Discrimination against HIV positive individuals: A comparative analysis

This article analyzes two cases of discrimination against HIV positive individuals and compares the approaches taken by different courts. It also discusses the theoretical analysis and the implications of international law on socioeconomic rights.

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Facts and Issues
In the case of Kiyutin v Russia, the applicant was denied permission to reside on
grounds of being tested positive for HIV. The applicant was from Uzbekistan living in Russia
and married to a Russian lady (Herring 121). As a result, he filed an application at the
European Court of Human Rights on grounds of violation of Article 8, Article 13, Article 14
and Article 15 of the European Convention of Human Rights by Russia (Shestack 20). In this
case, it was held by the European Court of Human Rights that prejudicial apprehensions
towards people with HIV must be done away with (Arnardóttir 160). Additionally, the
European Court of Human Rights in this case followed the judgement it delivered in the case
of Alajos Kiss v. Hungary by ruling in favour of the applicant who was denied with his right
to cast his vote on grounds of issues relating to mental health (Kopel 209). Both of these
cases imply the prevention of discrimination by the European Court of Human Rights as far
as the upholding of the concept of living with dignity is concerned (Mantovani, Quinn and de
Hert 125). The United Nations Declaration of Commitment on HIV/AIDS implies the
prohibition of discrimination of people with HIV. However, in the case of Australia X v The
Commonwealth, the Human Rights and Equal Opportunity Commission of Australia
undertook a different approach in comparison to European Court of Human Rights in Kiyutin
v Russia. In this case, the applicant claimed unlawful discrimination as he was discharged
from the Regular Army of Australia on grounds of being HIV positive. The Commission held
that such a discharge was lawful in accordance with Sub-Section 4 of Section 15 of the
Disability Discrimination Act of 1992 as far as the inability to carry out the job duties of the
specific type of employment due to the disability is concerned. As a result, an appeal was
filed at the High Court of Australia in order to set aside the decision of the Commission.
However, such an appeal was eventually dismissed by the High Court of Australia. The legal
issues in both the cases imply discrimination on grounds of being HIV positive. Both the
International Covenant on Economic, Social and Cultural Rights and the Maastricht
Principles on the Extraterritorial Obligations of States in the Area of Economic, Social and
Cultural Rights imply different approaches with reference to extraterritorial jurisdiction as
implied by both the cases aforesaid.
Judgements
The rationale behind the delivery of the judgements of the courts was to take into
account the impact of a person with HIV positive along with the given scenario. In Kiyutin v
Russia, the court took into account the stigma attached with HIV positive people as far as the
technical perspective is concerned. The transnational perspective implies the impact over
other States of the European Convention on Human Rights. In Australia X v The

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Commonwealth, the court reasoned the ability to carry out job duties as a result of being HIV
positive with reference to the technical perspective. The transnational approach implies the
impact of the judgement over the Commonwealth States.
Theoretical Analysis
The Law of International Cooperation with reference to the aspects of Deprivation
and Causation implies the steps undertaken by the States which have led to the contravention
of duties and obligations of the respective States as far as the implementation of socio-
economic rights is concerned. The Charter of the United Nations implies that all member
States are under the obligation to abide by the rules and regulations related to International
Cooperation as far as economic, social and cultural rights are concerned. The International
Covenant on Economic, Social and Cultural Rights has resulted in the wider construing of
Article 55 and Article 56 of the Charter of the United Nations with reference to the
obligations of the member States concerned taking into account of the policies to be framed
and drafted for the underdeveloped States for the purpose of prevention of any major harm
with regard to the welfare and benefit of the States and acting in the interests of the
entitlements of their citizens. Various policies have been formulated as far as the Right to
Food is concerned in order to respond to the report compiled by World Bank which pertains
to the inflation of the prices of food thereby causing deprivation and subsequently
malnutrition and starvation to economically weaker sections of the society, especially in the
developing and impoverished countries. Such a report further implied the criticism of agenda
formulated by the United States of America and the European Union as it promulgated into
food crisis. Ed Gallagher, the then Chairperson for the Renewable Fuels Agency of the
United Kingdom has concluded in his reviews sanctioned by the Government of the United
Kingdom that the inflation in the prices of food items has deeply affected those who are
amongst the poorest sections of the society. As a result, Gordon Brown, the then Prime
Minister of the United Kingdom acted upon it along with his team thereby undertaking a
more careful approach. Due to the food crisis concerning the whole world, the United Nations
Committee on Economic, Social and Cultural Rights has urged the member States to work
upon the obligations as far as the addressing of the issues relating to the scarcity of food is
concerned with an objective to resolve the problems caused by the deprivation of food. As
per the provisions incorporated and entrenched in the United Nations International Law
Commission Articles on the Responsibility of States for Internationally Wrongful Acts, it can
be inferenced that the member States can be held liable for the acting in contravention of the
duty to be undertaken at the global level by the virtue of certain acts and omissions which are
deemed to be wrongful. As a result, a series of such breaches would constitute a failure to be
in compliance with the responsibilities on part of the State in question at the international
level as far as the proper and appropriate allocation of food and related resources is
concerned. As almost all States under the European Union are signatories to the International
Covenant on Economic, Social and Cultural Rights and the United Nations Convention on the
Rights of Child which imply that any activity undertaken by a member State within its limits
relating to territorial jurisdiction must not deny another country of the entitlements of its
people. It further states that there should not be any kind of interference by the member States

