|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|
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.