Beef, the Climate, and Human Health: Changing our Wasteful Food and Land Use System

Today UCS is releasing a new report at the international climate negotiations in Warsaw, entitled “Climate-Friendly Land Use: Paths and Policies toward a Less Wasteful Planet.” The theme of the report is waste and inefficiency — how our current global pattern squanders resources, endangers human health, and damages our climate.

My three co-authors and I review evidence that there is enormous systemic waste in how we use land today. Important sectors of the food and agriculture system — in particular, beef — use enormous amounts of land, produce large amounts of global warming pollution, fritter away a substantial proportion of the cereals produced, and yet produce very little food for humans.

The report not only examines inefficiency in the beef sector but also in other forms of land use — palm oil, biofuels and natural forest management. In each case we show that policies today lead to great inefficiency, producing far less than the potential of less wasteful approaches. We not only criticize the current pattern (and projected future changes) but also show how there are positive alternatives. For example, not only plant-based foods but also other animal sources such as chicken, eggs, milk and pork, are also much better than beef from the land, climate, health and productivity points of view.

Ruminants, such as cattle and sheep, use large amounts of land and feed and emit methane, a potent source of global warming pollution.

Two important recent reviews, summarizing many different scientific studies, provide evidence sustaining this argument. Durk Nijdam and colleagues’ article on “The price of protein”, published last year in Food Policy, reviewed 52 different studies of the land needs and greenhouse gas emissions (GHGs) associated with different protein sources. Their data shows that beef production — even the most intensive systems — requires much more land and emits much more GHGs. “Meadow” and extensive systems were the most land-hungry and GHG-emitting. Beef was high not only in comparison with vegetarian foods, but also with other meats and with milk and eggs.

Another paper from last year, by Pete Smith and colleagues in Global Change Biology, makes the inefficiency of cattle and other ruminant animals clear, by tracing how much land and biomass is consumed and how much food is produced, by different parts of the global food system. (Full disclosure: I’m a co-author with Smith and other colleagues on a forthcoming paper in Nature Climate Change on this subject, although I wasn’t involved in the Global Change Biology review).

They found that ruminants use 28 hectares of land, on average, to produce a ton of food, versus just 1.4 hectares for “monogastric” animals such as chickens and pigs. Even if you ignore the ruminants’ pasture needs, and just look at the cropland used to produce their feed, they still require twice as much as chickens and pigs — 2.8 hectares per ton.

From a climate point of view, poultry and other kinds of animal protein are far preferable to beef.

In terms of biomass, ruminants consume a total of 6.22 billion tons annually, while the monogastrics consume only 0.79 billion tons. Yet the amount of food that results is almost the same — 0.14 billion tons of food (dry biomass) from ruminants, versus 0.12 from monogastrics.

Read the full report for more details — not only about the problems, but also our recommendations about what policies are needed to deal with them. It shows how we can make this world “a less wasteful planet.”

Posted in: Food and Agriculture, Global Warming Tags: agriculture, beef, climate-change, Global warming, land use

About the author: Doug Boucher is an expert in preserving tropical forests to curtail global warming emissions. He has been participating in United Nations international climate negotiations since 2007 and his expertise has helped shape U.S. and U.N. policies. He holds a Ph.D. in ecology and evolutionary biology from the University of Michigan. See Doug's full bio.

Support from UCS members make work like this possible. Will you join us? Help UCS advance independent science for a healthy environment and a safer world.

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Abstract – Toward a legal framework that promotes and protects sex workers’ health and human rights

Cheryl Overs, Bebe Loff

Complex combinations of law, policy, and enforcement practices determine sex workers vulnerability to HIV and rights abuses. We identify “lack of recognition as a person before the law” as an important but undocumented barrier to accessing services and conclude that multi-faceted, setting-specific reform is needed—rather than a singular focus on decriminalization—if the health and human rights of sex workers are to be realized.

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Abstract – The Framework Convention on Global Health: A tool for empowering the HIV/AIDS movements in Senegal and South Africa

Ella Scheepers

Despite the Alma Ata-inspired slogan “health for all by 2000,” the world remains afflicted with poor health in the second decade of the 21st century.1 This situation has generated much debate, and as a result, national and global responses have arguably entered a new era, building on the past success and failures of health movements, most notably on the back of the global HIV/AIDS movement.2

This article aims to contribute to the existing knowledge around a Framework Convention on Global Health (FCGH) from the perspective that any international legal framework conceptualisation on the right to health must involve those whose health is at stake. In order to achieve this analyses of the role played by civil society, who aim to give a voice to those unheard in the halls of state power, are vital for any discussion around the international right to health framework.

The two case studies, Senegal and South Africa, were used to look at the current status of the international right to health framework, specifically in the context of the civil society’s role in combating the HIV/AIDS epidemic. Through this, the article explores the possible role of an FCGH in empowering the HIV/AIDS movements in the protection and promotion of the right to health in Africa.

The findings discerned that African states face different challenges regarding the realization of the right to health in the context of HIV/AIDS. However, the important role played by civil society in this realization is highlighted in both cases. They emphasize the diverse roles that an FCGH could play in empowering civil society, through the formulation of a global standard and framework on the right to health, in the form of an FCGH, particularly if it is as a result of a movement of rights education and advocacy from below.3

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Abstract – Governance for global and national health: A role for framework conventions?

Timothy G. Evans

In the last two decades, the mushrooming of global health partnerships, alliances, funds and initiatives accompanied by a shift in the resource psyche from millions to billions has been exciting but also bewildering.  The landscape of global health is no longer defined primarily by multilateral institutions comprised of member states, but has been forced to expand to consider new types of international institutions with constituency representation from the private sector, civil society, academia, and philanthropy. Complex challenges like those related to pandemic flu, health worker migration, or HIV/AIDS are demanding intensive, intersectoral coordination and negotiation for which most institutions are ill-equipped to manage. From a governance perspective, it has challenged all institutions to rethink their roles and positions in a new global reality of health interdependence in which there is no single leader, issue, or comparative advantage that one institution can claim exclusively as their own. Not surprisingly, in the midst of such rapid change, which some have referred to as “open source anarchy” questions such as “who runs global health?” are leading to calls to reform multilateral institutions such as WHO and to rethink the global health architecture or governance.1-4

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Abstract – Funding global health

Sophie Smyth and Anna Triponel

Experience teaches that the Framework Convention on Global Health (FCGH) will need a financing facility if it is to garner widespread acceptance among low-income countries. The promise of financing is a well-established carrot to encourage countries to assume new convention-imposed obligations that will be costly to carry out. Promising to provide financing as part of an intergovernmental call for commitment also activates a rights-based approach. For donor and recipient countries, a funding facility embodies an actualization of their commitment to a convention’s collective undertaking to address a given issue. Donors signal their commitment through their contributions; recipients signal commitment through their efforts to use any support received to achieve the convention’s objectives. This essay highlights the need for an FCGH financing facility, provides a preliminary sketch of what it should look like, and urges the facility’s creators to adopt a bold and innovative approach that draws upon, but improves, current precedents.

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Editorial – Governance for global and national health: A role for framework conventions?

Timothy G. Evans

In the last two decades, the mushrooming of global health partnerships, alliances, funds and initiatives accompanied by a shift in the resource psyche from millions to billions has been exciting but also bewildering.  The landscape of global health is no longer defined primarily by multilateral institutions comprised of member states, but has been forced to expand to consider new types of international institutions with constituency representation from the private sector, civil society, academia, and philanthropy. Complex challenges like those related to pandemic flu, health worker migration, or HIV/AIDS are demanding intensive, intersectoral coordination and negotiation for which most institutions are ill-equipped to manage. From a governance perspective, it has challenged all institutions to rethink their roles and positions in a new global reality of health interdependence in which there is no single leader, issue, or comparative advantage that one institution can claim exclusively as their own. Not surprisingly, in the midst of such rapid change, which some have referred to as “open source anarchy” questions such as “who runs global health?” are leading to calls to reform multilateral institutions such as WHO and to rethink the global health architecture or governance.1-4

This global myriad of actors and partnerships is mirrored and magnified at the country level.  The influx of external initiatives and projects in low-income countries has led to concerns about their duplicative, distorting, disrupting, and distracting impacts on overburdened national systems.11,12  Yet the underlying reality of national health systems is much less a single coherent system and much more a plurality of actors spanning the public, non-governmental, informal and for-profit sectors with a host of endemic public and private sector failures referred to by some as “mixed health systems syndrome.”8 Efforts in the global community to “align and harmonize” around a single health plan have struggled to embrace the complex plural character of national health systems.4,9,3,7 Moreover, the growing recognition of the intersectoral, social and transnational character of health challenges—be it related to tobacco control, urban slums, healthy diets, medical tourism, or migration of health workers—is placing demands for flexible and innovative governance arrangements that traditionally structured Ministries of Health are largely unable to meet. The emergence of national strategies for global health and the new field of global health diplomacy are indicative of efforts to begin to embrace the complex and interdependent realities of global health in the 21st century.10

It is in this context of rapid, complex change that the idea of a Framework Convention for Global Health (FCGH) must situate itself. The aim of the FCGH is to reduce inequities in health within and between countries by enshrining the right to health and mutual responsibility in a treaty-like instrument and thereby ensuring the three essential conditions for a healthy life: public health, health care and the social determinants of health.  In the spirit of promoting reflection on this ambitious and exciting idea, this editorial raises three issues: i) the fit of the FCGH in the global health landscape; ii) the focus of the FCGH in relation to the governance instrument; and iii) the value of a broad platform to deliberate on health equity.

At the heart of the FCGH is the core value of equity in health. In many respects, an intolerance of inequities in health is a mobilizing value driving the global health agenda. In the area of child survival for example, from the establishment of the Global Task Force for Child Survival in the 1980s to the creation of the Global Alliance for Vaccines and Immunization (GAVI) in 1999 to the recent consensus to eliminate avoidable child mortality by 2030—there appears to be concerted global action and commitment to realizing this right over what will end up being a half century. The question, therefore, is what the FCGH can add to this already active agenda? Could it bring broader participation and voice of the disadvantaged? Could it bring more action on neglected social determinants of child survival? Could it ensure sustainability of financial commitments through its legally binding articles? Could it accelerate progress in attaining the goal of equity within and/or between countries?

