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Abstract
In international law there are many references to the protection of public health contrasting with other interests, including the interests of trade, commerce, intellectual property protection, transportation and warfare. Potentially, in such contexts, the ‘right to health’ as an economic and social right can be used as an additional collective claim to advance the health of the public, thus counterbalancing such interests as international and domestic trade and the conduct of warfare. While this approach has potential, it should be born in mind that public health measures potentially infringe on the civil and political rights of individuals, including their rights to privacy and freedom of movement. We are thus dealing with a complex relationship between public health, human rights and international law that is still ill-understood. An integrated approach to human rights, taking into account both civil and political and economic, social and cultural rights, seems the most balanced response to public health concerns.
Acknowledgements
I would like to thank Laura Niada and Andraz Zidar for their helpful comments. In addition I am grateful to my colleagues from the International Law Department of the University of Groningen, in particular André de Hoogh and Antenor Hallo de Wolf, for their useful feedback. I also thank Caroline Gallagher for language suggestions to an earlier version of this article.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Brigit Toebes is an associate professor and Rosalind Franklin Fellow at the Department of International Law of the Faculty of Law of University of Groningen in the Netherlands. She has published widely in the field of health and human rights, including books with Intersentia (e.g. Health and Human Rights in Europe, 2012). She is the Co-Chair of the Global Health Law Committee of the International Law Association and she has established a programme called Global Health Law Groningen which facilitates research on the interface between international law, human rights and the protection of health.
Notes
1 Inter alia, Brigit Toebes, Mette Hartlev, Aart Hendriks, and Janne Rothmar Herrmann, eds, Health and Human Rights in Europe (Cambridge: Intersentia, 2012), 101–2.
2 See, for example, Thérèse Murphey, Health and Human Rights (Oxford: Hart, 2013), in particular Chapter 2: ‘Is Human Rights Prepared?’, 58.
3 See, also, the interesting observations by Murphey, who speaks about ‘human rights preparedness'. Ibid., inter alia at 72.
4 JALI Health, Joint Action and Learning Initiative on National and Global Responsibilities for Health, http://www.jalihealth.org/ (accessed 18 August 2014). See also JALI/FCGH Research Questions, January 2014 update, http://www.jalihealth.org/research/docs/JALI%20Research%20Questions.pdf (accessed August 2014).
5 Lawrence O. Gostin, Global Health Law (Cambridge, MA: Harvard University Press, 2014), 20–31.
6 George Rosen, A History of Public Health (Baltimore, MD: John Hopkins University Press, 1993), 2–3, originally published in 1958 by MD Publications Rosen.
7 Rosen, A History of Public Health (1993), 170. See also Brigit Toebes, The Right to Health as a Human Right in International Law (Antwerpen: Intersentia/Hart 1999), 8–11.
8 H.E. Sigerist, Medicine and Human Welfare (New Haven, CT: Yale University Press/Oxford University Press, 1941), 90.
9 Rosen, A History of Public Health (1993), 176 and 196–8.
10 H.D.C. Roscam Abbing, International Organizations in Europe and the Right to Health Care (Deventer: Kluwer, 1979), 91. See also Toebes, The Right to Health as a Human Right in International Law, 12.
11 Toebes, The Right to Health as a Human Right in International Law, 11–13.
12 WHO, Public Health, http://www.who.int/trade/glossary/story076/en/ (accessed May 2014).
13 Ibid.
14 Ibid.
15 WHO, ‘The World Health Report 2007: A Safer Future-Global Public Health Security in the 21st Century’, http://www.who.int/whr/2007/en/ (accessed September 2014). Sophie Harman, Global Health Governance (Routledge Global Institutions Series, No. 60, 2012), 19–23. See also Global Health Security Initiative, http://www.ghsi.ca/english/index.asp (accessed August 2014). See also Oskar N.T. Thoms and James Ron, ‘Public Health, Conflict and Human Rights: Toward a Collaborative Research Agenda', Conflict and Health 1, no. 11 (2007).
16 WHO, Social Determinants of Health, http://www.who.int/social_determinants/en/ (accessed August 2014).
17 Gostin, Global Health Law, 412.
18 WHO Framework Convention on Tobacco Control, Preamble. It was adopted by the World Health Assembly on 21 May 2003 and entered into force on 27 February 2005, http://www.who.int/fctc/en/ (accessed September 2014).
19 While the treaties of the International Labour Organization also have relevance in this field, they have not been taken into consideration in this section.
