JUS 276-2-C: HUMAN RIGHTS AND WELFARE POLICIES (FALL 2022)

CLASE 1

30/8-22: INTRODUCTION AND OVERVIEW

● Course structure and content

● International human rights and the relationship between them
● Normative foundation and justifications
● Human dignity as the basic value
● Different kind of rights and state obligations
● Conceptual framework and the UDHR model
● State obligations: respect, protect, fulfill

HUMAN RIGHTS IN INTERNATIONAL DISCOURSE

Growing recognition since the 1980s

● The major global approach to social justice
● ”Global civilization” in terms of a worldwide normative agreement on basic values and principles
● A basic universal normative standard
● Recognized as a condition for social and economic development

HUMAN RIGHTS: DEFINITION

● Rights and freedoms entitled all individuals, irrespective of race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status
● All the rights protect human dignity
● Rights held by all human beings just because they are humans

HUMAN RIGHTS: NORMATIVE STANDARDS

● Human rights are normative, not descriptive

● ”She has a right to basic health care” this is a normative claim, not an empirical description of reality

HUMAN RIGHTS TO WHAT?

● Certain selected values, protected by a certain mechanism (”the rights mechanism”, with state responsibility
and obligations, accountability)
● Rights are codified in international agreements (treaties)
○ to life, fair treatment, liberty and security …
○ a basic standard of health care and health determinants, housing, food, education …
○ non-discrimination in relation to these goods

INSTRUMENTS

● Declarations (soft law)

○ Not legally binding
● Conventions/treaties/covenants (hard law)

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 ○ Legally binding after ratification

WHAT IS A TREATY?

● ”an international agreement concluded between States in written form and governed by international law ...
” (Vienna Conv art 2,a)

INTERNATIONAL HUMAN RIGHTS: BASIC INSTRUMENTS

International Bill of Human Rights

● Universal Declaration of Human Rights (1948)

● International Covenant on Civil and Political Rights (ICCPR, 1966)
● International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966)

ADDITIONAL RELEVANT INSTRUMENTS

● Convention on the elimination of all forms of racial discrimination (CERD, 1966)

● Convention on the elimination of all forms of discrimination against women (CEDAW, 1979)
● Convention on the rights of the child (CRC, 1989)
● Convention on the Rights of Persons with Disabilities (CRPD, 2006)

REGIONAL HUMAN RIGHTS INSTRUMENTS (EUROPE)

● Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, 1950)
○ Civil and political rights
● European Social Charter (1961, 1996)
○ «The Social Constitution of Europe»
● EU Charter of Fundamental Rights (2000)

REGIONAL HUMAN RIGHTS INSTRUMENTS

● American Convention on Human Rights (1969)

○ San Salvador Additional Protocol on Economic, Social and Cultural Rights (1988 )
● African Charter on Human and Peoples ́ Rights (1981)
● Cairo Declaration on Human Rights in Islam (1990)

VIENNA CONVENTION ON THE LAW OF TREATIES (1969)

● Art 2: Definitions
● Art 18: Refrain from violations of the treaty
● Art 26: Pacta sunt servanda: The treaty is binding
● Art 31 (1): General rule of interpretation: A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and
purpose

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RATIFICATION

● ”the international act so named whereby a State establishes on the international plane its consent to be bound
by a treaty” (art 2, b)

LEGAL SOURCES

● UN Committees: General Comments and Recommendations; Concluding observations to individual State

parties
○ Not legally binding, but authoritative legal sources
● European Committee of Social Rights: Decisions and Conclusions
○ HUDOC Database of decisions
○ Digest: Interpretations by the Committee of articles in the European Social Charter

HUMAN RIGHTS: ROOTS

● The European Enlightenment

○ Scientific and political revolutions of the 18th century
○ The concept of human equality; feudalism and the previously uncontested divine rights of kings were
challenged
○ Secularism; a new secular language affirming a common humanity, used by revolutionaries in England,
America and France to fight aristocratic privileges and religious oppression

THE NOTION OF UNIVERSALITY: RELIGIOUS AND CULTURAL ROOTS

● The concept of universality has been used by many religions

● Many human rights are resembled in the Bible, the Old Testament, the Koran, in Buddhism ...

THE EVOLUTION OF HUMAN RIGHTS

● 18th century: Civil rights

○ the classical liberal state
● 19th century: Political rights
○ the democratic state
● 20th century: Social rights
○ the welfare state
● 21th century: Group rights
○ Indigenous peoples, minorities
○ Environmental issues
This scheme is rough and describes main tendencies only, as all kind of rights have existed at the same time, often
developed together

CHARTER OF THE UNITED NATIONS (1945)

● ”We the Peoples of the United Nations Determined

○ to save succeeding generations from the scourge of war …

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 ○ to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the
equal rights of men and women …
○ to promote social progress and better standards of life in larger freedom ...”

TWO COMPETING CONCEPTS OF JUSTICE

● Rational (man-made) justice, based on rational efforts of human beings, by binding social agreements,
constitutions and laws
● Divine (revelational) justice, based on a divine authority

THE ”STANDARD” JUSTIFICATION OF HUMAN RIGHTS TODAY

● A rational man-made agreement: Because humans are born with human dignity, they are entitled to basic
respect and human treatment
● ”Human rights” is a normative demand for social change and improvement, based on certain humanistic values
(”a social project”)
○ A global «social contract»?
○ Critical voices (e.g Sylvia Tamale, lecture 24.8.22, Bergen Exchanges)

MORAL AND THEORETICAL FOUNDATION

● Protection of basic human needs

● Protection of human dignity and equality, individual autonomy and participation
● Implies that citizens are treated with equal respect and concern
● Compatible with most societies and cultures
● Supported by most states
HUMAN RIGHTS: HUMAN DIGNITY AS THE BASIC VALUE

● ”Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice and peace in the world...” (Preamble).
● ”All human beings are born free and equal in dignity and rights ...” (Article 1).

Universal Declaration of Human Rights, 1948

UN HUMAN RIGHTS COVENANTS (1966)

● ”Recognizing that these rights derive from the inherent dignity of the human person” (preamble).

IMMANUEL KANT (1724- 1804)

● German philosopher, central in modern philosophy

● “While everything has a given price, the human being has dignity and is otherwise priceless”

HUMAN DIGNITY

● The human being is considered unique among all living creatures

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 ● Human dignity is an inherent value of every person, irrespective of race, sex, social status, age, physical and
mental ability, political opinion, …
○ Everyone should be treated with dignity and be able to live in dignity
○ What does dignity mean in concrete situations?
● Equal for all
● Constant
● Inalienable
● Unconditional
● Irreducible

Even persons who commit serious crimes are entitled to dignified treatment in prison

THREE MAIN CATEGORIES OF HUMAN RIGHTS

● Civil and political rights

● Social, cultural and economic rights
● Group rights/collective rights

UNIVERSAL DECLARATION: 4 PILLARS

● Human dignity, shared by all individuals regardless of race, religion, creed, nationality, social origin, sex):
Articles 1 and 2
● Civil liberty rights («first generation»), fought for during the Enlightenment (1620-1780): Articles 3-19 (life,
liberty, security, fair trial, freedom of thought and expression, privacy, property rights...)
● Political, social and economic rights («second generation»), championed during the Industrial Revolution
(1760-1840): Articles 20-26 (political participation, social security, work, rest and leisure, adequate standard of
living, food, housing, medical care, education...)
● Communal and cultural rights («third generation»), advocated from late 19th and early 20th century:
Articles 27-28

UDHR AND THE FOUR FREEDOMS

● ”... the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from
fear and want has been proclaimed as the highest aspiration of the common people …
● the peoples of the United Nations ... have determined to promote social progress and better standards of life
in larger freedom” (preamble)
○ A holistic human rights philosophy, based on the notion of equally important and interrelated human
rights. Covers civil, political and socio-economic rights

THE LIST OF RIGHTS IN THE UNIVERSAL DECLARATION

● Considered as minimum conditions for a dignified life

○ Life
○ Freedom from slavery, torture and arbitrary arrest, detention and exile
○ Judicial rights and equal protection of the law
○ Privacy, family life
○ Freedom of movement, thought, assembly, expression

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 ○ Social security, work, equal pay for equal work, rest and leisure, a standard of living adequate for health
and well-being (food, clothing, housing, medical care, social services and security in the event of
unemployment, sickness, disability, widowhood, old age), education, culture

INTERDEPENDENCE AND INDIVISIBILITY

● The holistic approach: ”an indivisible structure in which the value of each right is significantly augmented by
the presence of many others” (Donnelly 2003, p 27)

THE COLD WAR DIVIDE

● The holistic philosophy of the Universal Declaration undermined

● Two separated conventions (ICESCR, ICCPR)
● Polarization and conflict, two ”blocks”, and debates about which rights that are the ”most important”, ”real
human rights”, etc
○ The US has still not ratified the ICESCR
○ China has not yet ratified ICCPR
○ Socio-economic rights are still questioned and marginalized, criticized for being political rather than
legal

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)

● Right to life (art 6)

● Freedom from torture and cruel, inhuman or degrading treatment or punishment (art 7)
● Freedom from slavery etc (art 8)
● Right to liberty and security of person, freedom from arbitrary arrest or detention (art 9)
● Equality before the courts and the law (art 14 and 26)
● Right to privacy (art 17)
● Freedom of thought, conscience and religion (art 18)
● Freedom of expression and association (art 19 and 22)
● Freedom to take part in the conduct of public affairs, to vote and be elected (art 25)

Emphasis on freedom from state interference (”negative” rights)

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR)

● Right to work and just and favorable work conditions (art 6 and 7)
● Right to form trade unions (art 8)
● Right to social security (art 9)
● Right to an adequate standard of living, including food, clothing and housing (art 11)
● Right to health care (art 12)
● Right to education (art 13 and 14)
● Right to participate in cultural life and enjoy benefits of scientific progress (art 15)

Emphasis on the right to state support (”positive” rights/entitlements)

VIENNA DECLARATION AND PROGRAMME OF ACTION (1993)

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 ● ”All human rights are universal, indivisible and interdependent and interrelated. The international
community must treat human rights globally in a fair and equal manner, on the same footing, and with the same
emphasis” (part I, para 5).

«NEGATIVE» AND «POSITIVE» ASPECTS

● Most rights contain both negative and positive aspects and obligations
○ The right to health
■ Freedom from torture and unjustified coercion
■ Freedom from harmful actions/practices
■ Freedom from discrimination
■ Right to health care services («positive» entitlement)

● Most rights depend on other rights (interdependence)

○ The right to life
■ Right to health and food

IMPORTANT QUESTIONS

● Is the right to life really protected if people lack access to healthcare, food, water and housing?
● If you are starving, sick or uneducated; how can you enjoy your right to freedom of expression and participate
in society?

ESC-RIGHTS AND MINIMUM LEVEL OF WELFARE

● «... human rights also aim to secure a minimum level of welfare for individuals. They aim to ensure access to
basic goods such as education, health, food, water, housing ... The importance of this «welfare aspect» of
human rights cannot be understated. Poverty cuts short the lives and prospects of millions worldwide, and it
seems fair to say that, given a choice, most people would prefer to live without freedom of speech than without
health care or housing.»

Arosemena (2014) p. 1

LAW AND POLITICS

● «While politics is always necessary, political action must be guided by a sense of justice and directed at
structural changes that once in place have a certain legitimacy and effectiveness that is independent of the forces
that created them. While it is true that human rights are betrayed if they are made into only empty formalism,
formalism must also exist. The challenge is then to find a way to engage human rights with the problem of
poverty, and unmet human needs, while conserving formal values such as the rule of law, legal certainty
and procedural fairness.»

Arosemena (2014) p. 3

ENFORCEMENT

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 ● The “real test for commitment to human rights norms lies in the mechanisms that are put in place for their
enforcement”.

Ntlama, N., Monitoring the implementation of socio-economic rights in South Africa: Some lessons from the
international community, Law, Democracy & Development No. 12, 2004, pp. 207-221, at p. 207

INTERNATIONAL AND EUROPEAN MONITORING SYSTEMS

● Treaty bodies
○ UN: Human Rights Committee (HRC); Committee on Economic, Social and Cultural Rights (CESCR)
○ Europe: European Court of Human Rights; European Committee of Social Rights (ESR)
● Expert Committees
○ Review periodic state reports
○ Receive individual and collective complaints
○ Issue general and state-specific recommendations(UN)

CESCR – EXPERT COMMITTEE

● «Concluding observations»: Evaluation of domestic legislation, practices and efforts, based on submission of
state reports, «shadow» reports and other sources
● Can receive individual and group complaints, state-to-state complaints and start its own inquiries of rights
violations (Optional Protocol)

OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND

CULTURAL RIGHTS (2008) (IN FORCE FROM MAY 2013)

● No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not
a Party to the present Protocol (Art 1).
● Communications may be submitted by or on behalf of individuals or groups of individuals, under the
jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural
rights set forth in the Covenant by that State Party (Art 2).
● The Committee shall not consider a communication unless it has ascertained that all available domestic
remedies have been exhausted. This shall not be the rule where the application of such remedies is
unreasonably prolonged (Art 3).
● The Committee may, if necessary, decline to consider a communication where it does not reveal that the author
has suffered a clear disadvantage, unless the Committee considers that the communication raises a serious
issue of general importance (Art 4).
● After examining a communication, the Committee shall transmit its views on the communication, together
with its recommendations, if any, to the parties concerned (Article 9)

NATIONAL IMPLEMENTATION (DOMESTICATION)

● If state parties do not take effective measures, no human rights treaty will lead to social change
○ Legislation, policies, resource allocation, co- operation with civil society, training of judges and
professionals, education of the population, …
○ Accountability mechanisms: judicial, quasi- judicial, administrative, political, social

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STATE OBLIGATIONS

● State obligations of all organs and branches of the state

○ Respect
○ Protect
○ Fulfil
● The right-holder
○ Entitlement to the ”substance of the right”, e.g. to health care

RESPECT

● Refrain from interfering – directly or indirectly – with the enjoyment of the right
○ ”Negative” aspect of the right
○ States should refrain from engaging in any practice or activity that denies or limits equal access to basic
health protection, adequate social security, equal access to work opportunities, etc.
○ E.g. by interfering with hospitals or organizations that provide health care or social assistance to
marginalized groups

PROTECT

● Take measures to prevent non-state actors from interfering with the enjoyment of the right
○ ”Positive” aspect of the right
○ E.g. legislation and criminalization of harmful actions and practices, implementation of regulations and
policies, control systems, etc
○ Did the state take appropriate measures to protect the right in question?
○ Is the legislation appropriate to combat exclusion of vulnerable groups?
○ Is the regulation discriminatory?
FULFIL

● Adopt appropriate legislative, administrative, political, budgetary and other measures to ensure full
realization of the right
○ ”Positive” aspects of the right
○ Facilitate: take positive measures to enable and assist individuals and communities to enjoy ECS rights
○ Promote: take actions to create, maintain and restore the realization of ESC rights
○ Provide: provide support to individuals and groups in need (due to poverty or marginalization)
○ Did the state take proper and sufficient steps to fulfill the right in question?

UNDERLYING LEGAL VALUES OF STATE OBLIGATIONS

● Rule of law
● Effectiveness
● Procedural fairness
● Democracy
● Individual concern

WELFARE DUTIES
● Duties of state action/conduct, not of result

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 ● Important questions
○ Are state efforts reasonable?
○ Are state efforts compatible with a rational and fair strategy of prioritizing how to utilize available
resources
○ Are state efforts the result of transparent and democratic processes and political decision making?

31/8-22: UNIVERSALITY AND RELATIVITY OF HUMAN RIGHTS

Introduction

Historical background: Natural rights

● Criticism of natural law theory

Human rights and the question of universality

● Why is this important?
● What is culture?
● Different types of cultures (”right cultures” vs ”duty cultures”)
● Cultural relativism
● Are rights more important than duties?

How do we apply universal rights and standards (non- discrimination, gender equality...) in different cultures?

THE UNIVERSAL DECLARATION ON HUMAN RIGHTS (1948)

● Founding human rights document of 10. december 1948, adopted by the UN General Assembly
● Includes a catalog of human rights
● Great global influence, followed by binding UN conventions
● Has inspired regional human rights conventions in Europe, America, Asia

HUMAN RIGHTS AND UNIVERSALITY

● Rights and freedoms entitled all individuals, irrespective of race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status (Universal Declaration of Human Rights
art 2)
● A basic normative standard
● Rights held by all human beings just because they are humans

QUESTIONS

● Human rights are considered an important part of Western culture and civilization
○ Are human rights also a part of other cultures, religions and civilizations?
○ The possession of all peoples?
○ Should they be implemented across the world?

STARTING POINTS

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 ● «Human rights are universal» (the normative assumption)
○ They should be respected globally
● Cultures are particular (no universal culture)
● All cultures violate some human rights, and these violations may be related to cultural values or social structures
● Cultures and societies are not static, but are in constant change

”THE WEST”: CULTURAL AND POLITICAL IMPRESSIONS

● Liberal tradition, with emphasis on

○ Individual freedom and autonomy
○ Equality
○ Democracy
○ Individual rights against the State (”negative” rights in particular)
○ Rationalism (as opposed to revelation, indigenous knowledge, dogmatism)

● Other experiences associated with ”the West”

○ Slave trade
○ Colonialism
○ Religious persecution
○ Racism
○ Fascism

CHALLENGES TO HUMAN RIGHTS: OVERVIEW

● Exclusion, discrimination and social hierarchies that deny human equality

○ Racism (Western and other cultures)
○ The caste system (hinduism)
○ Discrimination against non-believers (Islam)
○ Discrimination based on gender and sexual orientation (all cultures)
○ Harmful cultural practices such as female circumcision, child marriage, widow inheritance, honour
killings ... (traditional African and Asian societies)
○ Discrimination based on disability (all cultures)

HISTORICAL STARTING POINT (EUROPE): THE ENLIGHTENMENT AND NATURAL RIGHTS

THEORY

● ”We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator
with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness” (American
Declaration of Independence, 1776)
● ”Men are born and remain free and equal in rights” (French Declaration of the Rights of man and of the
Citizen, 1789).

NATURAL LAW THEORY (ROUSSEAU, VOLTAIRE, LOCKE...): KEY POINTS

● Certain individual rights stated as self-evident, universal and inalienable

○ Life, liberty, security, property

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 ● Theory of the social contract: Free, rational and autonomous individuals surrender to the state, while the state
takes on the obligation of protecting their rights
○ ”Where there is no Law, there is no freedom” (Locke)

● Notion of human equality (though originally excluding women, men without property, servants, colonized
peoples, etc)

JOHN LOCKE (1632-1704)

● The father of English and Western liberalism (Two Treatises of Government, 1690)
● ”We are born free as we are born rational”

CRITICISM OF NATURAL LAW

● Burke, Hume, Bentham, and later Mill

● ”Rights is the child of law; from real law come real rights; but from imaginary laws, from ”law of nature”,
come imaginary rights... Natural rights is simple nonsense...” (Bentham, ca 1820)
● By World War I very few philosophers supported the concept of natural (and universal) rights
● The concept of human rights was ”re-born” after the cruelty and barbarism that happened during World War II

HUMAN RIGHTS: BUILDING ON NATURAL LAW THEORY

● ”All human beings are born free and equal in dignity and rights” (UDHR art 1)
● ”We the peoples of the United Nations determined to … reaffirm faith in fundamental human rights” (UN
Charter, preamble)
● Purpose: Guarantee the respect for human dignity
● Historical context: World War II, in particular the Nazi killings of millions of Jews and other groups in
consentration camps

THE NATURE OF HUMAN RIGHTS: ARE THEY UNIVERSAL?

