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DISCRIMINATION AGAINST MIGRANT WORKERS: INVESTIGATING INEQUALITIES IN HEALTHCARE TREATMENT
Shahrul Mizan Ismail Associate Professor of Law, Faculty of Law, National University of Malaysia and Che Wan Norazura Che Wan Nordin Faculty of Law, National University of Malaysia Abstract Migrant workers’ equal right to healthcare treatment in receiving States is to be protected as ‘all human beings are born free and equal in dignity and rights’. 1 This, in other words means that every human being should be treated equally without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The difference in terms of citizenship or nationality should not prohibit anyone from enjoying the same right. However, currently, this has proven not to be the case where nationality is one of the reasons for inequality in healthcare treatment received by migrant workers. Rights of migrant workers including the right to health is explicitly recognised under a number of international law instruments. Therefore, inequality in healthcare treatment received is a discrimination as it violates their right to health. This article discusses the impact of the Universal Declaration of Human Rights (‘UDHR’) and other international conventions governing migrant workers’ equal right to health such as the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’), the International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’) and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (‘ICRMW’) to migrant workers including their family members’ right to healthcare treatment. It is undeniable that the emergence of these conventions is a proof that the right to healthcare is a right afforded to everyone including migrant workers and as such, nodiscrimination should be condoned. Although migrant workers’ right to healthcare treatment is fully protected under the UDHR and international conventions, inequalities in healthcare treatment due to discrimination based on nationality still occurs. Thus, this article will identify how discrimination has caused inequalities in 1
Article 1 of Universal Declaration of Human Rights (UDHR). It is a declaration adopted by the United Nations General Assembly on 10 December 1948 at the Palais de Chaillot, Paris. The Declaration arose directly from the experience of the Second World War and represents the first global expression of what many people believe to be the rights to which all human beings are inherently entitled. The full text is published by the United Nations on its website. The Declaration consists of thirty articles which, although not legally binding, have been elaborated in subsequent international treaties, economic transfers, regional human rights instruments, national constitutions, and other laws. The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols. In 1966, the General Assembly adopted the two detailed Covenants, which complete the International Bill of Human Rights. In 1976, after the Covenants had been ratified by a sufficient number of individual nations, the Bill has become an international law, to be followed by all. See United Nations, Universal Declaration of Human Rights at http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf (last referred on 9/10/2017)
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healthcare treatment. Besides discrimination against migrant workers and their families’ access to healthcare in receiving States, the barriers which prohibit them from enjoying the same are also to be analysed. Further, this article also identifies the reasons behind the discrimination and propose the necessary efforts that should be taken by receiving States which ratified the international conventions mentioned above to ensure that equal treatment in healthcare among migrant workers and their families is realised. Keywords: Discrimination against migrant workers, inequality in healthcare, right to health, international conventions.
INTRODUCTION The connotation that „Everyone is entitled to an adequate healthcare without distinction of any kind‟ invokes the meaning that healthcare should be made applicable to both citizens and non-citizens of the country. Focusing on the need of healthcare among migrant workers, it is agreed that an access to affordable and comprehensive healthcare for them and their families is materially important. A healthy worker will be a productive asset to the company or industry they are working in. Thus, it is vital for them to have equal healthcare treatment as received by people of receiving States. Generally, a migrant worker can be interpreted as „a person with temporary permission to work in another country‟. The term migrant worker has different official meanings and connotations in different parts of the world. The United Nations‟ definition is broad, including any person working outside of their home country. The term can also be used to describe someone who migrates within a country, possibly their own, in order to pursue work such as seasonal work. 2 Article 2 of United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families („ICRMW‟) provides that a migrant worker refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.3 In other words, migrant workers are people who are working in countries other than their own. Generally, people migrate for many different reasons such as economic, social, political or environmental.“Economic factor refers to economic growth of receiving country which encouraged migration of migrant worker to the country,” whereas social factors mainly indicate that there are “similarities between the sociocultural of the countries they are coming from with the sociocultural of the new countries they are joint for is one of the factors for migration.” In other words, migrant workers will be more encouraged to migrate to those countries when they will suffer no difficulties in adapting the culture, language, life style and etc.4 2
http://www.definitions.net/definition/migrant%20worker.
3
Article 2 of International Convention on the Protection of the Rights of All Migrant Workers and Members of Their families.
