Punitive laws

Elizabeth Mataka, UN Special Envoy for HIV/AIDS in Africa.
Credit: UNDP

If more women are to avoid HIV infection, laws on inheritance and property rights should be revisited, revised or better enforced. This was one of the key messages emerging from a high-profile side-event on women’s inheritance, land and housing rights in the context of HIV, which took place yesterday, 12 March, during the 53rd session of the Commission on the Status of Women held at UN Headquarters in New York.

The discussion brought together a range of speakers including Elizabeth Mataka, UN Special Envoy for HIV/AIDS in Africa and Rose Gawaya, Senior Gender Adviser of the UNDP HIV/AIDS Practice based in Johannesburg, South Africa. The event focused on reviewing innovative work that has been done to increase women’s access to, control over, and ownership of land and housing in a bid to mitigate the impact of AIDS. Realistic and workable strategies, from the grassroots to international level, were explored.

Ms Mataka highlighted the increased vulnerability of women due to AIDS and called on governments to harmonise often conflicting laws and legislation. She said “Lack of equal rights for women to inheritance and property excludes women from accessing resources that would help reduce their vulnerability to HIV and improve their ability to cope with the consequences of the epidemic.”

The issue of such rights for women is of critical importance in addressing HIV. When a woman’s husband dies from AIDS, she might lose her home and land, inheritance and livelihood. This can leave her in a situation where she is forced to enter into relationships and behaviours that render her more vulnerable to the virus. The panellists contended that when women have enhanced access to ownership and control of land and property rights they have a greater range of choices, are far more able to exercise autonomy and, ultimately, are better able to protect themselves.

As well as the revision or implementation of existing laws on inheritance, the panellists recommended increased access to information and legal experts, enhanced partnerships among organizations working in the area and strengthened networks to raise awareness of the issues, with a focus on grassroots women as critical drivers of change. They also suggested greater use of the media and creative ways of sharing and packaging messages, while highlighting the need to increase the scope of research.

Other participants in the panel included: Jeanmarie Fenrich, Fordham Leitner Centre for International Law and Justice; Seodi White, Women and Law in Southern Africa (Malawi); Esther Mwaura, GROOTS Kenya, Huairou Commission; and Anne Gathumbi, Open Society Initiative for East Africa, Law and Health Initiative.

This event was organized by UNDP, the Huairou Commission and Soros/OSI with support from UNAIDS, GROOTS, ICRW, COHRE, Fordham Law Leitner Center and WLSA Malawi.

Credit: Jacky Ly

Social issues like gender inequality, violence against women and the criminalization of activities like sex work, injecting drug use and same sex intercourse are factors that can make people more vulnerable to HIV infection. To discuss the challenges of social drivers, UNAIDS Secretariat, UNESCO and the Social Change Communication Working Group held a satellite session at ICASA on Sunday 7 December.

“Programmes to address these social or “structural” factors that make people more vulnerable to HIV take time to produce results. It is urgent that they be adapted to communities’ local needs and be implemented, evaluated, and continuously improved as core parts of national AIDS strategies, operational plans and budgets,”  said Barbara de Zalduondo, UNAIDS Chief Division of programmatic priorities support.

Barbara de Zalduondo, UNAIDS Chief Division of programmatic priorities support. Credit: Jacky Ly

UNAIDS consultations in more than 120 countries in 2006 revealed that many obstacles to effective HIV programmes are down to social, legal and political reasons rather than strictly technical ones. Gender inequality and violence against women is a large factor. As is the approach of criminalization of activities such as sex work, injecting drug use and same sex intercourse. The persistence of HIV-related stigma and other violations of human rights are also obstacles.

These social challenges are not new. Although well documented for over two decades, all too often they are not addressed by concrete programmes on a large enough scale in national and sub-national responses to AIDS.

For this reason, the ICASA session brought together experts who have designed, implemented, and measured successful programmes to address gender inequality, sexual violence, HIV related stigma and discrimination and other violations of human rights in multiple African contexts. The experts illustrated programme approaches which go beyond building individual knowledge and motivation to also tackle laws, policies and social norms.

