Transcript Document

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#a1
4
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, presumption 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
 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, Germany did not sign nor ratify it)
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
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
Underlying Determinants of Health
• ‘Underlying Determinants of Health’ are all those socio-economic
factors that affect conditions necessary for the realization of the
highest attainable standard of health.
Food and nutrition
Housing
Access to safe and potable water
Adequate sanitation
Safe and healthy working conditions
Healthy environment
Resource distribution
Gender differences
Violence and armed conflicts
Diseases
Health related education and information
Public Participation
Poverty
Unemployment
Essential Drugs
Hospitals and clinics
Trained medical personnel
competitive salaries
Right to Health as Freedoms and
Entitlements
• Freedoms include:
– right to control one’s health and body, including
sexual and reproductive freedom
– Right to be free from interference, such as the
right to be free from torture, non-consensual
medical treatment and experimentation
• Entitlements include:
– Right to a system of health protection which
provides equality of opportunity for people to
enjoy the highest attainable level of 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



Who’s Obligations?
 Art.2(1) ICESCR: Each State Party to the present
Covenant undertakes to take steps, individually
and through international assistance and cooperation, especially economic and technical, to
the maximum of its available resources, with a view
to achieving progressively the full realization of the
rights recognized in the present Covenant by all
appropriate means, including particularly the
adoption of legislative measures.
 Art.55 and 56 UN Charter: Role for the UN
 NGOs? Companies? Individuals?
Types of State’s Obligations
 Obligation to respect: States must refrain from
interfering directly or indirectly with the enjoyment
of the right to health
 Obligation to protect: States must take measures that
prevent third parties from interfering with right to
health guarantees
 Obligation to fulfill: States must adopt appropriate
legislative, administrative, budgetary, judicial,
promotional and other measures toward the full
realization of the right to health.
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.”
What is a Violation of States’ Obligations to
Respect the Right to Health?
• Violations are
committed when
State actions, policies
or laws are likely to
result in bodily harm,
unnecessary
morbidity and
preventable mortality
Violations of Obligations to Respect the
Right to Health
• The denial of access to health facilities, goods and
services to particular individuals or groups as a result
of de jure or de facto discrimination
• The suspension of legislation or the adoption of laws
or policies that interfere with the the enjoyment of any
component of the right to health
• The deliberate withholding or misrepresentation of
information vital to health protection or treatment
(General Comment 14 paragraph 50)
Conflicts Between Obligations and
Culture
• Obligations to respect and protect right to health may
bring about conflict with cultural and/or religious values.
– Obligation to respect right to health includes not
limiting access to condoms/contraceptives.
– Obligation to protect right to health includes
promoting use of condoms for controlling HIV/AIDS
– Many cultures and religious leaders prohibit use of
condoms/contraceptives (when fertility or chastity is
important, use linked to promiscuity and prostitution,
but Pope dropped ban in 2010 under certain
conditions)
Commitment to Improving Migrants’ Health

1.
2.
3.
4.
Priorities for action:
Monitoring migrant health – data standardization and comparability
Policy and legal frameworks - must respect migrants’ right to health
Migrant-sensitive health systems – culturally appropriate; enhance
capacity of health staff
Partnerships, networks and multi-country frameworks – ensure cross
border collaboration
Monitoring Progressive
Realization
The Basic Tools
•National health strategies should identify
appropriate right to health indicators and
benchmarks.
•Indicators are measurements of the different
dimensions of the right to health, e.g. Maternal
mortality rates and child mortality rates
•Benchmarks are targets in relation to an indicator,
that a State aims to achieve in a given period.
Human Rights Based Approach to Health
http://www.who.int/hhr/news/hrba_to_health2.pdf
• HRBA is an approach that:
– requires that special attention be given to
disadvantaged individuals and communities;
– requires active and informed participation of
individuals and communities in policy decisions that
affect them; and
– requires effective, transparent and accessible
monitoring and accountability mechanisms
• HRBA monitors not only health outcomes, but also
some of the processes by which they are
achieved.
Core Aspects of the HRBA elements
GOAL
GOAL
PROCESS
OUTCOME
GOAL of HRBA: All programmes, policies and
technical assistance should further the realization
of human rights
 If the right to health and other health-related human
rights are to be fully realized, policies and plans need to
systematically integrate and further these rights
 The four elements of availability, accessibility,
acceptability and quality (AAAQ) are essential to the
enjoyment of the rights to health
PROCESS of HRBA: Human rights standards and
principles guide programming in all sectors
 Participation in design, implementation and monitoring of
health interventions
 equality and non-discrimination (General Comment 20)
in distribution of provision of resources + health services
 Accountability: states must be transparent about their
decision making processes, actions and omissions
• These standards are to be integrated into all stages of
the health programming process: assessment and
analysis, priority setting, program planning and design,
implementation, and monitoring and evaluation
development of duty bearers to respect,
protect and fulfil the right to health
Respect: not to interfer directly of indirectly with the
enjoyment of the right to health e.g. refrain from limiting
access to health care services or marketing unsafe drugs
Protect: prevent third parties from interfering with
the right to health e.g. ensure that private companies
provide safe environmental conditions for their
employees and surrounding communities
Fulfil: adopt appropriate legislative, administrative,
budgetary, judicial, promotional and other measures to
fully realize the right to health
OUTCOME of HRBA: Focus on capacity development
of of rights-holders to claim their rights
• Rights holders: empowering individuals and
communities, particularly marginalized groups to
understand and claim their rights
 In order to do this they must be able to access
information, organize and participate, advocate for policy
change and obtain redress
Social Work, Health & Human Rights

A principal aim of social work is the meeting of human
need. The need for adequate health care is a
fundamental human requirement which can be
translated into a human right.

