Speech by the Commissioner Rose-Marie Belle Antoine



Washington, D.C. July 23, 2012

Introduction and Background

AS Secretary General, Jose Miguel Insulza; UNAIDS Deputy Executive Director of Management and External Relations, Jan Beagle; Chair of the International Community of Women Living with HIV-AIDS, Patricia Perez; distinguished guests; ladies and gentlemen: Good Evening everyone. I am very pleased to be here with you representing the Inter-American Commission on Human Rights on this significant occasion, coinciding in Washington DC with the International AIDS Conference and the exhibit of the Aids Quilt at the OAS gardens. I want to thank the Art Museum of the Americas for hosting this event on this lovely terrace this beautiful evening.

In recent years Member States of the Organization of American States have made great strides in the areas of HIV prevention and treatment. Despite significant achievements in this field, many challenges remain, including with regard to the sustainability of treatment and inequities within States regarding rural and distant areas, correcting misinformation and, of course, human rights. Indeed, the Commission, from the outset, identified the clear human rights implications of the issue of HIV – the right to be free from discrimination as an individual deserving of dignity and other rights essential for their very quality of life and existence, such as the right to health and by extension, the right to life. Other possible human rights violations include the rights to life, humane treatment, personal liberty, privacy, sexual and reproductive rights, movement, equal protection, work, education, access to information, among others.

Much work remains to be done for protecting and guaranteeing the human rights of persons living with HIV/AIDS or key populations that are most at risk of contracting HIV. On a daily basis in the Americas, persons living with HIV/AIDS are subjected to acts of discrimination, ill-treatment or abuse, in all areas of public life and areas of State intervention, including the health sector, education, and employment. Stigma and discrimination have an impact on the low turnout to access counseling, testing and treatment and fuel more discrimination, thereby increasing vulnerability and risk.

The Commission’s Work on HIV

Thus, HIV involves a complex plethora of rights, cross-sectioning civil and political rights to economic and social rights. We at the Commission have recognized that the issue of HIV is not divorced from broader questions of human rights, which we as an organization strive for on a daily basis. We have never conceived of HIV and rights as something insular, that needs to be set aside and make exceptions for to give to a particular group. Rather, we have known instinctively that an INCLUSIVE approach to rights is necessary to address this issue. It is not an US vs Them approach.

From early on in the mapping of the disease, therefore, we have been able to address issues of HIV in our traditional agenda and programming, even in our system of petitions, while recognizing at the same time, that HIV brought some unique challenges to the system. In early cases, therefore, we called on governments to ensure that medical treatment was made available to PLHIV under the principle of equality and also recognizing States obligations toward health, albeit within a margin of discretion.

I can refer to one of the earliest petitions in the system, from, El Salvador, concerning Jorge Odir Miranda Cortez and 26 other persons living with HIV, who alleged that the State violated their rights to life, health, and well being by failing to provide them with the triple therapy medication needed to prevent them from dying and to article 26 (economic, social, and cultural rights). Another example is a petition from Mexico, J.S.C.H and M.G.S alleging discrimination since they had been discharged from the Mexican Army because they had the HIV, as well as for alleged violation of their rights to a fair trial and judicial protection. The Commission declared the petitions admissible with regard to alleged violations of Articles 2 (domestic legal effect) , 5(1) (humane treatment), 8(1) (fair trial), 11 (right to privacy), and 24 (equal protection) of the American Convention, in conjunction with the general obligation to observe and ensure rights provided at Article 1(1) of that international instrument.

The Inter-American Commission continues to receive petitions and requests of precautionary measures of persons living with HIV/AIDS. The Commission has also heard public thematic hearings on the subject of HIV, including one from the Caribbean, as recently as 2012. Through these interventions the Commission has received disquieting information alleging a wide array of violations, including refusal or inadequate medical treatment, denial or dismissal from employment, forced sterilization of HIV-positive women, right to life and humane treatment of persons deprived of liberty, among others.

Parallels with Race Discrimination and other Subject Areas disturbing

We also recognize the many sub-titles of HIV, which are themselves, subjects in our work at the Commission. HIV has highlighted issues of gender inequality, emphasising women’s vulnerabilities, now made clearer by the statistics for women living with HIV, equal or higher than men. This concerns us and in particular, our Rapporteurship on the Rights of Women. Similarly, HIV has special meaning for children, reproductive and health issues as well as education, which falls squarely into our Rapporteurship on the Rights of Children. More recently, the issue of migrants and HIV, particularly the denial of access to care, is a deep cause of concern in the Caribbean and Americas which will also be of interest to our Rapporteurship on Migrant Workers and their Families.

