UNAIDS Executive Director Michel Sidibé (left) met with Vice-President of Myanmar Dr Sai Mauk Kham on 26 October in Nay Pyi Taw. Credit: UNAIDS

The Vice-President of Myanmar, Dr Sai Mauk Kham, reconfirmed his government’s commitment to effective HIV programming during a meeting with UNAIDS Executive Director Michel Sidibé. The two leaders met in Nay Pyi Taw, the country’s capital, where they discussed the progress made by Myanmar in its AIDS response despite the enormous challenges faced by the country.

Vice-President Sai Mauk Kham highlighted that Myanmar is struggling with twin challenges—human resources capacity and funding. “Myanmar’s main obstacle is funding. We need US$ 340 million dollars for our response to HIV. Right now we have reached 50% of our target. We have to continue our efforts,” said Dr Sai Mauk Kham.

Unlike other low- and middle-income countries in Asia, Myanmar has received little international support during the past two decades. However, the country has still managed to make some progress in its national AIDS response. Around 216 000 people were living with HIV in Myanmar in 2011 with an HIV prevalence among the adult population estimated at 0.53%. Health authorities estimated that 8 500 new HIV infections occurred in 2011—a drop from 11 000 in 2008 and an estimated 32% of people living with HIV in need of treatment were accessing it, compared to just 12% in 2008.

“This is a transformative moment in Myanmar. Despite difficult times, Myanmar is managing to deliver results,” said Mr Sidibé. “UNAIDS will support Myanmar’s efforts to seize this window of opportunity and expand HIV programmes to make significant returns on investments.”

Since reform and political change have occurred in Myanmar, international donors are investing more in the country’s AIDS response. At the same time, the country is increasing its domestic budget for HIV. This month, the government announced that for the first time ever, Myanmar will dedicate funds to acquire antiretroviral drugs. The Ministry of Health is planning to spend its own resources on HIV treatment which will be distributed through the state health system.

Reforming laws

Mr Sidibé also met with Myanmar’s Attorney General Dr Tun Shin and called on his support to reform existing punitive laws which often date back to colonial times. Existing laws criminalizing same-sex sexual activities between consenting adults, sex work and drug use are hampering the AIDS response in the country.

UNAIDS Executive Director Michel Sidibé; and Myanmar’s Attorney General Dr Tun Shin. Credit: UNAIDS

“Our goal is universal access to HIV services but we face universal obstacles,” said Mr Sidibé. “Anything we can do to remove obstacles will be very supportive of the AIDS response. We will not reach zero discrimination without reforming laws,” he added.

Dr Shin explained that amending or drafting laws is a two-step process in Myanmar, with ministries in charge of initiating the legal reform in their area. Once the ministries have drafted the laws they come to his office for vetting and processing. Dr Shin said that it is important for the people of Myanmar and the international community to see that the government is serious about change through the reform of its laws. He assured Mr Sidibé that the Office of the Attorney General would support the efforts of UNAIDS in this area.

Nearly eighty countries have laws that criminalize same-sex sexual relations. UNAIDS Infographic: I am Gay--5 things I fear.

In many regions of the world, punitive laws and practices against lesbian, gay, bisexual and transgender and intersex (LGBTI)[1] individuals continue to block effective responses to HIV. A range of human rights violations have been documented, from denial of health services and freedom of association to harassment, violence and murder.

Last week, a youth organization in Cameroon is reported to have held an anti-LGBT rally; the news followed a series of arrests and detentions in recent years of Cameroonian men who have sex with men based on their sexual orientation.

In Zimbabwe, where sex between men is illegal, police officers arrested and later released 44 members of the organization Gays and Lesbians Zimbabwe (GALZ) on 11 August 2012 following the launch of a GALZ report documenting human rights violations of LGBT individuals.

In Europe, a report on the human rights situation of LGBTI people—published in May 2012 by the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe)—documented many cases of violence, hatred and discrimination against LGBTI people.

Studies in the United States, Canada, Europe and Australia have documented high levels of homophobic bullying in schools and lack of support from school authorities. A recent study conducted in the United States, for example, found that more than 84% of young LGBT learners had been called names or threatened, 40% had been pushed or shoved, and 18% had been physically assaulted at school.

