Health Worker Migration and Its Implications on the Right to Health in the

Philippines

Maria Cecilia Kristina Africa1

I. Introduction

Economic, social and cultural rights have evolved dramatically from the time of
the entry into force of the International Covenant on Economic, Social and Cultural
Rights.(ICESCR) At the time of inception of the ICESCR, this set of rights was treated as
second generation rights, primarily from a notion of taking a backseat behind civil and
political rights. Recently, States Parties are slowly convinced that both sets of rights
deserve to be accorded the same level of protection within the realm of their national
jurisdictions.

The development of the enforceability of economic, social and cultural rights,

apart from the political will of states, relies heavily on globalization. The exercise of the
right to freely choose work or any remunerative activity is now understood to be
recognized beyond the territorial boundaries of a State Party. Though it may be subject to
reasonable conditions or exceptions, this right may not be curtailed by the State.
Prospective employees are entitled to the freedom to work outside their home countries.

The impending global crisis of shortage of health professionals has pushed nurses,
and now, doctors, from low income countries to find greener pastures in developed
countries to practice their professions. Higher wages, better working conditions and
brighter opportunities for career growth entice them to migrate. While the remittances of
health migrant workers constitute a big chunk of economic activity for their home
countries, their mass exodus is slowly impairing the health care systems of these States.
The right to health of those who are left behind is seriously endangered. The State is now
left in a quandary. Human rights are supposed to be indivisible, interrelated and
interdependent. In this present situation, a conflict seems to exist between the right to
work and the right to health. Is there really such a conflict?

The Philippines is presently the top exporter of nurses globally. Conservative

estimates show that eight-five percent (85%) of all Filipino nurses, at least 163,756 of
them, work overseas.2 The huge international demand of Filipino nurses prompted an
upward surge on the number of nursing schools all over the country, from a total of two
hundred fifty-one (251) schools in June 2003, to four hundred seventy (470) schools in

1 Maria Cecilia Kristina Africa is a lawyer admitted to the Philippine Bar. She obtained her Bachelor of
Laws Degree in San Beda College, Manila. She worked as a legislative officer in the Senate of the
Philippines before she took up her LL.M. in International Law of Human Rights and Criminal Justice in
Utrecht University in The Netherlands. She undertook internships in the International Criminal Court and
the International Service of Human Rights in New York, USA.
2 Corcega, T. et al, Nurse Supply and Demand in the Philippines. in The UP Manila Journal, 2002, Vol. 5,
No.1, pp.1-7.
2005.3 However, nursing graduates enter these schools with intent to migrate to other
countries. Apart from them, nurses who work as senior hospital officials with
considerable work experience and nursing professors in major colleges and universities
join the migrant health workforce. Some doctors, numbering at least four thousand
(4,000), are currently enrolled in nursing schools to re-train as nurses to meet the global
demand.4

As a result of this aggressive migration of nurses, nurses and doctors ratio against
patients are decreasing continually. Hospitals around the country are hounded by staffing
problems, especially those in the rural areas. Nursing schools are likewise losing their
educators and administrators to outward migration, posing a threat to the quality of
nursing education in the Philippines. Statistics in infant mortality and morbidity are
adversely affected by the loss of nurses to administer health services. While the
Philippines is not among the 57 countries with a critical shortage of health care
professionals,5 the Filipino patient is equally entitled to health services administered by
competent doctors and nurses who developed their occupational skills in the Philippines,
as that of any patient from any other part of the world.

This writing aims to discuss health worker migration in the context of

international human rights law. It focuses on the correlation between the right to work,
particularly on the freedom to choose work overseas, as a component thereof, and the
obligation of State parties to fulfill the right to health. In a crisis brought about by
massive nurses’ migration, it is interesting to discover what a State Party to relevant
human rights instruments, like the Philippines, is expected to do to be able to balance the
health worker’s right to freely choose work and its obligation to fulfill the right to health
of those patients left behind by the health worker. This paper will examine the status of
protection of these rights and compliance of obligations by the Philippines through
presentation of existing legislation and policy directions. Finally, this article will
conclude whether or not a violation of the Covenant will ensue if such a balance is not
achieved.

II. International Law Defining the Right to Freely Choose Work Overseas

a. The Right to Freely Choose Work in the Context of International Human

Rights Instruments

The right of every individual to freely choose work overseas is not explicitly
recognized in major international human rights instruments. However, the said right
should be understood in the context of freedom of choice of occupation, as well as
freedom of choice for a place for the performance.6A cross reference of the provisions of

3 Professional Regulatory Commission, Philippines, 2005.

4 Galvez Tan, J., The Philippine Phenomenon of Nursing Medics: Why Filipino Doctors are Becoming
Nurses. National Institute of Health. Philippines. 2004.
5 World Health Organization, World Health Report: Working Together for Health. 2006.
http://www.who.int/whr/2006/chapter1/en/index.html.
6 Eide, A., et al. (Eds.) Economic Social and Cultural Rights: A Textbook, Second Revised Edition,
these instruments will prove the legal veracity of this right, furthering bolstering the
principle that human rights are indivisible, interdependent and interrelated.

