The scourge and effects of HIV and AIDs continue to be felt all over the world. HIV and AIDs have continued to contribute to increased marginalization of underprivileged members of the society. The segments of the population range from men and women, and people from different ethnic backgrounds. All over the world the level of unfair treatment of the people with HIV and AIDS has continued to put people with HIV and AIDs at risk, especially in preventive services and getting drugs. This problem is experienced in areas that have advanced and even in the developing societies (Gruskin &Tarantola, 2004). This paper posits by examining the definition of human rights. It outlines the importance of the global laws protecting the rights of the people living with HIV and AIDs. The paper then explores HIV and AIDS, public health and human rights practices. It then unearths the concept of human rights in HIV and AIDS Policy programming, a Rights-Based Approach to HIV and AIDs, and the realization of the relationship between human rights and HIV and AIDs. Human rights, the causes of women’s vulnerability to HIV and Aids, stigma and discrimination are also discussed. Lastly, the role of human rights and HIV and AIDS in shaping Government Responses are highlighted and discussed.
Definition of Human rights
Human rights refer to the lawfully binding commitments of governments under international human rights law. The issue of human rights dates back to the 1940s when the promotion of human rights was set out as one of the purposes and principles of the then-established United Nations (Gruskin &Tarantola, 2000). Since then, nations across the world have joined at least one human rights group as members. Among the activities advocated by human rights groups are those related to HIV and AIDs which have found ways in international declarations like the 2001 Declaration of Commitment on HIV and AIDS, and the 2006 Political Declaration on Universal Access. Human rights are mainly focused on establishing the relationship between citizens and the nation. International human rights law stipulates that governments should not expose their citizens to torture, unjustified imprisonment, or intruding in their private life. The global Governments have the obligation to provision of basic needs to their citizens to enhance the wellbeing of the people (Peacock, et al., 2009). The main human rights document and the backbone of the present-day human rights activism are the Universal Declaration of Human Rights (UDHR) which was adopted in 1948. It is an ideal document for governments, about what rights should prevail for everybody all over the world. Several international human rights treaties are given in the UDHR among them the International Covenant on Civil and Political Rights; the Covenant on Economic, Social, and Cultural Rights; the Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child” (Gruskin &Tarantola, 2004).
The role of the government concerning the HIV and AIDs pandemic is found in these convention documents in various forms. Most of these convention documents stress the right to achieving the highest standard level of physical and mental health as a priority for many nations. In these documents, they have elaborated on the impact of human rights and HIV and AIDs. These rights range from the rights to the benefits of advances in science and technology and the use of the procedures in HIV and AIDs. Also the most discussed issues are the activities of preventing diseases of the whole population and right to accessing information and other privileges that the citizens should enjoy. They are services like the right to security and involvement in activities that contribute to the growth of the economy.
HIV and AIDS, Public Health, and Human Rights practices
With the use of the human rights approach, it is possible to determine the progress by which governments are continually respecting, safeguarding, and meeting their responsibilities for all rights that include civil, political, economic, social, and cultural rights and how the government activities affect the patterns of infection and responses” (Gruskin, 1999)1. With respect to advocacy and accountability, the respective governments have the role of ensuring that important human rights are enhanced and safeguarded (UNHCR, 2001). Unfortunately, we do not have an international human rights agreement that specifically mentions HIV and AIDs or the rights of individuals in the context of HIV and AIDS. At least every international human rights instrument responsible for monitoring government action have displayed their commitment to examining the impacts of HIV and AIDS for governmental obligations. This may be of critical importance for combining HIV and AIDS and human rights in practical and better manner. For instance, in the last couple of years, greater emphasis has been paid to HIV and AIDS by governments in the way of reporting with regard to the human rights obligations (WHO, 1987). The governments need to devise and strengthen human right frameworks through developing decisive policies and responses for HIV and AIDS preventions. The programs should focus on the affected people, among them provision of information and education, proper health care of the affected, support people living with HIV and AIDS, and take precautions to reduce the political, social and economic consequences of the disease. The Resolutions of the UN Commission on Human Rights and the 1998 International Guidelines on HIV and AIDS and Human Rights too provide advocates and policymakers with important parameters for assisting them to ensure increased attention to both HIV and AIDS and human rights (UNHCHR, 1998). The agreed upon document that was released by the UN General Assembly Special Session on HIV and AIDS in June 2001 outlines the steps necessary for advocacy and accountability with respect to HIV and AIDS (UNAIDS, 2001). Therefore, the interested parties, in this case, the human rights groups, the citizens, and organizations who find the contents of the established documents for policy and planning purposes necessary and sufficient for their work may use them as complements to other international policy and programs promoting and protecting human rights in the context of HIV and AIDS.
