Balancing Public interests and Human Rights Maya Peled Raz, Adv. (LLB, MPH, PhD) University of Haifa

The basic assertion Regulatory interventions, aimed at the promotion of public interests, Are inherently aimed at the promotion of human rights. Infringe on the individual rights of at least part of the population.

rights that might be infringed upon Right to bodily integrity/health Vaccination, fluoridation Right to autonomy health warnings, repulsive imagery, required breast-feeding course Right to freedom of occupation licensing requirements, sanitation requirements, closure orders… Right to privacy notification requirements… Some are Patient Care related, and some are not.

Identify and acknowledge infringed-upon rights First step to good governmental/institutional intervention: Identify and acknowledge infringed-upon rights Some infringements may be unsubstantial or miniscule, and may not require farther consideration, but they should still be acknowledged first.

Balancing schemes Almost every constitutional guarantee of certain rights attaches limitations to the breadth of those rights in an effort to balance the interests of the individual with those of the state when certain conditions arise Derogation clauses – allow states to breach obligations to uphold certain rights for reasons related to war or public emergency. Limitation clauses (or “clawback” clauses) allow for the suspension or restrictions of guaranteed rights to which they apply, under specific conditions.

International Covenant for Civil and Political Rights (ICCPR) Derogation clause Article 4. 1. Example of limitation clause – Article 12. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant (1) to the extent strictly required by the exigencies of the situation, (2)provided that such measures are not inconsistent with their other obligations under international law and (3) do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. Everyone shall be free to leave any country, including his own. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

Example Israeli Basic Law: Human Dignity and Liberty Sec. 12 Derogation Sec. 8 Limitation This Basic Law cannot be varied, suspended or made subject to conditions; notwithstanding, when a state of emergency exists, by virtue of a declaration under section … Emergency regulations may be enacted by virtue of said section to deny or restrict rights under this Basic Law, provided the denial or restriction shall be for a proper purpose and for a period and extent no greater than is required. There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.

Case Study: Increased compliance with vaccination program Suggested regulatory interventions: An addition to child allowance made conditional on proof of child immunization status. Or Unvaccinated (age appropriate) children be restricted from entry into public education system.

The Balancing scheme: Common terms for infringement In accordance with law By the appropriate authority; Either directly by the Legislative Branch (not the executive branch), or based on its explicit authorization. Has to be specifically drawn; The infringement must be spelled out. Applied generally and not solely to an individual case. Subject to review.

Consistent with other fundamental rights Respectful of human dignity Non-discriminatory in purpose and practice Due process … Accessibility to health care in the Bedouin diaspora accessibility to health care in the Bedouin diaspora

For a legitimate (worthy) aim Necessary or required in order to advance or secure an important public/social need indispensable > necessary > admissible, reasonable or desirable Based on an objective proof of need! When health related - epidemiologic assessment of actual or perceived health threat is a must. Is there really a meaningful lack of immunization compliance?

Reasonably expected to advance/ achieve stated goal. How likely is it to do what it’s set out to do? Based on objective data and considerations! Who’s not vaccinating? Why? Will they be moved (enough) by less child-allowances? No entry into public education?

Minimally restrictive A State shall use no more restrictive means than are required in order to achieve the legitimate aim. The use of a more-intrusive mean would not be legitimate until less restrictive means were shown to be ineffective (at-all or enough). Based on objective data and considerations! Yet – it may be debatable as to which of 2 intrusions is the less intrusive one…. Which is the less restrictive? Did we try & fail less restrictive means?

Proportionate when viewed in relation to explicit stated objectives. Does the goal justify the mean? The weightier the aim is – more important/urgent/critical –harsher infringements on HR may be justified. Some aims might never be met, as the effective intervention would not be proportional. Moral assessment. Not objective data. Forced vaccination?

Public Health Law v. HRPC Public interest <>= Individual rights infringed Public Health focus HRPC focus Case study: Accessibility to health care in the Bedouin diaspora

Thank you  Questions?