Rubber helmets: The certain pitfalls of marshaling security council resources to combat AIDS in Africa

Human Rights Quarterly

Volumn 23, Issue 3, 2001, Pages 560-582

  David, Marcella ^b  

^a UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

^b NONE

Author keywords

[No Author keywords available]

Indexed keywords

ACQUIRED IMMUNE DEFICIENCY SYNDROME; SECURITY THREAT; UNITED NATIONS;

AFRICA;

EID: 0034844511     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2001.0033     Document Type: Article

References (90)

1. See Office of the Vice President, Remarks as Prepared for Delivery by Vice President Al Gore, U.N. Security Council Session on AIDS in Africa (10 Jan. 2000), available at 〈http://www.pub.whitehouse.gov〉 (visited 3 May 2001).
2. Id. Gore made remarks both to introduce the session and as the official US representative for the day. For his opening remarks, see Office of the Vice President, Opening Statement in the Security Council Meeting on AIDS in Africa, (10 Jan. 2000) available at 〈http:// un.int/usa/00_003.htm〉 (visited 3 May 2001) [hereinafter Opening Statement].
3. Opening Statement, supra note 2.
4. Id.
5. Assumed, but unstated, is Gore's view that the HIV virus is less of a threat in other regions and countries. In reality, the virus represents an equally serious threat in southeast Asia and Latin America, and no part of the world is risk-free. See UNAIDS, Report on the Global HIV/AIDS Epidemic, June 2000, at 8-21 [hereinafter 2000 Report].
6. "Sub-Saharan Africa," as used by UNAIDS excludes the African nations of Algeria, Egypt, Morocco, Sudan, and Tunisia. See "Table of Country-Specific HIV/AIDS estimates and data, end 1999," 2000 Report, supra note 5, at 123.
7. Aids Overwhelms South Africa Hospitals, AIDS WEEKLY, 17 Jan. 2000.
8. See id.
9. As one of Africa's "most technologically advanced" societies, South Africa in some ways represents only a small portion of the problem. Andrew Maykuth, Critics Assail South Africa's Ban on Wide Public Access to AZT, THE ARIZONA REPUBLIC, 23 Jan. 2000.
10. See 2000 Report, supra note 5, at 123.
11. See id. at 25.
12. Comments of Makau Mutua, 2 May 2000 (on file with author).
13. See generally Julie Mertus, Reconsidering the Legality of Humanitarian Intervention: Lessons from Kosovo, 41 WM. & MARY L. REV. 1743 (2000) (discussing legality of Security Council directed humanitarian intervention and collecting pro and con viewpoints).
14. See id.
15. I can neither take credit for coining, in this context, the phrase "rubber helmet," nor, alas, give due credit. During a series of somewhat ribald conversations with colleagues, imagining scenarios of parachuting condom commandos, one colleague suggested the UN peacekeepers swap their trademark blue helmets for rubber helmets in keeping with this proposed new role. The imagery stuck, although the identity of its creator did not. My gratitude remains.
16. For example, the president of South Africa has publicly questioned the safety and effectiveness of AZT, and limited the use of the drug in South Africa. See Maykuth, supra note 9. Although it appears the primary reason for the reluctance to supply AZT is more complex, including not only cost but international patent issues, see Editorial: Bait and Switch for Africa, THE WASHINGTON TIMES, 25 Jan. 2000, at A20, the rhetoric no doubt makes it more difficult to effectively treat AIDS and prevent new infections.
17. For example, the president of South Africa has publicly questioned the safety and effectiveness of AZT, and limited the use of the drug in South Africa. See Maykuth, supra note 9. Although it appears the primary reason for the reluctance to supply AZT is more complex, including not only cost but international patent issues, see Editorial: Bait and Switch for Africa, THE WASHINGTON TIMES, 25 Jan. 2000, at A20, the rhetoric no doubt makes it more difficult to effectively treat AIDS and prevent new infections.
18. In the Security Council session, the South African representative bluntly urged the Council to direct its attention to the concrete threat to international peace and security that is the Congo conflict, and leave the questions of health to other institutions. See Red Herrings at the UN, SOUTH AFRICA BUSINESS DAY, 13 Jan. 2000. During a joint meeting of the Council and the Economic and Social Council other state representatives questioned the appropriateness of Security Council action. See International Security Includes "Peaceful War" Against AIDS, U.N. Press Release ECOSOC/5884, 28 Feb. 2000.
