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The Transnational Legal Process of Global Health Jurisprudence: HIV and the Law in Indonesia

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The Transnational Legal Process of Global Health Jurisprudence: HIV and the Law in Indonesia The Transnational Legal Process of Global Health Jurisprudence: HIV and the Law in Indonesia Siradj Okta A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy University of Washington 2020 Reading Committee: Walter J. Walsh, Chair Rachel A. Cichowski Dongsheng Zang Aaron Katz Program Authorized to Offer Degree: Law © Copyright 2020 Siradj Okta University of Washington Abstract The Transnational Legal Process of Global Health Jurisprudence: HIV and the Law in Indonesia Siradj Okta Chair of the Supervisory Committee: Walter J. Walsh School of Law As one of the most pressing global health priorities, HIV disruption requires effective transnational work. There is growing confidence among experts about ending AIDS by 2030. In Indonesia, a country with one of Asia’s fastest-growing HIV epidemics, the law is instrumental to achieve that goal. Nonetheless, national laws and policies that undermine HIV prevention are continuously being adopted or preserved. This suggests that the presence of global health jurisprudence does not necessarily lead to national legal processes to enable HIV prevention policies. This situation raises the central question of whether the perpetuation of national legal barriers to HIV prevention is associated with Indonesia’s internalization of global health jurisprudence. This study uses Professor Harold Koh’s transnational legal process theory to examine the transfer of global health jurisprudence by looking at Indonesia’s interaction at the global level, interpretation of norms, and domestic internalization thereof. As a multi-method study with an inductive reasoning approach, this research utilizes a qualitative data analysis of international organizations’ laws and policies, public/private institutions’ policies, international treaties, Indonesian laws, and relevant public records. The study explores both the spatial and temporal development of global health jurisprudence throughout the HIV epidemic in Indonesia. At the national level, the study examines the laws and policies that are significant to HIV prevention and discusses the legal processes by taking the identified norms on global HIV prevention into account. After decades of Indonesia’s participation in the global HIV response, this dissertation discusses a legal barrier that is prevalent across twenty-three out of thirty-four provinces in the country: HIV criminalization. Knowing that HIV criminalization is a legal impediment to a mainstream HIV reduction and eradication program, this dissertation concludes that the country’s internalization is rather deficient. Acknowledgement I would like to thank all the committee members at the University of Washington: Professor Walter Walsh, Professor Dongsheng Zang, Professor Aaron Katz, and Professor Rachel Cichowski. I also would like to thank for all their institutional support: Atma Jaya Catholic University School of Law, the Fulbright Program, Spiritia Foundation, the American- Indonesian Cultural and Educational Foundation (AICEF), the Thomas and Mary Gething Family, and the University of Washington School of Law. Thank you for your generous feedback and support back then when I was trying to get a Ph.D. program admission: Professor Martin Moerings (Leiden University), Professor Adriaan Bedner (Leiden University), Professor Matthew Weait (University of Hertfordshire), Professor Peter Rush (University of Melbourne), Professor Beth Rivin (University of Washington), and Professor Aziza Ahmed (Northeastern University). Thank you for your endless love and prayers during the completion of this dissertation: Eva Luthfiana Farisa Maryam, Akira Syarqiza Qalbinur, Skylar Al Anbiya, Meisny Arif, Fadlan Fadlil, Fatimah Isa, Barnas Isa, Janofa Pasha, Kartin, Sadiah Calista, Gangga, Farieq Rahmat Shah, Sidharta Ariel Syah, Mima, and Sauqi. Thank you for your camaraderie: Prisca Rumokoy, Njood Bafarat, Chianaraekpere Ike, Aristo Pangaribuan, Choky Ramadhan, Arfian Setiaji, Dimas Iqbal Romadhon, Daniel Hutabarat, Lysandra Medal, Ulil Amri, and all my other Seattle fellows. I wish you all the best. 1 Dedication This dissertation is dedicated in loving memory to my beloved sister, Suzana Murni (1972-2002). Thank you for your teaching me that it’s not the label, it’s how you wear it. Table of Contents Table of Contents ............................................................................................................................. i List of Abbreviations ..................................................................................................................... iv List of Tables, Charts, and Images ............................................................................................... viii 1 Introduction ............................................................................................................................. 1 1.1. Problem Statement and Research Question .................................................................... 1 1.2. Theoretical Framework ................................................................................................... 4 1.3. Research Methods ........................................................................................................... 5 1.4. Significance of the Study .............................................................................................. 10 2. Placing Transnational Legal Process in the Global Health Jurisprudence Context .............. 11 2.1. Introduction ................................................................................................................... 11 2.2. The Emergence of Transnational Legal Process Theory .............................................. 11 2.3. Practices of Transnational Legal Process ..................................................................... 22 2.4. Transnational Legal Process in the Emergence of Global Health Jurisprudence ......... 27 2.5. The Uncharted Area of HIV and the Law in Indonesia ................................................ 53 2.6. Understanding the Landscape: The Indonesian Legal System ..................................... 57 i 2.7. Conclusion .................................................................................................................... 61 3. The Transnational Legal Process of Global HIV Norms in the Indonesian Context ................ 63 3.1. Introduction ................................................................................................................... 63 3.2. Macro-Historical Examination ...................................................................................... 63 3.2.1. Timeline .................................................................................................................... 84 3.2.2. HIVLaw.ID ............................................................................................................... 89 3.3. In-Depth Historical Examination .................................................................................. 95 3.3.1. Period of 2001–2005 ................................................................................................. 95 3.3.2. Period of 2006–2017 ............................................................................................... 129 3.4. Conclusion .................................................................................................................. 147 4. Tracing and Prospecting Transnational Legal Process ........................................................... 150 4.1. Introduction ................................................................................................................. 150 4.2. The Global Market of HIV Norms .............................................................................. 151 4.3. Norms Reverse Tracing .............................................................................................. 160 4.4. Probing HIV Criminalization as a Legal Barrier ........................................................ 169 4.5. Locating Internalization Blind Spots .......................................................................... 183 4.6. Justifying a Judicial Review of Transnational Character ........................................... 203 4.7. Conclusion .................................................................................................................. 209 5. Conclusion .............................................................................................................................. 211 5.1. Principal Conclusions ................................................................................................. 211 ii 5.2. Recommendations ....................................................................................................... 215 Bibliography ............................................................................................................................... 218 Appendix ..................................................................................................................................... 242 iii List of Abbreviations ACLU American Civil Liberties Union AIDS Acquired Immune Deficiency Syndrome ALTERLAW Alternative Law Research and Development Center APPGA All-Party Parliamentary Group on AIDS ARV Antiretroviral Drugs ART Antiretroviral Therapy APCASO Asia Pacific Council of AIDS Service Organisations APN+ Asia Pacific Network of People Living with HIV/AIDS ASAP Aids Society in Asia Pacific AusAID Australian Aid Agency AWARE Action for West Africa
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