Hostname: page-component-cd9895bd7-gbm5v Total loading time: 0 Render date: 2024-12-25T05:41:01.818Z Has data issue: false hasContentIssue false
  • English
  • Français

The Proliferation of Human Rights in Global Health Governance

Published online by Cambridge University Press:  01 January 2021

Lance Gable
Get access Rights & Permissions [Opens in a new window]

Extract

As our world becomes increasingly interconnected, threats to global public health continue to proliferate. New and novel risks to health have emerged consistently over the past 30 years. Moreover, our shrinking world now allows health threats to spread more quickly than ever before. Given these realities, efforts to protect and improve global health must be expansive, flexible, and able to take into account the variety of circumstances that may imperil good health. These efforts also must consider the multiple levels and varying contexts in which laws, policies, and other factors govern global health and affect health outcomes.

Type
Symposium
Information
Journal of Law, Medicine & Ethics , Volume 35 , Issue 4 , Winter 2007 , pp. 534 - 544
Copyright
Copyright © American Society of Law, Medicine and Ethics 2007

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Committee on International Science, Engineering, and Technology, Infectious Disease a Global Threat: Report of the National Science and Technology Council, Washington, D.C., 1995.Google Scholar
Fidler, D. P., International Law and Infectious Diseases (New York: Oxford University Press, 1999): at 5.Google Scholar
Burris, S., “Governance, Microgovernance and Health,” Temple Law Review 77, no. 2 (2004): 335–61, at 336.Google Scholar
Gostin, L. O. Gable, L., “The Human Rights of Persons with Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health,” Maryland Law Review 63, no. 1 (2004): 20–121.Google Scholar
Mann, J. M. et al. , “Health and Human Rights,” Journal of Health and Human Rights 1, no. 1 (1994): 6–23, at 19; Gostin, L. O. Lazzarini, Z., Human Rights and Public Health in the AIDS Pandemic (New York: Oxford University Press, 1997): At 1; Gostin, L. O., The AIDS Pandemic: Injustice, Complacency, Unfulfilled Expectations (Chapel Hill: University of North Carolina Press, 2004): at 67.Google ScholarPubMed
Mann, J. M., “Medicine and Public Health, Ethics and Human Rights,” Hastings Center Report 27, no. 1 (1997): 6–13, at 9; Gruskin, S., “Is There a Government in the Cockpit: A Passenger's Perspective, or Global Public Health: The Role of Human Rights,” Temple Law Review 77, no. 2 (2004): 313–33, at 314.CrossRefGoogle Scholar
See Mann, , supra note 5.Google Scholar
Fidler, D. P., “A Globalized Theory of Public Health,” Journal of Law, Medicine & Ethics 30, no. 2 (2002): 150–61.CrossRefGoogle Scholar
Universal Declaration of Human Rights, General Assembly Resolution 217A (III), U.N. Doc. A/810, Preamble (1948), adopted December 10, 1948 [hereinafter cited as UDHR].Google Scholar
International Covenant on Civil and Political Rights, General Assembly Resolution 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976 [hereinafter cited as ICCPR].Google Scholar
International Covenant on Economic, Social and Cultural Rights, General Assembly Resolution 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302, entered into force March 23, 1976 [hereinafter cited as ICESCR].Google Scholar
Id., at art. 3–28.Google Scholar
Hannum, H., “The Status and Future of the Customary International Law of Human Rights: The Status of the Universal Declaration of Human Rights in National and International Law,” Georgia Journal of International and Comparative Law 25, no. 2 (1995): 287–398.Google Scholar
See ICCPR, supra note 10.Google Scholar
See ICESCR, supra note 11.Google Scholar
Id., at art. 12.Google Scholar
International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, entered into force January 4, 1969 [hereinafter cited as CERD].Google Scholar
