Institute for the Study of Diplomacy Case Study: Cases 304, 254, 146, 164, 343, 328, 249, 202 1569272786

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Institute for the Study of Diplomacy Case Study

Case 304

GOING TO THE UNITED NATIONS: George W. Bush and Iraq

Curtis H. Martin

Cover photo source: http://archive.defense.gov/news/newsarticle. aspx?id=42438

Case 304

Going to the United Nations: George W. Bush and Iraq Curtis H. Martin ISBN: 1-56927-278-6 Copyright © 2005 by the Institute for the Study of Diplomacy

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior permission of the Institute for the Study of Diplomacy. The opinions and analysis contained in this case study are solely those of the author(s), and do not necessarily reflect the views of the Institute for the Study of Diplomacy, the School of Foreign Service, or Georgetown University.

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This case study was made possible (in part) by a grant from the Carnegie Corporation of New York. The statements made and views expressed are solely the responsibility of the author.

Part A Going to the United Nations: George W. Bush and Iraq CUR TIS H . MAR TIN MER R IMAC K CO L L EG E

When President George W. Bush rose to speak before the United Nations (UN) on September 12, 2002, a worldwide audience waited to hear whether the most powerful nation on earth would, or would not, seek authorization from that body to use military force to depose and disarm the Iraqi dictator, Saddam Hussein.1 Saddam Hussein had ruled Iraq for twenty-three years. His brutality was legendary. Having cut his political teeth on bloody coups and Baath Party intrigue in the 1960s and 1970s, once in power Saddam continued a pattern of iron rule that included widespread and gruesome torture, retribution, and mass murder. In enforcing fealty to the leader, no tool of torture was too extreme. Nursing babies were held at arm’s length from their imprisoned mothers and allowed to starve; eyes were gouged out and ears sliced off; the small bones in feet and hands were smashed with hammers; whole bodies were dunked in vats of acid in efforts to extract confessions or wreak punishment; and children were tortured in front of their parents.2

All in all perhaps more than two hundred thousand Iraqis were killed under Saddam’s rule, and most all save those in his favored inner circle and the elite Republican Guard lived in fear. Any persons believed disloyal or potentially disloyal, including family, faced imprisonment and death. During his rule, Saddam launched a ten-year war against Iran that cost more than a million lives, including thousands of Iraqi Kurds gassed by Saddam’s own troops, and bankrupted his own country. Yet only two years after the end of that conflict, he had seized and annexed another neighbor, Kuwait, where he continued his reign of terror. Despite his subsequent defeat by the United States and a UNsanctioned coalition that included his Arab neighbors, Saddam clung to power. For ten years, Saddam had evaded, defied, and ultimately expelled inspectors sent by the United Nations to find and destroy weapons of mass destruction (WMD) left over after his defeat in the 1991 Gulf War. Throughout the 1990s, UN inspectors had destroyed tens of thousands of chemical warheads and huge quantities of chemical agents, but the Bush administration was convinced that Iraq still had active nuclear, biological, and chemical weapons programs. As part of the “war on terrorism” following the attacks of September 11, 2001, the president and his advisers had turned their attention to certain “rogue states”—an “axis of evil”— that they believed might combine with terrorist organi1

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zations in a deadly anti-U.S. alliance. Iraq was at the head of the list. Bush and his senior officials agreed that Iraq had to be stripped of any capacity to make, use, or sell WMD or to offer a haven for terrorists. But the administration was deeply divided over the best way to achieve that objective—whether to continue working through the United Nations or to act alone as it saw fit. THE UNITED NATIONS Formed at the end of World War II, the United Nations was created by all the victorious powers, led by the United States, to end the scourge of war. The UN charter obliged its signatories to refrain from the use of force except in self-defense or in cases where the Security Council authorized a “collective” response to an armed attack against another member state. The Security Council, operating on the principle of unanimity among the five great powers—the United States, Britain, China, France, and the Soviet Union—had responsibility for maintaining “peace and security.” The charter had assumed that the great powers, appalled by the recent carnage of World War II, would share a revulsion for war and a determination to halt aggression. It had not turned out that way, as the Cold War quickly divided the council into the Union of Soviet Socialist Republics (U.S.S.R.), and soon China, vs. the rest. When the Soviet Union collapsed, liberal internationalists’ hopes were raised that in the “new world order” the United Nations would be able to fulfill its original promise as a peacemaker. The successes of the Security Council in 1990 and 1991 in mobilizing for the first Gulf War, and later in imposing an intrusive regime of weapons inspections and sanctions, seemed to confirm this vision. In the aftermath of the war, UN inspectors eventually found and destroyed thousands of tons of chemical and biological weapons and dismantled WMD facilities. Throughout the last half of the decade, however, hopes for a vigorous United Nations were again disappointed when that body failed to act decisively during the Bosnian and Rwandan genocides. Even when it came to dealing with Iraq, the United Nations faced ebbing support for enforcing either inspections or sanctions, as both governments and their publics protested the heavy toll—more than two hundred thousand deaths by some estimates—that sanctions were taking on ordinary Iraqis. By 1998, the United Nations had pulled its inspection teams out of Iraq.

THE BUSH ADMINISTRATION The Bush foreign policy team was notable for its collection of political “stars.” Vice President Richard Cheney, Defense Secretary Donald Rumsfeld, and Secretary of State Colin Powell had decades of senior government experience among them. Though each had formed strongly held and sometimes divergent foreign policy views, they all understood that whatever their policy differences, their job was to give the president the best possible advice. Still, their differences often resulted in dramatic, and sometimes public, policy battles. These differences were played out during the Bush administration’s first year in office over fundamental strategic questions as well as specific foreign policy challenges like North Korea and the war on terrorism. But they were never more conspicuous than during the debates on U.S. policy toward Iraq. Despite overall agreement that Iraq had to be disarmed, the administration was divided between “hawks” and “pragmatists” over modalities and timing, including whether or not to involve the United Nations any further in the effort to disarm Saddam. This split was rooted in clashing philosophical approaches to global politics and the United States’ role in the world. As Joseph Nye has described it, the administration was “deeply divided between those who want to escape the constraints of the post1945 institutional framework that the United States helped to build and those who believe U.S. goals are better achieved by working within that framework.”3 The Hawks One camp viewed Iraq as an imminent threat and argued that Saddam’s rapidly growing WMD programs and links to terrorist organizations required urgent action to remove the regime. Such a threat to vital national interests required the United States to act alone if necessary under the inherent right of selfdefense (contained in UN charter article 51), as well as under previous UN resolutions on Iraq. Many of the hawks saw the United Nations as “irrelevant” in the post 9/11 world where terrorist threats had to be rooted out without delay, sometimes preemptively, and without the niceties of international diplomacy. In his influential article “The Unipolar Moment,” Charles Krauthammer wrote that “the UN is guarantor of nothing. Except in a formal sense, it can hardly be said to exist.”4 National

Going to the United Nations Security Adviser Condoleezza Rice spoke about “an illusory international community.”5 If it acted at all, the United Nations would reimpose an ineffectual and prolonged inspections regime that would only dissipate the momentum gained in the Afghan War and would blunt the U.S. campaign to drum up support for military action. For hawks, the incompetence of the first UN inspection team, UNSCOM, had been shown in 1995, when high Iraqi defectors revealed that extensive WMD continued to exist after UNSCOM had proclaimed its success in eliminating those programs. They blamed George Bush Sr.’s “coalition diplomacy” during the first Gulf War for leaving Saddam in power. They did not want George Bush Jr. to make the same mistake. One vocal group of administration hawks saw the Iraq problem through the lens of an expansive world view sometimes called “neoconservatism.” One core principle was the traditional conservative position that “national interests” should take precedence over those of the international community. Like a previous generation of conservatives, these so-called “neocons” believed that in an anarchic world, peace could only be maintained through self-help, military muscle, and iron will. Unlike traditional realists, however, they pursued a kind of “conservative Wilsonianism,” which combined those realists’ preoccupation with power with former President Wilson’s belief in the universal promotion of democracy and self-determination.6 Only when worldwide aspirations for freedom could be realized would the world finally enter a truly secure period of its history. Any who opposed these aspirations had to be defeated. Unlike traditional realists, the neocons were buoyed by a great optimism about the future. The United States, as an exceptional country in the history of the world, could use its unparalleled power to defeat the forces of evil and shape a truly new and peaceful world order. The greatest danger was not that the United States would use its power to excess but that it would fail to use its power assertively enough.”7 America “could and should be unbound.”8 Afraid that the United States, like Jonathan Swift’s Gulliver, would be tied down by Lilliputian governments, alliances, and organizations, the neocons tended to prefer unilateralism to multilateralism. They were convinced that “multilateral agreements and institutions are neither essential nor necessarily conducive to American interests.”9 The United States should, they

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believed, “operate in the world on its own terms.”10 They believed that in general, other states would not act unless their own interests were directly threatened.11 If the United States took the lead, however, even in the face of widespread and often harsh criticism, most governments would follow. Those who did not, as Paul Wolfowitz wrote, “will live to regret having done so.”12 Everybody loves a winner, especially a “benign hegemon” as they called the United States.13 They rejected reliance on the pillars of post-World War II U.S. foreign policy: deterrence and containment, which they believed inadequate for dealing with “undeterrable” terrorists and their sponsors.14 Their philosophical ancestors had prevented the United States from joining the League of Nations in the 1920s, and many of them today wished to maintain as much distance as possible between the United States and the League’s heir, the United Nations. The neocons were especially scornful of what they called the “wishful liberalism” of President Clinton—based on faith in multilateral agreements, arms control, and the “wish that some agreement could work things out, as opposed to be willing to make the tough call.”15 Early neocon victories included refusal to support the Kyoto environmental treaty, the International Criminal Court Convention, and the Biological Weapons Convention, as well as U.S. abrogation of the Anti-Ballistic Missile (ABM) Treaty— all actions that triggered a firestorm among foreign and domestic critics. In place of formal allies or the United Nations, they advocated forming “coalitions of the willing” on a case-by-case basis.16 Deputy Defense Secretary Paul Wolfowitz put the neocon view of multilateralism succinctly: “If we need collective action, we’ll ask for it.”17 The Constructive Realists18 Another camp within the Bush administration, equally convinced that Iraq would have to be disarmed, feared that a unilateral military campaign against Iraq, even if successful in the short run, would do irreparable damage to U.S. long-term interests. They believed that fighting terrorism was going to require maximum cooperation from the international community and that it was no time for the United States to defy that community by acting unilaterally against Iraq. They were adamantly opposed to the Saddam regime and to

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permitting it to have WMDs. But they believed that without widespread international support, a U.S. war against Saddam was likely to be more difficult, more expensive, and its results more problematic. While admitting that Iraq might be a future threat, they did not share their colleagues’ sense of urgency and believed the United States would be in a stronger position to deal with Iraq when the time did come, if it had carefully built up international support. A minority in the Bush inner circle, this group consisted largely of officials who shared service in the administration of George H. W. Bush. Like classical realists, they generally eschewed moral crusades in favor of the cautious use of U.S. power to defend U.S. interests. They did not share the liberal internationalist faith that “a rule-based international order” centered in the United Nations and other institutions and regimes could alone ensure U.S. security. They did accept, however, that such institutions, if combined with U.S. power and will, were a necessary component of U.S. security. They did not believe that any one state could achieve “hegemony” and that therefore security could best be obtained by policies of “sober statecraft,” balance of power, deterrence, and containment, often in concert with allies.19 The United States benefitted enormously by being seen as a “multilateralist” willing to listen to and take into consideration the interests of lesser powers. By maximizing its “soft” power, the United States could enhance its “hard” power.20 As the director of policy planning at the State Department put it in 2002,

ever. General Tommy Franks, who was in charge of drafting plans for a war in Iraq, reminded President Bush that when it came time to rebuild a stable and democratic post-war Iraq, the U.S. military “did not do nation building very well.”23 Outside help would be imperative. The most prominent of the constructive realists was Secretary of State Colin Powell. No one aside from the first President Bush had played a more prominent role in the decision to end the 1991 Gulf War. One of the most experienced government officials, Powell had been chair of the Joint Chiefs of Staff under two presidents, was the highest-ranking African-American in the military, and was one of the most admired public figures. He was a good soldier who knew his duty, but he was also a past master at bureaucratic maneuvering. As author of the “Powell Doctrine,” in the 1980s, he led a school of military thinking rooted in his and the country’s Vietnam experience that placed a premium on rare, but overwhelming, application of military force. Now he found himself secretary of state, principal adviser to the president on foreign affairs, and manager of the U.S. global diplomatic establishment. Like other realists in the foreign policy establishment, Powell largely rejected any “grand design” in foreign policy, preferring to manage each problem as it cropped up. Powell was convinced that for all its power, the United States had to act multilaterally as a means to seek legitimacy for the actions that, in reality, it preferred.

CONGRESS Great as our advantages are, there are still limits. We have to have allies. We can’t impose our ideas on everyone. We don’t want to be fighting wars alone, so we need others to join us. American leadership, yes; but not American unilateralism. It has to be multilateral. We can’t win the war on terrorism alone. We can’t send forces everywhere. It really does have to be a cooperative endeavor.21 Former Secretary of State Madeleine Albright explained that although the UN Security Council “is not and never has been the preeminent arbiter of war and peace that its supporters wish it were, it remains the most widely accepted source of international legitimacy—and legitimacy still has meaning, even for empires.”22 It was not just a matter of legitimacy, how-

Congress had an important institutional interest and perspective that would lead it to demand a place at the table in the debate over Iraq, as well. For many members, both for and against military action, the issue was congressional prerogative in decisions about war. Though the “war power” debate had subsided since the first Gulf War, it was making an audible comeback as the possibility of a new war with Iraq loomed. Sentiment in Congress was strongly in favor of prior congressional authorization for any military action. Republicans tended to be more hawkish and therefore more inclined to support the president on Iraq than Democrats. Democrats tended to be more dovish, but their discomfort with being labeled the “soft on defense” party made them reluctant to oppose a

Going to the United Nations military solution too ardently. Nonetheless, it would be easier for many Democrats to vote to authorize use of force against Iraq if the administration were committed to seeking UN authorization. For the president, this meant that he faced not one but two crucial questions about how a decision on Iraq should be made: whether and how to consult the United Nations, and more important politically, whether and how to consult Congress. Though some in the administration advised that the president would weaken hard-won presidential authority if he gave Congress the power to say yes or no to using force against Iraq, Bush calculated that the effort would ultimately be far more successful with strong congressional backing. On September 4, 2002, Bush announced his intention to go to Congress for formal authorization for military action against Iraq.

