HUMAN RIGHTS Medical humanities II

2015-2016 Prof. Marija Definis-Gojanović, MD, Ph.D.

Human rights

• "fundamental rights to which a person is inherently

entitled simply because she or he is a human being."

- universal (applicable everywhere),

- egalitarian (the same for everyone)

- natural / legal

- in national / international law

Human rights

• Are guaranteed by international standards;

• Are legally protected;

• Focus on the dignity of the human being;

• Protect individuals and groups;

• Oblige states and state actors;

• Cannot be waived or taken away;

• Are interdependent and interrelated;

• Are universal.

Human rights

• Human rights movement developed in the aftermath

of the Second World War and the atrocities of The

Holocaust, culminating in the adoption of the

Universal Declaration of Human Rights.

• The ancient world did not possess the concept of

universal human rights ("elaborate systems of duties,

conceptions of justice, political legitimacy, and

human flourishing that sought to realize human

dignity, or well-being entirely independent of human

rights“).

History of concept

• In 539 B.C., the armies of Cyrus the Great,

the first king of ancient Persia:

- conquered the city of Babylon

- he freed the slaves, declared that all people had the

right to choose their own religion, and established

racial equality,

- recorded these on a baked-clay cylinder in the

Akkadian language - has now been recognized as

the world’s first charter of human rights,

- UN!

History of concept

• The modern concept - developed during the early

Modern period.

• Can be traced to Renaissance Europe and the

Protestant Reformation (alongside the

disappearance of the feudal authoritarianism and

religious conservativism).

• The most commonly held view:

- concept of human rights evolved in the West, and

- while earlier cultures had important ethical concepts,

they generally lacked a concept of human rights (no

word for "right" in any language before 1400).

MEDIEVAL PERIOD

Magna Carta (Magna Carta Libertatum or The Great

Charter of the Liberties of England)

• not charter of human rights,

foundation constituted a form of

limited political and legal agreement

to address specific political

circumstances

• originally issued in Latin in

1215, translated into French in

1219, and reissued later in the 13th century in modified

versions

Magna Carta (Magna Carta Libertatum or The Great Charter of

the Liberties of England)

• required King John of England to proclaim certain

liberties (e.g., the right of the church to be free from

governmental interference, the rights of all free

citizens to own and inherit property and to be

protected from excessive taxes)

• led to the rule of constitutional law in the English

speaking world

• was important in the colonization of American

colonies and used as England's legal system

Statute of Kalisz

• One of the oldest records

of human rights (1264)

• Gave privileges to the Jewish

minority in the Kingdom of Poland

such as protection from

discrimination and hate speech.

MODERN PERIOD

• The basis of most modern legal interpretations of

human rights: recent European history

The Twelve Articles (1525)

• were part of the peasants' demands

of the Swabian League during

the German Peasants War

• considered to be the first

record of human rights in Europe

Petition of Right, 1628

• English Parliament sent to Charles I

a statement of civil liberties

• was based upon earlier statutes and charters and

asserted four principles:

(1) No taxes may be levied without consent of

Parliament,

(2) No subject may be imprisoned without cause shown

(reaffirmation of the right of habeas corpus),

(3) No soldiers may be quartered upon the citizenry,

and

(4) Martial law may not be used in time of peace.

History of concept

• Two major revolutions occurred during the 18th

century:

- in the United States (1776), leading to the adoption of

the United States Declaration of Independence and

- in France (1789), leading to the adoption of the

French Declaration of the Rights of Man and of the

Citizen,

both of which established certain legal rights.

United States

Declaration of Independence, 1776

• Its primary author, Thomas Jefferson, wrote the

Declaration as a formal explanation of why Congress

had voted to declare independence from Great

Britain, and as a statement announcing that the

thirteen American Colonies were no longer a part of

the British Empire.

• Philosophically, the Declaration stressed two themes:

individual rights and the right of revolution.

The Constitution of the United States of America

(1787) and Bill of Rights (1791)

• Constitution of the United States of America is the

fundamental law of the US federal system of

government and the landmark document of the

Western world. It is the oldest written national

constitution in use.

• The first ten amendments to the Constitution—the Bill

of Rights—limited the powers of the federal

government and protected the rights of all citizens,

residents and visitors in American territory.

Declaration of the Rights of Man and of the

Citizen (1789)

• 6 weeks after the storming of the Bastille, and 3

weeks after the abolition of feudalism, the

Declaration was adopted by the National Constituent

Assembly as the first step toward writing a

constitution for the Republic of France.

• proclaims that all citizens are to be guaranteed the

rights of “liberty, property, security, and resistance to

oppression.”

