HIV, Human Rights and the Law
by Leah Utyasheva
8 December 2014
1. COURSE NAME: HIV, human rights and the law
2. COURSE INFORMATION
Hours: 28 hours, 14 classes (alternatively 42 hours, 14 classes, each class 3 hours)
Learning Objectives: This course is designed to provide an overview of legal aspects related to the right to health and HIV and AIDS for law, social science and humanities students. It will provide students with general information on national, regional and international law related to HIV, and its relation to international human rights law principles and standards. The goal is to provide students with a foundation for understanding the difference between enabling and punitive legal environments related to HIV and the importance of enabling environment for effective national response to HIV and better public health policy. The course will provide an introduction to medical aspects of HIV, and explore barriers and obstacles to achieving universal access to prevention, treatment and care, that law and implementing practices may create. It will discuss legal regimes related to key populations at higher risk of HIV (such as people who use drugs, prisoners, men who have sex with men) and pay specific attention to how the law may contribute to their high vulnerability and risk behaviour. In terms of mechanisms for interpreting and compliance with human rights norms at the international level, the focus will be on the United Nations system but regional systems such as the European Court of Human Rights jurisdiction will be also covered. For students interested in exploring their national legislation related to HIV, there will be an option to study it. In this respect, the emphasis of the course will be on the legislation of Eastern Europe and Central Asia.
3. COURSE OUTLINE
Class 1: HIV, Human Rights and Law: General Overview
Medical aspects of HIV/ Overview of HIV. History, definitions. Why law and human rights are important in discussion about HIV?
In-class exercise: Quiz on medical aspects of HIV.
Reading: UNAIDS Terminology Guide. Global Commission on HIV and the law, Report, Risks, Rights, and Health, 2012.
Class 2: HIV and Public Health law
Surveillance, screening, testing for HIV. Prevention and treatment. Disclosure of HIV information, partner notification. Isolation and quarantine, travel restrictions, blood supply, post-exposure prophylaxis, testing and counselling.
In-class exercise: Video and discussion
Reading: UNAIDS Global AIDS Report
Class 3: International human rights and HIV
International and regional instruments related to the right to health. What is right to health? International instruments related to HIV.
In class exercise: The right to health in my country.
Reading: International Guidelines on HIV and human rights; Universal Declaration, International Covenant on economic, social and cultural rights, General Comment 14, Reports of the Special Rapporteur on the right to health. Human Rights: Now More than Ever.
Class 4: Protection from discrimination and stigma against people living with HIV
What is stigma? How it related to discrimination? Why is it important to protect PLHIV from stigma and discrimination? Discrimination: protection from discrimination based on health status; HIV status, under disability law.
In-class exercise: Discussion of cases
In-class exercise: Litigation in my country
Reading: Courting Rights: Case Studies in Litigating the Human Rights of People Living with HIV. UNAIDs Best Practice Collection (2006). Other newer cases.
Class 5: HIV, key populations at higher risk and the law
Who are key populations at higher risk? Discussion on vulnerability and risk behaviours.
In-class discussion: Key populations in my country.
Exercise: Identify laws criminalising key populations
Reading: Global Commission on HIV and the law, Report, Risks, Rights, and Health, 2012. National AIDS reports.
Class 6: Drug policy and HIV
Injection Drug use and HIV, International Drug conventions. Access to clean needles and drug paraphernalia laws. Harm reduction programmes, OST programmes. Protection from discrimination for people who use drugs. Future of drug control?
In class exercise: Case from Russia: “City without drugs”.
Reading: UNDP, Regional Issues Paper on HIV and the Law: EECA
Class 7: Sex work and HIV
Administrative and criminal laws on sex work. Prohibition of sex work, prohibition of buying sex (criminalisation of the client), solicitation, living on the avails of prostitution, organising brothel, etc. Sex work vs. trafficking for sex work.
Discussion: Regulatory regimes for sex work (Labour, health, occupation).
In-class exercise: Examples of laws where sex work is legal.
In-class exercise: Examples of laws where sex work is criminalised.
Reading: UNDP, Regional Issues Paper on HIV and the Law: EECA; World Bank, Legal Aspects of HIV/AIDS: A Guide for Policy and Law reform (2007);
Class 8: Men who have sex with men (MSM) and HIV, and LGBTI populations
Gender identity and sexual orientation in legislation. Examples of laws where consensual same sex activity is prohibited. Rights of association and expression.
Police harassment and other negative law enforcement practices.
Discussion: Public policy measures to address stigma and discrimination against MSM.
