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The Law and Policy of Healthcare Financing

An International Comparison of Models and Outcomes

Edited by Wolf Sauter, Jos Boertjens, Johan van Manen and Misja Mikkers

Examining the ways and extent to which systemic factors affect health outcomes with regard to quality, affordability and access to curative healthcare, this explorative book compares tax-funded Beveridge systems and insurance-based Bismarck systems. Containing contributions from national experts, The Law and Policy of Healthcare Financing charts and compares the merits of healthcare systems throughout 11 countries, from the UK to Colombia.
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The Regulation of E-cigarettes

International, European and National Challenges

Edited by Lukasz Gruszczynski

Combining the insights of leading legal scholars and public health experts, this unique book analyses the various legal problems that are emerging at different levels of governance (international, European and national) in the context of the regulation of e-cigarettes. The expert authors assess in depth the possible application of the precautionary and harm reduction principles in this area, examine the legal constraints imposed on states by international and European rules, as well as the regulatory approaches currently in place in selected national jurisdictions.
Open access

Marie Elske Gispen

Tobacco use is the largest preventable cause of non-communicable diseases (NCDs) including cancers and respiratory and cardiovascular diseases. Human rights law can be a valuable mechanism to ensure accountability and advance implementation and enforcement of tobacco control interventions as included in the Framework Convention on Tobacco Control. There is a certain gap in the current body of literature as there is no single human rights approach and the interpretation and implementation of rights may vary across legal systems and countries. With this book, we aim to fill this gap by providing a comprehensive collected account of human rights and tobacco control in international regional and domestic legal systems. In doing so, we aim to address the full spectrum of human rights across all stages of the tobacco supply chain. The book therefore provides a unique insight by addressing human rights concerns in the production stage (such as tobacco farming), consumption of tobacco products, assistance in cessation, and concerns related to exposure to second-hand smoke.

Open access

Deryck Beyleveld

This chapter argues that analysis of the concept of a human right implicit in the provisions of the UDHR 1948, when coupled with the claim that only agents are intelligibly held to be addressors and addressees of practical rules (hence of duties), entails that any legal system purporting to give effect to the UDHR must operate in consistency with the Principle of Generic Consistency (PGC) of the late American philosopher Alan Gewirth. The PGC grants equal rights to all agents (hence all human agents), and only to agents, to ‘generic conditions of agency’ (GCAs), the non-possession of which (to some extent at least) damages the ability of an agent either to act at all, or to do so with general chances of success, regardless of the purposes involved. These ‘generic’ rights are both positive and negative under the will conception of rights (according to which agents may waive the exercise of their generic rights, provided that this does not result in interference with the generic rights of other agents against their will). It is for this latter reason that the PGC grants the generic rights only to human beings under the presumption that they are agents (and that human dignity as the basis of the rights recognized by the UDHR is only possessed by human agents). Nevertheless, it is argued that, because of intrinsic human cognitive vulnerabilities, all beings capable of behaving like agents must be held to have generic rights, and that, while no beings incapable of such behaviour may be held to have generic rights (which means that not all children, no unborn children, and not all adult human beings may be held to have generic rights), agents must recognize duties to human apparent non-agents in relation to ‘agency-like’ capacities that they are capable of displaying. Consequently, while the PGC permits human agents to smoke, the permissibility of this behaviour is limited not only by the proviso that it not cause generic harm to other (apparent) agents against their will, but also by a proviso that it not cause harms to interests displayed by apparent non-agents that would be GCAs if the apparent non-agents were apparent agents when the latter harms are not necessary to protect the generic rights of apparent agents. The chapter applies this framework as the basis for a critical evaluation of current regulations of smoking guided by respect for human rights.

Open access

Andreas Schmidt

This chapter defends a legal human right to tobacco control. Building on existing work, the chapter argues that the legal case for such a right is strong. Existing international human rights treaties, chiefly the International Covenant on Economic, Social and Cultural Rights, recognize a human right to health alongside several other rights that speak for covering tobacco control under human rights law. Drawing on Allen Buchanan’s pluralistic justificatory framework for human rights, the chapter argues that the philosophical case is strong too. Tobacco is among the deadliest public health threats worldwide and its health impacts so severe that humans should have a claim against their governments to protect them against the harms of tobacco. Human rights law is a promising avenue to strengthen this claim. The chapter then defends a human right to tobacco control against several philosophical worries. For example, is strong tobacco control compatible with personal freedom? Is it compatible with personal consent? Would human rights legislation facilitate power relations that unduly restrict national and individual self-determination? This chapter argues that concerns with freedom of choice, consent and power relations do not speak against tobacco control. Conversely, a concern with power relations speaks for a human right to tobacco control as it could lessen the power asymmetries between tobacco companies and vulnerable populations, such as children, smokers of lower socio-economic status and citizens in low-income countries with weaker governance structures.

