28 HIV/AIDS and International Law
1. Learning Outcomes
2. Introduction
3. International Legal Response
3.1. International Guidelines on HIV/AIDS and Human Rights
3.2. 2001 Declaration of Commitment on HIV/AIDS: Global Crisis- Global Action
3.3. 2006 Political Declaration on HIV/AIDS
3.4. 2011 Political Declaration on HIV and AIDS: Intensifying our Efforts to Eliminate HIV/AIDS
4. Situational Analysis
5. Summary
1. Learning Outcomes:
By the end of this chapter, the reader shall be able to:
- Understand the most relevant international instruments pertaining to HIV/AIDS.
- Undertake a critical analysis of the international legal response to HIV/AIDS.
2. Introduction
HIV/AIDS is a global epidemic. In a span of merely three decades, over thirty million people, across the globe, died of AIDS and more than thirty- four million are found to be HIV- positive. There is ample evidence to suggest that, to find a sustainable solution to HIV/AIDS, medical interventions need to be accompanied by concrete legal measures aimed at protecting human rights of people living with HIV. A human rights approach has tremendous relevance in shaping effective response to HIV epidemic. This module surveys the international legal response against HIV/AIDS.
3. International Legal Response
Generally, States have three broad obligations towards human rights- respect rights; protect rights and fulfill right.
To respect a right means that State should refrain from violating human rights directly or indirectly through its laws, policies, practices or programmes.
To protect a right means that State should prevent the violation of rights of a person by third parties, and should also provide affordable and accessible redress in case of violations.
To fulfill a right means that State should take adequate measures including legislative, administrative etc. for full realization of rights.
Though there is no binding international treaty specifically addressing HIV/AIDS, provisions from the existing international treaties and declarations can very well be applied to respect, protect and fulfill the human rights of people living with HIV. Violations against people living with HIV span across civil, political, social, economic and cultural rights. Some of these include- denial of education and employment opportunities, denial of basic medical treatment, infringement of freedom of speech, expression, movement and association, denial of basic conditions of living, gender based discriminations and criminalization of certain activities of high risk groups.
Protection against most of these violations is provided under Universal Declaration of Human Rights (1948) and the two key international instruments- International Covenant on Economic, Social and Cultural Rights (1966) and International Covenant on Civil and Political Rights (1966). Provisions from specific international treaties like Convention on the Rights of the Child (1989) and Convention on the Elimination of All Forms of Discrimination against Women (1979) can also be evoked to protect, respect and fulfill the rights of people living with HIV. The rights to non- discrimination and equality, to liberty and security of the person, to privacy, to health, to freedom of movement, to work, to marry, to expression, to association etc. enshrined in these instruments have significance for protecting the lives of people living with HIV and others affected by it.
Apart from these, there are certain specific international instruments aimed at protecting the human rights of people living with HIV/AIDS. Most important amongst these are the International Guidelines on HIV/AIDS and Human Rights, 2001 Declaration of Commitment on HIV/AIDS, 2006 Political Declaration on HIV/AIDS and 2011Political Declaration on HIV and AIDS. The member States have, through these instruments, committed themselves to using laws for eliminating all forms of discrimination against people living with HIV.
3.1. International Guidelines on HIV/AIDS and Human Rights
The Second International Consultation on HIV/AIDS and Human Rights of 1996 led to the formulation of the International Guidelines on HIV/AIDS and Human Rights. It was through a consultative and participatory process, involving experts in the field of HIV/AIDS, comprising of people living with HIV, government representatives, academics, representatives of United Nations bodies, non-governmental organizations, AIDS service organizations and human rights advocates, that a set of Guidelines were developed. The Commission on Human Rights and the participants of First International Consultation on AIDS and Human Rights of 1989 had already stressed on the need to provide guidance to States, on how to take concrete steps to respect, protect and fulfill human rights in the context of HIV. The purpose of these Guidelines is to assist States in creating a positive, rights-based response to HIV/AIDS that is effective in reducing the transmission and impact of HIV and AIDS, and is consistent with human rights and fundamental freedoms. Apart from the call for improving the roles of both public and private sector in fighting HIV/AIDS, it also provides policy guidance to international organizations and civil society groups for ensuring that the national strategies developed to combat HIV/AIDS are effective.