● Human rights
○ Universal, particular or culturally specific?
○ Inalienable or socially constructed?
○ Absolute or contingent?
○ Eternal or time bound?

Theories of universalism and cultural relativism will give different answers

WHY IS THIS IMPORTANT?

● Relevance and legitimacy of human rights

● «These rights are not part of our culture»
○ Often regarding rights of women and minority groups
○ But also regarding certain liberty rights (e.g freedom of expression in oppressive regimes)
○ Socio-economic rights in countries with strong liberalism and belief in non-state interference and
limited social protection

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 ○ What do we answer?

WHAT IS ”CULTURE”?

● Collective identities
○ Inherited ideas, beliefs, values and knowledge
○ Ways of life
○ Distinctive spiritual, material, intellectual and emotional features of society or a social group,
encompassing ways of living together, value systems, traditions and beliefs

UNESCO Declaration on Cultural Diversity

RIGHTS VS DUTIES

● ”Right-cultures”
○ Tend to focus on the individual
○ Western societies

● ”Duty-cultures”
○ Tend to focus on the family, group or community
○ Asian, Islamic, Jewish and African societies

A very simplistic picture since today most countries consist of many different ethnic and cultural groups. Some cultures
are more focused on individual rights than other cultures, where duties are more emphasized.

INDIVIDUALISM AND COLLECTIVISM

● ”Individualistic” societies: US, Canada, Western European countries

● ”Collectivistic” societies: Asian, Latin- American and African nations

(Hofstede 1980, 1983) : Study of 117.000 IBM employees in 66 countries, analyzing cultural variation)

INDIVIDUALISM (HOFSTEDE 1991)

● ”Individualism pertains to societies in which the ties between individuals are loose: everyone is expected to
look after himself or herself and his or her immediate family”
● ”I” consciousness and individual autonomy

COLLECTIVISM (HOFSTEDE 1991)

● ”Collectivism as its opposite pertains to societies in which people from birth onwards are integrated into strong,
cohesive ingroups, which throughout people ́s lifetime continue to protect them in exchange for unquestioning
loyalty”
● ”We” consciousness and group decisions

TRADITIONAL VERSUS MODERN SOCIETIES

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 ● Traditional societies (Western and non- Western) have had a stronger focus on duties and collective values
than individual rights
● Modern societies typically have a stronger focus on individual needs and rights

UDHR AND DUTIES

●”Everyone has duties to the community in which alone the free and full development of his personality is
possible” (Art. 29.1)
● ”In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined
by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others
and of meeting the just requirements of morality, public order and the general welfare in a democratic
society” (Art. 29.2)
ICCPR AND ICESCR

● ”Realizing that the individual, having duties to other individuals and to the community to which he belongs,
is under a responsibility to strive for the promotion and observance of the rights recognized in the present
Covenant”

Preamble, both conventions

́ RIGHTS (1981)
THE AFRICAN CHARTER ON HUMAN AND PEOPLE S

● ”Every individual shall have duties towards his family and society, the State and other legally recognized
communities and the international community ...” (Art 27)

THE AFRICAN CHARTER, CONTINUED

● ”Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to
maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance” (Art 28)
● ”The individual shall also have the duty ... To preserve the harmonious development of the family ... to
respect his parents at all times, to maintain them in case of need ... To serve his national community by
placing his physical and intellectual abilities at its service ... To work to the best of his abilities and
competence, and to pay taxes imposed by law in the interest of the society ...”(Art 29)

THE AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD (1999)

Article 31: Responsibility of the Child

Every child shall have responsibilities towards his family and society, the State and other legally recognized
communities and the international community. The child, subject to his age and ability, and such limitations as may be
contained in the present Charter, shall have the duty;
(a) to work for the cohesion of the family, to respect his parents, superiors and elders at all times and to
assist them in case of need;
(b) to serve his national community by placing his physical and intellectual abilities at its service;
(c) to preserve and strengthen social and national solidarity;
(d) to preserve and strengthen African cultural values in his relations with other members of the society,
in the spirit of tolerance, dialogue and consultation and to contribute to the moral well-being of society;

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 (e) to preserve and strengthen the independence and the integrity of his country;
(f) to contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of
African Unity.

THE CAIRO DECLARATION ON HUMAN RIGHTS IN ISLAM (1990)

● ”Believing that fundamental rights and universal freedoms in Islam are an integral part of the Islamic
religion and that no one as a matter of principle has the right to suspend them in whole or in part or violate or
ignore them in as much as they are binding divine commandments”.
● ”Human beings are born free, and no one has the right to enslave, humiliate, oppress or exploit them, and there
can be no subjugation but to God the Most-High” (preamble)

THE ISLAMIC PERSPECTIVE: FOCUS ON DUTIES RATHER THAN RIGHTS

● Rather than emphasizing rights, focus is put on the fact that God (Allah) has commanded others to act, or
refrain from acting, in certain ways (Watt 1968)
● Islamic thought tend to stress not the rights of individuals, but rather their duties to obey the law of God, the
Shari ́a (Mayer 1999)

THE CAIRO DECLARATION: RIGHTS AND DUTIES (ART. 6)

● “Woman is equal to man in human dignity, and has rights to enjoy as well ad duties to perform; she has her
own civil entity and financial independence, and the right to retain her name and lineage …
● The husband is responsible for the support and welfare of the family”

UNIVERSALISM: IDEA AND TENSIONS

● International human rights represent universally valid norms

○ They should be applied and implemented globally
○ International human rights instruments speak in universal terms, since they are meant to protect
individuals everywhere
● Regional instruments express cultural diversity
○ Tensions between international and regional instruments
○ E.g. women ́s rights, duties of children, etc

UNIVERSALISM: JUSTIFICATIONS

● Protection of human dignity is relevant in all cultures

● Human rights respond to basic individual needs everywhere
● Many states are oppressive and neglect basic human needs, and thus individuals need to be protected by
international human rights law
● Some cultural practices are harmful and incompatible with basic human needs (genital mutilations, child
marriage, widow burning ...)
● Many states use ”culture” as a justification for human rights violations
● Cultures are not static, and many cultures are increasingly adaptive to use human rights values as a way of
improving the situation of disadvantaged groups
CULTURAL RELATIVISM: IDEA

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 ● All human societies have moral principles, and notions of human dignity, but the content vary significantly
● Rights (and duties) depend on the cultural context
● Lack of valid cross-cultural norms to support the idea of universal human rights

CULTURAL RELATIVISM: JUSTIFICATIONS

● No culture or state is justified in attempting to impose on other cultures or states their own ideas and cultural
values
● Human rights instruments, and the pretention of universality, represent ”cultural imperialism” and even
destruction of cultural diversity
● Respect for differences and call for tolerance (Boas, Herskovits) is important in light of Western colonialism
and ”civilizing” efforts around the globe

HUMAN RIGHTS IN A GLOBAL PERSPECTIVE

● ”While all societies have underlying concepts of dignity and justice, few have concepts of rights. ... In most
societies, dignity does not imply human rights. There is very little cultural – let alone universal – foundation
for the concept, as opposed to the content, of human rights. The society that actively protects rights both in law
and in practice is a radical departure for most known human societies ... Human rights tend to be particularly
characteristic of liberal and/or social democratic societies...” (Rhoda Howard 1991)
● Is this statement still valid? What about your countries: Is human rights a common concept today?

THE LIST OF RIGHTS IN THE UNIVERSAL DECLARATION

Considered as a minimum standard for all societies

● Protection of life
● Freedom from slavery, torture and arbitrary arrest, detention and exile
● Judicial rights and equal protection of the law
● Freedom from discrimination based on race, sex, religion…
● Privacy, family life
● Freedom of movement, thought, assembly, expression
● Social security, work, equal pay for equal work, rest and leisure, a standard of living adequate for health and
well- being (food, clothing, housing, medical care, social services and security in the event of unemployment,
sickness, disability, widowhood, old age), education, enjoyment of culture

THE ”DONNELLY-TEST”

Which rights or values in the Universal Declaration do your society or culture reject?

● Answers?
● Think about it

IF WE ACCEPT THE IDEA OF SOME BASIC UNIVERSAL STANDARDS...

● How do we apply universal standards in different societies?

16
RIGHTS, LIMITS AND INTERPRETATIONS

”Everyone shall have the right to freedom of expression” (ICCPR art 19)
● However, this does not mean that we can scream ”Fire!” in a crowded theater. All rights have limits
○ Pornography, racism, blasphemy, health of others, social order, ...

● General consensus on the basic meaning

● Conflicts will appear at the level of interpretation and setting limits, both between and within cultures
● Different societies or cultures will draw the line differently, but may still accept the basic concept or core
substance of the right

THE RIGHT TO HEALTH

● ”The States Parties to the present Covenant recognize the right of everyone to the the enjoyment of the highest
attainable standard of physical and mental health.” (ICESCR art 12.1).
○ A relative standard, due to variations in resources

Agreement about the core substance of the right (emergency help?). Disagreement about the scope of the right
● How much, what kind of services, to whom...?

Disagreement about domestic implementation

● Location of clinics, e.g. in rural areas

Disagreement about cultural practices (FGM, circumcision of boys...)

ESC RIGHTS AND STATE OBLIGATIONS

1. Each State Party to the present Covenant undertakes to take steps, individually and through international
assistance and co-operation, especially economic and technical, to the maximum of its available resources,
with a view to achieving progressively the full realization of the rights recognized in the present Covenant by
all appropriate means, including particularly the adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present
Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
3. Developing countries, with due regard to human rights and their national economy, may determine to what
extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.

ICESCR, Article 2

WELFARE STATES

● Different types of welfare states, depending on cultural and social norms, including gender norms: Liberal
(USA, UK), social (Norway/Scandinavia) and work-oriented (Germany), and combinations
○ Different organization and levels of social rights and protection, concerning access to free education,
health care, pensions and social security systems

17
UNIVERSALITY OF HUMAN RIGHTS

● The basic concept (a common core)

● Interpretation
● Implementation

Universal consensus at the conceptual level give space for some differences in interpretation and implementation, within
limits

Human rights is ”a common standard of achievement for all peoples and all nations” (UDHR preamble)

Comments? Watering out the meaning of human rights? The only realistic alternative in a diverse world?

HOW SHOULD CULTURE BE TAKEN INTO ACCOUNT?

Theories of
● Universalism (Cranston): top down approach to human rights (limited account of culture)
● Cultural relativism (Boas, Herskovits): human rights seen as cultural imperialism
● Cultural pluralism/rights understood in a cultural context (Donnelly, Engle Merry, Hellum): local
norms/customary laws will normally evolve in interplay with regional and global norms, including human rights
● In-between position

CULTURAL PLURALISM

● Seeks to define a space between universalism and relativism, as well as between individualism and
collectivism
○ Places conflicting values within a cultural context while simultaneously giving room for dialogue and
change

(Hellum 1998)

CULTURAL PLURALISM AND HUMAN RIGHTS

● Seeking balance between universality and diversity

○ Human rights instruments are ratified by states from all over the world, and is therefore universally
relevant
○ Human rights should respond to basic human needs
○ Should be implemented and applied with consideration for the particular cultural and collective values
○ Is bound to protect individuals against “harmful” practices
○ Must consider power relations

SUMMARY: CONFLICTS OF RIGHTS IN THE CONTEXT OF CULTURE, RESOURCES,

DEVELOPMENT, DOMESTIC FACTORS

● Freedom of expression vs the right to be protected from racist, degrading or ”immoral” expressions
○ Even though states protect the right to freedom of expression, they may draw the line differently

18
 ● The rights to life and health vs state autonomy
○ Most countries recognize the right to life and health, but still have different laws on death penalty,
abortion, euthanasia, access to social security and welfare services
● Gender equality and non-discrimination vs the right to culture and freedom of religion
○ What are appropriate measures to modify or abolish existing discriminatory laws, customs and
practices? Different answers in different states

● Culture, resource availability, development, etc., explain how rights are framed, defined, confined and
implemented.

RESOURCE RELATIVITY AND WELFARE DUTIES OF STATES

● State obligations to secure economic and social rights (welfare) are relative to state resources
○ ICESCR, Article 2.1: “... to take steps, individually and through international assistance and co-
operation, especially economic and technical, to the maximum of its available resources, with a view
to achieving progressively the full realization of the rights recognized
○ ICESCR, Article 4: “The States Parties to the present Covenant recognize that, in the enjoyment of
those rights provided by the State in conformity with the present Covenant, the State may subject
such rights only to such limitations as are determined by law only in so far as this may be
compatible with the nature of these rights and solely for the purpose of promoting the general
welfare in a democratic society.”

“MARGIN OF APPRECIATION”

● Human rights law provides some space for each state to interpret and implement rights as seen appropriate and
suitable considering respect for democratic principles and domestic conditions
○ Acknowledging that human rights can be implemented in different ways that are all acceptable
○ Can be seen in the case law of the European Court of Human Rights (ECtHR): The Court sets limits,
but try to avoid too detailed regulation of state behavior and legislation

INTERNATIONAL HUMAN RIGHTS: BOTH UNIVERSAL AND RELATIVE

● Should give effective protection of human dignity and respond to basic human needs
● Is ratified by states from all over the world, and is therefore universally relevant
● Should be implemented and applied with appropriate consideration for the socio-cultural context, level of
development, and available resources
● The specific interpretation and application of human rights may differ across cultures and different contexts,
but cannot lose sight of the basic goal: Protection of human dignity and basic individual needs

CLASE 2
2/9-22: Human rights, equality and non- discrimination

● Introduction
○ Human rights as global standards of respectful treatment
● Formal and substantive equality
● Direct and indirect discrimination
● The CEDAW approach to equality and non-discrimination

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 ○ social transformation

Human rights - global standards of respectful treatment and dignified living conditions

● «Global standards»: internationally shared values of how to treat people with dignity and respect
○ Individual liberties and freedoms (from torture, unfair trials, freedom of expression ...)
○ Access to welfare goods (food, housing, health services ...)
○ Equality and non-discrimination
■ a basic requirement in international human rights law

Charter of the United Nations (1945)

● ”We the Peoples of the United Nations Determined

○ to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the
equal rights of men and women and of nations large and small, and to establish conditions under
which justice and respect for the obligations arising from treaties ... can be maintained, and to
promote social progress and better standards of life in larger freedom ...”

Universal Declaration of Human Rights (UDHR, 1948)

● «Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any
kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.»

UDHR Article 2

Gender equality in the international Bill of Human Rights

● ”Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human
rights ... and in the equal rights of men and women...” (UDHR, Preamble)
● ”Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any
kind, such as race, colour, sex ...” (UDHR, Art 2)
● ”The States Parties ... undertake to ensure the equal right of men and women to the enjoyment of all civil
and political rights set forth in the present Covenant (ICCPR Art 3)
● ”The States Parties ... undertake to ensure the equal right of men and women to the enjoyment of all
economic, social and cultural rights set forth in the present Covenant (ICESCR Art 3)

ICESCR Art 2 (2)

● ”The State Parties to the present covenant undertake to guarantee that the rights enunciated in the present
Covenant [education, work, health, adequate standard of living...] will be exercised without discrimination of
any kind as to race, colour, sex, language, religion ...”
○ Immediate and cross-cutting state obligation, covering direct and indirect discrimination
○ State obligations to take effective measures to prevent discrimination

Goals and regulations

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 ● Overall legal goal: Secure formal and substantive equality
○ Prohibition of direct and indirect discrimination
○ Requirements of positive state actions to secure formal and substantive equality

Direct discrimination

● Distinction, exclusion or other differential treatment based on prohibited grounds (sex, race, religion, political
opinion ...)
○ Discrimination of women because of their gender or marital status (e.g. regarding salary, promotion
or social benefits)

● Immediate state obligation to prohibit direct, unjustified discrimination

ICCPR Art 26

● ”All persons are equal before the law and are entitled without any discrimination to equal protection of the
law...”
○ Prohibits discrimination in law or in any field regulated and protected by public authorities.
○ Unemployment benefit: Zwan-de Vries and Broeks (HRC,1984): Unemployed married woman did not
have to prove that she was the breadwinner of the family in order to receive unemployment benefits
■ The legal assumption that the husband was the breadwinner was considered unreasonable and
could not justify different treatment of men and women

ICCPR Art 3

● «The States Parties to the present Covenant undertake to ensure the equal right of men and women to the
enjoyment of all civil and political rights...»
○ The state obligation is to secure «equal … enjoyment» of all rights

ICESCR Art 3

● «The States Parties to the present Covenant undertake to ensure the equal right of men and women to the
enjoyment of all economic, social and cultural rights set forth in this Covenant.»
○ «equal ... enjoyment» of rights – does it always mean equal treatment??

Formal equality – the legal starting point

● Equal treatment
● Equals must be treated alike (Aristotle)
○ State neutrality (non-preference for certain groups)
○ Individualism (equal treatment regardless of group membership)

Immediate state obligation CESCR Committee

● The non-discrimination principle in the ICESCR imposes immediate state obligations (as opposed to
progressive realization of the right to health, education ...)

21
CESCR Committee, General Comment No 3, 1990

Direct discrimination (ECtHR)

● When an individual is treated less favorably than another person in a similar situation for a reason related to
a prohibited ground (race, gender... )
○ E.g. women not allowed to inherit land or own a business
○ Members of a certain ethnic group denied access to public facilities, housing or other services
● “in a similar situation”: Presumes a comparable situation
● What about detrimental acts or omissions that only affects e.g. women?
○ Denial of contraception and birth assistance
○ Harmful practices often directed towards women (female genital mutilation, witch hunting, child
marriage, virginity testing...)
● These are examples of direct discrimination towards women (Art 1 CEDAW)

CEDAW, Article 1

● defines discrimination against women in the following terms:

● Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status,
on a basis of equality of men and women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field

Formal equality: Limitations?

● Does formal equality/equal treatment always lead to a fair outcome?

○ the same outcome, equal enjoyment, or equal opportunities?

● Are people usually treated based on formal equality, or does the state differentiate based on factors such as
income, age, gender, immigration status, citizenship, etc?

Why are people treated differently? What do you think?

Is unequal treatment always discrimination?

If not, why? When does unequal treatment amount to discrimination?

Can unequal treatment lead to equality in outcome/result? What do you think?