“...the exercise of the natural rights of each man has only those

borders which assure other members of the society the

enjoyment of these same rights.”

The First Geneva Convention (1864)

• provided for care to wounded soldiers

• sixteen European countries and several American

states attended a conference in Geneva, at the

invitation of the Swiss Federal Council

• main principles provided for the obligation to extend

care without discrimination to wounded and sick

military personnel and respect for and marking of

medical personnel transports and equipment with the

distinctive sign of the red cross

on a white background

History of concept

• In the 19th century, human rights became a central

concern over the issue of slavery

• The abolition of slavery was achieved in the British

Empire by the Slave Trade Act 1807 and the Slavery

Abolition Act 1833

History of concept

• In the United States, all the northern states had

abolished the institution of slavery between 1777 and

1804

• one of the reasons for the southern states‘ secession

and the American Civil War. During the period

immediately following the war, several amendments

to the United States Constitution were made: 13th -

banning slavery, 14th - assuring full citizenship and

civil rights to all people born in the United States, and

15th – guaranteeing African Americans the right to

vote.

History of concept

• 20th century in Europe and North America:

- labour unions brought about laws granting workers

the right to strike, establishing minimum work

conditions and forbidding or regulating child labor

- women's rights movement succeeded in gaining for

many women the right to vote

History of concept

- national liberation movements in many countries

succeeded in driving out colonial powers

- one of the most influential was

Mahatma Gandhi’s movement

to free his native India from

British rule

- Movements by long-oppressed racial and religious

minorities succeeded in many parts of the world,

among them the African American Civil Rights

Movement.

History of concept

• The establishment of the International Committee

of the Red Cross, the 1864 Lieber Code

and the first of the Geneva Conventions

in 1864 laid the foundations of

International humanitarian law,

to be further developed following

the two World wars.

MODERN HUMAN RIGHTS

INSTRUMENTS

• The League of Nations, 1919

- negotiations over the Treaty of Versailles following the

end of World War I (goals: disarmament, preventing

war through collective security, settling disputes

between countries through negotiation and

diplomacy, and improving global welfare...)

• At the 1945 Yalta Conference, the Allied Powers

agreed to create a new body to supplant the

League's role; this was to be the United Nations..

Classification of human rights

1. Civil and political rights /1st generation/

- Universal Declaration of Human rights (UDHR, art. 3-21)

- International Covenant on Civil and Political Rights (ICCPR)

/Western cultures/

2. Economic, social and cultural rights /2nd generation/

- Universal Declaration of Human rights (UDHR, art. 22-28)

- International Covenant on Economic, Social and Cultural rights

(ICESCR)

/ex Soviet block and Asian countries/

3. Right to piece, clean environment... /3rd generation/

The UDHR included both economic, social and

cultural rights and civil and political rights

because it was based on the principle that the

different rights could only successfully exist in

combination.

In the aftermath of the atrocities of World War II,

there was increased concern for the social and

legal protection of human rights as fundamental

freedoms.

United Nations Charter provided a basis for a

comprehensive system of international law and

practice for the protection of human rights. Since

then, international human rights law has been

characterized by a linked system of conventions,

treaties, organizations, and political bodies, rather

than any single entity or set of laws.

International protection

United Nations Charter

Article 1(3) states

that one of the purposes of the UN is:

"to achieve international cooperation in solving

international problems of an economic, social,

cultural, or humanitarian character, and in

promoting and encouraging respect for human

rights and for fundamental freedoms for all without

distinction as to race, sex, language, or religion".

The rights espoused in the UN charter - codified:

International Bill of Human Rights

Universal

Declaration of

Human Rights

International

Covenant on

Civil and Political

Rights

International

Covenant on

Social,

Economic, and

Cultural Rights

International protection

Universal Declaration of Human Rights

- was adopted by the United Nations General

Assembly in 1948 (10 Dec)

- was a non-binding resolution; now considered to

have acquired the force of international customary

law which may be invoked in appropriate

circumstances by national and other judiciaries

- art. 1-2: principles of dignity, liberty, equality and brotherhood

- art. 3-11: rights of the individual (e.g., the right to life and the

prohibition of slavery)

- art. 12-17: rights of the individual in civil and political society

- art. 18-21: spiritual, public and political freedoms (e.g., freedom

of religion and freedom of association)

- art. 22-27: social, economic and cultural rights

Five categories of Human Rights: Civil Political

Economic

Social

Cultural Civil and political rights are a class of rights

that protect individuals' freedom from

infringement by governments, social

organizations, and private individuals, and which

ensure one's ability to participate in the civil and

political life of the society and state without

discrimination or repression.