Several cities in the Russian Federation recently passed laws prohibiting public information on sexual orientation and gender identity. Similar legislation is pending before the Ukrainian parliament. UNAIDS believes such laws discriminate against LGBT people by curtailing their freedoms of assembly and speech, threaten HIV outreach organizations supporting them, and may be used to justify homophobic bullying and violence.

A ‘climate of hate and fear’

Evidence and experience have shown that punitive laws and practices drive sexual minorities away from HIV services. A study conducted in Senegal, for example, found that prosecutions and harassment of LGBT individuals in 2008 led to “pervasive fear and hiding” among members of these groups. According to the study, some health providers suspended their HIV prevention work with men who have sex with men out of fear for their own safety; those who continued to provide health services noted a sharp decline in participation by men who have sex with men.

"Human rights violations based on people's real or perceived sexual orientation, gender identity or expression sanction the climate of hate and fear that keeps LGBTI people further in the closets,” said human rights advocate Joel Nana, Executive Director of the non-profit organization African Men for Sexual Health and Rights (AMSHeR). “Such violations discourage health-seeking behaviour, deny access to key health services and sustain the increasing incidence of HIV infection among men who have sex with men and transgender people," he added.

High HIV prevalence among men who have sex with men, transgender people

In many regions of the world, men who have sex with men and transgender people experience high HIV prevalence and low coverage of HIV prevention, treatment, care and support services.

Recent studies from sub-Saharan Africa show that HIV prevalence among men who have sex with men ranges from 6% to 31%. In Asia, the odds of men who have sex with men becoming infected with HIV are nearly 19 times higher than in the general population. In Latin America, an estimated half of all HIV infections in the region have resulted from unprotected sex between men.

Studies among transgender people have shown disproportionately high HIV prevalence ranging from 8% to 68%. Without access to HIV information and services free of fear, criminal sanction and homophobia, these trends cannot be addressed.

“World leaders are increasingly speaking out against discrimination and criminalization on the basis of sexual orientation and gender identity,” said Susan Timberlake, Chief of the Human Rights and Law Division at the UNAIDS Secretariat. “In launching its report in July, for example, the Global Commission on HIV and the Law issued a strong call for decriminalization of LGBT people and their protection in the context of the AIDS response.”

Some positive developments

Despite setbacks, there are some encouraging developments in favour of equality, non-discrimination and access to health services for sexual minorities.

On 12 July 2012, the President of Chile signed into law an anti-discrimination law that punishes hate crimes, including against LGBT people. Introduced some seven years ago, the adoption of the anti-discrimination law gained momentum following the brutal murder of Daniel Zamudio, a 24-year-old homosexual man.

On the International Day Against Homophobia and Transphobia, 17 May 2012, the European Region of Education International, the European Trade Union Committee for Education (ETUCE), the European Trade Union Confederation (ETUC) and ILGA-Europe committed to strengthen their collaboration to prevent and combat homophobia and transphobia at national and European levels in school, the workplace and society.

In February 2010, the Government of Fiji became the first Pacific Island nation to formally decriminalize sex between men. Fiji’s new Crimes Decree removes previous references to “sodomy” and “unnatural acts” and uses gender neutral language when referring to sexual offences.

In 2009, the High Court of Delhi held that criminalization of same-sex relations is unconstitutional and that it “pushes gays and men who have sex with men underground,” leaving them vulnerable to police harassment and impeding access to HIV services.

UN advocacy and action

In March 2012, the UN High Commissioner for Human Rights presented a report at the 19th session of the UN Human Rights Council documenting discriminatory laws and practices and acts of violence against LGBT individuals based on their sexual orientation and gender identity. The report called on all countries to decriminalize consensual same-sex relations and to ensure that individuals can exercise their rights to freedom of expression, association and peaceful assembly in safety and without discrimination.

At last year’s UN General Assembly High Level Meeting on AIDS, UN Member States committed to reviewing laws and policies that adversely affect the “successful, effective and equitable delivery of HIV services.” UNAIDS encourages all countries to translate this commitment into action to protect the human rights and health needs of LGBT people.