As currently framed, the FCGH takes on a broad whole-of-global society approach through its focus on equity within and between countries, its engagement of civil society and sovereign states, and its explicit model of determinants of health that stretches beyond medical care to the social determinants of health. This “framing” of the FCGH raises questions as to whether the instrument of a “treaty” is fit-for-purpose. Other precedents in global health for a treaty mechanism are focused more narrowly, as in the case of tobacco control, pandemic influenza, or trade agreements. Understanding the complexity and significant transaction costs associated with those more tightly focused undertakings raises questions as to whether a treaty for such a broad set of issues is feasible, or even the optimal global governance instrument. Might there be, for example, a “softer” instrument that accommodates the whole-of-society approach, such as multi-stakeholder forums on inequities in health? And from these forums, might more specific issues be targeted for “harder” or binding instruments, like a treaty?

The value of a menu of instruments from soft to hard allows the tailoring of responses that may better accommodate the divergent interests of the wide array of actors that typically are involved in complex global health challenges. This will be important in engaging partners who may view the FCGH as taking a blind view with respect, for example, to the for-profit private sector. The FCGH must establish early on that, a priori, health equity is not incompatible with market mechanisms; rather, it must be clear that failures in governance for health equity implicate all actors with a commensurate responsibility to examine ways of doing business differently.

While a more targeted use of the treaty mechanism might be considered more pragmatic, this should not mean necessarily that the FCGH should also narrow its scope. Indeed, its broad aim of creating a process for deliberation, commitment, and collective action towards the realization of the right to health and health equity might augur well to counter the risk that the global health justice agenda is set aside because a single goal or small set of targets has been achieved.  What form this process of deliberation would take deserves further reflection: is it a modification of the World Health Assembly, as some have suggested, through the introduction of a Committee C?5 And might it have a national level expression as seen, for example, in the recent creation of the National Health Assembly in Thailand?

The aim of the FCGH to reach to the country level and redress within country inequities in health raises the critically important issues of national governance for health.  As stated above, the governance challenges at country level are enormous and are ones that most states are struggling with, not simply because of challenges associated with global health interdependence. In this regard, the FCGH might help to bring overdue attention to these national challenges for governance and shed light on ways in which health justice can be stewarded more effectively in the national setting.

In this regard, further development of the FCGH can help to redefine and re-vitalize national and transnational governance mechanisms for health and thus contribute to a badly needed reservoir of ingenuity to address dynamic and rapidly changing health problems that threaten equity across and between countries.

Timothy G. Evans, D.Phil., MD, is the Director of Health, Nutrition and Population at the World Bank in Washington, DC, USA, and the former Dean of the James P. Grant School of Public Health, BRAC University, Dhaka, Bangladesh.

1. D.P. Fidler, “Architecture amidst anarchy: global health’s quest for governance.” Global Health Governance, Volume 1, No. 1, pp. 1-17. Available at http://diplomacy.shu.edu/academics/global_health.

2. J. Frenk and S. Moon, “Governance challenges in global health.” New England Journal of Medicine

, 2013; 368, pp. 936-944.

3. G. Hutton, M. Tanner, “The sector-wide approach: a blessing for public health?” Bulletin of the World Health Organization

82:12:893.

4. IHP (2013). Available at http://www.internationalhealthpartnership.net/en.

5. I. Kickbusch, W. Hein, and G. Silberschmidt, “Addressing global health governance challenges through a new mechanism: The proposal for a Committee C of the World Health Assembly.” Journal of Law, Medicine and Ethics

38 (3):550-563.

6. “Editorial: Who runs global health?” Lancet

, Volume 373, Issue 9681, Page 2083, June 20, 2009.

7. C.J.L. Murray, J. Frenk, T.G. Evans, “The Global Campaign for the Health MDGs: challenges, opportunities, and the imperative of shared learning.” Lancet 2007; 370 (9592): 1018-20.

8. S. Nisthar, Choked pipes: reforming Pakistan’s mixed health system

.  Oxford University Press, 2010.

9. OECD (2008), The Paris Agenda on Aid Effectiveness and the Accra Agenda for Action.   Available at www.oecd.org/dataoecd/11/41/34428351.pdf.

10. E. Rosskam  and I. Kickbusch, eds. Negotiating and Navigating Global Health: Case Studies in Global Health Diplomacy

(New Jersey, 2011).

11. P. Travis et al., “Overcoming health-systems constraints to achieve the Millennium Development Goals.” Lancet 364(9437): 900-6. Erratum in: Lancet

2005; 365(9456): 294.

12. WHO Maximizing Positive Synergies Group, “An assessment of the interactions between Global Health Initiatives and country health systems.” Lancet

2009; 373: 2137-2169.

13. World Bank (2007) Healthy Development.  The World Bank Strategy for Health Nutrition and Population Results

(World Bank: Washington, D.C.)

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The Framework Convention on Global Health: A tool for empowering the HIV/AIDS movements in Senegal and South Africa

Ella Scheepers

Despite the Alma Ata-inspired slogan “health for all by 2000,” the world remains afflicted with poor health in the second decade of the 21st century.1 This situation has generated much debate, and as a result, national and global responses have arguably entered a new era, building on the past success and failures of health movements, most notably on the back of the global HIV/AIDS movement.2

This article aims to contribute to the existing knowledge around a Framework Convention on Global Health (FCGH) from the perspective that any international legal framework conceptualisation on the right to health must involve those whose health is at stake. In order to achieve this analyses of the role played by civil society, who aim to give a voice to those unheard in the halls of state power, are vital for any discussion around the international right to health framework.

The two case studies, Senegal and South Africa, were used to look at the current status of the international right to health framework, specifically in the context of the civil society’s role in combating the HIV/AIDS epidemic. Through this, the article explores the possible role of an FCGH in empowering the HIV/AIDS movements in the protection and promotion of the right to health in Africa.

The findings discerned that African states face different challenges regarding the realization of the right to health in the context of HIV/AIDS. However, the important role played by civil society in this realization is highlighted in both cases. They emphasize the diverse roles that an FCGH could play in empowering civil society, through the formulation of a global standard and framework on the right to health, in the form of an FCGH, particularly if it is as a result of a movement of rights education and advocacy from below.3

Despite the Alma Ata-inspired slogan “health for all by 2000,” the world remains afflicted with poor health in the second decade of the 21st century.4 The state of health has generated much debate among activists worldwide.5 As a result, national and global efforts on the realization of the right to health have entered a new era. These efforts build on the past successes and failures of health movements, most notably the global HIV/AIDS movement. Within this context, the need for innovative solutions to the challenges facing public health has seen the rise of a new vision for the right to health within the international legal framework. The concept of a Framework Convention on Global Health (FCGH) has emerged out of these debates.

This article aims to contribute to the existing knowledge around a FCGH. It examines the role of civil society in the realization of the right to health, and explores the possible role of an FCGH in empowering the HIV/AIDS movements and those working in the health sector in the protection and promotion of the right to health in Africa.

The article examines two case studies, Senegal and South Africa, and examines lessons learned from HIV/AIDS movements in realizing the right to health in the context of the HIV/AIDS epidemic. It goes on to illustrate how an FCGH could be effective in this context. Importantly, the case studies show that in situations where the social and political contexts are widely divergent, an FCGH could have great impact by outlining a comprehensive set of standards around which civil society can unite. Much of the power of the FCGH would be in its potential to extend those standards around which HIV/AIDS activists have mobilized for years. The response to HIV/AIDS  has resulted in real strategic planning for HIV treatment and prevention, but the FCGH could expand standards, planning, and responses to other areas of health systems that have  received less attention. The HIV/AIDS response and its relationship to the FCGH will be explored below, following a brief introduction to the concept of an FCGH.

A FCGH builds on a large body of international and domestic legal frameworks. The current international framework on the right to health is characterized by vague rights in various conventions. Some of the most obvious examples of right to health articles include: Article 12.1 of the International Covenant on Economic Social and Cultural Rights recognises ‘the right of everyone to enjoyment of the highest attainable standard of physical and mental health’; Article 55 of the UN Charter states to ‘promote… solutions of international economic, social, health, and related problems’, Article 25 of the Universal Declaration of Human Rights recognizes ‘standard of living adequate for… health.’ Other references to the right to health in African human rights instruments include: Article 16 of African Charter of Human and Peoples Rights. When outlining more material public health needs and guidelines, such measures are non-binding. The UN Committee on the Economic Social and Cultural Rights (Committee on the ESCR) has written one of the most recognised and expansive documents on the right to health entitled General Comment No 14. This raises the question of where an international right to health framework should go from here. The discussions around an FCGH are not based on replacing the current existing framework but rather aim to explore how an FCGH could support and develop the existing system. It could cement the popular shift away from vague human right norms guaranteed in the various binding treaties toward the concretization of the substantive content of the right to health, as defined by UN General Comments and other non-binding documents.

According to Gostin, an FCGH would be an innovative solution that would set targets, dismantle barriers to constructive engagement with the private sector, and actively engage with civil society.6 The exact content of an FCGH is subject to much debate, and it is not the aim of this article to anticipate that debate. However, in broad strokes, it is possible to observe that an international agreement would at least set global norms and standards in the most common areas of health delivery, and perhaps a timeframe for the achievement of these standards.7 For the purposes of this paper, it is important to highlight the following areas which the FCGH may include:

1) Recommended levels of domestic public sector expenditure on health services;

2) a definition of the essential health services that should be available to all;

3) priority setting with appropriate targets and benchmarks for progress; and

4) recognition of elements of non-discrimination and protection of vulnerable groups.8

Discussions around an FCGH call for the inclusion of concrete public health concepts that focus on the poor, rather than merely a normative ideology constituted by vague concepts of rights.9 The FCGH is based on the argument that human beings fundamentally need secure access to an essential package of basic goods for the personal value of human life.10 These may include adequate supplies of food and drink, clothing, shelter, and basic health care.11 Therefore, despite the differences of culture, social position, or circumstance, all human beings must receive the minimum necessary means to meet their needs and realize their full capacity.12 An FCGH would aim to outline and concretize health care as a basic good, moving away from the vague concept of rights.

