forum

Argentinian Federal Court of Appeals

Remainder of Citation

Causa no. 31.777/96; 2 June 1998

Context

During an outbreak of hemorrhagic fever, the government of Argentina had failed to take protective measures against the fever, including producing the Candid 1 vaccine and improving the ecological system that was facilitating the spread of the disease.

On what breach of law was the case brought?

Article 25 of the Universal Declaration of Human Rights provides that all persons have the right to an adequate level of life which secures as soon as his or her family, health and well/being and especially nourishment, clothing, housing, medical assistance and necessary social services.

Article 12 of the International Covenant for Economic, Social and Cultural Rights--which --established that the states should adopt an effective plan to ensure the right of all persons to enjoy the highest level possilbe of physical and mental health, and should take into account: the improvement in all aspects of the work hygene and of the environment, the prevention and treatment of epidemics, endemics, professionals and other nature and fight against them and the creation of conditions that secure medical assistance and medical services in the case of sickness. 

Note. The importance of these international law provisions is even more profound in Argentina as international treaties have been given constitutional hierarchy in the Argentinian Constitution. This is an example of a monist system.

Process

Mindful of the above, the complainant and the National Ombudsman filed an action seeking protection of the right to health.

Result of case

‘[The] pre-eminent objective of the Constitution, according to its preamble, is to obtain the general well-being, which signifies to say that the highest expression of justice is the social justice… that all and each one of its members participate with good spirits and materials of the civilization…. In addition, it signaled that the constitution has the principle that when there is doubt, favor the social justice and the law should be interpreted in favor of those applying with this interpretation they obtain or stretching to attain the well-being, that is the living conditions which is possible for human being to develop with his or her dignity.’

As the number of people at risk of contracting this serious disease was estimated to be 3.5 million, the Court noted that it was absolutely necessary to produce the Candid 1 Vaccine as swiftly as possible. It held that the government was legally obliged to intervene to provide health care when the health of individuals could not be guaranteed either by themselves or the private sector.  It ordered the state to manufacture the vaccine and to comply strictly and without delays with the schedule that had already been designed for such purposes by the Ministry of Health.

What has this case done to further the right to education?

This case is an example of a court ordering the government to do whatever necessary to adhere to a positive obligation. It should be noted that in the above case 3.5 million people were at immediate risk of contracting a severe disease. It could be difficult to show that a failure to fulfil the right to education could have such a disastrous immediate effect. However, it is no doubt arguable that the fulfilment of the right to education is a pre-requisite in achieving the sentiments of the preamble regarding social justice and living with dignity.

This case is a useful example of how the preamble of a constitution/law can be considered by a court when interpreting a law and also of how incorporation of treaties into a constitution (monist system) is a strong litigation tool.