USING THE LAW TO PROTECT THE RIGHTS RELATED TO HIVAIDS: INTERNATIONAL PERSPECTIVES

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USING THE LAW TO PROTECT THE RIGHTS RELATED TO
HIV/AIDS INTERNATIONAL PERSPECTIVES

• By
• Mr. Busingye Kabumba
• Human Rights and Peace Center
• Faculty of Law,
• Makerere University

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WHY INTERNATIONAL PERSPECTIVES?

• HIV/AIDS as challenge to international security,
  peace and development.
• More than forty million people living with
  HIV/AIDS
• Five million people newly infected in 2005
• Three million deaths by AIDS in 2005
• Between 2003 and 2005, the number of people
  living with HIV in East Asia rose by more than 25
  percent, and number of people living with HIV in
  Eastern Europe and Central Asia rose by more than
  one-third.
• Sub-Saharan Africa worst-affected region.
• Countries like Lesotho and Swaziland, with nearly
  one in three adults infected, openly presented as
  possibly being the first countries to die of
  AIDS.

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WHY INTERNATIONAL PERSPECTIVES? (Contd)

• Incapacity of traditional nation-states to deal
  with certain problems (cf drug trafficking,
  environmental concerns, terrorism)
• AIDS is no longer just a disease. It is a
  human rights issue. Nelson Mandela

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WHICH APPROACH?

• Law vs. Politics
• Is the distinction relevant given the hard law/
  soft law divide
• The concept of negotiating in the shadow of the
  law Harvard Program on Negotiation PON, Juba
  Peace talks

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What rights are we talking about?

• The right to non-discrimination, equal protection
  and equality before the law
• The right to life
• The right to the highest attainable standard of
  physical and mental health
• The right to liberty and security of person
• The right to freedom of movement

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Relevant rights (Contd)

• The right to work
• The right to marry and to found a family
• The right to equal access to education
• The right to seek and enjoy asylum
• The right to privacy
• The right to freedom of opinion and expression
  and the right to freely receive and impart
  information
• The right to freedom of association

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Relevant rights (Contd)

• The right to an adequate standard of living
• The right to social security, assistance and
  welfare
• The right to share in scientific advancement and
  its benefits
• The right to participate in public and cultural
  life
• The right to be free from torture and cruel,
  inhuman or degrading treatment or punishment.

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Who are the rights holders?

• People Living with HIV/AIDS
• Vulnerable Groups
• Sexually active people
• Street children
• Drug users
• Sexual minorities
• Women
• Persons with disabilities
• Civil Society (People working on HIV/AIDS issues)

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HUMAN RIGHTS

• Set of universal entitlements that individuals
  enjoy irrespective of their sex, nationality,
  religion, culture or other status, that are
  inherent to human beings and that are proclaimed
  and protected by international law.

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OBLIGATIONS ON STATES

• Respect
• Protect
• Fulfill

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INTERNATIONAL LEGAL REGIME ON HIV/AIDS

• Treaties
• Declarations
• Customary International Law
• General Principles of Law
• Writings by experts

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TREATIES

• International Covenant on Economic, Social, and
  Cultural Rights (ICESCR), 1966
• International Covenant on Civil and Political
  Rights (ICCPR), 1966
• Convention on the Elimination of All Forms of
  Discrimination Against Women (CEDAW)
• African Charter on Human and Peoples Rights

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TREATIES (Contd)

• Protocol to the African Charter on the Rights of
  Women (the Womens Protocol)
• Protocol to the African Charter on the Rights and
  Welfare of the Child (Childrens Protocol)
• Protocol on the Establishment of an African Court
  on Human and Peoples Rights
• Convention on the Rights of the Child (CRC)
• International Convention on the Elimination of
  All Forms of Racial Discrimination (CERD)

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DECLARATIONS

• Universal Declaration of Human Rights
• Millennium Development Goal 6 (which urges
  states to halt and reverse the spread of HIV and
  AIDS by 2015)
• AUs African Peer Review Mechanism (APRM)
• Abuja Declaration and Plan of Action on HIV/
  AIDS, Tuberculosis and other Related Infectious
  Diseases
• 1984 Siracusa Principles on the Limitation and
  Derogation of Principles in the International
  Covenant on Civil and Political Rights, 1984
• International Guidelines on HIV/AIDS and Human
  Rights, 1996 (Revised in 2002)
• U.N. General Assembly Special Session (UNGASS) on
  HIV/AIDS, June 2001

