[Dear subscribers, please find the closing message for the UNDP-facilitated e-discussion on 'The Global Commission on HIV and the Law - Taking the Commission's Recommendations Forward', as well as two final contributions. A summary document will be shared in due time. We welcome your feedback on whether you found this cross-post of the e-discussion useful.]
Closing message: 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 see below a closing message from Michaela Clayton, Director of the AIDS and Rights Alliance for Southern Africa (ARASA) and co-chair of the UNAIS Reference Group on Human Rights and Guest Moderator for this e-discussion on "The Global Commission on HIV and the Law – Taking the Commission's Recommendations Forward", and two contributions received with thanks from Charles Chauvel, UNDP New York, and Olya Aleksandrova, on behalf of the NGO "Real World, Real People", Armenia. A sincere thanks to everyone who participated in this e-discussion; a discussion summary will be forthcoming. This e-discussion was 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.]
Michaela Clayton, guest moderator:
As the e-discussion on 'Opportunities and strategies to address challenges and to further advance the recommendations of the Global Commission on HIV and the Law' comes to an end today, I would like to take this opportunity, on behalf of my co-moderator, Vivek Divan and myself, to thank all of you who have taken the time to contribute to this discussion by sharing your experiences and providing insightful comments.
Whilst the second phase of this discussion focused on Questions 3 (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?) and 4 (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?), we did receive some very useful additional responses to the questions posed in phase one of the discussion.
Mr Andrei Usatii, Minister of Health of the Republic of Moldova reported on the positive developments that have taken place in his country since Moldova hosted the regional Conference of the Global Commission on HIV and Law in May 2011 which resulted in strengthened capacity of civil society, people living with HIV (PLHIV) and human rights activists to claim their rights and to advocate for a rights based response to HIV and ultimately in working together with the authorities for law reform. As a result the HIV prevention law was amended to comply with international human rights standards, to protect the human rights of PLHIV and to outlaw any form of discrimination on the basis of HIV. In addition it has now been made possible for NGOs to provide peer and user friendly support services, including voluntary counselling and rapid testing, which will improve the access of key populations to these services.
Lucrecia Mendez from UNDP in Guatemala ensured that the results and recommendations of the Report of the Global Commission on HIV and the Law were shared with government decision makers and CSOs. Subsequently the President of Congress expressed a commitment on behalf of the legislature to promoting an enabling legal and policy environment through the review and amendment of existing legislation. A National Dialogue on HIV and the Law has been convened by the Human Rights Ombudsman at which the effective participation of civil society was ensured through the formation of a National Advisory Group comprising representatives of government, UN agencies and key populations groups. The National Dialogue provided an opportunity for diverse government agencies to hear testimonials from 38 representatives of civil society about the human rights violations being faced in the context of HIV at the hands of government agencies and service providers and to gain a better understanding of the barriers that stand in the way of access by all who need them to HIV prevention and treatment services.
Amara Bou, Bob Verbruggen, Phauly Tea and Narmada Acharya from UNDP and UNAIDS in Cambodia reported on activities that have been undertaken to implement the recommendations of the Global Commission and to ensure that Cambodia meets its obligations as a signatory to the Economic and Social Commission for Asia and the Pacific (ESCAP) resolution 66-10, which calls on States to "ground universal access in human rights and undertake measures to address stigma and discrimination, as well as policy and legal barriers to effective HIV responses, in particular with regard to key affected populations" and ESCAP Resolution 67-9, which requires States to recall the "Human Rights Council resolution 16/28 of 25 March 2011 on the protection of human rights in the context of human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS)". A review of the Legal and Policy Framework and multi-stakeholder dialogue towards creating an enabling environment is scheduled to take place in September- November 2013. This will be followed by a national stakeholder consultation, where all the relevant stakeholders will develop and agree on a specific action plan to be taken in order to address the gaps identified in the review.
