International law, forced migration, and HIV/AIDS

Three interrelated branches of international law, which complement and reinforce each other, relate to HIV/AIDS , refugees, and IDPs. In each field, the body of law is primarily made up of treaties, which create binding obligations for the countries that have ratified them. International law is informed by authoritative interpretations of treaty provisions, international consensus documents, and the comments and recommendations of the bodies created by each treaty to monitor implementation. The three interrelated fields are outlined below.

International human rights law

A human rights framework provides a useful basis for understanding and addressing the vulnerability of refugees to HIV/AIDS. It helps address societal and contextual factors that determine vulnerability, and to analyse how approaches to tackling HIV/AIDS may protect and possibly violate human rights ( Mann 1999 ; Holmes 2001 ; McLellen 2001 ; Marin et al. 2003 ). This includes respecting people’s right to health and essential medicines (such as antiretrovirals), non-discrimination, confidentiality, privacy, information, freedom of movement self-determination, and protection from violence. UNHCR, UNAIDS, and a number of NGOs have all integrated a human rights framework into their policies, guidelines, and activities (see ‘International Guidelines’ section below for links to guidelines ^X).

International human rights law relating to health and HIV/AIDS includes Article 25(1) of the Universal Declaration of Human Rights (UDHR), the 1966 International Covenant on Economic, Social, and Cultural Rights (ICESCR), and its partner covenant, the International Covenant on Civil and Political Rights (ICCPR). Of most relevance is Article 12 of the ICESCR, which recognizes ‘the right of everyone to enjoy the highest attainable standard of physical and mental health’. In the refugee context, the ICESCR states that everyone has rights with regard to health, without mention of citizenship or legal residency. The principle of non-discrimination is also fundamental to human rights law and is of particular significance to both displaced people and those living with HIV/AIDS who frequently suffer from high levels of stigma and discrimination. This is reflected in Article 1 of the UDHR, the Preamble to the UN Charter, and Article 2(2) which states that these rights apply without discrimination of any kind as to ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. The UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities has considered that ‘other status’ in the non-discrimination context should include health status (UN doc. E/CN/.4/Sub.2/1994/L.42). See http://www.unhchr.ch/html/intlinst.htm for the specific international human rights instruments.

The United Nations Committee on Economic, Social, and Cultural Rights, the treaty body composed of experts to monitor implementation of the ICESCR provisions, provided further details in 2000 on Article 12 through ‘General Comment 14’, which makes explicit reference to HIV/AIDS ( http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En?OpenDocument). This committee also recognized that refugees, asylum seekers, and illegal immigrants are vulnerable and marginalized individuals that should be protected under the treaty’s non-discrimination clause.

Further substantive and procedural support is provided by regional mechanisms such as the European Social Charter (Articles I and II); the European Convention on Human Rights and its five protocols (Article I); the African Charter on Human and Peoples’ Rights (Article 16); the American Convention on Human Rights (Article 4); and the American Declaration on the Rights and Duties of Man (Article XI).

International human rights conventions, such as the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, http://www.un.org/womenwatch/daw/cedaw/), are also of relevance (Articles 10, 12, 14, and 16).The CEDAW Committee, which is a treaty body, issued a General Recommendation in 1999 on Article 12 of the Women’s Convention, which states outright that access to health care includes reproductive health care for all women and girls, ‘even if they are not legally resident in the country’. The Committee noted that special attention should be given to the health needs and rights of refugee and internally displaced women. The Convention on the Rights of the Child (1989) has also been used to try to meet the needs of children impacted upon by conflict and the HIV/AIDS epidemic ( http://www.unhchr.ch/html/menu3/b/k2crc.htm).

A number of international conferences have used a human rights approach to advance reproductive health and the fight against HIV/AIDS. Most notably, the 1994 International Conference on Population and Development (ICPD) helped develop a broader, more expansive human rights based approach to reproductive health. This included HIV/AIDS and reproductive health in conflict situations, noting that ‘reproductive health care should be available in all situations and be based on the needs and expressed demands of refugees, particularly women, with full respect for the various religious and ethical values and cultural backgrounds of the refugees while also confirming with universally recognized international human rights’ ( http://www.unfpa.org/icpd/). While such international consensus documents do not create binding obligations, they are agreed to by governments and thus reflect political will. They are also widely used by NGOs as advocacy tools and by treaty-monitoring bodies as standards for evaluating how states are meeting their treaty obligations.

