Creating a Framework for HIV/AIDS Related Legal Reform in the South Pacific (Article) [2004] JSPL 11; (2004) 8(1) Journal of South Pacific Law

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 in The 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]