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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”



 
    

Charter for Social Justice


At the Naz Foundation International 3rd Partners Consultation Meeting held in New Delhi, India between 5th - 7th April 2003, a Satellite Session was held on developing charter for Social Justice for MSM.

 
With the assistance of Miriam Maluwa, Human Rights advisor to UNAIDS and Aditya Bondyapadyay, NFI Legal Consultant, the Charter has now been developed and has been signed to by all the Partner agencies attending the Delhi Meeting.

We would like as many organizations and individuals working in the field of HIV/AIDS and Human Rights to signed up for this Charter which will be sent to a range of Governments, Donors, NGOs, and prominent individuals. To sign up for the Charter just send us

Your name

Organisation

Position  in the organization

Organisation address

Contact details (including email)

If you wish a pdf version of this document please contact kaushik@nfi.net

Signatories to this Charter so far are:

Bandhu Social Welfare Society, Bangladesh

Blue Diamond Society, Nepal

Vision, Pakistan


AASRA, Patna, India

Bharosa, Lucknow, India

Gelaya Trust, Bangalore/Mysore, India

Jyothi Welfare Society, Vijaywada, India

Lifeline Foundation, Imphal, India

Mithrudu, Hyderabad/Secundrabad, India

Praajak Development Society, Kolkata, India

Prantik, Bongaon, India

Sahara Welfare Trust, Vishakhapatnam, India

Udaan Trust, Mumbai/Pune, India

 
With warm regard

Shivananda Khan

Executive Director

Naz Foundation International

3rd Naz Foundation International Partners Regional Consultation Meeting

5th - 7th April 2003

New Delhi, India

Living with Dignity and Respect
Social Justice for All
 

A Charter for Social Justice[1]
 
PREAMBLE
 

We, the representatives from a broad range of males who have sex with males (MSM) sexual and reproductive health projects and agencies across Asia, assembled here at the Marriatt WelcomHotel, Saket, New Delhi, India, for the 3rd NFI Partners Regional Consultation Meeting from 4th - 7th April 2003 to review and address the problem of HIV/AIDS in all its aspects as it affects MSM in our countries irrespective of their gender or sexual identity, as well as to secure national and international commitment to enhance coordination and intensification of national, regional and international efforts to combat it in a comprehensive manner:

·           Deeply concerned about the appalling lack of prevention, treatment and care services appropriate to the needs of MSM in a region of 2.5 billion people where HIV/AIDS is rapidly increasing;

·           Deeply concerned with  the lack of respect for human rights  and social justice due to the high levels of HIV/AIDS related stigma, discrimination, and human rights violations and abuse directed against MSM, particularly those of us who are feminised;

·           Concerned that MSM will continue to be marginalised, if not become  invisible, within the rhetoric of "heterosexual AIDS", and thus continue to die in hidden numbers as the  spread of HIV/AIDS  continues to rise in the Asia region,

·           Recalling the many commitments made by States to abide by a range of International human Rights Instruments, and other United Nations Declarations, Policies and Guidelines addressing those affected, infected and vulnerable to HIV/AIDS, including MSM;

·           Convinced of the urgent need for a coordinated and sustained response to the HIV/AIDS epidemic in the Asia region as it affects MSM who too often have been ignored, marginalized, criminalised or made invisible;

 

  

Do hereby demand the respect and dignity of all MSM, irrespective of their specific gender and/or sexual identity, or the lack thereof and also the creation of a supportive social, policy and legal environment to enable MSM to more effectively respond to the HIV/AIDS epidemics in our countries and to be seen as equal partners in the struggle against the spread of AIDS.

Such an enabling environment should include the realization by all, irrespective of our gender and sexual choices, the following rights:

¨      The right to equality before the law and non-discrimination.

¨      The right to life, liberty and security of person

¨      The right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment

¨      The right to work, with free choice of employment, to just and favourable conditions of work

¨      The right to freedom of opinion and expression, including freedom to hold opinions without interference and to seek, receive and impart information and ideas [2]

¨      The right not to be subjected to arbitrary interference with our privacy, family, home or correspondence, nor to attacks upon our honour and reputation

¨      The right not to be subjected to arbitrary arrest, detention or exile, or the creation of such circumstances that force one to adopt exile.

