A/69/299 courts have torn asunder the artificial division between the two sets of rights by developing a justiciable right to health through the recognition of dignity. For example, the Supreme Court of India found that to “enhance the dignity of the individual” the right to life should include the right to the basic necessities of life. 4 That right has itself become a stand-alone aspect of the right to health. The Inter-American Court of Human Rights views the right to life as containing a positive obligation to “generat[e] minimum living conditions that are compatible with the dignity of the human person”, which includes providing the underlying determinants of health for vulnerable groups. 5 10. The right to health imposes overlapping obligations of immediate effect on States. They include the immediate obligations of non-discrimination and to take steps towards the progressive realization of rights, the core obligation to ensure the minimum essential levels of the right and the obligations to respect and protect. Immediate obligations are outside the ambit of article 2 (1) of the International Covenant on Economic, Social and Cultural Rights. Core obligations are the minimum essential level of a right 6 and are not progressively realized. Duties to respect and protect are akin to obligations under the International Covenant on Civil and Political Rights to respect and ensure — because the duty to ensure includes the duty to protect 7 — which indisputably are justiciable. 11. These obligations of immediate effect may in fact be dependent on resources for their implementation. For example, States may not want to provide expensive medicine, but in cases of essential medicines, they are required to fulfil th is obligation. 8 Even if an obligation of immediate effect depends on resources, a State may not rely on the lack of resources as a defence or excuse for not fulfilling the obligation. 12. The inherent justiciability of these components of the right to heal th has been demonstrated by the decisions of regional and domestic courts. 13. Courts are experienced in adjudicating the immediate obligation of non-discrimination with regard to health. For example, in Eldrige v. British Columbia (Attorney General), the Supreme Court of Canada found that the Medical and Health Care Services Act discriminated against deaf and hard of hearing people because its lack of provision for sign language interpreters denied them equal benefits under the law. 14. As the United Nations High Commissioner for Human Rights noted in a report to the Economic and Social Council, retrogressive measures are presumptively a violation of the obligation to take steps towards the progressive realization of economic, social and cultural rights (E/2007/82, para. 19). States have the burden to demonstrate that retrogression is not a violation, making the adjudication necessary to determine whether a violation in fact occurred. Retrogression was assessed in decision No. 39/84 of 1984 of the Constitutional Court of Portugal in a case where the Government had attempted to repeal the law that established the National Health __________________ 4 5 6 7 8 14-59014 Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others, 1981, paras. 6 and 8. Yakye Axa Indigenous Community v. Paraguay, judgement of 17 June 2005, paras. 162-165. See Committee on Economic, Social and Cultural Rights, general comment No. 3 (1990), para. 10. Human Rights Committee, general comment No. 31, para. 8. Delhi High Court, Mohd. Ahmed (Minor) s. Union of India, April 2014, para. 68. 5/22