Discrimination against HIV positive individuals: A comparative analysis

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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