It highlights that ‘under international human rights law, States may impose restrictions on human rights legitimately only if it can establish that the restriction is:
- Provided for and carried out in accordance with the law, i.e. according to specific legislation which is accessible, clear and precise, so that it is reasonably foreseeable that individuals will regulate their conduct accordingly;
- Based on a legitimate interest, as defined in the provisions guaranteeing the rights;
- Proportional to that interest and constituting the least intrusive and least restrictive measure available and actually achieving that interest in a democratic society, i.e. established in a decision-making process consistent with the rule of law’.
Using these criteria, the International Guidelines clearly establish that public health, which is often cited by many States in restricting the rights of people living with HIV, most of the times, end up infringing the principle of non-discrimination. Some of the coercive measures usually employed by the States like mandatory HIV testing of targeted groups, travel restrictions etc., may be effective in the case of diseases spread by casual contact, which is not the case with HIV. Most of these measures are not the least restrictive and least intrusive measures available, and ultimately end up in driving away the already vulnerable sections from prevention and care. This ultimately limits the effectiveness of public health outreach.
Subsequent resolutions of 1999 and 2001 required the States to submit reports on the measures taken, in order to promote and implement the Guidelines. It also developed tools to aid specific groups implement the guidelines in their areas of responsibility. In 2001, Commission on Human Rights adopted a resolution stating that right to the highest attainable standard of health includes access to antiretroviral therapy for HIV. Following this, in the Third International Consultation, Guideline 6 was revised to incorporate the human rights dimensions of access to prevention, treatment, care and support. An abridged version of the 12 Guidelines for States to implement a rights based response to HIV is given below:
Guideline 1: National Framework
State to establish an effective national framework for their response to HIV, ensure coordinated, participatory, transparent and accountable approach and integrate HIV policy and programme responsibilities across all branches of government.
Guideline 2: Supporting Community Participation
State to ensure, through political and financial support, that community participation occurs in all phases of policy design, implementation and evaluation, and enable community organizations to function effectively.
Guideline 3: Public Health Legislation
State should review and reform public health laws to ensure that they adequately address health issues raised by HIV and that they are consistent with international human rights obligations.
Guideline 4: Criminal Laws and Correctional Systems
State should review and reform criminal laws and correctional systems to ensure their consistency with international human rights obligations and arrest misuse in the context of HIV.
Guideline 5: Anti- Discrimination and Protective Laws
State should enact/ strengthen anti -discrimination and other protective laws that protect vulnerable and people with HIV in both private and public sectors, ensure privacy and confidentiality and ethics in research, emphasize education and conciliation and provide for speedy and effective administrative and civil remedies.
Revised Guideline 6: Access to Prevention, Treatment, Care and Support
State should enact legislation and take measures necessary to ensure for all persons, availability and accessibility of quality goods, services and information for HIV/AIDS prevention, treatment, care and support.
Guideline 7: Legal Support Services
State should implement and support legal services to educate people affected by HIV about their rights, provide free legal services, develop expertise on HIV related legal issues and utilize means of protection in addition to courts.
Guideline 8: Women, Children and other Vulnerable Groups
State should in collaboration with and through the community, promote a supportive and enabling environment for women, children and other vulnerable groups by addressing underlying prejudices and inequalities.
Guideline 9: Changing Discriminatory Attitudes through Education, Training and the Media
States should promote the wide and ongoing distribution of creative education, training and media programmes explicitly designed to change attitudes of discrimination and stigmatization associated with HIV to understanding and acceptance.
Guideline 10: Development of Public and Private Sector Standards and Mechanisms for implementing these standards
States should ensure that Government and the private sector develop codes of conduct regarding HIV issues that translate human rights principles into codes of professional responsibility and practice, with accompanying mechanisms to implement and enforce these codes.
Guideline 11: State Monitoring and Enforcement of Human Rights
State should ensure monitoring and enforcement mechanisms to guarantee HIV- related human rights, including those of people living with HIV, their families and communities.
Guideline 12: International Cooperation
State should cooperate through all relevant programmes and agencies of UN, to share knowledge and experience concerning HIV related human rights and ensure effective mechanisms to protect them at international level.
