This article has been written by Ms. Rahila Sharif, a Fifth-year student of Vivekanand Education Society’s College of Law, Mumbai.
ABSTRACT:
This article delves into the complex intersection of migration and healthcare rights, emphasizing the global significance of ensuring migrants and refugees have access to adequate healthcare. It explores the international legal frameworks, particularly the right to health, that underpin the rights of migrants, shedding light on their entitlements and freedoms. The health needs of migrants, often shaped by their diverse backgrounds and challenging journeys, are discussed, with a focus on mental health and social determinants. The article outlines international legal standards and the obligations of states in protecting and fulfilling the right to health. It addresses access to healthcare services, detailing obstacles and disparities, and highlights the impact of the COVID-19 pandemic on migrants’ health. The World Health Organization’s response to migration health rights is presented, emphasizing the importance of universal health coverage. The conclusion underscores the complexity of the migration and healthcare rights landscape and calls for concerted efforts at legal, societal, and institutional levels to ensure inclusivity and equity in healthcare systems for migrant communities.
KEYWORDS:
Migration, healthcare rights, right to health, international law, refugees, mental health, social determinants, COVID-19, World Health Organization, universal health coverage.
INTRODUCTION:
As humans, we are constantly concerned about our health and the health of people we love. Whatever our age, gender, socioeconomic status, or ethnic heritage, we view our health as our most fundamental and valuable possession. On the contrary, poor health can prevent us from going to work or school, taking care of our families, or fully engaging in community events. Similarly, if it meant that our families and we would have longer, healthier lives, then we would be prepared to make a lot of sacrifices. In a nutshell, health is frequently the first thing that comes to mind when we discuss well-being.
Everybody has the universal right to the best possible level of health, independent of their social or economic circumstances. It is protected by several national and international human rights treaties, various policy frameworks, and national constitutions. States are legally required, upon ratification of these documents, to protect everyone’s right to health inside their borders, without exception. One of the most fundamental and necessary prerequisites for living a dignified life and exercising other human rights is the right to health.
The right to health is a fundamental part of our human rights and of our understanding of a life in dignity. To use its full name, the right to the enjoyment of the highest attainable standard of physical and mental health is not a recent concept. Globally, it was initially expressed in the World Health Organization’s (WHO) 1946 Constitution, which states in its preamble that “a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity” constitutes health. In addition, the preamble notes that “every human being has the fundamental right to enjoy the highest attainable standard of health, without distinction of race, religion, political belief, economic or social condition.”
As part of the right to an adequate standard of life, health was also recognized in the 1948 Universal Declaration of Human Rights (art. 25). The 1966 International Covenant on Economic, Social, and Cultural Rights formally acknowledged the right to health as a fundamental human right.
Subsequently, the right to health or certain aspects of it, such the right to healthcare, have been acknowledged or included in various international human rights accords. All States are affected by the right to health since each one has ratified at least one international human rights treaty that upholds this fundamental freedom. Furthermore, States have vowed to uphold this right in international conferences, internal laws and regulations, and declarations made on a global scale.
Despite these universal provisions, migrants and refugees experience difficulty exercising their right to health. Impediments to the full enjoyment of the right to health not only negatively affect the treatment and diagnosis of existing conditions, but also exclude people with irregular migration status from information that affects their health and their ability to promote positive health and prevent illnesses, directly and indirectly affecting their physical and mental health. Not only does denying them access to healthcare services endanger their well-being, but excluding migrants from the healthcare system has a detrimental impact on national health goals and initiatives. It is possible for a migrant’s immigration status to restrict their rights and health care access. Nonetheless, in accordance with the 2030 Agenda for Sustainable Development, particularly with Sustainable Development Goal 3 (provide healthy lives and promote well-being for all at all ages), international law guarantees universal access.
Even if they are subject to different legal systems, migrants and refugees have the same rights to fundamental freedoms and universal human rights as everyone else.
Syria Arab Republic, Venezuela, Afghanistan, South Sudan, Myanmar, and Libya were the nations from which the most number of refugees fled in 2021; Turkey, Colombia, Uganda, Pakistan, and Germany were the countries that hosted a significant number of refugees. Over 4 million refugees from Ukraine have crossed borders into neighboring nations in the first five weeks since the conflict erupted on February 24, 2022, and many more have been forced to relocate within the nation.
