|HIV/AIDS and Human Rights International Guidelines Joint publication UNAIDS and United Nations (UNAIDS, 1998, 62 p.)|
|Chapitre 3. INTERNATIONAL HUMAN RIGHTS OBLIGATIONS AND HIV/AIDS|
Introduction: HIV/AIDS, human rights and public health
72. 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 and reducing the impact of HIV/AIDS. The protection and promotion of human rights are necessary both to the protection of the inherent dignity of persons affected by HIV/AIDS and to the achievement of the public health goals of reducing vulnerability to HIV infection, lessening the adverse impact of HIV/AIDS on those affected and empowering individuals and communities to respond to HIV/AIDS.
73. In general, human rights and public health share the common objective to promote and to protect the rights and well-being of all individuals. From the human rights perspective, this can best be accomplished by promoting and protecting the rights and dignity of everyone, with special emphasis on those who are discriminated against or whose rights are otherwise interfered with. Similarly, public health objectives can best be accomplished by promoting health for all, with special emphasis on those who are vulnerable to threats to their physical, mental or social well-being. Thus, health and human rights complement and mutually reinforce each other in any context. They also complement and mutually reinforce each other in the context of HIV/AIDS.
74. One aspect of the interdependence of human rights and public health is demonstrated by studies showing that HIV prevention and care programmes with coercive or punitive features result in reduced participation and increased alienation of those at risk of infection.15 In particular, people will not seek HIV-related counselling, testing, treatment and support if this would mean facing discrimination, lack of confidentiality and other negative consequences. Therefore, it is evident that coercive public health measures drive away the people most in need of such services and fail to achieve their public health goals of prevention through behavioural change, care and health support.
15 J. Dwyer, Legislating AIDS Away: The Limited Role of Legal Persuasion in Minimizing the Spread of HIV, in 9 Journal of Contemporary Health Law and Policy 167 (1993).
75. Another aspect of the linkage between the protection of human rights and effective HIV/AIDS programmes is apparent in the fact that the incidence or spread of HIV/AIDS is disproportionately high among some populations. Depending on the nature of the epidemic and the legal, social and economic conditions in each country, groups that may be disproportionately affected include women, children, those living in poverty, minorities, indigenous people, migrants, refugees and internally displaced persons, people with disabilities, prisoners, sex workers, men having sex with men and injecting drug users-that is to say groups who already suffer from a lack of human rights protection and from discrimination and/or are marginalized by their legal status. Lack of human rights protection disempowers these groups to avoid infection and to cope with HIV/AIDS, if affected by it.16
16 For the purposes of these Guidelines, these groups will be referred to as vulnerable groups although it is recognized that the degree and source of vulnerability of these groups vary widely within countries and across regions.
76. Furthermore, there is growing international consensus that a broadly based, inclusive response, involving people living with HIV/AIDS in all its aspects, is a main feature of successful HIV/AIDS programmes. Another essential component of comprehensive response is the facilitation and creation of a supportive legal and ethical environment which is protective of human rights. This requires measures to ensure that Governments, communities and individuals respect human rights and human dignity and act in a spirit of tolerance, compassion and solidarity.
77. One essential lesson learned from the HIV/AIDS epidemic is that universally recognized human rights standards should guide policy makers in formulating the direction and content of HIV-related policy and form an integral part of all aspects of national and local responses to HIV/AIDS.
78. The Vienna Declaration and Programme of Action, adopted at the World Conference on Human Rights in June 1993,17 affirmed that all human rights are universal, indivisible, interdependent and interrelated. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, States have the duty, regardless of their political, economic and cultural systems, to promote and protect universal human rights standards and fundamental freedoms.
17 A/CONF.157/24 (Part I), chap. III.
79. A human rights approach to HIV/AIDS is, therefore, based on these State obligations with regard to human rights protection. HIV/AIDS demonstrates the indivisibility of human rights since the realization of economic, social and cultural rights, as well as civil and political rights, is essential to an effective response. Furthermore, a rights-based approach to HIV/AIDS is grounded in concepts of human dignity and equality which can be found in all cultures and traditions.
