RE: Human rights violation Involving the British Virgin Islands

The Magnus Hirschfeld Center for Human Rights is an internationally-based, non-governmental organization founded in 1986, and engaged in advocacy on behalf of and providing legal representation for individuals and groups of individuals whose human and civil rights under international law appear to have been violated by governments or agencies of governments.

The Center’s mandate places special emphasis on defending the human and civil rights of gay, lesbian, bisexual and transgendered persons, their communities and their communities’ organizations.

It is in connection with what appears to be such a breach that I am writing to you, Your Excellency, as the chief representative of the United Kingdom’s government in this country. It is my and the Hirschfeld Centre’s respectful request that you convey this communication to the responsible officers of that government in as expeditious a manner as possible.

While the British Virgin Islands exercises internal self-government under the terms of its constitution (Statutory Instrument no. 2145 of 1976, as embodied in the Virgin Islands Constitution Order of 15 December 1976) , the United Kingdom (whose dependent territory it is) is responsible for the territory’s adherence to and execution of its obligations under international law (as well as under section 71 of the Virgin Islands Constitution). In her statement made to the June 25^th, 2001 Special United Nations General Assembly on AIDS (UNGASS), the United Kingdom’s Secretary of State for International Development stated that “If we (the governments of the world) fail to work together to remove the denial, the stigmatization , and the discrimination that exist (against HIV/AIDS victims) we will fail to halt the spread of the infection. Open and honest debate and the sharing of knowledge and information is essential if we are to make progress in tackling HIV/AIDS.”

In terms of the obligations of the United Kingdom to effectuate pertinent international agreements in its dependent territories, I would like to call Your Excellency’s government’s attention to the Declaration of Commitment on HIV/AIDS affirmed by the twenty-sixth special session of the General Assembly on June 25-27, 2001, which takes note that, inter alia:

13. ... stigma, silence, discrimination, and denial, as well as lack of confidentiality, undermine prevention, care and treatment efforts and increase the impact of the epidemic on individuals, families, communities and nations and must also be addressed;

15. ... access to medication in the context of pandemics such as HIV/AIDS is one of the fundamental elements to achieve progressively the full realization of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health;

16. Full realization of human rights and fundamental freedoms for all is an essential element in a global response to the HIV/AIDS pandemic, including in the areas of prevention, care, support and treatment, and that it reduces vulnerability to HIV/AIDS and prevents stigma and related discrimination against people living with or at risk of HIV/AIDS;

and which in its substance provides that governments will, inter alia:

37. By 2003, ensure the development and implementation of multisectoral national strategies and financing plans for combating HIV/AIDS that: address the epidemic in forthright terms; confront stigma, silence and denial; address gender and age-based dimensions of the epidemic; eliminate discrimination and marginalization; involve partnerships with civil society and the business sector and the full participation of people living with HIV/AIDS, those in vulnerable groups and people mostly at risk, particularly women and young people; are resourced to the extent possible from national budgets without excluding other sources, inter alia international cooperation; fully promote and protect all human rights and fundamental freedoms, including the right to the highest attainable standard of physical and mental health; integrate a gender perspective; and address risk, vulnerability, prevention, care, treatment and support and reduction of the impact of the epidemic; and strengthen health, education and legal system capacity;

and, further, noting that “Realization of human rights and fundamental freedoms for all is essential to reduce vulnerability to HIV/AIDS Respect for the rights of people living with HIV/AIDS drives an effective response” the Declaration of Commitment provides:

58. By 2003, enact, strengthen or enforce as appropriate legislation, regulations and other measures to eliminate all forms of discrimination against, and to ensure the full enjoyment of all human rights and fundamental freedoms by people living with HIV/AIDS and members of vulnerable groups; in particular to ensure their access to, inter alia education, inheritance, employment, health care, social and health services, prevention, support, treatment, information and legal protection, while respecting their privacy and confidentiality; and develop strategies to combat stigma and social exclusion connected with the epidemic;

69. By 2003, develop a national legal and policy framework that protects in the workplace the rights and dignity of persons living with and affected by HIV/AIDS and those at the greatest risk of HIV/AIDS in consultation with representatives of employers and workers, taking account of established international guidelines on HIV/AIDS in the workplace;

and concludes with the undertaking that States Parties will:

By 2003, establish or strengthen effective monitoring systems, where appropriate, for the promotion and protection of human rights of people living with HIV/AIDS;

It is estimated by the United Nations statistical office that, in the Caribbean region alone, in excess of 400,000 persons are HIV positive. Of these, approximately 80,000 are in urgent need of retroviral therapy as well as other treatment that only a very few of that number can afford.

In this instance (and it is likely that a great many others exist) the actions of the Government of the British Virgin Islands has contributed to the lethal character of this disease by denying its protection to those of its citizens affected thereby.

The purpose of this correspondence is twofold: firstly, to request that the territorial executive and legislature immediately take all steps necessary to legally and administratively put an end to employment discrimination (inter alia) on the basis of AIDS/HIV status in the British Virgin Islands. This letter further requests the cooperation of the territory’s cultural, educational and religious leadership as well as its citizenry in ending such discrimination. Additionally, it is requested that Mr. Purnell Christian – who is the subject of this communication - be immediately reinstated in his employmeent and any negative economic impact or other injury or inconvenience he has been subjected to as a consequence of his termination from the territory’s public service be remedied by the government. Further, in the event that pension fund proceeds hereinafter described have been taken from him, it is requested that they be immediately restored.

