Human Rights and Health FOCUS ON REFUGEES AND MIGRANTS
International Legal Framework of the Right to Health for Refugees • Several interrelated fields of international law are involved in discussions of the rights to health of refugees and internally displaced populations. The 2 most important are • Refugee law • General international human rights law • In each field, the body of law is made up of treaties, which create binding obligations for the countries that have ratified them.
REFUGEE LAW • The Geneva Refugee Convention requires countries to treat refugees lawfully staying in their territory the same as their nationals are treated with respect to social security schemes, including those covering maternity and sickness (Article 24(1) b). • For refugees who do not meet the criterion of "lawful stay" and for non-Convention refugees, UNHCR works to guarantee that they will be treated no worse than foreigners are usually treated by that state (Article 7(1)). • With respect to health, this can often mean little if any access to national health services.
General international Human Rights Law • Everyone has the Right to Seek and Enjoy in Other Countries, Asylum from Persecution. • Article 14, UDHR • http://www.un.org/en/documents/udhr/index.shtml#a14
What are Human Rights? • Human rights are legally guaranteed by human rights law, to protect individuals and groups against actions of the state that interfere with fundamental freedoms and dignity • Enshrined in the 1948 Universal Declaration of Human Rights (UDHR) • Human Rights encompass what are known as civil, political, cultural, economic and social rights that were codified in the following legally binding treaties (1966): • The International Covenant on Economic, Social and Cultural Rights (ICESCR) • The International Covenant on Civil and Political Rights (ICCPR).
What does the ICESCR say? • Part 1 (Article 1) recognises the right of all peoples to self-determination, • Part 2: Principle of "progressive realisation“ (Article 2-5). It acknowledges that some of the rights (for example, the right to health) may be difficult in practice to achieve in a short period of time, and that states may be subject to resource constraints, but requires them to act as best they can within their means • Part 3 (Articles 6 – 15) lists the rights themselves. These include rights to: • Work, social security, including social insurance,family life, adequate standard of living • Right to highest attainable standard to health • http://en.wikipedia.org/wiki/Right_to_health • Right to free education, participation in cultural life
What does the ICCPR say? • These include rights to • physical integrity, in the form of the right to life and freedom from torture and slavery • liberty and security of the person, in the form of freedom from arbitrary arrest and detention • Procedural fairness in law, rights to due process, fair trail, presumotion of innocence • Individual liberty, in the form of the freedoms of movent, thought, conscience, religion, speech, association, family rights, right to a nationality, the right to privacy • Prohibition of any propaganda for war, of national or religious hatred, incitement to discrimination, hostility or violence by law • Right to political participation, including the right to join a political party, right to vote • Non-discrimination, minority rights and equality before the law
Health as a Human Right • The “enjoyment of the highest attainable standard of health” has been recognised as a “fundamental right” since the adoption of the World Health Organisation (WHO) Constitution in 1946 and since then it has been recognised by various international human rights treaties. http://www.who.int/governance/eb/who_constitution_en.pdf
Health as a Human Right • Sincethen it has been recognised by various international human rights treaties e.g. ICESCR • The right to the highest attainable standard of health is a claim to a set of social arrangements - norms, institutions, laws, an enabling environment - that can best secure the enjoyment of this right
Other HR Instruments guaranteeing the Right to Health • The International Convention on the Elimination of all Forms of Discrimination December 21st , 1965 (entry into force January 4th , 1969) • The Convention on the Elimination of All Forms of Discrimination Against Women,December 18th, 1979 (entry into force September 3rd, 1981) • The Convention on the Rights of the Child November 20th, 1989 (entry into force September 2nd, 1990) • The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (entry into force July 1st, 2003)
What does the Right to Health Mean? • * The two main components are: 1. Elements related to “healthcare” 2. Elements concerning the underlying determinants of health which may include a healthy environment, safe drinking water and adequate sanitation, occupational health and access to health related education and information. • * Consensus among scholars that the meaning and scope of the right to health lacks conceptual clarity. This in turn hinders its implementation and the subsequent monitoring of states’ practices by international treaty monitoring bodies.
Question: Why is migrants‘ health an issue and why is it a human rights issue? • Migrants as a “vulnerable group” due to: • Bias against foreigners – stereotypes, racism, xenophobia • Under-representation in power structures • Perceived or de-jure distinctions between citizens and non-citizens can lead to the belief than only citizens have rights • Impact of the economic crisis and terrorist violence on social attitudes towards migrants and realisation of their rights
Migrants‘ vulnerability related to a number of barriers and problems which affect their enjoyment of the right to the highest attainable standard of health • Migrants may be disadvantaged and discriminated against in relation to health determinants and to accessibility to adequate health care services • Evidence of migrants‘ poorer health outcomes • Migrant workers frequently concentrated in 3-D jobs • Occupational health risks and injuries high in this context • Migratory or legal status may constrain or obstruct health service use • Undocumented migrants fear arrest or deportation
Migrants as “ rights holders” and States as “duty bearers” • Human rights are principally concerned with the relationship between the individual and the state • Governmental obligations with regard to human rights broadly fall under the principles of respect, protect and fulfill • International human rights instruments explicitly recognize that human rights, including specific health-related rights, apply to all persons including migrants, refugees and other non nationals. • Many provisions are recognized as applicable to all migrants, regardless of legal status.
General Comment No. 14 (May, 2000): Clarification of the scope and content of the right to health
General Comment No. 14 Issued May, 2000 • Provides direction for the practical application of Article 12 of the CESCR and outlines a monitoring framework. • http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En • It distinguishes between four essential features of health services: • * Availability • * Accessibility • * Acceptability • * Quality of health services
States’ Obligations to Respect the Right to Health • Particular attention should be paid to vulnerable and marginalized groups. General Comment 14 paragraph 34 specifies inter alia that states must: “refrain from denying or limiting equal access for all persons including prisoners or detainees, minorities, asylum seekers and illegal immigrants (emphasis added), to preventative, curative and palliative health services; abstaining from imposing discriminatory practices as a State policy; and abstaining from imposing discriminatory practices relating to women’s health status and needs.”