CREATING A FRAMEWORK FOR HIV/AIDS RELATED LEGAL REFORM IN THE SOUTH PACIFIC
ANITA JOWITT[*]
INTRODUCTION
HIV/AIDS is not just a health issue but is also a development issue. It is widely recognised that, just as the causes of HIV/AIDS have a number of facets, so too must the response be multifaceted or multisectoral.[1] It is also recognised that human rights are fundamental to managing the HIV/AIDS epidemic. This is not only because of inherent respect for human rights, or because countries have obligations to comply with various instruments of international law but also because, more pragmatically, experience shows that failure to respect human rights fuels the epidemic.[2] Public health and human rights are complementary goals.
The role of the law within the response to the HIV/AIDS epidemic is closely linked to the protection of human rights.[3] Law is generally envisaged as being a device for engendering social change by proscribing discrimination and thereby helping to create a society that is supportive of people with HIV/AIDS. It also helps to shape society by providing an institutional framework that is supportive of people with HIV/AIDS. This view of the role of the law in response to HIV/AIDS is reflected inThe Regional Strategy for the Prevention and Control of STD/AIDS in Pacific Island Countries and Territories (the Regional Strategy)[4]:
policies and laws that are based on an ethic of compassion for people with HIV will increase the effectiveness of prevention programmes. Alienating people with HIV breeds indifference and low self esteem, creating perfect conditions for the spread of the virus, and discouraging voluntary changes in behaviour. A supportive social and legal environment encourages people infected with HIV and/or STD and people whose behaviours might put them at risk of HIV and STD to respond to education campaigns and resources, and to make use of services such as STD clinics or counselling.
The Regional Strategy provides a number of concrete actions to ensure the creation of this supportive social and legal environment, including that countries identify and review laws ‘that may assist in increasing HIV transmission, rather than aiding in reducing transmission or being transmission neutral.’[5]
There are considerable resources to assist Pacific Island countries in such law reform initiatives. The International Guidelines on HIV and Human Rights provide a clear set of twelve normative standards for governments to base HIV/AIDS and human rights initiatives upon. The Handbook for Legislators on HIV/AIDS, Law and Human Rights[6] makes these guidelines more accessible by providing examples of good legislative and regulatory practices for each guideline. There are also numerous examples of legislation from various countries that Pacific Island countries could use as models for the development of legislation.
Current Pacific Islands legal responses
Despite regional and international statements on the importance of integrating human rights sensitive law reform measures into HIV/AIDS management programmes there have been very few legal changes in the Pacific Islands region in response to HIV/AIDS. The only HIV specific legal changes in the region that have actually been commenced are to be found in Tonga and Samoa. Both of these countries have included HIV/AIDS in the schedule of notifiable or infectious diseases in their Public Health Acts.[7] Vanuatu’s Public Health Act 1994 makes similar changes, although the relevant parts of this Act have never come into force.[8]
These changes cannot be said to engender a supportive environment for people living with HIV/AIDS. The statutory regime surrounding notifiable diseases in public health legislation is not aimed at looking after the rights of people with a notifiable disease. Instead such laws aim to give the State the power to manage a disease outbreak by identifying, isolating and/or compulsorily treating people infected with particular diseases.[9] Tonga’s legislation provides a striking example of the “anti-human rights” approach that notifiable disease regimes entail. Between 1989, when HIV/AIDS was first added to the schedule of notifiable diseases in Tonga, and the commencement of the revised Public Health Act 1992 in May of 1993 if you were HIV/AIDS positive you were:
• required to consult a medical officer and submit to treatment
• required to inform the person in charge of any public conveyance that you were HIV/AIDS positive
• not allowed employment in or about any dairy, factory, shop, hotel, restaurant, child care place or food related business
• not allowed to attend college
• not allowed to use public wells to draw water[10]
Whilst the Public Health Act 1992 (Tonga) removes these harsh limits on ones’ freedom, the underlying approach to the law reform is not based upon notions of human rights, but is instead based upon notions of identification and control through restrictive measures. Sections 140 and 143 give medical practitioners and authorised government officials the power to isolate and treat a PLWHA, and to restrict his or her employment opportunities.