Activists and academics alike assert that an FCGH could also play an empowerment role, particularly in the context of civil society movements across the world.13 The proliferation of networks of NGOs, linking local and international levels, is one of the most striking developments of human rights regimes since 1948.14 The HIV/AIDS epidemic has helped to catalyze the modern health and human rights movement, which extends far beyond the disease.15 The movement’s ethos expresses the idea that promoting and protecting health and promoting and protecting human rights are inextricably connected.16 Gostin and others state that “the most transformative changes in global health have come from the ‘bottom up’ through social movements, such as campaigns to fight HIV/AIDS.”17 Heyns and Viljoen argue that civil societies in countries like South Africa have used the international rights framework to demand that the right to health is fulfilled; and to translate law into language that resonates with local communities as they demand their rights.18 These developments have created space for the emergence of strong civil society movements around health. The movements consist of a wide variety of actors, depending on the context, but they generally include NGOs, as well as women’s groups, faith-based organizations, youth groups, government agencies, the private sector, and the media. These groups are able to counter the growing influence of vested state and private interests, which challenges the realization of the right to health.

There is an expanse of literature critiquing the concept of an FCGH, especially its ability to assist in the tangible realization of rights for those most in need. Critics have questioned the value of yet another international agreement, when the real obstacles to health care lie at a national level and should be actively negotiated at that level.19 In a study, Palmer et al. showed that ratification of human rights treaties was not significantly related to a positive change in national health.20 This is especially pertinent in arguments for context-specific health solutions. It is argued that an interntional convention that was too detailed would become outdated and therefore defunct.21 This article will examine this criticism within the context of case studies to highlight the usefulness of an FCGH in practical terms; this includes the possibilities for innovation using the FCGH to support and enhance the work of civil society in the realization of the right to health.

In the South African context, discussions about the international right to health framework and the potential role for an FCGH ought to be grounded in South Africa’s status as a young democracy (with its first democratic elections taking place in 1994).22 It is also necessary to take into consideration the new constitutional architecture based on the conception of human rights and responsibilities that emerged in the mid-1990s.23 The history of unequal opportunities and disadvantaged conditions presents one of the greatest challenges to the realization of rights in South Africa, impacting all spheres of society. The economic disparities have fundamentally affected the delivery of all economic and social goods to the poorest and most vulnerable. The advent of the AIDS epidemic only compounded these inequalities.

In 2010, it was estimated that 10.9% of the South African population was infected with HIV.24 An estimated 5.5 million people were living with HIV in 2009, which is only marginally lower than the 5.8 million estimated in the early 2000s.25 The high number of people infected with HIV in South Africa can be attributed to various factors, but is linked strongly to President Thabo Mbeki’s denial of the causal link between HIV and AIDS.26 Moreover, funding problems and health systems weaknesses facing the current health system have presented additional challenges to the realization of the right to health and those living with HIV. Civil society has had to find new and innovative ways to engage and challenge government to ensure the delivery of basic health services to people living with HIV/AIDS.

Civil society’s struggle in this arena was largely led by the Treatment Action Campaign (TAC). Launched in 1998, TAC was a response to South Africa’s increasingly apparent HIV/AIDS epidemic. TAC campaigned for greater access to testing and treatment for all South Africans by raising awareness and understanding about the availability, affordability, and use of HIV treatments.27 This community engagement was particularly important where late or absent HIV diagnosis, aggravated by denial, was associated with high morbidity and mortality.28 TAC became a vocal and visible justice and non-discrimination lobby in the developing world for the rights of people living with HIV/ AIDS.29 However, TAC had not planned on the need to campaign against the government.30 Initially, their targets were multinational pharmaceutical companies, which were expected to obstruct attempts to secure affordable treatment for people living with the virus.31

The mobilization throughout the era of denial focused mainly on the South African Constitution and the meaning of the rights and responsibilities outlined in Section 27.32 Using that domestic legal framework proved highly effective, both in terms of the mobilization of TAC members, the majority of whom were community members, and in terms of litigation strategy. TAC’s politics-centered approach to right-to-health advocacy included aspects of grassroots empowerment and international collaborations.33 Its grassroots treatment literacy campaign aimed to empower poor and physically and emotionally debilitated South Africans with HIV to participate in and make demands for their own treatment and care.34 The campaign also intended to make people living with HIV/AIDS rights-bearing members of local communities, activist organizations, and schools.35 International collaborations included partnerships with international organizations like Medecins Sans Frontieres (MSF), who provided important science and medical support. But coalescing local and international action seemed insufficient.

Instead of shunning national political action and large-scale national institutions, TAC’s critical engagement with government, proved imperative to the struggle.36 It included strategic litigation strategies that forced the government to change state policies, open up policy-making processes, and fashion and implement democratic programs of social provision for people living with HIV.37 For example, in one of the most famous social and economic rights cases in South Africa, Treatment Action Campaign v Minister of Health, the court ordered the government to implement a more reasonable policy regarding PMTCT essential in the prevention of mother-to-child transmission of HIV.38 This was a success for activists advocating around the right to health as the court upheld the rights of people living with HIV over denialist-based government policy.

However, the outcome of the case disappointed many South African human rights advocates who had hoped for broad judicial declarations of the core substance and programmatic contours of social rights, including the right to health, in Section 27 of the Constitution.39 Critics argued:

The disposed and impoverished citizenry are entitled to have the minimum content of their [economic and social rights] articulated, so they and their political and legal advocates may be more ready to hold the government to account.40

TAC continued to face challenges from government even after universal access to antiretroviral treatment was finally adopted in 2004, as there was minimal investment made in monitoring systems.41 As a result, civil society groups including TAC established their own monitoring network to track equity and coverage of antiretroviral treatment (ARV) access across South Africa during the rollout. This illustrated the essential role of civil society monitoring in holding the state accountable for providing basic goods and services for all.

With gross inequalities of resources between the private and public sectors, challenges faced by the health sector served to compound challenges for the HIV/AIDS movement.42 Major inequities remain in South Africa, with huge variation in health status and health service access across the nine provinces, and even between neighboring communities.43 For example, only 14% of citizens are able to access the private health care sector, yet they benefit from up to 60% of national health expenditures.44 Therefore, there is a new strategic challenge for the realization of the right to health: immediately implementing the government’s operational plan while strengthening the broader health care system over the longer term.

Considering this South African context, an FCGH could fulfill a number of functions. It could provide a comprehensive blueprint, including setting out a basic level of domestic public sector expenditures on health services and a definition of essential health services. This blueprint could be used for various purposes: to galvanize communities around certain demands, to encourage international support around specific issues, and to engage directly with government. A recent example is the government’s response to projected over-expenditures in the Free State Provincial budget 2008-2009. In November 2008, the Provincial Department of Health in South Africa’s Free State province enacted a moratorium on starting new patients on ARV treatment. The moratorium, which was part of a series of cost curtailment measures that affected the purchasing and delivery of HIV/AIDS treatment and other medicines, lasted for four months and had detrimental consequences for people living with HIV. The situation highlighted the larger human resource and funding challenges facing health care provision. These funding challenges resulted in a national commitment to introduce a system of National Health Insurance (NHI) within the next five years. It will be funded by a single health insurance system and aims to guarantee an essential package of health care services to all people.45 In an initiative like this, an FCGH may prove instrumental in its ability to provide a comprehensive blueprint for government.

Moreover, the HIV/AIDS movement could use an FCGH to challenge the state’s organization around the right to health. Movements such as TAC and the AIDS and Rights Alliance of Southern Africa (ARASA) have advanced democracy by demanding accountability from governments that have not been accustomed to such pressure. In drafting an FCGH, civil society, government, and communities could build a common vision of the priorities and basic needs of those they are representing. HIV/AIDS activists have mobilized for years around basic standards for health care, creating a strong foundation for those activists to work proactively in other areas within the health system, for example the monitoring of health systems. Within this context, the HIV/AIDS movement could use an FCGH to hold government to account within a broader environment.

The South African case study highlights various areas where an FCGH could assist civil society in the realization of the right to health for people living with HIV/AIDS. In this case, an FCGH could provide an important legal and advocacy tool to re-engage the government and NGOs like TAC, who have been mobilizing around basic health standards for years. It could also be used as an instrument of pressure against a government, holding it accountable to its citizenry. In the current environment, though the political space has become more conducive, there are challenges of monitoring, limited funding, and a lack of human resources. In this context, an FCGH would contain a concrete blueprint for civil society with comprehensive standards to which the government could be held accountable.

The next case study will look at the role of an FCGH within the context of the HIV/AIDS movement in Senegal. In contrast with the sub-Saharan African countries, Senegal’s successful attempts to prevent the spread of HIV/AIDS have transformed the country into a best-practice model over the last two decades.46 The epidemiology of HIV/AIDS in Senegal is different from that of South Africa and the rest of Sub-Saharan Africa because the profile of the disease is concentrated, with a country HIV prevalence low of about 0.7%, but a higher prevalence among vulnerable groups such as sex workers (about 20%) and men who have sex with men (MSM) with a prevalence of about 21.5%.47

Senegal’s relatively low infection rate is due in part to a speedily mounted public education strategy that mobilized the population soon after the epidemic broke out in 1984.48 Senegalese society has a tradition of active community involvement in health and development issues; thus, when it became clear that HIV/AIDS was a potential threat to national well-being, community groups were well-placed to respond.49 The effort involved women’s groups, faith-based organizations, youth groups, government agencies, the private sector, and the media.50 Therefore the epidemiology of the disease, the political environment, and the nature of civil society differed greatly from that of South Africa.