Civil rights include the ensuring of peoples'

physical and mental integrity, life and safety;

protection from discrimination and individual

rights such as privacy, the freedoms of thought

and conscience, speech and expression, religion,

the press, assembly and movement. Political rights include natural justice (procedural

fairness) in law, such as the rights of the accused,

including the right to a fair trial; due process; the

right to seek redress or a legal remedy; and rights

of participation in civil society and politics such as

freedom of association, the right to assemble, the

right to petition, the right of self-defense, and the

right to vote.

Economic, social and cultural rights are socio-economic human rights, such as: right to education, right to housing, right to adequate standard of living, right to health and the right to science and culture.

Member states have a legal obligation to respect,

protect and fulfil economic, social and cultural

rights and are expected to take "progressive

action" towards their fulfilment.

International human rights instruments - Treaties (pieces of legislation)

International Covenant on Civil and Political Rights

International Covenant on Economic, Social and Cultural Rights

International Convention on the Elimination of All Forms of

Racial Discrimination

Convention on the Elimination of All Forms of Discrimination

against Women

Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment

Convention on the Rights of the Child

International Convention on the Protection of the Rights of All

Migrant Workers and Members of Their Families

International Convention for the Protection of All Persons from

Enforced Disappearance

Convention on the Rights of Persons with Disabilities

In addition:

Customary international law

may protect some human rights, such as the

prohibition of torture, genocide and slavery and the

principle of non-discrimination

In addition:

International humanitarian law

- regulates the conduct of armed conflict (jus in bello)

- branch of international law which seeks to limit the

effects of armed conflict by protecting persons who

are not or no longer participating in hostilities, and by

restricting and regulating the means and methods of

warfare available to combatants

- includes the Geneva Conventions and the Hague

Conventions, as well as subsequent treaties, case

law, and customary international law.

The Geneva Conventions

- came between 1864 and 1949 as a result of efforts

by Henry Dunant, the founder of the International

Committee of the Red Cross

- 1859 - aftermath of the Battle of Solferino

- he was horrified by the sight of thousands of wounded

soldiers lying helpless and abandoned with no one to care for

them

- experience led him to suggest the setting up of voluntary

relief societies who could be trained, during peacetime, to

care for the wounded in time of war

- called for an international agreement to be drawn up to

protect the wounded, and those who looked after them, from

further attack.

The Geneva Convention for the Amelioration of the

Condition of the Wounded and Sick in Armed Forces in

the Field was adopted in 1864, revised and replaced by

the 1906 version, the 1929 version, and later the First

Geneva Convention of 1949.

The Geneva Convention for the Amelioration of the

Condition of Wounded, Sick and Shipwrecked Members

of Armed Forces at Sea was adopted in 1906, revised and

replaced by the Second Geneva Convention of 1949.

The Geneva Convention relative to Treatment of Prisoners

of War was adopted in 1929, revised and replaced by the

Third Geneva Convention of 1949.

The Fourth Geneva Convention relative to the Protection

of Civilian Persons in Time of War was adopted in 1949.

Three additional amendment protocols to the Geneva

Convention:

Protocol I (1977): relating to the Protection of Victims of

International Armed Conflicts. As of 12 January 2007 it

had been ratified by 167 countries.

Protocol II (1977): relating to the Protection of Victims of

Non-International Armed Conflicts. As of 12 January 2007

it had been ratified by 163 countries.

Protocol III (2005): relating to the Adoption of an

Additional Distinctive Emblem. As of June 2007 it had

been ratified by seventeen countries and signed but not

yet ratified by an additional 68.

The Geneva Conventions establish the standards of

international law for the humanitarian treatment of the

victims of war.

The articles of the Fourth Geneva Convention (1949)

extensively defined the basic, wartime rights of prisoners

(civil and military); established protections for the

wounded; and established protections for the civilians in

and around a war zone.

In 2005, a third brief Protocol was added establishing an

additional protective sign for medical services, the Red

Crystal, as an alternative to the ubiquitous Red Cross and

Red Crescent emblems, for those countries that find them

objectionable.

United Nations system

Under the mandate of the UN charter,

UN, as an intergovernmental body, seeks

to apply international jurisdiction for universal

human-rights legislation.

Within the UN machinery, human-rights issues are

primarily the concern of the United Nations Security

Council and the United Nations Human Rights Council,

and there are numerous committees within the UN with

responsibilities for safeguarding different human-rights

treaties. The most senior body of the UN in the sphere of

human rights is the Office of the High Commissioner for

Human Rights.

