Summary International Health Law
Inhoudsopgave
Week 1: Introduction..................................................................................................................................... 1
Week 2: Patients’ Rights : The Oviedo convention and beyond.......................................................................9
Week 3: The Right to Health......................................................................................................................... 15
Week 4: Health Care Rationing..................................................................................................................... 26
Week 5: Women’s Rights & Health............................................................................................................... 32
Week 6........................................................................................................................................................ 43
Lecture 6: Prisoners, Health and Healthcare......................................................................................................43
Working groups........................................................................................................................................... 53
Workgroup 1: 23 november 2020.......................................................................................................................53
Workgroup 2:......................................................................................................................................................53
Working group 3:................................................................................................................................................55
Working group 4:................................................................................................................................................59
Workgroup 5. Model Exam.................................................................................................................................59
Refereren: Example for scholarly papers: (Den Exter, page XX); for court cases: (ECHR, D. v. UK); for
treaties: (Art XX, Oviedo Convention).
Week 1: Introduction
Part 1: International law:
Part 1.1: definition Slide 6
Definition of International law, also known as Law of nations: “The set of rules, norms, and standards
generally accepted in relations between states. It establishes normative guidelines and a common
conceptual framework to guide states across a broad range of domains, including war, diplomacy,
trade, and human rights.”
We make a distinction between rules between states and rules within states.
- Rules between states: the rules that the states agree upon are called treaties.
- Rules within states: law within states = municipal law. These are the rules that the state has
within itself.
Part 1.2: sources slide 7
Sources of international law:
- Treaties:
o Rules and decisions by international bodies : Treaty is a contract, set of rules agreed
upon between states. In international law it is about states and the rules they agree
upon.
o A treaty can establish an organization for example the UN, or EU. International law is
made up of treaties, the rules the states have agreed upon, but also decisions of
international bodies that are the result of treaties between states.
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, - International custom: cannot be found in treaties, are not written down. Is a set of rules how
states should behave towards each other in the international arena.
- General principles of law: if a state promises something, make a treaty with another state, it
is up to the state to live up to what is agreed upon. --> fulfill your promises.
- Writings of legal scholars: the way in which scholars (with authority) explain international law
is important.
Treaties slide 8
- Treaties are recognized as a primary source of international law
- A treaty (other names = international agreement, protocol, covenant, convention, pact etc.)
is a formal written agreement entered into by actors in international law: sovereign
states and international organizations. Regardless of terminology, only instruments that are
binding upon the parties are considered treaties subject to international law.
o Actors = usually states, sovereign states, but they might be international
organizations.
o Binding upon the parties are considered treaties: set of rules which imposes on the
parties involved, usually the states, rights and obligations which are binding. a
state is bound to perform, or not to perform, in accordance to what is agreed upon.
- Treaties vary significantly in substance and complexity, and may govern a wide variety of
matters, such as territorial boundaries, trade and commerce, political alliances, etc.
- International law on treaties have mostly been codified by the Vienna Convention on the Law
of Treaties (VCLT), which sets forth the rules and procedures for creating, enforcing,
amending, and interpreting treaties.==> Important document: agreement about formalities
about having a treaty with another state.
- Treaties can be slide 9
o Bilateral (between 2 states) or multilateral (more than 2 states)
o State is party or not
- Treaties can create: International organizations (IO): a new organization. The UN is a result of
treaties between dozens of countries. IOs can be classified in accordance to the degree of
sovereignty which has been allocated by the states to the international organization.
1. Intergovernmental organizations (Council of Europe, United Nations) no
power over the states which are party to that treaty. no political powers, no
legislative powers have been transferred from states to the organisation.
a. Simply facilitates cooperation between states
b. No powers of its own: if so, parties must have relegated power
2. Supranational organizations (European Union) has power over the states.
countries party of a treaty have transferred sovereign powers to the
organization. EU has legislative, political and judicial powers, an own court,
executive powers of its own. Organization can make rules which are more
important than the rules of individual states.
- Treaties can deal with a variety of subjects, i.a. Human rights protection focus in this
course on human rights protection in the context of health and health care.
General structure of human rights treaties. slide 10
- Prebamble: states state what they want to do with that treaty. : they state their objective
- General provisions (purpose, scope, definitions): specification of the treaty
- Chapters on human rights: contains material element which defines the human rights in
question.
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, - Compliance and dispute resolution: compliance is about what happens when a state does
not comply, if it is accused of human rights violation, is there a court where an individual can
go to?
- Amendments, protocols and reservations: possibility to add something (amendments),
protocols for example extension of rights and a state is allowed not to agree with every part
of the treaty so it makes reservations on certain parts.
