ALQ, June 2004 Edition – International Guidelines on HIV/AIDS and Human Rights

Editorial...
Human rights are more than principles to guide the national and global response to AIDS: they are among the most powerful tools to ensure its success. [Peter Piot, Executive Director, UNAIDS]

South Africa is celebrating 10 years of democracy and the fundamental human rights principles of human dignity, equality and freedom as the cornerstone of its democracy. It is also the respect, protection, promotion and fulfilment of the principle of equality and non-discrimination, the principle of human dignity and respect, and the principle of not only equal entitlement, but equal enjoyment of all rights and freedoms that we are celebrating.

HIV and AIDS realities, however, seem to indicate that these principles and fundamental human rights appear to remain but a concept with little or no impact on people’s lives. Prevailing socio-economic imbalances and inequalities, discriminatory attitudes and practices, persistent stigmatisation, discrimination and violation of people living with, and affected by, HIV and AIDS, as well as the gendered nature of HIV and AIDS are but a few of the reflections that these principles and fundamental human rights do not coincide with the lived realities of most South Africans.

It is within this context that this edition of the ALQ focuses on the International Guidelines on HIV/AIDS and Human Rights and the extent to which the Guideline can be used as an advocacy tool to ensure a more effective human rights-based response to HIV and AIDS. The various articles in this issue examine the Guidelines as to their impact on South Africa’s response to HIV and AIDS, and explore the applicability and implementation of the principles contained in the Guidelines as they relate to draft legislation proposing the criminalisation of non-disclosure of one’s HIV status. This issue also explores aspects of women’s realities and HIV, as well as sex work and the challenges sex workers are faced with in the context of HIV and AIDS. This newsletter further reflects on the correlation between gender-based violence and HIV and AIDS. And finally, this edition includes feedback from the provincial networks and an organisational update.

The extent to which stigma affects the behaviour of people living with HIV is looked at by Jason Wessenaar. He explores the effects of stigma and subsequent internalised stigma on behaviour, including sexual behaviour, and argues that as long as issues of self-image/worth are not an integral part of education and awareness programmes, many people will remain vulnerable to, and at risk of HIV infection.

In this issue, Shaun Mellors explores the extent to which the International Guidelines on HIV/AIDS and Human Rights impact the South African response to HIV and AIDS. Reflecting on the progress made since 1999 and analysing the impact of various responses to HIV and AIDS, he argues that we are seemingly loosing the war against HIV and AIDS. His analysis indicates that in order to ensure effective responses, realistic strategies and a difference in the lives of people infected and affected by HIV and AIDS, it is not enough to only place HIV within the human rights discourse, but to use human rights as a practical tool to respond to HIV and AIDS.

The impact of women’s realities, including existing imbalances between women and men, on women’s vulnerability to HIV is assessed by Vicci Tallis. She argues that women are facing a crisis, since it is the gendered inequalities and imbalances in all spheres of society that lead to women’s greater vulnerability to HIV and AIDS. Thus, as argued further, addressing women’s inequality and vulnerability implies both to addressing women’s realities and needs and to challenging and transforming prevailing gender relations.

Draft legislation proposing the criminalisation of the non-disclosure of one’s HIV status to one’s sexual partner as a sexual offence, is dealt with in an article by Nikki Naylor. She explores the role of the criminal law pertaining to people’s sexual behaviour and conduct, the potential difficulty of proving such an offence beyond a reasonable doubt, as well as the risk of further stigmatisation and violation of people living with HIV and AIDS and argues that adequate public health measures offer a better alternative to the criminalisation of sexual conduct.

Vivienne Lalu looks at sex work and various challenges sex workers are faced with due to the criminalisation of sex work in South Africa. The need for law reform and the decriminalisation of sex work is pertinent not only to ensure the protection of the rights of sex workers, but also to maximise the impact of HIV and AIDS awareness raising, education and prevention amongst sex workers. She argues that as long as sex work is criminalised, sex workers will remain one of the most vulnerable groups to HIV infection, the impact of HIV prevention efforts will continue to be limited and the rights of sex workers will remain to be violated and discriminated against.

In this edition, Johanna Kehler reflects on the correlation between gender-based violence and HIV and AIDS in the context of fundamental principles of human dignity, equality and freedom, arguing that while the legislative and policy framework is in place, it is the prevailing inequalities and imbalances, the persistent gendered context of society and discriminatory attitudes and practices that illustrates as much the common determinants as the extent to which fundamental rights and freedoms can be realised. She argues that only a holistic, integrative and human rights based approach can begin to create an enabling environment in which both gender-based violence and HIV and AIDS realities can be adequately addressed and responded to.

While the constitutional and human rights framework is in place and premised on fundamental human rights principles of equality, human dignity and freedom, the recurring challenge appears to be the translation of these principles into a practical human-rights response to HIV and AIDS realities that impacts and makes a difference in the lives of people living with, and affected by, HIV and AIDS. It is the challenge of creating a society in which human rights coincide with human realities. It is the persistent challenge of creating a reality that is in fact, and not on theory, based on equality and non-discrimination, on human dignity and respect and the equal enjoyment of all rights and freedoms.