The Committee affirmed the positive obligation of States to ensure that everyone has access to essential health care necessary to prevent foreseeable risks to life, regardless of migration status. Further, Canada must provide both a systemic and individual remedy, reviewing its national legislation to ensure that irregular migrants have access to essential health care and providing compensation to Nell Toussaint, the plaintiff or author, for the harm she suffered.
The UN gave the State 180 days to provide information evincing the measures taken to effectuate this decision and required the State to publish and widely disseminate the UN opinion. Human rights groups in Canada are pressuring the federal government to implement the decision. Nell Toussaint has suffered a number of severe health set-backs. She, however, remains resilient and hopes to be able to arrange community-based care. Her spirits have been raised by the international response to her victory.
This decision is the first time a UN human rights treaty body has considered a situation in which a person with irregular migrant status was denied access to essential health care necessary for the protection of life. The Committee also affirmed states must take positive measures to protect the right to life. The decision emphasized the interconnectedness of all human rights, in particular the relation between health care and the right to life. The decision therefore provides authority for advocacy for access to health care in all countries that have ratified the ICCPR, or which otherwise recognize the right to life and non-discrimination. The decision also provides authority for arguing that States have positive obligations in other areas linked to ESC rights, such as access to housing, food, water and sanitation, to challenge denial of access to essentials for the protection of life.
In addition, the Committee’s consideration of the legal opinions from Amnesty International and from a coalition of organizations coordinated by ESCR-Net is a helpful precedent in emerging practice at UN treaty bodies through which Committees can be provided with necessary expertise and argument from a range of sources. It also demonstrates the power of collective work by civil society organizations.
Finally, this decision can also be of assistance in applying the Committee’s new General Comment 36 on the Right to Life, recently adopted in October 2018. General Comment 36 also strongly underscores the indivisibility and interdependence of rights and strengthens the ability to challenge structural violations of the right to life arising from economic, social and cultural rights violations. For more details on the general comment and member contributions in shaping its content, please click here).
For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University and Social Rights Advocacy Centre (SRAC).
Last updated on 12 December 2018