Leonie Schultens

International Law Dissertation 2000/2001

UN Humanitarian Intervention in Africa:
Political and Legal Reasons for Past Failure as well as an
Examination of Present Responses with Regard to the AIDS Endemic

Preface

In the course of researching and writing this paper, the structure in many ways took on a life of its own. I had intended to include case examples of humanitarian intervention in Africa, specifically those of Somalia and Rwanda. However, when I got to putting my ideas down on paper, I realized how vast the thematic was and that it would take me way beyond the assigned world limit to fit all these ideas in as well. Therefore I have left out this part of my research.

The interest in AIDS developed as a consequence of the discussion on humanitarian intervention and was intended to be a sub-category of discussion. As it turned out during the course of writing, the topic is also so inherently vast and complex that much more can be said about it than what is mentioned in this discussion. I have been unable to go through even a fraction of all the papers which I have received and researched simply because the topic is so great - yet strangely 'unnoticed' until the year 2000.

I would like to thank all the people who have helped me with information and advice. Without them this paper would not have come into being. Special mention should go to the Tanzanian Government for their kindness and readiness to share information which I acknowledge in including the documents in my annex for interested readers. Unfortunately, I have not been able to generate a case discussion (which I initially intended to as well) but the information has proven to be invaluable.

Lastly, I would like to mention that I tried to get in touch with some of the pharmaceutical industries for a statement. Unfortunately, they seemed to have been too busy.

The discussion which follows is not limited to the legal context only. Since the topics chosen touch upon vast areas of international concern, I have decided to take on a more political approach as well. But this is linked to my conception of international law and I believe is essential in understanding the criticisms and evaluations made.

I hope people will enjoy reading this paper as much as I enjoyed writing and researching it.

Introduction

This paper will involve a discussion of the concept of 'humanitarian intervention' within the broader practice of international law. I will outline how past failures in this UN arena might create new alternatives, such as an early and more sustained humanitarian intervention in Africa based on the health endemic caused by AIDS. The main point made in this discussion will be the inequality in existing law leading to a rather one-sided response in Africa, despite the urgency of several crises. What is in fact needed to respond to AIDS in a better fashion is to intervene in the health and various other policy fields of a government. This is why AIDS and humanitarian intervention have been chosen as the topics of this paper. Both require a more extensive involvement in the realm previously considered domestic. In fact, one could say that battling AIDS forms a part of humanitarian intervention, but in the health field.

While many areas of international law have had fruitful results and have witnessed broad adherence to legal norms, unfortunately the concept of 'humanitarian intervention' and other multi- or unilateral interventions into the realm of sovereign states, has depended much on the political climate of the times and the national interests at stake: 'there are no apolitical decisions in the field of humanitarian assistance' (Tobias Vogel, 'The politics of humanitarian intervention', 'The Journal of Humanitarian Assistance', http://www.jha.ac//articles/a011.htm). Therefore, international law within this specific area of concern is closely linked to politics and power. Throughout this paper, this link will become apparent in the present practice of humanitarian intervention as well as on the AIDS pandemic.

Unfortunately, efforts by the international community in Africa have thus far not succeeded. There are many conflicts from Ethiopia and Eritrea to the Sudan, the Congo or Zimbabwe and Angola. Africa has become known as the 'lost continent'. But it is not only violence which threatens Africans, it is also natural disasters such as the floods in Mozambique and diseases such as AIDS. Menkhaus outlines the similarities of wars in Africa: there are appalling levels of atrocities, civilians are very vulnerable and affected by the fighting, the conflicts are so protracted that they often generate and sustain themselves which leads to lawlessness making warfare an end in itself (Ken Menkhaus, 'Children of war', 'New Routes: A journal of peace research and action' 4, (Nr.4, 1991): 5). UN involvement in these areas has generally not helped ameliorate the situation and was / is in some cases simply absent.

The notion of political will is emphasized by the fact that 'humanitarian intervention' is not codified within international law. There are no references to it in the Charter. It consists mainly of norms de lege ferenda [law which ought to be made] and could thus be considered a standard which might develop through customary law. Evidence in support of this development can be seen in the establishment of several United Nations agencies supporting human rights such as the UNHCR, UNICEF etc. - which are inextricably linked to humanitarian intervention. Furthermore, a very important development in the legal codification of human rights took place in 1991 when the General Assembly created OCHA (Office for the Coordination of Humanitarian Affairs). It would seem that the infrastructure for the legal enforcement of humanitarian intervention exists, however what often lacks is the will of the UN member states and thus decision-makers.

The experience of Somalia illustrates the problems of contemporary 'humanitarian intervention' as a legal practice. These problems are often of political nature. UN involvement was entirely directed by the US Pentagon - therefore political considerations of a UN member state. The problems created by this American policy were later left to the UN, which failed due to a lack of support.

Furthermore, because there is no legal background on which to base 'humanitarian interventions', they have to be sanctioned under other aspects of the Charter. Therefore, any situation demanding such measures has to be classified as a 'threat to the peace, breach of the peace, or act of aggression' under Chapter VII. This usually involves a collective security enforcement measure authorized by the UN Security Council or - in extreme cases - the General Assembly. The use of force is also authorized in cases of self-defense, as outlined in Article 51 of the Charter.

While this paper will not discuss this issue in detail, it is worth mentioning that because the UN Charter only authorizes the use of force when a threat already exists, there are no measures for crisis prevention. Former UN Secretary-General Boutros-Boutros Ghali addressed this problem in his 'An agenda for peace', focusing on aspects such as economic recovery. This would minimize risks, cut spending and save lives. The American deployment of troops in Macedonia at the outset of the Bosnian war serves as a very good example.

The more silent but also deadly threat to Africa comes from the AIDS pandemic. The virus has spread and continues to spread like wildfire in African countries. AIDS has only recently emerged as a pressing issue, which needs to be addressed. Its tackling is very difficult because of the multi-faceted problems it generates as well as concerning the environment in which it spreads. Legal problems concern the area of economics and are related to the Third World's political claim for a 'New International Economic Order'. Intellectual property law inhibits Third World countries most affected by the pandemic to access medication for reasonable prices. The special area of concern in this regard will be the World Trade Organization (WTO) and the TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement. I would like to suggest that because the problems in Africa are so multi- faceted, what is required is a very flexible and open-minded approach by the international community to end suffering. This may be idealistic because, as this discussion will show, national interest often prevents relief actions from going underway. Therefore I propose a gradual reform of the United Nations system which is simply no longer fit to cope with a world in which problems are very different from its time of inception. Since humanitarian intervention has not been codified within international law, I would like to examine the recent debate about humanitarian intervention, its legality and even its mere existence. I addition, I consider the debate on AIDS as vital for discovering new areas in which some humanitarian response is required as well. Just as a proper, just and contemporary definition for humanitarian intervention has to be adopted in the Charter, reform of the WTO system is needed as well, despite its only recent origins, to bring about any fundamental change and true justice.

Chapter 1
Discussion on the legal standing of 'humanitarian intervention'

'Humanitarian intervention is defined as the forceful intersection of a foreign state into the internal jurisdiction of another state when the latter has been guilty of widespread and serious violations of human rights' (N. Tsagourias, 'The legality of humanitarian intervention', http://www.nottingham.ac.uk/law/hrlc/hrnews/march96/HUMANIT.htm (14 February 1997)). Recent examples on the African continent include operations in the Congo, Somalia, Rwanda and Sierra Leone. In this part of my paper, I would like to outline some of the problems of humanitarian intervention in a more general manner.

Historically, humanitarian intervention has been defended by thinkers like Suarez, Grotius and Vattel and there have been interventions in the 19th century by the great powers in countries like Turkey for the plight of the Christian population, which contained a humanitarian element. The idea of intervening on humanitarian grounds has thus had a long theoretical history, although implementation measures were only fully in place with the creation of the United Nations - and even these guidelines prove very dubious.

The present concept of 'humanitarian intervention' can be seen as emerging through the evolution of traditional UN peacekeeping, a measure just bordering that of intervention. Since the end of the Cold War, the UN has launched 13 new peacekeeping operations which almost all address intra-state 'humanitarian' crises. The importance of UN peacekeeping as well as the present number of missions can be seen in the appendix (1.1 United Nations Peacekeeping, 1.2 United Nations Peacekeeping Operations). Much like humanitarian intervention, peacekeeping operations are also not outlined in the Charter and are subject to variation in practice. Peacekeeping operations have become known as Chapter 6 1/2 measures, because of no legal definition.

Many problems with 'humanitarian intervention' today are raised because the customary norms for intervention within a sovereign state have evolved through peacekeeping operations. In light of this, an outline of traditional peacekeeping measures will serve to highlight the differences.

UN 'blue helmets' have mainly been deployed after peace agreements between the warring parties had already been reached. Former UN Secretary-General, Dag Hammarskjold, did not allow for weapons on UN peacekeepers and required impartiality and neutrality for any operation. In many contemporary conflicts though, the principles of neutrality and impartiality have proven very difficult to sustain - as the experience of Somalia illustrates. The fact is that one is often forced to take sides in order to save lives and often there is one party which is particularly aggressive - or in breach of the law - and there has to be condemnation and isolation of these states and governments.

