Supporting the HIV Response in Eastern and Southern Africa: Human Rights Framework

1. Supporting the response to the HIV epidemic in Eastern and Southern Africa through the international human rights framework

2. Supporting the response to HIV through human rights AIM OF THE PRESENTATION • To inform change agents, potential change agents and those involved in the ‘business of law’ about: • relevant human rights documents, • the obligations that arise from them and • the steps required for their implementation • and to assist them in their response to HIV and AIDS.

3. Supporting the response to HIV through human rights OVERVIEW OF THE PRESENTATION Introduction Background to international human rights law International human rights standards at three levels (global, regional, sub-regional) Domestication of international human rights law in Eastern and Southern Africa Conclusion and recommendations

4. Part A: Introduction

5. THE HIV EPIDEMIC Introduction • Since 1981, HIV has rapidly become the most devastating epidemic of our time. • 2006 UNAIDS epidemic update: • approximately 39.5 million people living with HIV in 2006. • 2.9 million people died of AIDS-related illnesses worldwide. • Countries in Southern Africa continue to show exceptionally high levels of HIV incidence and prevalence.

6. HUMAN RIGHTS AND HIV Introduction • The HIV epidemic has been viewed as a strongly gendered health, development and human rights issue. • The HIV epidemic causes human rights violations and is also driven by human rights violations. • The promotion and protection of human rights must therefore be at the centre of all aspects of an effective response to the epidemic. • This is known as a human rights-based approach.

7. WHAT IS A HUMAN RIGHTS-BASED APPROACH? Introduction • It is one that focuses on empowering people (especially the most vulnerable and marginalised) with the knowledge and resources to understand and assert their rights. • Simultaneously, it focuses on capacity building of duty-holders (government) to be able to protect and promote human rights.

8. HUMAN RIGHTS UNDER THREAT Introduction • After 1996: ARVs and the resurgence of biomedicine. • Call for a return to “traditional public health” response: • Routine testing • Compulsory disclosure / shared confidentiality

9. HUMAN RIGHTS NOT FULLY EXPLORED Introduction • Failure to fully implement eg. VCT, access to treatment, education should not be equated to failure of human rights-based approach. • Despair leads to symbolic actions and HIL. • Coercion will have very limited success. • Individual autonomy is the basis of a human rights-based approach.

10. Part B: Background to International Human Rights Law

11. WHAT ARE HUMAN RIGHTS? Human rights • Human rights are universal - the birth right of all human beings. • Human rights focus on the inherent dignity and equal worth of all human beings. • All human rights are equal, indivisible and interdependent.

12. WHAT IS HUMAN RIGHTS LAW? Human rights • A set of performance standards for duty-bearers at all levels of society, but especially organs of the state. • It serves as a basis for accountability. • It grants justiciable legal guarantees to every individual as a rights-holder. • It is codified in international, regional and national legal systems.

13. JUSTICIABLE GUARANTEES Human rights • Are legal entitlements. • They may be invoked in a court of law. • If violated, a court may order a remedy such as compensation.

14. HUMAN RIGHTS VIOLATIONS Human rights • Undermine attempts to protect people from becoming HIV positive. • Example: Women, and particularly young women, are more vulnerable to infection if they lack access to information, education and services necessary to ensure sexual and reproductive health and prevention of infection. Human rights violations due to societal conditions such as violence against women, lack of education, harmful cultural practices and restrictions on property and inheritance exacerbate inequalities.

15. HUMAN RIGHTS VIOLATIONS Human rights • Prevent people living with HIV from receiving needed services. • Example: If the existence of men who have sex with men (MSM) or sex workers is denied or criminalised, awareness and education programmes may not reach them.

16. LAW: A TOOL FOR SOCIAL CHANGE (eg. South Africa) Human rights • Social engineering: Apartheid legislature was a tool in structuring society along racial lines. • Social (re)engineering: After Apartheid, laws became a tool to restructure society, hence Affirmative Action, Black Economic Empowerment, and other transformative laws based on values of equality and human dignity.

17. HUMAN RIGHTS OBLIGATIONS OF STATE Human rights • 4 categories of obligations: • Respecting a right means that a state must not violate a particular right. • Protecting a right means that a state has to prevent violations of that right by non-state actors. • Fulfilling a right means that a state has to take all appropriate measures, like allotting budgetary resources, to the realisation of that right. • Promoting a right means that a state must educate the public and raise awareness about that right.

18. INTERNATIONAL HUMAN RIGHTS LAW SERVES AS: Human rights • A beacon - pulling states towards accepting human rights. • A safety net - to supplement the national legal system. • A basis - to ‘mobilise shame’ of the international community.

