October 01, 2004

Using Human Rights to Combat the HIV/AIDS Pandemic

The HIV/AIDS pandemic presents a stark example of the nexus between human rights and health. This first became evident when government responses to HIV/AIDS subjected people living with the disease to violations of their rights to liberty, privacy, freedom of association, nondiscrimination, and equality before the law. Early on, advocates began to look to human rights law to protect the rights of people who were infected and to ensure that government responses to the HIV/AIDS pandemic were based on science rather than stereotypes and stigma. As the pandemic has progressed, it has become apparent that human rights law is relevant not only to the treatment of infected individuals but also to wider policies that influence vulnerability to HIV/AIDS, as populations that are discriminated against, marginalized, and stigmatized are at a greater risk of contracting the disease. A central tool in fighting the pandemic therefore must be to strengthen the recognition of the human rights of all people.

International human rights law can indeed serve as a powerful mechanism to influence domestic law and policy regarding HIV/AIDS. The human rights framework is also one of the few avenues the international community can use to examine what goes on within a state’s borders, especially regarding health policy. This scrutiny by outside actors pressures national governments to change their practices and is one mechanism through which international consensus on the content of each right is built.

Guaranteeing Protection

Ensuring the human rights of people who have contracted HIV is an important component of an effective response. People living with HIV/AIDS are often subject to discrimination and stigmatization that can permeate every aspect of life—employment, medical treatment, the care and custody of children, and other social relationships. People with HIV have been fired simply because of their serostatus. Doctors and dentists, irrationally fearing negligible risks of transmission, have refused to treat people who are infected. Courts have implied that serostatus is a factor in the ability to be a nurturing and protective parent. The list of examples of discriminatory practices is, unfortunately, extensive.

Nondiscrimination is a basic tenet of the human rights movement, enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and countless other human rights treaties and declarations. This principle of nondiscrimination has begun to be applied at the national level with regard to individuals infected with HIV. Some nations, such as South Africa, have adopted legislation aimed at protecting people with HIV/AIDS from discrimination. This action is essential. The stigma associated with HIV/AIDS deprives people of their dignity and communities of productive members. Equally as detrimental, it provides an incentive to avoid testing, especially in circumstances when treatment options are limited or nonexistent. With legal protection, people will feel secure in their rights and dignity—and be more willing to seek testing and treatment. Enshrining human rights principles at the national level therefore may serve to change the culture of stigmatization that can surround the disease, even if this transformation is slow.

Expanding Treatment

Providing access to treatment is also an essential element of securing the rights of people who have contracted HIV/AIDS. International covenants protect the right to health and the right to benefit from scientific progress, but they simultaneously protect intellectual property rights. (Or, as described in the ICESCR, they protect the moral and material interests resulting from scientific discovery.) The proper balance between providing access to affordable medication and protecting intellectual property rights is one of the foremost human rights questions provoked by the AIDS pandemic. With millions sick and dying, nations have begun to produce generic versions of patented drugs and to sell them at a fraction of the cost of the brandname products. Pharmaceutical firms claim that this production violates their patent rights and that without the large profits generated from patented medications, research and development on groundbreaking medicines would be hampered.

The Committee on Economic, Social and Cultural Rights, established by the ICESCR, has noted that intellectual property rights are primarily instrumental: they serve to provide incentives for creativity, producing new drugs and other innovations. On the other hand, human rights are fundamental, deriving from the human person. From a human rights perspective, the world community should place greater weight on the right to life and health than intellectual property concerns. The threat of legal action against companies producing generic medicines should pale in comparison to the public outcry against corporations bringing such suits. This has been true in several cases where pharmaceutical companies threatened to bring patent enforcement actions. The companies eventually bent to the will of the public, allowing production of the medicines to continue. Interpreting treaties consistently with human rights norms will allow greater access to treatment, curtailing unnecessary suffering.

In addition to helping individuals and populations cope with the burdens of rising numbers of HIV/AIDS infections, human rights law has a role to play in curbing the spread of the disease. When government policies are focused on respecting, protecting, and fulfilling the right to education, scientific advancement, and health, governments are better able to undertake scientifically proven interventions and harm reduction strategies that, while perhaps politically unpopular, will best curb the spread of HIV/AIDS. For example, latex condom use is known to drastically reduce the risk of transmitting the virus. People have a right to this information, based on the right to education and the right to benefit from the advancements of science, both embodied in the ICESCR. Governments should provide information on the efficacy of condom use, even where such a policy is politically unpalatable. This strategy protects the population’s right to health, among other human rights.

Additionally, policies regarding drug use should be evaluated in terms of their net effect on human rights and population health. Intravenous drug use is fueling the pandemic. For example, 90 percent of the one million people infected in Russia contracted the disease through intravenous drug use. While needle exchange programs are controversial, drug users who have access to sterile needles protect themselves, their partners, and their families. The benefit of these programs, including the expansion of the right to health for drug users and their contacts, outweighs perceived risks of contributing to drug use. Failing to protect the drug-using population will only result in greater incidence of stigma and disease and further risk to the human rights of this vulnerable group.