19. In the Security Council session, the South African representative bluntly urged the Council to direct its attention to the concrete threat to international peace and security that is the Congo conflict, and leave the questions of health to other institutions. See Red Herrings at the UN, SOUTH AFRICA BUSINESS DAY, 13 Jan. 2000. During a joint meeting of the Council and the Economic and Social Council other state representatives questioned the appropriateness of Security Council action. See International Security Includes "Peaceful War" Against AIDS, U.N. Press Release ECOSOC/5884, 28 Feb. 2000.
20. See id. One group of states did not address whether the AIDS crisis is a security problem, but nevertheless advocated for the Economic and Social Council as the ideal body for coordination and discussion of the AIDS crisis. The president of the Economic and Social Council (Indonesia) expressed this view, followed by Argentina, Costa Rica, Ireland, Italy, and Rwanda. Portugal described AIDS in Africa as a developmental problem which could most effectively be dealt with through an overlap of efforts by both the Security Council and Economic and Social Council. Other countries, including the United States, Norway, Japan, and Cameroon addressed the crisis as a security problem and shared Portugal's view that both organs should work in unison. Two countries, Cuba and India, denounced the Security Council's claim of jurisdiction on the basis that AIDS is not a security problem. The Cuban representative stated that that interpretation would conflict with the Charter. Finally, the Ukraine and Brazil called for a special session of the General Assembly to handle the matter.
21. In keeping with the somewhat risqué overtones of the topic, which relates, at bottom, to human sexuality, I have elected to adopt the irreverent format immortalized by popular US comedian David Letterman.
22. See U.N. CHARTER art. 24, signed 26 June 1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153 (entered into force 24 Oct. 1945).
23. See id. at arts. 10 & 62.
24. Id. at art. 13, ¶ 1(b).
25. See id. at art. 12.
26. See id. at arts. 25 & 41.
27. See id. at art. 24. The specific Chapters referred to include Chapter VI (Pacific Resolution of Disputes), Chapter VII (Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression), Chapter VIII (regarding Regional Arrangements) and Chapter XII (regarding oversight of the International Trusteeship System).
28. See Jost Delbrück, Article 24: Functions and Powers, in THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 397, 403-04 (Bruno Simma ed., 1995) (concluding that the Council must be afforded the "widest possible discretion" to effectively respond to matters of international peace and security).
29. See U.N. CHARTER, supra note 20, at arts. 33, 39 & 52.
30. See id. at art. 24.
31. Id. at art. 1.
32. See id. at art. 1.
33. See id. at art. 2, ¶ 1.
34. Id. at art. 2, ¶ 7.
35. Commentators have challenged the accuracy of the term "sub-Saharan Africa" in this context. See Grace Bibala, Gore Pays Peanuts, But Monkeys Don't Have AIDS, THE EAST AFRICAN, 31 Jan. 2000. Moreover, the problem of AIDS in those countries classified as "sub-Saharan" is not monolithic, nor can the response to the problem be monolithic. See generally 2000 Report, supra note 5, at 8-12.
36. Commentators have challenged the accuracy of the term "sub-Saharan Africa" in this context. See Grace Bibala, Gore Pays Peanuts, But Monkeys Don't Have AIDS, THE EAST AFRICAN, 31 Jan. 2000. Moreover, the problem of AIDS in those countries classified as "sub-Saharan" is not monolithic, nor can the response to the problem be monolithic. See generally 2000 Report, supra note 5, at 8-12.
37. The phrase "international peace and security" was deliberately chosen because of its malleable interpretation. See Rüdiger Wolfrum, Article 1: Purposes and Principles, in THE CHARTER OF THE UNITED NATIONS, supra note 26, at 50-51.
38. U.N. CHARTER, supra note 20, at art. 13, ¶ 1(b).
39. Gore himself acknowledged the need to "wide[n]" the traditional view of a threat to security as involving matters of "war and peace." Opening Statement, supra note 2.
