Punitive laws

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.

Human rights and its links to reaching the goal of universal access to HIV prevention, treatment, care and support was central to the discussions of the eighth meeting of the UNAIDS Reference Group on HIV and Human Rights, an independent advisory body to UNAIDS, that took place on 3-5 December 2007 in Geneva.

“The most critical issues in the HIV response are human rights issues, and UNAIDS [needs to] frontline these to push the HIV response towards universal access to HIV prevention, treatment, care and support,” said Reference Group Chair Mark Heywood when he summarized the Group’s conclusions to UNAIDS Deputy Executive Director (Programme) Michel Sidibe.

The Group – which includes HIV activists, lawyers, a High Court judge, people living with HIV, people working with sex workers and drug users, academics and the UN Special Rapporteur on the Right to Health – addressed a range of issues, including accountability for universal access commitments, human rights in the context of sex work and drug use, promotion of gender equality in national HIV responses.

Recent trends of criminalizing HIV transmission were also discussed. The Reference Group expressed its concern about the tendency of parliaments to criminalize HIV transmission and highlighted an increasing conflict between the push to help people get tested for HIV in order to get HIV treatment and the move to prosecute people who transmit HIV. It asked that UNAIDS empower its staff to work against this trend and urge governments to put in place the kind of laws that will really help stop the transmission of HIV: laws to protect the equality of women and to protect them against violence, laws to protect people living with HIV against discrimination, and laws to ensure sufficient programmes for HIV prevention for all populations groups in need of them.    

The Reference Group also expressed concerns about reports of mandatory HIV testing. “We fully support the scale up of testing and counselling services as a human rights imperative, but providers must do so in a way that is based on dignity,” Heywood said in his summary report to UNAIDS. The Reference Group called for greater monitoring of this issue, as well as advocacy and technical assistance to ensure that mandatory testing practices are put to an end.

UNAIDS Deputy Executive Director, Michel Sidibe underlined the important role of UNAIDS staff in country – across the co-sponsored, joint UN programme – as human rights advocates. “AIDS will remain if we don’t deal with the human rights issues,” he said.

“All of our staff should be human rights oriented. We know that human rights must be at the basis of programmes that address the realities of those most vulnerable and those most affected by HIV,” he added.

He noted that much more work needs to be done to make HIV programmes respond to the local dynamics of the epidemic.

“Priority setting in national responses has generally not addressed the major challenges – the major vulnerabilities, issues of stigma, discrimination, gender inequality, and other human rights violations. We need better situation analysis, better understanding of the contextual factors, and we have to act on that information,” Sidibe said.

Justice Edwin Cameron, Supreme Court of
Appeal, South Africa highlighted the
importance of public health strategies as an
alternative to the criminalization of HIV
transmission.

Several countries have recently introduced laws to criminalise HIV transmission, or exposing another person to the virus. A number of jurisdictions have used general laws against serious bodily harm in cases where someone is accused of knowingly transmitting HIV or willingly exposing others to HIV transmission.

Subject of controversy, these measures are sparking debate and concern among policymakers, legal and public health professionals, international organizations and civil society, on whether criminal law is applicable in such cases and if such application is accomplishing or damaging public health goals such as universal access to HIV prevention, treatment, care and support.

Addressing these issues, UNAIDS brought together a range of stakeholders in Geneva for a three-day international consultation (31 October – 2 November) to discuss the apparent trend of criminalization of HIV transmission in the context of national responses to AIDS.

The purpose of the consultation, co-hosted by the UNAIDS Secretariat and UNDP, was to foster dialogue and provide an opportunity to reach an understanding of what constitutes appropriate application of criminal law to HIV transmission, if at all, given public health and human rights imperatives. Participants in the meeting 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.