4
For further explanation, please refer to Kertas Kerja Seminar Pembangunan & Isu-Isu Global (Mtp 3012), http://sarjana.tripod.com/migrasi1.html (last referred on 9/10/2017)
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Equal access to healthcare is a crucial component of a person‟s fundamental right to health. Thus, migrant workers also have equal rights to healthcare as received by nationals and such right should not be denied. However, the issue lies in the extent to which a migrant worker‟s right is protected and fulfilled by a receiving state. The „right to health‟ encompasses a similarly broad range of factors. It is not simply the right to be healthy or the right to healthcare. It includes other complementary rights, such as the right to have access to food and nutrition, housing, safe and potable water, adequate sanitation, safe and healthful working conditions and health-related education and information. 5 The World Health Organization (WHO) defines health as „a state of complete physical, mental and social wellbeing and not merely the absence of disease.‟6It is influenced by a broad range of factors, including income and social status, social support networks, education and literacy, employment/working conditions, social environments, physical environments, personal health practices and coping skills, healthy child development, biology, gender, and culture. 7 Even though equal access to healthcare is a part of the migrant workers and families‟ right to health, in certain receiving states such right has been denied as migrant workers‟ are only provided with limited access to healthcare for them and their families. This differential treatment is a form of discrimination against them and their families. Generally, discrimination refers to a situation where there is an existence of unjust or prejudicial treatment of different categories of people or things, especially on the grounds of race, age, color, sex, ethnic or nationality. 8 In plain English, to „discriminate‟ means to distinguish, single out, or make a distinction. 9 In human social affairs, discrimination is known as a “treatment or consideration of, or making a distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing is perceived to belong to rather than on individual merit.”10 This kind of treatment or consideration might
5
Committee on Economic, Social and Cultural Rights (CESC), 2000, „Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights‟, General Comment No 14, article 11. 6
Preamble to the Constitution of the WHO as adopted by the International Health Conference, New York, 19–22 June, 1946; signed on 22 July 1946 by the representatives of 61 states (Official Records of the World Health Organization, No 2, p 100). 7
Hamilton, N, 2010, Migration Health: Emerging Perspectives, Health Policy Research Bulletin, Vol 17, at pp 3–7, at www.healthcanada.gc.ca/ hpr-bulletin. 8
US Equal Employment Opportunity Commission in its website has laid down 12 types of discrimination that are discrimination of age, disabilities, equal pay/compensation, genetic information, harassment, national origin, pregnancy, race/color, religion, retaliation, sex and sexual harassment. See more at https://www.eeoc.gov/laws/types/index.cfm. 9
http://civilrights.findlaw.com/civil-rights-overview/what-is-discrimination.html.
10
http://www.dictionary.com/browse/discrimination (last referred on 9/10/2017)
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involve individual or group which is based on their actual or perceived membership in a certain group or society “in a way that is worse than the way people are usually treated”.11 Nowadays, discrimination occurs due to distinction of any kind such as sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status. Such discrimination, if any, may bring them difficulties in enjoying their rights in receiving States as the situation has violated their right to health. It is common knowledge that the UDHR and international conventions were drafted to protect the rights of every human being and that the underlying principle is that these rights including the right to health is applicable to every one without distinction of any kind. As such, inequality in healthcare treatment received by migrant workers contradicts with the principle of equality under international conventions and the UDHR.
MIGRANT WORKERS’ RIGHT TO EQUAL HEALTHCARE TREATMENT AND THE EXTENT OF ITS PROTECTION UNDER THE UDHR AND INTERNATIONAL CONVENTIONS
„International human rights recognize the enjoyment of the highest attainable standard of health as a fundamental human right of every individual, regardless of race, religion, political belief, economic or social condition, and immigration status. The right to the highest attainable standard of health does not exclusively belong to nationals or migrants in a „regular‟ situation. Just as a migrant who is charged with a criminal offence should not be denied his or her right to a fair trial, equally sick migrants should not be denied their human right to medical care without discrimination. There are many reasons for not discriminating against a migrant who needs medical care: ethical, humanitarian, public health, economic and human rights‟. 12 In other words, the denial of accessibility to the same fundamental right to health is a discrimination and a violation of human rights. As stated earlier, every human being is born free and equal in dignity and rights. Every person is entitled to the same rights without distinction of any kind. The UDHR, ICESCR, ICERD and ICRMW were drafted to protect the rights of everyone including migrant workers right to health. Even though the right to health is clearly recognised under international law, the extent to which this right is afforded to migrant workers and their families remains an internationally debatable issue as some receiving states refuse to recognise such right. The right of every human being is generally protected under the UDHR. This 1948 declaration provides for the freedom and rights of every human being that are to be respected
11
http://dictionary.cambridge.org/dictionary/english/discrimination?a=american-english (last referred on 9/10/2017) 12
http://publications.iom.int/system/files/pdf/iml_19.pdf.
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without distinction of any kind. Article 1 13 of the UDHR clearly gives the same right to everyone and that every human being shall be treated equally in dignity and rights. Migrant workers and their family members are included within the meaning of human being and therefore entitled to the same rights spelt out in this declaration. The right to health is specifically mentioned in article 25(1) of the declaration where the article provides that every human being has „the right to a standard of living adequate for health, including food, clothing, housing and medical care, necessary social services, the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control‟.14 This article clearly shows that migrant workers and their families are also entitled to the same right to health as the right does not specifically refer to citizens in the receiving state alone. Equal rights to healthcare is a right to health of all human beings which needs to be respected by all. Thus, the denial by receiving states to recognise migrant workers‟ right to health is discriminating and a clear violation of human rights. This declaration however is a non-binding declaration. As it is a non-binding document, no specific mechanism is applicable to punish receiving States that have failed to provide equal access to healthcare treatment for migrant workers and their family members. The right to health is also protected under the International Covenant on Economic, Social & Cultural Rights (ICESR).15Article 12 of the ICESR prescribes the „right of everyone to the enjoyment of the highest attainable standard of physical and mental health.‟16 This includes specific provisions for child and maternal health; environmental and industrial hygiene; medical access and attention for all; and prevention, treatment, and control of diseases. 17 This article specifically provides the norms or standards for the right to health. The term „right to health‟ is commonly used at the international level and underlines the importance of recognising not only the right to health care, which is a part of the right to health, but also a right to a certain number of underlying preconditions for health. These preconditions are: safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and
13
Article 1 of the UDHR: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. 14
Article 25(1) of the UDHR.