The satellite session was an opportunity for HIV programme planners and and community advocates and donors to discuss effective HIV programming.

Participants shared examples of programmes that are catalyzing and supporting change in harmful social norms, which they can consider for application or adaptation at home.

Experts also exchanged information on existing tools for measuring HIV related stigma and discrimination, gender inequitable norms, and concurrent sexual partnerships. Also, programme examples and evaluation methods and data, were shared and discussed.

The 15th International Conference on AIDS and STIs in Africa (ICASA) closes today in Dakar. Over the last few days, hundreds of African and international delegates have held discussions on HIV developments and trends in the region.

The International Planned Parenthood Federation (IPPF) launched on 13 November 2008 a new report Verdict on a Virus: Public Health, Human Rights and Criminal Law.

The International Planned Parenthood Federation (IPPF) launched on 13 November 2008 a new report Verdict on a Virus: Public Health, Human Rights and Criminal Law. The aim of the publication is to provide information about the criminalization of HIV transmission or exposure and its related health, human rights and legal implications.

The report brings together opinions from legal experts, human rights groups, medical and health professionals and HIV activists. Ten questions around the criminalization of HIV transmission are explored as chapters which also provide answers followed by explanatory text and illustrated with case studies.

Verdict on a virus is also a call to action to advocate for “good strategies and laws” that promote HIV prevention, while working with governments to discourage and prevent new laws criminalizing transmission of HIV from being passed.

“The law can be a powerful tool in addressing HIV if it is used to empower those vulnerable to HIV infection and to its impact, by guaranteeing access to services and protecting people from discrimination and the sexual violence that can drive HIV vulnerability,” said Susan Timberlake UNAIDS Senior Advisor, Human Rights and Law. “We need to make scarce legal resources work for the HIV response, not against it,” she added.

As Justice Cameron explained at a lecture at Peking University Law School, from his perspective, the law serves two important functions. Credit: UNAIDS/Zhou Dao

During his recent trip to Beijing as a guest of UNAIDS, Justice Edwin Cameron of South Africa’s Supreme Court of Appeals used every opportunity to raise the question, “What role can the law play in China in response to HIV?”

As Justice Cameron explained at a lecture at Peking University Law School, from his perspective, the law serves two important functions. First, it is an embodiment of public morality. Second, the law constrains the exercise of government power. In both these capacities, the law can have a profound impact on the lives of people living with HIV.

For example, in South Africa, the 1995 Labor Relations Act prohibits pre-employment testing for HIV. Justice Cameron applauds the law because it guides social conduct to be consistent with the moral stance underlying the law. “There are very few legitimate reasons to deny someone work because of HIV status,” said Justice Cameron.

The most important Chinese law embodying public morality about HIV is State Council Decree 457 of 2006, which prohibits discrimination against people living with HIV. Although this law sets a vital standard for Chinese society, public awareness of the law is low. As former Minister of Health Wang Longde explained at a joint press conference with Justice Cameron, even medical professionals often don’t know that they are not permitted to discriminate against HIV positive individuals. Professor Wang called for an educational campaign for medical professionals.

While Decree 457 is a good law that faces some implementation challenges, other laws are less positive. At a round table discussion held at UNAIDS China offices during Justice Cameron’s visit, he described the disturbing trend in African countries of laws criminalizing HIV transmission. Some of these laws require HIV positive individuals to disclose their status prior to engaging in sexual contact, but without clarifying when a person must disclose, or what constitutes “sexual contact.”

In Justice Cameron’s analysis, while these laws are intended to protect people — a laudable motivation — they can have devastating public health consequences. First, the laws are not effective as a means of stopping transmission; no law can accomplish that. As Justice Cameron explained, most acts of transmission occur between individuals who do not know they are HIV positive.