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with regard to the implementation of rights by the other states as far as the welfare of its
citizens is concerned. In the dispute between Brazil and the United States of America
pertaining to the imposition of subsidies towards cotton in an unfair manner which led to the
raising of grievances by Brazil over the cotton subsidies by the United States of America
through a case pertaining to settlement of disputes. As a result, a panel was constituted in
order to conclude upon a comprehensive solution as far as the settlement of dispute is
concerned. The third parties to the dispute included Venezuela, China, India, Pakistan,
Canada, Chinese Taipei, Canada, Argentina and the bodies comprising of the European
Communities (Daemmrich 120). In this case, Brazil in its averment stated that the United
States of America had not acted within the provisions of the Uruguay Round Agreement on
Agriculture and the Agreement on Subsidies and Countervailing Measures (Black 140). The
Dispute Settlement panel of the World Trade Organisation ruled against the United States of
America as far as the decision of the Learned Arbitrator is concerned with reference to
Article 22.6 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes and Article 4.11 of the Agreement on Subsidies and Countervailing Measures. Such
a ruling implies that the United States of America and the European Union as far as the
dumping of items in the developing countries is concerned thereby causing a detrimental
effect over the welfare of farmers in such countries (Meyer 100). The ruling of Dispute
Settlement panel of the World Trade Organisation was subsequently upheld by the Appellate
Body of the World Trade Organisation as per Article 17 of Understanding on Rules and
Procedures Governing the Settlement of Disputes. The ruling thereby favoured Brazil in its
claims relating to the suppression of the subsidies over cotton. In the case of the United
Kingdom v. Albania, popularly known as the Corfu Channel case, a suit was filed by the
United Kingdom at the International Court of Justice against Albania on account of claiming
compensation for the destruction of two ships namely HMS Orion and HMS Superb under
the Royal Navy along with loss of human lives with reference to the armed conflict at the sea
between the United Kingdom and Albania at the Channel of Corfu (Lamus and Ramirez 400).
In this case, it was held by the International Court of Justice damages amounting to eight
hundred forty four thousand to be paid to the United Kingdom by Albania as compensation
(Ahmedi and Shehu 110). As the amount remained unpaid by Albania for a prolonged period
of time, it resulted in another case being filed at the International Court of Justice which is
known as Italy v France, United Kingdom and United States. In this case, it was held by the
International Court of Justice that it had no jurisdiction in such cases since there had not been
any resolution of disputes between Italy and Albania with reference to the seizure of the
National Bank of Albania is concerned. In the case of Nicaragua v the United States of
America, a series of armed intervention was carried out by the United States of America
under the Presidency of William Howard Taft in order to overthrow Jose Santos Zelaya, the
then President of Nicaragua (Klabbers 195). These kinds of armed interventions against
Nicaragua were revived by the United States of America under the Presidency of Ronald
Regan. Nicaragua prayed before the International Court of Justice that the United States of
America has acted in contravention of Article 2(4) of Charter of the United Nations, Article
18 and Article 20 Charter of the Organization of American States, Article 8 of the
Convention on Rights and Duties of States and Article 1 of the Convention on Rights and
Duties of States in Event of Civil Strife. Nicaragua also alleged that the United States of