15
Office of the High Commissioner for Human Rights (OHCHR), http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx (last referred on 9/10/2017) 16
Article 12 must be read in conjunction with Article 2 of the International Covenant on Economic, Social and Cultural Rights. The latter states that each State party to the Covenant undertakes to take steps with a view to achieving progressively the full realization of the rights recognized in the Covenant by all appropriate means, including particularly the adoption of legislative measures. Nonetheless, the Committee on Economic Social and Cultural Rights General Comment No. 14 on Article 12 of the Covenant specifies that „progressive realization means that States Parties have a specific and continuing obligation to move as expeditiously and effectively as possible towards the full realization of Article 12‟. http://publications.iom.int/system/files/pdf/iml_19.pdf 17
ICESCR, article 12.
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housing, healthy occupational and environmental conditions and access to health-related education and information including sexual and reproductive health.18 With the introduction of article 12 of the ICESCR, the definition of this right has been expanded by the ICESCR Committee.19 According to the committee, the right to health for individuals means the freedom to control one‟s health and body and the entitlement to a system of health protection that provides equality of opportunity for all. 20 This further corroborates the notion that has been stressed in this article that migrant workers are entitled to equal right to healthcare and that this right must be respected. Article 12 also mentions the necessary actionsto be taken by State Parties to improve the health of everyone, including reducing infant mortality and improving child health, improving environmental and workplace health, preventing, controlling and treating epidemic diseases, and creating conditions to ensure equal and timely access to medical services for all. For State Parties to the ICESCR, there is an obligation to respect, protect and fulfil the right to health. The duty and obligation of the State Parties refers to the creation and promotion of health and support systems based on four key principles: (a) availability of functioning public health and health-care facilities, goods, and services, including safe and potable drinking water, adequate sanitation, hospitals and clinics, and trained medical and professional personnel receiving domestically competitive salaries; (b) accessibility of health facilities, goods, and services, defined by the principle of nondiscrimination, particularly with regard to the vulnerable or marginalized. This includes physical accessibility, economic accessibility (affordability), and information accessibility;21 (c) acceptability of health facilities, goods, and services, which must be respectful of medical ethics and culturally appropriate; and (d) Quality of health facilities, goods, and services, which must be scientifically and medically appropriate and of good quality, including skilled medical personnel, scientifically approved and unexpired drugs, safe and potable water, and adequate sanitation.22 18
Paola Pace, Migration and the Right to Health: A Review of International Law, International Organization For Migration, P 9. 19
The Committee on Economic, Social and Cultural Rights (CESC) is the body of 18 independent experts that monitors implementation of the International Covenant on Economic, Social and Cultural Rights by its States parties. 20
CESCR, General comment no.14, Article 8.
21
Ibid, Article 4.
22
Ibid, Article 12.
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The State Parties must ensure that an equal treatment in healthcare is attainable by everyone including migrant workers and their family members. The denial of their right to health is a discrimination that constitutes to a violation of human rights.
The ICERD 23 was drafted to eliminate racial discrimination and to promote better understanding among all races. This convention takes into account the UDHR proclaims that all human beings are born free and equal in dignity and rights and are entitled to all rights and freedom without any distinction. Article 1 provides that „the term racial discrimination refers to any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life‟. This article suggests that inequality in healthcare treatment received by migrant workers due to distinction of nationality is considered as racial discrimination. State parties are responsible to take the necessary actions as provided under article 2 of the ICERD to prohibit this racial discrimination. Further, article 5 of the ICERD provides for the responsibility of State Parties to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, in the enjoyment of the rights stated under the convention. 24 Equal treatment to healthcare is a right tohealth and the right is considered as a civil right under parah (d) (iv) of article 5 of the ICERD. This means that it is the duty of State Parties to put in place a necessary mechanism to prohibit racial discrimination towards migrant workers. Migrant workers should not be discriminated just because of their nationality or citizenship. Migrant workers and their families have the same right to health as granted to the citizens of a receiving state. The denial of their right to have the same accessibility to healthcare treatment shall discriminate them and this is contradicting with the intention of ICERD. Article 14 of the Convention establishes an individual complaints mechanism where parties may at any time recognize the competence of the Committee on the Elimination of Racial Discrimination to consider complaints from individuals or groups who claim their rights under the Convention have been violated. Such parties may establish local bodies to hear complaints before they are passed on. Complainants must have exhausted all domestic remedies, and anonymous complaints and complaints that refer to events that occurred before the country concerned joined the Optional Protocol are not permitted. The Committee can request information from and make recommendations to a party. Rights of migrant workers and members of their families are also explicitly recognised under the ICRMW. 25 It provides in detail the rights of migrant workers and their families
23
The Convention on the Elimination of All Racial Discrimination was adopted by the General Assembly on 21 December 1965 by resolution 2106 (XX), and it entered into force on 4 January 1969, thirty days after the deposit of the twenty-seventh instrument of ratification, as provided for in its article 19. http://legal.un.org/avl/ha/cerd/cerd.html. 24
Ibid.