FOREIGN VIEWS Throughout the Arab world, including friendly governments like Egypt, Jordan, and the Gulf states, public opinion was strongly opposed to any military action against Iraq, certainly any action not approved by the United Nations. The Arab League was on record as opposed to any military action, but behind closed doors it had urged Iraq to let UN inspectors back in.24 Only Kuwait, liberated a decade before from a harsh Iraqi occupation, seemed prepared to support military force against Iraq.25 The Sharon government in Israel urged that the United States act without delay. But Israel’s former prime minister, Ehud Barak, wrote in the New York Times that “a Security Council resolution is a must.”26 While the attacks on the United States on 9/11 had rallied sympathy for the United States to an unprecedented degree, many of the United States’ allies and friends were deeply concerned about what they saw as its evident preference for unilateral action and scorn for international law and institutions. The arguments of administration hawks against seeking UN authorization for military action against Iraq rekindled these concerns. Of greatest importance to any future policy on Iraq were the so-called “permanent five” of the UN Security Council, those great powers who retained the right as individual states to veto any proposed use of military force. Of those states, three had expressed ambivalence about using force to disarm Iraq. France, the United States’ oldest, if not always warmest, ally,

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remained deliberately ambiguous about support for military action against Iraq. While entirely in agreement with the United States’ assessment of the nature of the Iraqi regime and its possession of WMD, France made it very clear that “no military action can be conducted without a decision of the Security Council.”27 The French worried that a war against Iraq, even with Security Council approval, would harm France’s considerable economic interests and that a unilateral U.S. war would reduce French influence in the Middle East to the vanishing point. Overall, French foreign policy sought to “contain” emerging U.S. hegemony as much as possible while remaining a diplomatic partner of the United States on issues of mutual interest. Together, France, Russia, and China shared to varying degrees the goal of containing the U.S. “hyperpower” and restoring a more “multipolar world”—one in which their influence would be increased. Germany, though not a permanent member of the Security Council, had generally been a staunch supporter of the United States within the North Atlantic Treaty Organization (NATO). It had recently broken a long taboo on deploying its military outside of German borders in order to support peacekeeping in Kosovo and Afghanistan. Facing a tough reelection fight, however, Chancellor Gerhard Schröder had taken the politically popular position that Germany would not lend any material support for a war on Iraq, even with Security Council endorsement—this despite the fact that German intelligence had been among the most alarmist about Iraq’s nuclear weapons program.28

TONY BLAIR: BUSH’S MOST LOYAL ALLY Unlike the French and German leaders, Britain’s prime minister, Tony Blair, made his support for U.S. policy absolutely clear. The charismatic and eminently successful Labour prime minister had in the wake of 9/11 proven himself to be a loyal friend of the United States, as well as of its new president. The British-United States special relationship went back more than a century to a time when Britain began ceding its preeminence to a newly muscular United States in return for the benefits of friendship and continued through two great world wars and the Cold War against Soviet communism. Britain’s modern, well-equipped military and power-projection capabilities ensured that it remained

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a particularly valuable ally. In the wake of the 9/11 attacks on the United States, Blair invoked this longstanding friendship when he announced: “This is not a battle between the United States of America and terrorism, but between the free and democratic world and terrorism. We, therefore, in Britain stand shoulder to shoulder with our American friends in this hour of tragedy, and we, like them, will not rest until this evil is driven from our world.29 “I felt,” said Blair, “it was such a terrible event, it was vital that America did not consider itself standing alone at the time. It was vital that the world, as a world community, came together and did the right thing.”30 During his address to Congress following the 9/11 attacks, President Bush singled out Blair, who was seated in the audience, for praise. No doubt, a personal chemistry between these two men “driven by very strong principles and notions of faith” and “tremendous moral certainty” eased the way toward policy cooperation.31 In the general approach to pursuing the fight against terrorism, Bush and Blair were on the same page. According to journalist Bob Woodward, both leaders “had staked their public offices, careers and reputations” on the war on terrorism.32 But there was a catch. While both acknowledged the importance of rallying “the international community,” Blair gave it a higher priority than Bush. Blair’s predilections were powerfully echoed in British public opinion. In Britain, “It was critical domestically for the prime minister to show his own Labour Party, a pacifist party at heart . . . that he had gone the UN route” in dealing with Iraq.33 The British public was much more skeptical than Americans of claims being made about the danger Iraq posed to world security, and, more importantly, strongly opposed any action that lacked UN approval. A large faction in the prime minister’s own party shared this majority perception, and many predicted “mayhem in the Labour Party if there is a war.”34 As a consequence, Blair had less political freedom than Bush to bring Britain into a war against Iraq. Furthermore, he had to worry about the political consequences of being labeled “George Bush’s poodle.” At a meeting with Bush in early April 2002, Blair had stressed the importance of involving the UN Security Council and International Atomic Energy Administration (IAEA) inspectors in any further actions against Iraq and had offered to act as a “bridge” between Europe and the United States. At

home in Britain, Blair told the politically important Trades Unions Congress’s annual conference that “I believe it is right to deal with Saddam Hussein through the United Nations.”35

BUSH In his book Bush at War, Bob Woodward observes that Bush “wanted action, solutions.”36 Despite his strong conservative beliefs, and the opinion of critics that he was a rash “cowboy,” however, Bush had demonstrated in the days after 9/11 that he could move patiently and deliberately on important decisions. He had built a foreign policy team of political heavyweights that would ensure that he heard all sides of any issue. But in the end, all important decisions were his and his alone. Despite an openly expressed loathing of the Iraqi regime, Bush deflected internal pressure to deal with Iraq in the immediate aftermath of 9/11. Nonetheless, as Woodward reports, “He wanted Saddam out.”37 Wanting Saddam out was one thing, however. How to remove him was another, and one of the most important choices facing the president pitted “multilateralism” against “unilateralism.” On the one hand, Bush had called during the presidential campaign for “a more humble foreign policy” that would work with the international community. This side of Bush could declare: We are also guided by the conviction that no nation can build a safer, better world alone. Alliances and multilateral institutions can multiply the strength of freedom-loving nations. The United States is committed to lasting institutions like the United Nations, the World Trade Organization, the Organization of American States, and NATO as well as other longstanding alliances. . . . In all cases, international obligations are to be taken seriously.38 Bush praised the United Nations for its ability to organize and supervise elections in newly democratic states. On the other hand, Bush’s vision included “an ambitious reordering of the world through preemptive and, if necessary, unilateral action to reduce suffering and bring peace.”39 He shared with the neocons the belief that the United States had a “great and guiding goal: to turn this time of American influence into gener-

Going to the United Nations ations of democratic peace.”40 The moral clarity of the neocons and their Manichean—good vs. evil—worldview appealed to the president’s religious convictions. It was this side of Bush that emerged in his challenge that “you’re either with us or against us” following the September 11 attacks and his identification in his 2002 State of the Union address of an “axis of evil” that pointedly included Iraq. Bush dismissed the importance of always “getting agreement” and insisted that “an international coalition or the United Nations were probably not viable ways to deal with dangerous, rogue states.” He shared with the neocons the belief that if the United States took “action—confident action,” others would follow.41 It was hard to tell how Bush would come down on the issue of going to the United Nations over the Iraq issue. As Woodward writes, “As always, it was an ongoing struggle for the president’s heart and mind as he attempted to balance his unilateralist impulses with some international realities.”42

THE RUSH TO DECISION: AUGUST 2002 During July and August 2002, the argument between the hawks and the constructive realists heated to a fever pitch. President Bush was already scheduled, with many other world leaders, to speak at the annual opening of the UN General Assembly on September 12. In anticipation of that event, the two camps battled to influence what he would say. The White House had for tactical reasons decided that the president would remain mum on the issue during his long August vacation at his ranch in Crawford, Texas. But that did not mean the administration was inactive. Alarmed by the full-court press by the hawks, Powell sought and got a private dinner with President Bush on August 5. As forcefully as he could, Powell argued how, in addition to destabilizing the region, a war would “suck the oxygen out of just about everything else the United States was doing,” including the war on terror. He told the president, “It’s nice to say we can do it unilaterally . . . except you can’t.” He recommended that “you can still make a pitch for a coalition or UN action to do what needs to be done. . . . The UN was the only way.” Powell urged the president to consider that once the war was over, the United States would virtually “own a country” and that material as well as political international support would be essential for the hard task of postwar

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reconstruction.43 At the Principals’ Committee on August 14, Vice President Cheney launched a counterattack.44 He warned of the prospects for endless debate and delay in the United Nations. He said the speech should challenge the legitimacy of the United Nations itself, tell the members they have failed to implement their own resolutions, that in effect, “you are not important.”45 The policy battle was hardly confined to administration insiders. The Senate Foreign Relations Committee held hearings that proved “unexpectedly critical” of going to war against Iraq.46 The National Security adviser in the first Bush administration, Brent Scowcroft, weighed in on August 15 with a strong Op Ed piece in the Wall Street Journal opposing the rush to war and warning that if the United States ignored “a virtual consensus in the world against such an attack,” it “would result in a serious degradation in international cooperation with us against terrorism.”47 He urged that U.S. policy should be directed at obtaining through the UN Security Council “an effective no-notice inspection regime for Iraq.” Two weeks later, former Secretary of State James Baker argued that “we should try our best not to have to go it alone. . . . The costs in all areas will be much greater, as will the political risks.”48 The “right way,” he said, was for the United States to “occupy the moral high ground” and seek new UN authorization for action against Iraq.49 Former Clinton diplomat Richard C. Holbrooke joined the fray, writing, “The road to Baghdad runs through the United Nations Security Council. This simple truth must be recognized by the Bush administration if it wants the international support that is essential for success in Iraq.”50 Rising to these criticisms, former Reagan official Kenneth Adelman argued in the Wall Street Journal that UN inspections were no solution and that “every day Mr. Bush holds off liberating Iraq is another day endangering America.”51 Vice President Cheney hit back yet again at the end of August in a major speech to the Veterans of Foreign Wars, asserting that “there is no doubt that Saddam Hussein now has weapons of mass destruction” and that “a return of inspectors would provide no assurance whatsoever of [Saddam’s] compliance with UN resolutions . . . it would provide false comfort that Saddam was somehow ‘back in his box’.” He insisted that action against Saddam was an essential step in the war on

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terrorism, not a diversion, and that Iraq would use any time gained during an inspections regime “to invest in his ongoing chemical and biological weapons programs, and gain the possession of nuclear weapons.” “The risks of inaction,” Cheney warned, “are greater than the risk of action.”52 By making these remarks in such a public forum, Cheney appeared to be suggesting that Bush had already rejected going to the United Nations. Many European governments expressed outrage, and even Colin Powell was moved to comment privately that Cheney’s public statements amounted to “a preemptive attack” on the policy process then unfolding within the administration.53 At every public appearance during the first week of September, Powell tried to reassure allies that Cheney’s views were private and did not represent a decision. He insisted that the president had made “no decisions” either about U.S. actions or about involvement of the United Nations. Other officials affirmed that everything was “up in the air.”54 From Britain, Blair again pressed the president to seek Security Council authorization before launching military action. As if responding to Britain’s concerns, Powell told a British television audience that it “would be useful to let the inspectors go in,” so that “everybody can make a judgment about this,” but he acknowledged that “there’s always the prospect of a veto in any Security Council resolution.”55 Most important, Powell met privately with Bush on September 2. On September 4, Bush publicly announced his intention to address the UN General Assembly at its opening session, though he would not indicate whether he was ready to support the return of UN inspectors or

a new Security Council resolution. At a September 6 Principals’ Committee meeting, Cheney continued to press his argument that going the United Nations route was a “hopeless” process. UN inspectors would be “less skeptical” and “more likely to be fooled.” Inspections “would make getting to a decision to actually take out Saddam much more difficult.”56 According to Bob Woodward, the vice president “was beyond hell-bent for action against Saddam.”57 During his meeting with Bush on September 7, Blair repeated his message that the United States and Britain had to go to the United Nations, though he acknowledged doubts.58 Even as a drafting team began work on the president’s speech, the battle between multilateralists and unilateralists continued.59 Rumsfeld, along with Cheney, continued to argue that “a resolution would snag them in a morass of UN debate and hesitation, opening the door for Saddam to negotiate with the UN,” repeating their insistence that the president should focus on berating the United Nations for its inaction.60 After the final meeting of the Principals’ Committee on September 10, Powell told his deputy, Richard Armitage, “I don’t know if we got [language calling for a UN resolution] or not.”61 What would President Bush say to the assembled nations of the world on September 12? Would he listen to Powell and Blair and call on the United Nations to pass a new resolution facing Saddam with the choice of accepting a new and unencumbered weapons inspections regime or war? Or would he listen to Cheney and Rumsfeld and assert the need and the right of the United States to act alone, and soon?

NOTES 1. The author is grateful to Terry L. Deibel, professor of national strategy at the National War College, and Debra L. Delaet, associate professor of politics and international relations at Drake University, for their thoughtful comments and suggestions. 2. Todd S. Purdum, A Time of Our Choosing: America’s War in Iraq (New York: Times Books, 2003): p. 23. 3. Joseph Nye Jr., “U.S. Power and Strategy After Iraq,” Foreign Affairs 82, 4 ( July/August 2003): pp. 63–64. 4. Charles Krauthammer, “The Unipolar Moment,” Foreign Affairs 70, 1 ( January/February 1990): pp. 23–33. 5. Condoleezza Rice, “A Republican Foreign Policy: Pro-

moting the National Interest,” Foreign Affairs 79, 1 ( January/ February 2000): p. 62. 6. Public Broadcasting System (PBS) interview with Timothy Garton Ash, “Frontline: Blair’s War: The Prime Minister: Blair and Bush—a Special Relationship,” April 3, 2003. [accessed April 15, 2003]. 7. Michael Glennon, “Why the Security Council Failed.,” Foreign Affairs 82, 3 (May/June 2003): p. 34. 8. Ivo H. Daalder and James M. Lindsay, America Unbound: The Bush Revolution in Foreign Policy (Washington, D.C.: The Brookings Institution, 2003): p. 13.

Going to the United Nations 9. Ibid., p. 44. 10. G. John Ikenberry, “America’s Imperial Ambition.” Foreign Affairs 81, 5 (September/October 2002): pp. 53–54. 11. Daalder and Lindsay, America Unbound, p. 13. 12. Ibid., p. 43. 13. Krauthammer, “The Unipolar Moment,” p. 33. 14. Ikenberry, “America’s Imperial Ambition,” p. 51. 15. PBS interview with William Kristol, “Frontline: The War Behind Closed Doors,” March 20, 2003. [accessed March 28, 2003]. 16. Nicholas Lemann, “Letter from Washington: The Next World Order,” The New Yorker, April 1, 2003, p. 47. 17. “Frontline: Blair’s War.” 18. The author is grateful to Terry L. Deibel for this phrase. 19. Ikenberry, “America’s Imperial Ambition,” p. 45. 20. Anne-Marie Slaughter, “Responses: Stayin’ Alive: The Rumors of the UN’s Death Have Been Exaggerated: Misreading the Record,” Foreign Affairs 82, 3 ( July/August 2003): p. 203. 21. Ikenberry, “America’s Imperial Ambition,” p. 46. 22. Madeleine Albright, “Think Again: United Nations,” Foreign Policy, (September/October 2003): p. 17. 23. Bob Woodward, Plan of Attack (New York: Simon & Schuster, 2004): p. 62. 24. Jane Perlez, “Arabs, by Degrees, Oppose American Attack on Iraq,” New York Times, September 6, 2002, p. A12. 25. BBC News, “Where the World Stands on Iraq,” September 6, 2002. [accessed September 6, 2003]. 26. Ehud Barak, “Taking Apart Iraq’s Nuclear Threat,” New York Times, September 4, 2002: A21. 27. Elaine Sciolino, “France Mutes Its Criticism of U.S. Stance toward Iraq,” New York Times, August 29, 2002. 28. Kenneth M. Pollack, “Spies, Lies, and Weapons: What Went Wrong?” The Atlantic ( January/February 2004).

