Increasingly, human rights supervisory bodies have begun to focus on the vulnerability of people infected or affected by HIV/AIDS. A lack of respect for human rights fuels the spread and exacerbates the impact of HIV/AIDS, while at the same time the pandemic undermines progress in the realisation of human rights. HIV positive persons and AIDS victims are often subject to violations of many rights, economic and social, such as work-related rights and access to health care facilities, but also in relation to the enjoyment of civil rights, such as the right to privacy and freedom of movement. It is often difficult to separate violations of economic, social and cultural rights from violations of civil and political rights and states therefore need to adopt an integrated approach. HIV/AIDS demonstrates the indivisibility of human rights since the realisation of economic, social and cultural rights, as well as civil and political rights, is essential to an effective response to the epidemic.
The incidence of HIV/AIDS is disproportionately high in groups who already suffer from lack of protection and discrimination; such as women, children, those living in poverty, minorities, refugees and internally displaced people. In this regard, for example, the CEDAW Committee has stressed the link between women’s reproductive role, their subordinate social position and their increased vulnerability to HIV infection. Women now account for almost half of HIV infections worldwide and a majority of HIV infections in sub-Saharan Africa. Young people aged 15-24 years accounted for 45% of all new infections in 2007. Discrimination, stigma, and violence are daily realities for many people living with HIV and AIDS.
The key human rights principles essential for effective protection of people with HIV/AIDS are to be found in existing international instruments, such as the ICESCR, ICCPR, CEDAW, CAT, CERD, CRC and CRPD. At the regional level, the American Convention, the European Convention and the African Charter also enshrine general state obligations which are applicable to persons affected by HIV/AIDS. There are, however, to date, no binding international human rights standards dealing specifically with HIV/AIDS.
The UNGA has in several resolutions emphasised the need to combat discrimination and to respect the human rights of people with HIV/AIDS. A special UNGA session on HIV/AIDS in 2001 adopted the ‘Declaration of Commitment on HIV/AIDS’, which although not legally binding presents important milestones and targets to combat the HIV/AIDS pandemic. The Declaration of Commitment recognises that ‘without human rights, many of even the best improvements in programmes and policies will fail. Stigma, silence, discrimination and denial, as well as lack of confidentiality, undermine HIV prevention, care and treatment, and increase the impact of the epidemic on individuals, families, communities and nations’. The Declaration emphasises the full realisation of human rights for all as an essential element in a global response to HIV/AIDS, including in the areas of prevention, care, support and treatment. ‘It reduces vulnerability to HIV/AIDS and prevents stigma and discrimination against people living with HIV/AIDS, or at risk of it.’ In June 2008 the UNGA convened a high-level meeting on the comprehensive review of the progress achieved in realising the Declaration of Commitment and the Political Declaration on HIV/AIDS from 2006 which called on all countries to work towards universal access to HIV prevention, treatment, care and support by 2010 (UNGA Resolution 60/262). The UN Secretary-General report ‘Declaration of Commitment on HIV/AIDS and Political Declaration on HIV/AIDS: midway to the Millennium Development Goals’ formed the basis for discussion. The meeting stressed that respect for human rights is key for an effective response to the HIV epidemic as ‘countries that have recorded the greatest success in addressing their national epidemic have implemented a strong human rights-based approach, including working actively to eradicate stigma and discrimination against people living with HIV and those populations most at risk’. One of several recommendations put forth set out a ‘human rights-based approach to the AIDS response’:
National responses should prioritize the implementation, monitoring and enforcement of policies and programmes to protect and promote human rights. Furthermore, the human rights of vulnerable populations — migrants, youth, prisoners, indigenous peoples — and most at risk populations — sex workers, men who have sex with men, and injecting drug users — should be recognized by law and implemented in practice. Travel restrictions for people living with HIV should be lifted by countries that have such restrictions in place (UN Doc. A/62/895).
The UN Commission on Human Rights adopted numerous resolutions on human rights and HIV/AIDS (see, e.g., Resolutions 1989/1, 1999/49, 2004/26, 2004/35). The Human Rights Council will regularly adopt two resolutions which focus on the epidemic: an annual resolution focusing on access to medication in pandemics and a biennial resolution addressing the protection of human rights in the context of HIV and AIDS. Another international instrument worth mentioning is the ‘Paris Declaration on Women, Children and AIDS’ (1989).
The pandemic has been consistently addressed by UN specialised agencies and programmes, such as the Joint United Nations Programme on HIV/AIDS (UNAIDS); the United Nations Population Fund (UNFPA); WHO; UNICEF; and ILO. The work of these organs has increased awareness and concern for the protection of HIV/AIDS infected people through the contribution of noteworthy reports and codes of practices such as: ‘Action for Children affected by AIDS: programme profiles and lessons learnt’ (WHO/UNICEF); HIV/AIDS and Human Rights: Young People in Action (UNAIDS/UNESCO); and ‘Code of Practice on HIV/AIDS and the world of work’ (ILO). In addition, a number of ILO Conventions and recommendations are relevant to the problem of HIV/AIDS, such as instruments concerning discrimination in employment and occupation, termination of employment, protection of workers’ privacy and safety and health at work.
The Office of the United Nations High Commissioner for Human Rights (OHCHR) and the joint United Nations Programme on HIV/AIDS (UNAIDS) have developed guidelines to assist states in implementing human rights norms in the context of HIV/AIDS: ‘The International Guidelines on HIV/AIDS and Human Rights’ (1998) and its ‘Revised Guideline 6: Access to prevention, treatment, care and support’ (2002).