The HIV/AIDS movement involved religious communities and leaders, an integral component to its success.51 It was clear that religious leaders wanted to be involved when as early as 1989, a conservative Islamic organization, Jamra, approached the National AIDS Council to discuss HIV prevention strategies.52 Although initially hostile to condom promotion and some other aspects of AIDS prevention, the group became an important partner in a dialogue between public health officials and religious leaders.53 Furthermore, Christian organizations are important providers of health services in Senegal.54 Early in the epidemic, churches developed a more supportive outlook towards prevention, led by a Catholic NGO, SIDA Service, which provided counselling and psychosocial support.55

Currently, there are more than 3,000 civil society organizations involved in the Senegalese HIV/AIDS response, from community-based groups to national NGOs.56 Some of the most prominent organizations are l’Agence pour la Promotion des Activités de Population (APAPS), ENDA-Sante, Society for Women and AIDS in Africa (SWAA Sénégal), Association Sénégalaise pour le Bien Etre Familiale (ASBEF) and SIDA Service (as mentioned above). Moreover, these NGOs and other partners have encouraged the establishment of organizations aiming to strengthen the social networks of vulnerable groups like MSM and sex workers. There are a handful of MSM associations (which provide social spaces and are centrally involved in HIV/AIDS outreach) in Senegal, mostly in the urban areas.57

Stigma and discrimination are some of the biggest challenges for the HIV/AIDS epidemic in Senegal . The perception of HIV/AIDS as a “gay disease” has stigmatized those who operate in the MSM community and placed them at increased risk of discrimination and violence.58 The belief that MSM are to blame for the epidemic or that they are the only at-risk group is still common.59 As affirmed at the 15th International Conference on AIDS and STIs in Africa (ICASA) in 2008, criminalization of homosexual conduct is a significant hurdle in providing education, testing, and treatment to MSM populations in Africa.60 But even if the epidemic could be fought effectively from a clinical and epidemiological perspective, it is not enough to encourage voluntary testing and monitoring of people who agree to declare their HIV status. The social context of stigma and discrimination against people living with HIV/AIDS naturally leads them to hide their status.61

It is within this social context that a criticism of the FCGH could arise; an international treaty would not help civil society combat context-specific health challenges, especially in the realm of cultural and social issues. In fact, the use of rights language in the Senegalese context may prove challenging, as the wider society does not see those infected with HIV/AIDS as deserving of special rights.62 People living with HIV/AIDS are viewed as asking for special rights and the community questions why that group has claim to more rights.63 As an international framework, an FCGH cannot respond to the social and cultural specificities in every country. However, it can provide a concrete blueprint for civil society organizations to build on the effective collaborative efforts made by the HIV/AIDS movement and to conceptualize a comprehensive right to health for all.

An FCGH could be instrumental in conversations about what in Senegal is termed ‘Code de la santé’ or ‘Health Code.’ The philosophy behind this project is to understand the relationship between health and the law, while considering emerging ethical and health challenges. The development of the Health Code would take into account the global context and universally agreed standards.64 Such a process would require concrete concepts that frame and define the various components of the basic right to health. The FCGH would also advocate for inclusive processes, thereby accommodating marginalized and vulnerable populations.65 Examples of this inclusivity can be found in the strength of government leadership and intersectoral collaboration between different civil society members, including churches, mosques, and women’s groups in Senegal.

Finally, the development of an FCGH could mobilize Southern and Northern civil society and communities for advocacy on health issues that require global cooperation.66 HIV/AIDS movements in both South Africa and Senegal are facing global challenges that impact health, including trade and intellectual property, health financing, health worker migration, and the environmental change.

The case study of Senegal provides an important contrast to the South African experience. It recognizes that an FCGH as an international framework will not contain silver bullets for obstacles to the realization of the right to health, especially in country-specific social and cultural contexts, as well as different constitutional domestic frameworks. However, its role in galvanizing civil society groups around health issues could be valuable, and a tool for outlining the contents of health as a basic good upon which to build a national consensus.

The two case studies, Senegal and South Africa, look at the role that civil society played in realizing the right to health in the context of combating the HIV/AIDS epidemic. Through this lens, an FCGH could empower these movements to extend their gains further  in protecting and promoting the right to health in Africa; this is despite very different social and political contexts.

The contemporary nature of the subject means that there is scant literature available on an FCGH, and where it does exist, it is unpublished or difficult to access. Therefore, some of the research in this paper is based on internal working papers of research groups. Furthermore, the article has focused on the FCGH in the context of HIV/AIDS in Senegal and South Africa as an example, and the conclusions cannot necessarily be said to apply to broader health care systems or other communicable diseases. However, this research is useful in explaining some of the broad concepts coming out of new discussions surrounding an FCGH. Also, it has expanded on the existing literature on the important work  and accomplishments of the HIV/AIDS movements in South Africa and Senegal.

The two case studies emphasize the importance of taking into account the political, social, and economic context of the places in which the FCGH would be implemented. In the case of HIV/AIDS movements, it was necessary to consider the context-specific formations of the epidemic, the different nature and history of civil society, and government responses to the epidemic. It is possible to see that different states on the African continent face diverse challenges regarding the realization of the right to health in the context of HIV/AIDS and more widely. The HIV/AIDS response in Senegal highlighted these challenges, especially the social and cultural obstacles to the realization of the right to health.

However, both cases demonstrated that an FCGH would assist health activists by setting a standard against which citizens are able to measure their governments.67 The two examples highlight specific gains by the HIV/AIDS movements in South Africa and Senegal over the past 15-20 years. These gains would enable civil society organizations to mobilize outside of the relatively narrow focus of HIV/AIDS movements and more towards health systems delivery – and social determinants of health – more broadly, for which the FCGH could also galvanize support. Even in two contexts where the disease epidemiology, political environments, and nature of civil society are completely different, it is possible to conclude that an FCGH could be advantageous. It is only a failure of imagination that will limit discussions about the next step for the international right to health framework.

Ella Scheepers, LLM, is working in the field of human rights in Johannesburg, South Africa.

Please address correspondence to the author at ella.scheepers02@gmail.com.

1. M. Heywood and J. Shija, “A global convention on health – Would it help developing countries to fulfill their duties on the right to health? A South African perspective” (2011). Available at http://www.section27.org.za/wp-content/uploads/2010/11/Heywood-Shija.pdf.

2. Ibid., p.2.

3. See “Realising the right to health in our lifetimes? Towards a Framework Convention on the Right to Health” Discussion document for SECTION27, Regional Activist Dialogue, March 25, 2011.

4. Heywood and Shija (2011, see note 1).

5. Ibid., p.2.

6. L. Gostin, “Meeting the survival needs of the world’s least healthy people: A proposed model for global health governance,” Journal of the American Medical Association

298 (2007), p. 335.

7. Heywood and Shija (2011, see note 1).

8. Ibid., p. 2.

9. P. Farmer, Pathologies of power: health, human rights and the new war on the poor

(Berkeley, CA: University of California, Berkeley, 2003), p. 236.

10. T. Pogge, World poverty and human rights: Cosmopolitan responsibilities and reforms

, second edition (Cambridge: Polity Press, 2008), p. 55.

11. Ibid.

12. D. Beetham, “Human rights and cosmopolitan democracy,” in D. Archibugi, D. Held and M. Kohler (eds.), Reimagining political community: Studies in cosmopolitan democracy

(Stanford: Stanford University Press 1998), p. 60.

13. See generally, I. Kickbusch, “Wake-up call for a strong global health policy” (2003).  Yale Global Online

, available at http://yaleglobal.yale.edu/display.article?id_1476; P. Farmer “Intelligent design,” Foreign Affairs 86/2 (2007) pp. 155-161.

14. SECTION 27 Regional Activist Dialogue, “Realising the right to health in our lifetimes? Towards a framework convention on the right to health” Discussion document for SECTION 27 Regional Activist Dialogue (25 March 2011.) Available at http://www.section27.org.za/wp-content/uploads/2011/04/DiscussionDocument.pdf.

15. Farmer (2003, see note 9) p. 56.

16. Ibid.

17. L. Gostin, M. Heywood, G. Ooms, et al., “National and global responsibilities for health,” Bulletin of the World Health Organization

88/10 (2010) pp. 719-719a.

18. See C. Heyns and F. Viljoen, “The impact of the United Nations treaties on the domestic Level” Human Rights Quarterly

23/483 (2001); G. Backman, P. Hunt, R. Khosla, et al. “Health systems and the right to health: an assessment of 194 countries,” Lancet 372/9655 (2008). pp. 2047-2085.

19. Heywood and Shija (2011, see note 1).

20. A. Palmer, J. Tomkinson, C. Phung, et al. “Does ratification of human rights treaties have effects on population health?,” Lancet

373/9679 (2009), pp.1987-1992.

21. Heywood and Shija (2011, see note 1).

22. Ibid.

23. Ibid.

24. Actuarial Society of South Africa AIDS Committee, HIV/AIDS Newsletter (Edition 10, September 2011). Available at aids.actuarialsociety.org.za.

25. Actuarial Society of South Africa AIDS and Demographic Model Media Release (2008) Available at http://aids.actuarialsociety.org.za/scripts/buildfile.asp?filename=ASSA AIDS Model 2008 Media Release.pdf.

26. W. Forbath, “Cultural transformation, deep institutional reform, and ESR practice: South Africa’s treatment action campaign,” in L. Whik and J. Perelman (eds.), Stones of hope: How African activists reclaim human rights to challenge global poverty

(Stanford: Stanford University Press, 2011),p. 51.

27. Available at http://www.tac.org.za/community/about.

28. C. Delpierre, V. Lauwers-Cances, P. Pugliese, et al., “Characteristics trends, mortality and morbidity in persons newly diagnosed HIV positive during the last decade: the profile of new HIV diagnosed people,”  European Journal of Public Health

18/3 (2007), pp. 345-347. Available at http://eurpub.oxfordjournals.org/content/18/3/345.full.

29.

30. S. Friedman, “Gaining comprehensive AIDS treatment in South Africa: The extraordinary ‘ordinary,” in J. Gaventa and R. McGee (eds.), Citizen action and national policy reform: Making change happen

(Zed Books, 2010), p. 45.

31. Ibid., p. 45.

32.

33. W. Forbath (2011, see note 26).

34. Ibid., p. 51.

35. Ibid., p. 51.

36. Ibid., p. 51.

37. Ibid., p. 53.

38. Minister of Health and others v. Treatment Action Campaign and others CCT 9/02; 2002 (5) SA 721 (CC)

39. W. Forbath (2011, see note 26)

40. Ibid., p. 66.

41. L. London and H. Schneider, “Globalisation and health inequalities: Can a human rights paradigm create space for civil society action?” Social Science and Medicine

74 (2012) pp. 6-13. Available at http://repository.uwc.ac.za/xmlui/handle/10566/475#files.

42. Forbath (see note 26), p. 73.

43. J. E. Lawn and M. V. Kinney, “Health in South Africa: Executive summary of the series” Lancet 347 (2009) pp. 2-6.

44. Ibid., p. 2.

45. Department of Health of the Republic of South Africa, National health insurance in South Africa: Policy paper. Available at www.info.gov.za/view/DownloadFileAction?id=148470

46. T. Matthew, “Senegal renews its campaign against AIDS,” Contemporary Review (2004), p. 169.

47. UNAIDS, See UNAIDS report 2011 available at http://www.unaids.org/en/regionscountries/countries/senegal/.

48. Matthew (2004, see note 46), p. 169.

49. UNAIDS, Acting Early to prevent AIDS: The case of Senegal UNAIDS Best Practice Collection (Geneva: UNAIDS, 1999) Available at https://www.unaids.org/en/media/unaids/contentassets/dataimport/publications/irc-pub04/una99-34_en.pdf

50. Matthews (2004, see note 46), p. 169.

51. Ibid., p. 169.

52. UNAIDS (1999, see note 47), p. 12.

53. Ibid., p. 12.

54. Ibid., p. 13.

55. Ibid., p. 13.

56. D. Diouf and E.N.D.A. Sante, HIV/AIDS policy in Senegal: A civil society perspective (New York, NY: Open Society Institute, 2007). Available at http://www.soros.org/initiatives/health/focus/phw/articles_publications/publications/senegal_20071015/senegal_20071015.pdf.

