Ethics and Human Rights Research Paper

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Abstract

Should global bioethics and international human rights be considered to arise from the same idealistic human urge to shape our interactions by universally applicable principle? Are both being threatened by the narrower greed and profit-focused principles driving corporate globalization? “Positivist” theories assert human rights (unlike bioethical principles) derive from rules of recognition embedded in four primary legal systems: international law, constitutional law, legislation, and judicial decisions applying common law precedents. In such a scheme, bioethics represents inchoate or potential legal norms that lack the economic clout that trade sanctions, for example, give otherwise more normatively problematic trade and investment agreements. One approach to “natural law” jurisprudence views human rights and bioethics, however, as presumptively cohering with principles implicit in the nature of human interactions and in reality when understood at its most fundamental and ideal forms. From such a perspective, the visionary project to develop both human rights and bioethics as counters to global corporate power exerted through trade and investment agreements may be merging into a normative quest to develop enforceable principles that encourage respect for all forms of life, not merely that of humans.

Introduction

The visionary global project to develop human rights which extended through the eighteenth, nineteenth, and twentieth centuries involved many intersections with bioethics. In the immediate future, both are likely to have a significant role in countering norms supporting corporate sovereignty that arise particularly from trade and investment agreements. After the twenty-first century, human rights and bioethics may become part of a governance quest to develop norms that set human interests in their environmental context and respect all forms of life and the ecosystems in which they dwell.

History And Development

Legal scholars, who embrace the so-called “positivist” school, tend to view the origin of human rights in legal texts such as the tolerance edicts of Ashoka, the Magna Carta, the Virginia Declaration of Rights (1776), the American Declaration of Independence (1776), and the French Déclaration des Droits de l’Homme et du Citoyen (1789). For them the United Nations’ Universal Declaration on Human Rights of 1948 (UDHR) (United Nations 1948) is a “soft law” text with questionable customary international law status and lacking the rule of recognition satisfied legitimacy of ratified conventions such as the International Covenant on Civil and Political Rights (ICCPR) (United Nations 1966a) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) (United Nations 1966b; Baker 2001).

Historically, the development of human rights on the one hand and medical ethics (as a professional subset of bioethics) on the other have many intriguing parallels. John Locke, for example, a founding father of human rights jurisprudence, was a physician pupil of Sydenham, a great clinical empiricist inheritor of the Hippocratic tradition (Dewhurst 1995). Indeed, it is interesting to speculate that a major factor promoting the corpus of universal human rights norms may have been the influence on Locke of Sydenham’s loyalty to the consistent application of universal norms of medical ethics deriving from the Hippocratic Oath, so that the great physician’s character took its hue from the professional virtue of relief of individual patient suffering (Faunce 2007).

The Nuremberg Trials of Nazi doctors after the Second World War for nonconsensual sterilization, active nonvoluntary euthanasia, and experimentation with new military technologies spurred creation of a tripartite collection of documents that remain central to both human rights and bioethics. These documents were the Declaration of Geneva (or modernized Hippocratic Oath), the Nuremberg Declaration on human experimentation, and the International Code of Medical Ethics. They can be viewed as synergistic with the tripartite international Bill of Human Rights: the contemporaneous UDHR as well as the later ICCPR and the ICESCR.

The former instruments were unambiguously directed at relationships between individuals, the latter chiefly with relations between individuals and those artificial entities called nation states.

Particularly, overlapping with norms of bioethics were provisions in the UDHR requiring respect for human dignity and equality (Articles 1 and 2), as well as the human right to life (Article 3). Others echoed foundational principles of medical ethics in prohibiting torture or cruel, inhuman, or degrading treatment or punishment (Article 5), requiring nondiscrimination (Article 7), freedom from arbitrary interference with privacy (Article 12), and progressive realization of the human right to a standard of living adequate for health and medical care (Article 25). In the same category and directly relating to new health technologies was the human right to share in scientific advancement and its benefits (Article 27) (United Nations 1948; Knowles 2001).