Perhaps more surprisingly, are the parallels with race, something of grave concern to me personally as the Rapporteur on the Rights of Afro-descendants and against Racial Discrimination. The subject of vulnerability to HIV on the basis of race is of course linked, at least in part, to poverty. This is so whether we are speaking of black communities within a country, or whether we identify that the 2 regions in the world where HIV rates are highest, sub-Saharan Africa and the Caribbean, are countries with majority black populations, and the link with poverty exists here also.

Perhaps more surprising are the statistics coming from the USA. AIDS is the leading cause of death for African American women ages 25 to 34. African American men are 6 times more likely to become infected than other men. And the rate of deaths from AIDS is 10 times higher for black Americans than for whites. In many countries, including 3rd world, HIV rate is falling, but in the US – stable. This, therefore, is an issue that we must now confront face on.

Of particular note is that several OAS Member States continue to have discriminatory laws criminalizing consensual adult same-sex conduct, gender expressions, and laws that discriminate based on sexual orientation and gender identity, which negatively impacts on the full enjoyment and exercise of lesbian, gay, bisexual, trans and intersex persons of their human rights -including their right to highest attainable standard of health- and severely undermine effective national responses to HIV. The dire impact of the buggery laws on the human rights of persons most at risk for contracting HIV, such as men who have sex with men and sex workers and on persons living with HIV is an issue of deep concern to the Commission.

Criminalisation of HIV

In addition, criminal laws have been put forward in the region to prosecute and punish HIV exposure and transmission. Criminalization of HIV transmission or behaviors around transmission undermines the realization of the right to health and also violates the right to privacy and non-discrimination. More importantly, criminalization of HIV distorts the focus of the issue, make victims into perpetrators and further alienate the community, instead of encouraging ownership of the HIV agenda.

Fundamental legal principles

The Inter-American Commission and the Inter-American Court have repeatedly stated that the rights to equality and non-discrimination constitute the fundamental core of the Inter-American human rights system. The organs of the Inter-American System have said that the notion of equality cannot be reconciled with the “notion to characterize a group as inferior and treat it with hostility or otherwise subject it to discrimination in the enjoyment of rights which are accorded to others [who are] not so classified”. International and regional human rights organisations have accepted HIV/AIDS as being amongst the prohibited grounds for discrimination under the category of “other status” in the general non-discrimination clauses. This has some specific implications with respect to States’ human rights obligations vis-à-vis persons living with HIV/AIDS who are subjected to their jurisdictions.

We already know that a human rights approach is fundamental to an effective HIV/AIDS response. Good law presents an opportunity for social change as a means of addressing many of the issues associated with HIV, in particular in relation to discrimination.

Different challenges arise in the varied legal systems in the region. For example, Commonwealth Caribbean constitutions do not specifically protect persons from discrimination on the basis of, sexual orientation or gender identity or have not enshrined a constitutional protection of the right to health. Some others do not provide constitutional protection on the ground of sex. The interpretation of the constitutions is often restrictive with regard to rights important to HIV. Indeed, the Commission has learnt from its public hearings that the constitutional framework and the legal systems in the Commonwealth Caribbean hinder an effective response to the HIV epidemic, as well as directly violating the rights of persons living with HIV. In contrast, in many of the Latin-American countries, there are strong constitutional frameworks ensuring such protections. In these countries the challenges are linked to implementation and lack of regulation through effective public policy.

Stigma and discrimination can be addressed through these legal frameworks, and States must certainly work toward that goal; however, States need to educate, to inform, and to raise awareness, to develop a true culture of human rights. As the right to non-discrimination is enshrined in the American Declaration on the Rights and Duties of Man and the American Convention on Human Rights, OAS Member States are bound under international human rights law to eradicate all forms of stigma and discrimination against persons vulnerable to and affected by HIV/AIDS in the Americas.

We affirm that the essence of non-discrimination is the recognition of every individual to live in dignity and freedom and this is what we at the OAS, through the Inter-American Commission on Human Rights, work toward protecting, in partnership with you, the members of civil society and States.

We have made some progress, but as we stand here to honour those whose very lives symbolize the ongoing struggle, in this quilt, let us together pledge to continue this noble work.

Thank you.