Protecting the human rights of disadvantaged groups in society will also help slow the rates of infection. The vulnerability of minority groups, women, and children places them at greater risk for contracting the virus. Disadvantaged racial and ethnic minorities often have a higher incidence of HIV/AIDS, due in part to restricted access to resources, including education, adequate medical services, and political power. For example, in the United States, African Americans comprise 41 percent of reported AIDS cases but make up only 12 percent of the population.

Likewise, women in many societies are at an economic and political power disadvantage. Unequal rights and opportunities with regard to employment, property ownership, marriage, divorce, and inheritance place women in a position of economic dependence on their spouses or other family members. Where women do not have equal access to well-paying jobs, they may be forced into marriage or commercial sex work out of economic necessity. In countries where a widow or divorced woman is not entitled to a share of marital property, staying in a marriage with an unfaithful spouse or immediate remarriage may become the best means of subsistence. Practices such as polygamy, women stepping into a marriage to fulfill the procreative role upon their sister’s death or infertility, and no minimum age of marriage contribute to women’s vulnerability, as do cultural beliefs (often supported by laws) that wives should be sexually available at their husbands’ desire. In this context, women’s greatest risk factors become their inability to refuse sexual intercourse, control their husbands’ sexual behavior, or negotiate condom use.

Children are especially vulnerable. Lacking the physical and social power to protect themselves, they are at risk of sexual abuse. This innate vulnerability has been exacerbated by the HIV/AIDS epidemic, which has left an estimated fourteen million children orphans. This number is rising. As people die of the disease in the most productive years of their lives, social structures are being fragmented and fewer caregivers are available to fill the void left by missing parents. Economically, socially, and physically vulnerable, AIDS orphans risk being taken advantage of through sexual exploitation or child labor. Beliefs in some regions that having intercourse with a virgin will cure HIV/AIDS or that young females are less likely to have contracted the disease lead to rape, intergenerational sex, and intergenerational marriage, leaving children open to exposure to the disease.

Moving Beyond International Treaties

Although the core international human rights treaties, including the ICESCR, emphasize equality for minorities and women and afford special protections to children, these ideals must be incorporated into national law and social structures. The United Nations General Assembly adopted the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1965 and 1979, respectively. The 169 parties to CERD have obligated themselves to “pursue . . . a policy of eliminating racial discrimination in all its forms.” (Art. 2(1).) Similarly, CEDAW requires that countries “embody the principle of the equality of men and women . . . [and] ensure, through law and other appropriate means, the practical realization of this principle.” (Art. 2(a).) Over 90 percent of the countries that are members of the United Nations are parties to CEDAW, though it is interesting to note that the United States has not ratified the treaty. Yet in spite of these public promises on the part of governments to ensure that different racial groups and men and women stand on equal footing, minorities and women remain second-class citizens in many countries. International treaties should therefore be supplemented by national legislation and training for minority and women advocates. Making these promises a reality may be the best medicine in the fight against AIDS.

Likewise, the Convention on the Rights of the Child (CRC) is almost universally ratified, though the United States has not ratified this treaty, either. The CRC protects children’s rights to health, education, and a minimum age and appropriate conditions for employment. The treaty also obligates states to protect children from sexual exploitation and abuse, as well as trafficking for any purpose. In spite of these lofty statements, however, children remain susceptible to infection and suffer the consequences of HIV/AIDS infections among family members. Again, making these rights a part of the cultural landscape could slow the spread of AIDS by protecting children from exploitation.

The extent to which we are able and willing to protect human rights will undoubtedly affect the speed at which the HIV/AIDS pandemic spreads. Securing the human rights of people affected by HIV/AIDS allows them to receive treatment, continue working, and provide for themselves and their families while they are still well enough to contribute. It affords society the benefits of talented and productive individuals. Equally important, it encourages people at risk to get tested for the disease, allowing treatment to begin earlier, as well as offering greater protection for sexual and needle-sharing partners.

Enforcing the human rights of vulnerable populations will also slow the spread of the disease. When countries adhere to the human rights principles to which they have agreed, minority status will no longer be a risk factor for contracting HIV/AIDS. Different races and ethnic groups will have equal access to society’s resources, including education about the disease and its treatment. Women will be better able to protect themselves from contracting HIV. They will have the economic and political power to leave unfaithful husbands or to refuse unprotected sex. Children will be protected from exploitation; sex trafficking, intergenerational marriage, and sexual violence will become less prevalent. By protecting the human rights of all segments of the population, people will be better able to ensure their own health and the health of their families.

As published in Human Rights, Fall 2004, Vol. 31, No. 4, p.2-3, 22.