The Right to Health of Venezuelans in Colombia: From Principle to Policy (Part 1)

[Rocío Quintero is a Legal Adviser for the ICJ’s Latin American Programme, based in Colombia. She tweets from @___Dew___. Timothy Fish Hodgson is a Legal Adviser for the ICJ’s Africa Programme based in South Africa. He tweets from @TimFish42.]

The COVID-19 pandemic has, perhaps more starkly than ever before, brought to the fore the importance of the realization of human rights, and particularly the right to health and other economic, social and cultural rights (ESCR) to the safety and security of people all around the world. The rapid global spread of COVID-19 has also highlighted the interdependence of countries in their efforts to realize human rights and the centrality of international co-operation to the success of measures taken by Governments to respect, protect, promote and fulfil rights, particularly ESCR.

As one of the present authors that has pointed out in previous blog post, as measures to alleviate and resolve a public health emergency, all measures taken by Government’s to combat COVID-19 should be understood as measures taken to execute legal obligations in terms of the right to health. Noting the “deep negative impacts” on ESCR and “especially the right to health of the most vulnerable groups” in its statement on COVID-19 the UN Committee on ESCR has indicated that states have “an obligation to take measures to prevent, or at least to mitigate, these impacts” of COVID-19.

In the same vein, the Inter-American Commission on Human Rights (IACHR) and the Office of the Special Rapporteur on Economic, Social, Cultural, and Economic Rights (OSRESCE) have also emphasized the States’ duty to provide special measures for people in vulnerable situations. According to them, these measures “must include actions to prevent contagion and guarantee medical care and treatment, medication, and supplies, and should avoid differentiated impacts due to shortages.”

This two-part blog focuses on the right to health of non-citizens in Colombia, in particular migrants, refugees, and asylum seekers from Venezuela, in the context of COVID-19. It emphasizes then interconnectedness of ESCR and the central importance of ensuring the protection of the “social determinants” of health – which include other stand alone rights such as access to housing, food and social security – to full realization of the right to health itself.

Migration and ESCR in Latin America

In recent years there has been an unprecedented mostly forced migration from Venezuela due to harsh conditions in Venezuela, including a rise of violence, shortages of food, and the lack of access to public utility services. At least 4.5 million Venezuelans have been effectively compelled to flee their country, representing one of the largest displacement crises in the world.

The Venezuelan health system is in a critical condition, as has been acknowledged by the United Nations High Commissioner for Human Rights and the IACHR. There has been progressive deterioration of the healthcare infrastructure and a widespread shortage of water, medical equipment and supplies, and medicines in hospitals and clinics. It is well documented that some Venezuelans have been forced to leave the country looking for accessing vital healthcare services in other Latin American countries. Among other sectors of the Venezuelan population, it should be highlighted the migration of people living with HIV and pregnant women.

From the outset of the COVID-19 outbreak both civil society organizations and the IACHR have therefore expressed concern on the protection of the right to health of Venezuelans during the pandemic considering the dire conditions of hospitals and the fact that at least half of the Venezuelan population is experiencing food insecurity.

Venezuelans’ rights to health in Colombia

Colombia is a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR) which guarantees to all people, including migrants and refugees, the right to the highest attainable standard of healthcare services and facilities. Article 12(2)(c) of ICESCR plainly requires States to take measures to ensure “prevention, treatment and control of epidemic, endemic, occupational and other diseases”.

The obligation on States to respect, protect and fulfil this right includes an “immediate” obligation to ensure health services and facilities are accessible to all without discrimination of any kind, including discrimination on the basis of nationality. At regional level, similar obligations are found in article 10 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights.

At the national level, Colombia has legal framework that have guaranteed access to some health services to Venezuelans. In the case of undocumented Venezuelan migrants, judgments of the Colombian Constitutional Court and regulations of the national Government have granted access to emergency medical services. The Constitutional Court has, for example, held that emergency services include the attention of directly transmitted diseases (enfermedades de contagio directo) as a measure of public health. For the Court, emergency services, broadly construed, are part of the essential core of the right to health, which means they must be provided to all persons equally, regardless of their nationality while other healthcare services can be provided progressively.

Article 2(1) of the CESCR requires States to realize Covenant rights not only individually, but also through international cooperation and assistance. In this connection, the Constitutional Court has importantly also made clear that Colombia must seek international cooperation to expand the health services to undocumented migrants to ensure the full realization of the right to health. This echoes the UN ESCR Committee’s recent call for states to ensure “extraordinary mobilization of resources to deal with the COVID-19 pandemic” in the most equitable manner possible.

In light of the above, medical services that are provided to all persons clearly include access to screening, treatment and prevention services for a pandemic disease or during a public health emergency. Considered in this way, if Colombia complies with its domestic minimum core obligations in terms of the right to health it would arguably also be in compliance with its international obligations.

Venezuelans’ ESCR protection in Colombia during COVID-19

As of February 2020 it was estimated that 1.8 million Venezuelans lived in Colombia. Despite efforts to regularise their presence in the country, over 44% of Venezuelan migrants do not have the documentation or permission to stay in Colombia. This exposes them to frequent human rights violations and abuses and creates a difficulty for them in accessing Government provided services that may often require presentation of such documentation. In the context of COVID-19 these issues have been exacerbated.

Since the first confirmed case of COVID-19 in Colombia on 6 March 2020, the Government has established a set of measures to protect the human rights of persons in vulnerable. The protections extend beyond health services, with, for example, the national Government establishing a moratorium on evictions during lockdown. Importantly, these measures do not exclude migrants (documented and undocumented).

The Government has also designed targeted measures for the protection of Venezuelans’ ESCR. In particular, it is worth mentioning the enactment of government guidelines for the prevention, detection, and treatment of COVID-19 cases in the migrant population, including undocumented migrants. Notably, the guidelines establish that access to health care services by the migrant population must follow the general protocols created for the prevention, detection, and treatment of COVID-19. In other words, everybody must receive equal, non-discriminatory healthcare services.

It is also important to mention that the guidelines recognize that the protection of the right to health requires the protection of other rights, such the right to housing and the right to food. In that regard, for instance, the guidelines require the adoption and implementation of government mechanisms of intersectoral coordination to guarantee access to shelter, water, food, and personal hygiene items to the migrant populations.

Against this background, it is clear that the Colombian legal framework includes measures to protect the ESCR of Venezuelans during the pandemic. In general terms, these measures aim to respect and guarantee the rights of all people without discrimination on the grounds of nationality or immigration status, as was recently urged by the IACHR.

Nevertheless, the implementation of these measures has not had the expected results. As part 2 of this blog illustrates failures to realize all human rights of Venezuelans have compromised the efforts of the Colombian Government to realize the right to health of migrants during COVID-19. This highlights the important connection between health and the social determinants of health such as housing, food and social security.