Positive legal determinants

Definition

Pos­i­tive legal deter­mi­nants refers to the recog­ni­tion that laws and reg­u­la­tions can pos­i­tively affect health out­comes, includ­ing for peo­ple liv­ing with HIV sta­tus. This recog­ni­tion is sup­ported by an increas­ing body of evi­dence doc­u­ment­ing that pos­i­tive effects that law, reg­u­la­tions, and poli­cies can have on health out­comes includ­ing by facil­i­tat­ing access to health­care, empow­er­ing com­mu­nity response, and pro­tect­ing mar­gin­al­ized and vul­ner­a­ble groups. The term pos­i­tive legal deter­mi­nants is broad and includes laws, reg­u­la­tions, poli­cies, prac­tices, among other legal deter­mi­nants. These can be enacted by national gov­ern­ments, region­ally, or through sources of inter­na­tional law. Pos­i­tive legal deter­mi­nants include laws con­sist­ing of inclu­sive legal poli­cies and insti­tu­tional reforms which have the capa­bil­ity to ensure jus­tice along with equi­table health out­comes. Law and pol­icy can enable great strides in the fight against HIV/AIDS. When deci­sion-mak­ers rec­og­nize, sup­port, and decrim­i­nalise key pro­grams and pop­u­la­tions, they allow com­mu­nity-led and jus­tice-ori­ented responses to flour­ish.

Inclu­sive pol­icy stances ensure that there is less fear lead­ing to bet­ter test­ing rates and adher­ence to antivi­ral ther­apy and hence bet­ter health out­comes. Futher­more, these poli­cies ensure that the rights of the mar­gin­alised are not infringed and when they are there is greater space for redres­sal. Pos­i­tive legal deter­mi­nants like these can ben­e­fit entire juris­dic­tions by improv­ing access to health ser­vices, enforc­ing the human right to health, and build­ing com­mu­nity capac­ity.

Precedents

2022 Resolution on Violence Against Women Migrant Workers

• “Urges Gov­ern­ments to enhance bilat­eral, regional, inter­re­gional and inter­na­tional coop­er­a­tion to address vio­lence against women migrant work­ers, fully respect­ing inter­na­tional law, includ­ing inter­na­tional human rights law, as well as to strengthen efforts to reduce the vul­ner­a­bil­ity of women migrant work­ers by pro­mot­ing decent work, by, inter alia, adopt­ing min­i­mum wage poli­cies and employ­ment con­tracts in accor­dance with applic­a­ble laws and reg­u­la­tions, facil­i­tat­ing effec­tive access to jus­tice and effec­tive action in the areas of law enforce­ment, pros­e­cu­tion, pre­ven­tion, capac­ity-build­ing and vic­tim pro­tec­tion and sup­port, exchang­ing infor­ma­tion and good prac­tices in com­bat­ing vio­lence and dis­crim­i­na­tion against women migrant work­ers and fos­ter­ing sus­tain­able devel­op­ment alter­na­tives to migra­tion in coun­tries of ori­gin.” (para­graph 14)

• “Urges States that have not yet done so to adopt and imple­ment leg­is­la­tion and poli­cies that pro­tect all women migrant work­ers, includ­ing those in domes­tic work, to include therein, and improve where nec­es­sary, rel­e­vant mon­i­tor­ing and inspec­tion mea­sures, in line with applic­a­ble Inter­na­tional Labour Orga­ni­za­tion con­ven­tions and other instru­ments to ensure com­pli­ance with inter­na­tional oblig­a­tions and to grant women migrant work­ers in domes­tic ser­vice access to gen­der-sen­si­tive, trans­par­ent mech­a­nisms for bring­ing com­plaints against recruit­ment agen­cies and employ­ers, includ­ing ter­mi­nat­ing their con­tracts in the event of labour and eco­nomic exploita­tion, dis­crim­i­na­tion, sex­ual harass­ment, vio­lence and sex­ual abuse in the work­place, while stress­ing that such instru­ments should not pun­ish women migrant work­ers, and calls upon States to promptly inves­ti­gate and pun­ish all vio­la­tions of their rights.” (para­graph 28)

• “Encour­ages States to con­sider ensur­ing that all women migrant work­ers, regard­less of their migra­tion sta­tus, can exer­cise their human rights through safe access to basic ser­vices, notwith­stand­ing that nation­als and reg­u­lar migrants may be enti­tled to more com­pre­hen­sive ser­vice pro­vi­sion, while ensur­ing that any dif­fer­en­tial treat­ment must be based on law, be pro­por­tion­ate and pur­sue a legit­i­mate aim, in accor­dance with inter­na­tional human rights law.” (para­graph 29)