The only significant legislative change in the region that has been drafted from a human rights perspective is the HIV/AIDS Management and Prevention Act 2003(PNG). The aims of the Act, below, explicitly incorporate a human rights approach into the management of the epidemic:
(f) the prevention of the spread of HIV/AIDS; and
(g) the management of the lives and protection from discriminatory practices of people who are infected or affected by HIV/AIDS; and
(h) the protection of public health,
The review of HIV/AIDS related law in Papua New Guinea was explicitly based upon the human rights framework. The stated reasons for adopting this approach were:
All member states of the United Nations are bound to promote and encourage respect for human rights under the UN charter. In addition, States are bound to implement human rights under Conventions to which they are party.
States should also direct management efforts within the framework of human rights, because two decades of attempts at epidemic management have proved that denial, discrimination, stigmatisation and failure to observe human rights principles fuel the epidemic rather than containing it.[11]
This Act has not yet been commenced, however. It is now known when commencement can be expected.
So why have international guidelines and best practice statements had so little impact on domestic laws in Pacific Island countries? This article uses socio-legal theory as a framework for providing a possible explanation as to why international standards on the legal response to HIV/AIDS have not been well accepted in the Pacific Islands to date, before turning to consider ways in which appropriate law reforms could be fostered.
LIMITS OF LAW REFORM – SOCIO-LEGAL THEORY
As discussed above, the desire to use law as part of an integrated response to HIV/AIDS to create a supportive social environment for people affected by HIV/AIDS indicates an acceptance of the principle that law can be used as a device to help change peoples’ attitudes. Law is conceived as having an active function in modifying society. This strand of theory begins in the early 20th century, when ‘over-ambitious plans to regulate every phase of human action by law’[12] were leading to problems of non-enforcement of law, and dissatisfaction with the legal system. Roscoe Pound, who is widely considered the father of this strand of socio-legal thought, began by linking problems with enforcement with the nature of the laws being made. For Pound, the limits of effective legal action, or the extent to which laws would be enforceable, depended upon law regulating only subject matter that wasjusticiable by the legal system.[13] His limits on law were informed by the prevailing view of the time that law has a passive role, codifying existing practices, but not modifying them. Instead, attitudes and beliefs are governed by social mores, deep seated practices that are not readily changed by the simple imposition of an external law; ‘stateways cannot change folkways.’[14] However, Pound did not accept such a limited role for law. Instead he challenged law makers to examine ‘not just the form of the rule and the abstract justice of its content’[15] and to explore ways in which enforceability could be ensured.
This challenge led later theorists to expand upon Pound’s work, trying to identify guidelines for effective legal action which could be applied in a practical way to help legislators and law reform bodies to create effective legislation. The discourse widened its focus from how best to ensure enforceability, a question of institutionalisation, to include the question of how to ensure internalisation of the values implicit in social change type law. Useful guidelines in this regard were provided by William M. Evan. He identified seven necessary conditions for the effective use of law as an ‘independent social force [to] influence behaviour and beliefs.’[16] These conditions, which include both practical, “successful institutionalisation” considerations as well as value related “successful internalisation” considerations are:
1. The source of the new law is perceived to be authoritative and prestigeful.
2. The rationale for the new law is articulated in terms of legal, as well as historical and cultural continuity and compatibility.
3. Pragmatic models for compliance are identified.
4. A relevant use of time is made to overcome potential resistance.
5. The enforcement agents are themselves committed to the behavior required by the law...
6. Positive as well as negative sanctions are employed to buttress the law.
7. Effective protection is provided for the rights of those persons who would suffer from the evasion or violation of the law.[17]
Evan’s conditions relate to the relationship between State law and the community subject to that law, but the question being examined in this paper relates the relationship between international standards and domestic lawmakers. This is a more complex question, as international standards must first affect the behaviours of domestic lawmakers, who then must enact laws to affect the community subject to those laws. However, the relationship between international standards and domestic lawmakers parallels the relationship of domestic lawmakers and the community subject to that law in the sense that in each occasion an authoritative body is attempting to influence the behaviours of its subjects. In each situation the question is really how far power, exercised through the promulgation of norms or laws, can be used to change behaviours. Socio-legal theory on the relationship between State law and the individuals subject to it can therefore provide a useful avenue for examining the relationship between international law and the behaviour of domestic lawmakers. It can therefore work on two levels. First, lawmakers may be committed to the international standards, but may see problems with effectively institutionalising the law on a domestic level. More problematically, the lawmakers themselves may not be committed to the values inherent in the international standards. This is an issue of internalisation.