Human Rights in HIV and AIDS Policy programming
Human rights are part and parcel of government’s entitlements as far as human rights and their protections are concerned. They strive to protect individuals in matters of public health; they are involved in designing relevant strategies and policies for implementation, and evaluation of health policies, programs and outcomes (Gruskin et al, 1996). As a result of the responsibilities and obligations that governments are expected to play, they are legally responsible for enacting policies and programs that will facilitate reducing the spread and impact of HIV and AIDS in their respective countries. It is reported worldwide that human rights, civil, political, economic, social, and cultural activities are twofold: lawfully putting governments to some level of responsibility as far as human rights are concerned, and ensuring proper response mechanisms are put in place in tackling HIV and AIDs related cases. A public health approach in human rights activities requires a practical examination of public health set responses and their related factors. These factors that are bound to affect the way health issues are treated in a country may for instance be gender-related, cultural, religious-related, or based on racial discrimination. Singly and combined, these factors can have an impact on the extent to which citizens and societies’ capacity to access social services. The progressiveness of HIV and AIDS strategies, policies and programs are expected to be based on the extent to which they respect human rights and how effective the same policies can be in solving public health-related issues. They are expected to be sensitive to the affected and infected victims of HIV and AIDs. The International Federal for Red Cross and Bagnoud Center for HIV and Human Rights (1995) established that the communities in which victims of HIV and AIDs live are aware of the fundamental relationship between Human Rights and HIV and AIDs. The governments are expected to take advantage of the established relationship to instill in the society the right attitudes in living with the affected and infected people. The benefits of bringing HIV and AIDS policies and programs in tandem with international human rights law are generally recognized, however, it is, less often implemented in real-life situations.
A Rights-Based Approach to HIV and AIDS
Although the rights-based approach was first initiated in the mid-1990s as the best available approach by the United Nations Development Program for HIV and AIDs, its undoing has been the different meanings it draws across sectors, disciplines, and nations. A rights-based approach to HIV demands a greater focus on processes and results and needs in cooperation of human rights norms and standards into policies and programs. This involves, for instance, the involvement of vulnerable and affected population groups in decision making on issues that matter in their life and the accountability of governments for their deeds—and in no actions—in preventing the spread of HIV and mitigating its impact on society (Mindy, et al., 2004). A rights-based approach to HIV calls upon countries to set their benchmarks and targets, to the highest level of their capabilities and resources, and to meet their obligations of accountability. By shifting the focus on outcomes, a rights-based approach measures and checks achievements against set program targets. HIV and AIDS epidemic presents a situation where collective efforts are required at a global scale (Fidler, 2004).