• “Calls upon Gov­ern­ments to ensure that leg­isla­tive pro­vi­sions and judi­cial processes are in place to pro­vide women migrant work­ers access to jus­tice, to enhance, develop or main­tain legal frame­works and spe­cific gen­der-respon­sive poli­cies to explic­itly meet their needs and rights and, where nec­es­sary, to take appro­pri­ate steps to reform exist­ing leg­is­la­tion and poli­cies to cap­ture their needs and pro­tect their rights.” (para­graph 35)

2021 Global AIDS Strategy 2021-2026

• “Less than 10% of coun­tries have puni­tive legal and pol­icy envi­ron­ments that deny or limit access to ser­vices:
  (i) Less than 10% of coun­tries crim­i­nal­ize sex work, pos­ses­sion of small amounts of drugs, same-sex sex­ual behav­iour, and HIV trans­mis­sion, expo­sure or nondis­clo­sure by 2025;
  (ii) Less than 10% of coun­tries lack mech­a­nisms for peo­ple liv­ing with HIV and key pop­u­la­tions to report abuse and dis­crim­i­na­tion and seek redress by 2025;
  (iii) Less than 10% of peo­ple liv­ing with HIV and key pop­u­la­tions lack access to legal ser­vices by 2025;
  (iv) More than 90% of peo­ple liv­ing with HIV who expe­ri­enced rights abuses have sought redress by 2025.” (annex 1, 2025 tar­gets)

• “80% ser­vices for women, includ­ing pre­ven­tion ser­vices for women at increased risk to acquire HIV, as well as pro­grammes and ser­vices for access to HIV test­ing, link­age to treat­ment (ART), adher­ence and reten­tion sup­port, reduc­tion/elim­i­na­tion of vio­lence against women, reduc­tion/elim­i­na­tion of HIV related stigma and dis­crim­i­na­tion among women, legal lit­er­acy and legal ser­vices spe­cific for women- related issues, to be deliv­ered by com­mu­nity-led orga­ni­za­tions that are women-led” (annex 2, 2025 tar­gets)

• “ 60% of the pro­grammes sup­port­ing the achieve­ment of soci­etal enablers, includ­ing pro­grammes to reduce/elim­i­nate HIV-related stigma and dis­crim­i­na­tion, advo­cacy to pro­mote enabling legal envi­ron­ments, pro­grammes for legal lit­er­acy and link­ages to legal sup­port, and reduc­tion/elim­i­na­tion of gen­der-based vio­lence, to be deliv­ered by com­mu­nity-led orga­ni­za­tions.” (annex 2, 2025 tar­gets)

• “Efforts to anchor HIV responses in human rights prin­ci­ples and approaches, includ­ing the pri­or­ity actions out­lined below, can only be achieved through strong polit­i­cal lead­er­ship and the active engage­ment and lead­er­ship of com­mu­nity-led responses that are ade­quately resourced to advo­cate for, mon­i­tor and imple­ment rights-based responses.” (para­graph 141)

• “Ensure account­abil­ity for HIV-related human rights vio­la­tions by increas­ing mean­ing­ful access to jus­tice and account­abil­ity for peo­ple liv­ing with or affected by HIV and key pop­u­la­tions. This includes increas­ing col­lab­o­ra­tion among key stake­hold­ers, sup­port­ing legal lit­er­acy pro­grammes, increas­ing access to legal sup­port and rep­re­sen­ta­tion and sup­port­ing com­mu­nity mon­i­tor­ing for peo­ple liv­ing with or affected by HIV.” (para­graph 144(e))

2021 Political declaration on HIV and AIDS

• “

  Com­mit to the Greater Involve­ment of Peo­ple Liv­ing with HIV/AIDS prin­ci­ple and to empower com­mu­ni­ties of peo­ple liv­ing with, at risk of and affected by HIV, includ­ing women, ado­les­cents and young peo­ple, to play their crit­i­cal lead­er­ship roles in the HIV response by:

  (a) Ensur­ing that rel­e­vant global, regional, national and sub­na­tional net­works and other affected com­mu­ni­ties are included in HIV response deci­sion -mak­ing, plan­ning, imple­ment­ing and mon­i­tor­ing and are pro­vided with suf­fi­cient tech­ni­cal and finan­cial sup­port;
  (b) Cre­at­ing and main­tain­ing a safe, open and enabling envi­ron­ment in which civil soci­ety can fully con­trib­ute to the imple­men­ta­tion of the present dec­la­ra­tion and the fight against HIV/AIDS;
  (c) Adopt­ing and imple­ment­ing laws and poli­cies that enable the sus­tain­able financ­ing of peo­ple-cen­tred, inte­grated, com­mu­nity responses, includ­ing peer-led HIV ser­vice deliv­ery, includ­ing through social con­tract­ing and other pub­lic fund­ing mech­a­nisms;
  (d) Sup­port­ing mon­i­tor­ing and research by com­mu­ni­ties, includ­ing the sci­en­tific com­mu­nity, and ensur­ing that com­mu­nity-gen­er­ated data are used to tai­lor HIV responses to pro­tect the rights and meet the needs of peo­ple liv­ing with, at risk of and affected by HIV.

