Everyone has rights that States have an obligation to uphold.
The right to health is a fundamental human right.
This right is guaranteed by various international and national instruments which prohibit discrimination on the basis of nationality or legal status.
Core international instruments, in particular human rights ones, support the equal access to health services for both nationals and migrants as well as minorities and other vulnerable groups such as women, children, elderly, persons with disabilities, detainees, and stateless persons.
The following are the instruments according to the years in which they were put in place:
1946: Constitution of the World Health Organization (WHO)
1948: Universal Declaration of Human Rights (UDHR)
1951: Convention relating to the Status of Refugees
1965: International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
1966: International Covenant on Economic, Social and Cultural Rights (ICESCR)
1975: Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment (CAT)
1978: Declaration of Alma-Ata
1979: Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
1989: Convention on the Rights of the Child (CRC)
1990: International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families (ICRMW)
1998: Guiding Principles on Internal Displacement 2000: Convention relating to the Status of Refugees, Trafficking and Smuggling Protocols,
Supplementing the UN Convention against Transnational Organized Crime
“The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being” (Constitution of the World Health Organization, July 1946).
The Universal Declaration of Human Rights (UDHR) states that all human beings are born free and equal in dignity and rights and that these rights and freedoms are entitled to every person “without discrimination of any kind; such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or other status.”
The reference to “other status” indicates that other grounds should be equally considered, such as disability, age, nationality, marital andn family status, sexual orientation and gender identity, health status (such as HIV/AIDS), place of residence and economic and social situation.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes the “right of everyone to the highest attainable standards of physical and mental health”.
The United Nations (UN) Committee on Economic, Social, and Cultural Rights in its General Comment No.14 noted that State parties have immediate obligations in relation to the right to health, such as guaranteeing that this right will be exercised without discrimination of any kind, as well as the obligation to undertake measures towards the full realization of this right including for detainees, minorities, asylum seekers and irregular migrants.
More recently, the International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families (ICRMW)
that entered into force in 2003 guaranteed the right to necessary
emergency medical treatment to all migrant workers and members of
their family, regardless of their legal status and employment situation.
Article 81(1) of the ICRMW ensures, nevertheless, that nothing in the Convention shall affect more favourable rights or freedoms granted to migrant workers and members of their families by virtue of the law or practice of a State Party; or any bilateral or multilateral treaty in force for the State Party concerned. The ICESCR is among the multilateral treaties that recognize a more favourable right to health for all.
Recognizing a mere right to emergency health care is too narrow for an adequate realization of the right to health. The core content of the right to health includes, in fact, a right to appropriate preventive and curative treatment of diseases and injuries as well as a right to provision of essential drugs.
The UN Committee on Economic, Social, and Cultural Rights is the Treaty Body monitoring the implementation of the International Covenant on Economic, Social, and Cultural Rights, adopted by the UN on 16 December 1966.
It is important to note that the right to health concerns not only the
access to health and provision of emergency, preventive and curative
treatment and essential drugs. The World Health Organization (WHO)
defines health as “a state of complete physical, mental, and social
well-being and not merely the absence of disease or infirmity” andhence “health” in the migratory process implies the physical, mental and social well-being of migrants and communities affected by migration.
In May 2008, the 61st World Health Assembly adopted a Resolution on the Health of Migrants.
The resolution, endorsed by all WHO Member States, called for migrant-sensitive health policies and “equitableaccess to health promotion, disease prevention and care for migrants, subject to national laws and practice, without discrimination on the basis of gender, age, religion, nationality or race…”.
In addition to the human rights approach it is also important to consider the public health aspect to migration and health.
Human mobility is a significant public health issue both in terms of epidemiological aspects of diseases and physical access to health services.
For instance migration has been identified as contributing to the re-emergence of malaria. Migration may increase exposure to the disease, transport mosquitoes to new areas and/or create habitats that are favourable to mosquitoes.
Migration may also help the spread of resistance to drugs. How?
This may be due to mobility of persons with drug resistant strains of malaria as well as poor treatment compliance during the migration process.
Irregular migrants are often unable to access health services for fear of arrest.
Oftentimes, children of migrants do not have access to essential health services such as vaccinations against measles.
The lack of immunization among many children frequently results in outbreaks ofmeasles among migrants and the host community in neighbourhoods such as Eastleigh Estate in Nairobi.
In order to ensure that the developmental benefits of migration are
realized, a process of “healthy migration” needs to be facilitated – this means focusing on the health of internal and trans-boundary migrant and mobile populations.
In order to achieve this, migration needs to include within the public health response and other social services.
For healthy migration, all levels of government need to mainstream internal and cross-border movement into policies and programmes.
This will ensure that all migrant populations are able to access positive social determinants of health including access to public healthcare systems.
Protecting the health of migrants not only benefits them but extends to the host communities and thus is a critical public health intervention.
