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Watchirs, Helen --- "A Human Rights Approach to HIV/AIDS: Transforming International Obligations into National Laws" [2002] AUYrBkIntLaw 3; (2002) 22 Australian Year Book of International Law 77

A Human Rights Approach to HIV/AIDS: Transforming International Obligations into National Laws

Helen Watchirs[∗]


The Human Immunodeficiency Virus (HIV) spreads along the fault lines of society, thriving upon and in turn worsening situations that are prone to human rights abuses. It opens new opportunities for discrimination and unequal treatment of vulnerable communities.[1] This article explores the connection between the HIV/AIDS (Acquired Immunodeficiency Syndrome) epidemic and human rights protection. Over 60 million people have been infected by the virus, including 18.5 million women and three million children under the age of 15 years, and approximately 20 million people have died in the last two decades.[2] As the Secretary-General of the United Nations (UN), Kofi Annan, describes the epidemic: ‘this is a threat to an entire generation; this is a threat to an entire civilization’.[3] These figures dwarf the fatalities suffered in the last century’s world wars, the second of which served as a catalyst for the creation of our current international human rights regime. Activists are increasingly using the language of ‘holocaust’ to describe the skewed impact of the epidemic,[4] rather than the generalised terms such as ‘plague’ that were used two decades ago.[5]

The sheer magnitude of the epidemic reveals, at least intuitively, that human rights, such as the core right to health, are not effectively protected by those responsible, that is governments and civil society. A key to reversing the spread of HIV/AIDS and reducing its devastating impact is taking a human rights approach. The behaviours of sex and injecting drug use, and human toll of ill-health and death are not comfortable ones to discuss, but without open dialogue on these challenging human rights issues, moral rhetoric will continue to prevail over real action in some of the worst-affected countries where governments have failed to act effectively.

This article explores the intersection between international human rights obligations and their observance at national and other levels in the context of HIV/AIDS. It argues that increased compliance with human rights norms may be gained by auditing legal implementation of the specific benchmarks in the International Guidelines on HIV/AIDS and Human Rights.[6] The article describes a new methodology for charting progress or deterioration in the legal protection of human rights, on the assumption that ‘what gets measured gets done’.[7] Specificity is an important safeguard against states parties using ‘weasel’ words to avoid implementing international obligations.[8] Such a mechanism should be especially useful in dualist states where international instruments are not self-executing (as in monist states), and require domestic legislation to make them operative.[9] The audit attempts to answer the call by the late Jonathan Mann, the founder of the health and human rights movement, to ‘move from concepts to action in health and human rights’.[10]

The Guidelines were developed in 1996 to specify how general human rights standards applied in the specific context of the epidemic. They set out concrete legislative and other measures that could be taken at national levels. The Guidelines only have the status of ‘soft’ law. That is, they do not contain formal legal obligations, but are modifiable where standards are rapidly evolving.[11] Paradoxically, because the Guidelines are more specific than ‘hard’ treaty obligations, they are more able to be implemented in domestic legislation. This enables them to be subjected to accountability and measurement tools such as a human rights audit. The audit consists of ten qualitative indicators based on the Guidelines to make quantitative measures assessing compliance in the legal dimension of justiciable rights. It evaluates the legal response to the epidemic and is designed to lead to local and national law reform, and increased community rights consciousness. Governments and civil society can only meet their international obligations if they know and understand what are the specific requirements for doing so, for example, the requirement not to discriminate unfairly on the basis of HIV-status. In the United Kingdom deficiencies in the legal system identified by a similar methodology called democratic audit,[12] led to the enactment of the Human Rights Act 1998.

At the international level a human rights audit can be useful in refining monitoring by the UN treaty bodies by capturing gaps between international obligations and national legal implementation. In having comprehensive data systematically prepared in the HIV/AIDS area, the work of the treaty bodies could be made more focused in terms of dialogue and follow-up. Although the audit was designed in a developed country, it should be applicable to developing countries where data on law are available (that is, up-to-date written legislation or laws are accessible to the public, for example on internet websites). The quantitative outcomes of the audit can be linked to other disciplines, such as epidemiology, which also uses quantitative measures to track the epidemic. These links are much more difficult to identify in developing countries because of the lack of quality health and other relevant data. This article recognises that a form of law audit is only a first step in measuring actual compliance with international obligations, whether through enforcement of such laws or other administrative means.

The article first describes the limited history of international attempts to measure human rights, and discusses the use of indicators in the UN system, particularly the treaty bodies. It traces international concern with HIV/AIDS over the last decade and the scope of the International Guidelines on HIV/AIDS and Human Rights. The methodology of the proposed HIV/AIDS and human rights audit is briefly outlined, including the preliminary results of applying the audit in some Australian jurisdictions in 2002. The audit should increase accountability in the UN human rights regime as well as streamlining reporting to the treaty bodies, which is backlogged and under-resourced. The article describes what is involved in taking a human rights approach to HIV/AIDS and how it is different to a public health approach. Human rights promotion and protection are an essential precondition or foundation for realising health and wellbeing. Human rights offers a more effective and coherent framework of analysis than public health or medical approaches focusing on individual risk behaviour and vulnerability of populations, and using simple determinants of health, such as social class. The justification for using a human rights approach is that it can make a difference in preventing transmission of the virus, enabling those already infected and affected to cope better with the consequences of infection, and empowering individuals and communities to respond effectively to the epidemic. International human rights norms can provide not merely an effective framework of analysis of the HIV/AIDS problem, but also a legally binding foundation with procedural, institutional and other accountability mechanisms to address the societal basis of vulnerability to implement transformation.[13]

Two key concepts underpinning the methodology of the audit are compliance with international human rights law and justiciability of rights. Despite ‘dense webs of influence’ operating in the UN human rights monitoring regime,[14] compliance with human rights is wanting at national levels, partly through ambiguity of obligations and lack of resource capacity. The auditing process could be integrated in the international reporting process, as well as in the provision of technical support by UN agencies at national level, thus making their operational work more targeted and systematic. The concept of justiciability recognises that law can be a powerful tool to prevent and remedy human rights abuses, but it is only part of the framework necessary for securing the actual enjoyment of human rights.

International Concern with HIV/AIDS

The HIV/AIDS epidemic is increasingly recognised as a serious national and international human rights and security threat because of its destructive social instability.[15] During 2001, five million people were newly infected with HIV.[16] By the end of 2001 it has been estimated that the epidemic has created 14 million orphans who have lost one or both parents.[17] In sub-Saharan Africa, where the epidemic is now centred, it is estimated that there are 29.4 million people living with HIV, of whom 3.5 million became infected in 2001.[18] Recent development achievements, such as economic progress and social gains like school enrolments, are being eroded due to the impact of the epidemic. Socio-economic factors contributing to the spread of HIV/AIDS that have a disproportionate impact on developing countries include poverty, illiteracy, gender inequality, increased mobility of populations within and between countries, and rapid industrialisation involving the movement of workers from villages to cities, and consequent breakdown of communities.[19] Because HIV/AIDS is concentrated in adults at the peak of their economic productivity and as heads of families, it has an immense impact on life expectancy, increases the burden on health systems, and exacerbates inequality.[20] In a few years of accelerated spread, HIV/AIDS has become the leading cause of adult death in some developing countries, and may be the most important macro-economic and social determinant of human welfare and poverty.[21] In Botswana, life expectancy has dropped from the 1980-1990’s level of over 60 years to the 1950’s level of about 36 years (more than 33 years less than it would have been in the absence of HIV/AIDS).[22]

Successful responses have been linked to voluntary approaches that both respect human rights and are rooted in the community.[23] Political commitment from government and other leaders, combined with the coordination of adequate resources, has already turned the tide of the epidemic in developing countries such as Thailand and Uganda, with the latter having nearly a 50 per cent reduction in new infections.[24] Similar work has begun in other countries such as Senegal, Zambia, Botswana, South Africa, India and the Philippines. Measures relying on education and prevention have stabilised the epidemic in many industrialised countries, but only in some developing countries, as many are experiencing rapid growth of HIV/AIDS cases.[25] Global spending on HIV/AIDS research, care, and prevention reflect this disparity: developing countries only receive a small amount of such resources despite having over 95 per cent of cases.[26] The Global Fund to Fight AIDS, Tuberculosis and Malaria established in 2002 with funds of US$2.1 billion pledged over five years will help to redress this imbalance.[27]

In 2000 the UN Security Council held a session on a health issue for the first time, as it considered the HIV/AIDS epidemic to be as destabilising as any war.[28] In the Declaration of Commitment adopted at the UN General Assembly Special Session (UNGASS) on HIV/AIDS in June 2001, 189 nations undertook to implement human rights and other effective measures required to respond to the epidemic. However, the Declaration gives only implicit endorsement to the International Guidelines due to their controversial content, despite earlier supportive resolutions by the UN Commission on Human Rights (and Sub-Commission), and Reports by the Secretary-General.[29] Whether the solemn pledges given in the Declaration of Commitment are actually implemented by UN member states remains to be seen. Monitoring of and accountability for these commitments are essential, given the legacy of inaction in some countries where the epidemic has grown exponentially.

Indicators are being drawn up to measure the extent and impact of government action, for example, the Joint United Nations Programme on AIDS (UNAIDS) has developed a National Composite Policy Index to assess progress at country level. The Country Assessment Questionnaire has a section on human rights with four questions: two on anti-discrimination laws (in respect of people living with HIV/AIDS and vulnerable groups), and one each on equal access to prevention and care, and ethical regulation of human research.[30] The relevant indicator is one of national commitment and action, rather than program and behaviour outcomes (such as increased knowledge or behaviour change), or impact (reduced rates of HIV infection). Although this UN monitoring is useful, it does not address human rights issues relevant to the epidemic in enough depth or range, compared to the human rights audit proposed in this article.

A Human Rights Approach to HIV/AIDS

It has been widely acknowledged that the epidemic is not just a health problem requiring a simple medical solution. There are many ways in which an effective response to the HIV/AIDS epidemic can be directed at international and national levels, including medicine, epidemiology, infectious disease control, vaccines, and social sciences, for example, community mobilisation and communications.[31] This article argues that an approach based on human rights is a valuable and productive one.

A human rights approach involves comprehensively integrating the norms, standards and principles of the international human rights system into the design, implementation and evaluation of HIV/AIDS policies and programs. A human rights approach can be justified by the comprehensive obligations contained in international customary and treaty law to safeguard economic, social, cultural, civil and political rights, and identify right- and duty-holders. The obligations merit promotion in their own right, independent of the additional need for their implementation in the context of HIV/AIDS. The duty consists of three human rights obligations: to respect – abstaining from interference with the enjoyment of rights; to protect – preventing interference by others; and to fulfil – taking the measures necessary to ensure realisation.[32] The term ‘human rights approach’ used in this article means using a method of analysis based on international human rights instruments to determine the applicable rights in the relevant circumstances, and whether they have been respected, protected and fulfilled, or on the other hand, violated by governments and other responsible parties. Implementation of the wide array of human rights is not merely through legal means, although this is the focus of the article, but requires the commitment of financial resources, trained personnel, facilities and sustainable infrastructures. The relevant context is broader than the health sector, as the major determinants of health and human rights conditions are underlying civil, cultural, economic, political and social structures.[33]

