The Duty of Treatment: Human Rights and the HIV/AIDS Pandemic

Noah B. Novogrodsky, University of Wyoming College of Law

Abstract

Abstract This article argues that the treatment of HIV and AIDS is spawning a juridical, advocacy and enforcement revolution. The intersection of AIDS and human rights was once characterized almost exclusively by anti-discrimination and destigmatization efforts. Today, human rights advocates are demanding life-saving treatment and convincing courts and legislatures to make states pay for it. Using a comparative Constitutional law methodology that places domestic courts at the center of the struggle for HIV treatment, this article shows how the provision of AIDS medications is reframing the right to health and the implementation of socio-economic rights. First, it locates an emerging right to treatment in the global case law and authoritative decisions of treaty bodies. Second, it argues that the right to treatment has transformed rights discourse, strengthened the conceptual interdependence and indivisibility of all human rights and reframed the role of the judiciary. The third and final section of this article develops a three-part model that begins to theorize the potentially transformative nature of the global treatment jurisprudence. This model argues that the struggle for treatment has appropriately synthesized previously disconnected human rights norms, grounded socio-economic rights enforcement in domestic legal arenas and catalyzed claims to treatment in ways that devalue intellectual property rights and upend development orthodoxies. This section elaborates the components of the treatment success while considering what this body of law portends for the enforcement of other social and economic rights. The article concludes by asking whether the treatment revolution will serve as a paradigm-shifting event commensurate with the scale of the global tragedy that is AIDS.