Problematic Aspects of International Standards Regulating Human Rights to Health and Medical Care

By Sylkina, Svetlana; Omarova, Aiman et al. | Journal of Legal, Ethical and Regulatory Issues, January 1, 2018 | Go to article overview

Problematic Aspects of International Standards Regulating Human Rights to Health and Medical Care


Sylkina, Svetlana, Omarova, Aiman, Tynybekov, Serikkali, Adanbekova, Zaripa, Yergali, Adlet, Journal of Legal, Ethical and Regulatory Issues


INTRODUCTION

The right to health and medical care is recognized as an absolute and inalienable, since it belongs to a person from the moment of his birth until his life ends.

Modern international relations have initiated the assurance of observance and protection of human right to health and medical care, which outgrew the national borders of states and became an object of international norms' regulation, such as the Universal Declaration of Human Rights 1948 and the International Covenant on Economic, Social and Cultural Rights 1966.

Recognizing the human rights to health and medical care as natural and inalienable, the international community has developed certain standards that reflect the scope of such rights and basic conditions for their realization. (Evstratova, 2016) The term "стандарт" comes from English word "standard"; in Russian it means a norm, a sample. According to Professor A.B. Borisov's Great Dictionary of Economic, the term "standard" has two meanings: "1) The standard is an official state or normative-technical document of industry or enterprise that establishes necessary qualitative characteristics, requirements that this type of product must meet; 2) The standard is a sample, a model to which other similar objects are compared"

(Borisov, 2009).

International legal standard in the area of health and medical care may be defined as the most progressive international legal norms which were adopted by an authorized international body that secures human rights and freedoms in the area of health care, as guarantees for this right's provision, forms of international cooperation and as well as privileges to various categories of individuals (Dyuzhikov, 2001). The objectives of international standards' adoption in the area of health care are: The effective realization of citizens' right to health and medical care in accordance with the procedure and on conditions that meet modern requirements (Kamenskaya, 2011).

Legal Analysis of Universal International Treaties in the Area of Health and Medical Care

Universal sources include international legal instruments such as Universal Declaration of Human Rights (adopted by UN General Assembly Resolution 217A (III) of December 10, 1948), Convention on the Elimination of All Forms of Racial Discrimination (adopted by General Assembly resolution 2106 (XX) of 21 December, 1965), Convention on the Rights of the Child (adopted by General Assembly resolution 44/25 of 20 November, 1989), Convention on the Rights of Persons with Disabilities (adopted by General Assembly resolution 61/106 of 13 December, 2006).

In the second part of article 12 the 1966 Covenant reflects the desire for "health" as a broad concept that includes environmental hygiene, health care and occupational diseases (Toebes, 1999). Thus, according to article 5 of the Convention on the Elimination of All Forms of Racial Discrimination of 1965, member states are obliged to prohibit and eliminate racial discrimination in all its forms and to ensure everyone's equality before the law in regard to the right to health and medical care, social security and social services and other rights, without distinction as to race, colour, national or ethnic origin (Convention on the Elimination..., 1965).

Aside from prohibiting the imposition of acts of torture or ill-treatment, article 7 of the ICCPR explicitly prohibits medical or scientific experimentation on human beings without full understanding of the extent of the experiment and prior consent (Human Rights Committee..., 1992). The UN Principles of Medical Ethics relevant to the Role of Health Personnel establish a series of guidelines to guarantee that health personnel will protect prisoners and detainees against any form of ill treatment or punishment (Principles of Medical Ethics, 1982).

Specific Features of Legal Norms Enshrined in International Regional Treaties

We may include to regional health and medical care standards the European Social Charter of 3 May 1996 (Strasbourg) (entered into force in 1999), the Alma-Ata Declaration on Primary Health Care of 12 September 1978, the Convention Of the Commonwealth of Independent States on human rights and fundamental freedoms of 26 May 1995 (Minsk), the African Charter on Human and Peoples' Rights of 26 June 1981 (Nairobi) (entered into force on 21 October 1986), the Charter of Rights and Social Welfare of the Child 1990 (entered into force on November 29, 1999), the American Convention on Human Rights on November 2, 1969 (San Jose, entered into force on July 18, 1978). …

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