Ksondzyk K. The formation of treaty and institutional principles of international legal protection of somatic and reproductive human rights.

Українська версія

Thesis for the degree of Candidate of Sciences (CSc)

State registration number

0418U001718

Applicant for

Specialization

  • 12.00.11 - Міжнародне право

14-05-2018

Specialized Academic Board

Д 26.001.10

Taras Shevchenko National University of Kyiv

Essay

The dissertation is an independent completed scientific work, comprehensive research of treaty and institutional mechanisms of international legal protection of SRHR. The study provides an author's definition of the concept and outlines the list of rights that relate to somatic and reproductive human rights. Also, it is found in the study that among reproductive rights, as well as among somatic rights, it is possible to distinguish universally recognized and controversial rights. In addition, the author analyzes the peculiarities of somatic and reproductive human rights, establishes their common and distinctive features. Somatic and reproductive rights are similar, since they in one way or another relate to the freedom of a person to dispose of his or her own body. However, in essence, these rights have many differences. The main difference between somatic and reproductive rights is that they have a different regulatory object and a different method of regulation. In general, reproductive rights is a more narrow category and their subject matter is related to somatic human rights, since everything related to the reproductive sphere of a person affects its corporeality, but not vice versa. The paper analyzes the history of the formation and development of the concept of protection of the SRHR in international law. It is determined that the doctrine of SRHR have developed separately. The concept of reproductive rights has developed since the middle of the twentieth century and is quite common among Western scholars. The concept of somatic human rights arose a bit later and was actually created by Russian scholars. The place of the SRHR in the modern mechanism for the protection of human rights has been determined. Author argues that the SRHR emerged from already established and recognized human rights and they are closely linked to the right to life, the right to health, the right to respect for private and family life, the right to freedom from discrimination, the right to freedom from torture and sexual violence. In addition, reproductive rights are closely linked to the protection of the rights of women and children, but equally apply to men. The author comes to the conclusion that the majority of the SRHRs are positive by their nature because they are to be provided by the state with special measures. Some SRHR can be recognized only in the case of extreme medical necessity (on vital signs), often their implementation is vital to other people, but they do not significantly affect the human existence and development. The author concludes that one of the most important treaties regulating the sphere of the SRHR is the Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine of 1997 and four Protocols thereto: Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, on the Prohibition of Cloning Hyman Beings of 1998, Additional Protocol to the Convention on Human Rights and Biomedicine, concerning Transplantation of Organs and Tissues of Human Origin of 2002, Additional Protocol to the Convention on Human Rights and Biomedicine, concerning Biomedical Research of 2005, Additional Protocol to the Convention on Human Rights and Biomedicine concerning Genetic Testing for the Health Purposes of 2008. The principles of regulation of activities related to the SRHR are defined. The paper also states that the special principles of modern international law governing the sphere of activity related to somatic and reproductive rights include: the principle of respect for dignity and human rights; the principle of non-discrimination and equal treatment; the principle of voluntary, informed consent of a person to conduct medical or scientific research on him or her; the principle of superiority of the interests and welfare of an individual over the interests of society and science; the principle of research compliance with professional criteria and standards; the principle of maximum benefit and minimum risks for the person under study; the principle of confidentiality of the data of the patient or person on whom the research is conducted. In addition, the author's work shows that the principle of respect for human dignity and human rights, as well as the principle of non-discrimination, meet the criteria necessary to recognize a particular rule of conduct as a customary norm of international law. The legislation of foreign states and Ukraine on the regulation of activities related to the SRHR has been analyzed. States regulate most of the somatic and reproductive human rights in different ways. It is established that, in general, Ukrainian legislation meets its international legal obligations and the main international standards in the field of human rights.

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