ICCPR Committee on gender equality

● ”The State party must not only adopt measures of protection, but also positive measures in all the areas so as
to achieve the effective and equal empowerment of women.”
● Not limited to equal treatment

General Comment No 28, 2000, on ICCPR Art 3

Unequal treatment must be justified

22
 ● Unequal treatment can be justified, due to differences in social situation,
○ different treatment is not necessarily discrimination, f ex forms of affirmative action or special
rights/protection based on age, disability, financial situation, etc
● Unequal treatment or unequal legal protection which is not justified, is discriminatory

Substantive equality

● Regulations or treatment which do not take into account relevant differences, e.g. age, disability,
marginalization, etc., may be discriminatory
● Merely addressing unequal treatment or direct discrimination will not ensure real/de facto or substantive
equality, as envisaged by ICESCR, Article 2 (2).

Committee on Economic, Social and Cultural Rights, General Comment No. 20, 2009, para. 8

Aspects of substantive equality

● Equality in opportunities
○ Removal of barriers, training, assistance, in order to compete on the same terms
● Equality not only in treatment, but in outcome
○ Equal enjoyment of social goods (education, healthcare, work, political participation...)

Positive measures to ensure substantive equality

● Effective enjoyment of ESC rights often require effective measures to prevent, diminish and eliminate
conditions and attitudes which constitute discrimination of certain groups suffering historical or persistent
prejudice or marginalization

Committee on Economic, Social and Cultural Rights, General Comment No. 20, 2009, para. 8

Examples

● Translation services for minorities

● Reasonable accommodation of persons with sensory impairments in accessing health facilities
● Positive measures to ensure equal access to adequate housing, water and sanitation for marginalized minority
groups living in poor informal settlements and rural areas (Africa, Latin America...)

Ibid. paras. 8 and 9

Intersectional discrimination

● Discrimination based on a combination of grounds or characteristics

○ Sex, race, religion…
○ Sexual orientation, disability, natioality

Prohibited grounds of distinction

23
 ● Three normative models
○ General guarantee of equality («All persons are equal before the law»)
○ Exhaustive list of prohibited grounds (sex, race, colour, descent, ethnic origin, disability ...)
○ Open-ended list (prohibits discrimination/distinction of «any kind», such as ...)

Indirect discrimination

● When apparently neutral laws, policies or practices have a disproportionate impact on the exercise of
covenant rights
○ E.g. requirement of birth certificate for school enrolment, or social security number for access to
essential health services (discrimination of minorities or non- nationals who do not have the necessary
documents), digital competance to request social assistance...

Committee on Economic, Social and Cultural Rights, General Comment No. 20, 2009, para. 10

DH and others vs Czech Republic (ECtHR 2008)

● Many Roma children were placed in «special schools» for children with mental challenges
○ «The Court has already accepted in previous cases that a difference in treatment may take the form of
disproportionately prejudicial effects of a general policy or measure which, though couched in
neutral terms, discriminates against a group … [S]uch a situation may amount to ‘indirect
discrimination’, which does not necessarily require a discriminatory intent» (para. 184)

African Commission on Human and Peoples ́Rights

● Certain legal remedies (e.g. private counsel) guaranteed to «everyone», but in practice only available to those
who could afford it
○ Considered as indirect discrimination

Purohit and Moore v The Gambia (2001)

Justification for different treatment or result

Two-step test:

1. Does the state pursue a legitimate aim?

2. Is the different treatment or outcome proportional?

ECtHR (Belgian Linguistics Case) and other cases

SH and others vs Austria (judgment, 2010)

● “... in order for an issue to arise under Article 14 [on discrimination], there must be a difference in the
treatment of persons in relevantly similar situations ... Such a difference in treatment is discriminatory if it
has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there
is not a reasonable relationship of proportionality between the means employed and the aim sought to be
realised.

24
 ● The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences
in otherwise similar situations justify a different treatment” (para. 71)

SH and others vs Austria Grand Chamber (2011)

● “As regards compliance with Article 14, the Chamber observed that in view of the lack of a uniform approach
to this question [regarding especially egg donation] by the Contracting States and the nature of the sensitive
moral and ethical issues involved, the Contracting States enjoyed a wide margin of appreciation in this field.
This wide margin of appreciation in principle extended both to its decision to intervene in the area and, once
having intervened, to the detailed rules it lay down in order to achieve a balance between the competing
public and private interests.”

Not sufficient reasons to justify different treatment

● Administrative inconvenience
● Longstanding tradition
● Prevailing social views
● Stereotypes
● Local convictions

Suspect reasons for different treatment

●Race, ethnicity, sex, religion - a strict standard of scrutinity if these are reasons for different treatment
●Nationality, membership of marginalized minority, sexual orientation, disability, age … are increasingly
recognized as suspect grounds for differential treatment
● Will normally be seen as direct discrimination
ICESCR, Articles 2.2 and 3

● ”The State Parties … undertake to guarantee that the rights enunciated in the present Covenant will be exercised
without discrimination of any kind as to race, colour, sex ... or other status.”
● ”The States Parties … undertake to ensure the equal right of men and women to the enjoyment of all economic,
social and cultural rights ....”
● «other status»: Disability, health status (HIV/AIDS), sexual orientation,gender identity, nationality…
● ”the labour market must be open to everyone under the jurisdiction of States parties” (Gen.com 18, para. 12b)
○ Including refugees, asylum seekers, migrant workers
○ Illegal immigrants?
■ ”special attention” needed

State obligations – positive actions

● Respect – refrain from discriminatory actions

● Protect – prevent discrimination by non-state actors
● Fulfill – promote, guarantee and secure – take proactive steps to eliminate structural patterns of
disadvantage and to achieve social inclusion
○ Reasonable accommodation

Discrimination and disability

25
 ● In 2009, the ECtHR added disability to the list of «suspect» grounds under «other status», saying that the state ́s
margin of appreciation is «greatly reduced» in cases involving discrimination on the grounds of disability
(Glor v Switzerland)
● Impact of the CRPD

Non-discrimination and reasonable accommodation

● The right to non- discrimination is also violated «when states without an objective and reasonable justification
fail to treat differently persons whose situations are significantly different».

Thlimmenos v Greece (2000)

● E.g. duty of providing lifts, automatic door- opening, access for persons in wheelchairs, information in sign
language …
● «Only by way of such accommodation can non-discrimination truly prevail»

Arnardottir 2011 p 255

Price v UK (2001)

● The Court found that the treatment of Price, a severely disabled woman not able to move on her own, amounted
to degrading treatment under ECHR Article 3, due to failure of providing the necessary accommodation of
her basic needs
● Judge Greve noted, in her separate opinion, with reference to Thlimmenos, that the applicant’s treatment was
also discriminatory, due to the lack of compensatory measures, which “come to form part of the disabled
person’s physical integrity”

Implementation of the non-discrimination principle

● Given that we accept the non- discrimination principle as universally relevant: How can it be applied and
implemented globally in different contexts?
○ E.g. the right to non-discrimination and gender equality in very patriarchal societies (Saudi Arabia,
India, traditional African communities...)

Change - a result of concerted global, national and local efforts

● Requires effective implementation of human rights standards

○ Social change depends on how the state fulfils its obligations («perfect laws» do not necessarily lead to
rapid domestic changes. State resistance is a common problem)
● A dialogue across and between societies and cultures
○ Allowing local norms and customary law to evolve in interplay with human rights norms

CEDAW: adressing discrimination of women

● Convention on the Elimination of All Forms of Discrimination Against Women (UN, 1979)
● 188 State parties, many reservations

26
 ● The Convention targets culture and tradition as influential forces that shape gender roles and family
relations
● Countries that have ratified the Convention are legally bound to put its provisions into practice. They are also
committed to submit national reports, at least every four years, on measures they have taken to comply with
their treaty obligations
● Is it possible for an international human rights instrument to change cultures in order to improve women ́s rights?

Human rights and gender equality

● The Convention on Elimination on All Forms of Discrimination Against Women (CEDAW)

○ Why a special convention for women?

● The principles of non-discrimination and equal rights of men and women are established in the ICCPR and
ICESCR
○ Formal vs substantive equality
○ Direct vs indirect discrimination

CEDAW (Preamble)

● ”Concerned, however, that despite these various instruments [ICCPR, ICESCR], extensive discrimination
against women continues to exist…
● Concerned that in situations of poverty women have the least access to food, health, education, training and
opportunities for employment and other needs…
● Aware that a change in the traditional role of men as well as the role of women in society and in the family
is needed to achieve full equality between men and women...”
○ Human rights as social reform … (transformative approach)

CEDAW art 3

● ”States Parties shall take in all fields ... all appropriate measures, including legislation, to ensure the full
development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment
of human rights and fundamental freedoms on a basis of equality with men.”
● Example: Protect and promote women ś access to education, work and appropriate reproductive and health care
services

Flexibility and gradual reform

● States Parties agree to “take all appropriate measures, including legislation, to modify or abolish existing
laws, regulations, customs and practices which constitute discrimination against women” (CEDAW, Art 2 f)

The Committee on the Elimination of All Forms of Discrimination against Women (CEDAW)

● ”The Convention allows for the interpretation and application in the most appropriate ways to the social and
cultural structure of each state but with the premise that the States Parties will follow the principle of non-
discrimination on the basis of sex”.

27
Article 5a: measures to change cultural patterns

● ”States Parties shall take all appropriate measures:

○ To modify the social and cultural patterns of conduct of men and women, with a view to achieving
the elimination of prejudices and customary and all other practices which are based on the idea of
the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women”

Gender differences relevant to economic and social rights (globally)

● Majority of the people living in absolute poverty are women

● Most of the total female work burden is spent on unpaid activities
● High maternal mortality in many developing countries
● Domestic and sexual violence against women
● Lack of access to sexual and reproductive health services, including safe abortion services
● Inequality of women is deeply embedded in history, tradition and culture, and affects the enjoyment of economic
and social rights
○ Cultural obstacles to gender equality

Important human rights concerns of women

● Health
○ Gender based violence, maternal mortality, ”harmful practices”, access to health services, sexual and
reproductive health and freedom

● Education and work

○ Access to education and work, distributive justice (income), discrimination at the workplace

● Property and ownership

○ The right to own land and property, inheritance, security of home

● Status in the family

○ Gender roles, responsibility for family members, distribution of benefits, rights and duties

Social reality of men and women

● Differences
○ Pregnancy and birth
○ Segregated labour market
○ Lower pay
○ Different family responsibilities
○ Sexual harassment
○ Domestic violence

● The problem with the ”male standard”: Men and women often have different life experiences. Formal equality
(equal treatment) does not necessarily lead to substantive equality

28
The added value of CEDAW

● Acknowledgment of existing discriminatory social structures and practices

● Overall objective: Non-discrimination and substantive equality
○ Gender-specific instrument: Rights are formulated in a way that directly addresses women ́s situation
○ Holistic instrument: Covers both civil and social rights
○ Transformative: Links equal rights with positive measures and social support, addresses the need for
social change, targets socio-cultural obstacles to substantive equality

Article 11(1): formal equality

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of
employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:
a. The right to work as an inalienable right of all human beings;
b. The right to the same employment opportunities, including the application of the same criteria for
selection in matters of employment;

Article 11(2): substantive equality

2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their
effective right to work, States Parties shall take appropriate measures:
a. To prohibit ... dismissal on the grounds of pregnancy or of maternity leave and discrimination in
dismissals on the basis of marital status;
b. To introduce maternity leave with pay or with comparable social benefits without loss of former
employment, seniority or social allowances;

CEDAW, Article 12: substantive equality

1. States parties shall take all appropriate measures to eliminate discrimination against women in the field of health
care in order to ensure, on a basis of equality of men and women, access to health care services, including
those related to family planning.
2. Notwithstanding the provisions of paragraph 1..., States Parties shall ensure to women appropriate services in
connexion with pregnancy ... .

Gender equality: summary

● The principle of formal equality as a starting point

● Substantive equality may require additional strategies with a focus on gender specific disadvantages and issues
(domestic violence, sexual harassment, pregnancy, work rights, maternity leave, etc)
● CEDAW and transformative equality: Requires states to adopt measures to address and transform
discriminatory socio-cultural patterns and practices to promote social change and the advancement of women

Limitations of the CEDAW approach

● Strong reliance on a comparison with men

○ Limited recognition of specific sexual and reproductive rights for women (abortion, fertility control,
family planning, etc.)

29
 ○ No reference to discrimination between different groups of women (married vs unmarried, heterosexual
vs lesbian)

● No reference to violence against women

○ General Recommendation No. 19 (gender based violence=discrimination, but still no provision directly
on violence)

● Assumption of normative married heterosexuality

○ Does not address the variety of family forms women live in

● Limited acknowledgement of multiple and intersectional forms of discrimination

○ Article 14 on rural women, Gen.Rec ́s on vulnerable groups
○ Ethnicity, disability, age, caste, migration...
The challenge

● «While anti-discrimination law can be a very powerful means of promoting women ́s enjoyment of human
rights, the comparative standard that it relies upon presents quandaries about how best to frame, measure,
and realize women ́s substantive equality, which have yet to be resolved».

Dianne Otto, Women ́s Rights (2014), p. 331

Strategies

● Gender mainstreaming: Interpretation of mainstream human rights instruments (ICCPR, ICESCR) in light of
women ́s experiences and needs
○ The right to life – maternal mortality and access to reproductive services
○ The right to property and housing – women being evicted from their homes when husband dies ...

● Reconstruction of the gender category

○ Make it more inclusive of experiences and identities
○ Challenge gender stereotypes inherent in existing human rights instruments

CLASE 3
6/9-22: Right to health: content, state obligations and related rights
● Background
● International codification
● Objectives
● Relationship to other rights
● State obligations
○ Non-discrimination
○ Health determinants
○ ”the highest attainable standard”
○ ”core content”
○ AAAQ requirements
○ Respect, protect, fulfil

UN Sustainable development goal (SDG) 3

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 ● Ensure healthy lives and promote well- being for all at all ages

Historic background

● Health has always been a human concern

● The industrial revolution,19th century Europe, the development of modern medicine
● Increased travelling and commerce across boders: Prevention of transmissible diseases
● WHO (1946): ”right to health”-formulation in the preamble of its constitution
● Universal Declaration (1948) art 25

Health protection

● Health protection is today an important part of all modern societies

● Still, many people lack access to adequate health services
○ Even in rich countries
○ Vulnerable groups
● Health disparities is an increasing problem in Europe

Some statistics

● Ca one third of the world ́s population lacks access to essential medicines

○ Especially poor people who cannot afford medicines or health care (e.g. in Africa, Asia, Latin America,
the Caribbean)
○ 5.9 million children under age five died in 2015, 16 000 every day (sub-Saharan Africa and other
developing regions and countries)
○ 300.000 women die every year due to pregnancy related complications and lack of basic care (99% in
developing countries)

World Health Organization (WHO)

● ” the persistence of deep inequities in health status is a problem from which no country in the world is exempt”
(2007)
○ A challenge to the universal enjoyment of the human right to health

International codification

● WHO Constitution (1946)

● Universal Declaration art 25
● ICESCR art 12
● CEDAW art 12
● CRC art 24
● European Social Charter art 11
● CRPD art 25
● Refering to both healthcare and underlying conditions for health (safe water, adequate nutrition...)

WHO Constitution

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 ● «Health is a state of complete physical, mental and social well-being and not merely the absence of disease or
infirmity. The enjoyment of the highest attainable standard of health is one of the fundamental rights of
every human being without distinction of race, religion, political belief, economic or social condition.

The right to health: Objectives

● Respect for and protection of human life, dignity and well-being

○ Promote individual health
■ Access to health determinants (clean water, nutrition ...)
■ Access to adequate health care services
■ Individual responsibility
○ Promote state responsibility for individual health and effective public health policies and measures
○ Promote sustainable development, reduce poverty and increase economic prosperity (Hunt, 2008)

Relationship to other rights

● Right to health is a precondition for the enjoyment of other rights

○ e.g. life, education, work, political participation
● Other rights are preconditions for the enjoyment of the right to health
○ e.g. education, food, housing, social security, access to information, right to bodily integrity and privacy
Health and other rights: Interdependence and indivisibility

● Food, housing, education

● Health
● Education, work, participation
Examples of the linkages between health and human rights:

Universal Declaration of human rights, Article 25

● ”Everyone has the right to a standard of living adequate for the health and well-being of himself and of his
family, including food, clothing, housing and medical care …
● Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out
of wedlock, shall enjoy the same social protection.”
32
 ● Right to health as part of the right to an adequate standard of living
● Focus on vulnerable groups

ICESCR, Article 12 (1)

● ”The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health.”
○ Health care
○ Underlying preconditions for health
○ Non-didcrimination
○ A relative standard

ICESCR, Article 12, is the general provision in international human rights law on the right to health

ICESCR, Article 12 (2)

● In Para. 2, the steps to be taken by the States Parties to achieve the full realization of the right to health is
mentioned, and shall include those necessary for:
○ (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy
development of the child; (b) The improvement of all aspects of environmental and industrial
hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other
diseases; (d) The creation of conditions which would assure to all medical service and medical
attention in the event of sickness.

CEDAW art 12 (1)

● ”States Parties shall take all appropriate measures to eliminate discrimination against women in the field of
health care in order to ensure, on a basis of equality of men and women, access to health care services, including
those related to family planning.”

Special protection for women

CEDAW Art 12(2)

● «Notwithstanding the provisions of paragraph 1 of this article, States Parties shal ensure to women appropriate
services in connexion with pregnancy, confinement and the post- natal period, granting free services where
necessary, as well as adequate nutrition during pregnancy and lactation.»

CRC art 24 (1)

● ”States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health
and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that
no child is deprived of his or her right of access to such health care services.”

Special protection for children

Biomedicine Convention, Article 3

33
 ● «Parties, taking into account health needs and available resources, shall take appropriate measures with a
view to providing, within their jurisdiction, equitable access to health care of appropriate quality».

Regional instrument for Europe

EU-Charter of Fundamental rights, Art. 35

● “Everyone has the right of access to preventive health care and the right to benefit from medical treatment
under the conditions established by national laws and practices. A high level of human health protection shall
be ensured in the definition and implementation of all Union policies and activities”.

European Social Charter art 11

● ”With a view to ensuring the effective exercise of the right to protection of health, the Contracting parties
undertake, either directly or in co-operation with public or private organisations, to take appropriate measures
designed inter alia”:
○ To remove as far as possible the causes of ill-health
○ To provide advisory and educational facilities for the promotion of health and the encouragement of
individual responsibility in matters of health
○ To prevent as far as possible epidemic, endemic and other diseases

Duties of conduct

ESC case law, breach of Art 11

● Marangoupoulus v Greece (2007)

○ Healthy living environment and working conditions
● European Roma Rights Centre v Bulgaria (2008)
○ Access to healthcare services for Roma population in Bulgaria
● INTERIGHTS v Croatia (2007)
○ Access to sexual and reproductive health education in schools

FIDH v Greece (2011)

● The complaint was registered on 8 July 2011. It concerns the effects of massive environmental pollution on
the health of persons living near the Asopos river and in proximity to the industrial zone of Inofyta, located 50
km north of Athens. The complainant organisation alleged that the State had not taken adequate measures
to eliminate or reduce the dangerous effects and to ensure the right to health protection, in violation of
Article 11 (right to health) of the Social Charter.

