By: Edward Pérez (*)
The following article is meant to serve as an introduction into the relationship between public policies and human rights. During the following weeks and months, I aspire to address several concerns regarding human rights standards and their incorporation into public policies, as well as in the effects of public policies in the realization (or not) of human rights. It must be stated that this is not a legal paper, but a brief and informal approximation to the matters I attempt to address.
Human Rights are generally understood as inalienable rights of any individual. They are conceived as rights an individual has just for being a person. Human Rights require both inactions and actions from all State institutions, regardless of whether they are national or regional, or if they form part of the Executive, the Legislature or the Judiciary.
Despite the fact that human rights were originally conceived as negative obligations of the State (spaces reserved to the individual, where the State should not interfere), the development of human rights law has led to understand that all rights also have a positive dimension, inasmuch States must proceed to actively adopt measures towards the realization of those rights. For instance, the prohibition of slavery or of torture requires States to enact legislation towards prohibiting and sanctioning those rights. Likewise, guaranteeing free and fair elections require States to adopt measures to assure that the electoral processes are satisfactorily realized, in a timely basis, in accordance to the standards required human rights law and democratic values.
A practical approach to human rights requires a multidisciplinary approximation that requires not only understanding a legal framework, but also analysis from a political, economic and anthropological perspective, among others. In this sense, Courts that have found themselves with the duty to analyze and solve disputes regarding human rights law have had the necessity to address matters concerning the failure of effectively implementing policies that are necessary to realize human rights law. An example of the matter is the Gonzales Lluy case, adjudged by the Inter American Court of Human Rights, in which Ecuador failed to adequately supervise the quality of blood banks within public hospitals, which led to an under-aged girl being infected with HIV due to a transfusion. Likewise, in some cases, Courts have had the obligation to order reparations that require public policies themselves to realize human rights. For instance, in the Artavia Murillo case, the aforementioned Inter American Court ordered Costa Rica to incorporate within its public healthcare system provisions to allow infertile women to access procedures of In Vitro fertilization.
In the presented examples, the common aspect is that the Courts, within their reasoning, have found an unavoidable link within human rights and public policy: on one hand, the latter is necessary for the successful realization of the former. On the other hand, a policy that disregards these concepts may lead towards systematic violations of human rights.
State´s positive action through public policy is especially relevant when making reference to the rights of individuals within vulnerable groups. States are required to adopt measures to procure that people who integrate vulnerable groups, as indigenous peoples or children, are guaranteed their rights, despite the fact that they are in a more vulnerable position with regards to it. For instance, in the Xakmok Kasek case, the Inter American Court ordered Paraguay to adopt measures to assure food, water, and other services to an indigenous community that was arbitrarily removed from their ancestral lands, where they were able to obtain all of their needs through their traditional methods before their displacement.
Despite its importance, the link between public policy and human rights has not been studied in depth. The design and implementation of policies with objectives and indicators designed from a human rights perspective is still a novelty. However, human rights standards can become an important asset towards designing public policies. Upholding human rights would, then, become a duty not only of those who fight against human rights violations and that seek to prevent them, but also of those who are in decision making positions, who can preemptively adopt measures to make sure that the developed policies are in accordance to human rights law from the start.
In the next articles to be published, I will be addressing specific standards of human rights law that should be applicable to the development of public policies, in order to facilitate information for policy makers to incorporate human rights considerations within their ideas. I will then be studying particular policies in the Latin American region, relevant legal norms that contain human rights standards to be applied in public policies, and making proposals on the implementation of these standards in practice.
(*) The opinions expressed are personal, and do not necessarily reflect on the opiniones of the Inter American Court of Human Rights or its Secretariat. More information about this subject, contact to Edward Perez (firstname.lastname@example.org).