57. Human Rights Watch, Fear for life: Violence against gay men and men perceived as gay in Senegal

(New York: Human Rights Watch, 2010), p. 2.

58. Ibid., p. 2.

59. R. Parker and P. Aggleton, K. Attawel, et al., HIV/AIDS-related stigma and Discrimination: A Conceptual Framework and an Agenda for Action

(New York: Population Council, 2002).

60. ‘Fear For Life: Violence against Gay Men and Men perceived as gay in Senegal’ Human Rights Watch Report

(2010). Available at http://www.hrw.org/sites/default/files/reports/senegal1110webwcover.pdf.

61. B. Kante, “VIH et droits humains,” (presentation at at a workshop with the theme ‘Integration of HIV/AIDS in programs or development projects in Africa the West, in Dakar, Senegal by the Regional HIV and Development Project in Pretoria, 2002.

62. Ibid., p. 16.

63. Ibid.

64. M. Becker, ‘L’état de la codification sanitaire au Sénégal: vers un Code de la santé?’ (translated from French). (Actes du Colloque international de Dakar 29 mars au 1er avril 2005). Available at http://rds.refer.sn/IMG/pdf/ANIMATIONTOUTCOUV2OK.pdf#page=52.

65. Heywood and  Shija (2011, see note 1)

66. Ibid., p. 2.

67. Ibid.

View the original article here

Toward a legal framework that promotes and protects sex workers’ health and human rights

Cheryl Overs, Bebe Loff

Complex combinations of law, policy, and enforcement practices determine sex workers vulnerability to HIV and rights abuses. We identify “lack of recognition as a person before the law” as an important but undocumented barrier to accessing services and conclude that multi-faceted, setting-specific reform is needed—rather than a singular focus on decriminalization—if the health and human rights of sex workers are to be realized.

This paper attempts to bring clarity to the discussion concerning the regulation of commercial sex, the rights of sex workers, and reducing vulnerability to HIV among adult female sex workers. Varying combinations of law, policy, and enforcement practices are shown to come together along identifiable themes to determine how sex workers live and work.

Though there is a great deal of literature on the effects of criminalizing sex work, the ways in which other forms of law and practice contribute to shaping the working environments of sex workers in different places is less understood. The consequences of the lack of recognition of the sex worker as a person before the law in many countries are hardly discussed. The absence of recognized legal status—not confined to sex workers—may be the result of the lack of a birth certificate, identity card, voter card, or other means that societies create to recognize individual legal personality, which make it  possible to act and make claims in society. This can mean that the sex worker is deprived of the benefits of citizenship even though they are born the country in which they work. It is suggested that in some places this phenomenon may be as much to blame for many of the deprivations and violations of rights suffered by sex workers as are other more commonly recognized concerns. Health programs that focus solely on the sexual health of sex workers to the exclusion of this fundamental issue of status may inadvertently reinforce this problem.

In this paper, the singular focus on criminal law is extended to consider the many factors that create and reinforce sex worker marginalization and social exclusion. We set out and explain the issues that must be addressed in order to improve sex workers’ status and health. The range of regulatory mechanisms used to govern sex work, enforcement practices, lack of clarity in the language used to describe this, and the claims of sex workers are discussed, as well as the limited steps that have been taken towards seeing the sex worker as a person possessed of at least some rights. We draw particular attention to the failure, in many places, to recognize sex workers as persons before the law. This means they are unable to make enforceable claims against office holders, employers, and service providers who, as a consequence, are not held accountable to sex workers.

The International guidelines on HIV/AIDS and human rights, first issued in 1996 and reissued in 2006, include this language about sex work:

With regard to adult sex work that involves no victimization, criminal law should be reviewed with the aim to decriminalize, then legally regulate occupational health and safety conditions to protect sex workers and their clients, including support for safe sex during sex work. Criminal law should not impede provision of HIV/AIDS prevention and care services to sex workers and their clients…1

The UNAIDS Guidance Note on Sex Work, published in 2009, echoed these themes.2 After the release of this Guidance Note, the executive director of UNAIDS initiated the Joint Action for Results: UNAIDS Outcome Framework 2009-2011. Outcome Area Six specifically calls for the removal of punitive laws, policies, practices, stigma, and discrimination that block effective responses to AIDS.3

Both sex worker groups and United Nations agencies argue that the criminalization of sex work negatively impacts sex workers’ health and human rights.4 Sex workers throughout the world have consistently claimed they are adversely affected by laws, policies, and enforcement practices that result in their exposure to violence, other criminal acts, and human rights violations, and which frequently reduce their access to education and health services and contribute to their social and economic exclusion. In these circumstances, the vulnerability of sex workers to HIV is significantly heightened. Sex workers identify stigma as the core issue and the law as a powerful tool for either empowering sex workers or further victimizing them.5

Law reform advocates suggest that if commercial sex is legitimized, sex workers may seek protection from exploitation and violence by the same laws and mechanisms that protect citizens and workers. They claim that sex workers might then enjoy the protections that accompany recognition of their equality with others, including the ability to conduct their trade in the safest possible workplaces, form unions, and access health and other services.6 If they remain without recognized legal status, these outcomes will be difficult to achieve.

Some feminists have advocated abolition of sex work by women, suggesting that it is indivisible from human trafficking as no person would voluntarily agree to prostitute themselves. They advocate stronger criminal laws against people who sell sex, clients, and sex business operators. Others suggest that liberalization of sex work laws increases demand for commercial sex and therefore also exacerbates human trafficking and other forms of exploitation or abuse.7

Regulation of commercial sex

The primary mechanism for controlling sex work is criminal law, which may make all or some activities related to commercial sex illegal. These laws vary greatly from country to country.8 In some countries, all aspects of commercial sexual transactions are criminal for all involved. More frequently, criminal laws are directed at those who sell sex or profit from it. The most common form of legal regulation is prohibition of specific activities associated with commercial sex, such as public soliciting for prostitution and procurement of minors. Recently, laws aimed at preventing trafficking and sexual exploitation have proliferated, with many jurisdictions extending the coverage of laws against trafficking to include clients and consenting adults who are deemed to be sexually exploited.9

Sex workers are referred to in laws that are enforced against them by a variety of terms including “prostitute,” “entertainment worker,” “trafficking victim,” and “victim of sexual exploitation.”10 Sex work is also regulated by laws drafted to address concerns unrelated to sex work. Examples include laws dealing with vagrancy, obscenity, nuisance, drugs, public order, sodomy, and alcohol consumption. Executive orders aimed at reducing antisocial behavior by restricting access to an area or evicting people from public housing are also used against sex workers.11

In almost all countries, there are laws against third parties involved in prostitution. These include laws against procuring adult women for prostitution, brothel keeping, advertising transactional sex, human trafficking, transporting or controlling prostitutes, or living on immoral earnings. Police will frequently confiscate condoms as evidence of sex work. All such laws can target managers, drivers, launderers, bartenders, receptionists, and landlords, as well as sex workers and their partners and families. Criminalization of sex business operators and clients alike is increasingly underpinned by an ostensibly humane redefinition of the female sex worker as a victim in need of rescue, rather than a criminal to be punished. Despite this characterization, the sex worker herself continues to be punished in both formal and informal ways. In some cases, sex workers are charged with trafficking and brothel keeping offenses (particularly if they share a workplace with another sex worker) or must agree to be detained for rehabilitation.12

Commercial sex may also be regulated and licensed. Some schemes permit commercial sex in certain streets or brothels; others permit commercial sex that accords with prescribed standards, such as the licensing of managers and the registration of workers. In Germany, for example, sex workers have limited access to indoor premises, but in Berlin, they are allowed to work on streets if they pay tax by purchasing a ticket from a machine.13 In the Philippines, sex workers must produce a “health card” to avoid arrest.14

Public health law plays an important part in the regulation of sex workers. In New Zealand, it is an offense to buy or sell unprotected sex.15 Medical examination of female sex workers and testing for HIV and other STIs is required in many jurisdictions, and steps are taken to prevent sex workers operating if they are HIV-positive or have an STI. In Turkey and Senegal, for example, it is an offense for a person to sell sex if they have not submitted to a medical examination.16 In other places, such as legal brothels in the state of Victoria in Australia, sex workers cannot work if they have an STI.17 The US state of Nevada has a similar regime.18 Under Chapter 441A of the Nevada Administrative Code, sex workers must be medically examined prior to commencing work, then on a weekly basis for certain diseases. Forced HIV and STI testing of arrested sex workers is lawful in some countries, including the United States where police publish pictures of arrested sex workers and their tests on official websites.19 Similar official “naming and shaming” of sex workers also occurs in the UK and was routine in China until it was banned.20

Forced medical examination of sex workers has been documented in many other countries, including Macedonia, where it led to several women being charged with serious public health offenses when they were found to have Hepatitis C antibodies.21 In Malawi, a newspaper reported that sex workers were taking legal action against the government for forcing them to be tested for HIV.22

HIV-positive sex workers are also likely to be affected by criminalization of HIV transmission.23 Several cases have been documented of HIV-positive sex workers being charged with criminal offenses, or being subject to orders that limit movement to prevent them infecting others.24 In a number of American states, a person who engages in sex work—or patronizes someone selling sex—knowing the sex worker is HIV-positive, is charged with a felony as opposed to a misdemeanor.25

A commission investigating sex work and HIV in South Africa said of legalized sex work with health controls:

[It] represents the same difficulties that criminalization does, especially since criminalization is the inevitable ‘default’ position where prostitutes do not comply with the conditions for working within the parameters of the legal sector.  The inclusion of mandatory HIV testing as one of the conditions for legalization compounds the difficulties created by criminalization.26

Policy making and law reform are difficult when patterns of enforcement bear little or no relationship to formal law. Enforcement practices that are substantially based on discretion are unreliable and prone to corruption. In most cases, especially in poor countries, few arrested sex workers are formally charged with an offense, taken to court, and jailed. It is common, particularly in countries where the rule of law is weak, for sex workers and sex business operators to pay fines or bribes or to be incarcerated in police stations, detention centers, and even jails without formal charges and an opportunity to appear in court.27 Indeed, some sex worker activists have alleged that this process can be so entrenched that only military police or retired officers are able to operate sex venues safely.28 Conversely, in some places, laws against commercial sex are not enforced because there are insufficient resources to do so, or because there is a deliberate policy of tolerance.

