Could human rights supersede bioethics?

Human Rights Law Review

Volumn 10, Issue 4, 2010, Pages 639-660

  Ashcroft, Richard E ^a  

^a QUEEN MARY UNIVERSITY OF LONDON   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 78649655482     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngq037     Document Type: Article

References (113)

1. Article 1.1, Universal Declaration on Bioethics and Human Rights 2005 (UDBHR), available at: http://www.unesco.org/new.org/new/en/social_and_human_rights/ [last accessed 28 September 2010].
2. Sugarman and Sulmasy (eds), Methods in Medical Ethics (Washington, DC: Georgetown University Press, 2001).
3. Bosk, What Would You Do? Juggling Bioethics and Ethnography (Chicago, IL: University of Chicago Press, 2008).
4. Fox and Swazey, Observing Bioethics (New York, NY: Oxford University Press, 2008).
5. Evans, Playing God? Human Genetic Engineering and the Rationalization of Public Bioethical Debate (Chicago, IL: University of Chicago Press, 2002).
6. Furthermore, see the classical work, Rothman, Strangers at the Bedside: A History of How Law and Bioethics Transformed Medical Decision Making (New York, NY: Basic Books, 1991).
7. The history of bioethics can conveniently be traced through the history of research ethics since the Nuremberg Doctors' Trial of 1946/7: see Weindling, Nazi Medicine and the Nuremberg Trials: From Medical War Crimes to Informed Consent (Basingstoke: Palgrave MacMillan, 2004).
8. Schmidt and Frewer (eds), History and Theory of Human Experimentation: The Declaration of Helsinki and Modern Medical Ethics (Stuttgart: Franz Steiner Verlag, 2007).
9. Halpern, Lesser Harms: The Morality of Risk in Medical Research (Chicago, IL: University of Chicago Press, 2004).
10. Kutcher, Contested Medicine: Cancer Research and the Military (Chicago IL: University of Chicago Press, 2009).
11. Reverby, Examining Tuskegee: The Infamous Syphilis Study and its Legacy (Charlotte, NC: University of North Carolina Press, 2009).
12. The linked history of drug regulation, including the Thalidomide story, can be traced in Abraham, Science, Politics and the Pharmaceutical Industry: Controversy and Regulation in Drug Development (London: Routledge, 1995).
13. Rothman places most emphasis on the civil libertarian narrative; more recent historians place more emphasis on institutional factors, including risk management and professional conflict, notably Evans, Fox and Swazey, Kutcher and, especially, Stevens, Bioethics in America: Origins and Cultural Politics (Baltimore, MD: Johns Hopkins University Press, 2000).
14. See, for example, Rothman and Rothman, Trust is Not Enough: Bringing Human Rights to Medicine (NewYork, NY: New York Review of Books, 2006).
15. Farmer and Campos, 'Rethinking Medical Ethics: A View from Below', (2004) 4 Developing World Bioethics 17.
16. Baxi, Human Rights in a Posthuman World: Critical Essays (New Delhi: Oxford University Press, 2007).
17. Plomer, The Law and Ethics of Medical Research: International Bioethics and Human Rights (London: Cavendish, 2005).
18. Murphy (ed), New Technologies and Human Rights (Oxford: Oxford University Press, 2009).
19. Francioni (ed), Biotechnologies and International Human Rights (Oxford: Hart, 2007).
20. Ashcroft, 'The Troubled Relationship Between Bioethics and Human Rights', in Freeman (ed), Law and Bioethics: Current Legal Issues, Vol II (Oxford: Oxford University Press, 2008) 31.
21. Widdows, ' 'Is Global Ethics Moral Neo-Colonialism?'An Investigation of the Issue in the Context of Bioethics', (2007) 21 Bioethics 305.
22. Beauchamp and Childress, Principles of Biomedical Ethics, 6th edn (New York, NY: Oxford University Press, 2008).
23. Douzinas, The End of Human Rights (Oxford: Hart, 2000).
24. Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton, NJ: Princeton University Press, 2005).
25. See the critical discussion of this point in Fox and Swazey.
26. Thanks to Thérèse Murphy for this point.
27. Ashcroft,'The Ethics and Governance of Medical Research:What Does Regulation Have to Do With Morality?', (2003) 1 New Review of Bioethics 41.
28. Dixon Woods and Ashcroft, 'Regulation and the Social Licence for Medical Research', (2008) 11 Medicine, Health Care and Philosophy 381.