Useful webpage:
http://www.coe.int/t/dghl/monitoring/socialcharter/complaints/complaints_EN.asp

European Social Committee (2013)

34
 ● The Committee notes with concern the delay and deficiencies in the implementation of existing regulations and
programmes, as already denounced by a number of judicial decisions at national level. Moreover, the Committee
considers that, due to the scale of the pollution as well as the fact that the problems have been known for a
long time, the public information initiatives were insufficient. Indeed these were initiated too late and, in
most cases, were sporadic and insufficiently coordinated. Therefore, the Committee concluded Greece’s failure
to fulfill its obligations under articles 11§1 and 11§3 of the Charter, by failing to take appropriate measures
to remove as far as possible the causes of ill-health and prevent the diseases and to provide advisory and
educational facilities for the promotion of health, as expressed in article 11§2.

Öneryildiz v Turkey (ECtHR) 2004)

● Accident-related death at a rubbish dump

○ Positive obligation of the State to take all appropriate steps to safeguard life and put in place a
legislative and administrative framework designed to provide effective deterrence against threats
to the right to life

ICESCR, Article 12 (1)

● ”The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health.”
○ Health care
○ Underlying
○ preconditions for health
○ Non-didcrimination
○ A relative standard
● Obligation of state conduct: to respect, protect and fulfil the rights of everyone to …
○ Not individual entitlements based on Art 12

ICESCR, Article 12 (2)

● In Para. 2, the steps to be taken by the States Parties to achieve the full realization of the right to health is
mentioned, and shall include those necessary for:
● (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy
development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c)
The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation
of conditions which would assure to all medical service and medical attention in the event of sickness.

State obligations: Overview

● Absence of harmful actions (”respect”)

● Non-discrimination (”respect”)
● Underlying preconditions for health (health determinants)
● Third parties ́ actions (”protect”)
● Legislation, programs, education and services (”protect”, ”fulfil”)
● Core content vs progressive realization

Important sources

35
 ● Not legally binding, but authoritative sources
○ General Comment No 14 (2000) by the UN Committee on Economic, Social and Cultural Rights
○ General Recommendation No. 24 (1999) by the CEDAW Committee
○ General Recommendation No. 4 (2003) by the Committee on the Rights of the Child

«Right to health»: Content

● Access to health services, underlying preconditions for health, and non-discrimination

○ Not a right to be healthy!
● Freedoms and entitlements
○ Freedom from harmful interferences (torture, non- consensual treatment and experimentation, harmful
practices)
○ Sexual and reproductive freedom, including access to sexual and reproductive health services
○ Access to a system of health protection which provides equal opportunity for people to enjoy the
highest attainable level of health

Underlying preconditions for health

● Safe drinking water, adequate sanitation, healthy environmental and occupational conditions, access to health
education and information
○ Case law (slide 27, 28, 29)
The ”negative” aspect of the right to health

● Freedom from unjustified coercion, torture and other harmful actions (physical integrity)
○ Forced sterilizations, abortions
○ Coercive treatment
○ Non-consensual treatment
○ Unvoluntary harmful practices (women and children)
■ Female genital mutilation, forced/child marriages

CRC: Children

● Article 19 (1): ”States Parties shall take all appropriate legislative, administrative, social and educational
measures to protect the child from all forms of physical or mental violence, injury or abuse ... maltreatment
or exploitation, including sexual abuse ...”
● Article 24 (3): ”States Parties shall take all effective and appropriate measures with a view to abolishing
traditional practices prejudicial to the health of children.”

Non-discrimination (core obligation)

● ”The States Parties … undertake to guarantee that the rights enunciated in the present Covenant will be exercised
without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status”.
● The duty of non-discrimination in relation to health must be respected by all states
● Ex: Taliban ́s prohibition for male doctors to treat women in the context of lack of female doctors, resulting in
no adequate care for women

36
 ● Ex: Lack of adequate services for particular groups (immigrants, prisoners, psychiatric patients, older persons)

ICESCR, Art 2 (2)

Non-discrimination, in law and in practice

● “All persons are equal before the law and are entitled without any discrimination to the equal protection of the
law.”

ICCPR, Article 26

● ”a state may violate the right to health if it structurally fails to offer adequate health services to certain
segments of society, such as prisoners, illegally residing immigrants or women”.

Toebes 2001 p 181, in Eide et al.

Patient groups that often face discrimination

● Prisoners and detainees

● Ethnic minorities
● Indigenous peoples
● Disabled persons
● Older persons
● Asylum-seekers
● Refugees
● Migrant workers
● Women and children

Wilson, 2009, in Clapham & Robinson

Non-discrimination: CEDAW Committee

● “Measures to eliminate discrimination against women are considered to be inappropriate if a health care
system lacks services to prevent, detect and treat illnesses specific to women. …
● When possible, legislation criminalizing abortion could be amended to remove punitive provisions imposed on
women who undergo abortion.” More on 26.3.20 (sexual and reproductive health rights)

Gen. Rec. 24, paras. 11 and 31c.

”the highest attainable standard of health” (ICESCR Art 12)

● Depends on
○ Socio-economic conditions and available resources in the state
○ Individual factors (biology, gender, lifestyle, social class, etc)
○ State obligations
■ Core content (immediate)
■ Progressive realization (over time)

37
ICESCR, Article 2(1) on progressive realization

● “Each State Party to the present Covenant undertakes to take steps, individually and through international
assistance and co-operation, especially economic and technical, to the maximum of its available resources,
with a view to achieving progressively the full realization of the rights recognized in the present Covenant by
all appropriate means, including particularly the adoption of legislative measures.”
○ Core content vs. full realization
○ Obligations of conduct

CESCR Committee on state obligations

● Secure access to services and health determinants

○ ”a system of health protection”
○ ”timely and appropriate health care”
○ underlying determinants of health (access to safe water, adequate sanitation, food, housing,
information, etc)
○ ”the enjoyment of facilities, goods, services and conditions necessary for the realization of the highest
attainable standard of health”

● The AAAQ requirements (availability, accessibility, acceptability, quality)

General Comment No. 14

Underlying preconditions for health

● Safe drinking water, adequate sanitation, healthy environmental and occupational conditions, access to health
education and information
○ Core content
■ Basic health education, including methods of prevention and treatment, food supply and proper
nutrition, basic supply of safe water and basic sanitation

”Core content” of state obligations

● A set of elements that must be guaranteed immediately and under all circumstances, irrespective of resources
● Should be realized immediately, while the remainder of the right is to be realized progressively (cf. Article
2.1)

ICESCR Committee (GC 14) on core content

● Ensure access to health care services and goods based on non- discrimination (cf. Article 2.2)
○ Focus on vulnerable groups
● Ensure access to a basic standard of nutrition (freedom from hunger)
● Ensure access to basic housing and sanitation, clean water
● Ensure access to essential medicines in accordance with WHO ́s ”Action Programme on Essential Drugs”
● Ensure equality in the distribution of health care services and drugs
● Develop a national health strategy

38
Core content

● ”Appropriate treatment of common diseases and injuries”, ”provision of essential drugs”

○ This goes beyond emergency treatment

(Toebes, in Eide et al 2001, p 189)

Core state obligations (CESCR Committee)

● ”minimum essential level”, including essential medicines and essential primary care, must be provided
● Reproductive and maternal health care ”are obligations of comparable priority”
● ”Even in times of severe resource constraints ... the vulnerable members of society can and indeed must be
protected by the adoption of relatively low-cost targeted programmes”
● A State party ”cannot, under any circumstances whatsoever, justify its non-compliance with the core obligations
... which are non- derogable”.

Gen. Com. 3 and Gen. Com 14.

Core state obligations

● Even where available resources are demonstrably inadequate, however, the obligation remains for the State
party to “strive to ensure the widest possible enjoyment of the relevant rights under the prevailing
circumstances.”

CESCR Committee, General Comment No. 3, Para. 11

ICESCR Article 2.1

● ”Each State Party ... undertakes to take steps, individually and through international assistance and co-operation
... to the maximum of its available resources, with a view to achieving progressively the full realization of the
rights recognized in the present Covenant by all appropriate means ....”
● Strict requirement of active efforts by the state to secure health, at least the minimum conditions

The relevance of state development and resources

● ”the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”
● Core content
● Progressive realization
● Country-specific ”bench- marks” (minimum standards and goals based on the level of development in a
particular state)

Universality in relation to core content

Relativity due to differences in available resources and possibility

ICESCR art 12 (2)

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 ● ”The steps to be taken by the States Parties to the present covenant to achieve the full realization of this right
shall include those necessary for”
○ Prevention of the still-birth rate and of infant mortality and for the healthy development of the child
○ Improvement of environmental and industrial hygiene
○ Prevention, treatment and control of epidemic, endemic, occupational and other diseases
○ The creation of conditions which would assure to all medical service and medical attention in the event
of sickness

Margin of appreciation and state obligations

● “The most appropriate feasible measures to implement the right to health will vary significantly from
one State to another. Every State has a margin of discretion in assessing which measures are most suitable
to meet its specific circumstances. The Covenant, however, clearly imposes a duty on each State to take
whatever steps are necessary to ensure that everyone has access to health facilities, goods and services so
that they can enjoy, as soon as possible, the highest attainable standard of physical and mental health.
This requires the adoption of a national strategy to ensure to all the enjoyment of the right to health, based on
human rights principles which define the objectives of that strategy, and the formulation of policies and
corresponding right to health indicators and benchmarks. The national health strategy should also identify
the resources available to attain defined objectives, as well as the most cost-effective way of using those
resources.”

General Comment No. 14, para. 53

The highest attainable standard of health: AAAQ requirements

● Appropriate health services and facilities, and underlying health determinants, must be
○ Available
○ Accessible
○ Acceptable
○ Of good quality

General Recommendation No 14

Availability

● Functioning public health and health care facilities, goods and services, as well as underlying preconditions for
health, must be in place/available in sufficient quantity within the State party. The precise nature of these may
vary depending on factors like development and available resources

Accessibility, as developed in particular by the CESCR Committee

● Everyone, without discrimination, must have access to appropriate services

○ Non-discrimination (for all, in law and de facto, without discrimination, especially with regard to
vulnerable and marginalized groups)
○ Physical accessibility (within safe geographical reach)
○ Economic accessibility (affordable)
○ Information accessibility (seek, receive and impart health related information)

40
ICESC Committee on Norway (2013)

● The Committee pointed out that irregular migrants only have access to emergency health care, and
recommended the following:
● «The Committee recommends that the State party take steps to ensure that irregular migrants have access to all
the necessary health-care services, and reminds the State party that health facilities, goods and services should
be accessible to everyone without discrimination, in line with article 12 of the Covenant. The Committee
draws the State party’s attention to its general comment No. 14 (2000) on the right to the highest attainable
standard of health.»

Concluding observations on the fifth periodic report of Norway, 13 December 2013 (E/C.12/NOR/CO/5), para. 21
(similar in 2020)

CEDAW Committee: Accessibility

● “States parties should report on measures taken to eliminate barriers that women face in gaining access to
health care services and what measures they have taken to ensure women timely and affordable access to
such services. Barriers include requirements or conditions that prejudice women ś access such as high fees for
health care services, the requirement for preliminary authorization by spouse, parent or hospital authorities,
distance from health facilities and absence of convenient and affordable public transport.”

Gen. Rec. 24, Para. 21.

CEDAW Committee: Accessibility

● “States parties should include in their reports how they supply free services where necessary to ensure safe
pregnancies, childbirth and post-partum periods for women. Many women are at risk of death or disability from
pregnancy-related causes because they lack the funds to obtain or access the necessary services, which
include ante-natal, maternity and post-natal services. The Committee notes that it is the duty of States parties to
ensure women ́s rights to safe motherhood and emergency obstetric services and they should allocate to
these services the maximum extent of available resources.”

Gen. Rec. 24, Para. 27.

ECtHR case law

● Mehmet Şenturk and Bekir Şenturk v. Turkey (2013): Pregnant woman was denied emergency care due to lack
of payment. The Court found a violation of Article 2 (right to life), due to:
○ “a series of misjudgments by medical staff at different hospitals and the subsequent failure to provide
her with emergency medical treatment when her condition was known to be critical. The Court held
that the deceased had been the victim of blatant shortcomings on the part of the hospital authorities and
had been denied the possibility of access to appropriate emergency treatment”.

Press release issued by the Registrar of the Court, ECHR 107 (2013), 09.04.2013

41
 ● Lopes de Sousa Fernandes v. Portugal (2013) indicates a high threshold for state responsibility for violating
ECHR Article 2 beyond rejecting emergency care:
○ “the dysfunction at issue must be objectively and genuinely identifiable as systemic or structural ...
and must not merely comprise individual instances where something may have been dysfunctional
in the sense of going wrong or functioning badly ... there must be a link between the dysfunction
complained of and the harm which the patient sustained”.

Para 195-196

Acceptability

● Health services must be respectful of medical ethics and be culturally appropriate (respectful of the culture of
individuals, minorities, peoples and communities), sensitive to gender and life-cycle requirements, respect
confidentiality, and designed to improve the health status of those concerned

CEDAW Committee: Acceptability and dignity

● “States parties should also report on measures taken to ensure access to quality health care services, for
example, by making them acceptable to women. Acceptable services are those which are delivered in a way
that ensures that a woman gives her fully informed consent, respects her dignity, guarantees her confidentiality
and is sensitive to her needs and perspectives.”

Gen. Rec. 24, Para. 22.

Quality

● Health services must be of a good medical and scientific quality

○ Skilled medical personnel
○ Scientifically approved and unexpired drugs and hospital equipment
○ Safe water
○ Adequate sanitation

ICESC Committee on Norway (2013), cont.

● The Committee points out groups with lack of access to the Norwegian health system, or with insufficient
services. Children and young asylum seekers in reception centres lack timely access to quality services.
● Due to lack of translation services, also persons with Sami and minority background lack proper access to
the Norwegian health services
● Prisoners with serious mental health problems lack access to psychiatric health services

State challenges

● Each country has different challenges

● Norway
○ In general, a solid public health system and regulation of rights
○ Poor health and treatment of certain groups, e.g persons with drug addiction and prisoners
○ Serious problems in municipality services to older and disabled persons

42
 ○ Internet bullying a challenge to the mental health and well-being of young persons

● Particular challenges to the enjoyment of the right to health in your own country?
○ Systemic challenges which exclude certain groups from health services?
○ Other barriers faced by certain groups, like immigrants,the elderly, young people, disabled persons,
women...?
State obligations

● State obligations (concerning all organs and branches of the state)

○ Respect
○ Protect
○ Fulfil

● Both «positive» and «negative» obligations

Respect

● Refrain from interfering – directly or indirectly – with the enjoyment of the right
● Examples of interference: discrimination in law and practice, laws in conflict with the right to health,
interference with healthcare institutions and services providing care for vulnerable groups, health damaging
pollution

Protect

● Take measures to prevent non-state actors from interfering with the enjoyment of the right
● E.g. criminalization of harmful actions and practices, implementation of regulations and policies, prevent
discriminatory practices, establish control systems, etc

Fulfil

● Implementation in law and practice

● Adopt appropriate legislative, administrative, political, budgetary and other measures to ensure full realisation
of the right
○ E.g facilitate, promote and provide healthcare services to all

Summary

● Broad concept of the right to health: Interdependence of rights

● Negative and positive aspects of rights and state obligations
● State obligations: respect, protect, fulfil
● Core obligations
● Progressive realization of the right to health
● Vulnerable groups

43
CLASE 4
8.9.22: Health protection, privacy and informed consent

● Overview
● Autonomy and dignity
● Liberty, security, privacy
● Autonomy and informed consent
○ Convention on Human Rights and Biomedicine
● Case law on informed consent
● Vulnerable groups not able to consent on their own
● State obligations

The welfare state and the protection of both civil and social rights

● The welfare state

○ Advancement of social goals, including health protection
○ Protection of civil liberty- and autonomy rights

● Health protection
○ Access to adequate services, health preconditions
○ Respect for individual autonomy, privacy and liberty

General legal principles in the field of health protection

● Protection of human dignity and integrity

○ Access to necessary preconditions for health, and adequate services
○ Equal treatment and non-discrimination
○ Respect for individual autonomy, privacy, liberty

Dignity and autonomy

● Human dignity is the fundamental value to be protected by human rights

● Immanuel Kant (1724–1804): German philosopher, a central figure of modern philosophy
○ While everything has a given price, the human being has dignity and is otherwise priceless (Kant)
○ Respect for human dignity is an absolute requirement under all circumstances
○ Respect for autonomy and integrity is an essential aspect of protecting a person ́s dignity
○ Human dignity is not to be equaled with the actual capacity to exercise autonomy

Human rights as outcomes of human dignity

● Human rights ”derive from the inherent dignity of the human person”.
● Implication
○ Human dignity is the essential value to be protected by all human rights provisions

Preambles, ICCPR and ICESCR

44
Dignity as an absolute requirement in all treatment

● “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
● An absolute right, no exceptions allowed
● Price v UK (2001), degrading treatment of a physically handicapped woman in prison (lack of facilities and
recognition of her special needs)
○ ”positive” rights/services necessary

Art 7 ICCPR, Art 3 ECHR

...also in prisons and other institutions

● ”All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity
of the human person.”

ICCPR, Article 10 (1)

Human dignity and non- discrimination

● ”Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone,
without discrimination, respect for their integrity and other rights and fundamental freedoms with regard
to the application of biology and medicine.”

Convention for the protection of Human Rights and Dignity of the Human Being with regard to the Application of
Biology and Medicine: Convention on Human Rights and Biomedicine (Oviedo, 4.IV.1997) Article 1

The right to liberty and security

● ”Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure prescribed by law:
● …
● the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of
unsound mind ... ”

ECHR, Article 5 (1, litra e). Similar provision in ICCPR, Article 9

The right to privacy

● ”Everyone has the right to respect for his private and family life...”
● ”There shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the interests of national security, ... for
the protection of health or morals, or for the protection of the rights and freedoms of others”

ECHR, Article 8 (1 and 2). Similar provision in ICCPR, Article 17

45
Informed consent

● «The imposition of medical treatment without the consent of a mentally competent adult patient would
interfere with his or her right to physical integrity and impinge on the rights protected under. Article 8 of the
Convention» [right to privacy]

Jehovah's ́s Witnesses of Moscow v Russia, 2010

Autonomy

● Protecting autonomy and integrity is an important way of protecting human dignity

● Respect for individual autonomy and integrity is a core value in western civilization and human rights law

Autonomy (self- determination) in healthcare

● Background: The long history of paternalism in the healthcare sector

○ History of medical and experimental interventions based on medical and scientific objectives
○ Individual consent based on sufficient information seen as the individual ́s way of protecting her- or
himself against unwanted interventions
● Individual autonomy is protected through the doctrine of informed consent
Medical research

● ”No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular,
no one shall be subjected without his free consent to medical or scientific experimentation.”