Convention on the Elimination of All Forms of Discrimination Against Women, General Assembly Resolution 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981 [hereinafter cited as CEDAW].Google Scholar
Convention on the Rights of the Child, General Assembly Resolution 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990 [hereinafter cited as CRC].Google Scholar
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, General Assembly Resolution 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987.Google Scholar
Convention on the Rights of Persons with Disabilities, General Assembly Resolution A/61/611 (2006) [hereinafter cited as CRPD].Google Scholar
Declaration on the Rights of Mentally Retarded Persons, General Assembly Resolution 2856 (XXVI), 26 U.N. GAOR Supp. (No. 29) at 93, U.N. Doc. A/8429 (1971).Google Scholar
Declaration on the Rights of Disabled Persons, General Assembly Resolution 3447 (XXX), 30 U.N. GAOR Supp. (No. 34) at 88, U.N. Doc. A/10034, (1975).Google Scholar
General Comment 14, Committee on Economic, Social, and Cultural Rights, 22nd Session, April 25-May 12, 2000.Google Scholar
See Lundquist, B., Monitoring the Implementation of the Standard Rules on the Equalization of Opportunities for Person with Disabilities, Annex – Final Report of the Special Rapporteur of the Commission for Social Development on Monitoring and Implementation of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities on His Second Mission, 1997–2000, U.N. Doc. E/CN.5/2000/3 (2000), paras. 111–16, 152. See also, Report of the Special Rapporteur of the Commission for Social Development on Monitoring and Implementation of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities on His Third Mandate, 2000–2002, U.N. Doc. E/CN.5/2002/4, paras. 29–37, 84–90.Google Scholar
Commission on Human Rights resolution, U.N. Doc. E/CN.4/RES/2002/31, adopted April 22, 2002; Economic and Social Council Resolution, U.N. Doc. E/DEC/2002/259, adopted July 25, 2002.Google Scholar
See Hunt, P., Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Commission on Human Rights, 4th Sess., U.N. Doc. A/HRC/4/28 (2007). See also, Hunt, P., Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, General Assembly, Commission on Human Rights, 61st Sess., U.N. Doc. A/61/338; Hunt, P., Report of Paul Hunt, Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Commission on Human Rights, 61st Sess., U.N. Doc. E/CN.4/2005/51.Google Scholar
Individuals can submit claims under Optional Protocols to the ICCPR and CEDAW. Optional Protocol to the International Covenant on Civil and Political Rights, General Assembly Resolution, 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302, entered into force March 23, 1976; Optional Protocol to the Convention on the Elimination of Discrimination against Women, General Assembly Resolution 54/4, annex, 54 U.N. GAOR Supp. (No. 49) at 5, U.N. Doc. A/54/49 (Vol. I) (2000), entered into force December 22, 2000.Google Scholar
See Fidler, , supra note 8.Google Scholar
European Convention for the Protection of Human Rights and Fundamental Freedoms, (ETS 5), 213 U.N.T.S. 222, entered into force September 3, 1953, as amended by Protocols Nos. 3, 5, and 8, which entered into force September 21, 1970, December 20, 1971, and January 1, 1990, respectively [hereinafter cited as ECHR]; Inter-American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser. L.V/II.82 doc.6 rev.1 at 25,1992 [hereinafter cited as IACHR].Google Scholar
See ICCPR, supra note 10, at arts. 28–45 and Optional Protocol, at arts. 1–6; CEDAW, supra note 18, at arts. 17–22 and Optional Protocol, arts. 1–14; CRC, supra note 19, at arts. 43–45; CERD, supra note 17, at arts. 8–15; CRPD, supra note 21, at arts. 34–39 and Optional Protocol, arts. 1–9.Google Scholar
Gostin, L. O. Gable, L., “The Human Rights of Persons with Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health,” Maryland Law Review 63, no. 1 (2004): 20–121.Google Scholar
