The struggle against the crisis of HIV/AIDS turned a corner in the last year or two with the emergence of a strong and coherent global movement in favor of access to treatment for all persons with the disease. Inequity of treatment access between rich and poor countries has been a feature of the pandemic since use of antiretroviral (ARV) drugs emerged as a standard response to AIDS in wealthy countries in the mid-1990s. It is only more recently that the combination of an active campaign by non-governmental organizations,1 the model of a state-sponsored program in Brazil that provides generic ARV drugs to all persons with HIV/AIDS,2 clarity on the real costs of developing and testing ARV drugs,3 and aggressive marketing by generic ARV manufacturers have led to discussions of wider ARV availability in low-income countries as a realistic possibility.

Campaigners for treatment access have made their case largely on ethical and humanitarian grounds. Their case is bolstered by the unprecedented scale of the pandemic-over 40 million people infected, the vast majority in countries where treatment has been virtually inaccessible4-which dwarfs the mortality of most of modern history's humanitarian crises or wars. Sub-Saharan Africa has seen over 24 million deaths, mostly of adults in the prime of their productive lives. In addition to humanitarian arguments, public health experts, including 133 Harvard University professors working on various aspects of HIV/AIDS, have made the argument that efforts to prevent HIV/AIDS will fail without expanded access to treatment.5 That is, people in affected countries have no incentive to come forward to be tested for HIV or even to be informed about it if the result of knowing one is positive is to be told that nothing can be done except modification of sexual behavior. The hope of treatment provides strong incentive for testing. The nine-site, seven-country pilot ARV treatment program of the Nobel Prize-winning humanitarian organization Médecins sans Frontières (MSF) is one of many that are demonstrating that access to ARV drugs as well as treatment for opportunistic infections (OI) associated with AIDS result in dramatically increased utilization of preventive services.6 In addition, there is some evidence that treatment can lead to reduced rates of transmission by infected persons as viral loads decline with ARV use.7

The HIV/AIDS treatment access movement has enjoyed a number of recent victories. In 2000, some thirty-nine pharmaceutical companies took the government of South Africa to court to challenge the implementation of provisions of the Medicines and Related Substances Act of 1997, which would facilitate the production and importation of generic medicines. International pressure generated in part by the treatment access movement is widely credited with the decision of the companies to withdraw the case in April 2001.8 That withdrawal, in turn, is credited by some experts as motivating the government of Kenya to pass a similar law in June 2001, putting in place processes for compulsory licensing-authorization to manufacture drugs without holding the patent as a response to an emergency-as well as for importation of generic ARV medicines.9 Nigeria entered into an agreement with an India-based generic drug manufacturer to offer relatively low-cost treatment to large numbers of persons with AIDS there, a move being watched closely by other African countries.10 The MSF pilot program, which is designed to demonstrate the feasibility of furnishing drugs and monitoring patient compliance in low-income settings, is something of a victory and has the potential to inform the design and implementation of treatment programs across the world. In addition, a consensus statement from the World Trade Organization summit in Qatar in November 2001 was widely interpreted as clarifying the right of all countries to use compulsory licensing in public health emergencies and to determine when emergencies occur.11 In Thailand, shortly after the Doha summit, the government agreed to the demands of persons with HIV/AIDS to include some generic antiretroviral drugs in a government health care subsidy scheme.12

In spite of these victories, wider treatment access in low-income and middle-income countries faces important obstacles, including the obvious issue of cost. Even the reduced-cost generic ARV drugs now being marketed are far too expensive for countries that spend a few dollars per person on health services annually. Some experts have argued that poor health infrastructure in many low-income countries will impede proper implementation and supervision of treatment protocols. Treatment access advocates point out that protocols are being simplified with the utilization of new generic combination drugs, and many emerging experiences on the ground, including that of MSF, are beginning to demonstrate that implementation and monitoring of ARV treatment are possible even in health systems characterized by deficient infrastructure. Cost remains an overriding concern, however, and advocates most recently appear to be focused on the need for greater support of bilateral assistance programs and multilateral mechanisms that would contribute to subsidization of drugs for people with AIDS.13

