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A handbook on HIV, law and human rights for the judiciary:A critical tool in a human rights-based HIV response

Richard Elliott, Alison Symington and Cécile Kazatchkine

XIX International AIDS Conference, Washington, D.C.

Oral Abstract Session: “Legal Action, Legal Support”July 26, 201211:00-12:30

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About the Canadian HIV/AIDS Legal NetworkThe Canadian HIV/AIDS Legal Network (www.aidslaw.ca) promotes the human rights of people living with and vulnerable to HIV/AIDS, in Canada and internationally, through research, legal and policy analysis, education, and community mobilization. The Legal Network is Canada’s leading advocacy organization working on the legal and human rights issues raised HIV/AIDS.

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The role of the judiciary

• The HIV epidemic has raised new and complex legal and human rights challenges which are coming before courts around the world.

• Generally speaking, discrimination, marginalization, stigmatization and lack of human rights of individuals and groups heighten vulnerability to HIV.

• The judiciary can help to create the type of legal and social environment necessary to roll back the HIV epidemic, provide access to justice for those affected, and achieve national commitments to universal access to HIV prevention, treatment, care and support.

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The role of the judiciary (2)

Challenges:

• quickly evolving area of scientific, medical and legal issues;

• context required to adjudicate the diverse HIV-related cases; and

• coercive policies and programs that limit human rights continue to be applied in an attempt to curb risk behaviours.

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The resourceJudging during the epidemic:

A comprehensive judicial handbook on HIV, human rights and the law

• Researched and written by Richard Elliott, Patricia Allard, Sandra Ka Hon Chu, Mikhail Golichenko, Cécile Kazatchkine, and Alison Symington of the Canadian HIV/AIDS Legal Network.

• Commissioned by UNAIDS.

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The Advisory Committee

• 13 members including sitting and retired judges, judicial trainers, and legal experts from South Africa, Israel, Canada, Costa Rica, United States, United Kingdom, Australia, Poland, Mexico, India and Ghana.

• provided input on the format and content of the resource.

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Contents

Introduction

Part 1. Legal Decisions that Promote Human Rights in the Context of HIVA. Discrimination on the basis of HIV-positive status or presumed HIV-positive

statusB. The criminal law and HIV exposure and/or transmissionC. Sexual assault and domestic violenceD. Drug laws, harm reduction and the rights of people who use drugsE. Women’s rights with respect to family and property F. HIV/AIDS-related treatment and healthcareG. Human rights and key populations at higher risk of HIV exposure

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Contents (2)

The 7 chapters in Part 1 each address one substantive issue area.

Sub-sections:• introduction to the issues including references to pertinent studies,

examples and statistics;• overview of relevant legal provisions (international, regional and

domestic);• factors which are relevant when adjudicating a case; and• summaries of several cases from different jurisdictions.

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Contents (3)

Part 2. Judging During the Epidemic

Part 3. Essential information on HIV and AIDSA. How is HIV transmitted?B. HIV disease and treatmentC. Scientific research on the risk of sexual transmission of HIV and on HIV as a

chronic manageable infectionD. Living with HIV

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Contents (4)

Part 4. AppendicesA. Worldwide HIV & AIDS statisticsB. Resources for further informationC. Statement of Principles on HIV, the Law and the Judiciary in sub-Saharan Africa

(Meeting of Eminent African Jurists on HIV and the Law in the 21st Century, December 2009)

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Using Judging during the Epidemic

• a resource for judges, magistrates, arbitrators and other judicial officers throughout the world to assist in the adjudication of HIV-related cases;

• a resource for judicial trainers and ministries of justice to deliver educational programs to judges and magistrates on legal issues related to HIV and human rights; and

• based on international standards, it contains examples of decided cases from different jurisdictions, good practice advice and scientific information.

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Using Judging during the Epidemic (2)

• given diverse legal systems, rules of evidence and procedure, diversity of laws, range of possible fact patterns, the handbook is not a detailed reference manual;

• it provides practical guidance, examples, and evidence-informed reasoning that judges and magistrates can use in their own work; and

• each chapter can be read in its entirety or consulted selectively. Each chapter has been written to “stand alone”.

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A note about science

• contains most advanced information available at the time of writing;

• advises to consult the most recent and reliable scientific studies and guidelines;

• acknowledges that changes in scientific conclusions may require changes in judicial decisions as well; and

• notes that the basic facts about HIV will remain constant and the imperative to protect human rights will never lose its vigour.

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Thank You

Alison Symingtonasymington@aidslaw.cawww.aidslaw.ca