How the law helps – or hinders – the fight against the AIDS epidemic
By Justice Edwin Cameron
It has been almost 35 years since AIDS was identified. Thirty-five long years, since the disquieting realisation that young men in North America, in the prime of their lives, were dying from a hitherto unknown virus.
Over 30 million people have died of AIDS, and Africa has borne by far the heaviest burden of these deaths. That figure leaves us numb. It’s hard to imagine each life, each family, each individual physiology of suffering, and decline and death and bereavement.
They have been long and grief-stricken years, but also years of significant successes – gains hard fought-for, which we must consolidate now, if we are to deal successfully with AIDS.
Across the world, about 36.7 million people are living with HIV now. Of these, around – 19.7 million people – need treatment, but are not getting it. That means that today a disease that, with current medications, is easily manageable is instead sapping the lives and energies and wellbeing of over 19 million people.
HIV does not do its devastating work in isolation. It goes hand in hand with tuberculosis (TB) – and, increasingly, with heart disease and diabetes. We also know that the healthcare services in many countries are desperately lacking. The challenges for governments are huge. To provide quality healthcare for all requires dealing with complex obstacles that are not easily overcome. But they must be overcome.
The Office of the United Nations High Commissioner for Human Rights has released an important report entitled The Right to Health. It declares unequivocally that “No State can justify a failure to respect its obligations because of a lack of resources. States must guarantee the right to health to the maximum of their available resources, even if these are tight … All States must move towards meeting their obligations to respect, protect, fulfil.”
When an epidemic like HIV strikes, governments have a responsibility to respond to the best of their abilities. Equally important, they are obliged to respond according to the best available evidence. With some notable exceptions – particularly the nightmare of AIDS denialism in our own country, South Africa – humanity’s response to the AIDS epidemic has been exceptional. It has shown what can be done when committed healthcare workers, researchers, diplomats, and government officials work with single-minded dedication and focus.
First, medical researchers developed life-saving new treatments. Then, activists campaigned for those treatments to be made available as urgently as possible to the lives that critically needed them. And they fought for them to be affordable, so that everyone – not only the rich – could get treatment.
Millions of lives have been saved, and unspeakable suffering avoided, because of this brave work. And patients’ rights, citizen activism and democracy have been strengthened in the process.
To all of this, the law has been indispensable.
In South Africa, it was because we had a Constitution that allows activists to gather, speak out, organise, protest, engage with a free media, and campaign against governmental obfuscation and delay in making treatment available. And because we had judges of integrity, applying a sound Constitution, government was ordered in 2002 to start making ARV treatment available. It started with pregnant women living with HIV. Within two years, government had done what it should have years earlier: it promised South Africans they would get what the activists had demanded – a national treatment program.
Today, because of the Constitution, the rule of law, brave, principled activists, and straight-backed judges, South Africa has the world’s largest publicly provided ARV treatment program. More than three million South Africans, like myself, are on ARV treatment. And its boundaries are constantly expanding. Recently, Health Minister Aaron Motsoaledi announced that everyone with HIV, regardless of CD4 count, would receive ARVs.
Elsewhere in Africa, the law, constitutional rights and judges who take them seriously have also had an impact. Just a few months ago the High Court in Kenya ruled against the forced incarceration of two TB patients.
In 2012, the Global Commission on HIV and the Law released a pivotal report. It was entitled Risks, Rights, and Health. It offers a roadmap to ensure that no country’s legal framework stands in the way of our shared struggle against HIV and that laws help rational, healing intervention in the epidemic.
The report wisely notes the potential uses of the law – but also how these have been squandered. It notes: “The legal environment – laws, enforcement and justice systems – has immense potential to better the lives of HIV-positive people and to help turn this crisis around … But nations have squandered the potential of the legal system. Worse, punitive laws, discriminatory and brutal policing and denial of access to justice for people with and at risk of acquiring HIV are fuelling the epidemic.”
The report amply embraces international law and standards. It explains that “Equality and non-discrimination, inviolable in every key international human rights agreement, are the pillars on which all other human rights rest. So, although there is no binding international law expressly prohibiting discrimination on the basis of HIV status, those two principles guide and support the denunciation of discrimination related to HIV status and against the people it affects.”
A central feature of the Global Commission’s report is its strictures against the damaging, retrograde use of the law to criminalise HIV.
Laws that target people with, or at risk of, HIV are deeply wrong, and deeply bad. They fly in the face of elementary principles of human rights.
The report embraces the gold plate principle of HIV and human rights: that it is both wrong, and counterproductive, to single out people with or at risk of HIV for punitive measures. Measures that violate rights and increase the spread of HIV.
“The criminal justice system,” the report points out, “fights the health care system—one repelling, the other reaching out to people vulnerable to or affected by HIV. By dividing populations into the sick and the healthy or the guilty and the innocent, criminalisation denies the complex social nature of sexual communities and fractures the shared sense of moral responsibility that is crucial to fighting the epidemic.”
The lesson is plain. We cannot minimise the impact of AIDS on our societies in a legal environment that disrespects human rights.
Evidence. Evidence. The lawyer’s building block. And evidence is too often disregarded in the epidemic.
Discriminatory laws or actions against vulnerable populations have retrograde effects. Vulnerable communities include people who inject drugs, sex workers, men who have sex with men (MSM), transgender persons, and prisoners. Their rights to human dignity and equality should be embraced.
The Global Commission powerfully recommended inclusive approaches to gender diversity. It urged that “Countries must reform their approach towards sexual diversity. Rather than punishing consenting adults involved in same-sex activity, countries must offer such people access to effective HIV and health services and commodities.” Similar recommendations were made for other so-called key populations.
Justice and human dignity align strongly with our vision of ending death, discrimination and suffering in the AIDS epidemic.
Regressive laws that prohibit homosexuality are an affront to our dignity as human beings. They are also a terribly wrong step for public health reasons. Similarly, targeting those with, or at risk of, HIV with criminal laws does nothing to promote the interests of justice. Nor does it advance our struggle against HIV.
Many countries continue to apply these discriminatory laws. Many of these same countries also have high HIV rates. The lesson is stark.
In addition, many countries continue unnecessarily to defer excessively to intellectual property rights. They haven’t taken the recommended steps to ensure a more just balance between the right to health and the interests of patent holders.
The commission’s recommendations were published more than four years ago. It’s disappointing that more governments haven’t implemented its insightful, evidence-based recommendations.
The right to health is the right to the enjoyment of the highest attainable standard of physical and mental health. There are and can be no exceptions. Regardless of sexual orientation, job status, or HIV status, everyone has the right to health. If we do not take this right seriously, we will struggle to bring an end to HIV, TB and all the other epidemics threatening our communities.
By doing the right thing, by abolishing discriminatory, harsh, stigmatising laws, and by enacting protective laws, we also do the best thing to reduce the impact of the epidemic. As lawyers and policy-makers, we should know to be guided by the evidence.
Justice Edwin Cameron is a judge at the Constitutional Court of South Africa.
The HIV and the Law Commission report can be found at http://hivlawcommission.org/index.php/report