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CUSTOMARY INTERNATIONAL LAW

• North Sea Continental Shelf Cases
• Non-discrimination etc

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GENERAL PRINCIPLES OF LAW

• Mainly procedural such as
• Equality of arms
• Evidence based adjudication

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WRITINGS BY EXPERTS

• Used to clarify unclear points of law
• Particularly in novel areas or especially
  specialized issues

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OVERVIEW OF THE INTERNATIONAL COMPLAINTS
MECHANISMSTREATIES AND THE COMMITTEE SYSTEM

• ICCPR
• Human Rights Committee ("UNHRC")
• 18 independent experts "of high moral character
  and recognized competence in the field of human
  rights".
• Meets three times per year for sessions of three
  weeks' duration (March at the UN headquarters in
  New York July and November at the UN Office in
  Geneva)

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Committee system (Contd)

• CAT
• Committee Against Torture ("UNCAT")
• 10 experts of "of high moral character and
  recognized competence in the field of human
  rights".
• Meets twice a year

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Committee system (Contd)

• CERD
• CERD Committee
• 18 experts of "high moral standing and
  acknowledged impartiality"
• Meets twice a year

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Committee system (Contd)

• CEDAW
• CEDAW Committee

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Committee system (Contd)

• Four of the international human rights treaties
  provide individual complaints mechanisms which
  can be accessed by persons within the
  jurisdiction of the relevant State i.e. ICCPR,
  CAT, CERD and CEDAW
• Each of these conventions contains an optional
  procedure which, if acceded to by the State
  party, can be used by individuals to lodge a
  complaint (or "communication") alleging that
  their rights under the convention are being
  breached by the State party.

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Committee system (Contd)

• The determination of communications is undertaken
  by each relevant supervising committee, which has
  Rules of Procedure governing the procedures.
• Communications follow a standard model which is
  published by each committee. They must be in
  writing, and the committees do not hear oral
  argument.

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Committee system (Contd)

• Communications must not be anonymous, and they
  should be made by the individual who claims that
  his or her rights have been violated.
• Where the individual cannot submit the
  communication, the Committee may consider a
  communication from another person who must prove
  that he or she is acting on behalf of the alleged
  victim.
• A third party with no apparent links to the
  person whose rights have allegedly been violated
  cannot submit a communication

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Committee system (Contd)

• Victims do not have to be nationals of the State
  alleged to be in breach, as long as they are
  within the jurisdiction and territory of the
  State.
• This means that non-citizens within the State
  will be protected by each treaty.
• The major admissibility requirement for all
  communications is that the individual must first
  have "exhausted" all domestic remedies. This
  provides the State party with an opportunity to
  correct the human rights abuse at a domestic
  level before it is taken to the international
  sphere.

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Committee system (Contd)

• The exhaustion of domestic remedies usually means
  that an individual must exhaust all available
  judicial remedies to the point where a final
  adjudication has been reached, with no
  possibility of further appeal. In the East
  African countries, this may require the
  individual to take the matter up to the Supreme
  Court.
• However an applicant will not be required to
  pursue futile proceedings for the purpose of
  admissibility for example where the issue has
  previously been determined by the highest court.
• Moreover there is no requirement to exhaust
  remedies that objectively have no prospect of
  success.
• E.g. during the 1980s the UNHRC repeatedly found
  that individuals lodging communications against
  the State security forces in Uruguay did not have
  to pursue all available domestic remedies, as the
  military regime did not provide a fair and
  effective system of justice.

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Committee system (Contd)

• There is no requirement to pursue domestic
  remedies which would be "unreasonably prolonged"
  for example, where a complaint would take several
  years to make its way through the court system.
• In some cases an individual will need to exhaust
  available administrative remedies which offer a
  reasonable prospect of redress, although there is
  no requirement to exhaust non-enforceable
  administrative and executive remedies.

