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Summary International Health Law - lectures, book, cases and working groups

Name: Summary International Health Law - lectures, book, cases and working groups
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Erasmus Universiteit Rotterdam (EUR)

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European health law

An extensive summary of the lectures, the working groups, the case law, articles and the book of international health law.

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International Health Law – Lectures, book, case law, working groups
Chapter 1:
Convention Page number
UDHR - Universal Declaration of Human Rights – 1948 17 + 259

ICCPR - International covenant on civil and political 259, 408
rights– 1966
General comment no 14 – right to highest attainable 18
standard of health (explanation of right 12 of the
ICESCR)
ICESCR – International covenant on economic, social 17,
and cultural rights
Oviedo convention – convention on human rights and 48, 271, 579
biomedicine (CHRB)
Charter of Fundamental Rights in the European Union 49,
– 2009
ECtHR - European Convention for Protection of 269
Human Rights and Fundamental Freedoms
CEDAW – Convention on the Elimination of all Forms 113
of Discrimination against Women
ACHR – American Court on Human Rights 336
Universal declaration on the human genome and 694
human rights
Universal declaration on bioethics and human rights 831

Customary international law and general principles are binding upon all States independently from
treaty law.
Declarations and non-treaty documents that are not have the binding force of international law like
the UDHR.
The Syracuse principles is a civil society initiative and considers the limitation and restriction
provisions of the ICCPR

Dignity: most important in international law
- Charter of the united nations (1945)
- Universal Declaration of Human Rights – 1948
- International covenant on civil and political rights (ICCPR – 1966)
- In the NL, a state commission in 2010 recommended including a general clause on dignity
- Interesting: not explicitly stated in European convention on human rights

ICCPR & ICESCR  rights protected by these covenants derive from the inherent dignity of the
human person
- A violation of privacy is a violation of dignity
- Subjecting someone to cruelty or inhumane treatments constitutes disregard for that
persons dignity
- A state that is a party to the ICESCR and does not arrange access to essential healthcare is
guilty of disregard of those in need of care

Fundamental rights are closely related to the principle of dignity. Dignity is an attribute of
individual human beings.

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,ICESC rights function as a directive rather than legally enforceable, however that does not alter the
fact that these rights go hand in hand with a lot of state obligations such as the obligation to respect
and the obligation to promote. Failure to honour these obligations = violation of the dignity of
individual people

Article 1 UDHR : dignity
- Time bound
- Possessed equally
- Essential

Article 22 UDHR: social security  Everyone has the right to social security and is entitled to
realization through national effort and international co-operation and in accordance with the
organization and resources of each state, of the economic, social and cultural rights indispensable for
his dignity.

Article 25 UDHR: health & well being

Personal autonomy  every person is entitled to act in accordance with their own ideas. This aspect
of human dignity is accepted as a principle of law. Sometimes autonomy conflicts with the concept of
human dignity  what about a physician performing an emergency surgery without informed
consent?  violating patient’s autonomy however he does respect its dignity.

2 sorts of fundamental rights
1. Individual/liberty rights: Civil/freedom/political rights (individual because dignity of one
person not of a group)
- Legal rights
- Abstain from interference and right to privacy
2. Social and economic rights: collectively enjoyed
- Programme rights
- Public/social rights: require action in order to facilitate access to education, health care etc.
(public health)

Violations of so called social rights impact human dignity as well and no less than violations of
liberty rights.

Chapter 2 book
Four major roles for the law in advancing public health: 1) defining the objectives of public health and
influencing the policy agenda 2) authorizing and limiting public health action with respect to
protection of individual rights 3) serving as a tool for prevention and 4) facilitating the planning and
coordination of health activities.

Health law is intended to protect individual rights and the general principles of equality and justice
Health is a field in which the competence of EU institutions is constrained
Health and well-being are important for economic and social development

Article A den Exter:

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,A right to be healthy (or the opposite, a right not to be healthy) cannot be claimed, similarly to
happiness or love. Instead, when interpreted as a right to healthcare – claiming access to healthcare
– the right to health becomes a meaningful and operational right.
Under the umbrella definition of the concept of health, the right to health would be a multi-layered,
illusory right which would be hard to realize

Since World War II, international human rights law has affirmed the right to health (interpreted as
healthcare) as a basic right. Article 25.1 of the Universal Declaration of Human Rights affirms:
Everyone has the right to a standard of living adequate for the health and well- being of himself and
of his family, including [...] medical care and necessary social services, and the right to security in the
event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control.

