As written, the draft law threatens human rights and progress toward universal access to treatment. The most alarming changes include the criminalization of intentional transmission of HIV, which could result in life imprisonment; compulsory testing of drug users, pregnant women, sex workers, and victims and charged offenders of sexual violence; and forced disclosure of HIV status. The government’s role in providing access to affordable treatment has been removed from the legislation.

“We know what works and what doesn’t in fighting HIV,” said Beatrice Were of the Uganda Network on Law, Ethics & HIV/AIDS. “This bill, unfortunately, is full of ineffective approaches that violate human rights and will set us back in our efforts to fight the AIDS epidemic and expand HIV programs nationwide.”

The bill’s most troubling traits are particularly unjust to women and high-risk groups. Because women are tested for HIV during pregnancy, a disproportionate number of women will know their HIV status and will thus be prosecuted disproportionately. The bill does not consider and protect a women’s inability to negotiate condom use or to tell a partner about her status — a partner who may have transmitted the disease to her in the first place. The HRW analysis finds that women who transmit HIV to their infants by feeding them breast milk would face criminal prosecution. Although the legislation exempts mother-to-child transmission “before or during the birth of the child,” the law does not protect mothers after child birth — the period of time when breastfeeding occurs. Additionally, there is little mention of counseling or support services for minors.

In short, the bill fails to provide a legal framework favorable to the effective national management of the epidemic. It fails to chip away at the more elusive yet fundamental perpetuators of the disease: stigma and discrimination.

The bill also arrives on the heels of a widely condemned piece of pending legislation, the Anti-Homosexuality Bill, which “prohibits and penalizes homosexual behavior” in Uganda. The bill, proposed on October 14, 2009, contains a life imprisonment punishment for an “offence of homosexuality.” Punishment by death is recommended for those committing “aggravated homosexuality,” whereby the “offender”— or, a partner in a homosexual act — is HIV-positive, or the other partner is disabled or under 18 years old. Those charged would be forced to take an HIV test. The bill also carries penalties for individuals who know about gay persons but do not report them, striking a severe gash in the progress of HIV prevention and treatment efforts by alienating this high-risk group.

The bill will enter Parliament shortly and will most likely become law in early 2010. Its myriad egregious clauses, such as the death penalty, could be altered slightly, but their fates remain to be seen. The gross human rights violations that lurk in the bill — discrimination of vulnerable groups, roadblocks to treatment, privacy of HIV status — will no doubt be carried through to law in some capacity, and these violations bear a striking resemblance to those in the HIV/AIDS bill.

Despite its numerous critiques of the proposed HIV/AIDS law, the HRW report does not ignore some welcome attributes of the legislation, noting that several changes may “improve the potential for human rights protections.” For example, neglecting to inform one’s sexual partner of HIV status and failure to protect oneself from transmission is no longer criminalized, and children born to HIV-positive women will receive treatment and care. Still, the bill lacks a fundamental commitment to protecting the rights and the health of its citizens.

In early December, Elizabeth Mataka, the UN Special Envoy on AIDS in Africa, added her voice to those of the bill’s dissenters. “I emphasize the importance of creating a social environment conducive for HIV prevention and to refrain from laws that criminalize the transmission of HIV and stigmatize certain groups in the population,” she remarked in Kampala, Uganda, on December 2. “These laws can only fuel the epidemic further and undermine an effective response to HIV.”

Her lips to Parliament’s ears.

In a recent opinion piece in the Financial Times, William Easterly argued that a rights-based approach to health care would favor the agendas of the rich and powerful, leaving the poor to die of neglected diseases. He then contends that holding ourselves to such unrealistically high standards would open the floodgates for unchecked spending, “since any of us could get healthier with more care.” Unfortunately, both of his slippery slope arguments are premised on inaccurate assumptions about the right to health, health spending dynamics in the US, and the history of global health assistance. The inequalities he describes are not the result of a push to promote health as a universal good. Instead, they are the flawed legacy of institutions and policies that persist in treating health as a commodity.

At a basic level, Easterly distorts the purpose and scope of a rights-based approach to health, specifically what is meant by “highest attainable standard of health.” He frames this as a personal right to absolute health, subject to immediate realization, when it is actually a collective right to equivalent health, subject to progressive realization (ICESCR, Art. 12). This mischaracterization underlies Easterly’s argument that human rights operate in a zero-sum environment. In reality, the right to health goes beyond mere delivery of goods and services; it is fundamentally concerned with promoting equitable outcomes and empowering people to achieve these ends. The problem is not one of scarcity: rich countries contribute less than 1% of their gross national income to support health care in poor countries. Rather, it is one of exclusion: the current balance of rights and duties fails to contemplate that everyone is entitled to a basic level of health. The Millennium Development Goals seem so ambitious because they seek to extend to all what those of us in the developed world take for granted — “minimum essential levels” of health and the preconditions for health, such as access to water, sanitation, and nutrition. While a certain amount of jockeying for priority is to be expected, it would take place within this basic inclusive framework. By resorting to economic scare tactics, Easterly displays fundamental misunderstanding of what is at stake in the human rights debate.

