艾滋病立法与国际人权保障

国际社会已经达成共识,认为有效地控制艾滋病与人权保障之间存在着密切关系,而法律则是实现防治艾滋病的一个重要手段。因此,现实和未来都要求各国通过以保障人权为核心的相关立法,充分保护艾滋病病人和艾滋病病毒感染者的各项基本权利,切实调动社会各方面的积极因素来战胜艾滋病,最终维护人类的共同利益,实现社会的可持续发展。对此,在国际人权法的框架下,结合艾滋病的流行特点,国际社会和许多国家近年来制订了不少准则和法律,以阻止艾滋病的进一步传播。     

Sacred Deviance and AIDS in a North American Buddhist Community*

This essay presents a community AIDS narrative concerning an alleged case of intentional HIV transmission between spiritual teacher and student. Analysis focuses on the relation between legal and popular representation of criminal intent, the denial of AIDS risk, and the neighborhood of belief. In this framework, alternative application of traditional criminal law and HIV-specific penal statutes are considered as both prosecution strategies and opportunities for public spectacle.     

Measuring legal implementation of the international guidelines on HIV/AIDS and human rights

With over 36 million people now living with the virus and over 21 million people dying of AIDS in the last two decades, HIV/AIDS is a global health and security problem. These shocking figures eclipse the human toll of many wars, and reveal in themselves that human rights are not being respected, protected, or fulfilled, either through negligent omissions or violations. A human rights approach to the epidemic was advocated early by advocates such as Jonathan Mann, who recognized that infections thrived in conditions of inequality. This approach was crystallized in the International Guidelines on HIV/AIDS and Human Rights that were developed at the Second International Consultation in 1996 convened by UNAIDS and the Office of the High Commissioner for Human Rights. The Guidelines cover three main areas: improving governmental responses in terms of multisectoral responsibility and accountability; widespread law reform and legal support services; and supporting increased private sector and community participation in effective responses to the epidemic. This article focuses on the half of the twelve Guidelines that concern rights that are justiciable and amenable to law reform. It highlights the responsibilities of States Parties to human rights treaties, as they bear the principal burden of the obligations to implement.     

HIV/AIDS legal issues in the United States

The HIV/AIDS epidemic continues to be a leading public health issue in the United States. During the past decade, the epidemic has shifted away from the gay community, although gay and bisexual men continue to be the largest single HIV exposure category. Now, HIV increasingly affects low-income people of colour in urban areas, as well as women. As AIDS becomes more and more a minority, inner-city disease, public focus on the epidemic as a significant social and political issue is waning. While a full survey of current issues in US law is beyond the scope of this article, the focus here is on current issues that are highly relevant to the direction the epidemic appears to be taking.     

Establishing safe injection facilities in Canada: legal and ethical issues

In the face of an ongoing and escalating health crisis among injection drug users in Canada, calls are coming from many quarters to initiate safe injection facilities as a way to reduce overdoses, the spread of bloodborne diseases, and other health and community problems associated with injection drug use. This article summarizes a paper on safe injection facilities released in early 2002 by the Canadian HIV/AIDS Legal Network. The paper contributes to the policy discussion in Canada and sets out why and how the law should support the introduction of safe injection facilities.     

HIV-related stigma and discrimination--the epidemic continues

This article is one of a series commissioned to mark the tenth anniversary of the Canadian HIV/AIDS Legal Network, discussing past developments and future directions in areas of policy and law related to HIV/AIDS. It looks at HIV-related stigma and discrimination. The article summarizes the present situation as described in reports from numerous countries throughout the world. It reviews the institutional, non-institutional, and structural dimensions of HIV-related discrimination. It also identifies some essential components of anti-discrimination efforts: legal protection; public, workplace, and health-care programs; community mobilization; and strategizing on the determinants of health.     

二元化社会中的法律对公共卫生的消极影响——以艾滋病现象为例

在公共卫生的推进尤其在艾滋病防治中,法律的积极作用是显而易见的,但是其消极影响常为人们所忽视。一方面,法律作为一种桥梁或机制,将社会地位的不平等转化为健康的不平等,使艾滋病成为社会弱势群体的疾病;另一方面法律作为社会因素的一员,它通过社会等级和政治过程的制度形态体现出来,使健康的不平等制度化;在一个二元化社会中,由于艾滋病病人话语权的缺失,这个群体处于十分不利的法律语境之中。     

Legal rights and communicable disease: AIDS, the police power, and individual liberty

The policy debate over AIDS has focused on how to balance the rights of individuals who have the disease against the rights of the public. This paper examines the nature of both sets of rights by analyzing the development of public health law and its dominant visions today. The article argues that while once public health rights implied a vast reserve of community authority and obligation to prevent illness, today the rights of the public and those of individuals are seen as being in opposition. Public health jurisprudence now presupposes that illness is primarily a matter of individual concern. In this view, the science of medicine mediates the relationship between the individual and the public. This understanding of rights protects some of the interests of infected individuals, but is inadequate for addressing many of the major problems raised by the AIDS epidemic, particularly the spread of infection among the uninfected.     