[1] The acronym “LGBTI” is used as an umbrella short-hand for groups and/or individuals whose sexual orientation or gender identity differ from heterosexuality and who may be subject to discrimination, violence and other human rights violations on that basis. Information and data presented in this article may not apply equally to all the groups represented by this acronym. [Back to top]

L to R: United States Congresswoman and member of the Global Commission on HIV and the Law, Barbare Lee; UNAIDS Executive Director Michel Sidibé; Deputy Secretary-General of the United Nations Jan Eliason; UNDP Administrator Helen Clark; and His Excellency Festus Mogae, former President of Botswana and member of the Global Commission on HIV and the Law.
Credit: D.Lowthian

The Global Commission on HIV and the Law launched its landmark report on 9 July 2012 at UN Headquarters in New York. The new report denounces the detrimental impact that punitive laws have on human rights and the HIV response and makes bold recommendations for addressing them.

“Never before has there been such an examination of the role of law in HIV,” said Festus Mogae, Former President of Botswana and member of the Commission. “What we have found is an epidemic of bad laws that is costing lives. We must end the epidemic of bad laws and enact laws based on evidence, common sense and human rights,” added Mr Mogae.

Stigma, discrimination and punitive legal approaches have long been recognized as barriers to the HIV response. They heighten vulnerability to HIV especially among key populations at higher risk of infection and make it difficult for individuals and communities to access HIV prevention, treatment, care and support services. UNAIDS has long called for the removal of punitive laws and their replacement with protective ones. Yet, countries across the world still maintain laws, policies and practices that infringe upon human rights, fuel discrimination and prevent global and national efforts to address HIV.

Speaking at the launch of the report, UNAIDS Executive Director Michel Sidibé noted that “the strength of this report is that it goes beyond a superficial description of stigma and discrimination to question the legal and structural fabrics that sustains inequality, injustice and human rights violations in the context of HIV”.

The report titled “HIV and the Law: Risks, Rights and Health” is a result of a two-year consultative process during which the Commission received more than 1 000 submissions from people affected by laws, law enforcement and access to justice issues in the context of HIV. The report took into account recommendations from 7 regional dialogues involving governments and civil society, and the input from a Technical Advisory Group of experts on HIV and the law.

Punitive laws increase risk of HIV infection

The Commission—an independent group of political and social leaders from around the world—pointed out that women in many parts of the world are governed by plural legal systems where traditional and customary law perpetuates their social and economic inequality. This situation makes women vulnerable to relationships and/or sexual violence which put them at risk of HIV infection. The Commission described the realities of many pregnant women living with HIV who face discrimination in health care including forced sterilization, even though simple and inexpensive medicine can prevent mother-to-child HIV transmission and keep mothers alive.

In the report, Commissioners called on governments to use the law to protect women from inequality and violence. They also urged governments to end legal barriers that prevent young people from accessing HIV information and services, as well as sexuality education—all necessary to avoid HIV infection.

The Commission also called for the removal of laws that criminalize people on the basis of their sexual orientation and gender identity, possession of drugs for personal use, and engagement in adult consensual sex work. It cited extensive evidence of how such criminal laws exacerbate risk of HIV infection among men who have sex with men, transgender people, people who use drugs and adults who sell and buy sex. According to the report, such laws drive people underground and into the margins of society away from health and HIV services. Furthermore, if convicted and sent to prison, the risks of contracting HIV, TB and Hepatitis C are very high because, in many countries, laws prohibit the provision of health and HIV prevention services and commodities in prisons.

Nick Rhoades from the Center of HIV Law and Policy spoke against the criminalization of HIV exposure and transmission, having himself been convicted in the United States of America, even though he had used condoms, had an undetectable viral load and did not transmit HIV. Citing the many HIV specific criminal laws, he said: “People have hands and can hit each other with their fists, but you don’t see a law specifically criminalizing a hand as a ‘deadly weapon’ like HIV is.” The Commission has called for the criminal law to be strictly limited to the malicious and intentional acts of actual transmission of HIV.

Participants at the launch highlighted how punitive legal approaches are undermining the investment in HIV prevention and treatment that is finally beginning to show the real possibility of halting and reversing the epidemic. They underlined that the persistence of punitive laws and practices is a serious concern at a time when the world has stabilized new HIV infections, increased its knowledge on effective HIV prevention and is preparing to harness the full potential of expanded HIV treatment. “It is outrageous that in 2012, when we have everything we need to beat this epidemic, we still must fight prejudice, discrimination, exclusion and bad laws,” said Mr Sidibé.