Open access

Oscar Cabrera and Andrés Constantin

This chapter explores the different ways in which tobacco control and human rights are mutually reinforcing frameworks. Tobacco control has strong legal foundations in international law. International human rights systems provide promising avenues for monitoring implementation of human rights obligations related to tobacco control. This, in turn, contributes to developing standards that will ultimately help to interpret tobacco control norms in line with human rights. The FCTC and the guidelines provide a clear path for countries on measures aimed at reducing the devastating effects of tobacco consumption. The chapter further discusses how human rights law not only provides avenues for monitoring compliance with FCTC implementation, but also gives a broader grounding for tobacco control as a human rights issue. In turn, the FCTC gives content to human rights obligations, in particular those related to the right to health. Lastly, the chapter concludes with a discussion on the relevance of deepening and strengthening these connections to reduce inequities in society as we continue to make progress in tobacco control and implementation of the FCTC.

Open access

Lottie Lane

The tobacco industry is notorious for side-stepping human rights responsibilities, regardless of its substantial (negative) impact on the enjoyment of various human rights. The industry, consisting primarily of business enterprises, is considered under international law to be a non-State actor. Consequently, it has no binding international human rights law obligations and is not subject to any binding human rights enforcement mechanisms. Debate regarding the (lack of) human rights accountability of business enterprises has been abundant in recent years and several initiatives and mechanisms have been developed to try to hold businesses responsible at the international level for interfering with the enjoyment of human rights. This chapter critically examines the current international human rights accountability of the tobacco industry. The chapter first provides the definition of accountability used throughout the chapter (Section 2). The position of the tobacco industry under international human rights law is then addressed, examining both binding and non-binding tools that have been developed to hold business enterprises more generally, and the tobacco industry more specifically, accountable for their harmful conduct vis-à-vis human rights (Section 3). Section 4 comprises a critical analysis of the (human rights) judicial and quasi-judicial accountability mechanisms to which the tobacco industry is currently subject. Concluding remarks are provided in Section 5.

Open access

Amandine Garde and Brigit Toebes

Of all WHO regions, Europe has the highest prevalence of tobacco smoking among adults and some of the highest prevalence of tobacco use by adolescents. Smoking therefore remains a major public health concern in the European region, which poses significant questions from the perspective of law, policy and human rights. This chapter addresses whether there is a human rights approach to tobacco control in Europe, looking at the Council of Europe and the EU. There are both differences and synergies between both organizations. While the Council of Europe has not adopted any tobacco control policy or strategy, the EU has adopted a number of tobacco control rules, in particular the Tobacco Advertising Directive and the Tobacco Products Directive. When it comes to addressing human rights specifically, the chapter concludes that there is no comprehensive and unified European human rights approach to tobacco control. Yet there are synergies, where both the ECtHR and the CJEU are very reluctant to uphold claims based on freedom of expression when challenges are mounted against tobacco advertising legislation. Furthermore, the ECtHR has clearly recognized that exposure to SHS falls within the remit of Articles 2, 3 and 8 ECHR. The CJEU, along similar lines, sees the protection of public health as a decisive factor, thus implicitly protecting the right to health.

Open access

Yi Zhang

The WHO reports that tobacco use kills more than 7 million people each year. Currently, there are over 1.3 million adult smokers living in Southeast Asia, accounting for almost 10 per cent of the world’s smokers. Southeast Asia is also one of the largest tobacco producers in the world. All States but one in Southeast Asia are party to the WHO Framework Convention on Tobacco Control (FCTC), the first global public health treaty developed by countries as a response to the globalization of the tobacco epidemic. Nevertheless, there are severe disparities in implementing the FCTC across countries in this region, ranging from the implementation of specific articles to overall implementation. Moreover, one densely populated country in Southeast Asia – Indonesia – has not yet signed the FCTC. Considering the strong connection between tobacco control and human rights, this chapter explores the potential of advancing human rights approaches to tobacco control in the Southeast Asian region. It looks specifically at the role of the Association of Southeast Asian Nations (ASEAN) as a regional organization in supporting such approaches to strengthening tobacco control.