The second purpose of this correspondence is to call to the attention of the territory’s government it’s obligation to bring domestic legislation current with the obligations borne on its behalf by the United Kingdom under international law, specifically under such treaties as (among others) the European Convention on Human Rights and Fundamental Freedoms (with specific reference to Article XIV) and the International Covenant on Civil and Political Rights, (with specific reference to Articles 2(1), 2(3: 1,2), and 26), as well as the International Covenant on Economic and Social Rights, to which the United Kingdom is subject to and a signatory on the British Virgin Islands’ behalf, as well as under the local laws of the territory (with specific reference to sections 51 and 53 of the Virgin Islands Constitution Order of 15 December 1976). An additional aspect of this correspondence’s second purpose is to call to the attention of the government of the United Kingdom its own obligations under international treaty law, one of which is to ensure that its dependent territories’ legislation conforms with international legal standards, or in the event of a lack of such conformity, to legislate on its territories’ behalf.

Failing such legislation, and compounding its territory’s failure to legislate appropriately, the government of the United Kingdom could be called upon to account for its acts and omissions before an appropriate tribunal of regional or international jurisdiction. This is more emphatically so given the existence of United Nations General Assembly resolution 47/27 (G.A. res. 47/27, 47 U.N. GAOR Supp. [No. 49] at 235, U.N. Doc. A/47/49 [1992]), which called upon the United Kingdom to administer its dependent territories consonant with international norms of law and respect for human rights standards.

This is further amplified by the United Kingdom’s having given its express assurance to the community of nations that it would endeavor to put into effect the measures called for in the Declaration of Commitment on HIV/AIDS from which I have above quoted in extenso.

Bear in mind, sir, that what appears to have occurred in the British Virgin Islands is not merely governmental tolerance of a contravention of the foregoing commitments, but actual governmental authorship of that contravention, given the fact that the Governor of that dependent territory is constitutionally responsible for the functioning of the territory’s public service, and of which service public service Mr. Purnell Christian was - and ought rightly to be - a staff member.

The situation having given rise to this communication is as follows.

In a report contained in the current Bulletin of the International Lesbian & Gay Association (1/02, p. 15) and authored by Dr. Richard Stern, Director of the Agua Buena Human Rights Association based in San Jose, Costa Rica, it is stated that the British Virgin Islands, an overseas dependent territory of the United Kingdom, lags far behind not only international standards for the care of persons suffering with HIV/AIDS, but far behind prevailing local standards.

Specifically, the reports cites the testimony of one Mr. Purnell Christian, a resident of the British Virgin Islands living with AIDS, before the Caribbean Regional AIDS/HIV Meeting that took place at San Juan, Puerto Rico, on May 2^nd, 2002. According to Mr. Christian’s (and others’) testimony, a critical issue facing HIV/AIDS sufferers is discrimination at the hands of actual and prospective employers, and in the instant case, at the hands of his employer, the government of the British Virgin Islands.

The meeting’s rapporteur, Dr. Stern, reported Mr. Christian as having stated: “They [the Government authorities who fired him from the position of employment he had held for eight years as a civil servant upon learning he had AIDS] wish I would just die.” Christian was employed in Tortola, the most populated island of the territory with 30,000 residents.

According to the report, government authorities demanded Mr. Christian return accrued pension fund earnings to them as well upon learning of his condition.

Mr. Christian had recovered from his HIV-related illness and with the support of his family has been able to purchase antiretroviral medications he has at present been dependent on for over two years. Without such support, unemployed (because of an action of the BVI government) and likely unemployable, Mr. Christian would have probably died without such support. Mr. Christian, a graduate of the U.S.’s Cornell University, has stated that “I can’t get a job; once the word gets out that you have AIDS, everyone knows. You lose all your dignity when you are not allowed to work.”

Further testimony at the May 2^ndCaribbean Regional AIDS/HIV Meeting was offered by Ms. Debbie Kahn, R.N., a nurse specializing in HIV/AIDS and related disorders, on Mr. Christian’s situation. She stated that “We (herself and fellow health professionals) have tried to start an HIV/AIDS support group in Tortola, but everyone is terrified that their employer would find out that they have AIDS. Mr. Christian’s mental health has suffered because of this situation. Physically he is fine – his viral load is below 50 and he could easily work – but no one will hire him.”

The promptest possible cooperation from your office and your Government is anticipated, and your promptest possible reply to this correspondence is urgently and respectfully requested.

Sincerely yours,

William A.M. Courson

Executive Director

THE HIRSCHFELD CENTRE

cc:

H.E., the Ambassador

The Hon. Sir Jeremy Quentin Greenstock, KCMG

The United Kingdom Mission to the United Nations

One Dag Hammarskjold Plaza, 28th Floor
885 Second Avenue
New York, NY 10017
Via Facsimile; (212) 745 9316

Rt. Hon. Jack Straw, M.P.

Secretary of State for Foreign & Commonwealth Affairs

The Foreign & Commonwealth Office

King Charles Street

London, ENGLAND SW1A 2AH

The Hon. Baroness Valerie Amos

Parliamentary Under-Secretary for Foreign & Commonwealth Affairs

Overseas Territories Department, The Foreign & Commonwealth Office

King Charles Street

London, ENGLAND SW1A 2AH

Government of the British Virgin Islands

370 Lexington Avenue, Suite 1605
New York, NY 10017
Via Facsimile: (212) 949-8254

H.E., the Hon. Frank Savage

Governor of the British Virgin Islands

Government House

Tortola, British Virgin Islands

Via Facsimile: (284) 468-4490