March 9, 2011

VI. Human Rights Obligations

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, medical care, and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control.[246]

These principles from the Universal Declaration of Human Rights establish that medical care, necessary social services, and housing are integral components of human dignity, and are part of the claims all people have to their right to an adequate standard of living. Housing has been recognized as key to the realization of the right to health for all people,[247] and protection of this right is particularly urgent for people living with HIV, a fact acknowledged by both the US government and the State of Mississippi.[248] Medical care should be accessible, available, and of adequate quality,[249] a goal that remains out of reach for more than half of the people living with HIV in Mississippi.

Moreover, the United States is obligated to address the racial disparities that characterize the domestic HIV epidemic, a duty that is fundamental to international and domestic human rights law, including the International Convention on the Elimination of all forms of Racial Discrimination (ICERD) to which the United States is a party.[250] ICERD requires states parties, when the circumstances so warrant, to take “special and concrete measures” to ensure the development and protection of racial groups “for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.[251] Moreover, under Article 5(e)(iv) of ICERD, the US is to eliminate racial discrimination and guarantee to everyone, without distinction, the right to public health.[252] The treaty requires state parties to address not only intentional racial discrimination but laws, policies, and practices that result in disparate racial impact.[253]

In February 2008 the United States presented its periodic report to the Committee for the Elimination of Racial Discrimination as required under the treaty. Human Rights Watch and other NGOs submitted reports to the Committee highlighting the health disparities based on race that have worsened in the US over the last decade.[254] Human Rights Watch specifically addressed the failure of the US government to adequately address HIV/ AIDS, stating:

As HIV/AIDS rages through African-American communities, the response of the US government ranges from neglect to undermining potential solutions. There is no national HIV/AIDS plan and no comprehensive plan to address the epidemic in minority communities. Medicaid, which offers health insurance to low-income persons, denies eligibility until applicants are disabled from full-blown AIDS. The Ryan White CARE Act and the AIDS Drug Assistance Program (ADAP), designed to be "safety nets" for HIV/AIDS patients denied Medicaid eligibility, are chronically under-funded. This gap leaves many without access to medical care or life-saving medications. One in five new HIV infections among African-Americans is a result of injection drug use, yet the US government prohibits the use of federal funds for proven harm reduction programs such as needle exchanges.[255]

In response to information provided by civil society as well as by the United States, the committee issued concluding observations that expressed concern about persistent racial disparities in health outcomes, access to health care, and access to health insurance in the US.[256] Moreover, the committee noted its continuing concern that the US lacks sufficient mechanisms to ensure and coordinate implementation of the treaty at the state and local levels.[257] Mississippi has proven to be a case in point as the state’s failure to adequately address HIV has placed an unacceptably high burden on the state’s African-American population. Federal leadership is needed to ensure that state policies that conflict with evidence-based national and international standards for managing HIV are replaced with those that are compatible with human rights.

The Committee on Economic, Social and Cultural Rights has interpreted article 12 of the International Covenant on Economic, Social and Cultural Rights, to which the United States is not yet party, to obligate states to take steps necessary for the “prevention, treatment and control of epidemic, occupational and other diseases,” including the “establishment of prevention and education programmes for behavior-related health concerns such as sexually transmitted diseases, in particular HIV/AIDS, and those adversely affecting reproductive health.”[258] Mississippi’s state-wide abstinence campaign ignores the evidence that such approaches have little effect on reducing HIV or STD transmission. Suppression of information about condom use and effectiveness impedes the right of students to accurate and relevant health information that is an essential component of the right to health.[259]

Given the severe impact of sexually transmitted diseases, including HIV, on African-American youth, Mississippi’s continued refusal to endorse methods proven to reduce disease transmission conflicts with obligations to address racially-based disparities in health. Promoting abstinence-only messages to African-American women while failing to address HIV/AIDS and other sexually transmitted infections is problematic in a population heavily impacted by these infections.[260]

The sex education curricula in Mississippi that renders the sexuality of LGBT youth invisible and mandates negative messages about “homosexual activities,” interferes with the right to health of LGBT youth, and creates school environments that are discriminatory and may be unsafe. Combined with other laws and policies that discriminate against homosexuals, Mississippi is responsible for state-sponsored homophobia that, according to state public health officials, endangers the health and lives of men who have sex with men by keeping them away from testing and treatment services. These policies conflict with fundamental principles of human rights including the right to health and the right to be free from discrimination on the basis of sexual orientation.[261]

Laws that single out HIV exposure for criminal penalties are unnecessary, discriminatory, and are considered by public health authorities as likely to undermine, rather than promote, the public health. To their credit, Mississippi public health officials have promised to revise practices that convey the impression that the law prohibits people with HIV from causing pregnancy or becoming pregnant. Development of a Patient’s Bill of Rights and improved training for state employees would improve protection against breach of confidentiality laws for people living with HIV.

[246]Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, 3rd Sess., pt. 1, art. 25(1), U.N. Doc A/810 (1948).

[247] International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 UN GAOR (no. 16) at 49, UN Doc. A/6316 (1966), 99 UNTS 3, entered into force January 3, 1976, signed by the US on October 5, 1977; Committee on Economic, Social and Cultural Rights, General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4, adopted August 11, 2000, para. 11.

[248] National AIDS Strategy, p.28; Mississippi Development Authority, “2010-2015 Mississippi Consolidated Plan for Housing and Community Development”, May 2010, p. 10.

[249] Committee on Economic, Social and Cultural Rights, General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4, adopted August 11, 2000, para.12.

[250]International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106 (XX), annex, 20 UN GAOR Supp. (No. 14) at 47, UN Doc A/6014 (1966), 660 U.N.T.S. 195, entered into force January 4, 1969, ratified by the United States on November 20, 1994, article 5.

[251] ICERD,Article 2.2.

[252] ICERD, Article 5( e)( 4).

[253] ICERD, Article 1.1.

[254] Human Rights Watch, Submission to the Committee on the Elimination of Racial Discrimination, During its Consideration of the Fourth, Fifth, and Sixth Periodic Reports of the United States of America, CERD 72nd Session, vol. 20, no. 2(G), February 2008, http://hrw.org/reports/2008/us0208/.

[255] Human Rights Watch, Submission to the Committee on the Elimination of Racial Discrimination, p. 40.

[256] Committee on the Elimination of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination, Geneva, May 8, 2008, UN Doc. CERD/C/USA/CO/6, paras. 16, 32.

[257] Committee on the Elimination of Racial Discrimination, Concluding Observations, para. 13.

[258]International Covenant on Economic, Social and Cultural Rights (ICESCR), , article 12; General Comment No. 14, The Right to the Highest Attainable Standard of Health, Committee on Economic, Social and Cultural Rights, 22nd sess. 2000, para. 16.

[259] ICESCR, para. 11. Committee on Economic, Social and Cultural Rights, General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4, adopted August 11, 2000, para.11.

[260] CERD 2(c); ICESCR, articles 2(2) and 3 (racial and gender equality under the law) and article 12 (right to health).

[261] ICCPR, article 26 (right to equal protection under the law); Yogyakarta Principles, Principle 16; UNAIDS, International Guidelines on HIV/AIDS and Human Rights (2006).