  ” (para­graph 64)

2021 HRC resolution on human rights in the context of HIV and AIDS

• “Calls upon States to end impunity for human rights vio­la­tions and abuses against per­sons liv­ing with, at risk of or affected by HIV by mean­ing­fully engag­ing and ensur­ing access to jus­tice for them, pro­vid­ing legal lit­er­acy pro­grammes, increas­ing their access to legal sup­port and rep­re­sen­ta­tion, and expand­ing sen­si­ti­za­tion train­ing for judges, law enforce­ment offi­cers, health-care work­ers, social work­ers and other duty bear­ers.” (para­graph 9)

2020 Resolution on violence against women migrant workers

• “Urges States that have not yet done so to adopt and imple­ment leg­is­la­tion and poli­cies that pro­tect all women migrant work­ers, includ­ing those in domes­tic work, to include therein, and improve where nec­es­sary, rel­e­vant mon­i­tor­ing and inspec­tion mea­sures, in line with applic­a­ble Inter­na­tional Labour Orga­ni­za­tion con­ven­tions and other instru­ments to ensure com­pli­ance with inter­na­tional oblig­a­tions and to grant women migrant work­ers in domes­tic ser­vice access to gen­der-sen­si­tive, trans­par­ent mech­a­nisms for bring­ing com­plaints against recruit­ment agen­cies and employ­ers, includ­ing ter­mi­nat­ing their con­tracts in the event of labour and eco­nomic exploita­tion, dis­crim­i­na­tion, sex­ual harass­ment, vio­lence and sex­ual abuse in the work­place, while stress­ing that such instru­ments should not pun­ish women migrant work­ers, and calls upon States to promptly inves­ti­gate and pun­ish all vio­la­tions of their rights.” (para­graph 26)

• “Calls upon Gov­ern­ments to ensure that leg­isla­tive pro­vi­sions and judi­cial processes are in place to pro­vide women migrant work­ers access to jus­tice, to enhance, develop or main­tain legal frame­works and spe­cific gen­der-respon­sive poli­cies to explic­itly meet their needs and rights and, where nec­es­sary, to take appro­pri­ate steps to reform exist­ing leg­is­la­tion and poli­cies to cap­ture their needs and pro­tect their rights.” (para­graph 33)

• “Also calls upon Gov­ern­ments, in par­tic­u­lar those of the coun­tries of ori­gin and des­ti­na­tion, to put in place penal and crim­i­nal sanc­tions, in order to pun­ish per­pe­tra­tors of vio­lence against women migrant work­ers and inter­me­di­aries, and gen­der-sen­si­tive redress and jus­tice mech­a­nisms that vic­tims can access effec­tively and that allow their views and con­cerns to be pre­sented and con­sid­ered at appro­pri­ate stages of pro­ceed­ings, includ­ing other mea­sures that will allow vic­tims to be present dur­ing the judi­cial process, when pos­si­ble, and to pro­tect women migrant work­ers who are vic­tims of vio­lence from revic­tim­iza­tion, includ­ing by author­i­ties.” (para­graph 34)

• “Urges all States to adopt and imple­ment effec­tive mea­sures to put an end to the arbi­trary arrest and deten­tion of women migrant work­ers and to take action to pre­vent and pun­ish any form of ille­gal depri­va­tion of the lib­erty of women migrant work­ers by indi­vid­u­als or groups.” (para­graph 35)

• “Encour­ages Gov­ern­ments, in accor­dance with their applic­a­ble legal oblig­a­tions, to for­mu­late national poli­cies con­cern­ing women migrant work­ers that are based on up-to-date, rel­e­vant sex-dis­ag­gre­gated data and analy­sis, in close con­sul­ta­tion with women migrant work­ers and rel­e­vant stake­hold­ers through­out the pol­icy process, and also encour­ages Gov­ern­ments to ensure that this process is ade­quately resourced and that the result­ing poli­cies have mea­sur­able tar­gets and indi­ca­tors, timeta­bles and mon­i­tor­ing and account­abil­ity mea­sures, in par­tic­u­lar for employ­ment agen­cies, employ­ers and pub­lic offi­cials, and pro­vide for impact assess­ments and ensure multi-sec­tor coor­di­na­tion within and between coun­tries of ori­gin, tran­sit and des­ti­na­tion through appro­pri­ate mech­a­nisms.” (para­graph 40)

2019 UNESC Resolution on UNAIDS

• “Rec­og­nizes that the Sus­tain­able Devel­op­ment Goals pro­vide for the elim­i­na­tion of dis­crim­i­na­tory laws, poli­cies and prac­tices, which will be impor­tant to reduce bar­ri­ers to an effec­tive HIV response, includ­ing for vul­ner­a­ble and key pop­u­la­tions that epi­demi­o­log­i­cal evi­dence shows to be glob­ally at higher risk of HIV infec­tion.” (para­graph 9)

