VII. INTERNATIONAL LAW

Actions taken by the police and other officials against HIV/AIDS outreach workers and their organizations raise important concerns under international human rights law. Indian law and practice discriminate against outreach workers and their organizations because of gender and sexual orientation and limit their ability to exchange information and ideas. Article 2 of the International Covenant on Civil and Political Rights (ICCPR), to which India is a party, protects all persons from discrimination on the basis of "race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" for the rights recognized in the Covenant.¹⁷⁵ This article has been widely interpreted by the U.N. Commission on Human Rights and other U.N. bodies to include both sexual orientation and HIV status as factors on the basis of which discrimination is prohibited.¹⁷⁶ Article 26 of the ICCPR guarantees equal protection of the law and non-discrimination before the law on the same grounds as those noted in article 2. ICCPR Article 19 guarantees the right to freedom of expression, including "freedom to seek, receive and impart information and ideas of all kinds."¹⁷⁷

Outreach workers are frequently subject to unlawful arrest and detention and mistreatment, including torture, in violation of international law. Article 9 of the ICCPR guarantees the right to "liberty and security of person" and to be free from "arbitrary arrest or detention". The article further specifies that anyone arrested or detained on a criminal charge has a right to be brought promptly before a judge within a reasonable time.¹⁷⁸ The ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which convention India is a signatory but not a party, both prohibit torture and cruel, inhuman or degrading treatment or punishment, without exception or derogation.¹⁷⁹

Although they do not have the force of international law, the United Nations Guidelines on HIV/AIDS and Human Rights are frequently used as a guide to policy and law related to HIV/AIDS. Provisions that are most relevant to the abuses documented in this report include the following:

Criminal law prohibiting sexual acts (including adultery, sodomy, fornication and commercial sexual encounters) between consenting adults in private should be reviewed, with the aim of repeal. In any event, they should not be allowed to impede provision of HIV/AIDS prevention and care services. . . . With regard to adult sex work that involves no victimization, criminal law should be reviewed with the aim of decriminalizing, then legally regulating occupational health and safety conditions to protect sex workers and their clients, including support for safe sex during sex work. Criminal law should not impede provision of HIV/AIDS prevention and care services to sex workers and their clients.¹⁸⁰

Guideline 5 on anti-discrimination concerns related to HIV/AIDS has the following provisions:

Anti-discrimination and protective laws should be enacted to reduce human rights violations against men having sex with men, including in the context of HIV/AIDS, in order, inter alia, to reduce the vulnerability of men who have sex with men to infection by HIV and to the impact of HIV/AIDS. . . .Laws and regulations that provide for restrictions on the movement of association of members of vulnerable groups [including sex workers and MSM] should be removed in both law (decriminalized) and law enforcement.¹⁸¹

175 International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, article 2(1). India ratified the ICCPR in 1979.

176 See Commission on Human Rights, "The Protection of Human Rights in the Context of Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS)" (Resolution 1995/44, adopted without a vote, March 3, 1995). The United Nations Human Rights Committee, the body charged with monitoring compliance with the ICCPR, determined in a 1994 case, Toonen v. Australia, that a law in Australia banning sexual contact between consenting adult men was a violation of Australia's obligations as a party to the ICCPR. This decision concluded that the discrimination provision of the ICCPR should be understood to prohibit discrimination on the basis of sexual orientation. See Toonen vs. Australia, U.N. Human Rights Committee, CCPR/C/50/D/488/1992, April 4, 1994.

177 ICCPR, article 19(2).

178 ICCPR, article 9(3).

179 ICCPR, article 7, and Convention against Torture and Other Cruel, Inhuman or Degrading Traetment or Punishment, article 1 [etc.]

180 Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, "HIV/AIDS and Human Rights-International Guidelines (from the second international consultation on HIV/AIDS and human rights, 23-25 September 1996, Geneva), U.N. Doc. HR/PUB/98/1, Geneva, 1998, paragraph 29(b-c).

181 Ibid., paragraph 30(h-i).