AIDS Audit – HIV and Human Rights: An Australian Pilot

This article explores the Australian pilot of a human rights audit using ten indicators in the specific area of HIV/AIDS. The new methodology has three main roles: a monitoring device to measure human rights protection in a jurisdiction's legal system against international standards; an intervention to raise local dialogue and consciousness of rights-based legislation; and an advocacy tool to stimulate law reform. It uses a tripartite process balancing independent experts, government, and community representatives. This approach attempts to overcome some of the democratic deficits identified by Power's hypothesis on the explosion of regulatory audits (1997).     

论乌干达防治艾滋病社区支持模式的社会法律制度

乌干达曾经是艾滋病肆虐最严重的非洲国家,但乌干达政府自1986年开始实施了大规模的防治艾滋病行动,建立适应乌干达国情的防控艾滋病工作体系。乌干达防治艾滋病社区支持模式始于1987年的坎旺卡社区支持活动,并迅速在全国推广,形成了政府干预和指导的法律机制、医疗和物资支持制度、非歧视的社区关爱机制、宗教团体等非政府组织参与机制等基本制度。通过加强立法,完善对社区支持模式的法律规范、充分利用社会资源、加强社区服务的技术指导和对艾滋病孤儿的援助等措施使该项制度不断完善。     

Using rights and the law to reduce women's vulnerability to HIV

Cathi Albertyn's paper, an edited and updated version of her presentation at "Putting Third First," argues that both human rights and the law can play an important, if limited, role within a wider set of national and international strategies to reduce women's vulnerability to HIV. It analyzes the nature of women's vulnerability to HIV/AIDS, and highlights some of the issues and lessons in using rights and the law to advance gender equality and reduce women's vulnerability to HIV/AIDS.     

HIV/AIDS and legal developments in Germany

Case law has helped to define the legal environment for people infected and affected by HIV/AIDS in Germany. This article describes court decisions in three areas that may be of interest to Canadian readers: criminal law, confidentiality, and the use of illegal drugs to control pain. It also describes the situation of refugees with HIV/AIDS.     

Chinese scholars call for AIDS rules based on respect for individual rights

In June 2002, the UN Theme Group on HIV/AIDS in China published a comprehensive situation analysis and needs assessment of the HIV/AIDS epidemic in the People's Republic of China (PRC). The report, entitled "HIV/AIDS: China's Titanic Peril", also describes and analyzes current HIV/AIDS legislation and policies. It notes that "laws and regulations that are based on fear and prejudice have contributed to fuelling the epidemic instead of curbing it." The report observes that the targets and goals established in China's five-year Plan of Action (2001-2005) are not consistent with the commitments endorsed in June 2001 at the United Nations General Assembly Special Session on HIV/AIDS. It states that the Plan "continues to present HIV/AIDS as a medical problem, and fails to understand the epidemic as a broader development issue." Even where laws could assist, enforcement remains a huge challenge. For example, in 1998 the National People's Congress passed a law prohibiting commercial blood donations for medical purposes. Nonetheless, the illicit and unregulated blood trade, which has rapidly accelerated the spread of HIV infection in China, has continued. When the alarm was sounded by Dr. Wan Yanhai, coordinator of the AIZHI (AIDS) Action Project, the government response was to arrest him. In the following article, Nick Young, editor of China Development Brief, reviews the findings of three studies commissioned by the United Nations Development Programme (UNDP) on the role of the law in response to HIV/AIDS.     

Criminalizing Health-Related Behaviors Dangerous to Others? Disease Transmission, Transmission-Facilitation, and the Importance of Trust

Statutes criminalizing behavior that risks transmission of HIV/AIDS exemplify use of the criminal law against individuals who are victims of infectious disease. These statutes, despite their frequency, are misguided in terms of the goals of the criminal law and the public health aim of reducing overall burdens of disease, for at least three important reasons. First, they identify individual offenders for punishment, a paradigm that is misplaced in the most typical contexts of transmission of infectious disease and even for HIV/AIDS, despite claims of AIDS exceptionalism. Second, although there are examples of individuals who transmit infectious disease in a manner that fits the criminal law paradigm of identification of individual offenders for deterrence or retribution, these examples are limited and can be accommodated by existing criminal laws not devoted specifically to infectious disease. Third, and most importantly, the current criminal laws regarding HIV/AIDS, like many other criminal laws applied to infectious disease transmission, have been misguided in focusing on punishment of the diseased individual as a wrongful transmitter. Instead of individual offenders, activities that enhance the scale of disease transmission—behaviors that might be characterized as ‘transmission facilitation’—are a more appropriate target for the criminal law. Examples are trafficking in human beings (including sex trafficking, organ trafficking, and labor trafficking), suppression of information about the emergence of infection in circumstances in which there is a legally established obligation to disclose, and intentional or reckless activities to discourage disease treatment or prevention. Difficulties remain with justifications for criminalizing even these behaviors, however, most importantly the need for trust in reducing overall burdens of disease, problems in identifying individual responsible offenders, and potential misalignment between static criminal law and the changing nature of infectious disease.     