Law as an instrument to protect individuals

Commissioners at the launch underlined that there are many positive examples of countries that have used the law as an instrument to protect individuals, to create an environment that addresses stigma and violence thus encouraging access to HIV services. Other countries have used the law to challenge overly broad and stringent intellectual property regimes to reduce the cost of essential HIV medicines and to ensure their availability including through the production of generics.

“Law reform is complex, but countries can do much more,” said UNDP Administrator Helen Clark. “The task before us is to ensure better laws are adopted and enacted,” she added.

The Commission and its work have started dialogues across the world on issues that are difficult, controversial and complex. They are also issues that are central to human dignity, health and social justice. These dialogues are part of what Governments committed to do in the 2011 Political Declaration on AIDS where they pledged to review laws and policies that “adversely affect the successful, effective and equitable delivery of HIV services and consider their review”.

“We now have a powerful tool for advocacy and engagement to ask governments to uphold human rights for all people vulnerable to HIV,” said Ebony Johnson of the Athena Network. “This report should not be shelved.”

The Global Commission on HIV and the Law is an independent body, convened by the United Nations Development Programme (UNDP) on behalf of the Joint United Nations Programme on HIV/AIDS (UNAIDS). The Commission was supported by a Technical Advisory Group, which reviewed and analyzed existing public health and legal evidence and also commissioned original analysis. Additional information on the Commission, its processes and work is available at www.hivlawcommission.org.

In Sub-Saharan Africa, the region most heavily affected by HIV, legal, policy and social barriers, including stigma, discrimination, gender inequality and the criminalization of key populations at higher risk of HIV infection, continue to make people vulnerable to HIV and hamper the ability of individuals, communities and states to respond to the epidemic. This was the conclusion of the Regional Dialogue for sub-Saharan Africa, part of the Global Commission on HIV and the Law, held at the beginning of August in Pretoria, South Africa.

No taboo should be left unchallenged 

A significant breakthrough came from the pledge of participants to highlight and discuss all aspects of the legal environment relating to HIV, including laws and practices related to stigma and discrimination, access to affordable treatment, children and adolescents, women’s rights and gender-based violence.

“This regional dialogue is a great opportunity for us, as Africans, to confront the difficult issues including discriminatory and punitive laws that target sex workers and men who have sex with men, and other populations vulnerable to HIV,” said Bience Gawanas, African Union Commissioner for Social Affairs.

The criminalization of drug use, sex work and same-sex sexual relations was also confronted by the participants in a bid to challenge all taboos. This is remarkable as recent punitive legal and policy developments in a number of countries in sub-Saharan Africa  relating to the situation of members of key populations has raised concerns about the readiness of stakeholders in the region to confront this issue. Some 31 countries in the region criminalize sex work, and same-sex sexual relations constitute a criminal offence in at least 30 countries.

Legal and policy barriers act as obstacles to HIV responses in Africa

This regional dialogue is part of a series of seven consultations organized in all regions of the world to inform the Commission on the laws, policies and practices that represent barriers to effective responses to HIV. The Global Commission on HIV and the Law, launched by UNDP and UNAIDS in June 2010, was set up to make recommendations for possible means to address these barriers.

Recognizing the opportunity offered by the Commission to review and explore remedies to these challenges, civil society and government representatives came together from all parts of the region. 

“To be effective in the AIDS response we need to address the needs of the millions of Africans who because of fear, prejudice, entrenched legal, cultural and social values and norms do not have access to HIV services or cannot live full and dignified lives,” said Sheila Tlou, Regional Director of the UNAIDS Regional Support Team for Eastern and Southern Africa.

Holding governments accountable to commitments made

In the Political Declaration on HIV/AIDS, unanimously adopted during the June 2011 United Nations General Assembly High Level Meeting on AIDS, all 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.” During the dialogue, representatives of people living with HIV, sex workers and men who have sex with men called upon parliamentarians, members of the judiciary, and other key government officials in the region to fulfil this commitment.

So far the dialogues of the Global Commission on HIV and the Law have been held in six regions, with the only outstanding session, which will focus on ’High Income Countries’, scheduled to take place on 16-17 September 2011 in the United States.

