Manual on International Human Rights Protection for People Living with HIV/AIDS

Manual on International Human Rights Protection for People Living with HIV/AIDS 1st edition (2020)

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Table of Contents PREFACE

I. About the Authors

II. About HIV/AIDS

III. Why a Manual on the Rights of People Living with HIV/AIDS (PLWHA)?

IV. Overview of the Manual V. Disclaimers and Caveats

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8 11 12

WHAT HUMAN RIGHTS DO PEOPLE LIVING WITH AND AFFECTED BY HIV/AIDS HAVE? WHAT ARE THEY AND WHERE ARE THEY WRITTEN? 15

I. A Very Quick Introduction to International Human Rights 20

II. Human Rights Particularly Relevant to PLWHA

A. Obligation of Non-Discrimination and Equality

21 B. Right to Life 22 23

C. Right to Liberty and Security of Person

D. Right to Health 24 E. Right to Science 25 F. Right to Education 26

G. Right to Freedom of Expression and Information 27 H. Right to Privacy 28

I. Right to Marry and Found a Family

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J. Right Not to Be Subject to Torture and Cruel, Inhuman,

or Degrading Treatment

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K. Rights to Freedom of Movement, Residency, and Asylum 31

L. Right to a Remedy

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WHAT INTERNATIONAL MECHANISMS ARE AVAILABLE TO PLWHA? AND WHAT IS THEIR JURISPRUDENCE? 34 AT THE GLOBAL LEVEL (UNITED NATIONS) 36 38 A. Treaty Bodies

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1. General Comments

i. Human Rights Committee 43

ii. Committee on Economic, Social, and Cultural Rights (CESCR) 44

Obligation of Non-Discrimination and Equality 44 Right to Health 45

iii. Committee on the Rights of Persons with Disabilities 46

iv. Committee on the Elimination of Discrimination against Women 46 46

Obligation of Non-Discrimination and Equality Right to Education 48 48

Right to a Remedy

v. Committee on the Rights of the Child

HIV/AIDS and the rights of the child

Obligation of Non-Discrimination and Equality

Right to Health

Right to Education

Prohibition of Torture, and Cruel, Inhumane or

Degrading Treatment vi. Committee on Migrant Workers

Obligation of Non-Discrimination and Equality vii. Committee on the Elimination of Racial Discrimination viii. Committee Against Torture

48 48 50 53 54 54 54 55 55 55

2. State Periodic Review by Treaty Bodies and Concluding

Observations 56

i. Human Rights Committee 56

Obligation of Non-Discrimination and Equality 56 Right to Privacy 57

Right to Freedom of Movement, Asylum, and Residency 58

ii. Committee on Economic, Social, and Cultural Rights

(CESCR) 58

Obligation of Non-Discrimination and Equality 58 Right to Health 61

Right to Marry and Found a Family 63

iii. Committee on the Rights of Persons with Disabilities 63

Obligation of Non-Discrimination and Equality 63 63

Right to Freedom of Expression and Information

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iv. Committee on the Elimination of Discrimination

64 Against Women

Obligation of Non-Discrimination and Equality 64

Right to Health

66 Right to Privacy 67 Right to Education 67

v. Committee on the Rights of the Child 68 68

Obligation of Non-Discrimination and Equality Right to Health 70

Right to Freedom of Expression and Information 71

vi. Committee on Migrant Workers 72 72

Obligation of Non-Discrimination and Equality

Right to Marry and Found a Family 72

Right to Freedom of Movement, Asylum and Residency 72

vii. Committee on the Elimination of Racial Discrimination 73

viii. Committee Against Torture 73

3. Treaty Body Views on Individual Communications 75

i. Human Rights Committee 78 Toonen v. Australia 78 Nenova et al. v. Libya and A.M.H. El Houjouj Jum’a et al. v. Libya 79 82

McCallum v. South Africa

Morales Tornel et al. v. Spain 85 Chiti v. Zambia 87

ii. Committee Against Torture 89

Njamba and Balikosa v. Sweden 90 L.J.R. v. Australia 91

B. Charter Bodies 93 1. Human Rights Council 93

i. Universal Periodic Review (UPR) 95

Obligation of Non-Discrimination and Equality 95 The Right to Health 96 The Right to Information 96 97

ii. Special Procedures AT THE REGIONAL LEVEL 100 101

I. THE INTER-AMERICAN HUMAN RIGHTS SYSTEM

A. Inter-American Court of Human Rights 105

Luis Rolando Cuscul Pivaral et al. v. Guatemala 105

Duque v. Colombia 116

Gonzales Lluy et al. v. Ecuador 118

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B. Inter-American Commission on Human Rights

i. Petitions

F.S. v. Chile

J.S.C.H. and M.G.S. v. Mexico

Jorge Odir Miranda Cortez et al. v. El Salvador

ii. Rapporteurships

120

II. THE EUROPEAN HUMAN RIGHTS SYSTEM

A. European Court of Human Rights

D v. the United Kingdom

Kiyutin v. Russia

N v. the Unted Kingdom

A.B. v. Russia

E.A. v. Russia

X. v. France

I.B. v. Greece

Armonas v. Lithuania

Centre for Legal Resources on Behalf of Valentin

Câmpeanu v. Romania

130 131 132 133 134 136

144 146 150

III. THE AFRICAN HUMAN RIGHTS SYSTEM

A. African Commission on Human and Peoples’ Rights B. African Court on Human and Peoples’ Rights

120 122 126

137

138 139 141 142

IV. THE SOUTH-EAST ASIAN HUMAN RIGHTS SYSTEM

151

V. THE ARAB WORLD HUMAN RIGHTS SYSTEM

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ANNEXES

Annex A - Abbreviations

Annex B - Table of Cases and Treaty Body Views

Annex C - Treaty Body General Comments

Annex D - Table of Treaties and Other Legal Instruments

Annex E - Other Manuals on the Rights of PLWHA

Annex F - International Human Rights Clinics

ENDNOTES

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158 160 162 166 168 170

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Preface I. About the Authors

This manual has been prepared by the International Human Rights Center (IHRC) of Loyola Law School, Los Angeles. The IHRC is committed to achieving the full exercise of human rights by all persons, and seeks to maximize the use of international and regional political, judicial, and quasijudicial bodies through litigation, advocacy, and capacitybuilding¹. Loyola Law School, Los Angeles, is the school of law of Loyola Marymount University, a Jesuit university ².

The IHRC is directed by Dr. Cesare Romano, Professor of Law and W. Joseph Ford Fellow. Several students and staffers worked throughout four years on this manual, including: Mary Hansel (IHRC Deputy Director 2016–2018), Alik Ourfalian (JD 2018), Erin Gonzalez (JD 2018), Susan Perez (JD 2019), Dalanee Hester (JD 2021), Arianna Allen (JD 2021), Ana Victoria Hernandez (JD 2021), Nicoline Cu (JD 2021) and Queenesther “Trish” Egbeogu (LLM 2020). Without their work, the manual would not have been possible. Credit must also be given to Saeri Dobson, Professor of Graphic Design and Chair of Studio Arts, College of Communication and Fine Arts, Loyola Marymount University, for helping turn the manuscript into a book, and to Laura Cadra, Head of Reference/Foreign and International Law Librarian, Loyola Law School, Los Angeles, for her research guidance.

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II. About HIV/AIDS

Let’s start with some basic facts about HIV and AIDS. HIV stands for Human Immunodeficiency Virus. AIDS stands for Acquired Immunodeficiency Syndrome. HIV and AIDS are related, but different, conditions. Infection with HIV is the underlying cause of AIDS. AIDS is the most advanced stage of HIV infection. AIDS was first diagnosed in 1981. HIV was discovered and identified as the cause of AIDS in 1983.

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HIV is a retrovirus. It infects cells of the human immune system and destroys or impairs their function. Infection with the HIV retrovirus results in the progressive depletion of the immune system, leading to immunodeficiency, a condition in which the immune system’s ability to fight infectious diseases and cancer is compromised or entirely absent, opening the door to a wide range of “opportunistic infections,” the most common of which is tuberculosis (TBC).

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The level of immunodeficiency or the appearance of certain infections are indicators that HIV infection has progressed to AIDS. AIDS is a fatal condition for which no cure has been found yet. However, most people with HIV have not developed AIDS, yet. Indeed, most HIV patients survive many years following diagnosis, and the life expectancy of those infected

by HIV continues to increase as scientific research advances.

With proper medical care, HIV can be controlled. So far, the most effective therapy to suppress HIV is called Antiretroviral Therapy (ART), which consists of a combination of at least three antiretroviral drugs. If people with HIV take the mix of drugs comprising the ART as prescribed, their viral load (i.e. amount of HIV in their blood) can become undetectable. If it stays undetectable, they can live long and healthy lives, with a low risk of transmitting HIV. In the three decades since HIV was first reported, global infection and death rates have declined. This is due to improved access to antiretroviral therapy, which increases life expectancy and reduces the likelihood of transmission.

However, the greatest declines have been achieved in the richest parts of the globe.

In scientific terms, HIV and AIDS are an epidemic and a pandemic. An epidemic is “the occurrence of more cases of a disease than would be expected in a community or region 5 during a given time period.” A pandemic is “an epidemic that becomes very widespread and affects a whole region, a continent, 6 or the world…”. According to UNAIDS, the United Nations program on HIV/AIDS, at the end of 2018 about 37.9 million people globally were living with HIV. Since the beginning of the epidemic, in total about 74.9 million people have become infected with HIV, and about 32 million people have died from AIDS-related illnesses. In June 2011, the UN General Assembly declared that the HIV epidemic/pandemic is “an unprecedented human catastrophe inflicting immense suffering on countries, 7 communities and families around the world.”

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This manual has been prepared for people living with HIV/AIDS (PLWHA), their families and communities, and the organizations and advocates assisting them. It intends to help them identify their internationally sanctioned human rights, as well as the global and regional mechanisms for legally asserting them. It also includes an up to date (2019) overview of the relevant global and regional jurisprudence.

III. Why a Manual on the Rights of People Living with HIV/AIDS (PLWHA)?

Protection of human rights and the response to the HIV/AIDS pandemic are closely interconnected. Progress on one supports progress on the other; lack of progress on one undermines efforts to make progress on the other. The HIV/AIDS pandemic undermines efforts to make progress in the full realization of everyone’s human rights and to reduce inequality between countries and within countries.

Internationally, HIV/AIDS disproportionately affects poor regions and countries. The vast majority of people living with HIV are in low and middle-income countries. According to UNAIDS, the overwhelming majority of people living with HIV/AIDS are in 8 Africa (70% of the total). Within Africa, most are in Eastern and Southern Africa (20.6 million, or 57% of the total) and another 5 million (13%) in Western and Central Africa. Almost six million (5.9 to be precise) (16%) are in Asia and the Pacific. Only 6 percent of the estimated total of people living with HIV (2.2 million) are 9 in Western and Central Europe and North America. Of the 37.9 million people living with HIV in the world at this point in history, 10 only about 24.5 million have access to antiretroviral therapy.

Nationally, HIV/AIDS affects disproportionately particular social groups, such as low-income persons, homeless, migrants, women, children, gay and transgender persons, sex workers, drug addicts and persons in detention. All too often, persons in these groups already face stigmatization and discrimination because of their status. Stigma of persons living with HIV/AIDS stems both from lack of understanding of HIV, misconceptions about how it is transmitted and from the unjustified perception that it is primarily caused by “immoral” behavior, such as extramarital sex, sex 11 between men, or drug use. Discrimination occurs when stigma is acted on, and consists of prejudicial actions or behaviors directed against stigmatized individuals.

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Contracting HIV/AIDS can contribute to further marginalization and increased poverty in these groups. For instance, people with actual or presumed HIV-positive status may be denied the right to health care, employment, education, housing and freedom of movement, among other rights. Also, HIV-related stigma and discrimination hamper efforts to contain the epidemic, ultimately contributing to the spread of the infection.

Stigma makes people afraid to speak or seek out information about their status, prevention methods, treatment options, how to access treatment schedules, and so on. Furthermore, out of fear, people who do not know their status refuse to find it out and those who do know may not disclose it, even to family and sexual partners.

Stigma of PLWHA is widespread and it hinders efforts to fight 12 the epidemic. As UN Secretary-General Ban Ki-Moon noted: “Stigma is a chief reason why the AIDS epidemic continues to 13 devastate societies around the world”. It is “…a main reason why too many people are afraid to see a doctor to determine whether they have the disease, or to seek treatment if so. It helps make AIDS the silent killer, because people fear the social disgrace of speaking 14 about it, or taking easily available precautions”.

Discriminatory, coercive, and punitive approaches to HIV increase vulnerability to infection and worsen the impact of the epidemic on individuals, families, communities and countries.

Examples of discriminatory, coercive, and punitive approaches to HIV include: restrictions on information about HIV prevention, including safe sex and condom use; criminalization of groups at higher risk of infection, such as gay people, persons who inject drugs, and sex workers; criminalization of “reckless” or “negligent” HIV exposure or transmission; HIV testing without informed consent; limited access to harm reduction measures, such as needle and syringe programs and opioid substitution therapy; limited access to opioid medications for palliative care; and HIVrelated immigration restrictions on entry, stay, and residence.

Overall, lack of respect of human rights hinders efforts of the global community and of national governments to fight the pandemic, as is illustrated by many of the human rights cases discussed in this manual. For instance, where the right to

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freedom of association and access to information is suppressed, individuals may be precluded from discussing issues related to HIV, participating in AIDS service organizations and self-help groups, and taking other preventive measures to protect themselves from HIV. Women, and particularly young women, are more vulnerable to infection if they lack access to information, education and services necessary to ensure sexual and reproductive health and prevention of infection.

The unequal status of women also means that their capacity to negotiate in the context of sexual activity is severely undermined.

Where persons in detention are exposed to torture, cruel, inhuman or degrading treatment, both by those who guard them and by fellow inmates, the risk of contracting HIV increases.

In sum, vigorous advocacy and protection of human rights is a necessary component of global and national strategies to 15 contain and roll back the HIV/AIDS epidemic. At the same time, containing and rolling back the HIV/AIDS epidemic is necessary to ensure the enjoyment of human rights of millions across the world.

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IV. Overview of the Manual

The first part of this manual provides the reader with a very quick primer to international human rights by discussing key terms and concepts, such as the distinction between binding and non-binding legal instruments and procedures, and the differences between civil and political rights, and economic, social and cultural rights. It sketches the architecture of the systems of protection of human rights, both at the global level, through the United Nations, and at the regional level, through regional international organizations. A primer of public international law, of which international human rights law is a branch, was omitted.

Then, the manual discusses several human rights that are particularly relevant for PLWHA, their families and communities.

For each right, the manual indicates in which international legal instrument it is codified. Of course, the list is not exhaustive and, depending on the specific circumstances, other rights might come into play. Part II discusses the mechanisms that currently exist to uphold those rights, both at the global (United Nations) and at the regional level (regional organizations). For the United Nations system, both “Charter bodies” (i.e. bodies and procedures that have been established by the UN pursuant to the provisions of its constitutive treaty, the UN Charter) and “treaty bodies” (i.e. bodies and procedures that have been created pursuant to the various human rights treaties concluded under the aegis of the UN) are explained.

The manual discusses the work of eight of the ten UN treaty bodies in regards to HIV/AIDS issues, including “general comments” to articles of the various treaties, “concluding observations” to State periodic reports, and “views” adopted concerning communications brought by individuals alleging violation of their human rights.

As to UN Charter bodies and procedures, the Manual discusses the Human Rights Council and the “observations” it has made during its Periodic Review of States that are most relevant for PLWHA. It also presents the Special Procedures of the Human Rights Council, that is to say the independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective.

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At the regional level, the Manual discusses the Inter-American system of protection of human rights, including key decisions of the Inter-American Commission and Inter-American Court of Human Rights. For Europe, it will only address the European Court of Human Rights and its jurisprudence. Thus far, the Court of Justice of the European Union and the European Committee of Social Rights have not developed noteworthy jurisprudence regarding PLWHA. Further, the Manual will discuss what mechanisms and bodies are available to PLWHA seeking to defend their rights in the African system of protection of human rights. Finally, it will close with a presentation of the two most recent regional systems of protection of human rights: the Arab League and the Association of South East Asian Nations (ASEAN).

V. Disclaimers and Caveats

Because HIV and AIDS are distinct conditions, health specialists caution against using the expression “HIV/AIDS”.

HIV prevention entails correct and consistent condom use, use of sterile injection cting equipment, changes in social norms, etc., whereas AIDS prevention entails drugs, and good health care.

However, this Manual uses the expression “People Living with HIV/AIDS (PLWHA)” because the human rights problems that PLWHA and their families and communities encounter, and the legal approaches to protect those rights, are the same whether the person infected with HIV has or has not already developed AIDS. This Manual is not comprehensive, nor does it intend to be. It focuses only on the international dimension of legal advocacy for PLWHA. It discusses only human rights bodies and procedures that have already touched on the rights of PLWHA. It does not cover many other important avenues for promoting and asserting the rights of PLWHA, such as lobbying for domestic legislation, forming medical-legal partnerships, etc.

It is also not exhaustive. For the sake of expediency and brevity, we focused only on the general comments, conclusions to reviews of periodic reports, and views on individual communications that we deemed particularly significant for PLWHA. And, of course, we might have missed some. Also, all information in this Manual is accurate only up to 2019.

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Although this manual discusses international legal mechanisms available to defend the rights of PLWHA, it does not purport to provide legal advice and should not be construed as such. Its purpose is strictly educational and academic. While this Manual offers a discussion of some of the procedures of various international judicial and quasi-judicial bodies, and although in many cases a license to practice law is not necessary to bring a case before them, we strongly advise against doing it without expert advice and support. Assistance by experts who are intimately familiar with the law and procedure of these bodies dramatically increases the chances of success. Annex F to this Manual provides a list of legal clinics and centers around the world that can be contacted for help. Of course, the International Human Rights Center of Loyola Law School, Los Angeles, is one of them and welcomes inquiries from anyone seeking assistance to advocate their case before international human rights bodies. Please, write to: lls.inthrclinic@gmail.com.

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WHAT HUMAN RIGHTS DO PEOPLE LIVING WITH AND AFFECTED BY HIV/AIDS HAVE? WHAT ARE THEY AND WHERE ARE THEY WRITTEN?

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I. A Very Quick Introduction to International Human Rights

Undoubtedly, one of the greatest achievements of humanity during the twentieth century has been accepting that every human being, without any distinction, is endowed with rights, “human rights”. The fundamental characteristics of human rights are inherence, universality, inalienability, indivisibility, interdependence and interrelatedness. They are inherent because everyone is born with them. They are part of the human condition.

They are universal because everyone, everywhere, possesses the same rights, regardless of where they live, their gender or race, or their religious, cultural or ethnic background. They cannot be taken or given away. They are indivisible, interdependent and interrelated because all rights – political, civil, social, cultural and economic – are equal in importance and none can be fully enjoyed without the others. They apply to all equally, and all have the right to participate in decisions that affect their lives.

Some of the human rights particularly relevant to people living with and/or affected by HIV/AIDS (PLWHA) include: the right not to be discriminated; the right to life; the right to health; the right to benefit from progress in science and technology; the right to education; the right to express freely and the right to seek and provide information; the right to privacy; the right to marry and found a family; the right not to be subject to torture and cruel, inhumane and degrading treatment; the right to liberty and security of person; the right to freedom of movement, asylum and residency; and the right to a remedy.

These rights are codified in a series of agreements between States (i.e. treaties), or in declarations adopted by major international organizations, both at the global level and at the regional level. The global system of protection of human rights is the one created by the United Nations. At its core, there is a set of three legal documents comprising the so-called “International Bill of Rights”: the 1948 Universal Declaration of Human 16 Rights (UDHR), the 1967 International Covenant on Civil and 17 Political Rights (ICCPR), and the 1967 International Covenant

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on Economic, Social, and Cultural Rights (ICESCR). Besides these three core legal instruments there is also a set of treaties that either protect a special group (e.g. women, or children, or persons with disabilities) or address specific issues (e.g. torture or racial discrimination), such as: the 1965 International Convention on the Elimination of Racial Discrimination 19 (ICERD); the 1979 Convention on the Elimination of All Forms of 20 Discrimination Against Women (CEDAW); the 1984 Convention Against 21 22 Torture (CAT); the 1989 Convention on the Rights of the Child (CRC); the 1990 International Convention on the Protection of the Rights of All 23 Migrant Workers and Members of their Families (ICRMW); and the 2006 24 Convention on the Rights of Persons with Disabilities (CRPD).

However, human rights are not only protected at the global level. They are also protected at the regional level. At this point in history, five regions of the world have developed regional human rights regimes: Europe; the Americas (i.e., North, Central and South America, and the Caribbean); Africa; the Arab world; and South-East Asia.

Each of these regional systems have their own legal instruments to protect and promote human rights. For the purposes of this guide, the most relevant regional legal instruments are: • In Europe, the 1950 European Convention on Human Rights 25 and Fundamental Freedoms (ECHR), and its protocols.

• In the Americas, the three main human rights instruments are the 1948 American Declaration on the Rights and Duties of Man 26 (American Declaration), the 1969 American Convention on 27 Human Rights (American Convention), and the 1988 Additional Protocol to the American Convention on Human Rights in the Area 28 of Economic, Social, and Cultural Rights (Protocol of San Salvador).

• In Africa, the main human rights instruments are the 1981 African Charter on Human and People’s Rights 29 (African Charter or Banjul Charter), and the 2003 Protocol on the Rights of Women in Africa 30 (Maputo Protocol).

• In the Arab World, it is the 2004 (revised) Arab Charter 31 on Human Rights (Arab Charter).

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• In Asia, it is the 2012 Association of Southeast Asian Nations (ASEAN) Human Rights Declaration 32 (ASEAN Declaration). • Please, note that this guide is not comprehensive. There are more regional human rights instruments than these. For instance, the 33 1996 European Social Charter (revised), or the 2000 Charter of Fundamental Rights of the European Union, contain rights that might be relevant for PLWHA, too. • The global system, under the aegis of the United Nations, and the various regional systems do not cancel each other out. Instead, the global and regional systems echo each other, coexist and support each other. However, at the regional level, one can find additional rights or slightly different articulations of the rights than one can find at the global level.

Before we venture into a discussion of the rights relevant for PLWHA and the mechanisms available internationally to uphold them, it is important the reader is aware of two more distinctions.

The first one is between binding legal instruments and non-binding legal instruments. Sometimes, human rights are written in treaties. Treaties are agreements that sovereign States and/or international organizations enter into with the aim to create a binding legal obligation. Treaties, charters, covenants, conventions, protocols are all names for binding international legal instruments.

Treaties are written through a diplomatic process, where representatives of States, sometimes with the assistance of non-governmental organizations, discuss the terms and agree on wording. When the text is ready and negotiations are over, states adopt and sign the treaty. They are not bound by its provisions, yet. The act of signing simply signifies that they agreed on a text, no more discussions on the wording will be held, and are now ready to move on the next phase: ratification. Ratification is a national legal and political process whereby the State gives its consent to be bound by the treaty.

How a treaty is ratified, and who can do that, is usually spelled out in the national constitution. Thus, each State of the world does it in a different way.

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Once the treaty has reached the minimum number of ratifications required for its entry into force, it becomes binding for all those States that have ratified it.

To summarize, for an international agreement to create a legal obligation on any given State, the State in question must have ratified the treaty in question, and the treaty must have entered into force. Moreover, often States, upon ratifying, add declarations and reservations that might modify the extent of their obligations. That is why, before jumping to conclusions about what obligations a given State has under a given treaty, it is essential to verify whether the State in question has ratified the agreement in question, whether it has attached reservations, and whether the agreement has entered into force.

However, sometimes States are not ready to enter into binding agreements right away and instead issue statements that describe what they hope, one day, will be legal obligations. Declarations, manifestos, principles, final acts, are some of the names that are given to these non-binding legal instruments. Sometimes these are referred to as “soft law” legal instruments.

However, over time, if a majority of States act in accordance with what provided for in these soft law instruments, they might become “customary international law”.

Customary international law is the law of the international community.

It is what the majority of States do (practice) with the belief that what they do is mandatory (opinio juris). Thus, although the Universal Declaration of Human Rights, or the American Declaration of Human Rights were adopted as non-binding declarations, over time they acquired binding force, as they were echoed, complied with and referred to in countless legal instruments, both international and national. Crucially, customary international law binds on all States of the world, regardless whether they expressly accepted it.

The second important distinction is the one between civil and political rights and economic, social and cultural rights. Due to historical reasons dating back to the Cold War and the division of the world between a capitalist West and a socialist/communist East, international human rights tend to be grouped under two broad headings: (1) civil and political rights; and (2)

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economic, social and cultural rights. In general, civil and political rights are rights that protect the individual from the State, and ensure freedoms. They are things the State should not do. On the other hand, economic, social and cultural rights address services that individuals are entitled to receive from the State, such as adequate living conditions, healthcare, and education. They are things the State should do.

Both sets of rights can be found in the UDHR, which was adopted in 1948 before the onset of the Cold War. However, when States sat down to turn the non-binding UDHR into a binding treaty, the Cold War divisions had firmly set in and UN Members could not agree on what rights should be emphasized. Socialist and communist States gave preference to economic, social and cultural rights over civil and political rights. Western democracies, gave precedence to civil and political rights over economic, social and cultural rights. As a result, instead of one single human rights treaty, in 1967, UN members adopted two separate treaties: the ICCPR and ICESCR. Inevitably, the same division, between civil and political rights and economic, social and cultural rights, found its way also into the regional systems of Europe and the Americas, which were created in the 1950s to early 1970s. However, those of Africa, the Arab World and South-East Asia, which emerged from the late 1980s onward, when the Cold War was about to end or already over, do not have the same separation between the two sets of rights.

Although the distinction between civil and political rights and economic, social and cultural rights lost much of its significance and ideological charge after the end of the Cold War, there are still important differences between the two sets of rights, particularly when it comes to their implementation.

In general, civil and political rights require immediate implementation.

States must begin incorporating the obligations provided for in the treaty 34 into domestic legislation without delay. However, economic, social and 35 cultural rights usually do not require immediate implementation. Their implementation is only progressive, over time, although a State cannot move backwards in its progress towards realizing a right. Additionally, because States differ greatly in economic development conditions, fulfillment of these rights is not absolute but subordinate to the available resources.

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II. Human Rights Particularly Relevant to PLWHA

Although the list of internationally recognized human rights is long, when it comes to people living with and/or affected by HIV/AIDS (PLWHA) some of them might be particularly significant, such as: a. The right not to be discriminated; b. The right to life; c. The right to health; d. The right to benefit from progress in science and technology; e. The right to education; f. The right to express freely and the right to seek and provide information; g. The right to privacy; h. The right to marry and found a family; i. The right not to be subject to torture and cruel, inhumane and degrading treatment; j. The right to liberty and security of person; k. The right to freedom of movement, asylum and residency; l. The right to a remedy.

Of course, these are only a few. Other rights might be relevant too, depending on circumstances. In the next sections, we identify where each of these rights is codified. Annex D contains reference to each treaty mentioned in this section. Please, keep in mind what was said in the introduction about the distinction between binding and non-binding legal instruments. To know which State has ratified which human rights instrument, check the following websites:

• For the United Nations system: https://www.ohchr.org/EN/ Countries/Pages/HumanRightsintheWorld.aspx • For the Organization of American States: http://www.oas. org/en/topics/treaties_agreements.asp • For the Council of Europe: https://www.coe.int/en/web/ conventions/full-list • For the African Union: https://au.int/treaties/ratifiedby/13 • For the Arab League: http://www.leagueofarabstates.net/ Pages/Welcome.aspx

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II. Human Rights Particularly Relevant to PLWHA

A. Obligation of Non-Discrimination and Equality The obligation to guarantee equality and not discriminate is found in nearly every human rights instrument. The UDHR guarantees protection from discrimination in Articles 1 and 2. Article 1 states “All human beings are born free and equal in dignity and rights.

They are endowed with reason and conscience and should act towards each other in a spirit of brotherhood.” Article 2 provides “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.”

The prohibition of discrimination is repeated in Article 2.1 of the ICCPR. Article 3 of the ICCPR adds: “States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.” This right is also guaranteed in Articles 2(2) and 3 of the ICESCR. Prohibition of discrimination is the essence of several specific treaties: CEDAW (prohibiting discrimination against women), ICERD (prohibiting racial discrimination), the entirety of the CRPD (prohibiting discrimination of persons with disabilities are concerned). Discrimination is also prohibited under Article 2 of the CRC, and Article 7 of the ICRMW.

In Duque v. Colombia, the Inter-American Court of Human Rights found that Colombia had breached the obligation not to discriminate by denying a man his deceased partner’s benefits to pay for his HIV medical treatment because of their homosexual relationship.

At the regional level, the prohibition of discrimination is found in Article 1 of the Twelfth Protocol to the ECHR. The Inter-American system addresses it in Articles 1(1) and 24 of the American Convention, Article 2 of the American Declaration, and Article 3 of the Protocol of San Salvador. The African system prohibits discrimination in Articles 2 and 19 of the African Charter; the Arab World in Article 3 of the 2004 Arab Charter; and South-East Asia in Article 9 of the ASEAN Declaration.

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II. Human Rights Particularly Relevant to PLWHA

B. Right to Life Article 6(1) of the ICCPR declares: “Every human being has the inherent right to life…. No one shall be arbitrarily deprived of his life”. No one can deprive you of your life. The Government has a duty to prosecute those who take a life and even the Government can take a life only under very limited circumstances (e.g. death penalty). States not only have to refrain from intentional and unlawful deprivation of life, but must also take appropriate steps to safeguard the lives of those within their jurisdiction.

At the global level, the right to life was first guaranteed in Article 3 of the UDHR. The right to life is also protected in Article 10 of the CRPD, Article 9 of the ICRMW, and Article 6 of the CRC. The ECHR protects the right to life in Article 2(1). In the Inter-American System, the right to life is enshrined within Article 4(1) of the American Convention and Article 1 of the American Declaration. The right to life is also found in Article 4 of the African Charter and Article 4(1) of the Protocol on the Rights of Women in Africa, Article 5 of the 2004 Arab Charter and Article 11 of the ASEAN Declaration.

In Chiti v. Zambia, the Human Rights Committee found the State violated the right to life by not maintaining adequate prison conditions and by not providing the petitioner with the necessary medication to treat his HIV infection.

In a state of emergency, international law recognizes that “extraordinary [temporary] measures departing from the normal legal and constitutional order may be required to cope with the threat.” Once the threat passes, States must return to the regular legal order.

However, some rights are so fundamental that they cannot be suspended during a state of emergency, and these are called “nonderogable rights.” 36 The right to life is a nonderogable right and therefore, in states of emergency, it cannot be suspended.

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C. Right to Liberty and Security of Person The right to liberty and security of the person is protected in Article 3 of the UDHR, Article 9(1) of the ICCPR, Article 5(b) of the ICERD, Article 14 of the CRPD, and Article 16(1) of the ICRMW. As the name suggests, it entails two distinct rights: the right to liberty of the person and the right to personal security. The right to liberty of the person, as found in international human rights instruments, does not grant complete freedom from arrest or detention. Deprivation of liberty is a legitimate form of State control over persons within its jurisdiction. Instead, the right to liberty prohibits arrest or detention that is arbitrary or unlawful. In general, any deprivation of liberty is only allowed if it is carried out in accordance with a procedure established by domestic law and if certain minimum guarantees are respected.

The right to personal security is not defined as clearly as the right to liberty, and the meaning of this right differs depending on the legal instrument considered. For instance, under the ICCPR, which gives it the broadest meaning, the right to personal security is understood as the right to the protection of the law in the exercise of the right to liberty. This means that the right to security extends to situations other than the formal deprivation of liberty. For instance, the State may not ignore a known threat to the life of a person under its jurisdiction. It has an obligation to take reasonable and appropriate measures to protect that person.

At the regional level, these rights are protected in the following instruments: in Europe in Article 5 of the ECHR; in the Americas in Article 7(1) of the American Convention and Article 1 of the American Declaration; in Africa, in Article 6 of the African Charter and Article 4(1) of the Protocol on the Rights of Women in Africa; in the Arab World, in Article 14 of the 2004 Arab Charter; and in Asia, in Article 12 of the ASEAN Declaration.

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In A.B. v. Russia, the European Court of Human Rights found the State violated the petitioner’s rigth to have liberty and security of person by placing him in solitary confinement while detained because he was affected by HIV.

II. Human Rights Particularly Relevant to PLWHA

D. Right to Health Under Article 25 of the UHDR: “(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

The right to health is also found in Article 12 of the ICESCR, Article 12(1) of the CEDAW, Article 5(e)(iv) of the ICERD, Article 24 of the CRC, Article 28 of the ICRMW, and Article 25 of the CRPD. The right to health is protected in regional systems as well in the Inter-American System, it is found in Article 10 of the San Salvador Optional Protocol to the American Convention, and Article 11 of the American Declaration. The African system guarantees this right in Article 16 of the African Charter. The 2004 Arab Charter of Human Rights protects it at Article 39.

In South-East Asia, the right to health is protected in Article 29 of the ASEAN Declaration.

Notably, under the ASEAN Declaration, ASEAN States have special obligations in regard to those living with HIV/AIDS. Article 29(2) provides: “The ASEAN Member States shall create a positive environment in overcoming stigma, silence, denial and discrimination in the prevention, treatment, care and support of In General Comment 22, people suffering from communicable diseases, the Committee on including HIV/AIDS”.

Economic Social and Cultural Rights determined that restricting access to HIV treatment would violate the right the health.

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II. Human Rights Particularly Relevant to PLWHA

E. Right to Science According to Article 27 of the UDHR, “(1) Everyone has the right freely to … share in scientific advancement and its benefits”. The ICESCR further expanded this right. Article 15(1) (b) provides that “the States Parties to the present Covenant recognize the right of everyone … to enjoy the benefits of scientific progress and its applications.” Article 15(2) states that “the steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development, and the diffusion of science and culture.” Article 15(3) provides that “the States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.”

The so-called “right to science” also exists at the regional level. In the Inter-American System, science is addressed in the Charter of the Organization of American States, the American Declaration of the Rights and Duties of Man and the Protocol of San Salvador (Articles 14(1)(b), 14(2), and 14(3)). In Africa, Article II.2 of the Charter of the African Union identifies scientific and technical cooperation as essential for meeting its goals, and Article 12(2)(b) of the Protocol on the Rights of Women in Africa of the African Charter on Human and Peoples’ Rights requires States to take specific measures to promote education and training for women, particularly in the fields of science The right to benefit from and technology. Finally, the right to enjoy the progress in science and benefits of scientific progress and its applications technology has not yet been is recognized both in the 2004 Arab Charter raised at the international (Article 41) and the ASEAN Declaration (Article level as an issue for persons 32). In Europe, there is no right to benefit from living with HIV/AIDS. However, progress in science and technology as such, but possible factual circumstances academic freedom, an essential element of the that could give rise to a right to right to science, is protected under Article 13 science claim include obstacles of the Charter of Fundamental Rights of the put to HIV/AIDS and how to European Union. fight it, or restricting access to medication and HIV testing.

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II. Human Rights Particularly Relevant to PLWHA

F. Right to Education States must provide adequate education to their citizens. This right is protected in Article 26 of the UDHR, which provides, “(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (2) Education shall be directed toward the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance, and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. (3) Parents have a prior right to choose the kind of education that shall be given to their children.�

At the global level, the right to education is protected in Article 13 of the ICESCR, Article 28 of the CRC, Article 24 of the CRPD, Article 5(v) of the ICERD, and Article 30 of the ICRMW. In the Inter-American system, the right to education is protected in Article 7 of the American Declaration, and Article 13 of the Protocol of San Salvador. In Africa, this right is found in Article 17 of the African Charter. In the Arab World, it is protected in Article 34 of the 2004 Arab Charter. Finally, in Asia, the ASEAN Declaration guarantees the right to education in Article 31.

In Gonzales Lluy et al. v.

Ecuador, the Inter-American Court of Human Rights found Ecuador in violation of the right to education because the petitioner had been prevented from attending school out of fear that she would spread HIV to other students.

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II. Human Rights Particularly Relevant to PLWHA

G. Right to Freedom of Expression and Information The freedom to express opinions and seek, receive and impart information is contained in Articles 18 and 19 of the UDHR. Article 18 provides: “Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public and private, to manifest his religion or belief in teaching, practice, worship, and observance.” Article 19 states: “Everyone has the right to freedom of expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” This right is also protected in the international sphere in Article 19 of the ICCPR, Article 21 of the CRPD, Article 13 of the ICRMW, Article 13(1) of the CRC, and Article 5(d)(viii) of the ICERD. The right to freedom of expression and information is also protected by regional instruments. In Europe, it is found in Article 10(1) of the ECHR. In the Inter-American system, this right is protected in Articles 13(1) and 13(3) of the American Convention, as well as Article

In General Recommendation 24, the Committee of the Convention on the Elimination of Discrimination Against Women (CEDAW) recommended providing information regarding both HIV/AIDS treatment and prevention to women and girls without discrimination.

4 of the American Declaration. The African Charter protects this right in Article 9. In the Arab World, this right is protected in Article 32 of the 2004 Arab Charter. In Asia, the right to freedom of expression and information is found in Article 23 of the ASEAN Declaration.

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II. Human Rights Particularly Relevant to PLWHA

H. Right to Privacy The right to privacy is discussed in Article 12 of the UDHR, which states: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.� This right is also protected in the international sphere in Article 17 of the ICCPR, Article 22 of the CRPD, Article 14 of the ICRMW, and Article 16 of the CRC. At the regional level, the right to privacy is found in the following instruments: in Europe, in Article 8 of the ECHR; in the Americas in Article 11 of the American Convention and Article 5 of the American Declaration; in the Arab World, in Article 21 of the 2004 Arab Charter; in South-East Asia, in Article 21 of the ASEAN Declaration.

In Toonen v. Australia, the Human Rights Committee determined that criminalizing homosexual behavior, supposedly to decrease the spread of HIV/AIDS, violated the right to privacy because consensual sexual activity is a private activity protected by the right to privacy.

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II. Human Rights Particularly Relevant to PLWHA

I. Right to Marry and Found a Family The right to marry and found a family includes the rights of individuals to make critical decisions when entering into or remaining in marital relationships and deciding if, when, and how to form a family and how many children to have. The UDHR provides protection in Article 16, which states, “(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with free and full consent of the intending spouses. (3) The family is a natural and fundamental group unit of society and is entitled to protection by society and the State.� This right is also protected in Article 23 of the ICCPR, Article 10(1) of the ICESCR, Article 23(1) of the CRPD, and Article 5(d)(iv) of the ICERD. At the regional level, in Europe it is found in Article 12 of the ECHR. The Inter-American system protects this right in Article 17 of the American Convention, the American Declaration in Article 6, and the Protocol of San Salvador in Article 15. The right to marry and found a family is protected in Article 18 of the African Charter, and Articles 6 and 7 of the Protocol on the Rights of Women in Africa. In the Arab World, it is protected in Article 33 of the 2004 Arab Charter. Finally, this right is protected In F.S v. Chile, a case in Article 19 of the ASEAN Declaration. currently pending before the InterAmerican Commission, the petitioner alleges that forced sterilization because of her HIV status violated her right to have a family.

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II. Human Rights Particularly Relevant to PLWHA

J. Right Not to Be Subject to Torture and Cruel, Inhuman, or Degrading Treatment The right to be protected from torture and cruel, inhumane, or degrading treatment was first addressed at the global level in Article 5 of the UDHR, which provides: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” On the global level, this right is also protected in Article 7 of the ICCPR, Article 37(a) of the CRC, Article 15 of the CRPD, Article 10 of the ICRMW, and is encompassed within the entirety of the Convention Against Torture.

At the regional level, the protection from torture, degrading or inhuman treatment or punishment is found, in Europe, at Article 3 of the ECHR, and in the entirety of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. In the Inter-American system, Article 5(2) of the American Convention prohibits it. The Organization of American States also has a separate, specific treaty solely on the prohibition of torture: The Inter-American Convention to Prevent and Punish Torture. In Africa, the prohibition of torture is contained in Article 5 of the African Charter. In the Arab World, the prohibition is found in Article 8 of the 2004 Arab Charter. Finally, the ASEAN Declaration prohibits torture in Article 14.

In Nenova et al. v. Libya and A.M.H. El Houjouj Jum’a et al. v. Libya, doctors were arrested, detained and tried for allegedly having infected hundreds of children with HIV. The Human Rights Committee found Libya in violation of the prohibition against torture because the doctors had been held incommunicado and prevented from communicating with their families and attorneys.

The prohibition of torture and cruel, inhumane, or degrading treatment is considered a norm of jus cogens. “Jus cogens” is a set of norms of international law that are so essential to the existence of the international community that they cannot be derogated under any circumstance.

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II. Human Rights Particularly Relevant to PLWHA

K. Rights to Freedom of Movement, Residency, and Asylum Human rights instruments protect the rights to leave one’s country, to seek asylum and protection from non-refoulement (i.e. the prohibition to return a refugee to a country where the refugee has a well-founded fear of persecution). The UDHR addresses these rights in Articles 13 and 14(1). Article 13 provides, “(1) Everyone has the freedom of movement and residence within the borders of each State [and] (2) Everyone has the right to leave any country, including his own, and to return to his country”. Article 14(1) states: “Everyone has the right to seek and enjoy in other countries asylum from persecution”.

Other international instruments protect these rights as well, such as Articles 12 and 13 of the ICCPR, Article 18(1) of the CRPD, Article 39(1) of the ICRMW, and Article 5(d) (i) of the ICERD. At the regional level, these rights are found, in Europe, in Article 2(1) and Article 2(2) of the Fourth Protocol to the ECHR. In the Americas, in Articles 22(1), 22(2), and 22(5) of the American Convention, and Articles 8 and In D. v. the United Kingdom, 19 of the American Declaration. The African the European Court of Charter protects them in Articles 12(1), 12(2), Human Rights found that 12(3) and 12(4). In the Arab World, protections deporting a non-citizen can be found in Articles 26, 27 and 28 of the living with HIV/AIDS to 2004 Arab Charter. Finally, in Asia, these St. Kitts and Nevis, a rights are protected in Articles 15 and 16 of country with significantly the ASEAN Declaration. limited access to medical treatments, could violate the prohibition of nonrefoulement.

