(project leader: Filippo di Robilant)

DRAFT PROJECT (February 1994)

SUMMARY: The main aim of the campaign is to fill in a void in international law by creating a new instrument for reacting globally and in a concerted manner to pandemics, such as in the case of the HIV/AIDS epidemics. The transnational Radical Party indicates three possible options: the adoption of an ad hoc UN Convention, a Universal Declaration or an amendment to the World Health Organization's Constitution empowering it with a special mandate for fighting pandemics. These options do not exclude one another as supranational instruments to fight pandemics and other life-threatening diseases.

WHY THE URGENCY

The global response to the AIDS pandemic is inadequate and highly unrealistic. In too many countries AIDS is merely considered as a health problem while it should also address its political and institutional implications as well as the issue of human development.

Recently WHO pinpointed a number of shortcomings, within the UN system, of varying degrees of severity : ineffective links between accepted global policies and action at country level, conflicting provision of technical advice, different interpretations of the mandates and areas of expertise of the various organizations, competition for financial resources, insufficient coordination of input to different ministries at country level, slow response to the pandemic... (i)

National AIDS programs are still, without doubt, too narrowly conceived as government programs rather than as combining the efforts of the executive bodies, NGOs, non-profit organizations and the private sector. The challenge faced by the international community requires instead complementary, coordinated, sustainable and transnational cooperation: the fact of the matter is that the virus ignores boundaries, so an essential instrument to fight it is to establish a common policy between States.

Up to now international advocacy, accountability and coordination have been deficient. Financial resources have plateaued and even declined, such as in the case of WHO since 1991 when, for the first time, contributions waned, by approximately 12.1%. The global "ethic" of caring has not taken shape and the global vision of the pandemic is paradoxically dimming instead of sharpening. Unfortunately, wealthy nations are showing a growing preference to work independently, or on bilateral basis with developing countries. This means that international organizations do not have the proper credibility to promote agreements on allocation of responsibilities and on coordinating mechanisms. In short, global leadership, if ever there was one, is rapidly declining.

Furthermore, other global issues are intertwining with the progress of HIV/AIDS: the spread of drugs, the continuing subordinate status of women, the reemerging of tubercolosis and other dread diseases, malnutrition and famine...

In the light of this generalized negligence and irrationality, precautions and universal policies that have proven to yield results must be enforced, simply starting by working towards risk reduction: in the case of Western diffusion, for instance, a clean needle in exchange of a dirty one, methadone instead of street heroine, safe sex rather than abstinence...

But let us not forget that the emergence of AIDS appears to be a natural consequence of the progressive destruction of the tropical biosphere. The rain forest, being by far the planet's largest reservoir of both plant and animal species, is also its largest reservoir of viruses. Nowadays there are too many people entering too many ecosystems and violating them. Unknown viruses are coming out of the equatorial wildernesses of the earth and discovering the human race. When an ecosystem suffers degradation, many species die out but a few survivor-species undergo population explosions. Viruses in a damaged ecosystem come under extreme selective pressure and react to change by rapidly mutating and jumping among species of hosts. Health specialists are wondering whether HIV is not the only rainforest virus that will sweep the world: actually, the human immunodeficiency virus looks as an emblematic case rather than a culminating disaster, that could instead have the name of already known lethal viruses such as

the Ebola varieties, Marburg, Junin, Lassa, Machupo, Guanarito, Dengue, O'nyong-nynong... And the presence of international airports puts every virus within a day's flying time from any point on the opposite side of the globe.

ACTION TO BE TAKEN WORLDWIDE

Immediate

1) intervention in defence of persons with HIV and AIDS: their human and civil rights must be promoted and protected and no forms of discrimination must be tolerated ( mechanisms of classification and segregation, like all coercive measures, are unmotivated, whilst we must unfortunately note that in many countries acts of discrimination continue to occur in the workplace, against the immigrant population, against prison inmates, etc...);

2) provision of essential drugs must be secured, at reasonable prices, to infected persons wherever they may be;

3) promotion and distribution among populations of condoms, the "least dangerous means possible" in the absence of completely effective methods of prevention;

4) provision of guaranteed supplies of uncontaminated blood in hospitals ( ten years after the development of HIV diagnostic tests, unscreened blood is still being transfused in most developing countries); in this field it is not unrealistic to imagine setting up a supranational body establishing a trademark internationally recognized that would guarantee the quality of the blood and withdrawn in case of non-fulfilment of the rules of surveillance;

5) implementation of needle exchange programs for intravenous drug users (ii);

6) UN Agencies (UNICEF,UNDP,UNESCO,UNFPA,World Bank), under the aegis of WHO, must be compelled to cooperate instead of creating useless doubles; similarly, unsavoury competition among social scientists and scientists must be discouraged.