Shortcomings were already visible in early peacekeeping practice - in the case of Africa, ONUC forces in the Congo were faced with a country in complete political disarray and many own UN troops were killed. ONUC provides an interesting legal example, because the UN Security Council allowed it to resort to force twice during the mandate (i.e. Security Council Resolution 161 in 1961 which called ONUC to remove foreign mercenaries and Security Council Resolution 169 also of 1961 which depreciated the role of the Katangese secessionists and called for the removal of mercenaries again).

Liu explains these difficulties: 'When a conflict is particularly complex and involves not only legitimate governments, but also internal factions, liberation movements, and irregular armed elements, some of the parties concerned may be unwilling or unable to cooperate fully with the United Nations' (F.T. Liu, 'United Nations peacekeeping and the non-use of force' (London: Lynne Rienner Publishers, Inc, 1992), 36). Recent literature on the nature of war has shown that wars today are essentially very complex, involving many different actors and desires (for a more detailed account of the nature of so-called 'new wars', please refer to Mary Kaldor or Vivienne Jabri). This not only means that the situation could become more dangerous for UN forces if not efficiently equipped militarily, but also means that there has to be a sustained effort towards peacemaking after the ending of hostilities.

Liu concludes that it would be best if the UN peacekeepers remained unarmed but are backed by a quick reaction force and a strong Security Council, willing to intervene in cases of unexpected violence. However, he does not address the problems of supply of troops - furthermore, in some conflicts, the whole notion of neutrality and impartiality skews the truth. When the UN chooses to remain neutral in face of warlords such as in Somalia, the price can be very costly, both in terms of human lives lost (see appendix, 1.3 The US in Somalia) as well as for future practice.

In any way, traditional peacekeeping measures can be seen as the forerunner of present humanitarian intervention practice. What is problematic with regard to the law is that the customary norms, which developed through peacekeeping practice, often contradict those needed today. International law is therefore a discipline where theory is lagging behind practice. It seems as though international law is faced with the choice of either reforming in light of these new developments to be able to address multilateral problems effectively, or that the UN should go back to traditional peacekeeping and not try to get involved in these complicated matters.

There are several ambiguities within the UN Charter which lead to very differing views on intervention. There is no legal clause justifying humanitarian intervention per se, but there is a pressing need for the Security Council to base action on humanitarian grounds to clarify the situation. But the shortcomings are not limited to Chapter VII action under the Security Council alone; what is needed is a general Charter classification and reformation to enable a more contemporary and workable framework.

The UN has denounced war in Article 2(4) and throughout the Charter, the term 'war' has been replaced by other phrases: a) aggression [Art. 2(4)], b) self- defense [Art. 51] and c) enforcement action [Chapter VII]. Yet, enforceable measures are possible only if directed by the UN in line with the Charter provisions. This is the basic idea that could also warrant humanitarian intervention, since human rights violations on a grand scale are contrary to the organization's goals.

Article 51 and the clause of self-defense have been used to justify unilateral actions bordering on humanitarian intervention, such as in India, Vietnam and Tanzania. In practice, this type of unilateral effort is increasingly difficult to justify today, not only when it comes to self-defense, as massive US involvement in Somalia indicates.

The use of force by one party can be justified if classified as a case of self- determination. However, there are just as many debates about the meaning of self-determination as there is literature on the outline of proper humanitarian intervention or peacekeeping operations. This evidence only proves further the need for reforming the Charter and bringing it in line with present world politics and international relations practice.

Furthermore, with regard to gross violations of human rights, Article 55/56 calls for UN members to promote economic and social cooperation and to take separate or joint action to ensure respect for human rights and fundamental freedoms. If stretched, this could envisage the use of sanctions - a type of force. Again, this seems to be an article that could warrant the use of humanitarian intervention. This is so because the stress is placed on human rights and not only peace - a priority which seems to cause much controversy for the UN Charter.

The preamble of the Charter states that 'armed force shall not be used, save in the common interest'. But there are no agreements on the meaning of terms like 'common interest' nor who should define it. Further questions which are raised by this clause include who would defend the common interest and under whose authority this occurs. In practice, this has proven very difficult to determine - increasingly so with the creation of the 'Uniting for Peace' resolution. It is unclear now where decision-making on forcible UN operations is taken, in the General Assembly - the true common voice - or in the more exclusive Security Council.

Problems with the wording and interpretation of UN Charter measures remain. As such, while Article 2(4) forbids the use of force it probably still permits economic sanctions - an indirect use of force. There is a restrictive argument on the interpretation of Article 2(4) which holds that state sovereignty is absolute and that the maintenance of peace is more important than that of justice an hence humanitarian intervention is illegal. Permissive reasoning on 2(4) holds that the prohibition of force is conditional. If directed against a state or the UN, then force is illegal. Humanitarian intervention could be sanctioned under this argument because the UN protects human rights as one of its most fundamental principles. There is also a reconciliatory argument which holds that depending on the situation, the use of force can be authorized and sanctioned, such as in the case of grave violations of human rights.

Article 2(7) of the Charter is also very ambiguous: 'Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII'

The problem faced today concerns the definition of 'domestic' jurisdiction. Are extensive human rights violations a matter of domestic jurisdiction, or should they concern the whole international community? Does the mass exodus of refugees to neighboring countries justify intervention in the state of origin and conflict? As the Permanent Court of International Justice stated in 1923: 'the question of whether a certain matter is or is not solely within the jurisdiction of a state is an essentially relevant question; it depends on the development of international relations' (Kelly-Kate Pease and David P. Forsythe, 'Humanitarian Intervention and International Law', Austrian Journal of Public and International Law (No. 45, 1993) in 'Sovereignty eclipsed? The legitimacy of Humanitarian Access and Intervention', K. Mills, http://www.jha.ac//articles/a019.htm). There is a growing realization that sovereignty no longer entails the same rights as it did in previous times - we seem to be living in an age of diminished sovereignty witnessed by the creation of more encompassing international organizations. The best example indicating the decrease in sovereign prerogatives is the European Union. In fact, most issues today involve an international component. Essentially, this statement is highly ambiguous and apart from this also contains an exception for measures authorized under Chapter VII of the Charter.

Article 39 defines a threat or breach of peace as well as aggression. 'Having to resort to a "threat to the peace" as the basis for humanitarian action is inherently statist and is firmly rooted in the sovereignty discourse because it is only states which can be affected by a "threat to the peace"' (K. Mills, 'Sovereignty eclipsed? The legitimacy of Humanitarian Access and Intervention', http://www.jha.ac//articles/a019.htm). In most cases it would be better to contain the problem before it reaches these levels, but this kind of action would not be considered 'legal' within the present wording of the Charter.

Furthermore, the UN Security Council can allow for air, sea and land forces to restore peace and security under Article 43, but this has in fact not been used. Also, humanitarian interventions are not very often triggered by a military threat as Chapter VII has envisaged, but are characterized by violations of human rights and unstable politics. Thus, to avoid future problems of a humanitarian nature, many factors need to be addressed, including good governance, stable economic systems, relevant social services and harmony. Military action alone is not sufficient - the high use of civilian administrators for UNTAC (Cambodia) is the best example. Unfortunately, this type of intervention was not used in Somalia where help with building a sound infrastructure was needed even more than in Cambodia - and still is required today.

Other international law documents that by nature could support humanitarian intervention also do not provide legal guidelines for practice. Very relevant for humanitarian intervention is the 1948 Genocide Convention and its subsequent treaties - this is so because of the gross amount of human rights violations in many cases mounting to evidence of genocide. While this document calls for the prosecution of human rights violators, it does not support the use of armed intervention to end human suffering. The Conventions allow humanitarian bodies to enter the state even without its agreement, thus overriding the notions of sovereignty with regard to humanitarian access - a concept slightly different from humanitarian intervention. But just because the possibility for access is given, this does not mean that the international community always makes use of this - action again depends on the interpretation of the national interest at that time.

The main problem which arises for humanitarian intervention from the legal groundwork of the Geneva Conventions - especially the 1949 Convention for the Amelioration of the condition of the wounded and sick in armed forces in the field - is the problem of the need for impartiality and neutrality. This has been discussed in the argument on peacekeeping as well. Further questions which come to mind with regard to the Geneva Conventions include the number of ethnically-motivated deaths required for a situation to qualify as genocide. Also there do not seem to be very effective measures punishing those who have acted in breach of the Conventions. This is so for many areas of international law which are strong and impressive on paper but much less so in practice.

The two Covenants on Human Rights of 1966 (civil and political rights as well as economic, social and cultural rights) also do not authorize humanitarian intervention. However, the type of law these clauses contain is also part of customary law. As such, torture, slavery and genocide have been generally outlawed - although there is still evidence of their practice [torture: Israel on Palestinians, slavery: some African countries e.g. Sudan, genocide: Rwanda, Bosnia, Cambodia]. But the right to life is generally considered a basic right. It is often national interest and strategic considerations that prevent states and thus the UN from acting in these cases. But part of the problem is also because no effective legal enforcement provisions exist in case of violation of these norms.