The plan also includes advocating at a high political level to senior level Government Officials; and the First Lady of Cambodia - who is also an Asia Pacific Leadership Forum Leader on HIV- and the National Champaign on the Secretary General's action plan on Maternal and Child Health. This high level advocacy will be conducted by the special envoy to the Secretary General on HIV in the Asia Pacific, who also is a member of the Commission on HIV and The Law.
In addition UNDP, UNAIDS and other UN agencies in Cambodia have supported a series of activities that contribute to the implementation of the Global Commission recommendations.
Wide dissemination of the Global Commission report
Support to the Ministry of Women Affairs to develop a 5-year National Action Plan on Prevention of Violence against Women, which for the first time addresses the needs of sex workers, female persons who use drugs, transgender women and women living with HIV.
Dissemination of Explanatory Notes on 2008 Human Trafficking Law to relevant government departments, judicial officers and law enforcement to address incorrect interpretations of the law which have negatively impacted on access to HIV-related services by sex workers.
A study on "An exploration of social exclusion of Lesbian, Gay and Transgender persons in families and communities' which shows that lesbian, gay, bisexual and transgender (LGBT) persons experience high levels of stigma, discrimination and exclusion in a variety of settings and are subject to frequent gender‐based violence in both domestic spaces and workplaces.
Dissemination of the findings of the Cambodian Stigma Index which show that HIV-related stigma and discrimination have direct implications on access to testing services, adherence to treatment and the quality of life of PLHIV. This report has been utilized for strategic evidence to inform policy and programme development and has simultaneously ensured evidence-and informed-based advocacy by PLHIV and community networks.
Provision of legal services for sex workers and the establishment of a rapid response team that that handles the immediate health and legal needs of these sex workers - including access to ARV and alternative dispute resolution services.
A Police Community Partnership Initiative (PCPI) in five provinces aims at creating an enabling environment to increase access to services of key affected populations (KAP), including sex workers, men who have sex with men, transgender people, and people who use drugs and has resulted in improved police attitudes towards key populations, friendly involvement of police in coordinating and facilitating training sessions and related events, reduced fear of police among key populations and an increased care-and-service-seeking attitude.
Development of a draft Law on Compulsory Licensing for Public Health which has been endorsed by the Ministries of Health and Commerce and submitted to the Council of Ministers for adoption by the National Assembly by mid-2014 and an extension of the TRIPS exemption period to July 2021.
A review of the social protection schemes to address barriers to accessing these by PLHIV.
Dialogue between law enforcement bodies and Networks of PLHIV and most at risk populations (MARPs) to promote and ensure access to HIV services by PLHIV and MARPs.
"Know your rights" campaigns
LGBT Pride Week 2013
KELIN from Kenya has recently partnered with UNDP Kenya to hold a regional capacity building workshop for senior police and prison officials on HIV, human rights and law and will be hosting a dialogue with judicial officers later in the year to discuss their role in the implementation of the Global Commission's findings.
Erick Ngoie from UNDP in the Democratic Republic of Congo noted that the current legal framework in the DRC does not facilitate access to care and treatment for people living with HIV and key populations and that there are few initiatives to address barriers to accessing prevention and treatment by key populations such as sex workers. The development of the new national HIV strategy for 2014-2018 does however present an opportunity for addressing this.
In response to Question 2 (What have been the most difficult issues to address in supporting implementation of the Commission's recommendations?), the Minister of Health of the Republic of Moldova identified the criminalisation of transmission or attempted transmission of HIV as one such issue. The Ministry of Health is actively advocating for the removal of criminalisation provisions in existing law under which two people have already been convicted but this is made difficult by the fact that even civil society is divided on this issue.
Ninoslav Mladenovic from Macedonia also highlighted the difficulties in addressing criminalisation of HIV transmission in Croatia, Macedonia, Serbia and noted the need change attitudes towards criminalization of HIV transmission and to focus rather on strengthening programmes of positive prevention.