2017 Resolution on international cooperation to address and counter the world drug problem

• “Encour­ages the pro­mo­tion, where appro­pri­ate, in the frame­work of inter­na­tional coop­er­a­tion, of the use of law enforce­ment tech­niques, con­sis­tent with national leg­is­la­tion and inter­na­tional law, includ­ing applic­a­ble human rights oblig­a­tions, in order to ensure that drug traf­fick­ers are brought to jus­tice and that major crim­i­nal orga­ni­za­tions are dis­rupted and dis­man­tled.” (para­graph 38)

2016 Outcome Document of the Session on the World Drug Problem

• “Con­sider enhanc­ing coop­er­a­tion between pub­lic health, edu­ca­tion and law enforce­ment author­i­ties when devel­op­ing pre­ven­tion ini­tia­tives.” (para­graph 1(e))

• “Develop and strengthen, as appro­pri­ate, the capac­ity of health, social and law enforce­ment and other crim­i­nal jus­tice author­i­ties to coop­er­ate, within their man­dates, in the imple­men­ta­tion of com­pre­hen­sive, inte­grated and bal­anced responses to drug abuse and drug use dis­or­ders, at all lev­els of gov­ern­ment.” (para­graph 1(l))

• “Pro­mote and imple­ment the stan­dards on the treat­ment of drug use dis­or­ders devel­oped by the United Nations Office on Drugs and Crime and the World Health Orga­ni­za­tion and other rel­e­vant inter­na­tional stan­dards, as appro­pri­ate and in accor­dance with national leg­is­la­tion and the inter­na­tional drug con­trol con­ven­tions, and pro­vide guid­ance, assis­tance and train­ing to health pro­fes­sion­als on their appro­pri­ate use, and con­sider devel­op­ing stan­dards and accred­i­ta­tion for ser­vices at the domes­tic level to ensure qual­i­fied and sci­en­tific evi­dence based responses.” (para­graph 1(p))

• “Expe­dite, in accor­dance with national leg­is­la­tion, the process of issu­ing import and export autho­riza­tions for con­trolled sub­stances for med­ical and sci­en­tific pur­poses by using the above men­tioned guid­ance and the Inter­na­tional Import and Export Autho­riza­tion Sys­tem of the Inter­na­tional Nar­cotics Con­trol Board.” (para­graph 2(c))

• “Strengthen mul­ti­dis­ci­pli­nary mea­sures at the inter­na­tional, regional, national, and local and com­mu­nity lev­els to pre­vent drug-related crime, vio­lence, vic­tim­iza­tion and cor­rup­tion and fos­ter social devel­op­ment and inclu­sive­ness, inte­grate such mea­sures into over­all law enforce­ment efforts and com­pre­hen­sive poli­cies and pro­grammes, and pro­mote a cul­ture of law­ful­ness.” (para­graph 3(a))

2016 HRC Resolution on civil society space

• “Empha­sizes the essen­tial role of civil soci­ety in sub­re­gional, regional and inter­na­tional orga­ni­za­tions, includ­ing in sup­port of the orga­ni­za­tions’ work, and in shar­ing expe­ri­ence and exper­tise through effec­tive par­tic­i­pa­tion in meet­ings in accor­dance with rel­e­vant rules and modal­i­ties, and in this regard reaf­firms the right of every­one, indi­vid­u­ally and in asso­ci­a­tion with oth­ers, to unhin­dered access to and com­mu­ni­ca­tion with sub­re­gional, regional and inter­na­tional bod­ies, and their rep­re­sen­ta­tives and mech­a­nisms.” (para­graph 10)