United Nations system

United Nations Security Council: for

maintaining international peace and

security

United Nations Human Rights

Council: for investigation alleged

human rights abuses

United Nations General Assemby: for

initiating studies and makig

recommendations on human right

issues

United Nations system - treaty bodies

• International human rights treaties are

binding on governments that ratify them;

• Declarations are non-binding, although

many norms and standards enshrined

therein reflect principles which are binding

in customary international law;

• United Nations conferences generate nonbinding

consensual policy documents, such

as declarations and programmes of action.

European Convention on Human Rights, 1950

Convention consists of three parts.

The main rights and freedoms are contained in Section I,

which consists of Articles 2 to 18.

Section II (Articles 19 to 51) sets up the Court and its rules

of operation.

Section III contains various concluding provisions.

Many of the Articles in Section I are structured in two

paragraphs: the first sets out a basic right or freedom

(such as Article 2(1) – the right to life) but the second

contains various exclusions, exceptions or limitations on

the basic right (such as Article 2(2) – which excepts

certain uses of force leading to death).

Medical profession and human rights

“It is my aspiration that health will finally be seen

not as a blessing to be wished for, but as a

human right to be fought for.” United Nations Secretary General, Kofi Annan

Medical profession and human rights

The enjoyment of the highest attainable standard of

health as a fundamental right of every human being

was enshrined in WHO’s Constitution over fifty years ago. WHO is striving to make this right a reality for

everyone, paying particular attention to the poorest

and most vulnerable.

What is the link between health and human

rights? • Violations or lack of attention to human rights can

have serious health consequences;

• Health policies and programmes can promote or

violate human rights in the ways they are designed

or implemented;

• Vulnerability and the impact of ill health can be

reduced by taking steps to respect, protect and fulfil

human rights.

What is meant by “the right to health”? “The right to health does not mean the right to

be healthy, nor does it mean that poor

governments must put in place expensive health

services for which they have no resources. But

it does require governments and public

authorities to put in place policies and action

plans which will lead to available and accessible

health care for all in the shortest possible time.” United Nations High Commissioner for Human

Rights, Mary Robinson

The right to the highest attainable standard of health

(referred to as “the right to health”) was

first reflected in the WHO Constitution (1946) and

reiterated in the 1978 Declaration of Alma

Ata (on primary health) and in the World Health

Declaration (health for all – policy for 21st century)

adopted by the World Health Assembly in 1998.

The right to the highest attainable standard: a set of

social arrangements – norms, institutions, laws, an

enabling environment – that can best secure the enjoyment of this right. In May 2000, the Committee on Economic, Social and Cultural Rights adopted a General Comment

on the right to health - recognized that the right to

health is closely related to and dependent upon the

realization of other human rights, including the right to food, housing, work, education, ....

The General Comment sets out four criteria by

which to evaluate the right to health: (a)Availability. (b) Accessibility Accessibility has four overlapping

dimensions:

• Non-discrimination;

• Physical accessibility;

• Economic accessibility (affordability);

• Information accessibility. (c) Acceptability. (d) Quality.

What is meant by a rights-based approach to health?

Justice as a right, not as charity

A rights-based approach to development describes

situations not simply in terms of human needs, or of

developmental requirements, but in terms of

society’s obligations to respond to the inalienable

rights of individuals; empowers people to demand

justice as a right, not as charity; and gives

communities a moral basis from which to claim

international assistance when needed.

A rights-based approach to health refers to the processes of:

• Using human rights as a framework for health

development.

• Assessing and addressing the human rights

implications of any health policy, programme or

legislation.

• Making human rights an integral dimension of the

design, implementation, monitoring and evaluation

of health-related policies and programmes in all

spheres, including political, economic and social.

Human Rights & Medical Personnel

The perpetrators of human rights violations have

also the most unlikely collaborators in doctors, who

are believed to have the kindest countenance to human sufferings. The doctors are involved: -in administration of drugs to induce a state of stupor in suspected criminals to splutter the hidden truth; -they plant devices on human bodies to study brain, heart and intestines; -monitor human response to questioning in police interrogation; -examine breath, blood, urine, semen, DNA to detect

or determine commission of crimes;

Dual Loyalty

When the health care professional has both duties to

the person being treated or evaluated and

obligations to the interests of a third party such as an

employer, an insurer, or a military commander.

Resolving Loyalty Conflicts

Professional Ethics Codes prescribe that the health

care professional first try to resolve the conflict.

For example, a doctor explains the problem to his or

her superior and works out an alternative that does

not compromise ethical practice.