We recognise that different institutions, peoples, groups, and agencies hold different responsibilities for building such an enabling environment. These are:

¨      Governments for changing and implementing laws and policies to ensure equality, equity and social justice.

¨      Donors for supporting sexual health initiatives led and owned by MSM themselves and actively supporting advocacy for enjoyment of human rights by all.

¨      Non-Government Organisations, Voluntary Organisations, and other Civil Society institutions and the private sector for working in partnership with such MSM initiatives and supporting social justice for all.

¨      MSM institutions, organizations, and groups themselves for taking on the onus of working for themselves for prevention work against the spread of HIV/AIDS, care and support of those MSM affected and infected with HIV, and for securing for all MSM equality, equity and social justice.

THE FRAMEWORK

International human rights law protects all persons equally, without distinction or discrimination. The broad range of human rights- civil, political, economic, social and cultural- should be equally enjoyed by all groups of individuals.  The protection of the basic human rights of men who have sex with men is therefore grounded in a human rights framework that all people are worthy of equal respect and dignity whatever their situation. 

The core international human rights Treaties and Conventions adopted by the General Assembly, inter-alia, the Universal Declaration on Human Rights,[i] Convention Against Torture, Inhuman and Degrading Treatment,[ii] International Covenant on Civil and Political Rights,[iii] the International Covenant on Economic, Social and Cultural Rights[iv], the International Convention on Elimination of All Forms of Discrimination Against Women[v], and the Convention on the Rights of the Child[vi] guarantee all human beings freedom from discrimination on many grounds, including sex, colour, language, religion, political opinion, birth, national or social origin, property, civil, political and social or other status.

The principle of non-discrimination has also been adopted in regional human rights instruments such as the African Charter on Human and People's Rights,[vii] the American Convention on Human Rights[viii], and the European Convention on Human rights.9

Further, the Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights, has addressed the issue of the right to privacy, noting that Article 1710 of the International Covenant on Civil and Political Rights is violated by laws which criminalise private homosexual acts between consenting adults.11

The Committee has also resolved that the term "sex" in article 26 of the Covenant on Civil and Political Rights, which prohibits discrimination on various grounds,12 includes sexual orientation.13 Furthermore, the Human Rights Committee has also confirmed that the prohibition against discrimination requires States to review and, if necessary, repeal or amend their laws, policies and practices to proscribe differential treatment that is based on arbitrary HIV-related criteria.14

 

  

Discrimination against men who have sex with men and other disadvantaged groups15 increases such person's vulnerability to the risk of HIV infection, as well as the likelihood that they will be targeted for coercive measures, such as mandatory testing, arbitrary arrest, segregation, detention and deportation.16

Such discrimination also compromises the health of the general population as those affected, actively avoid detection and contact with health and social services. The result is that those most needing information and, education and counselling are driven underground. Here, specifically in the context of HIV/AIDS, the Committee has found that the "criminalisation of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of HIV/AIDS . by driving underground many of the people at risk of infection . [it] would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention." 17

Safeguarding human rights in the context of HIV/AIDS is, therefore, not only vital in itself as a principle, but it is also pragmatic. Its aim is to encourage those who are infected to cooperate with the authorities so as to slow down the epidemic. This can be achieved only if people have assurances that their rights will be respected.

ACCOUNTABILITY OF STATES

As members of the United Nations and as States Parties to the said international human rights instruments, States have obligations to respect protect and fulfill human rights.18

The obligation to respect requires States to refrain from interfering directly or indirectly with the enjoyment of human rights.19 The obligation to protect requires States to take measures that prevent third parties from interfering with human rights20 and the obligation to fulfil requires States to adopt appropriate legislative, budgetary, judicial, promotional and other measures for the full realisation of human rights.21

States have also willingly made political commitment to implementing human rights in the context of HIV/AIDS.22 States must be held accountable for these legal and political commitments.

Bearing in mind the legal obligation and commitments that States have entered into, we strongly urge that:

1.         States

1.1       States recognise the rights of ALL its citizens, irrespective of their gender and /or sexual identity or practice, and enact laws that protect the right to privacy, thus ending criminalisation of sexual expression.