40. A host of examples give content to these characterizations. Into the category of matters where the Security Council has responded to domestic use of armed force fall the Council's consideration of the violence following the breakup of the former Yugoslavia, and armed struggle in the Congo, Angola, and Chechnya; it is notable that in all but the Chechen example there was suspicion of international involvement in the conflict. I would also place in this category Council action to combat state-sponsored or state-condoned international terrorism. Into the category of matters involving serious human rights abuses falls the Council's concern with certain matters in Iraq, in Haiti, and in South Africa, while matters involving both force and serious human rights abuses include those in Bosnia-Herzegovnia, in Kosovo, and in Rwanda. Even the Security Council's action in famine-ravaged Somalia was at least partially justified by the activities of warring militias and acts of violence perpetrated against UN relief agents.
41. Quoting the relevant portions of his comments in full: Over the past decade, a rising wave of African nations has moved from dictatorship to democracy, embraced economic reform, opened markets, privatized enterprises, and stabilized currencies. More than half the nations of Africa now elect their own leaders - nearly four times the number ten years ago - and economic growth in sub-Saharan Africa has tripled, creating prospects for a higher quality of life across the continent. Tragically, this progress is imperiled, just as it is taking hold, by the spread of AIDS which now grips 20 million Africans. Fourteen million have already died - one quarter of them children. Each day in Africa, 11,000 more men, women, and children become HIV positive - more than half of them under the age of 25. For the nations of sub-Saharan Africa, AIDS is not just a humanitarian crisis. It is a security crisis -because it threatens not just individual citizens, but the very institutions that define and defend the character of a society. This disease weakens workforces and saps economics strength. AIDS strikes at teachers, and denies education to their students. It strikes at the military, and subverts the forces of order and peacekeeping. Office of the Vice President, supra note 1. Gore's remarks seem to assume a capitalist western model of democracy as the ideal. This assumption, like many others underlying this proposal, is subject to challenge. See, e.g., Jane Perlez, At Democracy's Picnic, Paris Supplies Ants, N.Y. TIMES, 27 June 2000, at A6 (comments of French foreign minister at the US-sponsored "Community of Democracies Conference," chiding nations for blindly exporting and imposing a western view of democracy). To the extent that his comments link the spread of AIDS with the supposed demise of a favored democratic model, that presents an issue more political than security-based in nature.
42. My response would, of course, be different if it were credibly demonstrated that the epidemic was the result of deliberate introduction of the virus, that is to say, the result of biological warfare.
43. See Gore, supra note 1.
44. S.C. Res. 688, U.N. SCOR, 2982d mtg. U.N. Doc. S/RES/688 (1991).
45. Indeed, on numerous occasions Turkey has bombarded Kurdish encampments in Northern Iraq.
46. See The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa, Report of the Secretary General, ¶¶ 7-15 (1998) available at 〈http://www.un.org/ecosocdev/geninfo/afrec/sgreport/report.htm〉.
47. Id. at ¶ 80.
48. Id. at ¶ 87.
49. See 2000 Report, supra note 5, at 12-15.
50. This point was made by the South African representative. See supra note 17.
51. Under Article 23 of the Charter, these five member states are named permanent members of the Security Council. See UN CHARTER, supra note 20.
52. In this connection it is worth recalling the Security Council's decision to establish the International Criminal Tribunal for Rwanda - over the objections of Rwanda, then a member of the Council. Rwanda was of the view that it would most benefit from efforts to repair its judicial system, instead of creating a new system. See Makau Mutua, Never Again: Questioning the Yugoslav and Rwanda Tribunals, 11 TEMP. INT'L & COMP. L. J. 167 (1997) (discussing the political backdrop behind the Rwandan Tribunal Council vote).
53. See, e.g., Marcella David, Passport to Justice: Internationalizing the Political Question Doctrine for Application in the World Court, 40 HARV. INT'L L. J. 81, 100-05 (1999) (detailing the political considerations leading to the sanctioning of Libya in the wake of the Pan Am bombing).