A great aspect of the problem of intervention is furthermore the varying opinions of legal experts on whether this should be done unilaterally or multilaterally. Shawcross for example supports unilateral intervention because the UN has not met the expectations of collective action. He reaches this conclusion because the UN is not universal in its response to crises and because he believes the UN machinery to be ineffective. But while in many cases unilateral intervention would prove more speedy and thus effective, there are very few - if any - unilateral state interventions without the involvement of self-motivation [e.g. India's intervention in Pakistan 1971, Tanzania's invasion of Uganda in 1979]. Yet, scholars like Moore and Weston agree that multilateral action is sometimes not feasible in light of the circumstances. Furthermore, any unilateral action would have to be legally restrained - otherwise states would only further their own interests.

One of the most recent analyses of contemporary humanitarian intervention was provided by Cassese after the NATO intervention in Kosovo. He believes that this showed the possible emergence of customary international law norms justifying forcible countermeasures to stop large-scale human rights violations in the case of a Security Council deadlock. He highlights that while this action was illegal under the Charter - due to its being out-of-date - it was justified from an ethical point of view. What is lacking from his account is an outline of what should be done after the initial use of force, an increasingly important fact to avoid constant intervention in crises without a stable structure emerging. In his view, humanitarian intervention would be an exception: 'this particular instance of breach of international law may gradually lead to the crystallization of a general rule of international law authorizing armed countermeasures for the exclusive purpose of putting an end to large-scale atrocities amounting to crimes against humanity and constituting a threat to the peace' (A. Cassese, 'Ex inuria ius oritur: Are we moving towards international legitimation of forcible humanitarian countermeasures in the world community?', European Journal of International Law Vol. 10/1 (1999): 29). This account is useful to highlight the possible customary development of international humanitarian law, an issue that will later be explored in the statements and attitudes of major political players. However, it should be noted that any NATO intervention in an African state seems a very far-fetched belief. There exists no equivalent to NATO in the present world - limiting Cassese's argument to European crises.

Another possible outline supporting the legitimacy of humanitarian intervention is forwarded by Shotwell and Thachuk (Shotwell and Thatchuk: 'Humanitarian Intervention: The Case for Legitimacy', http://www.ndu.edu/inss/strforum/forum166.html). Both believe that there is a need to define humanitarian intervention in international law for strategic and moral advantages to act as a deterrent and receive global support because of a moral high-ground position. Much like established UN practice, these authors believe that the use of force should be accompanied by pacific means of conflict resolution - as under Article 2(3) in the UN Charter. Furthermore, economic sanctions should also be in place under Article 41 in Chapter VII. In case of a Security Council deadlock, another international organization or a decision by the General Assembly would warrant the use of force - albeit only when applied proportionally.

Donnelly also expresses an interesting view on humanitarian intervention. He believes that a genocidal regime does not allow for the self-determination of its own people. Therefore, the notion of non-intervention does not apply because self-determination of the peoples is - although one of the vaguest - also one of the most fundamental principles of the UN articulated in Article 1(2) and in subsequent UN documents relating to human rights.

An article in the 'Journal of Humanitarian Assistance' (K. Mills, 'Sovereignty eclipsed? The legitimacy of humanitarian access and intervention', The Journal of Humanitarian Assistance, http://www.jha.ac//articles/a019.htm) by Mills also holds that sovereignty does not oppose humanitarian intervention because human rights guarantees create and legitimize sovereignty today. This view on popular sovereignty means that the international community is obliged to intervene if there are gross human rights violations.

Interesting as well is a proposition made by Professor Geiger at the University of Leipzig who believes that since the UN Charter was drafted in 1945 and times have changed, those clauses regulating inter-state conflict and aggression should be transferred to the intra-state level as well (R. Geiger, 'Humanitarian Intervention and the UN Charter: some remarks', http://www.ejil.org/forum/messages/46.html). This way the evolution of the UN would be more or less in tune with the general Charter outline.

There is wide disagreement involving scholars such as Moore who highlight the need for more regional intervention because of speedier response and less power politics, whereas others believe this would uproot the authority which the UN has enjoyed so far. Unfortunately, the machinery of the UN at present cannot cope with complex emergencies in an effective and timely manner.

Of course there is great debate as well on whether the UN should intervene or whether this could be a regional organization or another state as well. The view of Mills on this issue is that in some situations the UN is better qualified to intervene because it has more resources, a greater background for many types of action and it could consider human rights as the base for action. But at the same time, if authorized and mandated by the UN, a regional force could take on this task instead.

In light of the political nature of humanitarian interventions, it is interesting to examine the views expressed by representatives of the UN as well as states and their leaders. While the rhetoric may not be backed by action, a problem encountered by any theory in the 'real world', these statements provide evidence of a growing consensus in the development of humanitarian intervention and the problems it encounters.

In his 'Two concepts of sovereignty', Kofi Annan states that 'Just as we have learnt that the world cannot stand aside when gross and systematic violations of human rights are taking place, we have also learnt that, if it is to enjoy the sustained support of the world's peoples, intervention must be based on legitimate and universal principles. We need to adapt our international system better to a world with new actors, new responsibilities, and new possibilities for peace and progress' (Kofi Annan, 'Two concepts of sovereignty', http://207.254.27.219/cea/countrystories/other/19991025a.htm).

Annan highlights the fact that the UN Charter is comparatively 'old' and thus designed to suit the needs of a different era. Interestingly enough, Annan - as the main figurehead of the UN - advocates for a legal codification of humanitarian intervention so that the concept can be applied universally. His suggestions for the future are as follows:

1. intervention should not only encompass the use of force

2. sovereignty has been diminished and the national interest should accordingly be defined in a broader fashion (this coincides with new threats which face the world collectively, e.g. the environment)

3. where force is necessary, the UN Security Council must act decisively to deter future violations and to uphold the 'common interest'

4. there has to be a strong commitment to peacemaking after violence has ceased (long-term approach)

In essence, his views seem very sensible and address the main problems of humanitarian intervention today.

Probably the most famous politician's speech in this regard has been dubbed the 'Blair Doctrine'. Tony Blair, much like Annan, highlights the questions that have to be considered before an intervention can come to being. His requirements are as follows:

1. How sure is the case for intervention?

2. Have all other options (diplomacy) been exhausted?

3. After a practical assessment of the situation, which military operations can be sensibly and prudently undertaken?

4. Are all parties prepared for long-term commitment?

5. Which national interests are involved?

Much like Annan, Blair also advocates for reform in the UN system: 'Any new rules however, will only work if we have reformed international institutions with which to apply them. If we want a world ruled by law and by international cooperation then we have to support the UN as its central pillar' (Tony Blair's speech to the Chicago economic club, 22 April, 2000, http://www.quaker.org.uk/newag3.html).

In light of these two statements, it would seem as though for a legal base of humanitarian intervention to be created, there would have to be general UN reform and revitalization. In order to achieve this, the political interests of UN member states have to be fused with that of the organization - thus depending on the political goodwill and commitment of states. At present, efforts do not seem to be enough, in fact it seems as though there is an uneven response to suffering in the world, in which African countries seem to be losing out to the rest of the world (see appendix 1.4 Uneven response to suffering).

However, while these two statements are clearly very positive indications, politically the greatest adversary of the concept of humanitarian intervention is the US, the power with the greatest ability to push for any legal codification. As interventions in wars today often involve taking sides as well as identifying and disabling aggressors, the US feels threatened by the possibility of the UN waging wars against rogue states. Political sentiment in the US is very much in favor of the protection of state sovereignty and limiting UN contributions as fiery statements from Senator Jessie Helmes have shown. The Clinton Doctrine is highly selective after the experiences of Somalia and therefore very much linked to self-interest. With the new conservative Bush administration, no change in policy for the better should be expected. Disregard for international law can already be seen in Bush's response to the Kyoto Agreement. Thus no integrative and forward-looking approach is likely to occur until possibly and hopefully the next presidential elections.

For substantial and effective UN reform to enable a more forceful response to violators of international norms, the support of the US is absolutely vital. Despite such hopeful statements as provided by Blair about empowering the UN to do more, the US has in fact been long overdue on paying its financial contributions and is seeking reduction of them as well - significantly also in the contributions made towards peacekeeping and similar operations. However, on February 7th of this year, the US Senate agreed to release the overdue contributions. Nonetheless, future payments are linked to conditions, such as changes in the World Health Organization.

There is therefore a lack of consensus, or opinio juris communis, with regard to the use of force for humanitarian ends. 'The basis for the right and obligation to undertake forceful action on the part of the global community to protect human rights is established. What has not been established is the will of that wider community to act on this responsibility in a coherent and principled manner' (K Mills, 'Sovereignty eclipsed? The legitimacy of Humanitarian access and intervention').

In fact, even in the US some developments seem to be pointing in the right direction. As such, the 1998 Leahy Amendment enacted by Congress prohibits foreign aid funds to be used to build up military contingents of states committing gross human rights abuses. It is this type of law which should be strengthened, rather than creating an anti-nuclear umbrella or debating the Cuban Democratic Solidarity Act. Unfortunately, with the turnover from liberal to republican rule in the White House, possibilities for positive future changes in the area of law seem meager.

Practical problems encountered by contemporary humanitarian intervention are numerous. The legal standing of 'humanitarian intervention' is so contested because it violates most other customary or even codified norms of international law. This is most acute with regard to state sovereignty. It is ambiguous that the UN Charter supports both human rights and non-intervention. There is a need for a more refined definition of collective security in light of this clash of fundamental norms.