Gable, L. et al. , “Mental Health and Due Process in the Americas: Protecting the Human Rights of Persons Involuntarily Admitted to and Detained in Psychiatric Institutions,” Pan American Journal of Public Health 18, no. 4/5 (2005): 366–73.CrossRefGoogle Scholar
Victor Rosario Congo v. Ecuador, Case 11.247 (Inter-American CHR 63/99, 1999).Google Scholar
U.S. Constitution, amends. 5, 6, and 7.Google Scholar
U.S. Constitution, amends. 1 and 4.Google Scholar
U.S. Constitution, amend. 14.Google Scholar
Constitution of the Federative Republic of Brazil, at arts. 6, 205–14 (1988); Constitution of the Republic of South Africa, at art. 29 (1996).Google Scholar
Constitution of the Federative Republic of Brazil, at arts. 6, 196–200 (1988); Constitution of the Republic of South Africa, at art. 27 (1996).Google Scholar
Kanter, A., “The Globalization of Disability Rights Law,” Syracuse Journal of International Law and Commerce 30, no. 2 (2003): 241–70, at 241.Google Scholar
42 USCS § 12101 (2007).Google Scholar
Bagenstos, S. R., “The Future of Disability Law,” Yale Law Journal 114, no. 1 (2004): 1–84.CrossRefGoogle Scholar
Id.Google Scholar
Hoffman, S., “Settling the Matter: Does Title I of the ADA Work?” Alabama Law Review, forthcoming, available at <http://ssrn.com/abstract=978198> (last visited September 10, 2007).Google Scholar
Degener, T. Quinn, G., “A Survey of International, Comparative and Regional Disability Law Reform,” in Breslin, M. L. Yee, S., eds., Disability Rights Law and Policy: International and National Perspectives (New York: Transnational Publishers, 2002): At 3–128; see Kanter, , supra note 40.Google Scholar
Human Rights Act, 1998, c. 42.Google Scholar
Bindman, J. et al. , “The Human Rights Act and Mental Health Legislation,” British Journal of Psychiatry 182, no. 2 (2003): 91–94.CrossRefGoogle Scholar
Minister of Health v. Treatment Action Committee, Constitutional Court of South Africa, 2002 (10) BCLR 1033 (CC) (S.Afr.); Forman, L., “The Imperative to Treat: The South African State's Constitutional Obligations to Provide Antiretroviral Medicines,” Health Law Review 12, no. 1 (2002): 9–15.Google Scholar
Alvarez, J. E., International Organizations as Law-Makers (New York: Oxford University Press, 2005): at 650.Google Scholar
Report of the Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, U.N. Doc. A/59/2005 (2005), at 37.Google Scholar
World Health Organization, 25 Questions and Answers on Human Rights, Geneva, 2002.Google Scholar
Constitution of the World Health Organization (1948), available at <http://www.who.int/entity/governance/eb/constitution/en/index.html> (last visited September 10, 2007).+(last+visited+September+10,+2007).>Google Scholar
World Health Organization, Engaging for Health: The 11th Global Programme of Work, 2006–2015: A Global Health Agenda, Geneva, 2006.Google Scholar
World Health Organization, WHO Resource Book on Mental Health, Human Rights, and Legislation, Geneva, 2005.Google Scholar
World Health Assembly, International Health Regulations, Geneva, 2005, entered into force June 15, 2007, available at <http://www.who.int/gb/ebwha/pdf_files/WHA58/WHA58_3en.pdf> <last visited September 10, 2007) [hereinafter cited as IHR].+Google Scholar
Id., at art. 6.Google Scholar
Id., at arts. 3, 32.Google Scholar
Gostin, L. O., “International Infectious Disease Law: Revision of the World Health Organization's International Health Regulations,” JAMA 291, no. 21 (2004): 2623–27.Google Scholar
UNAIDS, International Guidelines on HIV/AIDS and Human Rights, Geneva, 2006; UNAIDS, Handbook for Legislators on HIV/AIDS, Law, and Human Rights, Geneva, 1999; UNDP, Supporting National HIV/AIDS Responses, Geneva, 2004; UNDP, Human Development Report 200: Human Rights and Human Development (New York: Oxford University Press, 2000).Google Scholar
