The HIV/AIDS pandemic and human security.

Author:Novogrodsky, Noah Benjamin
Position:The HIV/AIDS Pandemic and the Role of International Law - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

The panel was convened at 2:45 p.m., Friday, March 31, by its chair, Ellen Walker, who introduced the panelists: Obijiofor Aginam of Carleton University; Nikki Naylor of Interights; and Noah Novogrodsky of the University of Toronto School of Law. *


The HIV/AIDS pandemic has taken an unprecedented toll on human life, especially in sub-Saharan Africa. The speakers in this panel were asked: What are states' obligations in responding to this pandemic? Specifically, what are the respective obligations of sub-Saharan African states, and of other states, in "a just world under law"? What are the limits of the existing international human rights framework in protecting vulnerable individuals and groups? To what extent are so-called "second-generation" rights (social, economic and cultural rights), which include the right to health, justiciable?

First, Noah Novogrodsky provided an introduction to the pandemic, as he and Stephen Lewis typically do in their course on HIV/AIDS and human rights. He pointedly described the devastating toll of HIV/AIDS on societies and addressed the lack of interpretation of international human rights law vis-a-vis HIV/AIDS.

Apportioning state responsibility among heavily impacted African states and the rest of the world requires post-colonial perspectives on Africa's role in the creation and use of international law. The second speaker, Obijiofor Aginam, drew attention to the colonial roots distorting international law discourse and public health diplomacy, and emphasized the interrelatedness of generations of rights.

Third, Nikki Naylor drew on her experience advocating for women's rights in South Africa to discuss its approach to the right to health, and the limits of international human rights law in protecting women. She critiqued international responses and human rights approaches as inadequately accounting for the real experiences of women, for whom violence can create a disincentive to disclose HIV-positive serostatus.

One hopes this session will lead to increased examination of states' responsibility for HIV/ AIDS-related violations occurring around the world, which together constitute a continuing global human rights crisis.


By Noah Benjamin Novogrodsky ([dagger])

Why isn't the HIV/AIDS pandemic the seminal challenge of international human rights law?

Today, more than 40 million people are living with HIV/AIDS; sub-Saharan Africa is home to slightly more than 10% of the world's population but contains more than 60% of all people living with HIV--25.8 million. In 2005 an estimated 3.2 million people in the region were newly infected while 2.4 million adults and children died of AIDS) The death toll from HIV/AIDS represents a tsunami per week.

These statistics speak to a public health crisis of almost unprecedented scale. It is that, of course, but it is also a rupture in the social, economic, and political present, and in the future fabric of many societies.

The impact of the AIDS epidemic can be studied for many reasons:

because it is an interesting phenomenon; because of a pressing desire

to help those in distress now and in the future; because it makes a

mockery of international development goals and prospects for progress

in some countries; because resulting poverty may be a threat to the

national security of the US; or yet again because of a fear that 'AIDS

refugees' may flood the countries of the north is search of

treatment. (2)

Stephen Lewis, the UN Special Envoy on HIV/AIDS in Africa, whose work has been the inspiration for a seminar I teach at the University of Toronto, Faculty of Law, calls the pandemic an apocalypse. He has spent the better part of five years watching a continent die, knowing full well that life-saving treatments available in developed countries would forestall millions of African deaths.

Those who are dying are the most productive segment of the population--sexually active young adults who are the parents, workers, and caregivers needed to reverse the impact. Indeed, the demographics of death have led Alan Whiteside to describe AIDS as a Darwinian phenomenon, a force capable of distorting the human metric of societies by preying on the most significant element of the population. (3) The results are predictable and horrifying: eleven million children orphaned, another twenty million on the horizon. (4)

In his role as Special Envoy, Stephen Lewis has committed himself to describing the enormity of the pandemic in human terms. Time and again, he tells the story of how he witnessed Graca Machel, the former first lady of Mozambique now married to Nelson Mandela, provide the first act of mothering to a group of Ugandan children heading households. (5) He relates how, in Zambia, the answer to how profits of an income-generating project are spent is, "We buy coffins, of course." (6) In Kenya, Lewis reports, only one in ten schoolchildren receives scholarships for school fees, and with it AIDS education and regular meals. And on the outskirts of Lusaka, Stephen Lewis has seen neighborhoods populated almost entirely by orphans and grandparents. Gone are the 25-60- year-olds. The survivors have watched mothers and fathers, sons and daughters die in overcrowded clinics or at home, sometimes on the same marital bed where they were infected. (7)

International law scholars have been slow to view the pandemic as a human rights problem, much less the central challenge facing proponents of human dignity, development, and quality of life. Too often, the disease is viewed solely as a public health concern, devastating to poor, strategically insignificant countries and viewed through the lens of illness and disease control. Recast as a fundamental threat to human security, however, AIDS is revealed as a global menace to the right to health care, the right to live free of discrimination, and the right to life.

There is no shortage of international law governing the impact of AIDS on African states and societies. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health." It further requires that state parties "take the steps necessary to achieve the full realization of this right." Article 24 of the Convention on the Rights of the Child guarantees children the right to health. Article 25 of the Universal Declaration of Human Rights protects the right to health.

These treaties have been interpreted, most famously by General Comment 14 on the right to health at the Committee on Economic, Social and Cultural rights, which gave content to the aspirational commitments contained in Article 12 of the ICESCR and affirmed that states have a non-derogable obligation to provide essential drugs, and to prevent, treat, and control epidemic and endemic diseases. Specifically, states are obliged to take immediate steps, to desist from obstruction, to prevent third parties such as corporations from obstruction, and to ensure the fulfillment of the right to health. (8)

The web of international treaties and conventions is mirrored in a host of regional instruments and in the constitutions and domestic legislation of states suffering under crippling prevalence rates. With increasing frequency, the committees tasked with interpreting international and regional treaties are telling states that they have an obligation to make the right to health care real and, in some circumstances, to ensure the provision of anti-retroviral (ARV) drugs. (9) Likewise, the high courts of some affected states, (10) most notably South Africa's Constitutional Court, have held that the right to health and life in the Constitution and international law require that the Government develop a program to prevent...

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