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Missing in the debates on the unaccompanied child migrants: The right to health

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“There are no nations! There is only humanity.” — Isaac Asimov (in I, Asimov: A Memoir)
In a tragedy born of gang violence in Honduras, Guatemala, and El Salvador, compounded by poverty, tens of thousands of children, many unaccompanied by an adult, are risking the treacherous journey across Mexico and to the United States.
What would our response be if we were to let human rights, including the right to health, be our primary policy guide? (I leave aside the fact that the United States has signed, but not ratified, the main international treaty containing the right to health, the International Covenant on Economic, Social and Cultural Rights.)

A rights-based response would endorse the general consensus of ensuring the children’s health – including mental health – while they are here. The most authoritative interpretation of the right to health, General Comment 14 of the UN Committee on Economic, Social and Cultural Rights (see para. 34) (see also this publication from the International Organization of Migration), includes non-discrimination and equal treatment that extends to undocumented immigrants. The rights- and law-based case for health care for our newest immigrants is bolstered by the principle of equal treatment with nationals, which is a current running throughout the 1951 Refugee Convention. While the Convention is without a dedicated provision on health care, it includes sickness among the areas of social security provisions where, with limited alterations, refugees are to be affording the same rights as nationals (article 24).
Furthermore, we are dealing with a humanitarian emergency. General Comment 14 requires cooperation in providing “humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons,” with a special responsibility for economically developed states (para. 40). And the right to health emphasizes the needs of vulnerable populations throughout – and there are few more vulnerable populations than unaccompanied children refugees.
U.S. nationals, even after the Affordable Care Act (ACA), can receive deeply insufficient health care, including because of the failure of many states to expand their Medicaid programs. This shortcoming is no excuse for another. We should take care to ensure that the health needs of our children (and adult) immigrants are fully taken care of. And you will note that the ACA’s exclusion of undocumented immigrants from its promise of health care is contrary to international human rights law, representing a grave injustice.
The next part of a rights-based response brings us to the root the crisis, the violence and deprivation plaguing the children’s homes. In 2013, the United Nations interviewed more than 400 children arriving in the United States from Honduras, Guatemala, El Salvador, and Mexico. Nearly half had left their countries because of violence in society, with many more leaving because of abuse at home, as well as because of severe deprivation. Extensive reporting, analysis of factors at home, and statistical analysis all point to the role of violence in the surge of children heading north.
What does the right to health say about this? Its precepts are broad, with non-specific obligations on international assistance and cooperation towards the full realization of rights (International Covenant on Economic, Social and Cultural Rights, article 2), along with the UN Charter’s command that states cooperate towards the universal observance of human rights (articles 55-56). The Committee on Economic, Social and Cultural Rights offers this: “Depending on the availability of resources, States should facilitate access to essential health facilities, goods and services in other countries, wherever possible, and provide the necessary aid when required” (General Comment 14, para. 39). The Committee understands health service broadly, encompassing such underlying determinants of health as water and nutrition. Bringing in other economic and social rights, and we have the more general principle that states in a position to do so “must provide international assistance to contribute to the fulfilment of economic, social and cultural rights” (Maastricht Principles, principle 32). The United States is in such a position, as the dominant economy in the Americas and still the world’s largest economy.
Our obligation is heightened by another aspect of the right to health, the obligation to respect this right, including in our international dealings. As delineated by General Comment 14, “States parties have to respect the enjoyment of the right to health in other countries” (para. 39). The three Central American countries of present concern are all major transit points for cocaine on its way from South America to the United States (Guatemala, Honduras, Central America generally [p. 8 ]). Yet U.S. drug policies have failed to reduce the demand for drugs at home, thus making the United States at least partially responsible for the drug violence-related shortcomings with respect to people’s ability to enjoy the right to health in Central America.
Further augmenting our particular responsibility is that two major criminal gang networks in the region have U.S. origins, formed in Los Angeles in the 1960s and 1980s, and transplanted to Central America and Mexico largely through U.S. deportations. El Salvador, Guatemala, and Honduras are now home to tens of thousands of members of these gangs. An ill-considered deportation policy – failing to disclose to authorities of countries receiving the deported immigrants’ criminal or gang-related backgrounds – undermined the ability of Central American countries to try to steer these youth away from gangs and violence (paper by Dagmara Mejia p. 8-9). Rather than cooperate with authorities and civil society to rehabilitate and reintegrate these gang members into society, we simply tried to rid ourselves of a problem. This is hardly the type of cooperative approach to human rights that the world requires and achieving rights demands.
Thus, with our own role in undermining the right to health in Central America and our economic capacity to provide assistance, a rights-based response would include significant U.S. investment in creating healthy conditions in Honduras, Guatemala, and El Salvador.
