Human Rights and Public Health in the AIDS Pandemic

233 Pages·1997·13.08 MB·English

by  Lawrence O. Gostin

Human Rights and Public Health
in the AIDS Pandemic
This page intentionally left blank
Human Rights and
Public Health in
the AIDS Pandemic
LAWRENCE O. GOSTIN, J.D., LLD. (HON.)
Professor of Law, Georgetown University Law Center
Co-Director, Georgetown/Johns Hopkins University Program
on Law and Public Health
ZITA LAZZARINI, J.D., M.P.H.
Lecturer, Harvard School of Public Health
New York Oxford
OXFORD UNIVERSITY PRESS
1997
Oxford University Press
Oxford New York
Athens Auckland Bangkok Bogota
Bombay Buenos Aires Calcutta Cape Town
Dar es Salaam Delhi Florence Hong Kong Istanbul
Karachi Kuala Lumpur Madras Madrid
Melbourne Mexico City Nairobi Paris
Singapore Taipei Tokyo Toronto
and associated companies in
Berlin Ibadan
Copyright © 1997 by Oxford University Press
Library of Congress Cataloging-in-Publication Data
Gosttn, Larry O. (Larry Ogalthorpe)
Human rights and public health in the AIDS pandemic /
Lawrence O. Gostin, Zita Lazzarini.
p. cm. Includes bibliographical references and index.
ISBN 0-19-511442-6
1. AIDS (Disease)—Patients—Legal status, laws, etc.
2. Public health laws.
3. Human rights. 4. Public health—Government policy.
I. Lazzarini, Zita.
II. Title.
K3575.A43G67 1997 349.73'08'80814—dc20 [347,300880814] 96-33501
987654321
Printed in the United States of America
on acid-free paper
For
Jean, Bryn, and Kieran
(L.O.G.)
Gary, Ariel, Lucca, and Salem
(Z.L.)
This page intentionally left blank
Foreword
The Universal Declaration of Human Rights begins with a recognition of the inherent
dignity and the equal and inalienable rights of all people. This is also where the funda-
mental relationship between human rights, health, and non-discrimination is embedded,
giving rise to a highly topical human rights issue, namely that of human rights of people
living with HIV/AIDS. The relationship between human rights and HIV/AIDS is com-
plex: the protection of human rights is necessary to reduce vulnerability to HIV infec-
tion and to eliminate all forms of discrimination practised against those living with HIV/
AIDS, their families, and friends.
It is not necessary to recount the numerous charters and declarations on HIV/AIDS
and human rights to understand human rights in the context of HIV/AIDS. All persons
are born free and equal in dignity and rights. Everyone, including persons seeking to
avoid HIV infection, as well as persons living with HIV/AIDS, is entitled to all the rights
and freedoms set forth in the international human rights instruments without discrimi-
nation, such as the rights to life, liberty, security of person, privacy, health, education,
work, social security, and to marry and found a family. Yet, violations of human rights
in the context of HIV/AIDS are a reality to be found in every corner of the globe.
Public health should not be used by states as a justification for coercive powers against
persons living with HIV/AIDS. Measures such as the loss of liberty and discriminatory
practices in employment, housing, education, insurance and travel continue to affect
people living with HIV/AIDS in many countries. Yet, coercive and discriminatory powers
do not necessarily promote public health. Coercion and discrimination, by driving people
away from prevention and treatment services, can fuel the HIV/AIDS pandemic. One
clear message needs to be sent: respect for human rights and advancement of the public
health are not in conflict, but in harmony. People cannot fully enjoy and exercise their
human rights if they are not healthy, and people cannot remain healthy if they are de-
prived of their rights.
There exists, therefore, an obligation by states to provide populations, within the limits
of their resources, with prevention services, including clear and targeted health infor-
mation necessary to reduce their risk of contracting HIV infection. It is critically im-
portant that individuals and groups be granted access to information necessary to make
informed choices about their health as well as the means to protect themselves, in a
manner consistent with universally recognized human rights standards yet reconciled
within different cultures and religions.
Some groups in society suffering from discrimination in the enjoyment of their fun-
damental rights and freedoms, such as women and children, are frequently at dispro-
viii Foreword
portionally higher risk of HIV/AIDS infection. Substantial efforts are needed by gov-
ernments and society to protect the rights of such vulnerable groups at the international,
national, and local levels. Effective and action-oriented measures to improve their dis-
advantaged legal, social, and economic status would not only assure the protection of