80. The key human rights principles which are essential to effective State responses to HIV/AIDS are to be found in existing international instruments, such as the Universal Declaration of Human Rights, the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of the Child. Regional instruments, namely the American Convention on Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the African Charter on Human and Peoples' Rights also enshrine State obligations applicable to HIV/AIDS. In addition, a number of conventions and recommendations of the International Labour Organization are particularly relevant to the problem of HIV/AIDS, such as ILO instruments concerning discrimination in employment and occupation, termination of employment, protection of workers' privacy, and safety and health at work. Among the human rights principles relevant to HIV/AIDS are, inter alia:
The right to non-discrimination, equal protection and equality before the law;
The right to life;
The right to the highest attainable standard of physical and mental health;
The right to liberty and security of person;
The right to freedom of movement;
The right to seek and enjoy asylum;
The right to privacy;
The right to freedom of opinion and expression and the right to freely receive and impart information;
The right to freedom of association;
The right to work;
The right to marry and to found a family;
The right to equal access to education;
The right to an adequate standard of living;
The right to social security, assistance and welfare;
The right to share in scientific advancement and its benefits;
The right to participate in public and cultural life;
The right to be free from torture and cruel, inhuman or degrading treatment or punishment.
81. Particular attention should be paid to human rights of children and women.
82. Under international human rights law, States may impose restrictions on some rights, in narrowly defined circumstances, if such restrictions are necessary to achieve overriding goals, such as public health, the rights of others, morality, public order, the general welfare in a democratic society and national security. Some rights are non-derogable and cannot be restricted under any circumstances.18 In order for restrictions on human rights to be legitimate, the State must establish that the restriction is:
18 These include the right to life, freedom from torture, freedom from enslavement or servitude, protection from imprisonment for debt, freedom from retroactive penal laws, the right to recognition as a person before the law and the right to freedom of thought, conscience and religion.
(a) 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;
(b) Based on a legitimate interest, as defined in the provisions guaranteeing the rights;
(c) 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.19
19 P. Sieghart, AIDS and Human Rights: A UK Perspective, British Medical Association Foundation for AIDS, London, 1989, pp. 12-25.
83. Public health is most often cited by States as a basis for restricting human rights in the context of HIV/AIDS. Many such restrictions, however, infringe on the principle of non-discrimination, for example when HIV status is used as the basis for differential treatment with regard to access to education, employment, health care, travel, social security, housing and asylum. The right to privacy is known to have been restricted through mandatory testing and the publication of HIV status and the right to liberty of person is violated when HIV is used to justify deprivation of liberty or segregation. Although such measures may be effective in the case of diseases which are contagious by casual contact and susceptible to cure, they are ineffective with regard to HIV/AIDS since HIV is not casually transmitted. In addition, such coercive measures are not the least restrictive measures possible and are often imposed discriminatorily against already vulnerable groups. Finally, and as stated above, these coercive measures drive people away from prevention and care programmes, thereby limiting the effectiveness of public health outreach. A public health exception is, therefore, seldom a legitimate basis for restrictions on human rights in the context of HIV/AIDS.
84. Examples of the application of specific human rights to HIV/AIDS are illustrated below. These rights should not be considered in isolation but as interdependent rights supporting the Guidelines elaborated in this document. In the application of these rights, the significance of national and regional particularities and various historical, cultural and religious backgrounds must be taken into consideration. It remains the duty of States, however, to promote and protect all human rights within their cultural contexts.
1. NON-DISCRIMINATION AND EQUALITY BEFORE THE LAW
85. International human rights law guarantees the right to equal protection before the law and freedom from discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Discrimination on any of these grounds is not only wrong in itself but also creates and sustains conditions leading to societal vulnerability to infection by HIV, including lack of access to an enabling environment that will promote behavioural change and enable people to cope with HIV/AIDS. Groups suffering from discrimination, which also disables them in the context of HIV/AIDS, are women, children, those living in poverty, minorities, indigenous people, migrants, refugees and internally displaced persons, people with disabilities, prisoners, sex workers, men having sex with men and injecting drug users. Responses by States to the epidemic should include the implementation of laws and policies to eliminate systemic discrimination, including where it occurs against these groups.