ICCPR, Article 7

Nuremberg Medical Trial after World War II (Oct 1946-Aug 1947)

● Twenty-tree German physicians and scientists were accused of performing medical experiments on
concentration camps inmates and other human subjects between 1933 and 1945
● The trial documented murders, cruelties, tortures, atrocities, and other inhuman acts as a result of these
experiments

The Nazi Doctors: Medical Killing and the Psychology of Genocide (Lifton, 1988)

Informed consent

● Informed consent conceptualized as a kind of ”last defense” for the individual

● Lack of trust in the medical profession after World War II resulted in strict regulation of medical research based
on informed consent from the human subject

Medical treatment

● History: The traditional treatment model

○ Rights of patients defined by professional norms, guidelines and standards

46
 ○ Patients had a right to good medical treatment, according to standards developed by the medical
profession
○ The right to confidentiality followed from the contract between doctor and patient
○ Patient autonomy was not part of this tradition

Medical treatment and informed consent

● Today: Protection of individual autonomy is the legal starting point

○ Human dignity is protected through the protection of individual autonomy
○ Informed consent is the main rule
● Exceptions from informed consent
○ Must be regulated by law and justified by strong individual or social needs (ECHR Art. 8 (2)

Biomedicine Convention, Article 5

● An intervention in the health field may only be carried out after the person concerned has given free and
informed consent to it. This person shall beforehand be given appropriate information as to the purpose and
nature of the intervention as well as on its consequences and risks.
● Negative and positive obligations
○ Refrain from interventions not based on consent
○ Provide appropriate information
«Intervention»

● Covers all medical acts, including for purposes of prevention, diagnosis, treatment or rehabilitation, or in a
research context (experimental treatment)
● Forms of consent
○ Express (invasive interventions)
○ Implied (routine interventions)

Explanatory report to the Biomedicine Convention, paras. 34, 37

Norwegian Patient Rights Act, § 4-1

● Health care may be given only on the basis of the consent of the patient, unless a particular law or other legal
basis provides an exemption
● For the consent to be valid, the patient must receive necessary information about his or her condition and about
the content of the proposed medical procedures
● The consent must be voluntary and valid
○ Not the result of coercion, fraud, lack of understanding or competence

The right to privacy

● ”Everyone has the right to respect for his private and family life...”
● ”There shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the interests of national security, ... for
the protection of health or morals, or for the protection of the rights and freedoms of others”
Art 8 ECHR (paras. 1 and 2)

47
 ● A right to autonomy with regard to medical interventions is protected by Art 8 ECHR
○ Pretty v the UK (2002)
○ Storck v Germany (2005)
○ Glass v UK (2004)
○ Jehova ́s Witnesses of Moscow v Russia (2010)
■ Also Articles 9 (religious freedom) and 11 (freedom of association) of ECHR
Patients treated against their will
Pretty v the UK (2002)

● 43 year old woman with a progressive neuro-degenerative disease at advanced and devastating stage. Mentally
competent, requests to end her life by her husband ́s assistance
● “The very essence of the Convention is respect for human dignity and human freedom ... In an era of
growing medical sophistication combined with longer life expectancies, many people are concerned that they
should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which
conflict with strongly held ideas of self and personal identity” (para. 65).
● The Court concluded that no right to die, whether at the hands of a third person or with the assistance of a public
authority, can be derived from Article 2 of the ECHR (right to life). As concerns Pretty's right to respect for
private life under Article 8, the Court considered that the interference in this case might be justified as
“necessary in a democratic society” for the protection of the rights of others (para. 78)

Storck v Germany (2005)

● Involuntary confinement in psychiatric hospital from 1977-79 without a court order was a violation of Article
8 («in accordance with the law”, cf. Article 8.2. Also a violation of Article 5 on liberty)
● All compulsory interventions raise serious concern under Article 8 of the ECHR

Glass v UK (2004)

● Treatment of a child against the will of the mother

● “The Court would further observe that the facts do not bear out the Government’s contention that the second
applicant [the mother]had consented to the administration of diamorphine to the first applicant [the child]
in the light of the previous discussions which she had had with the doctors. Quite apart from the fact that those
talks had focused on the administration of morphine to the first applicant [the child], it cannot be stated with
certainty that any consent given was free, express and informed. In any event, the second applicant clearly
withdrew her consent, and the doctors and the Trust should have respected her change of mind and
should not have engaged in rather insensitive attempts to overcome her opposition” (para. 82).

Jehovah's ́s Witnesses of Moscow v Russia (2010)

● “The very essence of the Convention is respect for human dignity and human freedom and the notions of
self- determination and personal autonomy are important principles underlying the interpretation of its
guarantees (see Pretty ...). The ability to conduct one's life in a manner of one's own choosing includes the
opportunity to pursue activities perceived to be of a physically harmful or dangerous nature for the
individual concerned. In the sphere of medical assistance, even where the refusal to accept a particular treatment
might lead to a fatal outcome, the imposition of medical treatment without the consent of a mentally

48
 competent adult patient would interfere with his or her right to physical integrity and impinge on the rights
protected under Article 8 of the Convention” (para. 135).

Articles 9 and 11 of ECHR

● “The freedom to accept or refuse specific medical treatment, or to select an alternative form of treatment, is
vital to the principles of self-determination and personal autonomy. A competent adult patient is free to
decide, for instance, whether or not to undergo surgery or treatment or, by the same token, to have a
blood transfusion. However, for this freedom to be meaningful, patients must have the right to make choices
that accord with their own views and values, regardless of how irrational, unwise or imprudent such choices
may appear to others. Many established jurisdictions have examined the cases of Jehovah's Witnesses who
had refused a blood transfusion and found that, although the public interest in preserving the life or health of a
patient was undoubtedly legitimate and very strong, it had to yield to the patient's stronger interest in directing
the course of his or her own life ...” (para. 136).
● “It was emphasised that free choice and self- determination were themselves fundamental constituents of life
and that, absent any indication of the need to protect third parties – for example, mandatory vaccination
during an epidemic, the State must abstain from interfering with the individual freedom of choice in the
sphere of health care, for such interference can only lessen and not enhance the value of life (see the Malette
v. Shulman and Fosmire v. Nicoleau judgments, cited in paragraphs 85 and 87 above).”

Para 136 of the case of Jehovas

Right to information

● Important aspect of autonomy protection

● “An intervention in the health field may only be carried out after the person concerned has given free and
informed consent to it. This person shall beforehand be given appropriate information as to the purpose
and nature of the intervention as well as on its consequences and risks.
Art 5 Biomedicine Convention

Trocellier v France (2006)

● Contracting states must «adopt the necessary regulatory measures to ensure that doctors consider the
foreseeable consequences of the planned medical procedures on their patients physical integrity and to
inform patients of these beforehand in such a way that they are able to give informed consent».

Free and informed consent

● Objective information from the responsible health care professional as to the nature and the potential
consequences of the planned intervention or of its alternatives
● No pressure from anyone
● Information about relevant facts regarding the intervention being contemplated
● Information must include the purpose, nature and consequences of the intervention, and the risks involved

Explanatory Report to the Biomedicine Convention, para. 35

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Informed consent (2)

● Information on the risks involved in the intervention or in alternative courses of action must cover not only the
risks inherent in the type of intervention contemplated, but also any risks related to the individual characteristics
of each patient, such as age or the existence of other pathologies
● Requests for additional information made by patients must be adequately answered
● Information must be sufficiently clear and suitably worded for the person who is to undergo the intervention
● The patient must be put in a position, through the use of terms he or she can understand, to weigh up the necessity
or usefulness of the aim and methods of the intervention against its risks and the discomfort or pain it will cause

Explanatory Report to the Biomedicine Convention, paras. 35-36

Emergency situations

● “When because of an emergency situation the appropriate consent cannot be obtained, any medically
necessary intervention may be carried out immediately for the benefit of the health of the individual concerned.”

Biomedicine Convention, Article 8

Previously expressed wishes

● “The previously expressed wishes relating to a medical intervention by a patient who is not, at the time of the
intervention, in a state to express his or her wishes shall be taken into account.”
Article 9

Vulnerable groups

● Children
● Adults without capacity to consent due to various forms of cognitive impairment
● Persons with serious mental illness
● Tension between the rights of autonomy, life and health constitutes a constant dilemma in the provision of
many welfare services
○ State obligation to «protect» vulnerable groups from rights violations

Protection of persons who have a serious mental disorder

● “Subject to protective conditions prescribed by law, including supervisory, control and appeal procedures, a
person who has a mental disorder of a serious nature may be subjected, without his or her consent, to an
intervention aimed at treating his or her mental disorder only where, without such treatment, serious harm
is likely to result to his or her health.”

Biomedicine Convention, Article 7

Protection of persons not able to consent (health care)

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 ● “Where, according to law, an adult does not have the capacity to consent to an intervention because of a
mental disability, a disease or for similar reasons, the intervention may only be carried out with the
authorisation of his or her representative or an authority or a person or body provided for by law.
● The individual concerned shall as far as possible take part in the authorisation procedure.”
● Domestic law must determine and specify the reasons for depriving the person his/her right to consent, within
the framework of the Convention
● Proxy consent of representative
● Participation of the person concerned in the decision making process as far as possible (patient empowerment)

Biomedicine Convention, Article 6.3

Protection of children

● “Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention
may only be carried out with the authorisation of his or her representative or an authority or a person or body
provided for by law.
● The opinion of the minor shall be taken into consideration as an increasingly determining factor in
proportion to his or her age and degree of maturity.”

Biomedicine Convention, Article 6.2

State obligations

● State obligations (concerning all organs and branches of the state)

○ Respect
○ Protect
○ Fulfil

● Both «positive» and «negative» obligations

Respect

● Refrain from interfering – directly or indirectly – with the enjoyment of the right
○ to healthcare, autonomy, privacy …
○ Examples of interference in privacy: allowing healthcare institutions and personnell to violate the
autonomy of patients without legal basis

Protect

● Take measures to prevent non-state actors from interfering with the enjoyment of the right
○ E.g. adopt regulations and take actions against hospitals that violate patient autonomy or the right to
confidentiality

Fulfil

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 ● Adopt appropriate legislative, administrative, political, budgetary and other measures to ensure full realization
of the rights
○ E.g facilitate and provide adequate non- invasive healthcare services, educate and train health personnel
in the best available practices and procedures regarding autonomy and privacy protection

Summary

● Human dignity is the core value in all human rights

● Respect for autonomy, privacy and liberty are essential in all health care
● Human rights provide a normative framework for the protection of both the right to health and civil rights of
liberty and autonomy, according to individual needs
● Looking into case law can help you to understand the difficulties in finding the fair balance between individual
and social interests (more on this on 22/9)

CLASE 5
13.9.22: Adequate standard of living, education and work - welfare duties

● Background and objectives

● Central provisions in international human rights law
● Aspects and scope of the rights
● State obligations/welfare duties
○ Obligations of conduct and of result
○ Core obligations, non-discrimination
○ Indicators, assessment and evaluation of state compliance

Adequate standard of living

● Background: UDHR provisions

● ICESCR Article 11
○ Components of the right,
○ Right to freedom from hunger
● State (subsidiary) obligations
○ Individual responsibility
○ Parental responsibility

Human dignity and social citizenship

● Everyone, as a member of society, has the right to social security and is entitled to realization, through national
effort and international co- operation and in accordance with the organization and resources of each State, of
the economic, social and cultural rights indispensable for his dignity and the free development of his
personality.

UDHR Article 22

UDHR and the four freedoms

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 ● ”... the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from
fear and want has been proclaimed as the highest aspiration of the common people …
● the peoples of the United Nations ... have determined to promote social progress and better standards of life
in larger freedom” (preamble)
● A holistic human rights philosophy, based on the notion of equally important and interrelated human rights.
Covers civil, political and socio-economic rights

UDHR Article 25 – contains a definition

1. Everyone has the right to a standard of living adequate for the health and well- being of himself and of his
family, including food, clothing, housing and medical care and necessary social services, and the right to
security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of
wedlock, shall enjoy the same social protection.

ICESCR Article 11(1). Components of the right

1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for
himself and his family, including adequate food, clothing and housing, and to the continuous improvement
of living conditions. The States Parties will take appropriate steps to ensure the realization of this right,
recognizing to this effect the essential importance of international co-operation based on free consent.

Other important components?

ICESCR Article 11(2): freedom from hunger and state obligations

2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from
hunger, shall take, individually and through international co- operation, the measures, including specific
programmes, which are needed:
a. To improve methods of production, conservation and distribution of food by making full use of
technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and
by developing or reforming agrarian systems in such a way as to achieve the most efficient
development and utilization of natural resources;
b. Taking into account the problems of both food- importing and food-exporting countries, to ensure an
equitable distribution of world food supplies in relation to need.

CRC Article 27

1. States Parties recognize the right of every child to a standard of living adequate for the child's physical,
mental, spiritual, moral and social development.
2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities
and financial capacities, the conditions of living necessary for the child's development.
3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures
to assist parents and others responsible for the child to implement this right and shall in case of need provide
material assistance and support programmes, particularly with regard to nutrition, clothing and housing.

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Individual duties

● Individuals have a primary duty to take care of themselves

● Parents are responsible for their children
● Only when individuals are not able to provide for themselves and their children, states are obligated to secure
basic needs (subsidiary duty)

A relative standard

● «Adequate» food, clothing, housing, healthcare

○ Individual and state variations
● Essential point: «Everyone should be able to enjoy their basic needs under conditions of dignity» (Eide 2018)
● A relative standard depending on the level of development and available resources in each state
● «Appropriate» measures

ICESCR Article 2 (state obligations)

● ”Each State Party ... undertakes to take steps, individually and through international assistance and co-operation
... to the maximum of its available resources, with a view to achieving progressively the full realization of the
rights recognized in the present Covenant by all appropriate means ....”
○ Strict requirement of active efforts by the state to secure convention rights, at least the core content

● Duty of non-discrimination
● Respect, protect, fulfil

Evaluation of state behavior

● Reasonableness
○ Has the state taken reasonable measures to realize the right?

● Prioritization
○ Has the state developed a strategy of prioritization, and defined certain welfare duties as legally binding
on the state?

● Democratic dialogue
○ Does the state provide an open, democratic discussion on how to spend scarce resources?

Arosemena (2014) Rights, Scarcity, and Justice pp. 93-123

Education. Historic background

● Before the Enlightenment

○ Transmission of knowledge and practical skills from one generation to the next took place in the family
and in church (Europe)
● 18th century
○ Public interest and regulation of education provided by parents, the Church and other institutions
● 19th century

54
 ○ State responsibility for mandatory schools became common
○ 1936: An explicit right to free and compulsory education was for the first time laid down in the Sovjet
Union
○ 1948: Universal Declaration of Human Rights art 26

Relationship with other rights

● Education is a precondition for the enjoyment of other human rights

○ Freedom of thought, opinion and expression, political participation, work, to take part in social and
cultural life, to enjoy scientific progress and to receive higher education

● Other human rights are preconditions for the right to education

○ Health, adequate standard of living, freedom of thought, expression and association

Education as a ”first generation” right

● Related to liberal ideas against interference by the Church or others

○ Freedom of science, research and teaching

● ECHR, protocol 1 nº 2: No person shall be denied the right to education…

○ Guarantees equal access to existing schools
○ Does not oblige states to establish schools

Educational freedom for parents

● ”No person shall be denied the right to education. In the exercise of any functions which it assumes in relation
to education and to teachinig, the State shall respect the right of parents to ensure such education and teaching
in conformity with their own religious and philosophical convictions.”

Protocol no 1 to ECHR, article 2

Education as a ”second generation” human right

● A social and cultural right

● A basic requirement for development of the human personality and for social participation
● Depends on positive state action for universal enjoyment, i.e. by public schools free of charge and accessible
for all

Objectives

● Several theories
○ Religious (be able to read the Bible) Liberation of the child (”Emile”, Rousseau)
○ Individual needs and development: right to freely develop his/her personality and participate in
social affairs
○ Social needs: contribute to society, develop high moral standards and tolerance in society

UDHR Article 26(2), objectives

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 ● “Education shall be directed to the full development of the human personality and to the strengthening of
respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and
friendship among all nations, racial or religious groups, and shall further the activities of the United Nations
for the maintenance of peace.”
● Education as a social tool

Objectives: CRC, Article 29(1)

● ”States Parties agree that the education of the child shall be directed to:
○ The development of the child ́s personality, talents and mental and physical abilities to their fullest
potential;
○ The development of respect for human rights and fundamental freedoms …
○ The development of respect for the child ́s parents, his or her own cultural identity, language and
values, for the national values of the country in which the child is living, the country from which he
or she may originate, and for civilizations different from his or her own;

Codifications

● UDHR art 26
● ICESCR art 13 and 14
● CRC art 28 and 29
● European Social Charter, art 15, 16, 17, 27
● EU Charter of Fundamental rights, art 14
● Basic principles and positive state obligations

Universal Declaration, Article 26(1): Components

● ”Everyone has the right to education. Education shall be free, at least in the elementary and fundamental
stages. Elementary education shall be compulsory. Technical and professional education shall be made
generally available and higher education shall be equally accessible to all on the basis of merit.”

ICESCR, Article 13(2): components

● ”The States parties ... recognize that, with a view to achieving the full realization of this right:
○ Primary education shall be compulsory and available free to all;
○ Secondary education ... including technical and vocational secondary education, shall be made
generally available and accessible to all by every appropriate means, and in particular by the
progressive introduction of free education;
○ Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate
means, and in particular by the progressive introduction of free education”

CRC, Article 28 (1)

● ”States Parties recognize the right of the child to education, and with a view to achieving this right progressively
and on the basis of equal opportunity, they shall, in particular:
○ Make primary education compulsory and available free to all;

56
 ○ Encourage the development of different forms of secondary education, including general and
vocational education, make them available and accessible to every child, and take appropriate
measures such as the introduction of free education and offering financial assistance in case of need;

CRC art 28, continued

● Make higher education accessible to all on the basis of capacity by every appropriate means;
● Make educational and vocational information and guidance available and accessible to all children;
● Take measures to encourage regular attendance at schools and the reduction of drop-out rates.”

CEDAW, Article 10

● ”States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure
to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men
and women:
○ a) The same conditions for career and vocational guidance …
○ b) Access to the same curricula, the same examinations…
○ c) The elimination of any stereotyped concept of the roles of men and women at all levels and in all
forms of education...”

Example from France

● Law banning students from wearing religious symbols in French public schools, including State primary and
secondary schools (”safeguard public order”)
○ Challenged by the Human Rights Committee, the CRC Committee and others
■ France must monitor the situation of in particular girls being expelled from schools as a result
of the legislation and ensure that they enjoy the right of access to education (CRC Committee,
2004, Concluding Observations, France)
ESC, art 17

● ”...the parties undertake, either directly or in co-operation with public and private organisations, to take all
appropriate and necessary measures designed:
○ 1.a. to ensure that children and young persons, taking account of the rights and duties of their parents,
have the care, the assistance, the education and the training they need…
○ 2. to provide to children and young persons a free primary and secondary education as well as to
encourage regular attendance at schools.”