Second, the laws increase stigma and discourage people, especially women, from getting tested. Under some of these laws, women can incur legal liability for exposing their unborn child to HIV, even if transmission doesn’t occur. Many women and men find remaining ignorant about their HIV status preferable to risking criminal prosecution. Ultimately, by discouraging people from getting tested and seeking treatment for HIV, these laws lead to more people dying needlessly.

Justice Cameron pointed out that, ironically, these laws are unnecessary. In the event that anyone deliberately transmits HIV to another person, existing laws of assault or murder would apply.

China doesn’t have any laws that specifically criminalize transmission of HIV. But one article of the Chinese law does criminalize the intentional transmission of a sexually-transmitted disease (STD) by sex workers, and another law criminalizes intentionally causing harm to another person. Some critics have pointed out that the STD law has caused some sex workers to stop getting health check-ups. Justice Cameron commented that, although China’s criminal laws appear to have some negative ramifications for public health, the laws were general, and were not targeted to HIV specifically.

In recent years, there has been an apparent increase in the number of people prosecuted for transmitting HIV, particularly in Europe and North America, with cases now numbering in the hundreds in the English-speaking world alone. There is also an increase in laws that criminalize HIV transmission and exposure to the virus, as reported in sub-Saharan Africa, Asia, and Latin America and the Caribbean.

As early as 1996, UNAIDS and the Office of the UN High Commissioner for Human Rights expressed concern over the inappropriate and overly broad application of criminal law to HIV transmission and provided guidance on it in the International Guidelines on HIV/AIDS and Human Rights. In 2002, UNAIDS issued a more detailed policy options paper on the subject. However, in light of growing concern over the spread of such laws, UNAIDS and UNDP felt it necessary to recently publish a policy brief entitled “Criminalization of HIV transmission”.

Intentional transmission of HIV

The policy brief makes specific recommendations for governments, civil society and international partners, urging that criminalization be limited to cases of intentional transmission of HIV. While UNAIDS and UNDP acknowledge that use of the criminal law may be justified in these limited circumstances – i.e. where a person knows his or her HIV positive status, acts with the intention to transmit HIV, and does in fact transmit it – they are concerned that going beyond such cases risks applying criminal sanctions to people who are not actually blameworthy, further stigmatizes people living with HIV, and creates disincentives for mutual responsibility for sexual health and to finding out one’s HIV.

The policy brief highlights concerns about possible negative impacts on effective prevention of HIV transmission, problematic disclosure and partner notification provisions, miscarriage of justice, as well as the possible negative impact on women and girls.

International Consultation on the Criminalization of HIV Transmission

In November 2007, the UNAIDS Secretariat and UNDP hosted an “International Consultation on the Criminalization of HIV Transmission” in order to consider recent developments in the area. The meeting brought together diverse points of view but also a shared concern over the apparent trend of criminalizing HIV transmission. An in-depth report from the three-day meeting has been released, giving an overview of the discussions, summary of the main issues and conclusions by the participants who included parliamentarians, members of the judiciary, criminal law experts, civil society representatives and people living with HIV, alongside representatives of WHO, ILO and the Office of the UN High Commissioner for Human Rights.

The report also includes the summary provided by Justice Edwin Cameron, judge of the Supreme Court of Appeal, South Africa.

“What meeting participants underlined was the fact that laws criminalizing HIV exposure and transmission are a dangerous and ineffective ‘sideshow’ in the response to AIDS,” said Susan Timberlake, Senior Human Rights and Law Adviser, UNAIDS Secretariat.

“Criminal law will never do the work of comprehensive and evidence-informed HIV prevention programmes. In fact, widespread criminalization may set back prevention efforts by deterring people from learning their HIV status, disclosing it to partners, and accessing treatment.”

No evidence that the use of criminal law reduces transmission of HIV

The main reasons advanced for applying criminal law are either punishment for someone who has caused harm or to deter risky behaviours that lead to HIV transmission.

However, there is no evidence that the use of criminal law is an effective measure for reducing transmission of HIV, and experts are concerned that criminalization is likely to have a negative impact on the overall response to HIV, including HIV prevention.