86. The Commission on Human Rights has confirmed that other status in nondiscrimination provisions is to be interpreted to include health status, including HIV/AIDS.20 This means that States should not discriminate against PLHAs or members of groups perceived to be at risk of infection on the basis of their actual or presumed HIV status.21
20 See, inter alia, Commission on Human Rights resolutions 1995/44 of 3 March 1995 and 1996/43 of 19 April 1996.
21 Other groups singled out for discriminatory measures in the context of HIV/AIDS, such as mandatory screening, are the military, the police, peace-keeping forces, pregnant women, hospital patients, tourists, performers, people with haemophilia, tuberculosis or sexually transmitted diseases (STDs), truck drivers and scholarship-holders. Their partners, families, friends and care providers may also be subject to discrimination based on presumed HIV status.
87. The Human Rights Committee has confirmed that the right to equal protection of the law prohibits discrimination in law or in practice in any fields regulated and protected by public authorities and that a difference in treatment is not necessarily discriminatory if it is based on reasonable and objective criteria. The prohibition against discrimination thus requires States to review and, if necessary, repeal or amend their laws, policies and practices to proscribe differential treatment which is based on arbitrary HIV-related criteria.22
22 Human Rights Committee, General Comment No. 18 (37). Official Records of the General Assembly, Forty-fifth Session, Supplement No. 40 (A/45/40), vol. I, annex VI A.
2. HUMAN RIGHTS OF WOMEN
88. Discrimination against women, de facto and de jure, renders them disproportionately vulnerable to HIV/AIDS. Women's subordination in the family and in public life is one of the root causes of the rapidly increasing rate of infection among women. Systematic discrimination based on gender also impairs women's ability to deal with the consequences of their own infection and/or infection in the family, in social, economic and personal terms.23
23 See report of the Expert Group Meeting on Women and HIV/AIDS and the Role of National Machinery for the Advancement of Women, convened by the Division for the Advancement of Women, Vienna, 24-28 September 1990 (EGM/AIDS/1990/1).
89. With regard to prevention of infection, the rights of women and girls to the highest attainable standard of physical and mental health, to education, to freedom of expression, to freely receive and impart information, should be applied to include equal access to HIV-related information, education, means of prevention and health services. However, even when such information and services are available, women and girls are often unable to negotiate safer sex or to avoid HIV-related consequences of the sexual practices of their husbands or partners as a result of social and sexual subordination, economic dependence on a relationship and cultural attitudes. The protection of the sexual and reproductive rights of women and girls is, therefore, critical. This includes the rights of women to have control over and to decide freely and responsibly, free of coercion, discrimination and violence, on matters related to their sexuality, including sexual and reproductive health.24 Measures for the elimination of sexual violence and coercion against women in the family and in public life not only protect women from human rights violations but also from HIV infection that may result from such violations.
24 Beijing Declaration and Platform for Action, Fourth World Conference on Women, Beijing, 4/5 September 1995 (A/CONF.177/20).
90. Violence against women in all its forms during peacetime and in conflict situations increases their vulnerability to HIV infection. Such violence includes, inter alia, sexual violence, rape (marital and other) and other forms of coerced sex, as well as traditional practices affecting the health of women and children. States have an obligation to protect women from sexual violence in both public and private life.
91. Furthermore, in order to empower women to leave relationships or employment which threaten them with HIV infection and to cope if they or their family members are infected with HIV/AIDS, States should ensure women's rights to, inter alia, legal capacity and equality within the family, in matters such as divorce, inheritance, child custody, property and employment rights, in particular, equal remuneration of men and women for work of equal value, equal access to responsible positions, measures to reduce conflicts between professional and family responsibilities and protection against sexual harassment at the workplace. Women should also be enabled to enjoy equal access to economic resources, including credit, an adequate standard of living, participation in public and political life and to benefits of scientific and technological progress so as to minimize risk of HIV infection.
92. HIV/AIDS prevention and care for women are often undermined by pervasive misconceptions about HIV transmission and epidemiology. There is a tendency to stigmatize women as vectors of disease, irrespective of the source of infection. As a consequence, women who are or are perceived to be HIV-positive face violence and discrimination in both public and in private life. Sex workers often face mandatory testing with no support for prevention activities to encourage or require their clients to wear condoms and with little or no access to health-care services. Many HIV/AIDS programmes targeting women are focused on pregnant women but these programmes often emphasize coercive measures directed towards the risk of transmitting HIV to the foetus, such as mandatory pre- and post-natal testing followed by coerced abortion or sterilization. Such programmes seldom empower women to prevent perinatal transmission by pre-natal prevention education and an available choice of health services and overlook the care needs of women.
