[Dear subscribers, continuing with our cross-post of UNDP's e-discussion on taking recommendations of the Global Commission on HIV and the Law forward, below is the a wrap-up message of phase 1 and a launch message for phase 2. We hope you're finding the discussion thus far interesting and useful.] 

E-discussion - Start of phase two: Opportunities and strategies to address challenges and to further advance the recommendations of the Global Commission on HIV and the Law

[Facilitator’s note: Please find below a message from Suki Beavers, guest moderator of the e-discussion on “The Global Commission on HIV and the Law – Taking the Commission’s Recommendations Forward” to wrap up phase 1 of the discussion; and a message from Vivek Divan and Michaela Clayton, guest moderators of phase 2 of the e-discussion, launching the second part of the discussion. Responses to the discussion can be posted online here, or alternatively via email to Kindly note that the discussion platform is publicly accessible. This e-discussion is organized by UNDP’s HIV, Health and Development-Net and the Network for UNDP’s Partnership with the Global Fund, and cross-posted on the UN Human Rights Policy Network – HuriTALK, DGP-Net, Gender-Net, the Asia Pacific Community of Practice on HIV, Gender and Human Rights (HIV-APCoP), the joint United Nations Initiative on Mobility and HIV/AIDS in South East Asia (JUNIMA), the UNICEF HIV/AIDS Community of Practice, the Interagency Task Team HIV and Young People Community of Practice and the Global Commission on HIV and the Law mailing list. Thank you.]

Suki Beavers, guest moderator during phase 1 of the e-discussion:

The first phase of this e-discussion resulted in the identification of a substantial number of activities, challenges, and good practices related to advancing the recommendations of the Global Commission on HIV and the Law. Broader experiences and achievements in advancing human rights based responses to HIV and gender equality and women’s empowerment, both predating and complementing the work of the Commission were also highlighted.

A sincere thank you to all those who contributed, including colleagues from: Bahrain, Botswana, Cameroon, China, DRC,  El Salvador, Honduras, Indonesia, Jamaica, Kenya, Malawi, Myanmar, Nigeria, Papua New Guinea, Philippines, Tanzania, Thailand, Ukraine, Zambia, from the UNDP Bratislava, Bangkok and Pacific Regional Centers, and from HQ based UN staff.

Activities to support implementation of the recommendations of the Global Commission on HIV and the Law and complementary activities:

In many countries, law reform efforts have resulted in the repeal of punitive laws and/or discriminatory provisions, and in the enactment of laws that respect, protect and fulfill the rights of people living with HIV (PLHIV).  However, challenges remain and much more needs to be done, both to further strengthen legal frameworks in line with international human rights standards, and to advance the non-discriminatory implementation of a wide range of laws. The importance of comprehensive approaches to ensure that laws and policies are harmonized was repeatedly underscored as was the need to ensure that implementers are both capacitated and committed to delivering on the recommendations of the Commission.  

Many colleagues referred to partnerships with key stakeholders to further dialogue, support participatory consultations, raise awareness and advocate for human rights based approaches to legal frameworks and HIV responses more broadly.   Facilitating dialogue and consultations on HIV and the Law at national, sub-national, regional and sub-regional levels and bringing together a wide variety of stakeholders featured strongly in the examples of responses to the legal and human rights challenges faced by PLHIV and key populations in particular.

Strengthening the capacity of PLHIV and other local civil society actors to engage in national, regional or global evidence-based dialogue on legal and policy issues was also supported. The convening of inclusive dialogues provide important opportunities for affected populations to directly dialogue with relevant government agencies and ministries and consolidate efforts at different levels around common issues of legal gaps and gaps in service provision for affected populations.

In many countries, access to justice was identified as an ongoing problem with legal frameworks and services remaining inappropriate, inaccessible or not implemented.  In addition, lack of knowledge of rights and redress available and lack of confidence in the legal system continue to challenge the pursuit of justice. To expand access to justice, support to legal aid centres and the training of pro-bono lawyers to provide services to people living with HIV were initiated as were legal literacy and empowerment, including through  ‘know your rights’ initiatives for PLHIV and key populations. Human rights training and sensitization efforts also targeted actors along the justice chain including; police officers, lawyers, magistrates, judges, prison wardens and guards.

Regional work was leveraged to complement national efforts, particularly where work at the national level is restricted, controversial or sensitive. 

