Right to Health Litigation and HIV/AIDS Policy

Domestic litigation has become a principal strategy for realizing international treaty obligations for the human right to health, providing causes of action for the public’s health and empowering individuals to raise human rights claims for HIV prevention, treatment, and care. In the past 15 years, advocates have laid the groundwork on which a rapidly expanding enforcement paradigm has arisen at the intersection of human rights litigation and HIV/ AIDS policy. As this enforcement develops across multiple countries, human rights are translated from principle to practice in the global response to HIV/AIDS, transforming aspirational declarations into justiciable obligations and implementing human rights through national policies and programs. Yet despite this national progress in creating accountability for health-related rights, there is scarce empirical research on the scope, content, and effect of legal claims pursuant to these human rights standards. As judicial enforcement has increased, rising to the forefront of a budding health and human rights movement, both proponents and opponents of rightsbased policy have questioned the limits of this litigation strategy and the impact of litigation on global HIV/AIDS efforts. Reflecting on this growing back lash, there arises an imperative for interdisciplinary analysis — to survey these rights-based claims, compare divergent legal strategies conducive to the realization of human rights, and assess the effects of this litigation on public health outcomes. This article sketches the evolving interaction between human rights case law and HIV/AIDS policy. To clarify the need for such analysis, this article discusses the promise of human rights litigation in providing accountability for state public health commitments. Given the promise of this litigation in realizing public health outcomes, this article reviews the origins and development of human rights jurisprudence for HIV/AIDS. With this enforcement movement facing increasing criticism for distorting the global health governance agenda, the authors examine the backlash against this human rights jurisprudence in setting HIV/AIDS policy. This article concludes that scholars and practitioners must engage in comparative analyses of these rights-based litigation strategies and empirical research on their public health impacts.