93. The Convention on the Elimination of All Forms of Discrimination against Women obliges States parties to address all aspects of gender-based discrimination in law, policy and practice. States are also required to take appropriate measures to modify social and cultural patterns which are based on ideas of superiority/inferiority and stereotyped roles for men and women. The Committee on the Elimination of Discrimination against Women (CEDAW) which monitors the Convention has underscored the link between women's reproductive role, their subordinate social position and their increased vulnerability to HIV infection.25
25 CEDAW, General Recommendation No. 15 (ninth session, 1990). Official Records of the General Assembly, Forty-fifth Session, Supplement No. 38 (A/45/38), chap. IV.
3. HUMAN RIGHTS OF CHILDREN
94. The rights of children are protected by all international human rights instruments and, in particular, under the Convention on the Rights of the Child, which establishes an international definition of the child as every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier (art. 1). The Convention reaffirms that children are entitled to many of the rights that protect adults (e.g. the rights to life, non-discrimination, integrity of the person, liberty and security, privacy, asylum, expression, association and assembly, education and health), in addition to particular rights for children established by the Convention.
95. Many of these rights are relevant to HIV/AIDS prevention, care and support for children, such as freedom from trafficking, prostitution, sexual exploitation and sexual abuse since sexual violence against children, among other things, increases their vulnerability to HIV/AIDS. The freedom to seek, receive and impart information and ideas of all kinds and the right to education provide children with the right to give and receive all HIV-related information needed to avoid infection and to cope with their status, if infected. The right to special protection and assistance if deprived of his or her family environment, including alternative care and protection in adoption, in particular protects children if they are orphaned by HIV/AIDS. The right of disabled children to a full and decent life and to special care and the rights to abolition of traditional practices which are prejudicial to the health of children, such as early marriage, female genital mutilation, denial of equal sustenance and inheritance for girls are also highly relevant in the context of HIV/AIDS. Under the Convention, the right to non-discrimination and privacy for children living with HIV/AIDS and finally the rights of children to be actors in their own development and to express opinions and have them taken into account in making decisions about their lives should empower children to be involved in the design and implementation of HIV-related programmes for children.
4. RIGHT TO MARRY AND TO FOUND A FAMILY AND PROTECTION OF THE FAMILY
96. The right to marry and to found a family encompasses the right of men and women of full age, without any limitation due to race, nationality or religion,...to marry and to found a family, to be entitled to equal rights as to marriage, during marriage and at its dissolution and to protection by society and the State of the family as the natural and fundamental group unit of society.26 Therefore, it is clear that the right of people living with HIV/AIDS is infringed by mandatory pre-marital testing and/or the requirement of AIDS-free certificates as a precondition for the grant of marriage licences under State laws.27 Secondly, forced abortions or sterilization of HIV-infected women violates the human right to found a family, as well as the right to liberty and integrity of the person. Women should be provided with accurate information about the risk of perinatal transmission to support them in making voluntary, informed choices about reproduction.28 Thirdly, measures to ensure the equal rights of women within the family are necessary to enable women to negotiate safe sex with their husbands/partners or be able to leave the relationship if they cannot assert their rights (see also Human rights of women above). Finally, recognition of the family as the fundamental unit of society is undermined by policies which have the effect of denying family unity. In the case of migrants, many States do not allow migrants to be accompanied by family members, and the resulting isolation can increase vulnerability to HIV infection. In the case of refugees, mandatory testing as a precondition of asylum can result in HIV-positive family members being denied asylum while the rest of the family is granted asylum.
26 Article 16, Universal Declaration of Human Rights.
27 People living with HIV/AIDS should be able to marry and engage in sexual relations whose nature does not impose a risk of infection on their partners. People living with HIV/AIDS, like all people who know or suspect that they are HIV-positive, have a responsibility, to practise abstinence or safer sex, in order not to expose others to infection.
28 The chances of an HIV-infected woman giving birth to an HIV-positive baby is approximately 1 in 3. This rate may be significantly reduced if the woman is able to undergo pre- and post-natal treatment with anti-retrovirals. Since extremely difficult and complex ethical and personal decisions are involved, the choice to have a child should be left to the woman, with input from her partner, if possible.