Challenges in implementing the Commission’s recommendations

Addressing stigma and discrimination against PLHIV and key populations remains a critical challenge to be overcome in many contexts. In many countries, the concerns and needs of key populations including men who have sex with men, transgender people, sex workers, and people who use drugs remain highly sensitive issues that are not easily discussed and all too often are not prioritized for policy and legal action.  The lack of political will, the need to overcome political sensitivities and/or ambivalence and corresponding passivity in national responses were identified as common challenges.

De jure and de facto discrimination against women, including women living with or vulnerable to HIV remains a serious challenge in many contexts. The importance of focusing on formal legal systems, customary law and the interface between systems was highlighted in the context of efforts to advance women’s rights to property and inheritance rights.  However, many contributions did not reflect follow up work undertaken to address laws and legally condoned customs that produce and reinforce gender inequalities and undermine the ability of women and girls to protect themselves from HIV infection and cope with the consequences. The links to violence against women and broader systemic discrimination against women and girls including property and inheritance laws and practices, early marriage and interpretations of religious and customary laws do not yet appear to be fully integrated into some national follow up initiatives. 

Promoting rights-based responses to HIV continues to require short, medium and long-term strategies and engagement with key national actors.

Good practices in addressing challenges

  • Promoting country ownership and buy-in through sensitization of policy makers on the human rights framework, and unique needs of key populations.
  • Combining high-level advocacy and community support approaches: working with government departments as well as with parliamentarians, the judiciary, police, religious leaders and faith-based organizations and with key populations and civil society organizations and networks.
  • Facilitating dialogue between key populations and policy makers.
  • Strengthening institutional leadership and bridging the gaps between national institutions and policies and local ones, as well as encouraging local government units to implement local responses.
  • Identifying and working with  ‘champions’ from government as well as supportive religious, faith-based  and customary leaders.
  • The UN Development Assistance Framework (UNDAF) was identified as facilitating inter-agency cooperation, coordination and joint programming aimed at achieving universal access to HIV treatment, prevention care and support.
  • Creating regional support initiatives such as regional mechanisms for coordination, information sharing, technical support and resource mobilization to support national initiatives.

As the first phase of the e-discussion has now concluded, I would also take this opportunity to thank Tracy Robinson for her strong contributions as co-moderator.   We look forward to continued active participation in Phase 2, which will be moderated by Vivek Divan: Policy Specialist Key Populations and Access to Justice, HIV, Health and Development Group, UNDP and Michaela Clayton: Director of the AIDS & Rights Alliance for Southern Africa and Co-chairperson of the UNAIDS Human Rights Reference Group.

Thanks again and warm regards,
Suki Beavers

Vivek Divan and Michaela Clayton, guest moderators during phase 2 of the e-discussion (15-26 July):
Dear Colleagues,

Welcome to phase two of the e-discussion, “The Global Commission on HIV and the Law – Taking the Commission’s Recommendations Forward”.

Firstly we would like to thank all those who so generously shared their experiences, challenges, good practices and lessons in phase one of the discussion!

It has been very insightful to read about the variety of activities that have been carried out since the launch of the Commission’s report last year, as well as to learn more about some of the complexities and challenges that are involved in following up on the Commission’s recommendations. A warm thanks also to Tracy Robinson and Suki Beavers for moderating the first phase of the discussion.

In terms of challenges to support implementation of the Commission’s recommendations, the following issues have come up in the discussion so far:

  • Societal attitudes that are unaccepting of vital concerns, needs and services for key populations, particularly men who have sex with men, influence political sensitivities and create bottlenecks that make it difficult to address these issues at the policy level.
  • Even in the absence of criminal laws in relation to key populations, there may still be de facto criminalization and harassment from police towards men who have sex with men, transgender people, sex workers, and people who use drugs.
  • Stigma and discrimination against people living with HIV and limited access to justice to seek redress for people who experience violations of their rights continues to exist.
  • Especially in the context of HIV in Europe and the CIS, insufficient implementation of harm reduction strategies and the criminalization of opioid substitution therapies is a serious challenge for an effective rights-based HIV response.

In the second phase of the discussion, we are keen to hear of concrete strategies and opportunities that exist to address some of the challenges that have come up in the first phase. To reiterate, this would include strategies in advancing the Commission’s recommendations in the areas of stigma and discrimination, key populations, people living with HIV, women, children and youth as well as access to treatment.