ESC Committee

● Requires that compulsory education is prescribed by law for all children, is available for all children,
including the disabled and chronically ill children, and must extend at least to the time when a young person
may enter a work contract

ESC: Requirements of states

● Accessible and effective education system

● Full coverage

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 ● A functioning system of primary and secondary education
● Must be compulsory
● Attention to vulnerable groups
○ Special measures should not involve separate schools
● Measures to actively reduce school drop-outs and absence from school

Vocational guidance and training

● Article 9: The right to vocational guidance

● Article 10: The right to vocational training
○ The States parties undertake ”to provide or promote, as necessary, the technical and vocational
training of all persons, including the handicapped, in consultation with employer ́and
workers ó rganisations, and to grant facilities for access to higher technical and university education,
based solely on individual aptitude” (1).

European Social Charter (revised)

State obligations

● Respect
○ A negative duty to refrain from right violations (denial of the right to education, closing of schools)
○ Provide equal access to education
● Protect
○ A positive duty to protect the right to education from the infringing acts of third parties
○ Legislation and positive measures to ensure equal access
● Fulfil
○ Implementation of the right in law and practice
○ Development of national plans, budgets, practices
○ A positive duty to provide and facilitate adequate
● CRC art 28 (1) and ICESCR art 2 (1): Progressive realization
○ Take steps to the maximum of available resources
● The state is the duty holder and is obliged to provide for adequate educational facilities
○ However, all schools do not have to be public
○ Private schools may be established, as long as the obligations under international law are fulfilled

Obligations of result

● Stated in or based on the conventions, concerning

○ Primary education (free and compulsory for all)
○ Secondary education (available and accessible for all)
○ Higher education (available and accessible based on merit)
○ Fundamental education for persons who have not completed primary education
○ Special programmes for disabled persons
○ Elimination of ignorance and illiteracy

Obligations of conduct

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 ● ”Each State Party to the present Covenant which, at the time of becoming a Party, has not been able to secure
… compulsory primary education, free of charge, undertakes, within two years, to work out and adopt a
detailed plan of action for the progressive implementation, within a reasonable number of years, to be
fixed in the plan, of the principle of compulsory education free of charge for all.”

ICESCR art 14. See General Comment no 11: Such a failure would constitute a violation of the right to education

Violation

● If the State concerned has not taken steps to the maximum of its available resources to achieve progressively
the goal of eliminating illiteracy and providing compulsory and free primary education

How can violations be documented and established?

● Development of reliable indicators and national benchmarks

○ Distinguish lack of commitment from incapacity
○ Assess the situation in a given country in light of its recent past
■ Literacy rates, enrolment rates, completion and drop-out rates, public spending on education,
the overall socio-economic situation etc

Equal access and non- discrimination (”respect”)

● Non-discrimination is an overriding human rights principle

○ Discrimination de jure (in the law)
○ Discrimination de facto (in practice)

Tuition fees and student loans

● The Human Rights Committee urged the UK

○ ”to take effective measures to ensure that the introduction of tuition fees and student loans does not
have a negative impact upon students from less privileged background” (Concluding Observations,
1998)

The right to work and rights in work

● Important aspects of the right to work

○ Freedom from slavery and forced labour
○ Freedom from exploitation (child labour)
○ State obligations
■ Core content (non-discrimination, national strategy...)
■ Progressive measures
○ Non-discrimination
■ Men and women
■ Nationals and non-nationals

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The importance of the right to work

● Work: Most common source of individuals ́ income

● Essential for realizing other human rights (life, education, health, housing, food)
● Inherent part of human dignity (work as part of realizing your human potential)
● Contributes to the individual ́s survival, development and recognitioin in the community
● A tool for social inclusion

General Comment No. 18 (2005)

International instruments

● Universal Declaration of Human Rights (UDHR), Article 23

● International Covenant on Civil and Political Rights (ICCPR), Article 8.3a
● International Covenant on Economic, Social and Cultural Rights (ICESCR), Articles 6 and 7
● Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Article 11.1a
● Convention on the Rights of the Child (CRC), Article 32
● Migrant Workers Convention, Articles 11, 25, 26, 40, 52, 54
● ILO Convention No. 111 on Discrimination (Employment and Occupation)
● European Convention on Human Rights, Articles 4, 11
● European Social Charter, Articles 1, 2, 3, 4, 5, 6, 7, 8
● EU directives
● EU Charter of Fundamental Rights, Articles 15, 16, 23, 27, 28, 29, 30, 31, 32, 33

Constitutional protection?

● Norway
○ «It is the obligation of the State to take efforts in order for every able person to make his or her living
through work or business.» (§ 110)

UDHR, Article 23

● (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and
to protection against unemployment.
● (2) Everyone, without any discrimination, has the right to equal pay for equal work.
● (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family
an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
● (4) Everyone has the right to form and to join trade unions for the protection of his interests.

Prohibition of slavery and forced labour

1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.
2. No one shall be held in servitude
3. (a) No one shall be required to perform forced or compulsory labour;

ICCPR Article 8, ECHR Article 4, ESC Article 1

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ICCPR, Art 8, continued

● The term "forced or compulsory labour" in Art 8 does not include:

○ Any work or service normally required of a person who is under detention in consequence of a lawful
order of a court, or of a person during conditional release from such detention;
○ Any service of a military character and, in countries where conscientious objection is recognized, any
national service required by law of conscientious objectors;
○ Any service exacted in cases of emergency or calamity threatening the life or well-being of the
community;
○ Any work or service which forms part of normal civil obligations.

CRC, Article 32

1. States Parties recognize the right of the child to be protected from economic exploitation and from performing
any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's
health or physical, mental, spiritual, moral or social development.
2. . ... States Parties shall in particular:
a. Provide for a minimum age or minimum ages for admission to employment;
b. Provide for appropriate regulation of the hours and conditions of employment;
c. Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present
article.

ICESCR, Article 6: Full and productive employment

1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to
the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps
to safeguard this right.
2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall
include technical and vocational guidance and training programmes, policies and techniques to achieve
steady economic, social and cultural development and full and productive employment under conditions
safeguarding fundamental political and economic freedoms to the individual.

State obligation

● Obligation to take effective measures aimed at the realisation of full employment

○ Obligation of conduct

ESC, Article 1

● ”With a view to ensuring the effective exercise of the right to work, the Parties undertake:
○ 1. to accept as one of their primary aims and responsibilities the achievement and maintenance of as
high and stable level of employment as possible, with a view to the attainment of full employment...”

ESC Committee on state obligations

● The objective of full employment must not be abandoned

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 ● Measures must be directly taken in favour of particular groups (macro-economic measures not enough)
● Employment effects must be documented
● Social partners must be consulted

Indicators and assessment

● Economic performance
● Employment
● Unemployment
● Labour policy
● Inputs to active labour policy (labour market measures...)
● Reasons for conclusion of non- conformity of European Social Charter
○ Negative tendencies of employment and unemployment in relation to economic development

Greece, Italy and Poland, 2000

● Non-conformity with the ESC

○ Overall unemployment rate did not develop positively
○ Unemployment among risk groups was exceptionally severe while inputs to labour market policy was
modest or declining

Core obligations

● Ensure non-discrimination (Article 2.2 and 3) and equal protection of employment

General Comment No. 18

Core obligations of the right to work

(a) To ensure the right of access to employment, especially for disadvantaged and marginalized individuals and
groups, permitting them to live a life of dignity;
(b) To avoid any measure that results in discrimination and unequal treatment in the private and public sectors, of
disadvantaged and marginalized individuals and groups or in weakening mechanisms for the protection of such
individuals and groups;

(c) To adopt and implement a national employment strategy and plan of action based on and addressing the concerns
of all workers on the basis of a participatory and transparent process that includes employers’ and workers’
organizations. Such an employment strategy and plan of action should target disadvantaged and marginalized individuals
and groups in particular and include indicators and benchmarks by which progress in relation to the right to work can
be measured and periodically reviewed.

General Comment No. 18, para. 31

ICESCR, Articles 2.2 and 3

● ”The State Parties to the present covenant undertake to guarantee that the rights enunciated in the present
Covenant will be exercised without discrimination of any kind as to race, colour, sex ... or other status.”

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 ● ”The States Parties to the present Covenant undertake to ensure the equal right of men and women to the
enjoyment of all economic, social and cultural rights set forth in the present Covenant.”
● Disability, health status (HIV/AIDS), sexual orientation, nationality…
● The Committee: ”the labour market must be open to everyone under the jurisdiction of States parties” (Gen.com
18, para. 12b)
○ Including refugees, asylum seekers, migrant workers
○ Illegal immigrants?
○ ”special attention” needed

Discrimination?

● Unequal treatment
● Unequal enjoyment of rights
● Insufficient positive measures to include vulnerable groups access to work opportunities
● ESC rights should be equally applied to everyone, but may be subject to reasonable and objective limitations
pursuing legitimate aims and being proportionate to the aims sought

Unequal treatment, exploitation

● UN Doc CERD/C/ ITA/CO/15

○ Undocumented migrant workers in Italy: low wages, delayed payment, long working hours, wages
withheld by employers as payment for accommodation in overcrowded lodgings without electricity or
running water

Rights in work

● The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and
favourable conditions of work which ensure, in particular:
○ (a) Remuneration which provides all workers, as a minimum, with:
■ (i) Fair wages and equal remuneration for work of equal value without distinction of any
kind, in particular women being guaranteed conditions of work not inferior to those enjoyed
by men, with equal pay for equal work;
■ (ii) A decent living for themselves and their families in accordance with the provisions of the
present Covenant;
○ (b) Safe and healthy working conditions;
○ (c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level,
subject to no considerations other than those of seniority and competence;
○ (d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as
well as remuneration for public holidays

ICESCR, Article 7

Women and work

● What is ”work”?
○ Women ́s traditional roles in society (outside the labour market)

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 ● Working life
○ The full time (male) employed vs
○ The part-time, temporarily, self-employed, self-organized... (female) worker

● Unpaid work
○ In the home
○ Taking care of relatives, friends and neighbours, work in family businesses, etc

The labour market: Traditional problems for women

● Restricted access to work

○ General expectations of women as ”home- makers”
○ Conceptions of work not ”appropriate” for women
○ Protection of women from certain types of hard or dangerous work
○ Restrictions related to marriage and maternity
● Unequal remuneration
● Conflicts between family and work responsibilities

CEDAW, Article 11.1

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of
employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:
a. The right to work as an inalienable right of all human beings;
b. The right to the same employment opportunities, including the application of the same criteria for
selection in matters of employment;
c. The right to free choice of profession and employment, the right to promotion, job security and all
benefits and conditions of service ...;
d. The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal
value, as well as equality of treatment in the evaluation of the quality of work;
e. The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and
old age and other incapacity to work, as well as the right to paid leave;
f. The right to protection of health and to safety in working conditions, including the safeguarding of
the function of reproduction.

CEDAW, Article 11.2 and 11.3

2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure
their effective right to work, States Parties shall take appropriate measures:
a. To prohibit ... dismissal on the grounds of pregnancy or of maternity leave and discrimination in
dismissals on the basis of marital status
b. To introduce maternity leave with pay or with comparable social benefits without loss of former
employment, seniority or social allowances;
c. To encourage the provision of the necessary supporting social services to enable parents to combine
family obligations with work responsibilities and participation in public life, in particular through
promoting the establishment and development of a network of child- care facilities;
d. To provide special protection to women during pregnancy in types of work proved to be harmful
to them.

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 3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of
scientific and technological knowledge and shall be revised, repealed or extended as necessary.

ESC, art 27.1 (c)

● ”With a view to ensuring the exercise of the right to equality of opportunity and treatment for men and
women workers with family responsibilities... , the Parties undertake to take appropriate measures…
● to develop or promote services, public or private, in particular child day care services and other childcare
arrangements.”

European Community law: Equal Treatment Directive

● Regulates equal access to employment

● Exceptions from the principle of equality is allowed in conjunction with occupational activities for which, by
reason of their nature or the context they are carried out, the sex of the worker constitutes a determining
factor (art 2)
○ Example: Advertising of clothing for women/men

European Court of Justice

● In order for a job classification system as a whole to be non- discriminatory ... it must...be established in
such a manner that it includes both sexes, if the nature of the tasks in question so permits (Rummler, 1986,
where physical strength was used as a job criterion)
○ Example: The job is described in a way that will only fit male workers

● Discrimination includes indirect discrimination

● The Bilka case (1986)
○ An occupational pension scheme that exclude part-time workers is discriminatory against women if it
can be shown that the exclusion affects a far greater number of women than men.

Objective evaluation criteria

● Willingness to work overtime, to take on jobs with difficult working hours, or emphasis on muscular effort
alone, may prove discriminatory in practice (indirect discrimination)
○ Example: Women are often not able to work as much overtime as men, do not have the same muscular
power ...

ILO Convention Nº 111, Article 1.2

● Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements
thereof shall not be deemed to be discrimination
○ Example: Muscular strength might be necessary for construction workers
○ Police, military??

Aishah Azmi v Kirklees Metropolitan Borough Council

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 ● A decision to suspend a teaching assistant for refusing an instruction not to wear her veil when in class was not
seen as discrimination
● The suspension was considered lawful, being proportionate in support of a legitimate aim (teaching: Facial
expressioins seen as essential to effective teaching)

Employment Appeal Tribunal in London (2005/2006)

Equal pay requirement

● Equal pay for work of equal value, based on

○ Professional skills
○ Efforts
○ Responsibility
○ Working conditions

ESC Article 4, ESC Committee

Evaluation of state behavior, alternative strategies

● Reasonableness
○ Has the state taken reasonable measures to realize the right?
● Prioritization
○ Has the state developed a strategy of prioritization, and defined certain welfare duties as legally binding
on the state?

● Democratic dialogue
○ Does the state provide an open, democratic discussion on how to spend scarce resources?

Arosemena (2014) Rights, Scarcity, and Justice pp. 93-123

CLASE 6
The UK Social Security, System: the impact of the pandemic and changes that are needed for a more
equitable system

Themes for today’s presentation:

● Analyse the impact of the changes that the UK government has made to the social security system as a result of
the COVID-19 pandemic.
● Explore how the UK’s approach compared to that of other OECD countries.
● Look at current public opinion on social security spending and how this has changed as a result of the pandemic.
● Look at fundamental reforms of the social security which are required to provide a more sustainable system in
the post-pandemic period.

COVID-19 and the UK Social Security System

● It is clear that there was a lack of resilience in the UK social security system when the COVID-19 pandemic hit,
as a result of the significant cuts since 2010.
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 ● For over a decade the UK government did not veer from its programme of welfare reform. However, emergency
COVID-19 legislation was introduced in March 2020 which significantly increased the level of the UK’s main
means tested benefit, Universal Credit, introduced higher levels of support with housing costs, more favourable
eligibility rules for the self-employed and a reduced regime of work- related conditionality.
● This social security support package was worth a total of £7 billion.
● Although the UK government’s response was welcome it did not go far enough: it merely took some of the
rough edges off a failing system and failed to address fundamental flaws.

Positives

● Distribution of additional funding 59% of the additional £7 billion funding of the benefits system was
allocated to families in the lowest quartile of the income distribution. The increase in Universal Credit means
that unemployment support is currently higher than at any point in the last 20 years.
● System coped: In the first two months of the UK lockdown nearly 2.5 million people claimed Universal Credit.
The online application process for this benefit has been widely criticised but it did manage to cope with these
unprecedented numbers of new claims. Since 13 March 2020 there been 5 million claims for Universal Credit;
this represents 42% of all claims made since UC was introduced in April 2013.
● The Coronavirus Job Retention Scheme and the Self-Employment Income Scheme protected many jobs
and reduced reliance (for some) on social security payments.
Negatives

● A two-tier system: new ‘COVID-19 claimants’ receive a higher level of benefit payment than longer-term
legacy benefit claimants (approximately 2 million in number, many of whom are disabled and/or carers). In
February 2021, the Disability Benefits Consortium found that 82% of disabled claimants spent more in the
pandemic than they normally would. Despite this, Secretary of Sate for Work and Pensions Therese Coffey has
said she is “not aware specifically of extra costs that would have been unduly incurred’ by people with
disabilities.
● Impact of maintaining benefit cap: some claimants have derived little or no advantage from the benefit
uprating. In February 2020, 76,000 households were affected by the cap, this rose to 180,000 by November
2020. Inconsistencies persist in the application of the cap, due to the nine-month grace period.
● Local Housing Allowance rules for under 35s: young people are more susceptible to unemployment as a
result of the pandemic and may find it hard to secure shared accommodation but the government refused to
relax these rules.
● Impact of the end of Universal Credit £20 uplift: The Resolution Foundation forecast that rising
unemployment and the removal of the £20 uplift would lead to 1.2 million people falling into relative poverty
in 2021-22, including 400,000 children. The cut to Universal Credit would disproportionately affect disabled
claimants and ethnic minority families
● 5-week Universal Credit delays maintained

Negatives

Disproportionate impact on key groups:

● Women: social security forms a higher percentage of income than men’s, issues around low-paid, precarious
work, the pandemic has reinforced stereotypical gender caring roles and led to an increase in financial insecurity
caused by domestic violence. Women are more likely to be affected by the 2-child limit and benefit cap.

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 ● Minority ethnic groups: Minority ethnic groups are overrepresented in self-employment and zero hours
contracts work with limited, or no access, to sick leave or pay. Bangladeshi, Pakistani and Black African groups
are more likely to have earnings below statutory minimum rates. All of these factors push significant numbers
towards a poorly functioning benefit system. Minority ethnic groups are overrepresented in terms of the number
of lone parent families and are exposed to the regressive elements of Universal Credit, such as the 2-child limit
and experience digital exclusion.
● Carers: The pandemic has highlighted the inadequacy of the level of payment of Carer’s Allowance at a time
when many carers are experiencing unprecedented pressures with little support or respite (despite slight
easements in England and Carer’s Allowance Supplement in Scotland).
● Disabled people: Unlike claims for means-tested benefits, the number of claims for disability benefits fell
during the first year of the pandemic. Issues around the suspension of face-to-face medicals and access to justice
at remote hearings.

From a wider perspective we can see that the above groups are overrepresented in terms of COVID-19 cases and deaths,
have disproportionately experienced a deterioration in physical and mental health, and found it more difficult to access
support services during the pandemic.

COVID-19: How does the UK response compare to other countries?

● Between March and June 2020, 195 countries initiated over 1,000 welfare policies targeted at over 1.7 billion
recipients. Internationally social security systems have adapted by introducing higher or more frequent levels
of payments, scaling up existing programme coverage and adapting administrative procedures.
● The OECD (2020) have identified four principle social security policy responses to the COVID-19 pandemic
adopted by the 37 member states:
○ Targeted transfers (adopted by 28 countries)
○ Direct relief (adopted by 27 countries)
○ Universal Transfer (adopted by three countries)
○ Increased level of means tested support (adopted by 11 countries)

● Targeted transfers (adopted by 28 countries): these are typically aimed at low-paid workers and families,
similar in nature to the UK’s self-employment income scheme. Key examples: one-off payment by Colombian
government to three million informal workers; Spain’s minimum income scheme provides low- income
households with a monthly payment of between 462 and 1,015 euros depending on size.

