HIV and the Law-Risks, Rights & Health


Thursday, 25 October 2012, IFHHRO

Earlier this year, the Global Commission on HIV and the Law published a report presenting the available evidence on human rights and legal issues relating to HIV: HIV and the Law: Risks, Rights & Health.

The Global Commission on HIV and the Law consisted of fourteen individuals who advocate on issues of HIV, public health, law and development. Some of the Commission’s findings include:

  • 123 countries have legislation to outlaw discrimination based on HIV, and 112 legally protect at least some populations based on their vulnerability to HIV. However, these laws are often ignored or badly enforced.
  • In over 60 countries it is a crime to expose another person to HIV or to transmit it, especially through sex. At least 600 individuals living with HIV in 24 countries have been convicted under HIV-specific or general criminal laws.
  • In many countries, the law dehumanises many of those at highest risk for HIV: sex workers, transgender people, men who have sex with men (MSM), people who use drugs, prisoners and migrants. Rather than providing protection, the law renders these “key populations” all the more vulnerable to HIV. The criminalisation of sex work, drug use and harm reduction measures create climates in which civilian and police violence is rife and legal redress for victims impossible.
  • 78 countries make same-sex activity a criminal offence, with penalties ranging from whipping to execution.
  • A growing body of international trade law and the over-reach of intellectual property (IP) protections are impeding the production and distribution of low-cost generic drugs. IP protection is supposed to provide an incentive for innovation but experience has shown that the current laws are failing to promote innovation that serves the medical needs of the poor. The fallout from these regulations—in particular the TRIPS framework—has exposed the central role of excessive IP protections in exacerbating the lack of access to HIV treatment and other essential medicines.

Reason for hope

Notwithstanding these problems, the Commission has found reason for hope: “There are instances where legal and justice systems have played constructive roles in responding to HIV, by respecting, protecting and fulfi lling human rights. To some such an approach may seem a paradox—the AIDS paradox. But compelling evidence shows that it is the way to reduce the toll of HIV.” Examples given are police cooperation with community workers who assist sex workers; the promotion of harm reduction programmes for injecting drug users; effective legal aid for people living with HIV; and court actions and legislative initiatives promoting the rights of sexual minorities, women and young people. Despite international pressures to prioritise trade over public health, some governments
and civil society groups are using the law to ensure access to affordable medicines, while exploring new incentives for medical research and development.

The report is available in English, Spanish,French and Russian.

Download HIV and the Law: Risks, Rights & Health