Table 10: HIV, AIDS and the right to the highest attainable standard of health

Table 10: HIV, AIDS and the Right to the Enjoyment of the Highest Attainable Standard of Health

  • State fails to take progressive steps to ensure access to HIV-prevention information and services (e.g., condoms, sterile syringe programs, or voluntary counseling and testing) or imposes restrictions on such services.
  • State fails to take progressive steps to ensure access to anti-retroviral drugs, treatment for opportunistic infections, opioid pain medications for palliative care, or comprehensive TB care.
  • State fails to ensure that sex workers, MSM, prisoners, people who use drugs and other vulnerable groups enjoy proportionate access to HIV prevention, treatment, and care services.
Human Rights Standards Treaty Body Interpretation
ICESCR 12(1): The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

ICESCR 12(2): The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: . . . (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases

CESCR: Art. 12 includes “the right to prevention, treatment and control of epidemic…diseases,” including HIV. Recommendations include: Georgia to undertake general HIV-prevention measures (2002); Moldova to “intensify efforts” on HIV (2003); Russia to take “urgent measures to stop the spread of HIV” and related discrimination (2003); Ukraine to provide HIV information to adolescents (2001).

CESRC: Recommending that Kenya ensure that “[p]regnant women with HIV/AIDS are not refused treatment, segregated in separate hospital wards, forced to undergo HIV/AIDS testing, and discriminated or abused by health workers, and that they are informed about and have free access to antiretroviral medication during pregnancy, labour and after birth, including for their children.” E/C.12/KEN/CO/1 (CESCR, 2008)

CRC 24(1): States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

CRC Committee: Recommended that Russia study its practice of “segregating children of HIV-positive mothers in hospital wards or separate orphanages and of HIV positive children being refused access to regular orphanages, medical care and educational facilities.” CRC/C/RUS/CO/3 (2005).

CRC Committee: Has recommended that States improve HIV-prevention services for children, protect children from HIV-based discrimination, and include children’s rights in HIV strategies. See, for example, comments on Belarus (2011), Panama (2011),Ukraine (2011), Angola (2010), Grenada (2010), Nigeria (2010), Malawi (2009), Bhutan (2008), Eritrea (2008), Mali (2007), Benin (2006), Senegal (2006), Swaziland (2006), Nigeria (2005), Uganda (2005), Armenia (2004), Burkina Faso (2002), Mozambique (2002), Kenya (2001), Georgia (2000), Tajikistan (2000), and South Africa (2000).

CEDAW 12(1): States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.

CEDAW Committee: Recommending that Zambia “improve access to free prevention, treatment and care and support services at the programming level where gender and customary factors contribute significantly to infection rates among women and girls” and “improve access to services for HIV-positive women by incorporating gender-based violence concerns into health-care protocols and introducing measures to effectively respond to gender-based violence and abuse.” CEDAW/C/ZMB/CO/5-6 (CEDAW, 2011).

CEDAW Committee: recommending that Ethiopia “provide free antiretroviral treatment for women and men living with HIV/AIDS, including pregnant women, so as to prevent mother-to-child transmission; train technical and administrative staff to implement the national multisectoral strategy/action framework to combat HIV/AIDS and adopt prevention programmes targeting high-risk groups , such as young women, sex workers and internally displaced persons; conduct awareness-raising activities to de stigmatize orphans and vulnerable children affected by HIV/AIDS and strengthen the material and psychological support provided to them.” CEDAW/C/ETH/CO/6-7 (CEDAW, 2011)

Other Interpretations 

The Declaration on the Promotion of Patients’ Rights in Europe, Art. 5.3: Patients have the right to a quality of care which is marked both by high technical standards and by a humane relationship between the patient and health care provider.

WHO 1978 Declaration of Alma-Ata: The Conference strongly reaffirms that health, which is a state of complete physical, mental and social wellbeing, and not merely the absence of disease or infirmity, is a fundamental human right and that the attainment of the highest possible level of health is a most important world-wide social goal whose realization requires the action of many other social and economic sectors in addition to the health sector.

World Health Organization Constitution, Preamble: The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.

Charter of Fundamental Rights of the European Union, Art. 35: Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all the Union’s policies and activities.

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT 2001), Para 33: The provision of basic necessities of life must always be guaranteed in institutions where the State has persons under its care and/or custody. These include adequate food, heating and clothing as well as, in health establishments, appropriate medication.