25
ICRMW is a United Nations multilateral treaty governing the protection of migrant workers and families. Signed on 18 December 1990, it entered into force on 1 July 2003 after the threshold of 20 ratifyingStates was reached in March 2003. The Committee on Migrant Workers (CMW) monitors implementation of the convention, and is one of the seven UN-linked human rights treaty bodies. As at 2016, there are 49 countries
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throughout the entire migration process, tailoring the obligation of States according to the stage of migration, including departure from and return to sending States, and transit and employment in receiving States. The ICRMW is the most comprehensive instrument protecting the rights of migrant workers and their family members. The convention came into force in 2003 and creates a baseline for governmental parties that signed the convention and obligates them to advocate. This convention recognises migrant workers as a group vulnerable to rights‟ violations and sets out a framework for „equitable and humane conditions of international migration‟. 26 It recognises the importance of providing migrant workers with access to social security, emergency medical care, 27 and health and social services,28and stipulates that migrant workers should have access to the same treatment as nationals of the state of employment in respect of working conditions.This United Nations Convention constitutes a comprehensive international treaty regarding the protection of migrant workers‟ rights. 29 One of the reasons behind the introduction of this international convention is that the rights of migrant workers and members of their families have not been sufficiently recognised and therefore require appropriate international protection.30 The Convention seeks „to establish minimum standards that State Parties should apply to migrant workers and members of their families, irrespective of their migratory status. The concept behind the recognition of rights of undocumented migrant workers is also reaffirmed in the preamble, in which the State parties consider, inter alia, that irregular migrants are frequently exploited and that they face serious human rights violations and that appropriate action should be encouraged to prevent and eliminate clandestine movements and trafficking in migrant workers while at the same time ensuring the protection of their human rights‟.31 Basically, there are nine parts in the ICRMW that is Parts I-IX. Article 1 provides that the convention shall be applicable to the „migrant workers and members of their families without distinction of any kind such as sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, that have ratified this international convention .The Convention required a minimum of 20 ratifications before it could enter into force.http://www.ohchr.org/english/law/cmw.htm. 26
ICRMW, p 9.
27
Ibid, article 28.
28
Ibid, Articles 43 and 45.
29
It emphasises the connection between migration and human rights, which is increasingly becoming a crucial policy topic worldwide. The Convention aims at protecting migrant workers and members of their families; its existence sets a moral standard, and serves as a guide and stimulus for the promotion of migrant rights in each country. 30
Preamble, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. 31
Preamble to ICRMW, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CMW.aspx (last referred on 9/10/2017)
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marital status, birth or other status‟. The convention shall apply during the entire migration process of migrant workers and members of their families, which comprises preparation for migration, departure, transit and the entire period of stay and remunerated activity in the State of employment as well as return to the State of origin or the State of habitual residence. 32 This article is in line with the UDHR which proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedom set out therein, without distinction of any kind, in particular as to race, color or national origin. 33 These rights enshrined in the ICRMW and the UDHR clearly confers migrant workers and members of their families the same rights as those granted to all human beings. As such, migrant workers and their families should not be treated differently on the basis of nationality alone. Article 7 of the ICRMW provides the obligation of State Parties to ensure all migrant workers and members of their families have the same rights without distinction of any kind34 Equal rights to healthcare treatment is enshrined under article 28 where it provides that „migrant workers and members of their families shall have the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State concerned. Such emergency medical care shall not be refused to them by reason of any irregularity with regard to stay or employment‟. 35 This article gives full protection to the migrant workers and members of their families to have equal medical care treatment to preserve their life. The failure of emergency medical care to fulfil the right is a discrimination and therefore a violation of right. Article 43(1)(e) of the ICRMW also provides that „migrant workers shall enjoy equality of treatment with nationals of the State of employment in relation to access to social and health services, provided that the requirements for participation in the respective schemes are met‟. 36 This article specifically gives migrant workers the right to access social and health services. In other words, the same treatment received by the nationals shall be made applicable to them. Thus, the refusal of receiving countries to give equal treatment to them generally can be considered as an infringement of their right as human beings. State Parties that have adopted the ICRMW have an obligation to provide migrant workers‟ the same treatment as those granted to their own nationals.
32
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families Adopted by General Assembly resolution 45/158 of 18 December 1990.http://www.ohchr.org/Documents/ProfessionalInterest/cmw.pdf 33
Universal Declaration of Human Rights
34
Part II, article 7 of International Convention on the Protection of the Rights of All Migrant Workers and Members of Their families. 35
Article 28 of the ICRMW.
36
Article 43 of the ICRMW.
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Article 45 of ICRMW further provides for the access to social and health services to the family members of migrant workers to which they are also entitled to equal treatment as received by the nationals.37 Alongside the ICRMW, the International Labour Organization‟s Migration for Employment (No 97), Migrant Workers (Supplementary Provisions) Convention (No 143), and Domestic Workers Convention (No 189) also stipulate certain health protections specifically for migrant workers. These include standards with regard to medical examinations; care and hygiene before the migration journey, during the journey, and on arrival; 38 equality of opportunity with regard to social security;39 weekly rest periods; and protection from abuse. Current global health approaches also endorse the public health benefits of a functioning health system accessible to all, without discrimination.40 The existence of the right to health under the UDHR and other international treaties is an evidence that shows the importance of right to health and that every person is entitled to this right. In other words, health is important for every human being in the world regardless of their differences and it is the duty of the respective states to take all necessary actions in ensuring the right is accessible to everyone. This international convention is an important document especially for the countries which have adopted and ratified it. However, the issue whether the ICRMW can absolutely protect migrant workers‟ right to equal health treatment is also difficult to be answered since only certain countries agree to ratify it. Equal access to healthcare for migrant workers and their families is a right that needs to be uphold and respected. The various international conventions currently in place affirm migrant workers‟ right to healthcare treatment. However, there is no absolute assurance that such right shall be enjoyed by all migrant workers as they are still faced with discrimination in receiving states that refuse to acknowledge such right. However, it is the obligation of the State Parties that have signed and ratified the conventions must comply with all the rules and laws stipulated under the conventions. Failure of the States to comply is a violation of the conventions. It is noted that the State Parties are responsible to take all necessary mechanism to ensure all the rights are attainable by everyone in the country.