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II. Human Rights Particularly Relevant to PLWHA

L. Right to a Remedy Finally, States must guarantee an available and effective remedy for victims to seek redress.

The UDHR first discusses this in Article 8, which provides that: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” The other international instrument that guarantees the right to a remedy is the ICCPR at Article 2.3.

The regional systems also provide for the right to an effective remedy. In Europe, the right is protected in Article 13 of the ECHR. Article 25 of the American Convention guarantees this right. Additionally, Article 12 and 23 of the 2004 Arab Charter, and Article 5 of the ASEAN Declaration ensure this right.

In McCallum v. South Africa, a case about a prisoner who feared having contracted HIV while in detention, the Human Rights Committee found South Africa had violated the petitioner’s right to an effective remedy because it had not investigated his claims of torture, denied him HIV testing, did not prosecute those responsible for it, and did not adequately compensate him.

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WHAT INTERNATIONAL MECHANISMS ARE AVAILABLE TO PLWHA? AND WHAT IS THEIR JURISPRUDENCE?

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Now that we mapped where human rights most relevant to PLWHA are contained, we can identify the mechanisms to uphold these rights. As we said, human rights are protected at two levels: at the global level by the United Nations, and at the regional level by several regional international organizations.

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AT THE GLOBAL LEVEL (United Nations) At the global level, persons living with HIV/AIDS may assert their rights through several mechanisms. UN human rights bodies are divided in “charter bodies” and “treaty bodies”. The difference between the two is that “charter bodies” have been established by the UN pursuant to the provisions of its constitutive treaty: the UN Charter. All UN members are subject to the scrutiny of Charter bodies. An example of Charter body is the Human Rights Council. On the other hand, treaty bodies have been created pursuant to the various human rights treaties concluded under the aegis of the UN, such as the two Covenants. They can scrutinize only those States that have ratified the relevant treaty.

The main function of the Human Rights Council is to discuss human rights and ensure compliance by all UN members States with their human rights obligations, whether contained in a specific treaty or simply part of customary international law. The so-called Universal Periodic Review (UPR) is the main procedure used by the Human Rights Council to this effect. It results in Concluding Observations, a scorecard that addresses the given State’s strengths and weaknesses when it comes to implementing human rights.

In contrast, treaty bodies carry out three main functions: i) Review periodic reports by States that explain what they have done to carry out their obligations under a specific treaty, and make comments on these reports in the form of “Concluding Observations”; ii) Provide explanations of the rights contained in the treaty whose implementation they supervise through so-called “General Comments” or “General Recommendations”; iii) Consider cases brought by individuals (“individual communications”, to use the UN jargon) alleging violations of their human rights by specific States and declare the State in question in violation or not in violation of the provisions of the given treaty (“Views”, in UN jargon).

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Through General Comments and Recommendations, treaty bodies have affirmed key rights of PLWHA, such as equal access to HIV/AIDSrelated care, prohibition of discrimination because of HIV status, and access to sexual and reproductive education.

In their Concluding Observations, both the Human Rights Council and treaty bodies have observed several issues relating to the rights of PLWHA, discrimination against them being the most frequent one. The bodies have called on a number of States to enact legislation to combat discrimination against PLWHA, as well as take measures to reduce stigmatization and prejudice. Another prevalent issue has been access to health care for PLWHA, with the Council and treaty bodies calling on States to ensure that universal and equal access to HIV/AIDS treatment is available without discrimination, especially to marginalized groups such as women, children, migrant workers, and detainees living with HIV/AIDS. The Council and treaty bodies have also urged States to prohibit forced sterilization of PLWHA, and have called on States to take measures to prevent mother-tochild infection.

The Council and treaty bodies have also commented on States’ obligations to make information and education relating to sexual and reproductive health and HIV prevention more accessible, especially to adolescents. In regards to privacy, the treaty bodies have asked States to respect the rights of PLWHA in keeping their HIV status private and requiring consent before any disclosures can be made. The treaty bodies have also called on States to respect individuals’ rights when it comes to HIV testing by ensuring that testing is done voluntarily, especially for pregnant women and migrant workers. Finally, the treaty bodies have called on States to ensure the rights of children affected with HIV, and to take measures to combat violence against women and children, which can lead to increased rates of HIV infection.

Treaty bodies’ views relating to HIV/AIDS issues have been few and solely related to civil and political rights under the ICCPR, specifically in the context of detainment and the cruel and inhuman treatment of detainees living with HIV/AIDS.

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At the Global Level (United Nations)

A. Treaty Bodies

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Universal Declaration of Human Rights Bill of Human Rights

Treaties

International

Monitoring Mechanisms

Optional Protocols

ICESCR 1966

Treaty Bodies

When States ratify a human rights treaty, they are bound by its terms and must ensure that all individuals within their territory, not just their citizens, enjoy the full extent of the rights provided in that treaty.37 In the UN human rights system, compliance with the terms of each human rights treaty is monitored by a “Committee�, a group of independent experts particularly knowledgeable about human rights. Committee members are elected for fixed terms, sometimes renewable, by the States that have ratified the relevant treaty. The membership of each Committee ref lects the UN principle of equitable geographic representation. Each of the five regional groups in which UN members are divided (Africa, Asia, Latin America and the Caribbean, Eastern Europe and Western Europe and Others Group) is represented by a number of experts. Treaty body members serve only part-time. They meet for 2 to 4 sessions a year, usually in Geneva, Switzerland, and each session is about two to three weeks long. Their work is supported by the Human Rights Treaties Division of Office of the High Commissioner for Human Rights (OHCHR).

ICERD 1965

ICCPR 1966

OP

OP1

Individual Complaints

OP2

Individual Complaints

Reports

Individual Complaints (art. 14)

Reports

Re

ECOSOC

Committee on Economic, Social and Cultural Rights

Human Rights Committee

Committee o the Eliminati of Racial Discriminati

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The United Nations Human Rights Treaty System (2019 circa)

eports

on ion

ion

CEDAW 1979

CAT 1984

OP

OP

Individual Complaints & Inquires

SCP

Reports

ICPMW 1990

CRC 1989

OP SC

OP AC

Individual Complaints (art. 22) & Inquires Reports

CRPD 2006

CED 2006

OP

Individual Complaints (art. 77)

Individual Complaint

Reports

Reports

Individual Complaints (art. 31)

Reports

Reports

Visits & Reports

Committee on the Elimination of Discrimination against Women

Committee against Torture

Committee on the Rights of the Child

Committee on Migrant Workers

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Committee on the Rights of Persons with Disabilities

Committee on Enforced Disappearances

At this point in history, within the UN human right system there are nine human rights international treaties, and one optional protocol, from which 10 treaty bodies have been established. They are:

1

2

Human Rights Committee (CCPR).

It monitors implementation of the International Covenant on Civil and Political Rights (ICCPR) (entered into force (e.i.f.) on 23 March 1976) and its optional protocols. It is composed of 18 independent experts, elected for renewable four-year terms. https://www.ohchr.org/en/hrbodies/ ccpr/pages/ccprindex.aspx

3

Committee on Economic, Social and Cultural Rights (CESCR). It monitors implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR) (e.i.f. 3 January 1976). It is composed of 18 independent experts, elected for renewable four-year terms. https://www.ohchr.org/en/hrbodies/ cescr/pages/cescrindex.aspx

4

Committee on the Elimination of Racial Discrimination (CERD). It monitors implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (e.i.f. 4 January 1969).

It is composed of 18 independent experts, elected for renewable fouryear terms. https://www.ohchr.org/en/hrbodies/ cerd/pages/cerdindex.aspx

Committee on the Elimination of Discrimination against Women. It monitors implementation of the Convention on the Elimination of All Forms of Discrimination against Women (1979) and its optional protocol (e.i.f. 3 September 1981). It is composed of 23 independent experts, who are elected for four-year terms and can be re-elected so long as the rotation principle is upheld. https://www.ohchr.org/en/hrbodies/ cedaw/pages/cedawindex.aspx

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5

Committee against Torture (CAT).

It monitors implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (e.i.f. 26 June 1987). It is composed of 10 independent experts, elected for renewable four-year terms.

6

https://www.ohchr.org/en/hrbodies/ cat/pages/catindex.aspx

7

Committee on the Rights of the Child (CRC). It monitors implementation of the Convention on the Rights of the Child (e.i.f. 2 September 1990) and its optional protocols (12 February 2002). It is composed of 18 independent experts, elected for renewable four-year terms.

https://www.ohchr.org/EN/HRBodies/ OPCAT/Pages/OPCATIndex.aspx

8

https://www.ohchr.org/EN/HRBodies/ CRC/Pages/CRCIndex.aspx

9

Committee on the Rights of Persons with Disabilities. It monitors implementation of the Convention on the Rights of Persons with Disabilities (ICPRD) (e.i.f. 3 May 2008). It is composed of 18 independent experts, elected for four-year terms, with an opportunity to be re-elected only once.

The Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) established pursuant to the Optional Protocol of the Convention against Torture (OPCAT) (e.i.f. 22 June 2006). It is composed of 25 independent experts, elected for four-year terms.

Committee on Migrant Workers (CMW). It monitors implementation of the International Convention on the Protection of the Rights of All Migrant Workers (ICRMW) and Members of Their Families (e.i.f. 1 July 2003). It is composed of 14 independent experts, elected for renewable four-year terms. https://www.ohchr.org/EN/HRBodies/ CMW/Pages/CMWIndex.aspx

10

Committee on Enforced Disappearances (CED). It monitors implementation of the International Convention for the Protection of All Persons from Enforced Disappearance (e.i.f. 23 December 2010).

It is composed of 10 independent experts, elected for four-year terms. https://www.ohchr.org/EN/HRBodies/CED/ Pages/CEDIndex.aspx

https://www.ohchr.org/EN/HRBodies/ CRPD/Pages/CRPDIndex.aspx

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With the exception of the SPT, which has the particular task of visiting places of detention to prevent torture and other cruel, inhuman or degrading treatment or punishment, all these committees carry out three main functions. First, all States that have ratified a human rights treaty are usually required to submit reports (periodic reports) to the relevant Committee. State reports are due every 5 to 6 years, and explain what the State has done to comply with its obligations under the given treaty. Each Committee reviews the State periodic reports under their respective treaty and publish their findings and recommendations in a document called “Concluding Observations”.

Second, from time to time, these committees publish general interpretations of the rights provided in the treaty (called “General Comments”, sometimes also called “General Recommendations”). The General Comments explain how the rights provided in the given treaty apply and what States must do to fulfill their obligations under that treaty. While General Comments are not legally binding for States, because they are issued by a body of independent experts, particularly knowledgeable about the subject matter, and it is the body entrusted with reviewing State compliance with the terms of the treaty, they carry particular authority and States give them a high degree of deference.

Finally, States may agree to allow individuals who think they have been deprived of any of the rights set forth in a human rights treaty to file with these committees a complaint (Individual Communication) against them. However, this can only happen if the State has ratified the treaty in question and has accepted the jurisdiction of the relevant Committee. In some cases, it takes ratification of an optional protocol, or issuing a declaration of acceptance of jurisdiction.

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If the Committee in question has jurisdiction and declared the communication admissible, it will issue a decision, called “Views”. If the State has been found in breach of one or more articles of the relevant treaty, the “views” will contain a set of recommendations to the State on how it should remedy the breach of the treaty. Although Committee views on an individual communication are not legally binding for the State in question, they can put pressure on States and do have consequences.

The Committee will continue monitoring and insisting the State complies. Some States even treat “views” of human rights bodies as binding domestically and national authorities and courts will have them enforced.

In the next section, you will find a discussion of the work of eight of the ten treaty bodies in regards to HIV/AIDS issues, including general comments, concluding observations, and views. To date, the most extensive discussion of HIV/AIDS has been done by the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Discrimination against Women, and the Committee on the Rights of the Child. HIV/AIDS issues fall under many provisions of their respective treaties. The three treaty bodies have also included HIV/AIDS issues in a large number of general comments and concluding observations.

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1. General Comments Treaty bodies’ general comments provide broad insight into how HIV/AIDS issues fit into the human rights sphere. Through general comments, treaty bodies have interpreted the treaties under their jurisdiction to cover HIV/AIDS issues, especially in the context of discrimination and the right to health. i. Human Rights Committee The Human Rights Committee (HRC) monitors implementation of the International Covenant on Civil and Political Rights (ICCPR) and its optional protocols. Although the Human Rights Committee has not yet issued a General Comment focused on HIV/AIDS, General Comment 6 (1982) discusses the right to life, stating “it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate 38 malnutrition and epidemics.”

Also, in General Comment 36 (2018) on Article 6 (right to life), the HRC wrote: “The duty to protect life also implies that States parties should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity. These general conditions may include high levels of criminal and gun violence, pervasive traffic and industrial accidents, degradation of the environment, deprivation of indigenous peoples’ land, territories and resources, the prevalence of life-threatening diseases, such as AIDS, tuberculosis and malaria, extensive substance abuse, widespread 39 hunger and malnutrition and extreme poverty and homelessness.”

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ii. Committee on Economic, Social, and Cultural Rights (CESCR) The Committee on Economic, Social and Cultural Rights (CESCR) monitors implementation of International Covenant on Economic. Social and Cultural Rights (ICESCR). The Committee has discussed many of the rights contained in ICESCR and how they apply to PLWHA in several general comments.

Obligation of Non-Discrimination and Equality General Comment 20 (2009) interpreted Article 2 of the ICESCR, which prohibits discrimination based on certain enumerated grounds and “other status.” In it, the CESCR recognized that “other status” includes restrictions based on HIV status “as the basis for differential treatment with regard to access to such things as education, employment, health care, travel, social 40 security, housing and asylum.”

In General Comment 19 (2007), the Committee discussed equal access to social security. In the context of HIV/AIDS, this includes “the need 41 to provide access to preventive and curative measures.” Also, everyone “should be covered by the social security system, especially individuals 42 belonging to the most disadvantaged and marginalized groups,” without discrimination on grounds of HIV/AIDS status. The Committee also stated that upon the death of a breadwinner, “[s]urvivors or orphans must not be excluded from social security schemes on the basis of prohibited grounds of discrimination and they should be given assistance in accessing social security schemes, particularly when endemic diseases, such as HIV/AIDS, … leave large numbers of children or older persons without family and 43 community support.”

In General Comment 18 (2005), the Committee discussed non discrimination as it relates to the right to work. It noted that States have an obligation “to assure individuals their right to freely chosen or accepted 44 work, including the right not to be deprived of work unfairly.” The Committee also noted that the labor market must be accessible to everyone without any discrimination in access to and maintenance of employment on discriminatory grounds, such as HIV/AIDS status.

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Similarly, in General Comment 15 (2002), the Committee noted that water must be accessible to all without discrimination based on HIV/AIDS 45 status. Access to water without discrimination “entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and 46 domestic uses.”

In its General Comment 4 (1991), the Committee discussed the access 47 to housing without discrimination. It noted that disadvantaged groups, including HIV-positive individuals, “must be accorded full and sustainable access to adequate housing resources” and “should be ensured some degree of priority consideration in the housing sphere,” taking “fully into account the special housing needs of these groups.” 48

Right to Health Recently, in General Comment 22 (2016), the Committee stated that sexual and reproductive health is an integral part of the right to the highest attainable physical and mental health enshrined in the ICESCR. 49 According to the Committee, comprehensive sexual and reproductive health care facilities, services, goods and programs must (1) be made available; (2) be accessible and affordable to all individuals and groups without discrimination and free from barriers; (3) be respectful of cultures and sensitive to gender, age, disability, sexual diversity, and life-cycle requirements; and (4) be of good quality, “meaning that they are evidence-based and scientifically and medically appropriate and up-to-date.” 50 Additionally, the Committee stated that States must not limit or deny anyone access to sexual and reproductive health, for instance by imposing mandatory HIV testing laws. 51 Moreover, States must “ensure that adolescents have full access to appropriate information on sexual and reproductive health, including … the prevention and treatment of sexually transmitted diseases,” like HIV/AIDS. 52 Previously, the Committee published General Comment 14 (2000) on the right to the highest attainable standard of health, noting that everyone is “entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.” 53 The right to health includes sexual and reproductive freedom, freedom from nonconsensual medical treatment

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and experimentation, and equal opportunity to enjoy the highest attainable level of health. Additionally, the right to health includes the “underlying determinants of health, such as access to health-related education and information, including on sexual and reproductive health.” 54 Further, States have an obligation to promote medical research, health education, and information campaigns, in particular with respect to HIV/AIDS and sexual and reproductive health. 55

iii. Committee on the Rights of Persons with Disabilities The Committee on the Rights of Persons with Disabilities monitors implementation of the Convention on the Rights of Persons with Disabilities (CRPD). In General Comment 3 (2016), it noted that women with disabilities may be denied sexual and reproductive health rights and access to information on sexual education, including sexually transmitted infections and HIV prevention.56 States “have an obligation to respect, protect and fulfill the rights of women with disabilities … in order to guarantee them the enjoyment and exercise of all human rights and fundamental freedoms,” and must accordingly take legal, political, administrative, educational and other measures to realize these rights.57

iv. Committee on the Elimination of Discrimination against Women The Committee on the Elimination of Discrimination against Women monitors implementation of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). 58 It has issued several general recommendations that are relevant for PLWHA.59

Obligation of Non-Discrimination and Equality In General Recommendation 34 (2016), the Committee on the Elimination of Discrimination against Women noted that States must ensure that rural women and girls have access to healthcare facilities that provide HIV prevention and treatment services.60 Additionally, it called on State parties to make information on preventing communicable and sexually transmitted diseases, as well as on sexual and reproductive health and rights, available and to “widely disseminate [the information] in local languages and dialects.” 61

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In General Recommendation 30 (2013), the Committee discussed conflict-related gender-based violence and its “vast range of physical and psychological consequences for women, such as … increased risk of HIV infection …” 62 As such, States must “ensure that national prevention and response measures include specific interventions on gender-based violence and HIV.” 63 In General Recommendation 28 (2010), the Committee noted that States must “pay attention to the specific needs of (adolescent) girls by providing education on sexual and reproductive health and carrying out programmes that are aimed at the prevention of HIV/AIDS, sexual exploitation and teenage pregnancy.” 64 In its General Recommendation 27 (2010), the Committee urged States to “adopt special programmes tailored to the physical, mental, emotional and health needs of older women, with special focus on women belonging to minorities and women with disabilities, as well as … women caring for family members living with or affected by HIV/AIDS.” 65 The Committee on the Elimination of Discrimination against Women’s General Recommendation 26 (2008) noted that, to combat issues such as compulsory HIV/AIDS testing for women migrant workers, States must work to develop appropriate education and awareness-raising programs and offer “free or affordable gender- and rights-based pre-departure information and training programmes that raise prospective women migrant workers’ awareness of potential exploitation, including information on general and reproductive health, including HIV/AIDS prevention.” 66 In General Recommendation 24 (1999), the Committee called on States to “ensure, without prejudice or discrimination, the right to sexual health information, education and services for all women and girls.” 67 Particular attention should be paid to sexual and reproductive health education through programs “directed at adolescents for the prevention and treatment of sexually transmitted diseases, including HIV/AIDS,” 68 with such programs respecting the adolescents’ rights of privacy and confidentiality.

In General Recommendation 15 (1990), the Committee recommended that States “intensify efforts in disseminating information to increase public awareness of the risk of HIV infection and AIDS, especially in women and children.” 69 It also recommended that programs undertaken by States “to

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combat AIDS should give special attention to the rights and needs of women and children, and to the factors relating to the reproductive role of women and their subordinate position in some societies which make them especially vulnerable to HIV infection.” 70 States must also “ensure the active participation of women in primary health care and take measures to enhance their role as care providers, health workers and educators in the prevention of infection with HIV.” 71

Right to Education In joint General Recommendation 31 (2014), the Committee on the Elimination of Discrimination against Women and the Committee on the Rights of the Child recommended that States “ensure that schools provide age-appropriate information on sexual and reproductive health and rights, including … responsible sexual behavior [and] HIV prevention.” 72

Right to a Remedy In General Recommendation 33 (2015), noting that women living with HIV may have more difficulty in gaining access to justice, the Committee on the Elimination of Discrimination against Women called on States to ensure women’s right to access to justice, which is essential to the realization of all the rights protected under the CEDAW Convention.73

v. Committee on the Rights of the Child The Committee on the Rights the Child monitors implementation of the Convention on the Rights of the Child (CRC). It has issued several general comments that are particularly relevant for minors living with HIV/AIDS.

HIV/AIDS and the rights of the child General Comment 3 (2003) is specifically focused on HIV/AIDS and the rights of the child. In it, the Committee noted that “[a]dequate measures to address HIV/AIDS can be undertaken only if the rights of children and adolescents are fully respected.” 74 The Committee noted that States’ “[l]aws, policies, strategies and practices should address all forms of discrimination that contribute to increasing the impact of the epidemic,” 75 and strategies should “promote education and training programmes explicitly designed

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to change attitudes of discrimination and stigmatization associated with HIV/AIDS.” 76 Health services employees must be trained to respect the rights of children to privacy and non-discrimination, taking into account “differences in gender, age and the social, economic, cultural and political context in which children live.” 77 In discussing States’ obligation to ensure the best interest of the child, the Committee emphasized that children should have “the right to access adequate information related to HIV/AIDS prevention and care, through formal channels (e.g. through educational opportunities and child-targeted media) as well as informal channels (e.g. those targeting street children, institutionalized children or children living in difficult circumstances).” 78 States must give careful attention to sexuality and the behaviors and lifestyles of children, “even if they do not conform with what society determines to be acceptable under prevailing cultural norms for a particular age group.” 79 In this regard, States must enact programs that “acknowledge the realities of the lives of adolescents, while addressing sexuality by ensuring equal access to appropriate information, life skills, and to preventive measures.” 80 In regards to children’s right to education, the Committee noted that States must “make adequate provision to ensure that children affected by HIV/AIDS can stay in school and ensure the qualified replacement of sick teachers so that children’s regular attendance at schools is not affected.” 81 States must also ensure that schools are safe places for children, “offer them security and do not contribute to their vulnerability to HIV infection.” 82 Children also have a right of access to health services, which requires States to “pay special attention to addressing those factors within their societies that hinder equal access to treatment, care and support for all children.” 83 Additionally, States must ensure access to voluntary and confidential HIV counseling and testing for all children.

Furthermore, the Committee requested that States implement strategies to prevent HIV infection in infants and young children.84 This request primarily concerns the prevention of mother-to-child HIV transmission, which requires the provision of essential drugs, appropriate natal care, and availability of HIV counselling and testing services to pregnant women and their partners, as well as follow up support. In the course of HIV/AIDS research programs, States must ensure that children do not serve as research subjects. The research process must also respect

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the privacy rights of children, with personal information accessed through research only being used for purposes for which consent was given.

The Committee also underlined that in order to realize the rights of children and give them “the skills and support necessary to reduce their vulnerability and risk of becoming infected,” States must provide “legal, economic and social protection to affected children to ensure their access to education, inheritance, shelter and health and social services, as well as to make them feel secure in disclosing their HIV status and that of their family members when the children deem it appropriate.” 85 Also, children orphaned by AIDS must be provided with “a standard of living adequate for their physical, mental, spiritual, moral, economic and social development, including access to psychosocial care, as needed.” 86 In order to reduce children’s vulnerability to HIV/AIDS, the Committee noted that States have an obligation to protect children from all forms of economic and sexual exploitation, trafficking and sale, and ensure “that they are protected from performing any work likely to … interfere with their education, health, or physical, mental, spiritual, moral or social development.” 87 In regards to States’ obligation to protect children from violence and abuse, the Committee noted that in the context of war and armed conflict, it is critical for States to “ensure the incorporation of HIV/AIDS and child rights issues in addressing and supporting children - girls and boys - who were used by military or other uniformed personnel to provide domestic help or sexual services, or who are internally displaced or living in refugee camps.” 88 National and community responses to HIV/AIDS must include “active information campaigns, combined with the counselling of children and mechanisms for the prevention and early detection of violence and abuse.” 89

Obligation of Non-Discrimination and Equality In General Comment 11 (2009), the Committee on the Rights of the Child discussed the rights of indigenous children and reminded States that they must “take all reasonable measures to ensure that indigenous children, families and their communities receive information and education on issues relating to health and preventive care such as … communicable diseases (in particular HIV/AIDS …),” among others.90

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General Comment 9 (2006) noted that “children with disabilities are, particularly during their adolescence, facing multiple challenges and risks in the area of establishing relationships with peers and reproductive health.” 91 For that reason, the Committee recommended that States “provide adolescents with disabilities with adequate, and where appropriate, disability specific information, guidance and counselling,” fully taking into account the Committee’s General Comments 3 (2003) on HIV/AIDS and the Rights of the Child and 4 (2003) on Adolescent Health and Development.92 In General Comment 7 (2005), the Committee noted that Article 2 of the CRC ensures rights to every child without any kind of discrimination.

Noting that young children are “especially at risk of discrimination 93 because they are relatively powerless and depend on others for the realization of their rights,” the Committee emphasized that young children must not be discriminated against on any grounds.94 For example, children infected with or affected by HIV/AIDS may be deprived of the help and support they require. To prevent discrimination, the Committee called on States to “ensure that all young children (and those with primary responsibility for their well‑being) are guaranteed access to appropriate and effective services, including programmes of health, care and education specifically designed to promote their well‑being,” with particular attention given to the most vulnerable groups of young children, including children infected with or affected by HIV/AIDS. 95 Additionally, in discussing States’ obligations to ensure the highest attainable standard of health care and nutrition to children during their early years, the Committee called particular attention to the challenges of HIV/AIDS for early childhood. It urged States to take all necessary steps to: “(i) prevent infection of parents and young children, especially by intervening in chains of transmission, especially between father and mother and from mother to baby; (ii) provide accurate diagnoses, effective treatment and other forms of support for both parents and young children who are infected by the virus (including antiretroviral therapies); and (iii) ensure adequate alternative care for children who have lost parents or other primary caregivers due to HIV/AIDS, including healthy and infected orphans.” 96 In General Comment 6 (2005), the Committee emphasized that States “are obligated to ensure that unaccompanied and separated children

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have the same access to health care as children who are ... nationals…” 97 It noted that States may accept and facilitate assistance offered by nongovernmental organizations such as the World Health Organization (WHO) or the United Nations Joint Programme on HIV/AIDS (UNAIDS), “in order to meet the health and health-care needs of unaccompanied and separated children.” 98 In General Comment 4 (2003), the Committee reminded States that they have an obligation to ensure that all individuals under the age of eighteen enjoy all the rights set forth in the CRC without discrimination, such as on grounds of health status like HIV/AIDS.99 One area of concern for the Committee was early marriage and pregnancy leading to health problems related to sexual and reproductive health, including HIV/AIDS. The Committee strongly recommended that States review and reform their legislation and practice in that regard. Additionally, the Committee noted that States “should provide adolescents with access to sexual and reproductive information, including on … the prevention of HIV/AIDS,” as well as “ensure that they have access to appropriate information, regardless of their marital status and whether their parents or guardians consent.” 100 The Committee further brought to light the risk of adolescents of being infected with and affected by sexually transmitted diseases, including HIV/AIDS. In this regard, the Committee called on States to “ensure that appropriate goods, services and information for the prevention and treatment of STDs, including HIV/AIDS, are available and accessible.” 101 The Committee urged States “… to develop effective prevention programmes, including measures aimed at changing cultural views about adolescents’ need for contraception and STD prevention and addressing cultural and other taboos surrounding adolescent sexuality; … to adopt legislation to combat practices that either increase adolescents’ risk of infection or contribute to the marginalization of adolescents who are already infected with STDs, including HIV; [and] … to take measures to remove all barriers hindering the access of adolescents to information, preventive measures such as condoms, and care.” 102 Another area of concern for the Committee was the exposure of adolescents who are sexually exploited, including in prostitution and pornography, to significant health risks, such as HIV/AIDS. The Committee noted that these adolescents “have the right to physical and psychological recovery and social reintegration in an environment that fosters health, self‑respect and dignity.” 103 State parties must “enact and enforce laws to prohibit all forms of sexual exploitation and related trafficking; to collaborate with other States parties to eliminate

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intercountry trafficking; and to provide appropriate health and counselling services to adolescents who have been sexually exploited, making sure that they are treated as victims and not as offenders.” 104

Right to Health In its General Comment 20 (2016), the Committee on the Rights of the Child encouraged States to “ensure that [adolescents] have access to confidential HIV testing and counselling services and to evidence-based HIV prevention and treatment programmes provided by trained personnel who fully respect the rights of adolescents to privacy and non-discrimination.” 105 The Committee also noted that States should give consideration to “reviewing HIV-specific legislation that criminalizes the unintentional transmission of HIV and the non-disclosure of one’s HIV status.” 106 In General Comment No. 15 (2013), the Committee emphasized that in order to adequately address HIV/AIDS, the rights of children and adolescents must be fully respected, and therefore, the child’s best interests should “guide the consideration of HIV/AIDS at all levels of prevention, treatment, care and support.” 107 The Committee further noted that where necessary, children should have access to confidential counseling and advice, as well as the ability to consent to certain medical treatments and interventions, without parental or legal guardian consent.

Additionally, the Committee reminded States of their obligation to reduce child mortality by ensuring “universal access to a comprehensive package of sexual and reproductive health interventions … based on the concept of a continuum of care from pre-pregnancy, through pregnancy, childbirth and throughout the post-partum period,” including “prevention of mother-to-child HIV transmission, and care and treatment of HIVinfected women and infants.” 108 The Committee also published General Comment 14 (2013), concerning Article 3(1), paragraph 1, of the CRC, which “gives the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, both in the public and private sphere.” 109 The Committee noted that the “child’s right to health … and his or her health condition are central in assessing the child’s best interest.” 110 To this end, the Committee noted that States “have the obligation to ensure that all adolescents, both in and out of school, have access to adequate information that is essential for their health and development in order to make appropriate health choices,” including information on prevention of HIV/AIDS and of sexually transmitted diseases. 111

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Right to Education In a joint General Recommendation, the Committee on the Elimination of Discrimination against Women and the Committee on the Rights of the Child (No. 31 (2014) recommended that States party to both the CEDAW and the Covenant on the Rights of the Child “ensure that schools provide age-appropriate information on sexual and reproductive health and rights, including … responsible sexual behavior [and] HIV prevention.” 112 In General Comment 1 (2001), the Committee on the Rights of the Child discussed the negative effects of discrimination on a child’s capacity to benefit from educational opportunities.113 It noted that children with HIV/ AIDS are heavily discriminated against in both formal educational systems and informal educational settings, including in the home. It emphasized that such discriminatory practices directly contradict the requirements in the CRC “that education be directed to the development of the child’s personality, talents and mental and physical abilities to their fullest potential.” 114

Prohibition of Torture, and Cruel, Inhumane or Degrading Treatment In General Comment 13 (2011), the Committee proposed a “coordinating framework on violence against children for all child rights-based measures to protect children from violence in all its forms and to support a protective environment.” 115 This includes children in potentially vulnerable situations who are likely to be exposed to violence, such as children infected by HIV, or who are affected by HIV/AIDS.

vi. Committee on Migrant Workers The Committee on Migrant Workers monitors implementation of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW). The Convention defines “migrant worker” as “a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.” It defines their “members of the family” as a spouse or anyone having an equivalent relationship to marriage under the applicable law, as well as “their dependent children and other dependent persons who are recognized as members of the family” by applicable law. 116

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Obligation of Non-Discrimination and Equality In its General Comment 2 (2013), the Committee on Migrant Workers discussed vulnerable categories of migrant workers, which include migrant workers living with HIV/AIDS or who have family members living with HIV/ AIDS. 117 It noted that “[d]etention can be particularly damaging to vulnerable categories of migrant workers, impacting negatively on their physical and mental health.” 118 Accordingly, States must take special measures “to protect vulnerable people deprived of their liberty, including access to adequate health services, medication and counselling.” 119 In discussing migrant domestic workers in General Comment 1 (2011), the Committee noted that States must “repeal discriminatory laws, regulations and practices related to HIV, including those which result in the loss of work visas based on HIV status.” 120 States must also “ensure that medical testing of migrant domestic workers, including tests for pregnancy or HIV, is only done voluntarily and subject to informed consent.” 121

vii. Committee on the Elimination of Racial Discrimination The Committee on Elimination of Racial Discrimination monitors implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). To date, the Committee has not yet issued any General Comments directly relevant to rights implicated for people living with HIV/AIDS.

viii. Committee Against Torture The Committee Against Torture monitors implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). To date, the Committee against Torture has not yet issued any General Comments directly relevant to rights implicated for people living with HIV/AIDS.

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2. State Periodic Review by Treaty Bodies and Concluding Observations When States ratify treaties, in addition to implementing the relevant treaty provisions, they also undertake to submit reports periodically (approximately every five years) to the treaty body explaining what they are doing to discharge their obligations.122 National human rights institutions, civil society organizations, both international and national, United Nations entities, other intergovernmental organizations, professional groups, and academic institutions can present “parallel reports” (also known as “shadow reports”) to supplement information the State neglected to present, or to call the treaty body’s attention to a specific issue. The treaty body considers both the State’s report and any shadow reports, and then publishes its concerns and recommendations, referred to as “concluding observations”. Below is a compilation of treaty bodies’ concluding observations of special relevance to PLWHA. i. Human Rights Committee Obligation of Non-Discrimination and Equality In 2014, in its concluding observations on Sudan, the Human Rights Committee expressed concern about Sudan’s “lack of comprehensive antidiscrimination legislation prohibiting discrimination” on grounds of health status, in particular persons living with HIV/AIDS.123 The Committee encouraged Sudan to enact such legislation.

In 2012, the Committee called on Kenya to raise awareness of HIV/ AIDS with a view to combat prejudices and negative stereotypes, observing that such prejudices – including laws that criminalize consensual samesex relationships – contribute to the prevalence of HIV/AIDS among homosexuals. 124

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The Committee had made the same observation a year earlier in the case of Jamaica.125 The concern was that “prevalent societal stigmatization of people with HIV/AIDS, [. . .] conflates HIV/AIDS with homosexuality,” and in turn, “this stigmatization, which is partly fueled by the laws that criminalize consensual same-sex relationships, hampers access to treatment and medical care by persons living with HIV/AIDS, including homosexuals.”

In 2014, the Committee observed that in Malawi, due to negative stigmatization, lesbian, gay, bisexual, transgender, and intersex persons did not enjoy effective access to healthcare services.126 The HRC expressed its concern about reports of cases of violence against these groups, noting that “owing to the stigma, these persons do not enjoy effective access to health services.” The Committee urged Malawi to guarantee effective access to health services to these persons, including HIV/AIDS treatment.

The Committee did the same in the case of Jamaica (2011)127 and Kenya (2012).128 On Kenya, the Committee noted the high rates of deaths resulting from AIDS and called on Kenya to “take measures to ensure that all those infected with HIV have equal access to treatment.” 129 In 2012, the Committee also urged Kenya to take concrete measures to raise awareness on HIV/AIDS in an attempt to combat “prejudices and negative stereotypes against people living with HIV/AIDS,” and “ensure that persons living with HIV/AIDS, including homosexuals, have equal access to medical care and treatment.” 130 In 2012, the committee also expressed concern for the high rates of HIV/ AIDS among detainees in Portugal, and called on the State to expedite its efforts to address the problem.131

Right to Privacy In recent years, the Committee also commented about the right to privacy as it relates to individuals’ HIV status. In 2014, it the case of Malawi it expressed its concern about a draft bill on HIV/AIDS containing provisions allowing healthcare providers to disclose a person’s HIV status and providing for compulsory HIV testing in certain circumstances.132 Indicating that such provisions are not in conformity with the ICCPR, the Committee urged Malawi to “review the draft Bill on HIV/AIDS to make all its provisions fully compliant with the [ICCPR] and international standards and expedite its adoption.” 133

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Right to Freedom of Movement, Asylum, and Residency The Committee also expressed concern over legislation in Turkmenistan, which restricted the residence permit of foreign citizens infected with HIV/AIDS to a maximum period of three months. 134 The Committee was “concerned that upon detection of an infection, foreign nationals are deported.” 135 In its concluding observations in 2012, the Committee called on Turkmenistan to “revise its legislation to ensure that foreign nationals who enter the territory of the State party enjoy all their rights under the [ICCPR], particularly to freedom of movement and privacy.” 136

ii. Committee on Economic, Social, and Cultural Rights (CESCR) Obligation of Non-Discrimination and Equality The Committee on Economic, Social, and Cultural Rights has observed wide-scale discrimination against persons living with HIV/AIDS in several States. In China and Belarus, the Committee was concerned about the social stigmatization faced by persons living with HIV/AIDS, as well as discrimination in employment, education, and access to health care137.

Specifically, in Belarus, the Committee commented that the “definition of HIV as a socially dangerous disease and the provisions in the law for compulsory testing of persons believed to be HIV-infected may further exacerbate stigma and discrimination against persons living with HIV/ AIDS.” 138 The Committee recommended that both China and Belarus take effective measures to repeal or amend any laws and policies that perpetuate the stigmatization of persons living with HIV/AIDS; to ensure equal access to health care, employment, and education to persons living with HIV/AIDS; and to promote tolerance towards persons living with HIV/AIDS among medical staff, employers and the population at large.139 In Tanzania, the Committee expressed concern that persons living with or affected by HIV/AIDS face social stigma and discrimination, and urged the State to adopt a comprehensive anti-discrimination legislation, to take steps to combat and prevent discrimination and societal stigma, and ensure that marginalized groups enjoy economic, social, and cultural

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rights, including access to employment, social services, health care and education.140 In Namibia, the Committee observed that the State’s constitution only prohibits discrimination based on a limited number of grounds. As such, the Committee recommended that the State “expand the grounds for discrimination prohibited in the Constitution to include, among others, … HIV status …” 141 The Committee has observed a number of factors hampering equal access to medical care, including the availability and accessibility of adequate treatment and discrimination. In that regard, the Committee emphasized that Namibia, Burundi, Venezuela, and Ukraine must combat high rates of HIV/AIDS by ensuring that antiretroviral treatment is made available and accessible.142 In Gabon, although the Committee was pleased that the State provided some free access to antiretroviral treatment, it urged the State to extend such coverage throughout the territory, “to ensure that low-income and marginalized groups have equal access to treatment, and to ensure that stable funding is allocated for that purpose, in order to prevent any interruption in the supply of antiretroviral drugs.” 143 Finally, in Mauritania, the Committee recommended that the provision of antiretroviral treatment become decentralized to regional health facilities.144 The Committee has also expressed concern in recent years about discrimination against PLWHA hindering access to medical care. For example, noting that in China and Belarus, persons living with HIV/AIDS face social stigmatization and discrimination in access to health care, including refusal of treatment, the Committee called on the States to take “all necessary measures to ensure the appropriate access of persons living with HIV/AIDS to health care … on an equal basis with others.” 145 Similarly, in Bulgaria, the Committee noted the “difficulties faced by persons living with HIV/AIDS … in accessing treatment through the social security scheme,” and recommended that treatment and care be available and accessible to persons living with HIV/ AIDS and effectively covered by social security services.146 In Romania, the Committee observed discrimination against women living with HIV/AIDS in access to sexual and reproductive health, and urged the State to “ensure that sexual and reproductive health services … are available, accessible and affordable without discrimination, including to adolescents.” 147 In Kenya, the Committee expressed concern over the

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criminalization of mother-to-child HIV transmission, and suggested that the State extend the coverage of free antiretroviral treatment, particularly to children and women.148 In Jamaica, the Committee noted discrimination against persons living with HIV/AIDS, “particularly in relation to men in same-sex relationships and transgender persons, which not only prevents their access to essential medicines and treatment and their enjoyment of other economic, social and cultural rights, but risks undermining efforts to eradicate HIV.” 149 The Committee requested that the State prohibit discrimination against persons with HIV/AIDS and repeals or amends “laws that stigmatize and increase the vulnerability of those most at risk.”

