The Global Commission on HIV and the Law: Building Resilient HIV Responses

By Mandeep Dhaliwal (UNDP) and Emilie Pradichit (Global Commission on HIV and the Law)

Law is a critical element of our response to HIV and public health. It can bridge the divide between vulnerability and resilience. Much in the same way that HIV has exposed health and social inequalities; it has magnified weaknesses in the rule of law that the world can no longer afford to ignore.

Legal frameworks can be powerful tools for countries struggling to control their epidemics. The last three decades have given rise to contentious legal debates on HIV-related issues (e.g.: criminalization of HIV transmission, exposure and non-disclosure; legal restrictions on needle and syringe distribution in the US, on methadone in Russia, versus legal comprehensive harm reduction in Australia). The last few years have seen an insurgence of punitive laws and practices related to drug use, HIV transmission and exposure, sex work, and same sex sexual relations. There is also a growing body of evidence on the relationship between HIV and violence against women. There is enough variation in legal responses to HIV around the world to highlight the need to rigorously examine the impact of different legal environments on HIV outcomes. This is why the Global Commission on HIV and the Law (The Commission) was created: to examine the impact of law on HIV responses and to catalyze action at the country level, to create legal environments which protect and promote human rights.

Over the last eighteen months, the Commission, led by the United Nations Development Programme (UNDP) on behalf of the UNAIDS family, has looked at the relationship between legal responses, human rights and HIV and developed actionable, evidence-informed recommendations for effective HIV responses. Based on an analysis of where the law could transform the AIDS response and send HIV epidemics into decline, the Commission has focused on four areas:

1. Laws and practices which criminalize those living with - and most vulnerable to - HIV;
2. Laws and practices which sustain or mitigate violence and discrimination lived by women;
3. Laws and practices which facilitate or impede access to HIV-related treatment; and
4. Issues of law pertaining to children and young people in the context of HIV.

One of the Commission’s key contributions is its evidence on issues of HIV and the law. The Commission has examined public health and legal scholarship, as well as evidence on the impact of legal environments on the lives of people living with and vulnerable to HIV. Perhaps the most compelling evidence came from the Commission’s seven regional dialogues, held from February to September 2011. To inform its deliberations, the Commission received 644 submissions from 140 countries. 40 per cent of the submissions were from Africa and over 70 percent of the submissions described the daily reality of stigma, discrimination, marginalization, verbal and even physical abuse experienced by people living with HIV. 60 percent of the submissions noted human rights violations lived by women, including barriers to sexual and reproductive health and equal inheritance and property rights. 50 per cent of submissions highlighted the negative health and human rights impact of criminal laws. Submissions also highlighted issues such as the negative impact of laws on age of consent which don’t recognise the evolving capacity of the child and prevent young people from accessing HIV and health services and the problems posed by the current intellectual property regime and trends in intellectual property enforcement, such as free trade agreements, which are impeding the scale up of life sustaining treatment.


Building a movement for enabling legal environments

The regional dialogues in Africa, Asia-Pacific, Caribbean, Eastern Europe and Central Asia, High Income Countries, Latin America and the Middle East created policy space for frank, constructive multi-stakeholder dialogue between those who influence, write and enforce laws, and those experience its impact. Through these dialogues, the Commission heard from over 700 people living with HIV, sex workers, men who have sex with men, transgender people, people who use drugs, police and prison officials, ministers of justice and health, public health officials, parliamentarians, judges and religious leaders. The dialogues have been crucial for identifying how the law can advance health and human rights, for example: where police cooperation with community workers has increased condom use and reduced violence and HIV infection among sex workers; where effective legal aid has made notions of justice and equality real for people living with HIV and contributed to better health outcomes; where advocates have creatively used traditional law in progressive ways to promote women’s rights and health; where court and legislative actions have introduced gender-sensitive law on sexual assault and recognized the sexual autonomy of young persons; where governments have provided harm reduction and HIV infection rates among people who use drugs have dropped. The good practice and constituencies mobilized through these dialogues are vital resources for creating legal environments which support effective HIV responses.

Even before the Commission has launched its final report, country level action on improving legal environments is emerging. For instance, Fiji recently chose to not criminalize HIV transmission and lifted HIV-related travel restrictions; in Guyana, a Select Parliamentary Committee chose not to criminalize HIV transmission; the first ever judicial sensitization on HIV and the law took place in the Caribbean; national dialogues on HIV and the law have been held in Papua New Guinea, Belize, Panama and Nepal; and in Moldova and Kyrgyzstan, patent laws are being reviewed. At the Asia Pacific High-Level Intergovernmental Meeting on HIV which took place in February 2012, several governments announced their intentions to review and reform punitive legal approaches towards key populations. The Commission’s work has also influenced the report of the Commonwealth Eminent Persons’ Group which includes a recommendation for the removal of punitive laws blocking effective HIV responses.

The Commission’s final report will be launched at a global dialogue in July 2012. Undoubtedly, the report will emphasize the necessity for an honest appraisal of prejudice, fear and false morality which have confounded the AIDS response for decades. The Commission’s messages and recommendations will form the basis of the next generation of HIV responses, where governments and citizens approach HIV as an issue of health, development and social justice.

All research and submissions will be available on the Commission website when the final report is launched. All Regional Dialogue materials are already available on the Commission’s website. For more information, visit www.hivlawcommission.org.

Article from the March issue of the IPPF HIV Update newsletter: http://www.ippf.org/en/Resources/Newsletters/HIV+Update+Issue+29.htm