The link between lack of respect for human rights and the HIV/AIDS epidemic is threefold. First, discrimination increases the impact of the epidemic on people living with HIV/AIDS and those presumed to be infected, as well as their family and associates.[34] Second, people are more vulnerable to infection when their economic, social or cultural rights (for example, the rights to health and work) and/or civil and political rights (for example, the right to privacy) are not respected, protected or fulfilled.[35] Women are disproportionately affected by the epidemic, as shown in sub-Saharan Africa where 58 per cent of the 29.4 million people living with HIV are women.[36] Global maps showing the course of the epidemic appear to follow inversely the Gender Empowerment Measure (that is, the lower the rights of women, the higher the number of cases of HIV).[37] In South Africa twice as many young women are infected than young men, reflecting women’s economic dependence on older men and social subordination in terms of lower access to education, health care, land, credit and other resources.[38] Third, where civil and political rights (for example, the freedoms of speech and association), and economic, social and cultural rights are not satisfied (for example, information is not available in an accessible language), it is difficult or impossible for civil society to respond effectively to the epidemic.[39] In some countries non-governmental organisations (NGOs) and community-based organisations cannot conduct peer education or even convene public meetings, because they are refused official registration, based on the illegal status of their members or the likelihood of their criticism of government action or inaction. In China an AIDS activist, Dr Wan Yanhai, was detained by government security forces for posting a classified document revealing the infection of a million rural workers through unsafe blood collection processes.[40] A positive example of exercising the rights of association and participation is the development of the idea of needle exchanges, which was first formed in 1984 by a ‘junky union’ of drug users in Amsterdam.[41]

Public Health and Human Rights

AIDS is the first global epidemic to occur in the modern era of human rights.[42] Rights-based approaches to the epidemic have been rejected at various times in countries or provinces where there is a pre-existing authoritarian political heritage, such as Cuba, which had a policy of detaining HIV-positive people in sanatoria.[43] The view expressed by a Chinese AIDS expert is not unique: ‘AIDS serves the purpose of cleansing the human race since it will eliminate the degenerates’.[44] The most convincing and durable arguments for using a human rights normative framework are that it provides legitimacy through existing comprehensive legal obligations, albeit with weak enforcement mechanisms based on reporting compliance and violations. Appeals from a public health framework to provide sex education, condoms, and needle exchanges, lack this legal (as opposed to merely moral) legitimacy, coherence and imperative to do something.[45] Although definitions of human rights norms are sometimes vague, this has often been the result of political negotiations inherent in the process of drafting international instruments. However, jurisprudence implementing the norm of non-discrimination is well developed at international and national levels.[46] Using the framework of human rights in an expanded response to the epidemic gives ‘real-world meaning beyond the realization of enumerated rights for their own sake’.[47] The prime advantage in having the existing UN procedural framework is that it provides a forum in which to compare the effectiveness of states’ actions in meeting their obligations.

Protection of public health is sometimes an express exception to human rights obligations. Traditional public health practice in relation to epidemics has often undermined human rights, by focusing on population outcomes rather than the impact of the process on individuals. In areas such as vaccinations, the legal power of the state has been untrammelled in terms of identifying and discriminating against individuals, compulsorily testing and isolating them.[48] However, there is increasing recognition that public health provides an added justification for respecting human rights.[49] Strategies in both fields can be complementary and mutually reinforcing in terms of processes that are respectful of human rights and effective health outcomes. A rights-based prevention approach recognises social vulnerability to HIV/AIDS in different contexts, not only individual risk behaviour, which is subject to choice. Stigmatised or disempowered populations, such as women, children, gay men, injecting drug users and sex workers, are not entirely free to choose their behaviour, but are constrained by their social conditions.[50]

The conceptualisation of such risk-taking behaviours is important in determining how they can be addressed. Human rights with its use of concepts such as human dignity, offers a more persuasive paradigm than public health, for identifying and understanding the essential conditions in which people can exercise their right to health, that is to be healthy.[51] Public health discourse focuses on the average health of populations, while human rights discourse is targeted at addressing the rights of individuals.[52] However, the intrinsic value of human rights exists independently of its effectiveness in public health terms.

Public health examines systemic factors causing ill-health in populations, whereas a biomedical framework focuses on clinical treatment of individual disease and illness.[53] Public health is essentially a history of legal regulation, collective action and structural reform to ensure healthy environments.[54] Public health often relies on legislation as the ultimate and authoritative expression of policy. It therefore intersects more with a common method of human rights implementation than medicine, with its reliance on individual, ethical relationships. Many public health empirical studies demonstrate the simple link between socio-economic status and health.[55] A human rights framework goes beyond socio-economic status as a determinant of health and provides a coherent framework for societal change.[56] Such a construction is empowering because good health becomes a legal entitlement or guarantee, and recognises that universal health standards are enforceable and not able to be taken away arbitrarily, without recourse.[57] The human rights lens offers a wider perspective for identifying what is wrong with laws and practices that exacerbate the impact of the HIV/AIDS epidemic, and harnessing positive legal measures that are protective of human rights, such as anti-discrimination and privacy laws.

The International Guidelines

International concern with HIV/AIDS as a human rights issue reached a high point in 1996 with the development of the International Guidelines at the Second International Consultation on HIV/AIDS and Human Rights. The earlier First International Consultation on HIV/AIDS and Human Rights in 1989,[58] and several reports by a Special Rapporteur in the early 1990s highlighted the gap between international obligations, national policies and local practices, particularly in relation to discrimination.[59] In the mid-1990s the UN Secretary-General reported to the Commission on Human Rights that there was a need for guidelines to be developed that clearly outlined how existing human rights standards applied in the area of HIV/AIDS.[60] Participants at the Second Consultation formed a unique combination of practical and policy skills and ranged from international and national NGOs (HIV/AIDS and generalist human rights), national AIDS program managers or committee members, to academics and legal service providers.[61]

The 12 guidelines developed by the Consultation provide benchmarks in three approaches: improving governmental responses in terms of multisectoral responsibility and accountability of processes; widespread law reform and legal support services; and increasing private sector support and community participation in the response to the epidemic.[62] The second of these approaches (Guidelines 3-6) is the focus of measurement in the audit based on the Guidelines. Guideline 3 covers public health measures, including voluntary testing and informed consent, notification of cases to authorities, partner notification, infection control and coercive measures such as detention. Guideline 4 identifies the need for criminal and penal law reform in the areas of transmission offences, supply of needles and syringes, decriminalising consensual and private adult sexual acts, providing occupational health and safety measures for sex work and ensuring humane treatment of prisoners (for example, voluntary testing and access to treatment). Guideline 5 covers anti-discrimination and other protective legislation (for example, employment and privacy law) as well as the discriminatory impact of laws affecting vulnerable populations, including women, children and same-sex relationships. Guideline 6 requires government to regulate the provision of relevant goods, services and information, including HIV-testing kits, condoms, treatments and to ensure that research involving humans is ethical. It also addresses freedom of communication (for example, broadcasting standards and censorship) and community mobilisation (exercising rights to assembly and association). In 2001 the International Labour Organization (ILO) developed a Code of Practice, HIV/AIDS and the World of Work. It is also non-binding like the Guidelines, but is complementary in terms of its fundamental principles of non-discrimination, confidentiality, gender equality, social dialogue, prevention, care and support.[63] In 2002 Guideline 6 was updated to reflect developments in the area of access to treatments. This has become the key community human rights concern, particularly with huge equity barriers in respect of developing countries.[64]

Access to HIV Treatment Medications

A major human rights development since the Guidelines were developed in 1996 has been the recognition of the developing demand for a right to treatment, with the availability of effective anti-retroviral treatments. A stumbling block has been the domination of the pharmaceutical industry by globalised transnational corporations.[65] The UN Commission on Human Rights has called upon states to facilitate access in other countries to medicines, and welcomed the Doha Declaration to the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) and Public Health.[66] There have also been reports on the impact of TRIPS to the High Commissioner for Human Rights.[67] At the regional level it is interesting to note that the European Commission of Human Rights has held that the grant of a compulsory license in a patented drug under national law is not an interference with the right to the protection of property because it encourages technological and economic development.[68]

At the national level, multinational pharmaceutical companies challenged the validity of South African legislation enabling compulsory licensing and parallel importing, but the litigation was withdrawn in 2001 following pressure from national and international NGOs.[69] In 2002 the Constitutional Court in South Africa required the government to provide the antiretroviral drug Nevirapine to HIV-positive pregnant women to prevent intra-partum HIV transmission.[70] South Africa is the most difficult developing country case with five million people infected, as it shows that unprecedented formal political and legal equality can coexist with spiralling HIV infection rates and deepening poverty. The epidemic thrives in an environment of weak resources and government capacity.[71]

History of Attempts to Measure Human Rights

Attempts at human rights measurement have not generally been very successful, usually due to being over-ambitious in their scope and not scientifically rigorous enough in their methodology.[72] The two major studies have been by Charles Humana and Freedom House in the 1970s and 1980s.[73] The UN Development Programme (UNDP) used the Humana Human and Political Freedom Indexes in the early 1990s, but withdrew them after intense controversy. In its Human Development Report on Human Rights in 2000 the UNDP explained that the Humana Indexes were unreliable because they were more qualitative than quantitative, and not replicable. Composite or summary scores are not transparent or readily understandable, and therefore do not identify or communicate to policymakers what changes are required to improve human rights protection.[74] Other critics regarded the methodology as biased, unrepresentative of relevant human rights standards, using unverifiable information and arbitrary weightings.[75] In 1999 the World Bank used the Freedom House Index of political and civil liberties for measuring the rule of law in a governance indicator.[76] Criticisms of the Freedom House methodology include the use of unknown advisory panels, conservative sponsorship, lack of disaggregated ratings, non-specificity and changeable standards.[77]

The UNDP’s Report Human Rights and Human Development in 2000 highlights the need for national legislative audits based on core international human rights to identify when action is required to address gaps and contradictions:

The emerging framework of international human rights law provides a strong foundation for deriving indicators on the legal obligations of the state. Bringing quantitative assessment to the legal framework is empowering governments to understand their obligations and the actions needed to meet them. It is also empowering civil society to stand up in court and provide advocacy.[78]

The Report recommends that law be measured both as it is written, as well as it is applied, since laws may not be enforced in practice because of the greater resources required.[79] This suggests that the human rights audit explored in this article should be conducted in two stages: first, formal legal implementation and second, actual enforcement.

Human Rights Indicators in the UN System
and Treaty Bodies

In order to integrate the human rights audit developed in this article into the existing UN monitoring system, the role of indicators in the regime needs to be explored. Indicators can give an overall picture of human rights if they are used in a precise and systematic way, and develop core contents and a minimum threshold required of rights implementation.[80] The 1990 Report of the UN Special Rapporteur on Realising Economic, Social and Cultural Rights identified several roles that can be played by indicators, including a quantifiable measurement device of direct relevance to the rights: a means of measuring progressive realisation over time; a method for determining problems or difficulties in implementation; and a comparative yardstick whereby progress can be tracked between countries.[81] The Special Rapporteur stated that established UN economic and social indicators were ‘largely peripheral’ to the human rights system.[82]

The UN Centre for Human Rights convened an expert seminar in 1993 to discuss the development of economic, social and cultural indicators.[83] The group concluded that indicators required the detailed conceptualisation of the scope, nature and content of each right and ensuing obligation through clarifying and defining them. It cautioned against the use of existing statistical indicators without first subjecting them to a rigorous human rights analysis, and warned that it may be ‘premature or inappropriate … to apply quantifiable indicators’.[84] This tentativeness was probably influenced by UNDP’s negative experience in using the Humana Index described above.

Indicators were again explored at a UN Workshop on Civil and Political Rights Indicators held in 1999 to overcome the focus of previous work on economic, social and cultural indicators. The Workshop warned of the difficulty in quantifying policy and stated that composite indexes were unreliable, and not amenable to problem-solving.[85] It recommended that indicators be clear, concise, valid and legitimate to avoid manipulation and distortion. The Workshop highlighted the need for UN human rights monitoring mechanisms, principally the treaty bodies, to use indicators to make their operational work more systematic and targeted. However, participants recommended that benchmarks at the national level should not be used comparatively, because they are not prescriptive. The Workshop identified three areas in respect of the administration of justice where indicators could be developed: independence of the judiciary; fair trials; access to justice and effective remedies for human rights violations.