Consent to medical treatment by, and experimentation with, health technologies is one area of explicit overlap between bioethics and international human rights. Article 7 of the ICCPR, for example, provides that “no one shall be subjected without his free consent to medical or scientific experimentation” (United Nations 1966a). Under general comment 20, the United Nations Human Rights Committee has interpreted this to require “special protections” – for example, no institutionally nominated surrogate decision making – for persons “under any form of detention or imprisonment” or those hospitalized on grounds of necessity or involuntarily due to mental illness (United Nations 2000). It could extend also to protect patients from doctors who were institutionally prevented from providing such “free consent,” even where such physicians were not considered state agents or where doctors had obtained consent through misrepresenting key elements of the nature of the experimentation.

International humanitarian law (IHL) is another source of human rights norms with relevance to global bioethics. IHL is an aggregation of customary and treaty-based norms concerned with the treatment of the wounded combatants, civilians, and prisoners in war. Its origins may be traced to Henry Durant’s attempts to create a regulatory system that would prevent a recurrence of the unrelieved suffering of wounded soldiers he witnessed on the battlefield after the battle of Solferino in 1859. The Geneva Conventions in 1949, the Hague Convention of 1907, and the Genocide Convention and Nuremberg Charter all impose upon states positive duties to permit, and negative duties not hinder, the exercise of medical professionalism amidst armed conflict. These have now achieved status as customary international law.

Medically related nongovernmental organizations (NGOs), such as the International Red Cross, Physicians for Human Rights, and Médècins Sans Frontières, though often focused on applying medical ethics in the context of armed conflict, are increasingly involved in monitoring, preventing, alleviating, and even defining state violations of international humanitarian law including those related to the use of banned or restricted military technologies. Along with nonphysician groups such as Amnesty International and Human Rights Watch, many of their members view themselves (through their public utterances) as at the vanguard of a cosmopolitan world order normatively governed by instruments such as international humanitarian law and the UDHR, as well as bioethics.

Yet, human rights as a normative system undoubtedly remains highly suspect, particularly in Islamic societies, for its lack of connection with religious law as expressed in the Quran or Sunna. In such societies, norms of international human rights are consistently qualified by shari’a-based Islamic criteria and by suspicions that the primary norm-creating bodies in international human rights are dominated by the representatives of developed, northern countries or large corporations with alien social values. Indeed, the lobbying of some corporations places intellectual monopoly privileges (IMPs) such as patents in a quasi-human rights position alongside the right to life or freedom of association. Bioethics may create an important normative bridge for human rights in such settings during intense future debates over access to emerging technologies related to access to cheap sources of fuel and food as well as medicines. Perhaps, indeed, we may be moving to an understanding that religious ethics, bioethics, and international human rights arise from a common idealist impulse to shape societies according to universally applicable principles derived from our imperfect sensory and intellectual perception of the fundamental nature of reality.

Conceptual Clarification/Definition

According to so-called “positivist” theories, human rights law is a legal system whose norms arise from four primary sources. The first is international law (as defined by Article 38(1) of the Statute of the International Court of Justice) (United Nations 1945). The second involves pro visions in constitutions of political entities recognized as states. The third concerns legislation and the fourth judicial decisions such as those applying principles of common law precedent. Scholars of “natural law” jurisprudence view human rights, however, as presumptively cohering with fundamental principles implicit in the nature of human interactions and in reality when understood at its most ideal forms. On one such interpretation, human rights norms (like principles of bioethics or domestic law) are from a hypothetical eternal perspective attempts to replicate in rules governing or guiding social conduct patterns of harmony that should be perceived in conscience and that cohere with laws of physics such as quantum mechanics and even string theory. On such an interpretation, bioethics and international human rights are likely to merge normatively (Faunce 2005), a view not universally shared (Ashcroft 2010; Gordijn and ten Have 2014).

Ethical Dimension

Intersections Of Bioethics And Human Rights

 International human rights and bioethics manifestly intersect in the regional European Convention on Human Rights and Biomedicine in 1997. The regulatory impact of this convention has been commendable despite the limited ratification, the European Court of Human Rights having referred to and taking into account the convention in dealing with the cases where the countries were involved that did not ratify or even sign it. It enunciates norms about use of new health technologies in areas such as equitable access to health care (Article 3), consent (Chapter II), private life and right to information (Chapter III), the human genome (Chapter IV), scientific research (Chapter V), and organ and tissue removal from living donors for transplantation (Chapter VI).