[accessed February 15, 2004]. 29. “Prime Minister Tony Blair statement in response to terrorist attacks in the United States,” 10 Downing Street, September 11, 2001. [accessed October 26, 2004]. 30. PBS interview with Prime Minister Tony Blair, “Frontline: Blair’s War: The Prime Minister: Blair and Bush—a Special Relationship,” April 3, 2003. [accessed April 15, 2003]. 31. PBS interview with Christopher Meyer, “Frontline: Blair’s War: The Prime Minister: Blair and Bush—a Special Relationship,” April 3, 2003. [accessed April 15, 2003]. 32. Bob Woodward, Bush at War (New York: Simon & Schuster, 2002), p. 297. 33. Woodward, Bush at War, p. 177.

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34. Anton LaGuardia, “War with Iraq Is a Long Way Off, Blair Tells Ministers,” The Telegraph (London), August 8, 2002. [accessed August 14, 2002]. 35. Prime minister’s speech to TUC conference in Blackpool, 10 Downing Street, Prime Minister’s speeches, 2002.

[accessed October 14, 2004]. 36. Woodward, Bush at War, p. 256. 37. Ibid., p. 341. 38. “National Security Strategy,” Common Dreams News Center, October 3, 2002. [accessed November 6, 2003]. 39. Woodward, Bush at War, p. 341. 40. Daalder and Lindsay, America Unbound, p. 37. 41. Ibid., p. 341. 42. Ibid., p. 350. 43. Todd S. Purdum, A Time of Our Choosing, pp. 41–42. 44. The Principals’ Committee normally consisted of Cheney, Powell, Rumsfeld, Condoleezza Rice, Central Intelligence Agency (CIA) Director George Tenet, Deputy National Security Adviser Stephen Hadley, and Vice President Cheney’s Chief of Staff I. Lewis Libby. 45. Woodward, Bush at War, p. 335. 46. Daalder and Lindsay, America Unbound, p. 136. 47. Brent Scowcroft, “Don’t Attack Saddam,” Wall Street Journal, August 15, 2002, p. A12. 48. David Rennie, “Cheney Call to Arms Against Saddam,” The Telegraph (London) August 27, 2002. [accessed September 15, 2002]. 49. David E. Sanger, “The World: First Among Evils? The Debate Over Attacking Iraq Heats Up,” New York Times, September 1, 2002. [accessed September 5, 2002]. 50. Richard C. Holbrooke, “Take It to the Security Council,” New York Times, August 27, 2002, p. A15. 51. Bob Woodward, Plan of Attack (New York: Simon & Schuster, 2004), p. 165. 52. “In Cheney’s Words: The Administration Case for Removing Saddam Hussein,” New York Times, August 27, 2002, p. A8. 53. Daalder and Lindsay, America Unbound, p. 44. 54. David Sanger, “Traces of Terror: Bid to Justify a First Strike,” New York Times, September 5, 2002, p. A1. 55. Colin Powell, “Interview on BBC Breakfast with Sir David Frost,” U.S. Department of State, August 28, 2002. [accessed September 5, 2002]. 56. Woodward, Plan of Attack, p. 176. 57. Woodward, Bush at War, p. 346. Powell’s frustration with the administration hawks emerged in a comment that when Bush was with them, the otherwise sensible president became a “gun toting West Texan” (Toby Harnden, “Before a Shot Had Been Fired, Colin Powell Lost His Battle,” The Tele-

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graph (London), September 12, 2002. [accessed September 15, 2002]. 58. During a private meeting with Blair, Cheney pressed the prime minister on the drawbacks of working with the United Nations. Powell was not present at the meeting. David Rennie, “U.S. Leaves Blair Wide Open to Anti-war Attacks,” The Telegraph (London), August 29, 2002. [accessed September 15,

2002].www.telegraph.co.uk/news/main.jhtml?xml=%Fnews %2F2002%2F08%2F28%2Fni. 59. Tamara Lipper, Martha Brant, and Michael Hirsh, “Selling the World on War,” Newsweek, September 23, 2002, p. 29. 60. Woodward, Bush at War, p. 347. 61. Woodward, Plan of Attack, p. 183.

Case 304, Part B Going to the United Nations: George W. Bush and Iraq C U RT I S H . M A RT I N ME R R IMAC K C O LLE G E

THE SPEECH On September 12, 2002, President George W. Bush stepped to the podium at the UN General Assembly. Except for Tony Blair, none of the hundreds of heads of state and delegates gathered for the annual opening session knew what he would say about the crisis unfolding in Iraq. As he waited to speak, Bush noted that it was “dead quiet,” the delegates sitting before him with “no expressions.”62 After a pause, he began his address. After ten years of Iraqi defiance, he warned, “All the world now faces a test, and the UN a difficult and defining moment.” What the delegates, were hoping to hear—a pledge that the United States would now work with the Security Council—had been inserted in the final draft of the president’s speech, but the crucial words were not in the text on the teleprompter from which the president now read.63 Catching the omission, however, Bush inserted the pledge on his own: the United States would “work with the UN Security Council for the necessary resolutions” to reimpose and enforce an inspections regime on Iraq.64 The relief in the audience was palpable. Delegates who had feared

the president might write off the United Nations entirely, applauded enthusiastically. Every subsequent speaker sent the same message: Saddam had to disarm.65 But there was another shoe yet to drop. The United States would seek UN authority, said Bush, but he warned that U.S. cooperation with the United Nations would be contingent upon that body taking the action desired by the United States. “Are Security Council resolutions to be honored and enforced, or cast aside without consequence?” he queried. “Will the UN serve the purpose of its founding or will it be irrelevant?” Bush spelled out a clear “bottom line”: If the United Nations itself failed to act to enforce its own resolutions, the United States would do so with whatever allies would join it. Despite the qualifiers, Bush’s speech managed to silence his most vocal international and domestic critics while not surrendering the neoconservatives’ principle that the United States reserved the right to act without the United Nations. Secretary of State Colin Powell stated categorically that “the president will retain all of his authority and options to act in a way that may be appropriate for us to act unilaterally to defend ourselves.”66 At home, Bush’s approval ratings jumped ten points, to 70 percent, and a few weeks after the speech, the U.S. Congress voted overwhelmingly to grant the president authority to use force to disarm Iraq. 11

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The United States wanted two things from the United Nations: first, timely (and successful) inspections, and second, preauthorization for using force against Saddam should he not fully cooperate with inspectors or should WMD be found. Powell had to muster all of his formidable negotiating skill—backed by Bush’s threat to “lead a coalition to disarm” Iraq—to get a Security Council resolution. On November 8, the council approved Security Council (SC) resolution 1441 (see appendix A) finding Iraq in “material breach” of prior UN resolutions, demanding the return of a goanywhere-see-anything inspections team, and warning of “serious consequences” if Iraq did not cooperate fully with the inspectors. Significantly, however, at least three (France, Russia, and China) out of the five permanent members insisted that there must be a second resolution before those “serious consequences” could be defined and initiated. Foreshadowing a debate that would continue long after victory over Iraq, a European diplomat warned that “the United States first has to prove its case that Iraq has weapons of mass destruction and the intention to use them in an imminent attack.”67

INSPECTIONS—WITH THE UNITED NATIONS; VICTORY—WITHOUT THE UNITED NATIONS While the diplomats did their work, the United States began deploying its forces to the Middle East, a buildup that many interpreted as an attempt by the United States to steamroller the United Nations into authorizing the use of force. Under international pressure, and aware of the buildup near its borders, Saddam’s government agreed to the UN demand for inspections. The first team entered Iraq late in November under the shadow of Vice President Cheney’s threat to chief inspector Hans Blix that “we will not hesitate to discredit you.”68 On March 7, the UN’s nuclear agency reported to the Security Council that it had found “no evidence or plausible indications of the revival of a nuclear weapon program in Iraq.”69 At the same time, Blix declared that “no underground facilities for chemical or biological production or storage were found so far,” and he called for additional time for the inspectors to complete their work.70 U.S. officials scoffed at the inspectors for missing the obvious—obvious because the United States claimed to have proof not only of the existence of these weapons but also their locations. U.S.

officials believed that Saddam would use any additional delays to bring his WMD programs closer to fruition and feared having to postpone any military action beyond the hot Iraqi spring and summer. Powell returned to the Security Council in late February 2003 to argue for a second resolution declaring that Iraq had missed its “final opportunity” to disarm and would now be disarmed by force.71 France, Russia, and China, however, insisted the United States had failed to prove that the level of threat justified military action to overthrow the regime of Saddam Hussein. They continued to argue that the inspectors should be given more time to do their work, but negotiations collapsed and the inspectors were withdrawn at U.S. insistence. U.S. Defense Secretary Donald Rumsfeld dismissed the recalcitrant allies as “Old Europe,” while other U.S. politicians expressed their contempt for what they perceived as UN cowardice. On the eve of war, President Bush proclaimed tersely that “the United Nations has not lived up to its responsibilities, so we will rise to ours.”72 On March 20, 2003, the United States and a “coalition of the willing”—Britain and fourteen smaller powers—launched war on Iraq. Despite overwhelming worldwide condemnation of the United States’ defiance of the United Nations, coalition troops won an astonishing six-week victory. President Bush proudly declared on May 1 that “major combat operations in Iraq are over.” The Iraqi people had been liberated. Images of jubilant Iraqis pulling down a giant statue of the former dictator were beamed around the world. Cheney’s prediction that “we will be greeted as liberators,” seemed confirmed. Administration officials talked of reducing the U.S. troop presence from one hundred forty thousand to thirty thousand by the end of 2003. Bush’s domestic approval ratings soared. U.S. hawks now insisted that as the task shifted from military victory to rebuilding Iraq, the United States still did not need the United Nations. “We have far more legitimacy,” said one U.S. official to Newsweek’s Fareed Zakaria, “than the UN.”73 Privately Cheney had concluded, “once we have our victory in Baghdad, all the critics will look like fools.”74 Public support for the United Nations had fallen from 77 percent in 2001 to about 55 percent, while a plurality now shared the hawks’ prewar conviction that “getting U.N. approval for the use of force would make

13 it too difficult to respond to international threats.”75 The United Nations was to be excluded from the hunt for Iraqi WMD and from the political reconstruction of the country. Coalition forces would find the WMDs, and as White House press secretary Ari Fleisher emphasized, WMD “were what this war was about.”76 The United States had won the war; now it would win the peace.77 The Security Council voted in May to approve SC Res. (Resolution) 1483 giving coalition forces a mandate to occupy and reconstruct Iraq with virtually no UN role.

OUT ON A LIMB? In the ensuing months, reality failed to match the optimism of those early days. Failure to find WMD, growing Iraqi disenchantment with the occupation, mounting U.S. casualties, escalating costs, and the dawning realization that the United States was in for a “long, hard slog” considerably dampened the triumphalism of May. Costs of Sustaining the Occupation Force More than a third of active duty army personnel were deployed in and around Iraq, causing many to worry that the U.S. military was seriously overextended. The commander of coalition forces in Iraq, General Tommy Franks, testified that one hundred fifty thousand troops might be needed for “years” to restore order in Iraq.78 In July, the administration raised its estimate of the monthly cost of military operations to $3.8 billion per month, a total of $35 billion for first nine months of 2003. From the moment the war was over, coalition forces faced deadly resistance. By early November 2003, attacks on coalition forces had reached more than thirty a day, including U.S. and other coalition forces, Iraqi officials and civilians, and infrastructure targets. UN headquarters was bombed. Twenty-two UN employees died in the attack, including the head of the mission, Sergio de Mello. The United Nations withdrew its mission altogether following the attack and showed little interest in returning unless its security could be guaranteed and it could be ensured a clear and significant mission. Attacks on the Italian and Jordanian embassies in Baghdad, and deadly bombings in Turkey in November,

also seemed aimed at weakening western unity. By February 2004, the United States had suffered more than five hundred dead, more than two-thirds of them since the declared end of the war, and several thousand casualties.79 Military leaders admitted that the United States now faced a “guerilla war.” The High Cost of Rebuilding Iraq Iraqi infrastructure, which had been massively degraded by more than twenty years of war, misrule, and economic sanctions, would be very expensive to restore. The operating costs of Iraq’s new government and of reconstruction were estimated to run $1 billion more each month.80 Paul Bremer, the head of the occupation forces, admitted that the costs of rebuilding Iraq alone would run into the “tens” of billions of dollars. One former oil executive estimated that the total costs of the Iraq operation would run up to $200 billion by the end of the decade.81 Oil revenues that officials hoped would make up much of the funding needs were falling far short of expectations. In October 2003, Congress passed an $87 billion authorization for the occupation and reconstruction, but at home, a record budget deficit increased the unattractiveness of providing additional revenue. Even Republican hawks like Senator John McCain of Arizona asserted that “the administration’s somewhat lax attitude to postwar planning has come home to roost,” and he called on the administration to be more forthcoming about projected costs.82 Unexpected delays in establishing security, restoring basic public services, and transferring authority to the Iraqis were increasing Iraqi anger and fanning resistance. Nation Building In addition to physically rebuilding Iraq and restoring security, the coalition faced the task about which the neocons had been most enthusiastic: building a democratic Iraq. The Iraqis would have to write a constitution, create governing structures, establish political parties, hold elections, and invent a democratic political culture. None of this would be easy. The coalition found itself caught in an acute dilemma between the need for a prolonged presence to bring about democratic construction and the need for a quick exit to head off rising Iraqi fury at the occupation. As a first step, the

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coalition appointed an Iraqi Council to oversee the drafting of a constitution and to advise occupation authorities. As the months went by, the United States faced increasing pressures from the council, which was perceived as a tool of the occupiers, and others to restore full sovereignty to Iraq. At the same time, within Iraq, political and regional divisions began to surface that would make a transition all the more difficult. Growing Disenchantment The most strident and widespread criticisms of U.S. policy came from abroad, where insistence on a UN resolution had been most passionate. By the end of June 2004, a significant body of world editorial opinion had “concluded that the Bush and Blair administrations ‘deliberately and cynically’ built support for war through ‘forgery, falsification and distortion of truth’.”83 A poll of seven European countries indicated that disapproval of U.S. foreign policy had increased in the year since Bush’s address to the United Nations from 56 percent to 64 percent. Seventy-eight percent in the European sample believed that U.S. unilateralism “posed a possible international threat over the next ten years.”84 Like Bush, Prime Minister Blair faced withering attacks. At home in the United States, support for the war was beginning to fall from the earlier “mandate” levels. By November 2003, just over 20 percent of the U.S. public believed the administration had presented evidence it knew was false in attempting to justify the war. Only 42 percent still considered President Bush “honest and frank.”85 As public support eroded, Democratic presidential hopeful Howard Dean proclaimed that “there are those in the administration that misled the president, misled the nation, and misled the world in making the case for the war in Iraq.”86 A chorus of domestic voices insisted that the United States needed more help from the international community—the very countries whose views it had ignored in going to war. Leading war critic Democratic Senator Robert Byrd told administration officials, “This administration should think hard about whether we have the money to single-handedly pay for the occupation and reconstruction of Iraq . . . at a time when the United States is running record-breaking deficits.”87 Democratic Senator Joseph Biden complained that “we’re 95 percent of the deaths, 95 percent of the costs,

and more than 90 percent of the troops . . . and we need to turn to the UN for help, for a UN sanctioned military operation that is under U.S. command.”88 Leading Republicans like Senate Foreign Relations Committee Chair Richard Lugar also acknowledged that the United States would need help “in a big way” from the international community.89 Even General John P. Abizaid, head of U.S. Central Command, called for greater multilateral participation while warning that Muslim governments would be loathe to contribute if they were perceived as “a pawn of the United States.”90 Some editorialists echoed the call to “involve the United Nations.”91 Observing these developments, UN Secretary General Kofi Annan commented, “I did warn those who were bashing the United Nations that they had to be careful, because they might need the United Nations soon.”92

