Chapter 9 Audio podcast

The COVID-19 pandemic has brought increasing attention to a range of legal issues that have, up until now, only had fairly limited international focus. One of those issues is the international human right to health. According to Article 12 in the International Convention on Economic, Social and Cultural Rights, states recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The article also stipulates that achieving the full realization of the right to health includes the prevention, treatment, and control of epidemic, pandemic, occupational, and other diseases, as well as the creation of conditions which would assure to all medical service and medical attention in the event of sickness. But what does it mean in practice that health is a human right? In this episode of the International Law Podcast, episode nine, I'll focus on international human rights law, and as always, I’ll limit myself to three issues of the law that I think are particularly important to note.

The first of these issues concerns how one can categorize the different human rights. Because, at first glance at least, it can be hard to distinguish the different rights from each other. But there are certain ways to bracket the rights, and thereby also get a better grasp of the various rights themselves, and how they relate to one another. In fact, the many different human rights that exist today come in different categories that reflect how international human rights law has evolved in different stages. The categories also illustrate that the enforcement of human rights law vary quite substantively, depending on the type and category of right in question.

The earliest international human rights are what we call civil and political rights. These rights are sometimes referred to as first generation rights. This, of course, is to illustrate that they were, so to speak, the original human rights first conceived of. Many of these civil and political rights are derived from, more or less, similar rights that are contained in national constitutions. Such rights, of course, were introduced into constitutional law to offer protection to the citizens of a state. In general, the civil and political rights are negative in the sense that they, first of all, try to offer protection from the excesses of the state. In other words, the rights seek to protect individuals and freedom from government overreach. Like all human rights, the civil and political rights are built around certain core humanitarian principles and values. Here, I'll just mention a few of these core values. One of them, arguably the most important such value, is that of human dignity. As a value, human dignity is visible in rights, such as the right to life,the prohibition against torture, and cruel, inhuman and degrading treatment or punishment. Human rights that are based on human dignity are usually formulated in absolute terms. And they do not allow for limitations or balancing. For example, there can be no exceptions to the prohibition against torture.

Another core value in the category of civil and political rights is the value of freedom. And with freedom, here, I mean both intellectual freedom, such as freedom of expression, thought, conscience, religion, association, and peaceful assembly, as well as a physical freedom, such as liberty and freedom of movement. Unlike the rights that are based on human dignity, the rights that are based on freedom can sometimes be balanced against other considerations, as long as these considerations are legitimate and the balancing act is proportionate.

The third and the last value that I will mention here in the overview of civil and political rights is that of non-discrimination. This particular value is reflected in the general obligation to respect and ensure the enjoyment of rights without distinction on the base of race, sex, language, religion, political opinion, or national or social origin. It should be noted, however, that a state may be allowed to take account of a particular ground, such as race, sex, language, etc., when that is deemed to be legitimate. Civil and political rights (the first generation rights) are not the only category of human rights. Subsequent to the emergence of such of these rights came rights that concern economic, social, and cultural issues. And due to their later arrival, such rights are often called second generation human rights. Economic, social, and cultural rights are somewhat softer and usually also formulated in more vague terms. This helps explain why judicial enforcement of these rights is often weaker than enforcement of civil and political rights.

Examples of these rights include the right to work and the right to adequate working conditions. It is also here that we come across the right to health that I opened this podcast with. Not surprisingly, the right to health has come under increasing scrutiny during the COVID-19 pandemic, where lawyers are trying to identify what exactly the right actually contains. Unlike civil and political rights, economic, social, and cultural rights require a substantial element of state action and initiative. Therefore, these rights are also referred to as positive rights. Aside from civil and political rights, and economic, social, and cultural rights, certain human rights focus on the protection of various groups of individuals. Most often those groups that are deemed to be particularly vulnerable and thus in need of special protection. International human rights law also protects various minorities, such as ethnic or religious minorities, as well as indigenous people. For example, in February 2020, the Inter-American Court of Human Rights found that Argentina had violated indigenous communities’ rights to a healthy environment by not effectively stopping illegal activities by settlers on the indigenous community’s land.

The second issue I'll focus on in this episode on human rights law concerns the European Court of Human Rights and its approach to interpretation; a topic that I've mentioned briefly already in this podcast. Now, the European Court of Human Rights can make decisions that are binding on state parties. It receives complaints from states and individual complaints from individuals, NGOs,or groups of individuals that all claim they are victims of violations of the European Convention on Human Rights. In episode three, I briefly referred to the general principles of treaty interpretation found in the Vienna Convention on the Law of Treaties.

According to those principles, the interpretation of a provision in a treaty takes its point of departure in the text of a provision, but the interpreter must also take account of the context that surrounds the provision, as well as the overall object and purpose of the treaty. I also noted in episode three something about the interpretation of human rights conventions. For instance, I noted that it is a bit peculiar. That is because, unlike other treaties, the provisions in human rights conventions are generally interpreted less in accordance with the original intention of the parties and more in order to ensure the effective, real, and concrete protection of the individuals under the jurisdiction of the state. And this, in fact, not surprisingly, is also reflected in the practice of the European Court of Human Rights. Now, the court that is based in Strasburg adopts what it calls a ‘dynamic interpretation’, and the court has frequently stated that the convention, according to its view, is a living instrument, whose provisions must be interpreted in light of the current social and political climate, rather than in accordance with the sentiments at the time the convention was adopted. Of course, if the court had not adopted a dynamic approach to interpretation, the convention would be less the vehicle for change that it has been. Within certain areas, however-- and this is worth noting-- the court in Strasburg may grant states what they call a certain ‘margin of appreciation’, and thus a substantial degree of deference. And this is particularly the case with regard to topics that are especially sensitive to certain states, such as religious issues.

The third and last issue that I will highlight in this episode is a protection that conventions to human rights law provides to individuals who feel to be ill-treated in their home state. Usually, when there is talk about the protection of refugees and asylum seekers, focus is on the 1951 Refugee Convention. That, of course, is only natural. After all, the Refugee Convention does provide extensive protection to refugees, and its adoption was a major achievement in international law. But when compared with the protection and human rights conventions of individuals who are afraid of returning to their home countries,the Refugee Convention often offers less protection. First, under the so-called refoulement principle, the Refugee Convention prohibits states from expelling or returning a refugee to a state where his or her life or freedom would be threatened.But to qualify as a refugee, and thus for protection in the convention, an individual must seizeprotection from persecution in the home state on the basis of certain core grounds.Those grounds, in practice, are race, religion, nationality, membership in a particular social group, or political opinion. In human rights law, however, their prohibition against returning an individual to a state where that individual fears ill treatment, protects everyone, regardless of why the individual fears ill treatment or being persecuted. In exceptional circumstances, human rights conventions may even protect very sick individuals from being returned to their home state, if they cannot receive the medical assistance they need there. Such individuals are not protected by the Refugee Convention. Also, unlike in the Refugee Convention, theprotection against refoulement in human rights law is absolute, so it applies regardless of how unwanted an individual is. Human rights law also protects individuals who are considered a threat to the national security of the state where they seek refuge, as well as individuals who have committed horrible crimes there. And this is different from the Refugee Convention. The bottom line is fairly clear: an individual cannot be sent to a state if there is a risk that the individual will suffer ill treatment in that state.