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America had acted in breach of international law thereby encouraging the blatant violations
and gross contraventions of human rights and civil liberties and interference in to the internal
modus operandi of Nicaragua by the United States of America (Bork 40). In this case, the
International Court of Justice held that the United States of America acted in violation of its
obligations under customary international law with reference to the prevention of the use of
force by a nation against another nation and the violation of the sovereignty of a country with
regard to interference with the internal affairs (Reichler and Parkhomenko 48). It was further
concluded by the International Court of Justice that the United States of America had caused
various interruptions in the carrying out of trade through seas and contravened its duties
enshrined by Article 19 of the Treaty of Friendship, Commerce and Navigation amongst
parties executed on 21st January 1956 at Managua, the capital of Nicaragua. In the case of
Mathews v. the United Kingdom, it was held by the European Court of Human Rights that
the Gibraltarians being citizens of the European Union must be entitled to cast their vote in
elections pertaining to the Parliament of the European Union. Subsequently, Spain referred
the matter to the European Court of Justice but was not successful in its claim against
Gibraltar.
The foundations relating to legal aspects of various kinds of conceptual mechanisms
and channels are known as legal hybrids. Various kinds of perspectives have been developed
as result of legal hybridization thereby resulting in the advent of various kinds of disciplines
of law taking account of the aspects concerned (Tuori 140). Many legal scholars from time to
time have postulated various kinds of theories which have helped in the development of both
private and public law as far as the international level is concerned (Linarelli Salomon and
Sornarajah 150). Customary laws with reference to cultures and traditions have also been
developed due to legal hybrids (Starski 185). The concept of transnational law has been
developed primarily in order to address the distinctions between international law and state
law (Avbelj 410). The economic policies relating to globalisation have also led to the
development of transnational law (Diller 20). It is implied from Article 6 of the European
Convention of Human Rights that a fair trial is essential as far as natural justice is concerned.
The United Nations Guiding Principles on Business and Human Rights, the nations
must undertake the necessary steps, measures and precautions as far as the preventions of
violations relating to human rights with reference to business is concerned. It would facilitate
the ease of elimination of various kinds of barriers which have hitherto caused issues relating
to the seeking of justice as far as appropriate remedial measures are concerned. The concept
of human rights has been inclusive through both public international law and private
international law by the virtue of both torture and tort respectively. The economic policies of
globalisation and privatisation off late have garnered support for upholding of human rights
at various multinational corporations. Additionally, calls for lifting the corporate veil have
also been made as far as corporate governance is concerned.
The Maastricht Principles on the Extraterritorial Obligations of States in the Area of
Economic, Social and Cultural Rights have been formulated for the purpose of equal, non-
discriminatory and transparent approach to be followed by the member states as far as
extraterritorial jurisdiction is concerned under the ambit of international law. The Economic,

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Social and Cultural Rights under the Charter of the United Nations, the Universal Declaration
of Human Rights and the International Covenant on Economic, Social and Cultural Rights
must be adhered to by the member States as far as territorial and extraterritorial jurisdiction
are concerned. People victimised by human rights violations carried by States must be
provided with a pathway to access the truth.
The European Convention of Human Rights has played an important role in the
upholding of human rights at the international level as far as the signatories to the convention
are concerned (Rainey, Wicks and Ovey 180). It has led to the establishment of the European
Court of Human Rights which has played an extremely essential role with regard to the
protection of human rights (Schabas 100).
Conclusion
As observed from the aforesaid discourse, it can be concluded by stating the concepts
of human rights at the international level have been justified and are appropriate. The
aforesaid discourse has also taken account of transnational law with reference to human
rights as far as public international law and private international law are concerned.
Various landmark cases have also been cited for the purpose of comprehending upon the
concepts of human rights is concerned. It has helped in the upholding of human rights and
civil liberties to a massive extent. The Law of International Cooperation with reference to the
aspects of Deprivation and Causation has also been considered for the purpose of the
discussion and demonstration of the socio-economic rights. The discriminatory policies of
States have also been highlighted as far as the aspect of the violation and contravention of
human rights is concerned. The above discourse has also explained the Maastricht Principles
on the Extraterritorial Obligations of States in the Area of Economic, Social and Cultural
Rights particularly with reference to extraterritorial jurisdiction. To roll up, the discourse has
been made with an objective to present an overview of human rights as far as the
international level is concerned.

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