Pan American Health Organization, The Right to Health in the Americas, Washington, D.C., 1989.Google Scholar
The Montreal Declaration on Intellectual Disabilities, adopted October 6, 2004, available at <http://www.declarationmontreal.com/english/declaration.htm> (last visited September 10, 2007).+(last+visited+September+10,+2007).>Google Scholar
See, e.g., Pan American Health Organization, Understanding and Responding to HIV/AIDS-related Stigma and Stigma and Discrimination in the Health Sector, Washington D.C., 2003.Google Scholar
Fidler, D. P., SARS, Governance, and the Globalization of Disease (New York: Palgrave Macmillan, 2004): At 21–22.CrossRefGoogle Scholar
Id.Google Scholar
Physicians for Human Rights, Epidemic of Inequality: Women's Rights and HIV/AIDS in Botswana and Swaziland, Cambridge, MA, 2007.Google Scholar
Human Rights Watch, Rhetoric and Risk: Human Rights Abuses Impeding Ukraine's Fight against HIV/AIDS, March 2006; Human Rights Watch, Locked Doors: The Human Rights of People Living with HIV/AIDS in China, August 2003.Google Scholar
Mental Disability Rights International, Human Rights and Mental Health in Peru, 2004, and Human Rights and Mental Health: Uruguay, 2004.Google Scholar
Mental Disability Rights International, Not on the Agenda: Human Rights of People with Mental Disabilities in Kosovo, 2002, and Human Rights and Mental Health: Hungary, 1997.Google Scholar
Hillman, A., “Protecting Mental Disability Rights: A Success Story in the Inter-American Human Rights System,” Human Rights Briefs 12, no. 3 (2005): 25–28.Google Scholar
WHO Framework Convention on Tobacco Control, entered into force February 27, 2005.Google Scholar
See CRPD, supra note 21.Google Scholar
Dhir, A. A., “Human Rights Treaty Drafting through the Lens of Mental Disability: The Proposed International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities,” Stanford Journal of International Law 41, no. 2 (2005): 181–216.Google Scholar
See Fidler, , supra note 8.Google Scholar
See CRPD, supra note 21.Google Scholar
Id., at arts. 1, 4(1).Google Scholar
Id., at art. 34.Google Scholar
Id., at art. 35.Google Scholar
Id., at art. 31.Google Scholar
Id., at art. 4(3).Google Scholar
Optional Protocol to the International Convention on the Rights of Persons with Disabilities.Google Scholar
See CRPD, supra note 21, at art. 1.Google Scholar
Id., at arts. 5, 9, 10, 12, 13, 14.Google Scholar
Id., at arts. 15, 16, 21.Google Scholar
Id., at arts. 18–20, 22, 23.Google Scholar
Id., at arts. 24–30.Google Scholar
Goodman, R. Jinks, D., “How to Influence States: Socialization and International Human Rights Law,” Duke Law Journal 74, no. 3 (2004): 621–703.Google Scholar
Jones, M., “Can International Law Improve Mental Health? Some Thoughts on the Proposed Convention on the Rights of People with Disabilities,” International Journal of Law and Psychiatry 28, no. 2 (2005): 183–205.CrossRefGoogle Scholar
Melish, T. J., “The U.N. Disability Convention: Historic Process, Strong Prospects, and Why the U.S. Should Ratify,” Human Rights Brief 14, no. 2 (2007): 37–46.Google Scholar
See Dhir, , supra note 72; Justesen, T. R. Justesen, T. R., “An Analysis of the Development and Adoption of the United Nations Convention Recognizing the Rights of Individuals with Disabilities: Why the United States Refuses to Sign This U.N. Convention,” Human Rights Brief 14, no. 2 (2007): 36–41.Google Scholar
Stein, M. A., “Disability Human Rights,” California Law Review 95, no. 1 (2007): 75–121.Google Scholar
See Burris, , supra note 3; Hunter, N. D., “‘Public-Private’ Health Law: Multiple Directions in Public Health,” Journal of Health Care Law & Policy 10, no. 1 (2007): 101–132; Lobel, O., “The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought,” Minnesota Law Review 89, no. 2 (2004): 342–470; Trubek, L. G., “New Governance and Soft Law in Health Care Reform,” Indiana Health Law Review 3, no. 1 (2006): 137–170.Google Scholar