Sexual assault by police also plays a routine part in the global commercial sex landscape. Lack of accountable law enforcement processes means that sex workers who are victims of crime often have little incentive to report the crimes committed against them because they know they are highly likely to be ignored, or arrested and further abused.29

As noted above, offenses, whether or not they are designed to respond to sex work, may be routinely enforced against sex workers, their families, and associates, irrespective of whether there are grounds to do so. The presence of condoms as evidence of sex work is often relied upon to harass or prosecute, and is an example of a widely used enforcement practice that both activists and academics have criticized strongly.30,31

Arbitrary (and non-arbitrary) detention, sometimes for the purposes of rehabilitation and “protective” custody, are frequently reported in the literature on sex work. Sex worker activists have dubbed it “raid and rescue.”32 UN Special Rapporteur Anand Grover recommended compulsory detention and rehabilitation centers be closed as they are “ineffective and counterproductive.”33

Irrespective of whether incarceration is arbitrary or not, it carries additional health risks and has the potential to lead to further human rights abuses. The risks of detention often include assault and sexual violence, exposure to TB, and deprivation of medication, including anti-retroviral medicine for HIV, which has serious health consequences. In Cambodia, Human Rights Watch identified enforcement of the law on the suppression of human trafficking and sexual exploitation as causing arbitrary detention of sex workers in government rehabilitation centers, resulting in human rights violations and adverse health effects. According to Human Rights Watch, detainees reported rape and missed medication among the consequences of their detention, as well as loss of jobs or homes, and the forced abandonment of children and other family members for whom they were responsible.34

Limited rights

Undocumented migrants and refugees are the most instantly recognized categories of people lacking the rights that accrue to citizens of a country. However the benefits of citizenship are not automatic to all born in the country in which they reside, in particular those whose births are not registered.35 Sex workers appear to be disproportionately affected by lack of citizenship rights, or “recognition as persons before the law.”36 The combination of the legal status of sex work, the lack of legal status of the person who is the sex worker, and social stigma plays a significant role in driving social and economic vulnerability. Sex workers and their children are deprived of all ordinary civil entitlements. Sex workers without documents  such as birth certificates or identity cards have limited access to services and are unable to enter into formal agreements, such as leases or contracts, or to interact with government departments. This means they are unable to own, rent, or inherit property, vote, register the births of their children, or access education, justice, health care, loans or banking services, utilities, or work in the formal economy. In some cases, the inability to produce proof of identity will be associated with disrespectful and hostile attitudes in clinics, schools, and government offices. This may lead HIV-positive sex workers to avoid treatment that could both save their own lives and prevent transmission. It can also mean being held in detention centers or police custody longer, as they must be released into the care of someone who is legally recognized as a person.

Negotiating access to goods and services from this disadvantaged position clearly increases susceptibility to exploitation and abuse. Those who cannot access accommodation lawfully are prey for unscrupulous “slum lords,” those who cannot obtain legitimate health services are vulnerable to “quacks,” and “loan sharks” are the only option for those without access to legal finance services. There is little data addressing the health consequences that result from the fundamental denial of sex worker legal subjectivity.

Swaziland provides a poignant example of law that denies the humanity of the prostitute. Section 3(1) of the Swaziland Girl’s and Women’s Protection Act is as follows:

Every male person who has unlawful carnal connection with a girl under the age of sixteen years or who commits with a girl under that age immoral or indecent acts or who solicits or entices a girl under such age to the commission of such acts shall be guilty of an offense and liable on conviction to imprisonment not exceeding 6 years with or without whipping not exceeding 24 lashes and with or without a fine not exceeding one thousand Emalangeni in addition to such imprisonment and lashes.37

Section 3 (3) of the Act provides the following defense to the charge of carnal knowledge of a girl child under 16, “that at the time of the commission of the offense the girl was a prostitute.”38 According to this law, a girl under the age of 16 cannot consent to sex – however if she is under 16 and a prostitute, she can neither consent to sex, nor can she claim protection from the law if someone has sex with her. By granting her neither agency nor security, the law offers her no protection.

Addressing the criminal status of sex workers will not fully resolve the abuses suffered, however this debate dominates discussion about commercial sex. This is an interesting phenomenon given that in many countries sex work itself is not prohibited. Yet this discussion is beset by confusion. Terms such as “trafficking,” “sexual exploitation,” “abolition,” “toleration,” “semi-legal,” and “decriminalization” have no uniformly agreed meanings and are, as a consequence, applied inconsistently. Advocates who use this language cannot be confident about what has been communicated to others. Terms such as “legalization,” “decriminalization,” and “regulation” are often used interchangeably, which limits the possibilities for coherent discussion about reform of the law and policy governing commercial sex. For example, decriminalization has many meanings: no law should apply to commercial sex; or no criminal law should apply; or that commercial sex should be permitted in certain forms and not others; or that commercial sex should be regulated like physiotherapy, for example, or some other occupation sharing similar features. Even if something called decriminalization was possible, this is unlikely to be a complete solution in view of the broad range of problems faced by sex workers. Similar issues emerge for sex workers where police practice is delinked from law, where sex work is legally indivisible from trafficking, or where criminal laws not originally intended to be used to regulate commercial sex are misapplied, and whether the criminal law is silent or unenforced.

The language of rights also contributes to confusion. This is in part because treaties also use phrases such as “traffic in women” and “exploitation of prostitution of women,” which can be interpreted in many ways, including in justification of the punishment of sex workers. For example, Article 6 of the Convention on the Elimination of All Forms of Discrimination Against Women states:

States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.39

Laws that penalize all aspects of commercial sex may be interpreted as being consistent with international treaties that treat sex work as sexual exploitation and indivisible from trafficking, making sex work itself inherently an abuse of rights. Moreover, policies, such as the anti-prostitution pledge contained within the US President’s Emergency Plan for AIDS Relief, that aim to eliminate sex work are constructed as being consistent with a reduction in vulnerability to HIV and therefore in accordance with the right to health.

Where the law prohibits or limits access to commercial sex in venues, sex workers will find alternative ways and places to work. In rich and poor countries alike, this means soliciting in the street, contacting clients by phone and the Internet, meeting clients in secret places, obtaining employment in clandestine brothels, or using a guise such as hairdressing, karaoke, or massage services. In these circumstances, sex is likely to take place in hidden rooms, streets, parks, cars, and roadsides where there is limited access to water and other physical conditions required for health and safety. Where sex work is bar- or entertainment venue-based, sex workers’ exposure to alcohol and tobacco can also pose a health threat. Where commercial sex is disguised as another business, such as massage or entertainment, condoms may not be present lest they are discovered by police and used as evidence of sex work, sexual exploitation, or human trafficking.  In areas where the laws against commercial sex are strongly enforced, brothels operated by criminals frequently have the worst possible conditions for sex workers; abuse, violence, and unprotected sex are more likely.40

Existing circumstances greatly increase vulnerability to HIV, to violence, and to other human rights abuses. This could be remedied by the establishment of legal and suitably regulated workplaces in which labor rights are recognized and occupational health and safety standards apply. Such standards do not include mandatory testing for HIV and STIs. Laws that criminalize sex business operators, or define them as traffickers and procurers deny sex workers the benefit of working as employees in lawful businesses, even where sex work itself is not criminalized. At present, sex business operators may be penalized for “exploiting prostitution,” “living on the earnings of prostitution” or “trafficking,” irrespective of how well they treat their staff. Sex workers are generally unable to rely upon employment contracts, which are unenforceable in most jurisdictions because they relate to an unlawful or immoral purpose, and because the sex worker may not have the legal status needed to enter into a contract.

A notable exception to this is a decision of the South African Labour Appeal Court in 2010 that held that although sex work was illegal, sex workers were still entitled to procedural fairness and protection against unfair dismissal.41 However, while the court held that the illegality of prostitution does not negate the constitutional protections that may be enjoyed by sex workers, it also noted that although sex workers would, as employees, be entitled to form and join trade unions, they would not be entitled to participate in any activities, including collective bargaining, that amounted to the furthering of the commission of crime.42

Criminal records, the inability to obtain goods and services, stigma, and the ensuing erosion of confidence, combine to ensure that many sex workers remain socially excluded; this makes them likely to stay in the sex industry into old age. There are reports of rehabilitation programs that offer lessons in sewing, hairdressing, or cooking, and some that offer small loans to start small businesses. These are aimed at enabling female and sometimes transgender sex workers to earn money to leave sex work. However, such programs reach a very small proportion of sex workers, and there is no evidence that they have, or could, significantly reduce the number of persons selling sex or form a cost-effective strategy for reducing HIV. It may be that recognition of legal personhood, enabling more equal access to employment opportunities, holds greater potential for enabling sex workers to exercise control over their livelihood choices than “rehabilitation”.

Principles

According to the UN Advisory Group on Sex Work, efforts to empower sex workers have resulted in measurable improvements in sex workers’ quality of life, self-confidence, and agency. Studies have documented good social and economic outcomes, increased social capital, and high rates of condom use.43 Creating regulatory frameworks that enable these improvements is crucial.

Although national regulatory regimes will consist of different mixes of laws and policies, the principle that should govern and inform reform efforts is that sex workers should enjoy the same protections and benefits as other citizens and workers. Sex workers must be understood as persons endowed with rights in a meaningful fashion, not merely as a rhetorical claim. To achieve this, the following should form the basis of a reform framework:

Recognition of sex work as an occupationA commitment to the application of human rights standards and norms, including recognition of sex workers as legal persons capable of holding and exercising all human rights, the right to work, freedom of association, and a recognition of the right of consenting adults to form sexual relationships, paid and unpaidA commitment to ensuring that commercial sex can take place under healthy and safe conditions that are understood to exclude oppressive testing regimesGuaranteed access for sex workers to health and social servicesJustice, including but not limited to, protection from violence, abuse, and discrimination.