There are now innumerable tribunals both at national and at regional levels, authoritatively interpreting norms of medical and bioethics (including those concerned with use of new health technologies) in terms of international civil and political human rights. These include the English Court of Appeal and House of Lords as well as the European Court of Human Rights. In the 1997 Case of D v United Kingdom, for example, the European Court of Human Rights held that deportation of an HIV/AIDS-infected patient to his developing country of origin was state conduct which violated his human right to be protected from inhuman or degrading treatment or punishment. The judges reasoned that such deportation would result in his being denied adequate medical treatment and exposed to poor public health conditions including inadequate access to necessary medicines and medical services.

In many other jurisdictions around the world, cases concerning access to and cost-effectiveness assessment of new reproductive technologies, end of life decisions, privacy, and informed consent are now heavily influenced by international civil and political human rights norms, either because of parliamentary or judicial incorporation of human rights into domestic law, or to remedy a common law lacuna, or legislative ambiguity or obscurity. As governments become increasing meshed with multinational corporate interests, such rights become a means of redress against the powerful cliques that take control of the apparatus of political and economic power in the modern nation state

Bioethics And The International Right To Health

Article 12 of the ICESCR created an international right to health legally binding upon those states parties who have ratified it. This involves core obligations relating to fulfilling obligations to provide the basic preconditions for existence, including food, water, fuel, sanitation, housing, reasonable access to essential health services and products as well as (although not as much discussed) capacity to live in a nontoxic environment (UN General Comment 14 2004). There are three general approaches to the implementation of the international human right to health: (1) define universal outcome measures that measure compliance with the core state obligations of the human right to health, (2) establish systematic reporting to responsible international bodies to monitor progress on implementation and compliance with international human rights obligations, and (3) highlight civil rights violations, such as discrimination against protected groups, that inhibit access to health-care services.

The human right to health, both in international law and domestic constitutions, has often been interpreted as a largely symbolic, nonindividually enforceable, progressively realizable concession to normative decency or attempt to claim political legitimacy. Technical and financial as well as conceptual limitations currently prevent it involving a justiciable guarantee for each person of a minimum level of actual health. Progressive realization of such a right requires a margin of appreciation concerning effective use of available resources, including new technologies. The minimum content of this core, which cannot be set aside on grounds of progressive realization, may be conceptualized as a responsibility to reduce serious threats to the health of individuals, or the state’s population, according to international standards.

Effective state infectious disease control (including by new technologies) provides a compelling and justiciable instance of a minimum core public health component of the right to health. This may allow legally prescribed, nondiscriminatory, proportional, and least necessary restrictions on international civil and political human rights such as freedom of movement, freedom of thought, conscience or religion, freedom of expression, peaceful assembly, and freedom of association. Courts have been prepared to use the right to health in domestic constitutions to make states provide basic pharmaceutical treatment to HIV/AIDS patients. Examples include decisions by the Columbian Constitutional Court in 1992 and the decision Velasquez Rodriguez v Honduras in 1988.

In 2002, the South African Constitutional Court (Minister of Health v Treatment Action Campaign 2002) unanimously found the government in breach of s 27(1) (“right of access to health-care services”) and 27(2) (“progressive realization”) concerned with the right to health in that constitution. It held that the government’s policy of restricting the anti-HIV drug “nevirapine” to 18 sites was unreasonably rigid and inflexible, denying babies of HIV-infected mothers outside those sites a potentially lifesaving therapy. The court took note of the fact that the drug was apparently affordable, easy to administer, and recommended by the WHO.

In considering the normative intersections between bioethics and human rights, it is important to take into account that under Article 38 of the Statute of the International Court of Justice (United Nations 1945), it is international conventions and customary international law, among others, that are the sources of international law. Thus, as a declaration, rather than an international convention, the UDHR did not directly create binding human rights norms under international law upon signatory states. Neither did UNESCO’s Universal Declaration on the Human Genome and Human Rights and Universal Declaration on Bioethics and Human Rights. The former text pronounces that the human genome represents part of the common heritage of humanity, while forbidding practices contrary to human dignity, such as human reproductive cloning. The latter instrument, though also nonbinding under international law, arguably provides, if certainly not a codification, then a promotion of bioethical norms onto the global stage. Particularly important are norms of technology transfer, benefit sharing, and social responsibility in relation to essential medicines that specifically apply to corporations (Faunce 2007). Article 14 of the Universal Declaration on Bioethics and Human Rights provides:

“2. Taking into account that 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 and economic, or social condition, progress in science and technology should advance:

(a) access to quality health care and essential medicines, especially for the health of women and children, because health is essential to life itself and must be considered to be a social and human good.