International level  ICESCR article 12
The ICESCR provides the most comprehensive article on the right to health by specifying the steps to
be taken by the states pg. 17

General comment no 14
In 2000, the Committee on Economic and Social Rights (CESCR), monitoring the ICESCR, published
General Comment no. 14 (hereafter GC14).17 This document is generally considered an authoritative
interpretation of Article 12 of the Covenant that specifies the content of the right to healthcare in
terms of general and specific obligations.
 This flexibility device means that State parties have a “specific and continuing obligation” to move
towards full realization, which creates a strong presumption that deliberate retrogressive measures
are not allowed (para. 31).

When are retrogressive measures justified?
Sometimes, in cases of serious resource constraints, public spending cuts on healthcare services –
such as restricting free access to medicines – can be justified, taking into account a State’s obligations
towards the totality of social, economic and cultural rights, the measure’s non-discriminatory effect,
and provided that a minimum level of healthcare access is guaranteed.

Obligations of member states mentioned in general comment no 14 ICESCR
Respect, protect and fulfil: ensure an essential minimum level of the right to healthcare  core
obligations include at least:
- adopting a comprehensive national plan to develop a health system
- progressive realization and non-discrimination in healthcare access
- ensuring equitable access to essential healthcare services and medicines.

Regional level
Also at regional level, the Council of Europe’s European Social Charter (Article 11), as well as the
Biomedicine Convention (Article 3), and recently the European Union’s Human Rights Charter (Article
35), have recognized equal access to healthcare as a basic human right.

Both the Council of Europe’s European Social Charter and Biomedicine Convention confirm the core
elements of non-discrimination and equal access to healthcare among those in need.

3

, National provisions have in common that they set a continuum of state obligations that require a
range of statutory laws and other mechanisms to realize access to high-quality healthcare services.

Justiciability of the right to healthcare
Justiciability  ability to claim a remedy before an independent and impartial body when a violation
of a (human) right has occurred or is likely to occur. In case of the right to healthcare, on several
occasions, domestic and international courts held claims on healthcare access justiciable, providing
an effective remedy to enforce its realization. Nonetheless, courts recognize that the necessary
means are not infinite. Therefore, concepts such as progressiveness, core obligations,
proportionality, and the state’s margin of appreciation provide important tools to mitigate excessive
healthcare claims.

International and constitutional law have recognized the right to healthcare by setting normative
standards, imposing state authorities to realize the social right to healthcare progressively.

Lecture 1 – Introduction International Health Law and Human Rights
Part 1: International Law
Definition International Law  about relationships: how they behave and how they regulate
Law is about relationships. International law is about the relationship between nation states, also
with(in) international institutions and how they relate to each other and how they regulate a certain
topic.
- Removal of trade barriers (economic law)
- About human right law. Human rights = minimal standards that are general/global and
applicable in all countries, to protect human rights.

Public international law: relationship between nation states and international entities and how they
behave and how they treat and act towards the inevitable
How states behave between each other (respect national sovereignty  one of the key elements to
prevent war between nation states)
- International health law  specifically applied these rules in the health setting

Sources of Public International Law
Where do we find international law? Where can we find law? What are the sources of law?
- Treaties
o One of the main tools where we can find the law, including agreements, conventions,
covenants, protocols and exchanges of notes – written and legally binding
o International agreements between different states (only one source)
o We will be faced with the inconsistency between national law and international law
standards. How to solve that problem? That is due to the variety and complexity
between many rules/legislation
- International customary law = not binding, but has become a custom so needs to be
respected  general practice accepted as law through a constant and virtually usage among
States over a period of time.
- Court decisions = case law  interpretation of cases. That is the job of courts. Their
decisions are considered as a source of law
- Scholarly commentary = some scholars give their opinion and try to explain the meaning
behind a right. These new developments are described by academics are also considered as

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