Potential negative impacts of use of criminal law

For fear of prosecution, people may be more reluctant to get tested and find out about their HIV status, as a perceived “legal defense”. Such laws and the reporting of individual cases in the media risk undermining the public health message that it is best to take responsibility for your own protection, rather than rely on a legal obligation of HIV positive people to disclose their status.

Criminalization may also create distrust in relationships with health service providers as courts might subpoena medical records in court cases. Finally, though many of these laws appear to have been passed as a “measure to protect women”, many experts fear that these laws will actually be disproportionately applied to women living with HIV. Women are often the first to find out their status and cannot tell their partners for fear of violence or abandonment. They also are less likely to have access to legal counsel than men.

For these and other reasons, many experts are concerned that the potential adverse consequences for both public health and human rights far outweigh any perceived benefits that could arise from an increased and overly broad application of criminal law to HIV transmission.

The International Task Team on HIV-related Travel Restrictions concluded its third meeting with draft recommendations towards the elimination of HIV-specific restrictions on entry, stay and residence. In the coming months, these will be finalized and presented to the boards of the Global Fund and UNAIDS this November and December.

Restricting entry, stay or residence in a country due to HIV positive status alone is discriminatory, and in today’s highly mobile world, such restrictions have even greater impact on people living with HIV. In 2008, some 67 countries continue to have such restrictions.

In early 2008, UNAIDS set up an international task team of governments, civil society groups and international organizations to bring the issue of HIV-related travel restrictions back onto the agenda and promote action towards their elimination. Co-chaired by UNAIDS and the Government of Norway, the Task Team met for the first time in Geneva in February 2008, followed by a second meeting at the Office of the UN High Commissioner for Human Rights in Geneva in April, and the third and final meeting in Madrid at the headquarters of the World Tourism Organization (UNWTO).

At the third meeting, the Task Team took
stock of all the advocacy and activities
conducted by Task Team members against
travel restrictions and noted that there
indeed is much greater momentum toward
their elimination. Credit: UNAIDS

The third meeting, which took place from 24-26 June, was opened by Francisco Elías de Tejada Lozano, former Spanish Ambassador to the Global Fund, Spanish Ministry of Foreign Affairs, and Francesco Frangialli, Secretary-General of UNWTO. Frangialli underlined that travel restrictions based on HIV status are discriminatory, and are a major concern to the entire tourism sector.

“HIV is not something that transmits through the air. If there are going to be restrictions, they have to be rational and reflect legitimate public health concerns. For HIV, what’s needed is prevention information and dialogue,” said Frangialli.

At the third meeting, the Task Team took stock of all the advocacy and activities conducted by Task Team members against travel restrictions and noted that there indeed is much greater momentum toward their elimination.

For example, civil society groups conducted significant advocacy leading up to the High-Level Meeting on AIDS at the UN General Assembly in June. At that meeting, both UN Secretary-General Ban Ki-Moon and UNAIDS Executive Director Peter Piot called for the end of HIV-related travel restrictions in their speeches at the opening session of the General Assembly. “Stigma and discrimination around AIDS remain as strong as ever: and in this context I join my voice with the Secretary General and I call on all countries to drop restrictions on entry to people simply because they are living with HIV,” said Dr Piot.

Task Team members also underlined during the third meeting that ongoing awareness-raising is needed, and that the Task Team’s work has to be followed by intense country-level action that leads to the elimination of travel restrictions.

“At this point in the epidemic, with over 25 years of experience, it’s hypocrisy if there’s no change and governments say that they’re committed to ending stigma and discrimination,” said Craig McClure, Executive Director of the International AIDS Society.

Susan Timberlake, Task Team Co-chair and Senior Human Rights and Law Adviser at UNAIDS, stated that more effort is needed to ensure that tourists, migrants and other mobile populations are addressed in national AIDS responses.