The top five countries of origin for foreign migrants in 2020 were China, Russia, Syria Arab Republic, Mexico, India, and the Russian Federation. Since 1970, the United States of America has been the primary destination for international immigration.
In an era characterized by increased global migration, understanding and addressing the healthcare needs of migrants have become imperative. This article aims to shed light on the international legal frameworks that underpin the rights of migrants to health and their access to healthcare services.
RIGHT TO HEALTH:
Important aspects of the right to health –
The right to health is an inclusive right. The construction of hospitals and the availability of healthcare are commonly linked to the right to health. That being said, there is more to the right to health than this. While this is true, there is more to the right to health.
It consists of many different things that can support us in living a healthy existence. These are referred to as the “underlying determinants of health” by the Committee of Economic, Social, and Cultural Rights, which oversees overseeing the International Covenant on Economic, Social, and Cultural Rights. They include:
- Safe drinking water and adequate sanitation;
- Safe food;
- Adequate nutrition and housing;
- Healthy working and environmental conditions;
- Health-related education and information;
- Gender equality.
There are freedoms included in the right to health. Among these freedoms are the right to be free from torture and other cruel, barbaric, or humiliating treatment or punishment, as well as non-consensual medical treatment such as forced sterilization or medical experiments and research.
There are entitlements under the right to health which includes: The right to a health protection system that offers equality of opportunity for everyone to enjoy the best possible level of health; The right to disease prevention, treatment, and control; Access to essential medicines; Maternal, child, and reproductive health; Equal and timely access to basic health services; The provision of health-related education and information; Public participation in health-related decision-making at the national and local levels. All people must be able to access health services, products, and facilities without facing discrimination. One of the most important human rights principles is non-discrimination, which is also essential to exercising the right to the highest attainable standard of health.
All facilities, products, and services must be readily available, easily accessible, acceptable, and of high caliber. Goods, services, and facilities related to public health and healthcare must be sufficiently available throughout a State. In addition to being financially and non-discrimination-based, they must be physically accessible (within safe reach for all segments of the population, including children, teenagers, the elderly, migrants people with disabilities, and other vulnerable groups). The right to get, receive, and disseminate health-related information in an accessible format is implied by accessibility as well (for everyone, including those with disabilities). However, confidentiality of personal health information is unaffected. In addition to honoring medical ethics, the facilities, products, and services should be gender and culturally sensitive. Lastly, they need to be high-quality and suitable from a scientific and medical standpoint. This calls for a number of things, including qualified medical personnel, medications that have been approved by science and are not yet out of date, hospital supplies, proper sanitation, and safe drinking water.
Right to health in international human rights law:
International human rights law recognizes the right to the best possible level of health as a human right. The International Covenant on Economic, Social, and Cultural Rights states that everyone has the right to the best possible level of physical and mental health as a primary means of defending the right to health. Interestingly, the Covenant gives equal weight to mental and physical health—a subject that has often been given less consideration. Different approaches are taken to the right to health in later international and regional human rights accords. While some are applicable to all people, others focus on the human rights of certain groups, like women, children or migrants.
Furthermore, general remarks or recommendations regarding the right to health and health-related matters have been adopted by the treaty bodies that oversee the Convention on the Elimination of All Forms of Discrimination Against Women, the International Covenant on Economic, Social, and Cultural Rights, and the Convention on the Rights of the Child. These offer a comprehensive and reliable interpretation of the treaty terms. A number of conferences and declarations have also contributed to the clarification of various public health issues pertinent to the right to health and have reaffirmed commitments to its realization. Examples include the United Nations Millennium Declaration and Millennium Development Goals, the International Conference on Primary Health Care (which produced the Declaration of Alma-Ata), and the Declaration of Commitment on HIV/AIDS.
Numerous regional instruments, including the African Charter on Human and Peoples’ Rights (1981), the European Social Charter (1961, revised in 1996), and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, also recognize the right to health. Health-related rights such as the right to life, the ban on torture and other cruel, inhuman, and degrading treatment, and the right to family and private life are covered by the American Convention on Human Rights (1969) and the European Convention for the Promotion of Human Rights and Fundamental Freedoms (1950).