For this to happen, it will be necessary to adopt consistent use of precise language to describe the regulatory environments for commercial sex, the consequences of possible regulatory options, and the potential solutions. It will also be essential to collect accurate local data about the laws, policies, and enforcement practices to be remedied, and their impact, intended and unintended, on the health of male, female, and transgender sex workers.

Law reform

In most countries, it will be necessary to repeal and reform criminal and other types of law (whether applied as intended or misapplied) that unnecessarily limit sex workers’   access to safe workplaces, services, and economic opportunities.  To be successful, this must be done in a manner that acknowledges the variety of forms that commercial sex takes, and the range of individuals who perform roles associated with commercial sex other than the physical provision of sexual services. As noted, there may be owners, employers, cleaners, drivers, cooks, and other support staff. Sex work can be arranged around entertainment venues such as hotels and bars, in formal brothels, as a home-based occupation or linked to personal services such as massage and escorts. Sex workers can be employees, sole traders, or independent contractors.  Examples of suitable regulatory responses to all of these circumstances may be found by examining comparable health and safety and labor regulations for other occupations providing personal services.

At an international level, the ILO has begun this process by incorporating sex work into international labor standards through a recommendation concerning HIV and AIDS and the World of Work, 2010 (No. 200). In 2010, during the 99th Session of the International Labour Conference, delegates stated sex workers were implicitly covered in the category of:

all workers working under all forms or arrangements, and at all workplaces, including…persons in any employment or occupation.44

Bringing sex workers within the scope of this recommendation may be an important first step toward an international policy and legal framework, within which sex workers may benefit from the same protections as other workers.

At a national level, the New Zealand Prostitution Reform Act 2003 is often cited as an example of decriminalization of sex work. This Act recognizes various forms of commercial sex and provides that contracts for commercial services are not void. It enables sex workers to refuse service, while allowing for the rescission or cancellation of a contract for a sexual service that is not performed. The Act also creates advertising restrictions, and stipulates that a permit to immigrate to New Zealand will not be granted on the basis that a person intends to operate or invest in commercial sexual business. A 2008 government report found that as a result of this act, many sex workers felt more able to report violent crimes and felt that the police respected their rights.45

Court decisions

Courts have made decisions consistent with respect for sex workers’ rights, including in countries where sex work is the subject of criminal law.46 A case of importance in this regard is the “Tanbazar” case (Bangladesh Society for the Enforcement of Human Rights v Bangladesh, 2001). In 1999, police evicted Bangladeshi sex workers in Tanbazar and Nimtali from their workplaces and confined them in a vagrant center for the ostensible purposes of rehabilitation. The judgement describes a night raid where, “the policemen suddenly dragged them, abused and beat them and pushed them and their children into the waiting buses using filthy language.”47

The court found that upon their eviction from their brothels, the sex workers were deprived of their livelihood and that this amounted to a deprivation of the right to life. The court concluded that the police action was unconstitutional and illegal.

A recent decision of the Supreme Court of India has recognized the impact of lack of legal personality, noting:

We are of the opinion that the authorities should see to it that sex workers do not face these difficulties as they are also citizens of India and have the same fundamental rights as others. 48

It ordered that sex workers be issued ration cards, voter cards, and identity cards that do not mention their occupation, and that address verification requirements be relaxed. The court also ordered that the children of sex workers be admitted to appropriate classes in a government school.49

In 2010, Justice Himel of the Ontario Supreme Court in Canada recognized the difficulties created by a legislative scheme that allows sex work but criminalizes most aspects of its conduct. She stated:

Three provisions of the Criminal Code that seek to address facets of prostitution (living on the avails of prostitution, keeping a common bawdy-house and communicating in a public place for the purpose of engaging in prostitution) are not in accord with the principles of fundamental justice and must be struck down.  These laws, individually and together, force prostitutes to choose between their liberty interest and their right to security of the person as protected under the Canadian Charter of Rights and Freedoms. I have found that these laws infringe the core values protected by section 7 and that this infringement is not saved by section 1 as a reasonable limit demonstrably justified in a free and democratic society.50

Other initiatives and activities

In addition to law reform, there are other initiatives worthy of consideration. Primary among these is supporting sex workers to organize so that they are able to spread information about legal rights and contribute to policy development. Better use of existing law is also a strategy that has been taken up to challenge violent, corrupt, and discriminatory treatment.  Humanitarian Action in Saint Petersburg, Russia, provides legal services and trains paralegals to accompany female sex workers to court or detention facilities if they are charged with crimes.51 The Healthy Options Project Skopje (HOPS) in Macedonia provides legal services to female sex workers.52  The Asociación de Mujeres Meretrices de la Argentina (AMMAR) provides legal aid to female sex workers and has challenged police harassment and restrictions on where sex workers can work, partly through an alliance with labor unions. As has been pointed out, the provision of legal services is of value irrespective of the legal status of commercial sex.53

While themes may be suggested to guide law reform, no single legal model can provide a blueprint for the regulation of sex work because of the variation between laws, policies, and practices. In addition, as Ahmed states, “decriminalization [of sex work] will not eliminate issues that exist for sex workers, such as harassment from state agents.”54 The way forward is grounded in addressing the variety of issues raised by sex workers and in accurately identifying the aspects of local legal environments that drive sex workers’ social exclusion and limits their access to services.

We began by looking at the factors that create and reinforce sex worker social exclusion, and the consequent lack of access to health services. These outcomes flow from poverty, violence, poor law enforcement, laws that conflate sex work with human trafficking, and lack of legal personality. Associated with this are criminalization of drug use, gender transgression, and HIV transmission. We particularly emphasized the impact of the failure to recognize sex workers as persons before the law, which prevents them making the same claims as others on office holders, employers, and service providers. This is a critical omission in discussions around health and sex work, particularly in relation to access to services.

In seeking to identify progress, we have observed that while “decriminalization” or other legislative reform is at the forefront of advocacy efforts, many actual improvements to sex workers’ lives and to the governance of commercial sex have resulted from improved enforcement procedures, progressive court decisions, and through changes to laws and policies that are not ostensibly about sex work. This includes laws such as those governing citizenship, public health, drugs or gender rights.

It is commonly asserted that sex workers are unable to realize rights because sex work is illegal. While acknowledging that criminal laws limit sex workers’ rights, we question the notion that these offenses form an insurmountable barrier to sex workers exercising rights. This idea has been unhelpful because it suggests that nothing can improve unless the sex work-related offenses are repealed. This is clearly not the case in countries where there is no law on sex work, where it is unenforced, or where laws that are used to harass sex workers do not specifically mention sex work and may otherwise serve a useful purpose.

Governments have agreed to ensure the legal protection of the rights of people vulnerable to HIV and to overcome the legal barriers that block their access to prevention, treatment, care, and support. To meet these commitments for sex workers, international and national law reform is needed, as are policy changes and enforcement practices. These must occur alongside judicial recognition of sex workers’ legal entitlements and increased resources for sex workers’ social initiatives. Advocacy around human rights standards and norms and domestic law is more likely to succeed if more tools are used than the singular demand for removal of sex work offenses from the books.

The authors would like to thank Anatoli Shapiro and Cassandra Van for their assistance.

Cheryl Overs, BLS, is Senior Research Fellow at the Michael Kirby Centre for Public Health and Human Rights, School of Public Health and Preventative Medicine, Monash University, Melbourne, Australia.

Bebe Loff, BA, LLB, MA, PhD, is Associate Professor and Director of the Michael Kirby Centre for Public Health and Human Rights, School of Public Health and Preventative Medicine, Monash University, Melbourne, Australia.

Please address correspondence to the authors c/o Bebe Loff, Michael Kirby Centre for Public Health and Human Rights, Department of Epidemiology and Preventive Medicine, Level 6, Alfred Centre, Commercial Road, Melbourne, Australia, email: bebe.loff@monash.edu.

1. Office of the United Nations High Commissioner for Human Rights (OHCHR) and Joint United Nations Programme on HIV/AIDS (UNAIDS), UN Doc. No. HR/PUB/06-9 (2006). Available at http://data.unaids.org/Publications/IRC-pub07/jc1252-internguidelines_en.pdf.

2. UNAIDS, UNAIDS Guidance Note on HIV and Sex Work (Geneva: UNAIDS, 2009, Last updated April 2012). Available at http://www.unaids.org/en/media/unaids/contentassets/documents/unaidspublication/2009/JC2306_UNAIDS-guidance-note-HIV-sex-work_en.pdf.

3. UNAIDS, Joint action for results: UNAIDS outcome framework, 2009-2011, (Geneva: UNAIDS, 2009). Available at http://data.unaids.org/pub/Report/2010/jc1713_joint_action_en.pdf.

4. UNAIDS Advisory Group on HIV and Sex Work, The report of the UNAIDS Advisory Group on HIV and Sex Work,(Geneva: UNAIDS, 2011). Available at http://www.uknswp.org/wp-content/uploads/unaidsadvisorygrouponsexworkandHIVDec2011.pdf.

5. I. Vanwesenbeeck, “Another decade of social scientific work on sex work: A review of research 1990-2000,” Annual Review of Sex Research

12 (2001), pp. 242–289.

6. UNAIDS (2009, see note 3).

7. M. M. Dempsey, “Sex trafficking and criminalization: In defence of feminist abolitionism,” University of Pennsylvania Law Review 158/6 (2010), pp. 1729–1778; R. Weitzer, “Sex trafficking and the sex industry: The need for evidence-based theory and legislation,” The Journal of Criminal Law and Criminology

101/4 (2012), pp. 1337–1369. For articles defending the Oppression Paradigm, see K. Barry, The prostitution of sexuality (New York/London: New York University Press, 1995); S. Dworkin, Pornography: Men possessing women (London: Women’s Press, 1981); S. Jeffreys, The idea of prostitution (North Melbourne, Australia: Spinifex Press, 1997), C. Pateman, The sexual contract (Cambridge: Polity Press, 1988).

8. For specific examples of each approach see ProCon.org, 100 Countries and their prostitution policies (Last updated, December 2011). Available at http://prostitution.procon.org/view.resource.php?resourceID=000772. See also European Network for HIV/STI Prevention and Health Promotion among Migrant Sex Workers (TAMPEP), Sex work in Europe: a mapping of the prostitution scene in 25 European countries (Amsterdam: TAMPEP International Foundation, 2009). Available at http://tampep.eu/documents/TAMPEP%202009%20European%20Mapping%20Report.pdf.

