I have constant pain, and there is no help for us-just for the rich people-but if I can find someone to look after my children, I can die in peace.1
Lillian M., thirty-eight, a person with AIDS
Depicted and analyzed as an economic, social and development catastrophe, HIV/AIDS is less well understood as a human rights crisis, though the rights of persons living with and at risk of AIDS have figured in AIDS policy development from the beginning. The late Jonathan Mann, who headed the first Global Programme on HIV/AIDS at the World Health Organization (WHO), recognized early in the epidemic the importance of linking HIV/AIDS and human rights, especially to ensure that those at risk would not be stigmatized in using services.2 Early policy statements on AIDS from WHO underlined the importance of combating discrimination against HIV-infected persons.
As the epidemic grew, national policies
in the industrialized world came increasingly to include explicit provisions
against discrimination of HIV-positive persons and persons living with
AIDS as well as protections of the voluntary nature of testing and confidentiality
of test results. Some public health experts note that these policies on
HIV/AIDS contrasted with those on other sexually transmitted diseases such
as syphilis and gonorrhea, where testing was mandatory at certain times
and identification and tracing of sex partners were required by law.3
As HIV/AIDS in Africa has become a crisis of historic proportions, some
experts have suggested it may be time to reconsider emergency measures
such as large-scale mandatory testing under certain conditions.4
Human rights law, including law on the rights of children, should inform
these important public health policy discussions.
On another human rights front, a vocal world-wide civil society movement is currently promoting the right of persons living with AIDS in developing countries to the same antiretroviral drugs that are widely used in the wealthy countries of the North. A United Nations Commission on Human Rights resolution in April 2001 declared access to treatment a right for all persons with AIDS and called upon states to facilitate access to "preventive, curative or palliative pharmaceuticals or medical technologies" used against the disease.8
These human rights analyses of HIV/AIDS, essential and ongoing, have not for the most part focused on children affected by AIDS and the ways in which the epidemic threatens children's human rights. The plight of children orphaned by AIDS has been the subject of many journalistic accounts and program documents, but there have been few studies of legal and policy protections of children's rights related to HIV/AIDS.
The traditional recourse that orphans and other vulnerable children have had to family-based and community-level support and protection is unraveling in AIDS-affected countries. This deterioration is in some cases a direct result of mortality and other consequences of the epidemic and in others due to the concurrent and combined effects of HIV/AIDS and intransigent poverty. The absence of traditional family and community support for children has direct implications for the state. The difficult circumstances faced by AIDS-affected children can be mitigated by legal and policy protections and state support for well-defined and well-targeted services. AIDS-affected children in Africa will number in the tens of millions for years to come. State responsibilities must be better understood and acted upon urgently in the face of this historically important threat to children's rights.
After many years of a weak official response to HIV/AIDS, the government of Kenya has recently taken aggressive measures to emergize its fight against the disease, including the passage of legislation designed to facilitate the importation of cheaper, generic antiretroviral drugs and the first steps to removing tariffs on imported condoms. In this report, Human Rights Watch suggests that equally aggressive measures must be taken by the government to ensure protection of the rights of children affected by HIV/AIDS.
Because HIV/AIDS so often impoverishes and stigmatizes the children it affects, and claims the lives of so many in their extended family, these children are at high risk of having to eke out livelihoods on the street or in other potentially dangerous situations. AIDS-affected children face many obstacles to staying in school and thus to fulfilling their right to education. They are further disadvantaged in many cases by the unscrupulous and unlawful appropriation of property they are entitled to inherit from their parents, and in Kenya they are rarely able to take legal action to protect their inheritance rights. These factors together place at risk the realization by AIDS-affected children of their right to survival and development, which the government has an obligation to ensure "to the maximum extent possible" under the United Nations Convention on the Rights of the Child. These problems are compounded in Kenya by apparently poor access of children and young adults to appropriate and clear information about HIV/AIDS, which puts children at risk of being unable to protect themselves from HIV transmission. Children have the right to survival; physical, social and cultural development; health; and education. These rights are guaranteed under the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, especially article 24, and the African Charters on Human and Peoples' Rights and on the Rights and Welfare of the Child, all of which Kenya has ratified.
2 Jonathan M. Mann, "Human rights and AIDS: The future of the pandemic," in Jonathan M. Mann, Sofia Gruskin, Michael A. Grodin, and George J. Annas, eds., Health and human rights: A reader (New York and London: Routledge, 1999), p. 217.
3 See, e.g., Kevin M. De Cock, "From Exceptionalism to Normalisation: a Reappraisal of Attitudes and Practice Around HIV Testing," British Medical Journal vol.316 (1998), pp. 7127-7133.
4 See, e.g., Kevin M. De Cock, "Keynote Lecture: Heterogeneity and Public Health in the Global HIV/AIDS Epidemic" (paper presented to the 8th Conference on Retroviruses and Opportunistic Infections, Chicago, February 4, 2001, and John Oywa, "Doctors Plea on AIDS Spread", The Nation (Nairobi), May 12, 2001. The latter recounts the efforts of Kenyan doctors to repeal guidelines that prohibit them from revealing the HIV status of their patients. The doctors state that confidentiality laws are standing in the way of combating the HIV/AIDS epidemic.
5 See, e.g., U.N. High Commissioner for Human Rights and U.N. Joint Programme on HIV/AIDS, HIV/AIDS and Human Rights: International Guideline, U.N. Doc. HR/PUB/98/1, 1998, especially guideline no. 8.
6 UNIFEM, "UNAIDS Partners with UNIFEM to Halt Spread of HIV/AIDS among Women and Girls" (press statement), May 24, 2001.
7 U.N. Commission on the Status of Women, "Agreed Conclusions on Women, the Girl Child and HIV/AIDS" (statement adopted at 45th session of the Commission, March 2001).
Economic and Social Council of
the United Nations. Commission on Human Rights resolution 2001/33, "Access
to medication in the context of pandemics such as HIV/AIDS," U.N. Doc.
E/CN.4/RES/2001/33, April 20, 2001. Passed unanimously with the United