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 ● Direct relief (adopted by 27 countries): examples in the UK include free school-meal vouchers and suspension
of eviction proceedings. Key examples: moratorium on rent and mortgage payments in Portugal and Belgium,
suspension of eviction in Australia and France, emergency food provision in Spain and US
● Universal Transfer (adopted by three countries): only adopted by Korea, Japan and US. Key example: CARES
Act in US - 2.3 trillion US dollars support, cash payment of 1,200 to all citizens earning up to 75,000.
● Increased level of means tested support (adopted by 11 countries). A wide range of international programmes
reflect the increased payment of UC in UK; these payments have been particularly important for people falling
outside the scope of job retention schemes or don’t qualify for earnings replacement

Have we seen a change in public opinion?

● Polling by the Mental Health Foundation and Ipsos MORI during the initial lockdown showed strong support
for the Universal Credit uplift: 74% supported this change, only 9% opposed it.
● A January 2021 survey from the same organisations showed that 59% of the public support making the £20
Universal Credit uplift permanent, while only 20% oppose it (10% strongly oppose)
● A Fabian Society report from May 2021 detailed the findings of a research project from which gathered
evidence from an online citizens’ jury and a survey of 1,647 adults. It found that public attitudes towards social
security spending became more positive in the years immediately preceding the pandemic and have improved
over the last 12 months. This research supports the idea that a clear majority want the £20 Universal Credit
uplift to be made permanent.
● However, there are different attitudes towards different types of claimants: more support for spending on
disabled people, carers and working families; more hostility towards spending on unemployed people, large
families and people without children.
● benefits. Key examples: Australia increased benefit rates and reduced waiting times, Italy suspended job- earch
conditionality, Netherlands relaxed capital rules.

Can public opinion change social security spending?

The Fabian Society report indicates that public opinion, even on so-called ‘unpopular’ benefits or groups of benefit
claimants is nuanced and shifting as a result of the pandemic. For example:

● Over 50% of the public support the two-child limit, but there is strong support for working families, families
with a disabled parent, and carers
● There is low support for unemployment benefits, but support for higher payments which are time-limited is
much stronger
● The majority of participants in this study wanted the level of benefit payments for under 25s to be equalised
with other working-age claimants, and increased financial support for childcare to make work pay
● Overall finding that there is strong public support for higher level of social security to be paid to five groups:
people with disabilities, young adults, working lone-parents, lone-parents caring for young children and carers
(this comprises 74% of all those who will be in receipt of UC when it is fully rolled-out).

A Way Forward – technical changes?

● Increase level of Universal Credit (to at least 80% of minimum wage)

● Abolish Universal Credit 5-week wait and conditionality
● Extension of Free Schools Meals programme
● Increase level of benefit for carers

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 ● Increase Child Benefit by £10 per week

A Way Forward – a change of approach?

● Adequate funding for advice services and benefit take-up campaigns

● Lizzie Flew (CPAG) has called for an increase in the use of universal benefits and move away from means-
tested benefits
● There are calls for a focus on income security (sufficient income to live on but also to cover infrequent or
emergency costs) with a fixed amount of money paid for a fixed period of time (e.g. Canadian Child Benefit, or
Family Income Support or Family Credit) or a lump sum payment (USA Earned Income Tax Credit, Australia
Family Tax Benefit)
● Start recognising social security as a human right (see Social Security (Scotland) Act 2018, which adopts a
rights-based approach to social security which emphasises that social security is an investment, human right and
a public service; social security policy should contribute to reducing poverty, treat people with dignity and be
designed on the basis of evidence with the involvement of benefit claimants themselves).

A Way Forward – the costs?

● The Fabian Society estimate that if the 2020 COVID-19 measures were permanently retained, social security
spending would increase by £7.2billion; this would be a return to 2015/16 expenditure levels
● They propose a more generous approach which maintains the 2020 COVID-19 measures, restores previously
reduced UC levels, equalises benefit rates for under 25s, and increases payments for the main groups for which
there is public support (carers, disabled people, lone parents, parents of young children). This approach would
cost £17billion; a return to 2013/14 expenditure levels.
● Peter Kenway, Director of the New Policy Institute, reminds us that 2020 was always supposed to be a historic
year for the welfare state; the year by which child poverty would be ended according to Tony Blair’s famous
pledge. In fact, according to the DWP’s Households Below Average Income Figures, in 2020 child poverty has
increased to over 3 million for the first time in 20 years. This figure has increased by 1 million in just six years.
● The COVID-19 pandemic has shown us that swift, significant investments in social security are a possibility
and can reverse (or at least slow down) the regressive trends we have seen pursued by successive governments

CLASE 7
19.9.22 STATE OBLIGATIONS AND STRATEGIES OF COMPLYING WITH SOCIO-
ECONOMIC HUMAN RIGHTS

Evaluating state efforts

BASIC QUESTIONS

● How should states implement socio-economic rights?

● Do they have a wide margin of appreciation?
● What are possible strategies in order to comply with state obligations?
● How should judicial review take place?
● What are the roles of respectively courts and political bodies?

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STATE OBLIGATIONS: FORMULATION

Article 2 ICESCR
1. Each State Party to the present Covenant undertakes to take steps, individually and through international
assistance and co-operation, especially economic and technical, to the maximum of its available resources,
with a view to achieving progressively the full realization of the rights recognized in the present Covenant by
all appropriate means, including particularly the adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present
Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.

NATURE OF STATE OBLIGATIONS

● Mostly a focus on state actions/conduct (take measures, take steps), rather than on particular results/outcomes
● Broad and discretionary standards (“adequate” standard of living, “appropriate” measures) rather than specific
duties (except for the non-discrimination requirement)
● Focus on individual enjoyment of the protected rights rather than on individual entitlements to particular
benefits or goods
● Fulfillment of state obligations depend on the state ́s available resources and level of development

POINTS OF DEPARTURE

● Healthcare services, housing, access to food, education, work, social security ... are important welfare goods
that should have sufficient legal protection, also at the individual level
● The ICESCR and other conventions are built on the assumption that these rights are essential for human
dignity, and form essential parts of the human rights framework
● At the same time: despite the universal value and relevance of welfare goods, the resources to secure these
goods are often not sufficient to fully satisfy the individual needs of everyone within state jurisdiction
● States use different strategies and measures to realize welfare rights and fulfil state obligations

UNDERLYING LEGAL VALUES

● State efforts and choice of strategy, including the division of labour between legal and political bodies, may be
evaluated according to fulfilment of essential general legal values, such as
○ Rule of law
○ Effectiveness
○ Procedural fairness
○ Democracy
○ Individual concern

THREE STRATEGIES TO EVALUATE STATE EFFORTS TO REALIZE AND FULFIL STATE

OBLIGATIONS

Evaluation of
● The reasonableness of state efforts in light of available resources, existing knowledge of needs, concern for
individuals, access to legal remedies, etc

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 ● State efforts to adopt acceptable prioritization strategies of how to utilize available resources and distribute
them fairly and reasonably
● State efforts, and the role of courts, to secure and promote a democratic deliberative dialogue about essential
matters regarding welfare rights and duties

Arosemena, Rights, Scarcity, and Justice, pp 93-193

REASONABLENESS (Arosemena, pp 93- 123)

IS THE STATE ACTING IN A REASONABLE MANNER?

This approach assumes

«... that, at some level, these duties of efforts can be carried out in a way that honors the rights of everyone. So even
if it is not possible to give everyone that is homeless a shelter, it should always be possible for the state to take steps
towards giving everyone that is homeless shelter while treating everyone fairly in this effort.»

Arosemena, pp 93-94

TWO MAIN WAYS TO MEASURE

● Assessment based on duties of result/outcomes

○ e.g everyone/90% has access to housing?
● Assessment based on duties of conduct
○ Has the state taken «adequate measures»?

ASSESSMENT

● Reasonableness is mainly based on evaluation of state conduct

● Which criteria should be used to assess whether the state acts reasonable? How strict is this assessment?
● What about individuals? Should they be entitled to all kind of social welfare services? What kind of legal
protection should they have?

SOUTH AFRICA

● Constitutional democracy from 1996, after the end of apartheid

● Social rights and promise of social development including all
● Social rights central in the Constitution
● People are still living in deep poverty
● The Constitutional Court has provided interesting interpretations of social rights provisions

«We, the people of South Africa, Recognise the injustices of our past … We therefore, through our freely elected
representatives, adopt this Constitution as the supreme law of the Republic so as to -
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental
human rights ...” (1996 Constitution, preamble)

CONSTITUTIONAL RIGHT TO HOUSING

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Housing

26. (1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the
progressive realisation of this right.
(3) No one may be evicted from their home, or have their home demolished, without an order of court made after
considering all the relevant circumstances. No legislation may permit arbitrary evictions.

CONSTITUTIONAL RIGHT TO WELFARE SERVICES

Health care, food, water and social security

27. (1) Everyone has the right to have access to—

(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including appropriate social assistance if they are unable to support themselves and their
dependants
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the
progressive realisation of each of these rights.
(3) No one may be refused emergency medical treatment.

CONSTITUTIONAL COURT OF SOUTH AFRICA: SOOBRAMONEY V MINISTER OF HEALTH (1998)

«At present the Department of Health in KwaZulu-Natal does not have sufficient funds to cover the cost of the services
which are being provided to the public. ... The renal unit at the Addington Hospital has to serve the whole of KwaZulu-
Natal ... There are many more patients suffering from chronic renal failure than there are dialysis machines to
treat such patients. ... Guidelines have therefore been established to assist the persons working in these clinics to
make the agonizing choices which have to be made in deciding who should receive treatment, and who not.»

Patient with renal failure claimed that denial of dialysis treatment violated his right to life and health

RATIONAL CRITERIA

«principled criteria» for the allocation of scarce health resources (Justice Albie Sachs in Soobramoney)
● Not contradictory to the right to healthcare?
● Lack of such criteria, and arbitrary distribution of resources, would clearly violate the right of everyone to
healthcare

What would be “arbitrary”? Examples?

THE GROOTBOOM CASE (HOUSING)

● Homeless people had been evicted from their home lands in order to build new shelters. The Constitutional
Court found that the housing plan was inadequate in several ways
● «A court considering reasonableness will not inquire whether other more desirable or favorable measures could
have been adopted, or whether public money could have been better spent. The question would be whether
the measure that have been adopted are reasonable. It is necessary to recognize that a wide range of

73
 possible measures could be adopted by the state to meet its obligations. Many of these would meet the
requirement of reasonableness. Once it is shown that the measures do so, this requirement is met» (para. 41).
● The goal is not to evaluate whether the state has taken the best possible measures...

ASSESSMENT OF REASONABLENESS

Duty of reasonable or adequate conduct:

● «... it will be necessary to consider housing problems in their social, economic and historical context and to
consider the capacity of institutions responsible for implementing the [housing] programme. The program
must be balanced and flexible and make appropriate provision for attention to housing crises and to short,
medium and long term needs. A program that excludes a significant segment of society cannot be said to
be reasonable. Conditions do not remain static and therefore the program will require continuous review»
(Grootboom para. 43).

LIMITATIONS OF REASONABLENESS REVIEW

● The state is granted large discretionary freedom

● Vague guideline
● Context-dependent and reactive case-by-case evaluation
● The fact that someone lacks shelter, healthcare, etc, is not sufficient to establish a violation of governmental
duties (lack of transparency in documenting violations)
● Rights are not seen as entitlements, but as a right to good/adequate governmental conduct

LAW AND POLITICS

● «While politics is always necessary, political action must be guided by a sense of justice and directed at
structural changes that once in place have a certain legitimacy and effectiveness that is independent of the
forces that created them. While it is true that human rights are betrayed if they are made into only empty
formalism, formalism must also exist. The challenge is then to find a way to engage human rights with the
problem of poverty, and unmet human needs, while conserving formal values such as the rule of law,
legal certainty and procedural fairness.»

POSITIVE ASPECTS?

● A sensible division of labour between courts and politicians?

● A fair balance between the state and individuals?
● At least a minimum legal guarantee for the protection of welfare rights?

CRITERIA FOR ASSESSMENT OF REASONABLENESS

Three different aspects to consider

● Formal assessment: Good governance requirements (planning, fair procedures, transparency, consultations
with all stakeholders, consistency and compliance with formal rules of good governance)
● Functional assessment: Is the state doing a reasonable (efficient) job in implementing the right, using available
and appropriate resources, progressively? Is there stagnation or regression? Are the most vulnerable given
priority? Are efforts equitable among regions?

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 ● Substantive assessment: Does the state fulfil the substance of the right? At the most basic level (core content)?
Is there

KHOSA CASE (SOUTH AFRICA)

●The Constitutional Court did not accept that it was «reasonable» to deny non-citizens with a right to stay in the
country access to social service:
● «It is necessary to differentiate between people and groups of people in society by classification in order
for the state to allocate rights, duties, immunities, privileges, benefits or even disadvantages and to provide
efficient and effective delivery of social services. However, those classifications must satisfy the
constitutional requirement of “reasonableness” in section 27” (para. 53).
● “The right of access to social security, including social assistance, for those unable to support themselves and
their dependants is entrenched because as a society we value human beings and want to ensure that people
are afforded their basic needs. A society must seek to ensure that the basic necessities of life are accessible
to all if it is to be a society in which human dignity, freedom and equality are foundational” (para. 52).
PRIORITIZATION

DOES THE STATE GIVE LEGAL PROTECTION TO THE MOST IMPORTANT WELFARE
GOODS?

Is the government making acceptable prioritizations?

● The most important duties must be legally enforceable, while other duties can be left to political decision
making
● Welfare duties/state obligations, main distinction:
○ Judicially protected in a universal manner (e.g. emergency medical care)
○ Not judicially protected (e.g. costly cancer treatment, which instead is provided based on relevant
objective criteria)

ASSUMPTION

● Despite the universal value of welfare goods, the resources to secure these goods are often not sufficient to
satisfy the individual needs of everyone within state jurisdiction

GERMAN CONSTITUTIONAL COURT

● The German Basic Law

○ Article 1 – the right to human dignity
○ Article 20(1) – principle of the welfare state
○ Together – the right to the «existenzminimum» (dignified survival, according to needs), which is a
subjective justiciable right of individuals (e.g asylum seekers)

Hartz case and others

ASSESSMENT

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 ● A priority domain?
● Clear separation of the priority domain and the periphery?
● Consistent treatment according to the priority domain?

THE PRIORITY DOMAIN

● Can it be justified?
● Has the state justified the prioritization strategy in a clear and foreseeable manner?
● Is the prioritized domain accessible for all citizens?
● Are the state obligations possible, also when the economy is not so good? (not possible to change priority
according to the flow of the economy)

WHAT SHOULD BE PRIORITIZED?

● Suggested criteria on which legal systems should base prioritization:

○ Protection of core legal values (predictability, procedural fairness, objectivity ...)
○ Promotion of individual capability and autonomy (which services are urgent in order to secure
individual empowerment, freedom and social participation?)
○ Respect for democratic processes (which services are considered urgent by the general public, or by
those who dominate public discourses?)
○ Protection of human dignity and social respect (which services are essential in order to prevent social
marginalization?)
○ Focus on the core content of rights (which level of protection is necessary to secure the core content
of a right?)

THE PERIPHERY (BEYOND THE CORE CONTENT)

● Regulated in a non-binding way, e.g. declarations, recommendation, guidelines

● Role of courts: A court cannot give direct binding orders of a particular action or result beyond the identified
prioritized domain, but could still evaluate if the government is following its own regulations

EXAMPLE FROM NORWAY

● Patient- and Users Rights Act (1999)

○ Legal right to emergency treatment. No exceptions. Includes asylum seekers, persons without
recidential status and without a legal right to stay in the country. Corresponding legal duty of health
institutions and healthcare providers. Includes birth assistance
○ Right to necessary health- and care services from the municipality. Exceptions (adult persons without
legal residence). All children are included, irrespective of legal status
○ Right to necessary specialized healthcare, Patient Right Act § 2-1b and prioritization regulation
○ «The patient has a right to necessary treatment from the specialist health service»
■ Supplementary regulation (forskrift): The patient has a right to necessary treatment when he/she
may have an expected benefit of the particular treatment, and the expected costs are reasonable
in light of the effect of the treatment

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DEMOCRATIC DIALOGUE

A PUBLIC IDEAL

● Democracy and majority rule

● Institutional democracy – the legislative and the executive pursue social goals, while the courts have the role
of ensuring compliance with statutory law
● Deliberative democracy – maximizes the collective aspects of democracy, by setting up deliberative processes
in order to find fair solutions and reach agreements
○ Argumentation, bargaining, voting
○ Public meetings and processes, transparency
○ Give all parties the same opportunity to participate and be heard

THE ROLE OF COURTS IN DEMOCRACY AND DISTRIBUTIVE JUSTICE

● Can courts make fair and reasonable decisions about resource distribution?
○ Healthcare, housing, free education, social assistance and security ...

● What characterize courts?

○ Are they democratic institutions?
○ Judges
● What characterize parliaments?
○ Do they make individual decisions?
○ Politicians

● What would be a proper role for courts concerning deliberation of welfare duties of states?

DEMOCRACY AND JUDICIAL REVIEW

● Ideas of judicial review

○ Strong – little room for politics
○ Weak – more room for politics

● Rights or democracy??
○ Human rights necessary for true democratic development
○ Strong judicial review could intervene too much in political deliberation?
○ How far should courts go in reviewing democratic politics, e g regarding health care?
○ What are the constitutional and human rights boundaries for political decision making?

● The relationship between courts and the political branches of government

○ In constitutional democracies protecting socio-economic human rights, courts become partners in
the search for justice (weak judicial review/margin of appreciation)

Arosemena (2014) p 151

LAW AND POLITICS

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«While politics is always necessary, political action must be guided by a sense of justice and directed at structural
changes that once in place have a certain legitimacy and effectiveness that is independent of the forces that created them.
While it is true that human rights are betrayed if they are made into only empty formalism, formalism must also exist.
The challenge is then to find a way to engage human rights with the problem of poverty, and unmet human needs,
while conserving formal values such as the rule of law, legal certainty and procedural fairness.»

ASSUMPTION

● Despite the universal value of welfare goods, the resources to secure these goods are often not sufficient to
satisfy the individual needs of everyone within state jurisdiction
● Question: What kind of interaction should there be between courts/judges and political bodies regarding fair
distribution of welfare goods and resources?