RIGHTS OF FAMILY MEMBERS
37
38
39
Article 45 of the ICRMW. International Commission of Jurists, Migration and International Human Rights Law at p 211. International Labour Organization Convention No143, article 10.
40
Fitchett, J, 2010, The right to health in practice, International Journal of Clinical Practice, Vol 65(3) at pp 245–248.
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It has been established above that equal rights to healthcare treatment is a right protected under the UDHR and international conventions and is a right entitled to all including migrant workers and their family members. Any form of discrimination thus is a violation of international law. Broadly speaking, the right to health encompasses the freedom to control one‟s health and body and the entitlement to a system of health protection that provides equality of opportunity for all. 41 The health issues that a migrant and other mobile underserved populations face are similar to those faced by the general population but are often magnified or compounded by their migratory lifestyle.42 Migrant workers often face separation from their families, unfamiliar social and cultural norms, language barriers, appalling living standards, exploitative working conditions, as well as discriminatory access to health-related services. Migrant workers are prone to various kinds of diseases. Effective healthcare is needed to protect migrant workers and their families from infected diseases or diseases which can disrupt them from their work.43 Consequently, there should be easy accessibility to healthcare wherever they are. The same accessibility should also be made available to the family members of the migrant workers‟. Migrant children, for example, may require special medical care44 as they are at a higher risk for developing health challenges.45 An effective healthcare system will not only help to protect the health of migrant workers and their families but also the citizens of the state which may be affected if the diseases are infectious. Besides that, equal healthcare treatment is necessary to from the spread of disease which may affect the economic growth of countries that rely on migrant workers. Such inequality is a discrimination against migrant workers and violate their right to health. The examples of discrimination faced by migrant workers include the following: Firstly, unequal treatment arises due to excessive and unreasonable medical fees charged to the migrant workers and their families. Normally, the medical fee or cost charged to them by hospitals or clinics is different from those charged to employed nationals. The notion that 41
Committee on Economic, Social and Cultural Rights, General Comment No 14, Article 8.
42
Kugel C, Zuroweste E. The state of health care services for mobile poor populations: history, current status, and future challenges. J Health Care Poor Underserved. 2010;21(2):421–429. 43
For example, Migrant Clinicians Network (MCN) in its website has clarified some issues relating to migrant health in United States of America. Among them are regards to behavioural health, cancer, children‟s health, diabetes, family violence, HIV/AIDS, Hepatitis, Immunizations, oral health, tuberculosis, women‟s health and zika. Migrant Clinicians Network also reported „that underserved populations have a greater risk of developing certain cancers than the overall population. 44
According to MCN, all children deserve healthy and happy childhoods. When children migrate, they may experience pre-, peri-, and post-migration trauma. 45
Like their parents, migrant children experience unique health challenges that are compounded by factors such as immigration status, substandard housing conditions, and language barriers. „Social Determinants of Child Health‟, http://www.migrantclinician.org/issues/childrenshealth
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locals of a country deserve better treatment than those who are not further contributes to unequal treatment among migrant workers. Although that view is arguably a public misconception all along, in reality, most state policies do indeed give citizens of the country better treatment or rights compared to those afforded to migrants. As a result, they are only entitled to healthcare treatment which they can afford to pay. But is this privilege given to the locals a form of discrimination against the migrants. The different treatment does not necessarily amount to discrimination as there are certain countries which has a policy which disallow the migrant workers from being treated equally in medical treatment. In other words, the policy of countries has prescribed is the medical costs for a migrant workers which is higher than that of a local person. Secondly, discrimination may occur in situations where doctors, nurses or any medical personnel are reluctant to treat the patients due to the nationality status of the migrant workers. Certain hospitals require patients to prove their residency before they are treated and the patient may be refused treatment by reason of failure to produce their travel documents The writers are of the view that they‟d normally give priority to the locals even though the migrants are the ones that are suffering more severe injuries and in need of immediate treatment. The priority may also be due to inability of the migrant workers to pay the costs. Hospitals should not refuse to treat migrant workers and their families on the basis of nationality alone as the right to health is a right conferred to all regardless of one‟s status or nationality. The refusal by doctors to treat migrant workers and families shall amount to discrimination to them if it is based on nationality. However, the issue may arise if the hospital has to provide a medical treatment in the case where the migrant workers unable to pay the cost. The burden to pay the cost will shift to the State Parties and this will cause financial burden on the state. Migrant workers can also claim that unequal treatment has been received if the doctors or nurses are reluctant to treat them or reluctant to ward them in for the reason that priority of the wards should be given to the nationals. It is the responsibility of the doctors and nurses to treat all the patients equally regardless of the status of nationality. No differential treatment should be made to the migrant workers as equal healthcare is their right to health. Thirdly, is regarding to vaccines provided for the citizens of a receiving State. As we are well aware, vaccines are important to prevent the outbreak of contagious diseases through herd immunity, provided that a high population is vaccinated. Each country has their own vaccination schedule which includes a list of vaccines and the ideal age they are to be administered. These vaccines are normally funded by the state government for the people of the country. However, due to government policies, migrant workers have to pay more to get the vaccines. The free vaccines are limited to nationals due to the high costs suffered by the government and it is impossible for the vaccines to be simply given to migrant workers or their families. Nevertheless, some countries do provide free vaccination even for immigrants
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such as New Zealand.46 In certain countries, it is a requirement for certain vaccines to be administered prior to entering the country in order to protect the nationals from infectious disease, to protect the migrant workers and family themselves and to avoid the disturbance of economic growth due to the disease infected. Is this phenomenon constitute to discrimination? For the state of employment, the discrimination shall be treated as not in existence since the condition to have those vaccines has been imposed before the migration and as migrant workers, they have to consider all the factors before deciding to migrate to another countries. But for the migrant workers, it is a discrimination against them. Inequalities in healthcare treatment due to the difference in terms of nationality and citizenship is a discrimination against their right to health. However, there are situations where such an inequality in healthcare treatment are taken place due to the failure of the migrant workers themselves to attain it. In other words, an equal treatment to healthcare might not be attainable due to certain barriers and the such barriers lead to disparities among the migrant workers and local people in receiving States. The migrant workers will consider this as discrimination to their right to health but on the part of receiving States, there is no intention to discriminate as they have drawn up an appropriate mechanism in their own country.