The practice of international humanitarian intervention in the post-Cold War era has been highly selective and will probably continue to be so. This is partly related to the fact that the international community will not intervene in issues of interest to powerful states, such as problems in Chechnya, because of the need for a win-win situation. There seems at present no way to respond to all the crises equally. 'The humanitarian challenge is heightened by the fact that the international community does not respond in a consistent way to humanitarian emergencies. Where needs are pressing, if we are not true to our most basic principles of multilateralism and humanitarian ethics, we will be accused of inconsistency at best, hypocrisy at worst' ('Criteria for Humanitarian Intervention', http://www.vuw.ac.nz/css/docs/briefing_papers/Humani.html).

A need for a universal code supporting humanitarian intervention exists because classic humanitarian assistance such as food aid etc. often is simply not enough anymore in the protracted conflicts of today. However, while the UN should provide some basic outlines for humanitarian intervention, these have to be flexible enough to address the multi-faceted problems arising from conflicts today.

In some cases, humanitarian intervention and the presence of UN troops have made the situation even worse as can be seen in the example of Somalia because this kind of action can become part of the war status quo. Furthermore, as Somalia illustrates as well, outside intervention can serve to legitimize political actors who lack proper popular sovereignty among their own population or engage in activities contrary to international law. Therefore, a revision of the Charter to include the use of force on humanitarian grounds is called for.

A complicating factor with regard to intervention is the debate about who should intervene. In some cases, regional troops and organization have helped keep the peace and security - the best example being NATO in Bosnia or Nigerian troops in Sierra Leone (ECOMOG). Any codification of legal principles on humanitarian intervention would have to address this problem. Flexibility should prevail in this aspect, making it possible for regional organizations to intervene under a UN umbrella (as already established under the present Charter regime).

One of the main accusations concerning almost all UN interventions so far has been that too little was done too late. Therefore, a legal codification of 'humanitarian intervention' would also touch on issues such as an early warning system as envisaged by Boutros-Boutros Ghali.

Beverley Chipp, chairperson of the Institute of Law and Peace states 'True humanitarian intervention should come much sooner. For too long we have treated the symptom and not the cause, and generally have waited until things reach the blindingly obvious phase before anything is done. The earlier intervention takes place, the gentler it can be, and the less the disruption to the integrity of the troubled state' (Beverly Chipp, 'Humanitarian Intervention', http://www.quaker.org.uk/newag3.html).

This view is supported by the 'Friends of the United Nations' who advocate a shift from a 'culture of reaction to a culture of prevention' (The work of Friends at the United Nations, 'In and around the UN: The dilemma of humanitarian intervention', http://www.afsc.org/quno/99dec.htm). It seems reasonable to believe that the damage will be less and it will prove less costly the earlier the UN intervenes in a trouble spot. While the reporting systems are in place and cases of violations are forwarded to the relevant authorities - a great example being the genocide fax about the situation in Rwanda - little is done before the violence reaches extraordinary levels and threatens many more neighboring countries. However, it is one of the sad facts of today's world that long-term initiatives are very difficult to uphold and actions as well as funds are more easily forthcoming in times of acute crisis. This same apathy can also be seen in the face of the AIDS crisis discussed in the second chapter.

The need for outside involvement and assistance in Africa's problems has been realized by the UN Security Council. As such, Resolution 1208 on African refugees states that 'a range of measures by the international community are needed to share the burden borne by African states hosting refugees and to support their efforts to ensure the security and civilian and humanitarian character of refugee camps and settlements, including in the areas of law enforcement, disarmament of armed elements, curtailment of the flow of arms in refugee camps and settlements� and demobilization and reintegration of former combatants' ('UN and Conflict Monitor', http://www.brad.ac.uk/acad/confres/monitor/general.html).

These sorts of tasks have broadly become known as 'nation-building' - a term disliked among UN member states because it necessarily involves a long-term commitment, as well as tasks lying within the perceived realm of the sovereign state. It is increasingly realized that the UN's commitment to war has to be as strong as its commitment to peace and the building of sound infrastructure, good governance, economic income and a rights-respecting regime to avoid future conflict and costly intervention. Unfortunately, customary international law at present still holds non-intervention in the affairs of a sovereign state as one of the most crucial pillars for UN and other international actions. A UN mandate for intervention would provide international legitimacy and would help strengthen evolving customary law on humanitarian intervention as well. This kind of legitimacy is the easiest way to avoid problems resulting from sovereignty, as was the case in Somalia.

This discussion has highlighted the difficulties in creating an international humanitarian intervention norm as well as the current clashes between theory and practice. While it may be that what is demanded seems idealist, the whole UN Charter is already more utopia than reality. Fact is that the whole world is appalled when people's human rights are violated and governments see themselves pressured into action through popular mobilization. Yet, these same governments have been unable to develop a consistent and equal approach to humanitarian problems. Political self-interest remains the main obstacle to creating genuine humanitarian intervention, no matter who is involved. This is only reinforced by the fact that no legal codification is present. Were there a legal norm, states would be able to judge their behavior against this more easily and their actions could correspondingly be judged better. However, what is needed is the coinciding of political interests to create a legal norm that can then be used as a precedent. In light of the fact that the UN Charter was designed for the 20th century and we are now entering the 21st, amendments in the Charter structure to make it more relevant to present day problems should be welcomed and supported.

Chapter II
Legal and political problems inhibiting an effective response to the AIDS pandemic

AIDS qualifies as a health problem, but it is a disease which does not only have repercussions for general well-being but is linked to other factors such as environment, economic situation, trade, social development, culture and more. Some cultural customs such as polygamy in Africa help to create an environment in which the AIDS virus can easily spread. Often these cultural beliefs have been overarched by other beliefs such as Catholicism which forbids sex with condoms (although the church has granted the use of condoms to fight AIDS in some African countries).

James Love states that 'there are many aspects of the problem - poor medical infrastructure, limited budgets, lack of education, ineffective prevention efforts, discrimination and bias, employment practices, the need to change sexual behavior, the failure of African countries to allocate greater funding to health care, the crushing burden of debt on African countries, the paucity of foreign aid, the high prices of drugs, the rules for the protection of intellectual property and bilateral trade pressures to protect the pharmaceutical industry' (James Love, 'Consumer Project on Technology', http://www.cptech.org/ip/health/aids/frist-feb24-2000.html).

The tragedy of AIDS in Africa can be measured by the numbers of children affected. An UNAIDS/UNICEF report on World AIDS Day in 1999 showed that more than 13 million children will have been orphaned by AIDS at the end of 2000, of which all but 5% live in Sub-Saharan Africa (Altman, 'UN issues grim report on the 11 million children orphaned by AIDS', New York Times, 02.12.1999). The full impact of AIDS is illustrated in a Newsweek figure found in the appendix (2.1 Figures on AIDS). For a more detailed country analysis of AIDS, please refer to the 'National AIDS Control Programme' of the United Republic of Tanzania (of special interest here is the table on 'Age and Sex Distribution of Reported AIDS Cases' p. 9 as well as the chart on the 'Possible sources of infection for the reported AIDS cases 1999' p. 10). The example of Tanzania illustrates the high rise in AIDS cases on the African continent. While in 1983 there were only 3 known AIDS cases, this increased 14732 fold by the year 1991 when the figure reached 44,195.

AIDS is spreading very fast and at very alarming rates in countries which do not have the finance or the infrastructure to effectively combat further infection rates. This means that in poorer Third World countries, people do not receive the same treatment for AIDS as they do in more developed regions and therefore many more die in Africa as a result of the diseases associated with AIDS because there are no funds to buy adequate medicines. The international community does not even provide ssufficient amounts of drugs for the side diseases of AIDS because this is deemed too costly. African governments have condemned this since they cannot afford to buy the drugs themselves. In fact, South African President Mbeki draws a relation between AIDS and poverty: he holds that AIDS is a disease of the poor and is reinforced by poor infrastructure and finance. However, Mbeki's view has been harshly criticized because it draws attention away from the more imminent causes of AIDS - although illustrating how poverty can make the situation worse.

Since a proper battle against AIDS has to touch on many issues, including economic ones such as canceling debt, various approaches should be supported. AIDS is inextricably linked to the economic situation within Third world countries - therefore legal agreements such as the African Growth and Opportunity Act should be supported. To see the link between AIDS and economics, please refer to the appendix (2.2 GDP/AIDS analysis).

But while the problem has been recognized, Zambia still pays 2 times more on repaying debt than on combating AIDS [with 3/4 of the nation potentially affected]. The health budget of the Zambian government provides �3.50 per person per annum. The allocation of drug purchases in the Delanta region of Ethiopia amounts to even less - only US� 9 per person per annum.

Only 1 in 5 of the world's population has access to health services. Often the governments in the developing world do not spend as much on health as they do on the military. In fact, the better-off groups seem to be the only ones who benefit from the drugs whereas the vast majority of the population does not.

While it would take someone in Canada, 8 working days to afford a drug; someone in Tanzania would need 215 days to purchase the same drug. This is also an issue of economics - poverty forces people to move to other areas to generate incomes and women often have to sell themselves because of lack of funds.

