International Health Law Lectures
Inhoudsopgave
Lecture 1: Understanding Human Rights Frameworks ...................................................................................... 2
Lecture 2: The Right to Health. Article 12 ICESCR ............................................................................................. 7
Lecture 2a: International case studies & the Right to Health: Justiciability ..................................................... 11
Lecture 2b: Health Care Rationing .................................................................................................................. 14
Seminar 1: (week 18)...................................................................................................................................... 17
Lecture 3: Biomedicine and Human Rights ..................................................................................................... 20
Seminar 2 (week 19) ....................................................................................................................................... 27
Lecture 4: Health care behind bars ................................................................................................................. 29
Lecture 4a: Elderly and health care access...................................................................................................... 37
Seminar 3: Prison Health ................................................................................................................................ 38
Lecture 5: Women’s Reproductive rights: A Human Rights Issue .................................................................... 41
Seminar 4: case studies .................................................................................................................................. 49
Lecture 6: Children’s Right to Health .............................................................................................................. 52
Lecture 7: Disabled Persons & the right to health .......................................................................................... 65
Seminar 5: Disabled persons .......................................................................................................................... 71
Lecture 8: European Social Charter................................................................................................................. 74
, Lecture 1: Understanding Human Rights Frameworks
1. What is health law?
Law is the subject of jurisprudential (study of law). Lawyers must look at the positive law.
A rule tells you what to do in certain circumstances or what you should have don (Ronald
Dworkin). Law consists of rules, and rules tell people what to do or not to do.
The difference between rules of laws and ‘normal’ rules is that there is enforcement possible
by nations of the states (criminal law). Rules are legal laws, but there are some difficulties
for enforcement. Law is more than just rules, there are also principles. The nature of a
principle is also a legal principle and not a moral principle or standards. A legal principle does
not have a nature of a rule. A rule specifies the circumstances where the rule applies, and
this is not the case by talking about principles. Legal principles develop. A principle is a non-
specified rule. A legal principle is an assumption. The principles are basically fundamental
rights.
Health Law = legal principles and rules regarding:
Health law =
1. Law regarding health care provision (arts-patient relatie)
2. Law regarding health care purchasing (zorg inkoop)
3. Law regarding health care insurance (zorgverzekeringen)
Health law is based on contract law, but there is not such part of freedom of contracts in
Health Law in the Netherlands. Patients can’t be refused by insurance and the insurance has
the purchase health care on behave of their patients.
Principles of health law
- Does health law have principles of its own?
o Yes, strong notion
▪ Henk Leenen
o No, weak notion
▪ Bernard Sluijters
- Leenen
o Principles of individual self-determination and equal access to health care
o Leenen was a moralist.
- Sluijters
o Principles of civil law, penal law, etc.
- Does health law have principles of its own?
o Yes, strong notion of health law
▪ Martin Buijsen
o Health law = the realization of (a unique combination of) human rights
,Principles of Health Law
It is a human right to have health care, equal
treatment, and privacy. There is a specific kind of
informational privacy. It’s about the realization
about these three human rights in health law.
Health law has their own principles.
Health law & Health ethics
- Health Law: In the end directed towards something intrinsically good
- Health Ethics: In the end directed towards something intrinsically good
2. The Concept of Human Dignity
- More references by Dutch health lawyers to human dignity
- Result of policy statement preceding ratification of Biomedicine Convention
- Internationally accepted human rights as guiding principles of medical ethical policy
Human Dignity in Positive Law
All law is the expression of Human Dignity. Providing a definition of human dignity is not
possible. If you violated a human right, you violated someone’s human dignity. All human
rights are all equally important.
- Universal Declaration of Human Rights (1948)
- International Covenant on Civil and Political Rights (1966)
- International Covenant on Economic, social and Cultural Rights (1966)
- Convention on Human Rights and Biomedicine (1997)
- Charter of Fundamental Rights of the European Union (2010)
- German Constitution, Constitution of South-Africa
- European Convention for Protection of Human Rights and Fundamental freedoms
(1950)?
A Concept with Content
- ECtHR app. nr. 47/2008 (27-10-2009): Human dignity is ‘the very essence of the
Convention’, ‘recognized fundamental value at the core of positive human rights law’.
- Human dignity worthy of respect
- ‘Rights derive from the inherent dignity of the human person’ (preamble UN-
Covenants 1966)
- Violating human rights = violating dignity (in principle)
- Rights constitute meaning of ‘human dignity’, but not entirely
- ‘Human dignity’ is in part represented in positive law, and in part it is not
Dignity as Attribute of Individual Human Beings
Dignity is more than autonomy.
