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

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 refraining 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 refrained the role of the judiciary. Third, it contends that the justiciable quality of the right to treatment holds the potential to clarify which rights claims are likely to result in concrete remedies and, by extension, which cases and causes will elevate the status of social and economic rights more generally.