5. RIGHT TO PRIVACY
97. Article 17 of the International Covenant on Civil and Political Rights provides that No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. The right to privacy encompasses obligations to respect physical privacy, including the obligation to seek informed consent to HIV testing and privacy of information, including the need to respect confidentiality of all information relating to a person's HIV status.
98. The individual's interest in his/her privacy is particularly compelling in the context of HIV/AIDS, firstly, in view of the invasive character of a mandatory HIV test and, secondly, by reason of the stigma and discrimination attached to the loss of privacy and confidentiality if HIV status is disclosed. The community has an interest in maintaining privacy so that people will feel safe and comfortable in using public health measures, such as HIV/AIDS prevention and care services. The interest in public health does not justify mandatory HIV testing or registration, except in cases of blood/organ/tissue donations where the human product, rather than the person, is tested before use on another person. All information on HIV sero-status obtained during the testing of donated blood or tissue must also be kept strictly confidential.
99. The duty of States to protect the right to privacy, therefore, includes the obligation to guarantee that adequate safeguards are in place to ensure that no testing occurs without informed consent, that confidentiality is protected, particularly in health and social welfare settings, and that information on HIV status is not disclosed to third parties without the consent of the individual. In this context, States must also ensure that HIV-related personal information is protected in the reporting and compilation of epi-demiological data and that individuals are protected from arbitrary interference with their privacy in the context of media investigation and reporting.
100. In societies and cultures where traditions place greater emphasis on the community, patients may more readily authorize the sharing of confidential information with their family or community. In such circumstances, disclosure to the family or community may be for the benefit of the person concerned and such shared confidentiality may not breach the duty to maintain confidentiality.
101. The Human Rights Committee has found that the right to privacy under article 17 of the International Covenant on Civil and Political Rights is violated by laws which criminalize private homosexual acts between consenting adults. The Committee noted that ... the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of HIV/AIDS...by driving underground many of the people at risk of infection...[it] would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention.29
29 Human Rights Committee, Communication No. 488/1991, Nicholas Toonan v. Australia (views adopted on 31 March 1994, fiftieth session). Official Records of the General Assembly, Forty-ninth Session, Supplement No. 40 (A/49/40), vol. II, annex IX EE, para. 8.5.
102. The Committee also noted that the term sex in article 26 of the Covenant which prohibits discrimination on various grounds includes sexual orientation. In many countries, there exist laws which render criminal particular sexual relationships or acts between consenting adults, such as adultery, fornication, oral sex and sodomy. Such criminalization not only interferes with the right to privacy but it also impedes HIV/AIDS education and prevention work.
6. RIGHT TO ENJOY THE BENEFITS OF SCIENTIFIC PROGRESS AND ITS APPLICATIONS
103. The right to enjoy the benefits of scientific progress and its applications is important in the context of HIV/AIDS in view of the rapid and continuing advances regarding testing, treatment therapies and the development of a vaccine. More basic scientific advances which are relevant to HIV/AIDS concern the safety of the blood supply from HIV infection and the use of universal precautions which prevent the transmission of HIV in various settings, including that of health care. In this connection, however, developing countries experience severe resource constraints which limit not only the availability of such scientific benefits but also the availability of basic pain prophylaxis and antibiotics for the treatment of HIV-related conditions. Furthermore, disadvantaged and/or marginalized groups within societies may have no or limited access to available HIV-related treatments or to participation in clinical and vaccine development trials. Of deep concern is the need to share equitably among States and among all groups within States basic drugs and treatment, as well as the more expensive and complicated treatment therapies, where possible.
7. RIGHT TO LIBERTY OF MOVEMENT
104. The right to liberty of movement encompasses the rights of everyone lawfully within a territory of a State to liberty of movement within that State and the freedom to choose his/her residence, as well as the rights of nationals to enter and leave their own country. Similarly, an alien lawfully within a State can only be expelled by a legal decision with due process protection.
105. There is no public health rationale for restricting liberty of movement or choice of residence on the grounds of HIV status. According to current international health regulations, the only disease which requires a certificate for international travel is yellow fever.30 Therefore, any restrictions on these rights based on suspected or real HIV status alone, including HIV screening of international travellers, are discriminatory and cannot be justified by public health concerns.