- Dignity not synonymous with autonomy
- Dignity may not be identified with autonomy
- Dignity encompasses autonomy
- Dignity is the fundamental concept
- Yet individual human beings are subjects of dignity
, Transcendentals of Dignity
- Dignity is inherent to being human (inalienable)
o ‘One possesses dignity and its subsequent rights (because one’s descent from
human beings)
o Philosophers, theologians, and lawyers: substantivists v. formalists
- Dignity is temporary
o No dignity before birth and after death
- Dignity is equal to all
o ‘One’s dignity (…) is a mark of one’s equality on some fundamental level with
other human beings’
Human Dignity & Health Law
- Meaning of ‘human dignity’ in part determined
- The undetermined part of the concept theoretically useless
o People are always claiming respect for dignity, but only there where is a court
of a code it is determined
- The determined part of the concept is theoretically useful
- Relevant human rights can be used for the construction of an interpretive framework
o Right to health, access to health care (social)
▪ Access to health care determined equal treatment.
o Equal treatment (civil)
▪ Treating people equally in health care is important. There is only a
difference in medical need, other criteria are discriminations.
o Privacy (civil)
o Health Law is about these three specific human rights.
3. Civil & Political Rights: History
- John Locke, Two Treatises of Government (1690)
- Montesquieu, De l’Esprit des Lois (1748)
o 1776: Virginia Declaration of Rights, American Declaration of Independence
(4th July)
o 1789: Déclaration des Droits de l’Homme et du Citoyen
- Developments up to WWII:
o Abolition slave trade (1815),
o League of Nations (1919),
o ILO (1919),
o Rights for women, etc
- 1945: Establishment United Nations
- 1948: Universal Declaration of Human Rights (UDHR)
- 1966: International Covenant on Civil and Political Rights
- 1966: International Covenant on Economic Social and Cultural Rights
- (UDHR+ICCPR+ICESCR= Int’l Bill of Rights)
- 1948: Convention on the Prevention and Punishment of the Crime of Genocide
- 1951: Convention Relating to the Status of Refugees
- 1966: International Convention on the Elimination of All Forms of Racial
Discrimination (CERD)
Inhoudsopgave
Lecture 1: Understanding Human Rights Frameworks ...................................................................................... 2
Lecture 2: The Right to Health. Article 12 ICESCR ............................................................................................. 7
Lecture 2a: International case studies & the Right to Health: Justiciability ..................................................... 11
Lecture 2b: Health Care Rationing .................................................................................................................. 14
Seminar 1: (week 18)...................................................................................................................................... 17
Lecture 3: Biomedicine and Human Rights ..................................................................................................... 20
Seminar 2 (week 19) ....................................................................................................................................... 27
Lecture 4: Health care behind bars ................................................................................................................. 29
Lecture 4a: Elderly and health care access...................................................................................................... 37
Seminar 3: Prison Health ................................................................................................................................ 38
Lecture 5: Women’s Reproductive rights: A Human Rights Issue .................................................................... 41
Seminar 4: case studies .................................................................................................................................. 49
Lecture 6: Children’s Right to Health .............................................................................................................. 52
Lecture 7: Disabled Persons & the right to health .......................................................................................... 65
Seminar 5: Disabled persons .......................................................................................................................... 71
Lecture 8: European Social Charter................................................................................................................. 74
, Lecture 1: Understanding Human Rights Frameworks
1. What is health law?
Law is the subject of jurisprudential (study of law). Lawyers must look at the positive law.
A rule tells you what to do in certain circumstances or what you should have don (Ronald
Dworkin). Law consists of rules, and rules tell people what to do or not to do.
The difference between rules of laws and ‘normal’ rules is that there is enforcement possible
by nations of the states (criminal law). Rules are legal laws, but there are some difficulties
for enforcement. Law is more than just rules, there are also principles. The nature of a
principle is also a legal principle and not a moral principle or standards. A legal principle does
not have a nature of a rule. A rule specifies the circumstances where the rule applies, and
this is not the case by talking about principles. Legal principles develop. A principle is a non-
specified rule. A legal principle is an assumption. The principles are basically fundamental
rights.
Health Law = legal principles and rules regarding:
Health law =
1. Law regarding health care provision (arts-patient relatie)
2. Law regarding health care purchasing (zorg inkoop)
3. Law regarding health care insurance (zorgverzekeringen)
Health law is based on contract law, but there is not such part of freedom of contracts in
Health Law in the Netherlands. Patients can’t be refused by insurance and the insurance has
the purchase health care on behave of their patients.
