Thailand is a party to both the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR).170 As such it has obligations to respect, protect, and fulfill the rights protected under both treaties for all those within its jurisdiction, including HIV-positive drug users. In particular it must respect the right of everyone to the enjoyment of the highest attainable standard of physical and mental health,171 the right to privacy,172 and the right of all detainees to be treated with dignity.173 Thailand also recognizes in its constitution that everyone has equal rights to receive quality public health services.174 Thailand has obligations to ensure drug users can enjoy the right to health without fear of punishment and discrimination, including in prison, and can access voluntary, affordable, and quality medical treatment.175 It also has obligations to take positive measures to ensure equal access to HIV/AIDS-related information and prevention, care, and treatment services for all people living with and at risk of the disease.176
The right to health includes both freedoms and entitlements: freedom from unjustified interference by the State directly or indirectly with an individuals health; and entitlements to a particular, nondiscriminatory health care.177 Respect for the right to health also incorporates respect for other rights such as the right to privacy and the right to seek, receive, and impart information. In fulfilling the right to health, states are specifically obliged to take those steps necessary for the prevention, treatment and control of epidemic diseases.178 This includes the establishment of prevention and education programmes for behaviour-related health concerns such as sexually-transmitted diseases, in particular HIV/AIDS.179 Laws and policies that are likely to result in ... unnecessary morbidity and preventable mortality may violate the obligation to respect the right to health.180
The UN Committee on Economic, Social and Cultural Rights has identified four essential elements of the right to health:availability; accessibility; acceptability; and quality.181 The availability requirement means that states must make available [f]unctioning public health and health-care facilities, goods and services, as well as programmes. The accessibility requirement has four overlapping dimensions: non-discrimination, physical accessibility, economic accessibility, and information accessibility (people have the opportunity to seek, receive, and impart information about health issues). Acceptability means that health services are medically and culturally appropriate. Finally, health services must be scientifically and medically appropriate and of good quality.
The right to the highest attainable standard of health outlined in the ICESCR is subject to progressive realization, under which states parties have a specific and continuing obligation to move as expeditiously and effectively as possible towards the full realization of [the right].182 States must guarantee certain core obligations as part of the right to health. These include ensuring non-discriminatory 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; providing education and access to information for important health problems; and providing appropriate training for health personnel, including education on health and human rights.183 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.184
International human rights law clearly affirms that prisoners retain fundamental rights and freedoms guaranteed under human rights law, except the right to liberty, although they may be subject to restrictions that are commensurate with a closed environment.185 However, the conditions of confinement should not aggravate the suffering inherent in imprisonment.186 Prisoners, therefore, like all other persons, enjoy the right to the highest attainable standard of health and in particular the right to be treated with dignity and protection against torture and cruel, inhuman, or degrading treatment or punishment.187
International law requires states to take measures to ensure that conditions of incarceration conform to international human rights norms and standards. The prohibition on inhuman or degrading treatment specifically compels authorities not only to refrain from provoking such treatment, but also to take the practical preventive measures to protect the physical integrity and the health of persons who have been deprived of their liberty.188 It has been recognized that failure to provide adequate health care or medical treatment to a detainee in prison may contribute to conditions amounting to inhuman or degrading treatment.189
Key international instruments establish the general consensus that prisoners are entitled to a standard of health care equivalent to that available in the general community, without discrimination based on their legal status.190 The UN Committee on Economic, Social and Cultural Rights, in its commentary on the right to health, repeatedly stresses the importance of states obligations to ensure access to health facilities, goods, and services to all persons, especially the most vulnerable or marginalized sections of the population without discrimination on the basis of (inter alia) health status including HIV/AIDS or political, social or other status that has the intention or effect of nullifying or impairing equal enjoyment of the right to health. The Committee notes in particular government obligations to refrain from denying or limiting equal access for all persons, including prisoners or detainees to preventive, curative, and palliative health services, and to abstain from enforcing discriminatory practices as State policy.191
170 International Covenant on Civil and Political Rights (ICCPR), 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 March 23, 1976, arts. 6(1), 7, 9, and 14(1). Thailand became a party to the ICCPR on October 29, 1996. International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, entered into force January 3, 1976, GA Res. 2200 (XXI), 21 UN GAOR, 21st Sess., Supp. No. 16, at 49, UN Doc. A/6316 (1966), art. 12. Thailand became a party to the ICESCR on September 5, 1999.
171 ICESCR, art. 12.
172 ICCPR, art. 17.
173 ICCPR, art. 7.
174 Constitution of Thailand, Part 9, http://www.parliament.go.th/parcy/sapa_db/sapa25-upload/25-20070517151204_2007.pdf (accessed August 26, 2007).
175 Committee on Economic, Social and Cultural Rights, General Comment 14, UN Doc. E/C.12/2000/4, adopted August 11, 2000, paras. 34 and 36.
177 Ibid., para 33.
178 ICESCR, art. 12 (2) c.
179 General Comment 14, para. 16.
180 Ibid., para. 50.
181 Ibid., para. 12.
182 Ibid., paras. 30, 31.
183 Ibid., paras. 43 and 44; also ibid., para. 12.
184 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.
185 United Nations Human Rights Committee, General Comment No. 21: Humane treatment of persons deprived of liberty (Art. 10), (Adopted April 10, 1992) Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev.7, para. 3; European Court of Human Rights (ECHR), Gelfmann v. France, no. 25875/03, Judgment of 14 December 2004, para. 50.
187 International Covenant on Civil and Political Rights, arts. 7 and 10. On October 2, 2007, Thailand also acceded to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987, although it was not a party at the time that the research for this report was conducted.
188 ECHR, Pantea v. Romania, no. 33343/96, Judgment of 3 September 2003, para 189; ECHR, Gelfmann v. France, para. 50.
189 See European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 3rd General Report on the CPTs activities covering the period January 1 to December 31, 1992, para 31; ECHR, Melnik v. Ukraine, no. 72286/01, Judgment of March 28, 2006.
190 United Nations Basic Principles for the Treatment of Prisoners, UN General Assembly Resolution 45/111 (1990); WHO Guidelines on HIV Infection and AIDS in Prisons (1999), arts. A (4) and C (ii); the Body of Principles for the Protection of All Persons Under any form of Detention or Imprisonment, UN General Assembly Resolution 43/173 (1988). Although these instruments are not legally binding in and of themselves, they provide authoritative guidance to states on the interpretation of relevant treaty obligations.
191Committee on Economic, Social and Cultural Rights, General Comment 14, UN Doc. E/C.12/2000/4, adopted August 11, 2000, paras. 12, 18, 34.