Applying Evans guidelines to the development of HIV/AIDS law in the Pacific
Taking the “successful institutionalisation” considerations first, can it be said that law making bodies in the Pacific Island region have not been active in creating legislation because of the practical considerations of institutionalising such laws? Conditions in the Pacific make it very difficult to create workable regulation. Lack of resources, including infrastructure, skilled personnel and money to operate institutions, is a common feature through the Pacific Island region, with the result that enforcement agencies such as the courts, the police and the health authorities are already overstretched. People tend not to use the formal legal system to report abuses of rights. Accessing lawyers and courts is expensive and time consuming, and government services such as the public solicitor and public prosecutor are inundated with work. Self enforcement can therefore not be relied upon.[18]
Undeniably there are a number of issues that could hinder the successful institutionalisation of laws. But these problems are not specific to the creation of HIV/AIDS related law. They do not stop other laws that are, maybe, equally unrealistic from the point of view of implementation, from being enacted. Examining the statute books from any Pacific Island country you will find a number of poorly institutionalised laws. Environmental protection laws that require environmental impact assessments which are both technically complex to undertake and for environmental agencies to evaluate is a notable area of law that is not supported by institutional capacity that springs to mind.[19] More cynically one can argue that criminal laws are poorly institutionalised through weaknesses in the police and public prosecution services; employment laws are poorly institutionalised through weaknesses in systems of labour officers; and all laws are poorly institutionalised through weaknesses in court systems which make enforcement of rights difficult. The lack of institutionalisation of the State law in general also suggests that general values relating to the rule of law are not well internalised.
Evans states that a new law must be perceived as being authoritative, and must also be articulated in terms of legal, as well as historical and cultural continuity and compatibility. Before considering how these factors might affect the acceptance of international standards on HIV specific law, we can consider how these factors affect the general acceptance of law as a device for social change.
Most Pacific island countries, with the exception of Tonga which was never colonised, had legal and political institutions imposed upon them during colonisation. Although domestic authorities adopted these institutions at independence historical and cultural continuity has been broken, and most countries have done little to restore a sense of continuity in the years since independence by developing a body of specifically local jurisprudence.[20] This affects the authority of State legal systems, and bodies related to it, including international bodies that want to effect change through the State legal system. There is also a danger that international standards will be perceived as neo-colonialism, at odds with local culture. Again this affects the authority of State law, which can be perceived as a device to implement external standards. Members of the legislature cannot be assumed to somehow rise above these factors. Indeed they are often the most vociferous public attackers of perceived neo-colonial threats.[21]
What makes HIV/AIDS related laws more contentious is, as well as there being cultural resistance to the use of State law to alter society, cultural attitudes resist the discussion of sex, and the acceptance of homosexuality, prostitution and other “aberrant” or “immoral” sexual practices,[22] things which the International Guidelines embrace. Former President of Vanuatu,Ati George Sokomanu maybe summed up the tension of the dynamic when he asked, ‘Should society change for sex? or Should sex change for society?’[23] Culture is not, of course, a static monolith in the Pacific region, but there has been a largely unified “official Pacific culture” presented in response to HIV. Features of it are that it is against Pacific island culture to talk about sex,[24] and that practices such as homosexuality and prostitutioncontradict both traditional beliefs and Christianity, which, although introduced, has become an integral part of Pacific island cultures.