• “Also urges States to cre­ate and main­tain, in law and in prac­tice, a safe and enabling envi­ron­ment for civil soci­ety, and in this regard encour­ages States to use good prac­tices such as, inter alia, those com­piled in the report of the High Com­mis­sioner on prac­ti­cal rec­om­men­da­tions for the cre­ation and main­te­nance of a safe and enabling envi­ron­ment for civil soci­ety, based on good prac­tices and lessons learned by, inter alia:
  (a) Tak­ing steps to ensure a sup­port­ive legal frame­work and access to jus­tice, includ­ing by acknowl­edg­ing pub­licly the impor­tant and legit­i­mate role of civil soci­ety in the pro­mo­tion of human rights, democ­racy and the rule of law, includ­ing through pub­lic state­ments and pub­lic infor­ma­tion cam­paigns, and bet­ter address­ing busi­ness-related human rights abuses through the effec­tive imple­men­ta­tion of the Guid­ing Prin­ci­ples on Busi­ness and Human Rights;
  (b) Con­tribut­ing to a pub­lic and polit­i­cal envi­ron­ment con­ducive to civil soci­ety work, includ­ing by strength­en­ing the rule of law, the admin­is­tra­tion of jus­tice, social and eco­nomic devel­op­ment, access to infor­ma­tion, the pro­mo­tion of the rights to free­dom of opin­ion and expres­sion online and offline, and of peace­ful assem­bly and asso­ci­a­tion, and by par­tic­i­pat­ing in pub­lic affairs and pro­mot­ing the real and effec­tive par­tic­i­pa­tion of the peo­ple in deci­sion-mak­ing processes, and tak­ing steps to ensure that all domes­tic legal pro­vi­sions with an impact on civil soci­ety actors, includ­ing counter-ter­ror­ism mea­sures, com­ply with rel­e­vant inter­na­tional human rights oblig­a­tions and com­mit­ments, includ­ing the Dec­la­ra­tion on the Right and Respon­si­bil­ity of Indi­vid­u­als, Groups and Organs of Soci­ety to Pro­mote and Pro­tect Uni­ver­sally Rec­og­nized Human Rights and Fun­da­men­tal Free­doms, main­tain­ing acces­si­ble domes­tic pro­ce­dures for the estab­lish­ment or reg­is­tra­tion of orga­ni­za­tions and asso­ci­a­tions, and access to national, regional and inter­na­tional human rights mech­a­nisms;
  (c) Pro­vid­ing for access to infor­ma­tion, includ­ing by adopt­ing clear laws and poli­cies pro­vid­ing for effec­tive dis­clo­sure of infor­ma­tion held by pub­lic author­i­ties and a gen­eral right to request and receive infor­ma­tion sub­ject to clearly and strictly defined excep­tions in accor­dance with inter­na­tional human rights law;
  (d) Pro­vid­ing for the par­tic­i­pa­tion of civil soci­ety actors, includ­ing by enabling them to par­tic­i­pate in pub­lic debate on deci­sions that would con­trib­ute to the pro­mo­tion and pro­tec­tion of human rights and the rule of law and on any other rel­e­vant deci­sions, and to pro­vide input on the poten­tial impli­ca­tions of leg­is­la­tion when it is being devel­oped, debated, imple­mented or reviewed, and explor­ing new forms of par­tic­i­pa­tion and oppor­tu­ni­ties brought about by infor­ma­tion and com­mu­ni­ca­tions tech­nol­ogy and social media;
  (e) Pro­vid­ing for a long-term sup­port­ive envi­ron­ment for civil soci­ety, includ­ing through edu­ca­tion that is aimed at strength­en­ing respect for human rights and fun­da­men­tal free­doms.” (para­graph 3)

2016 CND Gender Perspective in Drug-related Policies and Programmes

• “Invites Mem­ber States, through col­lab­o­ra­tion among health and social ser­vices and law enforce­ment and jus­tice author­i­ties, to take into account the spe­cific needs and cir­cum­stances of women, includ­ing by tak­ing mea­sures to pro­vide safe envi­ron­ments for women, and to use a wide range of alter­na­tive mea­sures to con­vic­tion or pun­ish­ment for appro­pri­ate drug-related offences of a minor nature, in accor­dance with national leg­is­la­tion, in order to improve pub­lic health and safety for indi­vid­u­als, fam­i­lies and soci­eties.” (para­graph 7)

2016 Resolution on the girl child

• “Urges all States to enact and enforce leg­is­la­tion to pro­tect girls from all forms of vio­lence, dis­crim­i­na­tion, exploita­tion and harm­ful prac­tices in all set­tings, includ­ing female infan­ti­cide and pre­na­tal sex selec­tion, female gen­i­tal muti­la­tion, rape, domes­tic vio­lence, incest, sex­ual abuse, sex­ual exploita­tion, child pros­ti­tu­tion and child pornog­ra­phy, traf­fick­ing and forced migra­tion, forced labour and child, early and forced mar­riage, and to develop age-appro­pri­ate, safe, con­fi­den­tial and dis­abil­ity-acces­si­ble pro­grammes and med­ical, social and psy­cho­log­i­cal sup­port ser­vices to assist girls who are sub­jected to vio­lence and dis­crim­i­na­tion.” (para­graph 20)

• “Calls upon Mem­ber States to devise, enforce and strengthen effec­tive child- and youth-sen­si­tive mea­sures to com­bat, elim­i­nate and pros­e­cute all forms of traf­fick­ing in women and girls, includ­ing for sex­ual and eco­nomic exploita­tion, as part of a com­pre­hen­sive anti-traf­fick­ing strat­egy within wider efforts to elim­i­nate all forms of vio­lence against women and girls, includ­ing by tak­ing effec­tive mea­sures against the crim­i­nal­iza­tion of girls who are vic­tims of exploita­tion and ensur­ing that girls who have been exploited receive access to the nec­es­sary psy­choso­cial sup­port, and in this regard urges Mem­ber States, the United Nations and other inter­na­tional, regional and sub­re­gional orga­ni­za­tions, as well as civil soci­ety, in clud­ing non-gov­ern­men­tal orga­ni­za­tions, the pri­vate sec­tor and the media, to fully and effec­tively imple­ment the rel­e­vant pro­vi­sions of the United Nations Global Plan of Action to Com­bat Traf­fick­ing in Per­sons and the activ­i­ties out­lined therein, with full respect for the Pro­to­col to Pre­vent, Sup­press and Pun­ish Traf­fick­ing in Per­sons, Espe­cially Women and Chil­dren, sup­ple­ment­ing the United Nations Con­ven­tion against Transna­tional Orga­nized Crime.” (para­graph 27)

