Authored By: Abhiya Khan
University of Nottingham
I. Introduction
In 1948, the United Nations adopted the Universal Declaration of Human Rights, which states that everyone has the right to a standard of living adequate for their health and well-being, including medical care.1 Today, many countries have failed to comply with these basic human rights, which has led to inadequate access to medical care. Many Americans cannot afford medical care, and Canadians often have to wait for essential healthcare treatments. Unfortunately, severe systemic implementation gaps persist across borders. International human rights remain a mere symbol unless backed by domestic incorporation, administrative implementation, and domestic oversight. This article examines three such gaps: the United States’ refusal to incorporate international health rights into its domestic law, the administrative barriers within Canada’s single-payer system, and the capacity rationing that has driven litigation such as Chaoulli.
II. Dualism in Market-Based Models: The American Medical Experience
Universal means something applies to everyone; yet when important issues must be addressed, the Universal Declaration of Human Rights serves as a moral guide. Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides that the states parties to the treaty recognise the right of every person to the highest attainable standard of physical and mental health.2 Over 100 countries signed the treaty, including the United States, which signed it under President Jimmy Carter in 1977. However, the Senate never ratified it, so the treaty is not legally binding domestically, although the United States, as a signatory, must refrain from acts that would defeat its object and purpose.3 This gave the United States a way out. Because the US operates under a dualist legal system, the international mandate of access to healthcare has no direct enforcement in its courts and legal system.
Similarly, the Constitution of the World Health Organisation (WHO) was signed in the aftermath of the Second World War. In essence, the WHO and the ICESCR share one fundamental goal: to acknowledge healthcare as a fundamental human right. In theory, making healthcare a fundamental human right is easy. Countries, including the United States, have signed the treaty issued by the World Health Organisation, prioritising the concept of health as a fundamental right. Key principles in the treaty include the idea that everyone has a fundamental right to the highest attainable standard of health.4
It is ironic that the treaty was signed in New York, in a country where the healthcare industry is privatised. Fewer than 49% of Americans can actually afford healthcare; around 2.8 million people cannot afford access to quality care or pay for essential prescriptions and visits.5 The refusal to accept international laws and signed treaties has created a major rift between domestic laws and global human rights declarations. By treating the healthcare industry as a market commodity rather than a basic human right, the United States falls short of the accessibility standards set out by the WHO and the ICESCR. In the American context, the international affirmations regarding healthcare are merely symbolic, as they fail to protect millions of people who are suffering from medical debt and being denied adequate medical care. Access to medical care is tied to employment, and even employed people may be unable to afford certain treatments. This has created a severe socio-economic divide in which the care a person receives depends heavily on how much money they have.
Perhaps it was better, then, for President Trump to withdraw the United States from the WHO in 2026, since it is clear that the US has no intention of following through on the agreement’s fundamental principles. The interesting question is why the United States would sign these treaties if it had no intention of incorporating them into its own domestic laws. One possible explanation is that it was purely to show the US’s willingness to build international connections without actually implementing or upholding these standards. Ultimately, for the US, domestic law comes above all international law, which is the heart of the issue, given that it has not implemented important international standards, leaving clear human rights infringements unaddressed.
III. Single-Payer System: Administrative Barriers
In comparison, it is interesting to see how countries such as Canada, under the Canada Health Act, show that eliminating financial barriers does not automatically grant a full right to health. Under the Canada Health Act 1985, federal funding requires provincial health insurance plans to satisfy the principle of universality.6 However, this principle applies only to those recognised as insured persons.7 The only way to access “free” healthcare is to be insured, and even with insurance, certain requirements must be met. Access to the universal healthcare system, which is funded in Canada through taxes, requires a valid health card.8 This “universal” healthcare system does not apply to undocumented residents, non-status migrants, or temporary visa holders, and some provinces even impose waiting periods before allowing new residents to receive coverage.
Canada is among the countries that signed the WHO Constitution and the ICESCR, yet the system still has administrative barriers. Under the ICESCR, accessibility requires non-discrimination, but Canada’s system requires insurance and a valid health card. Denying basic healthcare coverage during administrative waiting periods or on the basis of immigration status clearly violates the international treaties Canada has signed. Unlike the United States, Canada has ratified the ICESCR.9 Canada has faced legal challenges in the past over its failure to comply with the ICESCR. In the landmark case of Toussaint v Canada, an undocumented migrant was denied medical coverage and took the case to the Federal Court, arguing that this violated the right to healthcare under the ICESCR.10 While the courts ruled that international law can be used as a guide for interpretation, they still held that the ICESCR had not been implemented domestically and could not be used to support her claim.11
After the Canadian courts rejected her case, she escalated the matter to the United Nations, where the Human Rights Committee issued a landmark ruling finding that Canada had violated her right to life and her right to non-discrimination, under the International Covenant on Civil and Political Rights, by denying her access to essential healthcare.12 Despite this finding by the United Nations, the federal government continued to contest the claim, and when the matter reached the Ontario Superior Court of Justice, the judge dismissed the federal government’s motion to strike the lawsuit as a whole.13 The Canadian government has resisted expanding coverage, illustrating how dualist legal systems can ignore international law without domestic enforcement. These administrative barriers can lead to severe health declines, and Toussaint died before a conclusive judgment was reached. When undocumented residents cannot afford access to healthcare and are excluded from public safety nets, their care is delayed until it becomes completely life-threatening. Canada’s reluctance to implement and expand public healthcare coverage sustains this persistent dualist gap, in which treaties lack domestic enforceability.