Interest in human rights indicators in the UN system has been concentrated in the development area.[86] The UN Development Assistance Framework (UNDAF) is based on Common Country Assessments (CCA) that review and analyse the national development situation, and identify key issues for advocacy, policy, and dialogue.[87] UNDAF was developed by the UN Development Group, of which the Office of the High Commissioner for Human Rights (OHCHR) is a member.[88] It is a common program and resource framework for development activities and the foundation for UN system cooperation and coordination of complementary projects between agencies, governments and other development partners.[89]

Human rights concerns have been integrated into the CCA Indicator Framework following the Secretary-General’s 1997 Report, which identified human rights as a cross-cutting theme for UN agencies.[90] There was initial resistance by non-human rights specialists to incorporating human rights indicators, because of the perception that there were no objective measurement tools, and belief that they would focus on controversial civil and political violations.[91] The Indicators attached to the CCA Guidelines are based on International Conference goals,[92] as well as Convention Indicators on Governance and Civil and Political Rights,[93] including the areas of international legal commitments, administration of justice, and security of the person.

The CCA Guidelines note that all categories of indicators may be expressed in human rights terms, for example, in areas of health, food, education, employment, housing and gender equality.[94] The World Bank proposed the Comprehensive Development Framework (CDF) in 1999 as a poverty reduction strategy based on an holistic approach to development that recognised the interdependence of social, structural, human, environmental, economic, financial and governance factors.[95] It is consistent with UNDAF and more work needs to be done to integrate the two UN system Frameworks, particularly to promote consistency with the broader UN Millennium Development Goals.[96]

There seems to be a general reluctance on the part of UN human rights treaty monitoring bodies to embrace measurement methodologies, beyond asking for disaggregated statistical or other data in their reporting guidelines.[97] Targeted indicators could be a means of increased accountability, as well as a practical method of streamlining reporting processes, which are notoriously backlogged and under-resourced.[98] There have, however, been developments on a right-by-right basis, such as the General Comment on the Right to Health adopted by the Committee on Economic, Social and Cultural Rights, which describes the concept of ‘scoping’ in the reporting dialogue process:

Scoping involves the joint consideration by the State Party and the Committee of the indicators and national benchmarks, which will then provide the targets to be achieved during the next reporting period. In the following five years, the State Party will use these national benchmarks to help monitor its implementation of article 12.[99]

The right to health has been a leading area for the collaborative development of indicators to measure implementation of and compliance with human rights norms. The World Health Organization (WHO) has been more active in human rights issues in recent years, convening consultations,[100] developing a health and human right strategy,[101] issuing publications on human rights,[102] and in specific areas such as tuberculosis, mental health, tobacco, safe motherhood and children’s health.[103] It plans to hold a consultation on developing indicators to measure the right to health in 2003.[104] Previously, WHO’s merely observational role,[105] and lack of interest in human rights monitoring had been criticised by Paul Hunt (now the Special Rapporteur on the Right to Health)[106] as it ‘not only reduces the efficacy of existing health rights, but also inhibits the evolution of more elaborate international standards’.[107] There have also been developments on drafting specific indicators on the right to education, following a day of discussion convened by the Committee of Economic, Social and Cultural Rights in 1998.[108] The Special Rapporteur on the Right to Education highlighted the communication value of indicators: ‘rights-based statistics necessitated translating human rights law into a language that can be understood and applied to education statistics’.[109] This sharpened focus given by indicators that has been concentrated in the area of economic, social and cultural rights should also be of value to the other five treaty bodies, in the areas of women, children, race, torture, and civil and political rights.[110]

Measuring the Legal Dimension

The methodology of auditing implementation of human rights in the legal dimension as proposed in this article relies on many social, cultural, economic, civil and political rights being justiciable, that is, capable of being meaningfully reflected in law. Legislation is a medium for communicating messages to those members of society whose behaviour it wishes to shape.[111] Although there has been criticism of the International Guidelines for having an overly legalistic focus,[112] this article argues that the real problem has been one of actual enforcement of laws that have been formally implemented. Although legislation has a limited capacity to achieve social transformation, law reform is a useful first step because of its symbolic and authoritative power, as demonstrated by many civil rights campaigns, and more recently in respect of justiciable economic, social and cultural rights, such as health. A remaining challenge is in civil society supporting human rights litigation. Yamin notes: ‘the more people receive remedies for violations, the more they perceive the right as real: the more people perceive the right as real, the more they clamour for remedies’.[113] The audit methodology can be useful in raising community rights consciousness, both in respect of existing protections, so that they are better accessed by people needing them, and gaps in protection that require means of redress.

The division or hierarchy between social, economic and cultural rights, as opposed to civil and political rights, is artificial, with both containing elements of positive and negative obligations.[114] The level of precision of rights varies in accordance with their attached obligations.[115] The notion of justiciability is not directly equivalent to the ability to legislate for rights, as this is a broader concept, whereby aspirational rights can be included, such as in preambles or objects clauses of legislation. The Committee on Social, Economic and Cultural Rights has identified some rights, such as equality rights, children’s rights and education, that ‘seem capable of immediate application by judicial and other organs in many national legal systems’.[116] A later General Comment is even more explicit: ‘there is no Covenant right which could not, in the great majority of systems, be considered to possess at least some justiciable dimensions’.[117] The Committee stated that while legislation is ‘often highly desirable and sometimes indispensable’, it is not exhaustive of states parties obligations.[118] The Committee is often critical of meaningless lists of legislative provisions without information on practical implementation, because of the possible gap between law and practice.[119]

Treaties on which the International Guidelines are based often specifically mention the need for legislative as well as other measures of implementation. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)[120] requires states parties to adopt legislative or other measures as may be necessary to give effect to the rights in the Covenant. Article 2(2) of the International Covenant on Civil and Political Rights (ICCPR)[121] has a similar provision requiring the adoption of necessary measures to give effect to rights, which has been classified as a obligation of conduct.[122] The International Law Commission describes legislation as the preferred means of implementation, although it does not alter the fundamental principle of the states parties’ margin of discretion over choice of means.[123] The 1998 Declaration on Rights and Responsibilities states that domestic law consistent with international human rights norms is the ‘juridical framework within which human rights and fundamental freedoms should be implemented and enjoyed’.[124] The Human Rights Committee has acknowledged that legal implementation is often not ‘per se sufficient’.[125] Even legislative measures with effective and accessible enforcement procedures are only part of a series of economic and social activities required to give effect to the obligation.[126]

The HIV/AIDS and Human Rights Audit

In 1996 a legal rights auditing methodology called ‘Rights Analysis Instrument’ was developed by the author in the mental health area. The National Mental Health Working Group of the Australian Health Ministers’ Advisory Council commissioned a process of consultation for evaluating mental health legislation against the benchmark of the UN Principles for the Protection of and for the Improvement of Mental Health Care.[127] The states and territories did not accept an earlier study developed in the context of a model legislation project.[128] Although the methodology required balanced local panels of multidisciplinary evaluators in each jurisdiction,[129] this process did not always occur and sometimes governments performed self-assessments. However, there was a national panel that attempted to promote consistency in scoring, and it reported on results by highlighting areas requiring law reform.[130] In 2002 Queensland was the last jurisdiction to apply the instrument to new mental health legislation.[131] Governments were sensitive to releasing exact details of legislative compliance and this hampered the use of the instrument as an advocacy tool by NGOs. However, there was a direct impact in some jurisdictions (for example the Northern Territory) where the executive used the instrument in drafting instructions for new legislation.

In 1999 the author prepared a draft Rights Analysis Instrument in the HIV/AIDS area for the National Council on AIDS, Hepatitis C and Related Diseases (ANCAHRD), using the International Guidelines as benchmarks.[132] This methodology has since developed into the concept of an audit, in order to communicate better the evaluation concept and process to stakeholders, and to secure cooperation from state and territory health and justice portfolios, as well as AIDS NGOs.[133] The audit is being applied in Australian states and territories in 2002-3 by the author as an independent expert.

The audit consists of ten indicators in the following areas: public health; criminal laws and transmission offences; anti-discrimination; privacy and confidentiality; sexual offences and the sex industry; prisons; employment; equality of legal status and protection of vulnerable populations (women, children and same-sex relationships); regulation of health professionals and ethical human research; and therapeutic goods, testing of certain populations and media (Commonwealth jurisdiction). The tenth indicator attempts to separate matters that are the subject of exclusive Commonwealth jurisdiction. However, other areas, such as anti-discrimination, are more complex because of overlapping jurisdiction and scoring has been divided within indicators to reflect this situation. Each of the indicators has five questions and is scored out of ten points.[134] Questions are specifically structured so that scoring is as objective as possible, but as statutory interpretation and common law principles are the content being analysed, there is some room for negotiation among panel evaluators. What the tripartite audit attempts to capture is a reliable picture of legal implementation of justiciable human rights obligations, negotiated between governments’ interests in achieving high scores and NGOs’ mandates in exposing gaps that result in lower scores, and balanced with research analysis input provided by the independent human rights expert.[135]

Preliminary results of applying the audit in four Australian jurisdictions have shown that the Australian Capital Territory (ACT) legislation is best practice in the sex work indicator in terms of decriminalising the industry and providing for occupational health and safety and other regulation. Some other states, such as South Australia, continue to fully criminalise the sex industry. In the anti-discrimination and privacy indicators New South Wales, the ACT and Victoria legislation are leading examples in providing protection and redress for breach in cases of disability, and HIV-related medical records. The public health legislation indicator varies between jurisdictions in terms of human rights protections (for example, are there structured and graded criteria for transmission offences, and due process provisions such as notice, rights of review/appeal, right of legal representation?). Modernised legislation tends to include more safeguards. An area of consistent good practice is needle and syringe exchanges/supplies.

Areas of concern include not requiring informed consent to HIV-testing and lack of structured criteria for partner notification. In the employment indicator people with HIV are not routinely excluded from certain industries, such as health care or emergency services, but there is no express prohibition in any jurisdiction, except Tasmania, on HIV-testing for employment purposes. Most jurisdictions lack specific authorisation to test and rely on the general application of anti-discrimination laws. In relation to the equality of legal status of vulnerable populations indicator, there seems to be adequate formal protection of women and children, and there has been increasing legal recognition of same-sex relationships. The regulation of health care professionals indicator shows adequate redress for breach of professional standards in most jurisdictions. However, no jurisdiction has a full legislative basis for regulating the ethical review of human research, for example, requiring that ethical review committees review and monitor proposals. This is usually only stipulated in federal research funding criteria,[136] despite an Australian Law Reform Commission proposal to prohibit research that does not comply with National Health and Medical Research Council (NH&MRC) guidelines.[137] In relation to the prisons and corrections indicator, most jurisdictions retain general discretionary powers to compulsorily test and segregate prisoners, even though these powers may not be exercised in practice. In the federal area regulation of therapeutic goods (such as treatment drugs, condoms and HIV test kits) is adequate, but there are concerns with compulsory HIV testing of certain populations, such as migrants and members of the military forces.[138]

Implementing Human Rights and Compliance Theory

A human rights approach to the epidemic requires that international standards be put into practice at the domestic level. Without compliance, the International Guidelines on HIV/AIDS and Human Rights and the norms they are based on would be useless. The Guidelines are designed to be used at the international and national levels to assist performance in implementing general human rights standards in the specific area of HIV/AIDS. The Guidelines form a ‘soft law’ bridge between ‘hard law’ international obligations and states parties’ practice. The audit is a tool to assess the strength of that bridge, in order to ascertain if legal implementation has occurred. This article proposes measuring legal implementation to increase compliance with international human rights obligations. The term ‘implementation’ is used in the sense of making the commitment operative in a certain sphere of activity, in this case, law. The term ‘enforcement’ refers to the imposition of those standards by various strategies to compel compliant behaviour in order to make implementation effective. Both terms are complementary parts of the ultimate end aimed at, which is observance of international standards in practice at national level.

