A/HRC/4/28
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deportation of D. to St. Kitts would expose him to a real risk of dying under most distressing
circumstances and would thus amount to inhuman treatment”.64 The Court ordered that D.
should not be deported.65
80.
K.L. v. Peru concerned a 17-year-old Peruvian who was denied a therapeutic abortion.66
When K.L. was 14 weeks pregnant, doctors at a public hospital in Lima diagnosed the foetus
with anencephaly, a foetal abnormality that would endanger K.L.’s health if pregnancy
continued. Under Peru’s Criminal Code, therapeutic abortion is permissible when necessary to
safeguard the life or health of the woman. However, K.L. was denied a therapeutic abortion by
the director of the hospital. She was compelled to carry the foetus to term and forced to feed the
baby until his inevitable death several days after birth. According to K.L., Peru’s failure to
respond to the reluctance of some of the medical community to comply with the legal provision
authorizing therapeutic abortion violated the International Covenant on Civil and Political
Rights. The Human Rights Committee held that, by denying the complainant’s request to
undergo an abortion in accordance with the Peruvian Criminal Code, the Government was in
breach of its obligations under the Covenant.67 The Committee decided, inter alia, that the
Government must take steps to prevent the future occurrence of similar violations. The Special
Rapporteur adds that one way for the Government to conform to its existing obligations under
the Criminal Code is to provide clear, appropriate guidance to health professionals about when a
therapeutic abortion is lawful and should be available.
81.
In Yanomami v. Brazil, the applicants claimed that the construction of a highway and
exploitation of resources on their traditional lands, and the resulting damage to their environment
and traditional way of life, violated the American Declaration of the Rights and Duties of Man.68
They claimed that the road building displaced them from their ancestral lands and that many of
their people died from influenza, tuberculosis, measles, venereal diseases and other epidemics
arising from the project. The Inter-American Commission on Human Rights established a link
between environmental quality and the right to life, and held that the failure of the Government
to provide the Yanomami with an alternative site to live in amounted to a violation of their rights
to life, liberty and personal security. The Commission recommended that “the Government of
Brazil continue to take preventive and curative health measures to protect the lives and health of
Indians exposed to infectious or contagious diseases”.
2. Protect
82.
The duty to protect requires States to take measures that prevent third parties (e.g. private
companies) from interfering with the right to the highest attainable standard of health.69
83.
In Ratlam Municipality Council v. Vardi Chand, the Supreme Court of India held that
municipalities had a duty to protect the environment in the interests of public health.70 The
Court found that “pollutants being discharged by big factories … [are] a challenge to the social
justice component of the rule of law”. The Court found that the preservation of public health,
premised on the decency and dignity of individuals, was a non-negotiable facet of human rights
requiring State action.
84.
Another case with an environmental dimension is Social and Economic Rights Action
Center and Center for Economic and Social Rights v. Nigeria.71 Members of the Ogoni
community in Nigeria alleged that the military Government had violated their rights to health
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