Brigit Toebes

A missing voice: the human rights of children to a tobacco-free environment

In this commentary, we flag the importance of taking a child-rights approach in the context of tobacco control, which is thus far unprecedented. This text was written in response to the Seventh Conference of States Parties of WHOs Framework Convention on Tobacco Control held in India from 7 to 12 November 2016. While the links between tobacco control and human rights were emphasised at this conference, a child-rights approach was missing. We argue that this novel angle provides important legal tools to protect the health and well-being of children. Because children are seen as ‘replacement smokers’ by the tobacco industry, protecting children in this context is key to haltering the devastating effects of tobacco use and exposure worldwide.

Human rights and public health: towards a balanced relationship

In international law there are many references to the protection of public health contrasting with other interests, including the interests of trade, commerce, intellectual property protection, transportation and warfare. Potentially, in such contexts, the ‘right to health’ as an economic and social right can be used as an additional collective claim to advance the health of the public, thus counterbalancing such interests as international and domestic trade and the conduct of warfare. While this approach has potential, it should be born in mind that public health measures potentially infringe on the civil and political rights of individuals, including their rights to privacy and freedom of movement. We are thus dealing with a complex relationship between public health, human rights and international law that is still ill-understood. An integrated approach to human rights, taking into account both civil and political and economic, social and cultural rights, seems the most balanced response to public health concerns.

Medicine procurement and the use of flexibilities in the Agreement on Trade-Related Aspects of Intellectual Property Rights, 2001–2016

Abstract Millions of people, particularly in low- and middle-income countries, lack access to effective pharmaceuticals, often because they are unaffordable. The 2001 Ministerial Conference of the World Trade Organization (WTO) adopted the Doha Declaration on the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement and Public Health. The declaration recognized the implications of intellectual property rights for both new medicine development and the price of medicines. The declaration outlined measures, known as TRIPS flexibilities, that WTO Members can take to ensure access to medicines for all. These measures include compulsory licensing of medicines patents and the least-developed countries pharmaceutical transition measure. The aim of this study was to document the use of TRIPS flexibilities to access lower-priced generic medicines between 2001 and 2016. Overall, 176 instances of the possible use of TRIPS flexibilities by 89 countries were identified: 100 (56.8%) involved compulsory licences or public noncommercial use licences and 40 (22.7%) involved the least-developed countries pharmaceutical transition measure. The remainder were: 1 case of parallel importation; 3 research exceptions; and 32 non-patent-related measures. Of the 176 instances, 152 (86.4%) were implemented. They covered products for treating 14 different diseases. However, 137 (77.8%) concerned medicines for human immunodeficiency virus infection and acquired immune deficiency syndrome or related diseases. The use of TRIPS flexibilities was found to be more frequent than is commonly assumed. Given the problems faced by countries today in procuring high-priced, patented medicines, the practical, legal pathway provided by TRIPS flexibilities for accessing lower-cost generic equivalents is increasingly important.

Adopting New International Health Instruments - What Can We Learn From the FCTC?: Comment on “The Legal Strength of International Health Instruments - What It Brings to Global Health Governance?”

This Commentary forms a response to Nikogosian’s and Kickbusch’s forward-looking perspective about the legal strength of international health instruments. Building on their arguments, in this commentary we consider what we can learn from the Framework Convention on Tobacco Control (FCTC) for the adoption of new legal international health instruments.

Dutch Realities: Evaluating Health Care Reform in the Netherlands from a Human Rights Perspective

In light of the rising costs of health care, the Netherlands has introduced regulated competition into its health care system from 2006 onwards. In addition, it is trying to contain the costs with the gradual introduction of a number of austerity measures. This chapter looks at these developments from the perspective of the internationally guaranteed human right to health, thereby paying particular attention to the dimension of ‘access to health care’ under the right to health. An assessment is made of the legal entitlements to health care, and the recognition of the right to health care in the Netherlands. Subsequently, the Dutch health care system is analysed in light of an important component of the human right to health, i.e. the ‘AAAQ’ requirements, which stipulate that health care services have to be available, accessible, acceptable and of good quality. This will be followed by an analysis of the governmental ‘obligation to protect’, in the light of which attention will be paid to accountability mechanisms for addressing possible failures to realise the right to health (care) in the Netherlands. The overall aim of this chapter is to illustrate how from the perspective of the right to health a developed country like the Netherlands tries to cope with a number of serious challenges in the health sector. Our main findings are that while the international right to health is not given much recognition in the Netherlands, the notions underpinning this right are embedded in Dutch law, policies and practice. In terms of health outcomes, issues of concern are the rising socio-economic health inequalities, which raise the question of how such inequalities can best be tackled, for example by improving the living conditions of disadvantaged groups within the population and by placing more emphasis on prevention. Furthermore, health care privatisation and the recent cuts in health care expenditure raise some issues with regard to the ‘AAAQ’, for example in terms of geographic accessibility and affordability of care. When it comes to accountability and participation in the Dutch health care system, the problems are not so much a lack of mechanisms, but rather a lack of coordination and efficiency.