30 WHO International Health Regulations (1969).
106. Where States prohibit people living with HIV/AIDS from longer-term residency due to concerns about economic costs, States should not single out HIV/AIDS, as opposed to comparable conditions, for such treatment and should establish that such costs would indeed be incurred in the case of the individual alien seeking residency. In considering entry applications, humanitarian concerns, such as family reunification and the need for asylum, should outweigh economic considerations.
8. RIGHT TO SEEK AND ENJOY ASYLUM
107. Everyone has the right to seek and enjoy asylum from persecution in other countries. Under the 1951 Convention relating to the Status of Refugees and under customary international law, States cannot, in accordance with the principle of non-refoulement, return a refugee to a country where she or he faces persecution. Thus, States may not return a refugee to persecution on the basis of his or her HIV status. Furthermore, where the treatment of people living with HIV/AIDS can be said to amount to persecution, it can provide a basis for qualifying for refugee status.
108. The United Nations High Commissioner for Refugees issued policy guidelines in March 1988 which state that refugees and asylum seekers should not be targeted for special measures regarding HIV infection and that there is no justification for screening being used to exclude HIV-positive individuals from being granted asylum.31
31 UNHCR Health Policy on AIDS, 15 February 1988 (UNHCR/IDM).
109. The Human Rights Committee has confirmed that the right to equal protection of the law prohibits discrimination in law or in practice in any fields regulated and protected by public authorities.32 These would include travel regulations, entry requirements, immigration and asylum procedures. Therefore, although there is no right of aliens to enter a foreign country or to be granted asylum in any particular country, discrimination on the grounds of HIV status in the context of travel regulations, entry requirements, immigration and asylum procedures would violate the right to equality before the law.
32 Human Rights Committee, General Comment No. 18 (37), op. cit.
9. RIGHT TO LIBERTY AND SECURITY OF PERSON
110. Article 9 of the International Covenant on Civil and Political Rights provides that Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.
111. The right to liberty and security of person should, therefore, never be arbitrarily interfered with, based merely on HIV status by using measures such as quarantine, detention in special colonies, or isolation. There is no public health justification for such deprivation of liberty. Indeed, it has been shown that public health interests are served by integrating people living with HIV/AIDS within communities and benefiting from their participation in economic and public life.
112. In exceptional cases involving objective judgements concerning deliberate and dangerous behaviour, restrictions on liberty may be imposed. Such exceptional cases should be handled under ordinary provisions of public health, or criminal laws, with appropriate due process protection.
113. Compulsory HIV testing can constitute a deprivation of liberty and a violation of the right to security of person. This coercive measure is often utilized with regard to groups least able to protect themselves because they are within the ambit of government institutions or the criminal law, e.g. soldiers, prisoners, sex workers, injecting drug users and men who have sex with men. There is no public health justification for such compulsory HIV testing. Respect for the right to physical integrity requires that testing be voluntary and that no testing be carried out without informed consent
10. RIGHT TO EDUCATION
114. Article 26 of the Universal Declaration of Human Rights states in part that Everyone has the right to education. ...Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship.... This right includes three broad components which apply in the context of HIV/AIDS. Firstly, both children and adults have the right to receive HIV-related education, particularly regarding prevention and care. Access to education concerning HIV/AIDS is an essential life-saving component of effective prevention and care programmes. It is the State's obligation to ensure, in every cultural and religious tradition, that appropriate means are found so that effective HIV/AIDS information is included in educational programmes inside and outside schools. The provision of education and information to children should not be considered as promoting early sexual experimentation; rather, as studies indicate, it delays sexual activity.33
33 M. Alexander, Information and Education Laws, in Dr. Jayasuriya (ed.) HIV, Law, Ethics and Human Rights, UNDP, New Delhi, 1995, p. 54. Impact of HIV and sexual health education on the sexual behaviour of young people: a review update, UNAIDS, 1997.
115. Secondly, States should ensure that both children and adults living with HIV/AIDS are not discriminatorily denied access to education, including access to schools, universities, scholarships and international education or subject to restrictions because of their HIV status. There is no public health rationale for such measures since there is no risk of transmitting HIV casually in educational settings. Thirdly, States should, through education, promote understanding, respect, tolerance and non-discrimination in relation to persons living with HIV/AIDS.