3.2. 2001 Declaration of Commitment on HIV/AIDS: Global Crisis- Global Action
At the United National General Assembly Special Session on HIV/AIDS (UNGASS), in June 2001, Heads of State and representatives of governments of 189 nations met and issued the Declaration of Commitment on HIV/AIDS (hereinafter 2001 Declaration).
This Declaration makes specific commitments and sets time bound measurable goals and targets. These include improving leadership, prevention, effective care, support and treatment, realizing human rights, reducing vulnerability, assisting children orphaned and made vulnerable by HIV/AIDS, alleviating social and economic impact, furthering research and development, responding to HIV/AIDS in conflict and disaster affected regions, ensuring new, additional and sustained resources and maintaining the momentum and monitoring process. It recognizes that while poverty, underdevelopment and illiteracy are among the principal contributing factors to the spread of HIV/AIDS, HIV/AIDS is compounding poverty and reversing or impeding development in many countries. These should therefore be addressed in an integrated manner. Stigma, silence, discrimination and denial, as well as lack of confidentiality, undermine prevention, care and treatment efforts and increase the impact of the epidemic on individuals, families, communities and nations. Though the Declaration is not a legally binding document, it is a clear statement of the commitment of the States and therefore a powerful tool to secure action, support and resources for fighting the epidemic. India is a signatory to this Declaration.
3.3. 2006 Political Declaration on HIV/AIDS
In 2006, the United Nations General Assembly met again to revisit the 2001 Declaration and developed an updated Political Declaration on HIV/AIDS (hereinafter 2006 Political Declaration), with newly agreed upon targets and goals to meet the Millennium Development Goals. It made several commitments including intensifying investment and efforts towards the research and development of new, safe and affordable HIV/AIDS-related medicines, assisting developing countries to enable them to employ the flexibilities outlined in the TRIPS Agreement and to strengthen their capacities for this purpose, setting national targets, reducing the global HIV/AIDS resource gap, intensifying efforts to enact, strengthen, or enforce legislation and other measures to ensure those with HIV have full enjoyment of all human rights, eliminate gender inequalities, gender-based abuse and violence.
3.4. 2011 Political Declaration on HIV and AIDS: Intensifying our Efforts to Eliminate HIV/AIDS
In 2011, ten years after the historic 2001 Declaration of Commitment on HIV/AIDS, the United Nations General Assembly met to review the progress achieved in realizing the 2001 Declaration and the 2006 Political Declaration. It recognized that the world commitment to the global HIV epidemic has been unprecedented, since the 2001 Declaration and the 2006 Political Declaration, with an eight fold increase in funding from 1.8 billion US dollars in 2001 to 16 billion dollars in 2010, which is the largest amount dedicated to combating a single disease in history. However, the funding is still not adequate considering the magnitude of the epidemic and has been suffering from the negative impact of global economic and financial crisis. As part of its efforts to promote continued political commitment and engagement of leaders to intensify the global response to HIV and AIDS, it committed to an updated Political Declaration on HIV and AIDS (hereinafter 2011 Political Declaration).
The International instruments have reiterated the need to address the vulnerabilities faced by the families, especially children and other dependents of people living with HIV. They recognize that addressing the stigma and discrimination of people presumed to be living with or affected by HIV is a critical element in combating the HIV epidemic. Special attention has been given to children orphaned or affected by HIV/AIDS.
The Declaration sets out a framework to achieve the Millennium Development Goal #6 of halting and reversing the spread of AIDS by 2015 and achieving universal access to HIV treatment by 2010. It enlists ten targets.
- Reduce sexual transmission of HIV by 50% by 2015.
- Reduce the transmission of HIV among people who inject drugs by 50% by 2015.
- Eliminate new HIV infections among children by 2015 and substantially reduce AIDS-related maternal deaths.
- Reach 15 million people living with HIV with lifesaving antiretroviral treatment by 2015.
- Reduce tuberculosis deaths among people living with HIV by 50 percent by 2015.
- Close the global AIDS resource gap by 2015 and reach annual global investment of US$22- 24 billion in low and middle income countries.