The Obama Administration’s $3.7 billion request from Congress includes $300 million in international assistance, much of which would be for “creating the economic, social, governance, and citizen security conditions to address factors that are contributing to significant increases in migration to the United States,” is a start in this regard. The Administration had already announced expanded efforts in the region to keep at-risk youth from joining gangs and developing youth outreach centers, and to support community policing and human rights programs. More is needed, not only providing employment and education alternatives to youths, perhaps too with anti-gang strategies that have worked in the United States, but also supporting programs to meet people’s nutrition, health care, education, and other needs – addressing the deprivation migration driver – building capacity and rooting out corruption of judicial systems and law enforcement, and supporting programs to address domestic violence and other family abuse.
The imperative of helping create healthy conditions at home links to the third part of a rights-based response, perhaps the most contested part: What to do with the tens of thousands of children now in the United States, and who will be arriving in the months ahead? Here we enter a sparsely populated area of human rights law, a question not concerned with migrants while they are in this country, nor of our actions with respect to the health of people in other countries, but rather that of that question of movement between here and there. What does the right to health say about who should be entitled to stay once they have arrived?
This is not an area well-developed in human rights law, as in general countries have the sovereign authority to control their borders – “the entry, residence and removal of aliens,” as described by the European Court of Human Rights in the Case of N v. United Kingdom. The main limitation comes in refugee law’s obligation not to turn back, and to protect, refugees (Refugee Convention, article 33).
The European Court has begun to meld the issues of deportation with human rights, whether it violates human right obligations to deport someone to circumstances that could undermine their rights. In the 1989 ruling Soering v. United Kingdom, the Court found that deporting people to a country where they would likely “be subjected to torture or to inhuman or degrading treatment or punishment” would violate the European Convention on Human Rights (article 3). The following decade, the Court extended its ruling of what comprised inhuman treatment from intentional acts committed against the individual to health-related circumstances. The Court ruled against deporting an HIV-positive man from Saint Kitts because this would almost surely have meant the end of his AIDS treatment (this was 1997, when such treatment was generally not available outside wealthy countries), even as he was at advanced stages of the disease.
The Court has been cautious in extending its holding beyond narrow circumstances. Later rulings did not protect HIV-positive people from deportation even when receiving AIDS medication was far from certain if they were deported, with the Court distinguishing such cases from the Saint Kitts case, where the man’s illness was quite advanced, he lacked family support, and he had no possibility of needed medical care if deported.
Whatever the limits in how the European Court has applied its earlier holdings, the basic philosophy undergirding the decision can be applied to the right to health. In the deportation/inhuman treatment cases, the people subject to deportation were in a country that had a legal obligation to secure the rights for people in their jurisdictions. Yet deporting them would have led to their rights being violated. Thus, deporting them would violate the obligation to secure their rights.
How might this approach apply to the right to health and its entitlement to the highest attainable standard of health, knowing that deporting the young arrivals to our land would mean a lower level of health – due to risk for many of gang violence, family abuse, and severe poverty?
The right to health includes the obligation to respect people’s rights. Sending immigrants back to a country where they face serious health risks would undermine their ability to achieve the highest attainable standard of health due to those threats. That is, our deporting these migrants would send them to a country where their right to health could not be secured — just as the right to be free from inhuman and degrading treatment could not be secured if they were deported in the context of the European Court cases. The right to health (notably, not contained in the European Convention), therefore, can be understood to prohibit deporting people to countries or circumstances where their ability to enjoy this right would be undermined.
What would this mean for the children from Central America? The UN study found that two-thirds of these children (including those arriving from Mexico) said they left because of societal violence, family abuse, deprivation, or some mix — all risks to their health (p. 7) (my calculation). These children, at the least, should be protected from deportation. Yet might there be other children who also face these risks, even if they did not raise one of these issues in their UN interviews? These children, too, should be allowed to stay under the right to health.
And with a large majority therefore entitled to stay , one sound policy response – to avoid the risk of sending home anyone who does face a risk in their country of origin that would undermine the right to health – would be to provide Temporary Protective Status to children – or to all people, including to keep families together – from (at least) these three countries. That status provides legal permission to remain in the country as long as the conditions driving their exodus persist. Meanwhile, those who might qualify for more permanent solutions, such as refugee status, could proceed with the legal processes necessary to secure such status.
If the risk to the health and life of these children would trigger right to health obligations on our part to enable the children to remain, where might this principle lead? Life expectancy in the three Central American countries from which most of these children arrive is five to seven years lower than in the United States (WHO Statistics 2014, pages 62, 66). Does this mean that anyone – including adults – from these countries should be protected from being forcibly removed from the United States to these countries, whatever the reason of their migrating? And similarly, undocumented immigrants from the many other countries with lower life expectancies than the United States, unless the right to health obligation limitation of a state’s maximum available resources were to come into play (International Covenant on Economic, Social and Cultural Rights, article 2)? If not all such countries, what should be the threshold level of risk? Should some particular level of personalized risk be required? Or should the likelihood of a shorter, less healthy life based on national life expectancy differences of certain amount be the threshold that triggers protection from deportation?