29. For a more detailed and circumspect argument along similar lines concerning the UK Nuffield Council on Bioethics, see Brownsword,'Bioethics: Bridging from Morality to Law?', in Freeman (ed).
30. This is an issue requiring intensive research, but Brownsword's work on the competition at the level of discourse between human rights and other styles of argument in public bioethics leads the way: see Brownsword, Rights, Regulation and the Technological Revolution (Oxford: Oxford University Press, 2008).
31. On the special case of intellectual property, see Gibson, Intellectual Property, Medicine and Health: Current Debates (Aldershot: Ashgate, 2009).
32. Daniels, Just Health: Meeting Health Needs Fairly (Cambridge: Cambridge University Press, 2008).
33. McGee (ed), Pragmatic Bioethics, 2nd edn (Cambridge, MA: MIT Press, 2003).
34. A lucid exposition of this point is Raz, 'Human Rights Without Foundations', in Besson and Tasioulas (eds), The Philosophy of International Law (Oxford: Oxford University Press, 2010) 321.
35. See also Gearty, Principles of Human Rights Adjudication (Oxford: Oxford University Press, 2004).
36. Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford: Oxford University Press, 2007).
37. This section draws heavily upon Faunce, 'Will International Human Rights Subsume Medical Ethics? Intersections in the UNESCO Universal Bioethics Declaration', (2004) 31 Journal of Medical Ethics 173.
38. He has since developed some applications of his argument in this early piece, although the substance of his theoretical argument has not changed: see Faunce and Nasu, 'Normative Foundations of Technology Transfer and Transnational Benefit Principles in the UNESCO Universal Declaration on Bioethics and Human Rights', (2009) 34 Journal of Medicine and Philosophy 296.
39. Similar arguments have been developed by Andorno, for instance in Andorno, 'Human Dignity and Human Rights as a Common Ground for a Global Bioethics', (2009) 34 Journal of Medicine and Philosophy 223.
40. Contributors to Turoldo (ed), La Globalizzazione della Bioetica: Un Commento alla Dichiarazione Universale sulla Bioetica e i Diritti Umani dell'UNESCO (Padova: Fondazione Lanza, 2007).
41. Have and Jean (eds), The UNESCO Universal Declaration on Bioethics and Human Rights: Background, Principles and Application (Paris: UNESCO, 2009).
42. 999 UNTS 171 (ICCPR).
43. Avery informative discussion of the to and fro between international law and medical ethics in determining applicable standards for convictions of crimes against humanity in the context of the Nuremberg doctors' trial is Schmidt, Justice at Nuremberg: Leo Alexander and the Nazi Doctors' Trial (London: Palgrave Macmillan, 2004).
44. Faunce develops this theme in his more recent paper with Nasu.
45. See also Bennett, Health Law's Kaleidoscope: Health Law Rights in a Global Age (Aldershot: Ashgate, 2008).
46. He relies on Article 38(1) of the Statute of the International Court of Justice.
47. Attack this weaker thesis, overlooking the possibilities of the stronger thesis. The relationship between legal practices and ethical reasoning in the context of medicine is currently under theorised, but a particularly useful contribution has been made by Miola, Medical Ethics and Medical Law: A Symbiotic Relationship (Oxford: Hart, 2007).
48. McCorquodale, 'The Individual and the International Legal System', in Evans (ed), International Law, 2nd edn (Cambridge: Cambridge University Press, 2006) 307.
49. Cassese, International Criminal Law, 2nd edn (Oxford: Oxford University Press, 2008).
50. Steiner, 'International Protection of Human Rights', in Evans.
51. The Struggle for Global Justice, 3rd edn (NewYork, NY: The New Press, 2006).
52. Boyle, 'Soft Law in International Law-Making', in Evans.
53. Much discussed in the context of European Law: see Armstrong and Kilpatrick, 'Law, Governance or New Governance? The Changing Open Method of Coordination', (2007) 13 Columbia Journal of European Law 649.
54. Rome Statute of the International Criminal Court, A/Conf.138/9, 37 ILM (1998) 99.
55. See further Henckaerts and Doswald-Beck, Customary International Humanitarian Law (Cambridge: ICRC and Cambridge University Press, 2005) Rule 92.
56. It will be possible to prosecute 'bioethical offences' of various kinds under the Statute of the International Criminal Court.
