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April 01, 2010

Introduction: Why Rights, Why Here, and Why Now?

by Shelley D. Hayes

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.

-- Lesley Stone and Lawrence O. Gostin, Human Rights magazine, Fall 2004

The nexus between human rights and HIV/AIDS is much the same today as it was in 2004 when this magazine last focused on the issue. And, yet, every day brings new challenges to the forefront as lawyers and their allies strive to address the continuing legacy of the virus. In the pages that follow, we hope to shine a light on the human rights issues at home and around the globe that continue to fuel this epidemic.

Speaking broadly, human rights are concerned with defining the relationship between individuals and the State. The modern human rights movement dates back sixty years to the adoption of the Universal Declaration of Human Rights by the newly created United Nations on December 10, 1948. It is an aspirational document, growing out of the atrocities of World War II. A number of international human rights treaties further expand the rights set out in the declaration.

HIV is the retrovirus—one that incorporates its genetic code into host cells—that causes AIDS by infecting the T or “fighter” cells of the immune system. Although many scientists believe that HIV has been with us since the 1950s, it is undisputed that by 1982 it had been detected on five continents. Yet, despite nearly thirty years on the world stage, and billions of dollars allocated to its eradication, HIV now has burrowed deep into the fabric of our lives. In many resource-rich countries, its presence is not obvious, existing as it does just below a cloak of prosperity. In many resource-poor countries, HIV seems to be everywhere. In both, there rests in the State an obligation to ensure that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services” (Art. 25, Universal Declaration of Human Rights). And, in both, populations made vulnerable by the happenstance of birth or immutable characteristics, or by what some may view as non-normative behaviors, find that the actions of the State are lacking as the risk of premature death from AIDS is ever increasing.

While HIV knows no boundaries in whom it attacks, since the beginning of the epidemic, racial, ethnic, and sexual minority groups have been disproportionately affected, now making up the majority of new AIDS cases, new HIV infections, people living with HIV/AIDS, and deaths from AIDS, largely due to the social determinants that affect disease outcomes. Those social determinants include socioeconomic status, discrimination by social grouping, housing, transportation, access to services, and others. It is no accident, then, that some African countries, parts of Central America, and the Caribbean are experiencing a “generalized” HIV epidemic—one in which more than 1 percent of the population is HIV-positive. Here at home, more than 1 million people currently are living with HIV, with more than 56,000 new infections being reported each year. Our nation’s capitol of Washington, D.C., with an HIV infection rate at 3 percent of the population, has the highest rate in this country and also is suffering a generalized epidemic.

In contrast to such geographically defined epidemics, when we look at sub-populations we often find a “concentrated” epidemic—where less than 1 percent of the general population but more than 5 percent of any “high risk” group is HIV-positive. A concentrated epidemic is one confined mainly to individuals who engage in high-risk behaviors, such as men who have sex with men (MSM), people who inject drugs, prisoners, and sex workers. Most-at-risk, marginalized populations have little access to HIV prevention, treatment, and care services and may be subject to additional discrimination based on their HIV status. Many vulnerable people also are subject to human trafficking and the attendant lack of even basic health care.

Whether they reside in areas of generalized epidemic, or belong to populations making up a concentrated epidemic, international organizations long have recognized that all persons are entitled to basic human rights. Those rights include, among others, the right to health, mentioned above. They include also the right to privacy established in Article 17 of the International Covenant on Civil and Political Rights, the right to liberty and security of the person found in Article 9 of the International Covenant on Civil and Political Rights, and the right to education enunciated in Article 26 of the Universal Declaration of Human Rights.

Recognizing the growing pandemic, and its effects on global development and security, multilateral organizations have led the efforts to contain it. Thus, the United Nations General Assembly has adopted two major documents establishing significant goals in the global fight against HIV/AIDS. First, in 2000, members adopted the Millennium Development Goals (MDGs) that call for a halt to the spread of AIDS by 2015. In 2001, nations attending the United Nations General Assembly Special Session on HIV/AIDS adopted a blueprint for action in the Declaration of Commitment on HIV/AIDS (DoC). The DoC sets targets and goals based on human rights law and principles in four areas: prevention (of new infections); provision of improved care, support, and treatment for those infected with and affected by HIV/AIDS; reduction of vulnerability; and mitigation of the social and economic impact of HIV/AIDS.

Later, in 2003, the Joint United Nations Programme on HIV/AIDS and the World Health Organization established a goal of providing access to treatment to 3 million people in the developing world by 2005. When that goal went unmet (and in an effort to meet the MDGs by 2015) in 2005 at the Group of Eight Summit, and again at the United Nations General Assembly World Summit, there was a call to develop programs for HIV prevention, care, and treatment “with the aim of coming as close as possible to the goal of universal access to treatment by 2010 for all those who need it.” While progress has been made in reaching that goal of universal access, it, too, remains unmet.

Reaching those goals requires states to address human rights issues through legislative or judicial action, for some jurisdictions continue to enact and enforce laws and policies that interfere with the accessibility and effectiveness of HIV-related measures for prevention and care that have been shown to be effective. Increasingly around the world there is a move to criminalize consensual sex between adults, in particular MSM and sex workers. Many states and jurisdictions also have laws that prohibit access to clean needles for injection drug users and condom distribution for prisoners, or use residency requirements to determine access to care and treatment. Such laws fuel extant stigma and discrimination; discourage people from being tested for HIV; erect barriers to adequate HIV education; and contribute to the spread of disease.

States must, in addition to eliminating HIV-specific barriers to disease eradication, evaluate and address general laws and customs that contribute to the spread of the epidemic. Far too many persons living with HIV/AIDS are subject to discrimination because laws prohibiting it are nonexistent or not enforced. In too many jurisdictions, gender-based discrimination is left unaddressed while evidence increasingly shows a link between HIV and the denial of property and inheritance rights of women and girls.

Clearly, a confluence of human rights violations is shaping today’s HIV/AIDS crisis. Worldwide we see both generalized and concentrated epidemics sharing as a common thread the State’s failure adequately to insure the rights enumerated by various world bodies. In the following articles, we aim to highlight just some of the human rights to which those infected with HIV are entitled and to illuminate how their continuing denial fans the flames of this global catastrophe.

Shelley D. Hayes

Shelley D. Hayes is chair and a founding member of the ABA AIDS Coordinating Committee and a member of the Section of Individual Rights and Responsibilities Section Council. Hayes has substantial experience in HIV/AIDS-related legal issues, both as a committee member and in private practice. Formerly a health-care and employment trial lawyer, Hayes now provides consultative services to public and private entities on human resources and employment matters, including HIV/AIDS in the workplace.