Additionally, Easterly fails to explain why global health assistance forms a rational basis for predicting how a rights-based approach would operate in the US context. First, domestic and foreign health allocations are driven by different political and public health considerations. Americans carry a larger chronic disease burden, while low-income countries, generally the target of global health funding, carry a larger infectious disease burden. For example, communicable diseases account for just 8% of years of life lost in the US but account for 68% of years of life lost in developing countries. By contrast, noncommunicable diseases account for 74% of years of life lost in the US but just 21% in developing countries (see the WHO 2009 World Health Statistics). Additionally, there are different delivery and funding mechanisms at work in each context. A recent survey of 12 African countries showed that there are 9 physicians per 100,000 people, whereas there are 270 physicians per 100,000 people in the US. Second, it is unclear how the right to health would result in both more spending and worse outcomes than the status quo. On the one hand, Easterly argues that it would lead to fierce competition for resources. On the other hand, he argues that it would result in reckless spending. The US health system is already characterized by overspending and overtreatment for tertiary levels of care (also see the Dartmouth Atlas Study), coupled with disparities in access and outcomes for the medically underserved. In fact, emphasizing universal access to primary care would result in saved costs and improved outcomes.

Finally, Easterly makes flawed assumptions about the historical drivers of global health assistance. First, his criticisms are misdirected, as the very policies and programs he decries were never based on the right to health. Instead, they reflect political decisions to fund targeted, vertical interventions over horizontal investment in the public sector. Second, his opposition to a rights-based framework is short-sighted since this siloed approach does not go far enough in promoting health. The WHO definition of health extends beyond mere absence of disease to “complete physical, mental and social well-being.” Yet the foreign aid “successes” Easterly cites, such as immunizations and antibiotics, were only aimed at preventing death. Because they do not address fundamental causes, they are incapable of preventing disease. It is ironic, then, that Easterly tries to support his complaints about global health funding by holding up the most vertical and least effective models of “global health care.” If good is measured by “obtaining the largest possible health benefits,” only a rights-based approach ensures these benefits go deep enough and broad enough to meet the needs of the poor.

There doesn’t have to be a dichotomy between AIDS and other diseases on the world stage. While there is still a long way to go in terms of expanding HIV/AIDS prevention and treatment, ongoing media research at the Boston University School of Public Health suggests there might be a great deal that proponents of neglected illnesses — like childhood pneumonia — can learn from the “success” of AIDS.

What makes a disease a “success”?

Over the past quarter century, there have been close to a million news articles about AIDS. The closest competitors for other infectious diseases are malaria and tuberculosis, with nearly 200,000 articles each.

Lower respiratory infections are the leading cause of burden of disease globally (in 2004, 94.5 million DALYs [disability adjusted life years]); more specifically, childhood pneumonia  kills 1.8 million children a year and remains the dominant cause of child mortality (20%). Yet there have been just 12,000 news articles about childhood pneumonia in the last 25 years.

When you look at funding, the differences are just as striking. From 1996–2003, HIV/AIDS received nearly half of all funds for infectious diseases in the developing world. Acute respiratory infections (which include childhood pneumonia) received 2.4%. Why?

Maybe it’s the story.

AIDS has always been a dynamic story, with activists marching in the streets, newly funded programs being announced, and rock stars flying off to distant lands on press junkets. And there is the very nature of AIDS itself, a disease that cut into the underbelly of society and released the unmentionable: sexual and gender discrimination and disparities in health between rich and poor.

Childhood pneumonia is but a struggling child actor against such a celebrity disease. It may be an inherently different, less sexy story. But maybe there is much to learn from the AIDS narrative and how it’s been told.

When news articles on AIDS and childhood pneumonia are examined for basic themes, a human rights bent is much more prevalent in AIDS news stories than in childhood pneumonia articles. AIDS activists have been always been media savvy and have framed their story in such a light. Childhood pneumonia policymakers and activists usually frame their story as requests for funds because “it’s the right thing to do.” The media stories about pneumonia, likewise, reflect this theme.

Maybe it’s time to change the childhood pneumonia narrative. Once again, the success of AIDS is instructive. In 2001, the media savvy Treatment Action Campaign (TAC) in South Africa began a campaign to change government policy on providing nevirapine to reduce mother-to-child transmission of HIV. While TAC’s approach turned from a media approach to a primarily legal approach, their success is notable. The Constitutional Court of South Africa ruled in their favor, specifically citing the constitutional rights of the children of HIV-positive mothers to “basic health care services.” This approach might seem, on the surface, to be steeped in the nature of HIV/AIDS. But the ruling is not based in the specifics of HIV, but rather in the right to health, particularly for children. The benefit of a human rights concept for childhood pneumonia is that a legal framework exists for such an approach in many countries and on the world stage.

Activism for childhood pneumonia may be difficult to achieve. While the adult victims of HIV/AIDS have been able to march in the streets, children are a voiceless, un-empowered group. Even within HIV/AIDS, attention and funding for pediatric AIDS has always lagged behind funding for adults. Again, the media reflects this: only 10% of AIDS-related news articles mention pediatric populations. Even when one looks at a disease that has its greatest impact on children — malaria — this 10% rule still exists.