Following this consultation process, the Global Commission on HIV and the Law will develop actionable, evidence-informed and 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 findings will be announced in December 2011.

The UK charity National AIDS Trust (NAT) launched a report on 4 August 2011, entitled Estimating the likelihood of recent HIV infection – implications for criminal prosecution, which explores the validity and meaning of the Recent Infection Testing Algorithm HIV tests, or RITA tests, within the context of criminal prosecutions of HIV transmission. 

The report, primarily aimed at professionals working in the criminal justice system and HIV specialists who may be called on as expert witnesses in criminal HIV transmission cases, calls for caution about the potential use of RITA results to determine timing of HIV infection. 

About RITA and its potential use in criminal law context

RITA tests estimate the likelihood that a person found to be HIV-positive has been infected recently, usually within the previous six months. To date, the United Kingdom is the only country reported to routinely return RITA results to newly diagnosed patients.

As criminal law in the UK allows for the prosecution of people for transmitting HIV to another person, the report underlines the importance that RITA tests and their limitations be fully understood and not misused in criminal proceedings. The report underlines that while there have been no reported instances of use of RITA results in courts to attempt to prove timing of HIV transmission and consequently the identity of the person who transmitted HIV, this may happen in the near future.

No test can conclusively state when an individual acquired HIV

“No scientific test is able to conclusively state when an individual acquired HIV,” said Dr Cate Hankins, Chief Scientific Adviser to UNAIDS. “It is important to be cautious, follow clear protocol, and understand the limitations of RITA results when delivering them to patients or using them within a criminal law context.”

According to the report, proving HIV transmission in the context of criminal law cases requires the use of a combination of scientific evidence, medical records and testimony to establish the facts, timing and direction of HIV transmission. 

“Scientific advances such as RITA testing are extremely welcome when estimating the recency of HIV infection on a population level, especially as late diagnosis is a huge issue,” said Ms Deborah Jack, Chief Executive of National AIDS Trust. “However, it is crucial that the limitations of RITA tests are fully understood and are not used out of context, for example during criminal proceedings.”

As RITA tests are designed to work at the population level (based on averages) rather than at the individual level, taking into account significant rates of false RITA test results in individuals, the report draws the conclusion that RITA tests are not reliable as evidence of recent HIV infection for individuals in the context of criminal proceedings.

Better understanding of HIV science in the context of criminal law

The NAT report comes weeks ahead of an expert meeting on the scientific, medical, legal and human rights aspects of the criminalization of HIV transmission and exposure organized by UNAIDS in Geneva from 31 August to 2 September 2011.

The meeting will bring together leading scientists and medical experts on HIV together with legal and human rights experts. Participants will examine relevant scientific and legal evidence and concepts relating, among others, to harm, risk, intent and proof, and their conceptualization/application in the context of criminalization of HIV exposure and transmission.

The meeting is part of UNAIDS’ work towards halving the number of countries with punitive laws and practices around HIV transmission, sex work, drug use, or homosexuality that block effective AIDS responses by 2015.

Former UN Secretary-General Kofi Annan (left), UNAIDS Executive Director Michel Sidibé (centre) and Hon Sarah Wescot-Williams, Prime Minister of St Maarten. Credit: UNAIDS

At the 10th annual general meeting of the Pan-Caribbean Partnership Against HIV and AIDS (PANCAP), held in St Maarten, Netherlands Antilles, UNAIDS Executive Director Michel Sidibé joined former UN Secretary-General Kofi Annan and Caribbean leaders to take stock of progress, challenges and lessons learned in the regional response to the HIV epidemic over the past decade.

In his remarks at the opening of the meeting, Mr Sidibé congratulated leaders across the region for keeping HIV high on the development agenda and highlighted the critical role that PANCAP can play in accelerating the HIV response. “PANCAP is the tool for helping us make the call for social justice in the Caribbean,” he said.
According to a new UNAIDS report, The Status of the HIV epidemic in the Caribbean, there were between 210 000 and 270 000 people living with HIV in the Caribbean in 2008. Haiti and the Dominican Republic account for about 70% of all people living with HIV in the region. In the English-speaking Caribbean, Jamaica is the country most affected by the epidemic, with an estimated 27 000 people living with HIV.

