Abstract
In order to better manage the migration of health professionals in the time of pandemic, a collaboration between countries of origin and destination is needed through the fair use of bilateral labor agreements (BLAs). However, the implementation of BLAs in the past is unexamined from the perspective of justice. Hence, this chapter initially uses Rawls’ domestic theory of justice, and further extends its application to global justice, in analyzing the moral acceptability of BLAs. This article responds to calls for a sustainable management of health workers in view of the World Health Assembly’s endorsement of WHO Code of Practice for International Recruitment of Health Personnel with the ambition of making migration policies fairer amid the global health workforce crisis. The article also advocates that the health workforce crisis must be understood as a question of justice. Hence, it goes beyond the prevailing explanatory paradigm of labor market analysis as the key to addressing the maldistribution effects of poor coordination and planning across local, national, and global entities on human resources for health. The final outcome is a particularly significant contribution in meeting the challenging task of responding to the health workforce needed in the time of combating the current Covid 19 pandemic.
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Notes
- 1.
After the World War II reconstruction, BLAs have come to serve multiple political and economic purposes. According to Wickramasekara (2006), there are at least four reasons behind the BLA strategy. First, BLAs fill in the needed labor requirements that fueled the different economic growth phases in Europe and Middle-Eastern countries. Second, BLAs create cohesion among similar states as in the early years of building the EU community. Third, BLAs regulate or formalize the existing flows of migrants from developing to developed countries. Fourth, BLAs control the number of irregular migrations while contributing to the development policies. For the Philippines, the functions of negotiating BLAs are attached to offices that preserve and protect the constitutionally mandated pursuit of independent foreign policy objectives as enunciated in the Philippine Foreign Service Act of 1991. This Act rests on three pillars: (1) preservation and enhancement of national security, (II) promotion and attainment of economic security, and (III) protection of the rights and promotion of the welfare and interest of Filipinos overseas.
- 2.
Rawls realized that his own description of liberty was insufficiently described in his earlier work. In Political Liberalism (Rawls 1996), he further elaborates on the meaning and role of liberty. Three key components of liberty are highlighted: the agents are free, the restrictions or limitations which they are free from, and what it is that they are free to do or not to do. These elements cohere to his statement on liberty: “Thus persons are at liberty to do something when they are free from certain constraints either to do or not to do it and when their doing it or not doing it is protected from interference by other persons (Rawls 2005, 202).” The basic liberties should be taken as a whole, as a single system that is regulated by pure procedural justice within the constitutional democracy. The task of safeguarding liberty falls upon the shoulders of the delegates of a constitutional convention or a certain legislative body. These agents should decide how the various liberties are to be specified to yield the best total system of equal liberty (Rawls 2005, 203). Rawls adds that the best arrangement of liberties depends upon the totality of the limitations to which they are subject to, and when these liberties come together in a whole scheme.
- 3.
But there is a priority rule to be followed for the application of the first principle of equal liberty, which means that a liberty can be restricted only for the sake of liberty in two cases: (a) a less extensive liberty must strengthen the total system of liberty shared by all, and (b) a less than equal liberty must be acceptable to those citizens with the lesser liberty (Rawls 1996, 250).
- 4.
Goods are inherent to the individual before the original position. Therefore, primary goods are naturally indomitable, unalienable within the individual, and are present before the contracting parties are agreeing on the main principles of justice (Rawls 2005, 142).
- 5.
In his later work on Idea of Goods and Basis of Social Unity, Rawls explains that because of the multiplicity of primary goods to choose from among the representatives, an institutional framework that acts as a basis for social unity and cooperation is required. This can only be done by no less than through a liberal type of constitutional framework.
- 6.
In a restatement, Rawls (2001, 42–43) constructs, in lexical order, the second principle of justice to satisfy two conditions: (a) they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and, (b) they are to be to the greatest benefit of the least-advantaged members of society (Rawls 2001, 42–43). The ordering means that a departure from the institutions of equal liberty required by the first principle cannot be justified by, or compensated for, greater social and economic advantages.
- 7.
In addition to being lexically ordered, the principles behave in an integrative manner, which means that they reinforce each other. That is, one principle cannot be effectively done if it lacks the other.
- 8.
To Rawls, the restriction of civil liberties is allowed, particularly those that are of lesser value relative to the basic civil liberties (2001, p. 46–47; 2005, p. 244). Moreover, this restriction can be facilitated only by a fair procedure within the constitutional framework of liberal democracy (Rawls 2005, p. 203), which will be complemented by the difference principle to be discussed in the last section.
- 9.
