The duty of treatment: human rights and the HIV/AIDS pandemic.

• Author: Novogrodsky, Noah

INTRODUCTION

On the floor of the hut lies a young woman--always young--in her twenties or thirties, so wan and emaciated as to be unable to lift either hand or head. I bend down, painfully inadequate to the circumstance, and touch her brow, uttering some pointless banality which is intended to soothe, and then as I step back, looking around me, I see her children, all her children, standing in the darkened shadows, watching their mother die. (1) Imagine a disease so deadly that it kills a quarter of the population in the prime of their lives. Envision a drug powerful enough to forestall certain death by decades. Further imagine that a small group of companies had priced the drug at a level affordable to only a fraction of the population. Now consider a court with the authority to compel delivery of the drug for desperately ill people, to grant life through a judicial order.

As anyone familiar with the legal struggle over AIDS drugs knows, each of these postulates is all too real. The Human Immunodeficiency Virus (HIV), the retrovirus that leads to Acquired Immunodeficiency Syndrome (AIDS) is devastating much of the developing world, particularly East and Southern Africa. In 2007, UNAIDS (the only United Nations division dedicated to a single disease) counted 33.2 million infected persons worldwide, a staggering 22.5 million of whom live in subSaharan Africa. (2) The same year, 72% of all adult and child deaths due to AIDS occurred in sub-Saharan Africa. (3) In South Africa alone, between 800 and 1000 people die every day of AIDS-related complications. (4)

The drugs to treat AIDS exist and have rendered the vast majority of these deaths entirely avoidable. Comprehensive education, prevention, and treatment programs in the global north have greatly reduced the likelihood of transmission. (5) Infected persons with access to life-sustaining highly active anti-retroviral therapy (described variously as HAART, ART or ARVs) have dramatically reduced rates of morbidity and mortality and can expect a vastly improved the quality of life. For People Living with HIV and AIDS (PLWHA), the medicines have converted the disease from a death sentence to a manageable chronic illness. (6) ART is readily available in developed countries--the drugs are usually covered by public or private health insurance (7)--and to wealthy individuals the world over. (8) Since 2001, the cost of first line drugs has dropped precipitously. The price of triple-combination HIV/AIDS therapy purchased from originator companies fell by 95%, and generics became widely available in many developing countries at a discount of 99%. (9) Drugs that cost $10,000 to $15,000 per patient per year in 2001 now cost $132 in generic form. (10)

The life-altering power of ARVs has had profound legal and political consequences. AIDS activists, in alliance with some developing countries, have waged a multi-front campaign to gain access to ART in which they have employed imaginative strategies in domestic debates and legal actions around the globe. (11) Spurred in part by legal activism, international, governmental, and nongovernmental agencies have belatedly begun "to channel money, consultants, condoms, and other commodities to AIDS programs all over the world." (12) Much of the funding is used to purchase ARVs. (13) Since 2002, the Global Fund to Fight AIDS, Tuberculosis and Malaria ("the Global Fund") has committed $6.8 billion in 136 countries to scale up prevention, care and treatment. (14) In combination with $56 billion from the President's Emergency Plan for AIDS Relief (PEPFAR) in the U.S., (15) and the philanthropic efforts of private donors including the William J. Clinton Foundation (16) and the Bill and Melinda Gates Foundation, (17) the Global Fund has ensured that more money is directed to global AIDS than to any other international health problem, (18) and that a significant percentage of that funding is used to purchase ART. The price of generic ARVs and the funding interests of international donors have emboldened the World Health Organization (WHO), the United Nations and treatment providers to speak publicly of "universal access" to ART by 2010. (19)

In early 2007, however, fewer than 1.5 million Africans were receiving ART, out of at least 4.6 million in immediate need. (20) In the past five years, more than 10 million Africans have died of AIDS, most of whom would be alive if they had lived elsewhere.