The right to health : A multi-country study of law, policy and practice

Health and Millennium Development Goals in Africa: Deconstructing the Thorny Path to Success.- Ensuring the Realization of the Right to Health through the African Union (AU) System: A Review of its Normative, Policy and Institutional Frameworks.- Equality and the Right to Health: A Preliminary Assessment of China.- The Right to Health in Japan: its implications and challenges.- Codification and implementation of the Right to Health in the Arab World.- The right to health and access to health care in Saudi Arabia with a particular focus on the women and migrants.- The Realization of the Right to Health for Refugees in Jordan.- The Right to Health: the Next American Dream.- The Brazilian Human Rights Indicators System: The Case of the Right to Health.- Aboriginal-specific Health Initiatives and Accessible Health Care in Canada are goodwill initiatives enough.- The Right to Health in Peru: persistent vulnerabilities in the context of HIV/AIDS.- The Right to Health for Vulnerable and Marginalised Groups: Russia as a Case Study.- The Challenges to Realising the Right to Health in Ireland.- Dutch Realities: Evaluating Dutch Health Care Reform from a Human Rights Perspective.

Doctors in Arms: Exploring the Legal and Ethical Position of Military Medical Personnel in Armed Conflicts

This contribution discusses the legal and ethical position of military medical personnel during armed conflicts. In such situations two difficult issues arise. Firstly, military health workers frequently become the object of an attack, which is a violation of their neutrality as medical personnel. Secondly, they themselves face difficult issues of ‘dual loyalty’: they need to navigate between the interests of the patient, on the one hand, and that of their employer, the military, on the other. This contribution attempts to clarify and strengthen the legal position of military medical personnel, in particular when it comes to providing medical services around the battlefield. To do so, a basis is sought in the intertwined areas of international humanitarian law (IHL), human rights law (HRL), and medical ethics. It is argued that insufficient attention has been paid to bringing these three discourses together conceptually. It will be shown that these three disciplines provide a somewhat incoherent yet compelling framework for medical personnel during armed conflicts. In a nutshell, this framework guarantees the inviolability and neutrality of medical personnel and it stipulates that medical considerations should prevail over military ones when it comes to priority setting between patients.

Human Rights and the Tobacco Industry: An Unsuitable Alliance

Like all private businesses, the tobacco industry has a responsibility to respect human rights. This means a responsibility not to harm human rights through the products that it brings on the market. For the tobacco industry, this makes a very clear case: by producing, marketing and selling a product that is deadly by design, the tobacco industry flagrantly violates this human rights responsibility.

The Legal Enforceability of Articles 8.2 and 5.3 of the WHO Framework Convention on Tobacco Control: The Case of the Netherlands

Since 2005, the WHO FCTC is binding on the Netherlands. Since that time, the Dutch courts have addressed Articles 8.2 and 5.3 FCTC on three occasions. In this article, we review these three cases in order to analyze the legal enforceability of Articles 8.2 and 5.3 FCTC in the Netherlands. Special attention is paid to the role the guidelines and recommendations adopted by the Conference of the Parties played in these cases. We observe that the legal enforceability of both articles depends on the specific circumstances of the case. We argue that the Dutch courts should have given more careful consideration to the FCTC guidelines and recommendations.

Curbing the lifestyle disease pandemic: making progress on an interdisciplinary research agenda for law and policy interventions

By 2030, noncommunicable diseases (NCDs) will be the leading cause of death in every region in the world. While law and policy have an important role to play in curbing this pandemic, our current understanding of how they can most effectively be used is still limited. This contribution identifies a number of gaps in current research and insists on an interdisciplinary research agenda between law, health science and international relations aimed at designing concrete proposals for laws and policies to curb the NCD pandemic, both globally and domestically.