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VIII. HIV/AIDS, Injection Drug Use, and the Human Right to Health

The Ukrainian Constitution provides that international treaties that are in force are part of the national legislation of Ukraine.249  Ukraine is a party to international and regional treaties requiring it to protect the human right to health without fear of punishment and discrimination.  These treaties include the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social, and Cultural Rights; the Convention on the Elimination of all forms of Discrimination against Women; and the European Convention for the Protection of Human Rights and Fundamental Freedoms.  As a party to these treaties, Ukraine has committed itself to take positive measures to ensure equal access to HIV/AIDS-related information and prevention services for all people living with and at risk of the disease. 

The Right to Obtain Health Services without Fear of Punishment

International law recognizes the human right to obtain lifesaving health services without fear of punishment or discrimination.  The International Covenant on Economic, Social and Cultural Rights (ICESCR) guarantees the right to the highest attainable standard of health without discrimination on certain prohibited grounds (including physical or mental disability and HIV status).250  Article 12(c) of the ICESCR specifically obliges states to take all steps necessary for “the prevention, treatment and control of epidemic . . . diseases,” which include “the establishment of prevention and education programmes for behaviour-related health concerns such as sexually-transmitted diseases, in particular HIV/AIDS.”251  Realization of the highest attainable standard of health requires that the state ensure equality of access to a system of health care and provide health information and services without discrimination, and protect confidential information.252  It also, according to the U.N. Committee on Economic, Social and Cultural Rights, requires states to take affirmative steps to promote health and to refrain from conduct that limits people’s abilities to safeguard their health.253  Laws and policies that “are likely to result in . . . unnecessary morbidity and preventable mortality” constitute specific breaches of the obligation to respect the right to health.254

Programs such as syringe exchange and opiate substitution therapy are among the most well-researched HIV prevention strategies in the world.  Studies consistently show that access to sterile syringes dramatically reduces HIV transmission without increasing rates of drug use or drug-related crime.255  The World Health Organization states that “[needle exchange programs’] ability to break the chain of transmission of HIV is well established.”256  In reality, the scarcity of treatment programs and the very nature of drug use guarantee that there will always be people who either cannot or will not stop using drugs.  Impeding this population from obtaining or using sterile syringes amounts to prescribing death as a punishment for illicit drug use.  Research supporting the establishment of substitution therapy programs, particularly with methadone, is equally compelling.257 

In the face of this scientific consensus, and in the absence of equally effective alternatives, state-imposed barriers to harm reduction programs for injection drug users constitute interference with the human right to health.  To the extent that drug users suffer from addiction-related disabilities, restricting these programs may also constitute a form of discrimination in access to health care.258

The Right to Nondiscrimination in Access to Health Care and Health Services

The U.N. Commission on Human Rights, the main body within the U.N. system charged with human rights matters, interprets article 26 of the International Covenant on Civil and Political Rights (ICCPR), which “prohibit[s] any discrimination and guarantee[s] to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,” as prohibiting discrimination based on HIV/AIDS.259 

According to the Committee on Economic, Social and Cultural Rights, states have a “special obligation . . . to prevent discrimination in the provision of health care and health services, especially with respect to core obligations of the right to health.”260  These core obligations include ensuring nondiscriminatory access to health facilities, especially for vulnerable or marginalized groups; providing essential drugs; ensuring equitable distribution of all health facilities, goods and services; adopting and implementing a national public health strategy and plan of action with clear benchmarks and deadlines; ensuring reproductive, maternal and child care; taking measures to prevent, treat and control epidemic and endemic diseases; and providing education and access to information for important health problems.261  To justify the failure to meet at least minimum core obligations as based on a lack of available resources, a state party “must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.”262

The Committee on Economic, Social and Cultural Rights has stated that “information accessibility” is an essential element of the human right to health, noting that “education and access to information concerning the main health problems in the community, including methods of preventing and controlling them” are of “comparable priority” to the core obligations of the ICESCR.263  Article 19 of the ICCPR, which guarantees the “freedom to seek, receive and impart information of all kinds,”264 encapsulates access to complete and accurate information about HIV/AIDS.265  Parties to the ICCPR are obliged not only to refrain from censoring information, but to take active measures to give effect to this right.266 

Access to HIV prevention services saves lives.  Access to health care prevents people living with HIV/AIDS from unnecessary suffering and early death.  The right to life is recognized by all major human rights treaties and, as interpreted by the U.N. Human Rights Committee, requires governments to take “positive measures” to increase life expectancy.267  These should include taking adequate steps to provide accessible information and services for HIV prevention, and ensuring access to medical treatment for people living with HIV/AIDS.




[249] Constitution of Ukraine, article 9.

[250] ICESCR, art. 12(2)(c); Committee on Economic, Social and Cultural Rights, General Comment 14, para. 18.

[251] Committee on Economic, Social and Cultural Rights, General Comment 14, para. 16.

[252] ICESCR article 2(2); Committee on Economic, Social and Cultural Rights, General Comment No. 14,  paras. 12, 16, 18, 19, and note 8 (citing the right to information under article 19(2) of the ICCPR). See also Human Rights Watch, “Ignorance Only: HIV/AIDS, Human Rights and Federally Funded Abstinence-Only Programs in the United States.  Texas: A Case Study,” A Human Rights Watch Report,  vol. 15, no. 5(g), September 2002, pp. 41-42.

[253] Committee on Economic, Social and Cultural Rights, General Comment No. 14,, paras. 30-37.

[254] Ibid., para. 50.

[255] See, e.g., evidence cited in Human Rights Watch, “Injecting Reason,” pp. 12-17.

[256] World Health Organization, “Harm Reduction Approaches to Injecting Drug Use,” [online] http://www.who.int/hiv/topics/harm/reduction/en/ (retrieved November 27, 2005); see also WHO, “Policy Brief: Provision of Sterile Injecting Equipment to Reduce HIV Transmission,” 2004.

[257] WHO, “Policy Brief: Reduction of HIV Transmission through Drug Dependence Treatment to Reduce HIV Transmission,” 2004.

[258] International law prohibits discrimination on the basis of disability.  See, e.g., Committee on Economic, Social and Cultural Rights, General Comment No. 5: Persons with Disabilities, para. 5.

[259] ICCPR, article 26; 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.

[260] Committee on Economic, Social and Cultural Rights, General Comment 14, para. 19.

[261] Ibid. paras. 43 and 44; see also ibid., para. 12.

[262] Committee on Economic, Social and Cultural Rights, General Comment 3: The Nature of States Parties Obligations (Art. 2)(1), UN Doc. E/1991/23., para. 10. 

[263] Committee on Economic, Social and Cultural Rights, General Comment 14: The right to the highest attainable standard of health, para. 44(d).

[264] ICCPR, article 19(2). The European Convention on Human Rights also protects the right to information. ECHR, art. 10.

[265]  See Committee on Economic, Social and Cultural Rights, General Comment 14, paras. 12(b), 16, 36, and n. 8.

[266] See ICCPR, article 2(2), providing that “each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.” State responsibility to give effect to the right to information is further elaborated in S. Coliver, ed., The Right to Know: Human Rights and access to reproductive health information (Article 19 and University of Pennsylvania Press, 1995), pp. 45-47.

[267] Human Rights Committee, General Comment 6: The Right to Life  (16th Sess., 1982), para. 5.


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