Last, the media follows the money. AIDS, tuberculosis, and malaria get the most funding and the most media attention in terms of the number of articles in the press. Major killers like childhood pneumonia and diarrhea are greatly underfunded and are also greatly underreported. This may create a vicious cycle, whereby diseases with more funding prompt more new initiatives, more media coverage, and more attention, and then, once again, more funding.

But if the media knew how much their news coverage mirrored funding and not disease burden, might there be a change in reporting? And if a new cadre of activists-policymakers, or maybe the millions of mothers and fathers who have lost children to pneumonia, learned from the “success” of AIDS, might they one day tell a different story?

Photo by The Humanitarian and Development Partnership Team

Access to an adequate amount of clean water is an integral part of maintaining good health. Unfortunately for the residents of Phiri, Soweto — a low-income community in Johannesburg developed and relegated to black Africans during Apartheid — a ruling made by the South Africa Constitutional Court in a high-profile right-to-water case may limit access to this valuable resource.

The case pitted five impoverished residents of Phiri (the “applicants”) against the City of Johannesburg, Johannesburg Water, and the national Minister for Water Affairs and Forestry (the “respondents”) in a dispute about water provision policies and the installation of a pre-payment water meter system in Phiri. Before consideration by the Constitutional Court, this case had been decided in favor of the Phiri residents by two lower courts. Then on October 8, 2009, the Constitutional Court overturned these earlier decisions and ruled in favor of the respondents — the City, Johannesburg Water, and the Minister. If the poor want water, they will have to pay.

The applicants, all of whom are poor residents of Phiri, brought this case against the City, Johannesburg Water, and the Minister to challenge the adequacy of Johannesburg’s Free Basic Water policy, which allows only 6000 free liters of water per household monthly, or 25 liters per person per day for a household of 8. Households vary in size, but informal settlements sometimes adjoin these houses and share the household’s water stand. (This was the experience of the first applicant, Mrs Lindiwe Mazibuko, who shared a water stand with 19 other “household” members, thus limiting severely each person’s monthly water supply.) They also disputed the legality of installing a pre-paid water meter system in Phiri as part of a water sustainability program known as Operation Gcina’manzi (“to save water”).

Operation Gcina’manzi was implemented as a means to regulate water distribution more closely, decrease non-payment for water in Soweto, and raise money to repair corroded pipelines. After residents use up the monthly allowance of free water, they are required to purchase water from meters that automatically shut off if the consumer cannot afford to pay. The applicants contended that the provision of only 6 free kiloliters of water per month under this system violates section 27 of the Constitution, which provides that “everyone has the right to have access to sufficient water” and that “the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.”

The first ruling in favor of the Phiri residents came from the South Gauteng High Court in April 2008. The High Court deemed the meters to be “unlawful” and “unfair,” given that the City’s water services by-laws did not provide for the installation of pre-payment meters and that the Free Basic Water policy did not meet reasonable standards. It ruled that the City should provide at least 50 liters of free water daily to residents of Phiri. The World Health Organization recommends a minimum of 20 liters of water per person per day for basic survival, and 50 to 100 liters per day per person to meet most health needs.

Upon the respondents’ appeal, the case went to the Supreme Court of Appeal, which also ruled in favor of the applicants but which varied the terms of the ruling. The Supreme Court deemed the pre-paid meters unlawful because they automatically shut off the water supply when the free limit has been reached. However, the Supreme Court suspended that ruling for two years to give the City time to amend its by-laws, denying the residents immediate relief. The Court declared that 25 liters per person per day, or 6 kiloliters monthly per household, was not adequate but then named a necessary amount lower than what the High Court ruled sufficient. The Supreme Court found that “42 litres water per Phiri resident per day would constitute sufficient water in terms of s 27(1) of the Constitution.”

Upset by these terms, the Phiri residents asked for an appeal of the Supreme Court ruling in order to reinstate the High Court order. Although the applicants agreed with the Supreme Court that the pre-paid meters were unlawful, they disagreed that the Court should suspend the order for two years to allow the City to rectify its by-laws. The applicants also disagreed with the Supreme Court’s minimum water quota per person per day. Instead of 42 liters, the applicants deemed 50 liters per Phiri resident per day to be the minimum need, as the High Court had ruled. The respondents sought permission to cross appeal, and the case went to the Constitutional Court.

In a highly controversial shift of legal opinion, the Constitutional Court found the actions of the City and its water service programs to be constitutionally sound. The Court recognized that the City is, in fact, working toward the “progressive realisation” of the achievement of access to sufficient water, but that it will take time for everyone to have adequate access. Also, the Court found that quantifying a sufficient amount of water is not an appropriate matter for a court to handle. The exact quantity should be decided on by the government, the Court argued, which has already developed a protocol accounting for 6 kiloliters per month. The Court also deemed that the City was authorized to install pre-paid meters based on the City’s by-laws and national legislation.