Why is compliance with human rights norms weak, and what can be done to improve this situation in the HIV/AIDS area? What role can the audit play to achieve better compliance, and where would it best fit into the compliance process? The main reasons for non-compliance with human rights norms appears to be the nature of the norms, as well as the regimes or institutions supporting them. In the last decade several theories of compliance with international law have been developed. Empirical studies of international business regulation by Braithwaite and Drahos explore methods of compliance engaged in by international organisations. They describe successful regulation as involving not just a single mechanism, however powerful, but rather ‘dense webs of influence … involving many types of actors mobilising many types of mechanisms’.[139]

These mechanisms include dialogue, coercion, systems of reward, modelling, and capacity building.[140] This article explores non-coercive mechanisms of enforcement, concentrating on improving norm specificity and capacity building of states parties. Reporting is examined as a monitoring and transparency mechanism and measures are suggested for increasing reliability in the human rights area, principally through the use of the audit. The role of different actors in compliance management is discussed, with recommendations for revitalising their roles, mainly through the model of tripartism.

In order to improve compliance activities, it is necessary to understand what is the compliance force of international human rights law, both treaty-based and customary. Abram and Antonia Chayes focus on horizontal state-to-state relations in the traditional international legal process of multilateral treaty regimes.[141] Harold Koh analyses the vertical aspects of the transnational legal process, in treaty as well as customary international law, through interaction, interpretation and domestic internalisation that together ‘bring international law home’.[142] The interpenetration of international and national legal systems is a two-level game – the simultaneous horizontal management of sovereign states and vertical bringing of international law into the domestic sphere.[143] Koh emphasises horizontal or peer pressure for compliance, as repeated participation and interaction in forums that define and interpret norms infiltrates domestic decision-making at the social, political and legal levels and are obeyed.[144] Legal internalisation requires that international norms be incorporated into the domestic legal system through executive action, judicial interpretation,[145] and/or legislative action, including constitutions.[146] Liberal democracy is an important, but not determinative variable, for norm internalisation. The force for change can be dependent on the inconsistency between the value of state elites and their publics.[147] The permeability of the domestic political-institutional environment, in terms of transparency, accountability, connections of professionals and issue-advocacy networks is critical.[148] A study by Andrew Moravcsik of the regional European human rights regime found it effective in improving democratic regimes, rather than transforming undemocratic ones – ‘the decisive causal links lie in civil society’.[149] This means that there is still value in attempting to apply the audit in undemocratic developing countries where the epidemic is concentrated, even if civil society mobilisation may be more effective in industrialised and democratic countries.

Thomas Franck focuses on the workings of international law through the operation of procedural liberalism, which he calls legitimacy, and its adoption of substantive principles, including democracy and justice.[150] He considers fairness as the rubric under which the tension between distributive justice and procedural rights process is discursively managed.[151] Legitimacy is interlinked with justiciability (discussed below) as well as compliance. It underpins the reliability of the International Guidelines based on human rights norms measured by the audit developed in this article. Although these theories concentrate on civil and political rights, this article argues that through notions such as justiciability, the same compliance methodology should be used for economic, social and cultural rights, which are interdependent, indivisible, interrelated and equally important to implement.[152] Studies using ‘capabilities’[153] and ‘violations’[154] approaches to all categories of human rights can be incorporated in measurement devices, such as a human rights audit.

The foundation of compliance strategy is the normative framework provided by the relevant treaty, or in the case of customary law, the appropriate norm. Given the lack of an international human rights police force or court with determinative powers, it is necessary to look at why nations obey international law. The Chayes’ managerial model of treaty regimes explains that a cooperative and problem-solving approach uses the legal techniques of persuasion, discourse and justification to clarify issues and induce better compliance behaviour.[155] Coercion is not appropriate when the factors causing non-compliance are mainly ambiguity of obligations and insufficient capacity, rather than wilful disobedience.[156] Policy review and assessment of members’ performance engage parties in comprehensive dialogue, identifying unsatisfactory areas and developing future improved performance.[157]

This social enforcement strategy attributes states’ motivation to fear of isolation, loss or diminution in status as members of the interdependent international community.[158] One compliance mechanism is the use of (or threat of) dispute mediation mechanisms, such as human rights treaty monitoring bodies (particularly those empowered to receive individual complaints), which attempt to resolve differences because of ambiguities in treaty obligations.[159] Another instrument of active management is examining the capacity of states to carry out obligations, and providing technical assistance in the form of training, research and education to redress under-capacity.[160] Determinacy is one of the main rules of legitimacy.[161] Human rights norms do not always contain textual clarity, making it easier to justify non-compliance through stretching and manipulating definitions, and using loopholes in vague language.[162]

The United Nations Human Rights Regime

The current UN system of human rights monitoring is not operating optimally in terms of compliance.[163] However, some developments have been made in recent years to increase authoritative interpretation of norms with the treaty bodies issuing general comments, engaging in dialogue with states parties and NGOs in the context of their regular country reports, and making concluding observations and comments with follow-up where possible.[164] There is still room for improvement in relation to the extent and depth of interaction between the treaty bodies and UN agencies in regard to human rights issues generally and HIV/AIDS in particular.[165] One reason given for non-compliance with human rights is that the treaties contain ambiguous or indeterminate language, because they have been drafted to produce consensus. Justiciable norms are not vague when properly implemented by legislation and interpreted by courts and tribunals. The International Guidelines on HIV/AIDS and Human Rights give greater specificity to these existing norms by giving concrete guidance to their application in different legislative areas.

Another reason given for non-compliance is that some countries have limited capacity to carry out the undertakings to protect human rights. The UN OHCHR provides technical assistance on human rights at country and regional levels.[166] Examples of technical assistance provided in the area of HIV/AIDS and human rights include the WHO,[167],[168] the ILO,[169] and UNAIDS.[170] A key area of capacity building could be the provision of UN technical assistance to states parties to apply the human rights audit.

Transparency of the normative framework is a central requirement for strategic interaction of participants in the managerial model of compliance. States need to know the meaning of the norms, rules and procedures if they are going to comply with them, as well as the policies and activities of other actors in the regime. This strategic interaction is facilitated through coordination of data,[171] reassurance that other states are in compliance through providing continuous information on comparative performance, and deterrence to potential defectors through the threat of exposure.[172] Reporting and development of data on the situation is important to regime maintenance and providing an early warning system for non-compliance.[173] Transparency is dependent on the quality, nature and scope of this information that may not be reliable or verified. Self-reporting using pro-forma documentation in the human rights area has been seriously deficient, especially compared to the ILO.[174] Human rights treaty bodies are dependent on NGO information,[175] but active collection of data could be further pursued in special cases by human rights rapporteurs, and working groups with country visits.[176]

Reporting requirements are often the first point at which national bureaucracies are engaged by the treaty regime, and provide a useful opportunity to translate commitment into implementation at country level.[177] Reporting requirements can be clarified and simplified through using indicators that make goals more measurable, with narrower and more concrete definitions to increase compliance The audit proposed in this article goes beyond self-reporting by states parties through the involvement of non-government and expert evaluators, in addition to government representatives on assessment panels. The treaty bodies’ institutional capacity to manage compliance is wanting in the human rights area, principally because of lack of resources and political commitment.[178] Applying the tripartite audit independently at the domestic level should have immediate local impact, and additional force through including the results in country reports prepared for treaty bodies, as well as helping preserve their scarce resources by focusing debate on problem areas.

Webs of Influence in the Areas of HIV/AIDS and Human Rights

There is a wide variety of different actors managing compliance, including international agencies, states parties, NGOs, academic commentators, and publicists, many of them coming together in epistemic communities.[179] These actors are influential in developing and interpreting international norms, and could be usefully engaged in any domestic implementation measuring process, such as a human rights audit. They create pressure to comply with the treaty norms that ‘penetrate deeply into domestic politics’.[180] In order to work effectively together, there must be some form of international and local networking in order to share knowledge and information.[181] The value of all compliance strategies depends heavily on their institutional setting, and there is a need to revitalise international organisation. The creation of more modern instrumental bodies within the UN system, such as the UNAIDS, which consists of eight UN co-sponsors, can help create social solidarity in the community of states by mingling donors and recipients in the governing body and bureaucracy.[182] UNAIDS has catalytic and coordinating functions and is a low-budget, small-scale program with ‘lean, effective and politically responsive’ management.[183] Its influence has been uniquely powerful in the UN system, as shown by the placement of HIV/AIDS issues on the agenda of the Security Council and the General Assembly Special Session on HIV/AIDS discussed above.

‘Transnational norm entrepreneurs’, which include transnational NGOs or individual experts, can mobilise popular opinion and trigger political support domestically and internationally.[184] Governmental norm sponsors are officials who act as allies to NGOs in promoting norms they are committed to inside bureaucracies.[185] These groups work together in transnational issue networks to discuss and generate solutions. Interpretative communities and law-declaring forums create shared meanings of norms and include treaty regimes, executive entities, publicists, academics, courts, tribunals and legislatures.[186]

NGOs perform parallel and supplementary functions to states parties. They are independent sources for providing and verifying data on compliance, providing technical assistance to developing country participants in treaty negotiation and administration, as well as elaborating norms.[187] Examples of innovative activities include running parallel conferences to inter-governmental and international meetings.[188] They are the key to public shaming and popular domestic political response in their diverse pressure activities: mobilising voters, lobbying legislators, endorsing candidates, disseminating information, bringing lawsuits, persuading the public and influencing opinion leaders.[189] They supply the personnel and resources that states have become reluctant to provide to international organisations.[190] As yet large generalist human rights NGOs have not effectively taken on HIV/AIDS issues (with some exceptions),[191] especially compared to the efforts of generalist national NGOs.[192] Specialist HIV/AIDS NGOs, such as the International Council of AIDS Service Organisations (ICASO), have been actively involved in setting human rights standards at the international, regional and national levels. Regional and national declarations on HIV and human rights have been produced in many parts of the world including the United Kingdom, Australia, South Africa, Cambodia, Malaysia and Thailand.[193]

Participation by NGOs in the application of the audit proposed in this article will assist in this process. Improved interaction in the UN human rights regime requires the empowerment of more actors to participate, such as NGOs and human rights issues networks, to ensure that domestic law conforms to international legal standards. They have already contributed to the development of the International Guidelines on HIV/AIDS and Human Rights as an ‘interpretative community’.[194] The audit could assist in revitalising international organisations in both the human rights sphere, and UNAIDS by increasing their capacity to manage compliance in the UN system through focused discourse.

Justiciability of Rights

Justiciability is an important concept to examine if rights are to be measured in the dimension of legal implementation. It is a fluid, contingent and evolving notion. It essentially means that a right is capable of being invoked in a legal action and thus a suitable basis on which to conduct judicial or administrative review by a court or a tribunal.[195] It encompasses two main notions, the first being procedural with courts supervising fair and reasonable decision-making, and the second being substantive with courts being entrusted with the duty to ensure just outcomes in terms of human rights obligations. Justiciability is commonly defined as the ability to determine judicially whether or not a right has been violated, or whether a state has failed to meet its obligation to respect, protect or fulfil a person’s right.[196] This involves translating sometimes vague, imprecise and abstract aspirations into enforceable orders in specific cases.[197] There are two main dimensions of justiciability: legitimacy (that is, the nature and character of the subject matter of rights), and institutional competence of the judiciary to adjudicate such rights. However, the second dimension lies much deeper in democratic and political theories in determining whether unelected courts or other bodies are the best-equipped body to hold governments accountable for human rights violations. This article takes the approach that a range of bodies are responsible for implementing the legally enforceable rights referred to in the International Guidelines, but should be ultimately supervised by courts through review and appeal systems. For example, in the human rights areas of anti-discrimination and privacy legislation, specialist bodies have been established in a number of jurisdictions to administer provisions that make rights realisable, through investigating and resolving complaints, as well as having education, promotion, advising and monitoring roles.

