AIDS Free Generation: Why Enhancing Rule of Law on the Country Level is a Meaningful Approach

“I am here to fight for a generation that is free of AIDS,” U.S. Secretary of State Hillary Clinton told thousands of participants at the International AIDS Conference on 23 July in Washington, D.C., reaffirming the U.S. commitment to combat AIDS. Although attendees welcomed her comments, calling it a “moral obligation” for the U.S. to continue supporting AIDS programs—Global Fund against AIDS, TB, and Malaria, PAPFAR—civil society leaders expressed concern over the devastating impact of cuts in funding, and lack of meaningful engagement with civil society on critical decisions.

All of this under the backdrop of the Global Financial Crisis, and the threat of relapse should European economic turmoil persist unchecked. 

Although no longer a death sentence with the availability of life-saving drugs and programs, as Secretary Clinton pointed out, women and other marginalized populations--IDU[1] , MSM [2], Sex Workers--are still the most vulnerable to the disease. The question remains, how to protect those already experiencing marginalization from further harm, and maintain human dignity, while operating under tough budget restraints? Especially in situations where funding for those communities is applied as a kind of welfare, and the incentives for certain countries and brokering agencies begin to vanish?

This last might constitute reasons why economists began to talk more about “cost efficiency,” and UNAIDS and WHO claimed that AIDS is already a form of long term “chronic disease.”

What we should emphasize is that the AIDS epidemic brought about one of the most severe human rights challenges to face society, changing innate behavior to a certain extent. The crisis forced humanity to reflect upon and understand life and death, sex and pleasure, majority and marginalization, legal enforcement and moral standards. From my perspective, meditation on these topics enriches the definition and content of human rights protection, and the rule of law.

Diverse traditional, political, and legal frameworks worldwide complicate the AIDS story, and even contribute to fueling the epidemic. In the U.S., HIV prevalence in the African American gay community could reach as high as 60%. Anti-gay legislation in some African countries aroused global human rights concerns, while compulsory detention treatment for IDUs in Central Asia and Russia Federation became one of the greatest barriers to AIDS prevention in the area. In Asia, poverty, social inequality, and development challenges, as well as a large influx of migrant workers—many of whom are youths—fuel the sex industry across the borders of Burma, China, Vietnam, Malaysia and Japan. In China, compensation for PLHIV in Hunan and neighbor provinces infected through blood donation and blood transfusion still has a long way to go due to political taboos. The absence of supportive social environments, and an on-going divide and conquer strategy toward civil society leaders and human rights lawyers by the conservative Propaganda Department and Central Political and Law Committeee weakens the effort to combat AIDS in China. Commitments from China's top leaders become empty talk.

Would an increase in funding mitigate these circumstances? A 2006 report by Transparency International points out that scaling up budgets without including anti-corruption mechanisms to ensure their proper use provides further opportunity for corruption. The recent scandals involving misuse of Global Fund money in some African countries proved that free money fuels corruption—some countries even reduced their national fund for AIDS accordingly after receiving funding—where institutional capacity is weak. As economist Dambisa Moyo pointed out in her article, at least $1 trillion of development-related aid has been transferred from rich countries to Africa in the past 60 years. Yet real per-capita income today is lower than it was in the 1970s, and more than 350 million people live on less than a dollar a day, which is nearly doubled in two decades[3].

Arguments have also been made that the emerging countries—especially BRICS—should take on more responsibility in terms of fund raising. While I agree, more should be done to enhance institutional capacity and rule of law systems on the country level.  

Take China as an example. Guided by aging principles of “social stability,” conservatives hostile to civil society use tactics to counter and undermine its effectiveness, rather than build a supportive social and legal environment. Without these frameworks, it is difficult to institute transparency and accountability mechanisms to improve the governance of NGO/CBOs. Human rights violations among marginalized populations—IDUs, sex workers—cannot be efficiently mitigated without balancing the abuse of power by police, initiating reforms of the judicial system, and negotiating the totalitarian policies of the Central politics and Law Committee—the body in charge of public security (police) and the judiciary.

The reduction of funding in AIDS and health programs should not come at the cost of those already marginalized. Actively championing and promoting international principles and norms should not come to an end. This is a window of opportunity, for donors to review past strategies, and for countries to seek possibilities focusing on institutional capacity building, especially towards enhancing the rule of law system on the country level. Although much has been achieved through current AIDS/disease control from a public health standpoint, these programs face serious governance challenges and limitations.

The recommendation is one proposed by Jonathan Mann of the Harvard School of Public Health more than 20 years ago. Described as a “Governance Based Approach,” enhancing rule of law on the local/country level helps to build check and balance mechanisms, preventing abuses of power and creating space for more meaningful engagement with marginalized communities. Only then can people living with diseases, and those most at risk for infection, benefit from government policies in a more sustainable way, and the goal of an AIDS free generation be realized.