The problem of AIDS touches on the infrastructure in African countries. In South Africa, the main concentration of the disease is in Durban, Natal where all the mining industry is found (Channel 4, 'Money Program: The Price of Life'). In Zambia there is evidence that AIDS spreads along the truck lines of Sub-Saharan Africa (Channel 4, 'AIDS: the global killer', 27.11.2000). Because workforces in Africa tend to have to migrate for jobs, this means that fighting AIDS must also involve a decentralization of the workforce and the establishment of employment opportunities even in remoter regions.

'AIDS is the single greatest threat to development in many countries. Sub-Saharan Africa has the highest incidence of HIV: 22.3 million or 8% of all adults, 70% of all cases in the world, and life expectancy is likely to drop from almost 60 years back to 45 years over the next decade' (Lawrence K. Altman, 'More African women have AIDS than men', 'New York Times', 24.11.1999). Third world countries seem to be stuck in a vicious cycle. Less Developed Countries [LDCs] only account for 1/2% of world trade and yet receive less than 1% of Direct Foreign Aid. The economic background needed to deal effectively with AIDS is thus not established.

The main case example for AIDS in this part of the discussion is provided by the United Republic of Tanzania. The National AIDS Control Programme can be found in the appendix. What it highlights most of all is the need for economic aid. As such, the total Programme Budget to implement a comprehensive response to AIDS amounts to US$ 19,034,500, of which US$ 1,549,000 are merely for management, monitoring and evaluation. These figures pertain to the period 1998-2002. Research on the economic status of Tanzania has shown though that in 1998 alone, the total debt of the country amounted to US$ 7.6 billion ('Tanzania', http://www.jubilee2000uk.org/profile/tanzania.html). The extent of debt management on the country can be best seen in the two figures provided in the appendix (Figure 2.3 Debt in Tanzania). As regards direct foreign investment for the year 1998, Tanzania received a total of US$ 172 million ('Foreign Direct Investment Inflows', http://www.combinet.net/Indicators/fordirin.html). The figures show that economic means to battle AIDS are limited because of the need to repay extensive debt and cover other crucial areas of government.

Intellectual property law protects the rights for the creations of people's minds and covers those regulations concerning the protection of copyright and the like. Most relevant in the case of AIDS are the patent rights and the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement described as one of the three main pillars of the WTO. For many African countries, it is very difficult to implement these rules.

TRIPS applies to all WTO members, like most other WTO agreements because of the 'single undertaking' policy which came out of the Uruguay Round discussions. There is an argument that there is a general problem in the WTO because of membership increase since all consensus rulings in the organization are non-negotiable - which means that developing countries have to abide by rules which were not created with their needs in mind.

It is often argued that TRIPS was only accepted by the developing countries because they did not anticipate the outcome, a fact made worse since both TRIPS and the WTO were part of the 'single undertaking'. This 'all or nothing' mentality also helps explain why developing countries accepted TRIPS in the first place.

As regards the demands for fair economic treatment, it is interesting to examine how many members of the WTO are classified as least developed and how many of these are African. The following list will include those member countries classified as least-developed and will put the African countries into italics:

Angola, Bangladesh, Benin, Burkina Faso, Burundi, Central African Republic, Chad, The Democratic Republic of the Congo, Djibouti, Gambia, Guinea, Guinea Bissau, Haiti, Lesotho, Madagascar, Malawi, Maldives, Mali, Mauritania, Mozambique, Myanmar, Niger, Rwanda, Sierra Leone, Solomon Islands, Tanzania, Togo, Uganda, Zambia

Out of a list of 30 countries, only 5 are not found in the African continent - making problems of development particularly pertinent in Africa. A further problem is highlighted by the diversity of membership in the WTO; some members pay 9 times more on debt than on health matters. This of course is also especially true of Africa. The fact that the WTO treats every member state and their companies as equal also means that the organization does not allow LDCs more protection for development.

TRIPS member states are under Part VI of the Agreement allowed different time spans to realize all the provisions under the treaty. It allows for a longer time until compliance for less economically developed countries. The least-developed countries have a time span of 11 years, until 01.01.2006, with the possibility of further extension, to fulfill the TRIPS Agreement.

While different time spans are allowed for implementation, this does not mean there is a change in the fact that all countries have to work with the particular framework provided by TRIPS. The dates set for compliance with the TRIPS rules should not be arbitrary but set according to an intense evaluation of the country's situation.

Additionally, even by the years 2005/2006 when the LDCs are supposed to have complied with TRIPS, their development will not likely have reached the desired levels. With the still increasing gap between countries worldwide economically, it does not seem very wise, just or in the interest of universal humanitarian beliefs to advocate the same policies for countries of such great differences in development.

For the pharmaceutical and agricultural chemical products, countries have to accept the filing of patents even at the onset of the transition period, a feature known as the 'mailbox clause'. For those medicines which have been filed after 1995, every country has to accept a 5 year market exclusivity which amounts to patent rights. This does not, however, inhibit them from not granting the patent at the end of the transition time.

Nihchal Israni, president of the India Drug Manufacturers' Association states that 'TRIPS requires the availability of product and process patents for pharmaceuticals virtually from 1995, dramatically changing patent laws in developing countries that earlier allowed such exclusions. This change will, almost certainly, lead to higher prices up to about 200-300% for patented medicines, including for some important diseases such as HIV/AIDS, in countries where such patents are valid' (Oxfam Report, 'Cut the cost: Fatal side effects: Medicine patents under the microscope', February 2001,p. 19). This has been proven by a study of the US Congressional Budget Office which found that patented products cost on average three time more than generic ones.

While TRIPS allows compulsory licensing (governments can produce the drug without patent holder authorization), most developing countries cannot benefit from this because they do not have the required capacities. Safeguards provided for in TRIPS are difficult for developing countries to take advantage of because of the political pressure exerted by countries like the US as well as the threat of sanctions and proceedings under the WTO Court.

The main problem facing developing countries with regard to compulsory licensing - as correctly pointed out in the Oxfam report - is the fact that in order to practice this, a country has to be fairly advanced within the pharmaceutical field already. Furthermore, it must also be able to sustain keeping the prices at a low level. A UNIDO study of 1990 showed that most of the countries without any pharmaceutical industry and with small domestic markets reliant on exports are African states (Oxfam Report, 'Cut the cost: Fatal side effects: Medicine patents under the microscope', February 2001, p. 11).

Many African countries do not posses adequate technology - especially in areas of health, whereas the military capabilities are often over-extended. For the future, TRIPS will thus have a very negative impact on economic development because it makes local production in certain areas almost impossible to sustain.

A further problem with compulsory licensing is that once the crisis is over, prices have to go back to normal. In the case of AIDS it is very difficult to assert when this point is reached as the disease lies dormant for many years and also because of the 'gray figures' - those unknown to have AIDS or not acting on it.

Furthermore, if compulsory licensing is to be practiced, compensation has to be paid to the patent holder. The sum of this is to be determined by the WTO dispute panel but there are no clear procedures or guidelines on this - which opens the dispute up to political manipulation.

Licenses can also only be issued one at a time. This means that the process of asking the proper patent holder for a reasonable price has to be repeated. If this is not fruitful, then conditions have to be devised which will not offend the interests of the patent holder. This process is long and tedious one with very real costs in terms of the lives lost to AIDS while these dealings drag on.

TRIPS makes compulsory licensing the last resort for developing countries to take which renders its provisions even more discriminating against poor people with diseases such as AIDS.

TRIPS also allows for parallel import of a product from a country of cheaper production. But since patents are extended to 20 years worldwide, in the future there will be a lack of generic competition which will render this clause obsolete. Also, the pharmaceutical companies and the US increasingly pressure countries not to accept parallel imports (despite TRIPS provisions to the contrary).

Parallel importing works best in a truly free market where goods are available for very cheap prices and at great variety. Pharmaceutical industries have been pressing to prohibit this because it interferes with their policies of charging the maximum each individual market can sustain.

Those African governments willing to tackle AIDS and create an alliance with the pharmaceutical industry are losers either way. Legally, they should protect patents and only in the case of health emergencies resort to parallel importing and generic drug use. However under the TRIPS Agreement, once they have accepted the marketing of a specific drug, they have to provide the relevant company with the rights of patent protection. TRIPS gives countries no choice about important intellectual property aspects. As such, while countries can adopt measures to protect public health, these have to be 'consistent' with the overall agreement.

'The WTO is an intergovernmental organization dedicated to the promotion and liberalization of trade, yet it harbors an agreement that erects barriers to trade, undermines competition, and protects private rights rather than those of States' (Oxfam Report, 'Cut the cost: Fatal side effects: Medicine patents under the microscope', February 2001, p. 38).

TRIPS has several provisions which supposedly enable countries to choose own safeguards for health protection. As such, a patent can be overridden and local manufacture licensed. Article 8 allows members to adopt measures for public health protection. However, these initiatives have to be consistent with the overall agreement. The wording is very ambiguous as it is not sure which kinds of health crises qualify and which measures exactly would be in accordance with the WTO framework.

Art. 27 of TRIPS holds that countries cannot make local manufacture a condition for granting a patent. This means that those domestic companies producing overall much cheaper generic drugs are effectively excluded from the market.

