HIV, disability and discrimination: making the links in international and domestic human rights law
Stigma and discrimination constitute one of the greatest barriers to dealing effectively with the HIV epidemic, underlying a range of human rights violations and hindering access to prevention, care, treatment and support. Some have called for the creation of a specific international human rights convention to address discrimination and other human rights violations against people living with HIV or AIDS (PLHIV).
Others have felt that such an effort is impractical and unnecessary: impractical, because it can take decades to develop and negotiate a treaty through the United Nations, even where there is interest among member states; and unnecessary, because international human rights treaties have already been interpreted as prohibiting discrimination based on health status, including HIV and AIDS, which also means that discrimination that hinders the enjoyment of all other human rights protected by these treaties is also prohibited.
Nonetheless, the extent of states’ obligations to address discrimination on the grounds of HIV status has not been comprehensively addressed in any international treaty.
In December 2006, following intensive, years-long advocacy by disability rights activists, the UN General Assembly adopted the Convention on the Rights of Persons with Disabilities, which entered into force in May 2008 . As countries ratify the convention, they are required to amend national laws and policies to give greater protection to the human rights of people with disabilities, including abolishing disability-based discrimination by the state and protecting persons against such discrimination by others. The Disability Convention addresses many of the issues faced by PLHIV, but it does not explicitly include HIV or AIDS within its open-ended definition of “disability”. We recognize that whether and how HIV and/or AIDS should be conceived of as disabilities, for various legal or other purposes, is a matter of some ongoing debate among people living with HIV, people living with (pre-existing) disabilities and those advocating for human rights in these areas. There certainly are points of divergence and some tension between movements and organizations.
Therefore, the advent of the Disability Convention prompts us to consider the links between HIV and disability and, specifically, to consider the opportunities it and other legal mechanisms, international or domestic, may afford for advancing the human rights of PLHIV as a constituency facing human rights infringements. We do so with the conviction that the movement for human rights is stronger when constituencies with so many common and overlapping interests are united, and that respectful and strategic collaboration ultimately strengthens both the disability rights and the AIDS movements.
In this article, we first examine the links between HIV and disability. We then provide a brief overview of how international human rights law has treated both disability and HIV/AIDS.
We note some of the different ways in which national anti-discrimination laws have reflected the links between HIV and disability, illustrated with some representative examples from a number of countries.
Finally, we offer some conclusions and recommendations about ways forward for collaboration between HIV and disability rights advocates in advancing human rights at the international level, including the use of the new tool, the Disability Convention. We hope these reflections will promote further discussion across movements, ultimately to the benefit of all persons with disabilities and/or HIV.