In addition to humanitarian, ethical and public health arguments, access to ARV and OI treatment for persons living with HIV/AIDS has been recognized as a human right, notably in a resolution of the Commission on Human Rights (CHR) of April 2001. CHR Resolution 2001/33, entitled "Access to Medication in the Context of Pandemics such as HIV/AIDS," asserts the right to ARV and OI treatment as part of "achieving progressively the full realization of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health," echoing the language of article 12 of the International Covenant of Economic, Social and Cultural Rights (ICESCR) on health as a human right.14 The resolution also echoes the link noted above between treatment and prevention, asserting that "prevention and comprehensive care and support, including treatment and access to medication for those infected and affected by pandemics such as HIV/AIDS, are inseparable elements of an effective response".15 Resolution 2001/33 passed by a vote of fifty-two member states to none, with the United States, then a CHR member, abstaining.

Bolstering the rights arguments made in the CHR decision, Richard Elliott recently asserted that access to ARV drugs and other key measures related to states' duty to realize the right to health for their people should be understood to supercede states' commitments made in international trade agreements such as the World Trade Organization Agreement.16 Some experts have charged that the intellectual property provisions of the WTO rules or the invocation of some interpretation of them by wealthy countries has on various occasions thwarted access to generic ARVs in low-income countries.17

The purpose of this paper is to make an additional human rights argument for access to treatment of HIV/AIDS by demonstrating the connections between access to treatment and both (1) the realization of other human rights related to HIV/AIDS and (2) the protection from certain human rights abuses.

II. TREATMENT ACCESS AND HUMAN RIGHTS

HIV/AIDS has long been associated with a wide range of human rights abuses, both those that facilitate HIV transmission, such as the subordinate status of women that renders them unable to resist unsafe sex or negotiate condom use, and those that target persons already infected, such as discrimination in employment and in access to services of the state. This section highlights human rights abuses that would be lessened if persons with HIV/AIDS had access to treatment for their disease.

A. Treatment and the crisis of HIV/AIDS for children

The most destructive infectious disease epidemics in the history of the world tended to claim the lives of young children and the elderly with their weaker immune systems. HIV/AIDS is different. Its preferential prey is adults in the prime of life, a group likely to be the heart of productive and reproductive activities in any country. As a result, the rate of orphaning of children as AIDS kills their parents, particularly in Africa, is unprecedented in history. Ominously, orphans are only the tip of the iceberg. For every child who has lost a parent to HIV/AIDS in high-prevalence countries, there is likely to be another or several others who, because a parent or caregiver is ill with AIDS, are unable to stay in school or are obliged to become household breadwinners. UN figures, which are thought to be conservative, estimate something on the order of 13 to 15 million children under age fifteen orphaned by AIDS, the vast majority in sub-Saharan Africa.18 The U.S. Bureau of the Census, which projects orphan numbers using a somewhat different formula from that of the United Nations and over a longer period, estimates that without significant change in the course of the epidemic, there could be 28 million orphans from AIDS under age fifteen in Africa by 2010.19

Although there have been many journalistic accounts of the horrible circumstances faced by children orphaned and otherwise affected by HIV/AIDS, the human rights catastrophe that HIV/AIDS represents for children seems still to be underappreciated. Millions of AIDS-affected children suffer the dual crisis of being without adequate family care and protection and of being stigmatized and socially marginalized because of HIV/AIDS. They are, as a result, extremely vulnerable to human rights abuses. Human Rights Watch and others have documented a wide range of human rights abuses against children orphaned and otherwise affected by HIV/AIDS, including:

1. Inability to realize their right to education, in violation of Article 13 of the ICESCR and Article 28 of the Convention on the Rights of the Child (CRC)

The withdrawal of children from school when an adult in the household becomes ill with HIV/AIDS and their inability to be enrolled in the first place because of the effects of HIV/AIDS on the household have been widely documented.20 In Kenya, the Ministry of Education told Human Rights Watch that girls are much more likely to suffer AIDS-related inability to realize their right to education, not only because they are more readily seen to be able to contribute to care-giving in the household but also because boys' education is more highly valued.21 HIV/AIDS depletes family income through both increased medical expenses and the debilitation of income-earners. As even primary education entails sometimes exorbitant school fees in many countries, the expenses associated with AIDS in the family may mean that school fees cannot be paid. In some countries, tens of thousands of AIDS-affected children have little hope of being educated for these reasons, and governments have done little to address this crisis.