The case is the first instance in which the court has had to make a judgment on access to and sufficiency of water. It creates a deep rift between impoverished residents of South Africa and the state that governs them. It also undermines the ability of poor residents to advocate effectively for a basic human need in a country whose young Constitution is a model for the developing world. Human rights advocates say as much, while others express careful acceptance of the final terms. The damaging outcome of the case, as well as its twists and turns along the way, indicate that South Africa’s two post-Apartheid priorities — the rights of its people and the rule of law — cannot be reconciled just yet.

To read the press release from the Centre for Applied Legal Studies:

CALS Press Release on Judgment

To read the entire judgment:

Constitutional Court Judgment

Further reading:

Timeline of Events

The last failed attempt to repeal the ban occurred in the early 1990s, when the Centers for Disease Control recommended that “only active tuberculosis remain on the list of excludable conditions,” according to a chronology of the ban on AIDS.org. During the comment period following the CDC proposal in the Federal Register, 35,000 postcards and letters were received by right-wing religious leaders, and the Republican Study Committee generated a letter opposing the recommendation that was signed by 67 members in the House of Representatives.

In 2003, the tide started to change. Former President George W. Bush authorized PEPFAR, the President’s Emergency Plan for AIDS Relief, which allocated $15 billion over five years to combat AIDS globally and made the US a world leader in the effort. The reauthorization of PEPFAR in 2008 included an important provision favorable to the repeal of the travel ban. The Senate and the House both voted in support of the repeal and gave clearance to Health and Human Services to omit HIV from the list of communicable diseases denied entry into the US. The US was on track to giving HIV-positive travelers and immigrants the rights they deserved.

President Obama announced his intention to repeal the ban on Friday, October 30, while signing the fourth reauthorization of the Ryan White CARE Act, which has funded HIV/AIDS treatment and prevention programs in the US since 1990. The new rule appeared in the Federal Register on November 2 and will now undergo a two-month commentary period before going into effect in early 2010. The Health and Human Services department confirmed this action in a press statement released Monday. The press statement concedes that “although the United States has been a leader worldwide when it comes to ending the stigma of HIV/AIDS, we’ve been one of only 12 countries who, by their policies, still enable the myth that HIV/AIDS is a threat.”

The Associated Press and NPR note that, among other consequences, the ban “has kept out thousands of students, tourists and refugees and has complicated the adoption of children with HIV.” The law has also prevented international conferences and meetings about HIV/AIDS from occurring in the United States, another obstruction in the global initiative to control the disease through collaboration, education, and stigma reduction.

As Joe Amon, director of the Health and Human Rights division at Human Rights Watch, states, “Lifting a policy that so clearly violates both human rights and public health needs is long past due. Countries around the world that still have bans should follow this example.”

For more information and responses:

A History of HIV/AIDS in the US

Immigration Equality FAQ

Washington Post Editorial from May 2008

UNAIDS Press Center

The Lancet

International Gay and Lesbian Human Rights Commission call for ban

Photo © 2008 Fred Abrahams/HRW

The recent humanitarian release of Libyan citizen Abdalbaset al-Megrahi from prison in Greenock, Scotland, because of his poor health, and his subsequent “hero’s welcome” in Libya is strikingly incongruous when compared with the tragic fate of Fathi al-Jahmi, a Libyan prisoner who also suffered from poor health, including coronary artery disease, congestive heart failure, hypertension, and diabetes.

Libyan authorities held Mr. al-Jahmi prisoner in Tripoli on two occasions for a total of six and a half years. His “crime”? The peaceful exercise of his fundamental rights of freedom of expression and association. He advocated for democratic reforms and free elections, as have many other Libyan citizens whose outspoken opinions have led to their imprisonment. Additionally, Mr. al-Jahmi had the audacity to directly criticize the Libyan government and its leader of 40 years, Colonel Mu’ammar al-Quaddafi.

Mr. al-Jahmi’s second arrest took place in March 2004. In February 2005, a medical doctor representing Physicians for Human Rights (PHR) visited him in a special detention facility and reported that he suffered from diabetes, hypertension, and heart disease. PHR “called for al-Jahmi’s unconditional release and access to medical care.”

However, following a secret trial in May 2006 that failed to meet fundamental fair-trial standards, the court ruled that Mr. al-Jahmi was mentally unfit to stand trial. Confinement in a psychiatric hospital, for an entire year, followed this ruling. He was denied both medical care and family visits. In mid-2007, after a diagnosis of congestive heart failure, the Libyan authorities granted Mr. al-Jahmi a transfer to Tripoli Medical Center and later claimed he was a free man.

PHR and Human Rights Watch representatives, including PHR advisor Dr. Scott Allen, visited Mr. al-Jahmi at the Tripoli Medical Center in mid-March 2008 — a repeat visit facilitated by the Quaddafi Foundation, which is headed by Col. Quaddafi’s son, Saif al-Islam. They found that Mr. al-Jahmi’s health had improved with better medical care and that he was not “mentally disturbed.” However, his health was still substantially worse than at the time of his arrest, and he remained very ill, so much so that the PHR doctor recommended immediate invasive testing and suggested possible angioplasty or bypass surgery. Because Mr. al-Jahmi did not trust the Libyan authorities, the PHR doctor said that it could prove necessary to perform such follow-up procedures abroad.

