Which are the most relevant international and regional human rights standards related to HIV/AIDS?

Overview

A variety of human rights standards at the international and regional levels applies to HIV and AIDS. These standards can be used for many purposes:

To document violations related to HIV and AIDS
To advocate for the cessation of these violations
To sue governments for violations of national human rights laws
To complain to regional and international human rights bodies.

In the tables on the following pages, examples of human rights violations related to HIV and AIDS are provided. Relevant human rights standards are then cited, along with examples of legal precedents interpreting each standard.

How to read the tables

As you read through each table, ask yourself the following questions about the violations, standards, and precedents and interpretations that are cited:

EXAMPLES OF HUMAN RIGHTS VIOLATIONS Do any of these violations occur in your country? Are there other violations of this human right that exist in your country?
HUMAN RIGHTS STANDARDS Are these violations prohibited by the "human rights standards"? Can the standards be interpreted to apply to this violation?	PRECEDENTS AND INTERPRETATIONS Do any of the "examples of precedents and interpretations" apply to this issue? Can they be interpreted to apply to this issue?

Remember that human rights law is an evolving field, and that many human rights violations are not directly addressed by existing legal standards and precedents. Through ongoing documentation and advocacy, advocates can build a stronger body of jurisprudence on HIV/AIDS and human rights.

Abbreviations

In the tables, the seven treaties and their corresponding enforcement mechanisms are referred to with the following abbreviations:

Treaty	Enforcement Mechanism
International Covenant on Civil and Political Rights (ICCPR)	Human Rights Committee (HRC)
International Covenant on Economic, Social, and Cultural Rights (ICESCR)	Committee on Economic, Social and Cultural Rights (CESCR)
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)	Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW Committee)
Convention on the Rights of the Child (CRC)	Committee on the Rights of the Child (CRC Committee)
African Charter on Human and People’s Rights (ACHPR) & Protocols	African Commission on Human and People’s Rights (ACHPR Commission)
[European] Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)	European Court of Human Rights (ECtHR)
European Social Charter (ESC)	European Committee of Social Rights (ECSR)

Also cited are the former Commission on Human Rights (CHR) and various UN Special Rapporteurs (SR) and Working Groups (WG).

Table 1: HIV/AIDS and the right to life

Examples of Human Rights Violations
Police fail to investigate the murder of a person living with HIV. Government places unjustified legal restrictions on access to life-saving HIV-prevention or treatment measures. Government imposes a death sentence for intentional transmission of HIV. Woman is denied access to post-exposure prophylaxis to prevent HIV following rape.
Human Rights Standards	Precedents and Interpretations
ICCPR 6(1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. (2) In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court. ACHPR 4 Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. ECHR 2(1) Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.	HRC: states that art. 6 of the ICCPR creates positive obligations on States to protect life, and that “the Committee considers that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics” {General Comment on the Right to Life, paragraph 5, General Comment 6} Interpreting the right to life, the HRC has recommended that Namibia “pursue efforts to protect population from HIV/AIDS” and “adopt comprehensive measures encouraging greater numbers of persons suffering from HIV and AIDS to obtain adequate antiretroviral treatment and facilitate such treatment” (2004). It has also called for “equal access to treatment” in Kenya (2005) and for Uganda to “allow greater number of persons suffering from HIV/AIDS to obtain adequate antiretroviral treatment” (2004).

Table 2: HIV/AIDS and freedom from torture and cruel, inhuman and degrading treatment, including in prison

Examples of Human Rights Violations
Outreach workers conducting HIV-prevention with MSM are detained and beaten by police. An activist is detained and tortured for exposing State complicity in a HIV blood scandal. Prisoners are denied HIV-related information, education, and means of prevention (e.g., condoms, sterile injection equipment, and bleach), or HIV testing and treatment. Authorities fail to take steps to prosecute or prevent prison rape.
Human Rights Standards	Precedents and Interpretations
ICCPR 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. ICCPR 10(1) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. ACHPR 5 Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. ECHR 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment. *See also:* Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment (1987) European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1989) Code of Conduct for Law Enforcement Officials (1979) Standard Minimum Rules for the Treatment of Prisoners (1955)	HRC: In 2006, expressed concern about the “high incidence of HIV/AIDS and tuberculosis among detainees in facilities of State, along with absence of specialized care for pre-trial detainees” in Ukraine. The Committee recommended that Ukraine relieve prison overcrowding, provide hygienic facilities, assure access to health care and adequate food, and reduce the prison population, including by using alternative sanctions. EctHR: finding failure to provide a prisoner with timely and appropriate AIDS and TB treatment to constitute a violation of the right to freedom from torture and inhuman or degrading treatment [Yakovenko v. Ukraine (Application 15825/06), Oct. 25, 2007].