20 Article 23(3), International Health Regulations (see also Article 31(2)). See also Articles 42 and 45(1) of the IHR.
21 See also the contribution by Zidar elsewhere in this special issue.
22 See also World Health Organization and World Trade Organization, WTO Agreements & Public Health, A joint study by the WHO and the WTO Secretariat, 2002, http://www.wto.org/english/res_e/booksp_e/who_wto_e.pdf (accessed September 2014); and Wemos/European Health Alliance/Physicians for Social Responsibility, World Trade Organization: Implications for Health Policy, April 2000.
23 General Agreement on Tariffs and Trade 1994 (GATT), http://www.wto.org/english/docs_e/legal_e/06-gatt_e.htm (accessed September 2014).
24 Article XX, sub-paragraph (b). World Health Organization and World Trade Organization, WTO Agreements & Public Health, 11.
25 Simon Lester, Bryan Mercurio, and Arwel Dabies, World Trade Law, 2nd ed. (Oxford: Hart, 2012), 380.
26 Ibid., 381–4.
27 Ibid., 364.
28 WTO, Agreement on Trade-Related Aspects of Intellectual Property Rights, adopted in 1994 at the Uruguay Round of GATT.
29 See, for example, Jennifer Sellin, Access to Medicines: The Interface Between Patents and Human Rights: Does One Size Fit All? (Antwerp: Intersentia, 2014).
30 See, for example, Sur International Journal on Human Rights 5, no. 8 (2008), http://www.surjournal.org/eng/conteudos/getArtigo8.php?artigo=8,artigo_chaves.htm (accessed September 2014). See also Report of the Special Rapporteur, Paul Hunt, ‘Mission to the World Trade Organization’, CESCR, UN Doc. E/CN.4/2004/49/Add.1, 1 March 2004. E/CN.4/2004/49/Add.1, http://www.who.int/medicines/areas/human_rights/E_CN_4_2004_49_Add_1.pdf (accessed September 2014).
31 DOHA Declaration, para. 4, http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm (accessed September 2014).
32 Parliament of Australia, Flagpost, Australia's WTO Plain Cigarette Packing Case: An Update, 8 July 2014, http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2014/July/WTO_plain_cigarette_packaging_case (accessed August 2014).
33 WTO, Dispute Settlement: Dispute DS 434, Australia – Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packing, http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds434_e.htm / (accessed August 2014).
34 Ibid.
35 Youth Smoking Prevention Foundation, information in English, http://www.stichtingrookpreventiejeugd.nl/2014/09/dutch-government-taken-to-court-for-illegal-contacts-with-tobacco-industry/. For the summons see http://www.stichtingrookpreventiejeugd.nl/wp-content/uploads/2014/09/08-09-2014-Dagvaarding-Stichting-Rookpreventie-Jeugd-v.-Staat-der-Nederlanden.pdf (accessed September 2014).
36 For an initiative see World Obesity Forum, Recommendations towards a Global Convention to Protect and Promote Healthy Diets, May 2014, http://www.consumersinternational.org/news-and-media/resource-zone/recommendations-towards-a-global-convention-to-protect-and-promote-healthy-diets/ (accessed September 2014).
37 Yasmin von Schirnding, William Onzivu, and Andronico O. Adede, ‘International Environmental Law and Global Public Health', Bulletin of the World Health Organization 80, no. 12 (2002): 970–4.
38 Ibid., 970.
39 Article 1, Stockholm Convention on Persistent Organic Pollutants (2002).
40 Von Schirnding, ‘International Environmental Law and Global Public Health’, 970.
41 Brigit Toebes, ‘Healthcare on the Battlefield: In Search of a Legal and Ethical Framework', Journal of International Humanitarian Legal Studies 4 (2013): 197–213.
42 Article 55, Additional Protocol I to the Geneva Conventions, adopted 8 June 1977.
43 Biological Weapons Convention, opened for signature on 10 April 1972; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, adopted 30 November 1992; Biological Weapons Convention, opened for signature on 10 April 1972.
44 Convention on Civil Aviation (Chicago Convention), adopted 7 December 1944.
45 Benjamin Mason Meier and Larisa M. Mori, ‘The Highest Attainable Standard: Advancing a Collective Human Right to Public Health’, Columbia Human Rights Law Review 37 (2005): 101–21, at 102, http://www.unc.edu/%7Emeierb/Meier%20&%20Mori,%20The%20Highest%20Attainable%20Standard%20%282005%29.pdf (accessed May 2014).
