The Role of Human Rights in Responses to HIV, TB and Malaria - March 2013
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“The Role of Human Rights in Responses to HIV, Tuberculosis and Malaria” documents cases in which rights-based responses have resulted in positive health outcomes, noting that promoting human ...

“The Role of Human Rights in Responses to HIV, Tuberculosis and Malaria” documents cases in which rights-based responses have resulted in positive health outcomes, noting that promoting human rights principles enhances disease prevention and increases accessibility and quality of services. Such responses support uptake of services and promote sustainability by empowering individuals to proactively address health needs.

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The Role of Human Rights in Responses to HIV, TB and Malaria - March 2013 Document Transcript

  • 1. Empowered lives. Resilient nations.Discussion PaperThe Role of Human Rights in Responses toHIV, Tuberculosis and MalariaMarch 2013 United Nations Development Programme HIV, HEALTH AND DEVELOPMENT
  • 2. Copyright @ UNDP 2013United Nations Development ProgrammeHIV, Health and Development GroupBureau for Development PolicyOne United Nations PlazaNew York, NY 10017, USAAuthorsLeah Utyasheva and Emilie PradichitReviewersMandeep Dhaliwal, Tenu Avafia, Brianna Harrison, Tracey Burton, Edmund Settle, Boyan Konstantinov and Nadia RasheedContact InformationTenu Avafia, tenu.avafia@undp.orgCover PhotoUNDP/Sarah Mwilima/NamibiaDisclaimerThe views expressed in this publication are those of the authors and do not necessarily represent those of the United Nations DevelopmentProgramme (UNDP).
  • 3. THE DEVELOPMENT CONTEXTUNDP’s HIV, Health and Development Strategy 2012–13 calls for action in three areas1: • Building synergies between action on HIV and health and broader development plans and processes, including attention to gender inequality; • Strengthening governance of HIV and health action, with particular attention to human rights and vulnerable groups; and • Providing implementation and capacity development support for major HIV and health initiatives such as the Global Fund to Fight AIDS, Tuberculosis and Malaria. This discussion paper elaborates on the crucial role that human rights play in improving the effectiveness, efficiency and sustainability of responses to HIV, Tuberculosis (TB) and malaria. It is intended for United Nations practitioners, including UNDP staff, experts, advisors and project teams, UN Country Teams as well as development partners.IntroductionThe right of every human being to access the highest attainable standards of health is now fully recognized by numerous national constitutionsand legally binding international human rights treaties.2 The links between development and health are also reflected in the fact that, of theeight Millennium Development Goals (MDGs), three are related to health directly, with several others dealing with underlying determinants ofhealth.3The realization of human rights, Respect for and the protection of human rights are paramount to the successful imple- mentation of public health programmes and by consequence, human development.4 Asincluding the right to health, is a the 2010 United Nations outcome document on the MDGs states, “[T]he respect for andcentral aspect of development. promotion and protection of human rights is an integral part of effective work towards achieving the Millennium Development Goals”.5 More recently, the outcome documentof the United Nations Conference on Sustainable Development in 2012 (Rio+ 20) highlighted the role of health as a precondition for and anoutcome and indicator of all three dimensions of sustainable development (economic, social, environmental).6 UNDP’s Corporate Strategy onHIV, Health and Development 2012–13 similarly emphasizes the strong and reciprocal relationship between health outcomes and other mea-sures of social and economic progress, in stating that “just as health shapes development, development shapes health”.7 THE ROLE OF HUMAN RIGHTS IN RESPONSES TO HIV, TUBERCULOSIS AND MALARIA l 1
  • 4. Box 1. How do human rights relate to public health? Human rights are universal, inalienable, indivisible, interdependent and interrelated.8 Public health is an organized effort by society, to improve, promote, protect and restore the health of the population through collective action.9 Public health goals are centred on improving the health of the population, rather than treating the diseases of individual patients. Evidence indicates that public health interventions that do not feature a rights-based response do more harm than good.10 An ex- ample of this is the so-called AIDS paradox, whereby “one of the most effective laws we can offer to combat the spread of HIV is the protection of persons living with HIV, and those about them, from discrimination. This is a paradox because typically the community might expect laws to protect the uninfected from the infected – at the same time, the human rights of those living with HIV and those most affected must also be protected.”11 The right to health The right to the enjoyment of the highest attainable standard of physical and mental health is an important part of the human rights framework.12 The right to health encompasses medical care and the underlying social determinants of health, defined as a wide range of socio-economic factors that promote conditions in which people can lead a healthy life (i.e., access to clean water and food, sani- tation, nutrition, housing, freedom from poverty and discrimination, healthy occupational and environmental conditions, education, information, etc.). The centrality of health to all aspects of development makes it essential that a right-to-health approach be used in all development programmes and policies that seek to address health.13 According to the UN Committee on Economic, Social and Cultural Rights, the right to health comprises of four elements: Availability, or that there be functioning public health and health care facilities, goods and services, as well as programmes in sufficient quantity. Accessibility, or health facilities, goods and services be accessible to everyone, within the jurisdiction of the State party. Accessibility has four overlapping dimensions: a) non-discrimination; b) physical accessibility; c) economical