2012 Resolution on women in development

• “Encour­ages Mem­ber States to adopt and imple­ment leg­is­la­tion and poli­cies designed to pro­mote the rec­on­cil­i­a­tion of work and fam­ily respon­si­bil­i­ties, includ­ing through increased flex­i­bil­ity in work­ing arrange­ments, such as part-time work, and the facil­i­ta­tion of breast­feed­ing for work­ing moth­ers, to pro­vide care facil­i­ties for chil­dren and other depen­dants, and to ensure that both women and men have access to mater­nity or pater­nity, parental and other forms of leave and are not dis­crim­i­nated against when avail­ing them­selves of such ben­e­fits.” (para­graph 15)

• “Encour­ages Mem­ber States to adopt and/or review and to fully imple­ment gen­der-sen­si­tive leg­is­la­tion and poli­cies that reduce, through specif­i­cally tar­geted mea­sures, hor­i­zon­tal and ver­ti­cal occu­pa­tional seg­re­ga­tion and gen­der-based wage gaps.” (para­graph 20)

2011 Political Declaration on HIV and AIDS

• “Com­mit to pro­mot­ing laws and poli­cies that ensure the full real­iza­tion of all human rights and fun­da­men­tal free­doms for young peo­ple, par­tic­u­larly those liv­ing with HIV and those at higher risk of HIV infec­tion, so as to elim­i­nate the stigma and dis­crim­i­na­tion they face.” (para­graph 83)

2011 Resolution on trafficking in women and girls

• “Urges Gov­ern­ments to develop edu­ca­tional and train­ing pro­grammes and poli­cies and to con­sider, as appro­pri­ate, enact­ing leg­is­la­tion aimed at pre­vent­ing sex tourism and traf­fick­ing, giv­ing spe­cial empha­sis to the pro­tec­tion of young women and chil­dren.” (para­graph 14)

• “Calls upon all Gov­ern­ments to crim­i­nal­ize all forms of traf­fick­ing in per­sons, rec­og­niz­ing its increas­ing occur­rence for pur­poses of sex­ual exploita­tion, com­mer­cial sex­ual exploita­tion and abuse, sex tourism and forced labour, and to bring to jus­tice and pun­ish the offend­ers and inter­me­di­aries involved, includ­ing pub­lic offi­cials involved with traf­fick­ing in per­sons, whether local or for­eign, through the com­pe­tent national author­i­ties, either in the coun­try of ori­gin of the offender or in the coun­try in which the abuse occurs, in accor­dance with due process of law, as well as to penal­ize per­sons in author­ity found guilty of sex­u­ally assault­ing vic­tims of traf­fick­ing in their cus­tody.” (para­graph 16)

• “Calls upon all con­cerned Gov­ern­ments to allo­cate resources, as appro­pri­ate, to pro­vide access to appro­pri­ate pro­grammes for the phys­i­cal, psy­cho­log­i­cal and social recov­ery of vic­tims of traf­fick­ing, includ­ing through job train­ing, legal assis­tance in a lan­guage that they can under­stand and health care, includ­ing for HIV/AIDS, and by tak­ing mea­sures to coop­er­ate with inter­gov­ern­men­tal and non-gov­ern­men­tal orga­ni­za­tions to pro­vide for the social, med­ical and psy­cho­log­i­cal care of the vic­tims.” (para­graph 20)

• “Also calls upon Gov­ern­ments to take appro­pri­ate mea­sures to address the fac­tors that increase vul­ner­a­bil­ity to being traf­ficked, includ­ing poverty and gen­der inequal­ity, as well as other fac­tors that encour­age the par­tic­u­lar prob­lem of traf­fick­ing in women and girls for pros­ti­tu­tion and other forms of com­mer­cial­ized sex, forced mar­riage, forced labour and organ removal, in order to pre­vent and elim­i­nate such traf­fick­ing, includ­ing by strength­en­ing exist­ing leg­is­la­tion with a view to pro­vid­ing bet­ter pro­tec­tion of the rights of women and girls and to pun­ish­ing per­pe­tra­tors, includ­ing pub­lic offi­cials engag­ing in or facil­i­tat­ing human traf­fick­ing, through, as appro­pri­ate, crim­i­nal and/or civil mea­sures.” (para­graph 8))

