By Viranjana Herath
Right to health of migrant workers
Migrant workers of all over the world have become one of the most vulnerable communities during the Corona pandemic. They have been suffering with many issues including the lack of access to adequate health facilities, not being able to getting foods and other essentials, losing jobs, and residences. Health-related issues can be identified as one of the most harmful matters. As reported by media, some migrant workers are not able to access adequate health facilities and have to deal with discrimination with compared to the host population.
Theoretically, migrant worker means, someone who has migrated to another country to take up work but who does not have a permanent status in the receiving country. The fact, should not be forget that migrant worker includes not only the worker who have been given legal rights to enter and work but also those who have entered and work without any legal approval.[1]However, migrant workers who legally entered have specific rights rather than illegal workers.
Right to health is a basic human right that recognized by several international, regional human rights mechanisms including Universal Declaration of Human Rights (UDHR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Rights of Migrant Workers and Members of Their Families (ICRMW) and European Convention on Human Rights (ECHR).
ICESCR the core mechanism regarding social, economic, and cultural rights describes the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health” as the “right to health” by its Article 12. The right is not just right to health care and it includes preconditions for health, safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition, and housing, healthy occupational and environmental conditions and so on.[2]Moreover, right to health is linked to the prohibition of discrimination. In other words, the right must be practiced without any discrimination based on race, ethnicity, nationality, or such grounds.[3]However, the right to health is always related to available resources of the country but it should not be a reason for justifying respect to obligations.[4]
United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) also protects migrant workers. Article 01 of the Conventions says it applies to all migrant workers and their families without any discrimination. And article 28 of the Convention states that all migrant workers and members of their families have the right to receive emergency health equal to the nationals.
In addition to the international legal mechanisms, a considerable amount of countries of the world have recognized the right to health as a basic human right disregarding the nationality. It is found out that, 67.5% of the constitutions of the world have a provision addressing health or health care. In almost all of these constitutions, the provisions regarding health and health care are universal, rather than limited to particular groups.[5]
Sri Lankan migrant workers and issues of health
There are no latest and reliable statistics on how many Sri Lankan migrant workers are overseas at the moment. While analyzing reports of the United Nations and Sri Lankan Bureau of Foreign Employment, the number can be placed around 2 million. The majority of Sri Lankan migrant workers are living in the Middle East and the number is around a million. In addition to that, a considerable amount of migrant workers are living in South Korea and Italy.
According to the reports, Sri Lankan migrant workers in Middle East countries are the most vulnerable in this Corona pandemic. Additionally, Sri Lankan migrant workers who are in the Maldives and Bangladesh also have raised health-related issues considerably. They have been discriminated against nationality mainly and lack of proper health care facilities, transport issues, rural and urban disparities, gender issues and payment related matters make additional pressure on them.
Discussion
According to the international and domestic laws, migrant workers should have the right to health equal to the citizens of a particular country. Therefore, discriminating or ignoring them in the health caring process is a violation of international and domestic laws conditionally. Accordingly, destination countries have a legal responsibility to affirm the right to health of migrant workers.
During this time of Corona Pandemic, origin countries of migration workers like Sri Lanka should address the matter in a practical approach rather than a legal approach. Therefore, origin countries can draw the attention of international bodies such as ILO and IMO on protecting the right to health of migrant workers. The organizations are capable to deal with the issue with the governments of destination countries. In addition to that, ILO and IMO work closely with local NGOs that protect migrant workers.
Sri Lankan foreign missions in destination countries also have a key role to affirm the right to health of migrant workers. They can identify the issues and most vulnerable workers and coordinate the process of affirming the right to health with the support of above mentioned relevant stakeholders.
In addition to such a short term process, there should be a long term strategy to protect the right to health of Sri Lankan migrant workers. Reassessing the insurance scheme that has already been maintained by Sri Lankan Bureau of Foreign Employment, keeping a comprehensive and updated database on Sri Lankan migrant workers, entering to bilateral treaties with destination countries with provisions on right to health could be included in a future strategic plan. Furthermore, Sri Lanka can lead a campaign to gain more countries especially from destination countries as parties to ICRMW.[6]
Conclusion
According to the above-mentioned facts, it is evident that some Sri Lankan migrant workers especially in the Middle East and some other developing countries, have been struggling to claim their right to health although the right is affirmed under international and domestic laws. However, the failure cannot be framed only into the legal rights and responsibilities scenario due to the rapid spreading of the pandemic. Therefore, the addressing approach for the immediate issue should be a practical process that incorporated with all relevant stakeholders in both international and domestic levels. Moreover, the issue should be used as a lesson to protect the right to health of Sri Lankan migrant workers in the future.
(Viranjana Herath is a lawyer, journalist, and researcher currently reading his Ph.D. in Legal studies at South Asian University, New Delhi with Masters in Human Rights Law from National law school of India University Bangalore and Masters in Mass Communication from the University of Kelaniya, Sri Lanka)
[1] Sargeant, Malcolm and Tucker, Eric, “Layers of Vulnerability in Occupational Health and Saftey for Migrant Workers: Case Studies from Canada and the United Kingdom” (2009).Comparative Research in Law & Political Economy.Research Paper No. 8/2009. http://digitalcommons.osgoode.yorku.ca/clpe/123
[2]UN Committee on Economic Social and Cultural Rights (CESCR), General Comment No. 14: the right to the highest attainable standard of health (Art. 12),
[3] See the basics of ICCPR , The Inter-American Court of Human Rights ruled that there should be no discrimination between regular and irregular migrant workers in its Advisory Opinion OC-18 of 17 September 2003
[4] Fact Sheet No 31, Office of the United Nations High Commissioner for Human Rights and World Health Organization.
[5] Kinney Eleanor, Provision for Health and Health Care in the Constitutions of the Countries Around the World, Cornell International Law Journal, March, 2005
[6] 130 countries of the World have not been any action on the Convention by May 2020 and almost all destination countries are in this category. (https://indicators.ohchr.org/)