It is true that whatever you think the answer to these questions should be, this basic approach is politically unimaginable in the United States today. I can hear already the assertions that this would open the floodgates. Would this mean that the vast majority of those here without documentation could not be deported?
Not necessarily. We could simply agree for now that the particular risks to health and life of the Central American children are particularly great, and this is sufficient to trigger this principle, without yet working out the proper limits of this principle. And our obligation is heightened here, as these are children, a particularly vulnerable population, and as such, a population to whom the world – and in this case, the United States – owes a special obligation.
But if we took the more expansive approach to this principle? If until we lived in a world with far greater health equity, people who had entered new lands, and pointed to the higher standard of health in their new homes as a reason to be allowed to stay, could remain based on the right to health? Might that be an added motivation for countries like the United States to adjust our policies to better promote health abroad? And for countries like El Salvador, Honduras, and Guatemala to adjust theirs to improve health at home, to stop this imagined depopulation (though with the ties that bind people to their homes, even if we open our doors wide, many will choose to stay just where they are)?
We would live in a world where more people have better health, a world of greater global health solidarity and a sense of shared responsibility for one another. That sounds to me a lot like giving life to our equal human dignity, the basic principle underlying all human rights. We could do far worse.
You may be wondering, though, in the case of the migrants from Central America, of a countervailing consideration, one that could change the calculus of what policies would best fulfill right to health obligations. And that is the danger of the children’s journey to the United States, from the freight trains on which many migrants from these countries travel to the gangs that prey on them along the way.
It has become widely accepted that our policies induce the children to come, to make a journey that is itself a grave risk to health. Our laws enable the children to remain in the United States for months if not several years before their cases are adjudicated, with some sizable portion then being allowed to stay permanently. Would, contrary to what I have asserted, allowing the children to stay and avoid the health hazards in their Central American homes actually be the very policy that undermines their right to health, by encouraging this dangerous journey?
I should point out that the now-conventional wisdom of U.S. policies as a magnet is not necessarily true. As Senator Durbin observed as part of his and Senator Harkin’s eminently humane statements on the situation, other countries in the region, without our policies, have experienced a 700% increase in the children migrants from these three countries. This raises considerable question about the actual effects in this regard of the 2008 law affording these children legal protections and now under much scrutiny.
As we consider the danger of the journey, there are important questions that have received little attention. Exactly how risky is this journey? We know that hundreds of children are being killed in Honduras, Mexico, and Guatemala; how many perish on their way here? For if the danger of the journey is even greater than remaining in their countries, and if (a big if) generous policies in the United States were to be the magnet that critics claim them to be, it might seem that the right to health would frown on, rather than demand, such policies – including the even more welcoming policies I have proposed.
But that would be to take the dangerous journey as a given. It is not. For one, there may be ways for the United States to work with Mexican authorities to lessen the risk, such as refurbishing the freight trains (“The Beast,” as these trains are known) with safety rails and protections against the wheels, and new regulations, perhaps related to speed or the requirement to stop if the train’s engineer is aware that people are trying to board. Perhaps cars could be added to these trains that are fit for human travel. And it may be possible to reduce the risk gangs pose to the transiting migrants. For example, along with other law enforcement measures, guards could ride on the trains. New or expanded initiatives could provide educational and employment opportunities for the gang (and would-be gang) members who today lurk the tracks, enabling them to take other routes in life.
And now the Obama Administration has posed another possibility – processing would-be migrants in their home countries and ensuring safe transit for those who qualify for protected status in the United States, with talk of a pilot program in Honduras. With sufficiently generous standards for those qualifying, this could be a wise approach. (Such standards are almost surely more expansive than the Administration is considering. The draft Administration proposal estimates that only about 35% would qualify. So far, in fact, nearly 65% of unaccompanied minors in the United States who applied for asylum this year have received it.) It could give refuge to those seeking to escape the danger and trauma of gang-filled streets without making The Beast the only pathway out.
All these proposals may sound like high demands from the right to health: providing health care to and becoming the new home for the children who have already arrived; increasing safety and security for children during the Mexican transit while establishing programs to review asylum applications locally to protect many of these children from the dangers of the trip north, and; providing financial and technical support to the countries of Central America to reduce the dangers to these children at home.
And these are high demands. Yet why should we expect anything less of the right to health, and the right to life, which is also at stake? The health, well-being, and lives of tens of thousands of children are at stake. If the right to health asked only little of us, then what sort of right would that be?

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The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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