accessibility (affordability); and d) information accessibility. Acceptability, or that all health facilities, goods and services be respectful of medical ethics and culturally appropriate as well as sen- sitive to gender and life-cycle requirements. Quality, or that health facilities, goods and services be scientifically and medically appropriate and of good quality.14Human Rights and Law: Social Determinants of HealthThe law, when based on public health evidence and promoting a rights-based response, plays an important role in creating and maintainingsocial relationships of equality. Public health laws that do not place human rights considerations front and centre, as well as laws that are notbased on evidence can create or exacerbate social inequalities. It is important to consider the effect of sex and gender norms, inequalitiesamongst racial and ethnic groups, the marginalized status of communities, and other social, political, and economic factors when assessinghow the law’s application can negatively impact certain populations.162l THE ROLE OF HUMAN RIGHTS IN RESPONSES TO HIV, TUBERCULOSIS AND MALARIA
  • 5. On the other hand, evidence indicates that an enabling legal environment could significantly contribute to positive public health outcomes.According to the findings of the Global Commission on HIV and the Law:• Changes in the legal and policy environment, along with other in- 3.5 terventions, could lower new adult HIV infections to an estimated 3.0 1.2 million by 2031, instead of to a projected 2.1 million infections Current legal and millions infected 2.5 per year in 2031 if the current legal and policy environment re- policy environment mains unchanged. 2.0• Public resources are wasted on enforcing laws that criminalize HIV 1.5 historical trend transmission and dehumanize at-risk populations. current trend• In contrast, laws that protect at-risk populations are powerful low- 1.0 structural change* With interventions for enhanced legal cost tools to reinforce financial and scientific investments for HIV. 0.5 * change to legal and policy environment and policy environment• Enacting laws based on sound public health and human rights will 0.0 ensure that new prevention and treatment tools – such as PrEP, 1980 1985 1990 1995 2000 2005 2010 2015 2020 2025 2030 male circumcision and microbicides – reach those who need them.17 Box 2. The Global Commission on HIV and the law The Global Commission on HIV and the Law, an independent body convened by UNDP on behalf of the UNAIDS family, examined the impact of laws, policies and practices on HIV. The Commission’s Final Report (2012) found that human-rights-based legal environ- ments can play a powerful role in the well-being of people living with HIV and those vulnerable to HIV. The Commission concluded that legislation grounded in human rights can widen access to prevention and care services; improve the quality of treatment; en- hance social support for people affected by the epidemic; protect human rights that are vital to survival; and save public resources. The Commission also found that, unfortunately, many legal environments and practices are hindering rather than helping national HIV responses: often, public health programmes are undermined by laws that criminalize the very practices the public health efforts pro- mote – such as distributing sterile needles and providing opioid substitution therapy to people who inject drugs; providing condoms and harm-reduction measures to prisoners; or supporting the free association of sex workers for the purposes of mutual support and education. Laws, policies and practices can perpetrate discrimination and isolate the people most vulnerable to HIV from the pro- grammes that would help them to avoid or manage the virus. Therefore, creating legal environments supportive of human-rights- and evidence-based interventions is of critical importance to effective national responses to HIV.18 (Global Commission on HIV and the Law, ‘HIV and the Law: Risks, Rights & Health’, July 2012) More information can be found at www.hivlawcommission.org THE ROLE OF HUMAN RIGHTS IN RESPONSES TO HIV, TUBERCULOSIS AND MALARIA l 3
  • 6. ISSUE ANALYSISThere is great value in adopting a rights-based response for multilateral funding initiatives around HIV, tuberculosis and malaria. The ‘GlobalFund Strategy 2012–2016: Investing for Impact’ includes a specific strategic objective on human rights: Strategic Objective 4 – Promote andProtect Human Rights. The objective calls for specific attention to the following: 4.1 Integration of human rights considerations throughout the Global Fund grant cycle; 4.2 Increase of investments in programmes that address human-rightsrelated barriers to access; and 4.3 Verification that the Global Fund does not support programmes that infringe human rights.19Human Rights Programmes in Global Fund-Supported HIV Programmes A 2011 UNDP, UNAIDS and Global Fund study analysing key human rights programmes in Global Fund-supported HIV programmes found that the Global Fund plays a vital role in sup- porting key human rights programmes – an essential part of effective, rights-based national HIV responses.20 The study also revealed further opportunities to support the planning and implementation of key human rights programmes through Global Fund proposals and grants. The study found that, in settings where marginalized populations are criminalized (e.g., men who have sex with men, transgender people, sex workers, people who use drugs, and prison- ers), Country Coordinating Mechanisms did not include key human rights programmes that benefit these populations who are most vulnerable to HIV. The study concluded that a human rights analysis of national HIV responses, including the implementation of key human rights programmes, is crucial to Global Fund proposals and grants. The study made key recommen- dations so that if a human rights analysis of the national HIV response is undertaken, as it would not only provide essential information for the Global Fund to improve the efficiency and effectiveness of its investments, but would also provide valuable information for other key stakeholders at the country level.21Human Rights in HIV, Tuberculosis and Malaria ResponsesThere are four important reasons for promoting and protecting human rights in HIV, TB and malaria responses:1. Enhancing