When the two rights organizations’ representatives asked Mr. al-Jahmi if he was free to leave the medical center, he said no. When they asked him if he wanted to go home, he said yes. They also reported that security officers controlled access to visitors and that neither Mr. al-Jahmi nor his family could “freely make decisions about his medical care, due to real or perceived pressure from the government.”

Mr. al-Jahmi’s family subsequently reported that he was denied regular nursing care and critical medical treatment. Guards flanked his door and confined him to his room, which they locked from the outside. During the family’s daily visits, limited to two hours, his wife and children brought him food and did what they could to make him comfortable. But they also watched his health steadily deteriorate, and by early 2009, they said he was no longer able to move, eat, or drink without assistance and could speak only with great difficulty. In early April 2009, Mr. al-Jahmi’s family requested his transfer to the intensive care unit, but this request was not granted until, on May 3, he lapsed into coma.

The International Human Rights Network of Academies and Scholarly Societies, of which I am executive director, and many other concerned groups, sent repeated and urgent appeals for Mr. al-Jahmi’s release on humanitarian grounds for health reasons to Col. Quaddafi and Libyan government authorities. We did not receive a single direct reply to our pleas. Only through an international organization, acting as an intermediary in a private process between our group of national academies and the Libyan government, did we learn that the Libyan authorities claimed, contrary to information we deemed reliable, that Mr. al-Jahmi was a free man, in the hospital of his own choice, and receiving appropriate medical treatment.

Subsequently, we learned from Mr. al-Jahmi’s brother that on May 5 of this year the apparently frantic Libyan authorities had Mr. al-Jahmi flown to the Arab Medical Center in Jordan, presumably to avoid the accusations and humiliation that would follow if they allowed him to die in a Libyan prison, as rights organizations and others had feared they would do. Mr. al-Jahmi was taken out of the country, still in a coma, and in the company of security guards who did not take along any of his essential medical records. Only his son was permitted to accompany him. Mr. al-Jahmi reportedly never regained consciousness. He was 68 years old and an internationally recognized democracy advocate and prisoner of conscience when he died on May 20, far away from his home and family, with Libyan security guards looking on.

The Libyan authorities callously denied Mr. al-Jahmi the medical treatment he required during much of his imprisonment and the last months of his life. Then, when clearly on his death bed, in an apparent attempt to avoid embarrassment, they took him away from his home and family to die in Jordan. Thus, it was a cruel and deeply offensive irony when, just four months later, another seriously ill internationally known Libyan prisoner was flown by Libyan authorities, in the company of Col. Quaddafi’s son, to a “hero’s welcome” in Tripoli. That man was Abdalbaset al-Megrahi, a convicted mass murderer, known to the world as the Lockerbie bomber.

The authorities in Edinburgh, Scotland, said they had released Mr. al-Megrahi because he was dying of prostate cancer and should be permitted to spend what time he had left at home, in the company of his family. Col. Quaddafi’s son reportedly said he was deeply grateful “to the Scottish government for taking this brave decision [Megrahi’s release] and for taking into account the special humanitarian circumstances.”

If the Libyan authorities had shown any semblance of courage or understanding or compassion toward Mr. al-Jahmi, their own citizen and a truly courageous and selfless human being, and had responded to the many repeated and urgent appeals from around the world for his humanitarian release, surely this brave and clearly innocent man would be alive today. Instead, the Lockerbie bomber is now at home among his family and friends, benefiting from the kind of medical care that could have saved Mr. al-Jahmi — a man who never got the hero’s welcome he so deserved.

This blog post was endorsed by the Executive Committee of the International Human Rights Network of Academies and Scholarly Societies.

A dramatic disconnect between principles and policies has hampered current US health care reform efforts. This became obvious when candidate Obama declared health care to be a right and then proceeded to treat it as a commodity when negotiating with insurance companies a requirement for individuals to buy a commercial health insurance product.

Similarly, early on in the debate the president championed the principle of universality by promising some form of health coverage – if not necessarily health care – for 46 million uninsured people, only to lower the policy goal to 30 million American citizens in his speech before Congress, excluding many immigrants and low-income people. Since then, further policy provisions that restrict access to health coverage for immigrants – documented and undocumented – and reduce affordability for lower-income people have appeared in the health care bill adopted by the Senate Finance Committee.

With people of color already up to three times more likely to be uninsured than white Americans and suffering from unequal health outcomes, it is no surprise that over the past few weeks a new coalition of groups representing people of color has launched an ad campaign for racial equality in health care reform. With this new advocacy push, prominent national organizations such as the NAACP and the National Council of La Raza (NCLR) are now framing their intervention in terms of people’s rights.

The coalition’s principles state that “health care is a basic human right, as essential as food and shelter,” thus echoing ongoing human right to health care campaigns by organizations such as Amnesty International USA and its coalition partners. A number of mainstream media outlets covered the launch of this new campaign – most notably Public Radio International and WNYC’s The Takeaway, which featured a thoughtful piece aimed at “exploring whether or not affordable health care can be considered a fundamental human right.” However, while the Takeaway reporters seemed prepared to answer in the affirmative, representatives from NAACP and NCLR remained oddly silent on this issue.