The right to work is enshrined primarily in the International Covenant on

Economic and Social Rights (ICESCR) of 1966 in Article 6, 7 and 8 thereof. Other
human rights instruments also recognize the same concept. The right to work may be
found in Article 8, paragraph 3 (a), of the International Covenant on Civil and Political
Civil Rights (ICCPR); in Article 5, paragraph (e) (i), of the International Convention on
the Elimination of All Forms of Racial Discrimination; in Article 11, paragraph 1 (a), of
the Convention on the Elimination of All Forms of Discrimination against Women; in
Article 32 of the Convention on the Rights of the Child; and in Articles 11, 25, 26, 40, 52
and 54 of the International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families.7 The right to freely choose work, as a
component right of the right to work is embodied in Article 6 of the ICESCR.8 Nothing in
the provisions of the ICESCR limits the right to freely choose work within the territorial
jurisdiction of a particular State party. Instead, the State Party is tasked to take
appropriate steps to safeguard this right, whether exercised in domestic or international
territory.9

This right may be examined in relation with Article 12 of the International

Covenant of Civil and Political Rights (ICCPR) which recognizes the right to liberty of
movement and freedom to choose his or her residence.10 In Paragraph 2 thereof, every
individual has the right to freely leave his country, including his own. These
pronouncements are mentioned in the preamble of Convention No. 143 of the
International Labor Organization. (ILO) Therefore, by inference, every person is likewise
entitled to find work freely in any country, other than his own.

The right to choose work beyond the territorial boundaries of one’s state of origin
is recognized in more detail by the International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families, adopted by the General
Assembly in December 1990. The States Parties are bound to respect and ensure the
rights of migrant workers within their territory and jurisdiction.11 This provision makes
no distinction between states of origin or states of employment. In Article 52 of the said
Convention, migrant workers are given the right to freely choose their work or
remunerated activity, subject only to reasonable restrictions and conditions, as may be
found in the Convention.

The Committee on Economic, Social and Cultural Rights, in its General Comment

Martinus Nijhoff Publishers, 2001, p. 178.

7 General Comment No 18: Right to Work, Committee on Economic, Social and Cultural Rights, 2006.
8 “The State Parties to the present Covenant recognize the right to work, which includes the right of
everyone to the opportunity to gain his living by work which he freely chooses or accepts…”
9 Article 6(1), ICESCR.
10 Bueno de Mesquita, J., et al. The International Migration of Health Workers: A Human Rights Analysis.
Medact, London, United Kingdom. 2005. http://www.equinetafrica.org/bibl/docs/BUEhres.pdf.
11 Article 7, International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families, Entered into Force July 2003.
No. 18, (2006) enunciated that State Parties must devise national plans of action that will
respect and ensure all rights of migrant workers through legislative and non-legislative
measures. It went on by saying that an employment policy that will stimulate economic
growth and development must be carefully formulated and implemented to adapt to the
unique structure of the labor workforce of the State Party. It must be aimed to raise living
standards and to meet manpower requirements by employing its available resources and
cost effective ways to achieve these objectives. 12 In effect, the economy of a State party
that is heavily dependent on a large migrant workforce must take into account the right of
workers who choose to undertake remunerative activities overseas in the formulation or
refinement of a national employment strategy.

b. Conventions of the International Labor Organization (ILO)

Another source of rights of migrant workers and obligations of states pertaining to

them is the conventions of the International Labour Organization, (ILO) with particular
reference to Convention No. 97 (Migration for Employment, 1949 [Revised]) and
Convention No. 143. (Migrant Workers [Supplementary Provisions] Convention, 1975)
Several rights of migrant workers and more importantly, obligations of States Parties are
incorporated in these Conventions. While apparently, the right to freely choose work
overseas is not expressly mentioned in the provisions thereof, it is evident that such right
is not only recognized, but, in fact, protected.

Convention No. 97 obliges States Parties, whether states of origin or states of

employment, to undertake measures within their jurisdiction, to facilitate departure,
journey and reception of migrant workers. This particular convention protects the rights,
privileges and entitlements of a migrant for employment, defined as any person who
migrates from one country to another for purposes of employment. Members are likewise
encouraged to consider all possibilities of employment, including employment
opportunities beyond the territorial boundaries of one’s state of origin. Through
international cooperation, this initiative would help the community of Member States to
facilitate the international distribution of human resources. This objective will
particularly expedite the movement of labor from countries which may have a surplus in
labor supply to those who have a deficiency.13

Supplementary provisions to this Convention are also found in Convention No.

143 of the ILO, further strengthening the rights of migrant workers, both within the
jurisdiction of states of origin and employment, as well as clearly defining the obligation
of such Member States. ILO Convention No. 143 takes particular note of promotion of
equality of rights of migrant workers comparable to nationals in states of employment
and their protection in cases of abusive conditions.

The Nursing Personnel Convention14 is perhaps the only international convention

12 General Comment No. 18 on the Right to Work, Committee on Economic, Social and Cultural Rights,
2006.
13 International Labour Organization General Conference, Recommendation No. 86, concerning Migration
for Employment Convention, 1949 (Revised).
14 Convention of the International Labor Organization No. 149, 1977.
that relates to nurses, in particular, as a sector of the labor force. This convention, in
article 2 thereof, mandates Member States to implement a policy geared to enhance
nursing services and competence of nursing personnel within the framework of the
national health program. This policy must be made to adapt to conditions prevalent in the
domestic front. Member States must cultivate better working conditions and secure the
benefits and privileges of nurses as laborers. Training and development of nursing
personnel must be conducted towards an end to retain these nurses to work in their home
countries.

III. International Law Defining the Obligation of States to Fulfill the Right to
Health

The obligation of States Parties to fulfill every person’s right to health is found in
Article 12 of the ICESCR, which developed as a part of the Universal Declaration of
Human Rights.15 The right to health of special groups, such as women and children, is
recognized in the Convention on the Elimination of Discrimination against Women,16
(CEDAW) and the Convention on the Rights of the Child.17 (CRC)

In the International Convention on Economic, Social and Cultural Rights, under

Article 2 thereof, States Parties are obliged to take steps, whether on its own efforts or
through the cooperation or assistance of other States Parties, to achieve progressively, the
full realization of these rights, by using the maximum of its available resources. The
essence of these rights gave rise to the Tripartite Typology of State Obligations in
relation with economic, social and cultural rights.18 States Parties, upon ratification of the
ICESCR, are expected to comply with their obligation to respect, protect and fulfill.