A rights-based approach provides room for the inclusion of human rights principles, like non-discrimination, into the provision of services and is likely to see the participation of affected communities in the design, implementation, monitoring, and evaluation of responses (Elliot, et al., 2005). Furthermore, human rights approach helps in holding governments and intergovernmental agencies, especially those that belong to the UN system, publicly accountable for their activities and no actions viz-a-viz HIV and AIDs programming. Lastly, evaluating programs on the basis of human rights standards, with a focus on the accessibility of essential prevention, care, and treatment services, requires the emphasis on the availability, accessibility, acceptability, and quality of services and goods, as well as outcomes among different population groups. (UN, 1984)
Realization of the Relationship between Human Rights and HIV/AIDS
In the 1980s, the link between HIV and AIDS and human rights was not clearly known as many associated it with the rise of discrimination among people infected with HIV and AIDS (WHO, 1988). For the affected discrimination come in form of mandatory HIV testing; traveling barriers within and outside their native nations; housing and employment barriers; and barriers in accessing health facilities (Gruskin & Tarantola, 2004). These treatments are punitive and up to date, they have not been completely eradicated. The 1980s were very critical in examining the relationship between HIV and AIDS and human rights. In the early 1990s, the call for human rights and compassion and solidarity with people living with HIV and AIDS had been included in the first WHO global interventions to AIDS (WHO, 1987). The impacts of the call were far-reaching in framing this public health strategy in human rights terms, were embodied in international law, thus making governments and intergovernmental organizations publicly accountable for their actions toward people living with HIV and AIDS (Tarantola, 2000). The landmark contribution of this period is in the realization of the applicability of international law to HIV and AIDS-and therefore to the ultimate responsibility and accountability of the nation under international law for matters appertaining to health and well-being (Mann et al, 1994).
Human Rights about HIV and AIDS: Government Responsibilities
In the jurisdiction of international law, there are no binding legal instruments about HIV and AIDS. For every human right, governments have three responsibilities: countries must respect, protect, and fulfill the right (Eide, 1995). Respecting the right implies that countries cannot violate the rights directly. Fulfilling the right implies that countries must take all necessary legislative, administrative, and judicial measures in order to realize the right. As has already been explored in the previous sections, how the international law applies to HIV and AIDS, governments are accountable for their deeds to the people about HIV and AIDS. With the clear violations that continue to happen, it is imperative to consider the specific human rights responsibilities of governments (WHO & UNAIDS, 1995). Governments are required not to be involved in the violating of rights directly and make sure the conditions that ensure citizens enjoy their rights are favorable.
Human rights and Cause of Women’s HIV vulnerability
Women are the worst hit by HIV compared with their men counterparts. They are also vulnerable than men. The reasons advanced for the women’s vulnerability include; unique biological risk factors and ‘high-risk’ sexual behaviors, low income-earning options and low education levels, unequal access to property, land ownership and inheritance (Bola, et al., 2003). To reduce women’s vulnerability there is need for strengthening education and empowerment programs targeting ‘promiscuity ’of‘ high-risk groups’ and the social-cultural factors contributing to high-risk sexual behavior (McClellan, 2001). Economic empowerment of women and case in point is micro-credit and micro-enterprise development. Finally, there is a need to outlaw discriminatory laws and activities that restrict women’s access to income and property (UNAIDS, 2001).
Stigma and discrimination and the role of human rights
HIV and AIDS-related stigma and discrimination in society are evident in various forms including; laws, policies, and administrative processes, which are often justified as important to protect the population in general (UNESCO, 2001). Cases of stigma and discrimination include mandatory screening and testing, compulsory notification of AIDs cases, restrictions of the right to the revelation of names, denial of PLWHA from certain occupations, and medical examination, isolation, detention and forced treatment of infected persons (WHO & UNAIDS, 1999). Stigma and discrimination have been rampant in various areas like in educational institutions, religious institutions, workplaces, health care systems, HIV and AIDS programs, community members, family members and individuals. The principle of non-discrimination is paramount to human rights thinking and practice. Under international human rights law, everybody must be treated equally and given equal opportunity. According to the international human rights framework, discrimination is against a government’s human rights obligations (UN, 1999; UN, 2001). Therefore, discrimination frequently perpetuates social inequalities and denies equal opportunities. Even though the international human rights declarations do not clearly prohibit discrimination based on health status, the United Nations Commission on Human Rights categorically stipulates that “all are equal before the law and entitled to equal protection of the law from all discrimination and from all incitement to discrimination relating to their state of health” (WHO, 1987; WHO,1988).
