Written statement submitted by the International Council of AIDS Service Organizations -- ICASO (a Non-Governmental Organization on Roster)1 On the Resolution

2005/84 The protection of human rights in the context of human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS) Amidst the ignorance and fear of HIV, people living with HIV, as well as those who are perceived to be infected, affected or are most vulnerable, continue to suffer stigma, discrimination and violation of their human rights. For them and for their advocates, human rights violations are a primary concern as they constitute the main barrier to access prevention, care, treatment and support services and commodities that can mean the difference between life and death. Human rights emphasize the dignity of all, without distinction, and include the right to be free from arbitrary arrest, discrimination, detention, and violence. It also includes the rights to information, health, education and work, among others. Thus, laws that criminalize sex work, drug use, and sodomy can be seen as examples of violations of human rights. Over the last ten years, numerous Resolutions, Declarations and Guidelines have been developed and agreed upon, providing guidance to, and commitments and promises from, governments on, among other things, a comprehensive - human-rights based framework to limit the spread of HIV and reduce the impact of AIDS. The International Council of AIDS Service Organizations (ICASO) would like to highlight, however, that based on extensive research conducted over the last 3 years, governments are failing in their commitments and promises and are not implementing the guidance provided. Some examples are: Most countries have policies and laws which ensure equal access to HIV-related services for key populations, but many of these same countries have laws or policies that impede access to HIV services, particularly prevention services, such as in the case of criminalizing certain behaviors or occupations. Sex workers, men who have sex with men and people who use drugs all face coercion, harassment, violence and sometimes murder due to legislation and law enforcement practices that violate basic human rights guaranteed by international conventions. Repressive policies toward people who use
Statement supported by the Global Working Group on HIV and Sex Work Policy, The Global Forum on MSM and HIV (MSMGF), the International Community of Women Living with HIV/AIDS (ICW) and the Global Network of People living with HIV/AIDS (GNP+). NOTE: most of the information collected for this statement has been presented at different fora and in different formats. Some of the information presented in this statement has been provided by partner organizations (listed above). ICASO does not claim ownership of all the information presented.
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drugs, sex workers, and sexual minorities, create obstacles to accessing treatment and other services. More than 50% of countries have laws criminalizing consensual sex between males and sex work, prohibiting condoms and needle access for prisoners, and using residency status to restrict access to prevention and treatment services. These laws are problematic for effective HIV-programming. It is not sex work per se that makes sex workers vulnerable to HIV, but rather the policies that repress and prosecute them; at the heart of the problem lies the fact that sex work is not recognized as legitimate work. When sex work is not seen as legitimate work, sex workers face numerous rights violations including the right to life, physical and moral inviolability; right to work, health, and sexual and reproductive rights. One cannot fight HIV without fighting stigma, discrimination and violence against sex workers. The double stigma against HIV and sex work is used to justify violence and police repression. Misguided efforts to equate sex work with trafficking and sexual exploitation makes almost all aspects of buying and selling sex and associating with sex workers (including providing HIV-prevention services) illegal. Anti-prostitution policies, tied to policies that criminalize sex work, have resulted in sex workers being arrested under the pretense that they are victims of sexual slavery and trafficking. In order to protect them, sex workers are imprisoned in rehabilitation centers where they are often raped by law enforcement officers and can only escape by paying off large bribes. Anti-prostitution policies focus on the provision of life choices and occupational alternatives to sex work rather than improving conditions for sex workers which are key to preventing and treating HIV. Efforts to address the crime of trafficking that focus on the sex industry have led to the detention and human rights violations of people who have no connection to human trafficking. A rights-based approach to sex work that includes sex workers as part of the solution would encourage the dedication of much-needed resources to the investigation of trafficking for labor, which is more prevalent than trafficking into the sex industry but receives far less attention. Men who have sex with men (MSM) and other sexual minorities face high rates of HIV prevalence. However, many lack basic human rights protections and access to HIV services that would help reduce HIV incidence. Published research has shown that men who have sex with men have an average 19 times greater chance of being infected with HIV than the general adult male population in low- and middle income countries. Although MSM are recognized as a group with an elevated risk for HIV, the reality is that only 1 in 20 MSM worldwide has access to HIV prevention, care or treatment. Even less is known about the impact of HIV and access to HIV services for transgender individuals. This is caused in large part by the fact that MSM and transgender people are inadequately represented in planning processes, and their needs are often explicitly excluded in HIV priority-setting. The result is a widening and unacceptable disparity in resources devoted to programs focusing on sexual minorities.