2010 HRC On the rights of the child: the fight against sexual violence

• “Urges all States to take effec­tive and appro­pri­ate leg­isla­tive and other mea­sures or to strengthen, where they exist, leg­is­la­tion and pol­icy estab­lished to pro­hibit, crim­i­nal­ize and elim­i­nate all forms of sex­ual vio­lence and sex­ual abuse against chil­dren in all set­tings.” (para­graph 2(a))

• “Calls upon all States to pre­vent, crim­i­nal­ize, pun­ish and erad­i­cate the prac­tices of the sale of chil­dren, child slav­ery, com­mer­cial sex­ual exploita­tion of chil­dren, child pros­ti­tu­tion and child pornog­ra­phy, includ­ing the use of the Inter­net and new tech­nolo­gies for those prac­tices, and to take effec­tive mea­sures, as appro­pri­ate, against the crim­i­nal­iza­tion of chil­dren who are vic­tims of exploita­tion.” (para­graph 5)

2009 ECOSOC Resolution on UNAIDS

• “Rec­og­nizes the need for the Joint Pro­gramme to sig­nif­i­cantly expand and strengthen its work with national Gov­ern­ments and to work with all groups of civil soci­ety to address the gap in access to ser­vices for inject­ing drug users in all set­tings, includ­ing pris­ons, to develop com­pre­hen­sive mod­els of appro­pri­ate ser­vice deliv­ery for inject­ing drug users, to tackle the issues of stigma­ti­za­tion and dis­crim­i­na­tion, and to sup­port increased capac­ity and resources for the pro­vi­sion of a com­pre­hen­sive pack­age of ser­vices for inject­ing drug users, includ­ing harm reduc­tion pro­grammes in rela­tion to HIV, as elab­o­rated in the WHO, UNODC, UNAIDS Tech­ni­cal Guide for Coun­tries to Set Tar­gets for Uni­ver­sal Access to HIV Pre­ven­tion, Treat­ment and Care for Inject­ing Drug Users, in accor­dance with rel­e­vant national cir­cum­stances.” (para­graph 19)

2007 WHA Resolution on progress in the rational use of medicines

• “Urges mem­ber states to enact new, or enforce exist­ing, leg­is­la­tion to ban inac­cu­rate, mis­lead­ing or uneth­i­cal pro­mo­tion of med­i­cines, to mon­i­tor pro­mo­tion of med­i­cines, and to develop and imple­ment pro­grammes that will pro­vide inde­pen­dent, non­pro­mo­tional infor­ma­tion about med­i­cines.” (para­graph 1(5))

2006 Political Declaration on HIV/AIDS

• “Com­mit our­selves to over­com­ing legal, reg­u­la­tory or other bar­ri­ers that block access to effec­tive HIV pre­ven­tion, treat­ment, care and sup­port, med­i­cines, com­modi­ties and ser­vices.” (para­graph 24)

• “Pledge to pro­mote, at the inter­na­tional, regional, national and local lev­els, access to HIV/AIDS edu­ca­tion, infor­ma­tion, vol­un­tary coun­sell­ing and test­ing and related ser­vices, with full pro­tec­tion of con­fi­den­tial­ity and informed con­sent, and to pro­mote a social and legal envi­ron­ment that is sup­port­ive of and safe for vol­un­tary dis­clo­sure of HIV sta­tus.” (para­graph 25)

• “Com­mit our­selves to inten­si­fy­ing efforts to enact, strengthen or enforce, as appro­pri­ate, leg­is­la­tion, reg­u­la­tions and other mea­sures to elim­i­nate all forms of dis­crim­i­na­tion against and to ensure the full enjoy­ment of all human rights and fun­da­men­tal free­doms by peo­ple liv­ing with HIV and mem­bers of vul­ner­a­ble groups, in par­tic­u­lar to ensure their access to, inter alia, edu­ca­tion, inher­i­tance, employ­ment, health care, social and health ser­vices, pre­ven­tion, sup­port and treat­ment, infor­ma­tion and legal pro­tec­tion, while respect­ing their pri­vacy and con­fi­den­tial­ity; and devel­op­ing strate­gies to com­bat stigma and social exclu­sion con­nected with the epi­demic.” (para­graph 29)

• “Com­mit our­selves to inten­si­fy­ing efforts to enact, strengthen or enforce, as appro­pri­ate, leg­is­la­tion, reg­u­la­tions and other mea­sures to elim­i­nate all forms of dis­crim­i­na­tion against and to ensure the full enjoy­ment of all human rights and fun­da­men­tal free­doms by peo­ple liv­ing with HIV and mem­bers of vul­ner­a­ble groups, in par­tic­u­lar to ensure their access to, inter alia, edu­ca­tion, inher­i­tance, employ­ment, health care, social and health ser­vices, pre­ven­tion, sup­port and treat­ment, infor­ma­tion and legal pro­tec­tion, while respect­ing their pri­vacy and con­fi­den­tial­ity; and devel­op­ing strate­gies to com­bat stigma and social exclu­sion con­nected with the epi­demic.” (para­graph 31)