Subsequently, at least 115 constitutions recognize the right to health and/or health care. There are at least six more constitutions that outline obligations regarding health, such as the State’s need to create health services or allot a certain amount of money for them.
HEALTH OF MIGRATION IN AN INTERNATIONAL CONTEXT:
The health needs of migrants and refugees can differ from those of the host communities due to their various backgrounds. Migrants and refugees frequently originate from areas that have experienced natural catastrophes, war, conflict, environmental degradation, or economic hardship. They travel great distances, wear them out, and have limited access to food, water, sanitary facilities, and other necessities. This puts them at risk for food- and water-borne illnesses as well as communicable diseases, including measles. Due to their isolation, stringent entry and integration rules, and migratory experience, they may also be at risk for different noncommunicable diseases, unintentional accidents, hypothermia, burns, unintended pregnancy and delivery-related difficulties, and other noncommunicable diseases.
Due to lack of care throughout the voyage, migrants and refugees may arrive in the destination country with non-communicable diseases that are inadequately managed. For female refugees and migrants, maternity care is typically the initial point of contact with health services.
Because of their past traumatic or stressful experiences, migrants and refugees may also be more vulnerable to mental health issues. Many of them suffer from depressive and anxious feelings, hopelessness, trouble sleeping, exhaustion, irritability, anger, or aches and pains; however, most of them eventually get better from these symptoms of distress. They may also be more susceptible than the host populations to conditions like depression, anxiety, and post-traumatic stress disorder (PTSD).
Refugee and migrant health is also strongly related to the social determinants of health, such as employment, income, education and housing.
Addressing migration health is a necessary precondition to full realization of the benefits of migration for those who migrate and for both countries of origin and destination. Poor people are more prone to illness and disability, and sick people are more likely to fall into poverty. In order to give the impoverished people, the tools they need to escape poverty, good health is essential. Put another way, being well is a means to an end—health is not only a byproduct of progress. The fight for a more equitable and compassionate world revolves around the right to health, which is essential in combating poverty and attaining development.
There are an estimated 200 million international migrants in the globe today, according to the International Organization for Migration. Ninety million of them are migrant laborers, according to the International Labour Organization. The focus here is on migrants in host nations, although migration affects the right to health in both home and host countries. Their ability to exercise their right to health is frequently restricted just by virtue of their immigration, in addition to other issues like prejudice, hurdles arising from language and culture, or their status as legal immigrants. Undocumented or irregular migrants and those detained in detention are especially vulnerable to problems related to their status and circumstances, but many migrants will encounter similar challenges in achieving their fundamental rights, including the right to health. States have made it clear in national laws and before international human rights organizations that they are unable or unwilling to offer migrants the same protections as their own people. As a result, the majority of nations have limited their health-related duties to “essential care” or “emergency health care” for non-citizens. Health care workers frequently interpret these concepts independently because their meanings vary depending on the country. As a result, laws and practices could be biased.
According to Article 28 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, every migrant worker and their family is entitled to emergency medical treatment in order to preserve their lives or prevent irreversible harm to their health. Regardless of any irregularities in their stay or work, such care ought to be given. In addition to providing additional protections in the workplace, the Convention states that migrant workers must receive treatment no less favorable than that provided to citizens of the State of employment with regard to working conditions, including safety and health (art. 25).
In the general recommendations N° 30 (2004) on non-citizens and N° 14 (2000) on the right to the highest attainable standard of health, the Committee on the Elimination of Racial Discrimination and the Committee on Economic, Social and Cultural Rights emphasize that States parties must respect non-citizens’ right to an adequate standard of physical and mental health, including by not restricting or denying them access to preventive, curative, and palliative care. As some of the most vulnerable members of a community, sick asylum seekers or undocumented people should not be denied their human right to medical care, the Special Rapporteur on Health has emphasized.
In conclusion, the health rights of migrants are strongly linked to and reliant on their living and working circumstances as well as their immigration status. States should also take action to realize the rights of migrants to food, information, safe and healthy working conditions, adequate housing, liberty and security of person, due process, and freedom from forced labor and slavery in order to fully address the health issues that arise for them.
INTERNATIONAL LEGAL STANDARDS:
The World Health Organization’s (WHO) 1946 Constitution introduced the concept of the human right to health on a global scale, and the 1948 Universal Declaration of Human Rights included it in article 25. Since then, it has been included in a number of binding legal agreements. The United Nations (UN) International Covenant on Economic, Social, and Cultural Rights (ICESCR), which was established in 1966, has the most extensive guarantee of the right to health.