Principles of health law
- Does health law have principles of its own?
o Yes, strong notion
▪ Henk Leenen
o No, weak notion
▪ Bernard Sluijters
- Leenen
o Principles of individual self-determination and equal access to health care
o Leenen was a moralist.
- Sluijters
o Principles of civil law, penal law, etc.
- Does health law have principles of its own?
o Yes, strong notion of health law
▪ Martin Buijsen
o Health law = the realization of (a unique combination of) human rights
,Principles of Health Law
It is a human right to have health care, equal
treatment, and privacy. There is a specific kind of
informational privacy. It’s about the realization
about these three human rights in health law.
Health law has their own principles.
Health law & Health ethics
- Health Law: In the end directed towards something intrinsically good
- Health Ethics: In the end directed towards something intrinsically good
2. The Concept of Human Dignity
- More references by Dutch health lawyers to human dignity
- Result of policy statement preceding ratification of Biomedicine Convention
- Internationally accepted human rights as guiding principles of medical ethical policy
Human Dignity in Positive Law
All law is the expression of Human Dignity. Providing a definition of human dignity is not
possible. If you violated a human right, you violated someone’s human dignity. All human
rights are all equally important.
- Universal Declaration of Human Rights (1948)
- International Covenant on Civil and Political Rights (1966)
- International Covenant on Economic, social and Cultural Rights (1966)
- Convention on Human Rights and Biomedicine (1997)
- Charter of Fundamental Rights of the European Union (2010)
- German Constitution, Constitution of South-Africa
- European Convention for Protection of Human Rights and Fundamental freedoms
(1950)?
A Concept with Content
- ECtHR app. nr. 47/2008 (27-10-2009): Human dignity is ‘the very essence of the
Convention’, ‘recognized fundamental value at the core of positive human rights law’.
- Human dignity worthy of respect
- ‘Rights derive from the inherent dignity of the human person’ (preamble UN-
Covenants 1966)
- Violating human rights = violating dignity (in principle)
- Rights constitute meaning of ‘human dignity’, but not entirely
- ‘Human dignity’ is in part represented in positive law, and in part it is not
Dignity as Attribute of Individual Human Beings
Dignity is more than autonomy.
- Dignity not synonymous with autonomy
- Dignity may not be identified with autonomy
- Dignity encompasses autonomy
- Dignity is the fundamental concept
- Yet individual human beings are subjects of dignity
, Transcendentals of Dignity
- Dignity is inherent to being human (inalienable)
o ‘One possesses dignity and its subsequent rights (because one’s descent from
human beings)
o Philosophers, theologians, and lawyers: substantivists v. formalists
- Dignity is temporary
o No dignity before birth and after death
- Dignity is equal to all
o ‘One’s dignity (…) is a mark of one’s equality on some fundamental level with
other human beings’
Human Dignity & Health Law
- Meaning of ‘human dignity’ in part determined
- The undetermined part of the concept theoretically useless
o People are always claiming respect for dignity, but only there where is a court
of a code it is determined
- The determined part of the concept is theoretically useful
- Relevant human rights can be used for the construction of an interpretive framework
o Right to health, access to health care (social)
▪ Access to health care determined equal treatment.
o Equal treatment (civil)
▪ Treating people equally in health care is important. There is only a
difference in medical need, other criteria are discriminations.
o Privacy (civil)
o Health Law is about these three specific human rights.
3. Civil & Political Rights: History
- John Locke, Two Treatises of Government (1690)
- Montesquieu, De l’Esprit des Lois (1748)
o 1776: Virginia Declaration of Rights, American Declaration of Independence
(4th July)
o 1789: Déclaration des Droits de l’Homme et du Citoyen
- Developments up to WWII:
o Abolition slave trade (1815),
o League of Nations (1919),
o ILO (1919),
o Rights for women, etc
- 1945: Establishment United Nations
- 1948: Universal Declaration of Human Rights (UDHR)
- 1966: International Covenant on Civil and Political Rights
- 1966: International Covenant on Economic Social and Cultural Rights
- (UDHR+ICCPR+ICESCR= Int’l Bill of Rights)
- 1948: Convention on the Prevention and Punishment of the Crime of Genocide
- 1951: Convention Relating to the Status of Refugees
- 1966: International Convention on the Elimination of All Forms of Racial
Discrimination (CERD)
