Introduction

1. The Commission on Human Rights, at its fifty-second session, in its resolution 1996/43 of 19 April 1996, requested the then United Nations High Commissioner for Human Rights, inter alia, to continue his efforts, in cooperation with UNAIDS and nongovernmental organizations, as well as groups of people living with HIV/AIDS, towards the elaboration of guidelines on promoting and protecting respect for human rights in the context of HIV/AIDS. In the same resolution, the Commission requested that the Secretary-General prepare, for the consideration of the Commission at its fifty-third session, a report on the above-mentioned guidelines, including the outcome of the second expert consultation on human rights and AIDS, and on their international dissemination.

2. The call for guidelines on human rights and HIV/AIDS was based on a recommendation contained in an earlier report of the Secretary-General to the Commission at its fifty-first session (E/CN.4/1995/45, para. 135), which stated that “the development of such guidelines or principles could provide an international framework for discussion of human rights considerations at the national, regional and international levels in order to arrive at a more comprehensive understanding of the complex relationship between the public health rationale and the human rights rationale of HIV/AIDS. In particular, Governments could benefit from guidelines that outline clearly how human rights standards apply in the area of HIV/AIDS and indicate concrete and specific measures, both in terms of legislation and practice, that should be undertaken”.

3. In response to the above requests, the Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS (UNAIDS) convened the Second International Consultation on HIV/AIDS and Human Rights in Geneva, from 23 to 25 September 1996. It may be recalled that the first International Consultation on AIDS and Human Rights was organized by the then United Nations Centre for Human Rights, in cooperation with the World Health Organization, in Geneva from 26 to 28 July 1989. In the report of the first consultation (HR/PUB/90/2), the elaboration of guidelines to assist policy makers and others in compliance with international human rights standards regarding law, administrative practice and policy had already been proposed.

4. The Second International Consultation on HIV/AIDS and Human Rights (E/CN.4/1997/37) brought together 35 experts in the field of AIDS and human rights, comprising government officials and staff of national AIDS programmes, people living with HIV/AIDS (PLHAs), 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 (ASOs). The list of participants is attached as annex II to the present document.

5. The Consultation had before it five background papers which had been commissioned for the purpose of eliciting specific regional and thematic experiences and concerns regarding HIV/AIDS and human rights, prepared by the following nongovernmental organizations and networks of people living with HIV/AIDS: Alternative Law Research and Development Center (ALTERLAW) (Philippines); Network of African People Living with HIV/AIDS (NAP+) (Zambia); Colectivo Sol (Mexico); International Community of Women Living with HIV/AIDS (ICW+) (global) and Global Network of People Living with HIV/AIDS (GNP+) (global). The groups were asked, each within its specific context, to identify the most important human rights principles and concerns in the context of HIV/AIDS, as well as concrete measures that States could take to protect HIV-related human rights.

6. The Consultation also had before it draft guidelines on HIV/AIDS and human rights, prepared by Ms. Helen Watchirs (Australia) on the basis of the five regional background papers and other materials consulted. In addition, the international association Rights and Humanity conducted a global survey to review existing strategies and identify other measures necessary to ensure respect for human rights in the context of HIV/AIDS. An analysis of the 40 responses received to the survey was presented to the Consultation.

7. With regard to its methods of work, the Consultation formed four working groups to discuss and finalize the draft guidelines, focusing on the theoretical framework (WG.1), the institutional responsibilities and processes (WG.2), law review, reform and support services (WG.3) and on the promotion of a supportive and enabling environment (WG.4), respectively. In the second part of the Consultation, participants were divided into a further three working groups in order to discuss and elaborate recommendations concerning strategies to ensure the dissemination and implementation of the guidelines, according to different actors, as follows: States (WG.6), United Nations system and regional intergovernmental bodies (WG.7) and non-governmental organizations (WG.8).

Guidelines on HIV/AIDS and Human Rights

8. This document contains guidelines adopted at the Second International Consultation on HIV/AIDS and Human Rights, held in Geneva from 23 to 25 September 1996, to assist States in creating a positive, rights-based response to HIV/AIDS that is effective in reducing the transmission and impact of HIV/AIDS and consistent with human rights and fundamental freedoms.

9. The elaboration of such guidelines was first considered by the 1989 International Consultation on AIDS and Human Rights, organized jointly by the then United Nations Centre for Human Rights and the World Health Organization.¹ The United Nations Commission on Human Rights and its Sub-Commission on Prevention of Discrimination and Protection of Minorities have repeatedly reiterated the need for guidelines.² Increasingly, the international community has recognized the need for elaborating further how existing human rights principles apply in the context of HIV/AIDS and for providing examples of concrete activities to be undertaken by States to protect human rights and public health in the context of HIV/AIDS.