their human rights and fundamental freedoms, but would also lower the risk of HIV
infection.
The social and legal status of women in many societies illustrates the connectedness
of HIV/AIDS and human rights. Laws, traditions, customs, and practices in some cul-
tures and religions promote the subordinate status and exploitation of women in mar-
riages and relationships, thereby directly increasing women's and their children's vul-
nerability to HIV infection. The protection of human rights of children is indispensable
to avoid their infection or for them to be able to cope when confronted with HIV/AIDS.
To guarantee freedom from sexual exploitation and trafficking is even more critical in
view of the HIV/AIDS pandemic.
Professor Gostin and Ms. Lazzarini develop with clarity and rigor the fundamental
relationships between health and human rights. Their book, and its message of respect
for human rights and the promotion of health, demands attention both within the human
rights community and the public health community.
As Professor Gostin and Ms. Lazzarini explain in their text, for far too long public
health professionals have regarded human rights as peripheral to their interests, failing
to see how critical human rights are to achieving improved health for the population.
Human rights groups have yet to find the most effective way to integrate health-related,
and in particular HIV/AIDS, concerns in their mandates. Our purpose in jointly writing
this foreword is to dispel these myths and overcome prevailing apathies. We ask our
respective communities to see the synergy between public health and human rights and
to embrace both in their important work. The journey begins with a recognition of the
inherent dignity and equal rights of all people and an understanding that the protection
of human health is indispensable for the protection of the human rights and fundamen-
tal freedoms of everyone.
Peter Piot
Executive Director, Joint United Nations Programme on HIV/AIDS
Jose Ayala-Lasso
United Nations High Commissioner for Human Rights
Acknowledgments
We owe a great intellectual debt to many organizations and individuals who have worked
tirelessly on the relationships between health and human rights. The Joint United Na-
tions Programme on HIV/AIDS (UNAIDS)—cosponsored by the United Nations In-
ternational Children's Educational Fund (UNICEF), the United Nations Development
Programme (UNDP), the United Nations Fund for Population Activity (UNFPA), the
United Nations Educational, Scientific and Cultural Organization (UNESCO), the World
Health Organization (WHO), and the World Bank—was instrumental in facilitating this
book. The approach of UNAIDS, energetically led by Peter Piot, is that the HIV/AIDS
pandemic affects not only public health, but also the economy, educational and resource
capabilities, development gains, and human rights within countries. Susan Timberlake,
human rights adviser for UNAIDS, has been indispensable not only in relation to this
book but in her leadership in bridging the human rights and HIV/AIDS communities.
The original idea for this book arose when one of us (L.O.G.) led the staff at the World
Health Organization Global Programme on AIDS (GPA) in an in-house reflection on
human rights during the summer of 1991 in Geneva at the invitation of Michael Merson
and Dorothy Blake. Several legal and human rights officers for GPA, including Katarina
Tomasevski, Lane Porter, and Kelvin Widdows, provided valuable comments and guid-
ance throughout the process. The rigorous work of Sev Fluss, then Chief of Health
Legislation and now human rights coordinator at WHO, has been invaluable. Dr.
Zbigniew Bankowski, Director of the Council of International Organizations of Medi-
cal Sciences (CIOMS), contributed richly to our thinking about the research questions
explored in this book.
The fundamental connections between health and human rights, and generally be-
tween AIDS and human rights, have been the subject of ongoing interest for a wonder-
ful group of friends and colleagues at the Harvard School of Public Health's Frangois-
Xavier Bagnoud Center on Health and Human Rights. Group discussions have informed
our research and teaching, as well as our personal concern and dedication to interna-
tional human rights. Jonathan Mann, Frangois-Xavier Bagnoud Professor of Health and
Human Rights, has been an inspirational colleague in exploring the relationship between
public health and human rights. He was particularly instrumental in development of the
human rights impact assessment and jointly authored the first publication of its prin-
ciples (Gostin, Mann, 1994). Sophia Gruskin also richly participated in our discussions
of the human rights impact assessment.