The Committee has also observed unequal access to treatment in other instances of discrimination. For example, after observing the lack of access to health services to lesbian, gay, bisexual, transgender, and intersex persons in Ecuador and Uganda, the Committee called on the States to ensure access to health services to these persons on a non-discriminatory basis, including HIV-related care.150 In Uganda, the Committee was concerned about the “disparities in access to health care by poor individuals and families,” and recommended that the State strengthen its efforts to provide everyone access to quality health care, include the right to health in its Bill of Rights and in relevant laws, and progressively raise its budget allocations to the health sector. 151 In Lithuania, the Committee identified unequal access to treatment for marginalized groups, such as prisoners and intravenous drug-users. The Committee recommended that the State “take effective measures to guarantee the right to health care among marginalized groups…, including access to Statefunded HIV testing…” 152 In Togo, the Committee similarly urged the State to ensure that vulnerable groups have equal access to antiretroviral treatment.153 In Cameroon, the Committee called on the State to improve access, availability, quality of services for the prevention of AIDS, and develop “treatment services, especially in rural areas, paying particular attention to vulnerable groups such as women, young people and children, and risk groups such as sex workers and prisoners.” 154

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Right to Health The CESCR Committee has also made observations about the question of HIV/AIDS interfering with individuals’ right to the enjoyment of the highest attainable standard of physical and mental health. In recent years, the Committee identified high rates of HIV/ AIDS in Kenya, Burundi, Venezuela, Serbia, Ukraine, Belarus, Togo, the Congo, Ecuador, and Cameroon, and has called on those States to combat HIV/AIDS, and undertake effective measures for the prevention and treatment of the disease.155 In Mongolia and Indonesia, the Committee called attention to the insufficient measures taken to prevent HIV/AIDS, and urged the States to take measures and effectively implement legislation to combat HIV/AIDS.156 Similarly, in Romania, the Committee noted the “inadequacy of motherto-child HIV transmission prevention,” calling on the State to ensure that all “pregnant women and girls have access to specialized medical care, including measures to prevent mother-to-child HIV transmission.” 157 The Committee has also commented on several States’ HIV testing policies in the context of the right to the enjoyment of the highest attainable standard of physical and mental health. For example, in Moldova, the Committee expressed concern “about the practice of disclosure of a patient’s HIV status by doctors and nurses to other medical personnel and third parties, especially in rural areas.” 158 The Committee noted that such disclosure has negative consequences on the patient’s access to employment and how the patient’s children are treated at school. It recommended that Moldova ensures the confidentiality of a patient’s HIV status, including through reforming relevant laws, and “take steps to eliminate the mandatory indication of disease codes on all medical sick leave forms.” 159 Additionally, the Committee called on Guyana in 2015 to improve the availability, accessibility and quality of health-care services, urging the State to “take all necessary measures to combat … HIV/AIDS and to provide adequate and timely treatment to those affected.” 160 In Tajikistan, Uzbekistan, and Russia, the Committee observed growing rates of HIV/AIDS among injecting drug users.161 It called on these States to undertake targeted programs, such as needle exchange programs and opioid substitution programs, in order to combat the growing rates

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of HIV/AIDS among drug users. In Thailand, the Committee noted that compulsory treatment and detention of drug users have led to increased rates of HIV infection.162 The Committee recommended that the State “apply a human rights-based and evidence-informed approach to drug abuse, which should include preventive measures, harm-reduction programmes and the provision of appropriate health care, psychological support and rehabilitation.” 163 In Mauritania, HIV rates were “exceptionally high among sex workers and detainees.” 164 The Committee called on the State “to take specific protective measures targeted at sex workers and detainees and to disseminate information as to how HIV/AIDS can be effectively prevented, including by using condoms.” 165 As part of States’ duties to afford the highest attainable health to individuals, the Committee has recommended that States undertake efforts to spread information on HIV/AIDS prevention, treatment, and available services. In Burundi, Venezuela, Tajikistan, Romania, Serbia, China, Ukraine, Belarus, Mauritania, Turkmenistan, and Russia, the Committee suggested the States conduct health education campaigns to promote awareness of how HIV is spread and treated.166 Additionally, in Burundi, Venezuela, China, and Belarus, the Committee suggested the States carry out awareness-raising activities aimed at promoting “tolerance towards persons living with HIV/AIDS, particularly among medical personnel, employers and the general public.” 163 In Cameroon, the Committee asked the State “to ensure that persons living with HIV/AIDS are aware of their human rights and the laws that protect them.” 168 In Mongolia, the Committee noted concern at the practice of mandatory HIV/AIDS testing and requested that the State take necessary measures “to ensure that HIV/AIDS testing is voluntary and confidential.” 169

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Right to Marry and Found a Family Article 10 of the ICESCR recognizes that “[s]pecial measures of protection and assistance should be taken on behalf of all children and young persons.” 170 Accordingly, in 2015, in its concluding observations on Burundi, the Committee expressed concern by the “number of children who are not living with their families, in particular children with HIV/ AIDS.” 171 The Committee recommended that the State “take all necessary steps to provide support to families so that children are not forced to live away from their families or, when such separation cannot be avoided, to ensure placement in an alternative care setting that allows the child to enjoy an environment that provides similar support.” 172

iii. Committee on the Rights of Persons with Disabilities Obligation of Non-Discrimination and Equality The Committee on the Rights of Persons with Disabilities has observed the lack of access to medical care and treatment for PLWHA, as well. In the case of Costa Rica, El Salvador, and Paraguay, the Committee was concerned with the “discrimination against persons with disabilities in terms of access to health, including sexual and reproductive health.” 173 It urged the States to “ensure that all health policies, programmes and services, including in sexual and reproductive health and those related to HIV/AIDS, are fully accessible.”

Right to Freedom of Expression and Information The Committee, in line with its discussion in its General Comment 3, has observed problems with access to health information for persons with disabilities throughout several States. In the case of Gabon, Kenya, El Salvador, and Paraguay, it expressed concern about the lack of accessibility to health information to persons with disabilities, especially in rural areas.174 It recommended that those States ensure that all health education, including information on sexual and reproductive health and HIV/AIDS, are fully accessible and incorporate gender perspectives.

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iv. Committee on the Elimination of Discrimination Against Women Obligation of Non-Discrimination and Equality The Committee on the Elimination of Discrimination against Women has similarly observed discrimination against women living with HIV/AIDS. For example, in the case of Serbia, the Committee expressed its concern about the “predominantly negative attitude, including, in certain cases, hate crimes, towards … women living with HIV [and other groups of women,] … affecting the enjoyment of many of their rights.” 175 The Committee recommended that the State implement a strategy to prevent discrimination, focusing on disadvantaged groups like women living with HIV, and “work with civil society, the media and other stakeholders to improve tolerance and combat social exclusion of those groups of women.” 176 The Committee also identified Serbia’s lack of adequate funding for the implementation of strategies aimed at eliminating discrimination against women, and in particular against disadvantaged groups of women, like those living with HIV. 177 The Committee urged the State “[t]o allocate substantial and sustained resources, both human and financial, to all national strategies, mechanisms and action plans aimed at the elimination of discrimination against women, especially disadvantaged women, and to ensure their effective implementation.”

Similarly, in Azerbaijan, China, and Tajikistan, the Committee called on those States to take measures to eliminate persisting discrimination and social stigmatization against women living with HIV/AIDS. 178 In Malawi, the Committee observed discriminatory stereotypes and high prevalence of harmful practices against women living with HIV, such as the practice of prescribing sex with girls or women with albinism as a cure for HIV. The Committee urged the States to effectively implement the existing legal provisions prohibiting harmful practices and ensure that “victims of harmful practices have access to effective remedies and adequate protection mechanisms.” 179 In Colombia and Namibia, the Committee observed cases of forced sterilization of women living with HIV/AIDS, and recommended that the States ensure that sterilization is done only with the free and informed consent of women by developing a regulatory framework and giving guidance to medical practitioners. 180

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In Namibia, the Committee pointed out the provision in the State’s Constitution that provides prohibited grounds of discrimination, and noted that the listed grounds do not encompass discrimination based on marital and HIV status.181 The Committee called on Namibia to adopt a comprehensive legal definition of discrimination covering all prohibited grounds of discrimination, including HIV status.

Additionally, in Qatar, the Committee observed that female migrant workers “experience serious difficulties in gaining access to health care, including sexual and reproductive health care and emergency obstetric services, and that they are often unaware of how to gain access to health care and services.” 182 To combat this, the Committee suggested that the State take measures to ensure that female migrant workers “enjoy access to free emergency medical care, including sexual and reproductive health care.” 183 Also, with the lack of HIV/AIDS prevention and treatment programs aimed at migrant women in Andorra, the Committee called on the State to “ensure affordable access for all migrant women and girls to the health-care system and consider amending the legislation restricting access to health care on the basis of legal residence.” 184 Another marginalized group that the Committee has observed are women engaged in prostitution. The Committee called upon Cambodia and Andorra to provide access to treatment and information for women engaged in prostitution in an effort to prevent HIV/AIDS. 185 Similarly, in Kyrgyzstan, the Committee urged the State to stop the “widespread violence and discrimination against women in prostitution, in particular by the police,” and the illegal forced testing for HIV/AIDS often performed on women in prostitution during police raids. 186 Finally, in Cambodia, the Committee expressed concern about “discrimination against pregnant mothers living with HIV/AIDS and the pressure on them from medical practitioners to undergo abortion.” 187 The Committee urged the State to combat all forms of discrimination against pregnant women living with HIV/AIDS.

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Right to Health Similarly, the Committee often commented on States’ lack of compliance with women’s right to health and access to medical care. In the case of Malawi, Namibia, Benin, Senegal, Gambia, Gabon, Cameroon, Tajikistan, Swaziland, Kyrgyzstan, Kazakhstan, Denmark, Russia, Slovakia, and the Congo, the Committee has expressed concern about the high prevalence of HIV/AIDS among women, calling on the States to implement strategies to combat HIV/AIDS and intensify measures of prevention and treatment of HIV/AIDS, including making antiretroviral treatment available and accessible.188 Furthermore, in Kyrgyzstan, Kazakhstan, Russia, and the Congo, the Committee recommended that States pay particular attention to increasing access to sexual and reproductive health to women in rural areas. 189 In Liberia and Russia, the Committee noted that the prevention of mother-to-child transmission of HIV remains a challenge.190 The Committee urged both States to “step up the implementation of strategies to combat HIV/AIDS, in particular preventive strategies, and continue the provision of free antiretroviral treatment to all women and men living with HIV, including pregnant women, in order to prevent mother-to-child transmission.” 191 Moreover, the Committee was concerned about the absence of substitution therapy programs for women who use drugs in Russia, which contributes to the spread of HIV/AIDS. 192 The Committee called upon the State to develop such programs for female drug users.

The Committee also expressed concern about the reduction of Spain’s budget for women living with HIV. 193 The Committee urged the State to ensure the provision of adequate treatment to all women living with HIV. In Venezuela, the shortages of antiretroviral treatment for women living with HIV/AIDS and the discrimination faced by them were troubling for the Committee, prompting it to urge the State to address the shortages and ensure that pregnant women living with HIV/AIDS receive adequate treatment in order to reduce mother-to-child transmission.194 Similarly, the Committee urged Cambodia and Serbia to address the issue of motherto-child transmission by taking measures to provide access to antiretroviral drugs and other necessary services, as well as information on methods to prevent mother-to-child transmission of HIV/AIDS.195

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Right to Privacy Privacy and confidentiality concerns have also arisen in several other States in regard to mandatory HIV testing. In Qatar, the Committee expressed concern with the mandatory HIV/AIDS testing for pregnant women and women migrant workers.196 It called on the State to reform its mandatory testing policy “to prohibit any involuntary HIV/AIDS testing and deportation of women migrant workers who test positive.” 197 Also, in Malawi, the Committee observed “disclosure of a person’s HIV status by medical practitioners in certain circumstances without consent; compulsory HIV testing for pregnant women, women in prostitution and women in polygamous unions; [and] mandatory pre-service testing for members of the uniformed services and domestic workers.” 198 The Committee encouraged the State to amend these provisions of its law “with a view to ensuring comprehensive coverage of HIV/AIDS prevention, treatment, care, support and management, and its full compliance with the [CEDAW] and other relevant international standards.” 199 In the Seychelles, the Committee noted that parental consent is required for teenage girls to gain access to contraceptives and HIV testing.200 The Committee urged the State to put an end to this practice without delay.

Right to Education The Committee has also commented on inadequate access to sexual education in several States. In Benin and the Seychelles, the Committee observed complete absence of education on sexual and reproductive health and rights in school curricula.201 In Sierra Leone and Cuba, it expressed deep concern about the increased number of teenage pregnancies.

In all three States, the Committee recommended the inclusion of “comprehensive and age appropriate programs on sexual and reproductive health and rights as a regular part of school curricula aiming to foste[r] responsible sexual behavior and prevent teenage pregnancies and sexually transmitted infections, including HIV/AIDS.” 202 Similarly, in Tuvalu, the Committee identified the “lack of preventive sexual and reproductive health services, including age-appropriate school education on sexual and reproductive health and rights,” as well as very low use of contraceptives resulting in a higher risk of HIV/AIDS, sexually

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transmitted diseases and early pregnancy.203 The Committee called on the State to ensure free access to contraceptives for women as part of the State’s policy on free health care, and “strengthen age-appropriate school education on sexual and reproductive health and rights for adolescent girls and boys.”

v. Committee on the Rights of the Child Obligation of Non-Discrimination and Equality The Committee on the Rights of the Child has also observed discrimination against children living with HIV/AIDS in several States.

In the case of Kenya, Zambia, Senegal, Zimbabwe, Ethiopia, Dominican Republic, Colombia, Tanzania, Mauritius, Fiji, and Venezuela, the Committee noted that the prohibition of discrimination is not adequately implemented with respect to children living with HIV/AIDS and recommended that those States intensify their efforts to eliminate such discrimination.204 Additionally, in Kenya, the Committee noted that “[s] tigma and discrimination against children living with HIV/AIDS remain persistent, leading to neglect and abandonment of children.”205 As such, it recommended the State to take “effective measures to combat stigma and discrimination against children living with or affected by HIV/AIDS, including in access to health care and education, inheritance and the family environment.” Similarly, it encouraged Poland to eliminate stigma and discrimination against children with HIV/AIDs in an effort to end segregation of these children in a school setting.206 In Tanzania, the Committee observed that “attitudes towards the sexual orientation of some HIV-infected children prevent these children from seeking and receiving proper HIV services and community health services.” 207 It called on the State to “ensure access to proper HIV services and community health services for all children, regardless of their sexual orientation.” 208 Further, in Mauritius, the Committee expressed concern about “reports that children need to be accompanied by an adult to have access to health services, which is discriminatory against children living with HIV.” 209 It urged the State to allow minors to “undergo HIV treatment on a voluntary basis without the consent of a legal administrator or guardian.” 210

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In Zambia, the Committee observed that “girls may be particularly susceptible to infection owing to the belief that intercourse with a virgin cures infection.” It urged the State to combat this belief, and the “unequal power relations between men and women which may hamper the ability of women and girls to negotiate safe sexual practices.” 211 Similarly, it called on Brazil to develop a strategy targeting “children involved in prostitution and children addicted to drugs, with a view to increasing awareness about the prevention of HIV/AIDS and to guaranteeing access to free antiretroviral therapy for these children.” 212 The Committee also observed that in Ethiopia, HIV/AIDS is prevalent for children in vulnerable situations, including orphans, children in street situations, children living in poverty, and children in single-parent and child-headed households.213 It called on the State to take measures to develop and implement programs and strategies “to combat HIV/AIDS for specific categories of children, including girls, children in single parent households, orphans and children in street situations, who are most vulnerable to sexual exploitation and abuse.” 214 The Committee also observed certain challenges faced by children in street situations and reminded States of their obligations in that regard. In Iran, Ethiopia, and Jamaica, it noted that children living in the streets are subjected to various forms of exploitation, including sexual abuse, and are at a greater risk of HIV/AIDS infection. 215 The Committee urged the States to develop a strategy to protect children in street situations and reduce their number by addressing the causes of the phenomenon. Additionally, it called on the States to provide these children with access to health care, such as HIV screening and counseling.

The Committee has expressed concern at the “systematic sexual violence committed against children, especially children from minorities” in Iraq.216 It called on the State to provide “specialized medical care for children who have been victims of sexual violence, ensure timely medical care within 72 hours to reduce the risk of sexually transmitted diseases and infections, in particular HIV, and provide victims with access to emergency contraception and abortion services.” 217

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Right to Health Additionally, the Committee emphasized the high rates of HIV/ AIDS in children in Kenya, Zambia, Haiti, France, Brazil, Bangladesh, Ethiopia, Eritrea, Fiji, and Indonesia, calling on the States to undertake and strengthen efforts to combat HIV/AIDS in children through policies of prevention and treatment.218 As part of these efforts, it urged those States to improve the availability and accessibility of HIV/AIDS treatment and services, including antiretroviral drugs.219 It also stressed the importance of the dissemination of information about HIV/AIDS.220 Another issue the Committee discussed was the limited access to medical care and treatment in Kenya, Zimbabwe, Peru, Haiti, and Venezuela.221 It called on those States to improve availability, accessibility, and affordability to treatment such as antiretroviral drugs. In Zambia, the Committee noted the shortage of adequate personnel and facilities that provide HIV/AIDS treatment, especially in rural areas.222 It called on the State to improve “access to quality, age-appropriate HIV/AIDS, sexual and reproductive health services,” and intensify “HIV education, the training of medical staff, implementation of national guidelines and distribution of training manuals, and step up its efforts to ensure proper coverage for HIV testing and [antiretroviral] provision throughout the country.” 223 Similarly, in the Dominican Republic, the Committee was “concerned at reports that HIV/AIDS testing is only available at a limited number of community health centres,” and recommended that the State ensure “the availability of universal antiretroviral treatment by allocating adequate human, financial and technical resources.” 224 Another prevalent topic in the Committee’s review of States is mother-to-child HIV transmission. The Committee addressed this issue in its review of Kenya, Zambia, Zimbabwe, Peru, Bangladesh, Ethiopia, Turkmenistan, Dominican Republic, Colombia, Tanzania, Mauritius, Fiji, and Indonesia, noting that the States must increase efforts to prevent this type of infection.225 Additionally, the Committee emphasized that the States must work towards eliminating mother-to-child transmission of HIV by ensuring “adequate health-care services and treatment for HIV-infected pregnant women and follow-up treatment for HIV/AIDS-infected mothers and

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their infants.” 226 In Zimbabwe, the Committee was alarmed by the “high number of children being orphaned [as a result of their] HIV and AIDS [status],” as well as the “significant number of cases of death of children under five years of age owing to HIV-related causes.” 227 In an effort to combat these issues, the Committee on the Rights of the Child recommended that the State improve accessibility and affordability of HIV/ AIDS services, and prevent mother-to-child transmission of HIV/AIDS. Finally, in Turkmenistan, the Committee noted that the State’s official statistics do not indicate any cases of HIV/AIDS.228 This raises concerns that “physicians might be reluctant to diagnose the disease,” and that there is a “lack of support groups or community-based rehabilitation programmes, in particular in the rural areas … where the rate of AIDS transmission from drug-addicted parents to their children is reportedly high.” The Committee urged the State to take preventative measures of mother-to-child transmission, improve access to treatment and medicines, and intensify information campaigns to raise HIV/AIDS awareness.

Right to Freedom of Expression and Information The Committee commented on the issue of access to reproductive health information, including information on HIV/AIDS, in the case of several States. In Zambia, Oman, Zimbabwe, Benin, Haiti, Jamaica, Uruguay, Tanzania, Mauritius, Gambia, Morocco, and Croatia, it urged those States to ensure that sexual and reproductive health education is part of the mandatory school curriculum, “with special attention to improving the knowledge of and the availability of reproductive health-care services with a view to reducing teenage pregnancies and preventing HIV/AIDS and other sexually-transmitted infections.” 229 The Committee on the Rights of the Child pointed out the significant challenges faced by Timor-Leste “in ensuring effective coverage of and access by adolescents to sexual reproductive health services, including for the prevention of HIV and sexually transmitted infections.” 230 To this end, the Committee suggested that the State promote “age-appropriate sex education targeted at adolescents as well as the wider community, with special attention paid to the prevention of teenage pregnancies and sexually transmitted infections, including HIV/AIDS.” 231

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vi.

Committee on Migrant Workers Obligation of Non-Discrimination and Equality The Committee on Migrant Workers has commented on discrimination of migrant workers based on HIV status. It did so in 2014, in the case of Belize, where it said it was “gravely concerned” that migrant worker and dependent children under sixteen years of age can be denied entry based on discriminatory grounds such as health status, including migrant workers living with HIV/AIDs.232 Accordingly, the Committee recommended that Belize repeal any discriminatory provisions regarding entry of migrant workers, ensure that “no medical examination is required on the basis of discriminatory grounds, including real or perceived HIV/ AIDS status,” and remove restrictions “on the rights of children of migrant workers based on the particular status or condition of their parents.”

Similarly, the Committee recommended that the Philippines amend its immigration laws “in order to avoid discrimination against migrant workers on the basis of one’s health situation, including real or perceived HIV status …, and ensure that any health testing is voluntary and free from coercion.” 233

Right to Marry and Found a Family The Committee similarly expressed concern at “the number of households headed by children, partly as a result of migration and the scourge of HIV/AIDS” in Lesotho.234 The Committee suggested that the State adopts “a comprehensive strategy to promote and protect the rights of children and families of … migrant workers who are left behind, in particular through education, entrepreneurial, training and community welfare programmes.” 235

Right to Freedom of Movement, Asylum and Residency In Timor-Leste, the Committee expressed concern “at reports of unresolved cases of deportation of Timorese HIV-positive migrants.” 236 The Committee called on the State to “ensure that all migrant workers and members of their families have recourse to consular support for the protection of the rights set out in the Convention,” and “that the personnel in its embassies and consulates abroad have appropriate knowledge about the laws and procedures of the countries of employment of Timorese migrant workers.” 237

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vii. Committee on the Elimination of Racial Discrimination In recent years, the Committee on Elimination of Racial Discrimination has commented on HIV/AIDS issues on one occasion when discussing its concluding observation on Moldova in 2011. The Committee noted “its deep concern that non-citizens are subjected to mandatory HIV/AIDS testing and that residence in Moldova is banned in the case of a positive HIV test.”238 Accordingly, the Committee recommended that the State ensure that “when HIV testing is carried out, it does not infringe the principle of non-discrimination,” and undertake “measures to remove restrictions on the entry or repatriation of migrant workers when workers’ illness or infection does not impair their ability to perform the work in question.” 239

viii. Committee Against Torture The Committee Against Torture’s discussion of HIV/AIDS issues has mostly concerned detainees’ access to medical care and treatment. For example, in Ukraine, the Committee against Torture noted its concern about “the increase in mortality of a large number of detainees suffering from communicable diseases, in particular HIV/AIDS, as a result of overcrowding, poor health care, lack of attention by medical staff to signs and symptoms of illness and negligence in referral to specialist treatment.” 240 It recommended that the State provide periodic examinations of prisoners and “make available appropriate treatments, especially for detainees infected with HIV/AIDS …, including antiretroviral medication.” It made a similar suggestion in the case of Romania, calling on the State to “provide a systematic medical examination of detainees within 24 hours of their arrival in prison, make appropriate treatments available, especially to detainees with … HIV/AIDS, and implement programmes related to the distribution and monitoring of medicines taken, in all penitentiary facilities.” 241 Similarly, in the case of Kenya, the Committee noted “the prevalence of HIV in places of detention and by allegations of transmission of HIV among detainees,” for which it urged the State to “adopt all necessary measures to protect detainees from contracting HIV, including through awareness-raising campaigns and, when appropriate, by making condoms available.” 242 In Kazakhstan, it expressed concern about inadequate health

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care in correctional institutions, “in particular regarding inmates with serious illnesses and infectious diseases such as … HIV/AIDS and their high mortality rate.” 243 It recommended that the State “provide appropriate and effective medical care of prisoners and detained persons, including adequate medicines and examination by independent doctors , as well as prompt referral to specialist treatment for persons with serious illnesses and infectious diseases such as … and HIV/AIDS, and establish special facilities for the care of such patients.”

Also, in the case of Kenya, the Committee expressed concern about the “occurrences of forced and coerced sterilization of HIV positive women and women with disabilities” under Article 16 of CAT, which prohibits cruel, inhuman or degrading treatment. 244

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3. Treaty Body Views on Individual Communications Besides issuing concluding observations and general comments, sometimes treaty bodies can consider “individual communications”, that is to say claims by individuals (single or groups) that their rights have been violated by a particular State.245 The consideration of individual communications has two main phases: “admissibility and jurisdiction”, and “merits”.246 During the admissibility and jurisdiction phase, the treaty body decides whether it has the power to consider the individual communication (jurisdiction) and whether the communication meets certain legal and formal requirements (admissibility). For the Committee to have jurisdiction, the State must have ratified the treaty in question and it must have ratified the optional protocol granting the treaty body the ability to adjudicate individual claims, or issued an optional declaration to that effect (subject-matter or ratione materiae jurisdiction). Also, the events of the case must have taken place after the State ratified the treaty in question and accepted the treaty body jurisdiction (temporal or ratione temporis jurisdiction), although there are exceptions to this rule. And, they must have taken place within the State jurisdiction (territorial or ratione loci jurisdiction). These are only the main jurisdictional requirements.

As to admissibility, the most common requirements are: 1) That the communication is not anonymous and that it emanates from an individual, or individuals, subject to the jurisdiction of a State party to the Optional Protocol.

Normally, the communication should be submitted by the

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victim or victims personally or by the victim’s representative.

A communication submitted on behalf of an alleged victim may be accepted when the individual in question is unable to submit the communication personally, for instance because in detention and incommunicado.

2) That the individual claims, in a manner sufficiently substantiated, to be a victim of a violation by that State party of any of the rights set forth in the Covenant.

3) That the communication is not incompatible with the provisions of the Covenant; 4) That the same matter is not being examined under another procedure of international investigation or settlement; 5) That the individual has exhausted all available domestic remedies. Domestic remedies are all legal remedies that are available to an injured person before the judicial or administrative courts or bodies, whether ordinary or special, of the State alleged to be responsible for causing the injury; 6) The communication has been timely submitted Each treaty body has a different time limit to bring an individual communication, ranging from six months after exhaustion of domestic remedies to a generic “reasonable delay�. The Rules of Procedure of each treaty body specify the admissibility requirements, including time limits.247

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Decisions on admissibility and jurisdiction are usually made by a Working Group, that is to say a selected subset of the experts of the Committee. If the treaty body determines that it has jurisdiction and the communication is admissible, it will proceed to consider the merits of the communication to decide whether a violation of the relevant treaty has occurred. It is not unusual for the treaty body to decide prima facie (i.e. based on the first impression; accepted as correct until proved otherwise) that the communication is admissible and that it has jurisdiction, and to postpone a full analysis of admissibility and jurisdiction to the merits phase.

Decisions on merits, known as “views” are taken by the whole Committee by majority vote. Dissenting and separate opinions are allowed. How long it will take for an individual communication to be decided on the merits, if it has not been rejected due to lack of jurisdiction or inadmissibility, by and large depends on how crowded the docket of the given Committee is. Overall, it can take from about two to seven years or more. The HRC has the most crowded docket, with 2756 individual communications pending as of 2016.

As it was said, although Committee views on an individual communication are not legally binding for the State in question, they can put pressure on States and do have consequences. The Committee will continue monitoring and insisting the State complies. Some States even treat “views” of human rights bodies as binding domestically and national authorities and courts will have them enforced.

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i.

Human Rights Committee The Second Optional Protocol to the ICCPR enables individuals to bring complaints against States to the Human Rights Committee for violations of human rights provided for in the ICCPR.248 Since the Second Optional Protocol entered into force on March 23, 1976, the Human Rights Committee has published five views concerning civil and political rights as they relate to HIV/AIDS.

Toonen v. Australia Human Rights Committee, March 31, 1994 249 In 1992, Tasmania’s (a State of the Commonwealth of Australia) Criminal Code sections 122(a), 122(c) and 123(c) criminalized certain sexual conduct, including all sexual behavior between two consenting homosexuals.250 These laws permitted police officers to detain and investigate individuals they suspected of engaging in prohibited sexual behavior.251 Mr. Nicholas Toonen, the petitioner, was an advocate for gay rights.

In addition to leading the Tasmanian Gay Law Reform Group,252 he was an HIV/AIDS worker, a political lobbyist, and in a long-term romantic relationship with a man.253 Although the Tasmanian police had not yet charged anyone under Criminal Code sections 122(a), 122(c), or 123(c), Mr. Toonen believed that his prominence as a gay rights activist made him especially vulnerable to criminal prosecution under these statutes.

Mr. Toonen argued that sections 122(a), 122(c), and 123(c) of the Tasmanian Criminal Code violated his rights under Article 2(1) (Obligation of Non-Discrimination), Article 17 (Right to Privacy), and Article 26 (Equal Protection) of the ICCPR.254 In response, Australia argued that the right to privacy was not absolute, but only prohibited the State’s unlawful or unreasonable interference in its citizens’ private lives.255 The Tasmanian government argued that the interference was not arbitrary but had public health motives to slow the spread of HIV/AIDS and that encouraging morality was a purely domestic matter.256 The Human Rights Committee determined that Tasmanian Criminal Code sections 122(a), 122(c), and 123(c) violated Mr. Toonen’s rights under Article 17(1) (Prohibition of Arbitrary Interference with Private Life) in

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relation to Article 2(1) (Obligation of Nondiscrimination) of the ICCPR.257 Consensual adult sexual behavior unquestionably falls into the sphere of private life.258 The Committee requires interferences with private life to be “in accordance with the provisions, aims, and objectives of the Covenant…” and reasonable, meaning necessary and proportionate to the intended purpose behind the law.259 The Committee determined that restricting homosexual activity is neither a reasonable nor proportionate means to further the public health goal because the law effectively discourages homosexual individuals from seeking HIV/AIDS testing or treatment for fear of prosecution, and studies have shown that criminalizing homosexual behavior does not affect the spread of HIV/AIDS.260 The Committee also refused to recognize Tasmania’s argument of domestic morality because it would effectively prohibit the Committee from analyzing potential rights of privacy. 261 The Committee did not analyze whether Article 26 (Equal Protection) had been violated, because the remedy for its violation would have been the same as Article 17(1).262 The Committee ordered that Australia (Tasmania) repeal sections 122(a), 122(c), and 123(c) of the Tasmanian Criminal Code to comply with its obligations under the ICCPR.263 As a result of the Committee’s views, the Tasmanian legislature repealed sections 122(a), 122(c), and 123(c) in 1997.264 Tasmania went from being one of Australia’s most conservative provinces to one of the most progressive provinces following this decision. In 2003, it passed the most advanced non-discrimination laws in Australia, and, in 2012, it became the first province of Australia to legalize same-sex marriage.

Nenova et al. v. Libya and A.M.H. El Houjouj Jum’a et al. v. Libya Human Rights Committee, 2012 265 The petitioners in these two cases were Bulgarian citizens (Nenova et al.) and a Palestinian doctor (A.M.H. El Houjouj Jum’a) who traveled to Libya, between 1998 and 1999, as part of a medical team staffing a pediatric hospital in Benghazi. Soon after their arrival, the Libyan police arrested the petitioners and eighteen other Bulgarian medical aid workers without giving a reason.266 Upon arrest, the police blindfolded and gagged them, and tied their hands. Hours later, after arriving at the

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police station, they were charged with intentionally inflicting 393 children with HIV, an act punishable by death, even though no evidence has ever supported this claim.267 The petitioners were tortured for approximately two months before they finally confessed, and the torture continued even after their confessions.268 Following his arrest, the family of the Palestinian doctor was followed, harassed, and threatened with deportation; and due to this harassment, the family qualified as refugees and migrated to the Netherlands.269 Between 2000 and 2007, while in detention, the petitioners had to endure confusing and ineffective trials, until the Libyan courts sentenced them to life imprisonment.270 The Bulgarian medics were transferred to Bulgaria to serve the remainder of their sentence, but were pardoned and released immediately.271 Before the HRC, the Bulgarian medical team alleged violations of Articles 2 (Obligation of Nondiscrimination), 6 (Right to Life), 7 (Prohibition of Torture, or Cruel, Inhuman, or Degrading Treatment), 9 (Right to Liberty and Security of Person), 10(1) (Persons Deprived of Liberty Must Be Treated with Humanity), 14 (Right to a Fair Trial), and 26 (Equal Protection) of the ICCPR. In response, the State argued that their trial had taken place in compliance with both international standards and domestic law and that the length of proceedings was due to the need to determine what had caused hundreds of children to contract HIV.272 Moreover, the trial had taken place in open court and the petitioners were provided with attorneys. 273 In respect to the allegations of torture, the State argued that the petitioners never brought this up to the investigatory committee, their lawyers, or to State officials conducting visits to the detention facility.274 The Palestinian doctor’s family alleged violations, on behalf of both the doctor and themselves, of Articles 2(1) & (3) (Obligation of Nondiscrimination), Article 7 (Prohibition of Torture, or Cruel, Inhuman, or Degrading Treatment), 9 (Right to Liberty and Security of Person), 12 (Freedom of Movement), 17 (Right to Privacy), 23 (Right to Family), and 26 (Equal Protection) of the ICCPR. The State did not respond to these allegations.275 In respect to the allegations of torture, the Human Rights Committee previously held that detention incommunicado, or prohibiting the detainee from communicating with the outside world, violates the prohibition against torture or cruel, inhuman, or degrading treatment.276 Thus, since Libya prohibited the Bulgarian medics and the

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Palestinian doctors from contacting their families and others outside of prison, the State violated their rights under Article 7 (Prohibition of Torture, or Cruel, Inhuman or Degrading Treatment) and the Committee decided not to analyze whether a violation of Article 10, which requires persons deprived of liberty to be treated with humanity.277 The Committee also found a violation of Article 7 to the detriment of the family of the Palestinian doctor because they were not informed of his whereabouts, told misinformation that he had perished, and not able to communicate with him due to his detention incommunicado, thereby causing the family anguish and emotional distress.278 The Committee found that the State violated the petitioners’ rights under Article 9 (Right to Liberty and Security of Person) because they were denied access to an attorney for three months, they were held in detention incommunicado for an additional six months, and their cases were not heard before a judicial authority for one year. The State did not refute these allegations.279 The Committee also determined that the State violated the Palestinian doctor’s family’s rights under Article 9 because the State did not take adequate measures to prevent threats of serious bodily harm or death to the family, or investigate these threats.280 The inactions taken by the State to prevent or investigate threats against the Palestinian doctor’s family also arose to a violation of the family’s rights under Article 17 (Right to Privacy) because they experienced “…incidents of harassment, surveillance, and intimidation…” that interfered with their daily lives.281 Additionally, the Committee found a violation under Article 2(3) which requires thorough investigations and actions to prevent such conduct in the future.282 The Committee also determined that the State violated the petitioners’ right to a fair trial under Article 14 because the State provided unequal access to expert witnesses and evidence, inadequate time and resources for the petitioners to prepare a defense, and did not allow the petitioners to access their attorneys until trial, which led to the petitioner’s convictions.283 Since the Committee found a violation of Article 14, it did not analyze whether the State violated Articles 2 (Obligation of Non-Discrimination) and 26 (Equal Protection).284 Finally, the Committee found that the State violated the rights of the Palestinian doctor’s family under Article 12(1) (Freedom of Movement) because the family was forced to flee to Tripoli and live in hiding in order to escape the constant threats and harassment.285

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The Committee ordered the State to provide the petitioners with an effective and adequate remedy to redress the violations, including a thorough investigation into their alleged torture and punishing those responsible.286 Additionally, the State was required to provide appropriate compensation to the petitioners.287 The State must also take actions to prevent similar future violations.288 According to the petitioners’ counsel, no evidence suggests that the State took any measures to implement the reparations ordered by the Committee.289 However, in 2007, the regime of Colonel Muammar Gaddafi admitted to torturing the medics.290 In October 2011, Gaddafi was deposed during an insurrection. To this date, Libya remains in a state of civil war.

McCallum v. South Africa Human Rights Committee, November 2, 2010 291 The petitioner, Mr. Bradley McCallum, was an inmate of the St. Albans Maximum Correctional Facility, in Port Elizabeth, South Africa.292 On July 15, 2005, a prisoner stabbed and killed a prison ward.293 Two days later, on July 17, 2005, approximately forty or fifty wards ordered sixty to seventy inmates out of their cells, forced them to strip naked, and line up with their noses in each other’s anuses while the warders beat them.294 As the wards beat them, the inmates urinated and defecated on themselves and the other inmates out of fear and pain.295 After the mistreatment, the wards ordered the inmates back to their cells, still covered by each other’s bodily fluids.296 Following the incident, the inmates were prohibited from contacting family or an attorney for one month.297 Mr. McCallum and the other injured inmates did not receive medical treatment for their injuries sustained until September 2005.298 Due to exposure to other inmate’s bodily fluids, Mr. McCallum feared he contracted HIV. However, the prison doctor refused to test him.

In November 2006, Mr. McCallum’s attorney requested HIV testing for him and other inmates.299 In December 2006, prison authorities responded to the request. They denied any allegations of torture or mistreatment, and approved HIV testing for inmates so long as written

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consent was provided and the inmates paid for the tests. However, under the South African Constitution, healthcare is supposed to be guaranteed to those deprived of their liberty. The State never responded to Mr. McCallum’s attorney after he raised this point. Additionally, State agencies failed to investigate, or respond to, allegations of torture stemming from the July 17, 2005 incident.300 Mr. McCallum argued that the beatings and mistreatment, the detention incommunicado, and denial of HIV testing violated his rights under Article 7 (Prohibition of Torture, or Cruel, Inhuman or Degrading Treatment) of the ICCPR. Additionally, he argued the State’s failure to investigate claims of torture and failure to provide a remedy violated his rights under Article 10 (Obligation to Treat Persons Deprived with Liberty with Humanity). The State did not provide any information regarding either the admissibility or merits of Mr. McCallum’s petition.301 The Committee first considered Mr. McCallum’s allegations of mistreatment from July 17, 2005, which the Committee noted arose “… beyond those inherent in the deprivation of liberty”, and the evidence he provided including his medical records, press clippings, and his cell outline.302 Since the State did not provide any evidence to contradict this claim, the Committee stated that the State was required to at least independently investigate potential involvement of State actors’ mistreatment of Mr. McCallum, and because the State did nothing in response, the Committee found a violation of Article 7 (Prohibition of Torture, or Cruel, Inhuman or Degrading Treatment).303 The Committee found an additional violation of Article 7 because Mr. McCallum was held without access to a physician, his family, or his attorney for one month. Indeed, in its General Comment 20, the Committee had already determined that States “…should make provisions against incommunicado detention and note[d] that the total isolation of a detained or imprisoned person may amount to an act prohibited by article 7.” 304 The Committee also held that denying Mr. McCallum an HIV test, despite numerous requests, violated Article 7 because of his exposure to other inmates’ bodily fluids and the prevalence of HIV in South African prisons caused him to fear he contracted the virus as a consequence of the beatings.305

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In its General Comments, the Committee has held that violations alleged under Article 7 “…must be investigated promptly, thoroughly and impartially by competent authorities and appropriate action must be taken against those found guilty.” 306 Even though Mr. McCallum filed many complaints to numerous different State agencies about the July 17, 2005 incident and the mistreatment he suffered following, none responded or investigated. As such, the Committee found an additional violation of Article 7.

The United Nations Standard Minimum Rules for the Treatment of Prisoners, in conjunction with prior Committee jurisprudence, prohibit subjecting those deprived of liberty to any additional hardship or restraint than those inherent to their imprisonment.307 Additionally, States have the obligation to care for their prisoners. Because the State prevented Mr. McCallum from accessing medical treatment for months, the Committee found a violation of Article 10 (Obligation to Treat Persons Deprived with Liberty with Humanity).

The Committee ordered the State provide Mr. McCallum with an effective remedy that includes thoroughly investigating his claims of torture under Article 7, prosecuting those responsible, and adequately compensating him.308 Additionally, so long as Mr. McCallum remains in prison, he must receive appropriate health care and be treated with humanity. The State is also required to take measures necessary to prevent future violations and publish the Committee’s views. 309 In September 2014, Mr. McCallum’s attorney provided information to the Committee indicating that the State’s Department of Correctional Services withdrew disciplinary proceedings against the prison warders involved in orchestrating the July 17, 2005 incident.310 In 2015, the Port Elizabeth High Court dismissed all claims for civil damages.311

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Morales Tornel et al. v. Spain Human Rights Committee, April 24, 2009 312 The petitioners are the mother and siblings of Mr. Diego Morales Tornel, a prisoner sentenced to twenty-eight years in prison for various crimes.313 Mr. Tornel was diagnosed with HIV in April 1989.314 Upon his transfer to Gijón Prison in July 1991, he began receiving Retrovir, an intravenous antiretroviral, but reacted negatively to the medication. Mr. Tornel was transferred to El Dueso Prison in December 1991; however, no prison records show he received any other medical examinations and his family alleges that he received no medical care or any testing for AIDS.315 In March 1993, Mr. Tornel was admitted to the hospital for “various ailments” and was not released until April 1993. Throughout the duration of his stay, he was diagnosed with “AIDS, pulmonary tuberculosis, probable pneumonia and an intestinal infection.” Upon his release from the hospital, the prison doctor requested special benefits for prisoners with terminal illnesses for Mr. Tornel.316 After further hospitalizations, Mr. Tornel applied for conditional release due to his AIDS; however, he received no response.317 The Prison Board reiterated this request in October 1993, but it was denied.318 Mr. Tornel was admitted to the hospital for the last time in December 1993, and died in January 1994.319 In December 1994, Mr. Tornel’s family filed a complaint with the Ministry of Justice and the Interior alleging improper prison function based on the following: (1) not transferring Mr. Tornel to a prison closer to his family; (2) inadequate medical care; (3) denying his conditional release; (4) failing to inform the Directorate General about the severity and quick deterioration of Mr. Tornel’s illness; and (5) failing to inform his family about the severity of his illness.320 However, the petition and subsequent appeal were both rejected. The High Court rejected Mr. Tornel’s family’s application for amparo, a process by which victims can allege violations of Constitutional rights, because amparo petitions can only be brought by the right holder, not on the right holder’s behalf. 322 Mr. Tornel’s family argued that denying Mr. Tornel’s conditional release violated Article 6(1) (Right to Life) of the ICCPR. Additionally, they allege that by not informing them of the terminal nature of Mr. Tornel’s condition, the State violated their rights under Article 7 (Prohibition

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of Torture, or Cruel, Inhuman or Degrading Treatment). The family also alleged that those facts violated the rights of both Mr. Tornel and themselves under Article 17 (Right to Privacy). Finally, the family claims the State violated their rights under Article 14(1) (Equality Before Courts and Tribunals) when the Court denied their amparo claim on the basis of them not being right holders.323 In response, the State contradicted some of the petitioners’ factual allegations. Specifically, the State claimed that prison officials notified the family of Mr. Tornel’s condition in May 1993 which prompted his mother to visit.324 Additionally, the State claims that just because medical visits were not noted in Mr. Tornel’s records did not mean that they did not occur.325 The State, in a similar vein to the High Court, noted that because Mr. Tornel himself did not file any complaints on his behalf, he had not exhausted domestic remedies.326 Additionally, the State argued that the family alleged rights not covered by the ICCPR, specifically that there is no right to conditional release and no right to choose what prison to serve a sentence in, and that the right to access to justice under Article 14(1) does not apply to third parties.327 Finally, the State declared that the medical care received by Mr. Tornel “…was in line with the procedures normally recommended and applied at the time.” 328 The Committee first declared the petition for an alleged violation of Article 17 (Right to Privacy) to the detriment of Mr. Tornel inadmissible because no evidence was presented that showed Mr. Tornel took affirmative steps to transfer prisons or to inform his family of his condition, and therefore this claim was not sufficiently substantiated.329 Next, the Committee found it could not determine whether Mr. Tornel’s rights under Article 6(1) (Right to Life) were violated due to insufficient evidence provided by the petitioners, the State, and the domestic courts, to prove a causal link between Mr. Tornel’s death and continued incarceration or to inadequate medical care received in prison. 330 The Committee determined that the State violated Mr. Tornel’s family’s rights under Article 17(1) (Right to Privacy) because the prison acted passively in every aspect of Mr. Tornel’s illness: from not zealously pursuing Mr. Tornel’s conditional release, not reinitiating contact with his family, not informing the prison board of Mr. Tornel’s deteriorating condition, and not informing his family of his final hospital admission. 331 This deprived the family of information that arbitrarily interfered with their daily lives and arose to a violation of Article 17(1). The Committee did not analyze these

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facts for a violation of Article 7 (Prohibition of Torture, or Cruel, Inhuman or Degrading Treatment).332 The Committee ordered the State provide the family with an effective remedy, appropriately compensate them, and publish this decision.333 In 2015, the Committee noted that it closed follow-up dialogue “with a note of unsatisfactory implementation of the recommendation.” 334

Chiti v. Zambia Human Rights Committee, August 28, 2012 335 Captain Jack Chiti, an officer of the Zambian Army, was arrested in 336 October 1997 on suspicion of plotting an attempted coup d’état. He was charged with treason and taken to the police station where for nine days he was tortured and held without food or access to family or an attorney. After receiving medical treatment from a military hospital, Captain Chiti was 337 forced to sign a document implicating politicians in the coup. A group of government-based human rights commissioners attempted to visit Captain Chiti in prison; however, he was prevented from meeting with them.338 Two days after Captain Chiti’s arrest, government officials broke into the Chiti family home and stole their belongings – luckily, none of the family 339 was home at the time. State agents forcibly evicted the family from six separate homes, and this prevented also the Chiti children from attending 340 school. Finally, the family fled and sought asylum in Namibia where they lived for one year. The family had to return to Zambia because of Captain 341 Chiti’s poor health. At the time they filed this petition, the family was 342 homeless and the children had not received education for over a year.

