2nd place winner in the 3rd Intra College Essay Competition.
-Sadhana Deuba, 8thsemester
“We have slept under the open sky and survived on water for many nights. We are ready to stay in quarantine for as long as the government wants us to. They can put us in the jungle, far away from human settlements. We don’t want to spread COVID-19 in Nepal. We just don’t want to die in this desert.” – Nepali Worker in UAEThe world today is fighting an invisible enemy. As the numbers of countries were strengthening their military power and focusing on formulating their strategies and policies regarding international relations and paving the way of economic prosperity, the COVID-19 pandemic caused by Corona virus hit the world and paused the everyday working of millions. This age of globalization has led to the global integration and global interdependence making the world a global village or global economy. As globalization results in spreading both the good as well as evil in the world, COVID-19 has spread rapidly in the world. When the coronavirus disease was declared as a global pandemic by WHO on March 11, 2020, it was considered lethal biologically. But in the long run, it severely affects every wings of the State: economy, service, education, health sectors, justice and so on. During this pandemic, all people from every sections of world are suffering from the effects of pandemic but out of all, migrant workers are bearing the most severe brunt. So it’s high time that the concerned state needs to take necessary steps to ensure their fundamental human rights and security. Otherwise many of us will have to face much worst situation than of today.Nepal, a beautiful homeland for many people has the long history of migrant workers and the concept is not new to us. The history of formal labor migration begins in 1814-1816, after the Nepal-British India war. A total of 4,650 Nepalese youngsters were recruited to the British armed forces as a British-Gurkha regiment after the conclusion of the war and signing of the Treaty of Sugauli in 1816. Similarly, the migration of Nepalese people for other employment purposes, such as working in the tea states of Darjeeling and the forest of Assam, India, began in the second half of the 19th century. Economic migration to the Middle East from South Asia and other parts of the world was spurred on by the oil boom in the early 1970s. International labor migration, mostly to Gulf States, Malaysia and other South East Asian countries is a new phenomenon of migration in the Nepalese context with about a 30 years’ history. Unexpectedly, foreign labor migration has developed in such a way that it has shifted the agricultural-based Nepali economy towards remittance-based economy.The number of job aspirants in foreign land increased dramatically, especially after the restoration of democracy. The Labor Act, 1985 came as a boon for facilitating foreign employment and opening up avenues for the private sector. With the enactment of Foreign Employment Act, 1985 and arrangement of distributing passport to the potential migrant workers by the District Development Offices, accompanied by higher demand for labor created by the oil boom in the Gulf, the Nepalese started to migrate beyond India, particularly to the Gulf. Now, till today there are 110 countries where GON has approved for the Working Visa. By definition, the term “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. A “migrant worker” is defined in the International Labor Organization (ILO) instruments as a person who migrates from one country to another with a view to being employed other than on his own account, and includes any person regularly admitted as a migrant for employment.In Nepal, a staggering number of Nepalese relocate for works, both domestic and international. It can be evinced by the data of the Department of Foreign Employment that as of mid-June 2019, a total of 4,599,567 people have migrated for foreign employment (except India) after acquiring labor permit. These workers are susceptible to exclusion, stigma, and discrimination on a routine basis, more so during a crisis.According to migration in Nepal Report, there are an estimated 5lakhs Nepali Migrants in Malaysia, 4lakhs in Qatar, 334,451 in Saudi Arabia, 224,905 in UAE and 70,000 Nepali migrant workers in these countries which are considered as the main workers taking countries. These five countries alone accommodate over 1.5 million Nepali’s and there are other many European countries where Nepali people work as workers. Nepal has received lot of remittance from those migrant workers. As the volume of remittance significantly increased in the recent past from, 254 billion USD in 2010/11 to 879 billion USD in 2018/19 which is equal to 26% of total GDP of the country. From the above data we can say that, remittance is major contributor to the GDP of Nepal, the fate of large number of families depend on remittance. In the last fiscal year, Nepal received $8.6 billion in remittance. Due to the impact of pandemic, the amount of remittance is expected to decline by 20% in current fiscal year. More than 300 Nepalese workers have been confirmed with COVID-19 in gulf-states and Malaysia and due to the outbreak of Covid-19 these workers are suffering from the different problems.Recently, we saw the vulnerable condition of more than one thousand workers waiting to come home from India in the Nepal-India border. They were stranded in Dharchula, bordering Indian town across Mahakali River and were allowed to enter their motherland after they spent 34 days in quarantine. At this period around 500 people came through Mahakali River risking their lives. Moreover, these workers are susceptible to exclusion, stigma, and discrimination on a