disease prevention: Stigma, discrimination, a lack of empowerment and human rights abuses against people living with HIV, women, children, young people and other key populations (such as people who use drugs, sex workers, men who have sex with men, transgender people, prisoners, migrants, people living in poverty increase vulnerability to all three diseases. Discrimination marginalizes people, pushes them away from prevention services, and contributes to an increase in risky behaviour. Similarly, punitive laws have been shown to negatively impact the ability of populations at higher risk to access HIV services. Evidence suggests, on the other hand, that a respect for human rights, equal treatment and protection from discrimination have a positive effect on the well-being of people affected by the three diseases. Countries that enforce protective laws ensuring non-discrimination for key populations have achieved greater cov- erage of HIV prevention services.234l THE ROLE OF HUMAN RIGHTS IN RESPONSES TO HIV, TUBERCULOSIS AND MALARIA
  • 7. 2. Increasing accessibility of health services – Ensuring effectiveness of programming and that resources reach the right peo- ple: Promoting and protecting human rights can help overcome barriers to accessing HIV, TB and malaria health services by addressing stigma, discrimination, violence and social marginalization. A rights based response can also contribute to improvements in other social and structural determinants of health such as economic assets, education, water and food security. Effective programming can also sen- sitize and educate health care providers to needs and problems faced by their clients, and heighten such providers’ understanding of how to avoid discriminating. Importantly, protection of human rights and educational campaigns can significantly reduce stigma and discrimination not only on the part of health care providers, but also among government officials, employers, judges, police and other law enforcement officers, decision makers, and society in general.3. Service uptake – Increasing efficiency of programming by improving service quality and the demand for services: Promoting and protecting human rights creates more conducive l conditions for the uptake of essential HIV, TB and malaria prevention, treatment and care services. People will be more likely to seek access to HIV and TB services if they are confident that they will not face discrimination, that their confidentiality will be respected, that they will have access to appropriate information and counselling, that they will not be coerced into accepting services and that any such services will only occur once informed consent has taken place.4. Promoting individual agency – Ensuring sustainability of programmes by empowering individuals to be proactive in taking care of their health needs: A rights-based response can help minimize the impact of harmful social norms and human rights violations. It can ensure stakeholders’ participation in the design and implementation of programmes and help increase the accessibility of services by offering better design and taking into account opinions of the community. A focus on human rights can empower individuals and communities to ensure that national responses address their specific HIV, TB or malaria needs and can lead to improved access to HIV, TB and malaria prevention and treatment through: (1) addressing the social and structural determinants of health; and (2) supporting effective community interventions that improve access for the most vulnerable and marginalized populations. Enhancing disease • HIV service organizations report that the threat of prosecution for HIV transmission, exposure or non-disclosure neither empowers people living with HIV to avoid transmission nor does it prevention motivate behavioural change. The fear of prosecution discourages people from getting tested, from participating in prevention or treatment programmes and from disclosing their status to partners and to health care providers.24 • In Asia and the Pacific, punitive legal environments relating to men who have sex with men and transgender people have been associated with restricted condom distribution, condom confiscation by police as evidence of illegal conduct, censoring of HIV and STI prevention education materials and harassment or detention of outreach workers.25 • In Burkina Faso, the Ministry of Labour and Social Security and the International Labour Organization, along with employers’ and workers’ organizations, are creating a legal and policy framework conducive to HIV prevention and protective of workers’ rights in connection with HIV.26 • Sustainable financing of political commitments, education and effective tools for malaria prevention, such as insecticide-treated mosquito nets (ITNs), indoor residual spraying (IRS), and intermittent preventive treatment for pregnant women (IPTp), are necessary in order to achieve and maintain universal coverage of malaria interventions. Between 2001 and 2010, nearly three quarters of a million children (736,700) are estimated to have been saved from malaria-related deaths, almost entirely due to intervention coverage. In 2010, the lives of an estimated 485 children were saved every day.27 THE ROLE OF HUMAN RIGHTS IN RESPONSES TO HIV, TUBERCULOSIS AND MALARIA l 5
  • 8. Increasing • Stigma and discrimination undermines efforts to increase access to essential HIV treatment, care and support services. In Nigeria, 21 percent of people living with HIV say they have been denied accessibility of health services as a result of their HIV status.28 health services • Many countries prohibit harm reduction services29 and criminalize proven interventions such as Ensuring effectiveness syringe access and medication-assisted treatment for opioid dependence. In China, Russia and Thailand, people who enrol in public drug treatment programmes are added to registries, which of programming and discourages them from seeking treatment.30 that resources reach • Isoniazid preventive therapy (IPT) is effective at reducing the risk of TB in people living with HIV the right people by over 60 percent,31 yet only 12 percent of all people reported to be newly enrolled in HIV care in 2010 received it.32 Such failures to ensure access to IPT for those who need it can reduce the effectiveness of both HIV