11. FREEDOM OF EXPRESSION AND INFORMATION
116. Article 19 of the International Covenant on Civil and Political Rights states in part that Everyone shall have the right to hold opinions without interference. ...Everyone shall have the right to freedom of expression; this right shall include the freedom to seek, receive and impart information and ideas of all kinds.... This right, therefore, includes the right to seek, receive and impart HIV-related prevention and care information.
Educational material which may necessarily involve detailed information about transmission risks and may target groups engaged in illegal behaviour, such as injecting drug use and sexual activity between the same sexes, where applicable, should not be wrongfully subject to censorship or obscenity laws or laws making those imparting the information liable for aiding and abetting criminal offences. States are obliged to ensure that appropriate and effective information on methods to prevent HIV transmission is developed and disseminated for use in different multicultural contexts and religious traditions. The media should be respectful of human rights and dignity, specifically the right to privacy, and use appropriate language when reporting on HIV/AIDS. Media reporting on HIV/AIDS should be accurate, factual, sensitive and avoid stereotyping and stigmatization.
12. FREEDOM OF ASSEMBLY AND ASSOCIATION
117. Article 20 of the Universal Declaration of Human Rights provides that Everyone has the right to freedom of peaceful assembly and association. This right has been frequently denied to non-governmental organizations working in the field of human rights, AIDS service organizations (ASOs) and community-based organizations (CBOs), with applications for registration being refused as a result of their perceived criticism of Governments or of the focus of some of their activities, e.g. sex work. In general, nongovernmental organizations and their members involved in the field of human rights should enjoy the rights and freedoms recognized in human rights instruments and the protection of national law. In the context of HIV/AIDS, the freedom of assembly and association with others is essential to the formation of HIV-related advocacy, lobby and self-help groups to represent interests and meet the needs of various groups affected by HIV/AIDS, including PLHAs. Public health and an effective response to HIV/AIDS are undermined by obstructing interaction and dialogue with and among such groups, other social actors, civil society and Government.
118. Furthermore, persons living with HIV/AIDS should be protected against direct or indirect discrimination based on HIV status in their admission to organizations of employers or trade unions, continuation as members and participation in their activities, in conformity with ILO instruments on freedom of association and collective bargaining. At the same time, workers' and employers' organizations can be important factors in raising awareness on issues connected with HIV/AIDS and in dealing with its consequences in the workplace.
13. RIGHT TO PARTICIPATION IN POLITICAL AND CULTURAL LIFE
119. Realization of the right to take part in the conduct of public affairs,34 as well as in cultural life,35 is essential to guaranteeing participation by those most affected by HIV/AIDS in the development and implementation of HIV-related policies and programmes. These human rights are reinforced by the principles of participatory democracy; this assumes the involvement of PLHAs and their families, women, children and groups vulnerable to HIV/AIDS in designing and implementing programmes that will be most effective by being tailored to the specific needs of these groups. It is essential that PLHAs remain fully integrated in the political, economic, social and cultural aspects of community life.
34 Article 25 of the International Covenant on Civil and Political Rights.
35 Article 15 of the International Covenant on Economic, Social and Cultural Rights.
120. People with HIV/AIDS have the right to their cultural identity and to various forms of creativity, both as a means of artistic expression and as a therapeutic activity. Increasing recognition has been given to the expression of creativity as a popular medium for imparting HIV/AIDS information, combating intolerance, and as a therapeutic form of solidarity.
14. RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF PHYSICAL AND MENTAL HEALTH
121. The right to the highest attainable standard of physical and mental health comprises, inter alia, the prevention, treatment and control of epidemic...diseases and the creation of conditions which would assure to all medical service and medical attention in the event of sickness.36
36 Article 12 of the International Covenant on Economic, Social and Cultural Rights.
122. In order to meet these obligations in the context of HIV/AIDS, States should ensure the provision of appropriate HIV-related information, education and support, including access to services for sexually transmitted diseases, to the means of prevention (such as condoms and clean injection equipment) and to voluntary and confidential testing with pre- and post-test counselling, in order to enable individuals to protect themselves and others from infection. States should also ensure a safe blood supply and implementation of universal precautions to prevent transmission in settings such as hospitals, doctors' offices, dental practices and acupuncture clinics, as well as informal settings, such as during home births.