Lucrecia Mendez from UNDP in Guatemala identified fragmentation within civil society and lack of mechanisms and institutions for the monitoring of the implementation of international human rights obligations as difficult issues to address.
Cheryl Overs from the Michael Kirby Centre for Public Health and Human Rights in Australia noted that even though there has not been a rash of states decriminalising sex work in the wake of the Commission's recommendations she regards the recommendations as a game changer - or at least a tone changer – in the sense that it has shifted the debate by giving an authoritative voice to sound arguments for law reform and provided a much needed tool that advocates locally, nationally and regionally are using in the long term struggle for sex workers rights. Where decriminalisation of sex work is not feasible in the short or medium term there are examples of strategies that can be effective without attracting the same level of controversy as decriminalisation. These include issuing identity documents to sex workers, changing the way evidence is collected and dealt with and allowing sex workers to claim pensions. Key to advancing the recommendations of the Commission is however the need to continue to develop a map of the law and its impact on sex workers globally with additional emphasis on local reform and administrative law.
In response to Question 3 (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?), Maung Maung Kyaw from UNDP in Myanmar shared the example of the "The Myanmar Positive Women's Network (MPWN)" established by 30 women living with HIV to strengthen the national HIV response with expanded action on gender equality through the empowerment and engagement of positive women in HIV prevention, care and support, and policy advocacy.
Lucrecia Mendez from UNDP in Guatemala reported on work being done by the "Legal Network and Human Rights Watch and HIV", who have formed a national structure comprising civil society representatives to enforce the human rights of people with HIV and populations most at risk to HIV. A major challenge faced however is the fact that civil society is fragmented and more civil society organisations need to come together to presented a united voice in advocacy for the rights of PLHIV and key populations most at risk of HIV.
Amara Bou, Bob Verbruggen, Phauly Tea and Narmada Acharya from UNDP and UNAIDS in Cambodia noted that where the government is lagging behind is ensuring protective legal frameworks for key affected populations partnerships with human rights groups, as well as the law and justice sectors need to be strengthened to empower rights holders to claim their rights and demand legal protection. In case of discrimination, traditional mechanisms of conflict resolution and faith-based leaders should be fully engaged to address the situation through dispute resolution.
Ludfine Opudo from UNDP Kenya stressed the need for and shared examples from Kenya of three types of strategic partnerships that are critical to advancing a human rights based response to HIV; namely (1) with the populations who are intended to benefit from new investments and programmes, (2) with law enforcement agencies and (3) with judicial officers, lawyers and religious and community leaders. Ludfine Opudo also shared an example of using traditional legal systems in Kenya to reinstate disinherited women and children and noted the need for strong partnerships with academic and research institutions to ensure that we have rigorous data to support evidence based advocacy for a rights based response.
Moses Mulumba from Uganda provided one of the few contributions to this discussion focussing on intellectual property and access to medicines and stressed the need for exploring partnerships between civil society and the generic pharmaceutical industry. He cited the example of one such partnership between civil society and local generic manufacturers in the East African Community (EAC) which is based on a common interest in removing tax and investment policy and other barriers to cost effective local manufacturing of generic drugs and thus improved access to affordable quality medicines. He also referred to the importance of South-South collaboration within the generic pharmaceutical industry to alleviating some of the challenges related to the local production of generic medicines in least developed countries and cited as an example the CIPLA – Quality Chemicals partnership in Uganda.
Alexander Khodanovich from Belarus related how strong partnerships between the Belarusian Community of People living with HIV and local and international NGOs contributed to the removal of discriminatory provisions from the 2011 HIV law.