2. Police abuse and violence

It has been reported in many countries that orphans and other children affected by AIDS are swelling the numbers of children living and working on the street or otherwise homeless.22 Street children around the world are at high risk of abuse and violence at the hands of the police, in addition to other indignities and dangers they face.23 Street children are often treated as criminals and are afforded few protections by governments, which tend to regard them as nuisances or threats to security of the public. Justice systems often slight the legal rights of street children. Human Rights Watch has documented police abuse against street children in locations as diverse as Kenya, Bulgaria, Guatemala and India.24

3. Hazardous labor, in violation of the International Labour Organization Convention 182 on the elimination of the worst forms of child labor and Article 32 of the CRC

Children who have little or no schooling and are desperate to help poor families meet medical costs for a dying adult are under great pressure to engage in income-generating activities, no matter how dangerous. A number of girls orphaned by AIDS told Human Rights Watch in Kenya that the only way they and their siblings could survive was for them to engage in prostitution.25 Similar findings have been documented elsewhere in Africa.26

4. Disinheritance of property and lack of equal protection before the law in making property claims

Human Rights Watch's work in Kenya revealed a feature of the juvenile justice systems of many African countries, namely that they are strong on treating children as criminals but weak on ensuring basic human rights protections for them.27 This characteristic is understandable in that the juvenile law is based on the premise that the extended family will care for children who are without parents or otherwise in need of protection. Unfortunately, in countries where AIDS has eaten into the rights of children, it has also led to the deterioration of the extended family.28 In highly affected communities, it is rare that only a child's parents and not also the siblings and cousins of his or her parents would be afflicted with AIDS, often leaving only elderly grandparents to provide care. Children without family protection are very vulnerable to appropriation of the property-homes or land-that they would otherwise be entitled to inherit. "Property grabbing" has been widely documented against children orphaned by AIDS and widows of AIDS sufferers.29 In Kenya, Human Rights Watch found, neither the juvenile justice system nor the family courts or other parts of the judiciary are equipped to deal with the thousands of claims of children for protection against these predatory practices.30

Treatment access for persons with AIDS would contribute greatly to slowing the rate of future orphaning and would afford hundreds of thousands of children now in households with AIDS-affected caregivers a longer period of adult care and thus some protection from the abuses noted above. A wide range of other measures, of course, is needed to ensure protection of this extremely vulnerable population of children. But the restoration of adequate health to enable parents with AIDS to provide care to their children and contribute to the livelihood activities of the household would have a more dramatic impact on the social and human rights crisis currently being experienced by AIDS-affected children than perhaps any other policy tool available to governments.

B. Treatment and discrimination and stigma

In countries where antiretroviral drugs and treatment for opportunistic infections of HIV/AIDS are available and the symptoms of the disease have become largely invisible, it is easy to forget that AIDS is a debilitating and horrifically painful condition. Opportunistic infections such as cryptococcal meningitis, pneumonia and tuberculosis are disabling, and a variety of skin rashes and other diseases are disfiguring. All of these conditions are highly prevalent among AIDS sufferers, particularly in countries where underlying health and sanitation services are weak. "I can't even go to the market with my skin this way," one young woman with AIDS told Human Rights Watch in Kenya.31 This testimony was one of many from AIDS sufferers who reported being ostracized by their neighbors and employers and even fellow worshipers at church based in part on the outward symptoms of their disease.

Theodore De Bruyn notes that two of the most important determinants of discrimination against persons with AIDS are that the disease is fatal and that, in spite of many information campaigns throughout the world, people are afraid of catching it from casual contact.32 If there were greater access to the kind of treatment that has so drastically improved the quality and duration of the lives of persons with AIDS in wealthy countries since the mid-1990s, much of this discrimination would presumably be neutralized. Effective treatment enables persons with AIDS to manage their illness as a chronic condition, renders their symptoms largely invisible, and allows them to carry on with their work and their lives, as has been shown in North America, Western Europe and countries such as Brazil. This does not mean a total absence of stigmatization and discrimination. Laws around the world still bar persons living with HIV/AIDS from certain kinds of employment, including the public sector, regardless of their access to treatment. But treatment has a dramatic impact on the quality of life, the visibility of the infection and the capacity of persons with AIDS to live lives free of the worst kinds of stigma.