and TB responses. • Countries that treat injecting drug users as patients instead of criminals – including Australia, Germany, New Zealand, Portugal and Switzerland – have seen increased access to HIV services and reduced HIV transmission rates among injecting drug users.33 • Tailoring malaria programmes in Kenya to meet the needs of the poorest quintile has resulted in improved access to treated bed nets across the population as well as increased access for those most in need.34 Service uptake • Information on sexual and reproductive health is lacking in many countries.35 Sexually active young people lack appropriate prevention information and reproductive and sexual health Increasing efficiency services as many States deny youth health services without parental consent. In South Africa, of programming by for example, health care workers providing such services to minors are legally required to report consensual underage sex.36 improving service • Discrimination against families living with HIV is common: for example in Eastern Europe and quality and demand Central Asia, some agencies prohibit HIV-positive children from living with their parents in state- for services sponsored housing; adults living with HIV cannot become adoptive parents; and school and child- care administrators shut their doors to HIV-positive students.37 • Inadequate detention conditions including lengthy pre-trial detention periods combined with high rates of incarceration have been linked to higher TB prevalence.38 A recent study in Zambia noted that protection against cruel, inhumane or degrading treatment, and increasing access to the justice system, are essential to curbing the spread of HIV and TB in prisons and in the general community.39 • A recent model estimates that effective stigma and discrimination programmes could result in more mothers using HIV services and adhering to treatment, potentially reducing mother-to-child transmission by as much as one third in settings where stigma is prevalent.40 • The potential impact of policies that promote health and recognize the rights of people who use drugs on HIV epidemics is illustrated by mathematical modelling, which shows that, during 2010–15, HIV prevalence could be reduced by 41 percent in Odessa (Ukraine), 43 percent in Karachi (Pakistan), and 30 percent in Nairobi (Kenya) through needle exchange, antiretroviral therapy. Unmet need of opioid substitution could be reduced by 60 percent.41 • The actual state of spending in Malaria control in low-income countries may hamper development: it accounts for an estimated 40 percent of total government spending on public health in Africa; consumes 25 percent of household incomes; and costs Africa US$12 billion in direct costs every year and much more in lost productivity. There is a need for a rapid scaling up of investment in malaria control, which could: a) save millions of lives; b) free up nearly half a million hospital beds in Africa; c) generate more than US$80 billion in increased GDP in African countries over a five-year period; and d) have a substantial return on investment in malaria control.426l THE ROLE OF HUMAN RIGHTS IN RESPONSES TO HIV, TUBERCULOSIS AND MALARIA
  • 9. Promoting individual • Sexual violence is an accomplice of HIV,43 depriving women of their ability to control their lives and thereby protect their health. A 2005 WHO study found that, in “a broad range of settings”, men agency who were violent toward their female partners were also more likely to have multiple partners – Ensuring sustainability both violence and infidelity being expressions of male privilege44 – and to be infected with HIV and other STIs, putting all their female partners at risk.45 of programmes • The participation of key populations in Global Fund Country Coordinating Mechanisms (CCMs) by empowering has been credited with improved funding flows to marginalized populations and improved individuals to be government attitudes. However, criminalization of sex work and homosexuality and the denial proactive in taking of the human rights of transgender people remain barriers to participation of men who have sex with men, transgender people and sex workers in CCM processes.46 Despite this, community- care of their health based organizations of men who have sex with men successfully submitted two multi-country needs Global Fund grants in South Asia (Round 9) and the Islands of Southeast Asia (Round 10), covering over 11 counties and totalling some US$60 million. • Police education and empowerment of sex workers can lead to decreased risk of HIV infection among sex workers. In Kolkata, India, such interventions helped reduce HIV prevalence among sex workers from 11 percent in 2001 to less than 4 percent in 2004.47 • Protecting the rights of women living with and affected by HIV – to freedom from violence, to equal access to property and inheritance, to equality in marriage and divorce, and to access to information and education – can empower them to avoid HIV risks, safely disclose their HIV status, adhere to treatment, and discuss HIV with their children.48 There is also evidence that respecting the right of HIV-positive women to inherit equally mitigates negative economic consequences and reduces risky behaviour such as unsafe sex.49 For example, a survey in Malawi showed that, by realizing socio-economic rights – for example through improved housing – the risk of malaria, respiratory infection or gastrointestinal illness was reduced by 44 percent in children under 5.50 • Community-based treatment programmes including treatment literacy have been shown to be critical to ensuring the full realization of the benefits of HIV and TB treatment, to decreasing stigma, and to the success of HIV and TB prevention and treatment programmes generally.51, 52 In Uganda, a policy of decentralization in the health sector since 2005 has created Village Health Teams as part of the national administration for delivery of health services. These Health Teams effectively ensure that local needs are identified and addressed and are providing the crucial grassroots delivery mechanisms for community interventions in relation to malaria and overall health promotion.53 Other studies have also highlighted the benefits of rights- and community-based interventions to addressing malaria.54This table is based on the ‘2011 Fact Sheet on Human Rights and the Three Diseases’, developed by UNDP and the Open Society Foundation incollaboration with the Roll Back Malaria and Stop TB Partnerships, and the Ford Foundation.55Global Fund’s New Funding Model (NFM)On 28 February 2013, the Global Fund launched a New Funding Model (NFM) with the aim of investing more strategically, achieving greaterimpact, and engaging implementers and partners more effectively in HIV, TB and malaria responses.56 The New Funding Model provides coun-tries that implement Global Fund grants with more flexibility around when they apply for funds, as well as more predictability on the level offunding available, while still encouraging countries to clearly express how much funding they need to effectively treat and prevent HIV, TB andmalaria.57 THE ROLE OF HUMAN RIGHTS IN RESPONSES TO HIV, TUBERCULOSIS AND MALARIA l 7