46 Marlies Galenkamp, ‘Collective Rights', in SIM Special No. 16 (Utrecht: Netherlands Institute of Human Rights, 1995), 53–102, at 70–1.
47 For an overview of all the decisions see the website of the European Committee of Social Rights: http://www.coe.int/t/dghl/monitoring/socialcharter/Complaints/Complaints_en.asp (accessed March 2014).
48 ECSR, ECCR v. Bulgaria (complaint no. 46/2007), para. 49. For an overview of all the decisions see the website of the European Committee of Social Rights: http://www.coe.int/t/dghl/monitoring/socialcharter/Complaints/Complaints_en.asp (accessed March 2014).
49 Mette Hartlev, ‘Patients' Rights', in Toebes et al., Health and Human Rights in Europe, 111–44, at 125.
50 See also Murphey, Health and Human Rights, 58–84.
51 RULAC, Derogations from Human Rights Treaties in Situations of Emergency, http://www.geneva-academy.ch/RULAC/derogation_from_human_rights_treaties_in_situations_of_emergency.php (accessed September 2014). Derogation clauses are provided for in Article 4 of the ICCPR, Article 15 of the ECHR, and Article 27 of the American Convention of Human Rights (ACHR).
52 For an elaborate study on this matter see Anna-Lena Svensson McCarthy, The International Law of Human Rights and States of Emergency (The Hague: Martinus Nijhoff Publishers, 1998).
53 Art. 15 ECHR: Art. 2 (life), Art. 3 (torture), Art. 4.1 (slavery), Art. 7 (no punishment without law); Art. 4 ICCPR: Arts 6 (life), 7 (torture), 8 (slavery, paragraphs I and 2), 11 (contractual obligation), 15 (criminal offence), 16 (recognition before the law) and 18 (freedom of thought, conscience and religion).
54 WHO, ‘Statement on the Meeting of the International Health Regulations Emergency Committee Regarding the 2014 Ebola Outbreak in West Africa', http://www.who.int/mediacentre/news/statements/2014/ebola-20140808/en/ (accessed September 2014).
55 See https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en (accessed September 2014).
56 The ICCPR can be limited in the interests of public health: 12(3) (freedom of movement), 18(3) (freedom of religion and belief), 19(2) (freedom of expression), 21 (peaceful assembly) and 22(2) (freedom of association), and the following rights can be limited in the interests of public health in the ECHR: Arts 8–11. The ICESCR contains a general limitation clause (see below).
57 UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/1985/4, http://www.refworld.org/docid/4672bc122.html (accessed September 2014).
58 See also Hartlev, ‘Patients' Rights'.
59 Van Dijk et al., Theory and Practice of the European Convention on Human Rights, 4th ed. (Antwerp: Intersentia, 2006), 339–40.
60 See also Alastair Mowbray, ‘Compulsory Detention to Prevent the Spreading of Infectious Diseases', Human Rights Law Review 5, no. 2 (year): 387–91.
61 ECtHR 25 January 2005, Enhorn v. Sweden, no. 56529/00, para. 41.
62 Ibid., para. 55; Hartlev, ‘Patients' Rights', 126.
63 Ibid., para 55; Hartlev, ‘Patients' Rights', 126.
64 European Convention on Human Rights and Biomedicine (Oviedo Convention), adopted in Oviedo in 1997.
65 Articles 11–14, 16–17 and 19–21.
66 Michael Igoumenidis and Sophia Zyga, ‘Healthcare Research in Developing Countries: Ethical Issues', Health Science Journal 5, no. 4 (2011): 243–50.
67 Article 3, Additional Protocol to the Convention on Human Rights and Biomedicine, concerning Biomedical Research.
68 For an elaborate discussion see Amrei Müller, The Relationship between Economic, Social and Cultural Rights and International Humanitarian Law (Leiden: Martinus Nijhoff Publishers: 2013), 124–8.
69 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment 14 on the Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4, 11 August 2000, para. 28.
70 Centres for Disease Control and Prevention, ‘2014 Outbreak in West Africa', http://www.cdc.gov/vhf/ebola/outbreaks/guinea/ (accessed September 2014).
71 As emphasised in the Vienna Declaration and Programme of Action, as adopted by the World Conference on Human Rights in Vienna on 25 June 1993, http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx (accessed January 2015).
72 Human Rights Watch, ‘West Africa: Respect Rights in Ebola Response', 15 September 2014, http://www.hrw.org/news/2014/09/15/west-africa-respect-rights-ebola-response (accessed September 2014).
73 Ibid.