“Countries need to understand that any HIV vulnerability related to mobility is not just about tourists and migrants, it is also about nationals, entering, departing and re-entering. If governments really want to reduce HIV vulnerability related to mobility they should ensure that all mobile people benefit from appropriate HIV programmes and services. In the era of Universal Access and increasing globalization, no comprehensive AIDS response should leave out people on the move,” she said.

Restrictions on the entry, stay and residence of people living with HIV will be highlighted during a Special Session at the International AIDS Conference in Mexico this August, as well as the Global Forum on Migration and Development in the Philippines in October. The final recommendations of the Task Team will be presented in a report at the next meeting of UNAIDS Programme Coordinating Board in December 2008 and to the board of the Global Fund of Fight AIDS, TB and Malaria in November.

Anand Grover, head of the HIV/AIDS
Unit of Lawyer’s Collective (India)
and a member of the UNAIDS
Reference Group on HIV and
Human Rights

Anand Grover, head of the HIV/AIDS Unit of Lawyer’s Collective (India) and a member of the UNAIDS Reference Group on HIV and Human Rights, has been appointed the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health by the UN Human Rights Council.

A well-known long-time advocate and activist on HIV and human rights, Anand Grover is a practicing lawyer in the Bombay High Court and the Supreme Court of India. He has argued many cases relating to the rights of people living with HIV, including rights of sex workers and the first HIV case in India relating to employment law.

Mr. Grover has worked closely with UNAIDS on HIV-related rights and law issues for many years and has been a valuable resource for the Programme. In this regard, he has served on the UNAIDS Reference Group on HIV and Human Rights which advises UNAIDS on how it can strengthen the commitment and capacity of governments, civil society and the private sector to protect and promote human rights in relation to HIV. At the request of the Government of India, Anand Grover and the Lawyers Collective HIV/AIDS Unit drafted the HIV Bill which is likely to be introduced in Parliament this year.

Mr Grover takes over from Paul Hunt, who has been the Special Rapporteur since the mandate was created in 2002 and has completed his maximum term of six years. Paul Hunt is also a member of UNAIDS Reference Group on HIV and Human Rights. In his country visits and reports to the Human Rights Council, Mr Hunt has been a great champion of human rights issues related to HIV.

Susan Timberlake, UNAIDS Senior Human Rights and Law Adviser, believes that UNAIDS engagement with Special Rapporteurs is an important way to bring greater attention to HIV-related human rights issues globally and in countries.

“We are delighted at the appointment of Anand Grover to UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. A tireless HIV and human rights activist, he will no doubt continue the pioneering work of his predecessor Paul Hunt. We look forward to working closely with him to help ensure the full realization of the human rights and fundamental freedoms that are critical to a successful response to HIV.”

Special Rapporteurs

Special Rapporteurs are independent experts that serve in their personal capacity, supported by the Office of the UN High Commissioner for Human Rights (OHCHR). They undertake country missions at the invitation of a country or on the basis of a standing invitation. During such country missions, they assess the general human rights situation, as well as specific issues under their respective mandates. They meet with national and local authorities, including judges and parliamentarians; the national human rights institution; the UN and other inter-governmental agencies; the media and victims of human rights violations.

On the basis of their findings, they present conclusions and recommendations through public reports to the UN Human Rights Council, and to the concerned governments. Special Rapporteurs also have a mandate to take up individual cases of human rights violations which they address directly to the Minister of Foreign Affairs in a country.

More information about the mandate of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (including reports of country missions and summaries of communications to governments) can be found on the OHCHR web site

In 1990, the World Health Assembly approved the 10th Edition of the International Classification of Diseases (World Health Organization) on May 17, which established that sexual orientation (heterosexual, bisexual or homosexual), on its own, would no longer “be considered as a disorder”. For this reason May 17 is used to mark the International Day against Homophobia.

Of the 192 member states of the United Nations, 85 have laws that criminalize homosexual behaviour. In some of these countries, conviction can result in the death penalty.