2005 Resolution on the World Summit outcome

• “Achiev­ing uni­ver­sal access to repro­duc­tive health by 2015, as set out at the Inter­na­tional Con­fer­ence on Pop­u­la­tion and Devel­op­ment, inte­grat­ing this goal in strate­gies to attain the inter­na­tion­ally agreed devel­op­ment goals, includ­ing those con­tained in the Mil­len­nium Dec­la­ra­tion, aimed at reduc­ing mater­nal mor­tal­ity, improv­ing mater­nal health, reduc­ing child mor­tal­ity, pro­mot­ing gen­der equal­ity, com­bat­ing HIV/AIDS and erad­i­cat­ing poverty.” (para­graph 57 (g))

2001 Declaration of Commitment on HIV/AIDS

• “By 2003, develop a national legal and pol­icy frame­work that pro­tects in the work­place the rights and dig­nity of per­sons liv­ing with and affected by HIV/AIDS and those at the great­est risk of HIV/AIDS, in con­sul­ta­tion with rep­re­sen­ta­tives of employ­ers and work­ers, tak­ing account of estab­lished inter­na­tional guide­lines on HIV/AIDS in the work­place.” (para­graph 69)

2000 WHA on HIV/AIDS: confronting the epidemic

• “Urges Mem­ber States to estab­lish pro­grammes to com­bat poverty with the sup­port of donors, imple­ment them in a rig­or­ous and trans­par­ent man­ner, and advo­cate: can­cel­la­tion of debt in order to free resources for, inter alia, HIV/AIDS pre­ven­tion and care, as pro­posed by the G8 Sum­mit at Cologne, improve­ment of the liv­ing con­di­tions of pop­u­la­tions, reduc­tion of unem­ploy­ment, improve­ment of the stan­dard of pub­lic health.” (para­graph 1(2))

Expert precedents

2022 Report of the Special Rapporteur on the Right to Health

• “To achieve a com­pre­hen­sive health response to vio­lence, it is nec­es­sary to adopt an inclu­sive and non-binary approach to gen­der and gen­der-based vio­lence, and must ensure that all laws, poli­cies, pro­grammes and ser­vices address­ing gen­der-based vio­lence are inclu­sive of all per­sons, with or with­out dis­abil­i­ties, chil­dren and adults, and should include cis­gen­der, trans­gen­der, non-binary, queer and inter­sex peo­ple.” (para­graph 88)

2022 Report of the Independent Expert on SOGI: Law of Inclusion

• “Notably, the Con­sti­tu­tional Court of Colom­bia has estab­lished that gen­der iden­tity and sex­ual ori­en­ta­tion are aspects inher­ent in indi­vid­u­als which are part of their inner­most selves, but which should be able to be fully exter­nal­ized, and be rec­og­nized and respected.” (para­graph 65)

2019 OHCHR Annual report on human rights and HIV

• “States should review their laws in accor­dance with inter­na­tional human rights law. In order to improve the human rights aspect in the response to HIV, States and their par­lia­ments could col­lab­o­rate at the regional and sub­re­gional lev­els to develop human rights-based nor­ma­tive con­tent to inspire the domes­ti­ca­tion of laws at the national level. In order to reach Sus­tain­able Devel­op­ment Goal tar­get 3.3 and to leave no one behind, States should adopt leg­is­la­tion, poli­cies and prac­tices that decrim­i­nal­ize sex work, drug use, same-sex rela­tions, and gen­der iden­tity and expres­sion, and pro­vide access to gen­der recog­ni­tion.” (para­graph 47(b))

Evidence

2022 WHO Consolidated Guidelines on HIV, Viral Hepatitis and STI Prevention, Diagnosis, Treatment and Care for Key Populations

• “For trans and gen­der diverse peo­ple, the legal recog­ni­tion of pre­ferred gen­der and name may be impor­tant to reduce stigma, dis­crim­i­na­tion and igno­rance about gen­der vari­ance. Such recog­ni­tion by health ser­vices can sup­port bet­ter access, uptake and pro­vi­sion of HIV ser­vices. Addi­tion­ally, it is likely to improve trans and gen­der diverse peo­ple’s health and well­be­ing. How­ever, legal recog­ni­tion must be accom­pa­nied by train­ing, sen­si­ti­za­tion, edu­ca­tion and enforce­ment.” (p. 18)

2022 WHO Guidance on Differentiated and Simplified PrEP for HIV Prevention

• “To scale up peer-led mod­els, struc­tural and legal bar­ri­ers to access PrEP and other health ser­vices by key pop­u­la­tions must be addressed. Equally impor­tant is the endorse­ment of key pop­u­la­tion-led ser­vices in national guide­lines, estab­lish­ment of sys­tems to accredit the ser­vices, fund­ing and inte­gra­tion into national health sys­tems.” (p. 23)