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Committee system (Contd)

• A failure to comply with procedural requirements,
  such as a failure to meet time limits on the
  lodgment of an appeal, means that the
  communication will be inadmissible unless such
  failure can somehow be attributed to the State
  party.
• Lack of funds will not usually absolve an
  applicant from pursuing domestic remedies unless
  the State party can be regarded as being
  responsible in some way, for example by refusing
  to provide legal aid.

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Committee system (Contd)

• Each of the committees has an "interim measures"
  provision, which provides that the committee may
  inform the State party of its views on the
  desirability of taking interim measures to avoid
  possible irreparable damage to the person who
  claims to be a victim of the violation.
• In practice, a request for interim measures
  should be made at the same time as the
  communication, and it will be considered urgently
  by the Special Rapporteur on New Communications.
  If the Special Rapporteur is satisfied that such
  measures are required, he or she will contact the
  relevant State party representative and request
  that interim measures be taken pending a final
  determination of the communication

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Committee system (Contd)

• Once a communication has been received, the
  committee will request the State party to provide
  its comments on admissibility and merits of the
  matter within six months. The applicant is then
  given an opportunity to comment on the State
  party's submission, following which the matter is
  set down at one of the committee sessions for
  delivery of the final "views" on the
  communication.
• The committees seek to come to a single view by
  consensus however individual members can and
  often do add their opinions to the views
  expressed by the committee as a whole.
• Views of the committees are not enforceable
  however they are widely published and carry
  significant moral and persuasive authority.
  (Toonen, repeal of impugned laws)

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NICHOLAS TOONEN V. AUSTRALIAHuman Rights
Committee, Communication No. 488/1991,
(viewsadopted on 31 March 1994, fiftieth
session)

• Facts
• In 1991, Toonen, sent a communication to the
  Human Rights Committee in which he complained
  that Tasmanian laws criminalizing consensual sex
  between adult males in private were a violation
  of his right to privacy under Article 17 of the
  ICCPR distinguished between people on the basis
  of sexual activity, sexual orientation and
  identity in violation of article 26 and meant
  that gay men in Tasmania were unequal before the
  law. As a result of his complaint to the Human
  Rights Committee, Toonen lost his job as General
  Manager of the Tasmanian AIDS Council, because
  the Tasmanian Government threatened to withdraw
  the Councils funding unless Toonen was fired.
• Australia inherited the UKs sodomy laws on
  colonization in 1788. These were retained in the
  criminal codes passed by the various colonial
  parliaments during the 19th century, and by the
  state parliaments after Federation.

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Toonen (Contd)

• Although in practice the Tasmanian police had not
  charged anyone under Section 122 with "unnatural
  sexual intercourse" or "intercourse against
  nature," or under Section 123 with "indecent
  practice between male persons" for several years,
  Toonen argued that because of his high-profile
  activism, his activities as an HIV/AIDS worker,
  and his long-term relationship with another man,
  his private life and liberty were threatened by
  the continued existence of these laws.
• He additionally argued that the laws restricted
  him from openly exposing his sexuality and
  publicizing his views on law reform as this would
  have been "prejudicial to his employment,"
  contending that the Sections "created the
  conditions for discrimination in employment,
  constant stigmatization, vilification, threats of
  physical violence and the violation of basic
  democratic rights.

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Toonen (Contd)

• Toonen further complained that Tasmanian "figures
  of authority" (such as members of the Lower House
  of Parliament municipal councillors clergy and
  the general public) were known to openly make
  derogatory remarks about gays and lesbians,
  including statements such as
• "representatives of the gay community are no
  better than Saddam Hussein" "the act of
  homosexuality is unacceptable in any society, let
  alone a civilized society" and
• "you are 15 times more likely to be murdered by a
  homosexual than a heterosexual".
• Some had further suggested that all Tasmanian
  homosexuals should be exiled to an uninhabited
  island or be subjected to compulsory
  sterilization. This, claimed Toonen, constituted
  a "campaign of official and unofficial hatred"
  against gays and lesbians, and made it difficult
  for the Tasmanian Gay Law Reform Group to
  disseminate information about its activities and
  advocate the decriminalization of homosexuality.
• The remedy requested by Toonen was the repeal of
  these provisions.