Since the epidemic began in the early 1980s, the international community has become increasingly concerned with the human rights protection of HIV/AIDS infected people. This is a crosscutting theme that UN treaty bodies have dealt with from their different perspectives, progressively developing the application of their respective instruments to respond to the pandemic and its consequences, setting out that states parties to international human rights agreements should include in their reports information on the effects of AIDS on the enjoyment of human rights of those infected and the measures taken to prevent discrimination against them.
The treaty bodies have dealt with HIV/AIDS in several general comments and recommendations. In this regard, CEDAW General Recommendation 15 on avoidance of discrimination against women in national strategies for the prevention and control of acquired immunodeficiency syndrome (AIDS) adopted in 1990 and General Recommendation 24 on Women and Health adopted in 1994 are important. In 2003, the Committee on the Rights of the Child adopted General Comment 3 on HIV/AIDS and the rights of the child and General Comment 4 on adolescent health. The CESCR Committee adopted General Comment 14 on the right to the highest attainable standard of health (2000), which is relevant to HIV/AIDS. Increased attention is paid by the treaty bodies to HIV/AIDS-related issues in the examination of state party reports. The bodies commonly issue recommendations and suggestions as to how to deal with the pandemic from the human rights perspective (see, e.g., CESCR Concluding Observations on Egypt 2001 and the Russian Federation 2004; CEDAW Committee on the Lao People’s Democratic Republic 2005; and CRC Committee on Guyana 2004).
The work of the treaty bodies establishes that the principle of non-discrimination prohibits any discrimination on the ground of health status, including HIV/AIDS (see, e.g. HRC General Comment 18). States must not discriminate against this group and they are required to adopt special measures of protection. For instance, the Committee on Economic, Social and Cultural Rights has stated that HIV positive individuals should have some degree of priority consideration in the allocation of housing and access to health facilities (General Comments 4 and 14). In general, treaty bodies require the implementation of laws and policies to eliminate all systemic discrimination, including where the victims are persons with HIV/AIDS. States are to enact or strengthen laws that protect vulnerable groups, people living with HIV/AIDS and people with disabilities, from discrimination in both public and private sectors. States shall ensure respect of all rights of these groups, inter alia: the right to the highest attainable standard of health; the right to liberty and security of person; freedom of movement; the right to privacy; the right to marry and found a family; the right to work; and the right to be free from torture and cruel, inhuman and degrading treatment or punishment.
The Human Rights Committee stated in Toonen v. Australia 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’.
The Special Procedures of the Human Rights Council have also supervised the enjoyment of human rights by HIV/AIDS sufferers. For instance, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has dealt with the application of a human rights-based approach to drug policies in prisons in relation to HIV/AIDS (A/HRC/10/44, 2009). The Independent Expert on the situation of human rights in Haiti has dealt with co-operation and efforts to combat HIV/AIDS (E/ CN.4/2004/108). The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and the Special Rapporteur on the promotion of the right to freedom of opinion and expression have dealt with this issue (see, e.g., E/CN.4/2004/49 and E/CN.4/2003/67).
At the regional level, there have been some interesting cases concerning HIV/AIDS. At the European level, D. v. The United Kingdom is noteworthy. The case concerned an expulsion order of a man who was suffering from advanced AIDS. The European Court established that withdrawing medical treatment from the applicant would hasten his death. The Court ruled that expelling the applicant to Saint Kitts and Nevis, where there were no facilities to treat his illness, ‘would amount to inhuman treatment by the respondent State in violation of article 3’. However, in N. v. The United Kingdom, a case of a HIV-positive woman who sought to stay in the United Kingdom, the Court held that while treatment may be inaccessible in Uganda, the humanitarian grounds against removal were not compelling enough to find that her removal would constitute inhuman or degrading treatment:
The Court accepts that the quality of the applicant’s life, and her life expectancy, would be affected if she were returned to Uganda. The applicant is not, however, at the present time, critically ill. The rapidity of the deterioration which she would suffer and the extent to which she would be able to obtain access to medical treatment, support and care, including help from relatives, must involve a certain degree of speculation, particularly in view of the constantly evolving situation as regards the treatment of HIV and AIDS worldwide.
In Khudobin v. Russia the Court held that the absence of medical assistance for an HIV-positive prisoner, in the given context, amounted to degrading treatment.
At the Inter-American level, the Inter-American Commission has admitted a petition against El Salvador alleging violations of the right to life, health and full development of personality of a group of persons infected with HIV/AIDS (Miranda Cortéz et al. v. El Salvador (Case 12.249)). The allegation was grounded in the state’s failure to provide the applicants with the medication needed to prevent them from dying and to improve their quality of life. The petitioners also claimed that the situation constituted cruel, inhumane and degrading treatment. The Commission declared the case admissible in respect of alleged violations to the rights enshrined in Articles 24 (equal protection), 25 (judicial protection) and 26 (social rights) of the American Convention (see also Luis Rolando Cuscul Pivaral et al. (Persons living with HIV/AIDS) v. Guatemala, Petition 642/03). In Andrea Mortlock v. The United States, Case 12.354, the applicant was terminally ill and faced deportation to Jamaica where she would not receive the specialised treatment she required to stay alive, and where she had no support network. The Commission concluded that, in view of the circumstances of the case, the issuance of a deportation order of the applicant to Jamaica violated the protection of Article 26 of the American Declaration, not to receive cruel, infamous or unusual punishment.
Important cases at the domestic level regarding the protection of HIV/AIDS victims include Treatment Action Campaign v. Minister of Health (2002), decided by the South African Constitutional Court, South African Security Forces Union and Others v. Surgeon General and Others, High Court of South Africa (2008), and People Living with HIV v. Ministry of Health (2001), Supreme Court of Chile.