Naomi Burke-Shyne, Legal Consultant at the International Development Law Organization (IDLO) in Nepal shared examples of IDLO's work in Asia to strengthen relationships and build dialogue between national human rights institutions (NHRIs) and communities of people of diverse sexual orientation and gender identity (SOGI), in seven Asian countries. Phase 1 of the project findings indicate that although SOGI remains a highly sensitive issue in many jurisdictions and NHRI personnel have had little exposure to what diverse sexual orientation and gender identities mean, there are some strong examples of NHRIs acting in strategic and innovative ways, to advance the rights of people of diverse SOGI. For example – in 2012, the Commission for Human Rights of the Philippines (CHR Philippines) launched an internal online survey to gather baseline information on the capacity needs of the CHR Philippines on SOGI and HIV, and has facilitated capacity building of staff members.
In Egypt, legal and public health organizations are supported to work together in an innovative, cross-discipline twinning arrangement to: strengthen the capacity of public health actors to understand and utilize intellectual property law to promote access to medicines for the treatment of HIV in Egypt; and strengthen the legal and policy environment for the response to HIV.
In response to Question 4 (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?) Lucrecia Mendez from UNDP in Guatemala stressed the importance of multi-sectoral partnerships in national responses to ensure that HIV is not regarded as only a health problem. Miguel A. Ramiro Aviles argued for promoting a stronger link between disability and HIV and utilising this linkage to enable PLHIV to utilise general disability-related antidiscrimination laws to protect their rights.
Amara Bou, Bob Verbruggen, Phauly Tea and Narmada Acharya from UNDP and UNAIDS in Cambodia argued that HIV work needs to shift from a public health to a rights based approach and that donors should be willing to fund longer term programmes that support the promotion of a rights based response to HIV, despite the fact that results are not, by virtue of the nature of the work, immediately visible.
Charles Chauvel, UNDP, New York:
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?
As a New Zealand member of Parliament with experience in the HIV, Justice and Human Rights disciplines, I served as a member of the Global Commission on HIV and the Law. A year after the Commission's report, I now find myself working for UNDP, advising member states in the UN System on Parliamentary Development.
Although as in all things progress has not been universal, it has been pleasing to note the enthusiatic reception for so many of the recommendations of the Report of the Commission in so many different jurisdictions. There is a range of reasons for this catalytic effect, and one of them is that the Report addresses itself not just to the traditional international law actor: the executive branch of government. It also exhorts - quite deliberately so - civil society, corporates, international entities, members of the judicial branch, and parliamentarians - to action in their respective spheres of influence to move towards an AIDS-free world. So it is that we have seen over the past year in different parts of the world not only moves by governments to reform law and law-enforcement in ways that will assist to achieve this end, but activities as diverse as sensitisation workshops for judges and magistrates; the pursuit of remedies via traditional legal systems; critical thinking and discussion of reform to incorporate a human rights perspective into intellectual property law; and drug and media companies reconsidering their social responsibilities in responding to the epidemic. All of these courses of action - and more - are sought in the Report.
For me in my new role in parliamentary development, it is particularly exciting to think about the role that MPs and legislatures can play in the implementation of the Commission's Report. As the debate around the necessary place of good, inclusive, democratic governance in the post-2015 environment gathers momentum, this is a highly pertinent issue. A parliamentarian has three prime duties: to make good laws; to scrutinise the administration of the government by the executive; and to represent those who elected him or her, including by building effective means of communication with constituents. Considering each of these duties (and the powers that should accompany them) in turn, the importance of a determined parliamentarian, or better yet, a cross-party group of MPs on population and development determined to see national progress in implementing the Commission Report, becomes apparent.
First, bad laws should be repealed. The Commission gives many examples but the most obvious barriers to progress include legislation that stigmatises and marginalises people who are at particular risk of contracting HIV. Centuries-old anti-sodomy laws that drive msm underground so that they cannot be reached with prevention messages or openly access treatments; legislation that treats sex workers or IV drug-users as criminals; laws that stop young people from learning how to keep themselves sexually safe; rules that fail to protect women from violence or which take away their economic power to insist on their own safety - these are all bad laws and an MP who drafts, tables and lobbies for a repeal bill will certainly be making his or her contribution to eradicate HIV.