We welcome the goodwill underlying the adoption by the Executive Board of the WHO on January 21, 1994, of the resolution establishing a joint and cosponsored UN programme on HIV/AIDS under the supervision of a unified secretariat administered by WHO. Nonetheless we express reservations on such a programme unless real structural changes are not brought about and a bureaucratic approach continues to prevail. We feel that streamlining all efforts is possible only through a direct chain of command, starting from a personal involvement of the UN Secretary General and the nomination as Director of a personality of worldwide reputation and personal prestige.

7) a national and worldwide surveillance system is vital in order to identify emergences as they happen and modernized and strengthened vaccine programs, including a "surge" capacity for vaccine development, are needed; more virologists and field epidemiologists must be trained, as they are the detectives that help us find and know our enemies.

Short-term

1) Governments must regularly provide to public opinion adequate up-datings on the progress of the epidemic, while national and supranational bodies must constantly monitor the short and long-term consequences of the measures taken; the right to information, as recognized among others by article 19 of the International Covenant on Civil and Political Rights, must be promoted and safeguarded, in particular in schools with the aim of reaching the youth before they become sexually active;

2) an antiprohibitionist approach to the drug problem: drug-related harm, such as AIDS, is mostly a direct consequence of prohibition rather than consumption; this has also been recognized by WHO (iii);

3) campaigns for the right to health, as enshrined in the Universal Declaration of Human Rights and other conventions including article 12 of the International Covenant on Economic, Social and Cultural Rights. It is generally agreed that there is a minimum core content of each right which constitutes a "floor" below which the conditions should not be permitted to fall in any State party to the Covenants;

4) improvement in the social status of women. On average, women tend to become infected earlier than men. In many parts of the world, women are not in the position to protect themselves from infection as they are unable to control or negotiate safe sex, including the use of condoms. In such cases families, school officials and community leaders must begin to value girls as much as boys, giving them the same access to adequate nutrition, education, health services, economic autonomy and legal rights (iv);

5) raise the level of North-South financial and political cooperation, including an open dialogue on global health and a clear willingness on the part of wealthy nations to subsidize improvements in the social and environmental conditions in developing countries;

In short, we must get rid of measures that do not work. We must face up reality of risk reduction. We must prevent AIDS from becoming a disease accepted as a tragic destiny, only because those who have the power to do something have lost interest and those who have no power also have no choice.

INSTITUTIONAL OBJECTIVES OF THE CAMPAIGN

Despite the global nature of the pandemic, at the moment - as mentioned - there is no international legal framework on AIDS, a sign of the lack of consistency with which the battle has been carried out so far. We urgently need new transnational legal tools capable of guaranteeing the enforcement of common rules, together with a recognized supranational body with binding powers enabling it to force Member States to implement the proper action.

For the record, Governments officially convened on the subject of AIDS only in October 1987 for a special session of the UN General Assembly, which resulted in a Resolution calling for coordinated and strong international action, and in January 1988, in London, where Health ministers gathered for the Global summit on Aids. Finally, in June 1994, a Summit of Heads of Government will be held in Paris with the objective of reviewing the global strategy. In the light of such poor commitment it is not surprising that the authors of "AIDS in the World" wrote that the history of the mobilization against AIDS shows that although the involvement of ministries of health is necessary, it is not sufficient (v).

First option: an ad hoc Convention on AIDS and other Pandemics

The fall of the Eastern block has determined the first major political opportunity since the beginning of the Cold War for reforming and revamping the UN system. Today efforts that have been impossible for the last fifty years can be realistically attempted.

UN Conventions exist by the hundreds but oddly enough not on AIDS, which is the global issue par excellence. In theory the cause of AIDS would receive great benefit if only a few of the already existing Conventions were respected and fully implemented : for instance the Convention on the Rights of Children or the Convention on the Elimination of All Forms of Discrimination against Women. Another benefit for AIDS would be to introduce a link between AIDS and the concept of reduction of health and social risk in the Convention against the Illegal Traffic of Narcotics and Psychotropic Drugs (1988). But these would only represent half-measures.

The idea of an ad hoc Convention on AIDS is not a panacea. However a Convention, unlike a Declaration for instance, makes States legally accountable for their action, therefore resulting in a powerful instrument for exerting pressure on recalcitrant countries to adopt common rules and regulations without delay.

Binding obligations for States means giving up national sovereignty, as would be the case in the above-mentioned International Institute for Blood Transfusion and Surveillance of Blood Products. On the other hand, considering the boundless nature of the virus, the concept of "interference on health and humanitarian grounds" is not inconceivable in this case.

Technicalities and timing: the procedure for the adoption of a UN Convention is rather long. The first step is to ensure that the 49th Session of the General Assembly ( 20 September-10 December 1994) has the issue of AIDS on the agenda. A Member State must therefore formally request it, not later than 30 days prior to the opening day of the Session - but ideally the sooner the better - by means of a brief, not more than two page long, resolution. During the Session, the Assembly must acknowledge the fact of establishing a Convention on AIDS as a matter of priority and create a working group of experts whose mandate is usually not shorter than a couple of years. The next step will be the convening of an international conference in order to adopt the content of the Convention. The General Assembly must subsequently give its approval and transmit it to the national Parliaments for their final ratification. The whole procedure can take up to 6 years.