Both dimensions of legitimacy and competence sometimes intersect and can be addressed by drafting precise, narrow standards.[198] Legitimacy is often challenged by the issue of policy: is it appropriate to include policy decisions in the mandate of the judiciary, rather than the executive or legislature? It is important to acknowledge that common law judges often formulate law and policy.[199] Judicial law-making has shaped concepts and principles with crucial policy content, such as in the law of negligence, discrimination, and natural justice.[200] Institutional competence can be addressed by institutional design, such as establishing mechanisms to ensure that adjudicators have the necessary information upon which to base decisions.[201] The content of a right is usually shaped by repeated applications of practical reasoning to facts at hand by courts and tribunals.[202] Justiciability is directed to states parties’ responsibilities under international law, as usually applicants want their rights enforced against the government. Although states are directly liable for infringements by the state against individuals, they may also be indirectly liable for infringements by private bodies.[203] Craven in his study of the ICESCR concludes that:

A distinction … has to be drawn between international and domestic enforcement of the rights. At the international level, the focus of judicial concern is the degree to which the State has acted in conformity with its obligation; it is here that “justiciability” is a difficult issue in that it requires a careful assessment of performance taking into account resources availability. At the domestic level, however, judicial remedies focus upon the enforcement of existing legislative or administrative measures taken with regard to the economic and social climate in the State concerned. An insistence on judicial remedies at the domestic level is merely to ensure that the measures taken towards the full realization of the rights are not purely superficial and vacuous.[204]

Justiciability of the Right to Health

This article challenges Donnelly’s comment in relation to the right to health: ‘international law reflects, rather than shapes the understandings and practices of states’.[205] Processes at both the international and domestic levels have mutual influence: international norms can be entrenched in national constitutions, and interpretation of these provisions by local courts can then inform global jurisprudence on the core content of those rights as examples of state practice. Aspects of the right to health are often simply made justiciable at the national level in the form of legislation establishing mental health tribunals, health complaints commissioners and privacy commissioners, as reflected in indicators in the audit proposed in this article.[206]

Several international, regional and national precedents exist in respect of the justiciability of the right to health. The Committee on Economic, Social and Cultural Right’s General Comment on article 12 of the ICESCR states that the obligation to fulfil this human right should be recognised in national political and legal systems, preferably by way of legislative implementation, as well as detailed health policy. This stops short of a draft academic General Comment, which called for constitutional entrenchment of the right to health.[207] An example of this approach is in several Latin American countries through protection suits (amparo) enabling courts to rule directly on constitutionally guaranteed rights and invoke international obligations.[208] At the regional level the European Commission of Human Rights found that compulsory testing for tuberculosis in Belgium was justified because there was no evidence of disadvantage to the individual being tested.[209] There are significant differences between HIV/AIDS and tuberculosis in terms of methods of transmission and treatment,[210] and similarities, in terms of vulnerability and socio-economic disadvantage.[211] The Inter-American Commission on Human Rights held that Paraguay violated the right to health by withholding medical care of a tribe during disease epidemics.[212] The Commission also held that Brazil violated the right to health by building a highway as part of a development program, enabling the entry of mining companies and prospectors with contagious diseases into the area, and then failing to provide timely and adequate medical assistance to indigenous people.[213]

Regional human rights bodies have not adopted the Yanomani Case to enable forced testing and exclusion of HIV-positive people.[214] However, there has been jurisprudence at the regional level in the area of access to treatment. The Inter-American Commission has made an interim order under the American Convention on Human Rights and Protocol of San Salvador requiring the El Salvador government to provide HIV antiretroviral treatment.[215]

There has been some groundbreaking constitutional jurisprudence on the right to health at the national level in South Africa and South America. In the case Soobramoney v Minister of Health (Kwazulu-Natal) the Constitutional Court of South Africa held that the state was not required to provide dialysis to a man with chronic renal failure, diabetes and heart disease under the right of access to health care services and the requirement not to refuse emergency treatment.[216] The right to health granted to everyone was subject to the availability of resources and progressive realisation of the right, which justified that practice of prioritising treatment of terminal illnesses by guidelines that maximise patient benefits in a poor state with an overspent health budget.[217] The Court seemed to read down the right to health in light of the right to life, rather than give a broad interpretation focusing on its core content.[218] However, in the later decision of Grootboom, a case concerning child homelessness, the Court took a wider view of economic and social rights and developed a ‘reasonableness’ test to determine whether the state was complying with its constitutional obligations.[219]

More recently in the case Minister for Health v Treatment Action Campaign the Court found that the government was required to provide single doses of the antiretroviral drug Nevirapine in the public health sector to HIV-positive pregnant women and their babies at birth to prevent intra-partum HIV transmission, including reasonable measures for testing and counselling.[220] Courts in several South American countries, such as Costa Rica, and Argentina, have found that the right to health encompasses the right of access to HIV/AIDS treatment.[221] Some South American countries have explicitly recognised a right to antiretroviral treatment in legislation, such as Brazil and Colombia.[222] In Argentina the government was required to manufacture a vaccine for Argentine haemorrhagic fever based on the constitutional right to health.[223] This decision could be a valuable precedent when an effective and safe vaccine for HIV/AIDS is available.


Auditing human rights in the legal dimension can make the impact of the HIV/AIDS epidemic more visible, and offer discrete steps that can be taken by governments and civil society to respond effectively. It is a tool for measuring progressive realisation through legal implementation of rights expressed in indicators within a particular jurisdiction. A central feature of the audit is that it draws upon international jurisprudence and state practice to give greater traction to human rights implementation. Auditing the implementation of specific soft law human rights principles or guidelines that are based on treaties can make rights discourse more meaningful, focused, concrete, and scientific, rather than just intuitive. Specificity of rights is an important means of enhancing justiciability through interpretation and definition. Defining the core content of the right’s subject matter, so that it is not so vague as to be meaningless, increases legitimacy. Case-law and legislation in several countries have demonstrated that the core content of the right to health is capable of sustaining important practical gains in areas such as access to antiretroviral treatments. Having qualitative indicators with quantitative scores not only forces governments to take results more seriously and stimulates law reform, but opens an avenue for linking human rights expertise with other disciplines, such as public health.

The novel tripartite process of applying the human rights audit involving the affected community, independent human rights experts and government, attempts to widen it more than traditional internal (bottom-up) or external (top-down) audit processes.[224] This evaluation process has been proposed to increase transparency, as well as promote awareness of international obligations at local jurisdictional levels. By highlighting best practice and exposing weaknesses, the audit inevitably leads to comparisons between jurisdictions, but its principal aim is to prevent regression within a jurisdiction through measuring progress in achieving implementation by repeated applications over time. Auditing actual human rights enjoyment through further audits of legal enforcement and administrative implementation is more complex and would require collaboration with many more disciplines such as social sciences, public health and epidemiology to deepen understanding of the causes and effects of the epidemic. The legal audit methodology could be applied to other specific human rights areas, particularly those impacting on health, such as the UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities.[225] A UN Ad Hoc Committee is considering proposals for a convention in the area of disabilities,[226] which may further specify applicable standards.

Dr Jonathan Mann was one of the earliest persons to recognise the human rights implications of the HIV/AIDS epidemic:

It is not a question of ‘the rights of the many’ against ‘the rights of the few’. The protection of the uninfected majority depends upon, and is inextricably bound with, the protection of the rights and dignity of the infected persons.[227]

The HIV/AIDS and human rights audit cannot attempt to solve the crisis of the pandemic and vulnerability problems. It is a modest step in attempting to address these issues through increased accountability in a tripartite forum. A major challenge is whether the audit will be a valuable methodology in developing countries where the epidemic is focused. Future empirical work should reveal its possible utility.[228]

[∗] Helen Watchirs, BA LLB (University of Sydney), M Pub Law and PhD (ANU), is a postdoctoral fellow at the Regulatory Institutions Network of the Law Program, Research School of Social Sciences, Australian National University. She has worked as a legal policy and human rights adviser to the Australian government and the United Nations for over 20 years. The author served as the consultant who drafted the initial version of the International Guidelines on HIV/AIDS and Human Rights in 1996 and participated as an expert at the Joint Office of the High Commissioner for Human Rights (OHCHR) and UNAIDS International Expert Consultation on ‘Advancing Care, Treatment and Support for People Living with HIV/AIDS: Updating Guideline 6 of the International Guidelines on HIV/AIDS and Human Rights’, 25-26 July 2002, Geneva.

[1] UNAIDS, Strategic Plan 1996-2000 (1995) 2.

[2] UNAIDS, Report on the Global HIV/AIDS Epidemic (2002).

[3] International Council of AIDS Service Organisations, A Guide for Meaningful Involvement of NGOS and Civil Society, UN General Assembly Special Session on HIV/AIDS ( 2001)1 <>.

[4] D Patterson, ‘Reviewing Programming on HIV/AIDS, Human Rights and Development’ speech at GO4, 9 July 2002, ‘Using the Law to Advance Human Rights in AIDS’, XIV International AIDS Conference, Barcelona, July 2002.

[5] S Sontag, AIDS and its Metaphors (1989).

[6] OHCHR and UNAIDS, HIV/AIDS and Human Rights: International Guidelines – Second International Consultation on HIV/AIDS and Human Rights (1996) HR/PUB/98/11.

[7] Statement by Douglas Daft, Chief Executive Officer, Coca-Cola cited in UN Development Programme (UNDP), Human Development Report: Human Rights and Human Development (2000) 126.

[8] H Charlesworth, ‘International Human Rights Law and Australian Federalism’ in B Opeskin and D Rothwell (eds), International Law and Australian Federalism (1997) 280, 298.

[9] Dualist states expressly adopt international law as part of national law, whereas monist states incorporate international law without requiring express adoption: see I A Shearer, ‘The Relationship Between International Law and Domestic Law’ in Opeskin and Rothwell (eds), ibid 34.

[10] J Mann, ‘Health and Human Rights: If Not Now, When?’ (1997) 2 Health and Human Rights 113, 116.

[11] J Toman, ‘Quasi-Legal Standards and Guidelines for Protecting Human Rights’ in H Hannum (ed), Guide to International Human Rights Practice (1992) 192.

[12] F Klug, K Starmer, and S Weir, The Three Pillars of Liberty, Political Rights and Freedom in the United Kingdom (1996); S Weir and D Beetham, Political Power and Democratic Control in Britain; the Democratic Audit of the United Kingdom (1999).

[13] J Mann and D Tarantola, ‘Responding to HIV/AIDS: A Historical Perspective’ (1998) 2 Health and Human Rights 5.

[14] J Braithwaite and P Drahos, Global Business Regulation (2000), 13.

[15] UNAIDS, UNAIDS Initiatives on HIV/AIDS and Security: First Quarterly Report (2002).

[16] Since 1999, these figures have been higher than previous estimates, due to an underestimation of the epidemic in sub-Saharan Africa: UNAIDS/WHO, Report on the Global Epidemic (2000).

[17] UNAIDS, Report on the Global HIV/AIDS Epidemic (2002).

[18] Currently there are a total of 42 million people living with HIV, including 7.2 million people living with HIV/AIDS in Asia and the Pacific, 1.94 million in Latin America and the Caribbean and 1.2 million in Eastern Europe and Central Asia.

[19] UNAIDS and Prince of Wales Business Leaders Forum, The Business Response to HIV/AIDS: Innovation and Partnership (1997) 9.

[20] J G Speth, Human Rights and Sustainable Human Development (1997); UNDP, Governance for Sustainable Human Development: UNDP Policy Document (1997).

[21] UNDP with UNAIDS co-sponsors, Namibian Human Development Report: The Impact of HIV and AIDS in Namibia (1997) ch 6; UNDP with UNAIDS, South African Human Development Report: The Impact of HIV and AIDS in South Africa (1998).

[22] UN Population Division, World Population Prospects: The 2000 Revision – Analytic Report vol III, 123.

[23] Report of the Secretary-General, Special Session of the General Assembly on HIV/AIDS, 16 February 2001, A/55/779, [89].

[24] UNAIDS, Together We Can: Leadership in a World of AIDS (2001) 30; Partners in Prevention: International Case Studies of Effective Health Promotion Practice in HIV/AIDS UNAIDS/98.29 (1998).

[25] The term developing countries is used in the context of ratings under human development indicators as used by the UN Development Programme: see UNDP, Making New Technologies Work for Human Development, Human Development Report (2001).

[26] J Broomberg and D Schopper, ‘Global Spending on HIV/AIDS Prevention, Care and Research’ in J Mann and D Tarantola (eds), AIDS in the World II (1996) 414. See also S Forsythe (ed), State of the Art: AIDS and Economics (2002).