The report cites a number of achievements in the regional HIV response. More than 90% of pregnant women in 11 Caribbean countries are now tested for HIV every year. About 52% of pregnant women receive services for the prevention of mother-to-child transmission of HIV, which led to an 18% reduction in new HIV infections among children in 2008.
Governments across the region provided antiretroviral treatment to 51% of people in need in 2008—up from just 1% in 2004.  Greater access to antiretroviral treatment is saving lives: since 2001, AIDS-related deaths have dropped by about 40% in the region.

Criminalization of homosexuality

Two-thirds of countries in the Caribbean continue to criminalize homosexuality. Where homophobia is institutionalized in the law, stigma and discrimination against men who have sex with men is pronounced. Homophobia blocks access to HIV prevention programmes and impacts the quality of care for people living with HIV.

“Imagine yourself as a gay man in such an environment. How confident would you feel about getting an HIV test, or asking for information on prevention or treatment?” asked Mr Sidibé. “Homophobia hurts wherever it haunts—from classrooms to courtrooms,” he added.

HIV prevention not reaching key populations

Among men who have sex with men, HIV prevalence varies from an estimated 6.1% in the Dominican Republic to 32% in Jamaica. HIV prevalence among female sex workers—another key affected population in the region—varies from 2.7% in the Dominican Republic to 27% in Guyana.
According to the UNAIDS report, HIV prevention programmes reach less than 40% of men who have sex with men and less than 50% of female sex workers in the region. Meeting participants agreed that expanding HIV services for those most vulnerable to infection would be critical to an effective regional HIV response.

Sex workers, government officials and UN representatives joined the first-ever Asia-Pacific regional consultation on HIV and sex work. Credit: APNSW

HIV transmission via sex work accounts for many new HIV infections  in the Asia-Pacific region. Yet in many countries HIV prevention, treatment and care services for sex workers are lacking. At the first consultation of its kind in the region, sex workers, government officials and United Nations participants emphasized the urgent need for action to increase focus on sex work within national HIV responses.

“I was arrested when the police saw I had condoms.” “Sex workers’ rights are being violated.” “Sex workers are going underground now. We don’t know where they are.”

These are just some of the experiences shared at the first-ever Asia-Pacific consultation on HIV and sex work, held in Pattaya, Thailand, from 12-15 October. Some 150 participants from eight countries* in the region—including sex workers, government officials, representatives from civil society and the United Nations—came together to call for a greater emphasis on ensuring universal access to HIV prevention, treatment, care and support services for sex workers.

Hosted by the Royal Government of Thailand and co-organized by UNAIDS and UNFPA, in collaboration with the Asia-Pacific Network of Sex Workers (APNSW), meeting participants shared strategies and developed national action plans to be carried forward.

Sex work accounts for a significant number of new HIV infections in the Asia–Pacific region. An estimated 10 million Asian women sell sex to 75 million men who, in turn, have intimate relations with an additional 50 million people. In some countries in the region, HIV prevalence among sex workers is nearly 20%. Meet participants stressed that spending on HIV services is falling, despite evidence of their cost-effective impact and that only about one third of sex workers in the region are able to access HIV prevention programmes.

Khartini Slamah of APNSW moderates a discussion on legal and policy barriers. Credit: APNSW

Meeting participants also pointed to numerous punitive laws and policies that can prevent sex workers from accessing HIV services. “Sex workers experience firsthand the effects of laws and harmful enforcement practices that violate their human rights and hamper progress in the HIV response,” said Jan Beagle, UNAIDS Deputy-Executive Director, Management and External Relations, who attended the consultation. “Listening to sex workers is crucial.”

Participants in the consultation heard how sex workers are frequently subjected to violence and harassment, and often face criminal charges and detention. Participants said enforcement of elements within new anti-trafficking and other related laws in some countries including Cambodia, Fiji and Thailand had exacerbated this situation, citing recent cases where carrying condoms had led to arrests.

“Every day we confront brutal realities—arrest, violence, discrimination,” said Kay Thi Win, Chair of APNSW and programme manager of a successful and long-running outreach programme in Myanmar that is largely run by sex workers or former sex workers. “We want to turn the tide by demanding that initiatives designed ‘for’ us be designed ‘with’ us,” she said.

