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

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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
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Right to free education, participation in cultural life

What does the ICCPR say?

Theseincluderightsto
physicalintegrity,intheformoftherighttolifeandfreedomfromtortureand
slavery
libertyandsecurityoftheperson,intheformoffreedomfromarbitraryarrest
anddetention
Proceduralfairnessinlaw,rightstodueprocess,fairtrail,presumotionof
innocence
Individualliberty,intheformofthefreedomsofmovent,thought,conscience,
religion,speech,association,familyrights,righttoanationality,therightto
privacy
Prohibitionofanypropagandaforwar,ofnationalorreligioushatred,
incitementtodiscrimination,hostilityorviolencebylaw
Righttopoliticalparticipation,includingtherighttojoinapoliticalparty,right
tovote
Nondiscrimination,minorityrightsandequalitybeforethelaw

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.

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Health as a Human Right

Since then 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 noncitizens 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 healthrelated 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.

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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 womens
health status and needs.