Worldwide, close to 42 million people are living with HIV/AIDS. Although there are no legally binding international treaties on HIV/AIDS, every country in the world has signed at least one human rights treaty that includes health-related rights. What role can international law play in ensuring that treaties are upheld?

Human rights are not dependent upon being given or granted by governments since people are entitled to human rights simply as a part of being human. Further, they are not always legal rights. They become legal rights when they are included in legal documents such as international treaties and domestic law.

A study undertaken as part of the Crisis States Programme at the London School of Economics and Political Science (LSE), UK, considers the link between development and international law. It specifically questions the role that international law plays in addressing the HIV/AIDS epidemic, including its reference to the ‘right to development’ debate.

HIV transmission is largely behaviour-related and so behavioural and attitudinal changes play an important role in managing the crisis. HIV/AIDS cure and prevention is a concern not just for health policy but also for human rights laws that regulate behaviour in general. HIV/AIDS-related laws can fulfil many functions in relation to this issue.

This LSE research shows that it is possible to regulate and respond to the crisis without necessarily having a formal legal framework in place. It also illustrates the usefulness of such a framework. Focusing on existing laws and policy, the study found that:

• Transforming human rights into legal rights allows access to supporting frameworks and mechanisms in the international arena, such as legal guidance and complaints procedures of treaty-monitoring bodies within the United Nations.
• Some aspects of a law can be extended to some groups without necessarily applying the whole body of law.
• A ‘right to development’ as a principle of international law could allow for new action regarding HIV/AIDS.
• The language used to discuss human rights is unclear – development practitioners and lawyers often use different terminology.
• The vague nature of international treaties is problematic, while some even set out seemingly conflicting demands.
• A human rights approach that works in one country will not necessarily work in another.

Law does have a role as one ‘tool’ among many in addressing the HIV/AIDS epidemic. International human rights law now forms a set of principles to which most governments subscribe, and provides a legal framework even in countries that lack explicit HIV/AIDS-related laws. In this context, the research offers a number of policy implications:

• Human rights advocates dealing with the HIV/AIDS context should learn to acknowledge and use the flexibility of international human rights laws.
• International law should be incorporated into and influence national policy and law, as human rights must be implemented first and foremost at national and local levels.
• People living with HIV/AIDS can make complaints regarding discrimination under the rules of international treaties if their governments have ratified them.
• NGOs or advocacy groups can question a country’s practice regarding HIV/AIDS under many of the reporting mechanisms of the treaties.

Source(s):
‘Law as a Tool: The Challenge of HIV/AIDS’, London School of Economics, by Jenny Kuper, December 2004 Full document.

Funded by: Development Studies Institute (DESTIN) at the London School of Economics

id21 Research Highlight: 18 November 2005

Further Information:
Jenny Kuper
Crisis States Research Centre
London School of Economics
Houghton Street
London WC2A 2AE
UK

Tel: +44 (0)20 7849 4631
Fax: +44 (0)20 7955 6844
Contact the contributor: j.kuper@lse.ac.uk

Crisis States Programme, London School of Economics, UK

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