The criminalization of homosexuality fuels discrimination and can force people to hide their sexuality for fear of prosecution. Where people cannot live openly with their sexual orientation, the risk of HIV infection and the impact of AIDS are greatly enhanced as people may be too afraid to access HIV prevention or treatment services. This is compounded where human rights violations on the basis of sexual orientation and gender identity are widespread. These violations include violence, vilification, arbitrary arrests, forced HIV tests, and discrimination.

In many cases—particularly where political or social leaders deny the existence of same sex sexuality or criminalize it—HIV services tailored to their needs are absent altogether from national responses to AIDS.

Infection rates remain disproportionately high among men who have sex with men. “To reduce HIV incidence among this group, as well as protect their human rights, we have to confront, condemn, and eradicate homophobia” said Susan Timberlake UNAIDS Senior Advisor, Human Rights and Law.

UNAIDS works with governments, civil society and the media to fight homophobia and other forms of stigma and discrimination directly and indirectly related to HIV.

The meeting identified challenges,
opportunities and ways to ensure the
incorporation of human rights and gender
issues in the adoption and amendment of
HIV-related legislation.

In adopting the Declaration of Commitment on HIV/AIDS in 2001 at the UN General Assembly Special Session on HIV/AIDS, Governments have fully recognized the importance of protecting human rights and gender equality through appropriate legal frameworks in national responses to HIV.

The enactment of laws that incorporate the protection of human rights and gender enable those vulnerable to HIV infection to access HIV prevention and also allow those living with HIV to be free from discrimination and human rights abuses. However, insufficient attention is often paid in national responses to HIV to the reform of discriminatory law or to working with Parliaments, judges and police to ensure appropriate enforcement of law. The result is that human rights abuses in the form of discrimination, gender inequality and violence against women, and violations of confidentiality and privacy continue to increase vulnerability to HIV infection and represent a barrier to effective responses to HIV.

In recognition of these concerns, UNAIDS in collaboration with UNDP, UNICEF, UNFPA, UNIFEM, WHO, AWARE/USAID, OSIWA, ECOWAS, OHCHR and the African and Arab Parliamentarian Forum, has held two workshops one in July 2007 and one from 16 – 18 April 2008 in Dakar to assist countries to consider where they stand on developing legislative frameworks in the response to HIV and how to ensure the best possible legislation.

Although the law cannot make HIV prevention or treatment happen - only sufficient HIV programmes and services can - the law can create an environment to empower people with knowledge, social support and protection from discrimination so behaviour change and access to HIV prevention, treatment and care can happen without negative consequences.

Some of the aspects of the Ndjamena Law
that were debated among the participants
involved mandatory HIV testing,
confidentiality or disclosure of HIV
information, the criminalization of HIV
transmission, and the rights of women and
other vulnerable groups.

In 2004, the African and Arab Parliamentarians Forum for Population and Development adopted the “Ndjamena Law” on the prevention, care and control of HIV.  This was a flexible and adaptable legal instrument that States could use to guide their legislation development process according to their legal, social, political and cultural environment. The law contained many positive aspects, but it has also become clear that some provisions in the Ndjamena Law could be substantially improved in order to best meet two of the critical concerns in the response to AIDS: that of protecting public health and that of protecting human rights.

Participants at the April 2008 workshop represented 15 West and Central Africa countries and included parliamentarians, human rights specialists, jurists, civil society members including people living with HIV and representatives of National AIDS Councils. The meeting identified challenges, opportunities and ways to ensure the incorporation of human rights and gender issues in the adoption and amendment of HIV-related legislation.

Some of the aspects of the Ndjamena Law that were debated among the participants involved mandatory HIV testing, confidentiality or disclosure of HIV information, the criminalization of HIV transmission, and the rights of women and other vulnerable groups.

Participants at the April 2008 workshop
represented 15 West and Central Africa
countries and included parliamentarians,
human rights specialists, jurists, civil
society members including people living
with HIV and representatives of National
AIDS Councils.

