Human Rights and the Global Fund to Fight AIDS, Tuberculosis and Malaria

The Global Fund to Fight AIDS, Tuberculosis and Malaria was created to greatly expand access to basic services to address the three diseases in its name. From its beginnings, its governance embodied some human rights principles: civil society is represented on its board, and the country coordination mechanisms that oversee funding requests to the Global Fund include representatives of people affected by the diseases. The Global Fund’s core strategies recognize that the health services it supports would not be effective or cost-effective without efforts to reduce human rights-related barriers to access and utilization of health services, particularly those faced by socially marginalized and criminalized persons. Basic human rights elements were written into Global Fund grant agreements, and various technical support measures encouraged the inclusion in funding requests of programs to reduce human rights-related barriers. A five-year initiative to provide intensive technical and financial support for the scaling up of programs to reduce these barriers in 20 countries is ongoing. Ralf Jürgens, PhD, LLM, is senior coordinator for human rights at the Global Fund to Fight AIDS, Tuberculosis and Malaria, Geneva, Switzerland. Joanne Csete, PhD, MPH, is an adjunct associate professor of public health at Columbia University, New York, USA. Hyeyoung Lim, LLD, is human rights advisor at the Global Fund to Fight AIDS, Tuberculosis and Malaria, Geneva, Switzerland. Susan Timberlake, JD, is an independent consultant in Switzerland. Matthew Smith, MA, is a former intern in the Community, Rights and Gender Department of the Global Fund to Fight AIDS, Tuberculosis and Malaria, Geneva, Switzerland. Please address correspondence to Joanne Csete. Email: [email protected]. Competing interests: None declared. Copyright: © 2017 Jürgens, Csete, Lim, Timberlake, and Smith. This is an open access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/), which permits unrestricted noncommercial use, distribution, and reproduction in any medium, provided the original author and source are credited. Health and Human Rights Journal HHr HHR_final_logo_alone.indd 1 10/19/15 10:53 AM r. jürgens, j. csete, h. lim, s. timberlake, and m. smith / HIV and Human Rights,183-195 184 D E C E M B E R 2 0 1 7 V O L U M E 1 9 N U M B E R 2 Health and Human Rights Journal Introduction The Global Fund to Fight AIDS, Tuberculosis and Malaria (hereinafter the Global Fund), which began its operations in 2002, emerged during a period in which the nexus between health and human rights had established itself as a distinct area of public health practice and an intellectual discipline. By 2002, the United Nations (UN) entities brought together to form the Joint United Nations Programme on HIV/AIDS (UNAIDS) had a strong commitment to rights-centered approaches to HIV, as seen, for instance, in UNAIDS’s inclusion of nongovernmental organizations (NGOs) in its governance body and its work on discrimination and other human rights abuses related to HIV. As explained below, the Global Fund was born out of the idea that a different kind of institution might be needed to expand financing to HIV programs. As a financial institution without field staff, the Global Fund would operate very differently from a direct service provider or UN agency. But it would operate in accordance with agreed-on norms contained in HIV programs and policies, including the meaningful participation of people living with HIV, the prohibition of discrimination based on HIV status, and the inclusion of often criminalized persons— such as sex workers, people who use drugs, and LGBT persons—in HIV programs. It was also challenged to bring lessons from HIV efforts to bear on programs to address tuberculosis (TB) and malaria. This article describes the strategies and initiatives undertaken by the Global Fund in its effort to support human rights-based programs to address HIV, TB, and malaria. It suggests that within institutional constraints specific to its foundational values and processes, the Global Fund has found progressively more active ways to assist grantees in designing, implementing, and evaluating rights-centered health programs. Human rights and basic operation of the Global Fund The Global Fund was created partly as a response to the reluctance of many traditional providers of development assistance in health to finance antiretroviral treatment, which had been available since 1996 but was seen by some donors to be unsustainable in low-income countries.1 Donor-supported HIV interventions in the period before the United States President’s Emergency Plan for AIDS Relief initiative and the “3 by 5” initiatives of the World Health Organization and UNAIDS (both dating from 2003) were largely focused on awareness-raising campaigns and health worker training.2 For some years, the French government had called for a “solidarity” fund for antiretroviral treatment.3 The International AIDS Conference in Durban in 2000 brought global attention to a growing North-South movement to challenge the prices and patents of antiretroviral medicines, as well as the indifference of donor nations to the plight of Africans living with HIV. The 2001 UN General Assembly Special Session on HIV/AIDS committed member states to providing support for “a global HIV/AIDS and health fund to finance an urgent and expanded response to the epidemic based on an integrated approach to prevention, care, support and treatment.”4 This resolution gave the Global Fund official UN member state backing that earlier large-scale public-private health initiatives such as