Self-Defeating Civic Republicanism*

Abstract
The author discusses the recent attempt by constitutional theorists to develop a theory about the empowerment of political community through law. Having outlined the civic republican position, he then examines Ackerman's example of the difference between marriage and love, as an analogy for law and politics, or in republican terminology, "constitutional" and "ordinary" politics respectively. These oppositions are set up around the purchase they offer to the question of community. In turning Ackerman's example against him, his objective is to show that the language of law inhibits rather than facilitates the quest for community.     

Law and Violence in Richard Wright's ‘Native Son’

This paper seeks to intervene in the continuing debate around violence as a function of law and violence as a condition of justice. It examines a key literary work of the American civil rights movement as an instance of the establishment of an ethical community anchored by the literary text, and argues that, within such a community, the literary text is the counter-violence to which the law can yield. This revised version was published online in July 2006 with corrections to the Cover Date.     

作为社会共同体建构技术的法律修辞

法律不是一种纯粹客观的物质性力量,其对社会治理的参与,需要借助于社会共同体所分享的共识发挥作用。就此而言,法律可被理解为一种想象的力量。法律作为社会共同体的想象而获得力量,同时也通过生产想象而作用于社会共同体的建构,在实践中表现出建构社会共同体的技术。法律修辞通过将话语组织起来的方式,在社会中生产关于法律的想象共识,从而成为一种社会共同体的建构技术。法律修辞既能通过叙事来指引关于共同生活经验的想象,以历史和现实中所分享的共同经验形成认同,从而建构社会共同体;又能通过论证来指引关于共同价值观念的想象,使彼此激烈冲突的不同价值观借助修辞的软化而达成某种程度的共识,并通过关于价值判断的认同建构社会共同体。法律修辞的这些特点,使之在形成共识时所达成的更多是相对共识而非绝对共识,表现出模糊的特征,从而达成不完全理论化合意来回应现代社会中价值判断的多元分歧,更有利于社会共同体的建构。     

AIDS: the first decade.

AIDS has had a profound effect on society and the workplace and has raised legal and social problems for which society was not prepared. This article will chronicle the evolution of federal, state and local law concerning AIDS and the workplace. Although there are some clear-cut answers and guidelines that address the relationship of employer and employee to the AIDS epidemic, current legislation and enforcement of those laws does not adequately address the AIDS victim as a handicapped individual. Emphasis is also placed on the problems peculiar to the health care industry, the constitutionality of present legislation, and the AIDS victim's right to privacy versus the employer's need to know. Finally, some practical solutions and guidelines will be presented that will help the employer deal with the AIDS victim and his or her co-worker.     

WTO体制下艾滋病药物强制许可的合法性探析--兼论我国艾滋病药物强制许可的启动

随着艾滋病在世界的不断蔓延 ,一些发展中国家纷纷启动艾滋病药物的强制许可 ;而一些西方国家及医药公司则反对艾滋病药物的强制许可 ,认为其是非法的。本文以WTO为视野 ,从国际法的角度论证了艾滋病药物强制许可的合法性 ,并提出了艾滋病药物强制许可对我国的借鉴意义     

Thinking like a lawyer/acting like a professional: communities of practice as a means of challenging orthodox legal education

Increasingly, there is pressure upon law schools, in Australia and elsewhere, to impress upon students the significance of the ethical and professional obligations of legal practice. The recent Carnegie Report explicitly looked to law schools “to initiate novice practitioners to think, to perform, and to conduct themselves (that is, to act morally and ethically) like professionals”. Many law students, however, have little appreciation of legal ethics and any concept they may have of professionalism tends to be envisaged as applying only after graduation. In this paper, we explore the idea of a “community of practice”. Lave and Wenger, who coined the phrase, contend that “learning is conceived as a trajectory in which learners move from legitimate peripheral participant to core participant of the community of practice”. We will argue that law students should appreciate that they are entering the legal profession's community of practice and that all aspects of their conduct relevant to professionalism – not only academic integrity, but matters such as time management, teamwork, relationships with peers and staff – relate to this transition into a legal professional community. Such an approach may not only serve to impress upon students the significance of “professionalism” and ethics, but inculcate in them a sense of belonging to a professional community.