routine basis, more so during a crisis many workers are forced to leave their jobs arbitrarily, without being paid their dues, and are forced to vacate the premises where they live. On top of that, they lack unemployment insurance, and the health benefits in the host country are exclusive to their nationals. On 24 March, 2020 the High-Level Coordination Committee for the Prevention and Control of COVID-19 imposed nationwide Lockdown in Nepal. With this, the swift return home of these international migrant workers was not possible, exposing them to disproportionate risk. This delivers a picture in our mind that Nepalese migrant workers stay hopeless at a foreign state while both their employment and swift return home is ceased. The plight of these stranded workers is not limited to having minimal access to healthcare, basic services, water, food, and shelter. They are also exposed to human rights abuse and exploitative labor system. In this context, the onus of ensuring the rights for these migrant workers lies with the Origin State. It becomes indispensable that the State prioritizes the protection of worker’s rights and safety. However, it is equally eminent that these measures comply with the legal framework, conferred by Constitution and legislation. The migrant workers have fundamental rights amid the pandemic under the Constitution of Nepal 2072 (2015). They have a right to live with dignity, right to free basic health services from the State, and equal access to health services, right to be safe from the state of being in danger of life from the scarcity of food, and an exception under the right to freedom to move must undergo the test of “reasonable restrictions”. With each right of these workers, there lies an intrinsic obligation on part of the State. Hence, effective mechanisms have to be run to ensure that inhumane acts are not taken against them, and their constitutional rights ie; fundamental rights are duly observed. Recently, Supreme Court of Nepal in Mira Khadka v Office of PM and in Manish Kumar Shrestha v Office of PM, issued an interim order to government to protect the right to live with dignity, Article 16(1) of migrant workers and take necessary steps to bring back those who are stranded and quarantine them or if that is not possible then to manage food, shelter and health care in respective places. Labour Minister had said the plan is going on to bring the stranded workers back.On March 2, Supreme Court directed the government to halt flights from and to the countries that pose high risk of COVID-19 infection, including China, South Korea, Japan, Iran and Bahrain. The Supreme Court, in a writ petition filed by advocate Som Prasad Luitel, on April 16 asked the government to take care of the heath needs of Nepali migrant workers living on foreign soil and to repatriate vulnerable citizens from foreign lands to Nepal. The Supreme Court of Nepal has succeeded to direct the state to fulfill its duties and obligations expressed under various statutes.Responding to a writ petition filed by senior advocate Prakash Mani Sharma, the Supreme Court of Nepal on April 17 directed the government to ensure free transportation facility to stranded migrant workers to enable them to reach their homes. The court asked the government to conduct rapid diagnostic test for Coronavirus on all those stranded persons. In doing so, the court directed the state to stand by the cause of society.Thus it can be said that, the apex court of Nepal, through its robust judicial activism, has given a message that justice has to be delivered by keeping the wellbeing of people during the time of Covid-19 crisis and migrant workers fundamental rights and issues should be a matter of great concern.A famous English philosopher Thomas Hobbes wrote that human beings made a contract to form state to protect life, liberty and property. Likewise another English philosopher John Locke said that life, liberty and property are inalienable and natural rights of a person that means even a supreme power cannot deprive a person from those rights. American Declaration on Independence also stated there are some unalienable rights, among these are life, liberty and the pursuit of happiness. So, all states at first should protect right to life of the migrant workers. Article III of Universal Declaration of Human Rights (UDHR), Article 6 of International Covenant on Civil and Political Rights (ICCPR) guarantee the right of life of the every person, it is jus cogens norm in international law. Hence all states should respect the human life, dignity and prohibit inhuman treatment. It has been widely regarded as a binding law in state practice. In addition to this, International Criminal Tribunal for Former Yugoslavia (ICTY) in Prosecutor v Furundzijja held that respect for human dignity is the basic underpinning and indeed the raison d’être of human rights law. It is to be noted that right to life is a non-derogable right as per Article 4 of ICCPR and also a customary norm of international law. So, at the first instance the responsibility of both state of origin and state of employment have to protect the life of the migrant workers as it is their international obligation. To protect the lives of the migrant workers, states should guarantee their treatment in case of infection and otherwise should provide them the basic needs which include food, clothing, housing, adequate medical care and other necessary things. In providing those services and care, state of employment should not treat migrant workers disproportionately.In addition, Article 9 of International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families states that the right to life of migrant workers and members of their families shall be protected