- Final clauses (signature, ratification, entry into force):
o Ratification: treaty goes through national parliament before it becomes binding. Also
a number of states must have ratified the treaty in order to become binding.
o Final clause is about legalities of a treaty (=when it becomes binding)
International law slide 12
- Interpretation of treaties: treaties are living instruments, meaning that treaties have to be
interpreted in order to provide solutions for problems that need to be solved now.
- Most important European Human Rights Treaty = European Convention on the protection of
Human Rights and Fundamental Freedoms. Is the basic document of the Council of Europe,
made in 1950 as a reaction on the human rights violation in the WOII. Treaty’s goal was
protection of human rights and fundamental freedom and established the court in
Strasbourg, which rules on accusations of human rights violations made against the states
party to that European human right convention.
- Interpretation needed of a document that stems from 1950. As in municipal law, the courts
interpret in their rulings treaty law, therefore also human rights treaties.
- In order to understand what is said in the treaties you must understand treaties as living
things they are subject to constant interpretation by the international and national courts
as well as applying those rules to be found in international treaties.
- Also legal scholars analyze and comment on what is being said by the courts on when they
rule how they interpret what is being said in the treaties. The courts also use these
comments to apply those treaties.
- Everything in law is about interpretation.
Interpretation of treaties:
- Decisions of
o International human rights courts (European Court of Human Rights: Inter-American
Court of Human Rights etc)
o Domestic courts
- Analysis and commentary (books, journal articles)
- A treaty simply states a number of rules which came into effect at a certain time, but it is a
linear instrument which has to be interpreted in order to provide solutions for current issues.
We must understand treaties as living instruments, subject to constant interpretation to
(inter)national courts, applying those rules found in treaties.
Part 1.3: researching international law slide 13
- Locate the text of the treaty find out whether or not a treaty is binding for a certain state,
look at the list of ratifications and the date that the treaty entered into force.
- Information on ratification and entry into force the names of the states that are party of
the treaty in order to find out whether or not it applies to your state
- Reservations list of states which made reservations on what articles.
o E.g., a treaty consists of 30 articles about separate human rights, a state can make
reservations saying they accept the terms of the treaty, are bound to them, will act in
accordance with them, except for Art. 13, which will then not be applicable to the
state
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, - Implementation in domestic legislation if a state becomes a party to a treaty it imposes
obligations on the state. State might have the obligation to make several national laws in
order to fulfill the agreement of the treaty. Important to see how international treaty law is
implemented in national domestic law.
- Find decisions of (inter)national courts the decisions by courts in individuals cases are also
very relevant for proper understanding of what is being said by the treaty. Treaty is a living
instrument and has to be understood in the relevant case law: so what came out of previous
decisions on certain violations, use that in future rulings of the court.
- Locate relevant commentary and analysis And need to know how according to legal
scholars a decision has to be understood in order to understand properly what is said in the
treaty itself.
Part 2: Human rights
Part 2.1: Definition and foundation slide 15
- Human rights are the rights that all people have by virtue of being human beings. (between
birth and death, they are inherent to us). humans enjoy human rights between birth and
death, because of the fact that we are born as human beings. We are entitled to human
rights and respecting our human rights is showing respect for our inherent dignity. (also
some human rights for before birth (abortion), and after death (you cannot simply use a
corps how you like))
- Human rights are derived from the inherent dignity of the human person and are defined
internationally, nationally and locally by various law making bodies. dignity is about
protecting the inherent dignity of every human being, is mentioned in almost every human
rights treaty.
- (International) Human Rights Law the most fundamental part of the legal system. If it
does not recognize human rights, there is no rule of law. Respecting human rights is
respecting human dignity. Full enjoyment of HRL between birth and death. If human rights
protection is at the heart of the system, the legal system is about one basic rule: everyone
ought to respect human dignity. Respecting human rights is respecting dignity of every
human being, between birth and death, as well as before and after.
International human rights law serves as: slide 16
- A beacon - pulling states towards accepting human rights. if you become party to an
agreement which is about human rights, you accept that there are fundamental rights that
you have to respect.
- A safety net - to supplement the national legal system. international human rights law
seen as a safety net to amend shortcomings on a national level. Individual human being can
go to Strasbourg when he/she thinks that the human rights are violated by the state. Court of
Strasbourg can rule against the national court when it feels that the individual complaining
about the human rights is right.
- A basis - to ‘mobilise shame’ of the international community. No country is happy with
the fact that it is being accused of violations of human rights. It mobilizes shame of the
international community.
Human rights obligations of states. slide 17
- A treaty, and also human rights, impose obligations on the individual states. 4 categories:
1. Respecting a right means that a state must not violate a particular right for example
the right to privacy. Obligation to respect that right and the state must not violate the
right itself.
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