The negative obligation of the State to respect economic, social and cultural
rights entails the abstention from doing acts that violate the integrity of each individual or
that would infringe on his recognized freedoms. The obligation to protect involves the
prevention of acts of third persons or other non-state actors from infringing the human
rights of individuals, through the enactment of legislative measures or administrative
action. Finally, the obligation to fulfill engages States Parties to undertake measures to
warrant opportunities of every individual to satisfy their economic, social and cultural
needs. These needs may be beyond the personal efforts and capabilities of the individual
but within the realm of State power and its available financial resources. The obligations
to protect and fulfill exact affirmative action from the State, thus treated as positive
obligations. The obligations to respect and protect are generally recognized as legally
justiciable, while the obligation to fulfill is viewed as the least justiciable due to its
programmatic character.19

The obligation of States to fulfill the right to health, as the Committee imparts, is

15 Article 25, UDHR: “Everyone has the right to a standard of living adequate for the health and well-
being of himself and of his family…”
16 Article 12, CEDAW.
17 Article 24, CRC.
18 Toebes, B., The Right to Health as a Human Right in International Law, Intersentia-Hart, 1998, p.306.
19 Toebes, B. supra, p.332.
not an isolated goal by each State Party, but by the Community of States Parties, through
international cooperation and assistance. It follows that each State Party must equally
respect the right to health of all others, and this must be duly considered in international
agreements that exist between them.20 This is particularly important in the present times,
as the free movement of medical goods, services and human resources in health exists
among States Parties and cuts across international boundaries.21

The ICESCR specifies further that the obligation of States Parties to fulfill the
right to health includes taking steps towards the creation of conditions that would
guarantee adequate medical service and medical attention to all individuals in the event
of sickness.22 It is understood that this includes the competence of health workers and
professionals, which will administer the health care services. It was also pronounced by
the Committee on Economic Social and Cultural Rights that States Parties must create
conditions wherein trained medical and health professionals receiving domestically
competitive wages are available, accessible and able to deliver quality services.23 In
effect, it is crucial that steps are taken to ensure that a well-educated and competently
trained health workforce is at hand to cater to the health care needs of the people. Among
these steps is to allot a reasonable percentage of the national budget to health and
development of human resources for health, comparable to other items on the budget,
such as defense, education, etc.24 A failure of a State Party to incorporate these objectives
in the formulation or implementation of a national health policy shall result in a violation
of the obligation of the State to fulfill the right to health.25

i. Pronouncements of the WHO

The World Health Organization (WHO) is the international organization at the

forefront of the protection and promotion of the right to health. It is the coordinating
authority on health within the system of the United Nations. (UN) As such, the
Constitution of the WHO mandates Member States, their governments in particular, to be
responsible for the health of their peoples, with the implementation of adequate health
and social measures.26 The WHO, through the World Health Assembly, may adopt
resolutions to this end.

The World Health Organization partakes of its responsibilities to the UN system

through a six point agenda. Third on its agenda is the strengthening of health systems,
within and among states.27 As early as the Declaration of Alma-Ata in 1978, the WHO

20 Committee on Economic, Social and Cultural Rights, General Comment No. 14: Right to the Highest
Attainable Standard of Health, 2000, Par. 38-39, Ibid.
21 Chen, L., et al., Human Resources for Health: Overcoming the Crisis, in Lancet, Vol. 367, Issue 9449
(Nov. 27-Dec.3 2004)
22 Article 12(2)(d), ICESCR.
23 Committee on Economic, Social and Cultural Rights, supra, par. 12.
24 Committee on Economic, Social and Cultural Rights, Concluding Observations on the Philippines.
1995, par. 21, http://www1.umn.edu/humanrts/esc/PHILPNS.htm.
25 Par. 36, Ibid.
26 Preamble of the Constitution of the World Health Organization, adopted 22 July 1946.
27 Agenda of the World Health Organization. http://www.who.int/about/agenda/en/index.html.
recognized the important role of health workers at the level of primary health care. 28 The
WHO, in recognition of the importance of a stable global health workforce as the
foundation of an efficient national health care system, published the 2006 World Health
Report, entitled “Working Together for Health.” It explained the various factors shaping
the present day situation of human resources for health around the world. One of the
factors was international health worker migration.

The report stressed that this phenomenon has created effects, both positive and
negative, for source countries. Remittances of migrant workers translated in billions of
dollars worth of revenues to the economy of source countries, which incidentally
becomes a considerable factor of the Gross National Product. (GNP) However, the
detrimental effects outweigh the positive financial effects. In the case of large losses in
health workers due to migration, the consequences of possible lives lost due to
unattended medical care are irreversible. Since source countries may not have the
capability to take on this crisis individually, the report suggested that affirmative action
must be initiated at the international level.

The Fifty-Seventh (57th) Session of the World Health Assembly (WHA), guided
by the findings and recommendations made in the 2006 World Health Report, supported
that the global crisis on health human resources can only be resolved through
international cooperation and assistance among States. As a result, member states are
encouraged to set-up domestic policies to mitigate the effects of health worker migration.
In the case of source countries, programs that will temper the adverse effects of the loss
of health personnel must be put in place. On the other hand, destination countries must
devise certain mechanisms to support the strengthening of health human resource
development in source countries, such as investments in skills training and development
of health professionals, through international agreements.29