C. Treatment and the human resource base needed to promote and protect human rights

In addition to the public health arguments noted above, Alan Berkman notes another link between treatment and prevention-that prevention of HIV/AIDS has generally not been shown to be effective in the absence of civil society mobilization of support for preventive services. In most countries, he notes, such mobilization has been spearheaded by persons with HIV/AIDS themselves.33 "Their leadership is as vital as that of any country's political leaders," in Berkman's view.34 This argument finds an analog in many human rights movements. Those who suffer themselves from human rights abuses are likely to form the most effective core of advocates and leaders for reduction of violations and abuses generally. The depletion and debilitation of persons with AIDS impede effective advocacy by this group for the realization of AIDS-related human rights. Others have made a more macro-level argument that the mortality of HIV/AIDS has so greatly depleted highly affected countries of their human resources that the rule of law and other mechanisms for upholding social values are threatened. HIV/AIDS in this view is a security threat: in heavily affected countries, mortality is so high among police, the military, civil servants, teachers, and community leaders that there is a breakdown of the human resource base that ensures security and the rule of law.35 At either level, it is clear that access to treatment on an important scale would strengthen the essential capacity of people to assert their own human rights and to mobilize society and public institutions for the realization and protection of rights more broadly.

D. Treatment and the improvement of infrastructure and other health services

As previously noted, it is often argued that poor countries do not have sufficient infrastructure to ensure the implementation and monitoring of treatment services, an assertion that MSF, among other groups, is currently testing in its pilot projects in the developing world. Berkman, the Harvard faculty members in their consensus statement, and others have argued, rather, that some degree of creation or strengthening of health services can follow naturally from the implementation of AIDS treatment programs.36 Berkman contends, for example, that treatment programs are likely to help build the kind of infrastructure that would be needed for eventual AIDS vaccination programs.37

Treatment access programs, if well applied, may contribute to redressing another important case of discrimination in health services that is directly related to HIV/AIDS vulnerability, namely the access of girls and young women to health services, especially reproductive health services. In most sub-Saharan African countries, girls up to age eighteen are infected with HIV at much higher rates-often five or more times higher-than boys in the same age group.38 In some countries, the same is true of young women up to age twenty-four. One of the many reasons girls and young women are more vulnerable to HIV transmission is their high rate of infection with other, curable sexually transmitted diseases and the discrimination they often face in gaining access to treatment and information with respect to these diseases. In many countries, girls are still required to have the permission of a parent, and women of their husbands, to have access to certain reproductive health services.39 Even if not discriminated against by law, girls in many countries are still likely to suffer greater stigma than boys in seeking services for sexually transmitted diseases and birth control. AIDS treatment programs that would correctly target young people and would not discriminate against girls would have the potential to break down barriers to access for this population to reproductive health services, a key factor in HIV prevention.

E. Treatment and the right to information

In quantitative terms, the right to basic information about HIV/AIDS is arguably the most widely violated AIDS-related human right. Survey after survey shows that even in heavily affected countries, children and young people do not have access to basic information on protecting themselves from HIV transmission.40 It seems clear, though comprehensive reports are hard to find, that governments in many countries with severe epidemics are neglecting their responsibility to ensure the enjoyment of this right, including through public school curricula and through the use of state-run media outlets. As treatment access leads to greater utilization of voluntary HIV testing services, testing and counselling venues will become settings for addressing the inability of affected communities to realize their right to basic information about HIV/AIDS. People who believe they may be at risk of HIV infection are those most likely to come forward for testing if they have the hope of treatment, and for the HIV-negative persons in this population-and their sex partners-information and counselling will address a crucial gap.

