La protezione del soggetto debole in un contesto “debole”: l’impegno della Constitutional Court of South Africa nei confronti dei sieropositivi,

The Author analyses the protection of HIV positive people in South Africa. She focuses, in particular,on the consequences deriving from the harmonization of domestic laws with internationalrules on intellectual property rights (especially the Agreement on Trade-Related Aspects of IntellectualProperty Rights – Trips –). This harmonization is especially difficult because the South Africanlegal system, on one hand, provides for the obligation to respect international rules, and onthe other hand needs to cope with the emergency of healthcare. South African institutions weretherefore induced to improve the level of protection of rights of disadvantages minorities as forexample HIV positive people’s rights. Relevant examples of this policy are the Medicine and RelatedSubstances Control Amendment Act (no. 90/1997) and a series of decisions delivered by theConstitutional Court of South Africa. In particular, the case law of the Constitutional Court frequentlyrefers to fundamental principles and values enumerated in the South African Constitutionof 1996. These references played a very important role in decisions that censured unjustified discriminationsagainst HIV-positive people or that assured the increase of the number of persons tobe granted access to essential medications. The case law of the Constitutional Court is also importantto witness the “deep dialogue” with some foreign Courts (e.g. the Supreme Court of India).[...]