Law and Policy

Human rights are part of written international law and related standards, defined in Conventions, Treaties and Declarations that spell out specific rights and obligations. They are meant to form the basis for national and local legislation and policies that govern.[1] Law and policy adopted by local, state, and national governments, and by international bodies, can be effective tools in combating HIV infection and VAW. 
 
In 2011, the United Nations General Assembly (UNGA) adopted a Political Declaration on HIV and AIDS by which Member States committed to intensify national efforts to create enabling legal, social and policy frameworks in each national context in order to eliminate stigma, discrimination and violence related to HIV and to promote access to HIV prevention, treatment, care and provide legal protection for people affected by HIV, including inheritance rights and respect for privacy and confidentiality. In the document, the UNGA encourages Member States to consider identifying  and reviewing any remaining HIV-related restrictions on country entry, stay and residence in order to eliminate them.
 
Countries also committed to ensuring that national responses to HIV and AIDS meet specific needs for women and girls, including those living with and affected by HIV, throughout their lifespan, by strengthening legal, policy, administrative and other measures for the promotion and protection of women’s full enjoyment of all human rights and the reduction of their vulnerability to HIV through the elimination of all forms of discrimination, as well as all types of sexual exploitation of women, girls and boys, including for commercial reasons, and all forms of violence against women and girls, including harmful traditional  and customary practices, abuse, rape and other forms of sexual violence, battering and trafficking in women and girls.[2]
 
 UNAIDS has identified several areas of law that are critical to an effective response: public health, equality of women and anti-discrimination, domestic relations and prevention of sexual violence, social security, and laws governing drug use, prostitution, and prisons.
UNAIDS, in its Handbook for Parliamentarians has identified the following provisions from international human rights treaties and declarations as having significant implications for an effective response to AIDS:        
 
·        The right to the highest attainable standard of health.  Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes the right to the enjoyment of the highest attainable standard of physical and mental health. For women, the right to health has special relevance within the context of HIV.[3] Some of the obligations of the State include the provision of:  (a) appropriate HIV-related information, education, and support; (b) access to the means of prevention (such as condoms and clean injecting equipment), (c) voluntary counseling and testing, (d) safe blood supplies, (e) adequate HIV treatment and medications (such as antiretrovirals), (f) medicines for opportunistic infections, and (e) medicines for pain and palliative care.
 
·        Non-discrimination and equality before the law. Non-discrimination and equality are cornerstone human right principles, and these rights have direct implications for women’s access to housing, land, and property, and also with regards to HIV.[4] International human rights law guarantees the right to equal protection before the law and freedom from discrimination on various grounds.  The Committee on Economic, Social and Cultural Rights, the Committee on the Rights of the Child and the Commission on Human Rights have all interpreted the term "other status" in non-discrimination provisions of international human rights instruments to include health status, including HIV and AIDS.  "Discrimination on the basis of HIV or AIDS status, whether actual or presumed, is therefore prohibited by existing human rights standards."[5]  
 
·        Human rights of women. Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women(CEDAW) obliges State parties to address all aspects of gender-based discrimination in law, policy, and practice. Protection of the rights of women and girls – including sexual and reproductive rights – is critical to preventing HIV transmission and to lessening the impact of the epidemic on women.
 
·        Right to privacy. Article 17 of the International Covenant on Civil and Political Rights (ICCPR), encompasses obligations to respect physical privacy (for example, the obligation to seek informed consent to HIV testing) and the need to respect confidentiality of personal information (for example, information relating to a person’s HIV status).
 
·        Right to education. Article 26 of the Universal Declaration of Human Rights (UDHR) and Article 13 of the International Covenant on Economic, Cultural and Social Rights note that no person should be discriminatorily denied access to education. Women and girls are routinely denied access to education, and this has an impact on the spread of HIV infection.  Also, infected persons need to receive HIV-related education.
 