III. CONCLUSION: OBLIGATIONS OF DONOR COUNTRIES

Human rights law confers on states the responsibility through international cooperation to assist resource-poor states in the progressive realization of economic, social and cultural rights, such as the right to health.41 This responsibility is particularly pertinent for the case of treatment of HIV/AIDS and its many clinical sequelae since cost is the main barrier to treatment access. By any measure, international assistance to combat HIV/AIDS has been meager relative to the destruction of the disease.42 The "global fund" established by the United Nations Secretary General in the hope of providing a multilateral mechanism for channeling large donations to low-income countries fighting the epidemic has drawn only a fraction of the anticipated pledges.43

Donor countries that support both promotion of human rights and the fight against HIV/AIDS in their official assistance programs would merge those two areas efficiently by supporting greater access to ARV treatment for the poor. Persons with AIDS who enjoy the benefits of antiretroviral treatment can extend the period during which they can protect their dependent children from abuses, can themselves be protected from discrimination on the basis of disability and visible symptoms, and can enjoy the capacity to play a vital role in the continuing struggle against AIDS and the discrimination and suffering it brings.

* B.A. 1977, Princeton University, Princeton, NJ; Master of Public Health 1981, Columbia University, New York, NY; Ph.D. 1988, Public Health Nutrition, Cornell University, Ithaca, NY; Director, HIV/AIDS and Human Rights Program, Human Rights Watch.

1. See, e.g., reports on treatment access campaigns of Oxfam International at http://www.oxfam.org/what_does/advocacy/cost.htm, Médecins sans Frontières at http://www.

accessmed-msf.org/campaign/hiv01.shtm, and other information at www.globaltreatmentaccess.org.

2. Tina Rosenberg, Look at Brazil, N.Y. TIMES, Jan. 28, 2001, (Magazine), at 26.

3. See, e.g., PUBLIC CITIZEN, RX R&D MYTHS: THE CASE AGAINST THE DRUG INDUSTRY'S R&D SCORE CARD, (2001), available at http://www.publiccitizen.org.

4. JOINT UNITED NATIONS PROGRAMME ON HIV/AIDS (UNAIDS), AIDS EPIDEMIC UPDATE (2001), available at www.unaids.org.

5. Gregor Adams et al., Consensus Statement on Antiretroviral Treatment for AIDS in Poor Countries, (Mar. 2001), available at http://www.hsph.harvard.edu/hai/overview/news_events/

events/consensus_aids_therapy.pdf.

6. Rachel Cohen, Médecins sans Frontières, Presentation at Health GAP Coalition Retreat in New York, NY (Dec. 15, 2001).

7. Ronald H. Gray et al., Probability of HIV-1 transmission per coital act in monogamous, heterosexual, HIV-1-discordant couples in Rakai, Uganda, 357 LANCET 1149, 1149-53 (2001).

8. Janet McBride, Drug Firms Lose Battle in Long and Costly War, REUTERS (London), Apr. 19, 2001 at http://biz.yahoo.com/rf/0101419/119303587_3.html.

9. Chris Tomlinson, Kenyan Parliament Passes Law Allowing Importation of Cheaper Aids Drugs, ASSOCIATED PRESS (Nairobi), June 12, 2001.

10. Chris McGreal, Defiant Nigeria to Import Cheap Copies of AIDS Drugs, THE GUARDIAN, Dec. 11, 2001, at 2, available at http://www.guardian.co.uk/aids/story/0,7369,616827,00.html.

11. Jennifer L. Rich, Brazil Welcomes Global Move on Drug Patents, N.Y. TIMES, Nov. 16, 2001, at W1.

12. Uamdao Noikorn, Thailand to Include AIDS Treatment in Subsidized State Health Care Plan, ASSOCIATED PRESS (Bangkok), Nov. 30, 2001, available at http://www.stopgettingsick.com/ Conditions/condition_template.cfm/4424/66?i=16.

13. Salih Booker, AIDS: Another World War, THE NATION, Jan. 7, 2002, at 5.

14. Access to Medication in the Context of Pandemics such as HIV/AIDS, Hum. Rts. Comm. Res. 2001/33, U.N. ESCOR, 57th Sess., Supp. No. 3, 71st mtg. at 169, U.N. Doc. E/CN.4/2001/167 (2001), available at http://www.unhcv/html/menu2/2/57chr/57main.htm.

