Submission to the Global Commission on HIV & the Law

The UNAIDS Reference Group on HIV and Human Rights (“Reference Group”) welcomes the creation of a Global Commission to develop evidence-informed, human rights-based recommendations for effective HIV responses that promote and protect the human rights of people living with and most vulnerable to HIV. The Reference Group is mindful that despite numerous past statements by UNAIDS and its co-sponsors calling for the repeal of laws that block effective HIV responses, such laws remain on the books in most countries and in some cases are increasing. The Reference Group believes that the challenge for the Commission is to go beyond existing statements and to contribute to greater knowledge and action on how to break the impasse in human rights-based law reform, enforcement and access to justice related to HIV. Specifically, we offer the following six recommendations:

1. The Commission should identify the full range of laws and law-enforcement practices that criminalize vulnerable groups. This includes not only specific laws against prostitution, sodomy, drug use and possession, and HIV transmission—which should be repealed as inherent violations of human rights—but also other laws and practices that impede HIV services for sex workers, LGBT communities, people who use drugs, people living with HIV, migrants, and prisoners. A vast range of laws, regulations, bylaws, ordinances, and other legal instruments permit police and other authorities to harass, arrest and detain vulnerable groups, often arbitrarily, in a manner that impedes their access to HIV services and violates their basic rights. These include criminal laws, immigration laws, municipal by-laws, zoning laws, family laws, employment laws, and public health laws. The Commission should delineate these laws and practices in detail, establish their empirical link to HIV vulnerability, and make recommendations on how they can be reformed. The Commission should also explore avenues of redress, such as legal-aid services and know-your-rights campaigns, as essential health interventions for HIV-affected populations.

2. The Commission should recommend specific legal measures to address violations of women’s human rights. The link between HIV and the subordination of women is widely recognized, yet legal measures to end this subordination are rarely prominent in national AIDS responses. Laws failing to recognize women’s equality persist, increasing women’s vulnerability to HIV and increasing violations of the human rights of women living with HIV. These include laws that do not recognize women’s right to inherit the belongings of their husband if he dies, that deny women the right to hold property under their name, that criminalize women for “HIV transmission or exposure,” and that do not protect women’s right to employment when they are often fired from their jobs upon disclosure of their HIV status. Despite the fact that women and girls are more vulnerable to physical, sexual and emotional violence than men, women living with HIV lack access to prevention or treatment of the violence they suffer, and women victims of violence often do not have access to HIV prevention services or information. HIV and violence prevention and treatment programs and services must be integrated by law and in practice. Women’s reproductive and sexual rights are also routinely violated on the basis of their HIV status, including through forced and coerced sterilizations, refusal to provide care at sexual and reproductive health services, and denial of access to safe abortion services even where these services are permitted by law.

3. The Commission should identify and address the political barriers to human rights-based laws related to HIV. Laws that impede evidence-based responses to HIV often remain on the books because powerful interests support them. To have impact, the Commission must identify the political, religious, economic, and other forces that impede rights-based law reform and make recommendations on how to counter these forces. Examples include: the influence of anti-trafficking discourse on laws that criminalize sex work; the influence of officials who profit from the “war on drugs” on laws that criminalize drug use and possession; the influence of religious fundamentalists on laws that criminalize homosexuality and restrict reproductive freedom; the influence of the pharmaceutical industry on laws that expand patent protection and restrict compulsory licensing and other mechanisms to expand access to affordable and quality generic medicines; and the influence of traditional leaders and patriarchal structures on laws that maintain women’s legal and economic subordination to men.

4. The Commission should go beyond existing statements by UNAIDS and its co-sponsors. While UNAIDS and some of its co-sponsors have made important statements opposing legal barriers to HIV responses, the Commission has an opportunity to go beyond these statements based on its independent expertise. For example:

– Beyond opposing anti-prostitution laws, the Commission should clarify that it is not sex work per se, but the failure to recognize sex work as legitimate work that contributes to HIV risk. The Commission should likewise oppose the conflation of sex work and trafficking.
– Beyond advocating against sodomy laws, the Commission should call for an end to all state-sponsored homophobia, including the use of homophobia as a political tool and efforts by international right-wing groups to enact anti-homosexuality laws in AIDS-affected countries. 
– Beyond favoring harm reduction strategies such as needle exchange and substitution treatment, the Commission should recognize that the criminalization of drug use and possession creates far more HIV risk than drug use itself, and that the United Nations should unite in diverting resources from punitive approaches to drug use to those based on health and human rights.
– Beyond opposing the criminalization of HIV transmission and exposure, the Commission should investigate the extent of enforcement of HIV-specific criminal laws in both rich and poor countries, especially its effects on women.
– Beyond endorsing women’s legal equality, the Commission should highlight the reasons for lack of progress in this area, including conflicts between customary and statutory law and the way in which women are denied their statutory and constitutional rights.

5. The Commission should clearly establish the role of human rights-based laws in the scale-up of HIV testing and treatment. Universal access to HIV testing and treatment remains perhaps the preeminent human rights challenge of the HIV response, and the Commission should give it due attention. Efforts to scale up HIV “treatment as prevention” and move to a “Treatment 2.0” model will not work unless legal and human rights barriers to HIV testing, diagnosis, early and successful initiation of treatment, and retention in HIV care and treatment are addressed. An integral part of this effort for women is the integration of HIV and violence prevention and treatment programs and services as well as HIV and sexual and reproductive health programs. The legal barriers include: weak protection against employment discrimination, violence against women and other negative consequences of disclosure of HIV status; weak enforcement of laws guaranteeing informed consent, confidentiality and counseling in HIV testing; laws that criminalize HIV exposure or transmission, which disproportionately affect women and deter people from knowing their HIV status; migration laws that provide for mandatory HIV testing of (certain categories of) non-nationals and the deportation of people testing HIV-positive and/or impose travel and residence restrictions; and overbroad patent and anti-counterfeit laws and trade agreements that block production and importation of affordable generic HIV medicines and prevent implementation of the Doha Declaration on trade-related intellectual property and public health.

6. The Commission should meaningfully involve civil society in all stages of its work. Perhaps to an even greater extent than by its recommendations, the legacy and impact of the Commission will be shaped by how credibly and respectfully it works with civil society and affected communities, how much its recommendations reflect the voices of those who represent and work with criminalized populations, and how invested civil society feels in the Commission’s work and its follow-up. The hearings convened by the Commission should be genuine opportunities for affected communities to set the agenda and shape the Commission’s work. The Commission should be a model for how it wishes governments to work with HIV-affected groups: involving them at every stage, regarding them as essential to their success, recognizing their diversity, and empowering them to drive the process rather than merely provide input.