IV. Capacity Rationing, Chaoulli and the Implementation Gap
Beyond administrative exclusion based on immigration status, countries like Canada and the UK struggle to maintain standards amid capacity rationing. A 2025 Canadian study reported that patients wait a median of 28.6 weeks between a referral from their family doctor and receiving treatment.14 Rising Emergency Department visits over the past couple of years have contributed to longer wait times, staff shortages and limited capacity.15 Canadian Emergency Departments have been unable to keep up with increased demand, which ultimately reduces the quality of care. The WHO Constitution is supposed to provide an equal opportunity for people to enjoy the highest attainable level of health.16 Yet patients face long waitlists for procedures, specialist consultations and other elective surgeries.
This constitutional tension reached a breaking point in Chaoulli v Quebec (Attorney General), where the Supreme Court of Canada struck down laws prohibiting residents from purchasing private health insurance for medically necessary services covered publicly.17 The Court held that, in the face of multi-month public waitlists, the prohibition violated patients’ rights to life and security of the person.18 In this case, the Court found that the prohibition violated the Quebec Charter of Human Rights and Freedoms, so the state was required to respond. However, while domestic courts viewed privatisation as a necessary safety net for delays, that response conflicts with international human rights principles. Under the ICESCR, access to healthcare needs to be non-discriminatory, and allowing wealthy patients to bypass waitlists creates financial inequalities.
When an international body such as the UN Human Rights Committee finds a violation, its decision can carry moral or political weight. Still, such a decision lacks direct judicial enforcement mechanisms in Canada. By allowing access to private medical care for surgery because of long wait times, this approach breaches the WHO Constitution and the right to the highest attainable standard of health. The Canadian government can, and often does, resist UN rulings without triggering domestic legal invalidation of its statutory schemes. Ultimately, Chaoulli shows that international human rights standards remain aspirational declarations unless implemented into domestic law: the Court resolved the dispute entirely under domestic charters, and the international right to health played no evident role.
V. Conclusion
The right to health is enshrined within Article 25 of the Universal Declaration of Human Rights, Article 12 of the ICESCR, and the Constitution of the WHO, yet it remains one of the most unfulfilled guarantees of international law. This article shows that the gap between international law and national reality is evident in market-driven systems like the United States and in single-payer frameworks like Canada. In the United States, non-ratification and a privatised market leave the right to health unprotected; in Canada, administrative exclusion and capacity rationing show that even ratification is insufficient without domestic enforcement. These international human rights treaties remain aspirational unless parties bridge the dualist divide. Realising healthcare as a fundamental human right requires more than a signature; it requires implementation through standards embedded in countries’ legal systems.
Footnote(S):
1 United Nations, “Universal Declaration of Human Rights” (United Nations, December 10, 1948) s 25 <WHO andhttps://www.un.org/en/about-us/universal-declaration-of-human-rights> accessed September 1, 2026.
2 United Nations, “International Covenant on Economic, Social and Cultural Rights” (OHCHR, December 16, 1966) <https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights> accessed September 3, 2026,, including the United States, had previously signed the treaty issued by the World Health Organisation, prioritising the concept of healprivatisedth as.
3 United Nations, “Vienna Convention on the Law of Treaties” (1969) 1155 Vienna Convention on the Law of Treaties <https://doi.org/10.2307/2199522> accessed September 3, 2026.
4 World Health Organization, “Constitution of the World Health Organization” (World Health Organization, 1948) <https://www.who.int/about/governance/constitution> accessed September 3, 2026.
5 Ellyn Maese, “U.S. Adults’ Ability to Afford Healthcare at a Five-Year Low” (Gallup.com, June 18, 2026) <https://news.gallup.com/poll/710942/adults-ability-afford-healthcare-five-year-low.aspx> accessed September 3, 2026.
6 Government of Canada, “Canada Health Act” (Justice.gc.ca, 2019) <https://laws-lois.justice.gc.ca/eng/acts/c-6/page-1.html> accessed September 4, 2026.
7 ibid
8 Government of Canada, “Health Care in Canada: Access Our Universal Health Care System – Canada.Ca” (Canada.ca,February6,2025) <https://www.canada.ca/en/immigration-refugees-citizenship/services/settle-canada/health-care/universal-system.html> accessed September 4, 2026.
9 Government of Canada, “Canada’s Appearance at the United Nations Committee on Economic, Social and Cultural Rights” (www.canada.ca, October 24, 2017) <https://www.canada.ca/en/canadian-heritage/services/canada-united-nations-system/reports-united-nations-treaties/commitments-economic-social-cultural-rights/canada-appearance.html> accessed September 4, 2026.
10 Toussaint v Canada (Attorney General) 2010 FC 810
11 ibid
12 Toussaint v Canada, UN Doc CCPR/C/123/D/2348/2014 (24 July 2018)
13 Toussaint v Canada (Attorney General) 2022 ONSC 4747
14 Mackenzie Moir and Nadeem Esmail, “Waiting Your Turn: Wait Times for Health Care in Canada, 2025 Report” (Fraser Institute, December 9, 2025) <https://www.fraserinstitute.org/studies/waiting-your-turn-wait-times-for-health-care-in-canada-2025> accessed September 5, 2026.
15 “Canadian Institute for Health Information (CIHI)” (Cihi.ca, 2026) <https://www.cihi.ca/en/emergency-department-wait-times-in-canada-insights-from-a-health-system-perspective> accessed September 5, 2026.
16 World Health Organization, “Constitution of the World Health Organization” (World Health Organization, 1948) <https://www.who.int/about/governance/constitution> accessed September 3, 2026.
17 Chaoulli v Quebec (Attorney General) 2005 SCC 35, [2005] 1 SCR 791.
18 ibid
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