[27] See <>.

[28] P Piot, Executive Director, UNAIDS, Statement to the Security Council, 17 July 2000 <>.

[29] Commission on Human Rights resolution E/CN.4/RES/1997/33, 11 April 1997, and Sub Commission resolution E/CN.4/SUB.2/RES/1997/40, 28 August 1997. See Report of the UN Secretary-General, Specific Groups and Individuals: Other Vulnerable Groups and Individuals – the Protection of Human Rights in the Context of HIV/AIDS, E/CN.4/1999/76, 13 January 1999 and E/CN.4/2001/80, 20 December 2000.

[30] See UNGASS, Monitoring the Declaration of Commitment on HIV/AIDS: Guidelines on Construction of Core Indicators, UNAIDS/02.51E (2002) 21-22 and app 3.

[31] UNAIDS and Pennsylvania State University, Communications Framework for HIV/AIDS (1999); UNAIDS, HIV/AIDS and Communication for Behavioural and Social Change: Programme, Experiences, Examples and the Way Forward (2001).

[32] A Eide, ‘Economic, Social and Cultural Rights as Human Rights’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights (1995) 21, 37-38. Eide’s typology was developed in the Report by the Special Rapporteur on the Right to Food, The New International Order and the Promotion of Human Rights, UN ESCOR, UN Doc E/CN.4/Sub.2/23 [71] (1987).

[33] S Gruskin and D Tarantola, ‘Health and Human Rights’ forthcoming chapter in R Detels, J McEwen and R Beaglehole (eds), The Oxford Textbook of Public Health (2002), see draft version: <>.

[34] Eg, persons who lose their job because of discrimination face not only health problems, but also added economic burdens of providing for themselves and their families.

[35] Eg, a refugee may be separated from former sources of support and, thus, be more likely to engage in activities that place his or her health at risk, such as unsafe sex.

[36] UNAIDS, AIDS Epidemic Update (2002) 6.

[37] The GEM was first developed in 1995: UNDP, Human Development Report: Gender and Human Development (1995).

[38] Above n 36, 18.

[39] In some countries NGOs and community-based organisations cannot conduct peer education or even convene public meetings, because they are refused official registration, based on the illegal status of their members (eg, sex workers), or the likelihood of their criticism of government action or inaction.

[40] E Rosenthal, ‘China Frees AIDS Activist After Month of Outcry’ New York Times (20 September 2002).

[41] The group was called ‘MDHG’: R Sorge, ‘Drug Policy in the Age of AIDS: The Philosophy of Harm Reduction’ (1991) 2 Education Series 6 <>.

[42] K Tomasevski et al, ‘AIDS and Human Rights’ in J Mann et al (eds), AIDS in the World (1992) 537, 538.

[43] See R Bayer and C Healton, ‘Special Report: Controlling AIDS in Cuba – The Logic of Quarantine’ (1989) 320 New England Journal of Medicine 1022.

[44] W Yanhai, ‘Health is a Human Right, the Public Health Challenge to Social Taboo’ (1997/98) China Rights Forum 16, 37.

[45] J Mann, ‘We are All Berliners: Notes from the Ninth International Conference on AIDS’ (1993) 83 American Journal of Public Health 1379.

[46] The Human Rights Committee has confirmed that difference in treatment is not discriminatory if it is based on objective and reasonable, as opposed to arbitrary, criteria: General Comment No 18 (37), Official Records of the General Assembly, Forty-fifth Session, Supp No 40, A/45/40, vol I, annex VI A. Legal notions have been developed at national level including ‘reasonable accommodation’ which requires employers to make adjustments in the workplace that do not cause unjustifiable hardship: H Watchirs, ‘HIV/AIDS Discrimination and Privacy’ in D C Jayasuriya (ed), HIV Law, Ethics and Human Rights: Text and Materials (1995) 99, 106.

[47] D Whelan, ‘Human Rights Approaches to an Expanded Response to Address Women’s Vulnerability to HIV/AIDS’ (1998) 3 Health and Human Rights 21, 23.

[48] L Gostin, Public Health Law: Power, Duty and Restraint (2000).

[49] J M Mann, L Gostin, S Gruskin, T Brennan, Z Lazzarini and H Fineberg, ‘Health and Human Rights’ in J M Mann, S Gruskin M A Grodin and G J Annas (eds), Health and Human Rights: A Reader (1999) 7.

[50] L Freedman, ‘Reflections on Emerging Frameworks of Health and Human Rights’ (1995) Health and Human Rights 315, 322.

[51] J Mann, ‘Medicine and Public Health, Ethics and Human Rights’ in Mann et al (eds), above n 49, 439, 443.

[52] R J Cook, ‘Human Rights and Reproductive Self-Determination’ (1995) 44 American University Law Review 975, 982.

[53] Mann et al, above n 49, 7-20.

[54] C Reynolds, ‘Public Health Law: Its Problems and Challenges’ [1997] UNSWLawJl 42; (1997) 20 University of New South Wales Law Journal 537, 538.

[55] N Adler et al, ‘Socioeconomic Status and Health: The Challenge of the Gradient’ in Mann et al (eds), above n 49, 181-201.

[56] J Mann, ‘Health and Human Rights’ (1996) British Medical Journal 924.

[57] V Leary, ‘The Right to Health in International Human Rights Law’ (1995) 1 Health and Human Rights 25.

[58] UN Centre for Human Rights, Report of an International Consultation on AIDS and Human Rights, HR/PUB/90/2 (1991).

[59] L V Quiros, Special Rapporteur, Discrimination Against HIV-infected People or People with AIDS: Preliminary Report, E/CN.4/Sub.2/1990/9, 2 August 1990; Review of Further Developments in Fields with Which the Sub-Commission has been Concerned: Progress Report, E/CN.4/Sub.2/1991/10, 24 July 1991; Final Report, E/CN.4/Sub.2/1992/10, 28 July 1992; and Conclusions and Recommendations, E/CN.4/Sub.2/1993/9, 9 August 1993.

[60] E/CN.4/1995/45 and E/CN.4/1996/44.

[61] Justice Kirby of the High Court of Australia chaired the International Consultation.

[62] See H Watchirs, Handbook for Legislators on HIV/AIDS, Law and Human Rights: Action to Combat HIV/AIDS in View of its Devastating Human, Economic and Social Impact, UNAIDS and the Inter-Parliamentary Union, UNAIDS/99.48E (1999).

[63] ILO, HIV/AIDS and the World of Work, Code of Practice (2002).

[64] R Elliot, TRIPS and Rights: International Human Rights Laws, Access to Medicines and the Interpretation of the WTO Agreement of Trade-Related Aspects of Intellectual Property Rights (2001).

[65] Braithwaite and Drahos, above n 14, 373.

[66] UN Commission on Human Rights, Resolutions 2001/33 and 2002/32.

[67] Report of the Secretary-General, Economic, Social and Cultural Rights: Access to Medication in the Context of Pandemics such as HIV/AIDS, E/CN.4/2002/52, 21 January 2002; Addendum E/CN.4/2002/52/Add.1, 26 February 2002; and ‘The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights, E/CN.4/Sub.2/2001/3, 27 June 2001.

[68] Smith Kline and French Laboratories Ltd v The Netherlands, 4 October 1990, Application 12633/87 (1990) 66 European Commission on Human Rights 70, 80. See P Drahos, ‘Intellectual Property and Human Rights’ [1999] 3 Intellectual Property Quarterly 350, 360.

[69] P Drahos and J Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (2002) 6.

[70] Minister for Health v Treatment Action Campaign, CCT 8/02 (Constitutional Court of South Africa), 5 July 2002 <> .

[71] C Albertyn, ‘Using Rights and the Law to Reduce Women’s Vulnerability to HIV/AIDS’: Discussion Paper produced for the Satellite Symposium. Putting Third First – Critical Legal Issues and HIV/AIDS, Thirteenth International AIDS Conference, Durban, July 2000. See also C Albertyn, ‘Prevention, Treatment and Care in the Context of Human Rights’, UN Expert Group Meeting on the HIV/AIDS Pandemic and Its Gender Implications, 13-17 November 2000, Windhoek, Namibia.

[72] See H Watchirs, ‘Review of Methodologies Measuring Human Rights Implementation’ (2002) 30 Journal of Law, Medicine and Ethics 716.

[73] C Humana, World Human Rights Guide (1984) and R Gastil, Freedom in the World: Political Rights and Civil Liberties (1981).

[74] UNDP, Human Development Report: Human Rights and Human Development (2002) 90.

[75] R L Barsh, ‘Measuring Human Rights: Problems of Methodology and Purpose’ (1993) 15 Human Rights Quarterly 87, 104-5.

[76] D Kaufmann, A Kraay and P Zoido-Lobaton, Aggregating Governance Indicators, World Bank Development Research Policy Group, Policy Research Working Paper 1295 (1999), Table 1, governance Indicators – 12 other studies were also cited in this paper.

[77] G A Lopez and M Stohl, ‘Problems of Concept and Measurement in the Study of Human Rights’ in T B Jabine and R P Claude, Human Rights and Statistics: Getting the Record Straight (1991) 216, 223.

[78] It also recommends that assessment of the existing human right situation be undertaken internally initially (eg, Human Rights

National Action Plans could be combined with national development reports), as outside experts can generate unproductive hostility and tension: UNDP, Human Development Report: Human Rights and Human Development (2000) 10-11.

[79] Ibid 80.

[80] Ibid 4-5.

[81] D Turk, Special Rapporteur, The New International Economic Order and the Promotion of Human Rights: Realization of Economic, Social and Cultural Rights, Progress Report, E/CN.4/Sub.2/1990/19, 26.

[82] Ibid 3.

[83] Report of the Seminar on Appropriate Indicators to Measure Achievements in the Progressive Realization of Economic, Social and Cultural Rights, UN Doc A/CONF.157/PC/73 (1993).

[84] Ibid 170.

[85] UN Office of the High Commissioner for Human Rights and the UNDP, Workshop on Civil and Political Rights Indicators, Geneva, 27-29 September 1999.

[86] See A Sengupta, ‘On the Theory and Practice of the Right to Development’ (2002) 24 Human Rights Quarterly 837.

[87] UN, Development Assistance Framework Guidelines (1999) 4.

[88] See Administrative Committee on Coordination, The United Nations System and Human Rights: Guidelines and Information for the Resident Coordinator System (2000).

[89] Above n 87, 6.

[90] Report of the Secretary-General, Renewing the United Nations: A Programme for Reform, A/51/950 (1997).

[91] Eleventh Meeting of the Chairpersons of the Human Rights Treaty Bodies, Informal Note by the Secretariat on Human Rights Indicators, HRI/MC/1999/Misc.5 (1 June 1999).

[92] Eg, the 1993 World Conference on Human Rights in Vienna and the 1995 Fourth World Conference on Women in Beijing.

[93] Eg, the ICCPR and ICESCR.

[94] United Nations, Common Country Assessment Guidelines (1999) 19.

[95] The World Bank, Comprehensive Development Framework: Meeting the Promise? Early Experience and Emerging Issues (2001).

[96] UN Millennium Declaration endorsed by the Millennium Summit in September 2000: UN Doc A/RES/55/2. The eight goals (relating to hunger, education, gender equality, child mortality, maternal health, diseases such as HIV/AIDS, environmental sustainability and a global partnership for development) are further developed into 18 targets and 48 indicators in the Road Map Towards the Implementation of the UN Millennium Declaration, UN Doc A/56/326.

[97] Ibid Annex.

[98] J Crawford, ‘The UN Human Rights Treaty System: A System in Crisis’ and P Alston, ‘Beyond “them” and “us”: Putting Treaty Body Reform into Perspective’ in P Alston and J Crawford (eds), The Future of UN Human Rights Treaty Monitoring (2000) 1, 4-7, 501.

[99] Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12), adopted 11 May 2000, UN Doc E/C.12/2000/4.

