Statelessness Working Paper Series 2016/04 The power of labelling health as a ‘right’ lies in the assumption that it is within the realm of human influence; when health becomes a right it challenges the lottery of genetic fate and instead places a duty upon the state and civil society to respect, uphold and guarantee the realisation of that right.23 Yamin argues that: …if there is a right to health then the state has some responsibility for levelling the playing field, for ensuring not just a fair distribution of access to care, but also the social determinants of health.24 The right to health’s role in ‘levelling the playing field’ is important when we look at its relationship to statelessness. Stateless persons are often rendered stateless due to discriminatory measures embedded in the societal structures of their given country; this is where the power of the right to health comes to the fore. In promoting and strengthening health equity, the right to health pushes us to go beyond the ‘immediate causes of disease to the ‘causes of the causes’, namely, the structures of social hierarchy and the unequal conditions these create, in which people live, work and age.25 The right to health is an indispensable, justiciable tool that has the power to challenge the health injustices suffered by stateless persons and expose the unequal health capabilities between citizens and noncitizens of a state. 2.3 Failure to uphold the right to health (i): The legal process & international responsibility Having examined the signification of the ‘right to health’ I now want to analyse what happens when countries do not uphold this right. When stateless individuals have no legal status it allows states to use domestic laws, which render no state responsibilities towards the stateless, to circumvent their role in protecting the right to health. Regardless of whether the country is a signatory or not to the international conventions enshrining the right to health, if the international community believes the human rights of individuals are being violated, it has the capacity to demand an independent investigation. This can be commissioned by the UN Security Council, UN Human Rights Council, UN General Assembly or UN Secretary General.26 An investigation can determine whether human rights abuses have taken place, in which case the UN Security Council can either refer the situation to the International Criminal Court, or alternatively issue recommendations to the country in question outlining measures to uphold higher standards of human rights, with potential sanctions if they fail to do so. It is important to acknowledge that these legal mechanisms are in existence and have the capacity to hold to account those who flout the right to health. However, can one really ‘demand’ such an investigation when it is a violation of health rights? The right to health is inextricably linked to core human rights instruments, such as the International Convention on the Elimination of All Forms of Racial Discrimination27, where individuals can either not be given healthcare due to their race, or administered a lower standard of care to other racial groups. The international legal framework for accountability exists, and the protection of health rights remains an imperative right for the international community to safeguard. 2.4 Failure to uphold the right to health (ii): Ramifications on the health of the stateless 23 A Yamin, ‘Defining Questions: Situating Issues of Power in the Formulation of a Right to Health under International Law’ (1996) 18(2) HRQ 398 24 A Yamin, Imagining a different world: reflection on what applying a human rights framework to health means and why we should care (2010) Beloit College. Available at: https://www.youtube.com/watch?v=Pd-WREXfr9A 25 M Marmot, ‘Social Determinants of Health in Asia and the Pacific’ (2007) World Health Organisation (WHO) 26 R Wagely, ‘The Quiet Audience: U.S Responsibility to Call for an International Investigation Into Crimes Against Muslims in Burma’ (2015) 28(1) Emory Int'l L Rev 27 United Nations, International Convention on the Elimination of All Forms of Racial Discrimination (1969) 3