That’s because as soon as principles are placed into the realm of policy, they become subjected to pressures created by the dominant political consensus. Translated into policy, the new coalition’s main demands include a so-called public option, steps to eliminate racial disparities, and “complete access and coverage for all legal residents.” The imagery used in their TV ad – people of color denied boarding a bus – emphasizes that the current health care debate should be linked to past civil rights struggles, with a focus on desegregation and formal equality.

Aligning health reform with a civil rights perspective clearly sends a powerful message, but it does come with some definitive drawbacks. Civil rights, rooted in Amendment XIV of the Constitution, do not include non-naturalized immigrants – documented or undocumented. Therefore, while a policy push that narrows health care access to “legal” residents may not conflict with a civil rights approach, it does ignore the human rights principle of universality. Presumably, such a policy is pursued on a purely pragmatic basis, reflecting the dominant tone of the debate, according to which, as stated by a prominent mainstream migration policy organization, “most agree that unauthorized immigrants should not benefit from government spending.”

Yet even on pragmatic grounds, this position is flawed. Provisions put in place to exclude undocumented immigrants from government spending programs, such as citizenship documentation procedures in Medicaid, have been identified as significant barriers to access primarily for African Americans, not immigrants. Those harmful provisions may still find their way into other aspects of health care reform, as well. Whenever we pitch the rights of people of color against those of immigrants, we tend to end up with no rights for either group. No civil rights organization can afford to treat undocumented immigrants as illegitimate competitors for public monies or as potential carriers of disease. And no one can legitimately refer to health care as a human right without recognizing all human beings as rights-holders.

There is another reason why it can be problematic to foreground the language of civil rights, rather than human rights, in the health care struggle. Our basic economic and social rights, such as health care, are more explicitly addressed in the international human rights framework than in the US Constitution. In the past, civil rights have been largely interpreted as equal protection of the law – or formal equality – not as substantive rights in the economic sphere. They don’t lend themselves easily to setting standards that could give a specific meaning to such formal equality. If everyone received equally little – for example if no one got on the bus or, for that matter, if no one received health care – citizens could still be formally equal.

That’s why Martin Luther King, Jr., aimed to move from civil rights to human rights, from desegregation and formal equality to economic justice and equity. In his Poor People’s Campaign, Dr. King intended to tackle health care and similar fundamental human needs as economic human rights and to seek justice beyond judicial decisions. A richer vision of justice means that as human rights advocates we can go beyond demanding equal opportunities in relation to whatever reform measures emerge from DC and constructively advance a more substantive policy position. Such a position would link the goal of a universal, equitable health system to a collective, accountable public financing mechanism for health care that enables everyone in society to share costs and benefits.

None of this is meant to underestimate that a focus on health disparities in the tradition of civil rights wouldn’t be a huge achievement if adopted by policymakers in charge. The disgrace of persistent racial disparities is neglected in the current debate, so much so that a couple of prominent think tanks recently tried to direct attention to this outrage by sidestepping the moral perspective and putting a monetary value on people’s health. Both the Joint Center for Political and Economic Studies and the Urban Institute released reports on how much money could have been saved in direct medial expenditures by eliminating racial disparities in health care ($229.4 billion for the years 2003-2006 according to the Joint Center). Economic or fiscal arguments are assumed to resonate more in our market-centered debate than rights-based arguments. Fortunately, this pessimism is not shared by the NAACP, which in its 880 Campaign is explicitly mourning the needless deaths of 880,000 black people over a 10 year period, due to a higher mortality rate than white people.

In fact, numerous organizations and networks have pushed for the elimination of racial disparities in health for many years, with little media resonance. Some of them have made effective use of human rights in their efforts; for example, the National Health Equity Coalition emphasized in a letter to incoming president Obama that “in order to address racial and ethnic health disparities, it is important that the right to health is implemented so that available resources are utilized in a manner that supports achievement of the highest attainable standard of health for every individual.” And back in 2007 the US Human Rights Network organized a collective report submission to the UN Committee on the Elimination of Racial Discrimination, which included a chapter on racial disparities in health care. In response, the UN committee asked the US government to address health disparities, in particular by eliminating the obstacles that limit minorities’ access to adequate health care.

Amnesty International USA has given its own commitment to help eliminate health disparities through its human rights principles and petition for health care reform. These principles recognize that a health care system must be both universal and equitable – it must include everyone and eliminate disparities – in order to meet human rights standards. Neither universality nor equity can be compromised for more convenient policy positions. Our society must organize the collective public provision of equal high quality health care for everyone – people of color and all immigrants, poor people and people in rural and inner city locations, women and men. This entails, as recognized in the NAACP’s centennial anniversary statement that an organization like the NAACP should follow Dr. King and “shift its mission from achieving civil rights to attaining human rights for all.”

Dear Editors:

We read with interest the paper “Limitations on human rights in the context of drug-resistant tuberculosis: A reply to Boggio et al.” co-authored by Drs. Amon, Girard, and Keshavjee. While we welcome the effort to expand our framework[1] and we applaud the Authors for continuing the discussion on this extremely important topic, we believe that the paper by Amon and colleagues may be misleading to your Journal’s readership.

