Sara L.M. Davis
Do health aid donors transitioning out of middle-income countries have any obligations under human rights law?
In February, the Office of the High Commissioner for Human Rights (OHCHR) and UNAIDS held a consultation on human rights in the HIV response. I worked with the Free Space Process and PITCH (Partnership to Inspire, Transform and Connect the HIV Response), which together represent dozens of national and regional key populations networks and HIV NGOs, on a submission addressing just this point. Working with Russian lawyer Mikhail Golichenko, we argued that donors that transition abruptly may risk violating human rights standards—here’s why.
The right to health is spelled out in The International Covenant on Economic, Social and Cultural Rights (ICESCR) which upholds the right to the highest attainable standard of physical and mental health. The definitive interpretation of the right is in General Comment 14. The ICESCR, ratified by 169 countries, recognizes the right of all people to quality health facilities, treatments, and services. The law also recognizes that some states are wealthier than others, so states should progressively realize this right by planning and taking deliberate steps. States should not backslide, or engage in “retrogressive measures”. Wealthier states should help less wealthy states.
However, as global health aid has flatlined, donors have begun to press middle-income countries (MICs) to “transition” from aid, arguing that the money is needed in poorer countries and that MICs can afford to pay their own way. As funds are limited, the argument continues, priority goes to those most in need.
The only problem is this: nearly a billion people in poverty live in middle-income countries. A country may have high income on paper, but that income is not equally shared among its yacht clubs and shantytowns. By focusing on countries and not on the diversity of needs within them, development assistance is falling out of step with the “new geography of global poverty”: middle-income countries will soon contribute more to global poverty than low-income countries do.
For HIV, there’s another problem: targeted inequality caused by historically entrenched stigma and discrimination. While HIV has declined globally by 18%, in some regions dominated by MICs, like Eastern Europe and Central Asia or the Middle East and North Africa, incidence is on the rise among key populations: gay men and other men who have sex with men, people who inject drugs, sex workers, transgender people, and people in prisons and other closed settings. Together, these populations account for almost half of new HIV infections worldwide.
As the Global Commission on HIV and the Law has shown, criminalization of key populations is widespread. Criminalization is linked to police abuse, to extortion, and to high rates of violence against key populations. Many health sector employees also discriminate against key populations. As a result, fear of being ‘outed’ is a formidable barrier to accessing HIV services. So even those few MICs with well-funded HIV clinics may fail to reach key populations; and most countries do not prioritize key populations.
Many programs to address HIV among key populations were launched solely with international funding; often, the only funding still comes from external aid. When donors abruptly divest, programs close, and sometimes outbreaks result. The FSP/PITCH submission argues that since retrogressive measures are a violation of the right to health, donors should not abruptly terminate support for health programs, if the closure of those programs could directly cause harm or death.
Obviously, both donor and recipient states have legal and ethical obligations. And more broadly, there’s a larger conversation to be had about why global health finance agencies are being forced to make the impossible Sophie’s choice between saving lives in one country over another.
The world has the money to save everyone’s lives; a reality thrown into sharp relief when Notre Dame tragically burned last week, and wealthy donors immediately stepped up to pledge nearly 1 billion euros. The global HIV, TB, and malaria response is at a precarious point. The Global Fund Advocates Network has called for $16.8 to $18 billion for the Global Fund’s sixth replenishment; the pledging conference will be on October 10 in Lyon, France. If this goal is met, it could be possible to save lives everywhere—regardless of national income classification.
Sara (Meg) L.M. Davis, PhD, is an anthropologist and writer. Visit her website.
 OHCHR. 2000. CESCR General Comment 14: The right to highest attainable standard of physical and mental health (art. 12). 22nd session of CESCR, 11 August. E/C.12/2000/4. para. 40.
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