*Cambodia, China, Fiji, Indonesia, Myanmar, Pakistan, Papua New Guinea and Thailand

The AIDS epidemic has raised new and complex legal and human rights challenges leading to judicial rulings on matters related to HIV that have become part of the jurisprudence of many countries. Through interpretation of national constitutions, legislation and international human rights treaties, the judiciary has sometimes had a transformative and beneficial impact on the national response to HIV and on the public perception of HIV.

Enabling jurisprudence has emerged in countries as diverse as Australia, Botswana, Brazil, India, Iran, Kenya, Namibia, South Africa, United Kingdom, United States of America and Venezuela. This includes judgments on employment law, access to education, medical insurance, treatment in prisons, segregation, confidentiality, access to medicines, and the rights of prisoners. Through a well-informed, evidence-based and protective application of the law, the judiciary can create the type of legal and social environment necessary to halt and roll back the AIDS epidemic; to provide access to justice to those affected; and to achieve national commitments to attain universal access to HIV prevention, treatment, care and support.

Beyond the court, members of the judiciary are leaders in their communities and societies who should be engaged in the response to HIV. Their stance, attitudes and behaviour towards HIV-related issues, people living with HIV and members of most at risk populations can help shape social attitude towards these populations. Members of the judiciary can challenge stigma and discriminatory practices against people living with HIV and members of key populations both inside the court and within the community at large.

However, in the quickly evolving area of scientific, medical and legal issues related to HIV epidemic, there has been little opportunity for judges to take stock of epidemiological and scientific developments. Nor has role of members of the judiciary as agents of justice and protectors of human rights been fully explored or used to address vulnerability to HIV and ensure human rights protection for all in the context of the epidemic.

Recognising the potential and actual role of the judiciary in the AIDS response, UNAIDS is committed to supporting the judiciary, including in the following areas:

• Providing opportunities for continuing education and discussion among the judiciary on recent developments in the HIV response and their legal implications
• Supporting judges to make the courts more accessible to all people affected by HIV
• Stimulating rights-based and evidence-informed standard-setting on pertinent HIV-related legal and human rights issues by and for members of the judiciary
• Creating opportunities for members of the judiciary to exchange with key stakeholders of the HIV response, including people living with HIV, women affected by HIV, and members of key populations at higher risks.

UNAIDS’ support to judiciary leadership is guided by its commitment to working with key national and international actors towards the removal of “punitive laws, policies, practices, stigma and discrimination that block effective responses to AIDS”, as affirmed in the UNAIDS Outcome Framework 2009-2011

UNAIDS sees members of the judiciary as key stakeholders in supporting and enforcing a protective legal environment to the HIV response.

According to Susan Timberlake, Senior Human Rights and Law Advisor at UNAIDS, “Through the courts, judges can  uphold non-discrimination based on HIV status, protect women and  key populations  from violence and denial of services, and overturn  punitive laws that violate human rights in the context of the epidemic.”

As part of the efforts to engage the judiciary in the HIV response a groundbreaking meeting of eminent African jurists was held in Johannesburg, South Africa in December 2009 to discuss HIV and the law in the 21st century.

This year human rights and law will be in the spotlight at the 5th Francophone Conference on AIDS held in Casablanca, Morocco from 28 to 31 March 2010. Credit: UNAIDS/P.Virot

This year human rights and law will be in the spotlight at the 5th Francophone Conference on AIDS held in Casablanca, Morocco from 28 to 31 March 2010. The conference is taking place against a backdrop of continuing discrimination and human rights infringement of people living with HIV across the world. There are reports of harassment, prosecution of and violence against people living with HIV in several francophone countries.

However, leaders and policy makers are increasingly recognising the importance of addressing the legal and policy environment as a fundamental component of national AIDS responses. This is particularly true for populations such as men who have sex with men, prisoners, sex workers and people who use drugs whose marginalisation hinder their access to HIV-related services.

Countries are taking action. Guinea, for example, recently amended its HIV law of 2005 to remove any restriction to access HIV-related services for children and to ensure access to HIV-related prevention, treatment, care and support for populations including men who have sex with men. Similar processes are ongoing in Togo, Benin and Sierra Leone.

In East Africa, UNAIDS is currently supporting the development of a regional Bill on HIV which would protect people against HIV-related stigma and discrimination and other human rights abuses in the context of the HIV epidemic.

