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Samenvatting International Health Law RL15 (RL15)
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Summary of almost all international health law articles and case law.
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Samenvatting Jurisprudentie/ ArtikelenWeek 17: Understanding Human Rights Frameworks...........................................................................3
M. Buijsen, ‘Human Dignity and the Concept of Health law’............................................................3
T.J. Melish, ‘Introductory Note to the Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights’...............................................................................................6
M. Nowak, ‘The Need for a World Court of Human Rights’..............................................................8
E. Riedel, ‘Economic, Social and Cultural Rights’ → NOG SAMENVATTEN......................................10
A. Sachs, The Strange Alchemy of Law and Life’ → NOG SAMENVATTEN.......................................10
Week 18: The Right to Health in International Law.............................................................................10
den Exter, ‘The Right to health Care’.............................................................................................10
K. Syrett, ‘Healthcare rationing and the Law’.................................................................................15
P. Hunt, ‘Interpreting the International Right to Health in a Human Rights-Based Approach to
Health’ → NOG SAMENVATTEN......................................................................................................20
Rumbold et.al., ‘Universal Health Coverage, priority Setting, and the Human Right to Health’.....20
Council of Europe, Covid-19 vaccines: ethical, legal and practical considerations.........................22
A. den Exter, View. The Dutch Critical Care Triage Guideline.........................................................24
Week 19: The Biomedicine Convention...............................................................................................26
A. Garwood-Gowers & S. Olsena, ‘Informed Consent’...................................................................26
B. Buchner, ‘Privacy’.......................................................................................................................30
G. Cricenti, ‘Medical research with Human Beings’ → NOG SAMENVATTEN..................................33
D. Sprumont, P. Borry & M. Shabani, ‘Genetic Testing in Europe. An Overview of the Legal
Framework’....................................................................................................................................33
A. Garwood-Gowers & A. Pereira, ‘Organ and Tissue Human-Human Transplantation’.................37
S. Fovargue, ‘Xenotransplantation’.................................................................................................41
R. Sandland & P. Lobato de Faria, ‘Patients’ Duties: The Missing Element in European Healthcare
Law’ → NOG SAMENVATTEN..........................................................................................................42
COMMITTEE ON BIOETHICS (DH-BIO), DH-BIO Statement on human rights considerations relevant
to the COVID-19 pandemic, Strasbourg, 14 April 2020...................................................................43
Week 20: Vulnerable groups 1 (elderly and prisoners)........................................................................45
Kudla v Poland (ECHR 26 October 2000, app. no 30210/96)..........................................................45
Melnik v Ukraine (ECHR 28 March 2006, app. no 72286/01)..........................................................47
, Dickson v UK (ECHR 4 December 2007, app. no 44362/04)............................................................49
Rooman v. Belgium ([GC], ECHR 31 January 2019, app. no. 18052/11)..........................................51
P. Jacobs, ‘Health Care in Prison’....................................................................................................52
D. Touwen & A. Hendriks, ‘Ageing & Health Care’..........................................................................55
Week 21: Vulnerable groups 2 (women and children).........................................................................58
Evans v UK (ECHR 10 April 2007, app. no 6339/05)........................................................................58
V.C v Slovakia (ECHR 8 November, app. no 18968/07)...................................................................59
A, B and C v Ireland (ECHR 16 December 2010, app. no 25579/05)...............................................60
M.A.K. and R.K. v UK (ECHR 23 March 2010, app. nrs 45901/05, 40146/06)..................................61
E. Kismödi, ‘European Sexual and Reproductive Health Law and Human Rights’..........................63
C. Adolphsen, ‘Children and Health Care’.......................................................................................68
J. Rothmar Herrmann, ‘The Human Embryo and Foetus’...............................................................74
Week 22: The right to healthcare in european human rights law (Disabled people)...........................76
J. McHale, ‘Mental Health and the ECHR: Human Rights Framing and Changing’ ).......................76
Nielsen v Denmark (ECHR 23 November 1988, app. no 10929/84) (see also chapter on children’s
rights).............................................................................................................................................81
L.R. v. North Macedonia (ECtHR 20 May 2020, application no. 38067/15).....................................82
Varbanov v. Bulgaria (ECtHR 5 October 2000, application no. 31365/96)......................................84
Aggerholm v Denmark (ECtHR 15 September 2020 (no. 45439/18)...............................................85
Week 23: The European Committee of Social Rights (ECSR)................................................................86
Marangopoulos Foundation for Human Rights (MFHR) v Greece (ECSR 6 December 2006,
Complaint no 30/2005)...................................................................................................................86
The Central Association of Carers in Finland v Finland (ESCR 4 December 2012, Complaint no
70/2011).........................................................................................................................................88
,Week 17: Understanding Human Rights Frameworks
M. Buijsen, ‘Human Dignity and the Concept of Health law’
This chapter analyzes the concept of human dignity from different perspectives and
attempts to define the relationship between human dignity and fundamental rights. In
addition, it looks for the fundamental rights and legal principles of health care.