Article 31 allows compulsory licensing as well as governmental use of a patent without the owner's authorization. However, there are certain conditions, expressed by the 12 subsections of this Article, which have to be met before this can come to the fore. As such, there should be a case of emergency or urgency, one needs to have previously asked for a voluntary license from the right-holder and also remuneration has to be paid. This process is long and time-consuming - while millions of people continue to suffer.

Under Article 70(9) it is held that if a government allows any pharmaceutical firm to market its own product during the transition period, the patent applicant must in most cases be given the exclusive marketing right of the product for at least 5 years. Adding on the time needed to develop and distribute a generic equivalent - how long will Africans with HIV/AIDS have to wait and how much greater must the numbers of those affected become?

The WTO and the TRIPS Agreement especially protect the owners of intellectual property. The Agreement basically provides monopoly rights to the big pharmaceutical giants, ensuring their further profits at the expense of people's lives.

TRIPS advocates the use of 20 year patents as well as limiting governmental use and compulsory licensing of them. Especially in the area of AIDS, new drugs are still underway of being developed. This provision however means that these new drugs will be protected for 20 years, making it difficult for poor people to purchase them and extending the time frame for a sufficient response to the greatest single health threat in our time.

The global patent rules established at the WTO only make medicines more expensive, which means that more people will die because of lack of funds. 'At a time when millions of people are already unable to afford essential medicines, and when public health is threatened by a combination of new diseases and drug-resistant variants of old killers, WTO rules will further reduce access to modern medicines for poor people, and lead to unnecessary death and suffering' (Oxfam Report, 'Cut the cost: Fatal side effects: Medicine patents under the microscope', February 2001, p. 1).

Oxfam believes that there is no need to have globally uniform patent periods, the fact is that before TRIPS and the WTO came into being, there was much generic production and parallel import practice. Companies generally enjoyed five to six years of patent exclusivity because it took foreign enterprises about this long to create generic versions and break into the market. This is increased by TRIPS to a time span between 15 and 20 years.

Prior to TRIPS, governments usually excluded products such as medicines from patentability. This practice was not only common in the developing world but also helped the developed world achieve its present-day standards. Is TRIPS then deliberately designed to eliminate competition and forbid the ways which have worked for others?

Critics of the WTO claim that the organization defends intellectual property rights at the expense of people's health and lives. A policy of free choice in the search for medicine threatens the pharmaceutical giants. Third World countries seem in fact to be demanding economic justice: the ability to shop the world for cheaper deals. The fact that generic versions of drugs are not allowed to be sold shows that the global marketplace actually does not represent a free flow of information and products, but rather seems to be controlled by the few with the power and resources.

The TRIPS Agreement means that newly patented products will have a market monopoly lasting 10 years longer than before. It also means that the poor will find themselves paying 3x more than they would have without TRIPS, in particular for life-saving medicines. This is part of the reason why Oxfam has dubbed TRIPS 'a prescription for a public health disaster' (Oxfam Report, 'Cut the cost: Fatal side effects: Medicine patents under the microscope', February 2001, p. 3). If countries do not comply with the 20 year patent protection, they face costly disputes with the WTO which could lead to trade sanctions. In fact, developing countries do not have the ability to make good use of the safeguards in TRIPS because they cannot afford to be taken to the WTO Court.

Much of TRIPS already proves to be economically unequal, but this is increased, since most products found in the Third World are patented by Western countries. This promotes the flow of capital out of poorer regions - an issue not mentioned in TRIPS. Often, the core ingredients for many medicines are taken from the developing world without suitable compensation. This makes TRIPS even more so part of that international law which favors the already developed countries and their enterprises.

The provisions in TRIPS were introduced only after extensive lobbying of the transnational corporations and the 20 year patent protection helps the rich northern pharmaceutical companies to extend their already dominant position in the market. Oxfam asserts that in TRIPS 'the pharmaceutical industry had achieved its greatest-ever lobby victory' (Oxfam Report, 'Cut the cost: Fatal side effects: Medicine patents under the microscope', February 2001, p. 10). George W. Merck from Merck and Co. believes that 'We try never to forget that medicine is for the people. It is not for the profits' (Oxfam Report, 'Cut the cost: Fatal side effects: Medicine patents under the microscope', February 2001, p. 36). So far, the policies of most pharmaceutical industries have not confirmed this view.

The international drug companies like Pfizer and GlaxoSmithKline have initially resisted African claims for cheaper drug prices although the equivalent drug could be bought from another country for 1/10 of the price. Pfizer argued that 'it takes more than $500 million to develop a new prescription medicine� Patent protection provides a limited period of time for the developer to recoup the enormous research and development investment' (Channel 4, 'Money Program: The Price of Life').

Because of the great and devastating impact of AIDS, there should be a rush in the pharmaceutical industry to develop a vaccine. But this has not occurred partly because those countries which would be most in need of the vaccine would not be able to pay for it. Therefore, Third World countries have argued that in order to ensure profits, the pharmaceutical industry has devoted much more funds to find cures for obesity and impotence - products which ensure profit within the industrialized countries. AIDS research in 1999 only drew $300 million of which only a smaller fraction was for the least developed countries ('Africa's twin scourges: Aid for AIDS', 'The Economist', 29 April 2000). 'The purchasing power of the 1.2 billion people living on one dollar a day does not constitute a sufficient commercial incentive to research the diseases from which they are suffering, even if there is strong patent protection - a reality admitted by companies themselves' (Oxfam Report, 'Cut the cost: Fatal side effects: Medicine patents under the microscope', February 2001, p. 29).

There is evidence of a change of heart as of the middle of 2000. By May, 5 drug companies [Boehringer Ingelheim, Bristol-Myers Squibb, Merck & Co., GlaxoSmithKline and Hoffman-La Roche] agreed to negotiate with the World Health Organization [WHO] on lowering drug prices in the Third World.

The Swiss pharmaceutical giant Roche announced that it would slash AIDS drug prices, offer free logistical support and work with the UN under an UNAIDS initiative. Also, Pfizer agreed in July to provide fluconazole free for any South African with AIDS if they could not afford it - a policy which could be extended to the whole of Africa.

This development took a very long time, much pressure and in the end a personal appeal from the UN Secretary-General, Kofi Annan. The companies agreed to work with the WHO, the World Bank, UNAIDS, UNICEF and the UN Population Fund in achieving these aims. The only reason why some critics believe drug companies have lowered their prices - and also the same reason why the US is said to have changed its policy - is to avoid Third World countries from breaking their patents. 'If companies disregard the fate of millions of poor people, they risk public criticism and the consequent threat to sales and investor confidence, as well as greater likelihood of regulatory action by governments' (Oxfam Report, 'Cut the cost: Fatal side effects: Medicine patents under the microscope', February 2001, p. 7).

Currently, the global corporations own 90% of the patents and thus have an exclusive domination over the market. The power of the pharmaceutical giants is often not matched by developing countries. Pfizer's income for the year 2000 was approximately US$31bn - of which US$24bn were from prescription pharmaceutical sales - which makes it larger than the GDP of 115 developing countries. The TRIPS rules seem to support the interests of the rich Western industries much more than those of the general people - whether in Europe or Asia or Africa - to a cheap and sensible health care system and support.

The pharmaceutical industry likes the policy of 'tiered piercing' which allows individual firms to negotiate bilaterally with the relevant countries about new and reduced price schemes. However, this kind of policy is still in favour of the big corporations who hold more power than many a developing country. If 'tiered piercing' is allowed, it has to be under the provision that the cheaper drug versions will not leave the country and penetrate other markets. In these type of discussions up to date, only 3 countries (Uganda, Senegal and Rwanda) have made agreements.

The main problem seems to be that the trade policy as advanced by the Third World is in direct clash with that advanced by the United States. US trade policy has always advanced the interests of the pharmaceutical industry. US law regarding medicines holds that there is a minimum period of 20 years for patent protection. Furthermore, compulsory licensing is not allowed - neither is a price control on the pharmaceutical industry. US law sets barriers for generic drugs and does not allow the parallel import of any medicines.

US laws which allow for 'early working' - producing generic versions of the patented drug before the patent expires - have pressed for this same policy to be ended in developing countries. These double standards simply do not seem justified, especially in face of the increasingly desperate situation affecting most of the African subcontinent.

In 1988 the 'Special 301' provision entered US trade law. It provided for the creation of a watch list of countries whose patent laws the US did not consider appropriate, and against whom trade sanctions can be applied.

Generally, the WTO has been under a lot of pressure from less developed regions, as could be seen in Seattle (1999) when demonstrations against unfair trade policies and debt cancellation along with a proposal from developing countries to change TRIPS, pressured world leaders into action. In 1997, the US tried to coerce South Africa to adhere to the TRIPS agreement and stop importing copied cheaper drugs. Public opinion in the US - as was seen in Seattle and subsequent G8 meetings - forced a change on this policy.

An executive order from President Bill Clinton on 10 May, 2000 declared that the US government would not interfere with countries in sub-Saharan Africa that violated US patent law to provide AIDS drugs at lower prices. This in fact opened up the present possibility of African countries to produce cheaper generic versions of the drugs themselves or import them from elsewhere for prices cheaper than those under US patent law. Despite such bright hopes of not bullying African countries into TRIPS provisions, organizations such as Oxfam believe that this will be reversed by President Bush now - who has a very different political stance towards the developing world.