A State-established inquiry commission investigated claims of torture against Captain Chiti and the family’s evictions, and found that the State should compensate the Chiti family for the suffering endured from torture, 343 the evictions, and the amount they lost in property. However, the State 344 never paid them.

Captain Chiti experienced numerous delays in his treason trial until 345 he finally was convicted and sentenced to death.

While detained and awaiting trial, Captain Chiti was diagnosed with prostate cancer and HIV but was denied proper medical care, fed an improper diet, and held in poor conditions without a clean environment or counselling. However, the Zambian president commuted his sentence for humanitarian purposes in 346 June 2004, and Captain Chiti died two months later.

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The Chiti family alleged the following violations of the ICCPR: Articles 2(3) (Right to an Effective Remedy), 7 (Prohibition of Torture, or Cruel, Inhuman or Degrading Treatment), 9(1) (Right to Liberty and Security of Person), 10(1) (Obligation to Treat Persons Deprived with Liberty with Humanity), 12(1) (Freedom of Movement), 14(3)(c) (Right to be Tried Without Undue Delay), 14(3)(g) (Right to Not Incriminate Oneself), 16 (Right to Juridical Personality), 17(1) (Prohibition of Arbitrary or Unlawful Interference with Privacy, Family, Home, or Correspondence), 17(2) (Protection from Arbitrary or Unlawful Interference with Privacy, Family, Home, or Correspondence), 23(1) (Right to Family), 24(1) (Obligation of Nondiscrimination for Children), and 26 (Equal Protection). Although the family did not allege a violation of Article 6(1) (Right to Life), the Committee determined enough evidence had been presented for them to consider 347 whether a violation occurred.

The State responded that Chiti did not die from injuries sustained through torture, and denied failing to compensate the Chiti family despite 348 a court order. Additionally, the State argued that it did not recognize the Commission of Inquiry’s finding that Captain Chiti was tortured because 349 none of the accused torturers testified before the Commission of Inquiry.

The Committee first determined that Mrs. Chiti provided insufficient evidence to substantiate her claims under Articles 9 (Right to Liberty and Security of Person) and 16 (Right to Juridical Personality) because she did not present evidence regarding the events following her husband’s arrest 350 and whether he was seen by a judge. The Committee also declared Mrs. Chiti’s allegations of violations under Article 14(3)(c) (Right to be Tried Without Undue Delay) inadmissible because she provided only general evidence, none of which specified enough details of her husband’s trial. The Committee also determined that alleged violations of Article 12(1) (Freedom of Movement) were inadmissible because Mrs. Chiti had left the State numerous times, and she did not provide sufficient evidence to substantiate 351 her claim of discrimination under Article 26 (Equal Protection).

The Committee determined the State violated Captain Chiti’s right to life under Article 6 because, although he died from HIV and cancer, the poor prison conditions maintained by the State and denial of drugs to treat 352 his conditions led to his premature death.

The Committee concluded that the State violated Article 7 (Prohibition of Torture, or Cruel, Inhuman or Degrading Treatment) to the detriment of 353 both Captain Chiti and his family. Chiti’s torture, subpar prison conditions

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in which he spent seven years awaiting his sentence, limited access to healthcare, and an inadequate, arguably nonexistent, State investigation into 354 allegations of these facts violated his rights under Article 7. Additionally, the emotional distress Captain Chiti’s arrest and torture caused his family along with seven years spent waiting for his trial and numerous evictions 355 violated the Chiti family’s rights under Article 7. Therefore, the Committee did not analyze for a separate violation under Article 10 (Obligation to Treat 356 Persons Deprived with Liberty with Humanity).

The Committee also found the State in violation of Captain Chiti’s 357 rights under Article 14(3)(g) (Right to Not Incriminate Oneself). The State tortured Captain Chiti until he signed a statement implicating himself and others in an attempted coup. The Committee’s General Comment 32 states that “…the right not to testify against oneself must be understood in the absence of any direct or indirect physical or undue psychological pressure from investigating authorities on the accused, with a view to obtaining a confession of guilt.” Because the State acted in contravention of Article 7 (Prohibition of Torture, or Cruel, Inhuman or Degrading Treatment) to obtain a confession from Captain Chiti, the Committee found a violation of Article 14(3)(g).

The Committee determined that the State violated the Chiti family’s rights under Articles 17 (Right to Privacy) and 23(1) (Right to Family) through its illegal evictions, theft and subsequent destruction of the family’s property 358 because the State’s actions impacted the family’s daily lives.

The Committee ordered that, in reparation, the State (1) thoroughly and effectively investigate Captain Chiti’s torture while detained, (2) provide the results of the investigation to Mrs. Chiti, (3) prosecute those found responsible for Captain Chiti’s torture, and (4) provide appropriate compensation to the 359 family. The Committee also ordered the State to take necessary measures 360 to prevent future violations and to publish the judgment.

ii.

Committee Against Torture The Optional Protocol to the Convention Against Torture permits individuals to bring complaints against States to the Committee Against Torture for violations of human rights provided for in the CAT. Complaints may only be brought to the Committee if the State in question has ratified the Optional Protocol.

Since the entry into force of the Optional Protocol on June 22, 2006, the Committee Against Torture has published two Views concerning rights enshrined in the CAT as they relate to HIV/AIDS: Njamba and Balikosa v.

Sweden and L.J.R. v. Australia.

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Njamba and Balikosa v. Sweden Committee Against Torture, May 14, 2010 361 The petitioners, Ms. Njamba and her daughter, nationals from the Democratic Republic of Congo (DRC), fled to Sweden after Ms. Njamba’s husband became involved in a rebel militia group.362 Ms. Njamba’s neighbors believed she was also involved in the militia group and the police, who disseminated her identity as a pro-rebel sympathizer throughout the community, would not protect her. In December 2004, a fight broke out between rebel groups and the government while Ms. Njamba and her daughter were in church.363 Upon returning home after the skirmish, Ms. Njamba found her husband and her three other children missing. The petitioners believe that their family was killed, and that they only escaped the same fate because they were hiding in a different location.

In March 2005, the petitioners fled to Sweden and applied for asylum.364 In March 2006, the State Migration Board rejected their application and stated that the petitioners’ circumstances were insufficient to grant them refugee status because there were no personal threats to their lives.

The petitioners appealed on the grounds that Ms. Njamba had HIV and could not receive medical treatment in the DRC. In September 2006, the Migration Board rejected their appeal and affirmed that the petitioners’ circumstances were not sufficient to qualify for asylum.365 Additionally, the Migration Board determined that Ms. Njamba’s condition did not meet the “exceptionally distressing circumstances” required to stay for health reasons under the State’s 2005 Alien Act. In March 2007, the petitioners requested a reconsideration of their asylum application under the Alien Act, and added that because individuals arriving in the DRC from were being detained and interrogated upon arrival, deporting them would put them in danger.366 The Migration Board did not reevaluate the petitioner’s asylum application.

Although the petitioners did not allege any specific violation under the Convention Against Torture, their complaint appears to give rise to a potential violation of Article 3 (non-refoulement) and 16 (Obligation to Prevent Cruel, Inhuman or Degrading Treatment Committed by or with the Consent of a Public Official).

In response, the State acknowledged the series of human rights violations occurring in the DRC typically in areas not controlled by the government.367 As of November 2008, the Migration Board began considering the situation in the DRC in its asylum petition analysis on a case-

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by-case basis.368 The State argued that the petitioners have a strong familial connection to a region in the DRC that was not plagued by violence, and the petitioners could always refile their application if their circumstances have significantly changed.369 The Committee determined that if the State deported Ms. Njamba and her daughter to the DRC, the State would have violated their rights under Article 3 (non-refoulement).370 Under Article 3, a State is obligated “…not to expel or return a person to a State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.” 371 Systematic and flagrant human rights violations within a country are not enough to prove torture; instead, the petitioner must show a personal risk of torture.372 In its General Comment 1, the Committee held that the personal risk of torture need not be probable, only “foreseeable, real, and personal.” 373 The Committee assessed the undisputed facts and information provided by other international organizations to determine that Ms. Njamba and her daughter were in fact in danger of torture upon their return to the DRC. 374 A report compiled by UN Experts, and supported by further study from the High Commissioner for Human Rights, showed an alarmingly high rate of sexual violence against women throughout DRC not just in areas of armed conflict. As such, the Migration Board could not possibly find a particular safe area of the DRC for Ms. Njamba and her daughter to return to.

In July 2010, the State granted Ms. Njamba and her daughter permanent residence. 375

L.J.R. v. Australia 376 Committee Against Torture, November 10, 2008 L.J.R. is a national of the United States of America who was arrested 377 in Australia in September 2002.

He was wanted for murder in the United States. In November 2002, the United States requested Australia extradite him. According to provisions within the extradition treaty between the United States and Australia, the United States prosecutor promised not to seek the death penalty. L.J.R. contested his extradition in Australian federal court and alleged that he would be subjected to torture in the United States because of the racial and religious prejudices (L.J.R. 378 is Hispanic and Muslim). He received negative publicity including his feature on the United States television program, America’s Most Wanted, and identified as the murderer.

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This negative representation of L.J.R. brought him unwanted 379 attention while detained in Australia.

Both prison guards and other inmates physically and sexually assaulted him on numerous occasions throughout the year.

L.J.R. claimed that extraditing him to the United States violated his 380 rights under Article 3 (non-refoulement).

Since he was physically and sexually abused in Australian prison, L.J.R. argued that he would likely face 381 similar treatment in a United States prison. He also argued that because there is a high rate of HIV and hepatitis C in United States prisons and since he is particularly vulnerable to physical and sexual assaults based on his negative perception and inherent racial and religious discrimination, his likelihood of contracting HIV or hepatitis C was significant. He also argued that he had a high risk of solitary confinement, receiving the death 382 penalty, and waiting on death row.

Australia argued that L.J.R. provided no evidence other than his 383 own allegations to support his claim.

Additionally, the State claimed that L.J.R’s argument that he would not receive a fair trial in the United States because of discrimination does not fall within the jurisdiction of the 384 Committee Against Torture. Finally, the State claimed that L.J.R. only stated that this treatment exists in United States prisons (and it is illegal) but did not provide any evidence to show how he is personally at risk of this 385 treatment – a requirement of Article 3 (non-refoulement).

The Committee determined that extraditing L.J.R. to the United 386 States did not violate his rights under Article 3 (non-refoulement). In its General Comment regarding Article 3, the Committee requires that the 387 claimant show a concrete risk of torture more than just mere suspicion.

Although the Committee recognizes both racial discrimination and sexual assault as prevalent in United States prisons, L.J.R. only alleged general risks and not a “foreseeable, real and personal risk of being subjected to 388 torture upon his return to the United States.”

Additionally, the United States promised that L.J.R. would not be subjected to the death penalty in 389 accordance with its extradition treaty with Australia. As such, Australia did not violate L.J.R.’s rights under Article 3 (non-refoulement) of the 390 Convention Against Torture.

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B. Charter Bodies 1.

Human Rights Council The Human Rights Council is a subsidiary organ of the United Nations General Assembly. It is composed of State representatives, as opposed to treaty bodies, which are made of independent experts. Unlike treaty bodies, which monitor State compliance with the rights in their respective treaties, the Human Rights Council monitors every United Nations Member’s compliance with all human rights obligations, including the Universal Declaration of Human Rights and any human rights treaty that the State has ratified.

Who is the Human Rights Council?

The Committee is composed of 47 Member States elected through secret ballot by the majority of the General Assembly. The membership seats are divided geographically: Africa has 13 seats, Asia-Pacific has 13 seats, Latin America and the Caribbean has 8 seats, Western Europe has 7 seats, and Eastern Europe has 6 seats. Council members serve three-year terms, and cannot be immediately re-elected after serving two consecutive terms.

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Every United Nations Member is required to report its compliance with all of its international human rights obligations to the Council every five years as part of a process called “Universal Periodic Review” (UPR).

As in the case of treaty bodies, upon submission by the State of its periodic report, and consideration of parallel reports by civil society, the Council issues its concluding observations and makes recommendations to the State.

Like the treaty bodies, in its periodic review of States’ reports, the Human Rights Council has focused mainly on discrimination and the right to health. In particular, the Council has called on States to reduce the prevalence of HIV/AIDS among their respective populations,

as well as provide universal access to healthcare in order to treat HIV/AIDS. In several cases, the Council urged the State under scrutiny to improve access to HIV/AIDS care specifically for women and girls, and to prevent mother-to-child transmission.

Regarding discrimination, the Council has often called on States to prevent stigmatization and discrimination associated with PLWHA, for instance by enacting legislation prohibiting discrimination against PLWHA. Additionally, the Council discussed prohibiting sterilization of women living with HIV/AIDS without their informed consent, as well as the need to address issues related to drug users and HIV infections.

Finally, the Council discussed the right to information, calling on States to make accessible sexual and reproductive health education.

What is the Universal Periodic Review (UPR)?

The UPR is a State-driven process where each State declares how they are complying with their human rights obligations and any steps they need to improve. Then, other States have the opportunity to review each other’s declarations on compliance.

The UPR occurs approximately twice per year, and each State is reviewed every five years.

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i. Universal Periodic Review (UPR) Obligation of Non-Discrimination and Equality Human Rights Council’s UPR Concluding Observations to State Reports often address discrimination against persons living with HIV/AIDS. The Council urged Tajikistan, Swaziland, Namibia, Singapore, Sierra Leone, Jamaica, Mongolia, Liberia, and Guinea-Bissau to take measures to prevent stigmatization and discrimination associated with persons living 391 with HIV/AIDS. It also asked Tajikistan to allocate resources “to promote universal access to HIV prevention and treatment … without fear of stigma 392 and discrimination.”

Further, the Council called on Trinidad and Tobago to amend its equal opportunities legislation to cover marginalized groups such as the elderly, persons living with HIV, and discrimination on the grounds of sexual 393 orientation. In Tanzania, the Council urged the State to “publicly call for an end to attacks, abuse and discrimination against persons … living with, at 394 risk of and affected by HIV/AIDS.” In Namibia, the Council urged the State to issue “clear directives to health officials to prohibit the sterilization of women living with HIV/AIDS 395 without their informed consent.”

The Council also asked Thailand to reinforce “harm reduction measures targeting drug users in order to avoid 396 adverse health effects, including increased HIV infections.”

Additionally, the Council emphasized that Singapore must adopt measures to protect the human rights of migrants and foreign domestic workers “through the revision of the legislation that establishes deportation in case of pregnancy or diagnostic of sexually-transmitted diseases such as 397 HIV/AIDS.” In Malawi, it called for a guarantee that lesbian, gay, bisexual, transgender and intersex communities have effective access to health services, including 398 treatment for HIV/AIDS. The Council urged the Marshall Islands to review its current policies and “develop a code of practice on HIV in the workplace, taking into account 399 … international standards.”

Finally, in Guinea-Bissau, the Council asked the State to consider enacting legislation that prohibits discrimination against children living with 400 HIV/AIDS, and asked Panama to continue its “efforts aimed at promoting the rights of children, in particular children belonging to indigenous groups 401 and children with disabilities and HIV/AIDS.”

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The Right to Health One of the most prevalent trends that the Human Rights Council has observed in its UPR of States is the scarce availability and accessibility of medical care and treatment to combat HIV/AIDS. For instance, the Council called on Swaziland, Suriname, Namibia, Seychelles, Micronesia, Jamaica, Sierra Leone, Liberia, Belarus, and Kiribati to strengthen measures to prevent and reduce the prevalence of HIV/ 402 AIDS. It also urged Namibia to improve access to healthcare services in 403 rural areas.

Similarly, the Council asked Georgia to ensure “universal access to quality reproductive and sexual health services, including contraception services, especially to women in rural areas and those living 404 with HIV/AIDS,” and it urged Mozambique to “improve health services, 405 especially for vulnerable women and children with HIV/AIDS.” In Trinidad and Tobago, the Council urged the State to ensure the right to health of persons living with HIV/AIDS by establishing “programs to make available essential medicines, as well as strategies to address the increased rate of infection by HIV and new infections among adolescents 406 and young women.”

The Council called on Papua New Guinea to address and contain HIV /AIDS “which has been one of the leading causes of morbidity and mortality,” and make a “concerted effort to treat [a] higher percentage of 407 persons living with HIV.” Another issue that the Council addressed was mother-to-child transmission of HIV. In Malawi and Kyrgyzstan, the Council asked the States to improve access to adequate healthcare and treatment for HIV408 positive mothers in order to prevent mother to child transmission.

In Guinea-Bissau, the Council called on the State to ensure availability and access to antiretroviral treatment drugs; while in Guinea, the Council urged the State to increase “efforts to combat HIV/AIDS by ensuring access to treatment and adequate health-care facilities and by ensuring that children 409 living with HIV/AIDS have access to proper health care.”

The Right to Information In Trinidad and Tobago, Samoa, Singapore, Jamaica, Guyana, Kyrgyzstan, and Grenada, the Council asked the States to promote comprehensive sexual and reproductive health education to raise 410 awareness about the spread of HIV/AIDS.

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ii. Special Procedures The Special Procedures of the Human Rights Council are independent human rights experts, or groups of such experts, with mandates to report and advise on human rights from a thematic or country-specific perspective.

They are called by many names, including “Special Rapporteurs,” “Special Representatives,” “Working Groups,” and “Independent Experts.”

Special Procedures have done significant work in protecting and advancing HIV/AIDs-related rights both at the international and regional level. Although Special Procedures do not lead to decisions and do not entail the adjudication of human rights claims, they provide important advocacy opportunities for PLWHA. Human rights action is generally more effective when advocates take a multi-faceted approach, pursuing both litigation and special procedures means to advance their goals.

The system of Special Procedures of the Human Rights Council embraces all human rights: civil, cultural, economic, political, and social.

Currently (May 2020), there are 44 thematic and 12 country mandates.

Examples of thematic mandates include the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, or the Working Group on People of African Descent. Examples of country mandates include the Special Rapporteur on the Situation of Human Rights in Cambodia or the Independent Expert on the Situation of Human Rights in Somalia.

The work of the Special Procedures mandate holders is supported by the Office of the United Nations High Commissioner for Human Rights (OHCHR). Their tasks are defined in the resolutions creating or extending their mandates. Overall, Special Procedures experts undertake country visits; act on individual cases and concerns of a broader, structural nature by sending communications to States and others in which they bring alleged violations or abuses to their attention; conduct thematic studies and convene expert consultations; contribute to the development of international human rights standards; engage in advocacy; raise public awareness; and provide advice for technical cooperation. All Special Procedures experts report annually to the Human Rights Council. A majority of them also report to the General Assembly.

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One prominent feature of Special Procedures is the visits they pay to States. However, because mandate holders can conduct these fact-finding visits only at the invitation of States, those with the worst records of human rights violations often avoid scrutiny. After the mandate holders have assessed a specific human rights issue, they may report their findings or thematic studies to the Human Rights Council or the UN General Assembly and release public statements to the media.

The Council’s various Special Procedures have done important work in furtherance of the human rights of PLWHA. For example, the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has dealt with the application of a human rights-based 411 approach to drug policies in prisons in relation to HIV/AIDS. The Independent Expert on the Situation of Human Rights in Haiti has dealt with 412 co-operation and efforts to combat HIV/AIDS. The Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health and the Special Rapporteur on the Promotion of the Right to Freedom of Opinion and Expression have also directly 413 addressed HIV/AIDS. The best way for PLWHA to engage the Human Rights Council’s Special Procedures is to send a communication with information regarding specific 414 human rights violation(s). The alleged violation(s) may relate to a human rights violation that has already occurred, is ongoing, or which has a high risk of occurring. In order for the violation(s) to be assessed, the communication should include identification of the alleged victim(s), identification of the alleged perpetrators of the violation (if known), identification of the person(s) or organization(s) submitting the communication, and the date, place and detailed description of the circumstances of the incident(s) or violation. The decision to intervene is ultimately at the discretion of mandate-holders and depends on various criteria, including the reliability of the source and the credibility of the information received; the details provided; and the scope of the mandate. Individuals or organizations submitting such communications are also encouraged to provide updates on new developments, such as the release of a concerned individual from detention, a new court judgment or a measure taken by the concerned authorities to improve the situation.

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Once a mandate-holder decides to intervene, it may interact directly with Governments on allegations of violations of human rights that come within its mandate by means of letters which include urgent appeals and other communications. This sort of interaction involves sending a letter to the State identifying the facts of the allegations, applicable international human rights norms and standards, the concerns and questions of the mandateholder(s), and a request for follow-up action. These letters may concern individual cases, general patterns and trends, or legislation, and, in some cases, they may be sent to inter-governmental organizations or non-State actors, too. The letters to the State and the State replies are then published in the form of “Communication Reports” and are submitted to the Human Rights Council for review. Generally, these reports include short summaries of allegations communicated to States or other entities, with hyperlinks to the text of the communications sent and responses received.

The best way for PLWHA to engage the Human Rights Council’s Special Procedures mechanisms is to send a communication with information regarding specific human rights violation(s).

To submit information to the Special Procedures of the Human Rights Council regarding human rights violation(s), please use the following link: https://spsubmission.ohchr.org/.

You can find more information on special procedures here: http://www.ohchr.org/ EN/HRBodies/SP/Pages/Welcomepage. aspx.

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AT THE REGIONAL LEVEL

In addition to the UN human rights system, there are numerous regional systems for protecting and advancing human rights in specific areas of the globe. The most robust regional systems are those of the Americas, also referred to as the “Inter-American system”, Europe, and Africa. Less developed human rights regimes also exist for South-East Asia and the Arab World.

Clearly, only States members to the specific regional organization can be held accountable for human rights violations by that region’s system, and those living in States that are not party to a regional system equipped with a human rights system can rely only on the global system provided by the United Nations to defend their rights. However, it is important to be aware of the existence and the jurisprudence of bodies outside one’s own area. Although decisions of bodies of one regional system do not bind the bodies in another region, adjudicators typically strive to maintain consistency across systems, especially when confronted with similar facts and similarly worded rights. Thus, petitioners before one regional body may want to make mention of favorable decisions from other systems with facts and law similar to their own circumstances.

The following sections overview each regional system and its human rights adjudicatory bodies. These sections also describe the cases brought before these bodies that are most relevant to PLWHA.

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At the Regional Level

I. THE INTER-AMERICAN HUMAN RIGHTS SYSTEM

The Organization of American States (OAS) is the world’s oldest regional organization. Currently, it brings together all 35 independent States of the Americas and constitutes the primary political, juridical, and social governmental forum in the western hemisphere. The OAS was founded in April 1948, in Bogotá, Colombia, with the signing of 415 the Charter of the OAS, which entered into force in December 1951.

Since the outset, one of the OAS’s main pillars has been a commitment to securing democracy and human rights in the region. Indeed, at the same summit in Bogotá where the OAS was founded, the States of the western hemisphere adopted the American Declaration of Human Rights, which inspired the subsequent Universal Declaration of Human Rights (adopted in December 1948).

Since then, the OAS Member States have adopted a series of legal instruments and created institutions to monitor their implementation. The main legal instruments of the Inter-American human rights system are the American Declaration of the Rights and Duties of Man (the American Declaration), and the American Convention of Human Rights (the American Convention). The American Declaration applies to all OAS member States. The American Convention applies only to States that have ratified it.

To date, twenty-four out of thirty-five OAS States have ratified it: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, 416 Paraguay, Peru, Suriname, Trinidad and Tobago, and Uruguay.

Thus, the Declaration is used as a legal basis for individual petitions against States that have failed to ratify the American Convention (including the United States and Canada).

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In addition to the Declaration and the Convention, the Inter American system features a protocol to the American Convention on Economic, Social and Cultural Rights (known as the Protocol of San Salvador) and issue-specific human rights instruments including the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities, the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women “Convention of Belem do Para,” the Inter-American Convention to Prevent and Punish Torture, and the Inter-American Convention Against All Forms Of 417 Discrimination And Intolerance.

The institutions that monitor the implementation of the rights contained in these legal instruments are the Inter-American Commission on Human Rights (Inter-American Commission) and the Inter-American Court of Human Rights (Inter-American Court).

The mission of the Inter-American Commission on Human Rights is “to promote and protect human rights in the American hemisphere.”

It is composed of seven members, who are independent experts in the field of human rights. It is based at the OAS headquarters in Washington D.C., USA. It was created by the OAS in 1959, and, starting in 1965, it began examining petitions brought by individuals alleging specific human rights violations committed by OAS States.

To date, it has processed over 12,000 petitions.

The Commission has jurisdiction over human rights violations committed by all States members of the OAS by virtue of the American Declaration. However, if the violation raises the issue of violation of the American Convention, or other Inter-American human rights treaties, its jurisdiction is limited only to those States that have ratified it.

The Inter-American Court of Human Rights, based in San José, Costa Rica, was established by the American Convention of 418 The Court Human Rights (the American Convention) in 1979. has seven judges, all nominated by member States. These judges are independent and do not represent the interests of the States who nominate them as candidates.

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Unlike the Commission, which has jurisdiction over all OAS Member States, the Court has jurisdiction only over those OAS member States that have accepted it. To date, 20 OAS States out of 35 have accepted the jurisdiction of the Court: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, and Uruguay.

The Inter-American Court acts as an adjudicatory body and an advisory body. As an advisory body, the Inter-American Court responds to requests of opinions made by OAS Member States or its organs through non-binding advisory opinions. As an adjudicatory body, it rules on allegations of violations of human rights by States that have been brought to its attention by the Commission. Indeed, the Inter-American human rights system is a two-tier system.

Individuals who believe their rights protected under the American Declaration and/or the American Convention and its protocols and other Inter-American human rights treaties have been violated must bring their case (“petition” in the OAS jargon) to the Inter-American Commission first. The Commission examines the petition and if it concludes it has jurisdiction over the petition and it is admissible, it will issue a report on the merits. If the Commission concludes that articles of the American Declaration or Inter-American Convention and its protocols, or other Inter-American human rights treaties have been violated, it makes recommendations to the State on what steps it should take to remedy the violation. If the State does not follow the recommendation, the Inter-American Commission has the option to escalate the case by bringing it to the Inter-American Court of Human Rights, as long as the State in question has both ratified the human rights instrument invoked and accepted the Court’s jurisdiction.

The Court will examine the case as the Commission did (jurisdiction and admissibility and, if those are determined positively, merits), but it is not bound by the Commission’s views on it. In addition, unlike the proceedings before the Commission, which are all in writing, the Court holds hearings where the representatives of the State, the

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representatives of the Commission and also the representatives of the victims appear and plead orally. If the Court concludes that articles of the American Declaration or Inter-American Convention and its protocols, or other Inter-American human rights treaties have been violated, it issues a binding judgment, which typically includes various forms of reparations, including monetary compensation.

The Inter-American Commission and Court have proven to be open and sympathetic to claims from PLWHA. These bodies have been increasingly and successfully used to adjudicate a range of human rights related to HIV/AIDS. The resultant jurisprudence has established that American States have expansive and diverse obligations to individuals affected by HIV/AIDs: from preventing discriminatory practices to ensuring access to health care.

Unfortunately, these bodies have decided relatively few cases. To strengthen these bodies and create a robust jurisprudence, PLWHA are encouraged to petition these bodies more frequently in asserting their rights.

The following is a summary of cases before the Inter-American Commission and Inter-American Court that are of particular

To know which OAS member has ratified the American Convention and its protocols, see: http://www.oas.org/en/topics/ treaties_agreements.asp To know which OAS member is subject to the jurisdiction of the Inter-American Court of Human Rights, see: http://www.corteidh. or.cr/index-en.cfm

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A. Inter-American Court of Human Rights Since 1988, when it ruled on its first case, the Inter-American Court has adjudicated about 250 cases. A few of those are particularly relevant for PLWHA. They touched on the denial of same-sex partner benefits that blocked access to HIV/AIDs treatment, the refusal to provide access to health care for PLWHA, and the failure to prevent discrimination and ensure education for HIV-positive children.

Luis Rolando Cuscul Pivaral et al. v. Guatemala Inter-American Commission on Human Rights, April 13, 2016, and Inter-American Court of Human Rights, August 23, 2018 419 This case was litigated in Guatemala from 2002 to 2006 and, after that, before the Inter-American Commission on Human Rights and, subsequently, the Inter-American Court of Human Rights. The victims were 49 persons living with HIV/ AIDS, most of them living outside Guatemala City (the capital and largest city of Guatemala), who received little or no medical treatment for their condition from the national health system, and their families. Most were unemployed or low-income, heads of households with children, had several family members also living with HIV/AIDS, and had received some treatment for HIV/AIDS from international organizations. In the early 2000s, when litigation began, Guatemala’s Ministry of Health was providing antiretroviral treatment to only 1% of those living with HIV/AIDS in the country. Although the State began providing

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treatment to more patients in 2006, eight of the petitioners had already passed away from a lack of medical care. The still-living petitioners alleged that the treatment they received was, in any event, inadequate.

In the early 2000s, the petitioners teamed up with numerous non-governmental organizations to write letters to government officials addressing the lack of healthcare provided to those living with HIV/AIDS in Guatemala. In 2002, an amparo suit was filed before the Constitutional Court on behalf of individuals living with HIV/AIDS (including thirteen of the petitioners before the Inter-American system) alleging a violation of the right to health as guaranteed by Guatemala’s Constitution. In January 2003, the Constitutional Court dismissed the suit because, shortly before the ruling, the President had allocated funds for antiretroviral treatment to more patients. However, the allocated funds covered antiretroviral treatment for eighty patients only. In 2006, the petitioners began receiving medical treatment from private organizations.

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The case before the Inter-American Commission on Human Rights Before the Inter-American Commission on Human Rights, the petitioners alleged a violation of their right to judicial protection under the American Convention on Human Rights by State officials and because of 420 the Constitutional Court’s denial of their amparo suit. Additionally, they alleged a violation of the right to life on behalf of the eight victims who had already died because the State failed to provide them timely and adequate 421 medical care to treat HIV/AIDS and its resulting diseases. The petitioners claimed the State violated the rights to life and humane treatment of the surviving victims as well by failing to take necessary steps to provide critical 422 life-saving medical treatment. The petitioners also claimed a violation of the right to equal protection because only 1% of persons living with HIV/ 423 The petitioners claimed the AIDS received antiretroviral treatment.

State violated their right to health by not preventing discrimination and not 424 Finally, the petitioners claimed making essential medication available. the State violated their next of kin’s rights to humane treatment because they had to witness the everyday struggle the petitioners had from living 425 with HIV/AIDS without adequate medical care.

In response, the State argued that it had provided medical care to those living with HIV/AIDS to the best of its ability, and that those it could not 426 provide for were taken care of by private organizations. Additionally, the State added twenty million quetzals (approximately $2.6 million USD) to its budget for the National AIDS Program, which, the State argued, showed “…not only the good will, but a concrete action of financial commitment to improve, decentralize and strengthen actions both of prevention and of 427 treatment in the country.”

In respect to the individual petitioners, the State argued that confidentiality prevented the State from following-up on the status of their

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health and what medications they received. The State also claimed that some of the petitioners neglected taking care of their condition and did not attend appointments, which limited the State’s ability to fully treat them.

429 Finally, the State argued that there was insufficient evidence to show a causal link between not providing antiretroviral medication and the deaths 430 of the eight deceased petitioners.

On the merits, the Inter-American Commission determined, first, that the facts revealed a violation of the petitioners’ rights under Articles 4.1 (Prohibition of the Arbitrary Deprivation of Life), and 5.1 (Right to Physical, Mental and Moral Integrity) of the American Convention. The Commission considered the right to life in conjunction with the right to 431 health. According to the Commission, both require States to regulate on an ongoing basis the provision of services and execution of national programs pertaining to the achievement of quality healthcare services in such a way that any threat to the lives or physical integrity of the persons undergoing health treatment is averted. “The [S]tate has the duty to regulate, supervise, and monitor the provision of health care, ensuring … compliance with the principles of availability, accessibility, acceptability and quality …

432 both in the public and private arenas.”

States also have a specific obligation to provide medical care to persons 433 Specifically, “States must maximize efforts so living with HIV/AIDS. that all persons living with HIV/AIDS have access to the care they require, including universal access to prevention and treatment services.” Proper HIV/ AIDS treatment requires permanent access to antiretroviral medications and “consistent periodic follow-up that not only includes medical aspects, but also adequate nutrition, psychological support for the day-to-day and 434 social activities of life.” The Commission found that the complete absence of State-provided medical care, in conjunction with the petitioners’ poverty, severely impacted their health and violated their rights under Articles 4.1 (Prohibition of the Arbitrary Deprivation of Life) and 5.1 (Right to Physical, 435 Mental and Moral Integrity) of the American Convention. Additionally,

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the State continued to violate the surviving petitioner’s rights under Articles 4.1 and 5.1 because the framework for providing antiretroviral treatment to 436 those living with HIV/AIDS remained inadequate.

The Commission also determined that the State violated the petitioners’ rights under Article 25.1 (Right of Recourse before a Competent Court) of 437 the American Convention. To comply with this article, a remedy before a 438 court cannot just exist but must also be effective. In the case of persons with HIV/AIDS, it includes “…judicial authorities … act[ing] with special 439 In the diligence in processing and ruling on any claims that are filed.” present case, the Commission found a violation of Article 25.1 because the 440 and State had not enforced its “General Law to Combat HIV and AIDS”, could not explain why it took six months for the Constitutional Court to rule on the petitioners’ amparo claim, and the lack of diligence judicial 441 authorities showed in handling the claim.

Finally, the Commission found the State had violated Article 5.1 (Right to Physical, Mental and Moral Integrity) to the detriment of the petitioners’ next of kin because they not only had to watch the petitioners suffer from a lack of treatment, but also lived with the stigma of being associated with 442 persons living with HIV/AIDS. The Commission recommended the State do the following in reparation: (1) compensate fully the petitioners and their next of kin for the human rights violations they suffered; (2) provide “free, comprehensive, and uninterrupted treatment and healthcare to persons living with HIV/ AIDS that are unable to afford it”; (3) monitor public and private hospitals to ensure the healthcare is adequate and actually being provided to those who need it; and (4) train hospital staff on international standards for caring 443 with persons living with HIV/AIDS. On December 2, 2016, The Commission determined the State had not complied with its recommendations, and submitted the case to the Inter444 American Court of Human Rights for a binding ruling.

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The case before the Inter-American Court of Human Rights On August 23, 2018, in a landmark decision for people living with HIV/AIDS, the Inter-American Court of Human Rights found Guatemala in violation of Articles 4 (Right to Life), 5 (Right to Humane Treatment), 5.1 (Right to Personal Integrity), 8 (Right to a Fair Trial), 25 (Right to Judicial Protection), 26 (Duty to Progressively Develop Economic, Social and Cultural Rights), in conjunction with Article 1.1 (Obligation to Respect Rights), of the American Convention on Human Rights.

The Court started its analysis of the merits of the case by noting that of the 49 people who live or lived with HIV in Guatemala and their families, and who had brought a petition before the Commission, 15 had died in the meantime and 34 were still alive. The Commission also considered some of their relatives as alleged victims. The 49 alleged victims were diagnosed with HIV at least between 1992 and 2004, and that most of them did not receive State medical care prior to 2004. Some of them were affected by one or more of the following conditions and/or lived in the following circumstances: they contracted opportunistic diseases and in some cases died due to these diseases; they were poor people; they were mothers or fathers who were the economic and/or moral support of their families; they had low education; the effects of their condition as people living with HIV/AIDS did not allow them to carry out the same activity prior to their infection; they lived in remote areas, far from the clinics where they could have received some medical attention; and several of 445 them were pregnant women.

Given the established facts of the case and the violations alleged by the Commission and the victims, the Court proceeded to analyze whether the State was responsible for: i) the violation of the right to health of the victims;

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ii) the duty to implement progressively economic, social and cultural rights; iii) the right to personal integrity and life of the 49 alleged victims; iv) the right to judicial guarantees and effective judicial protection of 13 alleged victims caused by the ruling of the Constitutional Court; and v) the right to 446 personal integrity of the relatives of the alleged victims.

The Court’s discussion and assertion of jurisdiction over the right to health is the most audacious part of this ruling. The Court declared the right to health to be both a justiciable right, over which it has jurisdiction, and, unlike the Commission, who had read the right to health in the right to life, an autonomous right, one that does not need to be found in other 447 rights. The Court reached this remarkable conclusion despite the fact that the right to health is not one of those listed in the American Convention of Human Rights. It is mentioned in in Article 10 of the Protocol of San Salvador to the American Convention on Human Rights, but Article 19 of the same, which lists the means of protection of the rights enumerated in the Protocol, does not mention Article 10 as one of the rights that individuals can invoke before the Commission and the Court.

The Court relied instead on Article 26 of the American Convention to find the right to health. Article 26 reads: “…States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires”. A literal, systematic and teleological interpretation of Article 26, in connection with several other articles of the Convention, as well as the overall legal system of the Organization of American States, led the Court to conclude that Article 26 of the American Convention protects those rights that derive from the economic, social and educational, science and cultural norms contained in

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the OAS Charter. Specifically, the Court pointed to Article 34.i and 34.l of the OAS Charter, whereby organization’s member States “agree that equality of opportunity, the elimination of extreme poverty, equitable distribution of wealth and income and the full participation of their peoples in decisions relating to their own development are, among others, basic objectives of integral development. To achieve them, member States likewise agree to devote their utmost efforts to accomplishing the following basic goals: … i) Protection of man’s potential through the extension and application of modern medical science; l) Urban conditions that offer the opportunity for a healthful, productive, and full life), as well as 45.h (The Member States, convinced that man can only achieve the full realization of his aspirations within a just social order, along with economic development and true peace, agree to dedicate every effort to the application of the following principles and mechanisms) … h) Development of an efficient social security policy”.

The Court also stressed the State’s interrelated commitments to guarantee an efficient social security policy and guarantee health care, especially in the context of endemic diseases. All of that led the Court to conclude that the OAS Charter includes commitments with a sufficient degree of specificity 448 to derive the existence of a right to health.

Of course, the scope of the right to health must be understood in relation to the rest of the other clauses of the American Convention (i.e. the general obligations contained in Articles 1.1 and 2 as well as Articles 62 and 449 63 of the Convention). Moreover, Article 29 of the American Convention provides that “No provision of this Convention shall be interpreted as: … b. restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said States is a party”. Since Guatemala ratified the International Covenant on Economic, Social and Cultural Rights, the Court took the Covenant into consideration, in particular its provisions on the right to health, to determine the scope and content of the right to health in the Inter-American system.

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The Court agreed with the Committee on Economic, Social and Cultural Rights’ view that article 2.1 of the Covenant establishes both the obligation to achieve progressive realization as well as the immediate 450 obligation to guarantee access without discrimination. The Court also emphasized that article 1.1, the right to equality and non-discrimination, encompasses both “a negative [obligation] related to the prohibition of arbitrary differences in treatment, and a positive [obligation] … to create conditions of real equality before groups that have been historically 451 excluded or are at greater risk of being discriminated against.”

The Court interpreted the State’s obligation to protect the right to health as, “fundamental and indispensable,” requiring that the State ensure people’s access to essential health services and promote improvement 452 The Court emphasized principles of the population’s health overall. of availability and quality, which require a sufficient number of goods, 453 services and medicines that are medically appropriate and of good quality.

Additionally, the Court noted the importance of accessibility, which ensures that health facilities, goods and services be accessible to the most vulnerable 454 and marginalized sectors, both in terms of price and location. “[E]very human being has the right to enjoy the highest possible level of health,” 455 which encompasses physical health, mental health, and social well-being.

Overall, the right to health for people living with HIV/AIDS includes “access to quality goods, services and information for the prevention, treatment, care and support of the infection, including antiretroviral therapy and other medications, diagnostic tests and technologies related [to] safe and effective … preventive, curative and palliative care of HIV, of opportunistic and related diseases as well as social support and psychological, family and 456 community care, and access to prevention technologies.”

Accordingly, the Court noted that an effective response to HIV/ AIDS requires three entitlements: sufficient antiretrovirals and other pharmaceutical to treat the virus; access to regular testing to monitor

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opportunistic diseases that may arise; and proper nutrition as well as social, psychological, and community support. The Court considered the lack of regular access to antiretrovirals, periodic testing, and social support indicative of the State’s failure to discharge its obligations. Additionally, the Court found that due to economic or geographic reasons, medical facilities 460 were virtually impossible for the alleged victims to access. In that sense, the alleged victims’ economic condition “was a determining factor in their ability to access establishments, goods and services of health, and that the 461 State did not take any action to mitigate this impact.”

The Court found that Guatemala failed to guarantee the right to health for forty-eight of the alleged victims because none of them received State 462 medical care prior to 2004. Similarly, the Court found that the State failed to guarantee the right to health to the alleged victims after 2004 because the 463 care they received was inadequate. Accordingly, the Court found the State in violation of the duty to guarantee the right to health pursuant to Article 26 464 of the American Convention, in relation to Article 1.1.

The Court noted that Guatemala adopted regulations to assist those 465 living with HIV/AIDS as early as 1985. However, it also took note of the fact that Guatemala had failed to translate them into action. The Court pointed out that progressive realization requires programs and policies 466 that de facto, not just de jure, guarantee the right to health. The Court found Guatemala’s failure to make progress in fulfilling its duty to realize 467 the right to health to be a violation of Article 26, in relation to Article 1.1.

In the case of the persons who passed away prior to the judgment, the 468 The Court found Court found a violation of Article 4 (Right to Life). a causal link between the State’s failure to provide antiretroviral therapy, 469 The perform diagnostic tests, and social support and their deaths.