1.2       Enact laws and policies that protect human rights and provide an enabling and empowering environment of men who have sex with men and other sexual minorities.

1.3       Enact, repeal or amend laws, regulations and policies to ensure MSM have access to sexual health services and are not discriminated against through intimidation, fear, harassment, violence, sexual abuse, denial and the risk of imprisonment.

1.4       Address harassment, violence and sexual abuse by both of the State as well as others through the establishment of appropriate accountability mechanisms at local, State and national levels that ensures the ability of victims of such acts to challenge such action and seek redress.

1.5       Provide adequate investment and support for the development of peer-led community-based MSM sexual health service providers in order for their constituents to access appropriate services that promote their well-being.

1.6             Ensure that all State and national level  agencies, including the police and the judiciary are appropriately trained and sensitised to treat all equally before the law, including MSM and  to respect  human rights of MSM, including their reproductive and sexual rights .

In addition,

1.7       Enact laws and adopt policies that  promote and protect the health and well-being of all persons infected with, affected by and vulnerable to HIV/AIDS by assuring them of appropriate prevention, care, support, and access to  HIV/AIDS related treatment.

1.7             Enact laws that promote and protect all HIV positive persons from discrimination and that ensure the full enjoyment of their civil, political and economic, social and cultural rights and allow them full participation in every sphere of their lives.

2.         Donors

2.1             Donors support HIV/AIDS prevention, care and treatment by and for MSM across Asia.

2.2             Donors invest in the significant development of many more MSM community-based HIV/AIDS service providers across Asia and provide appropriate technical assistance.

2.3             Donors support legislative, policy development and advocacy work on MSM issues at local, national, regional and international evils.

3.         Non-Government Organisations and other civil society institutions

3.1             Local, national, regional and international organisations working in the field of sexual and reproductive health take on board issues relating to MSM and address these concerns within their own organisations and in their service delivery and collaborate with and work in partnership with MSM sexual health Community based organisations towards promoting an enabling environment for all.

3.2             Recognise the sexual health concerns of MSM need to be incorporated into agendas of NGOs.

4.         MSM Institutions, Organisations, and Groups

4.1       MSM Institutions, Organisations, and Groups should accept and take on the responsibility of working for the health and other rights of all MSM so as to ensure for them their basic dignity, social justice, equity, and equality, and enable them to protect themselves from HIV/AIDS and other sexually transmitted infections.

We, participants of the 3rd NFI Partners Regional Consultation Meeting express our appreciation to those who have made this Meeting possible and who have raised the awareness regarding the vulnerability and marginalisation of MSM in the global fight against AIDS.

We look forward to strong leadership and support from UNAIDS, other international programmes and agencies, Governments, donors, national, regional and international NGOs to help us be a key part of the HIV/AIDS response through working in partnership with us.

We finally call upon all countries and donors in the Asia region to take the necessary steps to implement this Charter for Social Justice in strengthened partnership and cooperation. We too are a part of civil society.

--------------------------------------------------------------------------------

[1] Technical elements of this Charter are drawn/extracted from a paper prepared by Miriam Maluwa (Attorney at Law, LL.B (Hons.) (Bachelor of Laws) and LL.M (Masters of Laws) University of London, UNAIDS Law and Human Rights Adviser. The paper was presented at an Inter-Agency meeting on "Working with men who have sex with men for HIV Prevention and Care", convened by UNAIDS and WHO on November 2002, in Geneva Switzerland.

[2] In  the context of HIV/AIDS, such right includes access to appropriate HIV/AIDS related  and sexual health  information regarding prevention,  treatment, care  and support
--------------------------------------------------------------------------------

[i] Adopted by the General Assembly on 10th December 1948 under Resolution 217 A (III)

[ii] Adopted by the General Assembly on 10th December 1984 under Resolution 39/46 of December 1984. Entered into force on the 26th June 1987.

[iii] Adopted by the General Assembly under G.A resolution 2200 (XXI), UN GAOR, 21st session, Supplement No. 16, UN Doc. A/6316 (1966). Entered into force 23 March 1976.