the Vaccine Alliance (GAVI) did not have. There was great hope in many quarters that the Global Fund’s existence would not only scale up antiretroviral treatment dramatically but, in so doing, also drive down the prices of HIV medicines.5 The board of the Global Fund, which institutes funding strategies and policies and approves budgeting and funding decisions, was constituted to include representatives of governments, civil society from the Global North and South, foundations, and people affected by the three diseases; this last constituency sets it apart from GAVI and other similar entities and signals a commitment to the meaningful involvement of people affected by the diseases in all decisions about the Global Fund and its activities. The Global Fund also incorporated another distinctive element with human rights importance—a commitment to “country-driven” grant-making. The foundation document of the Global Fund said that it would “base its work on r. jürgens, j. csete, h. lim, s. timberlake, and m. smith / HIV and Human Rights, 183-195 D E C E M B E R 2 0 1 7 V O L U M E 1 9 N U M B E R 2 Health and Human Rights Journal 185 programs that reflect national ownership and respect country-led formulation and implementation processes.”6 Country coordination mechanisms (CCMs)—meant to include representatives of government, NGOs, other private-sector entities, UN agencies in the country (often called “technical partners”), and people living with or affected by the diseases—were created to develop proposals. CCMs were entrusted to submit proposals requesting a realistic level of funding for health programs that could be absorbed and programmed readily. The Global Fund’s foundation document also pledged to “give due priority to the most affected countries and communities, and to those countries most at risk” and to “aim to eliminate stigmatization of and discrimination against those infected and affected by HIV/AIDS, especially ... women, children and vulnerable groups.”7 As of February 2017, the Global Fund estimated that with total disbursements of more than US$30 billion since 2002, it has supported antiretroviral treatment for about 10 million people, TB testing and treatment for about 16.6 million people, and the distribution of over 700 million bed nets for malaria prevention.8 From a human rights perspective, it is important to note that the Global Fund has also supported an unprecedented scale-up of HIV prevention activities for certain marginalized populations, including people who inject drugs. In its first nine rounds of funding, for example, approximately US$180 million enabled the expansion of drug-related harm reduction services in 42 countries, many of which had never been able to scale up services of this kind.9 “Country ownership” and country-driven processes may not have worked out ideally in every case, but they represented an attempt to do business in a new way. Both the formal independent evaluation commissioned by the Global Fund after five years and the conclusions of other observers of the Global Fund’s work echoed the long-held concern of some donors that although the Global Fund had indeed put program design and implementation more squarely in the hands of recipient countries than ever before, some of those programs floundered for lack of outside technical assistance.10 The Global Fund defended its approach, asserting that it was high time that programs for infectious diseases not be designed in Geneva or Washington.11 Key actors in the field appreciated this sentiment. Médecins Sans Frontières, for example, said that entrusting countries with the responsibility to estimate resources that could be absorbed and realistic rates of scale-up of programs resulted in unprecedented progress both in the programs themselves and in strengthening health systems.12 As of 2004, the Global Fund had already stepped a bit over the “country ownership” line and required that CCMs include a person living with HIV among their members. And in 2008, it issued guidance “strongly encouraging” CCMs to include key populations affected by the three diseases among their members—beyond just people living with HIV—and to ensure their participation in decision making.13 Though the inclusion and meaningful participation of key populations—especially persons affected by the criminalization of drug use, sex work, and aspects of sexual preference and gender identity—remains a challenge in many places, in some countries CCMs became the first platform in which key population groups could sit with policy makers and program managers and participate in decision making on programs affecting them.14 While “country ownership,” with its ring of empowerment, was appealing from a human rights perspective, human rights advocates over the years noted the other side of the coin—that “ownership” of programs by countries with poor human rights records or little culture of human rights might mean that these countries would steer programs in rights-unfriendly directions and have little incentive to do otherwise.15 Some observers concluded that the Global Fund’s commitment to rights-based programs was too passive. At a Global Fund “partnership” meeting in 2006, civil society organizations presented an appeal signed by over 250 health and human rights NGOs, calling on the Global Fund to increase funding for programs to eliminate human rights abuses against people living with and at high risk of HIV/AIDS—including sexual and genderbased violence; discrimination; and violations of r. jürgens, j. csete, h. lim, s. timberlake, and m. smith / HIV and Human Rights,183-195 186 D E C E M B E R 2 0 1 7 V O L U M E 1 9 N U M B E R 2 Health and Human Rights