19. INTERNATIONAL HUMAN RIGHTS Human rights In the context of HIV and AIDS, an application of international human rights frameworks transforms the needs of the individual into entitlements and ensures that governments are accountable for their actions.

20. INTERNATIONAL HUMAN RIGHTS NORM Human rights • Increasingly regarded as a defining element of a modern statehood. • States need to engage in various processes before they accept international human rights treaties, as the treaties create obligations and states must be ready for them.

21. THE LINK BETWEEN INTERNATIONAL AND NATIONAL LAW Human rights • HIV and AIDS are generally not mentioned by name, but many of the treaty provisions are of relevance. • Treaties should also be read with the ‘General Comments’, adopted by the various treaty bodies.

22. DOMESTICATION Human rights • The process that makes international commitments a reality in the national legal system of a country. • Benefits the people of that country. • Brings national law in line with the standards of international law.

23. DOMESTICATION OF A TREATY Human rights • Signature (state not bound to treaty provisions). • Ratification / Accession (state becomes bound). • Legislative conversion (‘enabling legislation’). • Implementation in practice.

24. OBLIGATIONS UNDER HUMAN RIGHTS TREATIES: Human rights • States should: • Domesticate treaties. • Give effect to treaty provisions. • Submit state reports to treaty bodies. • Involve civil society.

25. MECHANISMS OF MONITORING Human rights Fulfillment of commitments to treaties is monitored by independent expert committees called treaty bodies.

26. EXAMINATION OF STATE REPORTS Human rights • Independent external inspection by treaty body • Concluding observations which • Highlight positive and negative developments and • Make recommendations which the state should implement.

27. INDIVIDUAL COMMUNICATIONS Human rights • Generally optional: states must specifically accept this procedure before an individual can use it. • In some treaties such as the African Charter on Human and Peoples’ Rights, the individual communication mechanism applies automatically to all states parties.

28. Part C: International Human Rights Standards at Three Levels

29. THREE LEVELS OF INTERNATIONAL LAW Standards

30. GLOBAL LEVEL Standards: Global

31. UN TREATIES AND TREATY BODIES RELEVANT TO HIV AND AIDS Standards: Global • International Covenant on Civil and Political Rights (ICCPR) 1966/1976. • International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966/1976. • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979/1981. • Convention on the Rights of the Child (CRC) 1989/1990. • Website: www.ohchr.org

32. RELEVANCE OF UN HUMAN RIGHTS TREATIES TO HIV AND AIDS Standards: Global • HIV and AIDS are not mentioned by name, but many of the treaty provisions are of relevance. • Treaties should also be read with the ‘General Comments’, adopted by the various treaty bodies. Some General Comments deal with HIV-related issues.

33. ICCPR (examples of provisions relevant to HIV and AIDS) Standards: Global • Right to life (art 6). • Right to privacy (art 17). • Right to non-discrimination and equality before the law (arts 2 & 14). • Right to liberty and security of the person (art 9). • Right to free movement (art 12). • Right to freedom of expression (art 19). • Right to be free from torture and cruel treatment (art 7).

34. ICESCR (examples of provisions relevant to HIV and AIDS) Standards: Global • Right to equality and non-discrimination (art 2). • Right to work (art 6). • Right to social security (art 9). • Right to adequate standard of living, including food, clothing and housing (art 11). • Right to highest attainable standard of health (art 12). • Right to enjoy the benefits of scientific progress (art 15(1)(b)). • Right to education (art 13).

35. CEDAW (examples of provisions relevant to HIV and AIDS) Standards: Global • Right to equality and non-discrimination based on sex (arts 2 & 3). • States must modify and abolish laws, customs and practices that discriminate against women (art 2(f)). • Protection of women against trafficking and sexual exploitation (art 6). • Right to appropriate health care services including during pregnancy and postnatal period (art 12). • Non-discrimination in matters of marriage (art 16).

36. CRC (examples of provisions relevant to HIV and AIDS) Standards: Global • Right to equality and non-discrimination (art 2). • Protection against abuse, neglect and sexual exploitation (art 19). • Right to state assistance and protection for children deprived of family environment (art 20). • Right to the highest attainable standard of health (art 24) • Right to benefit from social security (art 26). • Right to education (art 28).

37. EXAMPLE OF GENERAL COMMENTS Standards: Global • General Comments are issued by treaty bodies to elaborate upon treaty provisions. • Example: General Comment 3 on the Convention on the Rights of the Child: HIV/AIDS and the Rights of the Child • Respect - no mandatory HIV testing. • Protect - no exploitation of trial participants by pharmaceutical companies in HIV trials. • Fulfill - make resources available to prevent HIV transmission from mother to child.