[100] WHO, Report of the Informal Consultation on Health and Human Rights, 4-5 December 1997, Geneva, and Meeting Report: Informal Consultation on Health and Human Rights, 13-14 December 1999, Geneva, HSD/GCP/June 2000.

[101] WHO, Towards a WHO Health and Human Rights Strategy, Informal Consultation on Health and Human Rights, Draft Report 3-4 April 2000, Geneva, HSD/GCP/June 2000.

[102] WHO, 25 Questions and Answers on Health and Human Rights, Health and Human Rights Publication Series, Issue No 1 (2002).

[103] WHO, A Human Rights Approach to Tuberculosis: Guidelines for Social Mobilization, WHO/CDS/STB/200.1 (2001); Advancing Safe Motherhood Through Human Rights (2001); Tobacco and the Rights of the Child, WHO/NMH/TFI/01.3 (2001) and Health and Freedom from Discrimination, WHO’s Contribution to the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Health and Human Rights Publications Series Issue No 2 (2001).

[104] Email correspondence from Helena Nygren-Krug, WHO, 6 January 2003.

[105] A L Taylor, ‘Making the World Health Organisation Work: A Legal Framework for Universal Access to the Conditions of Health’ (1992) American Journal of Law and Medicine 301, 302.

[106] Commission on Human Rights Resolution 2002/31.

[107] P Hunt, Reclaiming Social Rights: International and Comparative Perspectives (1996) 135.

[108] P Hunt, ‘State Obligations, Indicators, Benchmarks and the Right to Education’ and I Kempf, ‘How to Measure the Right to Education: Indicators and their Potential Use by the Committee on Economic, Social and Cultural Rights’ in General Discussion: Right to Education, Committee on Economic, Social and Cultural Rights, Item 7, E/C.12/1998/11 and 22.

[109] K Tomasevski, Annual Report of the Special Rapporteur on the Right to Education, submitted pursuant to Commission in Human Rights Resolution 2001/29, E/CN.4/2002/60, [28].

[110] M O’Flaherty, Human Rights and the UN: Practice Before the Treaty Bodies (1996).

[111] Carney identifies three main models of legislative style: conditional programming traditional anticipatory laws that exhaustively attempt to address future contingencies, such as public health legislation; rematerialisation or substantive rationality – framework laws purposive programs and vague exhortations; and reflexive rationality, or soft, responsive laws that are neither overly prescriptive, nor purposive, but rely on procedural norms to regulate processes and rights, such as disability services: T Carney, Law at the Margins: Towards Social Participation (1991) 15-22.

[112] M Heywood and D Altman, ‘Confronting AIDS: Human Rights, Law and Social Transformation’ (2000) 5 Health and Human Rights 149.

[113] A E Yamin, ‘Protecting and Promoting the Right to Health in Latin America: Selected Experiences from the Field’ (2000) 5 Health and Human Rights 117, 128. See also G N Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991).

[114] The Limberg Principles state that some economic, social and cultural rights are immediately justiciable, while others can become justiciable over time: The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/CN4/1987/17 [8].

[115] The tertiary obligation to fulfil is the least precise, compared to the primary obligation to respect or the secondary obligation to protect rights, irrespective of their characterisation: ibid 74-76.

[116] General Comment No 3, UN Doc E/1991/23.

[117] General Comment No 9, UN Doc E/1999/22.

[118] Committee on Economic, Social and Cultural Rights, General Comment No 3: The Nature of States Parties Obligations (Article 2) UN Doc E/1991/23, Annex III, UN ESCOR Supp (No 3) (1990) [4].

[119] M Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (1995) 127.

[120] (16 December 1966), 993 UNTS 3.

[121] (16 December 1966), 999 UNTS 171.

[122] O Schachter, ‘The Obligation to Implement the Covenant in Domestic Law’ in L Henkin (ed), The International Bill of Rights (1981) 311.

[123] Report of the International Law Commission [1977] 2 Yearbook of the International Law Commission 21 [8].

[124] Declaration on the Rights and Responsibilities of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, GA Res 53/144 (9 December 1998) art 3.

[125] Human Rights Committee, General Comment No 3: Implementation at the National Level (Article 2) UN Doc A/36/40, Annex VII, 36 GAOR, Supp (No 40) (1981).

[126] Ibid 126.

[127] Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, GA Res 46/119 (17 December 1991).

[128] Centre for Health, Law, Ethics and Policy, University of Newcastle, Report to the Australian Health Ministers’ Advisory Group on Mental Health Policy: Model Mental Health Legislation (1995).

[129] H Watchirs, Report on a Rights Analysis Instrument for Use in Evaluating Mental Health Legislation, Attorney-General’s Department, commissioned by the Australian Health Ministers’ Advisory Council, National Mental Health Working Group, Legislation Sub-Committee (1996).

[130] H Watchirs, Application of Rights Analysis Instrument to Australian Mental Health Legislation, Report to Australian Health Ministers’ Advisory Council Mental Health Working Group (2000).

[131] Mental Health Act 2000 (Qld).

[132] H Watchirs, A Rights Analysis Instrument to Measure Compliance with the International Guidelines on HIV/AIDS and Human Rights, Report to the Australian National Council on AIDS, Hepatitis C and Related Diseases (1999).

[133] The peak NGO is the Australian Federation of AIDS Organisations, and the local NGOs, including AIDS Councils and organisations of People Living with HIV/AIDS are members.

[134] The overall score for implementation falls within four quadrants of the ten points: substantial (less than 10, but more than 7.5), significant (7.5 or less, but more than 5), partial (5 or less, but more than 2.5) or minimal (0 to 2.5).

[135] The author, in the Australian pilot application described below.

[136] NH&MRC, National Statement on Ethical Conduct in Research Involving Humans (1999). The only legislative requirement is for unregistered therapeutic goods used in clinical trials under reg 12AD(C) of the Therapeutic Goods Regulations 1990 and ss 18(1) and 19(1) of the Therapeutic Goods Act 1990 (Cth).

[137] Australian Law Reform Commission, Protection of Human Genetic Information, Discussion Paper 66 (2002), Proposal 11-1.

[138] The final results of applying the audit in all Australian jurisdictions should be published by the author in 2004.

[139] Above n 14, 13.

[140] Other mechanisms include reciprocal adjustment and non-reciprocal coordination: ibid 24-5.

[141] A Chayes and A Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1995). The Chayes acknowledge that although due process and equal protection requirements reflect international norms, they display a bias towards US constitutional guarantees: 127.

[142] H Koh, ‘Why Do Nations Obey International Law?’ (1997) 106 Yale Law Journal 2599. Franck undermines the basic premise of Koh’s argument that American law is permeable to the trickle down effect of international law given its poor record of ratifying treaties: T M Franck, ‘Commentary: Dr Pangloss Meets the Grinch: A Pessimistic Comment on Harold Koh’s Optimism’ (1998) 35 Houston Law Review 683, 684.

[143] H Koh, ‘Bringing International Law Home’ (1998) Houston Law Review 623, 634; and ‘Is International Law Really State Law?’ (1998) 111 Harvard Law Review 1824.

[144] Koh, above n 142, 2655.

[145] Through incorporating norms implicitly, or explicitly through ‘transnational public law litigation’: H Koh, ‘Transnational Public Law Litigation’ (1991) 100 Yale Law Journal 2347.

[146] Such as in Ireland, South Africa and Italy: Koh, above n 142, 2657.

[147] See R O Keohane, ‘Commentary: When Does International Law Come Home?’ (1998) 35 Houston Law Review 699; A-M Slaughter, ‘International Law in a World of Liberal States’ (1995) 6 European Journal of International Law 503; and A-M Burley, ‘Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine’ (1992) 92 Columbia Law Review 1907, 1910.

[148] H Koh, ‘Bringing International Law Home’ (1998) 35 Houston Law Review 623, 667.

[149] Moravcsik attributes this success to the Council of Europe and the Conference on Security and Cooperation rather than the European Union. As well as the European Court of Justice and the European Court of Human Rights determining cases, sanctions exist in the form of suspending trade preferences to developing countries, suspending aid and withholding membership: A Moravcsik, ‘Explaining International Human Rights Regimes: Liberal Theory and Western Europe’ (1995) European Journal of International Relations 157, 158-9. Russia decriminalised homosexuality in order to gain membership to the European system.

[150] T M Franck, The Power of Legitimacy Among Nations (1990); Fairness in International Law and Institutions (1995); and ‘Legitimacy in the International System’ (1988) 82 American Journal of International Law 705-707 and 756. Simpson notes that Franck’s argument is somewhat circular: rules possess legitimacy when they are complied with regularly, and legitimate rules elicit high levels of compliance. He highlights that some of the case studies used by Franck do not support the proposition that specific state consent is trumped by customary law or jus cogens: G J Simpson, ‘Is International Law Fair?’ (1996) 17 Michigan Journal of International Law 615, 620-2. See also J Alvarez, ‘The Quest for Legitimacy: An Examination of the Power of Legitimacy Among Nations by Thomas Franck’ (1991) 24 New York University Journal of International Law and Policy 199.

[151] Franck, Fairness in International Law and Institutions, above n 150, 7. This tension provides the international legal system with its ‘intuitive plausibility and vulnerability’: M Koskennniemi, ‘Theory: Implications for the Practitioner’ in P Allott et al, Theory and International Law: an Introduction (1991) 3, 7 and M Koskennniemi, From Apology to Utopia: the Structure of International Legal Argument (1989).

[152] Vienna Declaration and Programme of Action, adopted by the UN World Conference on Human Rights, 14-25 June 1993, A/CONF.157/24 (pt 1) ch III.

[153] M Nussbaum, ‘Capabilities and Human Rights’ (1997) 66 Fordham Law Review 273.

[154] A R Chapman, ‘A “Violations Approach” for Monitoring the International Covenant on Economic, Social and Cultural Rights’ (1996) 18 Human Rights Quarterly 23.

[155] Ibid 118-123.

[156] Ibid 3 and 10.

[157] It is ‘a vehicle for bringing together all the compliance measures and instruments … in a single coherent compliance strategy’: ibid 249.

[158] The process of animating the legal norms embodied in the treaties of the regime that is especially effective when supported by international organisations with sufficient authority and resources to play an active role: K Danish, ‘Book Review: The New Sovereignty: Compliance with International Regulatory Agreements’ (1997) 37 Virginia Journal of International Law 789.

[159] The International Court of Justice (ICJ) was not seen by Chayes as very effective because of its lack of flexibility and formal legalisation, resulting often in unsatisfactory outcomes: like most litigation it is slow, costly, cumbersome and risky, Chayes and Chayes, above n 141, 201-16.

[160] WHO has had success in using technical assistance to train public health personnel and administrators (with an element of indoctrination to influence process and outcomes) in developing countries: this has wider implications, as these people then form an infrastructure capable of dealing with other health problems, ibid 277 and 197-201.

[161] Three of the four rules of legitimacy are conceptual coherence, adherence to hierarchy and symbolic validation. The first rule recognises that validation as members of the international community is connected to underlying principles of equality (ie, precluding caprice or arbitrariness, and incorporating consistency in the application of prescribed standards). Adherence to hierarchy is the acceptance of the jurisdiction and procedure of treaty bodies or adjudicative tribunals through joining the sovereign international community with universal rights and duties of statehood, including the capacity to enter into treaties. Symbolic validation, ritual and pedigree provide cultural and anthropological dimensions to legitimacy. Authority is enhanced by deep-rooted values and institutions in the law. In the case of human rights it has a long tradition of natural rights, and legitimacy is heightened when a norm is labelled as a codification rather than something novel: Franck, above n 150, 91-110 and 150-94.

[162] Ibid 50-66.

[163] Crawford, in Alston and Crawford (eds), above n 98, 1.

[164] See M O’Flaherty, Human Rights and the UN: Practice Before the Treaty Bodies (1996).

[165] See A Gallagher, ‘Making Human Rights Treaty Obligations a Reality: Working with New Actors and Partners’ in Alston and Crawford (eds), above n 98, 201, 218-20.

