<<previous  |  index  |  next>>

U.N. High Level Meeting Political Declaration on HIV/AIDS

Since the late 1980s U.N. agencies have linked human rights and HIV, at least rhetorically.¹⁴  In 2001, the United Nations General Assembly Special Session produced a Declaration of Commitment on HIV/AIDS in which states agreed, among other things, to improve legislation to protect human rights by 2003.¹⁵  This special session was a vitally important opportunity for governments to declare the need for a global, integrated response to HIV/AIDS in which human rights protections would form a centerpiece of fighting the pandemic.  However, in 2003, when states reported to the 58^th Session of the General Assembly, their reports showed, in the words of one commentator, “few concrete national achievements” and “little progress.”¹⁶  Three years later, the 2006 Political Declaration acknowledged the continued failures of countries to meet the 2001 goals.¹⁷ 

The 2006 High Level Meeting offered the opportunity to respond to these failures and to put forth a broader vision linking human rights to HIV and setting ambitious goals to halt and reverse the pandemic. Unfortunately, the Political Declaration touches on but does not wholly embrace human rights.  Some country participants, including Brazil, proposed strong human rights language, but opposition from others, including the United States and the African Group, claimed that human rights issues would be outside the document’s scope.¹⁸  The Political Declaration reflects a compromise between these positions.  And compromise, rather than accomplishment, has been the hallmark of the global response to AIDS, and the reason for such limited success to date.

Women’s rights and HIV/AIDS

The 2006 UNAIDS Annual Report noted that HIV and AIDS “disproportionate[lly]” impact women, most notably in sub-Sarahan Africa.¹⁹  For example, women in sub-Sarahan Africa aged 15 to 24 are between twice and six times more likely to have HIV infection than men of the same age range.²⁰  There is convincing evidence that constraints on women’s human rights further the spread of HIV.  For example, in Zambia, as in much of Africa, women and girls find themselves pushed into risky sexual relationships through economic dependence, violence, legally inscribed discrimination in access to property and inheritance, and lack of police protection that sustain their subordination and constrain their life choices.  Stigmatization of “promiscuous women” and norms of sexual behavior can undermine women’s sexual rights, including their rights to choose or refuse sex or negotiate condom use.  All these factors lead to the spread of HIV.²¹   

The Political Declaration correctly recognizes the link between women’s human rights and HIV, though it does not do so comprehensively.  The Political Declaration addresses gender equality, economic independence, women’s empowerment, sexual and reproductive rights, and gender-based abuse and violence, including sexual violence.  Paragraph 15 recognizes that human rights protections and “gender equality and empowerment of women” are necessary for a comprehensive response to HIV.  Paragraphs 21, 27, and 34 all refer to sexual and reproductive health, including the need to integrate reproductive health services with HIV/AIDS care.  Paragraph 29 commits to the protection of human rights and freedom from discrimination for all.²² 

Paragraph 30 and 31 draw together these themes as they focus on rights.  Paragraph 30 pledges countries to protect the right of women “to have control over and decide freely and responsibly on matters related to their sexuality to increase their ability to protect themselves from HIV infection.”  It also enumerates concerns about coercion, violence, and the “empowerment … [and] economic independence” of women.  Paragraph 31 commits countries to “strengthening legal, policy, administrative and other measures for the promotion of women’s full enjoyment of all human rights.”  It commits countries to eliminating “all forms of discrimination.”  The paragraph then enumerates prohibited practices, such as sexual exploitation and violence against women.²³

These paragraphs could have been more concrete, defining “gender inequality” and “women’s empowerment” and setting measurable goals.  Nevertheless, the Declaration compels countries to address these issues, and civil society advocates can draw out the substantive content of the Declaration’s commitments into specific actions and targets. For example, the to fulfill the commitments expressed in the Declaration states must ensure adequate criminal justice responses to domestic violence and marital rape, the establishment and enforcement of anti-discrimination laws relating to employment and education, equal access to health services, and equitable property and inheritance laws.  Women’s empowerment in the context of HIV requires increased funding for programs targeting women, as well as national HIV/AIDS programs that involve grassroots women’s organizations.  Adequate public health policies are required; the Declaration’s references to sexual and reproductive health recognize that national healthcare must provide sexual and reproductive services along with HIV/AIDS services.  Finally, gender equality and women’s empowerment requires the abandonment of norms and traditional practices that undermine women’s sexual rights.  By declaring in general terms the links between women’s human rights and the fight against HIV/AIDS, states have also declared their commitment to taking the aforementioned concrete steps to protecting women’s human rights. 