A series of resolutions by the WHA, the latest of which was adopted on the Fifty-
Ninth Session,30 directed its attention to the growing impact of the nursing profession to
the establishment of a stable health system and the problems that surround the profession.
In these resolutions, Member States are encouraged to entrench comprehensive programs
on employment and retention of nurses, thus creating a conducive environment for these
health professionals to choose to practice their profession in their home countries. It is
also suggested that nurses and other health professionals themselves play a vital role in
decision making and formulation of government policies relating to health care systems.
Governments are likewise urged to review existing legislation and regulations to adapt to
the changing conditions and needs of nurses and the rest of the health workforce. The
WHO pledged to spearhead efforts in providing technical assistance to developing states
to manage migration and to encourage liaisons and bilateral agreements with developed

28 World Health Organization, Declaration at the International Conference on Primary Health Care,
Alma-Ata, USSR, 1978.
29 World Health Assembly, International migration of health personnel: a challenge for health
systems in developing countries, WHA 57.19, http://www.who.int/gb/ebwha/pdf_files/WHA57/A57_R19-
en.pdf.
30 World Health Assembly, Strengthening Nursing and Midwifery, WHA 59.27,
http://www.who.int/gb/ebwha/pdf_files/WHA59/A59_R27-en.pdf.
states. This translated into a publication of a manual of strategic policy directions to
strengthen nursing and midwifery services, 31

IV. Implementation of the Philippines at the National Level: Philippine Law and
Government Policies Relating to Health Worker Migration

a. Domestic Law and Policies on the Right to Work

The Philippine Constitution recognizes the right to work as a fundamental policy
of the state. As a State Party of the ICESCR, it “affirms labor as a primary social
economic force.”32 The laborer is entitled to protection of his right to work, whether local
or overseas.33 These policies reflect the importance of migrant workers in the country’s
economy. Several laws were enacted in line with these policies.
The codification of all labor laws and regulations are found in the Labor Code of
the Philippines34 Even in the early seventies, the Philippine Government recognized labor
migration as an alternative solution to attain full employment. It is evident in the
statement of policies in this Code that the right of every citizen to choose work includes
options to migrate overseas for employment. It is also articulated that the Government is
tasked to devise effective mechanisms to facilitate and regulate the free flows of workers
within and outside the country. 35 An examination of the provisions of this Code,
particularly Books I and II, will reveal that the right to work is understood to include
employment opportunities and improvement of conditions for work outside the territorial
boundaries of the Philippines.
The rights and State obligations regarding migrant workers were further
strengthened by the enactment of the Migrant Workers and Overseas Filipinos Act, which
was enacted at about the same time that the Philippines ratified the UN Migrant Workers
Convention. 36 As a matter of policy, the Migrant Workers Act stated that the Philippines
does not promote overseas employment as a means to sustain economic growth. It further
provided that the overseas employment program rests on the policy that fundamental
human rights of overseas Filipinos shall not be compromised nor trampled upon. 37
There are several notable features of the Philippine Migrant Workers Act. The
Act set requirements for countries to which Filipino migrant workers shall be deployed,
such as being a signatory to international conventions recognizing and protecting the
rights of migrant workers or entering into bilateral agreement with the Philippines to

31 World Health Organization, Strategic Directions for Nursing and Midwifery Services: 2002-2008,
Geneva, 2002. http://www.searo.who.int/LinkFiles/Resources_Anglais.pdf.
32 Philippine Constitution, Article II, Section 18, 1987.
33 Article XIII, Section 3, Ibid.
34 Presidential Decree No. 442, as amended, effective 01 May 1974.
35 Section 12, Ibid.
36 Republic Act No. 8042, effective 07 June 1995. The Philippines ratified the UN International
Convention on the Protection of Migrant Workers and Members of Their Families on 05 July 1995.
37 Section 2(c), R.A. No. 8042.
protect Filipino workers in its territory.38 The Act enlarged the scope of criminal acts
related to illegal recruitment of workers and provided stiffer penalties therefore.39 The
law sought to improve information dissemination on overseas employment, reiterating
that these services are for free,40 and creating a legal assistant for migrant worker affairs.41
The Act also granted benefits and privileges to migrant workers who decide to return to
the country, such as exemption from travel taxes and airport fees, and incentives to
skilled professionals in science and technology who extend their services to priority
development areas in the public and private sectors. 42 Further, an inter-agency committee
to take charge of a comprehensive information database on migration was also
established to aid legislators and policy makers in formulation of progressive measures
for migration.43
This Act also strengthened the powers and functions of the lead government
agencies in charge of migrant worker affairs, the Philippine Overseas Employment
Administration,44 (POEA) and the Overseas Workers Welfare Administration.45
(OWWA) Apart from its mandate to establish a program of promoting and monitoring
overseas employment, the POEA is tasked to regulate the activities of private recruitment
agencies by means of a licensing and registration system.46 In the meanwhile, the
OWWA, which was initially instituted as a fund to provide social and welfare services
such as insurance coverage, legal assistance, etc., was now in charge to assist the migrant
workers in the enforcement of obligations by recruitment agencies or entities and the
principals that contracted them.47

b. Domestic Law and Policies on the Obligation of the State to Fulfill

Regarding Nurses Migration in Relation to the Right to Health

The Philippines, as a State Party to the ICESCR, promotes and protects the right
of people to health and undertakes to instill health consciousness among them. 48 Its
Constitution recognizes the right to health, as required by the ICESCR. As a component
of social justice, the Government shall engage in a comprehensive approach to fulfilling
the right to health in order to make health goods and services affordable to all.49

The primary law governing the practice of the nursing profession is the Nursing
Act of 2002.50 The State, through the existence of competent and adequate nursing