Reading: Global Commission on HIV and the law, Report, Risks, Rights, and Health, 2012. UNAIDS Policy Brief: HIV and sex between men.
Class 9: Women and girls and HIV
Gender aspects of HIV. Gender aspects of HIV prevention. Access to HIV prevention for women who use drugs. Sexual and Reproductive rights, domestic violence and HIV.
Property ownership and inheritance.
Discussion: Harmful traditional practices and HIV.
Discussion: Domestic violence and HIV.
Reading: UNAIDS, UNODC, Policy Brief, Women who inject drugs and HIV: Addressing Specific needs. OSI, Women, Harm Reduction and HIV (2008).
Class 10: 1) Children
Children vulnerable to HIV, children belonging to key populations, children affected by HIV, street children. Age of consent, child marriage. Adoption and HIV. Discrimination in education. Sexual and economic exploitation
Reading: UNAIDS, Fact sheet: Children and HIV (2014).
2) Travel, Migration and HIV
HIV and Travel and migration issues: entry and stay restrictions for PLHIV, refugees and asylum.
Discussion: Law and policy in Russia. Jurisprudence related to entry and stay for people living with HIV.
Reading: UNAIDS, WHO, UNDP, Policy Brief, HIV and Refugees. UNAIDS, UNHCR, and WHO, Policy Brief, HIV and Internally Displaced Persons. UNAIDs Policy Brief, HIV and International Labour Migration. International Guidelines on HIV and human rights.
Class 11: Access to medicine and HIV:
Patented and generic drugs, WTO and TRIPS agreement, parallel importing, exhaustion of patent rights and differential pricing. Free trade agreements.
Reading: UNAIDS, WHO, UNDP, Using TRIPS flexibilities to improve access to HIV treatment.
Class 12: Crimialisation of HIV transmission and exposure
HIV exposure and transmission: laws on negligent or intentional transmission. Duty to disclose HIV status to partner, health care provider, employer. Is it a good public policy?
In-class discussion: Examples where HIV transmission is criminalised
Examples where HIV exposure is criminalised
Why it is bad public health practice?
Reading: UNAIDS, UNDP, Policy Brief: Criminalisation of HIV transmission (2008).
Class 13: 1) HIV at the workplace
HIV at the workplace: discrimination at the workplace. Testing at recruitment and mandatory testing during employment. Denial of employment, differential treatment; disclosure and confidentiality. HIV and insurance.
Reading: World Bank, Legal Aspects of HIV/AIDS: A Guide for Policy and Law reform (2007). International Guidelines on HIV and human rights.
2) Disability and HIV: Disability protection in law and practice. Convention on rights of persons with disabilities. Do HIV and AIDS constitute a disability? Examples of laws on disability and HIV.
Discussion: Do HIV and AIDS constitute a disability?
Reading: Convention on rights of persons with disabilities. UNAIDS, WHO, Policy Brief, Disability and HIV. “HIV, disability and human rights: perspectives on the inclusion of HIV as disability within the UN convention on the rights of persons with Disabilities (Elliott, Utyasheva).
Class 14: 1) Other instances of discrimination: Discrimination in housing, Discrimination in education. HIV and people in prisons and detention facilities.
2) Medical law and HIV: Refusal to treat, disclosure and confidentiality (in detail), Universal precautions, hospital transmission of HIV and responsibility of health care staff
HIV as socially dangerous condition.
Reading: World Bank, Legal Aspects of HIV/AIDS: A Guide for Policy and Law reform (2007). International Guidelines on HIV and human rights. World Prison Population List.
Class 15: Overview of national legislation in relation to HIV. Does it contribute to punitive or enabling legal environment?
Conclusion. How to adopt good public policy and laws to ensure effective HIV response? Importance of enabling legal environment. Addressing stigma and discrimination.
Discussion: What have we learned. What can we do to influence better public policy in relation to HIV?
Class Evaluation: class participation (40%), presentation (40%) and attendance (20%)
Class 1: Why human rights is important in discussion about HIV? How HIV is special? Medical aspects of HIV/ Overview of HIV
Class 2: HIV and Public Health
Class 3: International human rights and HIV: International and regional instruments related to HIV
Class 4: Drug policy and HIV
Class 5: Constitutional law and protection from Discrimination
Class 6: Criminal law and HIV
Class 7: Administrative law and HIV
Class 8: Employment law and HIV
Class 9: Disability law and HIV
Class 10: Family Law and HIV
Class 11: Immigration law and HIV
Class 12: Medical law and HIV
Class 13: Access to Public Services and Accommodations
Class 14: Housing and HIV; Education and HIV
Class 15: Conclusion: HIV and public health
UNAIDS Terminology Guidelines (2011), available at http://www.unaids.org/sites/default/files/media_asset/JC2118_terminology-guidelines_en_0.pdf.