Consultation participants expressed concern about the apparent rise in the number of cases in which people living with HIV have been criminally charged for transmitting HIV, or engaging in acts that risk transmitting HIV. In some cases, criminal charges have been laid for conduct that is “perceived” as risking transmission, but where no real risk exists, and sometimes with very harsh penalties imposed. Participants also expressed concern that there are jurisdictions moving to enact or amend legislation specifically to criminalize transmission and exposure. While noting that many legislators may be acting out of good intentions, consultation participants stated clearly that such laws are not an effective way of dealing with the transmission of HIV.

“Like in the early years of the epidemic when I declared that we have now ‘HIL – Highly Inefficient Laws’, when there were the proposals for testing everyone in society, we now have a new wave of HIL. And it’s a wave that’s coming particularly in Africa, but also in other parts of the world,” stated Justice Michael Kirby, judge in the High Court of Australia, in the concluding session of the consultation.

While little is known about the impacts of criminalizing HIV transmission, many are concerned that it may have a negative impact on the uptake of HIV testing and access to HIV prevention, treatment and care services. Sensational media reports can exacerbate stigma and discrimination, and jeopardize HIV prevention strategies currently in place. “Applying criminal law to HIV transmission has a heightened role in stigmatizing HIV, it is ineffective and public health strategies are better used to advance HIV prevention,” said Justice Edwin Cameron, Supreme Court of Appeal, South Africa.

Furthermore, there is also concern that criminal proceedings may compromise basic civil rights such as the right to privacy, especially among the most vulnerable populations. Some legislators and women’s rights groups think such laws will protect women from HIV infection, but as Susan Timberlake, UNAIDS Human Rights and Law Advisor noted, “There is great concern that in fact these laws would hurt women most, as it is women who first find out their status and thus will be first subject to prosecution.  Laws to ensure women’s equality inside and outside marriage would protect them more than laws criminalizing HIV transmission.”

Recommendations from the meeting will inform the finalization of UNAIDS’ policy position and other guidance documents on the criminalization of HIV transmission. “A clear message from the meeting was that criminal law is a very blunt tool to deal with HIV,” said Seema Paul, UNAIDS Chief of Policy Coordination. “The real goal of policy makers is preventing new infections but, in fact, criminalizing HIV transmission – excepting in a very small sub-set of cases dealing with retributive justice – will create disincentives for learning about one’s HIV status and accessing health and other services,” she added.

Homophobia is posing a critical challenge to
moving the AIDS response forward.

Widespread homophobia is posing a critical challenge to the AIDS response in many countries around the world. The International Day Against Homophobia (May 17) shines a spotlight on the urgent need for joint efforts to reduce and end discrimination, violence and criminalization based on sexual orientation.

Men who have sex with men, women who have sex with women and transgender people are all too often faced with stigma, discrimination and violence. These malevolent acts are contributing to the spread of HIV by creating an environment of isolation and exclusion which is preventing people from seeking vital HIV-related information and health services.

Today, around 85 member states of the United Nations consider homosexuality a criminal act and a small number of these countries carry the death penalty. The criminalization of homosexuality instigates widespread fear and shame, forcing people to hide their sexuality, often living in traditional partnerships and practicing in secret for fear of prosecution. Where people cannot live openly and disclose their sexuality the risk of HIV infection is often greatly enhanced as people are too afraid to access HIV prevention services for fear of repercussions or, as is the case in many countries, those services simply don’t exist.

For UNAIDS, the decriminalization of homosexuality and the eradication of violence against sexual minorities has been underlined as fundamental for progress within the AIDS response. At an international consultation on male sexual health held in New Delhi, India in September 2006, UNAIDS’ Director of Policy, Evidence and Partnerships, Purnima Mane stressed, "We have to ensure that homosexuality is decriminalized everywhere, and that homophobia, discrimination and violence against sexual minorities and women are made illegal and socially unacceptable,” she said.

However, progress is being seen, a number of governments are now advocating for the rights of homosexuals, in compliance with numerous international standards such as the Universal Declaration of Human Rights or the Charter of the United Nations.

