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HIV/AIDS, Human Rights and Law

"The goal of realizing human rights is fundamental to the global fight against AIDS. And in a world facing a terrible epidemic - one that has already spread further, faster and to more devastating effect than any other in human history - winning the fight against AIDS is a precondition for achieving rights worth enjoying."
- Dr. Peter Piot, Executive Director UNAIDS, Speech to the 59th Session of the United Nations Commission on Human Rights, Geneva, 19 March 2003.

Introduction
Several years of experience in addressing the HIV/AIDS epidemic have confirmed that the promotion and protection of human rights constitute an essential component in preventing transmission of HIV, reducing vulnerability to infection and the impact of HIV/AIDS.

However, in practice:

  • Fundamental human rights of people living with HIV/AIDS, such as the right to non-discrimination, equal protection and equality before the law, privacy, liberty of movement, work, equal access to education, housing, health care, social security, assistance and welfare, are often violated based on their known or presumed HIV/AIDS status.

  • Lack of respect for human rights continues to increase vulnerability to HIV infection of individuals and the whole society. Individuals or groups who suffer discrimination and lack of human rights protection are both more vulnerable to becoming infected and less able to cope with the burdens of HIV/AIDS. Refugees, migrants, prisoners, men who have sex with men, sex workers and injecting drug users may be more vulnerable to contracting HIV because they often are unable to realize their civil, political, economic, social and cultural rights. Further, gender inequalities spur on the spread of the epidemic and its disproportionate impact on women.

  • The response to the HIV epidemic is hindered due to lack of enjoyment of freedoms of speech and association; the right to information and education by infected and affected groups, and the civil society at large.
     

A rights-based approach can help mitigate the impact of HIV/AIDS as it allows for the creation of a supportive policy, legal, social and cultural environment in which people infected or affected by HIV/AIDS are able to participate in, contribute to and enjoy economic, social, cultural and political development despite their HIV status.

Safeguarding human rights through addressing the underlying structural conditions that make people vulnerable to HIV infection can enable people to avoid infection; reduce their vulnerability and also can empower people, if already infected, to cope with the effects of HIV/AIDS.

Respect, protection and fulfilment of human rights is central to the AIDS agenda, and equally, HIV/AIDS needs to be at the centre of the global human rights agenda.


Human Rights principles relevant to HIV/AIDS 

States have an obligation to respect, protect and fulfil all human rights, including HIV/AIDS related human rights. Human rights principles most relevant to HIV/AIDS include the rights to:

  • Non-discrimination, equal protection and equality before the law

  • Life 

  • The highest attainable standard of physical and mental health

  • Liberty and security of person

  • Freedom of movement

  • Seek and enjoy asylum

  • Privacy

  • Freedom of opinion and expression and the right to freely receive and impart information

  • Freedom of association

  • Work

  • Marry and found a family

  • Equal access to education

  • An adequate standard of living

  • Social security, assistance and welfare

  • Share in scientific advancement and its benefits

  • Participate in public and cultural life

  • Be free from torture and cruel, inhuman or degrading treatment or punishment.

Twelve Guidelines for country level action

The UN Commission on Human Rights in Resolution 1996/43 requested the then United Nations High Commissioner for Human Rights in co-operation with UNAIDS and non-governmental organizations, as well as groups of people living with HIV/AIDS, to continue efforts towards the elaboration of guidelines on promoting and protecting respect for human rights in the context of HIV/AIDS.

UNAIDS and the Office of the United Nations High Commissioner for Human Rights (OHCHR) convened the Second International Consultation on HIV/AIDS and Human Rights in Geneva (23 to 25 September 1996).

This Consultation on HIV/AIDS and Human Rights brought together experts in the field of AIDS and human rights, comprising government officials and staff of national AIDS programmes, people living with HIV/AIDS, human rights activists, academics, representatives of regional and national networks on ethics, law, human rights and HIV, and representatives of United Nations bodies and agencies, non-governmental organizations and AIDS service organizations. The Consultation adopted the International Guidelines on HIV/AIDS and Human Rights (Guidelines).

In 1997 the UN Commission on Human Rights welcomed the Guidelines and has since then used the Guidelines in developing its Resolutions on HIV/AIDS.

UNAIDS and OHCHR published these Guidelines in 1998 as a joint policy and also a tool for States in implementing an effective, rights-based HIV/AIDS response.

These Guidelines are firmly anchored within a framework of existing human rights principles, norms and standards contained in various regional and international human rights instruments.

The purpose of the Guidelines is to assist States in translating human rights principles into practical observance in the context of HIV/AIDS. To this end, the Guidelines consist of two parts:

  • The human rights principles underlying the positive response to the epidemic; and

  • Action oriented measures to be employed by governments in the areas of law, administrative policy and practice that will protect human rights and achieve HIV-related public health goals.