In order to help support the current initiatives aimed at ensuring access to HIV-related services as well as access to justice in the context of the HIV epidemic in francophone countries, UNAIDS, UNDP, the African Council of AIDS Service Orgnizations (AfriCASO), the Association Marocaine de Solidarité et Développment (AMSED), International Development Law Organization (IDLO), and the International HIV/AIDS Alliance are organising a preconference meeting on 28 of March which will focus on strengthening and expanding HIV-related legal services in the region.

The meeting will bring together lawyers, advocates, representatives of people living with HIV and representatives of key populations at higher risk to share their experiences and discuss ways to increasing HIV-related support for those who need it most.

“Analyses in many countries reveal the existence of punitive laws and law enforcement that drive people away from HIV-related services,” said Susan Timberlake, UNAIDS Senior Human Rights and Law Adviser. “It is critical to support law reform as well as access to justice through legal services to create a legal environment that will support people to access HIV-related services. To respond effectively to HIV, we need to protect, not punish, with the law.”

UNAIDS believes that a protective legal environment is critical for an effective response to HIV. In 2009 UNAIDS strengthened its focus on the removal of punitive laws, policies, practices, stigma and discrimination that block effective responses to AIDS by making it one of ten key priority areas outlined in the UNAIDS Outcome Framework 2009-2011 (Joint action for results: UNAIDS outcome framework, 2009 - 2011).

On Tuesday 30 March UNAIDS together with UNDP will be holding a symposium event on the legal environment to the AIDS response in Francophone countries during the Conference themed “HIV and the Law: addressing the barriers and realising Universal Access.”

UNAIDS Executive Director Michel Sidibé met with UN Human Rights Council President Ambassador Martin Uhomoibhi on 11 March 2009 at UNAIDS Secretariat, Geneva.
Credit: UNAIDS

UNAIDS Executive Director Michel Sidibé met with UN Human Rights Council President Ambassador Martin Uhomoibhi on 11 March. The Tenth Session of the Human Rights Council is currently taking place in Geneva.

A progress report from the United Nations Secretary-General on HIV and human rights has been submitted to the Tenth Session of the Human Rights Council which is taking place in Geneva from 2-27 March 2009.

The report notes some advances in recent years, but it also underlines that “a number of human rights challenges remain, which pose barriers to achieving universal access to HIV prevention, treatment, care and support.” These include stigma and discrimination; legal and policy barriers to accessing HIV-related services, including harm reduction services; and human rights violations against women and girls, men who have sex with men, sex workers, people who use drugs, and prisoners.

UNAIDS Executive Director meets UN Human Rights Council President

UNAIDS Executive Director Michel Sidibé hosted a meeting with UN Human Rights Council President Ambassador Martin Uhomoibhi on 11 March. They discussed the importance of raising the profile of HIV in the work of the Council, and mobilising leadership to address difficult human rights issues that stand in the way of universal access to prevention, treatment, care and support.

The UNAIDS Executive Director spoke of the vital importance of paying attention to human rights to protect the most vulnerable in the AIDS epidemic.

Mr Sidibé added that communities and individuals most affected by AIDS have to remain at the centre of all efforts – locally, nationally and globally and that civil society must be supported to stand by those most affected and amplify their voice.

UNAIDS Statement to the Human Rights Council

On 4 March the UNAIDS Secretariat addressed the Human Rights Council during its High Level Segment, underlining that the commitment that governments made to universal access by 2010 is a critical human rights imperative. The statement, delivered by Senior Human Rights and Law Adviser Susan Timberlake, noted that gains in recent years mean that nearly 4 million people are on antiretroviral treatment today, and numbers of new infections are falling. “If we build on momentum, universal access is a goal within reach.”

UNDP took the floor of the Council during the presentation of the report on HIV and human rights. It called on governments to promote an enabling legal environment in order to achieve universal access by 2010, including by repealing laws that discriminate against and criminalise men who have sex with men, sex workers and people who use drugs. It also stressed concern over the inappropriate criminalisation of HIV transmission and exposure in a number of countries, and the risk that such actions will undermine public health efforts to increase uptake of HIV testing and access to HIV prevention, treatment and care services.

The next session of the Human Rights Council will take place in June 2009