15. Id. at 1.

16. Richard Elliott, TRIPS and Rights: International Human Rights Law, Access to Medicines and the Interpretation of the WTO Agreement on Trade-Related Aspects of Intellectual Property, Nov. 2001, available at http://www.aidslaw.ca (prepared for Canadian HIV/AIDS Legal Network).

17. See, e.g., Press Release, Médecins sans Frontières, Statement by Médecins sans Frontières (MSF) on TRIPS and Affordable Medecines (Sept. 18, 2001), at http://www.accessmed-msf.org.

18. UNAIDS, Children Orphaned by AIDS: Front-line Responses from Eastern and Southern Africa 2 (Dec. 1999), available at http://www.unaids.org/publications/documents/children/young/

orphrepteng.pdf.

19. Susan Hunter & John Williamson, U.S. Agency for Int'l Development, Children on the Brink: Strategies to Support Children Isolated by HIV/AIDS 12 (2000), at http://www.syneryaids.com/ files.fcgi/1515_intro97.pdf [hereinafter Children on the Brink].

20. HUMAN RIGHTS WATCH, KENYA, IN THE SHADOW OF DEATH: HIV/AIDS AND CHILDREN'S RIGHTS IN KENYA, 13-14 (2001) available at http://www.hrw.org/reports/2001/kenya/kenya0701.PDF (last visited Jan. 30, 2002) [hereinafter IN THE SHADOW OF DEATH].

21. See id. at 12.

22. See id. at 10, (summary of evidence).

23. See Human Rights Watch, Easy Targets: Violence against Children Worldwide, 14-16 (2001) at http://www.hrw.org/reports/2001/children/children.pdf (last visited Jan. 30, 2002) (summary of investigations of abuses against children).

24. Id.

25. For some of these accounts, see IN THE SHADOW OF DEATH, supra note 20, at 14-15.

26. See generally UNICEF Eastern and Southern Africa Regional Office, Child Workers in the Shadow of AIDS: Listening to the Children (2001).

27. See IN THE SHADOW OF DEATH, supra note 20, at 19-21.

28. Carol Levine & Geoff Foster. The White Oak Report: Building International Support for Children Affected by AIDS, The Orphan Project, 24-27 (2000).

29. See, e.g., World Health Organization ("WHO") and UNICEF, Action for Children Affected by AIDS: Programme Profiles and Lessons Learned 7 (2000).

30. See IN THE SHADOW OF DEATH, supra note 20, 17-21.

31. Id. at 22.

32. Theodore de Bruyn, HIV/AIDS and Discrimination: A Discussion Paper, Canadian Legal Network and Canadian AIDS Society, (1998), available at http://www.aidslaw.ca.

33. Alan Berkman, Confronting Global AIDS: Prevention and Treatment, 91 AM. J. PUB. HEALTH 1349 (2001).

34. Id.

35. HIV/AIDS as a Security Issue 14-20, Int'l Crisis Group (2001).

36. Berkman supra note 33, at 1349, and Harvard Consensus Statement, supra note 5, at 7-8.

37. Berkman, supra note 33, at 1349.

38. Joint United Nations Programme on HIV/AIDS (UNAIDS), Report on the Global HIV/AIDS Epidemic: June 2000, 46-49 (2001) [hereinafter Report on Global HIV/AIDS Epidemic].

39. See, for example, CTR. FOR REPRODUCTIVE L. & POL., WOMEN OF THE WORLD: LAWS AND POLICIES AFFECTING THEIR REPRODUCTIVE LIVES, ANGLOPHONE AFRICA (New York, 2001), for examples from a heavily AIDS-affected region. The Center for Reproductive Law and Policy produces such reports from other regions as well. See website at http:// www.crlp.org.

40. Report on Global HIV/AIDS Epidemic, supra note 38, at 42-44.

41. Int'l Covenant on Econ., Social and Cultural Rts.. G.A. Res. 2200A, 21st Sess., Art. 2(1) (1966).

42. Amir Attaran & Jeffrey Sachs, Defining and Refining Int'l Donor Support for Combating the AIDS Pandemic, 357 LANCET 57, 57-61 (Jan. 6, 2001).

43. Booker, supra note 13, at 5.

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