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Toonen (Contd)

• Australian federal and state response
• In its response, the federal government of
  Australia conceded that Toonen had been a victim
  of arbitrary interference with his privacy, that
  he was personally and actually affected by the
  laws challenged by him, and that the laws could
  not be justified on public health or moral
  grounds, but noted that government of Tasmania
  denied that he had been the victim of a violation
  of the Covenant. The federal government noted
  that, while the state pointed out that no
  prosecutions or investigations had been made
  under the relevant Sections since 1984, the risk
  of prosecution or investigation remained.
• The government of Tasmania argued that the
  retention of the Sections in question was
  justified and partly motivated by an effort to
  stem the spread of HIV/AIDS in the state, and
  that the laws were further justified on moral
  grounds the federal government did not accept
  either claim, noting that laws against
  homosexuality in all other parts of Australia had
  been repealed, and that discrimination on the
  basis of sexuality was unlawful in three of six
  Australian states and the two self-governing
  internal Australian territories.

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Toonen (Contd)

• The federal government requested the Committee's
  guidance in interpreting whether sexual
  orientation could be subsumed under the term "...
  or other status" in article 26, requiring
  examination of the issues of
• whether Tasmanian laws drew a distinction on the
  basis of sex or sexual orientation
• whether Toonen was a victim of discrimination
• whether there were reasonable and objective
  criteria for the distinction and
• whether Tasmanian laws were a proportional means
  to achieve a legitimate aim under the Covenant.

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Toonen (Contd)

• Decision
• The Committee found that adult consensual sexual
  activity in private is covered by the concept of
  "privacy," and that Toonen was affected by the
  continued existence of the Tasmanian laws, which
  continuously and directly interfered with his
  privacy, despite their lack of recent
  enforcement.
• The Committee noted that "the criminalization of
  homosexual practices cannot be considered a
  reasonable means or proportionate measure to
  achieve the aim of preventing the spread of
  AIDS/HIV," further noting that "The Australian
  Government observes that statutes criminalizing
  homosexual activity tend to impede public health
  programmes "by driving underground many of the
  people at the risk of infection.

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Toonen (Contd)

• The Committee found that the Sections did not
  meet the "reasonableness" test in the
  circumstances of the case, and that they
  arbitrarily interfered with Toonen's right under
  article 17, paragraph 1.
• As regards the guidance sought by the Australian
  government as to whether sexual orientation may
  be considered an "other status" for the purposes
  of article 26, the Committee found the reference
  to "sex" in article 26 is to be taken as
  including sexual orientation.
• The Human Rights Committee therefore found that
  the facts before it revealed a violation of
  articles 17, paragraph 1 of the Covenant. The
  author was entitled to a remedy under article
  2(3)(a) of the Covenant, and the opinion of the
  Committee was that an effective remedy would be
  the repeal of Sections 122(a), (c) and 123 of the
  Tasmanian Criminal Code, and requested a response
  from the Federal government in 90 days.

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Toonen (Contd)

• Result
• In response to the Tasmanian Parliaments refusal
  to repeal the offending laws, the Federal
  government passed the Human Rights (Sexual
  Conduct) Act 1994 - Section 4, legalizing sexual
  activity between consenting adults throughout
  Australia and prohibiting the making of laws that
  arbitrarily interfere with the sexual conduct of
  adults in private.
• In 1997 in the case of Croome v. Tasmania, the
  High Court of Australia specifically struck down
  the Tasmanian laws on the grounds that they were
  inconsistent with the Federal Human Rights
  (Sexual Conduct) Act.

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Velásquez-Rodríguez (Honduras), Inter-American
Court of Human Rights (1988)

• An illegal act which violates human rights and
  which is initially not directly imputable to a
  State (for example, because it is the act of a
  private person or because the person responsible
  has not been identified) can lead to
  international responsibility of the State, not
  because of the act itself, but because of the
  lack of due diligence to prevent the violation or
  to respond to it as required by the Convention.
• The court determined that a state must take
  reasonable steps to prevent human rights
  violations and to use the means at its disposal
  to carry out a serious investigation of
  violations committed within its jurisdiction, to
  identify those responsible, to impose the
  appropriate punishment and to ensure the victim
  adequate compensation.

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THANK YOU FOR YOUR KIND ATTENTION!