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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 regards
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.
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[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
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[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
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,
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
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