  • 10. The New Funding Model provides an important opportunity to strengthen attention to human rights in the Global Fund’s programmes and innational HIV, TB and malaria responses.58Partners such as UNDP can play an important role in supporting countries to ensure that: (1) appropriate attention to human rights in NationalStrategic Plans or investment cases for HIV, TB and malaria; (2) human rights principles are a core component of country dialogues and thataffected communities have a real place at the table and a voice; (3) key government ministries such as the Ministry of Finance and Planning, theMinistry of Justice, etc. are consulted along with the Ministry of Health; (4) country concept notes submitted to the Global Fund include invest-ments in programmes that address human-rightsrelated barriers to access; and (5) Global Fund investments do not infringe on human rights. The New Funding Model Source: ‘The New Funding Model: Key features and implementation’, The Global Fund to Fight AIDS, Tuberculosis and Malaria, 2012. At the Communities Delegation Consultation, held on 25–26 January 2013, the Communities Living with HIV, TB and affected by Malaria Delegation (Communities Delegation) emphasized that community engagement is critical to the effective implementation of the New Funding Model as it “ensures that resources and support reach the people most affected by the diseases and that hu- man rights are not abrogated in proposed interventions.” The statement also concluded that, before the New Funding Model is fully implemented, the Global Fund “must integrate guidance on policy and programming that address human rights” and “the needs of key populations”.59 “We need your active role [community involvement] in creating; building and sustaining the movement that we need to defeat AIDS, TB and malaria. This year, we need you to help us monitor and implement the NFM, which will better support health and community workers who treat and prevent the three diseases. It will also better advocate human rights in the response to the three diseases. Partnerships are what make the Global Fund effective. In that sense, we are all the Global Fund.” Mark Dybul, Executive Director of the Global Fund, at the Communities Delegation Consultation, 25–26 January 2013, Amsterdam, The Netherlands8l THE ROLE OF HUMAN RIGHTS IN RESPONSES TO HIV, TUBERCULOSIS AND MALARIA
  • 11. POLICY OPTIONS AND ACTIONSWhat Can UNDP Do?In line with international instruments on health and human rights and its HIV, Health and Development Strategy 2012–1360, UNDP works tosupport countries to create enabling human rights environments, review and reform legislation, promote gender equality and access to justice,address stigma and discrimination and enforce protective laws for people affected by HIV, TB and malaria.61As UNDP’s HIV, Health and Development Strategy 2012–13 notes, UNDP draws synergies from its work in democratic governance, capacitydevelopment and local development to strengthen leadership and governance of HIV responses at the national and local levels. Prioritiesinclude inclusion of vulnerable populations, the facilitating of partnerships between governments and civil society organizations, and thedesign of governance and oversight structures to promote accountability, achievement of results, and synergies between HIV and broaderhealth efforts.62Through its partnership with the Global Fund, UNDP is supporting the implementation of HIV, TB and malaria programmes in low- and mid-dle-income countries. The Global Fund’s New Funding Model presents a renewed opportunity to strengthen the human rights aspects of HIV,TB and malaria programmes, in line with the Global Fund’s ‘Strategy 2012–2016.’ UNDP can provide support to stakeholders involved in the rollout of the New Funding Model, in the following three areas: (1) policy and technical guidance; (2) capacity development; and (3) advocacysupport. Policy and technical co-operation • Providing technical and policy support upon request, to promote enabling legal environments • Monitoring and reform of laws, regulations and policies relating to HIV, TB and malaria Capacity development (training and enhancing capacity) • Legal literacy (‘know your rights’) • Sensitization of the judiciary and parliamentarians and law enforcement officials on the promoting of a rights based response to HIV, TB and malaria • Together with WHO, training for health care providers in human rights and medical ethics related to HIV, TB and malaria • Effective engagement of domestic stakeholders, including relevant government ministries and civil society actors, in decisions that concern human rights and public health Advocacy (monitoring and analysis) • Advocacy aimed at reducing stigma and discrimination • Advocacy to reduce discrimination against women and young people in the context of HIV and TB63 • Monitoring of the inclusion of affected communities and key populations into human rights programmes for HIV, TB and malaria responses THE ROLE OF HUMAN RIGHTS IN RESPONSES TO HIV, TUBERCULOSIS AND MALARIA l 9