GOING TO THE UNITED NATIONS, AGAIN? Concluding that the United States alone could not bear the mounting human and financial costs of the occupation and reconstruction, the administration initiated what supporters called a “mid-course correction.” In a major speech, Powell insisted, “above all, the president’s strategy is a strategy of partnerships. It strongly affirms the vital role of the partnerships that we have throughout the world—our partnership with NATO, our partnership with the United Nations and with so many other precious alliances that we have created over the last 50 years.”93 The New York Times commented, “With terrorism on the rise in Iraq and American forces stretched to the limit, the Bush administration has stepped back from its stubborn resistance to greater United Nations involvement.”94 The United States succeeded in getting a new Security Council resolution, 1511, in October 2003 that urged member states “to contribute assistance . . . including military forces.” The resolution, however, failed again to provide a specific role for the United Nations itself pending the restoration of “security and stability” in Iraq. As of November 2003, some twenty-seven countries had contributed twenty-four thousand troops to the occupation, though most contingents were less than two thousand troops. But when it came to recruiting new nations to provide troops to replace weary G.I.s,

15 the United States continued to make little progress. The French, Indians, and others said, “Yes, they would be glad to participate—but only under a United Nations command” and a specific Security Council mandate.95 Because the United States had ultimately spurned the United Nations in its decision to go to war, governments were skeptical of the United States’ sudden interest in multilateralism. They wondered if the United States was really abandoning its unilateral approach or “just asking us to come in and help clean up your mess.”96 Even among the U.S. public, a majority agreed that “in order to get other countries to provide more troops,” the United States should “give up some control of military decisions in Iraq to the United Nations.”97 On the financial side, potential donors were demanding a greater say in Iraq policy and fresh UN authorization as a price for any new contributions.98 Initiating what one observer called “Operation Begging Bowl,” the United States convened a conference of potential donors at the end of October 2003.99 It managed to squeeze out pledges for an additional $13 billion, but most of this aid was long term rather than for Iraq’s immediate needs.100 Among Iraqis, support for the United States was in steep decline during the summer and early autumn of 2003. Even in places previously well disposed to the U.S. presence, the rise in unintended civilian casualties was causing what the New York Times characterized as a “rapidly deteriorating relationship” with the Iraqis.101 A public opinion survey in Iraq revealed that “the bottom has fallen out of support for the United States,”102 and the Central Intelligence Agency (CIA) reported that growing resentment of the occupation was dramatically increasing guerrilla recruitment. In response, the United States decided to cut short the period of occupation—originally thought to have required up to five years—and to set a date of June 30, 2004, for the transfer of political sovereignty to an Iraqi provisional government chosen by a regional caucus system. No role was originally envisioned for the United Nations in the transfer. Reflecting the view of those who had urged the Bush administration to act in Iraq only with UN backing, a New York Times editorial at the start of the new year lamented, These are difficult times for the United Nations. . . . Washington’s rush to invade split the Security Coun-

cil in ways that have still have not healed. Yet the months since the Iraq invasion have shown how much the United States still needs the UN’s unparalleled ability to confer international legitimacy and its growing experience in nation-building. . . . America needs the United Nations as an effective partner in Iraq, not as a whipping boy for the administration’s continuing problems there.103 While continuing security problems in Iraq and the recalcitrance of allies seemed to bolster the arguments of war opponents, administration hawks could point to significant positive developments in the region to bolster their case for Bush’s decision to invade Iraq without waiting for the United Nations. On December 14, coalition forces cornered and captured a beleaguered Saddam Hussein hiding in a dirt shelter near his hometown. Just two days later, senior statesman James Baker began what turned out to be a successful mission to persuade Iraq’s creditors to provide debt relief. In the wake of Saddam’s capture, there were some signs of increased cooperation. France, Germany, Italy, Japan, and Russia reversed their earlier opposition and pledged to forgive a “substantial” portion of Iraq’s debt. French diplomat Jean-Marc de La Sabliere said, “What is important now—and I think this is something we can all agree on—is to work together to help the Iraqis to rebuild politically and economically the country and to have a more stable Iraq.”104 In other positive developments, Iran and Libya—both pursuing suspected nuclear weapons programs—consented to international inspections of their facilities, while Syria withdrew its earlier opposition to the occupation of Iraq and renewed calls for negotiation with Israel. At home, Saddam’s capture yielded Bush a welcome boost to nearly 60 percent approval ratings.105 He and Blair were both buoyed by the report of the British Hutton Commission in January, which fully exonerated the Blair government of lying about intelligence reports on Iraq. Despite these promising developments, bad news continued to mount. Publication of a series of damaging analyses at the start of the new year cast further doubt upon the U.S.’s claim that Iraq had vast stockpiles of WMD. A Carnegie Endowment for International Peace study concluded that Iraq’s WMD had posed no imminent threat, that Iraq had no operational nuclear or chemical weapons program, that the inspections program had been effective, and that there was no evidence

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of a connection between Iraq and Al Qaeda—all claims the administration had made to justify the war.106 The report even charged that “officials misrepresented” the Iraqi threat “over and above intelligence findings,” which themselves had overestimated Iraq’s capabilities. An Army War College report concluded that the invasion of Iraq had been “an unnecessary preventive war of choice,” while the Washington Post’s Barton Gellman wrote in January 2004 that “there’s little question that the president and other senior officials . . . exaggerated the case in public.”107 Richard A. Clarke, a top antiterrorism official in both the Clinton and Bush administrations, wrote that Bush had “launched an unnecessary and costly war in Iraq that strengthened the fundamentalist, radical Islamic terrorist movement worldwide.”108 Kenneth Pollack, whose 2002 book had made a strong case for the eventual need to disarm Saddam, charged that deliberate overstatement of the imminence of the Iraqi threat had propelled the country to war.109 And most damaging of all, the retiring head of the U.S.’s own Iraq Survey Group stated categorically that there were no WMD stockpiles to be found. “Let me begin by saying,” David Kay told the Senate, “we were almost all wrong.”110 By early spring 2004, the United States had concluded that its own plan for creating a transitional Iraqi government would have to give way to “a United Nations-led process” that would create “enough credibility to guide Iraq through the rough days expected before elections in January.”111 Under this process, UN representative Lakhdar Brahimi would negotiate with all the Iraqi factions to form an interim government to serve between the transfer of sovereignty on June 30, 2004, and an initial round of elections, and a new Security Council resolution would be sought legitimizing the new government and spelling out its authority. President Bush pledged “our coalition partners will continue to work with the UN to prepare for nationwide elections” in 2005.112 Many governments were relieved that the United States finally seemed willing to grant the United Nations a “vital role.”113 A former Canadian diplomat concluded with satisfaction that “the U.S. belatedly, but importantly, is realizing what its friends have told it all along—which is that the UN can be useful in these situations and can build confidence among multiple populations.”114 Other UN delegates expressed their resentment that the United States, hav-

ing snubbed the United Nations in the rush to war, now wanted the United Nations to pull the U.S’s chestnuts out of the fire and potentially to take the blame if things went awry during a election year in the United States. A UN official was quoted as saying, “It’s quite nice when you’ve been generally dissed about your irrelevancy and then suddenly have people coming on bended knee and saying, ‘We need you to come back’.” He added, however, that there were risks that the United Nations was “being projected into a very violent and volatile situation where you might be regarded as an agent or faithful servant of a power that has incurred great hostility.”115 As Brahimi prepared for his discussions in Iraq, the country exploded in what most observers labeled an “insurrection.” U.S. combat casualties mounted dramatically—one hundred twenty deaths in April alone. Expected help from Iraq’s new army and police failed to materialize, and U.S. troops found themselves engaged in urban warfare the likes of which had not been seen since World War II. By the end of May, more than eight hundred Americans had died. The United States was forced to call up an additional twenty-thousand troops and to extend tours of duty to deal with the growing violence. Al Qaeda chief Osama Bin-Laden issued a taped warning to all countries supporting the United States that they faced terrorist attacks in their homelands, and, following a deadly terrorist bombing in Madrid, Spain pulled out its contingent of troops. Democratic presidential candidate John Kerry wrote in the Washington Post: Because of the way the White House has run the war, we are left with the United States bearing most of the costs and risks associated with every aspect of the Iraqi transition. We have lost lives, time, momentum and credibility. And we are seeing increasing numbers of Iraqis lashing out at the United States to express their frustration over what the Bush administration has and hasn’t done. In recent weeks the administration—in effect acknowledging the failure of its own efforts—has turned to the U.N. . . . Moving forward, the administration must make the United Nations a full partner responsible for developing Iraq’s transition to a new constitution and government. We also need to renew our effort to attract international support in the form of boots on the ground to create a climate of security

17 in Iraq. We need more troops and more people who can train Iraqi troops and assist Iraqi police.116 Among the U.S. public, the percent believing the war had been the right thing to do continued to decline, to about 50 percent, while approval of Bush’s handling of the war fell to its lowest point at the end of May, to between 34 and 40 percent.117 A plurality expressed uncertainty that the United States would ever bring about democracy in Iraq, and roughly 40 percent feared the situation might turn into “another Vietnam.”118 Between mid-March and mid-April, the percent of those believing things were going “badly” in Iraq increased from 43 percent to 64 percent.119 By the end of April, 76 percent of Americans agreed that the United Nations should “be brought in now to help the U.S. manage things in Iraq.”120 There was still worse to come. At the start of May, publication of photographic evidence that U.S. troops had abused and tortured Iraqi inmates at Abu Ghraib prison in Baghdad ignited a firestorm of anger and protest throughout the world and in the United States, calling into question the very legitimacy of the U.S. occupation.121 The New York Times wrote that “across the Arab world and beyond, the tormenting of Iraqi prisoners by their American guards shredded already thin support for Washington’s invasion of Iraq and its vow to install democratic values and respect for human rights.”122 Soon after the Abu Ghraib scandal broke, the chair of the U.S. joint chiefs, General Richard Myers, testified before the Senate: “This process has to be internationalized. The UN has to play the governance role. That’s how we’re . . . eventually going to win.”123 By June, Brahimi had succeeded in putting into place the long-awaited transitional government. But even then he took the unusual step of publicly criticizing the United States for interfering with his authority in the selection of ministers.124 Despite such criticism, the United States succeeded in getting a unanimous Security Council resolution (SC Res. 1546. See appendix B) that conferred international legitimacy on the new government, spelled out its powers, and set the terms for ending the mandate of the coalition forces. Like earlier resolutions, it called on UN member states voluntarily to contribute troops and other resources to the effort of creating peace and security in Iraq. Unlike earlier resolutions, however, it bowed to allied and UN

pressure to provide specific endorsement of wide sovereign powers of the new Iraqi government and emphasized that the United Nations, protected by a special military force, “should play a leading role in assisting the Iraqi people in the formation of institutions for representative government.” In commenting on the resolution just prior to the vote, President Bush said, “I’m delighted . . . if things go well it will be a unanimous vote—thereby saying to the world that the members of the Security Council are interested in working together to make sure that Iraq is free and peaceful and democratic.”125 Despite obtaining the UN’s endorsement, however, the United States conceded that it was unlikely that any new offers of troops would be forthcoming from UN member states. As the New York Times wrote, “There will be no sharing of the military burden and no sharing of responsibility if the Americanendorsed solution in Iraq falls apart.”126 At a two-day meeting of NATO at the end of June, Bush was reported to have had to make “strategic compromises” with recalcitrant allies just to get allied agreement to train Iraqi forces, albeit in their own countries rather than in Iraq, and to do more to reduce Iraq’s debt.127 The occupation of Iraq formally ended on June 28, 2004, when sovereignty passed to a new Iraqi government under Prime Minister Ayad Allawi. One hundred sixty thousand coalition troops remained behind to maintain order in preparation for national elections that were pledged for no later than January 2005. The new government enjoyed some successes in establishing its authority and restoring services. In many parts of the country, however, order proved hard to come by. The insurrection continued to gather steam throughout the summer, launching more than two thousand attacks in September alone.128 A July National Security Estimate offered three future scenarios for Iraq, the most optimistic of which was tenuous stability, the least optimistic of which was civil war.129 U.S. and newly trained Iraqi forces launched repeated strikes in major cities in an effort to cripple or crush the insurrection before it could derail the elections. By late October, total U.S. military deaths since the start of the conflict had risen to nearly 1,100, while the number of those injured was put at more than seven thousand. As many as ten thousand Iraqi civilians were estimated to have died. The final report of the CIA’s Iraq Survey Group concluded that Iraq had no WMD or WMD programs, though

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Saddam was said to have intended at some point to resume such programs.130 Kidnappings and executions of American, British, Italian, Turkish and other workers and generally unsafe conditions in many areas of the country were severely hampering reconstruction and aid efforts. Partly because of rising levels of violence, only a small fraction of the $32 billion in promised international and U.S. reconstruction funds had been spent, and promises made to reduce Iraq’s substantial foreign debt remained yet to be fulfilled. The Bush administration continued to press the international community to provide more and accelerated financial

assistance, if not additional troops. Brent Scowcroft, the first President Bush’s national security adviser, accused the administration of seeking to “rescue a failing venture” in Iraq by belatedly appealing to NATO and the United Nations for help.131 The administration continued to insist that progress was being made and that as in the past, the pessimists would be proven wrong. Despite polls showing a slight majority continuing to believe that the war had not been worth fighting, President Bush won a modest but clear victory in the presidential election on November 2. He would have another four years to sort out the situation in Iraq.