Some of these actions are derived from either locally enacted laws or those that are adopted from legally-binding international agreements.
- 10.
There are two other legal models of recruitment for the overseas deployment of migrant workers (Zhou 2017, 29). The Volume-based Model is driven by the profit of high-volume recruitment. This model does not satisfy the protection of basic human rights. The Better Recruitment Model is an improved version but is more focused on high skilled deployment. Both models do not meet fair recruitment policy as they disregard the pure procedure of justice.
- 11.
The administrative structures built in to facilitate BLA have to implement monitoring and evaluation tools for areas of forecasting demand and supply of needed types, skills, or specialization of health personnel.
- 12.
Siyam et al. (2013), 820) report three major implementation bottlenecks of the WHO Code of Practice that all point to the institutional capacity of governments: (a) poor coordination between government offices and concerned private sector agencies in the overarching aim of the code for health workforce sustainability (Buchan et al. 2011); (b) lack of reliable data on the migration of health personnel hinders reliable forecasting and human resources planning (Tangcharoensathien and Travis 2016, 44–45; Paina et al. 2016, 24–29); and (c) lack of information dissemination concerning the WHO Code of Practice suggests a critical gap between policy advocacy and the level of awareness among intended stakeholders (Tam et al. 2016, 7–10).
- 13.
The end-in-view of health labor market analysis is to provide inputs that will justify the investment and reforms required to achieve the right number and mix of health and social care workers and ensure that they possess decent work and the means and motivation to perform the assigned functions skillfully. The WHO Labor Market Observatory focuses its technical support on crafting a country’s health workforce planning in the following areas: fiscal space analysis, workload analysis, strategic planning, return on investment analysis, workplace projections, feasibility studies, and primary data collection (WHO 2017).
- 14.
The right to healthcare is central to the exchanges of perspectives between Martha Nussbaum and Norman Daniels in a report commissioned by the World Health Organization (2002). The report concerns the need for policies for long-term care, which also touches upon important aspects of health professional mobility.
- 15.
In The Law of Peoples (Rawls 1999a, 107–111), Rawls categorically specifies at least three guidelines in carrying out the duty of assistance.
- 16.
- 17.
I present a case for transitional justice where a burdened society negotiates fair migration structures. Despite many limitations, a burdened society has an inherent moral capacity to protect liberal values and move toward an ideal situation. It is not just a hypothetical assertion, but one based on empirical evidence.
- 18.
Kirk (2007, 30) argues that instead of brain drain, the global migration of nurses can be alternatively viewed as an opportunity to create a flow of skilled and knowledgeable healthcare workers between countries. There is an accumulation of knowledge in the long term as the financial benefits of migration filter down to local healthcare systems. It is believed that workforce mobility, which is a major consequence of globalization can, if managed, facilitates a sharing of experiences and knowledge that enriches individuals, patients, organizations, and countries. From this, it is useful to broaden the linkage of nurse migration to national development, and the following areas of cooperation that can be prioritized.
- 19.
In A Theory of Justice, Rawls prefers not to discuss the principles governing the conduct of nations. This was so far the reason that he was focused on the basic structure as the primary subject of justice. Later, in the The Law of Peoples, he extended the political construction of justice by providing general principles for liberal societies for fair cooperation schemes and reciprocity in the mobility of peoples.
- 20.
In history, BLAs have been successfully negotiated primarily because of their shared commitment to socio-cultural and economic values (Chilton and Posner 2018, 21).
- 21.
BLA can take precedence in promoting decent work for global nurses within the framework of the ILO Model Agreement on Temporary and Permanent Migration for Employment, ILO Resolution 86 on Model Agreements, LO Model Provisions for the Maintenance of Social Security Recommendation 1983 (No. 167), the United Nations Convention on the Protection of All Migrant Workers and Members of Their Families, and the ILO’s Migration and Development Cooperation Framework.
- 22.
According to GAVI (Berkley 2020), COVAX acts as a platform that will support the research, development and manufacturing of a wide range of Covid 19 vaccine candidates, and negotiate their pricing. All participating countries, regardless of income levels, will have equal access to these vaccines once they are developed. The initial aim is to have 2 billion doses available by the end of 2021, which should be enough to protect high risk and vulnerable people, as well as frontline healthcare workers.
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Fernandez, K.R. (2022). Principles of Ethical Recruitment of Global Nurses in a Bilateral Labor Agreement – A Rawlsian Contract Approach. In: Schweiger, G. (eds) The Global and Social Consequences of the COVID-19 Pandemic. Studies in Global Justice, vol 1212. Springer, Cham. https://doi.org/10.1007/978-3-030-97982-9_15
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