Journal the right to complete and accurate information about HIV/AIDS prevention, treatment and care.16 Dr. Michel Kazatchkine, director of the Global Fund from 2007 to 2012, noted that the country ownership principle did indeed pose human rights concerns but that the Global Fund had processes to ensure that it would not fund programs that contributed to human rights violations or that did not reflect sound evidence-based approaches.17 With respect to human rights questions, the Technical Review Panel, the independent expert body that reviews Global Fund proposals and makes recommendations for funding, is asked to consider whether proposals address issues of human rights and gender equity and use human-rights based approaches to address the three diseases, including by contributing to the elimination of stigmatization of and discrimination against those infected and affected by tuberculosis and HIV/AIDS, especially populations that are marginalized or criminalized, such as injection drug users, men who have sex with men, transgender communities, sex workers and other key affected populations.18 Indeed, efforts to ensure that marginalized and criminalized populations are reached by Global Fund-supported programs, particularly for HIV and TB, have been challenging throughout the Global Fund’s history. The 2011 Political Declaration on HIV/AIDS called on countries to implement specific programs to ensure that national HIV responses were inclusive, effective, and rights based. UNAIDS identified these key programs as consisting of the following: (1) the reduction of stigma and discrimination; (2) access to HIV-related legal services; (3) the monitoring and reform of policies, regulations, and laws that undermine HIV programs; (4) legal literacy, or “know your rights,” efforts; (5) the sensitization of lawmakers and law enforcement agents; (6) the training of health care providers on rights and ethics related to HIV; and (7) the reduction of discrimination against women and gender-based violence.19 The UN Development Programme led an investigation of whether these types of programs figured in two Global Fund funding rounds (6 and 7).20 The study found that successful HIV funding proposals generally included at least a few programs to address human rights barriers, but that about a quarter of these programs were dropped before they made it into work plans.21 In addition, it was noted that stigma and discrimination reduction was the most common of the seven programs to be included and that countries with generalized epidemics were unlikely to identify program needs for key populations. The Global Fund had developed information notes and technical briefs on human rights, gender, sexual orientation, and gender identity meant to help CCMs include, in their funding proposals, measures that would ensure access to services for marginalized persons and would promote gender equality, but clearly more needed to be done.22 Recognizing the continuing challenge of getting funding proposals to embody human rights norms and universal access, the Global Fund, in its tenth round of funding, established a special reserve allocation for programs for “most at risk populations,” which were defined as (1) men who have sex with men, transgender people, and their sexual partners; (2) female, male, and transgender sex workers and their sexual partners; and (3) people who inject drugs and their sexual partners.23 About one-third of applicants in this round requested support from this special reserve, for a total of about US$100 million in programs over two years; about half that amount was finally approved.24 Two countries, Malaysia and Uruguay, received Global Fund support for the first time through this special reserve.25 The Global Fund’s support for what it calls “community systems strengthening” was also an important step in encouraging rights-based programming for the three diseases. The community systems strengthening framework, developed by the Global Fund in 2010 (and revised in 2014) in consultation with many civil society organizations, encourages funding applicants to see the “mobilization of key affected populations and community networks” as an essential element of effective programs.26 It urges applicants to include r. jürgens, j. csete, h. lim, s. timberlake, and m. smith / HIV and Human Rights, 183-195 D E C E M B E R 2 0 1 7 V O L U M E 1 9 N U M B E R 2 Health and Human Rights Journal 187 in their analyses and funding requests an emphasis on “strengthening community-based and community-led systems for prevention, treatment, care and support; advocacy; and the development of an enabling and responsive environment.”27 Formalizing and addressing strategic objectives for human rights and gender As the time came to prepare an institutional strategy for 2012–2016, the Global Fund heard from civil society organizations and technical partners on the continued need for attention to human rights issues. A consultation convened by the UN Development Programme and the Open Society Foundations in 2011, which included wide civil society representation, stressed the need for the Global Fund to have a formal commitment to human rights goals. In a paper prepared for that meeting, Daniel Wolfe of Open Society Foundations and Robert Carr of the Caribbean Vulnerable Communities Coalition urged the Global Fund to address situations in which it might unwittingly undermine rightsbased approaches, including the following: • when health programs to benefit criminalized people who use drugs, prisoners, sex workers, and LGBTI persons expose these populations to arrest, arbitrary detention, and other abuses, without adequate protections of their human