Children and Youth’s Rights and HIV/AIDS

Children and youth, like women, are especially susceptible to HIV and human rights abuses.  One in every six AIDS death is that of a child. .²⁴  AIDS has robbed many children of parents, families, and homes.  In sub-Sarahan Africa, AIDS has orphaned at least 12.3 million children – and the number is increasing.²⁵  This does not include children living with a sick parent or who live in households with a person with HIV.  Children orphaned by HIV are less likely to attend schools, making them more vulnerable to the human rights abuses that spread HIV.²⁶  In India, for example, schools, health care providers, and orphanages have refused to engage with children affected by HIV, thus denying them their rights to education, health, and housing.²⁷ Children affected by HIV are often forced into exploitative situations, such as hazardous labor, survival sex, begging, and even human trafficking.  In the Democratic Republic of Congo, children are forced into dangerous and degrading lives on the streets, often involving forced labor, where they are more vulnerable to contracting HIV.²⁸ 

Some of the paragraphs in the Political Declaration discussing women also refer to children.  Paragraph 30 calls for increasing the ability of “adolescent girls to protect themselves from [HIV] infection.” Paragraph 31 commits countries to combating sexual exploitation and violence against children.  Finally, paragraph 15, discussed below in the section on “vulnerable groups,” refers to protecting “the rights of the girl child in order to reduce the vulnerability of the girl child to HIV/AIDS.”²⁹

Paragraph 26 discusses children exclusively, committing countries to “addressing” the spread of HIV amongst young people through education, mass media, and health services.  This paragraph’s focus on “comprehensive, evidence-based prevention strategies” and its explicit reference to “use of condoms” rather then a reliance on “abstinence-only” approaches to prevention for youth, are strengths.³⁰  In addition, the reference to “youth friendly health services” represents a positive recognition of the specific needs of children. 

In regard to children, civil society advocacy based on the Political Declaration faces a slightly different challenge than it does regarding women.  Paragraphs discussing children do not always link human rights to the fight against HIV as tightly as the paragraphs focusing on women.  Paragraph 26 is a good example.  It couches its commitments in the goal of an “HIV-free future generation” rather than human rights.  In order to bring about an “HIV-free future generation,” however, governments must protect children’s human rights.  Civil society advocates can focus attention on this priority.

For example, the education goals of paragraph 26 relate to the human right to health, education and to information.  By calling upon governments to employ pediatric formulations of antiretroviral drugs, civil society advocates can foster protection of the right to health, and work towards an HIV-free generation.  To bolster the public health argument for providing accurate HIV/AIDS information to children, civil society advocates can look to the protections afforded by the rights to education and information. 

Paragraph 32 also addresses children’s unique “vulnerabilities”.  It commits countries to “addressing as a priority” these vulnerabilities through “support” for children, “particularly in their role as caregivers,” as well as development of “child-oriented … policies and programmes.”  Crucially, it highlights the need for “increased protection” for orphans.  It also enjoins countries to “develop new treatments for children” and “support    the social security systems that protect them.”³¹ 

This call for protection of children in light of their unique vulnerability is a strength that civil society can capitalize on by making clear the human rights protections it implies.  Paragraph 32 raises many of the central human rights issues, though its terms are general.  In particular, protecting children against their unique “vulnerabilities” involves protecting their rights to education, welfare, and property.  Children also have a right to adequate care, an especially important point for orphans and children lacking parental protection.³²  Any social security system designed to protect children must take into account these rights.  The countries at the High Level Meeting declared their commitment to such systems, and by focusing on the rights aspects involved, civil society advocates can help countries translate general terms into concrete protections.