THE BARRIERS HAVE CAUSED MIGRANT WORKERS AND THEIR FAMILY MEMBERS’ INEQUALITIES IN HEALTHCARE TREATMENT As stated earlier, discrimination against migrant workers and their families happen when their right or access to healthcare as received by nationals is denied. However, there are situations where equal healthcare is not attainable or achievable due to barriers in the receiving states. Among the barriers which prevent the migrant workers and their family members from access to equal healthcare are: „First, the long distance to get to designated healthcare services combined with migrants long working hours make it somewhat difficult for migrants to access healthcare facilities. In the meantime, to take time off implies that the migrant has to bear the loss of daily payment. The migrants mostly would ignore minor sicknesses ie headache, cold, stomach ache in order to make sure that they do not miss any payment. In some cases, minor health problems accumulated end up with them requiring intensive care and treatment. Second, some employers seize migrants‟ permits and return only a photocopy. Although according to the law the migrants have sole rights to keep the permit, in reality the employers seize their employees‟ permit. The reason the permits are kept is because the employers do not want the migrants to abandon their jobs. Therefore, the migrants are not able to show authorities the permit while traveling in the 46
Adults and children who enter New Zealand as refugees or immigrants will need an assessment of their documented vaccination status and an appropriate catch-up programme planned. Regardless of their immigration and citizenship status, all children aged under 18 years are eligible to receive Schedule vaccines, and providers can claim the immunisation benefit for administering the vaccines. All children are also eligible for Well Child Tamariki Ora services, regardless of immigration and citizenship status.For further details, please see at https://www.health.govt.nz/our-work/preventative-health-wellness/immunisation/new-zealandimmunisation-schedule/immigrants-and-refugees
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receiving state and without the permit (in cases when the permits were kept by the employers) the migrants have difficulty obtaining healthcare services. In addition, migrants may be afraid of being arrested by the authorities on the way to or from healthcare service centres. Third, language barriers can also be considered a hindrance for migrants to access healthcare services since most hospitals and healthcare services do not have any translator providing services in the migrant language. The migrants may have some difficulty describing the symptoms of their sickness unless the migrant can manage to take their own translator (some migrants can manage to take their friend who can speak the same language to help them with translation). In some areas with a high density of migrant workers, the local hospital can afford to have some translation services (mainly supported by local NGOs working on migration). For registered migrants who have been working in the receiving state long enough and manage to speak the language well they seem to have more access to healthcare services. Fourth, and last, the condescending attitudes of healthcare staff discourage the migrants from accessing healthcare services. Negative attitudes of healthcare staff makes the migrants somewhat reluctant to seek treatment from assigned public healthcare centres. In addition, most patients visiting public healthcare services are likely to wait an extreme amount of time before receiving treatment and sometimes end up in need of intensive treatment. Unregistered migrants may fear being arrested or harassed while they are looking for healthcare service.‟47
Migrants struggle with similar challenges as other underserved populations regarding access to health care, but face the additional barriers of mobility, language, and cultural differences, lack of familiarity with local health care services, and limited eligibility to publicly and privately funded health care programs.48 Additionally, the barrier in accessing healthcare can also be due to the reason that health needs are not even considered a part of their employment benefits. According to the International Organization for Migration laws, „this omission is due to the perception that health is something that should be discussed only by health specialists, even though many of the causes and solutions to improve migrants‟ health are found in other sectors, such as labour, social protection, immigration and law enforcement, among others‟.49 In order to protect migrant workers and their families‟ equal right to healthcare, the discrimination and the barriers must first be eliminated. Society and more importantly, the
47
http://apmrn.anu.edu.au/conferences/8thAPMRNconference/25.%20Migrant%20Workers%20and%20their %20Rights(TIK).pdf. 48
All above mentioned barriers are accepted by Migrant Clinicians Network. The uninsured rate for underserved Americans has dropped since the adoption of the Affordable Care Act, anecdotal evidence indicates that many migrant workers like farmworkers are unable to afford co-pays and deductibles. Migrants are on the move -- but their health care might not follow. Their migratory lifestyles bring them out of their provider networks, reducing access further. Undocumented workers remain ineligible for coverage under the ACA. Fear of deportation and contact with governmental agencies makes access to health care even more complicated for undocumented migrants. See at http://www.migrantclinician.org/. 49
Carolyn Rodehau, David Wofford, Vice President, Meridian Group International, Migrant Workers’ Right to Health: A Global Advocacy Agenda at https://www.ihrb.org/focus-areas/migrant-workers/migrant-workersright-to-health-a-global-advocacy-agenda (last accessed 9/10/2017)
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state itself, bears the responsibility in promoting equal healthcare treatment for migrant workers and their families.