57. Aside from the standard crimes under international humanitarian law (including at Article 8(2)(a)(ii), 'torture or inhuman treatment, including biological experiments'), the Statute explicitly defines a range of crimes of a eugenic nature, such as forced pregnancy and enforced sterilisation (under Article 7(1)(g), identifying these as Crimes against Humanity, and under Article 6(d), identifying group-targeted 'measures intended to prevent births'as a form of genocide).
58. The inclusion of 'bioethical offences' into the corpus of core international crimes deserves full treatment elsewhere.
59. The leading theoretical contribution here is Agamben, Homo Sacer (Palo Alto: Stanford University Press, 1998).
60. That many of the bioethical issues directly concern violence against women is important: see Sellers, 'Individual(s) Liability for Collective Sexual Violence', in Knop (ed), Gender and Human Rights (Oxford: Oxford University Press, 2004) 153.
61. Charlesworth and Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester: Manchester University Press, 2000).
62. An amusingly bloody-minded exchange illustrating this is Fenton and Arras, 'Bioethics and Human Rights: Curb Your Enthusiasm', (2009) 19 Cambridge Quarterly of Healthcare Ethics 127.
63. Annas, 'Human Rights and American Bioethics: Resistance is Futile', (2010) 19 Cambridge Quarterly of Healthcare Ethics 133.
64. Fenton and Arras, 'Wrong Again - Rejoinder to Annas' (2010) 19 Cambridge Quarterly of Healthcare Ethics 141.
65. Notably Beyleveld and Brownsword, Human Dignity in Bioethics and Biolaw (Oxford: Oxford University Press, 2002).
66. Griffin, On Human Rights (Oxford: Oxford University Press, 2008).
67. Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009).
68. Buchanan, Human Rights, Legitimacy, & the Use of Force (Oxford: Oxford University Press, 2010).
69. No comprehensive overview of ECtHR jurisprudence and medical/health law exists, comparable to Hervey and McHale's survey of EU health law, Health Law and the European Union (Cambridge: Cambridge University Press, 2004).
70. Excellent general surveys of ECtHR jurisprudence exist, although health law jurisprudence is somewhat marginal to their concerns: see Harris et al., Harris, O'Boyle andWarbrick: Law of the European Convention of Human Rights, 2nd edn (Oxford: Oxford University Press, 2009).
71. But on specific topics, Bartlett et al., Mental Disability and the European Convention on Human Rights (Leiden: Martinus Nijhoff, 2007).
72. Choudhry and Herring, European Human Rights and Family Law (Oxford: Hart, 2010).
73. Murphy and Ó'Cuinn, 'Works in Progress: The European Court of Human Rights and New Technologies', in this issue of the Human Rights Law Review, are comprehensive, and Wicks, Human Rights and Healthcare (Oxford: Hart, 2007) has a satisfactory if now dated coverage of the impact of the Human Rights Act 1998 on English healthcare law, which permits a partial evaluation of the parallel European Convention jurisprudence on this area.
74. I recognise that this is a controversial view, and other commentators, for instance Murphy, are more sanguine about the positive role of the ECtHR in fixing norms in a variety of areas (notably mental healthcare law, and the intersection of family law and medical law in reproductive healthcare law, and transgender identity, for instance).
75. My view, which is evolving, is that the Court is much more comfortable when it is able to exercise 'public law' functions of review of legislative, administrative or procedural aspects of governance relationships between state and citizens/subjects, than when it is asked to address a moral issue qua moral issue.
76. Further analysis of the Court's jurisprudence and practice is necessary to flesh this out fully.
77. This does not touch on what happens when domestic courts 'bring rights home', as the Human Rights Act 1998 requires them to do.
78. This is clearly the case where an issue which the ECtHR handles under the 'margin of appreciation' nevertheless engages Convention rights, and appears in a domestic court: see Re P [2008] UKHL 38.
79. See further Kavanagh, Constitutional Review Under the UK Human Rights Act (Cambridge: Cambridge University Press, 2009).
80. However, I do not think this affects my basic thesis about the relationship between human rights considered as a normative framework for bioethical reasoning. This appears-when it does appear-in relatively pure form at the ECtHR.
81. Whereas, the complex embedding of the European Convention in English law raises the 'different' question about the 'legalisation' of bioethics-the translation of bioethical principle into a form which is a continuation of the evolution of the common law.