Most US actions have not been fruitful. While realizing the economic dimension of the battle against AIDS, proposals by the US Export-Import Bank in August 2000 for loans to enable the Third World to buy AIDS drugs were not welcomed by African countries. Both South Africa and Namibia claimed that they needed affordable drugs and not a future debt strain on their already weak economies.

Rich governments have often argued that TRIPS only represents 'minimum standards' and that it has clauses which provide for flexibility - since a patent can be overridden and set prices fixed. Nonetheless, TRIPS is an extension of previous levels of protection - and there was already a significant gap between rich and poor then. Furthermore, not a lot of developing countries have the necessary expertise and experience to interpret TRIPS rules differently.

Many, such as Love, have accused the US of looking for higher protection levels than TRIPS - thus advocating a policy of 'TRIPS-plus' which proves even more unsustainable to Third World countries. TRIPS plus rules are based on the most restrictive interpretation of TRIPS, weaken the public-interest safeguards as well as allowing even longer periods of patent protection.

'TRIPS plus' rules pertain the restriction or exclusion of compulsory licensing, initiatives on extending patent life as well as prohibiting parallel importing. The data exclusivity on the products of intellectual property law under any 'TRIPS plus' regime means that it takes a much longer time to develop cheaper generic drugs - a provision which works against the welfare of millions of the world's people.

There has been much debate, as outlined in an article by McNeil in the New York Times (Donald McNeil, 'Patent Holders fight proposal on generic AIDS drugs for poor', New York Times, 18.05.2000), about how Third World governments can get around the clauses of the TRIPS Agreement. While it is only the European and American companies which can lower the price, public health and AIDS advocates as well as Third World governments and pharmaceutical industries have argued that the clauses on health emergency should be used to void the patents and enable own cheaper production.

In many cases, the regulations imposed by the TRIPS Agreement on developing and least-developed countries have been broken. As such, in 1997 the South African Government passed the 'Medicines and Related Substances Control Amendment Act, No.89' with the relevant clause 14C which allows the government to do whatever necessary to get cheap and effective drugs through an altered licensing procedure. In effect, this legislation gave South Africa the right to bypass Western pharmaceutical agents to produce or import cheaper drugs from elsewhere - such as from Indian manufacturers.

The drug AZT which inhibits the spread of the disease from mother to child is produced by GlaxoSmithKline whose Bill Collier has claimed that the price of the drug was already 75% below elsewhere in the world in South Africa. Yet, the government there took a long time before allowing the use of AZT because of African suspicion of the pharmaceutical giants. Long-term losses for the industry will be great - both economically and morally - if policies remain so anti-humanitarian.

The pharmaceutical industry has argued that the benefits which will be generated from the 20 year patent exclusivity, will forward the funds needed for further R&D [Research and Development]. However, it is questionable whether these companies will use funds for the research of the diseases of poverty. There is much evidence today that drugs are developed to suit the needs of the developed world which sets the market demand. This is why it is much easier to get viagra than to get a proper drug to fight AIDS related illnesses. Oxfam shows that only 10% of research deals with the illnesses which make up 90% of the global disease burden.

Critics of the WTO hold that there need to be more funds to increase the budget for development assistance. Therefore, the only legal battle that can be fought against AIDS has to include economic factors such as producing a cost-effective and realistic price for AIDS drugs - otherwise it seems difficult to see how the lives of people would improve with large amounts of foreign debt.

Because R&D led by the market excludes the needs of much of the poor populations, there is a need for this to be financed by governments. Maybe the pharmaceutical companies cannot be blamed solely for this because they are themselves subject to stockholders and markets for investments in their research. Many such proposals are now being realized in the alliances of governments, the private sectors and the corporate services. Much of this research for new drugs is thus now funded by governments, charities and tax breaks.

There is a vast amount of international organizations with legal capacities which are linked to the TRIPS agreement and AIDS in general. AIDS has penetrated the agendas of all kinds of organizations worldwide.

As such, AIDS has reached the UN Security Council which voted unanimously in July 2000 to intensify AIDS education among peacekeepers and provide voluntary testing so that they will not spread the disease while on a UN mission.

In the 2000 Special Session of the General Assembly on Social Development, one of the key discussions revolved around the availability of medicines at reasonable prices. At this session, the Group of 77 proposed that essential and life-saving medicines should not be patented and first priority should be given to human rights - not TRIPS provisions.

The UN World Health Assembly in May 1999 made the WHO responsible for providing technical support on patents to developing countries. The WHO also carries out the function of monitoring the effects of international agreements on drug accessibility.

The TRIPS Agreement is supervised by the TRIPS Council which is made up of all the members of the WTO. Its functions include monitoring capacity of the operation and enforcement of the agreement. But the Council also has the task of ensuring that the developed countries fulfill their obligations and commitments to the developing world, especially regarding technical cooperation. Furthermore, it has the crucial function of being able to review the TRIPS Agreement at any time in order to modify or amend certain clauses.

A further interesting organization with regard to intellectual property rights is the World Intellectual Property Organization (WIPO) which was created in 1967, came into force in 1970 and has been part of the UN as a specialized agency since 1974. WIPO is the intergovernmental administrator of international intellectual property law conventions. The organization's aims are to create uniform patent provisions. The main tasks are to promote protection and cooperation for intellectual property law. One of the policies has been concerned with development cooperation for those countries not economically sound. WIPO has agreed to cooperate with the WTO.

The International Federation of Pharmaceutical Manufacturers' Associations (IFPMA) represents the rights of pharmaceutical giants and also serves as the main forum for discussions regarding availability and pricing of drugs. There have been meetings between WHO and the IFPMA designed to provide better access to drugs for Third World countries, especially on the African continent. Allegedly, there is commitment from the main pharmaceutical industries towards making drugs more affordable, albeit the fact that the process seems to be painfully slow.

A further organization which helps battle AIDS is the Global Business Council on HIV/AIDS which was set up in 1997. This organization works under the wings of UNAIDS and the National AIDS Trust (UK). Member companies include MTV, Levi's, Eskom, etc. AIDS makes itself felt in the business sector because of the economic dimension of the disease - one of the primary reasons for the establishment of the Global Business Council. Efforts include such as practiced by Anglo Coal, a large mining company in South Africa which supports many HIV- prevention activities and funding. The responses initiated in this sector are very diverse - and rightly so because of the multi-faceted nature of AIDS.

In promoting a better response to AIDS, I agree with the recommendations laid out by Oxfam. They stress the right to make and import low-cost generic drug equivalents and the establishment of an international fund of US$5 bn under WHO direction which ensures patents will remain public goods and that prices are controlled. Dr. Brundtland, Director General of the WHO states that 'access represents a very important measures of the quality of health services. It is one of the key indicators of equity and social justice' (Oxfam Report, 'Cut the cost: Fatal side effects: Medicine patents under the microscope', February 2001, p. 15).

Oxfam's scheme gives the WHO the power to classify markets worldwide according to their needs and capabilities. Prices for any materials should then be compared to the overall market situation. This is a very sensible suggestion - one which seems very linked to the demand for a New International Economic Order [NIEO].

In accordance with this, James Love holds that the best way to get the cheapest and best quality production of drugs in light of the AIDS pandemic today is to allow fast-track compulsory licensing, to coordinate global production (take advantage of cheap locations, best international production facilities, etc.) and agree within the WTO that patent exceptions for medicine produced for export is reasonable under TRIPS Article 30.

Essential drugs should be seen as public goods mounting to something like a human right. In developing countries, and especially in Africa, an evaluation of essential drugs which excludes AIDS medicines seems very out of place.

Article 15 of the Universal Declaration of Human Rights states that 'everyone has the right to share in scientific advancement and its benefit'. The scientific advancement in the areas of AIDS and related medicines can be used to everyone's benefit if the terms are laid out more equal and with more regard for the present health catastrophe. Availability of AIDS drugs can thus be seen as a basic human right - that of equality for the benefits of science.

The UN Sub-Commission on the Promotion and Protection of Human Rights has declared that 'since the implementation of the TRIPS Agreement does not adequately reflect the fundamental nature and indivisibility of all human rights including the right of everyone to enjoy the benefits of scientific progress and its applications, the right to health, the right to food, and the right to self-determination, there are apparent conflicts between the intellectual property rights regime embodied in the TRIPS Agreement, on the one hand, and international human rights law, on the other' (Oxfam Report, 'Cut the cost: Fatal side effects: Medicine patents under the microscope', February 2001, p. 39).

Conclusion

Both discussions - first on humanitarian intervention and then on AIDS - concern the wider framework of human rights. The UN Charter should stress individual rights more than those of the state and should make justice and guarantees of human rights the main aim of the Charter, rather than merely peace. Regarding AIDS, economic considerations seem to prevent the full realization of many different kinds of rights: economic rights, social rights, political rights, cultural rights, legal rights, and so on. In order to combat AIDS effectively, all these individual human rights have to be dealt with.