The 50th Anniversary of the United nations - 1995 - will be a unique opportunity to convey a UN with a human face at work and to push for a more democratic and less bureaucratic UN system. It seems a very appropriate period for such a debate on AIDS and other pandemics to take place. The Paris Summit scheduled in June 1994 on the new strategies to fight AIDS can instead represent a high profile forum and a mediatic occasion for one of the Member States to publicize the proposal.

Second option: an amendment to WHO's constitution empowering it with a special mandate to globally combat pandemics, and specifically AIDS.

WHO is the Agency foreseen by Art.57 of the UN Charter to act on matters related to world health.

WHO's Constitution goes back to 1946 and was amended only twice, in 1977 and 1984. The Constitution allows WHO to address Member States with recommendations, regulations, resolutions and decisions; the formula usually used is "WHO urges Member States".

Art.21 of the Constitution mentions adoption of regulation to prevent the international spread of disease and Art.22 provides that such adopted regulation should come into force for all Members after due notice has been given of their adoption by the Health Assembly except for such Members as may notify the Director-General of rejection or reservations within the period stated in the notice. To what extent these regulations become binding obligations for Members who do not notify the Director-General of rejection or reservations within the period stated in the notice, is not specified.

Also Art.28 states that the Executive Board may take emergency measures within the functions and financial resources of the Organization to deal with events requiring immediate action; in particular, it may authorize the Director-General to take the necessary steps to combat epidemics. Here too, indications regarding the extent of the mandate are generic.

WHO's Constitution is clearly not equipped to confront the AIDS pandemic. Despite reservations one might have concerning WHO's present ability to deal with the manifold problems posed by world health, it is the only supranational body to which international public opinion can address. It is fully understood that WHO provides only technical expertise but a stronger mandate could allow it to have more power and more credibility in order to have the proper action implemented and, vice versa, more transparency and control could be carried out on its activity.

Technicalities and timing: Art.73 of the Constitution provides that texts of proposed amendments ...shall be communicated by the Director-General at least six months in advance of their consideration by the Health Assembly. Amendments shall come into force for all members when adopted by a two-thirds vote of the Health Assembly and accepted by two-thirds of the Members in accordance with their respective constitutional processes. Art.13 indicates that the Health Assembly shall meet in regular annual session and in such special sessions as may be necessary; special sessions shall be convened at the request of the Executive Board or of a majority of the Members.

Third option: a Universal Declaration.

A Universal Declaration does not entail binding obligations but it might develop into a truly comprehensive system, giving public opinion, and especially affected people, a further instrument to have the proper action enforced and individual rights respected.

Technicalities and Timing: declarations of principles are provisions adopted by the General Assembly and are not mandatory. Only if they reproduce existing international customary norms can they become binding, in which case it is necessary to establish whether the consent is so extended to ascribe it to the international community as a whole, by taking into account not only the votes cast against and the abstentions but also the reservations that often accompany favourable votes

ENDNOTES

(i) EB93/INF.DOC./5

(ii) One of the heaviest consequences of the prohibitionist approach to drugs is the extensive spread of HIV and other blood borne diseases such as hepatitis. This point of view was clearly put forward by Eric Sterling, President of The Criminal Justice Policy Foundation (Washington), in a Memorandum addressed to the Surgeon General of the United States, Dr.Joycelyn Elders, in October 1993. In the States, syringes are classified as drug paraphernalia, and hence are illegal. That makes clean injection equipment scarcer and more expensive, and possession of needles a probable cause of arrest.

The Memorandum goes on reminding that "the National Commission on HIV and AIDS has called for clean-needle exchanges as an HIV transmission prevention measure ( Report Number Five: The Twin Epidemics of Substance Use and HIv, July 1991, Recommendation 2). However, "war on drugs" doctrine considers sending the right "message" to be of paramount importance. The "message" that sale and possession of injection equipment is prohibited is more important than preventing the spread of HIV through the sharing of needles. Consenquently, section 2025 of the Anti-Drug Abuse Act of 1988 denies any drug treatment funds to States which distribute sterile needles or bleach to clean needles. Nevertheless, a growing number of American cities have recognized the importance of needle exchange and have adopted programs."

Furthermore "the nation's blood supply is put at somewhat greater risk for spreading HIV...because addicts sometimes can succesfully sell their blood to buy expensive illegal drugs..."

(iii) "Preventing and Controlling Drug Abuse", 1990; Resolution WHA 43.10 of May 1990; Resolution WHA 45.35 of May 1992);

(iv) United Nations Development programme: Young Women: Silence, Susceptibility and the HIV Epidemic. New York: UNDP HIV and development programme, 1993.

(v) "AIDS in the World", Harvard University Press, Cambridge,

Massachussets, and London, England,1992.