Tigers without Teeth by Wilson Scott;

Author:Wilson, Scott;
Language: eng
Format: epub
Tags: undefined
Publisher: Rowman & Littlefield Publishers
Published: 2012-08-15T00:00:00+00:00

Conclusion: Settling for Discrimination?

Chinese attorneys who wish to press HIV/AIDS carriers’ legal claims face a dilemma. In order to establish legal precedents to help advance the rights for all HIV/AIDS carriers, claimants must turn to China’s courts, but those courts, especially in central China, are reluctant to hear lawsuits related to mismanagement of the blood supply and discrimination. At the same time, societal discrimination discourages HIV/AIDS carriers from bringing their cases into the courts. Settlement out of court, which may be a more effective approach to redressing individual grievances, leaves no clear legal precedent for other would-be claimants to draw upon. The pattern of using ADR to negotiate for cash settlements that leave discriminatory practices intact may prove cold comfort for HIV/AIDS carriers. Financial settlements impose a small financial penalty on those accused of discrimination against HIV/AIDS carriers or those people whose negligence caused the spread of HIV/AIDS, but they limit the progress of HIV/AIDS carriers to define and protect their legal rights.

Out-of-court settlements of social conflicts such as the ones described above often are not announced. In fact, ADR settlements may stipulate that the details of the settlement cannot be discussed, and they typically do not determine fault. Thus, settlements limit the “demonstration effect” that court cases, which receive media publicity and enjoy the attention of other courts, can have on the legal system and society. Chinese courts are not bound to follow the precedents of earlier rulings, but decisions in publicized impact litigation cases demonstrate the bench’s legal reasoning in such cases, which other courts are likely to weigh and even emulate. Equally important, settlements typically provide economic compensation but do not address the alleged underlying discriminatory practices. The persistence of such discriminatory practices does little to change societal prejudice against HIV/AIDS carriers.

In many countries, HIV/AIDS carriers face prejudice, and fear of stigmatization dampens their interest in pursuing litigation to defend their rights. Settling out of court, then, may appear a common or natural course of action. Yet broad comparisons to other legal systems suggest that China’s legal system and its practices pose particular challenges to HIV/AIDS carriers’ pursuit of justice. Other countries have encountered blood scandals, including the United States, Japan, France, and Canada. In those countries, the courts heard cases, established precedents, and awarded damages to HIV/AIDS carriers. Interestingly, Japan’s legal system, which shares with China a tendency to rely upon administrative measures to keep litigation out of the courts, was more open to hearing AIDS cases than the U.S. courts.[106] In South Africa, a country with a fairly low standard of rule of law, the courts have heard HIV/AIDS cases and established important precedents for other countries to follow, such as the right to antiretroviral therapy.[107] In most countries, early test cases establish a precedent for a new area of litigation, and subsequent would-be plaintiffs seek settlements to avoid legal fees and to speed the process of redress. Defendants are motivated to avoid allegations of negligence or discrimination that would damage their reputation. The courts serve as a backstop for plaintiffs who encounter recalcitrant defendants.

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