Such inequalities worsen an already dire public health situation in a context where persistent human rights abuses severely complicate efforts towards universal access. This is reflected in Hijra communities, where HIV infection rates have reached as high as 50%. This elevated risk is a reflection of both overt and covert marginalization that is often expressed through silence, denial or explicit exclusion. As of 2008, MSM face arrest in 85 countries if they openly state their sexual orientation, the penalties for which can include lengthy imprisonment or death sentences. In Central American countries, there is widespread harassment by police and discrimination by healthcare providers. Sexual minorities are also persecuted in India, China, Egypt and many countries in the Middle East. Two-thirds of African countries criminalize male-tomale sex. While approximately 30 percent of new HIV infections outside of sub-Saharan Africa are due to injecting drug use, less than five percent of people who inject drugs have access to HIV prevention and treatment services. Millions of individuals are prosecuted by the state, persecuted by state agents including police, and hundreds of thousands jailedtheir only wrong being that they have used drugs. Hundreds of thousands of people who use drugs die each year of drug overdoses, tuberculosis and HIV-related infections, all of these could be prevented by providing services for drug users, clean needles, and decriminalizing drug use. People who use drugs will not access health care or prevention commodities if they fear persecution, arrest or discrimination that are part of the war on drugs campaigns in many countries; these campaigns against social evils drive marginalized groups further underground and create an environment that impedes access to lifesaving education, treatment and prevention services. Despite the overwhelming evidence pointing to the effectiveness of harm reduction strategies in reducing the risk of HIV infection, and despite the fact that methadone and buprenorphine are included on the World Health Organization list of essential medicines, needle exchange programs and opiate substitution therapy remain unavailable for the overwhelming majority of the people who need them. And for people who use drugs who are HIV positive, around the world access to ARVs remains limited at best. While many countries report having laws that protect men and women living with HIV (PLHIV) from discrimination, some still lack basic legal protections. Where such protections do exist, people living with HIV continue to face stigma, discrimination and violence, which prevent them from accessing HIV services and being able to act on prevention and treatment information. Current efforts to document discrimination of women living with HIV are underway in different parts of the world. Results from one country in Africa show that of the 230 women living with HIV interviewed, 40 had been coerced or forced into sterilization. Cases documented demonstrate that many of the sterilizations occurred in state hospitals.

Specific violations include demanding sterilization in order to access other necessary services including abortion and childbirth; testing women without consent; sterilization without full informed consent; sterilizing women during other procedures and without their knowledge (most often a caesarean section); and presenting misinformation to convince women that they should be sterilized. Alongside direct violations of womens human rights based on their HIV status, laws which discriminate against women generally including laws on property ownership, travel, and inheritance impact womens vulnerability to HIV. Despite repeated commitments by governments, the UN and the private sector to provide antiretroviral (ARV) treatment (recently within the global commitment to reach universal access to prevention, treatment and care by 2010) severe barriers still exist at country level. Despite reductions in price of 1st and 2nd line treatments, for the most part, they continue to be out of reach for the vast majority of those who need them and therefore impinge on their rights to health and life. People remain afraid to learn their HIV status for fear of stigma, exclusion and discrimination, and therefore are not accessing the services they need and the programs are not responding to the most affected by the epidemic (because governments deny their existence and exclude key populations). In many countries, even though the labor legislation prohibits the exclusion of PLHIV from the workforce, applicants are subject to discrimination when applying for or retaining a job, once it is disclosed they are HIVpositive. Routine testing has the potential to create (and have already created in some countries) a coercive testing environment. Such policies are in and of themselves discriminatory and violate human rights. The realities in practice are far worse. There are significant negative repercussions, especially for women and girls, with respect to their health and safety, including discrimination and violence (including gender-based and sexual violence). Testing must be voluntary and consensual. There must be adequate pre and post test counseling. These are prerequisites to ensure the rights and health of all affected populations. Many countries continue to have HIV-related travel restrictions, banning the entry or stay of people living with HIV. This constitutes a human rights violation that is unsupported by any public health rationale, is contradictory to WHO direction, and adds to HIV-related stigma and discrimination. Leaders from all around the world have called for these travel restrictions to be removed. Current efforts by governments to stop the spread of HIV through criminalization of HIV transmission and exposure need to be stopped. Criminalizing people living with HIV is not effective, raising not only significant human rights concerns but also undermining public health approaches. Despite the assertion that such laws are intended to protect women, laws that criminalize HIV transmission create a situation in which women could be prosecuted for transmitting the virus to her fetus, child, or sexual

