He used to force me to have sex with him. He would beat me and slap me when I refused. I never used a condom with him ... When I got pregnant I went for a medical check-up. When I gave birth, and the child had passed away, they told me I was HIV-positive. I cried. The doctor told me, "Wipe your tears, the whole world is sick."
-- Harriet Ahwoli, Uganda, January 2003 ([dagger])
In my presentation I consider the role and limits of international law in protecting vulnerable groups, specifically women, and critique the manner in which the law has responded by silencing and masculinizing women's realities. After making some remarks on the limits of the international law framework, I proceed to consider the justiciability of socioeconomic rights, particularly the right to health care within the context of HIV/AIDS. As a South African constitutional court litigator, I will specifically be drawing on South African jurisprudence.
II. THE ROLE AND LIMITATIONS OF INTERNATIONAL LAW
As a starting point, it is important that we note that at times the law's ignorance of its actual impact is one of the most severe threats to basic civil liberties. It is submitted that the human rights framework and mainstream legal theory are essentially impoverished and masculinist, for its failure to address the real experiences of women in terms of their right to dignity, privacy, equality, life, liberty, and reproductive health care.
But what are the real experiences of women that are being silenced by the international legal framework? Some examples illustrate my argument here. The issue of condom use as a prevention strategy illustrates the futility of assuming equality of power between men and women for AIDS prevention strategy. Studies have shown that in many cultures suggesting condom use is even more threatening than raising birth control issues, and may expose women to violence. The bottom line is this: educating populations on condom use is of no significance if women, knowing the benefit of condom usage, are unable to negotiate condom use or demand condom use in their relationships. This means that any efforts to address HIV prevention should not be seen as separate from or running in parallel with efforts to prevent intimate partner violence but that the two should be addressed together. Intervention efforts working toward transformation of broader social structures, which hinder women's empowerment, are what is required. It is within this context that the issue of female-controlled methods of practicing safe sex need to be considered.
The same applies in terms of voluntary testing and the duty to disclose to third parties at risk of infection. Research shows that women may experience a range of abuses after disclosing a positive status, ranging from emotional abuse to abandonment and even being killed. Who takes responsibility when a woman is murdered, evicted, or abandoned after a partner, husband, or the community is notified? By the same token one cannot condone a situation whereby women do not take responsibility for their actions and for possible further transmission of the disease. One needs to strike a delicate balance, with any state intervention recognizing the autonomy, dignity, and privacy of the women concerned. Accordingly, it is submitted that partner notification should prohibit disclosure to partners of HIV-infected women until such time as the patient has first been assessed for the risk of domestic violence. These aspects should actively be canvassed alongside options around safe houses and shelters for women fearing violence/abandonment.
The above illustrates how an approach failing to acknowledge women's voices and their concerns could have unintended consequences. We also need to consider what the state duties are regarding women who are at risk of violence or harm, and the positive duties to act to serve women's socioeconomic needs in the areas of health care, welfare and housing. …