The recent public response to homosexuality (which has attracted more media attention than responses to prostitution, intravenous drug use or other aberrant immoral behaviour) illustrates the use of custom and religion in the morality discourse surrounding HIV. McIntosh summed up the key elements of this response: ‘the debate often focuses on questions or issues relating to morality (particularly in regards to Christian teachings), legitimization, deviance, conceptualisations of what is natural and unnatural and the belief that homosexuality is a foreign construct imported into the Pacific.’[25] Also illustrative is the response in Vanuatu to a group of lesbians coming to stay at a resort. This, it was reported in the Government owned newspaper ‘sent shock waves in (sic) Port Vila – not because it is unusual but because it’s threatening local culture and [is] an embarrassment to the pride of Christianity in the country.’[26] Soon after an incident of domestic violence between two lesbians gave the Vanuatu National Council of Chiefs a further opportunity to comment on the place of homosexuality in relation to Vanuatu’s culture:
According to Chief Mariasua [chairman of the Malvatumauri] homosexuality is something foreign. “Custom chiefs hate this kind of relationship and don’t want it to grow... If a woman wants to marry, marry a man. This system of woman to woman, man to man, is against the creation of God.” [27]
Just as homosexuality is perceived as a foreign force that is threatening local ways, so too is HIV. Media reporting in the Pacific islands, which was one of the earliest information sources, tended to stress the foreignness of the disease.[28] The Cook Islands tourist bureau went as far as to advertise the country to international markets as ‘AIDS FREE’[29], and arrivals at the airport were greeted with large billboards exhorting them to ‘keep “Paradise AIDS Free”’.[30] Some immigration laws and policies aim at excluding PLWHA.[31] Generally low numbers of identified cases makes it easy for people within the Pacific islands to maintain that HIV is not something that affects them.[32]
The dynamic between both society and State law and society and HIV has some interesting parallels. Both State law and HIV are positioned on the outside of local culture. They are essentially foreign. Both are seen as potential threats to local ways; law because it has coercive power and HIV because responses challenge local concepts of morality. Using a viral analogy the organisms of custom and Christianity, which form the basis of constructions of local culture, align themselves into a relationship of symbiosis in order to fight off the foreign, modern threats.[33]
It is unsurprising, then, that there have not been moves by domestic law makers in the Pacific Islands to act on external best practice standards relating to HIV. These best practice standards do not express themselves in terms of cultural continuity. As foreign notions they also lack authority. It is also intended that the best practice standards operate through the means of State law, which itself lacks continuity. Failures to meet Evans’ first two conditions therefore occur on two different levels.
CONCLUSION: A FRAMEWORK FOR LEGAL CHANGE?
There are, then, numerous challenges for bodies that want to implement international best practice standards through the use of State law in the Pacific Islands region. These centre on the notion that external best practice standards lack authority due to their apparent lack of cultural continuity, and that this lack of authority is reinforced by a general distrust of potentially neo-colonial use of the law. It is not enough that best practice manuals are presented to law makers. Indeed, this may be counterproductive, creating a neo-colonial backlash. Instead reasons for adopting a human rights type of approach, which are clearly based on evidence which shows that it is the most effective way of containing the HIV epidemic, and not simply on ideological statements about the importance of human rights, must be presented. Best practices must also be repositioned as being within, or related to, traditional society, rather than being seen as an external force. The relationship between evidence based best practice and cultural norms must also be addressed before presenting best practice standards. As cultural norms vary, this means that a single international document is of limited use. Instead, sub regional or country documents must be prepared by proponents of international best practice standards. I would also suggest that the very notion of “best practice standards” is somewhat overbearing. In order to make the law autochthonous issues rather than specific reform options should be presented law makers. By doing this the law reform process carries out an educative function. It also ensures that people select and develop their own law reform options. Becoming dogmatic about human rights approaches to HIV to the extent that law makers’ choices are removed is counter to the very concept of human rights. Instead, arguments to persuade law makers to make sound choices must be used.
These measures will help to ensure that the law makers buy in to legislative reform and HIV. Domestic legislators must then remember that there are limits on effective legal action, and that simply passing a law will not automatically change practices, values and norms in society. The challenges that proponents of international standards face in getting Pacific Island law makers to accept the standards will also be faced by those same law makers in trying to get individual subjects of the law to accept the standards contained in domestic laws. Further, practicality must be remembered at all times. There are resource constraints on implementing and enforcement agencies. Measures for self enforcement through use of the formal legal system may not be realistic. There is a need to think creatively about legislative solutions. Integrating traditional authority systems into legislation is an obvious area in which imaginative solutions may be found. A regional human rights monitoring and/or complaints body is another more imaginative solution.
Further, law makers will need to consider the extent to which law can realistically control certain behaviours must be considered. To create a supportive social environment for people with HIV involves attitude changes. When these attitude changes are reflected in overt behaviour this behaviour may be controllable. However, alienation because of HIV status does not only arise because of overt discrimination. More insidious are the reactions of peers. When friends and family no longer come to visit or invite or invite a person to visit because of his or her HIV status, when people gossip about what bad things a person must have done in order to become infected, or when a person’s children are no longer welcome to play with others because of his or her HIV status then there is no supportive social environment. These things stems from internal attitudes. Legislation cannot control attitudes. Nor can it prohibit the behaviour of “unfriendliness”.