THE NEED TO REDRESS HEALTHCARE TREATMENT
MIGRANT
WORKERS’
INEQUALITY
IN
An operational framework for migrant health has been produced to protect and eliminate the disparities or discrimination to the right of health among the migrant workers. The framework was produced by a follow-up Global Consultation on Migrant Health organized by WHO and the International Organization for Migration in 2010. 50 This framework establishes four priority pillars to help WHO member states to operationalise the goals of the Resolution on the Health of Migrants. One of the goals recognized is increased health risks for groups of migrants, and calls for the promotion of migrant-sensitive health policies and equitable access to health promotion, disease prevention, and care.51 The four priority pillars are: (a) (b) (c) (d)
the establishment of policy and legal frameworks; monitoring migrant‟s health; migrant-sensitive health system; and partnerships, networks and multi-country framework.
These four pillars established address disparities in health status in order to improve overall public health. For migrant workers, this means that their health status is no longer framed as a threat to human security or a source of disease, as it may have been in the past. Instead, exclusion and discrimination is replaced with a push for equitable, culturally sensitive service systems, supported by education and health promotion.52 Migrant workers face many inequities. Yet health is a fundamental right – and systemic violations do real harm to workers, communities and companies themselves. It is in the self-interest of business to address worker health rights, as companies that do so have improved productivity and workermanagement relations. Just as different governments have varying levels of resources, companies depending on their size and type have different capabilities. However, respecting the right to health is not about workplaces becoming primary care facilities but instead about applying better management and workplace health practices. For the human rights community, worker health and reproductive rights are inseparable from women‟s empowerment, gender equality and labor rights. We would assert that companies that demonstrate care for worker health, not just safety, are more likely to perform better across a range of human rights concerns. The following recommendations for policy makers, business leaders and civil society are
50
United Nations Development Programme Bangkok Regional Hub, The right to Health, 2015, at p 23.
51
Ibid, at p 89.
52
Ibid at p 20.
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intended to advance efforts to protect the right to health of this vulnerable population53 within the global workforce: 1.Human rights advocates should integrate health, including sexual and reproductive health rights, firmly into their efforts to improve employment standards related to migrant workers. The human rights community and labor rights organizations in particular can help bring about structural policy changes by advocating for the inclusion of health related provisions in the global policies, incentive structures, and public and private regulatory mechanisms that companies are expected to address. For example, health should be included in migrant worker contracts. Additionally, medical examinations should be part of pre-departure procedures along with health promotion activities. 2.Policy makers should support legislative and other actions that ensure workplace policies and practices concerning quality health services apply to migrant workers. Regardless of the employment arrangement or contract length, migrant workers‟ basic health needs should be addressed. There are many approaches for doing this – improving workplace-based services (which could include hiring a health professional of the same nationality), contracting with NGO service providers, referring to quality public or private health services, and establishing good workplace health policies ensuring worker health rights. 3.Business leaders should step up efforts to make reproductive health and family planning a part of the corporate gender and women‟s empowerment agenda. Business leaders have many opportunities to highlight the links between their corporate responsibility to respect human rights and their policies and practices on women‟s health issues in the workplace. For example, the annual UN Forum on Business and Human Rights, to name one, provides an important platform to highlight the role of business in respecting health and reproductive health rights and to discuss good practice in this area. 54
Most conventions include the obligation to ensure that the right to health is attainable by everyone with no discrimination of non-State Parties. It is the duty of State Parties to eliminate the discrimination by enforcing internal order to all hospitals and clinics, doctors and nurses for them to treat all patients equally with no discrimination of nationality. Further, such inequality also can be abolished by ensuring that all employers provide insurance schemes for all their workers and family members regardless of their citizenship. Nowadays, there are certain companies which makes it compulsory for workers to contribute to insurance schemes for health purposes. However, the obligation is not made compulsory on migrant workers. Taking the high cost for healthcare treatment into consideration, it is suggested that the obligation to pay the insurance shall also be imposed on the migrant workers.