9. C. Overs, Caught between the tiger and the crocodile: The campaign to suppress human trafficking and sexual exploitation in Cambodia

, draft (Cambodia: Asia-Pacific Network of Sex Workers (APNSW), 2009). Available at http://www.aidslex.org/site_documents/SX-0046E.pdf; D. Kulick, “Swedish model” (presentation at Beijing Plus Ten meetings, New York USA, February 28–March 11, 2005). Available at http://www.globalrights.org/site/DocServer/Don_Kulick_on_the_Swedish_Model.pdf; S. Dodillet and P. Östergren, “The Swedish Sex Purchase Act: Claimed success and documented effects,” (presentation at the Decriminalizing Prostitution and Beyond: Practical Experiences and Challenges international workshop, the Hague, March 3–4, 2011). Available at http://www.plri.org/sites/plri.org/files/Impact%20of%20Swedish%20law_0.pdf.

10. Overs (see note 10).

11. E. Ellington, “Prostitutes in Ilford to be forced off streets under ‘dispersal order’ plan” The Ilford Recorder (February 2, 2012). Available at http://oldestprof.com/index.php/crimewatch/2460-prostitutes-in-ilford-to-be-forced-off-streets-under-dispersal-order-plan.

12. Human Rights Watch, Off the streets: Arbitrary detention and other abuses against sex workers in Cambodia

(2010). Available at http://www.hrw.org/reports/2010/07/20/streets.

13. N. Kulish, “In Germany, sex workers feed a meter” New York Times (August 31, 2011). Available at http://www.nytimes.com/2011/09/01/world/europe/01germany.html.

14. Sun.Star Cagayan de Oro, “24 nabbed sex workers no health cards – Police” (November 1, 2011). Available at http://www.sunstar.com.ph/cagayan-de-oro/local-news/2011/11/01/24-nabbed-sex-workers-no-health-cards-police-188173.

15. See, for example, the New Zealand Prostitution Reform Act of 2003, Public Act 28 (2003) Section 9(1). Available at http://www.legislation.govt.nz/act/public/2003/0028/latest/DLM197855.html.

16. H. Ünlu, T. Beduk, and D. Öztuna, “Evaluation of nature and impact of violence exposure among registered female sex workers,” Turkiye Klinikleri Journal of Medical Science

31/5 (2011), pp. 1167–1178; UNAIDS, Acting early to prevent AIDS: The case of Senegal. (Geneva: UNAIDS, 1999). Available at http://data.unaids.org/publications/irc-pub04/una99-34_en.pdf.

17. See The Parliament of Victoria, Sex Work Act 1994: Version No. 069A, No. 102 of 1994 (As amended by the Parliament of Victoria on January 1, 2011) Section 20, p. 31. Available at http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/LTObject_Store/LTObjSt5.nsf/DDE300B846EED9C7CA257616000A3571/998B3217B6D8FFEFCA257810001351B3/$FILE/94-102aa070%20authorised.pdf.

18. A. E. Albert, D. L. Wamer, R. A. Hatcher, et al., “Condom use among female commercial sex workers in Nevada’s legal brothels,” American Journal of Public Health

85/11 (1995), pp. 1514–1520.

19. D. Webber, “Criminal law: HIV and substantive criminal law issues,” in D. Webber (ed.) AIDS and the law, 4th edition (Aspen Publishers, 2011 Supplement), [F] Prostitution, pp. 7-40 – 7-43; K. McCurtis, S. Outlaw, C. Sardina, and P. Saunders, “Report submitted to Global Commission on HIV/AIDS,” Best practices policy project (August 7, 2011). Available at http://www.bestpracticespolicy.org/GlobalCommissionRep2011Text.html.

20. D. Taylor, “Sex workers ‘named and shamed’ on Met police website,” The Guardian

(August 6, 2010). Available at http://www.guardian.co.uk/ society/ 2010/ aug/06/ london-sex-workers-police-website; The Guardian, “China to end ‘shame parades’ of criminal suspects” (July 27, 2010). Available at http://www.guardian.co.uk/world/2010/jul/27/china-end-shame-parades-suspects.

21. H. Doyle, “Sex workers and HIV: When morality trumps science” Open Society Foundations

(June 7, 2011). Available at http://blog.soros.org/2011/06/sex-workers-and-hiv-when-morality-trumps-science/.

22. All Africa News, “Malawi: Sex workers sue govt after forced HIV test” (November 3, 2011). Available at http://allafrica.com/stories/201111130174.html.

23. International Planned Parenthood Federation (IPPF), Global Network of People Living with HIV (GNP+), and International Community of Women Living with HIV/AIDS (ICW), Verdict on a virus: Public health, human rights and criminal law (London: IPPF, GNP+, and ICW, 2008). Available at http://www.icw.org/files/verdict%20on%20a%20virus.pdf.

24. Radio National, “Shutting down Sharleen: The story of an AIDS pariah” Australian Broadcasting Corporation (Broadcast on March 21, 2010). Available at http://www.abc.net.au/radionational/programs/hindsight/shutting-down-sharleen/3115028.

25. See for example the Tennessee law Tennessee Code Annotated, § 39-13-516 – Aggravated Prostitution, (General Assembly of the state of Tennessee, Public Acts, 2010); Tennessee Code Annotated, § 40-35-111 – Authorized terms of imprisonment and fines for felonies and misdemeanors, (General Assembly of the state of Tennessee, Public Acts, 2010).

26. South African Law Commission, (2002) “Sexual offences: Adult prostitution,” (citation 8.43) in South African Law Commission, Chapter 8 – Prostitution and HIV/AIDS (Issue paper 19, Project 107). Available at http://www.saflii.org/za/other/zalc/ip/19/19-CHAPTER-8.html#fnB831.

27. C. Overs and K. Hawkins, “Can rights stop the wrongs? Exploring the connections between framings of sex workers’ rights and sexual and reproductive health,” BMC International Health and Human Rights

11/Suppl. 3 (2011).

28. Khao Ta, Secretary, Women’s Network for Unity, personal communication with the authors, (July 2009).

29. Overs and Hawkins (2011, see note 28).

30. C. DeBoise, “Stopping police and DAs from using condoms to convict sex workers” On The Issues Magazine (November 10, 2011). Available at http://www.ontheissuesmagazine.com/cafe2/article/180.

31. S. Rau and C. Sluggett, “Who stole the tarts? Sex work and human rights,” (Sangli: Sampada Gramin Mahila Sanstha (SANGRAM), 2009). Available at http://sexgenderbody.com/sites/default/files/who-stole-the-tarts_small.pdf.

32. Ibid.

33. UN in Vietnam, UN independent expert urges Viet Nam to close down compulsory rehabilitation centres for drug users and sex workers

(Hanoi: December 5, 2011). Available at http://www.un.org.vn/en/media-releases3/69-un-press-releases/1980-un-independent-expert-urges-viet-nam-to-close-down-compulsory-rehabilitation-centres-for-drug-users-and-sex-workers.html.

34. Human Rights Watch (see note 13); Overs (2009, see note 10).

35. See, for example, Plan International’s campaign to register all children at birth. Available at http://plan-international.org/birthregistration.

36. See Budhadev Karmaskar v. State Of West Bengal on 15 September, 2011: CRIMINAL APPEAL NO. 135 OF 2010 (Supreme Court of India, 2011). Available at http://indiankanoon.org/doc/99194/.

37. See The Kingdom of Swaziland, Swaziland Girls’ and Women’s Protection Act (1920).

38. Ibid.

39. International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), G.A. Res.34.180 (1979), Article. 6. Available at http://www2.ohchr.org/english/law/cedaw.htm.

40. Human Rights Watch (2010, see note 13).

41. Kylie v. Commission for Conciliation Mediation and Arbitration and Others (Johannesburg: Labour Appeal Court of South Africa, Case No. CA10/08, May 26, 2010).

42. Ibid.

43. D. Kerrigan, P. Telles, H. Torres, et al., “Community development and HIV/STI-related vulnerability among female sex workers in Rio de Janeiro, Brazil” Health Education Research 23/1 (2008), pp. 137–145; M. L. Rekart, “Sex-work harm reduction,” Lancet

366/9503 (2005), pp. 2123 – 2134; D. Swendeman, I. Basu, S. Das, et al., “Empowering sex workers in India to reduce vulnerability to HIV and sexually transmitted diseases,” Social Science & Medicine 69/8 (2009), pp. 1157–1166; For the legal and policy environment and the rights of sex workers, see also, K. M. Blankenship, B. S. West, T. S. Kershaw, and M. R. Biradavolu, “Power, community mobilization, and condom use practices among female sex workers in Andhra Pradesh, India,” AIDS 22/5, pp. S109–S116 as quoted in UNAIDS Advisory Group on HIV and Sex Work, (2011, see note 5).

44. International Labour Office (ILO), Recommendation concerning HIV and AIDS and the World of Work, 2010 (No. 200) (Geneva: ILO, 2010). Available at http://www.ilo.org/public/english/region/eurpro/moscow/info/publ/wcms_142706.pdf.

45. Ministry of Justice, New Zealand Government,  Report of the Prostitution Law Review Committee on the operation of the Prostitution Reform Act 2003. (Wellington, 2008).

46. Kylie v. Commission for Conciliation Mediation and Arbitration and Others (see note 41).

47. Bangladesh Society for the Enforcement of Human Rights and Others v Government of Bangladesh and Others 53 DLR (2001) 1, (Bangladesh High Court, Decided on March 14, 2000).

48. Budhadev Karmaskar v. State Of West Bengal on September 15, 2011 (see note 36)

49. Ibid.

50. Bedford v. Canada 2010 ONSC 4264 (Ontario: Superior Court of Justice, Court file No. 07-CV-329807 PD1, September 28, 2010).

51. J. Csete and J. Cohen, “Health benefits of legal services for criminalized populations: the case of people who use drugs, sex workers and sexual and gender minorities,” Journal of Law, Medicine and Ethics

38/4 (2010), pp. 816–831.

52. Open Society Foundations, Macedonia group protects rights of sex workers through video and legal advocacy

(October 1, 2009). Available at http://www.soros.org/initiatives/health/focus/sharp/news/macedonia-sexworkers-video-legalaction-20090901.

53. Csete and Cohen (see note 52).

54. A. Ahmed, “Feminism, power, and sex work in the context of HIV/AIDS: Consequences for women’s health,” Harvard Journal of Law and Gender

34/1 (2011) pp. 225-258.

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