Court also established a causal link between the suffering of forty-six of the alleged victims and the State’s failure to provide adequate medical care, which resulted in the finding of a violation of Article 5.1 (Right to Personal

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Integrity).

The Court noted that patients living with HIV/AIDS may experience severe suffering as a result of the mental and physical effects of the disease and that proper medical treatment and social support can 471 mitigate this suffering. In this context, the right to personal integrity “implies the regulation of health services in the internal sphere, as well as the implementation of a series of mechanisms to protect the effectiveness 472 of said regulation.”

As a remedy, the Court ordered Guatemala to: 1) publish the judgment within six months in a national newspaper and maintain the judgment on an official webpage for one year, 2) publicly recognize international responsibility through a public ceremony, 3) grant scholarships to children of victims who request it, 4) provide free medical care to immediate victims and their families assuming all transportation costs, 5) monitor public and private hospitals to ensure that healthcare is adequate and actually provided to those who need it, 6) compensate the victims and their families, 7) reimburse the Court’s Victim’s Legal Assistance Fund, and 8) provide the Court with a full report within one year of the judgement demonstrating the State has taken 473 measures to comply with the order. The Court’s total pecuniary award to the alleged victims was $60,000 for each deceased victim, $30,000 for 474 each living victim, and $10,000 for each of the relatives declared victims.

The Court also awarded “$3,000 per concept of costs and expenses in the litigation of the present case for the representative … $10,000 per concept of costs and expenses in the litigation of the present case for the Health Association Integral; and $25,000 per concept of costs and expenses in the 475 Additionally, the Court ordered litigation of the present case for CEJIL.” the State to pay $2,176.36 to the Court’s Assistance Fund. Therefore, the total amount to be paid by Guatemala was $2,590,176.36.

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Duque v. Colombia Inter-American Commission on Human Rights, April 2, 2014, and Inter-American Court of Human Rights, February 26, 2016 476 Mr. Ángel Alberto Duque lived with his domestic partner, J.O.J.G., for ten years before J.O.J.G. died from AIDS in September 2001. Mr. Duque was diagnosed with HIV in 1997, and J.O.J.G. began providing financial support for his antiretroviral treatment. Prior to his death, J.O.J.G. enrolled with the Colombian Company Fund Administrator of Pensions and Severance Payments (Compañía Colombiana Administradora de Fondos de Pensiones y Cesantías; COLFONDOS). In March 2002, Mr. Duque applied to receive J.O.J.G’s survivor pension payments. In April 2002, COLFONDOS rejected Mr. Duque’s request because he did not meet the legal status as a survivor beneficiary because the Colombian social security laws require that a beneficiary must stem from a heterosexual union.

Mr. Duque filed a tutela action to recognize his survivorship rights to J.O.J.G’s pension based on the following: (1) J.O.J.G. was Mr. Duque’s partner, (2) Mr. Duque had no basis of income, (3) Mr. Duque was HIV positive; (4) he was receiving expensive anti-retroviral treatment that could not be stopped; (5) if he had no income, he would lose his health services membership, and (6) his health was dependent on these pension 477 In June 2002, a federal judge denied Mr. Duque’s tutela payments.

478 An appellate court upheld the lower court’s decision because action.

479 The “no violation of fundamental constitutional rights [were] violated.”

480 Constitutional Court did not select this case for review in August 2002.

Mr. Duque’s representatives alleged that the State unfairly discriminated against him because the State denied his survivor pension 481 benefits due to his sexual orientation. Additionally, his representatives argued that this discrimination prevented him from receiving medical care for his HIV and caused him to suffer from emotional distress, anxiety, and stigma within his community.

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In response, the State argued first that any damages suffered by Mr. Duque were hypothetical because he provided no evidence that he could not access his HIV medication. Additionally, the State claimed that Mr. Duque alleged violations of economic, social, and cultural rights and that because economic, social, and cultural rights only require progressive implementation, discrimination is an inevitable side effect of progressive 482 implementation.

By four votes in favor and two against, the Inter-American Court determined that the State violated Article 24 (Right to Equal Protection) to the detriment of Mr. Duque but had not violated his rights under Articles 2 (Obligation to Give Domestic Legal Effect to Rights), 4(1) (Prohibition of the Arbitrary Deprivation of Life), 5(1) (Right to Physical, Mental and Moral Integrity), 8(1) (Right to a Hearing Within a Reasonable Time by a Competent and Independent Tribunal) and 25 (Right to Judicial Protection) 483 of the American Convention. As shown above, the State’s social security law distinguishes pension beneficiaries based on their sexual orientation and the State could not provide a reasonable or objective reason for the 484 distinction, thereby violating Mr. Duque’s right to equal protection.

The Court determined that the State did not violate Articles 8(1) (Right to a Hearing Within a Reasonable Time by a Competent and Independent Tribunal) and 25 (Right to Judicial Protection) because Mr. Duque could not prove that the State did not have an effective remedy at the time of his complaint even though the domestic legal system changed following the 485 conclusion of his claim. Additionally, because Mr. Duque did not prove he suffered emotional harm, the Court found that the State did not violate 486 Finally, Article 5(1) (Right to Physical, Mental and Moral Integrity). because Mr. Duque could not prove that his healthcare deteriorated due to the lack of pension payments, the Court found no violation of Article 4(1) 487 (Prohibition on the Arbitrary Deprivation of Life).

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The Court ordered that the State make the following reparations: (1) publish the judgment within six months in a national newspaper and maintain the judgment on an official webpage for one year; (2) prioritize granting Mr. Duque’s survivorship benefits from J.O.J. G’s pension; (3) compensate Mr. Duque $10,000 within one year; and (4) reimburse the 488 In October 2016, the Court Court’s Victim’s Legal Assistance Fund. determined that the State’s request for an extension to reimburse the Victim’s Legal Assistance Fund is inadmissible and the State must do so promptly.

Gonzales Lluy et al. v. Ecuador Inter-American Commission on Human Rights, August 7, 2009, and Inter-American Court of Human Rights, September 1, 2015 490 Talía Gonzales Lluy is a child who suffers from Idiopathic Thrombocytopenic Purpura (ITP), a disease that causes excessive bleeding.

Because of this disease, Talía required a blood transfusion, and her mother asked friends and family to donate blood. One of the acquaintances that donated blood was unknowingly HIV positive. Although the hospital claims to have tested the blood donations prior to Talía’s transfusion, Talía tested positive for HIV a few weeks later. Talía’s mother filed a criminal complaint against those responsible for Talía’s blood transfusion. However, after significant delays in the criminal justice system, the statute of limitations barred her claim.

Because of Talía’s HIV positive diagnosis, the Gonzales Lluy family was ostracized by their community. Talía’s mother was fired from her job due to the social stigma surrounding HIV, and unable to find steady employment. This caused her mother to be in a constant state of financial insecurity resulting in emotional distress. Talía’s brother stopped attending university to care for his family. Talía was prevented from attending school due to the stigma surrounding HIV and the fear she would infect others at the school.

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The Inter-American Commission determined that Ecuador failed to meet its obligations established by the American Convention in this matter because Ecuador was aware of Talía’s situation, but failed to act 491 Additionally, Ecuador failed to supervise, regulate, and in response. monitor blood banks providing health services to the public and ensure these private entities were compliant with preexisting laws.

In response, Ecuador argued that a private entity caused Talía’s harm because they delegated the responsibility of monitoring blood banks 492 Additionally, Ecuador gave examples of statutory to private actors. regulations enacted that were intended to require proper testing of blood prior to transfusions and thus argued that it had an adequate legal 493 framework in place.

The Court determined that Ecuador violated Articles 4 (Right to Life), 5 (Right to Humane Treatment), and 19 (Rights of the Child) of the American Convention on Human Rights, and Article 13 (Right to Education) of the 494 Although third parties ran the blood banks Protocol of San Salvador. that supervised Talía’s blood transfusion, it is the responsibility of the State 495 “States must implement to ensure that human rights are protected. procedures to investigate complaints against medical institutions and discipline professional misconduct that may violate parents’ rights. The facts suggested that Talía’s HIV diagnosis resulted from improperly tested blood, indicating that the State did not properly supervise and monitor private actors that provided health services to the public, thus violating Talía’s right to life under Article 4 and her right to humane treatment under Article 5 of the American Convention.

Further, the Court found that Ecuador violated her family’s right to personal integrity under Article 5(1) of the American Convention because of the stigma, isolation, financial struggles, and suffering that 496 Since Ecuador was held responsible for causing Talía’s harm, followed. it is responsible for causing her family harm as well.

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Finally, Ecuador is responsible for violating Talía’s rights under Article 13 of the Protocol of San Salvador (Right to Education) and Article 19 of the American Convention (Rights of the Child) because Talía was unable to enroll in school due to the unfounded fear that she would infect other students, and Ecuador needed to implement measures to combat the stigma and prevent her from experiencing discrimination.

As a result of the Court’s findings, Ecuador was required to: (1) provide medical and psychological care to Talía free of charge; (2) publish the decision in a national paper; (3) “acknowledge international responsibility”; (4) provide Talía with money for the rest of her education including postgraduate studies; (5) provide free housing to Talía; and (6) educate health officials on HIV related best practices. In total, the Court ordered Ecuador pay $519,649.54 for both pecuniary damages to Talía and her family and in reimbursement for her legal fees.

B. Inter-American Commission on Human Rights The Inter-American Commission has decided, or is in the process of deciding, a handful of petitions that have not yet been referred to the Court, or could not be referred to the Court because the Court lacks jurisdiction over the State in question. They involve States’ discriminatory conduct by the military and hospital staff, failure to provide timely judicial remedies, inhibiting access to vital health services and privacy issues.

i. Petitions F.S. v. Chile Currently Pending Before the Inter-American Commission 497 F.S. learned she was HIV positive during a prenatal exam during her first trimester of pregnancy. She began taking antiretroviral medication to prevent the transfer of HIV to her unborn child. She delivered her child on November 5, 2002 via cesarean section. Upon waking following the surgery, a nurse informed F.S. that the doctor had sterilized her during the 120

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procedure and that she could not have more children. F.S. alleged no one discussed the procedure with her. The doctor who performed the procedure claimed F.S. declared she wanted to be sterilized upon entering the operating room. Chile’s law requires that the patient give informed consent and sign a form before undergoing a sterilization procedure.

Petitioners argued that in Chile sterilization without consent of women living with HIV reflected a deeply-rooted discrimination. They cited a study on Chilean women living with HIV/AIDS that found that 50% of the surgical sterilizations performed after discovering patients’ HIVpositive status were done under pressure by health personnel or without the patients’ knowledge.

In March 2007, F.S. filed a criminal complaint against her doctor alleging serious bodily injury. After F.S. and her attorney made numerous requests, the prosecutor finally investigated her allegations in September 2007. In April 2008, the prosecutor ended the investigation because F.S. had orally consented to the procedure. In July 2008, the dismissal was upheld.

Before the Inter-American Commission, F.S. alleged that the State violated her rights under Articles 5 (Right to Humane Treatment), 7 (Right to Personal Liberty), 8 (Right to a Fair Trial), 11 (Right to Privacy), 17 (Rights of the Family), 24 (Right to Equal Protection), and 25 (Right to Judicial Protection) of the American Convention, and Articles 7 (Duty to Prevent, Punish, and Eradicate Violence Against Women) and 9 (Special Consideration of Women in Special Circumstances) of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women (also known as the Convention of Belém do Pará).

In March 2017, the State recognized that “various actors committed ‘a 498 Chile also series of violations, and did not even comply with the law.’”

490 stated its willingness to resolve the matter through a friendly settlement.

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J.S.C.H. and M.G.S. v. Mexico Inter-American Commission, October 28, 2015

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The petitioners were former members of Mexico’s military who had been discharged due to their HIV status. In November 1998, Lt. J.S.C.H., a former driver with the rank of Second Lieutenant in the Secretariat of National Defense, filed an amparo petition in the Mexico’s Second District Court challenging his discharge and forced retirement due to his HIV positive status. Although the court granted a precautionary measure permitting him to continue to receive his medical treatment during the duration of the trial, in February 1999 it dismissed his amparo claim because he still had administrative remedies available. On appeal, the Supreme Court dismissed the amparo action because it agreed with the Second District Court’s reasoning regarding available administrative remedies and the retirement notice never specified that Lt. J.S.C.H. would stop receiving medical care. In November 2000, the Ninth Collegiate Tribunal granted in part the amparo claim, because the agency that issued the retirement notice did not have jurisdiction to do so. A second amparo application by Lt. J.S.C.H. was granted in October 1999 and overturned a decision declaring him unfit to serve. Lt. J.S.C.H. filed a third amparo claim in March 2001 challenging the State’s domestic law that provides the standards for determining unfitness to serve in the armed forces. In March 2002, the court granted the third amparo claim because HIV is a treatable disease and therefore could not be grounds for declaring a soldier unfit to serve. The Secretariat of National Defense appealed this judgment, and the appeals court ordered a new trial with expert examinations due to “…the significance of the individual guarantee involved in this case, namely the health of the citizens, coupled with the fact that this determination does not affect the principle of equality of arms of the parties in the proceeding, since such evidence could benefit one party as much as the other.” After

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the new trial and expert examinations, the court denied the third amparo petition and concluded that HIV is not a treatable disease and the only treatment is palliative not curative.

M.G.S., a former infantry corporal in the Secretariat of National Defense, filed an amparo petition in July 2002. In April 2003, the Court denied the petition because it had not been filed within fifteen days of receiving the notice of retirement administrative remedies should have been pursued instead. Although Lt. J.S.C.H. was able to continue receiving healthcare through the national system, Cpls. M.G.S. lost his access to the national healthcare system upon his discharge.

Before the Commission, both petitioners alleged the State 501 discriminated against them based on their HIV status. Their discharge from the army caused the cessation of payments of their salaries as servicemen, loss of the right to receive a pension in accordance with military laws, loss of their right, as Armed Service Members, to receive medical care and drugs needed to treat HIV, and interference in their private life caused by the disclosure of their state of health within the Armed Forces. Additionally, they argued that the legislation that sets the standards for discharging Armed Forces members for health reasons is unreasonable because the goal of ensuring the effectiveness of the military 502 Also, the does not justify the means of segregating those with HIV. petitioners claimed the State violated their right to privacy by disclosing their health status to individuals in the Armed Forces who did not need the 503 information. Finally, they argued the State violated their right to judicial protection by improperly interpreting existing legislation and that, in doing 504 so, the judicial authorities supported a discriminatory practice.

In response, the State claimed the procedure used to declare Lt. J.S.C.H. and Cpls. M.G.S. unfit for service was legitimate because it was performed 505 outside the line of duty. Additionally, the State argued that because the

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petitioners voluntarily joined the military, they agreed to be bound by the military’s rules and regulations. They could not be discriminated by a law 506 they agreed to abide by. The State disagreed that it interfered with the petitioner’s right to privacy and only disclosed their health information 507 to process their discharge. The State argued that the petitioners right to judicial protection was not violated because, as seen by Lt. J.S.C.H.’s numerous complaints and appeals, he had plenty of access to the court system and the military gave the petitioners plenty of notice and numerous 508 letters regarding their discharge. Finally, the State claimed that it did not violate the petitioners’ right to health because the State has an effective framework in place for treating those living with HIV/AIDS and that there 509 were a few clinics in place for the petitioners to receive treatment.

Eventually, the Commission found the State in violation of Article 24 (Right to Equal Protection) of the American Convention to the detriment 510 The Commission noted that while HIV might of both plaintiffs. affect some individuals ability to work, it is not justified or reasonable to 511 automatically exclude all individuals living with HIV from the workforce.

Instead, whether an individual living with HIV/AIDS is able to work must be evaluated on a case-by-case basis. The Commission applied a proportionality test to see if the exclusion was proportional to the end 512 goal. The Commission determined that automatically discharging the petitioners because of their HIV status was not proportional and was established as a result of stereotypes and stigma and therefore violated their rights under Article 24 (Right to Equal Protection) of the American Convention.

The Commission also determined that the State violated also Article 11 513 (Right to Privacy) of the American Convention. It establishes a “sphere 514 of privacy” and also prohibits arbitrary government interference. States must enact all necessary legislation to prevent arbitrary governmental

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interference into one’s private sphere. One’s sexual and reproductive 516 health, specifically HIV status, are particularly sensitive. In this case, because the files containing the petitioner’s HIV status were shared amongst numerous members of the Armed Forces, many of whom had nothing to do with the medical branch, the Commission found a violation 517 of Article 11.

Finally, the Commission concluded that the State violated Article 8(1) (Right to a Hearing Within Reasonable Time by a Competent and 518 In this Independent Tribunal) to the detriment of both petitioners. matter, “the judicial authorities manifest[ed] and clearly perpetuate[d] with their decision prejudice and stigmatization of persons living with 519 HIV.” Because an independent and fair judiciary is a human right, the State violated this right to the detriment of the petitioners by not providing 520 an impartial judiciary for the petitioners’ amparo proceedings.

The Commission recommended the State make the following reparations: (1) provide the petitioners with any necessary healthcare; (2) compensate the petitioners and reinstate them to the Armed Forces if they desire; and (3) reform the domestic legislation regarding discharging Armed Forces members for health status and clarify that testing HIV 521 positive does not result in an automatic discharge.

In October 2015, the Commission noted that the State had fully 522 complied with all recommended reparations.

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Jorge Odir Miranda Cortez et al. v. El Salvador Inter-American Commission on Human Rights, March 20, 2009 523 The petitioners were twenty-seven persons living with HIV/AIDS who alleged that El Salvador had prevented them from accessing antiretroviral therapy. Three of the petitioners died prior to the Commission making a determination on the merits.

In 1997, Mr. Miranda Cortez, the only named petitioner, received antiretroviral therapy from a private clinic. He then founded the Atlacatl Association to provide support to those living with HIV/AIDS and their families.

In July 1998, Mr. Miranda Cortez filed in court an amparo claim, alleging that the Salvadorian Social Security Institute (ISSS) had violated his rights to health, life and nondiscrimination by not providing antiretroviral therapy. He also asked for the effects of an eventual amparo ruling be applied to everyone in El Salvador living with HIV/AIDS. In August 1998, the ISSS notified Mr. Miranda Cortez that it would not be able to provide antiretroviral therapy to everyone. In April 2001, the court granted the amparo relief. However, the court ordered antiretroviral therapy to be made available to Mr. Miranda Cortez only, and it did not extend the decision to all others living with HIV/AIDS. Before the Inter-American Commission, the petitioners argued that by not providing antiretroviral therapy, the State had violated their rights to 524 life and health, and also inflicted cruel, inhuman or degrading treatment.

Additionally, they alleged that the State (i.e., the ISSS) had discriminated against them because of their HIV/AIDS positive status. Finally, they claimed that the State had violated their right to a fair trial and judicial protection because of the one-year gap between the filing of the amparo complaint and the court’s decision.

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The State rebutted that the medical care it provided complies with international standards. Additionally, the State claimed that it did not engage in any practices that could be deemed discriminatory. Finally, the State argued that the delay in the determination of the petitioner’s amparo claim was justified because of the complexity of the case and the structure of the State’s amparo procedure.

In the end, the Commission concluded that the State had violated Articles 2 (Obligation to Give Domestic Legal Effect to Rights) and 25 (Right to Judicial Protection) of the American Convention to the detriment of the petitioners, and Article 24 (Right to Equal Protection) only to the detriment of Mr. Miranda Cortez. However, it found the State had not violated Article 26 (Obligation to Progressively Develop Economic, Social, and Cultural Rights) of the American Convention. The Commission did not see reason to analyze whether the State had violated Articles 4 (Right to Life) or 5 (Right to Humane Treatment).

The State’s amparo procedure violated Articles 2 (Obligation to Give Domestic Legal Effect to Rights) and 25 (Right to Judicial Protection) because the amparo remedy was neither simple nor effective, which are 525 Additionally, because requirements of the right to judicial protection. the State failed to change the procedure by the time the Commission issued its findings, the Commission found a violation of Article 2, which requires States to implement the human rights enshrined in the American Convention into its domestic legislation.

The Commission determined that the State violated Article 24 (Right of Equal Protection) only to the detriment of Mr. Miranda Cortez because they forced him to use a glass marked “XXX” to indicate that the dishware 526 A photograph had been used by an individual living with HIV/AIDS. of Mr. Miranda Cortez drinking from the glass had been published in a

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newspaper. Although the State has the right to prevent the spread of infectious diseases, the medical staff’s treatment of Mr. Miranda Cortez were “utterly unreasonable and demeaning… and constitute unnecessary 528 stigmatization.”

Finally, the Commission found the State did not violate Article 26 (Obligation to Progressively Develop Economic, Social, and Cultural Rights) 529 in respect to the Right to Health. Article 26 does not require immediate implementation of economic, social, and cultural rights, but instead to “strive constantly for the realization” of the right and the State cannot 530 “adopt regressive measures” in the development of the right. Here, the State showed it took reasonable steps to progressively provide treatment to those living with HIV/AIDS and never backtracked in the amount of care 531 it provided. Thus, it did not violate its obligation to develop progressively 532 the right to health under Article 26.

The Commission recommended the following reparations: (1) reform 533 the amparo procedure so it is more “simple, prompt, and effective”; 534 and (2) adequately compensate the petitioners. In November 2007, the State and the petitioners agreed that the measures recommended by the 535 Commission had been carried out in full.

ii. Rapporteurships Besides the petitions system, the Inter-American Commission has a particularly elaborate and active special procedures network. Beginning in 1990, the Commission copied the UN Special Procedures system and began relying on independent experts (rapporteurs) to further research the connection between human rights violations and particularly vulnerable

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groups. The Inter-American Commission currently has ten such 536 rapporteurs. Three of these (the Rapporteur on the Rights of Women; the Unit on Economic, Social, and Cultural Rights; and the Rapporteur on the Rights of Lesbian, Gay, Trans, Bisexual, and Intersex Persons) recently expressed concern regarding “the many forms of discrimination affecting women, which leads to a situation of marked vulnerability for women who 537 are ...living with HIV/AIDS ....�

Notably, as of 2020, the Inter-American system is the only regional system that uses special rapporteurs for country and thematic mandates.

There are no special procedures in the European, African, Asian and Middle Eastern human rights systems.

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At the Regional Level

II. THE EUROPEAN HUMAN RIGHTS SYSTEM Europe has two partially overlapping systems of protection of human rights. One is the one of the Council of Europe, a 47-member regional organization, which features as members every State in Europe, including Turkey, Russia and the UK, but not Belarus and the Holy See. The Council of Europe’s human rights system has at its core two treaties: The European 538 Convention on Human Rights and its protocols, and the European Social 539 Charter. The European Union and all Council of Europe Members have ratified the European Convention and all its protocols. However, to date only 43 out of 47 Council of Europe members have ratified the European Social Charter.

Implementation of the Convention and Protocols is entrusted to the European Court of Human Rights, which is based at the Council’s headquarters in Strasbourg, France. Implementation of the European 540 Social Charter is the task of the European Committee of Social Rights.

Twenty-seven members of the Council of Europe are also members of the European Union. The main human rights treaty within the European Union is the Charter of Fundamental Rights of the European Union, which binds the Union and its bodies as well as its members, when they are applying EU law. Implementation of the Charter is entrusted administratively to the EU bodies (mainly the Commission) and judicially to the Court of Justice of the European Union.

This manual discusses only the jurisprudence of the European Court of Human Rights, since, to date, neither the European Committee of Social Rights nor the Court of Justice of the European Union have developed a significant jurisprudence directly relevant to PLWHA.

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A. European Court of Human Rights The European Court of Human Rights (ECtHR), founded in 1959, is a regional court focusing on human rights violations by States members of the Council of Europe. The ECtHR bases its decisions on the European Convention on Human Rights (the “European Convention). The European Convention, which entered into force in 1953, recognizes every person within State members’ jurisdiction fundamental civil and political rights. The ECtHR rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights.

Its judgments are binding on the States concerned and have led governments to alter their policy and practice in a wide range of areas.

Since its inception, the ECtHR has decided over 10,000 cases. Several of them regard petitioners whose rights were violated because of their HIV/ AIDs Status, and the ECtHR has proven to be a receptive and vital resource for PLWHA seeking to assert their rights. The large number of cases brought before the ECtHR relative to other regional courts has established a robust and largely favorable jurisprudence regarding HIV/AIDS-related human rights violations.

The cases presented below involve diverse subject matters, including discriminatory refusal to grant a residency permit based on HIV status, employment discrimination against an HIV-positive employee, failure to provide access to medical treatment for HIV-positive detainees, and rejection of asylum claims and deportation of PLWHA. Overall, the ECtHR seems to be very likely to decide in favor of the petitioner for cases involving discrimination and lack of access to medical care. The ECtHR, however, seems reluctant to grant relief for petitioners in deportation cases.

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D v. the United Kingdom European Court of Human Rights, May 2, 1997 541 D was a citizen of St. Kitts and Nevis, who, while traveling to the United Kingdom with a large amount of cocaine, was apprehended upon arrival at Gatwick Airport. He was convicted and imprisoned for importing controlled substances. While imprisoned, prison officials diagnosed D with HIV, an infection he appeared to have contracted prior to his arrival in the United Kingdom. Once he finished serving his sentence and prior to his release from prison, the United Kingdom’s immigration officials gave D notice that they intended to deport him to St. Kitts. However, D sought to remain in the United Kingdom on compassionate grounds because he would lose his medical care if he returned to St. Kitts, and he had no family there to care for him. Eventually his petition was denied and removal proceedings started.

D brought his case before the European Court of Human Rights where he argued that his deportation to St. Kitts would violate his rights under Article 3 (Prohibition of Torture) of the European Convention on Human 542 Rights. Specifically, his condition of being a patient with HIV/AIDS in St. Kitts would leave him homeless, unemployed, with limited medical care, 543 and isolated, and that the return trip to St. Kitts would quicken his death.

In response, the United Kingdom argued that D had no claim under Article 3 because the fate that D faced in St. Kitts is the same that other HIV/AIDS 544 patients in St. Kitts face every day. The United Kingdom also argued that, although the medical treatment in St. Kitts may be inferior than that D could receive in the United Kingdom, that fact alone would not constitute 545 per se a violation of Article 3.

The Court concluded that deporting D to St. Kitts and discontinuing the medical care he received in the United Kingdom violated D’s rights 546 Although States protected under Article 3 (Prohibition of Torture).

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have the fundamental right to control their borders and determine residency, immigration policies must comply with Article 3 of the 547 Upon reviewing D’s medical condition, the European Convention.

Court determined that abruptly withdrawing D’s medical treatment 548 would inevitably hasten his death. Although the lower-quality treatment patients with HIV/AIDS receive in St. Kitts is not itself a violation of Article 3, D’s deportation would “expose him to a real risk of dying under the most distressing circumstances and would thus amount to inhuman treatment”.

549 The Court did not rule on whether the United Kingdom had violated Articles 2 (Right to Life), Article 8 (Right to Privacy), and Article 13 (Right to a Remedy) because the remedy would be the same as the one for the 550 violation of Article 3.

Kiyutin v. Russia European Court of Human Rights, March 10, 2011

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Mr. Kiyutin, was a citizen of Uzbekistan who, in August 2003, applied for a Russian permanent residence permit after marrying a Russian national.

As part of the residency permit process, he underwent medical examination, but tested positive for HIV, resulting in the denial of his application. In April 2009, he applied for a temporary residence permit. However, Russian migration agency rejected the application and determined he resided in the 552 State unlawfully and fined him 2,500 rubles. A Russian court rejected a petition to review the rejection because section 7 § 1(3) of the State’s Foreign National’s Act restricts permanent residence permits only to those who can 553 prove they are not living with HIV/AIDS. Before the European Court of Human Rights Mr. Kiyutin claimedthat by refusing to grant him a residence permit, Russia had violated his rights under Articles 8 (Right to Respect for Private and Family Life), 13 (Right to an Effective Remedy), 14 (Prohibition of Discrimination), and 15 (Derogation in Time of Emergency) of the European Convention on Human Rights.

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In response, the State argued that Mr. Kiyutin still lived in Russia and that the purpose behind section 7 § 1(3) of the Foreign National’s Act was not discriminatory but rather for public health by preventing the spread 554 of HIV/AIDS. Additionally, the denial of the residency permit in Russia did not prevent Mr. Kiyutin, his wife, and his daughter from living in 555 Uzbekistan.

The Court concluded that the State violated Article 14 (Prohibition of Discrimination) in conjunction with Article 8 (Right to Respect for 556 Private and Family Life) of the European Convention on Human Rights.

Although public health is a legitimate aim of legislation, the State must evaluate each applicant’s health status individually and therefore an overall denial of residency permits to anyone affected by HIV/AIDS was neither 557 objective nor reasonable. Additionally, the statute could have the opposite of its intended effect of stopping the spread of HIV because migrants will refuse HIV testing if it could affect their chances of receiving a residency 558 permit.

The Court ordered the State pay Mr. Kiyutin €15,000 in non-pecuniary 559 damages and €350 to reimburse him for costs and expenses.

N v. the United Kingdom European Court of Human Rights, May 27, 2008 560 In March 1998, N, a citizen of Uganda, fled to the United Kingdom and filed an asylum petition after members of the Ugandan military had raped her for her involvement in the Lord’s Resistance Army. Upon her arrival, she was admitted to the hospital with an advanced stage of HIV infection. In August 1998, she was diagnosed with AIDS. In March 2001, the United Kingdom rejected her asylum claim because of a lack of credibility, insufficient evidence that she was in danger from the Ugandan military, and because Uganda had adequate antiretroviral treatment

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available, and its HIV/AIDS treatment was comparable to other African nations. However, her doctor stated that stopping antiretroviral treatment would cause her life span to decrease to only one year, and that her hometown in Uganda did not have adequate public blood monitoring and healthcare to treat her.

Before the European Court of Human Rights, the petitioner argued that deporting her in poor health to Uganda, a country with limited treatment options available for those living with HIV/AIDS, would constitute violations of her rights under Articles 3 (Prohibition of Torture) and 8 (Right to Respect for Family and Private Life) of the European Convention on Human Rights.

In response, the State argued that Article 3 (Prohibition of Torture) only applies in “exceptional circumstances” and was intended to protect against violations of civil and political rights and not potential violations of economic, social, and cultural rights such as healthcare.

In the end, the Court concluded that the State had not violated the 561 petitioner’s rights under Article 3 (Prohibition of Torture). Although the Court conceded that the petitioner’s quality of healthcare would diminish, she was not critically ill and her arguments that she would be unable to receive healthcare were too speculative, especially in the constantly 562 progressing climate of HIV/AIDS research.

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A.B. v. Russia European Court of Human Rights, October 14, 2010 563 In May 2004, A.B., a detainee on remand in a St. Petersburg prison, was diagnosed with HIV during a blood test. In September 2004, the prison staff refused to take A.B. to the hospital because the hospital was caring for too many prisoners with HIV and did not have enough beds. After applying for medical treatment in October 2004, the prison staff instructed A.B. to take aspirin, analgesics, and papaverine. When A.B. complained about the ineffective medication, the prison staff threatened to place him in solitary confinement. Near the end of October 2004, A.B. was transferred to a disciplinary solitary confinement cell with no central air or heating despite the fact that he had broken no rules.

Before the European Court of Human Rights, A.B. contended that the inadequate medical treatment provided to him by the State violated his rights under Articles 2 (Right to Life) and 3 (Prohibition of Torture) of the European Convention on Human Rights. In response, the State argued that A.B. received adequate healthcare because a doctor saw him regularly, and 564 A.B. never complained or asked for treatment.

The Court concluded that the State violated Article 3 (Prohibition of Torture) both through placing A.B. in solitary confinement and by denying 565 him adequate medication for his HIV, and Article 5(1) (Right to Liberty 564 and Security of Person). When Article 3 is applied to providing healthcare to detainees, States “….must ensure that given the practical demands of imprisonment, the health and well-being of a detainee are adequately secured by, among other things, providing him with the requisite medical 567 The Court examined “whether the State authorities assistance.” provided him with the minimum scope of medical supervision for the 568 timely diagnosis and treatment of his illness.” The Court concluded that A.B.’s advanced stage of HIV required antiretroviral treatment, and thus,

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by not providing it to him, the State violated its obligations under Article 3 569 (Prohibition of Torture).

Additionally, by placing A.B. in solitary confinement, the State violated his rights under Articles 3 (Prohibition of Torture) and 5 (Right to Liberty 570 and Security of Person). Holding a prisoner in solitary confinement is one of the most severe measures that can be exercised against a prisoner, 571 and thus there should be significant factors justifying the confinement.

Here, the State could only reason a vague risk to his life, which is not serious enough to justify solitary confinement, and thus violated Articles 3 and 5 to 572 the detriment of A.B. The Court ordered the State pay A.B. €27,000 in non-pecuniary 573 damages and €10,091 to reimburse his costs and expenses.

E.A. v. Russia European Court of Human Rights, May 23, 2013 574 In September 2003, after showing symptoms of tuberculosis, E.A., an inmate in a Russian prison, was diagnosed with HIV. However, his treatment plan specified only medications for tuberculosis not HIV. In July 2005, he complained to prison officials that he was not receiving treatment for HIV. The agency supervising the prison noted that although E.A. received free healthcare, including visits with an infectious disease specialist, the prison had no funding for outpatient HIV treatment including medication. In July 2006, E.A. complained again about the inadequacy of his treatment but was told that he received the necessary testing and that his HIV had not progressed to an advanced enough stage to warrant antiretroviral therapy. In April 2007, E.A.’s HIV advanced to a stage that required highly active antiretroviral therapy. Upon his release in September 2008, E.A. received HIV medication from an AIDS center.

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Before the Court, E.A. alleged that the State violated his rights under Article 3 (Prohibition of Torture) of the European Convention on Human Rights by not providing him with antiretroviral therapy during a remissive 575 stage of his illness. In response, the State argued that it provided E.A. regular medical visits with specialists, and that clinical data from the time of his imprisonment did not necessarily recommend antiretroviral therapy 576 for lower stages of HIV. Eventually, the Court determined that the State had violated Article 577 3 (Prohibition of Torture) to the detriment of E.A. Under Article 3, the prisoner need not suffer “severe of prolonged pain” for the Court to find 578 Instead, the Court evaluates each case individually and a violation. examines “whether any deficiencies in medical care were ‘compatible with 579 the human dignity’ of a detainee.” The Court found that the nearly fouryear delay in commencing antiretroviral therapy without any plausible 580 The justification from the State violated E.A.’s rights under Article 3.

581 Court ordered the State to pay €7,500 in non-pecuniary damages.

X. v. France European Court of Human Rights, March 31, 1992 582 X, a hemophiliac, contracted HIV sometime between 1984 and 1985 through blood transfusions he received to treat his condition. In December 1989, X filed a case in court requesting 2.5 million French francs from the Ministry of Health arguing medical negligence causing him to contract HIV. In March 1990, the court rejected the claim. In May 1990, X appealed before the Paris Administrative Court. In December 1991, the court dismissed the claim because X had been diagnosed with HIV in 1985, making it likely that the contraction of HIV predated the State’s liability under the applicable statutes.

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X died in February 1992. His parents continued the lawsuit on his behalf, and before the European Court of Human Rights they alleged that the State violated his rights under Article 6(1) (Right to a Hearing Within a Reasonable Time by a Competent and Independent Tribunal) of the European Convention on Human Rights.

Eventually, the Court determined the State violated Article 6(1) to the 583 detriment of X. In considering whether proceedings occurred within a reasonable time, the Court considered: (1) the complexity of the case, 584 (2) the applicant’s behavior, and (3) the relevant authorities’ conduct.

First, the Court found the case’s complexity required investigating the State’s liability, but the State did not proceed investigating immediately 585 even though the State had advanced notice of impending lawsuits.

Next, the Court determined X had sufficiently let the State know about the negative impacts HIV had on his daily life, and the worsening of his 586 condition. Finally, the Court found the administrative court did not take any measures to hasten the processing of X’s claim even though it knew 587 of the progression of X’s illness and its implications. Thus, the Court concluded the delay between X’s original filing and the dismissal of his 588 claim violated his rights under Article 6(1).

The Court ordered the State to pay X’s parents 150,000 francs in non589 pecuniary damages and 30,000 francs for costs and expenses.

I.B. v. Greece European Court of Human Rights, October 3, 2013 590 In January 2005, I.B., an employee at a jewelry manufacturing company, disclosed to three co-workers that he might have contracted HIV. In February 2005, he tested positive for HIV. Less than two weeks

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later, the three co-workers that I.B. spoke to in January wrote a letter to their employer stating that I.B. had AIDS and had to be discharged from the company. Soon, the entire company (approximately seventy employees) knew that I.B. was living with HIV. The employer brought a doctor to speak about the methods of HIV transmission to quell the concerns of fellow employees; however, half of the employees still demanded I.B.’s dismissal.

On February 23, 2005, the employer fired I.B. and provided him with severance pay as required by statute.

In August 2005, I.B. filed a legal claim, alleging that his employer dismissed him unfairly, and violated his personal rights by permitting unfounded prejudices surrounding persons living with HIV/AIDS to motivate his dismissal. The court of first instance agreed with I.B.’s first claim, but held that his dismissal did not violate I.B’s personal rights. The appellate court upheld this decision. In 2009, the Court of Cassation reversed as to the unfair firing claim because a peaceful working environment is a justifiable employer’s interest for dismissing an employee.

Before the European Court of Human Rights, I.B. argued that the State violated his rights under Article 14 (Prohibition of Discrimination) in conjunction with Article 8 (Right to Respect for Private and Family 591 Life) of the European Convention on Human Rights. The State argued that, although dismissal from employment affects an individual’s private 592 life, in this case it did not prevent I.B. from finding new employment.

Additionally, the State argued that I.B. was not fired for being HIV positive 593 but instead to allow the employer to restore peace in the company. Finally, the State claimed that it did not need to pass a statute to provide additional employment protection to persons living with HIV/AIDS because the preexisting legal framework provided enough protection, as proven by I.B.’s 594 legal victory before the court of first instance.

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In the end, the European Court of Human Rights concluded that the State violated Article 14 (Prohibition of Discrimination) in conjunction 595 with Article 8 (Right to Respect for Private and Family Life). First, the Court determined that the employer treated I.B. differently than the 596 other employees solely because of his HIV status. The domestic courts held that his HIV status would not affect his work and therefore did not 597 justify his prompt dismissal. Additionally, employee prejudice is not a satisfactory reason for termination. Therefore, the difference in treatment was neither justified nor reasonable and thus constituted a violation of 598 Article 14, in conjunction with Article 8.

The Court ordered the State to pay I.B. €6,339.18 for pecuniary damages 599 and €8,000 for non-pecuniary damages, totaling €14,339.18.

Armonas v. Lithuania European Court of Human Rights, November 25, 2008

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In January 2001, the newspaper of the town where Mr. Laimutis Armonas, a patient living with HIV, lives publishes a tell-all story, describing an “AIDS threat in the village”, disclosing who in the community was living with HIV/AIDS – including the petitioner’s husband. In July 2001, Mr. Armonas successfully sued the newspaper for breaching his right to privacy. However, the court determined that the newspaper did not deliberately make the information public and therefore only awarded him minimal damages. The decision was upheld by both the appellate court and the Supreme Court.

Mr. Armonas died in February 2002. Before the European Court of Human Rights, Mr. Armonas’ wife, argued that the State violated her husband’s rights under Articles 1 (Obligation to Respect Human Rights), 8 (Right to Respect for Private and Family Life), and 13 (Right

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to an Effective Remedy) of the European Convention on Human Rights.

The Court decided to proceed only with a potential violation of Article 8.

In response, the State argued that Article 8 does not require the State to grant unlimited amounts of compensation for a specific cause of action, especially when domestic courts have a recognized cap for breach of privacy damages. Additionally, the State argued that there was no breach of Article 8 because the petitioner’s husband had been compensated fairly through the domestic court system.

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Eventually, the Court found that the State violated Article 8. In cases where there is tension between Article 8 and Article 10 (Freedom of Expression), “…the Court notes a fundamental distinction … between reporting facts – even if controversial – capable of contributing to debate in a democratic society and making tawdry allegations about an individual’s 602 Here, there was an egregious abuse of the press’ discretion, private life.” and coupled with the statutory limitations on recovery for invasion of privacy, which deters the press from reigning itself in, amounted to a violation of 603 Mr. Armonas’ rights under Article 8. The Court ordered the State to pay 604 Mr. Armonas’ wife €6,500 for non-pecuniary damages.

Centre for Legal Resources on Behalf of Valentin Câmpeanu v. Romania 605 European Court of Human Rights, July 17, 2014 Valentin Câmpeanu was a mentally disabled boy who also was living with HIV. His parents abandoned him at birth, and he was raised in an orphanage. When Câmpeanu reached age eighteen, the State stopped caring for him. First, he was cared for in an adult care home, and then he was transferred to a mental hospital. He died days later, in February 2004, because the staff refused to care for him for fear of contracting HIV and therefore, he received no food, medication, or clothing during the winter.

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Before the European Court of Human Rights, Valentin Câmpeanu’s representatives alleged that the State violated Articles 2 (Right to Life), 3 (Prohibition of Torture), 5 (Right to Liberty and Security of Person), 8 (Right to Respect for Private and Family Life), and 13 (Right to a Remedy) of the European Convention on Human Rights. In response, the State alleged that HIV is a terminal illness that can lead to death and the petitioner’s representatives could not show causation between the care the petitioner 606 Additionally, the State provided the petitioner received and his death.

607 with antiretroviral therapy and thus provided him with adequate care.

The Court disagreed with the State and concluded that the State failed to provide the petitioner with basic necessities and that caused his death – thus 608 violating Articles 2 (Right to Life) and 13 (Right to a Remedy). Regarding the right to life, the Court held that the State violated his rights by transferring him to facilities ill equipped to handle his condition and by failing to meet his 609 most basic needs, thereby causing his death. The Court determined that the remedies provided to the petitioner were neither effective nor reasonable because limited opportunities existed for those with mental disabilities to advocate on their own behalf and because the State failed to effectively 610 investigate the circumstances surrounding his death.

The Court ordered the State pay €35,000 to the NGOs that brought this 611 case on Câmpeanu’s behalf.

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At the Regional Level

III. THE AFRICAN HUMAN RIGHTS SYSTEM The main, but by no means only, regional system of protection of human rights in Africa is the one within the framework of the African Union.