Global Commission on HIV and the law, Report, Risks, Rights, and Health, 2012. http://www.hivlawcommission.org/resources/report/FinalReport-Risks,Rights&Health-EN.pdf.
UNAIDS, Report on the Global AIDS epidemic, (2013) http://www.unaids.org/sites/default/files/en/media/unaids/contentassets/documents/epidemiology/2013/gr2013/UNAIDS_Global_Report_2013_en.pdf.
International Guidelines on HIV/AIDS and human rights (2006), http://www.ohchr.org/Documents/Publications/HIVAIDSGuidelinesen.pdf.
Universal Declaration of Human Rights, (1948), http://www.un.org/en/documents/udhr/,
International Covenant on Economic, Social and Cultural Rights (1966), http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx
Committee on Economic, Social and Cultural Rights, The Right to the highest attainable standard of health, General Comment 14 (2000), http://www1.umn.edu/humanrts/gencomm/escgencom14.htm.
Reports of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, See at http://www.ohchr.org/EN/Issues/Health/Pages/SRRightHealthIndex.aspx.
Human Rights and HIV/AIDS: Now More than Ever. Ten reasons why human rights should occupy the center of the global AIDS struggle, http://www.opensocietyfoundations.org/sites/default/files/nmte_20090923_0.pdf.
Courting Rights: Case Studies in Litigating the Human Rights of People Living with HIV. UNAIDs Best Practice Collection (2006). http://www.unaids.org/sites/default/files/en/media/unaids/contentassets/dataimport/pub/report/2006/jc1189-courtingrights_en.pdf.
UNDP, Global Commission on HIV and the law, Regional Issues Paper on HIV and the Law: Eastern Europe and Central Asia, (2011) http://www.hivlawcommission.org/index.php/eeca-dialogue-documentation.
World Bank, Legal Aspects of HIV/AIDS: A Guide for Policy and Law reform (2007); http://siteresources.worldbank.org/INTHIVAIDS/Resources/375798-1103037153392/LegalAspectsOfHIVAIDS.pdf
UNAIDS Policy Brief: HIV and sex between men.
UNAIDS, UNODC, Policy Brief, Women who inject drugs and HIV: Addressing Specific needs. http://www.unodc.org/documents/hiv-aids/publications/WOMEN_POLICY_BRIEF2014.pdf
OSI, Women, Harm Reduction and HIV (2008). http://www.opensocietyfoundations.org/publications/women-harm-reduction-and-hiv.
UNAIDS, Fact sheet: Children and HIV (2014). http://www.unaids.org/sites/default/files/media_asset/FactSheet_Children_en.pdf.
UNAIDS, WHO, UNDP, Policy Brief, HIV and Refugees. http://www.unaids.org/sites/default/files/en/media/unaids/contentassets/dataimport/pub/report/2007/jc1300-policybrief-refugees_en.pdf
UNAIDS, UNHCR, and WHO, Policy Brief, HIV and Internally Displaced Persons. http://www.unhcr.org/4e1467049.html
UNAIDS Policy Brief, HIV and International Labour Migration. http://www.unaids.org/sites/default/files/media_asset/jc1513_policy_brief_labour_migration_en_0.pdf.
UNAIDS, WHO, UNDP, Using TRIPS flexibilities to improve access to HIV treatment.
UNAIDS, UNDP, Policy Brief: Criminalisation of HIV transmission (2008). http://data.unaids.org/pub/basedocument/2008/20080731_jc1513_policy_criminalization_en.pdf.
Convention on rights of persons with disabilities (2006). http://www.un.org/disabilities/convention/conventionfull.shtml.
UNAIDS, WHO, Policy Brief, Disability and HIV. http://www.who.int/disabilities/jc1632_policy_brief_disability_en.pdf.
Journal of the International AIDS Society, “HIV, disability and human rights: perspectives on the inclusion of HIV as disability within the UN convention on the rights of persons with Disabilities (Elliott, Utyasheva). J Int AIDS Soc. 2009; 12: 29. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2788342/.
World Prison Population List (10th edition). Available at http://www.prisonstudies.org/research-publications?shs_term_node_tid_depth=27.
Робин С. Шарма