First, Amon and colleagues do not technically “reply” to our argument. They do not challenge any of our assumptions. To the contrary, they explicitly agree with all of them. In the abstract, they state “there is little international disagreement with [our] position.” A similar claim is made on page 2 (“Boggio et al., like others previously, argue that involuntary detention may legitimately be used in a limited number of cases. . . .  In theory, few would disagree”), page 6 (“Boggio et al. fairly describe the relationship of rights and health in theory”), and eventually offer conclusions that mirror precisely our own conclusions: “Only in exceptional cases, where patients resist treatment after all feasible programmatic solutions have been exhausted, should detention — with proper checks, balances, and safeguards — be considered” (p. 6, citations refer to the pdf version of the article). These considerations undermine the idea that Amon and colleagues’ paper is in reply to ours. If anything, it expands our arguments.

Second, Amon and colleagues criticize our paper as it is allegedly not “informed by practice” (p. 6). The claim is without merit, as our paper was intended to articulate the foundations of WHO’s recommendations for practice in the area of drug-resistant TB, drawing on the field experience of the co-authors and many others,[2] rather than providing a tool to be directly translated into practice. WHO’s involvement with control of drug-resistant TB is much broader than our paper, as Amon et al., know well; thus, characterizing it as not “informed by practice” does a disservice to the readership.

Third, Amon and colleagues claim that policies adopted by the South African government are in violations of international human rights law and that this may be caused by a “a narrow reading of [our] argument, coupled with [our] lack of explicit reference of what constitutes a ‘last resort’” (p. 6). After this statement, Amon and colleagues fail to provide any evidence — empirical or logical — of why our paper, if narrowly read, would be the cause of certain practices. We certainly did and do not endorse a lighthearted approach to coercive measures.

Finally, Amon and colleagues claim, in the abstract, that our paper raises a “false” dilemma. The authors’ explanation of why it is a false dilemma is that there is no need to breach individual rights for the sake of containing TB because, “given the early indications of success of Lesotho’s community-based treatment program, and the documented evidence of successful community-based models in other urban and rural settings, any assumption that isolation and other compulsory measures are necessary and effective for the treatment of drug-resistant TB must be reconsidered.” (p. 6). In other words, “early indications” suggest that there is not (nor will be) need for coercive measures. A few comments are needed on this characterization of our paper as presenting a “false” dilemma. First, without need to delve a complex philosophical debate on dilemmas,[3] it suffices to say that a dilemma is “true” if it can genuinely arise from practice (in our case, the tension between individual rights and public health considerations). A “true” dilemma can then be resolved and that does not turn it into a “false” dilemma: it simply becomes a “resolved” dilemma. Second, Amon and colleagues’ language itself suggests that evidence that coercive measures are never warranted is not robust enough. Therefore, they implicitly concede that the dilemma raised in our paper may in fact arise. As a matter of fact, sound and resourceful TB control programs sometimes deal with TB patients in which all measures have failed to promote adherence to treatment.[4] Furthermore, they also concede that it is unlikely to be resolved unless one resorts to coercive measures — once again under exceptional circumstances. Finally, Amon and colleagues advocate a course of action that is precisely what WHO has recommended for a long time: community-based measures and the DOTS strategy.

1. A. Boggio, M. Zignol, E. Jaramillo, et al. “Limitations on human rights: are they justifiable to reduce the burden of tuberculosis in the era of MDR- and XDR-TB?” Health and Human Rights: An International Journal 10/2 (2008), pp. 121-126. Available at http://www.hhrjournal.org/index.php/hhr/article/view/85/169 (html) and at http://www.hhrjournal.org/index.php/hhr/article/view/85/158 (pdf).

2. B. H. Lerner, “Catching Patients: Tuberculosis and Detention in 1990s,” Chest 1115/1 (1999), pp. 236-241; “How Israel Manages Noncompliant TB Patients” Biot Report #437 (July 05, 2007). Available at http://www.semp.us/publications/biot_printview.php?BiotID=437.

3. T. McConnell, “Moral Dilemmas,” The Stanford Encyclopedia of Philosophy (Winter 2003 Edition), E. N. Zalta (ed). Available at http://plato.stanford.edu/entries/moral-dilemmas/.

4. See note 2.

Although signing this convention is a positive step toward official recognition of universal human rights principles, the US still remains woefully behind other nations in becoming legally bound to enforcing these human rights. The US has a particularly abysmal rate of ratification of international human rights agreements – of the nine core international human rights treaties created by the UN, only three have been ratified. The only treaties ratified by the US since 1994 have been optional protocols prohibiting the use of children in armed conflict and the sale of children and child prostitution. These protocols are additions to the Convention on the Rights of the Child (CRC), which the US has not ratified. Somalia and the US are the only nations in the world that have not ratified the convention, which is the most widely and rapidly ratified human rights treaty in history. The US has also failed to ratify the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), along with only six other countries, including Iran, Somalia, and Sudan.