38 Section 4, Ibid.
39 Sections 6 and 7, Ibid.
40 Section 14, Ibid.
41 Section 24, Ibid.
42 Section 31, supra.
43 Section 20, Ibid.
44 Created by Executive Order No. 797, effective 01 May 1972.
45 Created by Letter of Instruction No. 501, effective 01 May 1977.
46 Section 23(b)(1), supra.
47 Section 23(b)(2), supra.
48 Philippine Constitution, Article II, Sec. 15, 1987.
49 Article XII, Sec. 11, Ibid.
50 Republic Act No. 9173, otherwise known as “An Act Providing for a More Responsive Nursing
Profession, Repealing Republic Act No. 7164, Otherwise Known as ‘The Philippine Nursing Act of 1991,’
personnel, safeguards the right of the people to delivery of basic health services. This Act
reorganized the Board of Nursing, under the supervision of the Professional Regulation
Commission, which oversees the admission of nurses into the profession and registration
thereto. The main function of the Board of Nursing is to conduct the licensure
examination for nursing and oversee registration of nurses admitted to practice the said
profession.51The law also mandates the Board to conduct studies on health human
resource development and an analysis on manpower requirements relating to nursing. 52
Finally, the basic monthly pay of public nurses was increased to Salary Grade fifteen,
(15) (P4,474 or approximately E72) in accordance with the Salary Standardization Law
or Republic Act No.6758.53

Among its other functions is to monitor nursing education and proliferation of

nursing schools and colleges and to ensure that quality standards of the nursing
profession are met.54 It is also under obligation to coordinate with the Commission on
Higher Education in the improvement and updating of the nursing curriculum to adapt
with the global trends in the nursing practice. The Commission on Higher Education, by
virtue of Republic Act No. 7722,55 shall see to it that State-supported institutions of
higher learning, including nursing schools, reconcile their programs with national,
regional or local development plans. It is also tasked to identify, support and develop
potential centers of excellence in program areas needed for the development of world-
class scholarship, nation building and national development. These objectives shall be
progressively achieved and are to be financed by the Higher Education Development
Fund, wherein the equivalent of thirty percent (30%) share of the collections from the
Professional Registration Fee is allocated. The Professional Registration Fee is levied
upon professionals who register with the Professional Regulation Commission, which
include nurses. This fund was established exclusively for the strengthening of higher
education in the entire country.

The Magna Carta of Public Health Workers was enacted to elevate the working
conditions and career opportunities of health professionals who intend to join the
government service.56 Privileges and benefits, such as allowances and leaves, were
guaranteed under this particular law to encourage those with proper qualifications and
excellent abilities to join and remain in government service. Under this Act, the
Department of Health was given the responsibility to conduct a periodic report on health
human resource development and management, to assess, among others, the national
policy of exporting health professionals and in effect, to devise plans of action on how to
utilize these resources for the country’s interests and ultimate benefit. This report will be
submitted to a Congressional Committee on Health, to be used as basis to amend or
update existing legislation to adjust to the present situation of health human resources.

and for Other Purposes.”

51 Section 25, Ibid.
52 Section 30, Ibid.
53 Section 32, Ibid.
54 Section 9, Ibid.
55 Republic Act No. 7722, otherwise known as “An Act Creating the Commission on Higher Education,
Appropriating Funds Therefore and for Other Purposes,” enacted on 18 May 1994.
56 Enacted 26 March 1992.
 The Department of Health, as the lead agency charged with the development of
health human resources, has structured a twenty five year master plan for human
resources for health from 2005-2030 and has begun its implementation in 2006.
Executive Order No. 102 created the Health Human Resource Development Bureau, as
an attached agency of the Department of Health, to ensure the quality of training and
human resources development in health, in coordination with various stakeholders and
responsible government instrumentalities. In addition, a multi-sectoral working group has
been organized to execute a comprehensive approach towards health human resource
development, including modernization of a health workforce database and reliable
statistics on the flow of outward migration for a more adequate assessment of this
phenomenon. This working group is aimed to evolve into a permanent functional network
of relevant government agencies as well as NGO’s and private sector groups engaged in
the development of human resources for health.57

V. Analysis

The Philippines is a signatory to all major international human rights instruments,

including the International Covenant on Economic Social and Cultural Rights and the
International Covenant on the Protection of Rights of Migrant Workers and the Members
of Their Families, a Member State of the World Health Organization and ratified the
Conventions of the International Labor Organization mentioned in Part III, with the
exception of Convention No. 97. This State is therefore expected to guarantee the rights
to work and to health of all individuals and to observe compliance with the core
obligations of these rights to the maximum of its available resources. The crisis of
international migration of nurses must be addressed within this context.

Developing countries, like the Philippines, benefit through migration, as measured

by the remittances brought in by overseas workers. Nurses, representing a majority of
land-based overseas migrant workers deployed around the world, contribute a huge
percentage of almost eleven billion dollars ($11,0000,000) worth of remittances posted
by land-based workers in 2007.58 Researchers suggest that the remittances of a Filipino
physician practicing overseas are sufficient to compensate for the associated economic
losses of emigration.59 The same may be said of nurses. But there are a few studies
regarding remittances related to the health sector commissioned by the Government to
prove this observation. Consequently, no significant government programs are in
operation to channel these revenues to much needed expenditure in more focused training
and education of nurses. It becomes clear that this value added to the Philippine economy
57 http://www2.doh.gov.ph/noh2007/NOHWeb32/NOHperSubj/Chap3/HealthHRD.pdf. Retrieved last 04
February 2008.
58 Bangko Sentral ng Pilipinas, Overseas Fiipinos’ Remittances By Country, By Source.2007.
http://www.bsp.gov.ph/statistics/keystat/ofw.htm. Retrieved last 06 February 2008.
59 Migration of Health Workers: Country Case Study Philippines. Institute of Health Policy and
Development. International Labor Organization. Geneva. 2005.
http://www.ilo.org/public/english/dialogue/sector/papers/health/wp236.pdf. Retrieved last 06 February
2008.
is a small price compared to the debilitating effects of the massive loss of nurses and
other health professionals to the health care system.

