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HIV/AIDS - A Double Jeopardy: women, children and foreign nationals

Crossing the Boundaries: the place of human rights in contemporary scholarship
Afternoon panel session:

Chair: Professor Tony Barnett
Speakers:  
Mrs Nkolika Aniekwu Sexual violence and HIV/AIDS in Sub-Saharan Africa: an intimate link|
Dr Martha Chinouya Telling African children about HIV in the family: tensions about rights- Professionals do not understand our situation|
Mr Alwyn Jones and Ms Vanessa Bettinson Is inadequate medical care insufficient to resist removal? The return of foreign nationals with HIV/AIDS and Article 3 of the European Convention on Human Rights|

Mrs Nkolika Aniekwu
Sexual violence and HIV/AIDS in Sub-Saharan Africa: an intimate link

Sexual violence is an epidemic that often overlaps with the AIDS pandemic and is both a cause and consequence of the spread of HIV/AIDS amongst women and girls. Presently, half or more of the 40 million people infected with HIV in the world are women. Millions of those infected are aged 15-24 years and have suffered some form of intimate partner violence. This group accounts for half of all new infections. In sub-Saharan Africa, young women account for 75% of HIV infections and are approximately three times more likely to be infected than young men of the same age [1]. What makes women, especially girls and younger women so disproportionately vulnerable to HIV infection, and why have current AIDS control efforts largely failed to stem the epidemic in this gender?

This paper presents some evidence on how violence against women and girls in its different forms increase their risk of HIV infection and undermines AIDS control efforts. The author attempts to explore the links between intimate partner violence (IPV) and HIV/AIDS and the need to integrate programming for sexual violence with HIV prevention, AIDS treatment and care, reduction of women and girls' vulnerability to HIV and protection of their rights to be healthy and free from violence.

Dr Martha Chinouya
Telling African children about HIV in the family: tensions about rights- Professionals do not understand our situation

Africans feature in the UK prominently in heterosexually contracted HIV statistics. The heterosexual nature of the African epidemic in the UK puts a spotlight on children's right to information that they, the children are affected by HIV. HIV affects children as they could be orphaned, they may need alternative care arrangements if a parent is unwell and if infected may need support with their medication and coping with their condition.

This paper discusses the challenges faced by African parents in helping their children exercise their right to information that HIV affects them, either as children who are infected or whose parent[s] are living with the virus. The conceptualisation of children as social actors and autonomous beings calls for children to be heard and consulted on matters that affect their lives including the presence of life-threatening conditions such as HIV. Globally the rights of children have been codified in the United Nations Convention on the Rights of the Child which calls for children's rights to participation, protection and survival. Defining a child as person who is under the age of 18, the Office of the High Commissioner on Human Rights and the joint UN Program on HIV and AIDS have issued international guidelines that confer entitlement conferred by the Convention on the Rights of the Child. Within these guidelines children are accorded the same rights as adults that include non-discrimination, freedom of expression, liberty, education. Within the context of HIV:

The freedom to see, receive and impart information and ideas of all kinds and the right to education...provide children with the right to give and receive HIV related information, need to avoid infection and to cope with their own status if infected. The right to abolish traditional practices which are prejudicial to the health of the children...the right...to be actors in their development and to express an opinion and have them taken into account in making decisions about their lives.

This qualitative study with 60 HIV+ parents/guardians in London (n=30) and the Home Counties (n=30) explored how African parents make sense of children's rights and their experiences of telling children that HIV affects them. Key findings show that a significant proportion of HIV positive parents say they themselves have limited rights as migrants in England. They have limited rights to work and support their families. Within this diasporic context, poverty is a lived reality, that pushes the agenda of helping their children exercise their rights to information secondary to their everyday lives. Most parents say they are willing to disclose to their children but unable to do so. Disclosure is hindered by poverty, unresolved immigration concerns, family dispersal, fear of children being stigmatised and children being construed as unable to keep family secrets. There was a deep seated concern that disclosure would affect their children's 'childhood' in ways that parents were unsure of. Some parents raised questions about the capacity of health and social care workers to understand their situation.

Mr Alwyn Jones and Ms Vanessa Bettinson
Is inadequate medical care insufficient to resist removal? The return of foreign nationals with HIV/AIDS and Article 3 of the European Convention on Human Rights

In Uganda, the woman known by the UK courts as 'N' was held captive and ill-treated by an armed opposition group and then by the Ugandan security forces. She arrived in London in March 1998. The adjudicator held that she was not in danger of persecution since the crimes against her were "acts of rogue elements of the security forces". This meant that her claim for refugee status failed. N was diagnosed HIV positive after her arrival in the UK. She was unaware of her condition when she left her home country. Lord Nicholls identified the key question of whether removal would violate her rights under article 3 of the European Convention on Human Rights, given that she would face inadequate medical treatment if returned to Uganda.

The adjudicator found that the case for protecting N under article 3 was "overwhelming". The Court of Appeal found that the case was insufficiently exceptional to engage article 3. The House of Lords reached the same destination as the Court of Appeal by a different route. They rejected the Court of Appeal's 'humanitarian' approach. For the House of Lords, the application of article 3 to removal cases was an extension of the Convention under exceptional circumstances. In the view of the House of Lords, to apply such an obligation in any but the most exceptional circumstances would be to impose unwarranted positive obligations on the UK.

Our paper analyses the reasoning behind the decision in N v SSHD. We aim to show that the reasoning relies partly on narrow reading of the relevant Strasbourg jurisprudence and partly on a fear of 'health tourism' which may be exaggerated. We also examine the prospects for resisting removal on the grounds of inadequate medical treatment for people with HIV/AIDS after N v SSHD.

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