Even when the US does sign and ratify treaties, stipulations and alterations have been attached to each convention to impose restrictions on its viability. None of the significant human rights treaties ratified by the US have been accepted “under the guidelines by which it was adopted and enforced by the UN General Assembly.” For example, in the ratification of the International Covenant on Civil and Political Rights, the US maintained the right to impose capital punishment and to try juveniles as adults. Although many countries add stipulations clarifying the role of an international treaty in regard to the nation’s domestic laws, restrictions imposed by the US can make legally enforceable international treaties weak and ineffectual.

Reasons cited for the US’s refusal to ratify treaties generally concern the power of international law versus that of the US federal and state governments. Those opposed to US ratification of the CRC usually object to how international standards could undermine parent’s rights to raise their children. However, the CRC requires state parties to respect and take into account the “responsibilities, rights and duties of parents,” and ensures whenever possible that a child be cared for and not separated from his or her parents. The failure of the US to ratify this treaty is a source of international embarrassment, as it requires UN delegates from the US to vote against child protection treaties such as the prevention of violence against children, simply because the US is not a party to the CRC. The US are frequently the only UN member state to vote against such treaties.

Similarly, the US is the only industrialized nation that has not ratified CEDAW. Reservations to ratification generally focus on false beliefs that the treaty ensures all women the right to abortion. In fact, the convention does not mention the word “abortion” once, and the US State Department considers the treaty “abortion neutral.” Concerns about the power of international law in enforcing CEDAW are also cited as explanations for why it has not been ratified; however, accepting a convention does not automatically authorize any US laws not already in place.

The US has also failed to accept weapon bans such as the Mine Ban Treaty and the Convention on Cluster Munitions. Although the US government was involved in the creation of the treaty, it requested an exemption for mixed antitank and antipersonnel landmine systems. Other member states rejected the request, believing it would substantially weaken the treaty. Because of this, the US did not sign or ratify the treaty – in fact, the Bush administration stated during his presidency that they had no intention of ever signing it. The US has the largest known stockpile of cluster munitions, and is also a lead user and exporter of these weapons. In March of this year, President Obama signed a law banning the export of cluster bombs, moving the US closer to ratification of the international ban.

The State Department is currently reviewing the CRC and CEDAW, and Obama himself has pledged to try for ratification of several international treaties. If the US wishes to be taken seriously as an international human rights leader, its government must ratify human rights conventions. Only in doing so can the US join other states in their commitment to protecting vulnerable populations and promoting respect for human rights.

The UNHCR report Witchcraft allegations, refugee protection and human rights: a review of the evidence points out that witchcraft provides an answer to the question “why me?” when misfortune strikes. Unfortunately for many areas in Africa and elsewhere in the world, misfortune seems to be striking with vengeance. Particularly in countries where the people have been scarred by war, famine, economic collapse, death, and HIV infections, there are many “why me?” questions to be answered. As Father Horácio Caballero, director of a shelter that cares for children accused of witchery in Angola, says, “when AIDS begins to kill, someone in the family gets blamed for it.” Other children in Angola have been accused of transforming into animals and eating crops at night. Yet scientific analysis found that late rains had caused poor crop yield during that period.

Some common traits in children accused to have witchcraft are: stubbornness, learning disabilities, physical disabilities such as epilepsy, unruly behavior and not taking school seriously. Many of these traits deemed “witch-like” are usually considered normal adolescent behavior in the West. Children suffering from disease such as AIDS and malaria are also prime targets of witchcraft accusations.

While Father Caballero demonstrates the concern many clergy have to protect children from such accusations, not all religious and spiritual leaders share his understanding. Clergy play a large role in advising communities and families on which children are involved in sorcery. Children exhibiting traits as mentioned above are often brought to the local pastor or village healers for diagnosis. Arnold Mushiete, a social worker helping children accused of witchcraft in Kinshasa, Congo suggests that in a culture of death and broken family units, parents are very easy prey for greedy, ruthless clergy.

Religious and spiritual leaders may blame economic problems and health issues on the family’s weakest members. Sometimes clergy or healers are paid to perform exorcisms or “deliverance” ceremonies, thus increasing the incentive to “identify” witches in the family. Some pastors charge up to US$50 in Congo, which is an exorbitant fee considering the average annual salary is US$100. Save the Children’s The Invention of Child Witches in the Democratic of Congo report found that revitalized churches operate on a profit-making basis and will practice exorcism for financial gain.

Many children are often abandoned on the streets. Save the Children estimated that 70 percent of the 15,000 street children in Kinshasa have been accused of witchcraft.  Unfortunately, witchcraft has also been used as a pretext for abandoning unwanted children. Girls accused of witchcraft and abandoned face particularly horrific fates. Without protection, they are often raped and forced into prostitution.

Movements for banning the practice of condemning a child to witch craft are growing but still few. Akwa Ibom state in Nigeria has added a new clause to the Child Rights act, sentencing anyone found guilty of branding a child a witch to up to 12 years in prison. During his visit around Africa, the pope also spoke out against the practice of witchcraft and the use of Christ name to justify violence against children. Recently, videos documenting the plight of children accused of witchcraft have been released. To protect children from such severe human rights violations, more education of the population and government enforcement of child protection are needed.