HIV and the Law: Risks, Rights & Health

Professor Aziza Ahmed of Northeastern University School of Law, who is currently a member of the Technical Advisory Group for the Commission, explains the importance of the report's findings and recommendations regarding sex workers:

 

"With regard to sex work, I think there are many passages of the report that we must commend. First, the report calls for the decriminalization of sex work.  This is an important first step in addressing the criminal laws that prevent sex workers from seeking access to care, testing, and support.  The report acknowledges, however, that decriminalization is not enough.  A range of laws must be considered: zoning, nuisance, and loitering laws (amongst others) must be examined and reconsidered for their impact on sex worker health and well-being.  Second, the report takes a much-needed critical lens to the "Swedish approach" which is designed to criminalize clients and not sex workers and yet has had many negative consequences for sex workers.  Third, the report makes a distinction between trafficking and sex work and pushes governments and policy makers not to conflate the two.  Fourth, the report highlights the many challenges raised by the Anti-Prostitution Loyalty Oath in PEPFAR that continues to be enforced for non-U.S. based NGOs working with sex workers. Alongside these four, the report highlights numerous important considerations with regard to sex workers drawing on both testimony and current evidence."

 

Through its discussion of sex workers and other marginalized groups, including, MSM, transgender people, prisoners and migrants, the report establishes that these laws inadvertently promote risky or harmful behavior, hinder people from accessing prevention tools and treatment and exacerbate stigma and social inequalities. The Commission concludes each section with recommendations for governments and international bodies in how to shape and reform law to ensure an effective, sustainable response to HIV that is consistent with human rights obligations and protects marginalized groups.  While the Commission does not provide exact tools for effectuating these changes, the report does provide realistic and pragmatic "next steps" for legal reform.  

 

The second part of the report addresses barriers to treatment. In particular, the Commission is very critical of a growing body of international trade laws and intellectual property protections. First, the report deconstructs what it calls a "pernicious myth" regarding intellectual property protections, specifically patents.  The "myth" is that patent protections and enforcements are supposed to encourage the development of new pharmaceutical products; however, current laws are so stringent that they actually impose legally protected monopolies that result in higher cost for medicine. Then, with the signing of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) in 1994, the power of pharmaceutical patent holders to control prices of drugs in global markets was strengthened enough to pose a serious threat to treatment.  The situation created by domestic IP laws and the more stringent IP provisions imposed through TRIPS has exacerbated the lack of access to HIV treatment and other essential medicines, particularly in low- and middle-income countries.  Although there are legal flexibilities in these laws, the Commission finds them to be insufficient in obviating the shortages of affordable medicine. The Commission makes several recommendations for governments and international bodies in how to shape and reform law to ensure access to affordable medicines, while encouraging medical research and development. The Commission also identifies progressive ways to use traditional laws to promote access to treatment and human rights. 

 

Despite its findings of stagnated progress, the Commission expresses optimism that success can be expanded when legal and justice systems play constructive roles in responding to HIV, by respecting, protecting and fulfilling human rights. It calls on civil society and the UN to hold governments accountable to human rights commitments and urges groups outside of government to strengthen legal recognition of the rights of PLWH and marginalized groups. This report is a powerful acknowledgment of the current crisis of law, human rights and social justice.  With continued support and recognition by the international community, important steps can be made in creating and enforcing a legal framework that that will increase social solidarity, equality and justice for PLWH.