  • 12. ENDNOTES1. United Nations Development Programme, ‘HIV, Health and Development, Strategy Note 2012–2013’. Available at: http://www.undp.org/content/dam/undp/li- brary/hivaids/English/HIV%20Strategy%20Document%20-%20New.pdf.2. Human rights “derive from the dignity and worth inherent in the human person”, see ‘Vienna Declaration and Programme of Action’, 1993, para 2. See also The Universal Declaration of Human Rights (1948). The nine core human rights treaties are: International Convention on the Elimination of all Forms of Racial Discrimi- nation (1965); International Covenant on Civil and Political Rights (1966); International Covenant on Economic, Social and Cultural Rights (1966); Convention on the Elimination of All Forms of Discrimination Against Women (1979); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984); Convention on the Rights of the Child (1989); International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families (1990); International Convention for the Protection of All Persons from Enforced Disappearances (2006); Convention on the Rights of Persons with Disabilities (2006). Furthermore, human rights impose on States Parties three types of obligations: a) Respect, which means not to interfere with the enjoyment of the right; b) Protect, which means ensuring that third parties (non-state actors) do not infringe upon the enjoyment of the right; and c) Fulfil, which means taking positive steps to realize the right. (See more WHO, The right to health, Fact sheet N°323, August 2007. For the right of every human being to access the highest attainable standards of health, see Universal Declaration of Human Rights: http://www.un.org/en/docu- ments/udhr/. Article 25 provides that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services.” See also the International Covenant on Economic, Social and Cultural Rights, Article 12. For a detailed interpretation, see ‘The right to the highest attainable standard of health’ (Article 12 of the International Covenant on Economic, Social and Cultural Rights). General Comment No. 14, E/C12/2000/4. Geneva, UN Committee on Economic, Social and Cultural Rights, 2000. Available at: http://www2.ohchr.org/ english/bodies/cescr/comments.htm3. Three of the eight MDGs agreed by the international community focus explicitly on health outcomes and two others have significant health components. Goals 4, 5 and 6 deal with health directly and others deal with underlying determinants of health. At least 8 of the 16 MDG targets, and 17 of the 48 related indicators, are health-related. Please see the United Nations Millennium Development Goals at http://www.un.org/millenniumgoals/. In addition, the role of health as a precondition for and an outcome and indicator of all three dimensions of sustainable development (economic, social, environmental) was also recognized in the outcome document of the ‘United Nations Conference on Sustainable Development’ in 2012 (Rio+ 20). The outcome document also emphasized that the goals of sustainable development can be achieved only in the absence of a high prevalence of debilitating diseases and where populations can reach a state of physical, mental and social well-being. It noted that actions on the social and environmental determinants of health, for the poor and the vulnerable and for the entire pop- ulation, are important to create inclusive, equitable, economically productive and healthy societies. Refer to: General Assembly Resolution, ‘The Future We Want’, 11 September 2012, A/RES/66/288, para 138, p. 27. Available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/476/10/PDF/N1147610.pdf?OpenElement.4. ‘Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’, Anand Grover, to the Human Rights Council, 12 April 2011, A/HRC/17/25. See also, UN Special Rapporteur on the right to the highest attainable standard of health, Paul Hunt,‘The Millennium Development Goals and the Rights to the Highest Attainable Standard of Health’, International Lecture Series on Population and Reproductive Health, August 17, 2007, Nigeria; Stephen P. Marks, Health, Development, and Human Rights, in Anna Gatti and Andrea Boggio (eds.), Health and Development: Toward a Matrix Approach, Palgrave Macmillan, 2008, pp. 124–139. Available at: http://www.hsph.harvard.edu/faculty/stephen-marks/files/marks_chapt_7_for_gatt__boggio_health_and_dev.pdf. See also, Philip Alston and Mary Robinson, Human Rights and Development: Towards Mutual Reinforcement, Oxford University Press, 2004. Available at: http://www.realizin- grights.org/pdf/Human_Rights_and_Development.pdf; United Nations Development Programme, Applying a human rights-based approach to development co- operation and programming, UNDP BDP, Capacity Development Group, 2006. Available at: http://lencd.com/data/docs/252-Applying%20a%20Human%20Rights- based%20Approach%20to%20Development%20Co.pdf; Office of the High Commissioner for Human Rights, Declaration on the Right to Development, adopted by General Assembly resolution 41/128 of 4 December 1986.5. ‘Keeping the promise: united to achieve the Millennium Development Goals’, adopted by General Assembly, Resolution 65/1, para 53, p. 10, of 19 October 2010. Available at: http://www.un.org/en/mdg/summit2010/pdf/outcome_documentN1051260.pdf.6. The outcome document also emphasized that the goals of sustainable development can be achieved only in the absence of a high prevalence of debilitating diseases and where populations can reach a state of physical, mental and social well-being. It noted that actions on the social and environmental determinants of health, for the poor and the vulnerable and for the entire population, are important to create inclusive, equitable, economically productive and healthy societies. Please see: General Assembly Resolution, ‘The Future We Want’, 11 September 2012, A/RES/66/288, para 138, p. 27. Available at: http://daccess-dds-ny.un.org/doc/ UNDOC/GEN/N11/476/10/PDF/N1147610.pdf?OpenElement.7. Supra Note 1.8. Supra Note 2. See also, United Nations Office of the High Commissioner for Human Rights, ‘What are Human Rights?’ Available at: http://www.ohchr.org/en/issues/ Pages/WhatareHumanRights.aspx; World Health Organization (WHO), 25 Questions and Answers on Health and Human Rights. Geneva: 2002.9. It includes services such as health situation analysis, health surveillance, health promotion, prevention, infectious disease control, environmental protection and sanitation, disaster and health emergency preparedness and response, and occupational health, among others. WHO Health System Strengthening Glossary at: http://www.who.int/healthsystems/hss_glossary/en/index8.html.10. Global Commission on HIV and the Law, ‘HIV and the Law: Risks, Rights & Health’, July 2012. Available at: http://hivlawcommission.org/index.php/report.11. AIDS Paradox formulated by the Hon. Michael Kirby, cited from Global Commission on HIV and the Law, ‘HIV and the Law: Risks, Rights & Health’, July 2012. See also Hon. Justice Michael Kirby, Law Discrimination and Human Rights – Facing up to the AIDS Paradox, Speech at the Third International Conference on AIDS in Asia and the Pacific, 10 November 1995.10 l THE ROLE OF HUMAN RIGHTS IN RESPONSES TO HIV, TUBERCULOSIS AND MALARIA