UNAIDS and other partners recommended several documents developed since the promulgation of the Ndjamena law that can be used as guidance in order to amend HIV-related legislation in accordance to international legal standards and to ensure that the language used to enact the law does not promote human rights abuses.  These documents include the Political Declaration on HIV/AIDS (2006), the International Guidelines on Human Rights and HIV, Consolidated Version (2006), Taking Action against HIV, Handbook for Parliamentarians (2007) and “UNAIDS Recommendations for Alternative Language in the Ndjamena Legislation on HIV” (2008).

Participants agreed that the process of incorporating human rights and gender in HIV related legal frameworks underlines the need to develop legal measures not as tools for coercion but as instruments to empower people through respect of their human rights. Punitive or coercive legal measures exacerbate already existing HIV stigma and discrimination and drive people away from HIV prevention and treatment programmes, thus undermining the effectiveness of national responses to the epidemic.

“Protecting the rights of people living with HIV does not mean less protection for other members of the community. On the contrary, protecting the rights of people living with HIV and members of vulnerable groups promotes access to HIV prevention, care and support services which benefit the whole community and make for a more effective response to HIV,” said Dr Meskerem Grunitzky-Bekele, Director of the UNAIDS Regional Support Team for West and Central Africa.

Since the beginning of the HIV epidemic, governments and the private sector have implemented travel restrictions with regard to HIV positive people wishing to enter or remain in a country for a short stay (e.g. business, personal visits, tourism) or for longer periods (e.g. asylum, employment, immigration, refugee resettlement, or study).

The international task team on HIV-relate
travel restrictions met for the first time in
Geneva on 25-26 February. The meeting
was co-chaired by UNAIDS and the
Government of Norway.

UNAIDS has set up an international task team to heighten attention to the issue of HIV-related travel restrictions (both short-term and long-term) on international and national agendas and move towards their elimination.

The international task team met for the first time in Geneva on 25-26 February. The meeting, co-chaired by UNAIDS and the Government of Norway, brought together representatives of governments, inter-governmental organizations and civil society, including the private sector and networks of people living with HIV.

According to data collected by the European AIDS Treatment Group, a total of 74 countries have some form of HIV-specific travel restrictions, 12 of which ban HIV positive people from entering for any reason or length of time. The most common reasons used are to protect public health and to avoid possible costs associated with care, support and treatment of people living with HIV.

Whatever the reason, HIV-related travel restrictions raise fundamental issues regarding the human rights of non-discrimination and freedom of movement of people living with HIV in today’s highly mobile world.

In the year 2000, the World Tourist Organization estimated that there were 698 million international arrivals world-wide. The majority of these people are travelling for short periods of time, e.g. for tourism, business, conferences, family visits. With regard to longer-term mobility, the International Organization for Migration (IOM) estimates that some 175 million migrants currently live and work outside their country of citizenship, i.e., 2.9 per cent of the world’s population.

HIV -related travel restrictions usually take the form of a law or administrative instruction that requires people to indicate their HIV-free status before entering or remaining in a country. Some countries require people to undergo an HIV test whereas others require an HIV-free certificate or simply that people declare their HIV status.

Testing under such circumstances is akin to mandatory testing, and in many instances is done without appropriate pre and post-test counselling or safeguards of confidentiality. Any HIV testing should be done voluntarily and on the basis of informed consent.

The personal impact of HIV-related travel restrictions can be devastating for the individual seeking to immigrate, to gain asylum, to visit family, to attend meetings, to study, or to do business. The candidate immigrant, refugee, student or other traveller may simultaneously learn that s/he is infected with HIV, that s/he may not be allowed to travel, and possibly that his/her status has become known to government officials, or to family, community, and employer, exposing the individual to possibly serious discrimination and stigma.

For those already in a receiving country, they may face summary deportation without due process of law and protection of confidentiality. Under such circumstances, there is every incentive to hide or deny one’s HIV status and to avoid contact with immigration authorities and health care workers. Both immigration controls and public health efforts are thereby undermined, while individuals are cut off from prevention, assistance and, perhaps, needed health services.

