AIDS and Human Rights

I. Introduction

For more than a decade, the international community has made efforts to promote approaches to the prevention and control of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (HIV/AIDS) pandemic that are both effective and highly respectful of individual rights, especially the rights of persons infected or considered to be at high risk of infection. This effort has proceeded globally and regionally as well as at the national and local levels. Although the outcome in relation to respect for rights has been far better than many public health and human rights advocates had feared, few analysts or officials believe that governments have been doing enough to modify their practices in such areas as entry restrictions at national borders, mandatory testing of various groups, implementation of a right to medical treatment, and protection of persons with AIDS against discrimination.

The reasons for the apparent failures to protect rights are myriad and have roots at the local, national, regional, and global levels. This article seeks to extend our understanding of such factors, and suggests cultural, economic, biomedical, social, and political reasons for the failures. This article also considers why most of the leading international public health and human rights organizations have been less than fully effective in their efforts to promote rights together with effective HIV/AIDS prevention and control. The article then seeks to combine the analyses of these factors with a close look at the policies advanced in a wide array of documents and statements that intergovernmental organizations (IGOs) and international nongovernmental organizations (NGOs) have issued since 1983. This effort is shaped in part by a series of interviews conducted by the author between 1992 and 1994, as well as by many of the seminal interpretative works of scholars in diverse disciplines.

The policy statements of the international community arise from multiple factors that shape and limit the effort to combine public health solutions and respect for rights. As such, the policy statements, whether intended to be legally binding or suggestive, also constitute intervening variables in relation to the independent pressures and constraints on, and the ultimate outcomes of, the effort to develop rights-protective public health solutions. However, these policy statements deserve to be studied carefully for their possible contributions to both successes and failures in the cause for which they were enlisted, and for the evidence that they provide concerning constraints on human rights advocacy at both the national and international levels.

No single scholar, and probably no research unit, can hope to study completely and definitively the impact of human rights prescriptions and proscriptions on the entire global encounter with HIV/AIDS; no organization has yet to complete such a survey. ² Too many kinds of human rights issues relate to this pandemic, too many countries and other political subdivisions experience impacts in diverse ways, and too few places have reliable, systematic, or meaningful mechanisms to compile complaints concerning the violation of rights.

Various studies, written in different years and emphasizing varying geographical regions and issues, have come to different conclusions about the overall levels of respect for human rights in relation to the pandemic. The studies discussed in this article also reflect the varying assessments of the effects of global and regional initiatives on national and subnational governmental policies as well as respect for such rights by private organizations and citizens. For example, academicians David L. Kirp and Ronald Bayer, commenting primarily on government policies in developed countries, emphasize contrasting but generally positive responses to human rights and related concerns, but question the durability of such favorable patterns. ³ Lisa Bloom and Ana María Linares agree that there were negative patterns of government policies in various parts of the developing world in the mid 1980s, but they disagree on subsequent trends, which presumably were affected by global and regional efforts to encourage respect for human rights. Linares concludes that in 1991, Latin American states were “heading towards more pragmatic and humanistic approaches to AIDS legislation.” ⁴ Bloom, employing a much less rigorous methodology than Linares and her Pan-American Health Organization [PAHO] colleagues, denigrates as inadequate...