Table 3: HIV/AIDS and the right to liberty and security of the person

Examples of Human Rights Violations
Government quarantines people living with HIV or detains them in special colonies. Penal code imposes explicit prison term for intentional transmission of HIV. Government requires HIV testing either for all individuals or as a condition of employment, immigration, or military service.
Human Rights Standards	Precedents and Interpretations
ICCPR 9(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. ACHPR 6 Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained. ECHR 5(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: *See also:* Code of Conduct for Law Enforcement Officials (1979) Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990) Reports of the UN Commission on Human Rights Working Group on Arbitrary Detention (2003-2005)	WG Arbitrary Detention: expressed concern at the arbitrary detention of “drug addicts” and “people suffering from AIDS;” recommended that, “with regard to persons deprived of their liberty on health grounds, the Working Group considers that in any event all persons affected by such measures must have judicial means of challenging their detention.” (2003) ECtHR: “Held that the detention of an HIV-positive gay man violated article 5 as it was not necessary to prevent him from spreading HIV to others.." {Enhorn v. Sweden, 2005}

Table 4: HIV/AIDS and the right to liberty of movement

Examples of Human Rights Violations
A State conducts HIV screening at its borders or requires disclosure of HIV status as a condition of immigration. A State singles out HIV status as a reason for denying longer-term residency, while not imposing a similar restriction on other diseases. A State screens all migrant workers for HIV and categorically deports those who test positive.
Human Rights Standards	Precedents and Interpretations
ICCPR 12(1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. (2) Everyone shall be free to leave any country, including his own. (3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant {emphasis added}. ACHPR 12 (1) Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law. (2) Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality {emphasis added}.	According to research conducted for this Table, no regional or international human rights body has applied the right to liberty of movement explicitly to the context of HIV and AIDS.

Table 5: HIV/AIDS and the right to seek and enjoy asylum

Examples of Human Rights Violations
A State returns an asylum-seeker to a country where she or he faces persecution on the basis of HIV status or HIV activism. A State excludes people living with HIV from being granted asylum, or discriminates on the basis of HIV status in the context of travel regulations, entry requirements, or immigration and asylum procedures. Refugees and asylum seekers face discrimination in access to HIV prevention and treatment services.
Human Rights Standards	Precedents and Interpretations
ACHPR 12 (3) Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions. *See also:* Convention relating to the Status of Refugees (1951)	HRC: has confirmed that the right to equal protection of the law prohibits discrimination in law or in practice in any fields regulated and protected by public authorities. This would include travel regulations, entry requirements, and immigration and asylum procedures. The United Nations High Commissioner for Refugees, while not a treaty body, issued policy guidelines in 1988 stating that refugees and asylum seekers should not be targeted for special measures regarding HIV infection and that there is no justification for screening being used to exclude HIV-positive individuals from being granted asylum.

Table 6: HIV/AIDS and the right to privacy

Examples of Human Rights Violations
A person is tested for HIV without his or her consent. A hospital or health care worker fails to maintain confidentiality of a patient’s HIV status or medical records. Government requires registration of all people living with HIV by name. Government requires disclosure of HIV status on certain forms such as sick-leave certificates, job applications, and medical prescriptions. Penal code criminalizes certain sexual acts between consenting adults, such as fornication, oral sex, sodomy, or adultery.
Human Rights Standards	Precedents and Interpretations
ICCPR 17(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation. ECHR 8(1) Everyone has the right to respect for his private and family life, his home and his correspondence.	HRC: In finding that the right to privacy is violated by laws that criminalize homosexual acts between consenting adults {see Toonen v. Australia, 1991}, the Human Rights Committee noted that “…the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of HIV and AIDS…[B]y driving underground many of the people at risk of infection…[it] would appear to run counter to the implementation of effective education programmes in respect of the HIV and AIDS prevention” (see also, Chapter 4, Sexual Health and Human Rights).