  • 13. 12. Supra Note 2.13. Supra Note 4.14. UN Committee on Economic, Social and Cultural Rights, General Comment No. 14 ‘The rights to the highest attainable standard of health (article 12 of the Interna- tional Covenant on Economic, Social and Cultural Rights’, 11 August 2000, E/C.12/2000/4.15. Braveman, P., ‘Social conditions, health equity, and human rights’. Health and Human Rights: An International Journal, North America, 1214 12 2010. Available at: http://www.hhrjournal.org/index.php/hhr/article/view/367/563; Chapman, A., ‘The social determinants of health, health equity, and human rights’. Health and Human Rights: An International Journal, North America, 1214 12 2010. Available at: http://www.hhrjournal.org/index.php/hhr/article/view/366/560; Braveman, P., and Gruskin, S., 2003, Poverty, Equity, Human Rights and Health, Bulletin of the World Health Organisation, vol. 81, no. 7, pp. 539-545. Available at: http://apps.who. int/iris/bitstream/10665/71937/1/bulletin_2003_81%287%29_539-545.pdf.16. Yamin, A., ‘Shades of dignity: Exploring the demands of equality in applying human rights frameworks to health’. Health and Human Rights: An International Jour- nal, North America, 11 4 02 2010. Available at: http://www.hhrjournal.org/index.php/hhr/article/view/169/263.17. Global Commission on HIV and the Law, ‘Fact Sheet on HIV and the Law: Risks, Rights & Health’, July 2012. Available at: http://hivlawcommission.org/resources/ report/HIV&Law-Factsheet-EN.pdf.18. Supra Note 10.19. The Global Fund to Fight AIDS, Tuberculosis and Malaria, ‘The Global Fund Strategy 2012–2016: Investing for Impact’. Available at: http://www.theglobalfund.org/ documents/core/strategies/Core_GlobalFund_Strategy_en/.20. UNDP, Analysis of Key Human Rights Progammes in Global Fund-supported HIV Programmes, July 2011. Available at: http://www.undp.org/content/dam/ aplaws/publication/en/publications/hiv-aids/analysis-of-key-human-rights-programmes-in-global-fund-supported-hiv-programmes/Analysis%20of%20Key%20 HRTS%20Programmes%20in%20GF-Supported%20HIV%20Programmes.pdf.21. Ibid.22. A review of HIV in Central Asia concluded that urgently needed improvement in “coverage of injecting drug users, female sex workers and clients, and migrants with prevention services […] is impeded by legislative barriers to access, the stigma around behaviours linked with HIV, and by a lack of strong political commitment towards serving the needs of these populations”. Thorne, C., Ferencic, N., Malyuta, R., Mimica, J., Niemiec, T., ‘Central Asia: Hotspot in the Worldwide HIV Epidemic’, The Lancet, vol. 10, July 2010, p. 486.23. UNAIDS (2012), 2012 Global Report on the Global AIDS Epidemic. Geneva: UNAIDS.24. Global Commission on HIV and the Law, ‘HIV and the Law: Risks, Rights and Health,’ July 2012, p. 22.25. UNDP and APCOM (2010), Legal environments, human rights and HIV responses among men who have sex with men and transgender people in Asia and the Pacific: An agenda for action. Thailand: UNDP.26. Global Commission on HIV and the Law, ‘HIV and the Law: Risks, Rights and Health,’ July 2012, p. 18.27. See Roll Back Malaria Partnership, ‘Roll Back Malaria Progress & Impact Series: Saving Lives with Malaria Control: Counting Down to the Millennium Development Goals’, at http://www.rbm.who.int/ProgressImpactSeries/report3.html.28. Reis, C., Heisler, M., Amowitz, L.L., Moreland, R.S., Mafeni, J.O., et al. (2005) Discriminatory Attitudes and Practices by Health Workers toward Patients with HIV/AIDS in Nigeria. PLoS Med 2(8): e246. doi:10.1371/journal.pmed.0020246.29. A comprehensive package for the prevention, treatment and care of HIV among people who inject drugs include the following nine interventions: 1) Needle and syringe programmes (NSPs); 2) Opioid substitution therapy (OST) and other drug dependence treatment; 3) HIV testing and counselling; 4) Antiretroviral therapy (ART); 5) Prevention and treatment of sexually transmitted infections (STIs); 6) Condom programmes for people who inject drugs and their sexual partners; 7) Targeted information, education and communication (IEC) for people who inject drugs and their sexual partners; 8) Vaccination, diagnosis and treatment of viral hepatitis; 9) Prevention, diagnosis and treatment of tuberculosis (TB). (WHO, UNODC, UNAIDS Technical Guide for countries to set targets for universal access to HIV prevention, treatment and care for injecting drug users. 2009).30. Global Commission on HIV and the Law, ‘HIV and the Law: Risks, Rights and Health’, July 2012, p. 31.31. Akolo, C., Adetifa, I., Shepperd, S., Volmink, J., ‘Treatment of latent tuberculosis infection in HIV infected persons’. Cochrane Database Syst Rev 2010:CD000171.32. World Health Organization, HIV/TB Facts 2011, available at http://www.who.int/hiv/topics/tb/hiv_tb_factsheet_june_2011.pdf.33. Global Commission on HIV and the Law, ‘HIV and the Law: Risks, Rights and Health’, July 2012, p. 34.34. Noor, A., Amin, A., Akwhale, W., and Snow R., (2007) ‘Increasing Coverage and Decreasing Inequity in Insecticide-Treated Bed Net Use Amongst Rural Kenyan Children’. PLoSMed 4(8): e255. doi:10.1371/journal.pmed.0040255; Bretlinger, P. ‘Health, Human Rights and Malaria Control’, Journal of Health and Human Rights, 2006: vol. 9(2), pp. 10–38.35. Global Commission on HIV and the Law, ‘HIV and the Law: Risks, Rights and Health’, July 2012, pp. 70–74.36. Ibid.37. Global Commission on HIV and the Law, ‘HIV and the Law: Risks, Rights & Health’, July 2012, p. 71. See also: UNICEF, (2010), Blame and Banishment, The Underground HIV Epidemic Affecting Children in Eastern Europe and Central Asia. Available at: http://www.unicef.org/serbia/UNICEF_Blame_and_Banishment%283%29.pdf. THE ROLE OF HUMAN RIGHTS IN RESPONSES TO HIV, TUBERCULOSIS AND MALARIA l 11
