The Development of Health Law as a Way to Change Traditional Attitudes in National Legal Systems. The Influence of International Human Rights Law: What is Left for the National Legislator?

Abstract:

The development of health law as a sovereign subject of law could be seen as a correlative result of the development of international human rights law. From the perspectives of human rights law, health law gives us a unique possibility to change the traditional point of reference — from the regulation of medical procedures, to the protection of human rights as the main objective of law. At the end of the twentieth and the beginning of this century, human rights law and the most influential international instrument — the European Convention on Human Rights (and the jurisprudence of the ECHR) has influenced health care so much that it has became difficult to draw a line between these subjects.

Health law sometimes directly influences and even aspires to change the content of Convention rights that are considered to be traditional. However, certain problems of law linked to health law are decided without influencing the essence of rights protected by the Convention, but just by construing the particularities of application of a certain right. In some cases by further developing the requirements of protection of individual rights that are also regulated by the health law, the ECHR even “codifies” some fields of health law (e.g., the rights of persons with mental disorders).

The recognition of worthiness and diversity of human rights and the development of their content raise new objectives for national legislators when they regulate the national legal system. Here the national legislator is often put into a quandary whether to implement the standards of human rights that are recognized by the international community, or to refuse to do so, taking account of the interests of a certain group of the electorate.