82. This question-about the supersession of bioethics by biolaw-is well treated, but with considerable scepticism, by Montgomery, 'Law and the Demoralisation of Medicine', (2006) 26 Legal Studies 1.
83. Brazier and Glover 'Does Medical Law Have a Future?', in Hayton (ed), Law's Future(s): British Legal Developments in the 21st Century (Oxford: Hart, 2000) 371.
84. This is likely to change, now that, as seems likely, the European Union (EU) will accede to the European Convention on Human Rights as a party in its own right, and that through the Lisbon Treaty the EU has incorporated the EU Charter of Fundamental Rights and Freedoms into the primary law of the EU.
85. These developments taken together will grant the individual citizen of EU member states a range of possibilities for litigating bioethical issues which are now closed to her.
86. Put another way, they are pre-political, rather than political, see Dembour, Who Believes in Human Rights? Reflections on the European Convention (Cambridge: Cambridge University Press, 2006).
87. For a critique of the European Convention and its jurisprudence and its weakness in promoting substantive human rights and revisionist accounts of personal dignity and freedom from the point of view of feminist, Marxist and other theories.
88. See the more theoretical treatments of human rights in the abstract by Douzinas.
89. Who argue that a substantive conception of human rights does inhere in human rights jurisprudence: the challenge for them is to explain how this coheres with ECtHR jurisprudence in cases such as Vo v France 2004-VIII.
90. EHRR 12 or Evans v United Kingdom 2007-IV; 46 EHRR 34, where the Court has quite determinedly stuck to a proceduralist line and applied the margin of appreciation doctrine forcefully to exclude substantive moral argument.
91. Convention for the Protection of Human Rights and Human Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine 1997, ETS 164 (Oviedo).
92. Additional Protocol on the Prohibition of the Cloning of Human Beings 1998, ETS 168.
93. Additional Protocol Concerning Transplantation of Organs and Tissues of Human Origin 2002, ETS 186.
94. Additional Protocol Concerning Biomedical Research 2004, ETS 195.
95. Additional Protocol on Genetic Testing for Health Purposes 2008, ETS 2003.
96. Article 29 of the Oviedo Convention provides for the ECtHR to be approached for an advisory opinion on the interpretation of the Oviedo Convention, at the request of 'the Government of a Party, after having informed the other Parties' or following a 2/3 vote of the members of the Steering Committee on Bioethics established under Article 32 (or of any other committee designated by the Committee of Ministers of the Council of Europe).
97. Clearly, this does not permit individual applications.
98. A representative case being MAK and RK v United Kingdom Application Nos 45901/5 and 40146/06, 23 March 2010. Could Human Rights Supersede Bioethics? 657.
99. International Covenant on Economic, Social and Cultural Rights 1966, 993 UNTS 3 (ICESCR), respectively.
100. For the definitive statement to this effect.
101. On torture, see Miles, Oath Betrayed: America's Torture Doctors (Berkeley, CA: University of California Press, 2009).
102. Allhoff (ed), Physicians at War: The Dual-Loyalties Challenge (Berlin: Springer, 2008).
103. Rodley and Pollard, The Treatment of Prisoners Under International Law, 3rd edn (Oxford: Oxford University Press, 2009).
104. On international biomedical research and human rights.
105. Kinley, Civilising Globalisation: Human Rights and the Global Economy (Cambridge: Cambridge University Press, 2009).
106. Lang, 'Re-thinking Trade and Human Rights', (2007) 15 Tulane Journal of International and Comparative Law 335.
107. For an illustration of this, contrast the types of report and argument made by the European Group on Ethics, reporting to the European Commission, or the UK Nuffield Council on Bioethics or Human Genetics Commission, with those made in academic research into the same topics.
108. See, for an illuminating discussion, Brownsword, 'Bioethics: Bridging from Morality to Law', in Freeman.
109. The standard discussion of this issue is Beyleveld and Brownsword.
110. Donnelly, Universal Human Rights inTheory & Practice, 2nd edn (Ithaca NY: Cornell University Press, 2003).
111. I recognise that this is a very strong thesis, and an odd one for a philosopher to maintain. But recognising that human rights are instrumental and political as much as normative and rational is crucial to an understanding of their meaning as it arises from their use.
112. For a sociological argument to this effect, see Woodiwiss, Human Rights (London: Routledge, 2005).
113. And for a general defense of this approach to understanding social life, see Winch, The Idea of a Social Science and its Relation to Philosophy (London: Routledge and Kegan Paul, 1958).