123. States should also ensure access to adequate treatment and drugs, within the overall context of their public health policies, so that people living with HIV/AIDS can live as long and as successfully as possible. PLHAs should also have access to clinical trials and should be free to choose amongst all available drugs and therapies, including alternative therapies. International support is essential from both the public and private sectors, for developing countries for increased access to health care and treatment, drugs and equipment. In this context, States should ensure that neither expired drugs nor other invalid materials are supplied.
124. States may have to take special measures to ensure that all groups in society, particularly marginalized groups, have equal access to HIV-related prevention, care and treatment services. The human rights obligations of States to prevent discrimination and to assure medical service and medical attention for everyone in the event of sickness require States to ensure that no one is discriminated against in the health-care setting on the basis of their HIV status.
15. RIGHT TO AN ADEQUATE STANDARD OF LIVING AND SOCIAL SECURITY SERVICES
125. Article 25 of the Universal Declaration of Human Rights states that Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. Enjoyment of the right to an adequate standard of living is essential to reduce vulnerability to the risk and consequences of HIV infection. It is particularly relevant to meeting the needs of people living with HIV/AIDS, and/or their families, who have become impoverished by HIV/AIDS as a result of increased morbidity due to AIDS and/or discrimination which can result in unemployment, homelessness and poverty. If States introduce priority ranking for such services for resource allocation purposes, then PLHAs and persons with comparable conditions and disabilities should qualify for preferential treatment due to their dire circumstances.
126. States should take steps to ensure that people living with HIV/AIDS are not discriminatorily denied an adequate standard of living and/or social security and support services on the basis of their health status.
16. RIGHT TO WORK
127. Everyone has the right to work...[and] to just and favourable conditions of work.37 The right to work entails the right of every person to access to employment without any precondition except the necessary occupational qualifications. This right is violated when an applicant or employee is required to undergo mandatory testing for HIV and is refused employment or dismissed or refused access to employee benefits on the grounds of a positive result. States should ensure that persons with HIV/AIDS are allowed to work as long as they can carry out the functions of the job. Thereafter, as with any other illness, PLHAs should be provided with reasonable accommodation to be able to continue working as long as possible and, when no longer able to work, be given equal access to existing sickness and disability schemes. The applicant or employee should not be required to disclose his or her HIV status to the employer nor in connection with his or her access to workers' compensation, pension benefits and health insurance schemes. States' obligations to prevent all forms of discrimination in the workplace, including on the grounds of HIV/AIDS, should extend to the private sector.
37 Article 23, Universal Declaration of Human Rights.
128. As part of favourable conditions of work, all employees have the right to safe and healthy working conditions. In the vast majority of occupations and occupational settings, work does not involve a risk of acquiring or transmitting HIV between workers, from worker to client, or from client to worker.38 However, where a possibility of transmission does exist in the workplace, such as in health-care settings, States should take measures to minimize the risk of transmission. In particular, workers in the health sector must be properly trained in universal precautions for the avoidance of transmission of infection and be supplied with the means to implement such procedures.
38 Consultation on AIDS and the Workplace (World Health Organization, in association with the International Labour Organisation), Geneva, 1988, sect. II, Introduction.
17. FREEDOM FROM CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
129. The right to freedom from cruel, inhuman or degrading treatment or punishment can arise in a variety of ways in the context of HIV/AIDS, for example in the treatment of prisoners.
130. Imprisonment is punishment by deprivation of liberty but should not result in the loss of human rights or dignity. In particular, the State, through prison authorities, owes a duty of care to prisoners, including the duty to protect the rights to life and to health of all persons in custody. Denial to prisoners of access to HIV-related information, education and means of prevention (bleach, condoms, clean injection equipment), voluntary testing and counselling, confidentiality and HIV-related health care and access to and voluntary participation in treatment trials, could constitute cruel, inhuman or degrading treatment or punishment. The duty of care also comprises a duty to combat prison rape and other forms of sexual victimization that may result, inter alia, in HIV transmission.
131. Thus, all prisoners engaging in dangerous behaviour, including rape and sexual coercion, should be subject to discipline based on their behaviour, without reference to their HIV status. There is no public health or security justification for mandatory HIV testing of prisoners, nor for denying inmates living with HIV/AIDS access to all activities available to the rest of the prison population. Furthermore, the only justification for segregation of PLHAs from the prison population would be for the health of PLHAs themselves. Prisoners with terminal diseases, including AIDS, should be considered for early release and given proper treatment outside prison.