Then, good laws need to be promoted. Legislation that outlaws discrimination against people living with HIV, or people at special risk of contracting it; laws that prevent possesion of needles, syringes and condoms being used as evidence of intention to commit a crime; rules that allow for the availability of condoms in prison; legislation that penalises the sexual exploitation of migrants and displaced persons - all fall into this category. Again, the power of the member's bill or joint resolution to promote good law should never be underestimated.
Neither should the power be overlooked of MPs in parliamentary committees to ensure that the government is responding adequately to the epidemic. In the health committee, ministers and officials should be pressed about the effectiveness of health promotion material. In the justice and foreign affairs committees, they should be made to report regularly on national compliance with human rights best practice and international obligations. In the trade or commerce committee they must be required to say whether they are taking full advantage of any TRIPS flexibility that the country may have to ensure that cost-effective treatments reach those who need them.
Finally, MPs should be champions in their own constituencies for policies and laws that address the epidemic. Often, because these offend strong religious or corporate interests, or involve advocacy on behalf of those who are unpopular, they are not an obvious route to electoral success. But the best representative is one who is willing to do what is right, to represent all his or her constituents, and to do so in a way that is effective. Brave MPs whom I have known have seldom in the long run regretted their courage.
MP action is going to be an important way to implement the Commission's Report, and I look forward in my new role to assisting any individual or group of parliamentarians who want to work to achieve this.
Olya Aleksandrova, On behalf of NGO "Real World, Real People", Armenia:
What actions have been taken in your country to follow-up on the findings and recommendations of the Commission or to promote an enabling legal environment for AIDS responses? What good practices or lessons have emerged from these activities?
[Note: The original contribution was submitted in Russian; below is the unofficial English translation, as provided by Google Translate. To view the contribution in Russian, click here.]
Protection of people living with HIV from discrimination is provided by the Constitution of the Republic of Armenia. But since the Constitution is the general terms and its application in daily practice is difficult, there is a need to adopt a law protecting Armenian citizens from discrimination, including on HIV status. Anti-discrimination law, which is being developed office of the Ombudsman has not yet entered the debate in Parliament, but met with public resistance, as the law which promotes homosexuality (as in all post-Soviet countries that have decided to become heirs of fascism).
Discrimination in health care settings and in the workplace somehow protect the laws on medical care of the population and the labor code, respectively. But due to the fact that these laws do not explicitly setting of HIV infection, in practice, we are often faced with a situation where HIV is no exception. But it is rather a question of illiteracy.
Under the Criminal Code of the Republic of Armenia deliberate exposure of human risk of exposure to HIV is punishable. As in all other countries, this provision has no clear wording. Recently, less than 1 month, UNAIDS has submitted to the Government of Armenia draft legislative reforms, including the removal of criminal liability for exposure to risk.
People who use drugs
In the Republic of Armenia drug use is an administrative offense punishable by a fine of 250 to 500 U.S. dollars. Storage, even for personal use, is a criminal offense. Individuals presenting for drug treatment or detained by the police for drug use to be registered for a period of 5 years, which leads to some restrictions (work in certain professions, driver's license, parental rights).
In the Republic of Armenia sex work (prostitution) is an administrative offense punishable by a fine of $ 50 for the first arrest in a year. In addition, the police have the right to forcibly move the sex workers for mandatory medical examination at the Venereal Diseases. Application of the provisions of the laws of both leads to the dependence of sex workers by the police, with all its consequences: going underground, stigma, violence, including physical, inability to protect their rights.
Belonging to the LGBT community is not limited to the legislative level. But the high level of stigma and discrimination in society in Armenia is a big barrier to access to HIV prevention, testing and treatment for GBT men. The absence of anti-discrimination law makes the situation worse.
We have no information on the situation at the national level. Most of the recommendations of the Commission refers to the donor countries or countries to patent holders.