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