STRENGTHS OF COURTS VS POLITICAL ACTORS

● Courts
○ More sensitive to minorities
○ More independent
○ More legal knowledge
○ Designed to handle individual cases
○ Must follow the law (legitimacy based on this)
○ Do not have the full picture of social objectives and commitments

● Political actors
○ More sensitive to majorities
○ More accountable
○ More knowledge of other disciplines
○ Designed to handle general situations
○ Can change the law, within the limits of constitutional requirements
○ Are better equipped to make general decisions

WHAT COURTS CAN DO

● Assess whether distributive policies or actions are based on substantial democratic deliberations
● Enforce governments to secure acceptable preconditions for deliberative democratic processes
● Allow contestations in political bodies

ARGENTINA AND THE CASE OF BADARO

● The social security allowance of Badaro and many others was not raised according to legal requirements
● The Supreme Court instructed the executive and the legislative of the need to update the social security benefits,
but did not specify exactly what should be done
○ Leaving room for governmental discretion and intervention

ARGENTINA AND THE MENDOZA CASE

● Inhabitants complained about contamination of the river Matanza (environmental case)

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 ○ 2006: The Court ordered the state to make a plan to apply environmental law, to correct environmental
harm of the river, to present the plan in public to Mendoza and the other claimants and stakeholders,
thereby opening up for a process of public meetings, deliberation and contestation
○ 2008: Court decision ordering the public authority to clean up the river
■ Ordering the authority to make public the standards imposed by the court
■ Ordering a budget to facilitate public supervision
■ Ordering a coordinating institution (Ombudsman) to receive complaints from citizens on the
compliance with court orders, together with NGOs involved in the litigation process
■ Ordering a judge to monitor compliance with the judgment

WHICH STRATEGY IS THE BEST?

Use the questions to reflect on the strategies and how they fulfill legal values and criteria

STATE OBLIGATIONS: FORMULATION

Article 2 ICESCR
1. Each State Party to the present Covenant undertakes to take steps, individually and through international
assistance and co-operation, especially economic and technical, to the maximum of its available resources,
with a view to achieving progressively the full realization of the rights recognized in the present Covenant by
all appropriate means, including particularly the adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present
Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.

EVALUATION CRITERIA

● Rule of law
● Effectiveness
● Procedural fairness
● Democracy
● Individual concern

RULE OF LAW

● Rules of distribution are codified in legislation adopted by the parliament

○ «Rule of law, not of individuals»
○ Prevention of arbitrary decisions, «the winner takes all», personal preferences …
○ General and objective criteria, predictiveness
○ Strategic planning

● Prioritization scores well. Why?

● Reasonableness not so well
● Deliberative dialogue even worse

EFFECTIVENESS

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 ● Ability to reach certain social goals (justice in health, poverty reduction, improvement in access to education
...)
○ Role of courts vs political bodies?
○ Reasonableness scores well. Why?
○ Prioritization scores low
○ Deliberative dialogue equally low

PROCEDURAL FAIRNESS

● Ability to ensure fair and predictable decisions and outcomes

○ Prioritization and deliberative dialogue have good scores. Why?
○ Reasonableness scores low on procedural fairness. Why?

DEMOCRACY

● Value of collective decision making

○ Reasonableness scores moderately. Why?
○ Prioritization scores moderately
○ Deliberative dialogue scores very high

INDIVIDUAL CONCERN

● Ability to provide individual justification for decisions made (not at an aggregated level)
○ Reasonableness scores low. Why?
○ Prioritization scores high
○ Deliberative dialogue scores low

CONCLUSION

● Which strategy do you think – overall – is the best to secure the mentioned values (Rule of law, Effectiveness,
Procedural fairness, Democracy, Individual concern)?
○ Reasonableness?
○ Prioritization?
○ Deliberative dialogue?

CLASE 8
22.9.2022: Welfare duties and balancing rights in conflict

● Distributive issues vs balancing different rights in conflict

● Human rights conflicts in the area of welfare services
○ Health protection, education, employment
○ What kind of conflicts?
■ Autonomy/privacy/liberty vs state responsibility for protection of life, health and social goals
● Different types of conflicts
● Dignity as a balancing factor in conflicts related to the same person
● Case law

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Distributive issues

● How to fulfill socioeconomic human rights in the context of scarce resources?

○ Reasonableness; are state efforts reasonable in light of pressing social needs?
○ Prioritization; do states prioritize, are the priorities acceptable, and are these followed in practice?
○ Democratic dialogue to identify pressing needs

Balancing of rights

● Different human rights in conflict

○ The rights in question cannot be (completely) realized at the same time
○ They must be balanced against each other, and there is a need to decide which right to give priority in
a particular situation

The welfare state and the protection of both civil and social rights

● The welfare state

○ Advancement of social goals/public interests
■ Public health, educated population, work attendance, social participation
○ Protection of civil human rights
■ Privacy, autonomy, liberty
■ Question: When does a social goal justify restrictions of individual autonomy, liberty or
privacy?
Public interests

● School attendance
● Health protection
● Research
● Employment
● Child protection
Private interests

● Education, health, employment, benefit from science …

○ Public interests are also private interests (in general), not always a clear distinction
● Why, and how, can there be a conflict between private and public interests?
○ Individuals may resist health protection, employment, participation in research ... in particular situations
due to individual choice and conditions

Healthcare and informed consent

● Requirement of informed consent to treatment is an aspect of the right to privacy (see lecture 8/9)
● The underlying value of self-determination (autonomy)

● Can public interests justify health interventions not based on informed consent from the individual person?

Jehova ́s Witnesses of Moscow v Russia (2010)

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 ● “The freedom to accept or refuse specific medical treatment, or to select an alternative form of treatment, is
vital to the principles of self-determination and personal autonomy. A competent adult patient is free to
decide, for instance, whether or not to undergo surgery or treatment or, by the same token, to have a
blood transfusion. However, for this freedom to be meaningful, patients must have the right to make
choices that accord with their own views and values, regardless of how irrational, unwise or imprudent
such choices may appear to others. Many established jurisdictions have examined the cases of Jehovah's
Witnesses who had refused a blood transfusion and found that, although the public interest in preserving the
life or health of a patient was undoubtedly legitimate and very strong, it had to yield to the patient's stronger
interest in directing the course of his or her own life ...” (para. 136).

Human dignity, autonomy and public interests

● Human dignity: Basic respect and concern for the needs of every individual
● Protecting autonomy is an important way of protecting human dignity
○ informed consent to healthcare
● Is respect for individual autonomy always sufficient to protect human dignity?
● Is respect for individual autonomy always sufficient for the protection of public interests?

Absolute vs non-absolute rights, ECHR

● Absolute rights
○ Right to life (Art 2)
○ Prohibition of torture (Art 3)
○ Prohibition of slavery and forced labour (Art 4)

Strong state interests in protecting these values and rights for everyone

● Rights that explicitly allow balancing of interests

○ Articles 5, 8-11: Autonomy restrictions allowed, but must be a) prescribed by law, b) necessary in a
democratic society, and c) aimed at achieving important social interests
■ economic well-being of the country, protection of health or morals, protection of the rights and
freedoms of others (Art.8)

Different types of conflicts

● Potential conflict between an individual and other concrete individuals, or the state (a public interest)
● Potential conflict between rights belonging to the same person (which right is most suitable to protect the
person ś dignity?)

Human rights conflicts (same person)

● Other people ́s rights are not inflicted

● Public interest does not give clear guidance
○ Question: which of the conflicting rights provides the best protection of human dignity in the
particular situation?
○ Is the overall well-being/interests of the person better served by over-ruling or by respecting autonomy?

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Human rights

● ”... derive from the inherent dignity of the human person”

● Autonomy, privacy and liberty should be protected only as long as it protects the dignity of the person concerned
● Preambles, ICCPR, ICESCR

Example of dilemma

● Person with serious dementia in clear need of ordinary healthcare/medication (not invasive) has no
understanding of the situation
○ If ”yes” to treatment is respected:
■ Invalid consent: Autonomy cannot be protected
○ If ”no” is respected: The person may die or suffer from continued health problems
■ Violation of the right to life or health
○ Which action is needed to protect the person ́s dignity?

Vulnerable groups

● Children
● Adults without capacity to consent due to various forms of cognitive impairment
● Persons with serious mental illness
● Lack of capacity to protect their own interests
○ Special legal protection needed
■ Proxy consent
■ Legal procedures to establish protective measures, if needed

Two cases from Norway (home care)

● Josefine
○ Not competent, had accepted to be moved to a nursing home to get necessary care (assisted by relatives)
○ Froze to death outside her home (was alone, got out by herself)

● Gunhild
○ Competent, rejected all kind of home-based care, wanted most of all to be left alone
○ Died in her own bed, surrounded by garbage

Coercive treatment of adults lacking consent capacity: Norwegian law

● Traditionally: Only allowed in emergency situations

● Chapter 4A in the Norwegian Patient- and User ś Rights Act allows coercive treatment outside the emergency
situation of persons over 16 years without consent capacity (due to various forms of cognitive impairment)
● Example of balancing health protection and autonomy
● Objective
○ Provide necessary health care for the prevention of significant health damage
○ Prevent and limit arbitrary and unlawful coercion
○ Base interventions on law (rule of law principle)

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Regulation of coercion

● Special regulation in the Norwegian Patient Rights Act (4A)

○ Provides the legal basis - cf ECHR art 8.2 - for the use of coercive health care outside emergency
situations towards adults who lack the capacity to consent, and who rejects necessary treatment

Background

● Documentation of widespread use of coercive measures, especially towards elderly persons with dementia in
institutions
○ Most common measures:
■ Hiding of medicine in food or drinks
■ Forced holding of hands, feet or head during care
■ Bed guard
■ Forced washing, bathing or showering

Legal requirements in Patient Rights Act (§ 4A-3)

● Only health care personnel may use coercive measures (detention in health institutions, alarm systems, belts,
etc.)
● Health care shall be based on respect for physical and psychological integrity of the patient
● Be in accordance with individual autonomy as far as possible
● Voluntary alternatives must be tried first
● Only when necessary for preventing serious health damage
● Must be clearly the best solution for the patient
● Constant monitoring
● Stopped once the legal requirements are no longer fulfilled

HL v UK (2004)

● ”The right to liberty is too important in a democratic society for a person to lose the benefit of Convention
protection for the single reason that he may have given himself up to be taken into detention ... especially
when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the
proposed action”.
● A mere lack of protest or ”consent” from an incompetent person is not a sufficient legal bases for keeping a
person under continued confinement
● The case illustrates the difficulty of balancing the need to be taken care of and the right to individual
freedom
● The case illustrates the need to be protected by appropriate procedures under national law
● The Court stated that, in relation to ECHR art 5 (the right to liberty and security), national law lacked
appropriate legal regulation for the intervention in question (”informal detention” for 3 months in a
psychiatric institution).
● Rule of law

Rule of law principle

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 ● ”Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except on such grounds and in accordance with such
procedures as are established by law.”
● Any detention for medical purposes must be in accordance with national law (rule of law principle) and
justified by strong individual or social needs
ICCPR, Article 9.1

Individual autonomy in conflict with public interests

● Public health and research

● Education
● Employment
● Child protection

Protection of individual interests in medical research

● ”The interests and welfare of the human being shall prevail over the sole interest of society or science”
○ Biomedicine Convention Article 2: Provisions of legal protection for vulnerable groups not able to give
valid informed consent to research or treatment

Olsson v Sweden (1988)

● In order for an intervention in private life to fulfill the requirement of necessity, the interference must
”correspond to a pressing social need, and, in particular that it is proportionate to the legitimate aim pursued”
○ Child protection measures beyond what was seen as necessary for the protection of the child (placing
the child far away from the biological parents, thereby hindering return to the biological family)
○ (Private/public interests not easy to distinguish)

Mandatory elementary education

● Primary education shall be compulsory and available free to all (ICESCR, Art 13.2)
○ A clear example of setting individual autonomy aside, justified by social objectives

Quality of education vs autonomy

● A decision to suspend a teaching assistant for refusing an instruction not to wear her veil when in class was
not seen as discrimination
● The suspension was considered lawful, being proportionate in support of a legitimate aim (teaching: Facial
expressions seen as essential to effective teaching)

Employment Appeal Tribunal in London (2005/2006)

Social policies and«the work line»

● Strong principle in welfare policies

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 ● Measures to encourage and force individuals to participate in work promoting activities, to make them more
attractive for the job market
○ Courses, practice, training, meetings with consultants, etc, which may take up much time for individuals
who have to attend to the conditions set by local authorities to receive social assistance
○ How far is it legitimate, necessary and proportionate to limit individual choice/privacy for the purpose
of securing employment? (“the economic well-being of the country”, cf ECHR Article 8.2) Not yet
decided by the ECtHR

EU Charter of Fundamental Rights and European Social Charter

● Both the EU Charter and the ESC put forward a principle of proportionality in relation to protection of
socioeconomic human rights, in similar wording as in the ECHR
● The EU Charter Article 52 (1) states that “[a]ny limitation on the exercise of the rights and freedoms recognised
by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the
principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives
of general interest recognised by the Union or the need to protect the rights and freedoms of others.”
● The ESC Article G (1) puts forward that “[t]he rights and principles set forth [...] shall not be subject to any
restrictions or limitations not specified [...] except such as are prescribed by law and are necessary in a
democratic society for the protection of the rights and freedoms of others or for the protection of public interest,
national security, public health, or morals.”

Norwegian law

● Social service Act § 20.Use of conditions (conditional economic benefits)

● The social service may set conditions (“vilkår”), including “suitable work” for granting economic assistance,
seen as gainful for work promotion purposes. Failure of participating can lead to removal of financial support
● As for persons below 30: The social service shall set such conditions, if weighty reasons are not against it
● Conditions must be in accordance with law, and fulfill requirements of proportionality and reasonableness
● If conditions are violated, the financial support may be reduced, if the person concerned has been informed
about this possibility

Jehova ́ s Witnesses of Moscow v Russia (2010), cont.

● “... free choice and self-determination were themselves fundamental constituents of life and that, absent any
indication of the need to protect third parties – for example, mandatory vaccination during an epidemic, the
State must abstain from interfering with the individual freedom of choice in the sphere of health care, for such
interference can only lessen and not enhance the value of life ...).”

Para 136 of the case of Jehovah

Z v Finland (1997)

● «The Court will take into account that the protection of personal data, not least medical data, is of
fundamental importance to a person's enjoyment of his or her right to respect for private and family life
as guaranteed by Article 8 of the Convention (art. 8). Respecting the confidentiality of health data is a vital
principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect
the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and

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 in the health services in general. Without such protection, those in need of medical assistance may be deterred
from revealing such information of a personal and intimate nature as may be necessary in order to receive
appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in
the case of transmissible diseases, that of the community” (para. 95).
● “The above considerations are especially valid as regards protection of the confidentiality of information about
a person’s HIV infection. The disclosure of such data may dramatically affect his or her private and family
life, as well as social and employment situation ... For this reason it may also discourage persons from
seeking diagnosis or treatment and thus undermine any preventive efforts by the community to contain the
pandemic …
● ... At the same time, the Court accepts that the interests of a patient and the community as a whole in protecting
the confidentiality of medical data may be outweighed by the interest in investigation and prosecution of
crime and in the publicity of court proceedings ... As to the issues regarding access by the public to personal
data, the Court recognises that a margin of appreciation should be left to the competent national authorities in
striking a fair balance between the interest of publicity of court proceedings, on the one hand, and the
interests of a party or a third person in maintaining the confidentiality of such data, on the other hand.
The scope of this margin will depend on such factors as the nature and seriousness of the interests at stake and
the gravity of the interference”.
● (paras. 96,97, 99).
● “The Court thus reaches the conclusions that there has been no violation of Article 8 of the Convention (art. 8)
(1) with respect to the orders requiring the applicant’s medical advisers to give evidence or (2) with regard
to the seizure of her medical records and their inclusion in the investigation file.
● On the other hand, it finds (3) that making the medical data concerned accessible to the public as early as 2002
would, if implemented, give rise to a violation of that Article (art. 8) and (4) that there has been a violation
thereof (art. 8) with regard to the publication of the applicant’s identity and medical condition in the Court
of Appeal’s judgment” (para. 114).

Enhorn v Sweden (2005)

● Detention of a person infected by HIV to prevent him from spreading the virus
○ Was the detention a violation of Art 5.1 ECHR (right to liberty)?
● Did the HIV-infection represent a criminal offense?
○ “It is true that the applicant infected the 19-year-old man with whom he had first had sexual contact in
1990. This was discovered in 1994, when the applicant himself became aware of his infection. However,
there is no indication that the applicant transmitted the HIV virus to the young man as a result
of intent or gross neglect, which in many of the Contracting States, including Sweden, would have
been considered a criminal offense.”
○ Enhorn had, according to the Court, complied with the existing infection control regulations
● The proportionality test, and question of fair balance
○ “In these circumstances, the Court finds that the compulsory isolation of the applicant was not a last
resort in order to prevent him from spreading the HIV virus because less severe measures had not been
considered and found to be insufficient to safeguard the public interest. Moreover, the Court considers
that by extending over a period of almost seven years the order for the applicant's compulsory isolation,
with the result that he was placed involuntarily in a hospital for almost one and a half years in total, the
authorities failed to strike a fair balance between the need to ensure that the HIV virus did not
spread and the applicant's right to liberty” (para. 55).
● The Court found, accordingly, that there had been a violation of Article 5.1 of the Convention
Regulation of emergency situations (Norway)

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 ● Health Personnel Act § 7
● Example of balancing health protection and autonomy

Health personnel Act 7

● Obligates health personnel to treat person in an emergency situation, despite the person ́s active resistance,
except for a few specific situations
○ Blood refusals (Jehovas Witnesses) (Patient Rights Act § 4-9,1)
○ Dying persons (but not seriously ill) are provided a right to reject life prolonging treatment (Patient
Rights Act § 4-9,2)

Norwegian law and ECHR Art 8

● Is Norwegian law violating Art 8 (privacy)?

○ What about other groups than Jehovas witnesses who wishes to reject medical treatment?
○ What about seriously ill persons with a short time to live (but not «dying»?), should they not also be
able to reject treatment in an emergency situation?
○ Are the legal regulations necessary and proportionate? A fair balance between competing interests and
needs?

Olsson v Sweden (1988)

● In order for an intervention in private life to fulfill the requirement of necessity, the interference must
”correspond to a pressing social need, and, in particular that it is proportionate to the legitimate aim pursued”
○ Critical voices claim that these requirements are not fulfilled regarding the Health Personnel Act § 7
and the few exceptions

States ́ margin of appreciation

● Due to the subsidiary nature of international or regional bodies

○ National bodies are the primary responsible for upholding rights
● Depends on whether common standards within Europe have been developed or not
● Depends on the degree of interference with individual rights and freedoms (Uzun v Germany, 2010)

Summary

● State obligations of securing necessary and fair access to welfare services must be distinguished from the issue
of balancing conflicting rights in health- or welfare cases
● Health- and welfare services must protect human dignity and to this end protect human life, health, well-being
and development, autonomy and privacy
● Autonomy limitations in welfare service provision must be according to law, justified, necessary and
proportional
● Human rights provisions provide a normative framework for both the protection and balancing of conflicting
rights
● Critical assessment of regulations in place is important

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