The judiciary and the AIDS response
30 June 2010
The AIDS epidemic has raised new and complex legal and human rights challenges leading to judicial rulings on matters related to HIV that have become part of the jurisprudence of many countries. Through interpretation of national constitutions, legislation and international human rights treaties, the judiciary has sometimes had a transformative and beneficial impact on the national response to HIV and on the public perception of HIV.
Enabling jurisprudence has emerged in countries as diverse as Australia, Botswana, Brazil, India, Iran, Kenya, Namibia, South Africa, United Kingdom, United States of America and Venezuela. This includes judgments on employment law, access to education, medical insurance, treatment in prisons, segregation, confidentiality, access to medicines, and the rights of prisoners. Through a well-informed, evidence-based and protective application of the law, the judiciary can create the type of legal and social environment necessary to halt and roll back the AIDS epidemic; to provide access to justice to those affected; and to achieve national commitments to attain universal access to HIV prevention, treatment, care and support.
Beyond the court, members of the judiciary are leaders in their communities and societies who should be engaged in the response to HIV. Their stance, attitudes and behaviour towards HIV-related issues, people living with HIV and members of most at risk populations can help shape social attitude towards these populations. Members of the judiciary can challenge stigma and discriminatory practices against people living with HIV and members of key populations both inside the court and within the community at large.
However, in the quickly evolving area of scientific, medical and legal issues related to HIV epidemic, there has been little opportunity for judges to take stock of epidemiological and scientific developments. Nor has role of members of the judiciary as agents of justice and protectors of human rights been fully explored or used to address vulnerability to HIV and ensure human rights protection for all in the context of the epidemic.
Recognising the potential and actual role of the judiciary in the AIDS response, UNAIDS is committed to supporting the judiciary, including in the following areas:
- Providing opportunities for continuing education and discussion among the judiciary on recent developments in the HIV response and their legal implications
- Supporting judges to make the courts more accessible to all people affected by HIV
- Stimulating rights-based and evidence-informed standard-setting on pertinent HIV-related legal and human rights issues by and for members of the judiciary
- Creating opportunities for members of the judiciary to exchange with key stakeholders of the HIV response, including people living with HIV, women affected by HIV, and members of key populations at higher risks.
UNAIDS’ support to judiciary leadership is guided by its commitment to working with key national and international actors towards the removal of “punitive laws, policies, practices, stigma and discrimination that block effective responses to AIDS”, as affirmed in the UNAIDS Outcome Framework 2009-2011
UNAIDS sees members of the judiciary as key stakeholders in supporting and enforcing a protective legal environment to the HIV response.
According to Susan Timberlake, Senior Human Rights and Law Advisor at UNAIDS, “Through the courts, judges can uphold non-discrimination based on HIV status, protect women and key populations from violence and denial of services, and overturn punitive laws that violate human rights in the context of the epidemic.”
As part of the efforts to engage the judiciary in the HIV response a groundbreaking meeting of eminent African jurists was held in Johannesburg, South Africa in December 2009 to discuss HIV and the law in the 21st century.