54. See UNAIDS, Joint United Nations Programme on HIV/AIDS, available at 〈http:// www.unaids.org/about/files/strat_plan.html〉 (visited 20 Mar. 2000) [hereinafter Joint Programme].
55. See generally Averting AIDS and HIV, available at 〈http://www.avert.org〉 (collecting information about AIDS programs); "World AIDS Day 2001," available at 〈http:// www.avert.org/worldaid.htm〉 (information about World AIDS Day 2001); "AIDS Gateway to the Internet," available at 〈http://www.immunet.org/index.html〉 (collecting information about AIDS initiatives).
56. See generally Averting AIDS and HIV, available at 〈http://www.avert.org〉 (collecting information about AIDS programs); "World AIDS Day 2001," available at 〈http:// www.avert.org/worldaid.htm〉 (information about World AIDS Day 2001); "AIDS Gateway to the Internet," available at 〈http://www.immunet.org/index.html〉 (collecting information about AIDS initiatives).
57. See generally Averting AIDS and HIV, available at 〈http://www.avert.org〉 (collecting information about AIDS programs); "World AIDS Day 2001," available at 〈http:// www.avert.org/worldaid.htm〉 (information about World AIDS Day 2001); "AIDS Gateway to the Internet," available at 〈http://www.immunet.org/index.html〉 (collecting information about AIDS initiatives).
58. See Joint Programme, supra note 51.
59. Id.
60. Gore, supra note 1.
61. See id.
62. Richard Holbrooke, the US Ambassador to the United Nations gave one other concrete means the Security Council could affect the spread of AIDS: he vowed that "The United States would never again vote for a peacekeeping resolution that did not include language that required the Department of Peacekeeping Operations to act to ensure that AIDS did not spread among, or as a consequence of, peacekeepers." UN Press Release ECOSOC/5884, supra note 17. But of course, taking this laudable step is not dependent upon the recognition of AIDS in sub-Saharan Africa as a matter of international peace and security. (One would hope, of course, that such a directive would be standard, no matter where the peace-keeping force was deployed.)
63. See U.N. CHARTER, supra note 20, at art. 39.
64. See id. at art. 25.
65. See id. at arts. 41-43.
66. It is true that in many African communities the stigma against AIDS renders those suffering from the disease or infected with the virus social outcasts. In this, lamentably, Africa is no different than any other part of the world.
67. Here again the Secretary-General's report on conflict in Africa, supra note 43, is instructive. He identifies the restructuring of international aid, reduction of debt and free trade as all being factors contributing to stability on the African continent. See id. at ¶¶ 90-99. This was echoed by UNAIDS head Dr. Peter Piot in remarks at the World AIDS conference, where he noted that $3 billion, a ten-fold increase in current AIDS spending in Africa, is needed to take "basic measures" to deal with the crisis. See Rachel Swarns & Lawrence Altman, Amid Controversy, South Africa Opens World AIDS Forum, N.Y. TIMES, 10 July 2000, at A6. He specifically encouraged debt forgiveness as a way of reaching that goal.
68. Id.
69. See U.N. CHARTER, supra note 20, at art. 41.
70. In a resolution adopted in July 2000, the Security Council followed up on Gore's, call for action. See S.C. Res. 1308, U.N. SCOR, 4172d mtg., U.N. Doc. S/RES/1308 (2000). It wisely restrained from finding the AIDS pandemic a matter of international peace and security, noting only its "possible growing impact on social instability and emergency situations," and that it "may pose a risk to stability and security." Id. Nor did the Council attempt to direct policy; instead it "[r]ecognize[d]" past efforts by Member states and "[e]ncourage[d]" further international cooperation. Id.
71. It is not surprising that the response to the Security Council initiative, tame as it is, divided roughly upon traditional lines of industrialized v. developing nations. See U.N. Press Release supra note 17 (describing the responses of Security Council members).
72. For example, when administered to a pregnant woman before birth, it has been proven to block the transmission of HIV to the baby; however, Mr. Mbeki has only recently dropped his objection to that use of AZT. See Swarns & Altman, supra note 62, at A6 (reporting on the government's refusal to unequivocally identify HIV as the cause of AIDS); but see Lawrence Goldyn, Africa Can't Just Take a Pill for AIDS, N.Y. TIMES, 6 July 2000, at A25 (defending Mr. Mbeki's position as grounded in the realities of the context of AIDS in Africa).