Socially Marginalized Individuals

Women and children are especially vulnerable groups.  Other “vulnerable” or “key” populations particularly susceptible to HIV infection are sex workers, men who have sex with men, injecting drug users, migrants and prisoners.  In China, for example, approximately 20% of those infected with HIV are sex workers and their clients.³³   It is estimated that 73% of Ethiopian sex workers, 68% of Zambian sex workers, and 50% of Ghanian and South African sex workers have HIV.³⁴ 

Amongst men who have sex with men, fewer than one in twenty have access to necessary information about HIV.  Human rights abuses, such as the criminalization of sex between men, discrimination, and stigma bar access to relevant HIV information and prevention because men fear being identified as “homosexuals.”³⁵  This is particularly troubling because HIV continues to spread amongst members of this group.  In Colombia, 20% of men who have sex with men have HIV.  Similar figures hold for other areas, including Bangkok and Mumbai.³⁶ 

Injecting drug users and prisoners also suffer widespread human rights abuses.  Nearly one-third of new HIV infections outside sub-Sarahan Africa arise amongst injecting drug users.  In parts of Eastern Europe and central Asia, more than 80% of HIV cases are injecting drug users.  Yet research has long shown that realistic prevention strategies – such as needle-exchange programs – can prevent or reverse the spread of HIV amongst injecting drug users.³⁷  Amongst low and middle-income countries, a mere 36,000 injecting drug users were on antiretroviral therapy (ART) at the end of 2004, and 30,000 of those were in Brazil.³⁸   

Prisoners are at greater risk than the general populace of HIV infection in many countries, including South Africa, where approximately 41% of prisoners have HIV.  In Russia, prisoners are four times more likely to have HIV than non-prisoners.  In the United States, female prisoners are 15 times more likely to have HIV than female non-prisoners. Twenty percent of all HIV positive individuals in the U.S. are estimated to pass through a jail or prison each year.³⁹  To be sure, there are multiple causal factors for these rates, but it is clear that human rights abuses within prisons increase exposure to HIV.⁴⁰  The presence of high levels of tuberculosis, including multi-drug resistant varieties, in prisons only exacerbates the vulnerability of this vulnerable population.⁴¹

The Political Declaration does mention “vulnerable groups” in paragraphs 14, 16, 20, and 29, an improvement given some delegates’ initial reticence to use the phrase.  However, paragraphs 11 and 15, which should have mentioned these groups, do not.   

The phrase “vulnerable groups” prominently appears in Paragraph 29, which commits countries to “intensify [legislative, regulatory, and other] efforts … to ensure the full enjoyment of all human rights and fundamental freedoms by people living with HIV and members of vulnerable groups.” The paragraph then enumerates concerns for access to education, health care, and other services and protections, seemingly as a partial list of relevant rights and freedoms.  It enjoins countries to “develop strategies to combat stigma and social exclusion connected with the epidemic.”  Finally, paragraph 29 does enumerates some rights, including education and health care, and mentions “protecting privacy and confidentiality”⁴², a key to protecting vulnerable groups. 

The Political Declaration does not define “vulnerable groups,” reflecting a political compromise reached at the Meeting.⁴³  Nevertheless, the term has a well-known history, as reflected in the debate at the Meeting and various U.N. documents, such as the 2006 UNAIDS Annual Report discussed above.  Nothing in the Declaration suggests that readers should understand “vulnerable groups” to have an unusual meaning.  Therefore, civil society advocates should stress the standard definition of the term and call on governments to protect human rights and fundamental freedoms for sex workers, men who have sex with men, injecting drug users, and prisoners.  The Political Declaration also commits countries to combating stigmatization and exclusion of these groups.

Civil society advocates should focus the general language of Paragraph 29 by emphasizing scientific evidence that shows that stopping HIV’s spread amongst vulnerable groups requires realistic treatment and prevention.  For example, stopping the spread of HIV in prisons involves bleach availability, clean needle exchange, and free condom and lubricant distribution.  Substitution therapy and needle exchange also helps stop the spread of HIV amongst injecting drug users.  Advocating for these scientifically-proven programs breathes measurable standards into Paragraph 29’s general language. 

