Legal protections against HIV-related human rights violations: Experiences and lessons learned from national HIV laws in Asia and the Pacific

Report
from UN Development Programme
Published on 29 May 2013 View Original

AIDS laws in Asia and the Pacific are failing to protect those most vulnerable

New UNDP study highlights gaps in human rights protections for people living with HIV in Asia and the Pacific

Bangkok – Legal protections are unevenly enforced and human rights violations persist for people living with HIV in Asia and the Pacific. According to a new report released today by the United Nations Development Programme (UNDP), weak anti-discrimination laws affect the daily lives of those living with HIV by creating barriers to access to health care, prevention and treatment, and employment and education opportunities. Most people who experience rights abuses do not attempt to seek redress through legal means, according to the report.

Increasingly, countries in the region, including Cambodia, China, Fiji, Lao PDR, Micronesia, Mongolia, Papua New Guinea, the Philippines and Viet Nam, have put in place HIV laws to provide legal protections for people living with HIV. However, little is known on the protective impact of these laws. Legal Protections against HIV-related Human Rights Violations: Experiences and Lessons Learned from National HIV Laws in Asia and the Pacific systematically examines for the first time how these laws have been used and enforced to address rights violations.

Clifton Cortez, Regional Manager a.i. of the UNDP Asia-Pacific Regional Centre, said, “As a follow-up to the report on the Global Commission on HIV and the Law, this report reiterates the importance of investing in enabling legal environments in which legal protections are available, accessible and affordable and people living with HIV and key populations are empowered and supported to take legal action against human rights violations.”

The report highlights gaps in laws and law enforcement practices. For example, no countries in South Asia have national HIV laws, although HIV bills have been in existence for a number of years in India, Nepal and Pakistan. This creates uncertainty in relation to such issues as rights in relation to HIV testing, informed consent and confidentiality.

The report also identifies serious gaps that exist between ‘laws on the books’ and ‘laws on the streets’. In some countries good laws are in place, but people living with HIV still confront significant obstacles in gaining access to justice. Fear that mounting a legal challenge will result in disclosure of identity is a major concern in many countries.

“The report’s findings demonstrate the urgent need for practical measures to be taken to ensure people who experience violations can access the legal system to claim their rights,” says Shiba Phurailatpam, Regional Coordinator of the Asia-Pacific Network of People Living with HIV and AIDS (APN+). “It is not good enough for politicians to pass well-meaning laws if in reality people cannot access justice to enforce their rights. We call on governments and the donor community across Asia and the Pacific to help strengthen access to justice and legal empowerment among people living with HIV.”

The findings indicate that people living with HIV from socially marginalized communities lack the financial resources and access to state justice systems to challenge employers or large institutions in legal proceedings. Access to a lawyer or a human rights advocate can help to redress this power imbalance.

There are some success stories. The report also describes alternative legal approaches that have been pursued in the region to seek justice and enforce rights, as well as presents a detailed analysis of all HIV laws and bills. Legal assistance schemes in Viet Nam have enabled hundreds of cases to be resolved through negotiation and mediation, avoiding the expense of going to court. This has proved to be an effective approach to resolving cases of discrimination in employment, housing and attendance of children at schools. In Thailand, people living with HIV have been supported by non-governmental organizations to successfully challenge patents on HIV medicines to enable greater access to life-saving treatments.

Based upon the findings, the report provides a number of recommendations, including greater investments to enhance legal protections for people living with HIV and key populations, such as men who have sex with men, sex workers, transgender people and people who use drugs, through strengthened engagement of parliamentarians, judiciary, police, lawyers, national human rights bodies and other key institutions.

In support of these actions, donors, including the Global Fund, should promote and allocate greater resources to support government and civil society programming on HIV-related human rights programming. Additionally, national HIV strategies and plans should include specific targeted actions for the legal sector, including law reform, provision of legal aid services and education of people living with HIV, lawyers and the judiciary on HIV-related rights issues.

The findings from the UNDP study will be part of the agenda at the upcoming Judicial Dialogue on HIV, Human Rights and the Law in Asia and the Pacific to be held on 2-4 June 2013 in Bangkok, Thailand. Organized by UNAIDS, UNDP and the International Commission of Jurists (ICJ), this regional dialogue will bring together some 60 participants from 17 countries including judges, representatives from judicial training institutions, community resources persons and other regional experts.