[166] Report of the Secretary-General, Advisory Services in the Field of Human Rights: Technical Cooperation in the Field of Human Rights, 18 January 2001, UN Doc E/CN.4/2001/104.

[167] WHO, International Consultation on Health Legislation and Ethics in the Fields of HIV/AIDS, Oslo, 1988. Workshops were held in 1990 in Seoul, Brazzaville and New Delhi. In Seoul policy guidelines were developed as a checklist to evaluate legal measures for the control of HIV/AIDS: WHO document RS/90/GE/11(KOR). In 1995 WHO held regional consultations on HIV-related law reform in Eastern and Central Europe (Latvia, Moldova and Kazakhstan): ‘International News’ (1995) 1 Canadian HIV/AIDS Policy and Law Newsletter.

[168] The Cebu Statement of Belief and the Dakar Declaration: UNDP, African Network on Ethics, Law and HIV: Proceedings of the Inter-Country Consultation, (1995) and R Glick (ed), Law, Ethics and HIV: Proceedings of the UNDP Inter-Country Consultation, Cebu, UNDP Regional Project on HIV/AIDS (1995). D C Jayasuriya (ed), HIV Law and Law Reform: Asia and the Pacific, UNDP Regional Project on HIV and Development (1995). The United Nations Educational Scientific and Cultural Organization (UNESCO) also held a regional workshop on preventive education for women’s grassroots organisations in Africa in Adibjan (Cote d’Ivoire) on 7-11 September 1998. A follow-up practical guide on this topic was published with best practice examples of preventive education using appropriate tools and messages for illiterate and semi-literate African women: UNESCO, HIV/AIDS Preventive Education: A Practical Guide for Coordinators of Women’s Grassroots Organisations in Africa (1999).

[169] Eg, Malawi: a Multi-disciplinary National Tripartite Seminar was held in Lilongwe on 20-23 September 1999. This is in order to implement the Southern Africa Development Council Code of Conduct.

[170] The UNAIDS Guide to the United Nations Human Rights Machinery for AID Service Organizations, People Living with HIV/AIDS, and Others Working in the Area of HIV/AIDS and Human Rights (1997).

[171] The Chayes give the example of epidemiological data collected by the WHO: Chayes and Chayes, above n 141, 136.

[172] Ibid 22 and 142-154.

[173] Ibid 155.

[174] The ILO systematic and proactive performance evaluation regime has four-yearly reporting periods: ibid 23, 157, 161 and 173.

[175] Ibid 164.

[176] In-house research was viewed by the Chayes as too resource-intensive for specialised UN institutions: ibid 170-172.

[177] Ibid 154.

[178] Ibid 10.

[179] Peter Haas defines epistemic communities as a professional network that share common values, have a common understanding of the problem and its solution: P Haas, When Knowledge is Power: Three Models of Change in International Organizations (1991), and ‘Introduction: Epistemic Communities and International Policy Coordination’ (1992) 46 International Organization 1.

[180] Chayes and Chayes, above n 141, x.

[181] See UNAIDS, Putting Knowledge to Work: Technical Networks for Effective Responses to HIV/AIDS (2000) UNAIDS/00.47E, and InfoDev: Facilitating Communications in Response to HIV/AIDS in South-East Asia (2001) UNAIDS//01.45E.

[182] Franck uses the examples of four UNAIDS co-sponsors: UNDP, WHO, the United Nations Children’s Fund (UNICEF) and the World Bank: T M Franck, ‘Legitimacy in the International System’ (1988) 82 American Journal of International Law 705, 730-1. The four other UNAIDS co-sponsors are ILO, the United Nations International Drug Control Programme (UNDCP), the United Nations Population Fund (UNFPA) and UNESCO.

[183] It is similar to the UN Environment Program described by the Chayes: above n 141, 283-4.

[184] Transnational norm entrepreneurs assist in the creation of bodies with similar objectives overseas, elevate their objective beyond identification with national interests and attempt to persuade foreign elites that particular norms reflect universal values: eg, Diana, Princess of Wales, in the areas of AIDS discrimination and land mines: H Koh, ‘Bringing International Law Home’ (1998) Houston Law Review 623, 644.

[185] Koh includes the example of the former Irish President Mary Robinson who later became the UN High Commissioner for Human Rights: ibid 645.

[186] Domestic, regional or international forums define, elaborate and test norms when it is alleged that they have been violated: ibid 646.

[187] Chayes and Chayes, above n 141, 251.

[188] Ibid.

[189] Ibid 252.

[190] Ibid 251.

[191] Some notable exceptions have been the International Commission of Jurists, Human Rights Watch, Rights and Humanity, the International Federation of Red Cross and Red Crescent Societies, Human Rights Internet and the François-Xavier Bagnoud Centre for Health and Human Rights: R L Siegel, ‘AIDS and Human Rights’ (1996) 18 Human Rights Quarterly 612, 623. Some commentators have criticised the reluctance of international human rights NGOs, such as Amnesty International, to cover economic and social rights: P Alston, ‘US Ratification of the Covenant on Economic, Social and Cultural Rights: The Need for an Entirely New Strategy’ (1990) 84 American Journal of International Law 389.

[192] Such as the American Civil Liberties Union. Specialist national HIV/AIDS and human rights NGOs include the Canadian HIV/AIDS Law Network and the South African AIDS Law Project: Siegel, above n 191, 625.

[193] Eg, the Asia-Pacific Council of AIDS Service Organisations developed a Compact on Human Rights in 1995: Office of the High Commissioner for Human Rights and UNAIDS, HIV/AIDS and Human Rights: International Guidelines – Second International Consultation on HIV/AIDS and Human Rights, Geneva 23-25 September 1996, HR/PUB/98/1 (1998) Annex 1.

[194] Chayes, above n 141, 279.

[195] C Scott and P Macklem, ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution(1992) 141 University of Pennsylvania Law Review 1.

[196] Ibid 17.

[197] Ibid 44.

[198] P Hunt, Reclaiming Social Rights: International and Comparative Perspectives (1996) 25.

[199] M Kirby, ‘Administrative Review: Beyond the Frontier Marked “Policy – Lawyers Keep Out”’ (1981) 12 Federal Law Review 121; M McHugh, ‘The Law-making Function of the Judicial Process’ (1988) 62 Australian Law Journal 15.

[200] Hunt, above n 198, 66.

[201] Ibid 25.

[202] Scott and Macklem, above n 195, 1, 38 and 72.

[203] See general discussion in D Kinley, ‘Human Rights as Legally Binding or Merely Relevant?’ in S Bottomley and D Kinley (eds), Commercial Law and Human Rights (2001) ch 10 and S Joseph, J Shultz and M Castan, The International Covenant on Civil and Political Rights: Cases, Material and Commentary (2000) 23-4. For a specific discussion of s 6 of the Human Rights Act 1998 (UK), which makes the legislation binding in respect of courts’ adjudication of disputes between private parties, see M Hunt, ‘The Horizontal Effect of the Human Rights Act’ (1998) Public Law 423 and G Phillipson, ‘The Human Rights Act, “Horizontal Effect” and the Common Law: A Bang or a Whimper?’ (1999) 62 Modern Law Review 824.

[204] Craven, above n 119, 128.

[205] J Donnelly, ‘International Human Rights and Health Care Reform’ in A R Chapman, Health Care Reform: A Human Rights Approach (1994) 124, 125. See also D Porter (ed), The History of Public Health and the Modern State, (1994).

[206] Hunt, above n 198, 29.

[207] B C A Toebes, The Right to Health as Human Right in International Law (1999), Annex I, 363, 364-5.

[208] Eg, art 93 of the Colombian Constitution establishes the supremacy of international over national law: A E Yamin, ‘Book Review: The Right to Health as a Human Right in International Law’ (1999) 21 Human Rights Quarterly 1123, 1126.

[209] There was a ‘social duty to defer to the general interest and not endanger the health of others where his life was not in danger’: Acmanne and Ors v Belgium 10435/83, Decision (1984) DR 40, 251.

[210] Tuberculosis treatment is short-term and highly effective (although there are drug-resistant strains), whereas in the case of HIV/AIDS the effects of long-term anti-retroviral treatment are not yet known. The other important distinction is that tuberculosis is casually transmitted as the bacteria is air-borne whereas HIV is only transmitted in more limited ways: see L O Gostin, ‘The Resurgent Tuberculosis Epidemic in the Era of AIDS: Reflections on Public Health, Law and Society’ (1995) 54 Maryland Law Review 1.

[211] WHO, A Human Rights Approach to Tuberculosis: Guidelines for Social Mobilization WHO/CDS/STB/200.1 (2001).

[212] Case 1802 (Paraguay), Annual Report of the Inter-American Commission on Human Rights, 1977, 36.

[213] The Yanomami Case, Case 7615, Inter-American Commission on Human Rights, Res No 12/85, CHR 24, 213, OEA/ser.L/V/II.66, doc 10 Rev 1 (5 March 1985).

[214] D P Fidler, International Law and Infectious Disease (1999) 193.

[215] Inter-American Commission on Human Rights, Report No 29/01, Jorge Odir Miranda Cortez et al v El Salvador, Case 12.249, 7 March 2001.

[216] Constitutional Court of South Africa, Case CCT 32/97, 27 November 1997. S 11, the right to life was also considered, but the case Paschim Banga Khet Mazdoor Samity and Ors v State of West Bengal and Anor (1996) AIR SC 2426 was distinguished by the fact that treatment for Samity’s head injuries from a train accident was available but denied by government hospitals.

[217] The Court stated that it would be ‘slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters’ [29]. The Court referred to a statement by Sir Thomas Bingham in the case R v Cambridge Health Authority; Ex parte B (1995) EWCA Civ 49; [1995] 2 All ER 129 (CA) at 137d-f.

[218] C Scott and P Alston, ‘Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney’s Legacy and Grootboom’s Promise’ (2000) 16 South African Journal of Human Rights 206.

[219] Grootboom and Ors v The Government of the Republic of South Africa and Ors Case CCT 11/00, 21 September 2000. See section on children’s rights below.

[220] Minister for Health v Treatment Action Campaign, Case SCCT 8/02, Constitutional Court of South Africa, decided, 5 July 2002.

[221] R Stern, ‘Activists Win Supreme Court Challenge in Costa Rica’ in International Council of AIDS Organizations, HIV/AIDS and Human Rights: Stories from the Frontlines (1999) 17-18 and M Bianco, ‘Confronting the Ministry of Health: Access to Treatment for HIV/AIDS in Argentina, FEIM’ (Fundacion para Estudio e Investigacion de la Mujer – the Foundation for Women’s Studies and Research) in L S Wiseberg et al (eds), Human Rights and HIV/AIDS Effective Community Responses (1998) 47, 48.

[222] Report of the UN Secretary-General, Specific Groups and Individuals: Other Vulnerable Groups and Individuals – the Protection of Human Rights in the Context of HIV/AIDS, E/CN.4/2001/80, 20 December 2000 [14]. See also R Elliott, ‘Access to Treatment and the Human Right to Health: Recent Developments and Future Strategies’, conference satellite, Putting Third First: Critical Legal Issues and HIV/AIDS, Barcelona, 5 July 2002.

[223] Pharmaceutical companies had refused to produce the vaccine because it was not profitable: Viceconte, Mariela Cecilia C/Estado Nacional v Ministerio de Salud y Accion Social s/Amparo Ley 16.986, Causa No 31, Camara Nacional en lo Contencioso-Administrarivo Federal, Sala IX, decision of 2 June 1998 cited in A McChesney, Promoting and Defending Economic, Social and Cultural Rights: A Handbook, (2000) ch 8 [8.4].

[224] M Power, The Audit Society (1997) 109 and ch 5 generally.

[225] GA Res 48/96 (20 December 1993).

[226] GA Res 56/119 (28 November 2001).

[227] IV International Conference on AIDS, Stockholm, 12-16 June 1988.

[228] NGOs in several developing countries in Asia and Africa have expressed interest in applying the audit. Discussions were also held in July 2002 by the author with Canadian and UK NGOs.

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