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Chapter I of the Charter of fundamental rights of the European Union is entitled
« Dignity » and Article 1 borrows from the German Grundgesetz the principle of
inviolability of human dignity.
The
following introductory remarks will be divided into two parts : first
a short evocation of the philosophical sources of the concept of human
dignity and second, a review of the modalities of access to the
effective enjoyment of such right, namely in the field of health care.
I.
Philosophical Sources of Human Dignity
The very concept of human dignity goes back to the earliest Antiquity,
Christian and pagan. The human being is invested in the Creation and
above all other living beings with a dignity which makes him according
to a Cartesian expression “master and possessor of Nature”. One is
nowadays conscious to what excesses has been brought the exploitation
of natural resources. Such criticism which is akin to ecological
preoccupation is stressing the aristocratic ideal which seems inherent
to human dignity.
The exploitation of nature and its consequence, the destruction of the
environment is a violence made to nature — in Latin and in latin
languages the word is feminine and it suggests that, as women have
been and still are, nature is the victim of the violence and the greed
of men. The word “rape” is perfectly fit to describe the exploitation
of nature, which was assumed by rich peoples for the benefit of the
rich at the expense of the poor, Indian communities, slaves,
workpeople devoid of any right. It would be too simple to oppose North
to South. All inhabitants of the Northern countries do not share in
the exploitation of natural resources and there exists in the South
social strata which are helping in the looting.
The most actual philosophical expression of human dignity has been
framed in the last years of the eighteenth century by a German
thinker, Kant. Human beings may not be treated as an object or a
means, but as an end. The Kantian golden rule is : “behave against
the other as you wish to be treated yourself”. Kant adds : “humanity
is itself a dignity”. The notion of humanity is universal : dignity
belongs to every human being, whatever his or her race, religion,
nationality. The international provisions which forbid
discriminations are only referring to such criteria. Poverty,
destitution, ignorance are no sources of discrimination because one
does not want to be conscious that such discriminations are engendered
by the social fabric.
The aristocratic origin of the concept of dignity is corroborated by a
semantic usage which is more alive than the egalitarian approach. The
word points to a function or an attribute which distinguishes and
separates their holder from all other human beings : such as the royal
dignity, the episcopal dignity, etc. In the dictionaries of theology,
either of protestant denominations or of the Catholic church, the word
“Dignities” makes no reference to the dignity of all men and women,
but to the attributes invested on dignified persons. According to
Cicero, “dignitas” is a virtue of the male, corresponding to “venustas”
(Venus) in the fair sex.
II.
Juridical consequences of the concept of human dignity and their
application to the field of health care
Some international instruments — but not the European Charter — set
health among the fundamental human rights.
Art. 25,1 of the Universal Declaration of Human Rights (1948) :
Everyone has the right to a standard of living adequate for the health
and well-being of himself and of his family, including food, clothing,
housing and medical care and necessary social services …
Art. 12,1 of he International Covenant on economic, social and
cultural rights (1966) :
The State Parties to the present
Covenant recognize the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health.
See also Article 11 of the European Social Charter (1961).
In the European Charter, the enjoyment of health is dealt with in two
articles.
Article 3, Right to the integrity of the person
Everyone has the right to respect for his or her physical and
mental integrity.
In the fields of medicine and biology, the following must be
respected in particular :
-
the free and informed consent of the person concerned, according to
the procedures laid
down by law,
-
the prohibition of eugenic practices, in particular those aiming at
the selection of persons,
-
the prohibition of making the human body and its parts as such a
source of financial gain,
-
the prohibition of the reproductive cloning of human beings.
Those
provisions protect everyone against state’s immixtion within the
bodily integrity. It does not guarantee any effective access to
health care, which is contemplated by another Article.
Article 35 Health care
Everyone has the right of access to preventive health care and the
right to benefit from medical treatments under the conditions
established by national laws and practices. A high level of human
heath protection shall be ensured in the definition and implementation
of all Union policies and activities.
The first sentence contains a notable restriction : ”under the
conditions established by national laws and practices”. The Charter
hand over the protection of health to the legal order of each state.
No trace whatever of a fundamental right enjoying a higher level of
protection. The second sentence is a pious vow.
As other economic, social and cultural rights the right to health care
is handicapped by the necessity of requiring positive prestations of
the collectivity. Traditional human rights, those which are fairly
well guaranteed by the European Convention protect the subject against
States’ aggression or immixtion. Such is also the nature of Article 3
of the European Charter. It is much more difficult to realize rights
implying a positive performance of the collectivity.
No progress can be contemplated but for a strong action of the organs
of the civil society. Public authorities have to be required to
implement a health policy favourable to the needs of the most
destitute. Health care expenses have become a burden of the
collectivity.
The actual choices remain elitist : sophisticated medicine instead of
a preventive one, favour to health care of already privileged people.
In democratic states, each citizen is, through the electoral process,
able to influence the state : the access to health care for the most
destitute should be an objective of political parties and NGOs should
act in that direction.
I shall terminate by the quotation of a German poet : Friedrich
Schiller, who had retained Kant’s doctrine, embodying it in a manner
adapted to the subject-matter of this conference :
Würde des Menschen
Nicht mehr davon, ich bitte euch. Zu essen gebt ihm, zu wohnen,
Habt ihr die Blösse bedeckt, gibt sich die Würde von selbst.
(Schiller,
Epigramme)
Human
dignity
Don’talk any more, please. Give him food,
lodging,
Cover their nudity, dignity will follow by
itself.
(Schiller, Epigrams)
François Rigaux
Prof emeritus of the
Université catholique de Louvain |
Mr
Neil Davies