  • 14. 38. David Stuckler et al., ‘Mass Incarceration Can Explain Population Increases in TB and Multidrug-Resistant TB in European and Central Asian Countries,’ Proceedings of the National Academy of Sciences of the United States of America, vol. 105(36), September 9, 2008, pp. 13280–85.39. Todrys, K., Amon, J., Malembeka, G., Clayton, M., ‘Imprisoned and imperiled: access to HIV and TB prevention and treatment, and denial of human rights in Zambian prisons’, Journal of the International AIDS Society, 2011, 14.8.40. UNAIDS (2010), Ensuring Non-discrimination on Responses to HIV.41. Strathdee, S.A., Hallett, T.B., Bobrova, N., Rhodes, T., Booth, R., Abdool, R., Hankins, C., ‘HIV and risk environment for injecting drug users: the past, present, and future.’ The Lancet, vol. 376, issue 9737, pp. 268–284, 24 July 2010.42. Roll Back Malaria Partnership, ‘For a Malaria-Free World, Counting Malaria Out’, April 2011, available at: http://www.rbm.who.int/multimedia/rbminfosheets.html.43. UN General Assembly, (2009), ‘Intensification of Efforts to Eliminate All Forms of Violence Against Women’, Resolution 63/155, 30 January 2009.44. Basu, A. and Menon, R., (2011), ‘Violence Against Women, HIV/AIDS Vulnerability, and the Law’. Working Paper prepared for the Third Meeting of Technical Advisory Group of the Global Commission on HIV and the Law, 7–9 July 2011, available at: http://hivlawcommission.org/index.php/report-working-papers?task=document. viewdoc&id=103; Cusack, S., (2010), ‘Advancing Sexual Health and Human Rights in the Western Pacific’, International Council on Human Rights Policy. Available at: http://www.ichrp.org/files/papers/179/140_Simone_Cusack_Western_Pacific_2010.pdf [Accessed on 6 March 2012].45. WHO, (2005), ‘Multi-Country Study on Women’s Health and Domestic Violence against Women: Initial Results on Prevalence, Health Outcomes and Women’s Re- sponse’. Available at: http://www.who.int/gender/violence/who_multicountry_study/en/.46. Open Society Institute (OSI) and the Canadian HIV/AIDS Legal Network (CHLN) (2010), Commitments and Conundrums: Human Rights and the Global Fund on HIV/ AIDS, Tuberculosis and Malaria.47. Supra Note 17.48. See for example, Gay, J., Hardee, K., Croce-Galis, M., Kowalski, S., Gutari, C., Wingfield, C., Rovin, K., Berzins, K., 2010. ‘Strengthening the Enabling Environment’ in What Works for Women and Girls: Evidence for HIV/AIDS Interventions. New York: Open Society Institute, at www.whatworksforwomen.org/chapters/21.19. Enwereji, E.E., ‘Sexual behaviour and inheritance rights among HIV-positive women in Abia State, Nigeria’. Tanzan J Health Res. 2008;10(2):73–8.50. ‘Effect of improved housing on illness in children under 5 years old in northern Malawi: cross sectional study’, Christopher G. Wolff, Dirk G. Schroeder, Mark W. Young, British Medical Journal Paper, 2001.51. UNAIDS Inter-Agency Task Team on Education, ‘Treatment Education: A Critical Component of Efforts to Ensure Universal Access to Prevention, Treatment and Care,’ June 2006, http://unesdoc.unesco.org/images/0014/001461/146114e.pdf.52. WHO, (2003), Community Contribution to TB Care: Practice and Policy. Geneva: WHO/CDS/TB/2003.312.53. Paul Hunt’s official country mission report on Uganda, available at: http://www.essex.ac.uk/human_rights_centre/research/rth/docs/Uganda.pdf.54. See for example, ‘Human Rights approach during emergencies’, available at: http://www.unicef.org/rightsresults/index_23693.html.55. UNDP & OSF, (2011), ‘Fact Sheet: Human Rights and the Three Diseases’. The fact sheet is about human rights and the three diseases – HIV, Tuberculosis and Malaria. It highlights the importance of promoting human rights in response to the three diseases. The fact sheet was developed by UNDP and the Open Society Foundation in collaboration with the Roll Back Malaria and Stop TB Partnerships, and the Ford Foundation in order to support discussions at the Global Fund on HIV/AIDS, TB and Malaria Partnership Forum, held in Brazil in 2011. Available at: http://www.undp.org/content/undp/en/home/librarypage/hiv-aids/factsheet_human_right- shivtbandmalaria/.56. The Global Fund, (2013), ‘The New Funding Mode’l, available at: http://www.theglobalfund.org/en/activities/fundingmodel/.57. The Global Fund to Fight AIDS, Tuberculosis and Malaria, ‘The New Funding Model: Key features and implementation’, December 2012. Available at: http://www. theglobalfund.org/documents/core/newfundingmodel/Core_NewFundingModel_Presentation_en/.58. Investments shall be focused on interventions with proven impact based on the Investment Framework model, a commitment to supporting community-based responses, as well as improved impact on human rights, gender and diversity – The promotion and protection of human rights being the Strategic Objective 4 of the Global Fund’s 2012–2016 Strategy.59. On 25–26 January 2013, the Communities Living with HIV, TB and affected by Malaria Delegation (Communities Delegation) supported by the Global Network of People Living with HIV (GNP+) convened a consultation in Amsterdam, The Netherlands. Representatives at the consultation identified a number of areas the Glob- al Fund must prioritize as the transition to the new funding model progresses: Communities’ role in Monitoring, Watchdog and Validation; Community Dialogue Platforms; Roles and Responsibilities in the NFM; implementation and integration of Community Systems Strengthening (CSS), Human Rights, Gender Equality, Sexual Orientation and Gender Identity (SOGI); and Communication. Please see ‘Communities Delegation of the Board of the Global Fund to Fights AIDS, Tubercu- losis and Malaria, Communities Statement – Communities Consultation on the New Funding Model, 25–26 January 2013, Amsterdam, The Netherlands’. Available at: http://www.aidspan.org/sites/default/files/ddocs/Statement-from-Communities-Consultation-on-NFM.pdf.60. Supra Note 1.61. Ibid.62. Ibid.63. UNAIDS, (2012), Guidance Note ‘Key Programmes to Reduce Stigma and Discrimination and Increase Access to Justice in National HIV Response’. Available at: http:// www.unaids.org/en/media/unaids/contentassets/documents/document/2012/Key_Human_Rights_Programmes_en_May2012.pdf.12 l THE ROLE OF HUMAN RIGHTS IN RESPONSES TO HIV, TUBERCULOSIS AND MALARIA
  • 15. For more information: http://www.undp.org/content/undp/en/home/ourwork/hiv-aids/overview.htmlUnited Nations Development ProgrammeBureau for Development Policy, HIV, Health & Development Group304 East 45th Street, 11th Floor • New York NY, 10017 • United States of America