The right to health has been further elaborated and included in different international human rights treaties and its implications for specific groups and individuals such as:
Universal Declaration of Human Rights (UDHR):
The United Nations recognized the right to health as a fundamental human right in 1948 when they enacted the UDHR. The right to a living level sufficient for one’s health and well-being is emphasized in Article 25 of the UDHR.
Committee on the Elimination of Racial Discrimination (CERD):
The 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD) established the right to public health, medical care, social security, and social services as well as the prohibition of racial discrimination.
International Covenant on Economic, Social, and Cultural Rights (ICESCR):
The right to health is expounded upon in further detail in the 1966 ICESCR. Everyone has the right to the best possible level of bodily and mental health, according to Article 12 of the ICESCR.
Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW) :
Articles 25 and 28 of the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) address the rights of migrant workers to receive emergency medical care as well as equal treatment in the workplace with regard to health.
World Health Organization (WHO) Constitution:
The highest possible level of health is acknowledged as a fundamental right in the WHO Constitution. It highlights how crucial health is as a prerequisite for social and economic advancement.
Convention on the Rights of Persons with Disabilities (CRPD):
“The right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability” and the actions required to realize this right are included in the 2006 Convention on the Rights of Persons with Disabilities (CRPD) (Articles 25, 26).
STATE’S OBLIGATION TO PROTECT THE RIGHT TO HEALTH:-
Under International human rights law, the ratification of the UN treaties puts three kinds of obligations on states: the duty to respect, to protect and to fulfil human rights. With respect to the right to health, the Committee on Economic, Social and Cultural Rights (CESCR), has stipulated in its General Comment No. 14 (paras. 30- 33) that the obligation to respect binds states to refrain from obstructing the realisation of the right to health; the obligation to protect obliges states to take steps to prevent external actors from interfering with the Article 12 guarantees; and the obligation to fulfil requires states to introduce appropriate actions towards the full realisation of the right to health.
Numerous examples of state obligations to refrain from actions that would impede the enjoyment of the right to health—also referred to as negative rights—are provided by the CESCR. Among them was the obligation to prevent from restricting or denying anybody, including undocumented immigrants, equal access to (but not limited to)
According to General Comment No. 5 of the Committee on Migrant Workers (CMW), states are not allowed to hold migrants who have exceptional requirements, such as those who require medical attention or mental health services.
Therefore, states must take specific measures to fulfil and protect the right to health as well as the underlying conditions of health.
ACCESS TO SERVICE:
Undocumented migrants are often only granted emergency or “necessary” care and cannot access primary health care and services in many countries.
In General Comment No. 14 (para. 12), the Committee on Economic, Social, and Cultural Rights, however, states that state parties are required to provide health facilities, services, and goods; furthermore, they must be of good quality, available in sufficient quantities, accessible (including in terms of information and physical accessibility), and affordable to all. Additionally, they must be culturally acceptable (respecting medical ethics and being sensitive to gender and culture) and free from discrimination based on any status.
States are required by international human rights legislation to guarantee that children and their families have access to basic healthcare services, including prenatal and postpartum care for mothers. According to the CEDAW Committee’s General Recommendation No. 24, states parties are required to make sure women have access to family planning and emergency obstetric care, among other services related to pregnancy, childbirth, and the postpartum period.
In Joint General Comments No. 4 (2017) and No. 23 (2017), the CMW and CRC emphasized the impact that children’s immigration status can have on their mental health and stated that they should have “access to specific care and psychological support” (para. 54).
The Committees also made it clear that children of immigrants should have access to all medical treatments. The committees in charge of reviewing the various international human rights legislation treaties have repeatedly said that individuals who have experienced violence, abuse, or inhumane treatment have to have access to healthcare services as well as social services.
The 2014 Joint General Recommendation No. 31 of the CEDAW Committee and No. 18 of the CRC Committee stipulates to provide guidance on prevention, protection, support and follow-up services and assistance for victims, including towards physical and psychological healing and social reintegration.
According to General Comment No. 4 of the CAT, individuals who have been subjected to torture or other forms of inhumane treatment ought to have access to specialized rehabilitation programs (par. 22).