The African Union, which brings together all States of Africa, with the exception of Morocco, is a 55-member regional international organization whose mission includes the promotion and protection of human rights 612 throughout the continent. The African Union was created in 2001, and succeeded a similar organization called the Organization of African Unity, which had been created in 1963, on the wake of African decolonization.

As with all other regional systems, in Africa there is a set of legal instruments, spelling out fundamental human rights, as well as institutions to monitor their implementation. The African Charter on Human and Peoples’ Rights is the first and most important international 613 human rights instrument for the African region. Also known as the “Banjul Charter,” it was developed in response to and modeled after the human rights instruments that already existed in Europe and the Americas. Like those documents, the Charter creates a regional human rights system for Africa and includes an array of different rights. However, unlike the Inter-American and European system instruments that largely emphasize individual rights, the Charter places a strong emphasis on collective or group rights. Collective rights are possessed and exercised by a nation or a people as a group and the most fundamental of these rights is the right to self-determination. Moreover, the Charter includes a list of corresponding duties that each individual or group has towards “family and society, the State and other legally recognized communities and the 614 international community.”

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In November 2005, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, more commonly known 615 as the Maputo Protocol, entered into force. So far, of the 55 members of the African Union, only 37 have ratified it. Article 14 on “Health and Reproductive Rights” is one of the main provisions of the Protocol that has sparked opposition. It provides that “States Parties shall ensure that the right to health of women, including sexual and reproductive health is respected and promoted.” Section D of Article 14 includes “the right to self-protection and to be protected against sexually transmitted infections, including HIV/AIDS,” while Section E identifies “the right to be informed on one’s health status and on the health status of one’s partner, particularly if affected with sexually transmitted infections, including HIV/AIDS, in accordance with internationally recognized standards and best practices.”

While some African nations may have reservations about the language of Article 14 that defines abortion as a human right, the Maputo Protocol is undoubtedly the first human rights instrument that specifically highlights women’s rights in the context of the HIV/AIDS pandemic, a major accomplishment in the field of human rights.

The two main human rights bodies of the African Union’s system of protection of human rights are the African Commission on Human and Peoples’ Rights and the African Court of Human and Peoples’ Rights.

In contrast to the Inter-American and European systems, and largely because they came into existence relatively recently, the African human rights bodies have not yet developed a body of jurisprudence regarding HIV/AIDS -related human rights. However, they have spearheaded other initiatives.

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A. African Commission on Human and Peoples’ Rights The African Commission on Human and Peoples’ Rights, headquartered in Banjul, The Gambia, is the expert body that monitors the implementation of the African Charter and its protocols. It comprises eleven members, who are elected to a six-year term. The members of the Commission are fully independent. They do not serve as State representatives, but instead in a personal and independent capacity.

The Commission’s responsibilities include the promotion of human and peoples’ rights, the protection of human and peoples’ rights, interpretation of the provisions of the Charter, and any other task assigned to it by the AU Assembly. The Commission may also receive complaints from both States and individuals when another Member State has violated rights guaranteed by the AU Charter and its protocols, provided the complaint meets certain 616 admissibility requirements.

Although the Commission has not considered yet cases involving human rights in the context of HIV/AIDS, it has issued a number of resolutions on the topic that have created momentum within the African 617 Indeed, Article 45 of the Charter grants the human rights system.

Commission the power to “formulate and lay down principles and rules 618 aimed at solving legal problems relating to human and peoples’ rights.”

The Commission most commonly does so by holding regular sessions in which it adopts resolutions that address pressing human rights issues.

These resolutions are often classified as “thematic” in that they elaborate in detail on the substantive human rights implicated by those issues. Several of these resolutions have addressed the HIV/AIDS pandemic.

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At its 29th Ordinary Session, in May 2001, the Commission adopted its first resolution that specifically addressed the issue of HIV/AIDS in 619 Africa. Resolution 53, titled “HIV/AIDS Pandemic – Threat Against Human Rights and Humanity,” marked the first time the Commission declared HIV/AIDS to be a human rights issue and a threat against humanity. The Commission called on African governments to allocate resources to the fight against HIV/AIDS, ensure that those living with HIV/AIDS are protected from discrimination, provide support to the families of those dying of AIDS, and devise public healthcare programs to raise public awareness about the issue. Although this resolution was somewhat vague in its level of detail and application, it served as the impetus for the Commission to adopt more farreaching resolutions in the future.

Resolution 163, entitled “Establishment of a Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV,” was adopted at the Commission’s 620 This resolution marked the 47th Ordinary Session, in May 2010.

Commission’s most ambitious and expansive effort to combat the threat of HIV/AIDS in Africa. With this Resolution, the Commission recognized that those living with HIV/AIDS and those at risk of contracting the disease were among the most vulnerable groups in Africa and were exposed to serious violations of human rights. The resolution directly addressed this issue by establishing a Committee on the Protection of PLHIV and Those 621 at Risk (the Committee).

Although the Committee was initially established for a period of only two years, its mandate has continued to be renewed in subsequent 622 The Committee is charged with a wide range of functions resolutions. including undertaking fact-finding missions to investigate allegations

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of human rights violations, engaging State and non-State actors on their responsibilities, and recommending strategies to better protect the rights of those affected by HIV/AIDS. Specifically, the Committee’s mandate is to “seek, request, receive, analyse and respond to reliable information from credible sources including individuals, community-based organisations, and non-governmental organisations.” It also includes investigating “credible allegations of violations of the rights” of those affected by HIV/AIDS by conducting fact-finding missions to “investigate, verify and make conclusions and recommendations regarding allegations “of human rights violations.”

Further, in recommending concrete strategies to protect the rights of persons living with HIV/AIDS and those at risk, the Committee may conduct studies to grasp more fully the challenges these individuals face. Although the Committee does not accept complaints/petitions from individuals (these must be addressed to the Commission), it does submit yearly reports to 623 Similarly, the Commission that outline its activities and investigations. the Committee submits yearly reports to the African Union Assembly summarizing the information it has gathered and areas of concern regarding those living with HIV in Africa. Despite the Committee being a relatively new body with a limited mandate, its fact-finding and investigatory functions make it a valuable tool for addressing violations of the rights of those living with HIV. Resolution 260, adopted at the Commission’s 54th Ordinary Session, in November 2013, on “Involuntary Sterilisation and the Protection on Human Rights in Access to HIV Services” was the first time the Commission 624 addressed specific human rights violations in the context of HIV/AIDS. This resolution sought to confront directly the troubling practice of involuntary sterilization of women living with HIV/AIDS. It declares all forms of involuntary sterilization to be a violation of fundamental human rights, including the right to equality and non-discrimination, security

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of person, and freedom from torture, cruel, inhuman and degrading treatment. The resolution also calls on State Parties to allocate resources to HIV/AIDS and reproductive health services, ensure that sterilization is not forced upon women affected by HIV/AIDS, and investigate and redress allegations of involuntary sterilization.

Finally, the most recent resolution adopted by the Commission on the topic of HIV/AIDS is Resolution 290 on “the Need to Conduct a Study on HIV, the Law and Human Rights,” adopted at the 16th Extraordinary 625 The Commission expressed its concern that Session, in July 2014. those affected by HIV continued to experience “discrimination, stigma, prejudices, status-engendered violence and harmful customary practices” in many member States. The Commission also noted the obstacles those suffering from HIV face in accessing “HIV prevention treatment care and support services” and the “punitive legal environment” that prevents solutions that are more effective. In response, the Commission resolved to conduct a study on these issues and assigned the Committee established by Resolution 163 the task of conducting this study. Work on this study continues and in December 2015, the Commission held a workshop aimed at giving the many stakeholders involved an opportunity 626 to give their input.

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B. African Court on Human and Peoples’ Rights In 2004, a protocol to the African Charter on Human and Peoples’ 627 Rights established the African Court on Human and Peoples’ Rights.

This Court is a standing body designed to complement and reinforce the functions of the Commission. The Court, based in Arusha, Tanzania, officially began its operations in November 2006 and delivered its first 628 Like the Commission, the Court is comprised of judgment in 2009. eleven judges elected from member States of the African Union to a sixyear term that is renewable once.

The Court has jurisdiction over matters regarding “the interpretation and application of the African Charter on Human and Peoples’ Rights, (the Charter), the Protocol and any other relevant human rights instrument 629 The Court may hear cases filed by ratified by the States concerned.” the Commission, State parties to the Protocol, African Intergovernmental Organizations, Non-Governmental Organizations (NGOs) with observer status before the Commission, and individuals, provided the State complained against has recognized the jurisdiction of the Court to accept cases from individuals and NGOs under Article 34(6) of the Protocol.

While thirty African States have ratified the Protocol, only seven have recognized the competence of the Court to hear cases brought by NGOs and individuals. To date, the Court has received 124 applications and has ruled on 32 cases. The Court currently has 92 pending cases and 4 requests for an advisory opinion. Although it has not yet reached its full potential, the Court is likely to grow in influence as its jurisprudence expands and more African nations fully accept its jurisdiction.

While the African Commission on Human and Peoples’ Rights has made some progress in addressing the HIV/AIDS pandemic in Africa, the 630 African Court on Human Peoples’ Rights has yet to address the issue. As the Court is relatively new, it has not yet had a chance to rule on such matters.

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At the Regional Level

IV. THE SOUTH-EAST ASIAN HUMAN RIGHTS SYSTEM The Association of Southeast Asian Nations (ASEAN) was established in August 1967 with the goals of creating greater peace and stability within Southeast Asia and promoting cooperation and mutual assistance on 631 economic, social, and cultural issues affecting the region. The Association currently consists of ten members: Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam. For much of its history, the ASEAN was a non-organization.

It was an informal gathering of Heads of State to discuss shared concerns but without any law-making agenda. The adoption of the ASEAN Charter in 2008 turned ASEAN into a regional international organization, with 632 shared goals, rules and mechanisms to monitor their implementation.

Notably, the ASEAN Charter calls for the respect, promotion, and protection 633 of human rights and the establishment of an ASEAN human rights body.

Thus, in 2009, the ASEAN established the ASEAN Intergovernmental Commission on Human Rights (AICHR) to further promote and protect 634 human rights and fundamental freedoms by ASEAN member States. It consists of ten representatives, one from each Member State, and meets twice a year. Since its inception, the Commission has held a number of meetings and conferences on human rights topics.

In November 2012, ASEAN members unanimously adopted the ASEAN 635 a non-binding legal instrument that has Human Rights Declaration, been described as “a roadmap for the regional human rights development” 636 for the roughly 600 million people living in South East Asia. The first articles of the Declaration state that “[e]very person is entitled to the rights and freedoms set forth herein,” and place an emphasis on “the rights of women, children, the elderly, persons with disabilities, migrant workers,

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and vulnerable and marginalized groups.” The Declaration also reaffirms the civil and political rights as well as the economic, social, and cultural 638 rights contained in the Universal Declaration of Human Rights.

As far as people living with HIV/AIDS are concerned, one of the most important rights contained in the Declaration is Article 29: “ASEAN Member States shall create a positive environment in overcoming stigma, silence, denial and discrimination in the prevention, treatment, care and support of people suffering from communicable diseases, including HIV/ 639 Article 29 marks a major development in securing the rights AIDS”. of those suffering from HIV/AIDS as it is the only provision in a major human rights instrument to specifically address the issue.

Although the ASEAN’s human rights system does not yet include a Commission or Court to receive and adjudicate complaints, the Declaration is a first important step towards the building on a regional human rights regime.

Although ASEAN became a full-fledged international organization only in 2008, and adopted the ASEAN Human Rights Declaration only in 2012, the HIV/AIDS pandemic has been on the ASEAN agenda since the early 1990s. In 1992, with the assistance of the ASEAN Secretariat and the World Health Organization, ASEAN members launched the Task Force on AIDS (ATFOA), “the first ASEAN Regional Program on HIV/ 630 AIDS Prevention and Control.” The Task Force’s primary functions are collecting information, collaborating with stakeholders, developing reports on its findings, and presenting these reports to the ASEAN Health Ministers Meeting and the Senior Officials Meeting on Health 641 Notably, the Task Force does not publicly release the Development. information it collects or the findings of its studies, as it reports solely to 642 organs of ASEAN.

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The Task Force later developed a “Medium Term Work Programme” 643 The Work Programme identified with the assistance of UNAIDS. priorities for regional cooperation while also promoting “a range of programs and activities aimed at strengthening collaboration among ASEAN member countries in combating HIV/AIDS. These programs and activities included collaborating with non-health sectors, such as labour and education, identifying population movements, multi-sectoral collaboration on youth interventions, assessing family and community support systems, improving HIV surveillance, and involving Islamic religious leaders. Subsequent programs and activities have continued this 644 work while expanding upon the ATFOA’s mandate.

Over the years, ASEAN members have adopted several formal documents at their summits that specifically address the issue of HIV/ AIDS. For instance, in November 2001, the 7th ASEAN Summit adopted a declaration on HIV/AIDS that reaffirmed the Community’s commitment 645 in fighting the disease. It called on the heads of government of ASEAN Member States to lead the fight against HIV/AIDS by promoting the rights of those afflicted with the disease and collaborating on regional activities to combat its spread. The declaration also created the ASEAN Work Programme of HIV/AIDS to foster cooperation on accomplishing the regional activities 646 in support of national programs and joint regional actions.

In January 2007, at the ASEAN’s 12th Summit, ASEAN Member States 647 These commitments made “additional commitments” on HIV/AIDS. included prioritizing and cooperating on HIV policies and programs, addressing vulnerable populations like women and children, halting the spread of the disease through reproductive health services and education programs, and enacting legislation to protect those living with HIV/AIDS.

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In November 2011, ASEAN issued a “Declaration of Commitment” titled “Getting to Zero New HIV Infections, Zero Discrimination, Zero 648 It set forth certain goals in fighting the HIV/ AIDS-Related Deaths.”

AIDS epidemic, including reducing transmission of HIV through sexual intercourse and intravenous drug use by fifty percent by 2015, eliminating new HIV infections among children by 2015, and reducing tuberculosis deaths among people living with HIV by 50 percent. It also emphasized prevention strategies, testing, and access to timely and effective antiretroviral treatment while promoting the dignity and human rights of those living with the disease.

In September 2016, ASEAN issued another Declaration of Commitment on HIV/AIDS titled “Fast-Tracking and Sustaining HIV 649 This and AIDS Responses to End the AIDS Epidemic by 2030.” declaration resolved to “scale up and strengthen the coverage, reach and quality of a continuum of comprehensive integrated packages 650 It of prevention, testing, treatment, care and support services.” also pledged to ensure the achievement of the “90-90-90 treatment targets” goal, adopted as part of a United National Political Declaration on HIV and AIDS. The goals of these treatment targets were “90% of people (children, adolescents and adults) living with HIV know their status, 90% of people living with HIV who know their status are receiving treatment, and 90% of people on treatment have suppressed 651 Further, the declaration sought to sustain viral loads” by 2020.

ASEAN’s response to the HIV/AIDS pandemic by maintaining political leadership on the issue at regional, national, and local levels. Lastly, it called for expanding efforts to reduce stigma and discrimination towards affected populations and strengthening the capacity of local and national governments to conduct assessments and analyze information concerning the response to the HIV/AIDS pandemic.

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At the Regional Level

V. THE ARAB WORLD HUMAN RIGHTS SYSTEM The League of Arab States (also known as the Arab League) is a regional organization founded in 1945 bringing together States in North Africa and the Middle-East whose peoples are mainly Arabic speaking or where Arabic 652 653 is an official language. Currently it has 22 members. The governing body of the League, known as the Council, is comprised of the Head of State of the members or their representatives. Within the Council, each member has one vote and decisions are taken by majority. However, decisions of the Council are binding only on members who voted in favor, significantly limiting the law-making capacity of the organization.

In 1994, the League adopted the Arab Charter of Human Rights, a treaty echoing essentially the same rights as those embodied in the other international and regional human rights instruments, but with several deficiencies, particularly on women’s rights, and lacking any effective human 654 rights enforcement mechanism. All the Charter provided for was an Expert Committee, comprised of seven independent members, to receive periodic reports from States parties, but no individual complaints mechanism.

The 1994 Arab Charter never received any ratification and never entered into force. Arab States felt very little pressure, internally and externally, to ratify it. However, following the passage of the Arab Charter, the increasing criticism of its deficiencies by experts, NGO’s, academics and others, inside and outside the region, put pressure on Arab governments at least to amend the Charter. This led to the adoption on 23 May 2004 at the Arab Summit 655 in Tunisia of the Revised Arab Charter of Human Rights, which entered into force on 15 March 2008. To date it has been ratified by 13 of the 22 656 members of the League.

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The Revised Charter mirrors the main human rights instruments existing at the global level. As far as PLWHA are concerned, it provides some of the basic rights contained in more established human rights instruments, including the right to the “highest attainable standard of physical and mental 657 health” and the right to certain “basic health-care services.”

The Revised Charter provided for the creation of an Arab Human Rights Committee, composed of seven independent members, to receive and review State reports, to be submitted every three years, on steps taken to implement the rights contained in the Charter, and make 658 However, the Committee could not recommendations as appropriate. consider individual complaints or petitions.

The widespread unrest that has rocked the Arab world from December 2010 through 2012, called the ‘Arab Spring’, induced Arab governments to consider the creation of an Arab Court of Human Rights with jurisdiction over the 2004 Revised Charter as a concession to internal pressure from their populations as well as international pressure. The Statute of the Arab Court of Human Rights was adopted by the Arab League Council 659 on 7 September 2014. The Statute is supposed to enter into force after ratification of seven member States of the Arab League. So far, only Saudi 660 Arabia has ratified it.

The Court is supposed to be composed of seven independent judges, even though guarantees for their actual independence are weak. If it comes into being, it will be headquartered in Manama, Bahrain. The subject-matter jurisdiction is the revised Charter as well as any other 661 Like all human rights bodies, recourse ‘Arab human rights treaty’. to the Arab Court is contingent upon exhaustion of domestic remedies.

However, and this is the main flaw, its access is severely limited. Cases can be brought before the Court only by States party “whose citizen claims to

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be a victim of a human rights violation …, provided that both the applicant State and the respondent State are party to the Court Statute, or they have accepted the jurisdiction of the Court”, or “by one or more NGOs that are accredited and working in the field of human rights in the State whose subject claims to be a victim of a human rights violation”, and the State in 662 question has accepted this possibility by a specific declaration.

The drafting of the Statute was an extremely opaque process that excluded civil society. The very limited access to the Court, coupled with the absence of any mechanism to enforce its decisions, and the choice of Bahrain as seat of the Court, a country that used a heavy hand to put down Arab Spring protests in February 2011, makes all observers skeptical 663 The fact that the about the possibility it will ever enter into force. only Arab State to ratify it is so far is Saudi Arabia, an ultra-conservative kingdom hardly known for its enthusiasm for international human rights standards and its enforcement mechanisms, adds to the skepticism.

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ANNEXES ANNEX A - LIST OF ABBREVIATIONS

AICHR

ASEAN Intergovernmental Commission on Human Rights

AIDS

Acquired Immunodeficiency Syndrome

ART

Antiretroviral Therapy

ASEAN

Association of Southeast Asian Nations

ATFOA

Task Force on AIDS

AU

African Union

CAT

Convention Against Torture

CCPR

Human Rights Committee

CED

Committee on Enforced Disappearances

CEDAW

Convention on the Elimination of All Forms of Discrimination Against Women

CERD

Committee on the Elimination of Racial Discrimination

CESCR

Committee on Economic, Social and Cultural Rights

CMW

Committee on Migrant Workers

CRC

Convention on the Rights of the Child

CRPD

Convention on the Rights of Persons with Disabilities

DRC

Democratic Republic of Congo

ECHR

European Convention on Human Rights and Fundamental Freedoms

ECtHR

European Court of Human Rights

ICCPR

International Covenant on Civil and Political Rights

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ICERD

International Convention on the Elimination of Racial Discrimination

ICESCR

International Covenant on Economic, Social, and Cultural Rights

ICRMW

International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families

ISSS

Salvadorian Social Security Institute

ITP

Idiopathic Thrombocytopenic Purpura

NGOs

Non-Governmental Organizations

OAS

Organization of American States

OASTS

Organization of American States Treaty Series

OAU

Organization of African Unity

OHCHR

Office of the High Commissioner for Human Rights

OPCAT

Optional Protocol to the Convention against Torture

PLHIV

People Living with HIV

PLWHA

People living with HIV/AIDS

SPT

Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment

TBC

Tuberculosis

UDHR

Universal Declaration of Human Rights

UNAIDS

United Nations Joint Programme on HIV/AIDS

UNTS

United Nations Treaty Series

WHO

World Health Organization

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ANNEXES ANNEX B - DECISIONS OF INTERNATIONAL HUMAN RIGHTS BODIES AND COURTS Human Rights Committee Toonen v. Australia, U.N. Human Rights Committee, Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992 (Mar. 31, 1994).

Morales Tornel et al. v. Spain, U.N. Human Rights Committee, Communication No. 1473/2006, U.N. Doc. CCPR/C/95/D/1473/2006 (Apr. 24, 2009).

McCallum v. South Africa, U.N. Human Rights Committee, Communication No. 1818/2008, U.N. Doc. CCPR/C/100/D/1818/2008 (Nov. 2, 2010).

Nenova et al. v. Libya and A.M.H. El Houjouj Jum’a et al. v. Libya, U.N. Human Rights Committee, Communication No. 1958/2010, U.N. Doc. CCPR/ C/111/D/1958/2010 (Aug. 25, 2012).

Chiti v. Zambia, U.N. Human Rights Committee, Communication No. 1303/2004, U.N. Doc. CCPR/C/105/D/1303/2004 (Aug. 28, 2012).

Committee against Torture L.J.R. v. Australia, U.N. Committee against Torture, Communication No. 316/2007, U.N. Doc. CAT/C/41/D/316/2007 (Nov. 26, 2008).

Njamba and Balikosa v. Sweden, U.N. Committee against Torture, Communication No. 332/2007, U.N. Doc. CAT/C/44/D/322/2007 (May 14, 2010).

Inter-American Commission on Human Rights TGGL v. Ecuador, Inter-Am. Comm’n H.R., Petition No. 663-06, Admissibility, Report No. 89/09 (Aug. 7, 2009).

Jorge Odir Miranda Cortez et al. v. El Salvador, Inter-Am. Comm’n H.R., Case No. 12.249, Merits, Report No. 27/09, OEA/Ser.L/V/II. Doc. 51 (Mar. 20, 2009).

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J.S.C.H. and M.G.S. v. Mexico, Inter-Am. Comm’n H.R, Case No. 12.689, Merits, Report No. 80/15, OEA/Ser.L/V/II.156 Doc. 33 (Oct. 28, 2015). Ángel Alberto Duque v. Colombia, Inter-Am. Comm’n H.R., Petition No. 12.841, Merits, Report No. 5/14 (Apr. 2, 2014).

F.S. v. Chile, Inter-Am. Comm’n H.R., Petition 112-09, Admissibility, Report No. 52/14, OEA/Ser.L/V/II.151 Doc. 17 (Jul. 21, 2014).

Cuscul Pivaral et al. v. Guatemala, Inter-Am. Comm’n H.R., Case No. 12.484, Merits, Report No. 2/16, OEA/Ser.L/V/II.157 (Apr. 13, 2016).

Inter-American Court of Human Rights Gonzales Lluy et al. v. Ecuador, Inter-Am. Ct. H.R., Judgment, Preliminary Objections, Merits, Reparations, and Costs, Ser. C, No. 102/13 (Sept. 1, 2015).

Duque v. Colombia, Inter-Am. Ct. H.R., Judgment, Preliminary Objections, Merits, Reparations and Costs, Ser. C, No. 310 (Feb. 26, 2016).

Cuscul Pivaral et al. v. Guatemala, Inter-Am. Ct. H.R., Judgment, Preliminary Objections, Merits, Reparations, and Costs, Ser. C, No. 359 (Aug. 23, 2018).

European Court of Human Rights X. v. France, Eur. Ct. H.R., Case No. 18020/91 (Mar. 31, 1992).

D v. the United Kingdom, Eur. Ct. H.R., Case No. 30240/96 (May 2, 1997).

N v. the United Kingdom, Eur. Ct. H.R., Case No. 26565/05 (May 27, 2008).

Armonas v. Lithuania, Eur. Ct. H.R., Case No. 36919/02 (Nov. 25, 2008).

A.B. v. Russia, Eur. Ct. H.R., Case No. 1439/06 (Oct. 14, 2010).

Kiyutin v. Russia, Eur. Ct. H.R., Case No. 2700/10 (Mar. 10, 2011).

E.A. v. Russia, Eur. Ct. H.R., Case No. 44187/04 (May 23, 2013).

I.B. v. Greece, Eur. Ct. H.R., Case No. 552/10 (Oct. 3, 2013).

Centre for Legal Resources on Behalf of Valentin Câmpeanu v. Romania, Eur. Ct. H.R., Case No. 47848/08 (Jul. 17, 2014).

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ANNEXES ANNEX C – GENERAL COMMENTS OF UN TREATY BODIES

Human Rights Committee General Comment No. 6: The Right to Life (Art. 6 of the International Covenant on Civil and Political Rights), 30 Apr. 1982, INT/CCPR/GEC/6630.

Committee on Economic, Social and Cultural Rights General Comment No. 4: The Right to Adequate Housing (Art. 11 (1) of the International Covenant on Economic, Social and Cultural Rights), 13 Dec. 1991, E/1992/23.

General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the International Covenant on Economic, Social and Cultural Rights), 11 Aug. 2000, E/C.12/2000/4.

General Comment No. 15: The Right to Water (Arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), 20 Jan. 2003, E/C.12/2002/11.

General Comment No. 18: The Right to Work (Art. 6 of the International Covenant on Economic, Social and Cultural Rights), 6 Feb. 2006, E/C.12/ GC/18.

General Comment No. 19: The Right to Social Security (Art. 9 of the International Covenant on Economic, Social and Cultural Rights), 4 Feb. 2008, E/C.12/GC/19.

General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights (Art. 2, paragraph 2, of the International Covenant on Economic, Social and Cultural Rights), 2 July 2009, E/C.12/GC/20.

General Comment No. 22: The Right to Sexual and Reproductive Health (Art. 12 of the International Covenant on Economic, Social and Cultural Rights), 2 May 2016, E/C.12/GC/22.

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Committee on the Rights of Persons with Disabilities General Comment No. 3: Women and Girls with Disabilities (Art. 6 of the Convention on the Rights of Persons with Disabilities), 2 Sept. 2016, CRPD/C/GC/3.

General Comment No. 4: Right to Inclusive Education (Art. 24 of the Convention on the Rights of Persons with Disabilities), 2 Sept. 2016, CRPD/C/GC/4.

Committee on the Elimination of Discrimination Against Women CEDAW General Recommendation No. 24: Women and Health (Art. 12 of the Convention on the Elimination of All Forms of Discrimination Against Women), 2 Feb. 1999, A/54/38/Rev.1, chap. I. General Recommendation No. 26: Women Migrant Workers, 5 Dec. 2008, CEDAW/C/2009/WP.1/R General Recommendation No. 27: Older Women and Protection of their Human Rights, 16 Dec. 2010, CEDAW/C/GC/27.

General Recommendation No. 28: The Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, 16 Dec. 2010, CEDAW/C/GC/28.

General Recommendation No. 30: Women in Conflict Prevention, Conflict and Post-Conflict Situations, 1 Nov. 2013, CEDAW/C/GC/30.

Joint General Recommendation/General Comment No. 31 of the Committee on the Elimination of Discrimination against Women and No. 18 of the Committee on the Rights of the Child: Harmful Practices, 14 Nov. 2014, CEDAW/C/GC/31/CRC/C/GC/18.

General Recommendation No. 33: Women’s Access to Justice, 3 Aug. 2015, CEDAW/C/GC/33.

General Recommendation No. 34: The Rights of Rural Women, 7 Mar. 2016, CEDAW/C/GC/34.

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Committee on the Rights of the Child General Comment No. 3: HIV/AIDS and the Rights of the Child, 17 Mar. 2003, CRC/GC/2003/3.

General Comment No. 6: Treatment of Unaccompanied and Separated Children Outside their Country of Origin, 1 Sept. 2005, CRC/ GC/2005/6.

General Comment No. 7: Implementing Child Rights in Early Childhood, 1 Nov. 2005, CRC/C/GC/7.

General Comment No. 9: The Rights of Children with Disabilities, 27 Feb. 2007, CRC/C/GC/9.

General Comment No. 10: Children’s Rights in Juvenile Justice, 25 Apr. 2007, CRC/C/GC/10.

General Comment No. 11: Indigenous Children and their Rights under the Convention [on the Rights of the Child], 12 Feb. 2009, CRC/C/ GC/11.

General Comment No. 13: The Right of the Child to Freedom from all Forms of Violence, 18 Apr. 2011, CRC/C/GC/13.

General Comment No. 14: The Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (Art. 3, ¶ 1 of the Convention on the Rights of the Child), 29 May 2013, CRC/C/GC/14.

General Comment No. 15: The Right of the Child to the Enjoyment of the Highest Attainable Standard of Health (Art. 24 of the Convention on the Rights of the Child), 17 Apr. 2013, CRC/C/GC/15.

Joint General Recommendation/General Comment No. 31 of the Committee on the Elimination of Discrimination against Women and No. 18 of the Committee on the Rights of the Child: Harmful Practices, 14 Nov. 2014, CEDAW/C/GC/31/CRC/C/GC/18.

General Comment No. 20: The Implementation of the Rights of the Child During Adolescence, 6 Dec. 2016, CRC/C/GC/20.

Committee on Migrant Workers General Comment No. 2: The Rights of Migrant Workers in an Irregular Situation and Members of Their Families, 28 Aug. 2013, CMW/C/GC/2.

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ANNEXES ANNEX D - TABLE OF TREATIES AND OTHER LEGAL INSTRUMENTS

GLOBAL LEVEL (UNITED NATIONS) Universal Declaration of Human Rights (UDHR), 10 Dec. 1948, General Assembly Res. 217 A (III).

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Dec. 21, 1965, 660 United Nations Treaty Series (UNTS) 195, 212.

International Covenant on Economic, Social and Cultural Rights (ICESCR), Dec. 16, 1966, 993 UNTS 3.

International Covenant on Civil and Political Rights (ICCPR), Dec. 16, 1966, 999 UNTS 171.

Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR OP), Dec. 16, 1966, 999 UNTS 171.

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Dec. 18, 1979, 1249 UNTS 13.

Convention Against Torture (CAT), Dec. 10, 1984, 1465 UNTS 85.

Optional Protocol to the Convention against Torture (OPCAT), Dec. 18, 2002, 2375 UNTS 237.

Convention on the Rights of the Child (CRC), Nov. 20, 1989, 1577 UNTS 3.

International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW), Dec. 18, 1990, 2220 UNTS 93.

International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (CRPD), Dec. 13, 2006, General Assembly Resolution 61/106, Annex I, U.N. GAOR, 61st Sess., Supp. No. 49, at 65, U.N. Doc. A/61/49 (Dec. 13, 2006).

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REGIONAL LEVEL Americas American Declaration of the Rights and Duties of Man, Organization of American States, Res. XXX adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System OEA/Ser L V/ II.82 Doc 6 Rev 1 at 17 (1992).

American Convention on Human Rights (Pact of San José), Nov. 22, 1969, Organization of American States Treaty Series (OASTS) No. 36, 1144 UNTS 123.

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights (Protocol of San Salvador), Nov. 17, 1988, OASTS No. 69.

Europe European Convention of Human Rights and Fundamental Freedoms (ECHR), Nov. 4, 1950, ETS No. 5; 213 UNTS 221.

European Social Charter of 1996, 3 May 1996, ETS No. 163, 3 May 1996.

Africa African Charter on Human and Peoples’ Rights (Banjul Charter), June 27, 1981, 1520 UNTS 217.

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), July 21, 2003, African Union, Assembly of the Union, 2nd Ordinary Session.

Arab League (Revised) Arab Charter on Human Rights, May 22, 2004, reprinted in 12 Int’l Hum. Rts. Rep. 893 (2005).

South East Asia Association of Southeast Asian Nations (ASEAN) Human Rights Declaration, Nov. 18. 2012.

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ANNEXES ANNEX E – OTHER MANUALS ON THE RIGHTS OF PLWHA

American Civil Liberties Union, HIV and Your Civil Rights Brochure.

American Bar Association, HIV/AIDS Legal Assessment Tool Assessment Methodology Manual, 2012.

Austrian Development Agency, Human Rights Manual Guidelines for Implementing a Human Rights Based Approach in ADC, 2010.

International Committee on the Rights of Sex Workers in Europe, Training Manual on Sex Work, HIV and Human Rights, 2015.

International HIV/AIDS Alliance, HIV and Human Rights Practice Guide, 2014.

International Labour Organization, HIV Aids and Labor Rights, A Handbook for Judges and Legal Professionals, 2015.

Joint United Nations Programme on HIV/AIDS (UNAIDS), Judging the epidemic A judicial handbook on HIV, human rights and the law, 2013.

United Nations Development Programme (UNDP), Engaging with Parliamentarians on HIV and the Law: A Practical Manual for UNDP Country Office and Regional Staff, 2014.

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UNDP, Southern Africa Litigation Centre, Litigation Manual Series, Protecting Rights: Litigating Cases of HIV Testing and Confidentiality of Status, 2012.

UNDP, South Asia Regional Advocacy Framework and Resource Guide: HIV, Human Rights and Sexual Orientation and Gender Identity, 2015.

UNDP, National Dialogues on HIV and the Law: A Practical Manual for UNDP Regional HIV Teams and Country Offices, 2014.

United States Department of Labor, Employment and Living with HIV/AIDS: A Resource Guide, 2012.

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ANNEXES ANNEX F - INTERNATIONAL HUMAN RIGHTS CLINICS AND USEFUL DIRECTORIES

If you are looking for help to access international human rights bodies, courts and procedures, you might find these directories helpful.

This is a directory of international human rights organizations around the world: http://www.humanrightscolumbia.org/sites/ default/files/docs/education_human_rights_orgs_2017_06.pdf

AIDS free world https://aidsfreeworld.org/legal-consultation-center provides both a world-wide directory https://static1.squarespace.com/static/555cbacfe4b0e33efddfe519/ t/5ac38a61562fa73cd89f2544/1522764386930/ LegalResourceManual_July6.pdf

and an African directory https://static1.squarespace.com/static/555cbacfe4b0e33efddfe519/t/ 5a27b825ec212d9052734f86/1512552489611/LegalResourceManualAfrica-WEB-REV-2017-12-05+%281%29.pdf

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The following organizations are ready to assist PLWHA accessing international human rights bodies, courts and procedures.

For help bringing complaints before international human rights bodies: International Human Rights Center Loyola Law School, Los Angeles 919 Albany street Los Angeles, California, 90015 USA lls.inthrclinic@gmail.com Program in International Human Rights Law Indiana University McKinney School of Law 530 West New York Street Indianapolis, Indiana, 46202 USA gedwards@indiana.edu

For help in Europe and Italy Associazione Luca Coscioni per la libertĂ di ricerca scientifica Luca Coscioni Association for the Freedom of Scientific Research Via di S. Basilio, 64, 00187 Roma Italy info@associazionelucacoscioni.it

For help in North, Central, South America and the Caribbean: Centro por la Justicia y el Derecho Internacional Center for Justice and International Law (CEJIL) 1630 Connecticut Ave., NW, Suite 401 Washington, D.C., 20009-1053 USA washington@cejil.org

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For help in Ecuador and Latin America: Clínica de Derecho Internacional y Humanitario Universidad San Francisco de Quito Campus Cumbayá Diego de Robles s/n, Quito 170901 Ecuador fsimon@usfq.edu.ec.

For help in the United States: Human Rights at Home Clinic University of Massachusetts School of Law 333 Faunce Corner Rd Dartmouth, Massachusetts, 02747 USA cliniccoordinator@umassd.edu

For help in South Africa and Africa in general: Southern Africa Litigation Centre President Place 1 Hood Avenue/ 148 Jan Smuts Avenue Rosebank, Johannesburg 2196 South Africa Enquiries@salc.org.za

For help in Jamaica: Jamaicans for Justice 2 Fagan Avenue, Grant’s Pen Kingston Jamaica admin@jamaicansforjustice.org

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173

endnotes PREFACE 1.

https://www.lls.edu/academics/experientiallearning/clinics/internationalhumanrightsclinic/.

2.

https://www.lmu.edu/

3.

For more basic information on HIV and AIDS, please see the following resources: UNAIDS, HIV and AIDS, Basic Facts, https://www.unaids.org/en/frequently-asked-questions-about-hiv-andaids#what-is-aids; Center for Disease Control, About HIV/AIDS, https://www.cdc.gov/hiv/basics/ whatishiv.html; World Health Organization (WHO), HIV/AIDS Fact Sheet, https://www.who.int/ news-room/fact-sheets/detail/hiv-aids.

4. A retrovirus is a virus that is composed not of DNA but of RNA. Retroviruses have an enzyme, called reverse transcriptase, which gives them the unique property of transcribing their RNA into DNA after entering a cell. The retroviral DNA can then integrate into the chromosomal DNA of the host cell, to be expressed there. https://www.medicinenet.com/script/main/art. asp?articlekey=5344.

5. https://www.medicinenet.com/script/main/art.asp?articlekey=3273 6. https://www.medicinenet.com/script/main/art.asp?articlekey=4751 7.

UN General Assembly, Political Declaration on HIV/AIDS: Intensifying our Efforts to Eliminate HIV/AIDS, A/RES/65/277 (June 10, 2011), www.unaids.org/en/media/unaids/contentassets/ documents/document/2011/06/20110610_UN_A-RES-65-277_en.pdf

8.

UNAIDS, Global HIV & AIDS Statistics — 2019 Fact Sheet, https://www.unaids.org/en/resources/ fact-sheet.

9.

Ibid.

10. Ibid.

11.

Stigma is the process of devaluating an individual based on certain attributes deemed discrediting or unworthy by others. UNAIDS, Confronting Discrimination Overcoming HIV-Related Stigma and Discrimination in Healthcare Settings and Beyond (2017), https://www.unaids.org/sites/default/files/media_asset/confronting-discrimination_en.pdf; UNAIDS, HIV – Related Stigma, Discrimination, and Human Rights Violations: Case Studies of Successful Program (April 2005), http://data.unaids.org/publications/irc-pub06/jc999humrightsviol_en.pdf.

12. The People Living with HIV Stigma Index, a standardized tool developed by UNAIDS and various non-governmental organizations advocating for the rights of People Living with HIV, mapping more than 100 countries and over 100.000 persons, to gather evidence on how stigma and discrimination impacts their lives, demonstrates that stigma and discrimination are widespread.

Global Network of People Living with HIV/AIDS, International Community of Women Living with HIV/AIDS, UNAIDS and International Planned Parenthood Federation, Stigma Index, https://www. stigmaindex.org/about-the-stigma-index/what-is-the-people-living-with-hiv-stigma-index/.

13. Ban Ki-Moon, “The Stigma Factor”, The Washington Times, (Aug. 6, 2008), www.washingtontimes.com/news/2008/aug/06/the-stigma-factor/.

14. Ibid.

15. Gruskin S. et al., “Access to Justice: Evaluating Law, Health and Human Rights Programmes in Kenya”, Journal of the International AIDS Society, Vol. 16 (Suppl. 2), 2013, http://www.jiasociety.org/index.php/jias/article/view/18726.

WHAT HUMAN RIGHTS DO PEOPLE LIVING WITH AND AFFECTED BY HIV/AIDS HAVE? WHAT ARE THEY AND WHERE ARE THEY WRITTEN? 16. Universal Declaration of Human Rights (UDHR), 10 December 1948, General Assembly Res. 217 A (III), available at https://www.ohchr.org/EN/UDHR/Pages/UDHRIndex.aspx.

17. International Covenant on Civil and Political Rights (ICCPR), 16 December 1966, 999 UNTS 171, available at https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx.

18. International Covenant on Economic, Social and Cultural Rights (ICESCR), 16 December 1966, 993 UNTS 3, available at https://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx.

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19. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 21 December 1965, 660 United Nations Treaty Series (UNTS) 195, 212, available at https://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx.

20. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 18 December 1979, 1249 UNTS 13, available at https://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx.

21. Convention Against Torture (CAT), 10 December 1984, 1465 UNTS 85, available at https://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx.

22. Convention on the Rights of the Child (CRC), 20 November 1989, 1577 UNTS 3, available at https://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx.

23. International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW), 18 December 1990, 2220 UNTS 93, available at https://www.ohchr.org/ EN/ProfessionalInterest/Pages/CMW.aspx.

24. International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (CRPD), 13 December 2006, General Assembly Resolution 61/106, Annex I, U.N. GAOR, 61st Sess., Supp. No. 49, at 65, U.N. Doc. A/61/49 (Dec. 13, 2006), available at https://www. ohchr.org/EN/HRBodies/CRPD/Pages/ConventionRightsPersonsWithDisabilities.aspx.

25. Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, (ECHR), 4 November 1950, European Treaty Series (ETS) No. 5; 213 UNTS 221, available at: https://www.echr.coe.int/Documents/Convention_ENG.pdf.

26. Organization of American States (OAS), American Declaration of the Rights and Duties of Man, Resolution XXX, adopted by the Ninth International Conference of American States on 2 May 1948, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser L V/II.82 Doc 6 Rev 1 at 17 (1992), available at: https://www.cidh.oas.org/Basicos/English/Basic2.

American%20Declaration.htm.

27. OAS, American Convention on Human Rights, “Pact of San José”, 22 November 1969, Organization of American States Treaty Series (OASTS) No. 36, 1144 UNTS 123, available at: http://www.oas.org/ dil/treaties_B-32_American_Convention_on_Human_Rights.htm.

28. OAS, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, “Protocol of San Salvador”, 17 November 1988, OASTS No. 69, available at: http://www.oas.org/juridico/english/treaties/a-52.html.

29. Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights, “Banjul Charter”, 27 June 1981, 1520 UNTS 217, available at: https://au.int/en/treaties/african-charterhuman-and-peoples-rights.

30. African Union (AU), Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, “Maputo Protocol”, 21 July 2003, available at: https://www.un.org/en/africa/ osaa/pdf/au/protocol_rights_women_africa_2003.pdf.

31. League of Arab States, (Revised) Arab Charter on Human Rights, 22 May 2004, reprinted in 12 Int’l Hum. Rts. Rep. 893 (2005), available at: http://hrlibrary.umn.edu/instree/loas2005.html.