NOTES 62. Bob Woodward, Plan of Attack (New York: Simon & Schuster, 2003), p. 184. 63. Ibid., p. 183. 64. Newsweek, September 23, 2004, p. 29. 65. Philip Gourevitch, “The Optimist,” The New Yorker, March 3, 2002, p. 55. 66. Todd S. Purdum, “Bush Officials Say the Time Has Come for Action on Iraq,” New York Times, September 9, 2002, p. A1. 67. Julia Preston, “Many at UN Seek Evidence for U.S. Case Against Iraq,” New York Times, September 9, 2002, p. A7. 68. Fareed Zakaria, “We Had Good Intel—The UN’s,” Newsweek, February 9, 2004, p. 39. 69. “Words of Caution, Words of War as the UN Debates,” Ottawa Citizen (Can West News Service), March 8, 2003. [accessed October 14, 2004]. 70. “Search Turns Up No Underground Weapons Facilities,” Can West News Service, March 8, 2003. [accessed October 14, 2004]. 71. Michael Glennon, “Why the Security Council Failed,” Foreign Affairs 82, 3 (May/June 2003), p. 17. 72. National Public Radio (NPR), “All Things Considered.” January 6, 2003. 73. Fareed Zakaria, “Bowing to the Mighty Ayatollah,” Newsweek, January 26, 2004, p. 38. 74. Patrick E. Tyler, “Power Struggle Underscores BlairChirac Rift, Book Says,” New York Times, January 26, 2003, p. A3. 75. The Pew Research Center for the People and the Press, “A Year after Iraq War,” March 2004. [accessed July 5, 2004]. 76. Ibid., p. 253. 77. Todd S. Purdum, A Time of Our Own Choosing: America’s War in Iraq (New York: Times Books, 2003), p. 265. 78. David Firestone and Thom Shanker, “War’s Cost Brings Democratic Anger,” New York Times, July 11, 2002, p. A1. 79. Reliable data on casualties have proven difficult for the military to aggregate and difficult for the public to learn. A

number of published reports pointed to casualties numbering between two thousand and three thousand, but another report, based on number of troops evacuated from Iraq for medical treatment, produced a figure closer to ten thousand. 80. Christopher Dickey, “1 Billion a Week,” Newsweek, July 21, 2003, p. 30. 81. Donald Hepburn, “Nice War. Here’s the Bill,” New York Times, September 3, 2003, p. A19. 82. Evan Thomas, “Groping in the Dark,” Newsweek, September 1, 2003, p. 28. 83. U.S. Department of State, “Foreign Media Reaction: Iraq’s WMD: Skeptics Assail U.S.-U.K. ‘Deception,’” Office of Research, July 2, 2003. [accessed July 15, 2003]. 84. Glenn Frankel, “Poll: Opposition to U.S. Policy Grows in Europe,” Washington Post, September 4, 2003, p. A15. 85. Program on International Policy Attitudes (PIPA), “Majority Believes U.S. Acted on Incorrect Assumptions in Rush to War” (Washington, D.C.: PIPA, November 13, 2003). 86. “Dean Says Those Who Misled Nation Should Resign,” Blog for America, July 10, 2003. . 87. Firestone and Shanker “War’s Cost,” p. A1. 88. Douglas Jehl, “High Cost of Occupation: U.S. Weighs a UN Role,” New York Times, August 29, 2003, p. A10. 89. David Bamford, “Bush Under Fire over Iraq.” BBC News, September 1, 2003. [accessed September 1, 2003]. 90. Eric Schmitt, “General in Iraq Says More G.I.s Are Not Needed,” New York Times, August 29, 2003, p. A1. 91. Fareed Zakaria, “Iraq Policy is Broken. Fix It,” Newsweek, July 14, 2003, p. 35. 92. Purdum, A Time of Our Own Choosing, p. 267. 93. Colin Powell, “Remarks at the Elliott School of International Affairs,” U.S. Department of State, September 5, 2003. [accessed January 5, 2004]. 94. “A Bigger UN Role in Iraq,” New York Times, editorial, September 4, 2003, p. A22.

19 95. According to Fareed Zakaria, many governments did offer help, but the United States held back on accepting these offers for the same reasons it held back on going to the United Nations in the first place: “a whole series of prejudices about the United Nations, nation-building, the French, the Germans and multilateral organizations.” (Zakaria, “Iraq Policy is Broken,”p. 35.) 96. David E. Sanger, “Bush Bets That the World Will Help Him in Iraq,” New York Times, September 7, 2003, p. IV14. 97. Pew Research Center for the People and the Press, September 2003 News Interest Index, September 17–22, 2004. [accessed January 5, 2004]. 98. Steven R. Weisman, “U.S. Seeks Help with Iraq Costs, but Donors Want Larger Say,” New York Times, July 14, 2003, p. A6; Christopher Marquis, “Europe Weighs Helping Out in Iraq, but Under Its Own Terms,” New York Times, July 16, 2003, p. A9; Sanger, “Bush Bets,” pp. 4, 14. 99. Hepburn, “Nice War,” p. A19. 100. Steven Weisman, “Funds for Iraq are Far Short of Pledges, Figures Show,” New York Times, December 7, 2003, pp.1, 18. 101. Dexter Filkins, “Attacks on G.I.’s in Mosul Rise as Good Will Fades,” New York Times, November 27, 2003, p. A1. 102. Augustus Richard Norton, “Making War, Making Peace: The Middle East Entangles America,” Current History 103, 669 (January 2004), p. 5. 103. “A Wounded United Nations,” New York Times, January 2, 2004, p. A16. 104. Associated Press, “UN Won’t Promise Swift Return to Iraq,” quoted in the New York Times, December 17, 2003. 105. “Political Attitudes in Great Britain,” Market Opinion Research International (MORI), Political Monitor (London, England: December 19, 2003). 106. Carnegie Endowment for International Peace, “WMD in Iraq: Evidence and Implications” (Washington, D.C.: 2003). [accessed January 30, 2004]. 107. Barton Gellman, “Truth and Consequences,” Washington Post, January 11, 2004, p. B6. 108. Richard A. Clarke, Against All Enemies: Inside America’s War on Terror (New York: Free Press, 2004), p. x. 109. Kenneth M. Pollack, “Spies, Lies, and Weapons,” The Atlantic (January/February 2004). [accessed January 30, 2004]. 110. “Iraq Arms Row Swirls After Kay Says Beliefs ‘Wrong’,” New York Times, January 28, 2004. 111. Dexter Filkins, “New Government Is Formed in Iraq as Attacks Go On,” New York Times, June 2, 2004, p. A1. 112. The White House, “Bush, Blair Discuss Sharon Plan, Future of Iraq in Press Conference,” 2004. [accessed April 29, 2004]. 113. Elaine Sciolino and Warren Hoge, “UN to Send Expert Team to Help in Iraq, Annan Says,” New York Times,

January 28, 2004, p. A10. 114. Warren Hoge, “UN Prepares for Meeting About Iraq, Wary of U.S. Motives,” New York Times, January 18, 2004, pp. 1, 12. 115. Warren Hoge, “UN Is Wary of Dangers of Taking Lead Role in Iraq,” New York Times, April 18, 2004, pp. 1, 11. 116. John F. Kerry, “A Strategy for Iraq,” Washington Post, April 13, 2004, p A19. [accessed April 18, 2004]. 117. ABC News/Washington Post Poll, May 20–23; CBS News Poll, May 20–23, 2004. PollingReport.com [accessed June 1, 2004]. 118. Evan Thomas, “The Vietnam Question,” Newsweek, April 19, 2004, p. 30. 119. “War Support Drops; Bush, Kerry in Dead Heat,” Gallup News Service, April 9, 2004. [accessed April 18, 2004]. 120. Gallup Poll, May 2–4, 2004. PollingReport.com [accessed May 7, 2004). 121. U.S. Department of State, “Foreign Media Reaction: Iraq Prisoner Abuse Draws Global Media Outrage.” [accessed May 7, 2004]. 122. Neil MacFarquhar, “Revulsion over the Torture Provokes Scorn for the U.S.,” New York Times, May 5, 2004, p. A18. 123. Maureen Dowd, “Clash of Civilizations,” New York Times, May 13, 2004. 124. Dexter Filkins, “U.N. Envoy Wants New Iraq Government to Court Foes of Occupation.” New York Times, June 3, 2004, p. A12. 125. “Bush Predicts Unanimous Vote on U.N. Plan,” ABC News, June 8, 2004. [accessed October 14, 2004]. 126. Richard Bernstein, “Behind the Trans-Atlantic Cordiality: A Little Give and Take,” New York Times, June 10, 2004, p. A12. 127. Christopher Marquis, “As Bush Confers with NATO, U.S. Is Seen Losing Its Edge,” New York Times, June 28, 2004, p. A8. 128. James Glanz and thom Shanker, “Iraq Study Sees Rebels’ Attacks as Widespread,” New York Times, September 29, 2004. [accessed September 29, 2004]. 129. Ibid. 130. Comprehensive Report of the Special Advisor to the DCI on Iraq’s WMD, U.S. Central Intelligence Agency, September 30, 2004. . [accessed October 17, 2004]. 131. Jonathan Marcus, “All Change for Washington Outlook?” BBC News, October 15, 2004. [accessed October 17, 2004].

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Appendix A Excerpts from SC Resolution 1441, November 8, 2002 Recalling all its previous relevant resolutions. . . . Recognizing the threat Iraq’s noncompliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles poses to international peace and security. . . . Deploring the absence . . . in Iraq of international monitoring, inspection and verification . . . of weapons of mass destruction and ballistic missiles. . . . Determined to ensure full and immediate compliance by Iraq without conditions or restrictions with its obligations under . . . relevant resolutions. . . . Acting under Chapter VII of the Charter of the United Nations, 1. Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions. ... 2. Decides . . . to afford Iraq . . . a final opportunity to comply with its disarmament obligations . . . and

accordingly decides to set up an enhanced inspection regime [UNMOVIC] with the aim of bringing to full and verified completion the disarmament process . . . 3. Decides that . . . the Government of Iraq shall provide . . . not later than 30 days from the date of this resolution, a currently accurate, full, and complete declaration of all aspects of its programmes to develop chemical, biological, and nuclear weapons, ballistic missiles, and other delivery systems. . . . 5. Decides that Iraq shall provide [to UNMOVIC] . . . immediate, unimpeded, unconditional, and unrestricted access. . . . 11. Directs the Executive Chairman of UNMOVIC and the Director General of the IAEA to report immediately to the Council any interference by Iraq . . . as well as any failure by Iraq to comply with its disarmament obligations. . . . 13. Recalls . . . that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations.

Appendix B Excerpts from SC Resolution 1546, June 8, 2004 The Security Council . . . affirming that the United Nations should play a leading role in assisting the Iraqi people in the formation of institutions for representative government, Recognizing that international support for restoration of stability and security is essential. . . . Recognizing the importance of the consent of the sovereign government of Iraq for the presence of the multinational force . . . Endorses the . . . formation of a sovereign Interim Government of Iraq. . . . Decides that . . . the Special Representative of the Secretary General and the United Nations Assistance Mission for Iraq (UNAMI) shall . . . play a leading role to . . . advise and support the Interim Government on the process for holding elections . . . promote national dialogue and consensus-building on the drafting of a national constitution by the people of Iraq . . . promote the protection of human rights, national reconciliation, and judicial and legal reform. . . . [R]eaffirms the authorization for the multinational

force under unified command established under resolution 1511. . . . Decides that the multinational force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq . . . so that . . . the United Nations can fulfill its role. . . . Notes the creation of a distinct entity under unified command of the multinational force with a dedicated mission to provide security for the UN presence in Iraq. . . . Requests Member States and international and regional security organizations to contribute assistance to the multinational force, including military forces. . . . Decides further that this mandate . . . shall be reviewed at the request of the Transitional Government of Iraq or twelve months from the date of this resolution. . . . Reiterates its request that Member States, international financial institutions and other organizations strengthen their efforts to assist the people of Iraq.

Case 254

Institute for the Study of Diplomacy Case Study

THE TURBOT WAR:

Canada, Spain and Conflict Over Atlantic Fishery Elizabeth R. DeSombre & J. Samuel Barkin

the

North

Case 254

The Turbot War: Canada, Spain and Conflict Over the North Atlantic Fishery Elizabeth R. DeSombre & J. Samuel Barkin ISBN: 1-56927-226-3 Copyright © 2000 by the Institute for the Study of Diplomacy

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior permission of the Institute for the Study of Diplomacy. The opinions and analysis contained in this case study are solely those of the author(s), and do not necessarily reflect the views of the Institute for the Study of Diplomacy, the School of Foreign Service, or Georgetown University.

1316 36th St. N.W. Washington, D.C. 20007 | isd.georgetown.edu | [email protected]

This case study was made possible (in part) by a grant from the Carnegie Corporation of New York. The statements made and views expressed are solely the responsibility of the author.

The Turbot War: Canada, Spain and Conflict over the North Atlantic Fishery ELIZABETH R . DESOMBRE

AND

J. S A M U E L B A R K I N

CO LBY COL LEGE AN D UNIVER S IT Y OF FL OR IDA

In the afternoon of 9 March 1995, in international waters just over 200 nautical miles off the coast of Newfoundland, the Canadian fisheries patrol vessel Cape Roger fired shots from a .50-caliber machine gun across the bow of the Spanish fishing trawler Estai. The issue in question was turbot, also known as Greenland Halibut, a remarkably ugly flatfish that lives in the cold waters of the North Atlantic between Newfoundland and Greenland. Turbot is one of the last commercially viable groundfish stocks in the Grand Banks, an area known for centuries as the world’s most productive fishing ground. This event, the first military confrontation of any kind between Canada and Spain, became known in the international press as the Turbot War. The immediate crisis had been escalating for several weeks. Canada, claiming that Spain was taking more turbot than could be sustained by the fishery, amended its domestic fishery legislation to allow it to board and seize vessels operating illegally in the Grand Banks. Spain, a member of the European Union (EU), had been careful to opt out of fishery regulations that

would have limited its catch of turbot and to conduct its fishing in international waters, just outside Canada’s jurisdiction. Canadian officials had undertaken a number of diplomatic and public relations moves intended to convince the Spanish fishers to cease fishing for turbot in the area, but to no avail. By the morning of 9 March, the Canadian government authorized a show of force to scare the Spanish trawler fleet away, and the Estai was chosen as an appropriate target. Canadian fisheries patrol and coast guard vessels found and attempted to board the trawler, but the Estai cut its nets and fled. For the next four hours the Canadian flotilla chased the Estai, which was in turn escorted by its own flotilla of sympathetic Spanish trawlers. There was much jockeying for position, always a dangerous and sometimes a fatal game in the foggy air and cold and stormy waters of the North Atlantic. By late afternoon the Canadians received authorization from Ottawa to use warning shots, and the Cape Roger fired across the Estai’s bow. It worked: the trawler and its crew surrendered and were boarded. The ship was impounded, the Captain arrested. Spain accused Canada of breaking one of the most fundamental rules of the international system, the prohibition against the use of force. It called Canadian actions piracy, and argued that the Canadian govern1

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ment had no right to apply its own laws or enforce multilateral agreements in international waters. The Canadian government claimed that the Spanish fishing fleet had no respect for international fishing agreements or the demands of conservation and sustainable use of fish stocks, and that Canada had acted to prevent the destruction of the species. Spain and the EU prepared legal arguments, claimed restitution for damages suffered by the owners of the Estai, and demanded that Canada rescind the law under which it claimed the right to police the turbot fishery. Canada produced evidence that the captured Spanish trawler had indeed been breaking several international rules and reiterated its demands for both a temporary moratorium on the turbot fishery and better Spanish and EU enforcement of international fishing rules on their trawlers. Neither side was willing to back down, and the dispute threatened to escalate.