(b) access to adequate nutrition and water;

(c) improvement of living conditions and the environment;

(d) elimination of the marginalisation and the exclusion of persons on the basis of any grounds

(e) reduction of poverty and illiteracy.”

This provision has only “soft norm status,” being more on the side of bioethical principle than human rights law. Yet, the fact that the principles above are specifically addressed to (and create obligations upon) corporations should not be underestimated. It will probably only be a question of time until such norms create obligations upon corporations with stronger enforcement mechanisms.

Trade And Investment Agreements Oppose Global Human Rights And Bioethics

Since the 1990s, US-based multinational corporations through the agency of the US Trade Representative (USTR) and World Trade Organization (WTO) have created dispute settlement mechanisms (enforcing, e.g,, increased pharmaceutical patents terms and data exclusivity rights) through trade and investment agreements that marginalize the role of human rights norms whether based on international conventions or national constitutions. This system has become so economically and politically powerful that it is, in effect, a corporate-driven system for plutocratic global governance by the super-rich one percent. This system is driving not only contraventions in economic, social, and cultural human rights through inequalities in health care but also global oceanic, terrestrial, and atmospheric pollution and species extinction. It is so pervasive and has significantly deleterious impact on earth’s ecosystems that it can be justifiably said to have created a “Corporatocene” epoch. Multilateral trade agreements, such as GATS and TRIPS, as well as certain US-led bilateral and multilateral trade and investment agreements have been influential in this process that side lines human rights and bioethics norms in global public health policy (Faunce 2007).

A state can now by lobbied to “elect,” for example, as have many OECD countries, to place “hospital services” on its “schedule of commitments” to be covered by the “liberalizing” rules of GATS. This executive action (generally no specific parliamentary scrutiny or democratic mandate is necessary) facilitates a reorganization of ownership and management of public hospitals on a corporate profit, insurance-oriented model. Under the GATS “market access” requirement, subsequent more public goods-minded governments would be hindered from legislating to regulate or undo this handover of public health facilities to the private sector.

Governments later seeking to promote local health entities dedicated to fairness and lack of corruption could be challenged under GATS rule of “national treatment” as inappropriately providing more favorable conditions to domestic health-care companies than to foreign corporations. The most favored nation (MFN) rule obligates such administrations to also ensure that most favorable treatment, in terms of trade, granted to any foreign company was extended to all foreign companies wishing to enter this “liberalized” sector. The “domestic regulation” rule likewise makes domestic laws and regulations, including those which protected the public’s health and safety (e.g., by applying the precautionary principle to restrict marketing of potentially dangerous new health technologies) subject to challenge if they were determined to be “unnecessary barriers” to trade or more “burdensome than necessary” to assure the quality of a service.

Investor-state dispute settlement (ISDS) mechanisms allow science-based public health initiatives (such as smoking reduction through tobacco plain packaging) to be challenged before what is in effect a small clique of heavily conflicted and pro-corporate investment arbitrators who have no obligation to take into account human rights or bioethics norms when making large damages awards.

The WTO TRIPS agreement was created by multinational corporations to increase patent rights through application of state-backed trade sanctions. The acronym stands for Trade-Related Intellectual Property (with critics of the democratic legitimacy of the agreement ascribing the “S” to “Scam”). TRIPS created a revolutionary process of influencing the way states balance public and private intellectual property rights (IPRs) (also now termed intellectual monopoly privileges (IMPs)) and societal obligations. This can be seen, for example, in its express exceptions to IMP protections over pharmaceuticals such as compulsory licensing by governments for generic manufacture of medicines (after payment of reasonable compensation to any patent holder) if such medicines were required to be cheaper and more readily available for public health reasons. A public health exception was also allowed in this context for the so-called “data exclusivity” requirement that otherwise undisclosed pharmaceutical data (revealed to regulators for safety and quality marketing approval) be protected from unfair commercial use or disclosure. Agreed transitional periods postponed full TRIPS obligations for the poorest countries (Sell 2003).