32. Association of Southeast Asian Nations (ASEAN), ASEAN Human Rights Declaration, 18 November 2012, available at: https://asean.org/asean-human-rights-declaration/.

33. Council of Europe, Revised European Social Charter, 3 May 1996, ETS No. 163, available at: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/163.

34. ICCPR, Art. 2(2).

35. ICESCR, Art. 2(1).

HUMAN RIGHTS PARTICULARLY RELEVANT TO PLWHA 36. David Kretzmer, “State of Emergency”, Max Planck Encyclopedia of International Law (last updated Feb. 2008).

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WHAT INTERNATIONAL MECHANISMS ARE AVAILABLE TO PLWHA? AND WHAT IS THEIR JURISPRUDENCE? 37. However, under Article 2.3 of the Covenant on Economic, Social and Cultural Rights, “Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals”.

AT THE GLOBAL LEVEL (UNITED NATIONS) TREATY BODIES GENERAL COMMENTS 38. Human Rights Committee, General Comment No. 6: The Right to Life (Art. 6 of the International Covenant on Civil and Political Rights), 30 Apr. 1982, INT/CCPR/GEC/6630.

39. Id. at ¶ 26.

40. Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights (Art. 2, ¶ 2, of the International Covenant on Economic, Social and Cultural Rights), 2 July 2009, E/C.12/GC/20.

41. Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security (Art. 9 of the International Covenant on Economic, Social and Cultural Rights),

4 February 2008, E/C.12/GC/19.

42. Id. at ¶ 23.

43. Id. 44. Committee on Economic, Social and Cultural Rights, General Comment No. 18: The Right to Work (Art. 6 of the International Covenant on Economic, Social and Cultural Rights), 6 February 2006, E/C.12/GC/18.

45. Committee on Economic, Social and Cultural Rights, General Comment No. 15: The Right to Water (Arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), 20 January 2003, E/C.12/2002/11.

46. Id. 47. Committee on Economic, Social and Cultural Rights, General Comment No. 4: The Right to Adequate Housing (Art. 11.1 of the International Covenant on Economic, Social and Cultural Rights), 13 December 1991, E/1992/23.

48. Id. 49. Committee on Economic, Social and Cultural Rights, General Comment No. 22: The Right to Sexual and Reproductive Health (Art. 12 of the International Covenant on Economic, Social and Cultural Rights), 2 May 2016, E/C.12/GC/22.

50. Id. 51.

Id.

52. Id. 53. Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the International Covenant on Economic, Social and Cultural Rights), 11 August 2000, E/C.12/2000/4.

54. Id. 55. Id. 56. Committee on the Rights of Persons with Disabilities, General Comment No. 33, Women and Girls with Disabilities (Art. 6 of the Convention on the Rights of Persons with Disabilities), 2 September 2016, CRPD/C/GC/3.

57. Id. 58. UN General Assembly, Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, A/RES/34/180.

59. “General Recommendation” is the nomenclature used by the Committee on the Elimination of Discrimination against Women instead of “General Comment”. The Committee on the Elimination of Discrimination against Women’s General Recommendations are synonymous to General Comments by other treaty bodies.

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60. Committee on the Elimination of Discrimination Against Women, General Recommendation No. 34 on the Rights of Rural Women, 7 March 2016, CEDAW/C/GC/34.

61. Id. 62. Committee on the Elimination of Discrimination Against Women, General Recommendation No. 30: Women in Conflict Prevention, Conflict and Post-Conflict Situations, 1 November 2013, CEDAW/C/GC/30.

63. Id. 64. Committee on the Elimination of Discrimination Against Women, General Recommendation No. 28: The Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, 16 December 2010, CEDAW/C/GC/28.

65. Committee on the Elimination of Discrimination Against Women, General Recommendation No. 27: Older Women and Protection of their Human Rights, 16 December 2010, CEDAW/C/GC/27.

66. Committee on the Elimination of Discrimination Against Women, General Recommendation No. 26: Women Migrant Workers, 5 December 2008, CEDAW/C/2009/WP.1/R 67. Committee on the Elimination of Discrimination Against Women, General Recommendation No. 24: Article 12 of the Convention (Women and Health), 2 February 1999, A/54/38/Rev.1, chap. I. 68. Id. 69. Committee on the Elimination of Discrimination Against Women, General Recommendation No. 15: Avoidance of Discrimination against Women in National Strategies for the Prevention and Control of Acquired Immunodeficiency Syndrome (AIDS), 1990, A/45/38.

70. Committee on the Elimination of Discrimination Against Women, Joint General Recommendation/ General Comment No. 31 of the Committee on the Elimination of Discrimination against Women and No. 18 of the Committee on the Rights of the Child on Harmful Practices, 14 November 2014, CEDAW/C/GC/31/CRC/C/GC/18.

71. Id. 72. Id. 73. Committee on the Elimination of Discrimination Against Women, General Recommendation No. 33: Women’s Access to Justice, 3 August 2015, CEDAW/C/GC/33.

74. Committee on the Rights of the Child, General Comment No. 3: HIV/AIDS and the Rights of the Child, 17 March 2003, CRC/GC/2003/3.

75. Id. 76. Id. 77. Id. 78. Id. 79. Id. 80. Id. 81. Id. 82. Id. 83. Id. 84. Id. 85. Id. 86. Id. 87. Id. 88. Id. 89. Id. 90. Committee on the Rights of the Child, General Comment No. 11: Indigenous Children and their Rights under the Convention [on the Rights of the Child], 12 February 2009, CRC/C/GC/11.

91. Committee on the Rights of the Child, General Comment No. 9: The Rights of Children with Disabilities, 27 February 2007, CRC/C/GC/9.

92. Id.

177

93. Committee on the Rights of the Child, General Comment No. 7: Implementing Child Rights in Early Childhood, 1 November 2005, CRC/C/GC/7.

94. Id. 95. Id. 96. Id. 97. Committee on the Rights of the Child, General Comment No. 6: Treatment of Unaccompanied and Separated Children Outside their Country of Origin, 1 September 2005, CRC/GC/2005/6.

98. Id. 99. Committee on the Rights of the Child, General Comment No. 4: Adolescent Health and Development in the Context of the Convention on the Rights of the Child, July 2003, CRC/ GC/2003/41.

100. Id. 101. Id. 102. Id. 103. Id. 104. Id. 105. Committee on the Rights of the Child, General Comment No. 20: The Implementation of the Rights of the Child During Adolescence, 6 December 2016, CRC/C/GC/20.

106. Id. 107. Committee on the Rights of the Child, General Comment No. 15: The Right of the Child to the Enjoyment of the Highest Attainable Standard of Health (Art. 24 of the Convention on the Rights of the Child), 17 April 2013, CRC/C/GC/15.

108. Id. 109. Committee on the Rights of the Child, General Comment No. 14: The Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (Art. 3, Âś. 1 of the Convention on the Rights of the Child), 29 May 2013, CRC/C/GC/14.

110. Id. 111. Id. 112. Committee on the Elimination of Discrimination Against Women, Joint General Recommendation/ General Comment No. 31 of the Committee on the Elimination of Discrimination against Women and No. 18 of the Committee on the Rights of the Child on Harmful Practices, 14 November 2014, CEDAW/C/GC/31/CRC/C/GC/18.

113. Committee on the Rights of the Child, General Comment No. 10: Children’s Rights in Juvenile Justice, 25 April 2007, CRC/C/GC/10.

114. Id. 115. Committee on the Rights of the Child, General Comment No. 13: The Right of the Child to Freedom from All Forms of Violence, 18 April 2011, CRC/C/GC/13.

116. UN General Assembly, International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families, 18 December 1990, A/RES/45/158.

117. Committee on the Protection of the Rights of all Migrant Workers and Members of Their Families, General Comment No. 2: The Rights of Migrant Workers in an Irregular Situation and Members of Their Families, 28 August 2013, CMW/C/GC/2.

118. Id. 119. Id. 120. Committee on the Protection of the Rights of all Migrant Workers and Members of Their Families, General Comment No. 1: On Migrant Domestic Workers, 23 February 2011, CMW/C/GC/1.

121. Id.

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STATE PERIODIC REVIEW BY TREATY BODIES AND CONCLUDING OBSERVATIONS 122. Office of the High Commissioner for Human Rights, Monitoring the Core International Human Rights Treaties, available at http://www.ohchr.org/EN/HRBodies/Pages/WhatTBDo.aspx.

123. Human Rights Committee, Concluding observations on the fourth periodic report of the Sudan, 19 August 2014, CCPR/C/SDN/CO/4.

124. Human Rights Committee, Consideration of reports submitted by States parties under article 40 of the Covenant, 31 August 2012, CCPR/C/KEN/CO/3.

125. Human Rights Committee, Consideration of reports submitted by States parties under article 40 of the Covenant, 17 November 2011, CCPR/C/JAM/CO/3.

126. Human Rights Committee, Concluding observations on the initial periodic report of Malawi, 19 August 2014, CCPR/C/MWI/CO/1/Add.1.

127. Human Rights Committee, Consideration of reports submitted by States parties under article 40 of the Covenant, 17 November 2011, CCPR/C/JAM/CO/3 128. Human Rights Committee, Consideration of reports submitted by States parties under article 40 of the Covenant, 31 August 2012, CCPR/C/KEN/CO/3.

129. Id. 130. Id. 131. Human Rights Committee, Concluding observations on the fourth periodic report of Portugal, 23 November 2012, CCPR/C/PRT/CO/4.

132. Human Rights Committee, Concluding observations on the initial periodic report of Malawi.

19 August 2014, CCPR/C/MWI/CO/1/Add.1.

133. Id. at 7.

134. Human Rights Committee, Consideration of reports submitted by States parties under article 40 of the Covenant, 19 April 2012, CCPR/C/TKM/CO/1.

135. Id. 136. Id. 137. Committee on Economic, Social and Cultural Rights, Concluding observations on the second periodic report of China, including Hong Kong, China, and Macao, China, 13 June 2014, E/C.12/ CHN/CO/2.

138. Committee on Economic, Social and Cultural Rights, Concluding observations on the combined fourth to sixth periodic reports of Belarus, 13 December 2013, E/C.12/BLR/CO/4-6.

139. Committee on Economic, Social and Cultural Rights, Concluding observations on the second periodic report of China, including Hong Kong, China, and Macao, China, 13 June 2014, E/C.12/ CHN/CO/2.

140. Committee on Economic, Social and Cultural Rights, Concluding observations on the initial to third reports of the United Republic of Tanzania, adopted by the Committee at its forty-ninth session (12–30 November 2012), 13 December 2012, E/C.12/TZA/CO/1-3.

141. Committee on Economic, Social and Cultural Rights, Concluding observations on the initial report of Namibia, 23 March 2016, E/C.12/NAM/CO/1 142. Committee on Economic, Social and Cultural Rights, Concluding observations on the initial report of Namibia, 23 March 2016, E/C.12/NAM/CO/1; Committee on Economic, Social and Cultural Rights, Concluding observations on the initial report of Burundi, 16 October 2015, E/C.12/BDI/ CO/1; Committee on Economic, Social and Cultural Rights, Concluding observations on the third periodic report of the Bolivarian Republic of Venezuela, 7 July 2015, E/C.12/VEN/CO/3; Committee on Economic, Social and Cultural Rights, Concluding observations on the sixth periodic report of Ukraine, 13 June 2014, E/C.12/UKR/CO/6.

143. Committee on Economic, Social and Cultural Rights, Concluding observations on the initial report of Gabon, 27 December 2013, E/C.12/GAB/CO/1.

144. Committee on Economic, Social and Cultural Rights, Concluding observations on the initial report of Mauritania, adopted by the Committee at its forty-ninth session (12-30 November 2012), 10 December 2012, E/C.12/MRT/CO/1.

179

145. Committee on Economic, Social and Cultural Rights, Concluding observations on the second periodic report of China, including Hong Kong, China, and Macao, China, 13 June 2014, E/C.12/ CHN/CO/2; Committee on Economic, Social and Cultural Rights, Concluding observations on the combined fourth to sixth periodic reports of Belarus, 13 December 2013, E/C.12/BLR/CO/4-6.

146. Committee on Economic, Social and Cultural Rights, Concluding observations on the combined fourth and fifth reports of Bulgaria, adopted by the Committee at its forty-ninth session (12-30 November 2012), 11 December 2012, E/C.12/BGR/CO/4-5.

147. Committee on Economic, Social and Cultural Rights, Concluding observations on the combined third to fifth periodic reports of Romania, 9 December 2014, E/C.12/ROU/CO/3-5.

148. Committee on Economic, Social and Cultural Rights, Concluding observations on the combined second to fifth periodic reports of Kenya, 6 April 2016, E/C.12/KEN/CO/2-5.

149. Committee on Economic, Social and Cultural Rights, Concluding observations on the combined third and fourth periodic reports of Jamaica, adopted by the Committee at its fiftieth session (29 April–17 May 2013), 10 June 2013, E/C.12/JAM/CO/3-4.

150. Committee on Economic, Social and Cultural Rights, Concluding observations of the Committee on the third periodic report of Ecuador as approved by the Committee at its forty-ninth session (14–30 November 2012), 13 December 2012, E/C.12/ECU/CO/3; Committee on Economic, Social and Cultural Rights, Concluding observations on the initial report of Uganda, 8 July 2015, E/C.12/ UGA/CO/1.

151. Committee on Economic, Social and Cultural Rights, Concluding observations on the initial report of Uganda, 8 July 2015, E/C.12/UGA/CO/1.

152. Committee on Economic, Social and Cultural Rights, Concluding observations on the second periodic report of Lithuania, 24 June 2014, E/C.12/LTU/CO/2.

153. Committee on Economic, Social and Cultural Rights, Concluding observations on the initial report of Togo, adopted by the Committee at its fiftieth session (29 April–17 May 2013), 3 June 2013, E/C.12/TGO/CO/1.

154. Committee on Economic, Social and Cultural Rights, Consideration of reports submitted by States parties under articles 16 and 17 of the Covenant, 23 January 2012, E/C.12/CMR/CO/2-3.

155. Committee on Economic, Social and Cultural Rights, Concluding observations on the combined second to fifth periodic reports of Kenya, 6 April 2016, E/C.12/KEN/CO/2-5; Committee on Economic, Social and Cultural Rights, Concluding observations on the initial report of Burundi, 16 October 2015, E/C.12/BDI/CO/1; Committee on Economic, Social and Cultural Rights, Concluding observations on the third periodic report of the Bolivarian Republic of Venezuela, 7 July 2015, E/C.12/VEN/CO/3; Committee on Economic, Social and Cultural Rights, Concluding observations on the combined second periodic report of Serbia, 10 July 2014, E/C.12/SRB/CO/2; Committee on Economic, Social and Cultural Rights, Concluding observations on the sixth periodic report of Ukraine, 13 June 2014, E/C.12/UKR/CO/6; Committee on Economic, Social and Cultural Rights, Concluding observations on the combined fourth to sixth periodic reports of Belarus, 13 December 2013, E/C.12/BLR/CO/4-6; Committee on Economic, Social and Cultural Rights, Concluding observations on the initial report of Togo, adopted by the Committee at its fiftieth session (29 April–17 May 2013), 3 June 2013, E/C.12/TGO/CO/1; Committee on Economic, Social and Cultural Rights, Observations made in the absence of an initial report from the Congo and adopted by the Committee at its forty-ninth session (12–30 November 2012), 2 January 2013, E/C.12/COG/CO/1; Committee on Economic, Social and Cultural Rights, Concluding observations of the Committee on the third periodic report of Ecuador as approved by the Committee at its forty-ninth session (14–30 November 2012), 13 December 2012, E/C.12/ECU/CO/3; Committee on Economic, Social and Cultural Rights, Consideration of reports submitted by States parties under articles 16 and 17 of the Covenant, 23 January 2012, E/C.12/CMR/CO/2-3.

156. Committee on Economic, Social and Cultural Rights, Concluding observations on the fourth periodic report of Mongolia, 7 July 2015, E/C.12/MNG/CO/4; Committee on Economic, Social and Cultural Rights, Concluding observations on the initial report of Indonesia, 19 June 2014, E/C.12/ IDN/CO/1.

157. Committee on Economic, Social and Cultural Rights, Concluding observations on the combined third to fifth periodic reports of Romania, 9 December 2014, E/C.12/ROU/CO/3-5.

180

Table of Contents

158. Committee on Economic, Social and Cultural Rights, Consideration of reports submitted by States parties under articles 16 and 17 of the Covenant, 12 July 2011, E/C.12/MDA/CO/2.

159. Id. 160. Committee on Economic, Social and Cultural Rights, Concluding observations on the combined second to fourth periodic reports of Guyana, 28 October 2015, E/C.12/GUY/CO/2-4.

161. Committee on Economic, Social and Cultural Rights, Concluding observations on the combined second and third periodic reports of Tajikistan, 25 March 2015, E/C.12/TJK/CO/2-3; Committee on Economic, Social and Cultural Rights, Concluding observations on the second periodic report of Uzbekistan, 13 June 2014, E/C.12/UZB/CO/2; Committee on Economic, Social and Cultural Rights, Consideration of reports submitted by States parties under articles 16 and 17 of the Covenant, 1 June 2011, E/C.12/RUS/CO/5.

162. Committee on Economic, Social and Cultural Rights, Concluding observations on the combined initial and second periodic reports of Thailand, 7 July 2015, E/C.12/THA/CO/1-2.

163. Id. 164. Committee on Economic, Social and Cultural Rights, Concluding observations on the initial report of Mauritania, adopted by the Committee at its forty-ninth session (12-30 November 2012), 10 December 2012, E/C.12/MRT/CO/1.

165. Ibid.

166. Committee on Economic, Social and Cultural Rights, Concluding observations on the initial report of Burundi, 16 October 2015, E/C.12/BDI/CO/1; Committee on Economic, Social and Cultural Rights, Concluding observations on the third periodic report of the Bolivarian Republic of Venezuela, 7 July 2015, E/C.12/VEN/CO/3; Committee on Economic, Social and Cultural Rights, Concluding observations on the combined second and third periodic reports of Tajikistan, 25 March 2015, E/C.12/TJK/CO/2-3; Committee on Economic, Social and Cultural Rights, Concluding observations on the combined third to fifth periodic reports of Romania, 9 December 2014, E/C.12/ ROU/CO/3-5; Committee on Economic, Social and Cultural Rights, Concluding observations on the combined second periodic report of Serbia, 10 July 2014, E/C.12/SRB/CO/2; Committee on Economic, Social and Cultural Rights, Concluding observations on the second periodic report of China, including Hong Kong, China, and Macao, China, 13 June 2014, E/C.12/CHN/CO/2; Committee on Economic, Social and Cultural Rights, Concluding observations on the sixth periodic report of Ukraine, 13 June 2014, E/C.12/UKR/CO/6; Committee on Economic, Social and Cultural Rights, Concluding observations on the combined fourth to sixth periodic reports of Belarus, 13 December 2013, E/C.12/BLR/CO/4-6; Committee on Economic, Social and Cultural Rights, Concluding observations on the initial report of Mauritania, adopted by the Committee at its forty-ninth session (12-30 November 2012), 10 December 2012, E/C.12/MRT/CO/1; Committee on Economic, Social and Cultural Rights, Consideration of reports submitted by States parties under articles 16 and 17 of the Covenant, 13 December 2011, E/C.12/TKM/CO/1; Committee on Economic, Social and Cultural Rights, Consideration of reports submitted by States parties under articles 16 and 17 of the Covenant, 1 June 2011, E/C.12/RUS/CO/5.

167. Committee on Economic, Social and Cultural Rights, Concluding observations on the initial report of Burundi, 16 October 2015, E/C.12/BDI/CO/1; Committee on Economic, Social and Cultural Rights, Concluding observations on the third periodic report of the Bolivarian Republic of Venezuela, 7 July 2015, E/C.12/VEN/CO/3; Committee on Economic, Social and Cultural Rights, Concluding observations on the second periodic report of China, including Hong Kong, China, and Macao, China, 13 June 2014, E/C.12/CHN/CO/2; Committee on Economic, Social and Cultural Rights, Concluding observations on the combined fourth to sixth periodic reports of Belarus, 13 December 2013, E/C.12/BLR/CO/4-6.

168. Committee on Economic, Social and Cultural Rights, Consideration of reports submitted by States parties under articles 16 and 17 of the Covenant, 23 January 2012, E/C.12/CMR/CO/2-3.

169. Committee on Economic, Social and Cultural Rights, Concluding observations on the fourth periodic report of Mongolia, 7 July 2015, E/C.12/MNG/CO/4.

170. UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3.

181

171. Committee on Economic, Social and Cultural Rights, Concluding observations on the initial report of Burundi, 16 October 2015, E/C.12/BDI/CO/1.

172. Ibid.

173. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of El Salvador, adopted by the Committee at its tenth session (2–13 September 2013), 8 October 2013, CRPD/C/SLV/CO/1; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Paraguay, adopted by the Committee at its ninth session, 15–19 April 2013, 15 May 2013, CRPD/C/PRY/CO/1; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Costa Rica, 12 May 2014, CRPD/C/CRI/CO/1.

174. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Gabon, 2 October 2015, CRPD/C/GAB/CO/1; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Kenya, 30 September 2015, CRPD/C/ KEN/CO/1; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of El Salvador, adopted by the Committee at its tenth session (2–13 September 2013), 8 October 2013, CRPD/C/SLV/CO/1; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Paraguay, adopted by the Committee at its ninth session, 15–19 April 2013, 15 May 2013, CRPD/C/PRY/CO/1.

175. Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined second and third periodic reports of Serbia, 30 July 2013, CEDAW/C/SRB/CO/2-3.

176. Ibid.

177. Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined second and third periodic reports of Serbia, 30 July 2013, CEDAW/C/SRB/CO/2-3.

178. Committee on the Elimination of Discrimination Against Women, Concluding observations on the fifth periodic report of Azerbaijan, 12 March 2015, CEDAW/C/AZE/CO/5; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined seventh and eighth periodic reports of China, 14 November 2014, CEDAW/C/CHN/CO/7-8; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined fourth and fifth periodic reports of Tajikistan, 29 October 2013, CEDAW/C/TJK/CO/4-5.

179. Committee on the Elimination of Discrimination Against Women, Concluding observations on the seventh periodic report of Malawi, 24 November 2015, CEDAW/C/MWI/CO/7.

180. Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined seventh and eighth periodic reports of Colombia, 29 October 2013, CEDAW/C/COL/ CO/7-8; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined fourth and fifth periodic reports of Namibia, 28 July 2015, CEDAW/C/NAM/CO/4-5.

181. Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined fourth and fifth periodic reports of Namibia, 28 July 2015, CEDAW/C/NAM/CO/4-5.

182. Committee on the Elimination of Discrimination Against Women, Concluding observations on the initial report of Qatar, 10 March 2014, CEDAW/C/QAT/CO/1.

183. Id. 184. Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined second and third periodic reports of Andorra, 28 October 2013, CEDAW/C/AND/CO/2-3.

185. Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined fourth and fifth periodic reports of Cambodia, 29 October 2013, CEDAW/C/KHM/CO/4-5; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined second and third periodic reports of Andorra, 28 October 2013, CEDAW/C/AND/CO/2-3.

186. Committee on the Elimination of Discrimination Against Women, Concluding observations on the fourth periodic report of Kyrgyzstan, 11 March 2015, CEDAW/C/KGZ/CO/4.

187. Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined fourth and fifth periodic reports of Cambodia, 29 October 2013, CEDAW/C/KHM/CO/4-5.

182

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188. Committee on the Elimination of Discrimination Against Women, Concluding observations on the seventh periodic report of Malawi, 24 November 2015, CEDAW/C/MWI/CO/7; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined fourth and fifth periodic reports of Namibia, 28 July 2015, CEDAW/C/NAM/CO/4-5; Committee on the Elimination of Discrimination Against Women, Concluding observations on the fourth periodic report of Benin, 28 October 2013, CEDAW/C/BEN/CO/4; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined third to seventh periodic reports of Senegal, 28 July 2015, CEDAW/C/SEN/CO/3-7; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined fourth and fifth periodic reports of the Gambia, 28 July 2015, CEDAW/C/GMB/CO/4-5; Committee on the Elimination of Discrimination Against Women, Concluding observations on the sixth periodic report of Gabon, 11 March 2015, CEDAW/C/GAB/CO/6; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined fourth and fifth periodic reports of Cameroon, 28 February 2014, CEDAW/C/CMR/CO/4-5; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined fourth and fifth periodic reports of Tajikistan, 29 October 2013, CEDAW/C/TJK/CO/4-5; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined initial and second periodic reports of Swaziland, 24 July 2014, CEDAW/C/SWZ/CO/1-2; Committee on the Elimination of Discrimination Against Women, Concluding observations on the fourth periodic report of Kyrgyzstan, 11 March 2015,CEDAW/C/KGZ/CO/4; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined third and fourth periodic reports of Kazakhstan, 10 March 2014, CEDAW/C/KAZ/CO/3-4; Committee on the Elimination of Discrimination Against Women, Concluding observations on the eighth periodic report of Denmark, 11 March 2015, CEDAW/C/DNK/CO/8; Committee on the Elimination of Discrimination Against Women, Concluding observations on the eighth periodic report of the Russian Federation, 20 November 2015, CEDAW/C/RUS/CO/8; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined fifth and sixth periodic reports of Slovakia, 25 November 2015, CEDAW/C/SVK/CO/5-6; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined sixth and seventh periodic reports of the Democratic Republic of the Congo, 30 July 2013, CEDAW/C/COD/CO/6-7.

189. Committee on the Elimination of Discrimination Against Women, Concluding observations on the fourth periodic report of Kyrgyzstan, 11 March 2015, CEDAW/C/KGZ/CO/4; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined third and fourth periodic reports of Kazakhstan, 10 March 2014, CEDAW/C/KAZ/CO/3-4; Committee on the Elimination of Discrimination Against Women, Concluding observations on the eighth periodic report of the Russian Federation, 20 November 2015, CEDAW/C/RUS/CO/8; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined sixth and seventh periodic reports of the Democratic Republic of the Congo, 30 July 2013, CEDAW/C/COD/CO/6-7.

190. Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined seventh and eighth periodic reports of Liberia, 24 November 2015, CEDAW/C/LBR/ CO/7-8; Committee on the Elimination of Discrimination Against Women, Concluding observations on the eighth periodic report of the Russian Federation, 20 November 2015, CEDAW/C/RUS/CO/8.

191. Id. 192. Committee on the Elimination of Discrimination Against Women, Concluding observations on the eighth periodic report of the Russian Federation, 20 November 2015, CEDAW/C/RUS/CO/8.

193. Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined seventh and eighth periodic reports of Spain, 29 July 2015, CEDAW/C/ESP/CO/7-8.

194. Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined seventh and eighth periodic reports of the Bolivarian Republic of Venezuela, 14 November 2014, CEDAW/C/VEN/CO/7-8.

195. Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined fourth and fifth periodic reports of Cambodia, 29 October 2013, CEDAW/C/KHM/CO/45; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined second and third periodic reports of Serbia, 30 July 2013, CEDAW/C/SRB/CO/2-3.

183

196. Committee on the Elimination of Discrimination Against Women, Concluding observations on the initial report of Qatar, 10 March 2014, CEDAW/C/QAT/CO/1.

197. Id. 198. Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined initial to fifth periodic reports of Seychelles, 29 October 2013, CEDAW/C/SYC/CO/1-5.

199. Committee on the Elimination of Discrimination Against Women, Concluding observations on the seventh periodic report of Malawi, 24 November 2015, CEDAW/C/MWI/CO/7.

200.

Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined initial to fifth periodic reports of Seychelles, 29 October 2013, CEDAW/C/SYC/CO/1-5.

201. Committee on the Elimination of Discrimination Against Women, Concluding observations on the fourth periodic report of Benin, 28 October 2013, CEDAW/C/BEN/CO/4; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined initial to fifth periodic reports of Seychelles, 29 October 2013, CEDAW/C/SYC/CO/1-5.

202.

Committee on the Elimination of Discrimination Against Women, Concluding observations on the sixth periodic report of Sierra Leone, 10 March 2014, CEDAW/C/SLE/CO/6; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined seventh and eighth periodic reports of Cuba, 30 July 2013, CEDAW/C/CUB/CO/7-8; Committee on the Elimination of Discrimination Against Women, Concluding observations on the fourth periodic report of Benin, 28 October 2013, CEDAW/C/BEN/CO/4; Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined initial to fifth periodic reports of Seychelles, 29 October 2013, CEDAW/C/SYC/CO/1-5.

203.

Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined third and fourth periodic reports of Tuvalu, 11 March 2015, CEDAW/C/TUV/CO/3-4.

204.

Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of Kenya, 21 March 2016, CRC/C/KEN/CO/3-5; Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Zambia, 14 March 2016, CRC/C/ZMB/CO/2-4; Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of Senegal, 7 March 2016, CRC/C/SEN/CO/3-5; Committee on the Rights of the Child, Concluding observations on the second periodic report of Zimbabwe, 7 March 2016, CRC/C/ZWE/CO/2; Committee on the Rights of the Child, Concluding observations on the combined fourth and fifth periodic reports of Ethiopia, 10 July 2015, CRC/C/ ETH/CO/4-5; Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of the Dominican Republic, 6 March 2015, CRC/C/DOM/CO/3-5; Committee on the Rights of the Child, Concluding observations on the combined fourth and fifth periodic reports of Colombia, 6 March 2015, CRC/C/COL/CO/4-5; Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of the United Republic of Tanzania, 3 March 2015, CRC/C/TZA/CO/3-5; Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of Mauritius, 27 February 2015, CRC/C/MUS/CO/3-5; Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Fiji, 13 October 2014, CRC/C/FJI/CO/2-4; Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of the Bolivarian Republic of Venezuela, 13 October 2014, CRC/C/VEN/CO/3-5.

205.

Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of Kenya, 21 March 2016, CRC/C/KEN/CO/3-5.

206.

Committee on the Rights of the Child, Concluding observations on the combined third and fourth periodic reports of Poland, 30 October 2015, CRC/C/POL/CO/3-4.

207. Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of the United Republic of Tanzania, 3 March 2015, CRC/C/TZA/CO/3-5.

208.

Ibid.

209.

Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of Mauritius, 27 February 2015, CRC/C/MUS/CO/3-5.

210. Ibid.

211. Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Zambia, 14 March 2016, CRC/C/ZMB/CO/2-4.

212. Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Brazil, 30 October 2015, CRC/C/BRA/CO/2-4.

213. Committee on the Rights of the Child, Concluding observations on the combined fourth and fifth periodic reports of Ethiopia, 10 July 2015, CRC/C/ETH/CO/4-5.

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214. Ibid.

215. Committee on the Rights of the Child, Concluding observations on the combined third and fourth periodic reports of the Islamic Republic of Iran, 14 March 2016, CRC/C/IRN/CO/3-4; Committee on the Rights of the Child, Concluding observations on the combined fourth and fifth periodic reports of Ethiopia, 10 July 2015, CRC/C/ETH/CO/4-5; Committee on the Rights of the Child, Concluding observations on the combined third and fourth periodic reports of Jamaica, 10 March 2015, CRC/C/ JAM/CO/3-4.

216. Committee on the Rights of the Child, Concluding observations on the report submitted by Iraq under article 8, Âś 1, of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 5 March 2015, CRC/C/OPAC/IRQ/CO/1.

217. Id. 218. Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of Kenya, 21 March 2016, CRC/C/KEN/CO/3-5; Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Zambia, 14 March 2016, CRC/C/ZMB/CO/2-4; Committee on the Rights of the Child, Concluding observations on the combined second and third periodic reports of Haiti, 24 February 2016, CRC/C/HTI/CO/23; Committee on the Rights of the Child, Concluding observations on the fifth periodic report of France, 23 February 2016, CRC/C/FRA/CO/5; Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Brazil, 30 October 2015, CRC/C/BRA/CO/2-4; Committee on the Rights of the Child, Concluding observations on the fifth periodic report of Bangladesh, 30 October 2015, CRC/C/BGD/CO/5; Committee on the Rights of the Child, Concluding observations on the combined fourth and fifth periodic reports of Ethiopia, 10 July 2015, CRC/C/ETH/CO/4-5; Committee on the Rights of the Child, Concluding observations on the fourth periodic report of Eritrea, 2 July 2015, CRC/C/ERI/CO/4; Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Fiji, 13 October 2014, CRC/C/FJI/CO/2-4; Committee on the Rights of the Child, Concluding observations on the combined third and fourth periodic reports of Indonesia, 10 July 2014, CRC/C/IDN/CO/3-4.

219. Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Zambia, 14 March 2016, CRC/C/ZMB/CO/2-4; Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Brazil, 30 October 2015, CRC/C/BRA/CO/2-4; Committee on the Rights of the Child, Concluding observations on the fifth periodic report of Bangladesh, 30 October 2015, CRC/C/BGD/CO/5; Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Fiji, 13 October 2014, CRC/C/FJI/CO/2-4.

220.

Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of Kenya, 21 March 2016, CRC/C/KEN/CO/3-5; Committee on the Rights of the Child, Concluding observations on the combined second and third periodic reports of Haiti, 24 February 2016, CRC/C/HTI/CO/2-3; Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Brazil, 30 October 2015, CRC/C/BRA/CO/2-4; Committee on the Rights of the Child, Concluding observations on the fourth periodic report of Eritrea, 2 July 2015, CRC/C/ERI/CO/4; Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Fiji, 13 October 2014, CRC/C/FJI/CO/2-4.

221. Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of Kenya, 21 March 2016, CRC/C/KEN/CO/3-5; Committee on the Rights of the Child, Concluding observations on the second periodic report of Zimbabwe, 7 March 2016, CRC/C/ ZWE/CO/2; Committee on the Rights of the Child, Concluding observations on the combined fourth and fifth periodic reports of Peru, 2 March 2016, CRC/C/PER/CO/4-5; Committee on the Rights of the Child, Concluding observations on the combined second and third periodic reports of Haiti, 24 February 2016, CRC/C/HTI/CO/2-3; Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of the Bolivarian Republic of Venezuela, 13 October 2014, CRC/C/VEN/CO/3-5.

222. Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Zambia, 14 March 2016, CRC/C/ZMB/CO/2-4.

223. Id. 224.

Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of the Dominican Republic, 6 March 2015, CRC/C/DOM/CO/3-5.

185

225.

Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of Kenya, 21 March 2016, CRC/C/KEN/CO/3-5; Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Zambia, 14 March 2016, CRC/C/ZMB/CO/2-4; Committee on the Rights of the Child, Concluding observations on the second periodic report of Zimbabwe, 7 March 2016, CRC/C/ZWE/CO/2; Committee on the Rights of the Child, Concluding observations on the combined fourth and fifth periodic reports of Peru, 2 March 2016, CRC/C/PER/CO/4-5; Committee on the Rights of the Child, Concluding observations on the fifth periodic report of Bangladesh, 30 October 2015, CRC/C/ BGD/CO/5; Committee on the Rights of the Child, Concluding observations on the combined fourth and fifth periodic reports of Ethiopia, 10 July 2015, CRC/C/ETH/CO/4-5; Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Turkmenistan, 10 March 2015, CRC/C/TKM/CO/2-4; Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of the Dominican Republic, 6 March 2015, CRC/C/DOM/CO/3-5; Committee on the Rights of the Child, Concluding observations on the combined fourth and fifth periodic reports of Colombia, 6 March 2015, CRC/C/ COL/CO/4-5; Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of the United Republic of Tanzania, 3 March 2015, CRC/C/TZA/CO/35; Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of Mauritius, 27 February 2015, CRC/C/MUS/CO/3-5; Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Fiji, 13 October 2014, CRC/C/FJI/CO/2-4; Committee on the Rights of the Child, Concluding observations on the combined third and fourth periodic reports of Indonesia, 10 July 2014, CRC/C/IDN/CO/3-4.

226.

Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Fiji, 13 October 2014, CRC/C/FJI/CO/2-4.

227.

Committee on the Rights of the Child, Concluding observations on the second periodic report of Zimbabwe, 7 March 2016, CRC/C/ZWE/CO/2.

228.

Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Turkmenistan, 10 March 2015, CRC/C/TKM/CO/2-4.

229.

Committee on the Rights of the Child, Concluding observations on the combined second to fourth periodic reports of Zambia, 14 March 2016, CRC/C/ZMB/CO/2-4; Committee on the Rights of the Child, Concluding observations on the combined third and fourth periodic reports of Oman, 14 March 2016, CRC/C/OMN/CO/3-4; Committee on the Rights of the Child, Concluding observations on the second periodic report of Zimbabwe, 7 March 2016, CRC/C/ZWE/CO/2; Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of Benin, 25 February 2016, CRC/C/BEN/CO/3-5; Committee on the Rights of the Child, Concluding observations on the combined second and third periodic reports of Haiti, 24 February 2016, CRC/C/ HTI/CO/2-3; Committee on the Rights of the Child, Concluding observations on the combined third and fourth periodic reports of Jamaica, 10 March 2015, CRC/C/JAM/CO/3-4; Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of Uruguay, 5 March 2015, CRC/C/URY/CO/3-5; Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of the United Republic of Tanzania, 3 March 2015, CRC/C/TZA/CO/3-5; Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of Mauritius, 27 February 2015, CRC/C/MUS/CO/3-5; Committee on the Rights of the Child, Concluding observations on the combined second and third periodic reports of the Gambia, 20 February 2015, CRC/C/GMB/CO/2-3; Committee on the Rights of the Child, Concluding observations on the combined third and fourth periodic reports of Morocco, 14 October 2014, CRC/C/MAR/CO/3-4; Committee on the Rights of the Child, Concluding observations on the combined third and fourth periodic reports of Croatia, 13 October 2014, CRC/C/HRV/CO/3-4.

230.

Committee on the Rights of the Child, Concluding observations on the combined second and third periodic reports of Timor-Leste, 30 October 2015, CRC/C/TLS/CO/2-3.

231. Id. 232.

Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, Concluding observations on Belize in the absence of a report, 26 September 2014, CMW/C/BLZ/CO/1.

233. Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, Concluding observations on the second periodic report of the Philippines, 2 May 2014, CMW/C/PHL/CO/2.

234.

Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, Concluding observations on the initial report of Lesotho, 23 May 2016, CMW/C/LSO/CO/1.

186

Table of Contents

235.

Id.

236.

Committee on Migrant Workers, Concluding observations on the initial report of Timor-Leste, 8 October 2015, CMW/C/TLS/CO/1.

237.

Id.

238.

Committee on Elimination of Racial Discrimination, Consideration of reports submitted by States parties under article 9 of the Convention, 6 April 2011, CERD/C/MDA/CO/8-9.

239.

Id.

240.

Committee against Torture, Concluding observations on the sixth periodic report of Ukraine, 12 December 2014, CAT/C/UKR/CO/6.

241.

Committee against Torture, Concluding observations on the second periodic report of Romania, 5 June 2015, CAT/C/ROU/CO/2.

242.

Committee against Torture, Concluding observations on the second periodic report of Kenya, adopted by the Committee at its fiftieth session (6 to 31 May 2013), 19 June 2013, CAT/C/KEN/CO/2.

243.

Committee against Torture, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 12 December 2014, CAT/C/KAZ/CO/3.

244.

Committee against Torture, Concluding observations on the second periodic report of Kenya, adopted by the Committee at its fiftieth session (6 to 31 May 2013), 19 June 2013, CAT/C/KEN/CO/2.

TREATY BODY VIEWS ON INDIVIDUAL COMMUNICATIONS 245.

UN Office of the High Commissioner for Human Rights, Monitoring the Core International Human Rights Treaties, available at http://www.ohchr.org/EN/HRBodies/Pages/WhatTBDo.aspx.

246.

Office of the High Commissioner on Human Rights, Human Rights Treaty Bodies – Individual Communications, United Nations, available at http://www.ohchr.org/EN/HRBodies/TBPetitions/ Pages/IndividualCommunications.aspx.

247.

The Rules of Procedure of the various treaty bodies can be found here:

•

Human Rights Committee, Rules of Procedure of the Human Rights Committee, CCPR/C/3/ Rev.11, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch. aspx?Lang=en&TreatyID=8&DocTypeID=65

•

Committee on Economic, Social and Cultural Rights, Provisional rules of procedure under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, adopted by the Committee at its forty-ninth session (12-30 November 2012), E/C.12/49/3, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch. aspx?Lang=en&TreatyID=9&DocTypeID=65

•

Committee on the Elimination of Discrimination Against Women, Rules of Procedure of the CEDAW Committee, Part of HRI/GEN/3/Rev.3, https://tbinternet.ohchr.org/_layouts/15/ treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=3&DocTypeID=65

•

Committee on the Elimination of Racial Discrimination, Rules of Procedure of the Committee on the Elimination of Racial Discrimination, CERD/C/35/Rev.3, https://tbinternet.ohchr.org/_ layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=6&DocTypeID=65

•

Committee against Torture, Rules of Procedure, CAT/C/3/Rev.6, https://tbinternet.ohchr. org/_layouts/15/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=1&DocTypeID=65

•

Committee on the Rights of the Child, Rules of Procedure, CRC/C/4/Rev.5, https:// tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC/C/4/ Rev.5&Lang=en

•

Committee on the Rights of Persons with Disabilities, Rules of Procedure, CRPD/C/1/ Rev.1, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download. aspx?symbolno=CRPD/C/1/Rev.1&Lang=en

•

Committee on Migrant Workers, Rules of Procedure, CMW/C/2, https://tbinternet.ohchr.org/_ layouts/15/treatybodyexternal/Download.aspx?symbolno=CMW/C/2&Lang=en

248.

UN General Assembly, Optional Protocol to the International Covenant on Civil and Political Rights, 23 March, 1976, available at: https://www.ohchr.org/EN/ProfessionalInterest/Pages/ OPCCPR1.aspx.

187

249.

Toonen v. Australia, Human Rights Committee, Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992 (Mar. 31, 1994). For a similar case before the European Court of Human Rights, see Enhorn v. Sweden, Eur. Ct. H.R., Case No. 56529/00 (Jan. 25, 2005).

250.

Toonen, at ¶ 2.1.

251.

Id. at ¶ 2.2.

252.

Id. at ¶ 1.

253.

Id. at ¶ 2.3.

254.

Id. at ¶ 1.

255.

Id. at ¶ 6.2-6.4.

256.

Id. at ¶ 6.5-6.6.

257.

Id. at ¶ 9.

258.

Id. at ¶ 8.2.

259.

Id. at ¶ 8.3.

260.