FISHING HISTORY How did a dispute over a minor fishery threaten to escalate into a confrontation involving military force between two allies on opposite sides of the Atlantic? Understanding the conflict requires some background information about the regulation of fisheries, in general, and about the history of fishing in this area, in particular. The richest off-shore fishing grounds are known as “banks,” areas of relatively shallow waters not immediately adjacent to the shore, but on the continental shelf. In these areas surface water mixes with water from the deep ocean, creating a higher nutrient level than is found in most other areas of the ocean. These conditions support a great diversity and number of fish species. Marine banks can be found at depths from two dozen to two thousand feet, and each yields a large variety of valuable species. Groundfish are species of fish that live near the bottom of the ocean and feed on benthic organisms and detritus. Groundfish are the largest and most common fish in temperate zones and cold ocean currents, where the water is cold but not freezing. The North Atlantic has several banks that support lucrative fishing industries, including most of the North Sea, the Iceland Shelf, and Georges Bank off the coast of Massachusetts. Traditionally, the most lucrative of these banks was the Grand Banks, off the coast of New-

foundland, at the intersection of the warm, oxygen- and nutrient-enriched Gulf Stream and the cooler Labrador current. In the first half of this century, local fishing produced nearly 300,000 tons of fish per year; groundfish catches in the 1960s produced as many as 1.5 million tons of fish for both Canadian and foreign fishers.1 The Grand Banks fisheries have provided a connection between Newfoundland and Northern Spain and Portugal for a millennium. Basque fishermen from northern Iberia began to fish for cod on the Grand Banks a thousand years ago, and probably dried their catch on the shores of Newfoundland. In fact, the settlement of Newfoundland was driven primarily by the needs of the cod fishery. Fishing remains both economically and culturally central to parts of the Basque country in northern Spain, and much of Newfoundland. Fishing on the Grand Banks has traditionally been open to all, since the area is located in the high seas where no country has jurisdiction. Until the twentieth century this openness did not present an environmental problem. The fishing techniques used, primarily line and hook, were not efficient enough to affect stocks of the commercially important groundfish. In fact, stocks of groundfish such as cod were thought to be so vast as to be undepletable. But the modern trawler, a technological innovation of this century, changed the balance between fish and fishers in the Grand Banks. When trawling for groundfish, these vessels drag a net across the bottom of the sea, gathering up everything not small enough to escape through the holes in the weave of the net. Modern trawler nets can be hundreds of yards, even miles, wide. Instead of catching individual fish, the trawlers clear out acres of the sea bottom at a time. It was not long before trawler technology began to affect fish stocks and fish harvests throughout the North Atlantic. In the 1960s and 1970s, in response to the depletion of various fish stocks in international waters, some coastal states began declaring 200-mile exclusive economic zones (EEZs). These zones brought most of the world’s major groundfish fisheries, which had been in international waters, within national jurisdiction. In 1977 Canada declared its EEZ, bringing almost all of the Grand Banks within Canadian jurisdiction and enabling the Canadian government to exclude trawlers registered in other countries. In this case, the excluded trawlers were mostly from Spain and Portugal. The only exception to this jurisdictional change were the Nose and Tail

The Turbot War of the Banks, the small, deep-water parts of the Grand Banks located just over 200 nautical miles from Canada. Not only are modern trawlers very effective at gathering fish; they are also expensive. Many governments, including those of Canada and Spain, subsidize their trawler fleets to keep them up-to-date and competitive. In the 1970s the Canadian government, in response to its newly claimed jurisdiction over most of the Grand Banks, heavily subsidized the Newfoundland fishing industries, including both the trawler fleet and onshore processing facilities, to alleviate chronic poverty and unemployment in Newfoundland. This level of subsidization proved greater than nature could bear. Fishing industries that did not bear the full costs of equipment or processing could afford to expand and catch more fish than would have been possible without subsidies. By the late 1970s, cod stocks, the backbone of the Grand Banks fishery, were being seriously depleted. The catches in the cod fishery went from a high of 810,000 tons in 1968 to a modern low of 139,000 tons in 1978. This decline came not from decreased fishing but from a lack of cod in the ocean. The total mass of cod available in the Grand Banks fell an estimated 82 percent between 1962 and 1977.2 Since both the fishing community and the Canadian government failed to respond meaningfully until the cod had all but disappeared, when action was finally undertaken, it had to be radical. In 1994 the Canadian government declared a moratorium on the cod fishery within Canada’s 200mile EEZ. Canadian fishers turned to other groundfish stock, such as turbot. Spanish waters do not provide particularly rich fishing grounds, which is why the Basques were already traveling great distances 900 years ago. In fact, the Spanish fishing fleet has always traveled elsewhere for its catch. It is nonetheless one of the world’s largest fishing fleets, employing over 50,000 people from the relatively impoverished north country. It also has a wellknown reputation for overfishing, which others were willing to take action to prevent. For example, a condition of Spain’s entry into the European Economic Community was that it refrain from fishing in European waters for a decade, and a significant reason that Norwegian voters chose not to enter the EEC was the perceived need to keep Spanish trawlers out of their waters. Prior to the 1990s few boats fished for turbot in international waters in the nose and tail of the Grand

3

Banks. The species had been fished extensively within Canada’s EEZ, but by the early 1990s the size of the stock had fallen by three-quarters, in response to which the Canadian government imposed strict quotas. As a result, the catch fell from a peak of nearly 40,000 tons in 1978 to slightly more than 5,000 tons in 1993. Largescale exploitation of turbot in international waters did not begin, however, until the late 1980s. It resulted from the depletion of other groundfish stocks and of the arrival of a Spanish long-range fleet that had been ejected from fisheries off the coast of Namibia when that country declared independence. At the time, little was known about the stock and how much fishing it could sustain. The turbot fishery in international waters grew from 4,000 tonnes in 1989 to 60,000 tonnes in 1994. By that year the stock was showing signs of depletion. The average size of fish caught had decreased significantly, a key sign of overfishing. Estimates of the number of turbot of spawning age outside the Canadian EEZ fell from almost sixteen million in 1991 to only two million in 1994. It was also likely— and more important—that the turbot found in international waters were from the same stock as that found inside the Canadian EEZ. The Canadian government, fresh from its decision on the cod moratorium, decided to do something before it was too late. In addition to national restrictions on turbot fishing within its 200mile EEZ, it worked to enforce international regulations on turbot fishing more broadly.

FISHING REGULATIONS Fishing on the open ocean has been regulated since at least the beginning of the twentieth century. Initially states claimed territorial sovereignty out to three miles from their shores, and regulated their own fisheries within that area. The ocean beyond this area was called the “high seas” and was generally open to anyone who wanted to make use of it. Once overfishing was noticed and regulated in territorial waters, states realized that they would need to work together to prevent overfishing in international waters. Although some international fisheries agreements were reached in the early 1900s, it was not until about 1950 that catches on the open ocean decreased and fishing effort increased sufficiently to provide the

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impetus for reaching a large number of international fishing agreements. These agreements regulate fishing by species, region, or both. They generally create scientific committees and decision-making committees: the first to study the fishery in question and to determine what level of catch it can sustain; the second to set quotas, or seasons, for the fish stocks, sometimes in conjunction with restrictions on the type of fishing gear that may be used. Because assessing the health of a fishery is an uncertain process, and conditions change frequently, most fisheries organizations determine quotas or seasons on a yearly basis. Unlike other international agreements, these regulations are not subject to a complete renegotiation and ratification process. Instead, the fisheries commissions, usually composed of representatives from all member states, vote annually on what the regulations should be. Fisheries in the Northwest Atlantic ocean were regulated from 1950 until the late 1970s by the International Commission for the Northwest Atlantic Fisheries (ICNAF). Founded initially to coordinate research on the fisheries in the area, in the 1960s ICNAF began recommending national quotas for different fish stocks in areas outside the three-mile national jurisdiction. After states in the region began to declare jurisdiction over fisheries 200 miles out from their coasts, it was clear that a new fisheries agreement was needed. States would no longer accept the restrictions suggested by international organizations over fisheries they could now control. The entity created to regulate fishing outside the newly created EEZs was the Northwest Atlantic Fisheries Organization (NAFO). It was this organization to which Canada looked for international regulation of the declining turbot stock. This organization was formed in 1979 to “promote the conservation and optimum utilization of the fishery resources of the Northwest Atlantic area.”3 NAFO regulates all major species fished for in the international waters of the Northwest Atlantic. Its members in 1995 were Bulgaria, Canada, Cuba, Denmark, Estonia, the European Union, Iceland, Japan, South Korea, Latvia, Lithuania, Norway, Poland, Romania and Russia.4 NAFO’s Scientific Council is responsible for conducting assessments to determine, if possible, a scientific basis for managing a stock. It then makes recommendations based on these assessments to

the Fisheries Commission, composed of representatives from each member state. The Fisheries Commission is responsible for managing the fishery resources over which it has jurisdiction. Each year this Commission decides on a total allowable catch (TAC) for each regulated species in the international waters of the Northwest Atlantic and divides this TAC among the member states. In essence this process creates an overall cap on the amount of a particular type of fish that can be caught, and individual caps on how much each member state can catch. The treaty that underlies the organization instructs parties to “take into account the interests of Commission members whose vessels have traditionally fished within that Area” when making decisions about how the quotas will be allocated. It also specifically indicates that in Grand Banks regulations special consideration will be given “to the Contracting Party whose coastal communities are primarily depending on fishing” for the regulated stocks, provided that the Party in question has “undertaken to ensure the conservation of such stocks through international action.”5 In decisions about how to set the TAC and divide the quota, each member state has one vote; the European Union, as a collective contracting party, has one vote. Decisions are taken by majority vote. Because states in international law are rarely willing to be bound by regulations to which they have not consented, and NAFO decisions are not undertaken unanimously, the treaty also allows for states that have voted against regulations to avoid being bound by them. To do so, a state must lodge an official “objection” to a given decision, during a specified time period immediately after the decision has been taken. When a state has lodged an objection, it is not bound by that regulation unless it withdraws the objection. There are other regulations relevant to fisheries in the Grand Banks, and most important among these is the United Nations Convention on the Law of the Sea (UNCLOS). Although this treaty only entered into force in 1994 and does not have widespread acceptance, some of its provisions are considered customary international law and therefore binding on all states. One relevant part of UNCLOS addresses the issue of “straddling stocks,” those fish stocks that exist partly within national jurisdiction and partly in international waters. It calls on states that manage such species within national waters and those that fish for them in

The Turbot War the adjacent area to “agree upon the measures necessary for the conservation of these stocks in the adjacent area.”6

THE STORY REVISITED The difficulty over turbot began when Canada asked NAFO to decide whether a quota was needed on turbot in international waters; until 1994 there was no limit on how much could be caught. The Scientific Council decided that the evidence did suggest a serious depletion of stocks that necessitated a quota. In September 1994 NAFO’s Fisheries Commission announced a TAC of 27,000 tonnes of turbot, based on the recommendation of the Scientific Council that such a catch represented the maximum long-term sustainable yield. None of the members of NAFO disagreed with the overall size of the TAC, but since it would represent a reduction by more than half over the total turbot catch of previous year, the distribution of the TAC among the various members of the organization was politically problematic. NAFO’s charge to distribute the TAC on the basis of traditional interests in the stock was not simple to apply. As this was the first year in which a quota was imposed on turbot, the Commission could not simply extrapolate from the previous year’s allocations. In 1994 the EU, specifically Spanish and Portuguese trawlers, collected over three-quarters of the turbot catch in international waters. But the Commission interpreted “traditional” to mean long-term, and prior to 1994 most turbot had been caught by smaller Newfoundland boats. Under this logic Canada was allocated just over 60 percent of the 1995 TAC, or 16,300 tonnes, while the EU was allocated less than 13 percent, or 3,400 tonnes. The EU interpreted NAFO rules differently, arguing that since the tradition of fishing for turbot in international waters was only a few years old, only recent practice should be taken into account. Since Spanish and Portuguese boats had accounted for three-quarters of this catch since its inception, the EU felt that it should be allocated the bulk of the TAC. Yet since the EU was unable to gain a majority vote for its position, it was unable to change the allocation. The EU was able, however, within the rules of NAFO, to object to its allocation of the TAC, and not be bound by it. The EU thus accepted that the TAC repre-

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sented the best guess of the maximum sustainable yield of turbot in the nose and tail of the Grand Banks and should not be exceeded. It thereby agreed to be bound by the overall quota, but not its specific quota. European acceptance of the TAC without acceptance of its allocation meant that the total catch could exceed sustainable levels. The European Commission declared that it would abide by a quota of 19,000 tonnes, just under three-quarters of the TAC. Had all other countries met their NAFO-agreed quotas and the EU met its self-defined one, the total catch would have been 42,600 tonnes, more than half again the estimated maximum sustainable yield. By mid-February the Spanish fleet had already exceeded NAFO’s original EU allocation of 3,400 tonnes; by the end of that month Spanish fishers had taken roughly 5,000 tonnes of turbot. The behavior of the Spanish fleet was not unexpected; the EU had objected to various NAFO allocations for years, and Spanish and Portuguese fleets availed themselves fully of the opportunity to fish as intensely as possible. What made this particular case different was that the Canadian government decided to make an issue of it. In late February 1995 the Canadian government, and in particular Fisheries Minister Brian Tobin, began actively publicizing the turbot issue. By the first few days of March most major Canadian newspapers were covering the issue extensively. Press releases by the Department of Fisheries and Oceans at first focused on the unsustainability of the European catch, but within a few days broadened their scope to discuss Spanish and Portuguese fishing practices in the North Atlantic more generally. The major points made in these releases were that the European boats habitually cheated on their quotas, and that they broke many standard rules for North Atlantic fishing that had been agreed upon within NAFO without objection. These rules deal with issues such as the size of the mesh used in trawler nets, and the accurate reporting of what was actually caught. With this publicity campaign as a backdrop, the Canadian government took action to restrict the European turbot catch. In the previous year the Canadian Parliament had passed a law allowing the application of Canadian law in the areas just outside Canada’s 200-mile EEZ. The law was meant to be applied to fishing trawlers from countries that were not members of NAFO, which meant in effect trawlers registered in countries with lax maritime laws. The EU, along with the govern-

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ments of most active European fishing countries, originally supported this law, as it benefited all NAFO members by restricting the commercial catch by nonmembers. The law was reasonably successful in keeping non-NAFO trawlers away from those parts of the Grand Banks in international waters, and no NAFO members had raised the issue of the legality of the measure under international maritime law. However, in early March the Canadian federal cabinet decided to apply the law to NAFO members thought to be in violation of NAFO rules. On 3 March, Tobin officially called for a moratorium on turbot fishing while the issue of quotas was discussed. Predictably, the call was ignored by both the EU fisheries commissioner and by the bulk of the Spanish and Portuguese fleets. Two days later, Tobin announced that Canada would enforce a moratorium by using the new authorization that the cabinet had just given him to apply Canadian law outside its EEZ. This announcement had greater effect than the earlier one and attracted denunciation from European authorities. It also had some effect on the fishery. More than half of the foreign trawlers in the affected area left (including fifty from Spain or Portugal), and most of the vessels that stayed moved farther from Canadian waters. Still, the remaining fleet continued to fish actively, and the EU threatened to send warships to the region to protect its interests. Three days later the Canadian government decided to escalate its action by authorizing the capture of a European trawler outside Canadian waters, and on 9 March the Estai was boarded and seized. The Spanish ship was found to contain a hidden storage area in which Canadian officials found juvenile turbot, too small to have been caught legally. Canadian authorities claimed that 79 percent of the turbot found in the Estai’s holds were undersize. The ship’s hidden storage holds also contained species, such as American plaice, which violated an international fishing moratorium and should not have been caught under any circumstances. Canadian fishery officials recovered the nets cut by the Estai when it was pursued; these nets had an illegal mesh size that would trap juvenile fish rather than letting them escape. The reactions of governments on both sides of the Atlantic were immediate and impassioned. EU Fisheries Commissioner Emma Bonino accused Canada of “organized piracy.”7 Canada’s fisheries minister, Brian

Tobin (a native of Newfoundland), responded that “it’s not the mark of a pirate to reach out at the eleventh hour and try to save the last stock [of groundfish] in the Northwest Atlantic.”8 The position of the Canadian government, articulated by both Mr. Tobin and Prime Minister Jean Chrétien was that Canada was justified in its extra-territorial use of force because it was in support of multilateral efforts at fisheries preservation, because overfishing anywhere on the Grand Banks affected fish stocks within Canadian waters, and because Spanish and Portuguese vessels were chronically in breach of international rules and their governments were doing little to punish or change their behavior. Spain and the EU argued that Canada’s actions were undermining NAFO because its management of fish stocks would be unworkable if confrontation rather than cooperation on fisheries issues became the norm. Canadian officials responded that the EU states’ increasing use of objections to NAFO quota allocations was making a mockery of cooperative fisheries management in the Northwest Atlantic. Following the arrest of the captain of the Estai the Canadian government made clear that it would continue to enforce its self-proclaimed moratorium on the turbot fishery until agreement was reached with the EU on sustainable fisheries practices. This announcement was effective in discouraging most boats from fishing in the region. On 26 March Canadian fisheries officials cut the nets of the Spanish trawler Pescamaro Uno, demonstrating Canadian determination to enforce the moratorium and effectively discouraging the remaining trawlers from staying. Some fishing was resumed later in the month when a Spanish navy patrol boat was sent to escort the trawlers, but a Canadian threat to send in even larger naval vessels effectively reinforced the moratorium. Meanwhile, the Captain of the Estai was charged under the Coastal Fisheries Management Act and released on CAN$8,000 bail. The next day the trawler was released after its owners posted a half-million dollar bond. In response EU authorities began to examine possible sanctions that could be used to retaliate. In the end the EU failed to take retaliatory action, although the government of Spain began to require that Canadians have visas to enter the country. The Spanish government also announced that it would take the matter to the International Court of Justice.

