International legal framework

Three interrelated branches of international law, which complement and reinforce each other, relate to the health of refugees and IDPs. In each field, the body of law is primarily made up of treaties, which create binding obligations for the countries that have ratified them. International law is informed by authoritative interpretations of treaty provisions, international consensus documents, and the comments and recommendations of the bodies created by each treaty to monitor implementation. The three interrelated fields are outlined below.

International human rights law

International human rights law relating to health includes Article 25(1) of the Universal Declaration of Human Rights (UDHR), the 1966 International Covenant on Economic, Social, and Cultural Rights (ICESCR), and its partner covenant, the International Covenant on Civil and Political Rights (ICCPR). Of most relevance is Article 12 of the ICESCR, which recognizes ‘the right of everyone to enjoy the highest attainable standard of physical and mental health’. In the refugee context, the ICESCR states that everyone has rights with regard to health, without mention of citizenship or legal residency. Article 2(2) states that these rights apply without discrimination of any kind as to ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. The United Nations Committee on Economic, Social and Cultural Rights, the treaty body composed of experts to monitor implementation of the ICESCR provisions, provided further details in 2000 on Article 12 through ‘General Comment 14’ ( http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En?OpenDocument). This committee also recognized that refugees, asylum-seekers, and illegal immigrants are vulnerable and marginalized individuals protected by the treaty’s non-discrimination clause.

The realization of the right to health is closely related to and dependent on the realization of other human rights, including the right to life (ICCPR Article 6); to liberty and security of person (ICCPR Article 9); to freedom from torture or cruel, inhuman, or degrading treatment or punishment (ICCPR Article 7); to enjoyment of the benefits of scientific progress (ICESCR Article 15); and to freedom of expression, including the freedom to seek, receive, and impart information (ICCPR Article 19). The Convention on the Elimination of All Forms of Discrimination Against Women (1979) and the Convention on the Rights of the Child (1989) provide further support, as do regional mechanisms such as the European Social Charter (Articles I and II); the European Convention on Human Rights and its five protocols (Article I); the African Charter on Human and Peoples’ Rights (Article 16); the American Convention on Human Rights (Article 4); and the American Declaration on the Rights and Duties of Man (Article XI).

While international human rights law provides a solid legal basis for health rights, it has a number of weaknesses. Its enforcement mechanisms are notoriously weak, and in the case of ICESCR, are limited to reporting by countries to the treaty body. This shortcoming is compounded when addressing so-called ‘positive rights’ such as the right to health, in which states are expected to fulfil obligations, rather than respect or protect them. Treaties generally also do not create legal obligations for non-state actors such as insurgent groups, who might control territories where many refugees or IDPs find themselves. Additionally, certain human rights can be suspended in times of war or in serious national emergencies, precisely at the time when refugees and IDPs are most likely to need this protection. Furthermore, human rights conventions do not explicitly deal with internally displaced populations or forced relocations, do not provide for a right of access by humanitarian organizations, and are not binding on rebel forces. Finally, even when dealing with their own citizens, many states are unwilling or unable to observe binding obligations included in the human rights treaties they have ratified.

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Refugee law

The UNHCR 1951 Refugee Convention and related Protocol of 1967 address the specific rights of refugees. The Convention requires signatory countries to treat refugees lawfully staying in their territory the same as their own nationals are treated, with respect to social security schemes including health and, specifically, maternity and sickness (Article 24). Other articles of relevance include the right to rationing (Article 20), housing (Article 21), and public relief (Article 23). 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).

To address the shortfalls in the protection of the rights of IDPs under refugee law, non-binding legal principles on internal displacement, which draw on analogous refugee law and existing humanitarian and human rights law, have now been developed and disseminated. ( Deng 1999 ). These principles list the important essential services that IDPs are entitled to, such as food, potable water, sanitation, shelter, and medical services. However, responsibility for the protection and provision of basic services to IDPs still rests with national governments, many of which may be unwilling to prioritize the delivery of services to IDPs, or lack the technical capacity to co-ordinate or monitor the programmes of international humanitarian organizations during emergencies.

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Humanitarian law

The third branch of international law of direct relevance to health and forced migration is humanitarian law. This provides an important complement to human rights and refugee law regarding the provision of health services in times of armed conflict, by partially addressing internally displaced populations, forced relocations, the right of access by humanitarian organizations, and rebel forces. It is set forth in the 1949 Geneva Conventions and their two 1977 Additional Protocols, and applies to non-combatants such as refugees and IDPs in situations of international armed conflict and in certain situations of internal armed conflict. The basic principles include the obligation for all parties to collect and care for the sick and the wounded, as well as the obligation to respect and protect hospitals, ambulances, and medical personnel. The Fourth Geneva Convention, which applies to international armed conflict where civilians are in the hands of another government or occupying power, entitles expectant women and maternity cases to special protection and assistance (Articles 6–22) and all women to special protection against rape and indecent assault (Article 27). Importantly, the occupying power is also required, if relief is inadequately supplied, to agree to relief schemes by country affiliates of the International Committee of the Red Cross, and to permit them free passage and guarantee their protection (Article 3; Article 59).

However, humanitarian law does not cover all armed conflict situations, and the difficulty in enforcing international law is often exacerbated in cases of civil war. Although IDPs are guaranteed certain basic rights under the Geneva Conventions, ensuring these rights are secured is often the responsibility of authorities that were responsible for their displacement in the first place.

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