- Eliminate gender inequalities and gender-based abuse and violence and increase the capacity of women and girls to protect themselves from HIV.
- Eliminate stigma and discrimination against people living with and affected by HIV through promotion of laws and policies that ensure full realization of all human rights and fundamental freedoms.
- Eliminate HIV-related restrictions on entry, stay and residence.
- Eliminate parallel systems for HIV-related services to strengthen integration of the AIDS response in global health and development efforts, as well as to strengthen social protection systems.
From the time of 2001 Declaration, there is a comprehensive monitoring mechanism in place.
Member states are required to submit regular annual progress reports to the Secretary General of United Nations.
Below is a chart showing the human rights generally violated in the context of people living with HIV and the existing protection mechanisms available under international law. Provisions available under ICCPR, ICESCR that can be applied for the protection of human rights of people living with HIV/AIDS and affected by it, and the political commitments and recognition mentioned under International Guidelines, 2001 Declaration and 2011 Political Declaration.
4. Situational Analysis
Despite the international human rights commitments, not all the countries have effective legal mechanisms in place to for HIV prevention and treatment. In 2012, the Global Commission on HIV and the Law, after its extensive research on legal framework related to HIV in 168 countries, found that 123 countries have legislation to outlaw discrimination based on HIV and 111 countries legally protect at least some populations based on their vulnerability to HIV. However, these laws are often ignored, laxly enforced or aggressively flouted. Many countries have laws which dehumanize those at the highest risk of HIV. It is a crime to expose another person or transmit HIV especially through sex in around 60 countries. Instead of promoting safe environment, these laws deter people from getting tested or treated. In spite of the international human standards in place, many countries had laws which made same sex activity a criminal offence and criminalized sex work and drug use. The fear created by the enforcement agencies drove the risky groups underground. Women and girls were found to make up half of the global population of people living with HIV and regressive laws, legal processes and legally condoned customs undermine their ability to protect themselves from HIV infection and cope up with the consequences. Importantly, it also noted that the growing international trade laws and intellectual property (IP) protections are impeding the production and distribution of low cost generic drugs, thereby threatening the access to life saving drugs. This was most serious in the case of low- and middle- income countries, from where majority of the people living with HIV hails.
Latest data from UNAIDS reveal that not much have changed in 2 years. Maps below corroborate the regressive laws prevailing in many countries, which ultimately fuel the incidence of HIV/AIDS.
5. Summary
While law alone cannot stop the spread of HIV, nevertheless, a healthy legal environment can provide the much wanted support to people living with HIV and vulnerable to HIV. As pointed out by Global Commission on HIV and the Law, “Good laws, fully resourced and rigorously enforced, can widen access to prevention and health care services, improve the quality of treatment, enhance social support for people affected by the epidemic, protect human rights that are vital to survival and save the public money”. In spite of international commitment to protect the human rights of people living with HIV, countries continue to have regressive laws both punitive and discriminatory in nature. This is also indicative of the much debated weak enforcement systems plaguing the international law. These regressive national legal systems which create and punish vulnerability will bring no good, but fuel the HIV epidemic.
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Reference
- International Guidelines on HIV/AIDS and Human Rights (2006 Consolidated Version), Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS.
- Urjana Çuri, Implementation of Human Rights and Rights to Health for People Living with HIV / AIDS in Albania, Mediterranean Journal of Social Sciences, [S.l.], v. 5, n. 4, mar. 2014. ISSN 2039-2117. Available at: <http://www.mcser.org/journal/index.php/mjss/article/view/2244>
- Alan Collins, Norm diffusion and ASEAN’s adoption and adaption of global HIV/AIDS norms, International Relations of the Asia-Pacific, Volume 13, Issue 3, 1 September 2013, Available at: https://doi.org/10.1093/irap/lct012
- Richard Pearshouse, Joanne Csete, (2006) “Model law to address HIV/AIDS in prison“, International Journal of Prisoner Health, Vol. 2 Issue: 3, Available at: https://doi.org/10.1080/17449200601043663
- Margret Penafort, The Forgotten Spaces: Mobility and HIV Vulnerability in the Asia Pacific, CARAM Asia Berhad (2004).