Paragraphs 11 and 15 discuss essential elements of a comprehensive response to HIV.  While both paragraphs share the strength of connecting human rights protections with fighting HIV, neither mentions “vulnerable groups,” perhaps the most important and the most often missing part of a “comprehensive” response.⁴⁴  Nevertheless, civil society can emphasize this omission by focusing attention to the many paragraphs that do refer to vulnerable groups.  Crucial in this regard are paragraphs 14, 16, and 20, which call upon governments to partner with vulnerable groups to, in the words of paragraph 14, “reverse the global pandemic.”⁴⁵  Such a partnership offers civil society the opportunity to focus attention on the human rights of vulnerable groups in order to create a truly comprehensive response.

Treatment

Worldwide, only 20% of people who need antiretroviral treatment receive it.⁴⁶  However, one core obligation under the ICESCR is that states have to “provide essential drugs” as the WHO defines them,⁴⁷ which includes antiretroviral medicines for HIV.⁴⁸  Further, the U.N. Commission on Human Rights has called for antiretroviral treatment without discrimination.⁴⁹ The Convention on the Rights of the Child also requires provision of necessary assistance to children, which the Committee on the Rights of the Child has interpreted to include provision of antiretrovirals to children.⁵⁰  In most countries, fewer than 5% of children needing access to antiretroviral medicine have access to them.⁵¹ 

Prior to the Meeting, in resolution 60/224, the General Assembly called for UNAIDS to consult with civil society and the private sector to develop strategies for “scaling up HIV prevention, treatment, care and support with the aim of coming as close as possible to the goal of universal access to treatment by 2010”.⁵²  This resolution places qualifications on the goal of “universal access” with its use of the phrase “as close as possible”, however the Political Declaration could have eschewed such qualifications and aspired to achieve the target of universal access by 2010, or could have defined a specific minimum threshold for achieving “close” to universal access. Alternatively, the Declaration could have reiterated the importance of treatment being provided without discrimination, and on an equal basis to all individuals, regardless of age, gender, or means of infection.  Instead, the Political Declaration calls vaguely for work “towards” the goal of universal access. 

The U.N. Commission on Human Rights has also called on States “[t]o facilitate, wherever possible, access in other countries to essential preventive, curative or palliative pharmaceuticals or medical technologies used to treat pandemics such as HIV/AIDS.” ⁵³ Paragraphs 38 – 48 of the Political Declaration discuss various issues related to treatment: funding, patents (including the trade-related aspects of intellectual property rights, or TRIPS Agreements), and access to medications, however, none of these paragraphs make a specific mention of human rights.  This omission in not in itself a weakness, but civil society advocates must work to ensure that governments ensure access to medications, which is protected by the human rights to health and the right to enjoy the benefits of scientific progress.⁵⁴

In paragraph 43 the Political Declaration largely restates the WTO’s Doha Declaration on public health,⁵⁵ but fails to address controversial TRIPS-Plus arrangements (agreements that go beyond the protections provided in the WTO TRIPS agreement) that interfere with the production, procurement and distribution of HIV medications.⁵⁶ The U.S. has used bilateral free trade agreements to undermine the WTO TRIPS standards, as it is currently striving to do in negotiations with Thailand.  That it has exerted leverage within the WHO on this issue only exacerbates the problem.⁵⁷  Thailand recently showed its largest trade deficit in nearly a year.⁵⁸  Should Thailand, hoping to increase its access to U.S. markets, sign a restrictive FTA, it could roll back the country’s progress in reducing the rate of deaths from AIDS by 66% in one year through widespread production of low-cost generic HIV medications.⁵⁹  

Governments have committed to coming as close as possible to universal access.  If they are to make good on their commitment, they should build upon this language and work towards more flexible intellectual property rights standards.  Civil society advocacy should focus on this point and emphasize that more flexible standards will help to achieve universal access by providing affordable drugs to countries and encouraging local production, within the framework of facilitating access as provided by the U.N. Commission on Human Rights.  The governments who participated at the Meeting have set the general goal; civil society needs to advocate for the best path to meeting it.  By emphasizing that the human rights to health and enjoyment of scientific progress support the goal of universal access, civil society can emphasize the link between the non-binding Political Declaration and governments’ binding treaty obligations.