SATMED: Legal Aspects of the Physical Layer of Satellite Telemedicine
In 2003, Paul Hunt, the U.N. Commission on Human Rights’ Special Rapporteur on the Right to Health, presented a report on the global availability of health care. Special Rapporteur Hunt argued that states are obligated to implement a right to health. Included in this right is the obligation “to ensure that no international agreement or policy adversely impacts upon the right to health, and that .. . international organizations take due account of the right to health, as well as the obligation of international assistance and cooperation, in all policy-making matters.” One area Hunt left unexplored in his report was the effect of international telecommunications law on the right to health, particularly with regard to satellite technologies that have the capacity to greatly improve the accessibility, availability, acceptability, and quality of care in developing countries, especially in rural areas.Article 25 of the Universal Declaration of Human Rights (UDHR)- together with the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)–encapsulates an individual right to health care and corresponding state obligations to ensure the availability of health facilities and technologies. As this Note will demonstrate, however, international telecommunications law protects state sovereignty and explicitly authorizes states to erect barriers to satellite-based telemedicine, a technology that could provide access to medical professionals on a nondiscriminatory and cost-effective basis to patients otherwise lacking access to health care. Despite the international community’s recent recognition that space technologies contribute to the realization of economic, social, and cultural rights, it has failed to reconcile the right to health care and the authority of states to exclude the underlying technology necessary for telemedicine and telehealth. Thus, the international community has not fulfilled its obligation to avoid adverse conflicts between other areas of international law and the right to health. This Note argues in favor of an international undertaking that corrects these inconsistencies by ensuring that patients, particularly those in rural areas, have access to the telecommunications infrastructure necessary to receive the health care benefits of telemedicine technologies.