Altay, Selin

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Public Health as a Strategic InstrumentSelin Altay 2024-03-07T08:00:58Public health as a policy pursuit and a legally prescribed goal has consistentlyserved as a veneer for the implementation of discriminatory policies. Migration lawsand policies have also played a notable role in discriminating against refugeesunder the pretext of public health considerations. Kraut explains that the connectionbetween public health and migration is the ‘double helix of health and apprehensiontowards the foreign-born’. In the context of refugee sex workers, the ‘apprehension’enables efforts to enforce heightened public health measures. The Turkish Lawon Foreigners and International Protection (LFIP) incorporates ‘public health’ asa prerequisite for refugees to not face removal decisions (Art. 54). Sex workersemployed in Turkey are perceived as potential risks to public health due to theirengagement in precarious and unmonitored work environments, which mayhave a risk on their safety and well-being. According to Article 24 of the RefugeeConvention, contracting states are obligated to provide refugees lawfully stayingin their territory with the same treatment as that accorded to nationals in respect ofsocial security including occupational diseases. While international law mandatesequal treatment for refugees in accessing medical care, the distinct and marginalizedstatus of refugee sex workers necessitates a reconsideration and critique of bothinternational law and Turkey’s responsibilities as a state.Legal BackgroundBuilding upon Charlesworth et al.‘s argumentation that the international legal orderoften neglects the voices of women, international jurisprudence assumes theuniversal and neutral applicability of norms directed at individuals within states. Yet,there is insufficient recognition that these principles may impact men and womendifferently, resulting in the silencing or discounting of women’s experiences with theoperation of these laws (Charlesworth et al., 621-625). This reality becomes moresevere and challenging when we talk about an even further marginalized grouplike sex workers. When reconsidering the mandate of equal treatment for refugeesin obtaining medical care as stipulated by the Refugee Convention Art. 24, theincorporation of sex worker refugees’ rights as workers was not encompassed withinthe discussion. Similar to the Refugee Convention, there is no international lawthat adequately addresses the fundamental rights and necessities of sex workers,including those who are refugees.In addition to the lack of necessary measures for refugee sex workers, there isalso an absence of provisions safeguarding them from heightened marginalization.An example of this can be given from the lack of a standardized definition forthe term ‘public health’ within international law, leading to ambiguity and variedinterpretations. While the concept of public health is integral to domestic law,establishing its standards and boundaries on the international level could serve toprevent rights violations and marginalization. The projection of this failure at the- 1 -national level can be given through the example of refugee sex workers in Turkey,who are subjected to a series of rights violations on the pretext of public health.In the context of refugee sex workers in Turkey, the term “public health” presentsvarious challenges and complexities, primarily rooted in the domestic legalframework. According to Ördek (2017) while the legislation regarding sex work inTurkey has a regulatory feature on the one hand, it has prohibitive, preventive,and punitive features on the other hand. Under Turkish laws, sex work is not illegal(see Penal Code), paving the way for the establishment and operation of state-runbrothels. However, for a sex worker to engage in lawful employment, they mustoperate within a state-run brothel, hold the necessary licenses (see ProstitutionLaw), and be citizens of Turkey (see Passport Law). Not satisfying any of thesecriteria results in the illegality of engaging in sex work in Turkey.Refugee sex workers, as foreigners in Turkey, are forced to operate illegally in thecountry’s context. This illegality especially gains significance considering the factthat it can be a basis for a removal decision under  Article 54 of LFIP: ‘A removaldecision shall be issued in respect of those foreigners [who] (1) made their livingfrom illegitimate means during their stay in Turkey; (2) pose a […] public healththreat’. The findings from field research indicate that the public administrationinterprets the aforementioned article to imply that individuals involved in sex workearn income through ‘illegitimate’ means or pose a threat to ‘public health’. Thisthreat usually results in the arrest of refugee sex workers. After being arrested,sex workers undergo medical examinations at hospitals specializing in sexuallytransmitted infections (STIs). If they test positive for any STIs, they are deported, andtheir STI status is documented. If there is no sign of infection, they are still deportedand noted as participating in illegal prostitution (see here and here).K#v#lc#m argues that there exists an active legal inaction in terms of the protectionthat is needed by the refugees. Legal inaction, a potent form of legal violence,manifests when sovereign authorities deliberately abstain from enacting legislation