Brain drain caused by the exit of these skilled professionals is not even the core
of the problem. More serious is the effect of migration to status of health care. The
deteriorating system of health care is at risk of collapse. The World Health Organization
(WHO) estimates that in the Philippines, there was one physician for every 880 people,
one nurse for every 235 people.60 Because of health worker migration, public health
experts predict a downward trend in these ratios. The lack of nurses and doctors caused
200 hospitals, both public and private, to close down. Most of these hospitals are located
in the Southern Philippines,61 where access to health care is generally less than in Metro
Manila. Statistics show that due to lack of health professionals to administer health
services, immunization coverage to children, which has a directly proportional effect to
infant morbidity and mortality rates, had been dwindling during the last ten years, from
69.3% in 1993 to 59.9% in 2003.62 These figures shape a bleak outlook at the future of
the Filipino health care system. Structural changes that encompass the health and labor
sectors must be enforced immediately. Sadly, the delicate economic situation of the
country makes it more difficult to implement these measures. International assistance
from specialized agencies and other member states is, therefore, direly needed.

Perhaps the first and most important policy reform that the Government must
undertake is to decide how much of a priority is given to labor migration within the
national employment strategy. Decades have passed that the government has treated labor
migration as a stop gap measure to alleviate unemployment in the Philippines. 63 Still,
labor conditions in the domestic front have not improved. Since the services sector
constitutes a major factor of the export market of the Philippines, then labor laws and
policies must consider this fact. If and when a national plan of action on employment
recognizing the strength and capabilities of the Filipino worker, government agencies will
be able to properly address issues on migration, according to carefully structured policy
directions.

Presently, policies from within the Philippine government are seen clashing with
each other. The Department of Labor, together with its attached agencies, is actively
promoting the migration of workers, most especially nurses. On the other hand, the
Department of Health is devising ways for these health professionals to remain in the
country.64 It is seen that the national employment strategy should not be considered
separate and distinct with the national plan of action on public health, since the intricate
relationship between these two will affect the development of human resources of health
as an integral component of the national health care system.65 If policies implemented by
accountable agencies for health and labor to safeguard these economic, social and

60 http://www.wpro.who.int/countries/phl/national_health_priorities.htm. Retrieved last 04 February 2008.

61 Galvez Tan, J., supra.
62 National Statistics Office, National Demographic and Health Survey, 1993-2003.
63 Lorenzo, F., et al, Nurse Migration from a Source Country Perspective: Philippine Country Case Study.
Health Services Research and Educational Trust. Issue 42, No. 3, June 2007, p.1407.
64 Lorenzo, F., et al, supra.
65 Nursing Personnel Convention, supra.
cultural rights are not synchronized, any initiative to improve the situation will be
useless.

Collaborative efforts between these departments need to be put in place. A sound

alternative is to set up a government agency to focus on health human resource
development. This is most especially important in defining the present status of migration
of nurses. It is interesting to note that while the Migrant Workers Act sought to establish
an inter-agency working group for a comprehensive database,66 government health
agencies and the various professional health boards under the umbrella of the
Professional Regulatory Commission are not included. This is startling since the largest
number of land-based migrant workers from the Philippines is health professionals. This
provision must be implemented in the light of the Human Resource for Health Master
Plan being developed by the Department of Health.

The lack of reliable and qualitative data had been often noted to compound the
complexity of the problem of health worker migration. The figures that have been
gathered by the Philippine Overseas Employment Administration are not accurate
because most nurses are not deployed through the normal course, but are in fact directly
recruited by private hospitals in the states of employment.67 The number of registered
nurses, as gathered by the Professional Regulatory Commission, is not a reliable statistic,
since it does not signify if these nurses are in fact practicing their profession, or where
they are presently employed. These major gaps are making it more difficult for the
government to grasp the problem in its entirety,68 or at the very least, to comply with the
obligation to the Committee on Economic, Social and Cultural Rights, to furnish health
indicators and benchmarks to accurately describe present status of the right to health in
the country.

Another aspect that affected how the Philippines had dealt with health worker
migration is the allotment of health expenditure in the national budget. A reasonable
percentage of allocation for health will be able to finance the increase of salaries in the
public health sector, as provided for in the Magna Carta of Public Health Workers,69 and
to stimulate the professional growth of health professionals without having to leave their
home country.70 The Committee on Economic, Social and Cultural Rights, in its
Concluding Observations on the Philippines in 1995, expressed concern over the fact that
a greater proportion of the national budget is devoted to military spending than to
housing, agriculture and health combined.71 Government allocation to health is reported
to be meager at a little over one percent (1%) in relation with the national budget. While
the percentages have been rising over the last three years, the increases are merely

66 Section 20, supra.

67 Lorenzo, F. et al., supra.
68 Diallo, K., Data on Migration of Health Care Workers, Sources, Uses and Challenges in Bulletin of the
WHO, Issue 82, Vol. No. 8, August 2004.
69 Republic Act No. 7305, supra.
70 Pang, et al., Brain Drain and Health Professionals in British Medical Journal, Issue 324, No. 7336,
March 2002, pp.499.
71 Par. 21, supra. http://www1.umn.edu/humanrts/esc/PHILPNS.htm. Retrieved last 05 February 2008.
incremental and hardly remarkable.72 These figures show that the Philippines did not
utilize the maximum of its available resources to the full realization of the right to health.
It is evident that there is lack of government willingness to make the advancement of the
right to health as a priority agenda.

Fulfillment of the right to health requires that health professionals must remain
globally competitive and competent. A prerequisite to this goal is to address the quality
of nursing education. The huge international demand for nurses must be a factor to raise
the standards of nursing schools. Nursing education in the country must be in step with
the global trends in the nursing practice. In line with this objective, the Board of Nursing,
in coordination with the Commission on Higher Education, is tasked under the Philippine
Nursing Act, to update the curriculum of nursing courses in a way that it is attuned to
modern day realities in the health sector. The cooperation between these government
instrumentalities will also support the development of health human resources, beginning
at the college or university level.

