Human Rights and Health

1. Human Rights and Health FOCUS ON REFUGEES AND MIGRANTS

2. 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.

3. 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.

4. 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

5. 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).

6. 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

7. 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

8. 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

9. 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

11. 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)

12. 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.

13. 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

14. 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

15. 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.

16. General Comment No. 14 (May, 2000): Clarification of the scope and content of the right to health

17. 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

18. 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

19. 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

21. Who’s Obligations? • Art.2(1) ICESCR: Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, 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?

22. 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.

23. 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.”

24. 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

25. 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)

26. 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)

27. Commitment to Improving Migrants’Health • 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

28. 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.

29. Human Rights Based Approach to Healthhttp://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.

30. Core Aspects of the HRBA elements GOAL PROCESS OUTCOME GOAL

31. GOAL of HRBA: All programmes, policies and technical assistance should further the realization of humanrights • 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

32. PROCESS of HRBA: Human rights standards andprinciples 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

33. OUTCOME of HRBA: Focus on capacity development of duty bearersto 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

34. 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

35. Social Work, Health & HumanRights • 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.

36. 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

37. 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

38. Human Rights Councilhttp://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“

39. Special Rapporteur on the human rights of migrantshttp://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.

40. Special Rapporteur on the human rights of migrantshttp://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.

41. 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.“