HIV and AIDS: shaping Government Responses
In India, for instance, The Lawyers Collective, HIV and AIDS Unit, India, addresses particularly the legal needs of people living with PLWHA (Tarantola, 2007). It went to the Bombay High Court to quash the decision of a company that terminated the employment of an employee because of his ‘serostatus’. From this case, it can be noted that the government has given full support to HIV and AIDs activism. The High Court ruled in favor of the fired employee stating the reinstatement of the worker. The employer was instructed to pay the damages of the employee caused by the abrupt dismissal. In Venezuela, in 1999, the government noted the unconstitutional approach of the Ministry of Health in relation to health as the HIV and AIDs victims had no access to the right to scientific advances as guaranteed by the Venezuelan constitution (WHO, 2006). The government as part of its responsibilities ordered the Ministry of Health to release antiretroviral drugs, and treatments for opportunistic infections and diagnostic testing to victims with PLWHA (Mindy et al, 2004). In the Philippines, The National AIDS Prevention and Control Act has been established through human rights activism. This was organized by the coalition of Philippine nonstate actors and human rights lawyers who demanded accountability of the rights of people with HIV and AIDs from the country (Philippine Country report, 2001; HRBA, 2001). Eventually it culminated into the passage of the Act which requires that the people to be tested are talked to and only tested on a voluntary basis. The Act is an actively advocating against any form of discrimination just within the premises of actual or perceived HIV status when it comes to employment, admissions into institutions of learning among others. (Mindy et al, 2004)
The Caribbean Community governments included some of the DoC’s targets into the Caribbean Regional Strategic Framework against HIV and AIDS immediately after the UNGASS on HIV and AIDS (UN, 1984). This shows CARICOM’s realization of its accountability for implementing the DoC. The South African government has accepted and adopted the International Guidelines on HIV and AIDS and Human Rights and envisaged it in their laws to run programs of HIV and AIDs (Mann et al., 1994)
In Mexico, MEXSIDA, a coalition of HIV and AIDS non-state actors participate in HIV and AIDs activities through their special creation within MEXSIDA. It also committed to sustaining HIV and AIDs programs in the country. In Canada, the Canadian Charter of Rights and Freedoms protects the human rights outlined in this paper apart from the right to privacy, which is unstated in the Charter but is implied as a principle of the Charter’s protections of liberty and security of the person and against unreasonable search and arrest (Canada Network, 2004). Canadian courts have too ruled major decisions about the human rights of people living with or affected by HIV and AIDS, especially the right to non-discrimination (Laura, 2011). The case in point is the 1997 case where the European Court of Human Rights overturned the United Kingdom’s immigration service when it attempted to deport a Saint Kitts national terminally ill with HIV and AIDs despite lack of treatment in his home country. National courts and to some extent human rights commissions have demonstrated some capacity in the enforcement of human rights protections through various sanctions and penalties (Mindy et al, 2004).
Bola, et al., (2003). HIV/AIDs and Human Rights in Nigeria; Background Paper for HIV/AIDS Policy Review in Nigeria, Prepared by the Centre for the Right to Health for the Policy Project.
Canadian HIV/AIDS Legal Network. (2004). Privacy Protection and the Exposure of Health Information: LegalIssues for People Living with HIV/AIDS in Canada.
Eide, A. (1995). Economic, Social and Cultural Rights as Human Rights. In: A Eide, C Krause, A Rosas, (eds). Economic, social and cultural rights: a Textbook. Dordrecht: Martinus, Nijhoff: 21-40.
Elliot, R., Csete, J., Wood, E. & Kerr, T. (2005). Harm Reduction, HIV/ AIDs, and the human rights challenge to global drug control policy. Journal of Health Hum Rights. 8(2):104-38.
Fidler P. (2004). Fighting the Axis of Illness: HIV/ AIDS, Human Rights, and U.S. Foreign policy. Web.