Another piece of legislation which will complement nursing education, and, at

the same time, manage the large migration of nurses in the Philippines is the institution of
a National Health Services Act. 73 It strikes the international health community that
despite the fact that the Philippines is the leading exporter of health professionals in
Southeast Asia, it is the only country in the region without such a law. This proposed
legislation will serve as a safety net to manage the immediate exit of nursing graduates
from the country. It may be drafted in such a way to compel graduates of nursing and
medicine coming from state colleges and universities to render mandatory services to
government hospitals and medical facilities for a specified period of time.74 Aside from
strengthening their theoretical knowledge through practical training, such a policy will
instill social responsibility of budding health professionals towards the realization of the
right to health, which the Committee believes is concurrent to the practice of their
profession. In fact, it is the duty of the States Parties to foster an environment by which
this responsibility is nurtured and not neglected.75

In the level of international cooperation and assistance, the Committee on

Economic Social and Cultural Rights, in its General Comment, recognized that States
Parties must be committed to take joint and separate action to realize the right to work,
through bilateral and multi-lateral negotiations.76 These bilateral negotiations may be
entered into between the source and destination countries, such as that between the

72 Department of Budget and Management, Budget of Expenditures and Sources of Financing, 2008,
http://www.dbm.gov.ph/dbm_publications/besf_2008/Table%20B/B.7.pdf, Retrieved last 05 February
2008.
73 Galvez Tan, J. The Challenge of Managing Migration, Retention and Return of Health Professionals,
http://www.academyhealth.org/nhpc/foreignpolicy/2006/galveztan.ppt. Retrieved last 05 February 2008.
74 Institute of Health Policy and Development, International Labor Organization, supra.
75 Committee on Economic Social and Cultural Right, General Comment No. 14 on the Right to the
Highest Attainable Standard of Health, 2000, par.42.
76 Committee on Economic Social and Cultural Rights, General Comment No. 3 on the Right to Work,
1990, par. 29.
United Kingdom and South Africa.77 In these bilateral agreements, the parties may
endeavor to observe ethical practices of recruitment, respecting the right to health in both
countries. These agreements may even extend compensation flows from destination
countries back to source countries, to be treated as return on investment for skills training
and development of nurses.78 These revenues may then be earmarked for expenditure
connected with development of human resources for health. This mechanism will
upgrade protection of both the rights to work and to health through international
cooperation. However, the Philippines, despite being among the largest exporters of
nurses in the United Kingdom, has yet to forge a similar agreement with the U.K. or any
of its destination countries.

These agreements may likewise occur in the micro scale whereby hospitals in the
destination countries shall forge partnerships with hospitals in the source countries and
the compensation flow shall inure directly to the local hospital where the nurse has been
recruited. These resources shall be then utilized to train the next batch of nurses who will
work in that specific hospital.79 This way, the loss of skills are immediately replaced and
targeted in the place where it occurred. These partnerships, while occurring on an
individual basis, must also be regulated and monitored by the State.

The participation of the WHO and the ILO, as the leading specialized agencies in
these fields, is crucial in encouraging high level bilateral and multilateral negotiations
between and among countries. Examples of existing agreements must be introduced to
affected countries. Most importantly, technical assistance and awareness raising on these
options must be available to developing states. Partnerships among these international
organizations, national governments and other stakeholders, such as the Global Health
Workforce Alliance,80 will stimulate an international environment that recognizes the
global shortage of health professionals as a crisis and spark enthusiasm to find solutions
thereby.

VI. Conclusion

The popular exercise of the right of the Filipino nurse to choose work outside the
Philippines is an entitlement legally guaranteed in international human rights law. In
recent years, remittances by these Filipino nurses bring in billions of dollars worth of
revenue to its otherwise stagnant economy in recent years. For this reason alone, the
government actively endorses this route. However, the responsibility of the State to
exercise diligence in balancing the exercise of other economic, social and cultural rights
sets in, especially when it begins to affect the lives of others. Patients cannot prevent,

77 Stillwell, B., et al. Migration of Health Care Workers from Developing Countries: Strategic
Approaches to Its Management. Bulletin of the WHO. Issue 82. 2004. pp. 595-600.
http://www.who.int/bulletin/volumes/82/8/en/595arabic.pdf, Retrieved Last 05 February 2008.
78 Buchanan, J. et al., The Migration of Nurses: Trends and Policies in Bulletin of the WHO, Issue 84,
No.2, August 2004.
79 Galvez Tan, J., supra, http://www.academyhealth.org/nhpc/foreignpolicy/2006/galveztan.ppt. Retrieved
last 05 February 2008.
80The Global Health Workforce Alliance, http://www.who.int/workforcealliance/en/. Retrieved last 06
February 2008.
treat and control infections and diseases without the availability and equal access to the
medical supervision of competent doctors and nurses. A national health care system, even
with the best state of the art facilities and life saving drugs shall be useless, without the
moving forces of health professionals. Efforts to achieve the highest attainable standard
of health will all come to naught.

The obligation to fulfill the right to health is aimed at progressive realization. It is

not immediate. It is the least justiciable in the tripartite typology of obligations, due to its
programmatic character. Its very nature has turned judicial authorities in national
jurisdictions hesitant to declare that a state has in fact violated its obligation to fulfill.
Even the Committee of Economic, Social and Cultural Rights has yet to declare that a
particular state has committed such a violation. In its various general comments and
concluding observations, it has gone only to the extent of declaring that a state action or
omission constitutes a violation, without referring to the particular state actor.