Legislation, then, cannot shoulder the burden of changing the social
environment on its own. Instead many different types of responses to HIV are
required. Given the existing difficulties with the acceptance of State law as an
authoritative rule making body, immediately workable anti-discrimination
laws may not even be an urgent priority in national HIV plans in the Pacific
Islands region. Instead, their main value at this point may be symbolic
statements, and the main reason for aiming for legislative change may be to work
with leaders to ensure that there is a buy in to the HIV and human rights agenda
that goes beyond mere statements to actual legislative
commitment.
[*] Lecturer in law, University of the South Pacific. This
article has been developed from a poster presented at the 14th International
AIDS Conference in Barcelona. The conclusion is largely based upon discussions
held the UN Meeting of International Experts on HIV and Human Rights in the Asia
and Pacific Region, held in Bangkok in 2004.
[1] This point, and its relevance for the Pacific Islands, is clearly explained in the UN report Time to Act: The Pacific Response to HIV and AIDS (1996).
[2] It should be noted that this experience is primarily anecdotal. Increasingly ‘the lack of evidence and documentation (whether epidemiological, social or legal) of the value of integrating human rights in the response to HIV/AIDS is increasingly proving to be an obstacle in ensuring the integration of human rights in governmental and UN HIV/AIDS efforts.’ (Public Report First Meeting of the UNAIDS Global Reference Group on HIV/AIDS and Human Rights (2003) at p 6)
[3] UNAIDS programming links together law, ethics and human rights and this linkage informs approaches to thinking about the place of law in most places. See www.unaids.org (Accessed 12/7/04)
[4] South Pacific Commission The Regional Strategy for the Prevention and Control of STD/AIDS in Pacific Island Countries and Territories (1997) at p 34. At the time of writing the second regional strategy is being developed. This includes similar statements about the place of legal reform.
[5] Above n 4 at p 35.
[6] UNAIDS/IPU, Handbook for Legislators on HIV/AIDS, Law and Human Rights (1999).
[7] In Tonga the Public Health (Amendment) Act 1989 included HIV/AIDS in the list of contagious diseases contained in the Public Health Act [Cap 74]. The Public Health Act [Cap 74] was subsequently repealed by the Public Health Act 1992, although the 1992 Act retained the approach of including HIV/AIDS in the schedule of notifiable diseases. In Samoa a similar amendment was made in 1987/88. Time To Act above, n 1, at p 74.
[8] Order 10 of 1995 and 27 of 1995 commenced only some parts of the Act. The substantive provisions that are in force relate to vessels, baby feed, smoking and the use of seat belts.
[9] Public health laws on notifiable diseases are aimed at ‘identifying individuals infected with an infectious agent, tracking diseases through extensive surveillance and data collection, isolating and quarantining infected individuals that pose immediate hazard of contagion to others, and discovering and notifying possibly exposed persons to seek diagnosis and treatment.’ Roger Doughty, ‘The Confidentiality Of HIV/AIDS-Related Information: Responding to the Resurgence of Aggressive Public Health Interventions in the Aids Epidemic’ (1994) California Law Review 111, 118.
[10] Sections 12(1) & (2); 24(b);15(1); 25(2); and 48 respectively.
[11] National AIDS Council of Papua New Guinea, Review of Policy and Legislative Reform relating to HIV/AIDS in Papua New Guinea (2001) iv.
[12] Roscoe Pound (1917) “The Limits of Effective Legal Action” (1917) 27 International Journal of Ethics 150, 151.
[13] Above n 12.
[14] William Graham Sumner, quoted in William M. Evan ‘Law as an Instrument of Social Change’ in Gouldner & Miller (eds) Applied Sociology (1965) 554, 555.
[15] Above, n 12 at 167.
[16] Above n 14.
[17] Above n 15 at 560 – 561.
[18] These issues, whilst well known long standing problems, have not been documented except at the anecdotal level. A good place to begin with discussion of problems with the State legal systems in the Pacific islands region is Guy Powles, ‘Law, Courts and Legal Services in Pacific Societies’ in Guy Powles and Mere Pulea (eds) Pacific Courts and Legal Systems (1988). In this chapter Powles considers six minimum standards that legal systems should display; they should be responsive, understood, fair, effective, appropriate and available. The discussion on how to make Pacific Island legal systems display all of these features remains current.