International Federal of Red Cross and Red Crescent Societies and Francois-Xavier Bagnoud Center for Health and Human Rights. (1995). The public health-human rights dialogue in: AIDS, Health and Human Rights: an Explanatory Manual. Boston.
Gruskin, S. and Tarantola, D. (2004). Human Rights and HIV/AIDS. François-Xavier Bagnoud Center for Health and Human Rights, Harvard School of Public Health.
Gruskin, S. & Tarantola, D. (2000). HIV/AIDS, Health and Human Rights. In: P Lamptey, H Gayle, P Mane, (eds). HIV/AIDS Prevention and Care Programs in Resource-Constrained Settings: A Handbook for the Design and Management of Programs. Virginia: Family Health International.
Gruskin, S. (1999). Human rights and public health: an overview. Canadian HIV/AIDS newsletter.
Gruskin, S., Hendriks, A. & Tomasevski, K. (1996). Human rights and responses to HIV/ AIDS. In: J Mann, D Tarantola (eds). AIDS in the World II. London: Oxford University Press: 326-340.
Laura, M. B. (2010). Human rights consequences of mandatory HIV screening policy of newcomers to Canada. Health and Human rights: an international journal. Vol 12, No 2.
Mann, J., Gostin, L., & Gruskin, S. (1994). Health and Human Rights. 1(1): 6-23.
McClellan, F. (2001). Human rights: a critical framework for the response to HIV/AIDS, Volume 358, Issue 9276, Page 144.
Mindy, et al., (2004). HIV/AIDS & Human Rights in a nutshell: A quick and useful guide for action, as well as a framework to carry HIV/AIDS and human rights actions forward
Peacock. D. Stemple, L., Sawires, S. & Coates, T. (2009). Men, HIV/AIDS, and Human Rights. Journal of Acquired Immune Deficiency Syndromes: Volume 51 pp S119-S125.
Tarantola, D. (2007) Global Justice and Human Rights: Health And Human Rights in Practice.
UN Report. (1999). Statement from the community AIDS movement in Africa, presented at the meeting on the international partnership against HIV/AIDS in Africa. New York: UN Headquarter.
United Nations. (1984). Economic and Social Council, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities: Siracusa Principles and the Limitations and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, U.N. Doc W/CN. 1984. Montréal: Canadian HIV/AIDS Legal Network. Web.
UN. (2001). Commission on Human Rights Resolutions.
UNAIDS. (2001). ‘Declaration of Commitment on HIV/AIDS: Global Crisis – Global Action,’ United Nations General Assembly Special Session on HIV/AIDS. New York.
UNESCO. (2001). Globalization and Women’s Vulnerabilities to HIV and AIDS; gender equality series 2.
United Nations Commission on Human Rights (1989). Non-Discrimination in the Field of Health, preamble, Resolution.
United Nations. (1984). Economic and Social Council, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities: Siracusa Principles and the Limitations and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, U.N. Doc W/CN. 1984.
World Health Organization. (1988). World Health Assembly, Avoidance of Discrimination Against HIV-Infected Persons and Persons with AIDS, preamble, resolution WHA41.24.
World Health Organization (1987). World Health Assembly, Resolution WHA: Global Strategy for the Prevention and Control of AIDS. Geneva.
World Health Organisation. (2006). Regional Office for the Western Pacific, Secretariat of the Pacific Community & the University of New South.
Wales.Second Generation Surveillance Surveys of HIV, other STIs and Risk Behaviors in Six Pacific Island Countries (Fiji, Kiribati, Samoa, Solomon Islands, Tonga, Vanuatu) WHO WC 503.41.
World Health Assembly Resolution ( 2001). ‘Scaling up the response to HIV/AIDS,’ UN Commission on Human Rights Resolutions
WHO and the Joint United Nations Programme on AIDS (UNAIDS). (1999). Consultation on HIV/AIDS reporting and disclosure, Geneva.