The ongoing crisis of outward migration of nurses from the Philippines has been
presented in this paper as a seeming conflict between the right of the individual health
worker to freely choose work and the right to health of the Filipino population as a
whole. Several authorities that were cited in this writing, however, opine that there exists
no such conflict. All human rights, including economic, social and cultural rights, are of
equal priority. One right could not take precedence over another. It all boils down to one
element: the balancing act of the State. If the State fails in this, a violation of its
obligation to fulfill thereby arises.

The Philippines, a perennial leader in the export of health service professionals

around the globe and as a signatory to the Nurses Personnel Convention since 1979, has
yet to adopt a comprehensive national public health strategy to incorporate ways and
means to manage migration, especially of nurses. An incoherent national employment
policy has left government health and labor agencies confused on the direction to take in
issues concerning international health worker migration. Insufficient data on the migrant
health workforce has skewed the formulation of health indicators and benchmarks.
Government allocations to health in relation to the national budget continue to decrease
year after year. The Philippines pursues to allocate more than half of its budget to debt
servicing and defense. Legislators have yet to institute a National Health Services Act, as
an introductory effort to manage migration of nurses. As a major player in the export of
health services, it has yet to enter into bilateral agreements with destination countries to
effect changes in recruitment policies, as well as divert much needed revenue from
destination countries to finance health human resource development. As a result, less and
less children are immunized due to the absence of health professionals to administer these
immunizations. The disparity of access to health care between urban and rural areas has
widened, due to the closure of hospitals in far flung provinces. A myriad of inadequacies
that the Philippines has failed to address up to the present time constitutes a violation of
its obligation to fulfill the right to health set out by the Committee on Economic, Social
and Cultural Rights.

The social responsibility of health professionals is inherent in the practice of their

profession. The Universal Declaration of Human Rights states that “Everyone has duties
to the community in which alone the free and full development of his personality is
possible…” But in the context of poverty and underdevelopment, wherein man, or
woman for that matter, is without food to eat and deprived of basic subsistence, an
individual is left to think of the benefit of himself and his family. It is thereby incumbent
upon the State to restore social order and communal respect for the economic, social and
cultural rights of all.

VII. List of Related Literature

a. Eide, A., et al. (Ed.) Economic Social and Cultural Rights: A Textbook,
Second Revised Edition, Martinus Nijhoff Publishers, 2001.

b. Toebes, B. The Right to Health as a Human Right in International Law.

Intersentia-Hart. 1998.

c. Galvez Tan, J., The Philippine Phenomenon of Nursing Medics: Why

Filipino Doctors are Becoming Nurses. National Institute of Health.
Philippines. 2004.

d. Galvez Tan, J. The Challenge of Managing Migration, Retention and

Return of Health Professionals.
http://www.academyhealth.org/nhpc/foreignpolicy/2006/galveztan.ppt.
Retrieved last 05 February 2008.

e. General Comment No. 12 of the Committee on Economic Social and

Cultural Rights. Right to Highest Attainable Standard of Health. 2000.

f. General Comment No. 18 of the Committee on Economic, Social and

Cultural Rights: Right to Work. 2006.

g. Institute of Health Policy and Development. Migration of Health

Workers: Country Case Study Philippines. International Labor
Organization. Geneva.2005.
http://www.ilo.org/public/english/dialogue/sector/papers/health/wp236.pdf

h. Corcega, T. et al. Nurse Supply and Demand in the Philippines. in The UP

Manila Journal, 2002, Vol. 5, No.1, pp.1-7.

i. Stillwell, B., et al. Migration of Health Care Workers from Developing

Countries: Strategic Approaches to Its Management in Bulletin of the
WHO, Issue No. 85, 2005. pp.595-600.
http://www.who.int/bulletin/volumes/82/8/en/595arabic.pdf. Retrieved last
05 February 2008.
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k. Lorenzo, F. et al. Nurse Migration from a Source Country Perspective:

Philippine Country Case Study. Health Services Research and Educational
Trust. Issue 42, No. 3, June 2007. pp.1406-1418.

l. Bueno de Mesquita, J., et al. The International Migration of Health

Workers: A Human Rights Analysis. Medact. London, United Kingdom.
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m. http://www.wpro.who.int/countries/phl/national_health_priorities.htm.
Retrieved last 04 February 2008.

n. Buchanan, J. et al. The Migration of Nurses: Trends and Policies in

Bulletin of the WHO. Issue 84. No.2. August 2004.

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Survey.1993-2003.

p. World Health Organization, World Health Report: Working Together for

Health. 2006. http://www.who.int/whr/2006/chapter1/en/index.html.
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r. International Covenant on Economic Social Cultural Rights. Entered into

Force 1976.

s. International Convention on the Protection of the Rights of All Migrant

Workers and Members of Their Families, Entered into Force July 2003.

t. Chen, L., et al. Human Resources for Health: Overcoming the Crisis, in
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u. Committee on Economic, Social and Cultural Rights. General Comment

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w. Preamble of the Constitution of the World Health Organization, adopted

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x. Agenda of the World Health Organization.

http://www.who.int/about/agenda/en/index.html. Retrieved last 03
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y. World Health Assembly, International migration of health personnel: a

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z. World Health Assembly. Strengthening Nursing and Midwifery. WHA

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bb. 1987 Philippine Constitution.

cc. Presidential Decree No. 442, as amended, effective 01 May 1974.

dd. Republic Act No. 8042, effective 07 June 1995.

ee. Republic Act No. 9173, otherwise known as “An Act Providing for a
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ff. Republic Act No.7305, otherwise known as “The Magna Carta of Public
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gg. http://www2.doh.gov.ph/noh2007/NOHWeb32/NOHperSubj/Chap3/Healt
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mm.Convention of the International Labor Organization No. 149. Nurses

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