“Travel restrictions based on HIV status
again highlight the exceptionality of AIDS,
especially short-term restrictions," said
UNAIDS Executive Director Dr Peter Piot.

“Travel restrictions based on HIV status again highlight the exceptionality of AIDS, especially short-term restrictions," said UNAIDS Executive Director Dr Peter Piot. "No other condition prevents people from entering countries for business, tourism, or to attend meetings. No other condition has people afraid of having their baggage searched for medication at the border, with the result that they are denied entry or worse, detained and then deported back to their country", he added.

While recognizing that control of a country’s borders and matters of immigration fall under the sovereign power of individual States, national laws and regulations should ensure that people living with HIV are not discriminated against in their ability to participate equally in international travel, in seeking entry or stay in a country that is not their own. The International Guidelines on HIV/AIDS and Human Rights state that any restriction on liberty of movement or choice of residence based on suspected or real HIV status alone, including HIV screening of international travellers, is discriminatory.

Besides being discriminatory, travel restrictions have no public health justification. HIV should not be considered to be a condition that poses a threat to public health in relation to travel because, although it is infectious, the human immunodeficiency virus cannot be transmitted by the mere presence of a person with HIV in a country or by casual contact.

Restrictive measures can in fact run counter to public health interests, since exclusion of HIV-positive non-nationals adds to the climate of stigma and discrimination against people living with HIV, and may thus deter nationals and non-nationals alike from coming forward to utilize HIV prevention and care services. Moreover, travel restrictions may encourage nationals to consider HIV a “foreign problem” that has been dealt with by keeping foreigners outside their borders, so that they feel no need to engage in safe behaviour themselves.

Travel restrictions do not have an economic justification either. People living with HIV can now lead long and productive working lives, a fact that modifies the economic argument underlying blanket restrictions: concern about migrants’ drain on health resources must be weighed with their potential contribution. Furthermore, the continued expansion of treatment programmes towards Universal Access by 2010, and the sustained fall in the cost of treatment in low- and middle-income countries dispels the myth that the travel of a HIV positive person would drive up the cost of health care systems abroad.

The creation of an International Task Team on HIV-related Travel Restrictions is a critical opportunity to heighten attention to the issue of HIV-related travel restrictions on international and national agendas and move toward their elimination.

Developing Specific Recommendations for Positive Change

The Task Team will generate concrete
recommendations on specific actions that
different stakeholders can take to move
towards the elimination of HIV-related
travel restrictions.

The International Task Team comprises two working groups which focus on short-term and long-term restrictions, supported and guided by a Steering Committee. The Working Groups and the Steering Committee of the Task Team will meet four times before August 2008, when its final recommendations will be presented at the International AIDS Conference in Mexico. The Task Team will generate concrete recommendations on specific actions that different stakeholders (government, civil society, intergovernmental organizations and the private sector) can take to move towards the elimination of HIV-related travel restrictions. The Task Team will focus on key strategic actions that:

1. Increase attention to the issue of HIV travel restrictions internationally, regionally and nationally
2. Influence governments that have HIV-related travel restrictions relating to entry and short-term stay to remove such restrictions; and
3. Spur longer term action to move towards the elimination of all HIV-specific travel restrictions.

In developing these recommendations, the Steering Committee will be supported by the Working Groups which will be requested to undertake:

1. A critical mapping of the current situation related to the use of short-term and long-term HIV-related travel restrictions
2. An analysis of the obstacles to eliminating the different types of HIV-related travel restrictions and possible actions by various national and international stakeholders to support this elimination, and
3. Recommendations on best practice regarding the entry and stay of people living with HIV in different contexts of mobility and migration.

Recommendations will support the principles of non-discrimination and the Greater Involvement of People Living with HIV and rational HIV-related policies for travellers, migrants and mobile populations in sending and receiving countries – in the context of efforts to achieve universal access to HIV prevention, treatment, care and support, as agreed by governments at the High Level Meeting on AIDS (2006).

The International Task Team on HIV-related Travel Restrictions will hold its next meeting on 31st March – 2nd April in Geneva.