Table 7: HIV/AIDS and freedom of expression and information

Examples of Human Rights Violations
Government censors HIV-prevention information directed at LGBT persons, sex workers, or people who use drugs on the grounds it is obscene or promotes criminalized behavior. Schools deny young people information about HIV and AIDS, safer sex, sexuality, and condoms. Media reporting on HIV engages in stigma and stereotyping rather than providing factual information. Government restricts a newspaper, website, or other communication by activists critical of government AIDS policies.
Human Rights Standards	Precedents and Interpretations
ICCPR 19(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. ACHPR 9 (1) Every individual shall have the right to receive information. ECHR 10(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. (2) Every individual shall have the right to express and disseminate his opinions within the law.	CRC Committee: concluded that adolescent’s right to information about HIV and AIDS is part of the right to information {General Comment 3, 2003, Paragraph 4}. SR Education: has noted the need for sexuality education in schools, as well as the need for schools to ensure the safety of gay and lesbian students. SR Freedom of Expression and Information: has commented on the abuse of the rights of sex workers and LGBT persons; noted restrictions on public speech and denial of HIV and AIDS information to these communities; noted the detention of persons in Kuwait because of a letter mentioning a lesbian relationship; and expressed concern in Uganda about the arrests and harassment of two gender-non-conforming women.

Table 8: HIV/AIDS and freedom of assembly and association

Examples of Human Rights Violations

State restricts formation of nongovernmental, community-based, or service organizations working on HIV and AIDS, or imposes prohibitive bureaucratic requirements.
Police disperse a peaceful and authorized demonstration by AIDS activists.
Organizations such as trade unions or professional associations deny membership on the basis of HIV status.

Human Rights Standards

Precedents and Interpretations

ICCPR 21 The right of peaceful assembly shall be recognized.

22(1) Everyone shall have the right to freedom of
association with others, including the right to form
and join trade unions for the protection of his
interests.

(2) No restrictions may be placed on the exercise
of this right other than those imposed in
conformity with the law and which are necessary
in a democratic society in the interests of national
security or public safety, public order (ordre public),
the protection of public health or morals or the
protection of the rights and freedoms of others.

ACHPR 10 Every individual shall have the right to free association provided that he abides by the law.

11 Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.

ECHR 11 Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

According to research conducted for this Table, no regional or international human rights body has applied the protection of freedom of assembly and association explicitly to the context of HIV and AIDS.

Table 9: HIV/AIDS and the right to marry and found a family

Examples of Human Rights Violations
State requires HIV testing or proof of HIV-negative status as a condition of marriage. State forces woman living with HIV to undergo abortion or sterilization, rather than providing her with information and services to prevent mother-to-child transmission of HIV. Women are denied equal rights in marriage, divorce, or within families, thus decreasing their ability to negotiate safer sex or leave relationships that pose a risk of HIV. State denies migrants the right to be accompanied by family members, thus increases risk of HIV through casual sex. State denies asylum to HIV-positive claimant while granting asylum to his or her family.
Human Rights Standards	Precedents and Interpretations
ICCPR 23(2) The right of men and women of marriageable age to marry and to found a family shall be recognized. ECHR 12 Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.	CEDAW Committee: recommended that Kenya “take appropriate action to eliminate all discriminatory laws, practices and traditions and ensure women’s equality with men particularly in marriage and divorce, burial and devolution of property upon death in accordance with provisions of CEDAW,” including through passage of HIV and AIDS legislation (2003). ECtHR: ruled the rights of a Serbian woman living with HIV were violated when she was banned from seeing her child (2007).

Table 10: HIV/AIDS and the right to non-discrimination and equality under law

Examples of Human Rights Violations
A person is denied work, housing, medicine, or education due to actual or presumed HIV status. A child affected by HIV faces discrimination because of his or her parents’ HIV status. Government-sponsored HIV-prevention materials exclude information targeted at certain minorities such as LGBT persons, persons with disabilities, or people who use drugs. Discrimination in access to property and divorce render women more vulnerable to HIV.
Human Rights Standards	Precedents and Interpretations
ICCPR 2(1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. ICCPR 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. ACHPR 2 Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. 3 (1) Every individual shall be equal before the law. (2) Every individual shall be entitled to equal protection of the law. ECHR 14 The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.	CHR: confirmed that the term “other status” in anti-discrimination provisions includes health status, including HIV status (1995 and 1996). CRC Committee: in the context of anti-discrimination, recommended: that Kazakhstan undertake awareness-raising and sensitization of legal and other professionals on the impact of HIV and AIDS on children (2006); and that Ukraine monitor the situation of “economically disadvantaged households, children living in rural areas, children in institutions, children with disabilities, children belonging to national minorities such as Roma children, and children affected with HIV/AIDS” and develop anti-discrimination strategies for these populations (2002). CEDAW Committee: has made several recommendations on the elimination of discrimination against women in the context of HIV and AIDS (see Table 12, below). Committee on the Elimination of Racial Discrimination: expressed concern at the high rate of HIV and AIDS among minorities and ethnic groups and recommended that governments take appropriate action in Estonia (2006) and South Africa (2006 and 2003).