[iv] Adopted by the General Assembly on 16 December 1966 under G.A. Res. 2200 (XXI); UN GAOR, 21st Session, Supplement No. 16 at 49, UN Doc. A/6316 (1966).

[v] Adopted by the General Assembly under GA Resolution 34/180 of 18 December 1979. Entered into force 3rd September 1981

[vi] Adopted by the General assembly under GA res. 4/25 of 20th November 1989. Entered into force 2nd September1990

[vii] Adopted on 26th June 1981. Entered into force 21st October 1986

[viii] Adopted 22nd November 1969.  Entered into force 18th July 1978

9 Adopted 4th November 1950. Entered into force 3rd September 1953

10 Article 17 states   (i) " No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. And (ii) Everyone has the right to the protection of the law against such interference or attacks.

11 Communication No. 488/1992, Nicholas Toonen V Australia, (Views adopted on 31st March 1994, fiftieth session). See Report of the Human Rights Committee Volume II General Assembly Official Record Forty-ninth session (Geneva, 18th October to 5th November 1993); Fiftieth session (United Nations Headquarters, 21st March to 8th April 1994) Fifty-first session (Geneva, 4th to 29th July 1994), (A/49/40) . http://www.unhchr.ch/tbs/doc.nsf Pages 226-237, paragraph 8.2

12 "race, colour, sex. language, religion, political or other opinion, national or social origin, property, birth or other status"

13 ibid, paragraph 8.7

14 ibid, paragraph 11

15 Such groups may also include women, children, minorities and indigenous populations, those living in poverty, migrants and other aliens and injecting drug users.

16 See examples of HIV/AIDS related litigation; Carrasco E (2000);  and Access to Treatment as a Right to Life and Health. Canadian HIV and AIDS Policy Law Review; 5:4

17 Communication No. 488/1992, Nicholas Toonen V Australia, (Views adopted on 31st March 1994, fiftieth session). See Report of the Human Rights Committee Volume II General Assembly Official Record Forty-ninth session (Geneva, 18th October to 5th November 1993); Fiftieth session (United Nations Headquarters, 21st March to 8th April 1994) Fifty-first session (Geneva, 4th to 29th July 1994), (A/49/40) . http://www.unhchr.ch/tbs/doc.nsf Pages 226-237, paragraph 8.5

18 See Committee on Economic Social and Cultural Rights  General comment 14. The right to the highest attainable standard of health adopted 11th August 2000.. E/C.12/2000/4, paragraphs 34-37

 See also http://www.unhchr.ch/html/menu2/6/cescr.htm

19 For example, refraining from identifying or limiting equal access of all persons, including men who have sex with men, preventive and curative HIV/AIDS heath services and care or abstaining from enforcing discriminatory practices as State policy.

20 For example, adopting of legislation to ensure the equal access to health care and health related services provided by third parties; to control the marketing of medicines and medical equipment and to ensure that medical practitioners and other health professionals meet appropriate standards of education, skill and ethical codes of conduct.

21 For example, adoption of a national health policy with a detailed plan; promotion of HIV/AIDS education, as well as information campaigns and vaccine research.

22 For example, recent relevant political commitments have been made in the United Nations Millennium Declaration (2001), the UN General Assembly Special Session Declaration on HIV/AIDS (2002),  The Declaration and Program of Action of the Wold Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (2001) and  The Declaration from the World Summit for Social Development (2002).

Arif Jafar
Director
Regional Liaison Office
Email:  arif@nfi.net
Naz Foundation International
9 Gulzar Colony, New Berry Lane,
Behind Times Of India, Lucknow - 226 001
Tel: +91 (0)522 2205781/2  , Fax +91 (0)522 2205783
Email: lucknow@nfi.net,     Website: www.nfi.net

London Office:
Palingswick House, 241 King Street
London, W6 9LP, United Kingdom
Phone: +44 (0) 208563 0191  Fax: +44 (0) 208741 9841
E-mail: london@nfi.net  Web: www.nfi.net

Director: Kim Mulji   Email: kim@nfi.net

Shivananda Khan
Executive Director
Email: shiv@nfi.net