Diplomatic Protection
According to the United Nations (2008) Draft articles on Responsibility of States for Internationally Wrongful Acts 2001, “[e]very internationally wrongful act of a State entails the international responsibility of that State.” The UN continues to say, “[a]n internationally wrongful act of a State may consist in one or more actions or omissions or a combination of both. Whether there has been an internationally wrongful act depends, first, on the requirements of the obligation which is said to have been breached and, secondly, on the framework conditions for such an act, which are set out in Part One.” Based on the former, “the requirements of the obligation which is said to have been breached”, encompasses aspects, such as the right to health as will be analyzed in the subsequent discussion of this paper. “The right to health means that governments must generate conditions in which everyone can be as healthy as possible. Such conditions range from ensuring availability of health services, healthy and safe working conditions, adequate housing and nutritious food. The right to health does not mean the right to be healthy” (WHO, 2007). This statement is not particular on what is meant by the term “government”. It begs the question as to whether the word “government” mandated to ensure the right to health is national or international. This paper, thus, aims to synchronize governmental responsibility in protecting the right to health at the international front with the culpability of a State as far as internationally wrongful acts are concerned. It will achieve this with the help of a case scenario as will be subsequently clarified.
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The legal standoff between Allegria and Amargura was provoked by the acquisition of AIDS by Pablo Mareno, an Allegrian national, in Amargura National Hospital after being transfused. Moreno filed a case against them in the Amarguran courts, but it did not sail through as the High Court claimed that there was no proof of malpractice by the hospital or state authorities. This prompted a diplomatic move by the Allegrian government, which filed an application against Amargura before the International Court of Justice in a bid to protect Moreno’s right to health. Though Amargura declined any responsibility, a critical look at this legal impasse in the light of articles addressing issues of international law will brighten our outlook on the culpability of Amargura.
As brought out at the onset of this paper, the right to health is not isolated to national governments, but is also enshrined in several international human rights treaties. An example is the International Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR). In article 12 of the ICESCR, the right to health is clearly protected. It states,
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for…The creation of conditions which would assure to all medical service and medical attention in the event of sickness (UN, 2007).
Moreover, the right to health is also envisaged in the article 25 of Universal Declaration of Human rights, 1948 (UDHR) which states, “[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food…medical care and necessary social services, and the right to security in the event of…sickness, disability” (UN, 2012).
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The involvement of Allegria in this matter of international concern is valid on the aforementioned grounds of international right to health. Since Moreno exploited the legal redress available in Amargura namely the High Court, which did not uphold his right to health, Allegria had the legal mandate to push for diplomatic action. Amargura acted in breach of the inalienable right to health that belonged to Moreno in the spirit of the UDHR and ICESCR aforementioned. By virtue of the right to health being an international right, Amargura had the obligation to protect this right whether at the national or international arena. For instance, “the Mavromattis case before the permanent court of international justice in which [he] had requested his state, Greece, to intervene on his behalf against the United kingdom” set a precedent for the involvement of the State on behalf of its citizens in case, their international rights were breached (Arnold & Quenivet, 2008). Arnold & Quenivet continue to say, “By taking up the case of one of its subjects and by resorting to diplomatic action…a State is in reality asserting its own rights-its rights to ensure, in the person of its subject, respect for the rules of international law.”
Moreover, the standards of international law also guarantee admissibility of the case against Amargura. The preconditions necessitating the involvement of Allegra on behalf of Moreno include nationality of the injured party, exhaustion of the means of legal redress within the state and breach of international law by the receiving state (Federal Department of Foreign Affairs, 2007). In this case, Moreno is an Allegran citizen, he sort legal redress through the High Court of Amargura, but his case never received fair trial, and his right to health was breeched because of the poor infrastructural facilities in the said hospital. Even though it is true that Amargura is a poor developing country, it will not be exonerated as the article of ICESCR requires that hospital facilities guarantee excellent medical services. The claim by Amargura that Allegria lacked a substantive case since it presented insufficient evidence that necessarily linked the transfusion to the transmission of AIDS seems justified. However, other individuals who were transfused together with Moreno also acquired AIDS, therefore, providing strong evidence for the transfusion as the culprit. Therefore, this would require Allegria to obtain permission from Amargura which is unlikely to grant it. Any attempt by Allegria to obtain such evidence devoid of permission by Amargura will breach the sovereignty of Armagura. A lack of evidence notwithstanding, there is a high probability that this case will go in favor of Allegria and, therefore, Moreno.
Last but not least, the Corfu Channel case provides yet another strong reason to hypothesize the outcome. In this landmark case involving the United Kingdom and Albania, reparations were imposed upon Albania after they infringed upon the right of innocent passage by the Royal Navy of the United Kingdom. Even though a preliminary objection was presented by Albania because of the unilateral referrals by United Kingdom, the International Court of Justice rejected this claim, since Albania had submitted a letter showing her willingness to appear for the case (forum prorogatum). Based on the merits that Albania was aware of the presence of the mines in the Corfu Channel and by withholding this crucial information from the UK Navy, it infringed on the principle of Humanity.
Conclusion
In this case study, Amargura was also aware of the inadequacies in her National Hospital, but went ahead to transfuse persons without performing thorough screening or making them aware of the incapacity of the Amargura National Hospital before proceeding with such a risky operation. Thus, the State of Amargura is highly culpable for the breach of international rights.