Since Brazil first presented the draft resolution to the United Nation’s Commission on Human Rights in 2003, advocating against any kind of discrimination based on the ground of sexual orientation or gender identity, over 50 countries have publicly supported this agreement. But still more needs to be done.

“We have to face homophobia in bold and innovative ways. We all know that as long as a society is homophobic there is no way that there can be an effective AIDS response for men who have sex with men [and other sexual minorities]," said Purnima Mane.

Venezuela celebrates ‘A Day Against Homophobia’

Each year, HIV awareness raising activities take place around the world on the International Day Against Homophobia. In Venezuela, UNAIDS is taking part in one such activity by promoting the "Guide on human rights, health and HIV: a strategic guide to prevent and fight discrimination due to sexual orientation or gender identity". This document was prepared by the International Centre for Technical Cooperation on HIV/AIDS, UNAIDS and the Horizontal Group of Technical Cooperation and was recently launched at the IV Latin American and Caribbean Forum on HIV/AIDS held in Buenos Aires.

Venezuela ’s "Day Against Homophobia" celebrations will take place in Merida, a western Andean city that hosts one of the most active and solid Venezuelan civil society networks, the “Merida League Against HIV and AIDS”.

As well as the distribution of the guide, UNAIDS and the Merida League will hold an interactive workshop that will cover basic concepts on sexuality, sexual human rights, and vulnerability to HIV.

“This is the second year in a row that Venezuela celebrates the International Day against Homophobia with activities that raise awareness on this important issue.  In accordance with regional initiatives, the launching of this guide, particularly among youth, will promote respect and tolerance towards the gay, lesbian and transsexual community,” said UNAIDS Country Coordinator Venezuela Libsen Rodríguez-Adrian.

Links:

Read Press Release ( en | sp )

Guide on human rights, health and HIV: strategic guide to prevent and fight discrimination due to sexual orientation or gender identity ( sp )

Read the State of Homophobia, ( en | sp ) published by the International Lesbian and Gay Association (ILGA), or visit their website at http://www.ilga.org/

Watch ILGA's video "A Day Against Homophobia" (mpeg, 3,840kb)

Read the Yogyakarta Principles ( en )

Read the International human rights references to human rights violations on the grounds of sexual orientation and gender identity

GENEVA, 31 July 2013—The Joint United Nations Programme on HIV/AIDS (UNAIDS) expresses deep concern over the reintroduction of a Sanitary Decree in Greece that could lead to infringements of human rights and prevent people from accessing HIV services.

There is no evidence that punitive approaches—particularly those that single out members of key populations––are effective in responding to HIV. On the contrary, such measures deter people most affected by HIV from accessing lifesaving HIV prevention and care services.

Initially introduced in April 2012, the Sanitary Decree allows for “specific control” and “screening” measures against sex workers, migrants and people who use drugs. Shortly after the Decree was introduced a number of sex workers were arrested, detained, tested for HIV, prosecuted and their photographs published.

The Sanitary Decree was repealed in April 2013; however, the government reintroduced the Decree in June this year. UNAIDS is very concerned that the reintroduction of this legislation, with the same provisions, could serve to justify actions that violate human rights.

UNAIDS urges the Greek authorities to repeal the Sanitary Decree and initiate dialogue with health experts, civil society organizations and other relevant stakeholders to develop appropriate evidence-informed and rights-based public health regulations. All people—including sex workers and their clients, people who use drugs, migrants and asylum-seekers—should have access to voluntary and confidential HIV services and be protected against discrimination.

UNAIDS

The Joint United Nations Programme on HIV/AIDS (UNAIDS) leads and inspires the world to achieve its shared vision of zero new HIV infections, zero discrimination and zero AIDS-related deaths. UNAIDS unites the efforts of 11 UN organizations—UNHCR, UNICEF, WFP, UNDP, UNFPA, UNODC, UN Women, ILO, UNESCO, WHO and the World Bank—and works closely with global and national partners to maximize results for the AIDS response. Learn more at unaids.org and connect with us on Facebook and Twitter.

