HUMAN RIGHTS AND PUBLIC HEALTH STRATEGIES

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SETTING THE STAGEWHY SHOULD ACCESS TO HEALTH
CARE FOR UNDOCUMENTED MIGRANTS BE A PRIORITY FOR
SOCIAL INCLUSION POLICIES?

• HUMAN RIGHTS AND PUBLIC HEALTH STRATEGIES
• Brussels, 28th June 2007

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Rights and Duties

• States duties are usually set out at three
  levels
• To respect States should not directly or
  indirectly deprive individuals of their rights
• To protect States should enforce respect for
  rights
• To fulfil States should create conditions in
  which rights can be realised

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Sources of the Right to Health

• World Health Organisation Constitution
• Universal Declaration of Human Rights (Art. 25)
• Everyone has the right to a standard of living
  adequate for the health and well-being of himself
  and of his family, including food, clothing,
  housing and medical care and necessary social
  services, and the right to security in the event
  of unemployment, sickness, disability, widowhood,
  old age or other lack of livelihood in
  circumstances beyond his control.
• Motherhood and childhood are entitled to special
  care and assistance.
• International Covenant on Economic, Social and
  Cultural Rights (Art. 12)

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CESCR Article 12

• 1. The States Parties to the present Covenant
  recognize the right of everyone to the enjoyment
  of the highest attainable standard of physical
  and mental health.
• 2. The steps to be taken by the States Parties to
  the present Covenant to achieve the full
  realization of this right shall include those
  necessary for
• (a) The provision for the reduction of the
  stillbirth-rate and of infant mortality and for
  the healthy development of the child
• (b) The improvement of all aspects of
  environmental and industrial hygiene
• (c) The prevention, treatment and control of
  epidemic, endemic, occupational and other
  diseases
• (d) The creation of conditions which would assure
  to all medical service and medical attention in
  the event of sickness.

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Additional Right-to-health Protections for
Marginalized Groups

• International Convention on the Elimination of
  Racial Discrimination (protections for racial and
  ethnic groups)
• Convention on the Elimination of All Forms of
  Discrimination against Women
• Convention on the Rights of the Child
• International Convention on the Protection of the
  Rights of All Migrant Workers and Members of
  Their Families

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States Reports on Treaty Implementation

• When a country ratifies one of these treaties, it
  assumes a legal obligation to implement the
  rights recognized in that treaty.
• It has to submit regular reports to the
  monitoring committee set up under that treaty on
  how the rights are being implemented. This system
  of human rights monitoring is common to most of
  the UN human rights treaties.
• To meet their reporting obligation, States must
  report submit an initial report usually one year
  after joining (two years in the case of the CRC)
  and then periodically in accordance with the
  provisions of the treaty (usually every four or
  five years). In addition to the government
  report, the treaty bodies may receive information
  on a countrys human rights situation from other
  sources, including non-governmental
  organizations, UN agencies, other
  intergovernmental organizations, academic
  institutions and the press. In the light of all
  the information available, the Committee examines
  the report together with government
  representatives. Based on this dialogue, the
  Committee publishes its concerns and
  recommendations, referred to as concluding
  observations.

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General Comments

• The Committees also publish their interpretation
  of the content of human rights provisions, known
  as general comments on thematic issues or methods
  of work. Relevant ones include for instance
• Human Rights Committee
• The Position of Aliens under the Covenant (GC 15)
• CERD
• Discrimination against Non-citizens (GC 30)

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CESCR Right to the Highest Attainable
Standard to Health

• CESCR GC 14
• The Covenant proscribes any discrimination in
  access to health care and underlying determinants
  of health, as well as to means and entitlements
  for their procurement, on the grounds of race,
  colour, sex, language, religion, political or
  other opinion, national or social origin,
  property, birth, physical or mental disability,
  health status (including HIV/AIDS), sexual
  orientation and civil, political, social or other
  status, which has the intention or effect of
  nullifying or impairing the equal enjoyment or
  exercise of the right to health.
• States are under the obligation to respect the
  right to health by, inter alia, refraining from
  denying or limiting equal access for all persons,
  including prisoners or detainees, minorities,
  asylum seekers and illegal immigrants, to
  preventive, curative and palliative health
  services abstaining from enforcing
  discriminatory practices as a State policy

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Consideration of Individual Complaints

• In addition to the reporting procedure, some of
  the treaty bodies may perform additional
  monitoring functions through three other
  mechanisms the inquiry procedure, the
  examination of inter-state complaints and the
  examination of individual complaints
  (communications) .
• Four of the Committees (HRC, CERD, CAT and CEDAW)
  can, under certain conditions, receive petitions
  from individuals who claim that their rights
  under the treaties have been violated.

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Treaty Monitoring Bodies the Missing Links

• CESCR
• No individual communications procedure, hence, no
  jurisprudence
• Very few references to undocumented migrants and
  access to health in state reports on
  implementation of Covenant
• Very little civil society information supplied to
  Committee

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Human Rights Mechanisms

• Special Rapporteur on the right to health,
  mandated to
• (a) gather, request, receive and exchange right
  to health information from all relevant sources
• (b) dialogue and discuss possible areas of
  cooperation with all relevant actors, including
  Governments, relevant United Nations bodies,
  specialized agencies and programmes, in
  particular the World Health Organization (WHO)
  and the Joint United Nations Programme on
  HIV/AIDS, as well as non-governmental
  organizations(NGOs) and international financial
  institutions
• (c) report on the status, throughout the world,
  of the right to health, including laws, policies,
  good practices and obstacles
• (d) make recommendations on appropriate measures
  that promote and protect the right to health

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Contours of the Right to Health

• Health care and the underlying determinants of
  health
• Freedoms and entitlements
• More specific entitlements
• Non-discrimination and equal treatment
• Immediate obligations
• Responsibilities of all actors
• Interdependence
• Limitations

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Other Relevant Mechanisms

• SR on the human rights of migrants
• Working Group on arbitrary detention
• Deliberation No.5 on Immigrants and
  asylum-seekers (2000)
• Special Rapporteur on adequate housing as a
  component of the right to an adequate standard of
  living
• Special Rapporteur on contemporary forms of
  racism, racial discrimination, xenophobia and
  related intolerance
• Special Rapporteur on trafficking in persons,
  especially in women and children
• Special Rapporteur on violence against women, its
  causes and consequences

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How to Send Information to the SR on the Right
to Health

• Mr. Paul Hunt
• SR on on the right of everyone to the enjoyment
  of the highest attainable standard of physical
  and mental health
•  c/o Office of the High Commissioner forHuman
  RightsUnited Nations Office at Geneva
• 8-14 Avenue de la Paix 1211 Geneva
  10SwitzerlandFax 41 22 917 9003
• e-mail urgent-action_at_ohchr.org

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Suggested Recommendations

• Supply information to relevant UN HR treaty
  monitoring bodies on obtacles to or violations of
  the right to health of undocumented migrants
  (when country reports come up for examination by
  the relevant UN monitoring committee)
• Support the drafting of an optional protocol for
  an individual complaints procedure to the ICESCR
• Submit information to the Human Rights Council
  Special Rapporteur on the right to health/SR on
  the HR of Migrants
• Advocate for a visit of the Special Rapporteur/s
  to your country
• Invoke international obligations in litigation
  before national tribunals
• Join the campaign for ratification of the CMW

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Mariette Grange ICHRP 2007 grange_at_ichrp.org