The National AIDS Control Programme of Tanzania repeatedly complains of a lack of political will for the implementation of previous AIDS plans. The plan states that 'all in all, like in the previous phases of this programme, the viability of this management mechanism still depends very much on the political will and commitment of and efficiency of every player at all levels of central and local government' (The United Republic of Tanzania, 'National AIDS Control Plan', p. 38). This same quote could be inserted into any discussion on humanitarian intervention, even without changing the wording. Humanitarian programmes, like those for AIDS, suffer in their practical implementation because of the limited dimensions of national concern and overriding policy issues. Unfortunately, more money is still spent on the military rather than the health sector or that of human rights.

Another grave problem, which also confronts humanitarian intervention discussed in Chapter One, is bad governance. This was addressed by Kofi Annan and effective AIDS policies require a committed government. If more finances were directed towards health services rather than military ones, a great step in AIDS prevention would be taken. Unfortunately, very much like in Chapter One, these kind of initiatives depend on the political goodwill of the state machinery and individual political leaderships.

Both discussions have also focused on the problem which is faced by US policy. It seems that in order to generate a better response in both humanitarian and international health fields, what is required is a consistent commitment from America. The power which the US has is illustrated in all fields of state policy - this power has to be merged with the interests of African states. A middle ground policy should be found which will enable a more consistent and thus much less controversial practice of humanitarian intervention. As regards the AIDS drugs, the US should not hold double standards. While a company such as Microsoft is dismantled in the US with the aid of the legal system for holding a dangerous monopoly, this same practice is tolerated when it comes to the pharmaceutical industry - only in this case it is on a global scale. As the discussion on AIDS has illustrated, what is required is a humanitarian intervention into the health care field. This is linked to the traditional concept because it involves tasks defined as nation-building. What is needed most of all is to overcome the notion that this involves an illegal breach of sovereignty. The discussion should have shown most of all is that international cooperation in these areas is required and that often, African states do not perceive international help as breaches of domestic jurisdiction. Again, one should work with ideas coming from the country in question and combine this with international experience and expertise. Both AIDS and human rights violations are problems which transcend the previously domestic - partly because customary norms have evolved which hold human rights as a primary pillar of the world system.

The main conclusion which is therefore drawn from this discussion is that in the present world - for the areas of humanitarian intervention and AIDS, maybe even other international law provisions - there is the need to base law on individual human rights. These have to be guaranteed first and foremost - if they were fully in place, we would not have to face humanitarian catastrophes or threats arising from AIDS. In light of the UN Charter as well as subsequent agreements such as TRIPS, it should be clear that peace and equity are not the only crucial values in today's complex and interdependent world. What is just as important and has to be accommodated to fit with these core values are notions of human rights as well as global justice.

International law up to date has laid the very important groundwork in this evolution. But alas - it is not enough. As long as there is no codification of humanitarian intervention and no consensus behind crucial agreements such as TRIPS, international law will in these areas remain the instrument of the powerful against the weak. While this may be justice for some, it is not so for the many. As long as the law does not provide an equal concern for all, it is just as smokescreen for initiatives of the strong.

Bibliography

Books:

'Nationalism and self-determination in the Horn of Africa'
edited by I.M. Lewis
1983, Ithaca Press, UK

'United Nations peacekeeping and the non-use of force'
F.T. Liu
International Peace Academy Occasional Paper Series
1992, Lynne Rienner Publishers, Inc, London, UK

'The long struggle of Eritrea for independence and constructive peace'
edited by Lionel Cliffe and Basil Davidson
The Red Sea Press Inc., 1988

'AIDS and the Third World'
Panos Dossier published in association with the Norwegian Red Cross
1988 Panos Publishing Ltd., UK

Journals:

'New Routes: A Journal of Peace Research and Action'
Volume 4, No. 4, 1999
Published by the Life and Peace Institute
Special edition only on Africa and problems there

'European Journal of International Law'
1999 Vol.10, Nr.1, p. 23-30
'Ex iniuria ius oritur: Are we moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?'
Antonio Cassese

'Newsweek'
Vol. CXXXIV, No. 1, July 5, 1999 p. 24-29
'Give us this day our daily meds'
Marcus Mabry

'Newsweek'
Vol. CXXXVI, No.3, July 17, 2000 p. 24-26
'Breaking the silence'
Tom Masland

Newspaper Articles:

'Deadly cost of the New Warfare'
The Times
1999

Internet:

'The Journal of Humanitarian Intervention'
'The politics of humanitarian intervention'
Tobias Vogel
http://www.jha.ac//articles/a011.htm

'UN and Conflict Monitor'
Documentation and Commentary
http://www.brad.ac.uk/acad/confres/monitor/general.html

'The Economist'
Vol. 18, September 1999
'Kofi Annan's "Two concepts of sovereignty"'
http://207.254.27.219/cea/countrystories/other/19991025a.htm

'Humanitarian Intervention: The Case for Legitimacy'
Charles B. Shotwell and Kimberley Thatchuk
http://www.ndu.edu/inss/strforum/forum166.html

Several sources

(Annan: 'The legitimacy to intervene', Blair's Chicago Speech, and a comment by Chipp of the Institute of Law and Peace)

http://www.quaker.org.uk/newag3.html

'The legality of humanitarian intervention'
Nicholas Tsagourias
http://www.nottingham.ac.uk/law/htlc/hrnews/march96/HUMANIT.HTM

'What happened to humanitarian intervention?'
James P. Muldoon
http://www.bullatomsci.org/issues/1995/ma95/ma95.muldoon.html

'The changing nature of humanitarian crises: Implications for US policy and Effective Response'

Roberta Cohen

http://www.brook.edu/views/speeches/cohenr/19990723.html

'Saving lives with force: How to stop genocide'
Michael O'Hanlon
http://www.brook.edu/views/op-ed/ohanlon/19990712.htm

'Humanitarian Military Intervention'
Jules Lobel, Michael Ratner and editors Tom Barry and Martha Honey
http://www.defense-and-society.org/FCS_Folder/ratner_critique.htm

'Senate ends bitter dispute with the UN on US dues'
'New York Times' February 8th, 2001
Lizette Alvarez
http://www.nytimes.com/2001/02/08/world/08DUES.html

'Humanitarian Intervention'
http://www.unac.org/canada/bowles98/inter.html

'In and around the UN: The dilemmas of Humanitarian Intervention'
The work of Friends at the United Nations
December 1999
http://www.afsc.org/quno/99dec.htm

'European Journal of International Law'
'Humanitarian Intervention and the UN Charter: some remarks'
Response to the articles posted by Simma and Cassese
Rudolph Geiger
http://www.ejil.org/forum/messages/46.html

'The Journal of Humanitarian Assistance'
'Sovereignty eclipsed? The legitimacy of Humanitarian Access and Intervention'
K Mills
http://www.jha.ac//articles/a019.htm

'TACD: Trans-Atlantic Consumer Dialogue'
http://www.ispo.cec.be/ecommerce/multilateral/tacd.html

'Health Care and Intellectual Property'
http://www.cptech.org/ip/health/

'Frequently asked questions about TRIPS'
http://www.wto.org/english/tratop_e/trips_e/tripfq_e.htm

'Consumer Project on Technology'
http://www.cptech.org/ip/health/aids/frist-feb24-2000.html

'Tanzania'
http://www.jubilee2000uk.org/profile/tanzania.html

'New York Times' 18.05.2000
'Patent Holders fight proposal on generic AIDS drugs for poor'
Donald McNeil, Jr.
http://www.nytimes.com/library/world/global/051800aids-drugs.html

'New York Times' 22.08.2000
'Loans to buy AIDS drugs are rejected by Africans
Rachel L. Swarns
http://www.nytimes.com/library/world/africa/082200africa-aids.html

'New York Times' 17.10.2000
'South Africa retreats from AIDS debate'
Henrie E. Cauvin
http://www.nytimes.com/2000/10/17/world/17AFRI.html

'Prospects for the developing countries in the next round'
Mike Moore (WTO Director-General)
http://www.wto.org/english/news_e/spmm_e/spmm25_e.htm

'New York Times' 12.05.2000
'Companies to cut cost of AIDS drugs for poor nations'
Donald McNeil Jr.
http://www.nytimes.com/library/world/africa/051200africa-aids.html

'Top 10 reasons to oppose the World Trade Organization'
http://www.globalexchange.org/economy/rulemakers/topTenReasons.html

'Challenges for the global trading system in the new millennium'
Mike Moore
http://www.wto.org/english/news_e/spmm_e/spmm08_e.htm

'AIDS activists: drug companies "inflicting holocaust on the poor"'
Alex Duval Smith
http://www.commondreams.org/headlines/071000-02.htm

'International Federation of Pharmaceutical Manufacturers Associations' (IFPMA)
http://ifpma.org

'Foreign Direct Investment Inflows: 1990-1998'
http://www.combinet.net/Indicators/fordirin.html

International Law Treaties:

The UN Charter

The Convention for the Amelioration of the Condition of the wounded and sick in armed forces in the field

The Universal Declaration of Human Rights

The World Trade Organization's TRIPS Agreement

TV Programs:

'AIDS in Africa'
Money Program: 'The Price of Life'
Channel 4

'AIDS: the Global Killer'
27.11.2000
Channel 4

Special readings:

'The business response to HIV and AIDS'
Georgia Franklin
Presented in August 2000 at the Expo in Hannover

'Cut the cost: fatal side effects: Medicine patents under the microscope'
February 2001
Oxfam Report

Leonie Schultens