The Turbot War Both the Canadian and the Spanish populations rallied around their respective governments’ positions, and both governments then attempted to garner support for their positions internationally. The Canadian government was the more successful. Fisheries Minister Tobin engaged in such publicity efforts as appearing with a palm-sized turbot (fully-grown adults can reach as much as 3 feet in length), saying it was “too young to die.”9 He traveled to New York to make his case to the United Nations, taking the Estai’s illegal nets with him and displaying them on American network television. Spain continued to complain about Canadian extraterritoriality and use of force. Over the next few weeks, though, it became clear that the Spanish fleet was unpopular in parts of Europe, particularly the United Kingdom and Ireland, which had experienced previous problems with Spanish overfishing. Some British trawlers flew Canadian flags to show support for Canada. The Spanish government also failed to gain much support elsewhere for its position. Most relevant governments, particularly that of the United States, were unwilling to take sides in what they saw as an essentially bilateral issue. The net effect of this neutrality, however, supported the Canadian government’s actions, because without broad-based diplomatic action against Canada, the only way to resume access to the fishery was through negotiation.

THE RESOLUTION OF THE CONFLICT NAFO and Turbot While the position of the Spanish government on the issue remained firm over the course of the next month, without much international support the position of the EU softened considerably. This distinction is crucial because under EU law it is the European Commission that has regulatory jurisdiction over all fisheries issues. By the end of March, over Spanish protests, the EU had begun negotiations with Canada over a way to resolve the dispute. In early April a tentative deal was reached that was rejected by the Spanish government. It was not until Canada threatened to send its navy to confront Spanish trawlers that Spain was prevailed upon, both by the European Commission and by the foreign ministers of other EU members, to accept a new deal, which was signed on April 15.

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The new agreement represented a compromise on a number of fronts. The TAC for turbot was reapportioned, giving Canada and the EU equal shares, of just over 11,000 tonnes, or 41 percent of the total, each. Similar details of the allocation of future catches were also accepted. The Canadian government agreed to rescind the regulation allowing it to apply its fisheries laws to European vessels (although it is not clear whether this applies to non-NAFO vessels as well). Both sides agreed to a much tighter regulatory regime governing things such as minimum mesh and fish sizes, and to allow independent observers on and satellite tracking of trawlers in the area. The Canadian government also agreed to drop charges against the Estai and its captain, and to return both the bail and the bond paid, as well as the ship’s cargo. The EU and Canada both claimed victory on the basis of this agreement. Fisheries Commissioner Bonino felt that the agreement was good for all parties concerned: the EU allocation had increased, conservation priorities had been maintained, and “the rule of law has been restored on the high seas.”10 Fisheries Minister Tobin claimed a great victory both for fisheries conservation and for Canadian national interests. He explained that the Canadian goal had always been better enforcement of international fishery rules, and that was exactly the result. He also suggested that the whole dispute supported the argument for a more activist Canadian foreign and fisheries policy. British and American officials lauded the settlement as an example of successfully negotiating through a crisis, and of an agreement that was mutually beneficial. Spanish officials were rather less enthusiastic, suggesting that they accepted the agreement as simply the best they could get. Portugal in the end never supported the deal at all, but did not veto it because of pressure from other EU states. The deal garnered widespread popular support in Canada, and on the whole popular opposition in Spain. Canada and the EU worked together to sell their deal to other NAFO members, some of whom were hesitant both about the inspection regime and about the precedent of bilateral deals. In the end, however, NAFO members voted to accept the deal, which remains the basis of current practice in the North Atlantic. Canada and the EU continue to split the turbot quota, and the inspection regime has apparently led to a significant decline in illegal fishing practices within NAFO’s regulatory area, from fifty to sixty alleged violations per year

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before the agreement to one or two violations afterwards. A measure of the agreement’s success is that stocks of turbot have more than doubled from their low points in the mid-1990s, to roughly the levels of the late 1980s.11 The one issue relating to the Turbot War that remained outstanding after the EU and Canada had agreed on the new allocation of the TAC and the new inspection regime was the case before the International Court of Justice (ICJ). The Spanish government brought the case before the ICJ on 28 March 1995, and refused to withdraw it even though most of the demands made in the Spanish complaint had already been addressed within the Canada-EU agreement. In order to determine whether the case would go forward, the ICJ first needed to resolve the question of jurisdiction. Canada had accepted the compulsory jurisdiction of the ICJ from its inception, which gave the court the right to hear disputes to which Canada was a party. But Canada reserved its right to amend its acceptance of the court’s jurisdiction. On 10 May 1994 the Canadian government gave notice that it would not accept the jurisdiction of the court with respect to “disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO regulatory area . . . and the enforcement of such measures.”12 This declaration was probably made in anticipation of problems from the Coastal Fisheries Protection Act efforts to keep non-NAFO members from fishing in the region. Spain argued that it was the use of force to which it objected, which was not a part of the Canadian legislation in question, and claimed that Canada should not be allowed to exercise jurisdiction over Spanish vessels on the high seas. The International Court of Justice ruled in December 1998 in favor of Canada’s argument, that the Court did not have jurisdiction to hear the case. Straddling Fish Stocks A related issue to the resolution of the crisis in the long run was the United Nations Conference on Straddling and Highly Migratory Fish Stocks. This conference was scheduled to convene at the United Nations in New York in April 1995. It was in no way a response to the turbot affair—multilateral discussions on the issue had been going on for years, and the Conference had been scheduled well before the crisis broke out. But the

Canadian government attached great importance to the conference, and was able to use the publicity generated by the Turbot War to publicize what would otherwise have been a very obscure event. The Conference was designed to create rules for implementing the Law of the Sea in relation to the management of straddling and migratory fish stocks. Canada favored interpreting those provisions as giving coastal states as much leeway as possible in enforcing sound fisheries management and had cited this regulation as justification for its action in the conflict over turbot. The Canadian government certainly put a major diplomatic effort into the Conference—it was attended not only by Fisheries Minister Tobin, but also by Foreign Minister André Ouellet. Both Ministers made extensive public comments about the need for an agreement with teeth. Whether the publicity surrounding the Turbot War and the high profile of the Canadian participants had a major effect on the outcome cannot be known for certain. The Canadian delegation did in the end, though, claim the result both as a major victory and as a vindication of Canadian behavior in the dispute with Spain. The result of the Conference was pithily called the “Agreement for the Implementation of the Provisions of the United Nations Convention of the Law of the Sea of 10 December 1982, Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.” Among other things, the Agreement holds that where multilateral organizations exist to regulate specific fisheries, states not party to the organizations are not allowed to fish in those regions. It also stipulates that states have a “duty” to participate fully and in good faith in fisheries agreements, and that any country party to such agreements can inspect the vessels of another country, if that other country proves unwilling to fully enforce an agreement. Canada saw these provisions as victories, because they allowed for the exclusion of vessels from nonNAFO countries from North Atlantic fishing grounds, cast doubt on the European practice of habitually objecting to its allocation of various NAFO TACs, and allowed coastal states some rights of inspection on the high seas. These rights were not as extensive as Canada had claimed under its domestic fisheries laws (which have since been amended to make them compatible with the Agreement), but they are a huge improvement over the formal rights of inspection that coastal states

The Turbot War had previously had outside their areas of jurisdiction. They will either prevent another conflict akin to the

9

Turbot War or increase the intensity of the conflict, should one occur.

NOTES 1. Lawrence F. Felt and L. W. Locke, “It Were Well to Live Mainly Off Fish: The Collapse of Newfoundland’s Fishery and Beyond,” in Ragnar Arnason and Lawrence Felt, eds., The North Atlantic Fisheries: Successes, Failures, and Challenges (Charlottetown, PEI: The Institute of Island Studies), 1995. Throughout this case, we use two measures of weights: tons and tonnes. A ton equals 2,000 pounds. A tonne (or metric ton) equals 1,000 kilograms, or just over 2,200 pounds. In each occurrence, we use the measurement found in the original documents. 2. Jeffrey A. Hutchings and Ransom A. Myers, “The Biological Collapse of Atlantic Cod Off Newfoundland and Labrador,” in Arnason and Felt, The North Atlantic Fisheries, pp. 60, 78. 3. Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (1978), as amended 1979; http:/ /www.tufts.edu/departments/fletcher/multi/textsBH739.txt, 16 January 1998. 4. Denmark is the only member of the EU to be a member of NAFO in its own right, in its capacity as the government of Greenland, which is not considered part of the EU. Interestingly, the United States joined NAFO in November 1995, shortly after the Turbot War ended. 5. Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, Article XI(4). 6. United Nations Convention on the Law of the Sea, Article 63(2).

7. Edison Stewart, “Canadians Seize Spanish Trawler,” Toronto Star 10 March 1995, p. A1. 8. Ibid. 9. Al Goodman, “Why Spain Confronts Canada in a Fish Fight,” Christian Science Monitor March 1995. 10. Colin Nickerson, “Canada Stuck to Its Gunboats in Turbot War,” The Boston Globe, 17 April 1995, p. 1. 11. Measured in terms of biomass, which is the estimated total weight of the stock. NAFO Scientific Council, Greenland Halibut (Reinhardtius hippoglossoides) in Subarea 2 and Divisions 3KLMNO (Dartmouth, Nova Scotia: North Atlantic Fisheries Organization, 1998). 12. International Court of Justice, Yearbook 1994–1995, No. 49 (The Hague: ICJ, 1995), p. 85. 13. Note that the United States had joined the Convention but had not ratified it until November 1995. Ratification is required before the convention can enter into force in U.S. law and before the United States can become a full member of the organization. 14. Used with permission by the Northwest Atlantic Fisheries Organization. 15. Garrett Hardin, “The Tragedy of the Commons,” Science 162 (1968): 1243–1248. 16. Robert D. Putnam, “Diplomacy and Domestic Politics: The Logic of Two-Level Games,” International Organization 42 (1988): 427–460.

APPENDIXES Appendix I—NAFO Membership Contracting Parties to the Convention at the time of the Turbot War: March 1995.13 Bulgaria Canada Cuba Denmark (on behalf of the Faeroe Islands and Greenland) Estonia European Union (EU)

Iceland Japan Korea, Republic of Latvia Lithuania Norway Poland Romania Russian Federation

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Appendix II—NAFO Regulatory Area The events of the turbot war took place in section 3 of the map, particularly 3L and 3N.14

Case 146

Negotiating a Minerals Regime for Antarctica, 1981-1988 William E. Westermeyer & Christopher C. Joyner ISBN 1-56927-134-8 Copyright © 1989 by the Institute for the Study of Diplomacy

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior permission of the Institute for the Study of Diplomacy. The opinions and analysis contained in this case study are solely those of the author(s), and do not necessarily reflect the views of the Institute for the Study of Diplomacy, the School of Foreign Service, or Georgetown University.

1316 36th St. N.W. Washington, D.C. 20007 | isd.georgetown.edu | [email protected]

This case study was made possible (in part) by a grant from the Carnegie Corporation of New York. The statements made and views expressed are solely the responsibility of the author.

Negotiating a Minerals Regime for Antarctica, 1981–1988 W I L L I A M E . WE S T E R M E Y E R & C H R I S T O P H E R C. J O Y N E R BACKGROUND Most people think of Antarctica only as a remote, inhospitable continent, forever buried in snow. They may know that the waters surrounding the continent harbor an abundance of seals, penguins, and whales, and that the region is so cold and uninviting that no one can live there without importing all life-sustaining needs. They may also know the names and something of the exploits of such famous Antarctic explorers as Captain James Cook, Roald Amundsen, Robert F. Scott, and Richard E. Byrd. But few know that there exists a controversy about who, if anyone, owns Antarctica. For years, a small but influential group of countries have been conducting scientific research in Antarctica. As a consequence, knowledge about Antarctica has been growing steadily, if in small increments. Research has shown that the ice-covered continent is a normal continent in most respects, and that therefore it may contain considerable deposits of potentially valuable minerals. The possibility that minerals may be discovered in exploitable amounts in Antarctica has been an impor-

tant concern of countries active there, because in the absence of agreed sovereignty it is not at all clear who, if anyone, owns the resources. To avoid future conflict and to provide a regulatory regime that would balance development with scientific, environmental, and other objectives, countries active in Antarctica formally decided in 1981 to negotiate an agreement governing the exploitation of mineral resources. The resulting Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA) was adopted by the negotiators in June 1988, to be considered for ratification by the participating governments. The countries involved in the mineral negotiations are all parties to the 1959 Antarctic Treaty, and it was within the context of the broader Antarctic Treaty and its related agreements—the Antarctic Treaty System— that negotiations were conducted. These countries included the 12 original signatories (Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the Soviet Union, the United Kingdom, and the United States) and 8 more recent signatories (Brazil, the People’s Republic of China, the Federal Republic of Germany, the German Democratic Republic, India, Italy, Poland, and Uruguay). These 20 countries comprised the group of Antarctic Treaty Consultative Parties (ATCPs) at the time of the final negotiating session. Their status as original Antarctic Treaty signatories and/or the fact that they were currently conducting research in Antarctica distinguished 1