[19] See Laurence Cordonnery ‘Environmental Law Issues in the South Pacific and the Quest for Sustainable Development and Good Governance’ in Anita Jowitt and Tess Newton Cain (Eds) Passage of Change: Law, society and governance in the Pacific (2003) 242 – 243.
[20] See, for example, Michael Ntumy, ‘Dreams of a Melanesian Jurisprudence’ in Jonathon Aleck and Jackson Rannells (eds) Custom at the Crossroads (1995).
[21] Perhaps the most striking recent example of this sort of discourse in late 2002, when Vanuatu’s then Deputy Prime Minister Serge Vohor made statements on the Australian SBS Dateline television programme that Australia, through its Australian Federal Police presence in Vanuatu, have been spying on local politicians and tapping telephones. (SBS Dateline 10 October 2002 http://www.sbs.com.au/dateline/index.php3?daysum=2002-10-02# ) Another example came following the jailing of Vanuatu’s former Prime Minister Barak Sope for forgery .Immediately following Sope’s jailing there were calls for his pardoning and threats of protests. These were on the grounds that the trial was an example of neo-colonialism, and that Sope had been victimised by Australian and New Zealand powers. See, ie ‘Protests Over Jailing of Former Vanuatu PM Sope’ Pacific Islands Report 24 July 2004; ‘New Zealand Rejects Allegations of Interference in Vanuatu’s Internal Affairs’ Pacific Islands Report 25 July 2004; ‘Vanuatu Opposition Leader Jimmy Urges Sope Supporters not to Break the Law’ Pacific Islands Report 30 July 2004.
[22] The matter of injecting drug use is hardly raised in talk about HIV in the Pacific.
[23] Ati George Sokomanu, ‘Guest Editorial’ (1995) 2(2) Pacific Health Dialog 4, 5.
[24] See, ie, Sitiveni Vte, ‘Sex and AIDS: myths that kill’ (1995) 2(2) Pacific Health Dialog 132. In his dissection of this myth he notes that men talk with men about sex and women talk with women. However, talking about sex with both genders present, or where family members are present, can breach cultural barriers. As much HIV related education at school and in the media does allow for sex segregation it can be culturally inappropriate. This, in turn leads to a generally “anti-culture” backlash.
[25] Tracey McIntosh, ‘Homosexuality in the Pacific’ (1999) http://www.vanuatu.usp.ac.fj/sol%5Fadobe%5Fdocuments/usp%20only/pacific%20general/mcintosh.htm
[26] “The Tourist Dollar That’s Being Questioned” Vanuatu Weekly Hebdominaire 22/8/98.
[27] Reported in “We Respect their Rights but we Don’t Encourage it” Trading Post Issue 386 3/10/98.
[28] Trevor Cullen, ‘Press Coverage of Hiv/Aids in the South Pacific: Why is it just another routine health story?’ Pacific Island Report. See also Christine Stewart in this edition of the Journal of South Pacific law.
[29] Nati Tamarua Hermann and Tingika Elikana, ‘HIV/AIDS in the Cook Islands’ (1995) 2(2) Pacific Health Dialog 54, 55.
[30] Ibid.
[31] Steven Vete refers to this as the denial syndrome. See above n 24.
[32] Deusche AIDS Hilfe maintains a quick reference guide to travel restrictions based on HIV status. This guide indicates that, whilst Fiji is the only country that bars entry for all PLWHA, even tourists, a number of other Pacific island countries bar longer term entry for PLWHA. http://www.aidshilfe.de / (Accessed 12 July 2004)
[33] The question of which is the symbiont of the other, or who is the dominant partner in the relationship, is unclear. Although the immediate answer seems to be Christianity, because it seems to have affected custom more than custom has affected the juggernaut of Christianity, Christianity was not, and could not have been, the central motif for the creation of the nation of Vanuatu. Central aspects of kastom such as “the worshipping of false idols” certainly have remained despite the influence of Christianity, lending support to the idea of a cultural symbiosis wherein each partner adapts its “fringe” principles to ensure that its central aspects are continued.