73. For example, when administered to a pregnant woman before birth, it has been proven to block the transmission of HIV to the baby; however, Mr. Mbeki has only recently dropped his objection to that use of AZT. See Swarns & Altman, supra note 62, at A6 (reporting on the government's refusal to unequivocally identify HIV as the cause of AIDS); but see Lawrence Goldyn, Africa Can't Just Take a Pill for AIDS, N.Y. TIMES, 6 July 2000, at A25 (defending Mr. Mbeki's position as grounded in the realities of the context of AIDS in Africa).
74. U.N. CHARTER, supra note 20, at art. 1.
75. See Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), U.N. GAOR, 3d Sess. (Resolutions, pt. 1), at 71, U.N. Doc. A/810 (1948), reprinted in 43 AM. J. INT'L L. 127 (Supp. 1949) [hereinafter UDHR].
76. Id. at art. 21.
77. Id.
78. These treatments are not foolproof, nor are they sufficient: many US health care professionals warn that our youth, raised after national awareness of the horrors of AIDS was at its peak, are less inclined to adhere to the practices likely to protect them from contracting the disease.
79. See UNAIDS Report, supra note 5, at 8-9 & 23-25.
80. See UDHR, supra note 68, at art. 3.
81. See id. at art. 12.
82. See id. at art. 9.
83. The fact that this policy initiative permits Gore to seem compassionate about AIDS is the icing on the cake. He had been lambasted for pressing the interests of American drug companies in the very same African nations he now urges others to assist. Loath to lose royalties on expensive AIDS drugs, the companies had fought vigorously against the use of no-name substitutes from other sources. The companies pressured the Clinton administration, which in turn pressured South Africa to disregard a national law it had enacted which provided for "compulsory licensing" and "parallel importing" in an effort to reduce the cost of treatment and make the drugs more widely available. AIDS activists were appalled, and started picketing Gore's campaign stops; Gore started drafting his speech on AIDS in sub-Saharan Africa, including a call for increased aid to pay for (presumably licensed American) drugs.
84. After January 2000, several drug companies have agreed to cut their prices for life-saving therapies in Africa. See Donald McNeil, Companies to Cut Cost of AIDS Drugs for Poor Nations, N.Y. TIMES, 12 May 2000, at A1. This concession - forced by new overseas domestic legislation and pressure from the White House - was eventually adopted in order to cut out Thai manufacturers and ensure that low-cost drugs would stay in Africa and not undercut prices in other markets. Id.
85. See UN CHARTER, supra note 20, at art. 17.
86. See, e.g., Criticized Research Quantifies the Risk of AIDS Infection, N.Y. TIMES, 30 Mar. 2000, at A16 (describing criticism of US-sponsored study in Uganda that withheld information about HIV-status from subjects in an effort to test and confirm theories about the spread of HIV).
87. See Remarks by Senator Jesse Helms (R-NC) to the United Nations Security Council, FEDERAL NEWS SERVICE, 20 Jan. 2000.
88. Id.
89. While no doubt planned for some time, in early April a new UN initiative to fund HIV work in four African countries was given $57 million by the Gates Foundation. See Gates Foundation Grants $57 for Africa AIDS Projects, DOW JONES, INT'L NEWS 4 Apr. 2000. As public awareness is raised, similar initiatives might result.
90. In a different setting Professor Mutua offered a damning view of another UN initiative similarly trumpeted as a significant advancement of human rights: the Yugoslav and Rwanda Tribunals: Some leading international scholars see the mere establishment of the Yugoslav and Rwanda tribunals as a very significant event in the development of the enforcement of international criminal and humanitarian law. They see the importance of the tribunals in the footprints that they make on the international law-making track and not in the substance of their performance in addressing the particular abuses with which they are charged. . . . [However, they fail] to successfully address the basic purposes for which they were established. They have been hampered by logistical, structural, and political considerations. Their lofty mandates have been tempered by the political contexts in which they were set and the climates in which they operate.