When assisting clients in the area of health care, social
workers are not just orientating themselves towards
meeting human needs, but also affirming peoples’ rights.

In this sense the defending and supporting of peoples’
access to adequate and appropriate health care is both
a human rights and a social justice issue.
Health and Human Rights “Work”: Three
Categories of Activity
• Legal category: pursuing legal accountability
through national laws and international treaty
obligations
• Advocacy category: using the language of rights to
draw attention to an issue, mobilize public opinion,
and advocate for change in the actions of
governments and other institutions of power
• Public health practice category: applying a human
rights framework to the design, implementation,
monitoring, and evaluation of programmatic initiatives
European Court of
Human Rights
is an supra-national Court established by the European
Convention on Human Rights. It hears applications alleging
that a contracting state has breached one or more of the
human rights set out in the Convention and its protocols. An
application can be lodged by an individual, a group of
individuals or one or more of the other contracting states.
Besides judgments, the Court can also issue advisory
opinions. It consists of 47 judges, one each from each of the
member states of the Council of Europe and resides in
Strasbourg, France
http://en.wikipedia.org/wiki/European_Court_of_Human_Rights
Human Rights Council
http://www.ohchr.org/EN/HRBodies/HRC/Pages/AboutCouncil.aspx
• „The Human Rights Council is an inter-governmental
body within the United Nations system responsible for
strengthening the promotion and protection of human
rights around the globe and for addressing situations of
human rights violations and make recommendations on
them. It has the ability to discuss all thematic human
rights issues and situations that require its attention
throughout the year. It meets at the UN Office at
Geneva.The Council is made up of 47 United Nations
Member States which are elected by the UN General
Assembly. The Human Rights Council replaced the
former United Nations Commission of Human Rights“
Special Rapporteur on the human rights of migrants
http://www.ohchr.org/EN/Issues/Migration/SRMigrants/Pages/SRMigrantsIndex.aspx
•
The mandate of the Special Rapporteur covers all countries, irrespective of whether a State has
ratified the International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families
•
His main functions are:
•
(a) To examine ways and means to overcome the obstacles existing to the full and effective
protection of the human rights of migrants, recognizing the particular vulnerability of women,
children and those undocumented or in an irregular situation;
•
(b) To request and receive information from all relevant sources, including migrants themselves,
on violations of the human rights of migrants and their families;
•
(c) To formulate appropriate recommendations to prevent and remedy violations of the human
rights of migrants, wherever they may occur;
•
(d) To promote the effective application of relevant international norms and standards on the
issue;
•
(e) To recommend actions and measures applicable at the national, regional and international
levels to eliminate violations of the human rights of migrants;
•
f) To take into account a gender perspective, give special attention to the occurrence of multiple
discrimination and violence against migrant women;
•
(h) To report regularly to the Council, and to the General Assembly, at the request of the Council
or the Assembly.
Special Rapporteur on the human rights of migrants
http://www.ohchr.org/EN/Issues/Migration/SRMigrants/Pages/SRMigrantsIndex.aspx
•
Who is it since 2011: Mr. François Crépeau (Canada)
•
•
How is he doing this?
•
He acts on information submitted to him regarding alleged violations of
the human rights of migrants by sending urgent appeals and
communications to concerned Governments to clarify and/or bring to their
attention these cases.
•
He conducts country visits (also called fact-finding missions) upon the
invitation of the Government, in order to examine the state of protection of
the human rights of migrants in the given country. The Special Rapporteur
submits a report of the visit to the Human Rights Council, presenting his
findings, conclusions and recommendations
•
He participates in conferences, seminars and panels on issues relating to
the human rights of migrants as well as issues press releases.
•
He reports to the Human Rights Council about the global state of
protection of migrants’ human rights, and the good practices he has
observed.
Human Rights Watch
• http://www.hrw.org/about
• „Human Rights Watch is one of the world’s leading independent
organizations dedicated to defending and protecting human rights.
By focusing international attention where human rights are violated,
we give voice to the oppressed and hold oppressors accountable for
their crimes. Our rigorous, objective investigations and strategic,
targeted advocacy build intense pressure for action and raise the
cost of human rights abuse. For more than 30 years, Human Rights
Watch has worked tenaciously to lay the legal and moral
groundwork for deep-rooted change and has fought to bring greater
justice and security to people around the world.“