Table 11: HIV/AIDS and the right to the highest attainable standard of health

Examples of Human Rights Violations
State fails to take progressive steps to ensure access to HIV-prevention information and services (e.g. condoms, sterile syringe programs, VCT), or imposes restrictions on such services. State fails to take progressive steps to ensure access to anti-retroviral drugs, treatment for opportunistic infections, opioid pain medications for palliative care, or comprehensive TB care. State fails to ensure that sex workers, MSM, prisoners, people who use drugs, and other vulnerable groups enjoy proportionate access to HIV prevention, treatment, and care services.
Human Rights Standards	Precedents and Interpretations
ICESCR 12(1) The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 12(2) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:… (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases. ACHPR 16 (1) Every individual shall have the right to enjoy the best attainable state of physical and mental health. (2) States Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick. *See also:* Convention on the Elimination of All Forms of Discrimination Against Women, 12(1) Convention on the Rights of the Child, 24(1)	CESCR: Art. 12 includes “the right to prevention, treatment and control of epidemic…diseases,” including HIV. Recommendations include: Georgia to undertake general HIV-prevention measures (2002); Moldova to “intensify efforts” on HIV (2003); Russia to take “urgent measures to stop the spread of HIV” and related discrimination (2003); Ukraine to provide HIV information to adolescents (2001). CRC Committee : has recommended that States improve HIV-prevention services for children, protect children from HIV-based discrimination, and include children’s rights in HIV strategies (see, e.g., comments on Benin (2006), Senegal (2006), Swaziland (2006), Nigeria (2005), Uganda (2005), Armenia (2004), Burkina Faso (2002), Mozambique (2002), Ukraine (2002), Kenya (2001), Georgia (2000), Tajikistan (2000), and South Africa (2000). The Women’s Committee has made similar comments on Mali (2006), Burkina Faso (2005), and Angola (2004). The CRC Committee has also recommended that Russia study its practice of “segregating children of HIV-positive mothers in hospital wards or separate orphanages and of HIV‑positive children being refused access to regular orphanages, medical care and educational facilities” (2005).

Table 12: HIV/AIDS and the rights of women and children

Examples of Human Rights Violations
Women face discrimination in the family, in education, employment and health care, and in access to property, and are denied an effective remedy for violence, including marital rape. Women are denied access to a full range of health services, including reproductive health care, to prevent and mitigate the impact of HIV for themselves and their children. Children are denied access to comprehensive HIV-prevention services and information. Children orphaned or affected by AIDS are withdrawn from school, denied their inheritance, and forced into hazardous situations such as forced labor, begging, and sexual exploitation.
Human Rights Standards	Precedents and Interpretations
ICCPR 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant. 23 (3) No marriage shall be entered into without the free and full consent of the intending spouses. (4) States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children. 24 (1) Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. ACHPR 18 (3) The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions. *See also:* Convention on the Elimination of All Forms of Discrimination against Women Convention on the Rights of the Child	CRC Committee: Recommendations include: Kazakhstan to sensitize legal and other professionals on the HIV among children (2006); Moldova to study situation of adolescent sexual and reproductive health, including HIV (2002); Swaziland (2006), Uganda (2005), and Botswana (2004) to prioritize budget allocations to HIV-affected children; Botswana to ensure free trade agreements do not impede access to low-cost HIV medicines for children (2004); Mozambique (2002), Uganda (2005), and Swaziland (2006) to improve alternate care for AIDS orphans; Benin (2006) and Nigeria (2005) to ensure educational opportunities for children affected by HIV {See also, CRC recommendations on children who use drugs, Chapter 3, Table 10}. CEDAW Committee: Recommendations include: Moldova to target “high-risk groups” with HIV strategies (2006); Russia to address gender aspects of HIV (2002); Angola to “widely promote” sex education and study adolescent health (2004); Kenya to address HIV-related sex discrimination (2003); Uganda to “pay full attention to provisions of health services for prostitutes” (2002); Burkina Faso to implement a range of measures on women and HIV and AIDS (2000 and 2005). CEDAW Committee has also requested countries, including Moldova (2000) and Mali (2006), to gather information on measures to reduce HIV among women.

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