toregulate activities impacting refugees’ lives and safeguard their rights. While relevantlegislation may exist, the lack of implementation by legal authorities contributes tothis legal violence. Instances include prosecutors refraining from investigating crimesagainst refugees or public authorities failing to address discrimination. In addition tointernational law’s neglect of sex workers as a marginalized group, the state’s legalinaction against the subjects leaves refugee sex workers without a legal remedy.Where Does this Leave Refugee Sex Workers?The Women’s Refugee Commission (WRC), an advocate and policy developerfor the rights and well-being of displaced women, children, and youth, in its 2016report on refugee sex workers reveals that involvement in sex work amplifies thevulnerability of refugees to gender-based violence (GBV), especially in the areaswhere sex work is criminalized. Refugee sex workers have noted heightened risks ofviolence and increased exposure to HIV or other STIs, stemming from interactionswith both clients and police. The participants in the report state that they engagein sex work due to limited employment opportunities and find it more financiallyrewarding, reliable, and with more flexible hours compared to other available jobs.- 2 -Despite its inherent risks, sex work is perceived as sometimes safer than otherinformal sector jobs where sexual assault and harassment are prevalent. Refugeesnote that wage theft is often less common, and sex work provides greater autonomyover work hours, particularly advantageous for working mothers. Working conditionsvary, and those on the streets face higher risks of violence compared to those innightclubs or hotels.WRC’s report highlights the employment experiences of refugee sex workers inTurkey as well. In addition to the heightened risk of gender-based violence (GBV),these workers are compelled to rely on intermediaries due to the impossibilityof obtaining official licenses and registration. The existing regulations in Turkey,designed to uphold general health and public order, inadvertently hinder theunregistered sex work sector, creating additional challenges for sex workers andsubjecting them to the control of intermediaries. This not only damages the healthof sex workers but also poses risks to public health. Furthermore, it is reported thatrefugee sex workers struggle to access crucial health services. Limited informationon sexual health, healthcare facilities, and HIV testing centres, combined with theinformal nature of sex work involving intermediaries, poses significant challenges.Instrumentalization of the Notion of ‘Public Health’Refugees engaged in sex work are prohibited from registering as licensed sexworkers under the existing law in Turkey. Consequently, they are compelled to seekclients through alternative means or operate under intermediaries. The unmonitoredworking environments resulting from this situation create unsafe conditions for sexworkers, exposing them to risks like HIV or other STIs. Paradoxically, the state,which contributes to these unhealthy working conditions, then labels the sex workeras a threat to ‘public health’, empowering state organs to potentially deport ordetain them. This term grants authorities the discretionary use of power withoutemphasizing the state’s responsibility to provide necessary health protections torefugees in the first place.Refugee sex workers in Turkey find themselves entangled in a complex web oflegal challenges and discriminatory practices. While Article 24 of the RefugeeConvention aims to ensure equal treatment for refugees in terms of legal provisionsrelated to sickness, employment injury, and occupational diseases, it falls shortin addressing the specific needs of sex workers among refugees. The absenceof a dedicated provision leaves refugee sex workers without a legal remedytailored to their situation. Despite the legal landscape allowing Turkish nationalsengaged in sex work to access necessary protections, the interpretation of thenotion of ‘public health’ by the public administration hampers the rightful access ofrefugee sex workers to these protections. The system, by framing sex workers asa perceived threat to public health, not only denies them the essential safeguardsbut also perpetuates discrimination, a violation of international conventions andlaws. This underscores the urgent need for legal frameworks that account for theunique challenges faced by refugee sex workers, ensuring that their rights are notoverlooked in the broader discourse on refugee protection.- 3 -Remembering Kraut’s explanation of the connection between public health andmigration, the involvement of sex work in the paradigm makes a triple helix of health,an apprehension towards the foreign-born, and a neglect towards the sex worker.We can only get out of this helix through the removal or detailed explanation ofthe term ‘public health’. Although the removal of the term might be too big of astretch while bearing the risk of creating legal loopholes, the reimagination, andreexplanation of the term in the case of sex workers can help end the term’s arbitraryusage. The “Bofaxe” series appears as part of a collaboration between the IFHV andVölkerrechtsblog.- 4 -

Public Health as a Strategic Instrument

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Public Health as a Strategic Instrument

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