Yet, TRIPS can be viewed as formalizing and balancing public knowledge goods generated in the intellectual commons (of, e.g., public-funded universities) to deal rationally with the global burden of disease in accord with core components of the international human right to health. This “ethical” interpretation is supported by the 2001 TRIPS clarification known as the Doha Declaration on TRIPS and Public Health. This declaration affirmed the capacity of WTO members to use the full exceptions in the TRIPS agreement to promote public health by facilitating access to affordable medicines. On 6 December 2006, the WTO also passed a protocol to amend the TRIPS agreement to enhance the capacity of a state to issue a compulsory license to provide citizens with cheap access to a medicine essential to public health, even when that country itself lacked manufacturing capacity. Yet, the USTR continues to lobby vigorously against countries such as Thailand and Brazil that attempt to issue compulsory licenses to facilitate access to essential medicines. A perhaps more realistic interpretation given to the lack of effective action arising from it is that the Doha Declaration was as a necessary public relations exercise by the global patented pharmaceutical industry which was never intended to create human rights obligations that could be enforced.

Bilateral preferential trade and investment agreements have additionally facilitated the plans of multinational pharmaceutical and managed care corporations to exploit “liberalized” markets and challenge universalist (taxpayer funded and egalitarian) domestic health and medicines policies (such as reference pricing cost-effectiveness evaluations of the community value of patented medicines). This is often done on the grounds that they created nontariff trade barriers or insufficiently rewarded health technology “innovation” defined by relation to allegedly competitive markets (the amount of monopoly protections, collusions, cartel arrangements, and special interest pressure on regulators making this a fictional concept) rather than by regulatory systems which scientifically evaluated evidence of objectively demonstrated therapeutic significance (Sell 2003; Faunce 2007).

Conclusion

Norms of international human rights and bioethics are likely to play important roles in developing the new global social contract that inevitably must emerge as humanity, and its ecosystems begin to transition from an age dominated by fundamentalist free-market quasi-religious ideologies (the Corporatocene) into a longer period where humans develop governance principles and rules in which the interests of all forms of life and ecosystems are accorded similar normative status to that now granted to human rights. One term for this period is the Sustainocene (Faunce 2015). Economic, social, and cultural rights related to health care could be enforced as a result of funds acquired by a tax on global financial transactions (Faunce 2015). Financially rewarding whistle-blowers who provide information about corporate fraud will be an important point of normative intersection between ethics and law in this context (Faunce 2007). Other normative initiatives that could facilitate this transition include a low, progressive global tax on capital, a requirement that corporations be married to a approved public good as a condition of yearly registration, that constitutions grant enforceable rights to ecosystems, and that the World Trade Organization and UN Human Rights Organization merge with a World Environmental Sustainability Organization. Distributed renewable fuel and food technologies can create a technological impulse for this normative transition. When, for example, every road, house, and vehicle on the surface of the earth is using sunlight to split water as a source of hydrogen fuel and absorbing atmospheric nitrogen and CO2 as sources of fertilizer and food, humans will begin to “pay their own way” in a bioethics sense and reduce the economic pressure to exploit and degrade nature (Faunce 2015).

Challenges for global bioethics and human rights as we transition from the Corporatocene to the Sustainocene include the millions of women and girls trafficked for prostitution, the victims of and refugees from armed conflict triggered by hate-filled perversions of religious ideology and fuelled by the greed of multinational corporate arms manufacturers and traders, those subjected to torture or rape in the guise of “ethnic cleansing,” the millions of children exploited for labor, sexual gratification or as soldiers, as well as the billions of people living in severe poverty, without adequate obstetric care, food, safe water, sanitation, or equitable access to essential medicines. Yet, equally important with considerations about justice and equity in health care should be the development of hard legal norms related to environmental sustainability, of maintaining the basic conditions for all life to safely occupy the earth. The rise of both bioethics and human rights will become important normative calibration systems whereby global conscience begins to disentangle itself from the rules of greed and avarice that have come to dominate the world in the era of the “Corporatocene.”

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