While international human rights law provides a solid legal basis for health rights, it is subject to a number of weaknesses which have limited its impact ( Girard and Waldman 2000 ). Its enforcement mechanisms are notoriously weak, and in the case of ICESCR, are limited to reporting by countries to the treaty body. Treaties generally also do not create legal obligations for non-state actors such as insurgent groups, who might control territories where many refugees or IDPs find themselves. Additionally, certain human rights can be suspended in times of war or in serious national emergencies, precisely at the time when refugees and IDPs are most likely to need this protection. Furthermore, human rights conventions do not deal explicitly with internally displaced populations or forced relocations, do not provide for a right of access by humanitarian organizations, and are not binding on rebel forces. Also, in practice, refugees often remain on the periphery of effective protection. Non-nationals, simply because of their lack of citizenship, are perceived to stand outside the community, and on that basis may be denied their entitlements under international human rights law. Finally, even when dealing with their own citizens, particularly IDPs, many states are unwilling or unable to observe binding obligations included in the human rights treaties they have ratified ( Goodwin-Gill 1996 : 55).

The human rights approach has also been criticized in a number of ways. Firstly, on the grounds that the emphasis upon individual rights fails to acknowledge the fundamental nature of contagious disease which requires a communal, public health effort. Secondly, that the individuality of the human rights approach has meant that the structural questions of distribution of resources and power have been marginalized and that a social justice framework would be more appropriate ( De Cock et al. 2002 ). Whilst the use of human rights discourse and law by agencies promoting HIV/AIDS care can be used as a lever to improve government responsiveness, it also runs the risk of antagonizing the government against such agencies, and may prompt accusations of impartiality against agencies on the part of governments ( Rieff 2002 ; Fox 2001 ; White and Cliffe 2000 ; Slim 1997b ).

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International refugee law and humanitarian law

The UNHCR 1951 Refugee Convention and related Protocol of 1967 (see http://www.unhcr.org/cgi-bin/texis/vtx/basics) address the specific rights of refugees. The Convention requires signatory countries to treat refugees lawfully staying in their territory the same as they treat their own nationals, with respect to social security schemes including health (Article 24).

IDPs are also not covered by the Refugee Convention. To address this shortfall, non-binding legal principles on internal displacement have now been developed and disseminated. These draw on analogous refugee law and existing humanitarian and human rights law ( Deng 1999 ) and include the right to health care. However, responsibility for the protection and provision of basic services to IDPs still rests with national governments, many of which may be unwilling to prioritize the delivery of services to IDPs, or may lack the technical capacity to coordinate or monitor the programmes of international humanitarian organizations during emergencies.

Humanitarian law provides an important complement to human rights and refugee law regarding the provision of health services in times of armed conflict. It partially addresses internally displaced populations, forced relocations, and the right of access by humanitarian organizations. It is set forth in the 1949 Geneva Conventions and their two 1977 Additional Protocols (see http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/party_gc). These apply to non-combatants such as refugees and IDPs in situations of international armed conflict and in certain situations of internal armed conflict. The basic principles include the obligation for all parties to collect and care for the sick and the wounded, as well as the obligation to respect and protect hospitals, ambulances, and medical personnel, and to provide protection against rape and indecent assault.

However, humanitarian law does not cover all armed conflict situations, with internal conflicts being particularly problematic, and the difficulty in enforcing international law is often exacerbated in cases of civil war. Although IDPs are guaranteed certain basic rights under the Geneva Conventions, ensuring these rights are secured is often the responsibility of authorities that were responsible for their displacement in the first place. The IDPs can also not invoke the same legal protections as refugees. As a result, access by IDPs to health care is often very limited, particularly as often no specific international humanitarian agency is responsible for providing them with protection and humanitarian assistance. Although a representative of the UN Secretary-General on Internally Displaced People was appointed in 1992 and Guiding Principles on Internal Displacement were introduced in 1998, these are not legally binding.

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