Hilary Homans

Citizenship, rights and duties:Communalism, collusion and coercion in HIV

testing29th June 2011

Overview

1. Limitation of classical liberal theory that accords priority to the individual as ultimate bearer of rights irrespective of their status in society

2. Social, economic and cultural rights of poor and marginalised are not universally respected

3. Relationship between rights and duties

Human rights based approach

• WHO and the United Nations Joint Programme on AIDS (UNAIDS) issued a statement in 2004 that HIV testing

“should always occur under conditions of informed consent, confidentiality and counselling.”

Individualism vs. communalism

• Individual as paramount and as the ultimate bearer of rights, regardless of their status in society, informed the early international approach to HIV testing

• Criticised within the literature of colonialism e.g.Ngugi wa Thiong’o and Rodney

• Importance of communalism in Sub Saharan Africa

Ubuntu• Humanness“Ubuntu speaks particularly about the fact that you

can't exist as a human being in isolation. It speaks about our interconnectedness. You can't be human all by yourself, and when you have this quality - Ubuntu - you are known for your generosity.

We think of ourselves far too frequently as just individuals, separated from one another, whereas you are connected and what you do affects the whole World. When you do well, it spreads out; it is for the whole of humanity.” (Desmond Tutu, 2008)

Individualism vs. communalism

• Gender consequences of individual approach to HIV testing

• Move from individual to couple HIV testing and counselling

Independent & indivisible• Universal Declaration of Human Rights– Born free and equal in dignity and rights– Entitlement to rights and freedoms...without

distinction

• Thomas Pogge “Human rights would be fully realised, if all human beings had secure access to the objects of these rights.”

Some individuals (and groups)

•more equal than others•better placed to exercise their

rights than others

Infringements of human rights

Occur based on: • behaviours that are deemed “undesirable”

(selling sex, have same sex relationships, injecting drugs)

• being in State “care” (e.g. in prisons, army or children’s homes)

• being under the age of majority• migration and displacement – individual may be inadequately protected through being

stateless, or not being a citizen of the country where they temporarily reside.

Rights vs. duties

• Duty bearer’s responsibility to protect others. • Under international human rights law, – States may impose restrictions on some

rights, in narrowly defined circumstances, if such restrictions are necessary to achieve overriding goals, such as public health, the rights of others, morality, public order, the general welfare in a democratic society and national security.

HIV testing – public health• Testing for HIV without informed consent is

unethical and violates human rights.• UNHCR, WHO and UNAIDS do not support

compulsory or mandatory HIV testing of individuals on public health grounds or for any other purpose.

• Exception: Mandatory testing of blood and blood products or organs for transplants is ethical and necessary.

Mandatory testing

• Premarital• Pregnancy (opt out)• Peacekeepers

http://www.unaids.org/en/media/unaids/contentassets/documents/document/2011/20110519_OnTheFrontLine.pdf

• Prisoners• Visitors/economic migrants• Refugees, displaced persons, asylum

seekers

Conclusion

Problem with citizenship as an inclusive entity:–different ways that the rights of

individuals are promoted or denied depending on their age, gender, civil status and where they happen to be, geographically and temporally.

Duties often take precedence over rights

State, church, health services, army, employers often assume role of protector often infringing human rights...and those who are displaced or “matter out of place” are often the most vulnerable.