Id. at ¶ 8.5-8.6.

261.

Id. at ¶ 8.6.

262.

Id. at ¶ 11.

263.

Id. at ¶ 10.

264.

Rodney Croome, “20 Years Since Toonen Changed the World”, New Matilda (Apr. 11, 2014) available at https://newmatilda.com/2014/04/11/20-years-toonen-changed-world/.

265.

Nenova et al. v. Libya and A.M.H. El Houjouj Jum’a et al. v. Libya, Human Rights Committee, Communication No. 1958/2010, U.N. Doc. CCPR/C/111/D/1958/2010 (Aug. 25, 2012); A.M.H. El Houjouj Jum’a et al. v. Libya, Human Rights Committee, Communication No. 1958/2010, U.N. Doc. CCPR/C/111/D/1958/2010 (Aug. 25, 2012).

266.

Id. at ¶ 2.2

267.

Ibid. at n.8.

268.

Id. at ¶ 2.3.

269.

A.M.H. El Houjouj Jum’a et al. v. Libya, at ¶ 2.2-2.19.

270.

Nenova et al. v. Libya, at ¶ 2.4-2.10.

271.

Id. at ¶ 2.10.

272.

Id. at ¶ 4.2-4.6.

273.

Id. at ¶ 4.7.

274.

Id. at ¶ 4.8-4.9.

275.

Id. at ¶ 4.

276.

Nenova et al. v. Libya, at ¶ 7.5.

277.

Id. at ¶ 7.7-7.8.

278.

A.M.H. El Houjouj Jum’a et al. v. Libya, at ¶ 6.3-6.4.

279.

Nenova et al. v. Libya, at ¶ 7.8.

280.

A.M.H. El Houjouj Jum’a et al. v. Libya, at ¶ 6.4-6.5.

281.

Id. at ¶ 6.7.

282.

Id. at ¶ 6.9-8.

283.

Nenova et al. v. Libya, at ¶ 7.9-7.10.

284.

Id. at ¶ 7.11.

285.

A.M.H. El Houjouj Jum’a et al. v. Libya, at ¶ 6.6.

286.

Nenova et al. v. Libya, at ¶ 9.

287.

Ibid; A.M.H. El Houjouj Jum’a et al. v. Libya, at ¶ 9.

288.

Nenova et al. v. Libya, at ¶ 9; A.M.H. Houjouj Jum’a et al. v. Libya, at ¶ 8.

289.

Nenova et al. v. Libya, Centre for Civil and Political Rights, available at http://ccprcentre.org/decision/5602.

188

Table of Contents

290.

Foreign Staff, “Gadhafi Admits Bulgarian Nurses Were Tortured”, The Telegraph (Aug. 9, 2007) available at http://www.telegraph.co.uk/news/worldnews/1559878/Gaddafi-admitsBulgarian-nurses-were-tortured.html.

291. McCallum v. South Africa, Human Rights Committee, Communication No. 1818/2008, U.N. Doc. CCPR/C/100/D/1818/2008 (Nov. 2, 2010).

292.

Id. at ¶ 3.1.

293.

Id. at ¶ 2.1

294.

Id. at ¶ 2.2.

295.

Id. at ¶ 2.3.

296.

Id. at ¶ 2.4.

297.

Id. at ¶ 2.6.

298.

Id. at ¶ 2.5.

299.

Id. at ¶ 2.7.

300.

Id. at ¶ 2.8.

301.

Id. at ¶ 4.

302.

Id. at ¶ 6.2.

303.

Id. at ¶ 6.4.

304.

Id. at ¶ 6.5.

305.

Id. at ¶ 6.6.

306.

Id. at ¶ 6.7.

307.

Id. at ¶ 6.8.

308.

Id. at ¶ 8.

309.

Id. at ¶ 9.

310. Human Rights Committee, Follow-up Progress Report on Individual Communications, 112th session, U.N. Doc. CCPR/C/112/R.3, p. 27-28, (Sept. 5, 2014).

311. Mbena v. The Minister of Justice and Correctional Services, 2015, https://acjr.org.za/resourcecentre/St%20Albans%20Judgment_1.pdf/view.

312. Morales Tornel et al. v. Spain, Human Rights Committee, Communication No. 1473/2006, U.N. Doc. CCPR/C/95/D/1473/2006 (Apr. 24, 2009).

313.

Id. at ¶ 1.

314.

Id. at ¶ 2.2.

315.

Id. at ¶ 2.3.

316.

Id. at ¶ 2.4.

317.

Id. at ¶ 2.5-2.6.

318.

Id. at ¶ 2.8.

319.

Id. at ¶ 2.9-2.10.

320.

Id. at ¶ 2.12.

321.

Id. at ¶ 2.12-2.14.

322.

Id. at ¶ 2.16.

323.

Id. at ¶ 3.5.

324.

Id. at ¶ 4.1.

325.

Id. at ¶ 4.2.

326.

Id. at ¶ 4.3.

327.

Id. at ¶ 4.4; 4.6.

328.

Id. at ¶ 4.5.

329.

Id. at ¶ 6.5.

330.

Id. at ¶ 7.2.

331.

Id. at ¶ 7.4.

189

332.

Id. at ¶ 7.5.

333.

Id. at ¶ 9-10.

334.

Human Rights Committee, Follow-up Progress Report on Individual Communications between June 2014 and January 2015, U.N. Doc. CCPR/C/113/3, p. 49 (Jun. 29, 2015).

335. Chiti v. Zambia, Human Rights Committee, Communication No. 1303/2004, U.N. Doc. CCPR/ C/105/D/1303/2004 (Aug. 28, 2012).

336.

Id. at ¶ 2.1.

337.

Id. at ¶ 2.2.

338.

Id. at ¶ 2.3.

339.

Id. at ¶ 2.4.

340.

Id. at ¶ 2.5.

341.

Id. at ¶ 2.10.

342.

Id. at ¶ 2.5.

343.

Id. at ¶ 2.6-2.7.

344.

Id. at ¶ 2.8.

345.

Id. at ¶ 2.9.

346.

Id. at ¶ 2.11.

347.

Id. at ¶ 3.2.

348.

Id. at ¶ 4.3.

349.

Id. at ¶ 2.4.

350.

Id. at ¶ 11.6.

351.

Id. at ¶ 11.7.

352.

Id. at ¶ 12.2.

353.

Id. at ¶ 12.3-12.4.

354.

Id. at ¶ 12.3.

355.

Id. at ¶ 12.4.

356.

Id. at ¶ 12.5.

357.

Id. at ¶ 12.6.

358.

Id. at ¶ 12.8.

359.

Id. at ¶ 14.

360.

Id. at ¶ 15.

361. Njamba and Balikosa v. Sweden, Committee against Torture, Communication No. 332/2007, U.N. Doc. CAT/C/44/D/322/2007 (May 14, 2010).

362.

Id. at ¶ 2.1.

363.

Id. at ¶ 2.2

364.

Id. at ¶ 2.3.

365.

Id. at ¶ 2.4.

366.

Id. at ¶ 2.5.

367.

Id. at ¶ 8.1-8.2.

368.

Id. at ¶ 8.4.

369.

Id. at ¶ 8.5.

370.

Id. at ¶ 10.

371.

Id. at ¶ 9.2.

372.

Id. at ¶ 9.3.

373.

Id. at ¶ 9.4.

374.

Id. at ¶ 9.5.

190

Table of Contents

375. Committee Against Torture, Periodic Report on Follow-Up to Decisions on Complaints Submitted Under Article 22 of the Convention against Torture (28 April 2014-3 November 2014), U.N. Doc. CAT/C/53/2, p. 3 (Dec. 11, 2014).

376.

L.J.R. v. Australia, Committee against Torture, Communication No. 316/2007, U.N. Doc. CAT/C/41/D/316/2007 (Nov. 26, 2008).

377.

Id. at ¶ 2.1.

378.

Id. at ¶ 2.3.

379.

Id. at ¶ 2.4.

380.

Id. at ¶ 1.1.

381.

Id. at ¶ 2.5.

382.

Id. at ¶ 2.6.

383.

Id. at ¶ 4.1-4.2.

384.

Id. at ¶ 4.3.

385.

Id. at ¶ 4.8-4.11.

386.

Id. at ¶ 9.

387.

Id. at ¶ 7.3.

388.

Id. at ¶ 7.5; 8.

389.

Id. at ¶ 7.5.

390.

Id. at ¶ 9.

CHARTER BODIES 391.

Human Rights Council, Report of the Working Group on the Universal Periodic Review – Tajikistan, U.N. Doc. A/HRC/33/11 (Jul. 14, 2016); Human Rights Council, Report of the Working Group on the Universal Periodic Review – Swaziland, U.N. Doc. A/HRC/33/14 (Jul. 13, 2016); Human Rights Council, Report of the Working Group on the Universal Periodic Review -- Namibia, U.N. Doc. A/HRC/32/4 (Apr. 15, 2016); Human Rights Council, Report of the Working Group on the Universal Periodic Review – Singapore, U.N. Doc. A/HRC/32/17 (Apr. 15, 2016); Human Rights Council, Report of the Working Group on the Universal Periodic Review – Sierra Leone, U.N. Doc. A/HRC/32/16 (Apr. 14, 2016); Human Rights Council, Report of the Working Group on the Universal Periodic Review – Jamaica, U.N. Doc. A/HRC/30/15 (Jul. 20, 2015), Human Rights Council, Report of the Working Group on the Universal Periodic Review – Mongolia, U.N. Doc. A/ HRC/30/6 (Jul. 13, 2015), Human Rights Council, Report of the Working Group on the Universal Periodic Review – Liberia, U.N. Doc. A/HRC/30/4 (Jul 13, 2015); and Human Rights Council, Report of the Working Group on the Universal Periodic Review – Guinea-Bissau, U.N. Doc. A/HRC/29/12 (Apr. 13, 2015).

392.

Report of the Working Group on the Universal Periodic Review – Tajikistan, supra note 377.

393.

Human Rights Council, Report of the Working Group on the Universal Periodic Review – Trinidad and Tobago, U.N. Doc. A/HRC/33/15 (Jul. 15, 2016).

394.

Human Rights Council, Report of the Working Group on the Universal Periodic Review – Tanzania, U.N. Doc. A/HRC/33/12 (Jul. 14, 2016).

395.

Report of the Working Group on the Universal Periodic Review – Namibia, supra note 377.

396.

Human Rights Council, Report of the Working Group on the Universal Periodic Review – Thailand, U.N. Doc. A/HRC/33/16 (Jul. 15, 2016).

397.

Report of the Working Group on the Universal Periodic Review – Singapore, supra note 377.

398.

Human Rights Council, Report of the Working Group on the Universal Periodic Review – Malawi, U.N. Doc. A/HRC/30/5 (Jul. 20, 2015).

399.

Human Rights Council, Report of the Working Group on the Universal Periodic Review – Marshall Islands, U.N Doc. A/HRC/30/13 (Jul. 20, 2015).

191

400.

Report of the Working Group on the Universal Periodic Review -- Guinea-Bissau, supra note 377

401.

Human Rights Council, Report of the Working Group on the Universal Periodic Review – Panama, U.N. Doc. A/HRC/30/7 (Jul. 8, 2015).

402.

Human Rights Council, Report of the Working Group on the Universal Periodic Review – Swaziland, U.N. Doc. A/HRC/19/6 (Dec. 12, 2011); Human Rights Council, Report of the Working Group on the Universal Periodic Review – Suriname, U.N. Doc. A/HRC/33/4 (Jul. 1, 2016); Report of the Working Group on the Universal Periodic Review – Namibia, supra note 377; Human Rights Council, Report of the Working Group on the Universal Periodic Review – Seychelles, U.N. Doc. A/ HRC/32/13 (Apr. 8, 2016); Human Rights Council, Report of the Working Group on the Universal Periodic Review – Micronesia, U.N. Doc. A/HRC/31/4 (Dec. 23, 2015); Report of the Working Group on the Universal Periodic Review -- Jamaica, supra note 377; Human Rights Council, Report of the Working Group on the Universal Periodic Review – Sierra Leone, U.N. Doc. A/HRC/18/10 (Jul. 11, 2011); Report of the Working Group on the Universal Periodic Review -- Liberia, supra note 377; Human Rights Council, Report of the Working Group on the Universal Periodic Review -- Belarus, U.N. Doc. A/HRC/15/16 (Jun. 21, 2010); Human Rights Council, Report of the Working Group on the Universal Periodic Review – Kiribati, U.N. Doc. A/HRC/15/3 (Jun. 17, 2010).

403.

Report of the Working Group on the Universal Periodic Review – Namibia, supra note 377.

404.

Human Rights Council, Report of the Working Group on the Universal Periodic Review – Georgia, U.N. Doc. A/HRC/31/15 (Jan. 13, 2015).

405.

Human Rights Council, Report of the Working Group on the Universal Periodic Review – Mozambique, U.N. Doc. A/HRC/32/6 (Apr. 12, 2016).

406.

Report of the Working Group on the Universal Periodic Review -- Trinidad and Tobago, supra note 379

407.

Human Rights Council, Report of the Working Group on the Universal Periodic Review -- Papua New Guinea, U.N. Doc. A/HRC/33/10 (Jul. 13, 2016).

408.

Report of the Working Group on the Universal Periodic Review – Malawi, supra note 384; and Human Rights Council, Report of the Working Group on the Universal Periodic Review – Kyrgyzstan, U.N. Doc. A/HRC/29/4 (Apr. 9, 2015).

409.

Report on the Working Group of the Universal Periodic Review -- Guinea-Bissau, supra note 377; and Human Rights Council, Report of the Working Group on the Universal Periodic Review – Guinea, U.N. Doc. A/HRC/29/6 (Apr. 10, 2015).

410.

Report of the Working Group on the Universal Periodic Review -- Trinidad and Tobago, supra note 379; Report on the Working Group on the Universal Periodic Review -- Singapore, supra note 377; Report of the Working Group on the Universal Periodic Review – Jamaica, supra note 377; Human Rights Council, Report of the Working Group on the Universal Periodic Review -- Guyana, U.N. Doc. A/HRC/29/16 (Apr. 13, 2015) and Report of the Working Group on the Universal Periodic Review –Kyrgyzstan, supra note 394.

411.

Manfred Nowak, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, Human Rights Council, U.N. Doc. A/HRC/10/44 (Jan. 14, 2009).

412. Louis Joinet, Advisory Services and Technical Cooperation in the Field of Human Rights: Situation of Human Rights in Haiti, Human Rights Council, U.N. Doc. E/ CN.4/2004/108 (Jan. 21, 2004).

413. Paul Hunt, The Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Human Rights Council, U.N. Doc. E/CN.4/2004/49 (Feb. 16, 2004); Ambeyi Ligabo, The Right to Freedom of Expression and Information, Human Rights Council, U.N. Doc. E/CN.4/2003/67 (Dec. 30, 2002).

414. United Nations Office of the High Commissioner, Communications, http://www.ohchr.org/EN/HRBodies/SP/Pages/Communications.aspx.

192

Table of Contents

AT THE REGIONAL LEVEL THE INTER-AMERICAN HUMAN RIGHTS SYSTEM 415. http://www.oas.org/en/about/who_we_are.asp. The Charter was subsequently amended by the Protocol of Buenos Aires, signed in 1967, entered into force in February 1970; by the Protocol of Cartagena de Indias, signed in 1985, entered into force in November 1988; by the Protocol of Managua, signed in 1993, entered into force in January 1996; and by the Protocol of Washington, signed in 1992, entered into force in September 1997.

416.

Inter-American Commission on Human Rights, Basic Documents Pertaining to Human Rights in the Inter-American System, http://www.cidh.org/basicos/english/Basic1.%20Intro.htm.

417.

For the text of and list of parties to these treaties, please refer to

http://www.oas.org/juridico/english/treaties/a-65.html and http://www.oas.org/en/sla/dil/inter_american_treaties_A-69_discrimination_intolerance.asp.

418.

Inter-American Court of Human Rights, Petitions and Consultations, http://www.corteidh. or.cr/index.php/en/about-us/how-to-access-the-inter-american-system/denuncias-consultas.

419. Cuscul Pivaral et al. v. Guatemala, Inter-Am. Comm’n H.R., Case No. 12.484, Merits, Report No. 2/16, OEA/Ser.L/V/II.157 (Apr. 13, 2016); Cuscul Pivaral et al. v. Guatemala, Inter-Am. Ct. H.R., Judgment, Preliminary Objections, Merits, Reparations, and Costs, Ser. C, No. 359 (Aug. 23, 2018).

420.

Cuscul Pivaral et al. v. Guatemala, Inter-Am. Comm’n H.R., Case No. 12.484, Merits, Report No. 2/16, OEA/Ser.L/V/II.157, Apr. 13, 2016, at ¶ 13.

421.

Id. at ¶ 25.

422.

Id. at ¶ 27.

423.

Id. at ¶ 35.

424.

Id. at ¶ 37.

425.

Id. at ¶ 38.

426.

Id. at ¶ 39; 41.

427.

Id. at ¶ 47.

428.

Id. at ¶ 51.

429.

Id. at ¶ 52-53.

430.

Id. at ¶ 54.

431.

Id. at ¶ 100.

432.

Id. at ¶ 107.

433.

Id. at ¶ 111.

434.

Id. at ¶ 115.

435.

Id. at ¶ 124; 130.

436.

Id. at ¶ 142-44. “…availability in quantities enough of antiretrovirals and other pharmaceutical products to treat HIV…antiretroviral treatment should be strictly monitored and given for a lifetime after the disease has been diagnosed…”. Id. at ¶ 110.

437.

Id. at ¶ 160.

438.

Id. at ¶ 146.

439.

Id. at ¶ 149.

440.

Guatemala, Decreto 27-2000 de 2 de junio de 2000, Ley General Para el Combate del Virus de Inmunodeficiencia Humana “VIH” y del Síndrome de Inmunodeficiencia Adquirida “SIDA” y de la promoción, protección y defensa de los Derechos Humanos, ante el VIH/SIDA. 441.

IACommHR Cuscul, at ¶ 150-54.

442.

Id. at ¶ 156-59.

193

443.

Id. at “Recommendations” ¶ 1-3.

444.

Cuscul Pivaral et al. v. Guatemala, Application to the Court, Case 12.484, Inter-Am. Comm’n H.R., (Dec. 2, 2016).

445.

Cuscul Pivaral et al. v. Guatemala, Inter-Am. Ct. H.R., Judgment, Preliminary Objections, Merits, Reparations, and Costs, Ser. C, No. 359, Aug. 23, 2018, at ¶ 63.

446.

Id. at ¶ 64 and ff.

447.

Id. at ¶ 98-102.

448.

Id. at ¶ 99.

449.

Id. at ¶ 104.

450.

Id. at ¶ 80. ¶ 98.

451.

Id. at ¶ 130.

452.

Id. at ¶ 105.

453.

Id. at ¶ 126.

454.

Id. at ¶ 126.

455.

Id. at ¶ 105.

456.

Id. at ¶ 114.

457.

Id. at ¶ 110.

458.

Id. at ¶ 111.

459.

Id. at ¶ 112.

460.

Id. at ¶ 126.

461.

Id. at ¶ 125.

462.

Id. at ¶ 119.

463.

Id. at ¶ 127.

464.

Id.

465.

Id. at ¶ 117.

466.

Id. at ¶ 146.

467.

Id. at ¶¶ 146, 148.

468.

Id. at ¶ 155.

469.

Id. at ¶¶ 158-159.

470.

Id. at ¶ 163.

471.

Id. at ¶ 162.

472.

Id. at ¶ 161.

473.

Id. at ¶ 10-18.

474.

Id. at ¶ 239.

475.

Id. at ¶ 243.

476. Ángel Alberto Duque v. Colombia, Inter-Am. Comm’n H.R., Petition No. 12.841, Merits, Report No. 5/14 (Apr. 2, 2014); Duque v. Colombia, Inter-Am. Ct. H.R., Judgment, Preliminary Objections, Merits, Reparations and Costs, Ser. C, No. 310 (Feb. 26, 2016).

477.

Duque, Inter-Am. Comm’n H.R., at ¶ 47.

478.

Id. at ¶ 48.

479.

Id. at ¶ 49.

480.

Id. at ¶ 50.

481.

Id. at ¶ 70.

482.

Id. at ¶ 70-71.

483.

Duque, Inter-Am. Ct. H.R., at “Operative Paragraphs” ¶ 3-5.

194

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484.

Id. at ¶ 124.

485.

Id. at ¶ 158.

486.

Id. at ¶ 184.

487.

Id. at ¶ 182-92.

488.

Id. at “Operative Paragraphs” ¶ 8-12.

489.

Duque v. Colombia, , Inter-Am. Ct. H.R., Order of the President, Reimbursement of the Victim’s Legal Defense Fund, Monitoring Compliance with Judgment, (Oct. 7, 2016).

490.

TGGL v. Ecuador, Inter-Am. Comm’n H.R., Petition No. 663-06, Admissibility, Report No. 89/09 (Aug. 7, 2009).; Gonzales Lluy et al. v. Ecuador, Inter-Am. Ct. H.R., Judgment, Preliminary Objections, Merits, Reparations, and Costs, Ser. C, No. 102/13 (Sept. 1, 2015).

491.

TGGL v. Ecuador, at ¶ 156.

492.

Id. at ¶ 161.

493.

Id. at ¶ 161-63.

494.

Gonzales Lluy et al. v. Ecuador, at “Operative Paragraphs.”

495.

Id. at ¶ 169-71.

496.

Id. at ¶ 214-25.

497.

F.S. v. Chile, Inter-Am. Comm’n H.R., Petition 112-09, Admissibility, Report No. 52/14, OEA/ Ser.L/V/II.151 Doc. 17 (Jul. 21, 2014).

498.

http://www.oas.org/en/iachr/media_center/PReleases/2017/035A.asp.

499.

Id.

500.

J.S.C.H. and M.G.S. v. Mexico, Inter-Am. Comm’n H.R, Case No. 12.689, Merits, Report No. 80/15, OEA/Ser.L/V/II.156 Doc. 33 (Oct. 28, 2015).

501.

Id. at ¶ 11.

502.

Id. at ¶ 13.

503.

Id. at ¶ 18.

504.

Id. at ¶ 19.

505.

Id. at ¶ 25.

506.

Id. at ¶ 26.

507.

Id. at ¶ 27.

508.

Id. at ¶ 29-31.

509.

Id. at ¶ 33-34.

510.

Id. at ¶ 114.

511.

Id. at ¶ 110.

512.

Id. at ¶ 113-14.

513.

Id. at ¶ 129.

514.

Id. at ¶ 117-18.

515.

Id. at ¶ 118.

516.

Id. at ¶ 127.

517.

Id. at ¶ 121-24; 129.

518.

Id. at ¶ 140.

519.

Id. at ¶ 135.

520.

Id. at ¶ 131-35.

521.

Id. at ¶ 141.

522.

Id. at ¶ 167.

195

523.

Jorge Odir Miranda Cortez et al. v. El Salvador, Inter-Am. Comm’n H.R., Case No. 12.249, Merits, Report No. 27/09, OEA/Ser.L/V/II. Doc. 51 (Mar. 20, 2009).

524.

Id. at ¶ 2.

525.

Id. at ¶ 4.

526.

Id. at ¶ 66.

527.

Id. at ¶ 74.

528.

Ibid.

529.

Id. at ¶ 4.

530.

Id. at ¶ 106.

531.

Id. at ¶ 108.

532.

Id. at ¶ 109.

533.

Id. at ¶ 117(a).

534.

Id. at ¶ 117(b).

535.

Id. at ¶ 138.

536.

They are: the Rapporteurship on Migrants; the Rapporteurship on the Rights of Women; the Rapporteurship on the Rights of the Child; the Rapporteurship on the Rights of Indigenous Peoples; the Rapporteurship on the Rights of Persons Deprived of Liberty; the Rapporteurship on the Rights of Afro-Descendants and against Racial Discrimination; the Rapporteurship on Human Rights Defenders; the Special Rapporteurship for Freedom of Expression; the Rapporteurship on the Rights of Lesbian, Gay, Trans, Bisexual, and Intersex Persons; and the Unit on Economic, Social and Cultural Rights.

537. Inter-American commission on Human Rights, Annual Report 2016: Chapter III Activities of the Rapporteurships, Country and Thematic Reports and Promotion, scm.oas.org/pdfs/2017/CIDH/ EN/chap3.docx.

THE EUROPEAN HUMAN RIGHTS SYSTEM 538.

Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, (ECHR), 4 November 1950, European Treaty Series (ETS) No. 5; 213 UNTS 221, available at: https://www.echr.coe.int/Documents/Convention_ENG.pdf.

539.

Council of Europe, Revised European Social Charter, 3 May 1996, ETS No. 163, available at: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/163.

540.

On the European Committee of Social Rights, see: https://www.coe.int/en/web/europeansocial-charter/european-committee-of-social-rights.

541.

D v. the United Kingdom, Eur. Ct. H.R., Case No. 30240/96 (May 2, 1997). Other European Court of Human Rights cases on residency and asylum of PLWHA, include: S.J. v. Belgium; Yohekale Mwanje v. Belgium; BB v. France; Ustinova v. Russia; and JN et al. v. the United Kingdom.

542.

D v. UK, at ¶ 39.

543.

Id. at ¶ 40-41.

544.

Id. at ¶ 42.

545.

Id. at ¶ 43.

546.

Id. at ¶ 53.

547.

Id. at ¶ 46-47.

548.

Id. at ¶ 52.

549.

Id. at ¶ 53.

550.

Id. at ¶ 56-73.

551.

Kiyutin v. Russia, Eur. Ct. H.R., Case No. 2700/10 (Mar. 10, 2011).

552.

Id., at ¶ 10.

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553.

Id. at ¶ 11. Other European Court of Human Rights cases on Section 7 § 1(3) of the State’s Foreign National’s Act, include: Novruk et al. v. Russia, Eur. Ct. H.R., Cases Nos. 31039/11, 48511/11, 76810/12, 14618/11, and 13817/14 (Mar. 15, 2016).

554.

Id. at ¶ 40.

555.

Id. at ¶ 41.

556.

Id. at “Holds” ¶ 2.

557.

Id. at ¶ 72-74.

558.

Id. at ¶ 71.

559.

Id. at “Holds” ¶ 3.

560.

N v. the United Kingdom, Eur. Ct. H.R., Case No. 26565/05 (May 27, 2008). For a similar case heard before the Court of Justice of the European Communities, see Orfanopoulous & Anor v. Land Baden-Württemberg, Court of Justice of the Eur. Communities, Cases C-482/01 and C-493/01 (Apr. 29, 2004).

561. N v. the United Kingdom, at “Holds” ¶ 2. The Court did not examine if a violation under Article 8 (Right to Respect for Private and Family Life) occurred. Id. at “Holds” ¶ 3.

562.

Id. at ¶ 50.

563.

A.B. v. Russia, Eur. Ct. H.R., Case No. 1439/06 (Oct. 14, 2010). Other European Court of Human Rights cases regarding inadequate treatment of detainees living with HIV/AIDS, include: (1) Wenner v. Germany; (2) Mitkus v. Latvia; (3) APCOV v. Moldova and Russia; (4) Verdes v.

Romania; (5) Aleksanyan v. Russia; (6) Bagel v. Russia; (7) Bubnov v. Russia; (8) Denisenko and Bogdanchikov v. Russia; (9) Gablishvili v. Russia; (10) Khayletdinov v. Russia; (11) Khudobin v.

Russia; (12) Koryak v. Russia; (13) Kozhokar v. Russia; (14) Maylenskiy v. Russia; (15) Maznev et al. v. Russia; (16) MM v. Russia; (17) Mozharov et al. v. Russia; (18) MS v. Russia; (19) Pyatkov v. Russia; (20) Schebetov v. Russia; (21) Sergey Denisov et al. v. Russia; (22) Sergeyeva and Proletarskaya v. Russia; (23) Vidish v. Russia; (24) Ivanov v. Ukraine; (25) Karpylenko v. Ukraine; (26) Kats et al. v. Ukraine; (27) Konovalchuk v. Ukraine; (28) Kushnir v. Ukraine; (29) Logvinenko v. Ukraine; (30) Lunev v. Ukraine; (31) Salakhov and Islyamova v. Ukraine; (32) Sokil v. Ukraine; and (33) Yakovenko v. Ukraine.

564.

A.B. v. Russia, at ¶ 115-18.

565.

Id. at “Holds” ¶ 2.

566.

Id. at “Holds” ¶ 3.

567.

Id. at ¶ 127.

568.

Id. at ¶ 128.

569.

Id. at ¶ 132-35.

570.

Id. at “Holds” ¶ 2-3.

571.

Id. at ¶ 104.

572.

Id. at ¶ 113; 167.

573.

Id. at “Holds” ¶ 5(a).

574.

E.A. v. Russia, Eur. Ct. H.R., Case No. 44187/04 (May 23, 2013).

575.

Id.

576.

Id. at ¶ 43-44.

577.

Id. at “Holds” ¶ 2.

578.

Id. at ¶ 46.

579.

Id. at ¶ 48.

580.

Id. at ¶ 65-68.

581.

Id. at “Holds” ¶ 3(a).

582.

X. v. France, Eur. Ct. H.R., Case No. 18020/91 (Mar. 31, 1992). Other European Court of Human Rights cases regarding the acquisition of HIV through a blood transfusion, include: (1) A et al. v. Denmark; (2) Bellet v. France; (3) Demai v. France; (4) F.E. v. France; (5) Henra v. France; (6) Karakaya v. France; (7) Leterme v. France; (8) Marlhens v. France; (9) Pailot v. France; (10) Richard v. France; (11) Vallee v. France; (12) D.A. et a. v. Italy (Available Only in French); (13) Oyal v. Turkey; and (14) Sergeyeva v. Ukraine.

197

583.

Id. at ¶ 49.

584.

Id. at ¶ 32.

585.

Id. at ¶ 36.

586.

Id. at ¶ 40.

587.

Id. at ¶ 48.

588.

Id. at ¶ 49.

589.

Id. at “Holds” ¶ 2.

590.

I.B. v. Greece, Eur. Ct. H.R., Case No. 552/10 (Oct. 3, 2013). See also I v. Finland, Eur. Ct. H.R., Case No. 20511/03 (Jul. 17, 2008).

591.

I.B. v. Greece, at ¶ 48.

592.

Id. at ¶ 49.

593.

Id. at ¶ 50-54.

594.

Id. at ¶ 56-58.

595.

Id. at ¶ 91.

596.

Id. at ¶ 77.

597.

Id. at ¶ 87.

598.

Id. at ¶ 88-91.

599.

Id. at “Holds” ¶ 2.

600.

Armonas v. Lithuania, Eur. Ct. H.R., Case No. 36919/02 (Nov. 25, 2008). Other cases regarding unwanted public disclosure of HIV status decided by the European Court of Human Rights include: Biriuk v. Lithuania, Eur. Ct. H.R., Case No. 23373/03 (Nov. 25, 2008); Z v. Finland, Eur. Ct. H.R., Case No. 22009/93 (Feb. 25, 1997). For a case where a doctor did not disclose his patient’s HIV status, see: Colak v. Tsakiridis v. Germany, Eur. Ct. H.R., Case No. 77144/01 (Mar. 5, 2009).

601.

Id. at ¶ 48.

602.

Id. at ¶ 39.

603.

Id. at ¶ 47.

604.

Id. at “Holds” ¶ 4.

605.

Centre for Legal Resources on Behalf of Valentin Câmpeanu v. Romania, Eur. Ct. H.R., Case No. 47848/08 (Jul. 17, 2014). Other European Court of Human Rights cases involving children living with HIV/AIDs, include: (1) A.H. v. Russia; (2) Datser v. Russia; and (3) Vam v. Serbia.

606.

Centre for Legal Resources on Behalf of Valentin Câmpeanu v. Romania, at ¶ 122.

607.

Ibid.

608.

Id. at “Holds” ¶ 2-3. The Court did not analyze whether a separate violation under Article 3 (Prohibition of Torture) occurred. Id. at “Holds” ¶ 4.

609.

Id. at ¶ 137-38.

610.

Id. at ¶ 152-53.

611.

Id. at “Holds” ¶ 7.

THE AFRICAN HUMAN RIGHTS SYSTEM 612.

Member State Profiles, African Union, available at https://au.int/memberstates.

613.

African Charter on Human and People’s Rights, Jun. 27, 1981, OAU Doc. CAB/ LEG/67/3 rev. 5, 1520 UNTS 26363, available at https://www.achpr.org/legalinstruments/ detail?id=49#:~:text=The%20African%20Charter%20on%20Human,freedoms%20in%20the%20 African%20continent.

614.

Id., Art. 27.

615. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Jul. 11, 2003, CAB/LEG/66.6, available at https://au.int/en/treaties/protocol-african-charterhuman-and-peoples-rights-rights-women-africa.

198

Table of Contents

616.

African Commission on Human and Peoples’ Rights, Procedure, https://www.achpr.org/procedure.

617.

African Commission on Human and Peoples’ Rights, Decisions, https://www.achpr.org/communications.

618.

African Commission on Human and Peoples’ Rights, Resolutions, https://www.achpr.org/sessions/resolutions?id=153.

619. African Commission on Human and Peoples’ Rights, 29th Ordinary Session, Resolution 53 on the HIV/AIDS Pandemic – Threat against Human Rights and Humanity, https://www.achpr.org/sessions/.

620.

African Commission on Human and Peoples’ Rights, 47th Ordinary Session, Resolution 163 on the Establishment of a Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk, Vulnerable to and Affected by HIV, https://www.achpr.org/sessions/.

621.

African Commission on Human and Peoples’ Rights, Committee on the Protection of PLHIV and Those at Risk, https://www.achpr.org/specialmechanisms/detail?id=15.

622.

Id.

623.

International Justice Resource Center, http://www.ijrcenter.org/regional/african/committeeon-the-protection-of-the-rights-of-people-living-with-hiv/#Writing_Letters_Regarding_Alleged_ Violations.

624.

African Commission on Human and Peoples’ Rights, 54th Ordinary Session, Resolution 260 on Involuntary Sterilisation and the Protection of Human Rights in Access to HIV Services, https:// www.achpr.org/sessions/.

625.

African Commission on Human and Peoples’ Rights, 16th Extraordinary Session, Resolution 290 on the Need to Conduct a Study on HIV, the Law and Human Rights, https://www.achpr.org/sessions/.

626.

African Commission on Human and Peoples’ Rights, Press Release: Workshop on HIV, The Law and Human Rights in Africa: Key Challenges and Way Forward, https://www.achpr.org/ pressrelease/detail?id=152/; African Commission on Human and Peoples’ Rights, Resolution 308 On The Extension Of The Deadline For The Study On HIV, The Law And Human Rights,

https://www.achpr.org/sessions/.

627.

Protocol on the Establishment of an African Court on Human and Peoples’ Rights, adopted in Ouagadougou, Burkina Faso, on 9 June 1998, entered into force on 25 January 2004, OAU Doc. OAU/LEG/EXP/AFCHPR/PROT (III), https://au.int/en/treaties/protocol-african-charter-humanand-peoples-rights-establishment-african-court-human-and.

628.

African Court on Human and Peoples’ Rights, http://en.african-court.org/.

629.

Protocol on the African Court on Human and Peoples’ rights, Art. 3.

630.

African Court on Human and Peoples’ Rights, Finalised Cases, https://en.african-court.org/index.php/cases.

THE SOUTH-EAST ASIAN HUMAN RIGHTS SYSTEM 631.

Association of Southeast Asian Nations, About ASEAN, http://asean.org/asean/about-asean/.

632.

Association of Southeast Asian Nations (ASEAN), Charter of the Association of Southeast Asian Nations, 20 November 2007, 2624 UNTS 223, https://asean.org/asean/asean-charter/ charter-of-the-association-of-southeast-asian-nations/.

633.

ASEAN Charter, Art. 1, 2 & 4, 20.

634.

Association of Southeast Asian Nations (ASEAN), Cha-Am Hua Hin Declaration on the Intergovernmental Commission on Human Rights, adopted at the 15th ASEAN Summit, Hua Hin, Thailand, Oct. 23, 2009, http://hrlibrary.umn.edu/research/Philippines/Cha-Am%20Hua%20 Hin%20Declaration%20of%20the%20AICHR.pdf.

635.

ASEAN, ASEAN Human Rights Declaration, adopted at the 21st ASEAN Summit, Phnom Penh, Cambodia, Nov. 18, 2012, https://asean.org/asean-human-rights-declaration/.

199

636.

International Justice Resource Center, Asia, https://ijrcenter.org/regional/asia/

637.

ASEAN Human Rights Declaration, Arts. 2 and 4.

638.

Id., Arts. 10, 26.

639.

Id., Art. 29.2.

640.

ASEAN, ASEAN Initiatives on the Prevention and Control of HIV and AIDS in the Workplace (2017), https://asean.org/storage/2012/05/ASEAN-Initiatives-on-the-Prevention-and-Control-ofHIV-and-AIDS-in-the-Workplace.pdf 641.

ASEAN, supra, http://www.asean.org/uploads/archive/ASEAN_combat_aids.pdf; ASEAN, Stopping AIDS, Acting Together (2006), http://www.hivpolicy.org/Library/HPP001146.pdf.

642.

Id.

643.

ASEAN, HIV in the ASEAN Region: Second Regional Report on HIV & AIDS 2011 – 2015 (2016), https://asean.org/?static_post=hiv-asean-region-second-regional-report-hiv-aids-2011-2015.

644.

ASEAN, Statement of ASEAN Task Force on AIDS (ATFOA) in the Asia Pacific Regional Consultation on Universal Access to HIV Prevention, Treatment, Care and Support Bangkok, 31 March 2011, http://asean.org/?static_post=statement-of-asean-task-force-on-aids-atfoa-in-theasia-pacific-regional-consultation-on-universal-access-to-hiv-prevention-treatment-care-andsupport-bangkok-31-march-2011.

645.

ASEAN, 7th ASEAN Summit Declaration on HIV/AIDS Brunei Darussalam, 5 November 2001, http://asean.org/?static_post=7th-asean-summit-declaration-on-hivaids-brunei-darussalam-5november-2001.

646.

Id. at ¶ 25.

647.

ASEAN, ASEAN Commitments on HIV and AIDS Cebu, Philippines, 13 January 2007, http:// asean.org/?static_post=asean-commitments-on-hiv-and-aids-cebu-philippines-13-january-2007.

648.

ASEAN, ASEAN Declaration of Commitment: Getting To Zero New HIV Infections, Zero Discrimination, Zero AIDS-Related Deaths, http://www.asean.org/storage/archive/ documents/19th%20summit/ASEAN_Declaration_of_Commitment.pdf.

649.

ASEAN, ASEAN Declaration of Commitment on HIV and AIDS: Fast-Tracking and Sustaining HIV and AIDS Responses To End the AIDS Epidemic by 2030, http://asean.org/storage/2016/09/ Final-Endorsed_ASEAN-Declaration-on-Ending-AIDS_2016.pdf.

650.

Id. at ¶ 9.

651.

Id. at ¶ 10.

652.

Pact of the League of Arab States, adopted in Cairo on 10 May 1945, 70 UNTS 237.

THE ARAB WORLD HUMAN RIGHTS SYSTEM 653.

Egypt, Syria, Lebanon, Iraq, Transjordan (now Jordan), Saudi Arabia, and Yemen (members since 1945); Libya (1953); Sudan (1956); Tunisia and Morocco (1958); Kuwait (1961); Algeria (1962); Bahrain, Oman, Qatar, and the United Arab Emirates (1971); Mauritania (1973); Somalia (1974); the Palestine Liberation Organization (1976); Djibouti (1977); and the Comoros (1993). The website of the League of Arab States is: http://www.lasportal.org/Pages/Welcome.aspx.

654.

League of Arab States, Arab Charter on Human Rights, adopted on 15 September 1994, 18 Hum. Rts. L.J. 151 (1997).

655.

League of Arab States, (Revised) Arab Charter on Human Rights, adopted on 22 May 2004 and entered into force on 15 March 2008,12 Int’l Hum. Rts. Rep. 893. (2005), http://hrlibrary.umn.edu/ instree/loas2005.html.

656.

Jordan, the United Arab Emirates, Bahrain, Algeria, Saudi Arabia, Sudan, Syria, Palestine, Qatar, Kuwait, Lebanon, Libya, and Yemen. http://www.lasportal.org/Pages/Welcome.aspx.

657. (Revised) Arab Charter on Human Rights, Article 39.

658.

Id., Art. 45.

659.

League of Arab States, Council Resolution No. 7790, Regular Session (142) of 7 September 2014. Arabic text available at: http://www.lasportal.org/. Unofficial English translation available at: https://acihl.org/texts.htm?article_id=44.

200

Table of Contents

660.

Kingdom of Saudi Arabia, Decision of the Council of Ministers of 6 June 2016 and Royal Decree of 7 June 2016, http://www.spa.gov.sa/viewstory.php?lang=en&newsid=1514142.

661.

Id., Art. 16.1.

662.

Id., Art. 19.

663.

Cherif Bassiouni, New Arab Court for Human Rights is Fake ‘Potemkin Tribunal, International Bar Association (1 October 2014), http://www.ibanet.org/Article/Detail. aspx?ArticleUid=c64f9646-15a5-4624-8c07-bae9d9ac42df; Joe Stork, New Arab Human Rights Court is Doomed from the Start, Human Rights Watch (26 November 2014), https://www.hrw.org/ news/2014/11/26/new-arab-human-rights-court-doomed-start; Mervat Rishmawi, The League of Arab States Human Rights Standards and Mechanisms, Open Society Foundation (2015).

201

Since the beginning of the HIV epidemic, the protection of human rights has been an integral component of the international response strategy. The high degree of stigma and discrimination associated with HIV and AIDS calls for firm human rights protection, nationally and internationally. Unless the human rights of people living with HIV/AIDS are vigorously protected, scientific progress towards prevention and treatment will not achieve its full potential.

Now, more than ever, legal reform, empowerment and mobilization are necessary to protect public health and to realize the rights of people living with, and at-risk for, HIV/AIDS.

International Human Rights Center Loyola Law School, Los Angeles 919 Albany street Los Angeles, California, 90015 USA lls.inthrclinic@gmail.com This Manual on International Human Rights Protection for People Living with HIV/AIDS by the International Human Rights Center, Loyola Law School, Los Angeles is licensed under a Creative Commons AttributionNonCommercial-ShareAlike 4.0 International License.

cover image: istock 153888308 (credit to michaeljung)

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