The 12 Guidelines are summarized below:

GUIDELINE 1: States should establish an effective national framework for their response to HIV/AIDS which ensures a coordinated, participatory, transparent and accountable approach, integrating HIV/AIDS policy and programme responsibilities across all branches of government.
GUIDELINE 2: States should ensure, through political and financial support, that community consultation occurs in all phases of HIV/AIDS policy design, programme implementation and evaluation and that community organizations are enabled to effectively carry out their activities in the fields of ethics, law and human rights.
GUIDELINE 3: States should review and reform public health laws to ensure that they adequately address public health issues raised by HIV/AIDS, that their provisions applicable to casually transmitted diseases are not inappropriately applied to HIV/AIDS and that they are consistent with international human rights obligations.
GUIDELINE 4: States should review and reform criminal laws and correctional systems to ensure that they are consistent with international human rights obligations and are not misused in the context of HIV/AIDS or targeted against vulnerable groups.
GUIDELINE 5: States should enact or strengthen anti-discrimination and other protective laws that protect vulnerable groups, people living with HIV/AIDS and people with disabilities from discrimination in both the public and private sectors, ensure privacy and confidentiality and ethics in research involving human subjects, emphasise education and conciliation, and provide for speedy and effective administrative and civil remedies.
GUIDELINE 6: States should enact legislation to provide for the regulation of HIV-related goods, services and information, so as to ensure widespread availability of qualitative prevention measures and services, adequate HIV prevention and care information and safe and effective medication at an affordable price.
Revised GUIDELINE 6: In July 2002, UNAIDS and the OHCHR convened a Third International Consultation on HIV/AIDS and Human Rights, which included people living with HIV/AIDS, AIDS service organizations, health care and legal practitioners, and academics, to update Guideline 6 of the International Guidelines on HIV/AIDS and Human Rights.
The resulting revised Guideline 6: Access to prevention, treatment, care and support provides an up-to-date policy guidance that is based on current international law and best practice at country level.
GUIDELINE 7: States should implement and support legal support services that will educate people affected by HIV/AIDS about their rights, provide free legal services to enforce those rights, develop expertise on HIV-related legal issues and utilize means of protection in addition to the courts, such as offices of ministries of justice, ombudspersons, health complaint units and human rights commissions.
GUIDELINE 8: States, in collaboration with and through the community, should promote a supportive and enabling environment for women, children and other vulnerable groups by addressing underlying prejudices and inequalities through community dialogue, specially designed social and health services and support to community groups.
GUIDELINE 9: 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/AIDS to understanding and acceptance.
GUIDELINE 10: States should ensure that governments and the private sector develop codes of conduct regarding HIV/AIDS issues that translate human rights principles into codes of professional responsibility and practice, with accompanying mechanisms to implement and enforce these codes.
GUIDELINE 11: States should ensure monitoring and enforcement mechanisms to guarantee the protection of HIV-related human rights, including those of people living with HIV/AIDS, their families and communities.
GUIDELINE 12: States should cooperate through all relevant programmes and agencies of the United Nations system, including UNAIDS, to share knowledge and experience concerning HIV-related human rights issues and should ensure effective mechanisms to protect human rights in the context of HIV/AIDS at the international level.

The United Nations General Assembly Special Session on HIV/AIDS (UNGASS): Declaration of Commitment on HIV/AIDS


The fact that the full realization of human rights and fundamental freedoms for all is an essential element in a global response to the HIV/AIDS pandemic, including in the areas of prevention, care, support and treatment, and that it reduces vulnerability to HIV/AIDS and prevents stigma and related discrimination against people living with or at risk of HIV/AIDS was reaffirmed in the United Nations General Assembly Declaration of Commitment on HIV/AIDS (Declaration) adopted at UNGASS held in June 2001.
The Declaration also underscores the links between poverty, underdevelopment and illiteracy to the spread and impact of HIV/AIDS; that stigma, silence, discrimination, denial and lack of confidentiality undermine prevention and care efforts; that gender equality and the empowerment of women and girls are fundamental to reducing vulnerability; and that access to medication in the context of pandemics such as HIV/AIDS is fundamental to the realization of the right to health.

Human rights issues are addressed throughout the operative sections of the Declaration, in particular with regard to addressing, through the promotion and protection of human rights, factors which increase vulnerability to and impact of HIV infection.

The Declaration dedicates operative paragraphs 58 – 61 specifically to the question of HIV/AIDS and human rights. The Declaration calls, within specific periods of time, on States to enact, strengthen or enforce, as appropriate, legislative and other measures to eliminate discrimination against, and ensure the full enjoyment of all human rights and fundamental freedoms by people living with HIV/AIDS as well as by members of vulnerable groups. It also stresses the need for national strategies that lead to the empowerment of women and increase the capacity of women and girls to protect themselves from the risk of HIV infection.
It is the first time that a Declaration on HIV/AIDS has acknowledged the importance of accountability. To this end, the Declaration calls for strengthening of national monitoring mechanisms for HIV/AIDS related human rights.

A Roundtable on HIV/AIDS and Human Rights was convened during UNGASS to discuss implementation of HIV/AIDS-related rights based on - lessons learned, leadership, strategic partnerships and mobilization of resources. Member States participated in the discussions, along with the UN High Commissioner for Human Rights and the heads of UNIFEM and UNICEF. Statements were made by these Heads of Agencies, the Special Advisor to the Secretary-General on Gender issues, ILO, WHO and representatives of civil society groups.
 
The Roundtable discussions were based on a background paper which outlined the link between HIV/AIDS and human rights and stressed States' international legal obligations to respect, protect and fulfil human rights in the context of HIV/AIDS. The paper focused on principles of non-discrimination, equality and participation in relation to strategies for reducing vulnerability and impact

Source: UNAIDS.

  
 

(C) Sustainable Development Networking Programme (SDNP) Bangladesh