partners, even when revealing her HIV status may result in violence or discrimination. Criminalizing HIV transmission and exposure also may lead to the selective prosecution of individuals in marginalized communities including sex workers, people who use drugs and sexual minorities. Rather than criminalize people living with HIV, states should direct their efforts and resources to empower and protect people living with HIV so they can seek testing, safely disclose their status, access treatment, and practice safer behavior without fear of stigma, discrimination and violence. Safer behavior includes having access to accessible, affordable, effective and safe prevention tools, such as female and male condoms, lubricants and sterile injecting equipment, which are much more effective at preventing HIV transmission than criminal laws. We call on the Human Rights Council to urge governments to: 1. Implement in full the Declaration of Commitment (DoC) and the Political Declaration, including reaching universal access by 2010, adopted at the United Nations General Assembly Special Session on HIV/AIDS (UNGASS) in 2001 and 2006 and respectively and truthfully report on all aspects of its implementation as part of the 2011 reporting round. Develop and implement legal and policy frameworks grounded in human rights norms and standards that provide effective protection for people living with HIV and key populations against discrimination and violence (including gender-based and sexual violence). This includes decriminalizing key populations such as sex workers, men who have sex with men, transgender people and people who use drugs2, and ensuring legal protections against discrimination of people living with HIV and violence against women and girls. Without this, governments will fail to meet their commitments to universal access to prevention, treatment, care and support by 2010. Immediately repeal existing legislation and halt any efforts to pass legislation criminalizing HIV transmission and exposure, as well as abolish any laws that prosecute HIV transmission or exposure. Criminalizing transmission of HIV is counterproductive to our efforts to prevent HIV and promote health and human rights. Abolish laws that discriminate against women and girls, contribute to the violation of the rights of women and girls and impact the vulnerability of women and girls to contracting HIV.

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In line with UNSG Ban-Ki Moon appeal to [g]uard against legislation that blocks universal access by criminalizing the lifestyles of vulnerable groups. We have to find ways to reach out to sex workers, men who have sex with men and drug users, ensuring that they have what they need to protect themselves. (March 28, 2008).

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Involve key populations, including (but not limited to), people living with HIV, sex workers, people who use drugs, MSM, transgender people, and others in policy and program design and implementation. Develop redress mechanisms for human rights violations. Despite the many human rights violations experienced by people living with HIV and other key populations such as sex workers, people who use drugs and men who have sex with men and other sexual minorities, very few have felt comfortable to file cases or have sought redress for human rights violations. We call on the Human Rights Council to pressure governments to institute a system wherein redress for human rights violations for key populations can be sought.

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We also ask the Human Rights Council to support the Special Repporteurs on the Right to Health, on Violence against Women and on Human Rights Defenders to investigate and report on: 1. The situation of coerced and forced sterilization of positive women in Namibia 2. The impact of criminalization of HIV transmission and exposure against marginalized groups and selective prosecution