The traumatic circumstances surrounding displacement may expose refugees to a range of health-related issues, such as Post Traumatic Stress Disorder (PTSD), sexual and physical abuse, and malnutrition. In response, international law requires states to grant refugees access to quality health services with the same treatment as accorded to nationals. This right to health is enshrined in Article 23 the 1951 Convention, as well as in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).The right to health may be contained within a number of regional human rights instruments as well. This following page will highlight the relevant articles in the 1951 Convention and the ICESCR, and provide practical advice on advocating for health care rights.
The 1951 Convention
Article 23 of the 1951 Convention states that:
The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.
Although the term ‘public relief and assistance’ is not defined in the 1951 Convention, it should be interpreted widely. It may be understood to cover a number of areas of public welfare, including medical and hospital care. In the context of health care, this should be understood to include reproductive health care. Given the meaning of ‘public relief and assistance’ varies to some extent depending on the national law, it should be interpreted in conjunction with the domestic legislation (‘The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary,’ Andreas Zimmerman, 2011).
Unlike the right to education, which is applicable to all refugees “physically present” in the country of asylum, a significant number of important rights accrue to refugees only once they are “lawfully staying” in the country of asylum. Refugees “lawfully staying” in the country of asylum include individuals who enjoy officially sanctioned, ongoing presence in a state party. In addition to individuals who are granted asylum, this includes those who are admitted into a temporary protection system, or are in other durable protection regimes. There is no requirement of a formal declaration of refugee status or permanent residency (‘The Rights of Refugees Under International Law,’ James Hathaway, 2005).
Examples of rights given only to the latter group are access to welfare, and the right to benefit from labor and social security legislation (including health care). As Hathaway notes, no government may be excused to enacting and implementing a transparent and socially viable public health strategy that gives priority to the most vulnerable or marginalized groups.
International Covenant on Economic, Social and Cultural Rights
Article 12(1) of the ICESCR recognizes that everyone, including unrecognized and recognized refugees, have the right to enjoy the highest attainable standard of health, and Article 12(2) sets out a non-exhaustive list of steps to be taken by states in implementing the right to health:
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.
Hathaway notes that Article 12 includes the freedom from interference. This includes non-interference with sexual and reproductive choices, and an entitlement to access a health system on a timely basis. This addresses the quality of health care, and ensures that states are respectful of cultural and individual concerns (Ibid).
General Comment 14 offers further guidance on the application of “the right to the highest attainable standard of health”. It states that “a State party cannot, under any circumstances whatsoever, justify its non-compliance with the core obligations [to provide health care], which is non-derogable”. Thus, even states with insufficient resources must nonetheless give priority to the realization of the right to health without discrimination of any kind. Governments are also under an “obligation to respect the right to health, by, inter alia, refraining from denying or limiting equal access [to healthcare] for all persons, including…asylum seekers and illegal immigrants” (Ibid.).
Applying refugees rights to access health care in practice
UNHCR’s ‘Ensuring Access to Health Care: Operational Guidance on Refugee Protection and Solutions in Urban Areas’, referenced below, may be a useful first point of reference for practical guidance on best practices for advocating for and facilitating refugees’ right to access quality health services.
It may be useful to engage in advocacy with actors including local and national governments (e.g. the Ministry of Health), and international organizations such as UNHCR and the World Health Organization (WHO). When policy advocacy is ineffective in changing laws and practice to ensure that refugees have access to affordable and quality health care, litigation may be an appropriate tool to change the legal framework. If used effectively, judicial actions at the national level may challenge the legality of denying refugees access to health services, establishing positive legal precedents. In Kenya, for example, judicial intervention was effective in ensuring that urban refugees were not denied their fundamental rights relating to (amongst others) access to health care. For more information, see Kituo cha Sheria v. Attorney General.
At the regional level, complaints regarding right to health violations may be lodged in the African Court/Commission of Human and People’s Rights as well as the Inter-American Court/Commission on Human Rights. At the international level, complaints may now be filed to the Committee on Economic, Social and Cultural Rights (CESCR) for violations to Article 12 of ICESCR, but only if the alleged violating nation has ratified the Optional Protocol to the ICESCR.
However, even if access to health care is included in law, there can be many linguistic, cultural and social barriers in practice. For example, medical personnel might act as self-appointed ‘gatekeepers’ to refugees. These should be taken into account in when planning your advocacy.