Colisión de derechos en pandemia. Derecho a la salud y límites a la acción estatal

In contexts of epidemics/pandemics, health is a fundamental right and is understood as a core right that functions as an articulating axis from and towards which the actions of government bodies, primarily, and of other public and private actors, secondarily, are directed. The power of the State to legitimately invoke the protection of collective health as a ground for restricting certain rights and freedoms will inevitably produce a conflict in the exercise of other fundamental rights. In the light of this scenario, the aim of this paper is to analyze these collision dynamics. For this purpose, a bibliographic review of national and international sources, an exhaustive and articulated analysis and identification of the applicable international regulations, the scope of the relevant legal principles and the minimum non-derogable contents of the essential rights and freedoms was carried out that may be in dispute due to the preponderance of some over others, using the documentary method and a qualitative approach as a basis. The conclusion is that in the development of an epidemic/pandemic, the greater the threat to collective health and other closely related rights, the greater the role of the state in fulfilling its obligations as manifested in its political decisions and public policies. The state —as guarantor and servant of the respect and realization of fundamental rights and freedoms— should harmonize those which are in conflict along with a short, medium and long-term view and always guided by the principle of proportionality, in accordance with constitutional and conventional limits.