GENEVA, 26 August 2011—The Joint United Nations Programme on HIV/AIDS (UNAIDS) applauds a decision by the Government of Fiji to lift its restrictions on entry, stay or residence based on HIV status. With this reform—officially announced today by the President of Fiji at an AIDS conference in South Korea—Fiji joins a growing list of countries that are aligning national HIV legislation with international public health standards.

“This is a clear breakthrough in our efforts to secure the global freedom of movement for people living with HIV,” said UNAIDS Executive Director Michel Sidibé. “Restrictions that limit movement based on HIV-positive status only are discriminatory and violate human rights,” he added.

In Fiji, as elsewhere in the Asia Pacific region, increased action on AIDS is showing results and the AIDS epidemic is stabilizing. However, new HIV infections still outpace the number of people starting treatment, and stigma and discrimination pose serious obstacles to progress.

After the removal of Fiji’s restrictions, UNAIDS counts 47 countries, territories, and areas that continue to impose some form of restriction on the entry, stay and residence of people living with HIV based on their HIV status. At least, 128 countries have no such restrictions.

GENEVA, 27 January 2011— UNAIDS expresses grave concern over the killing of David Kato, a prominent gay activist and human rights defender in Uganda.

“I am deeply saddened by the loss of Mr Kato,” said Michel Sidibé, UNAIDS Executive Director. “I urge the Government of Uganda to conduct a thorough investigation into his death, as well as to ensure adequate security for its lesbian, gay, bisexual and transgender citizens.”

Mr Kato was a primary school teacher and a leading voice against Uganda’s Anti-Homosexuality Bill. Sex between men is considered illegal under Uganda’s existing laws. The United Nations including UNAIDS and many development partners have called on the Ugandan Parliament to drop the bill and to decriminalize same-sex behaviour.

Mr Kato’s death comes days after the High Court of Uganda ruled that Uganda’s constitution protects the right to dignity and privacy for all Ugandans regardless of their sexual orientation. Specifically, the court ruled that inciting violence against people based on their sexual orientation threatens their right to human dignity.

This ruling came from a case against a local publication that had published a photograph of Mr Kato and others, urging citizens ‘to hang them because of their sexual orientation’. UNAIDS denounces homophobia and actions that incite violence against individuals and communities.

Some 80 countries or areas around the world have laws that make same-sex behaviour a criminal offence. UNAIDS believes that such laws are discriminatory and create obstacles for people accessing HIV services.

 
Michel Sidibé, UNAIDS Executive Director and Helen Clark, UNDP Administrator launch HIV and the Law commission.
Credit: UNAIDS

Geneva, 24 June 2010 – The United Nations Development Programme (UNDP), with the support of the UNAIDS Secretariat, launched the Global Commission on HIV and the Law today. The Commission’s aim is to increase understanding of the impact of the legal environment on national HIV responses. Its aim is to focus on how laws and law enforcement can support, rather than block, effective HIV responses.

The Global Commission on HIV and the Law brings together world-renowned public leaders from many walks of life and regions.  Experts on law, public health, human rights, and HIV will support the Commissions’ work. Commissioners will gather and share evidence about the extent of the impact of law and law enforcement on the lives of people living with HIV and those most vulnerable to HIV.  They will make recommendations on how the law can better support universal access to HIV prevention, treatment, care and support. Regional hearings, a key innovation, will provide a space in which those most directly affected by HIV-related laws can share their experiences with policy makers. This direct interaction is critical. It has long been recognized that the law is a critical part of any HIV response, whether it be formal or traditional law, law enforcement or access to justice. All of these can help determine whether people living with or affected by HIV can access services, protect themselves from HIV, and live fulfilling lives grounded in human dignity.