by law. Also, Article 28 of the same convention provides that the 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 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. It has been reported that the government of host country has quarantined workers en masse in their accommodation. But they should be quarantined in accordance with the guidelines set by WHO and other restrictive measures should be implemented in accordance with Article 3 of the International Health Regulations (2005),which requires such measures be fully respectful of the dignity, human rights and fundamental freedoms of persons. To protect the rights of the migrant workers, state of origin shall employ its diplomatic and consular missions. So, during pandemic both state of origin as well as state of employment have the responsibility to protect the human rights of migrant workers which are inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status under their obligation prescribed by international human rights law. Another responsibility that should be taken by the state of origin is to rescue or return the workers who are stranded in the state of employment as per WHO guidelines. Article 13 of UDHR secures the individual to return to their country. Governments of state of origins should conduct the special repatriation operation if needed. As numbers of workers have lost their jobs and are not being treated properly, are in grave danger of infection, they may want to return their homeland. But due to suspension of international flights by almost all states, it has become virtually impossible for the workers to return home on their own. So, state of origin must be prepared to conduct repatriation operation to avoid devastating consequences.Section 75(2) of Foreign Employment Act, establishes the Foreign Employment Welfare Fund for the purpose of providing social security and welfare to the workers and their family who have gone to or returned from the foreign employment under the Foreign Employment Promotion Board. Government can use that fund to provide basic standard of living to the workers who have lost their job or are working in low wage rate. Nepal has 30 embassies and government should through those embassies help the workers who are in great peril from the pandemic. State of employment has been cooperative. For instance, UAE has extended the expired visa of for three months and Kuwait has also done the same. This is a good gesture shown by host states and other host states should also follow the same. To sum up, protection of rights of the migrant workers in the time of pandemic is the responsibility attributable to both state of origin and state of employment as both states are greatly benefited from the works of those workers. We have witnessed heart wrenching exodus of workers inside our country. Covid-19 pandemic is not only a health issue but is also an economic issue for Migrant workers as they have contributed for the economy of the country to afloat during the decade long armed conflict, or during the devastating earthquake in 2072 by sending billion of money in the form of remittance and in this pandemic they are in distress and they need their government to do something for them. So the government should work in time to protect the fundamental human rights of the migrant worker as it is its international and constitutional obligation. State of origin should take necessary steps to bring back those workers who want so and quarantine them. Furthermore, state of origin should take care of the families of those workers whose lives depend on the remittance. Those legal provisions are not the sole repository of the right to life of individuals; it is indeed guaranteed by some higher law. Hence the government should work hand to hand with all the national and international actors to ensure the fundamental human rights of migrant workers during COVID-19. As Yuval Noah Harari, a philosopher, puts it, “The real antidote to epidemic is not segregation, but rather cooperation”.Lastly, to fight against the crisis, a joint statement by the Office of High Commissioner for Human Rights, UN High Commissioner for Refugees, the International Organization for Migration, and the WHO, “We cannot allow fear or intolerance to undermine rights or compromise the effectiveness of responses to the global pandemic. We are all in this together. We can only defeat this virus when each one of us is protected”; it should be our slogan. In this time of pandemic, we should not conclude that the right thing to do is to act for greatest happiness of greatest number accordance with utilitarianism of Bentham but we should act categorically by respecting individual rights based categorical imperatives of Kant.
- Laxman Singh Kunwar, PhD , Economic Journal of Development Issues Vol. 19 & 20 No. 1-2 (2015) Combined Issue, Emigration of Nepalese People and Its Impact
- Department Of Foreign Employment, 2014
- Article 2(1) of the International Convention on protection of the Rights of All Migrants Workers and Members of Their Families
- International Labor Organization (ILO), Constitution of the International Labor Organization (ILO), (1 April 1919).
- Nepal Labour Migration Report 2020, P.92
- Article 16(1), The Constitution Of Nepal 2072
- Article 35(1), The Constitution Of Nepal 2072
- Article 35(3), The Constitution Of Nepal 2072
- Article 36(2), The Constitution Of Nepal 2072
- Article 17(1), The Constitution Of Nepal 2072
- Mira Khadka v Office of Prime Minister, and Manish Kumar Shrestha v Office of Prime Minister, 2077 BS
- Prosecutor v Furundzijja
- Article 3 of Vienna Convention on Diplomatic Relations and Article 5 of Vienna Convention on Consular Relations.
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