38. EXAMPLES OF CONCLUDING OBSERVATIONS Standards: Global Example 1: Concluding Observations of the Committee on Economic, Social and Cultural Rights - Zambia (UN Doc E/C.12/1/Add.106)

39. EXAMPLES OF CONCLUDING OBSERVATIONS Standards: Global “The Committee is deeply concerned that the extent of extreme poverty in the state party has negatively affected the enjoyment of economic, social and cultural rights as enshrined in the Covenant, especially by the most disadvantaged and marginalised groups, including girl-children and those affected by HIV/AIDS...” “...the Committee is deeply concerned about the high incidence of child-headed households, a phenomenon that is linked to the HIV/AIDS pandemic, and which negatively impacts on children’s access to education...”

40. EXAMPLES OF CONCLUDING OBSERVATIONS Standards: Global “The Committee recommends that the state party intensify its efforts to control the spread of HIV/AIDS, including by strengthening the policy of both providing and encouraging the use of condoms. The Committee also recommends that the state party continue with its prevention and care efforts in the field of health by providing sexual and reproductive health services, particularly to women and young people.”

41. EXAMPLES OF CONCLUDING OBSERVATIONS Standards: Global Example 2: Committee on the Rights of the Child – Concluding Observations: second periodic report of the Republic of Mauritius, 2006

42. EXAMPLES OF CONCLUDING OBSERVATIONS Standards: Global “The Committee recommends that the state party integrate respect for the rights of the child into the development and implementation of its HIV/AIDS policies and strategies, taking into account its general comment No. 3 (2003) on HIV/AIDS and the rights of the child.”

43. INTERNATIONAL GUIDELINES ON HIV/AIDS AND HUMAN RIGHTS (not strictly legally binding, but persuasive) Standards: Global Guideline 1: States should adopt multi-sectoral approaches to establish an effective national framework for the response to the HIV epidemic. Guideline 2: States should enable community organisations to carry out activities in the field of ethics, human rights and law. States should also consult widely with such organisations in drafting all HIV policies.

44. INTERNATIONAL GUIDELINES ON HIV/AIDS AND HUMAN RIGHTS (not strictly legally binding, but persuasive) Standards: Global Guideline 5: States should enact or strengthen anti-discrimination laws to protect vulnerable groups. States should also ensure privacy, confidentiality and ethical behaviour in research involving human subjects.

45. INTERNATIONAL GUIDELINES ON HIV/AIDS AND HUMAN RIGHTS (not strictly legally binding, but persuasive) Standards: Global Guideline 6 (revised): States should enact legislation to provide for the regulation of HIV-related goods, services and information in order to ensure widespread availability of quality prevention measures and services, adequate HIV prevention and care information, and safe and effective medication at an affordable price. States should ensure that all persons have access to quality goods on a sustained and equal basis.

46. INTERNATIONAL GUIDELINES ON HIV/AIDS AND HUMAN RIGHTS (not strictly legally binding, but persuasive) Standards: Global Guideline 7: States should implement legal support services to educate people who are affected by the HIV epidemic about their rights. States should also develop expertise on HIV-related legal issues and use means other than courts, such as human rights commissions, to protect the rights of people who are affected by the epidemic. Guideline 9: States should promote the distribution of creative education, training and media programmes that are designed to change discriminatory attitudes associated with HIV and AIDS to reflect greater understanding and acceptance.

47. INTERNATIONAL GUIDELINES ON HIV/AIDS AND HUMAN RIGHTS (not strictly legally binding, but persuasive) Standards: Global Guideline 10: States should translate human rights principles into codes of conduct, which should be accompanied by mechanisms to implement and enforce these codes. Guideline 11: States should ensure monitoring and enforcement mechanisms to guarantee and protect HIV-related human rights.

48. UN MILLENNIUM DEVELOPMENT GOALS Standards: Global Goal 6: States must halt and begin to reverse the spread of HIV by 2015.

49. UN DECLARATION OF COMMITMENT ON HIV/AIDS Standards: Global Contains a checklist with questions concerning national compliance with the MDGs. For instance, countries have to adopt “laws and regulations that protect against discrimination of people living with HIV”, and “laws and regulations that protect against discrimination of people identified as being especially vulnerable to HIV/AIDS”.

50. INTERNATIONAL LABOUR ORGANISATION (ILO) Standards: Global The ILO, a specialised agency of the UN seeks to promote decent conditions of work and internationally recognised human and labour rights. All the states included in Eastern and Southern Africa are members of the ILO.