OBSTACLES TO ACCESSING HEALTHCARE SERVICES:
Migrants and refugees continue to be among the most vulnerable segments of society; they frequently experience discrimination, xenophobia, poor living and working conditions, and insufficient or restricted access to mainstream health care. Particularly those in irregular circumstances, migrants are frequently left out of national health promotion, illness prevention, treatment, and care programs. They are also frequently denied access to financial support for medical care. In addition, they may experience stigma, insufficient interpreting services, limited health literacy, inadequate cultural competency among healthcare professionals, and expensive user fees.
For those who are disabled, the barriers are much more severe. Accessing protection and response services against sexual and gender-based violence may present challenges for women and girls. Children of refugees and migrants, particularly those who arrive unaccompanied, are more likely to encounter traumatic incidents and demanding circumstances, like abuse and exploitation, and they may find it difficult to obtain medical care.
Lack of healthcare facilities and shortages of medications typically make it difficult or impossible to receive health treatment in humanitarian situations.
COVID-19:
For migrants and refugees, the COVID-19 pandemic has raised their risk of infection and mortality. Individuals who are constantly on the go might not have access to adequate self-defense techniques including social distancing, hand cleanliness, or self-isolation.
The epidemic has brought attention to already-existing disparities in health service consumption and access. Lockdowns and travel restrictions have had a detrimental economic impact on migrants and refugees as well. Some labor migrants may have been particularly impacted by health care insecurity and income loss. In addition, they might have faced social and legal uncertainty as a result of employment, legal, and administrative services being cut back or decisions about immigration status being delayed.
WHO RESPONSE (IN TERMS OF MIGRATION HEALTH CARE RIGHTS):
As demonstrated by our commitment to universal health coverage, WHO believes that everyone, including refugees and migrants, should be able to enjoy the right to health and access to people-centered, high-quality health services without financial restriction. The requirements of migrants and refugees should be considered by health systems when developing, funding, organizing, implementing, overseeing, and evaluating national and local health programs. In speedy and successful emergency responses, health care may occasionally need to be administered in a parallel structure to the national health system, but in the long term, refugee and migrant health should be mainstreamed into existing systems.
WHO works globally to ensure that all people have access to healthcare and to protect the rights of migrants and refugees to health care. WHO provides global leadership, advocacy, coordination, and policy on health and migration through the Health and Migration Programme and in partnership with regional and national offices. It also establishes norms and standards to aid in decision-making, monitors trend, fortifies health information systems, and advocates for tools and strategies; offers technical assistance, response, and capacity-building support to address public health challenges; and fosters global multilateral action and collaboration by collaborating with UN agencies, other international stakeholders, and the United Nations Network on Migration.
WHO interacts with nations to establish robust health systems that are backed by a workforce that is competent, well-trained, and sensitive to cultural differences. These systems also take into account the specific health needs, language, and needs of refugees and migrants.
CONCLUSION:
The intersection of migration and healthcare rights represents a complex landscape influenced by international legal standards, societal attitudes, and practical challenges. While international instruments, such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural Rights, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, establish a foundation for the right to health, the realization of these rights for migrants faces formidable obstacles.
In conclusion, the fulfillment of healthcare rights for migrants requires concerted efforts at legal, societal, and institutional levels. By adopting a human rights-based approach and implementing practical measures, societies can work towards creating healthcare systems that are inclusive, equitable, and responsive to the diverse needs of migrant communities. This not only upholds the principles of justice and compassion but also contributes to the overall well-being of societies.
REFERENCE:
https://worldmigrationreport.iom.int/wmr-2022-interactive/
https://www.who.int/news-room/fact-sheets/detail/refugee-and-migrant-health
UN Office of the High Commissioner for Human Rights (OHCHR), 2008, Factsheet 31. The Right to Health
https://www.refworld.org/docid/48625a742.html
Committee on Economic, social and cultural rights,2009 https://www.refworld.org/pdfid/4538838d0.pdf
https://publications.iom.int/system/files/pdf/iml_19.pdf
https://picum.org/wp-content/uploads/2022/10/The-right-to-health-for-undocumented-migrants_EN.pdf
https://www.unhcr.org/what-we-do/protect-human-rights/public-health/access-healthcare
https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805cbd6d