The Principle of Non-discrimination: An Empty Promise for the Preventive Health Care of Asylum Seekers and Undocumented Migrants?

Abstract

The principle of non-discrimination in Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) holds that its rights are equally applicable to ‘everyone’. Nevertheless, evidence from the national context suggests that access to health care for asylum seekers and undocumented migrants depends on their legal status and in particular, preventive health care is often inaccessible to them.1 This has led to several hitherto under-investigated questions concerning the right to health in this context: Does a right to preventive health care exist at the international level? If so, what individual rights and State obligations are involved in this right? How does the principle of non-discrimination relate to this right? Does this principle offer (additional) protection to asylum seekers and undocumented migrants in terms of a possible right to preventive health care? Method: The main issue is what the principle of nondiscrimination has to offer for the preventive health care of persons without a regular residence status. Based on an analysis of the non-binding, but authoritative, General Comments of the United Nations (UN) Committee on Economic, Social and Cultural Rights (CESCR), the paper takes an exploratory style that goes beyond traditional legal analysis and investigates how the law should be interpreted in order to enhance its effectiveness and relevance. Results and Discussion: Strictly speaking, there is no explicit, binding right to preventive health care for asylum seekers or undocumented migrants in the ICESCR itself.2 Nevertheless, implications can be found in the CESCR General Comments Number 14 and 20.3 Particularly, if one takes into account how the law should be interpreted according to CESCR General Comment 14 (CESCR GC 14), there should be a right to preventive health care for asylum seekers and undocumented migrants. The exact content of such a right, however, is less clearly defined. Further, the principle of non-discrimination is not conclusive as to whether the right to health would apply equally to asylum seekers and/or undocumented migrants as it would to nationals. Conclusion: For non-discrimination to be truly unambiguous with regard to the preventive health care of asylum seekers and undocumented migrants, it would be necessary to strike out the ‘general welfare’ provision of CESCR General Comment 20 (CESCR GC 20) and to clearly state that the ‘other status’ criterion also entails ‘residence status’. In that sense, the principle of non-discrimination is, indeed, an empty promise and the right to preventive health care for asylum seekers and undocumented migrants seems to be much better protected under the CESCR GC 14’s non-discriminatory interpretation of the right to health itself.