Going forward, we look forward to hearing from you on the following questions:

3. The Commission’s recommendations are primarily aimed at governments, civil society actors, and the UN.
What are examples of innovative or non-traditional partnerships that can be used to strategically advance human-rights based responses to HIV and to address some of the challenges that have been identified in the first phase of the discussion? How can partnerships be effectively initiated and comparative advantages of different actors leveraged, to support implementation of the Commission’s recommendations? (EN, FR, SP)

4. Discussions on the post-2015 development agenda have highlighted the need for countries to continue efforts to meet their MDG targets. They have also called for greater attention to advancing human rights, addressing inequalities - particularly gender inequality-, and finding integrated solutions for development challenges.
In the context of an evolving development framework, what are the opportunities and challenges for maintaining attention to rights-based approaches to HIV and health? (EN, FR, SP)

So far, we have received many contributions from UNDP staff. We also welcome contributions from staff at other UN agencies, as well as government representatives, civil society organizations, and independent health, human rights and development experts.

The e-discussion summary that will be prepared based on the discussion contributions will be used to inform future implementation of the Commission’s recommendations.

We look forward to a vibrant continuation of the discussion!

With best regards,

Michaela Clayton and Vivek Divan       

Michaela Clayton is the Director of the AIDS and Rights Alliance for Southern Africa (ARASA), a regional partnership of civil society organizations working together to promote a human rights based response to HIV/AIDS and TB in Southern Africa. Ms Clayton is a human rights lawyer who has worked on HIV/AIDS and human rights issues in Namibia, and subsequently regionally and internationally since 1989. She was one of the founding lawyers at the Legal Assistance Centre in Namibia, where she established the AIDS Law Unit to provide a legal service to people living with HIV and AIDS. Whilst at the LAC Ms Clayton assisted in the drafting of the majority of Namibian sectoral HIV policies as well as in the drafting of the Namibian National HIV/AIDS Policy. She was also counsel in successful impact litigation on HIV, including the case brought against the Namibian Defence Force on exclusion of HIV+ recruits from the NDF. In 2002 she initiated the establishment of ARASA as a project of the LAC, which has subsequently grown into an independent NGO with 73 partners in southern and east Africa working together to promote a human rights based response to HIV and TB in the region.

Ms Clayton participated in the revision of the International Guidelines on HIV/AIDS and Human Rights (2002) and in the drafting of the ILO Guidelines on Using the ILO Code of Practice and Training Manual for Labour Judges and Magistrates (2005) as well as the UNAIDS, UNHCHCR Handbook on HIV and Human Rights for National Human Rights Institutions (2007). She has been a member of a number of UNAIDS expert consultations on HIV and human rights related issues and has consulted for UNAIDS, UNDP, UNHCHCR and the ILO.  Ms Clayton serves on several regional advisory bodies including the SADC Technical Advisory Committee on HIV/AIDS. She is also co-chair of the UNAIDS Reference Group on Human Rights and a member of the Global Fund Human Rights Reference Group. She was the recipient of the 2009 Human Rights Watch and Canadian AIDS Legal Network International Award for Action on HIV/AIDS and Human Rights. Ms Clayton holds a BA LLB (1985) from the University of Cape Town, South Africa.

Vivek Divan is the Policy Specialist for Key Populations and Access to Justice at UNDP’s HIV, Health and Development Group in New York, USA. His work focuses on providing advisory, intellectual and technical support on the intersections of law and human rights in the context of key populations affected by HIV.

He is a lawyer from Mumbai, India and has worked extensively on issues of HIV, access to justice, LGBT people, law and human rights in India and globally. As Coordinator of Lawyers Collective HIV/AIDS Unit in India (2000-2007) he oversaw and was involved in the legal aid, advocacy, research, capacity-building and legal literacy work of the Unit. In that time he was part of the team that drafted legislation on HIV/AIDS for India and strategised campaigns and lobbying on law and human rights issues related to sex work and treatment access. He was centrally involved in the public interest litigation related to Section 377 of the Indian Penal Code, India’s anti-sodomy law, including legal research and strategy and extensive community mobilisation around the case. He served on the Secretariat for the Global Commission on HIV and the Law and as a member of its Technical Advisory Group (2010-12). He also served on the International Advisory Board of the International Gay & Lesbian Human Rights Commission (2000-2012). Vivek received his Bachelor of Arts and Bachelor of Law from National Law School of India University in Bangalore, India and his Masters in Law from Cornell University in the US.


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