Nearly 30 years into the epidemic, however, there are many countries in which negative legal environments undermine HIV responses and punish, rather than protect, people in need. Where the law does not advance justice, it stalls progress. Laws that inappropriately criminalize HIV transmission or exposure can discourage people from getting tested for HIV or revealing their HIV positive status. Laws which criminalize men who have sex with men, transgender people, drug-users, and/or sex workers can make it difficult to provide essential HIV prevention or treatment services to people at high risk of HIV infection. In some countries, laws and law enforcement fail to protect women from rape inside and outside marriage – thus increasing women’s vulnerability to HIV.

At the same time, there are also many examples where the law has had a positive impact on the lives of people living with or vulnerable to HIV.  The law has protected the right to treatment, the right to be free from HIV-related discrimination in the workplace, in schools and in military services; and has protected the rights of prisoners to have access to HIV prevention services.  Where the law has guaranteed women equal inheritance and property rights, it has reduced the impact of HIV on women, children, families and communities.

With more than four million people on life-saving treatment and a seventeen per cent decrease in new infections between 2001 and 2008, there is hope that the HIV epidemic is at a turning point.  To reach country’s own universal access targets and the Millennium Development Goals (MDGs), persistent barriers like punitive laws and human rights violations will need to be overcome.

UNDP Administrator Helen Clark believes that the next generation of HIV responses must focus on improving legal, regulatory, and social environments to advance human rights and gender equality goals. “Some 106 countries still report having laws and policies present significant obstacles to effective HIV responses. We need environments which protect and promote the human rights of those who are most vulnerable to HIV infection and to the impact of HIV, and of those living with HIV/AIDS,” Helen Clark said.

Michel Sidibé, UNAIDS Executive Director has made removing punitive laws a priority area for UNAIDS. “The time has come for the HIV response to respond to the voice of the voiceless,” he said. “We must stand shoulder to shoulder with people who are living with HIV and who are most at risk. By transforming negative legal environments, we can help tomorrow’s leaders achieve an AIDS-free generation.”

The Global Commission on HIV and the Law is being supported by a broad range of partners and stakeholders, including donors such as the Ford Foundation and AusAID. Murray Proctor, Australia’s Ambassador on HIV, expressed strong support for the Commission and the work it is tasked to do. “We commend UNDP and the UNAIDS programme for courageously taking this work forward, and we welcome the opportunity to contribute and support.”

The Commission’s work will take place over an 18 month period –mobilizing communities across the globe and promoting public dialogue on how to make the law work for an effective response to HIV. The findings and recommendations of the Commission will be announced in December 2011.

GENEVA/BEIJING, 27 April 2010 –UNAIDS applauds the decision by the Government of China to lift its national travel ban for people living with HIV. The news comes ahead of the opening of Shanghai Expo 2010, an international fair that is expected to attract millions of visitors over the next six months.

“I commend President Hu Jintao for China’s decision to remove travel restrictions based on HIV status,” said United Nations Secretary-General Ban Ki-moon. “Punitive policies and practices only hamper the global AIDS response. I urge all other countries with such restrictions to remove them as a matter of priority and urgency.”

UNAIDS strongly opposes any laws that restrict movement based on HIV-positive status only; such restrictions are discriminatory and do not prevent HIV transmission or protect public health. Further, travel restrictions have no economic justification, as people living with HIV can lead long and productive working lives.

“Every individual should have equal access to freedom of movement — regardless of HIV status,” said Michel Sidibé, UNAIDS Executive Director. “This is yet another example of China’s leadership in the AIDS response.”

Fifty one countries, territories, and areas currently impose some form of travel restriction on the entry, stay and residence of people living with HIV based on their HIV status; five countries deny visas to people living with HIV for even short-term stays; and 23 countries deport individuals once their HIV-positive status is discovered.

In January 2010, the United States of America removed its long-standing HIV-related entry, stay and residence restrictions. Several other countries, including Namibia and the Ukraine, have recently pledged to take steps to remove such restrictions.