At the regional level, other relevant legal instruments that might be useful in combating the impact of HIV on women include:
 
 
In 2012 61% of countries reported the existence of anti-discrimination laws that protect people living with HIV. Yet, in the epidemic’s fourth decade, nearly 4 in 10 countries worldwide still lack  specific legal provisions to prevent or address HIV-related discrimination. And, even when such laws exist, they often provide little meaningful protection. For example, although an HIV anti-discrimination law is in place in Ukraine, no regulations have been approved to implement the law and subject violators to penalties.[6]  However, the recognition of the links between gender and HIV infection has made governments see the need to consider gender when implementing policies that address the HIV epidemic.[7]  The 2007 National Composite Policy Index (NCPI) revealed that of the 130 countries which responded to questions about the availability of HIV-related human rights policies as they related to women in their respective countries, Eastern and Central Europe received the lowest scores.[8]  
 
In its 2007 publication Legal Aspects of HIV/AIDS: A Guide for Policy and Law Reform, the World Bank noted some of the programs and laws enacted by various countries designed to both protect HIV-infected persons and to prevent transmission of the virus, including:
 
  • Syringe exchange programs.  Because of the direct manner in which transmission occurs among injecting drug users, various countries including Canada, Brazil, Russia, USA, and Nepal are using needle and syringe exchange programs that allow users to exchange their used paraphernalia for new, unused needles and syringes.  In cases where the possession of this equipment is a violation of drug laws, some countries are permitting such programs as exceptions in order to reduce the amount of contaminated equipment circulating within the community. 
  • Laws on prostitution.  In most developing countries, in much of the United States, and throughout the Middle East, prostitution is criminalized, and most victims do not take advantage of public health services for fear of legal consequences.  Even in countries like Brazil, Kenya, Greece, and Bangladesh, where prostitution is legal, most do not take advantage of these services due to stigma.  In many countries of Eastern Europe, including Poland, Bulgaria and Slovenia, where prostitution is not regulated, victims are often prosecuted under a variety of other statutes. Victims of sex trafficking are beginning to be seen as persons needing protection, and stiffer penalties are being legislated for perpetrators.  For example, according to the European Council Framework Decision of 2002, in European countries, trafficking will result in at least eight years imprisonment.  In some countries victims are now also granted residency in the country to which they were trafficked.  In other countries, like Estonia, where there may be no specific laws against trafficking, perpetrators have been prosecuted under enslavement and pimping laws.[9]  
  • Laws that protect women.  The development, on a country level, of effective laws that protect women affected by HIV/AIDS has been challenging due to social norms that perpetuate gender inequality.  Such measures do little in cases in which family members choose only to educate the male members of the family, or, where there are limited resources choose only to provide medications for male members. Other laws, such as partner notification laws, have been enacted in various countries to protect women from marital rape and to decrease the possibility of HIV transmission from sexual contact with infected partners.  
Other laws which affect the transmission of HIV infection include:
In 2012, governments increasingly recognize that HIV-specific travel restrictions make no sense in a world in which HIV exists in every country. People living with HIV are living long and productive lives and equal freedom of movement is not only a human right but essential in a globalized world.[10] In 2008, 74 countries imposed such restrictions— either prohibiting infected persons from entering the country or residing there, or both.  In a Statement to the World Health Assembly, the UNAIDS Secretariat stated that 10 countries "basically prohibit HIV positive people from entering or staying for any reason or length of time.” Twenty-nine countries will deport an HIV-positive person upon discovering their infection. In July 2008, the U.S. Government lifted the ban on travel and immigration to the United States by HIV-positive non-citizens. UNAIDS has taken an active stance on this issue, requesting that all countries rescind HIV-specific travel restrictions, because such restrictions are discriminatory. In the recent report they noted a decline in the number of countries, territories and areas  with HIV-related travel restrictions from 96 in 2000 to 45 in 2012.
 
 

[1] Tools for change. Applying United Nations standards to secure women’s housing, land, and property rights in the context of HIV, UN Commission on the Status of Women, 2009. Page 19.
[2] U.N. General Assembly Resolution A/RES/65/277. Political Declaration on HIV and AIDS: Intensifying Our Efforts to Eliminate HIV and AIDS, 10 June, 2011, p.13.
[3] More information at: Tools for change. Applying United Nations standards to secure women’s housing, land, and property rights in the context of HIV, UN Commission on the Status of Women, 2009. Page 36.
[4] More information at: Tools for change. Applying United Nations standards to secure women’s housing, land, and property rights in the context of HIV, UN Commission on the Status of Women, 2009. Page 24.
[6] UNAIDS Report on the Global AIDS Epidemic, 2012.
[7] Joint United Nations Programme on HIV/AIDS, 2008 Report on the global AIDS epidemic: Executive Summary.
[8] Joint United Nations Programme on HIV/AIDS, 2008 Report on the global AIDS epidemic: Executive Summary. 
[9] United States Department of State, 2008 Human Rights Report: Estonia.
[10] UNAIDS Report on the Global AIDS Epidemic, 2012.