The purpose of human rights is to protect human dignity. Thus, human dignity can be
described as the foundation of human rights. In order to establish specific standards of
human rights in the biomedical sector, a number of international agreements have been
concluded:
● Council of Europe Covenant on Human Rights and Biomedicine (entered into force in 1999)
● UNESCO Declaration on the Human Genome and Human Rights (1997)
● UNESCO Universal Declaration on Bioethics and Human Rights (2005)
The United Nations has adopted a number of human rights conventions:
● Universal Declaration of Human Rights (UDHR 1948)
● International Covenant on Civil and Political Rights (ICCPR 1966)
● International Covenant on Economic, Social and Cultural Rights (ICESCR 1966)
In the EU, human dignity has been recognized as a fundamental right or general principle of
law since December 1, 2009. Human dignity (or respect for human dignity) is described as
the essence of the Convention for the Protection of Human Rights and Fundamental
Freedoms and as a recognized fundamental value at the heart of the human being's position
on the lawn, and it is often referred to as the foundation of the basis of human rights.
Human dignity and human rights are inextricably linked. It is impossible to define human
dignity from a legal perspective because the position of human rights itself constitutes the
meaning of human dignity in all its manifestations. The jurisprudence of the European Court
of Human Rights suggests that there is a hierarchy of fundamental rights. The assessment of
the enjoyment of economic, social and cultural rights does not fall within the jurisdiction of
the ECHR, and is therefore not legally enforceable. Thus, it is not certain that a enjoyment of
fundamental rights implies an enjoyment of human dignity. All fundamental rights may be
restricted, but their essence may no longer be violated. An indeterminate part of the
concept of human dignity is fine, as long as the particular part of the concept must be
sufficient for health care lawyers to proceed. The standards should provide a sufficiently
decent basis for constructing a theory that does what can be expected of an academic
theory - explain why the legal rules applicable to health care are what they are - anticipate
(to some extent) legal developments in that area, and also provide a more than adequate
interpretive framework for the practice of a health law attorney.
However, the curtailment of any fundamental right can be considered an infringement of
dignity. It can be assumed that dignity is an attribute of individual human beings. A
contracting state that fails to make sufficient efforts to ensure access to essential care for
, all, compromises the dignity of the affected individual. The aforementioned Dutch State
Commission defines the principle of self-interest and autonomy as the principle that implies
that every person is entitled, within limits, to act according to his own ideas about how to
lead his own life, and not based on the ideas of the government.
The principle of personal autonomy may conflict with other aspects of human dignity. If
personal autonomy has real legal meaning, then human dignity is the concept that supports
or guarantees autonomy. Be that as it may, dignity cannot be equated with autonomy, for
that would mean that one could be accused of always giving more weight to a category of
fundamental rights (especially liberty rights) than to the stand-alone notion of dignity.
Dignity is essential, and therefore inviolable and inalienable. But dignity is also associated
with philosophical controversies. The metaphysicians and substantivists (jurists) both have
different views of dignity. Both have a point and both are wrong. Therefore, the concept of
dignity is and will remain undefined. Human dignity is temporal and bounded. The fact that
humans are temporal beings raises questions about human respect for the unborn and the
dead. At the European level, this is unclear because Article 1 UDHR suggests that unborn
human life is excluded from rights, but Article 2 ECHR states respect for the right to life of
the embryo in vitro. The same applies to deceased people, have you lost the right to human
dignity after dying? Not all fundamental rights remain protected postmortem, and not all
fundamental rights are protected prenatally, although the latter depends heavily on national
legislation. In the case of unborn human life and deceased persons, it cannot be said that
any isolation of fundamental rights also results, in principle, in an isolation of dignity.
Whereas dignity was long associated with hierarchy and status, it now possesses equal
dignity. Being human granted dignity to an individual and to all individuals in equal
measures.
If human rights are the backbone of the lawn, then dignity is the pillar of all lawns, including
the health law. Either way, human dignity makes little sense as a legal principle. Legal
principles are indispensable because the practice of law is an act of interpretation. When
rules are considered, law is inconsistent, incomplete and fragmentary. It is up to lawyers to
create unity and coherence in their judgments. A legal theory provides a basis for
interpretation and unambiguous statements, it can be constructed by embodying one or
more principles in a subfield of the law. A good legal theory provides an effective
explanation and has great predictive values. A legal theory explains why rules are the way
they are and it is repeatedly confirmed by law and regulation. It is generally accepted that
rules have a certain logical structure and a dual function. They can be applied both
prospectively and retrospectively. Rules regulate behavior when certain conditions are
present. The person subjected to the rule is prohibited or permitted by the rules in certain
circumstances. Can lawyers fall back on principles? Therefore, law is usually considered a set
of applicable legal rules and principles. Legal principles do not have the same structure as
legal rules. Legal principles do not directly relate to human behavior, but indirectly through
legal rules. But legal principles can give legal rules meaning or purpose.
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