53
Vulnerable populations include patients who are racial or racial or ethnic minorities, children, socioeconomically disadvantaged, underinsured or those with certain medical conditions. Members of vulnerable populations often have health conditions that are exacerbated by unnecessarily inadequate healthcare Please include article title and author: David Waisel, Vulnerable populations in healthcare, at https://www.ncbi.nlm.nih.gov/pubmed/23385323 (last referred on 9/10/2017) 54
https://www.ihrb.org/focus-areas/migrant-workers/migrant-workers-right-to-health-a-global-advocacyagenda
16
CONCLUSION Health issues cut across the entire migration process in countries of origin, transit, destination and return. Improving migrants‟ access to healthcare and promoting their well-being contributes to creating a more prosperous, cohesive and healthy environment. Protecting the right to health of migrants and their families is to uphold a basic human right; it is also in the best interests of all countries and communities. In other words, health is a critical asset for migrant workers and their families. Unfortunately, migration all too often has a negative outcome for the individual migrant‟s health and may also have possible social and economic burden on host communities and significant repercussions for families that remain in their countries of origin. Governments in many regions increasingly acknowledge the need to integrate the health needs and vulnerabilities of migrants into their national plans, policies and strategies. As we know, access to the highest available standard of health has long been recognised as a basic human right and vital to the quality of life of individuals and committee. It is the obligation of every human being to abolish any kind of discrimination and State Parties plays an important role in supervising all the rights from being abused and to avoid misunderstanding among the citizens or non-citizens of the country. Further, „no doubt that the existence of various international and regional legislations and protocol instruments pertaining to the social protection of migrant workers is a proactive move given the increasing mobility of people who seek for work beyond their national borders. However, it is not sufficient, more so effective. Political sincerity reckons the willingness of both the sending and receiving countries‟ leaderships to book anyone that defies the letter and spirit of these instruments beyond political expediency. It also means a political leadership that accepts the indispensable role of migrant workers in the overall development agenda of the region and, at the same time, at will, secure a dignified future of these workers.‟55 International human rights recognise the enjoyment of the highest attainable standard of health as a fundamental human right of every individual, regardless of race, religion, political belief, economic or social condition, and immigration status. The right to the highest attainable standard of health does not exclusively belong to nationals or migrants in a „regular‟ situation. Just as a migrant who is charged with a criminal offence should not be denied his or her right to a fair trial, equally sick migrants should not be denied their human right to medical care without discrimination.56
55
Dr Linda A Lumayag, Migrant workers: Whose responsibility http://www.newmandala.org/migrant-workers-whose-responsibility-to-protect/ 56
Migration and the Right to Health: vii.http://publications.iom.int/system/files/pdf/iml_19.pdf
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A
Review
of
International
to
Law
protect?-
at
p
Bibliography
1.
Robin C.A White & Clare Ovey, Jacobs, White, & Ovey, The European Convention on Human Rights, Fifth edition, Oxford University Press;
2.
Paul Sieghart, The International Law of Human Rights, Clarendon Press. Oxford 1983;
3.
S.P. Sathe, Satha Narayan, Libertu, Equality and Justice, Struggles for a new social order, ILS Law College Platinum Jubilee Commemoration Volume, 2003;
4.
Elisabeth Reichert, Understanding Human Rights, Sage Publications, 2006;
5.
Universal Declaration of Human Rights 1948;
6.
International Convention on the Elimination of All Forms of Racial Discrimination;
7.
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their families;
8.
International Commission of Jurists, Migration and International Human Rights Law;
9.
International Labour Organization Convention No.143;
10.
Fitchett, J., 2010, „The right to health in practice‟, International Journal of Clinical Practice, vol. 65(3);
11.
Kugel C, Zuroweste E. The state of health care services for mobile poor populations: history, current status, and future challenges. J Health Care Poor Underserved. 2010;21(2);
12.
Hamilton, N., 2010, „Migration Health: Emerging Perspectives‟, Health Policy Research Bulletin;
13.
Committee on Economic, Social and Cultural Rights, General Comment no.14;
14.
United Nations Development Programme Bangkok Regional Hub,2015;
15.
https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights;
16.
http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf ;
18
17.
https://www.eeoc.gov/laws/types/;
18.
http://legal.un.org/avl/ha/cerd/cerd.html;
19.
http://www.migrationeducation.org/17.2.html?&rid=175&cHash=7716e96fd03d9a32 b4422c9e5734e530;
20.
https://treaties.un.org/doc/Publication/UNTS/Volume%201520/volume-1520-I26363-English.pdf;
21.
http://www.definitions.net/definition/migrant%20worker;
22.
https://en.wikipedia.org/wiki/Migrant_worker#cite_ref-3;
23.
http://sarjana.tripod.com/migrasi1.html;
24.
https://en.wikipedia.org/wiki/International_Convention_on_the_Protection_of_the_Ri ghts_of_All_Migrant_Workers_and_Members_of_Their_Families;
25.
http://www.migrationeducation.org/17.2.html?&rid=175&cHash=7716e96fd03d9a32 b4422c9e5734e530;
26.
http://www.ohchr.org/Documents/ProfessionalInterest/cmw.pdf;
27.
http://civilrights.findlaw.com/civil-rights-overview/what-is-discrimination.html;
28.
http://civilrights.findlaw.com/civil-rights-overview/what-is-discrimination.html;
29.
https://en.wikipedia.org/wiki/Discrimination;
30.
^„discrimination, definition‟. Cambridge Dictionaries Online. Cambridge University. Retrieved 29 March 2013;
31.
Dr. Linda A. Lumayag-http://www.newmandala.org/migrant-workers-whoseresponsibility-to-protect/
32.
http://www.asiapacific.undp.org/content/dam/rbap/docs/Research%20&%20Publications/hiv_aids/rba p-hhd-2015-the-right-to-health.pdf.
33.
https://www.health.govt.nz/our-work/preventative-healthwellness/immunisation/new-zealand-immunisation-schedule/immigrants-andrefugees. 19