¹ Report of an International Consultation on AIDS and Human Rights, Geneva, 26 to 28 July 1989 (HR/PUB/90/2).

² For reports and resolutions on HIV/AIDS and human rights of the United Nations Commission on Human Rights and its Sub-Commission on Prevention of Discrimination and Protection of Minorities, see footnotes 42-43.

10. The purpose of these Guidelines is to assist States in translating international human rights norms into practical observance in the context of HIV/AIDS. To this end, the Guidelines consist of two parts: first, the human rights principles underlying a positive response to HIV/AIDS and second, 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.

11. The Guidelines recognize that States bring to the HIV/AIDS epidemic different economic, social and cultural values, traditions and practices-a diversity which should be celebrated as a rich resource for an effective response to HIV/AIDS. In order to benefit from this diversity, a process of participatory consultation and cooperation was undertaken in the drafting of the Guidelines, so that the Guidelines reflect the experience of people affected by the epidemic, address relevant needs and incorporate regional perspectives. Furthermore, the Guidelines reaffirm that diverse responses can and should be designed within the context of universal human rights standards.

12. It is intended that the principal users of the Guidelines will be States, in the persons of legislators and government policy makers, including officials involved in national AIDS programmes and relevant departments and ministries, such as health, foreign affairs, justice, interior, employment, welfare and education. Other users who will benefit from the Guidelines include intergovernmental organizations (IGOs), non-governmental organizations (NGOs), networks of persons living with HIV/AIDS (PLHAs), community-based organizations (CBOs), networks on ethics, law, human rights and HIV and AIDS service organizations (ASOs). The broadest possible audience of users of the Guidelines will maximize their impact and make their content a reality.

13. The Guidelines address many difficult and complex issues, some of which may or may not be relevant to the situation in a particular country. For these reasons, it is essential that the Guidelines be taken by critical actors at the national and community level and considered in a process of dialogue involving a broad spectrum of those most directly affected by the issues addressed in the Guidelines. Such a consultative process will enable Governments and communities to consider how the Guidelines are specifically relevant in their country, assess priority issues presented by the Guidelines and devise effective ways to implement the Guidelines in their respective contexts.

14. In implementing the Guidelines, it should be borne in mind that achieving international cooperation in solving problems of an economic, social, cultural or humanitarian character and promoting and encouraging respect for human rights and for fundamental freedoms for all, is one of the principal objectives of the United Nations. In this sense, international cooperation, including financial and technical support, is a duty of States in the context of the HIV/AIDS epidemic and industrialized countries are encouraged to act in a spirit of solidarity in assisting developing countries to meet the challenges of implementing the Guidelines.

Summary

15. HIV/AIDS continues to spread throughout the world at an alarming rate. The widespread abuse of human rights and fundamental freedoms associated with HIV/AIDS has emerged in all parts of the world in the wake of the epidemic. In response to this situation the experts at the Second International Consultation on HIV/AIDS and Human Rights concluded the following:

(a) The protection of human rights is essential to safeguard human dignity in the context of HIV/AIDS and to ensure an effective, rights-based response to HIV/AIDS. An effective response requires the implementation of all human rights, civil and political, economic, social and cultural, and fundamental freedoms of all people, in accordance with existing international human rights standards;

(b) Public health interests do not conflict with human rights. On the contrary, it has been recognized that when human rights are protected, fewer people become infected and those living with HIV/AIDS and their families can better cope with HIV/AIDS;

(c) A rights-based, effective response to the HIV/AIDS epidemic involves establishing appropriate governmental institutional responsibilities, implementing law reform and support services and promoting a supportive environment for groups vulnerable to HIV/AIDS and for those living with HIV/AIDS;

(d) In the context of HIV/AIDS, international human rights norms and pragmatic public health goals require States to consider measures that may be considered controversial, particularly regarding the status of women and children, sex workers, injecting drug users and men having sex with men. It is, however, the responsibility of all States to identify how they can best meet their human rights obligations and protect public health within their specific political, cultural and religious contexts;

(e) Although States have primary responsibility for implementing strategies that protect human rights and public health, United Nations bodies, agencies and programmes, regional intergovernmental bodies and non-governmental organizations, including networks of people living with HIV/AIDS, play critical roles in this regard.

16. The Consultation adopted Guidelines on HIV/AIDS and Human Rights, the purpose of which is to translate international human rights norms into practical observance in the context of HIV/AIDS. To this end, the Guidelines consist of two parts: first, the human rights principles underlying a positive response to HIV/AIDS and second, 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.

17. There are many steps that States can take to protect HIV-related human rights and to achieve public health goals. The 12 Guidelines elaborated by the Consultation for States to implement an effective, rights-based response 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 carry out their activities, including in the field of ethics, law and human rights, effectively.

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, emphasize 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.

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 government 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 international level.