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Juridical Action for the Protection of Collective Rights and Its Legal Impact: A Case Study

Published online by Cambridge University Press:  01 January 2021

Enrique González Mac Dowell
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Extract

The development in 1996 of a new generation of antiretroviral drugs was a major pharmaceutical advancement in the struggle against the epidemics of HIV and AIDS. However, due to high costs, access to these new drugs was almost impossible for most people living with HIV or AIDS. This situatiowhas been even more dramatic for those living with HIV/AIDS in poorer countries. Many of the organizations that are fighting for the rights of those with HIV have since developed human rights advocacy and legal strategies to try to achieve universal access to treatment. These organizations are also fighting for states’ compliance with human rights obligations under health-related treatises and conventions. This paper draws upon the experience gained in Latin America, focusing on the legal strategies that have been explored in Venezuela and the legal consequences for domestic law.

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Journal of Law, Medicine & Ethics , Volume 30 , Issue 4 , Winter 2002 , pp. 644 - 654
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Copyright © American Society of Law, Medicine and Ethics 2002

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References

Ley Organica de Amparo Sobre Derechos y Garantias Constitucionales, Official Gazette N° 33891 (January 22, 1988). Constitucion de la Republics de Venezuela, Official Gazette N° 662 (Extra) January 23, 1961). Article 49: “The Courts will protect all inhabitants of the Republic in the enjoyment and exercise of their constitutional rights and guarantees, according to the law. The proceedings will be brief and expedite, and the competent judge will have the power to immediately restore the infringed juridical situation.” It is interesting to point out that even if the 1961 Constitution established the right to amparo constitucional, it was not until 1988 that the legislature passed the law of amparo. This meant that for almost three decades the development of related doctrine was left for judges to set. This is a rather awkward situation under civil law, more so given the absence in Venezuela of a high constitutional court that could standardize doctrine on the procedures and effects of amparo decisions.Google Scholar
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Il Gatopardo, a nineteenth century Italian novel by Tomasso di Lampedusa, includes a frequently quoted phrase, which reads: “everything must change so that nothing changes.” As will be seen, the underlying idea behind this decision stands as exactly the opposite: to not affect the settled doctrine, but to change its nature all the same. The decision establishes orders that involve collective interests, but at the same time avoids developing explicit jurisprudence. However inconsistent this may sound, it also gives a relevant clue to the progressive nature of jurisprudence and its permeability before human rights demands, to the benefit of justice.Google Scholar
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