Despite the cataclysmic toll and the alarming inequities in access to life-saving medicines, the disease is frequently described as just one aspect Noah Novogrodsky, Senior Scholar, O'Neill Institute for National and Global Health Law, Georgetown University Law Center, and Visiting Professor, University of Connecticut School of Law, nbn2@law.georgetown.edu. I am grateful for the advice and comments of Lawrence Gostin, Harold Koh, Rick Brooks, Isadora Helfgott, Charles Novogrodsky, Meg deGuzman, Tara Melish, Eric Friedman, Susan Benesch, Vicki Jackson, David Luban, Nina Pillard, Jonathan Todres, Julia Fromholz, Gerald Caplan, Stephen Lewis, Megan McLemore, Joe Amon, Nick Robinson, Katharine Young, Eric Naiman, and Asli Bali. I am also indebted to Lindsay Gastrell, Zeynep Darendeliler, Michael Yedinak and Caitlin Sochacki for their excellent research assistance and to the many Seminario en Latinamerica de Teoria Constitucional y Politica (SELA) participants for their help in understanding Latin American legal developments. The work of Tara Melish, Alicia Yamin and Mary Ann Torres was particularly helpful to me for their analysis as well as their translations of the Latin American cases, many of which are only available in Spanish. The title was inspired by Diane Orentlicher's Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 YALE L. J., 2357 (1991). The early versions of the paper were inspired by the participants in the Spring 2008 Yale Law School HIV/AIDS in Africa Reading Group. The later drafts of this paper profited immensely from the edits of Sarah Cox and Lee Sims of the University of Connecticut School of Law Library and the dedicated team of editors at the YHRDLJ. of a public health catastrophe, a barrier to development, (21) a failure of foreign policy priorities, (22) and a threat to military and political stability. (23) Legal demands for treatment within the field of HIV/AIDS and human rights are often eclipsed by questions of stigma and discrimination, (24) poverty and underdevelopment, (25) and a larger critique leveled at the global intellectual property regime. (26)

Each of these portrayals misses the reality that national courts and administrative tribunals are increasingly finding that individuals have a human right to anti-retroviral treatment to combat HIV/AIDS. Across the globe, most strikingly in low and middle-income states, judicial authorities are holding that claims to treatment articulate a justiciable right that is grounded in domestic law and supported by international human rights commitments. In many jurisdictions, legal recognition of this kind now forms the basis for affirmative demands that state officials provide medicines to infected persons. The treatment jurisprudence thus disproves the overly general assertion that courts are incapable of deciding positive rights cases which require an evaluation of government spending or that doing so violates separation of powers principles. Instead, an increasing number of states, health authorities, or government ministries have followed or preempted legal action by ensuring widespread access to ARVs. The global treatment cases thus provide an instructive lesson in the enforcement of economic and social rights, one that embraces domestic litigation and related legislative processes as a means of enunciating and ultimately implementing contested norms.

Neither courts nor scholars have given sufficient consideration to the theoretical basis for ordering treatment or to the significance of judicial enforcement of a single manifestation of socio-economic rights. This article speaks to that gap by examining why and how AIDS advocates have succeeded in establishing a human right to treatment of HIV. Part I traces the relationship of human rights law to the virus and explores the limitations of the civil and political rights framework originally used to advance the interests of people living with HIV/AIDS. Part II explores the right to treatment as an increasingly well articulated representation of the right to health within the global case law and interpretive decisions of authoritative bodies. This section recognizes the phenomenon of judicially compelled treatment and identifies domestic courts as the locus of a particular expression of the right to health. Part III 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 a vision of law governed by national Constitutions but informed by diverse international human rights commitments, and catalyzed claims to treatment in ways that devalue intellectual property rights and upend development orthodoxies. Part III elaborates the components of the treatment success while considering what this body of law portends for the enforcement of other social and economic rights. I conclude by asking whether the treatment revolution will serve as a paradigm-shifting event commensurate with the scale of the global tragedy that is AIDS.

1. THE AIDS PANDEMIC AND HUMAN RIGHTS

   Although the burden of AIDS is carried by the global south, the relationship between AIDS and human rights has evolved in response to the nature of the crisis in the developed world. Until recently, the field was predominantly defined by the civil and political rights protections demanded...