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them from other Treaty signatories. Under the terms of the Treaty, these attributes gave them voting rights on all issues covered by the Treaty. The Antarctic minerals negotiations illustrate how both internal domestic and external pressures can lead a group of quite diverse countries to negotiate a farreaching document, despite very different views about basic issues. The negotiations among the ATCPs from 1981 to 1988 to devise a regime governing the exploitation of mineral resources in Antarctica were distinctive and in some ways unique. They are of special interest to students of diplomatic negotiations for at least eight different reasons. 1. The negotiating countries attempted to determine who would have access to resources, and under what circumstances, in the last major land (and adjacent offshore) area of the world in which sovereignty and jurisdiction are disputed.1 2. Some states outside the negotiations had a stake in the outcome, and indeed some would have liked to establish an alternative regime. Hence, the controversy was not only among those countries negotiating the new regime but also between signatories and nonsignatories of the Antarctic Treaty. The ATCPs attempted to address some of the concerns of the “outsiders,” but the broader international community would have preferred to take part in the negotiations with the same standing as the ATCPs. 3. There were many crosscutting pressures on the negotiating parties. For instance, two developingcountry ATCPs—Chile and Argentina—have laid claim to portions of Antarctica. Their interests thus lay mainly with other countries that claimed territory in Antarctica, that is, in having their claims formally recognized or, if that could not be achieved, in preserving the modus vivendi of the Antarctic Treaty. This means that, unlike on many other North-South issues, the interests of Chile and Argentina on this issue diverged from those of other developing countries. Several developing countries outside the Antarctic Treaty contended that Antarctica should be the common heritage of all, and the other developing nations that were party to the Treaty but did not have

claims have differed strongly with Chile and Argentina on issues affecting positions on sovereignty. These crosscutting pressures produced some unusual alliances and sometimes served to promote compromise. 4. The United States and the former Soviet Union had many similar interests in Antarctica and often acted in concert. 5. Many of the most powerful countries of the world were ATCPs and thus involved in the minerals regime negotiations. Nonparticipants therefore could not take the combined influence of the ATCPs lightly. 6. Although the ATCPs generally differed in wealth, power, and influence, each had an equal vote in decisions pertaining to the Antarctic Treaty and the minerals regime. Since consensus decisions were the rule for most key votes, one negative vote would kill any initiative. The Antarctic Treaty itself is a delicate compromise between those signatories with claims to portions of Antarctica and those signatories (among them the United States and the Soviet Union) that neither recognize these claims nor make claims of their own. 7. Very little information existed about the mineral resources of Antarctica at the time of the talks, and even less was known about the potential for their economic development. The minerals regime was designed to regulate exploitation that may never occur or that may occur only at some distant future date. The perception that mineral resources may exist in abundance, rather than the certain knowledge that they do, drove the regime negotiations. The ATCPs were aware that, in all likelihood, it would be easier to devise a regime before rather than after economically exploitable mineral deposits were discovered. 8. Much information about the process and the substance of the minerals regime negotiations was kept confidential. Therefore, it is generally not possible to attribute remarks or positions on negotiating points to individuals or even national

Negotiating a Minerals Regime for Antarctica delegations. It is usually possible only to discuss the positions of groups of countries with similar interests. The Antarctic Treaty System To appreciate why the ATCPs decided in 1981 that the time had come to establish a minerals regime for Antarctica as quickly as possible, one must understand the history and development of the Antarctic Treaty System. The system comprises various agreements made to govern activities of countries in Antarctica. The cornerstone of these agreements is the Antarctic Treaty, which was signed in 1959 and entered into force in 1961. The Antarctic Treaty grew out of the success of the International Geophysical Year (IGY) of 1957–1958. The IGY was a program designed to promote global scientific cooperation. Antarctica was chosen as one of two foci of coordinated scientific research during this period. At the conclusion of the IGY “many scientists and diplomats felt that the program in Antarctica was too valuable to terminate and that the international cooperation achieved during IGY should be maintained.”2 Accordingly, in 1959 the United States invited all those countries that had conducted scientific research in Antarctica during the period to send representatives to Washington to discuss the possibility of establishing a treaty. • The treaty that resulted from the Washington talks is generally considered a model of international cooperation. Among its important provisions are the following: • The Treaty provides that Antarctica shall be used for peaceful purposes only, with military activities south of 60o south latitude confined to logistical support of scientific research. • It institutionalizes unrestricted access to Antarctica for scientific purposes. • It prohibits nuclear explosions and the disposal of nuclear waste in the region. • It provides for the exchange of scientific data and personnel. • It enables signatories to inspect each other’s research stations and other installations.3 The most difficult issue negotiators had to confront during the Treaty talks was that of existing territorial claims. Seven of the original 12 countries active in Ant-

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arctica had previously made claims to portions of the continent. The other five countries neither had claims of their own nor recognized the claims of the others. Two of these countries, the United States and the Soviet Union, contended that they also had legitimate grounds for making claims and reserved the right do so in the future. To complicate the issue further, three of the existing claims (those of Argentina, Chile, and the United Kingdom) overlapped. No part of the Antarctic continent was clearly owned by any country. Recognizing that the claims issue could not be resolved easily but that other interests were held in common, the negotiators circumvented the issue with an innovative solution, which is embodied in Article IV of the Treaty. That article, which has important implications for the minerals regime negotiations, reads in its entirety as follows: 1. Nothing contained in the present Treaty shall be interpreted as: (a) a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica; (b) a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise; (c) prejudicing the position of any Contracting Party as regards its recognition or nonrecognition of any other State’s rights of or claim or basis of claim to territorial sovereignty in Antarctica. 2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.4 The compromise embodied in Article IV enabled the ATCPs to establish a treaty that has proved very effective in promoting cooperation and the peaceful use of Antarctica. At the same time, however, the compro-

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mise left the potentially divisive claims issue unresolved. It has been pointed out that the Treaty was a modest, limited, and relatively cost-free attempt at international control—essentially a formal version of the status quo reached during the IGY. The Treaty is therefore significant for what it does not address. It makes no mention of and gives no guidance for the exploitation of either renewable, living resources or of nonrenewable mineral resources within the Treaty area (i.e., land, ice, and water areas south of 60 south latitude). Dealing with these issues would have gone well beyond the original goals of the Treaty negotiators and, especially for nonliving resources, would have required that the claims issue be faced directly. Moreover, Antarctic resource exploitation was not considered feasible in 1959, and the negotiators could not have foreseen that less than 30 years later states would be positioning themselves for just such exploitation.5 The Antarctic Treaty System has grown in important ways since the Antarctic Treaty entered into force. The Treaty provides for regular Consultative Party meetings, which have produced several consensus agreements (formally known as recommendations) on issues ranging from environmental protection to the regulation of tourism. On occasion, instruments other than recommendations have been used to respond to issues requiring common action. For example, the Agreed Measures for the Conservation of Antarctic Fauna and Flora were developed in recognition of the need to conserve the living resources of the Treaty area. The Convention for the Conservation of Antarctic Seals established a management regime for seal hunting—if it should ever start anew in the Treaty area. And the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) established a management regime for the exploitation of all living resources in the circumpolar southern seas. The CCAMLR, although negotiated as a separate, stand-alone agreement by the ATCPs, embodies the principles of the Antarctic Treaty. The CCAMLR, which entered into force in 1982, is of special relevance. The convention was not easy to negotiate, but its ultimate ratification by the ATCPs does suggest that negotiation of a regime governing the exploitation of minerals could be accomplished without undue difficulty. There are, however, important differ-

ences between living and nonliving resources. Most living resources are mobile (for example, the abundant Antarctic krill) and therefore not easily contained within the jurisdiction of any one country. Moreover, Article VI of the Antarctic Treaty recognizes the existence of high seas within the Treaty area and declares that “nothing in the present Treaty shall prejudice or in any way affect the rights [one of which is the right to fish], or the exercise of the rights, of any State under international law with regard to the high seas within that area.”6 The problem of rights in offshore areas considered by claimants to be under their jurisdiction as coastal states (e.g., exclusive economic zones) was deftly handled in the CCAMLR by a device that has become known as the bifocal approach. Since several islands whose ownership is not disputed lie within the convention boundary, nonclaimants are able to interpret convention language pertaining to coastal state rights as applying only to waters around these islands; at the same time, claimant states can read the same text as applying to the waters surrounding their Antarctic claims as well as to the islands. This approach enabled signatories to continue to skirt the claims issue and to maintain a delicate balance between the interests of claimant and nonclaimant countries. Negotiation of the living resources regime was facilitated because the ATCPs recognized that management of the exploitation of mobile living resources not only was necessary given the increasing interest in southern ocean fishing, but also was in the common interest of all who valued the Antarctic Treaty System. Mineral resources (with the notable exception of floating icebergs) cannot move across the boundaries of national claims; they are fixed in place. These resources are thus inherently more capable of being exploited by a single national entity if uncontested jurisdiction over them can be established. Hence, the claims issue is more difficult to avoid for fixed mineral resources than it is for the living resources of the southern oceans. As the minerals regime negotiations progressed, it became clear that the ATCPs intended to sidestep the ultimate resolution of claims once again, but it was equally clear that such issues as title to resources, royalties, and civil and criminal jurisdiction had to be addressed in some fashion. To ensure that the interests of both claimants

Negotiating a Minerals Regime for Antarctica and nonclaimants would be satisfied, both creativity and political will were required.

The Need for a New Regime The need for a minerals regime for Antarctica can be explained in part by the evolution of science and technology and in part by the degree to which the ATCPs came to value the preservation of the Antarctic Treaty itself. Comparatively little was known about Antarctica in the early 1960s; today, however, after more than a quarter century of research, scientists have a much more accurate understanding of the continent. It is now known that Antarctica’s geologic provinces are directly related to those of the surrounding continental land masses, and that Antarctica differs from other continents only in that it is almost completely covered by ice. Scientists have discovered occurrences7 of many minerals that, if found in sufficient quantities in more accessible parts of the world, would be economically exploitable. Some evidence exists that Antarctica contains oil and gas, although no commercially oriented drilling has yet been done, and it is unknown whether any large hydrocarbon deposits exist. The means to exploit resources have also improved significantly since the Antarctic Treaty was ratified. This is particularly true of technology for developing offshore oil—the resource that would probably be of greatest interest were it to be found in sufficient quantities in Antarctica. Oil companies are venturing into ever-deeper waters in the search for new prospects and into seasonally ice-covered areas of Arctic and sub-Arctic regions.8 Devices such as Exxon Corp.’s Concrete Island Drilling Structure, man-made floating and grounded ice islands, and artificial islands made of sand and gravel have been designed specifically to withstand the rigors of offshore oil exploration in ice-covered frontier areas. Although Antarctica is a more difficult environment in which to explore for and develop oil resources than any other explored to date, it is fair to say that discovery of deposits large enough to be economically exploitable would stimulate the development of the required production technology if legal and political constraints to development were removed. Even if it never becomes economically feasible to exploit Antarctica’s mineral resources, some have

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argued that a country that lacked resources of its own might still wish to develop Antarctica’s resources to provide itself a secure source of supply. Better understanding of the geology of Antarctica and improved exploration technology have increased the probability that, if significant resources exist in Antarctica, they will be found. Although even significant deposits of nonliving resources are unlikely to be exploited in the near future, the possibility that they may someday be exploited is of concern to the ATCPs. Politics plays an important role. The Antarctic Treaty was originally crafted as a delicate balance between the interests of claimant and nonclaimant signatories. Over the years claimants and nonclaimants alike have developed a strong stake in the preservation of the Antarctic Treaty, which, despite its shortcomings, has enabled scientific research to proceed unhindered and has kept Antarctica peaceful and demilitarized. By the early 1980s, ATCPs had come to believe that the entire Treaty system could be threatened if valuable resources were discovered before an effective regulatory regime was in force. For example, although ATCPs have many reasons for remaining in the Antarctic Treaty, they are free to withdraw at any time. In the absence of an effective regime, the discovery of a major resource within a claimed sector (e.g., 20 billion barrels of oil “in place” or a concentrated platinum deposit) might induce the claimant to withdraw from the Treaty and attempt to develop the resource by itself. Should this happen, other ATCPs would be likely to protest, some because they themselves have equally valid grounds for staking a claim to the area, others because they may already have an overlapping claim, and still others because the withdrawing claimant would no longer be subject to the Treaty system’s environmental and other agreements. Such a withdrawal could signal the beginning of the end for cooperative activities in Antarctica. It is not certain what would then occur, but it is possible that at some point a would-be developer would have to defend its claim with military force or restrict travel and scientific research within its claim, hence defeating the peaceful purposes of the Antarctic Treaty. If a nonclaimant ATCP were to withdraw from the Treaty to exploit a resource, much the same outcome could result. There are no areas of Antarctica that are not either already claimed or subject to future claims, or

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both. Hence, the potential for conflict over resource rights was great. Even if the ATCPs ratified a regime regulating minerals exploitation, nonsignatory states could continue to be a problem. Although few if any countries that have not signed the Antarctic Treaty have sufficiently advanced technology to exploit a discovery, it is nevertheless equally true that they are not bound by the provisions of the Antarctic Treaty and would not be bound by a minerals regime they had not signed. National Interests at Stake From the perspective of the ATCPs—including the United States—certain national interests were at stake in Antarctic affairs in general and the minerals negotiations in particular. A fundamental national interest for states that participated in the Antarctic minerals negotiations was and remains preservation and maintenance of the Antarctic Treaty System. It would be an unsettling blow to the national interests of the ATCPs if political stalemate or ideological impediments within the Antarctic minerals negotiations precipitated collapse of the Treaty and its family of agreements. Implicit in this realization are the complementary goals of the ATCPs’ national interests in the region, which are well served by the Antarctic Treaty. The Treaty provides for demilitarization, denuclearization, and peaceful use only of the continent, as well as the freedom of scientific research, information exchange and cooperation, unannounced on-site inspection, and the obligation to settle disputes peacefully. Clearly, these provisions contribute to promoting geopolitical and strategic stability in the region. In so doing, they promote the preeminent interest of all participating nations, articulated in the Preamble, which is to ensure that the Antarctic “shall not become the scene or object of international discord.” Thus, preservation of the Treaty system must be underscored as a fundamental national interest of states involved in the Antarctic minerals negotiations. To the extent that these negotiations contributed to strengthening that system, they enhanced those states’ national security interests as well. Significant also as a national interest for several ATCPs, especially for technologically advanced parties like the United States, which are potential miners, was the need to preserve economic opportunities in the

region. The Western states in general and the United States in particular wanted to protect assured access to minerals on a nondiscriminatory basis for their corporate nationals. In short, they wanted to make sure that their commercial interests remained unprejudiced by fashioning a regime that would guarantee security of tenure and availability of access in the event that minerals exploitation ever occurs in the Antarctic. Not unexpectedly, pursuit of this interest by the more industrialized ATCP states conflicted with national priorities perceived both by claimant states (i.e., to protect considerations of their national sovereignty) and less developed ATCPs (i.e., to acquire access to new technologies and secure participation in joint venture arrangements). A third national interest running throughout the Antarctic minerals negotiations was the necessity to preserve and protect the Antarctic regional ecosystem from degradation associated with minerals exploitation. The regime not only would have to regulate minerals exploration and exploitation, but also would have to provide for effective policies to safeguard the local environment from pollution and ensure the conservation of resources. The fragility of the Antarctic ecosystem and the uncertainty about the extent of damage that minerals exploitation in the region might cause were highlighted for ATCP delegations by the persistent efforts of environmental organizations such as Greenpeace International, the Antarctic and Southern Ocean Coalition, the International Institute for Environment and Development, the Environmental Defense Fund, and the Antarctica Project throughout the negotiation process. Fourth, underpinning this nexus of national interests was the implicit desire of each ATCP to enhance its own international prestige and standing by participating in these negotiations. The ATCP members were but 20 out of nearly 200 states engaged in international relations. In effect, they represented the self-proclaimed stewards of the Antarctic region, and as such their participation in the Antarctic minerals negotiations carried with it a certain special political status in the eyes of the international community. Preservation of that status in itself constituted an important national interest for some ATCPs.9 On the other hand, not all other states were willing to acknowledge the ATCPs’ legal right to fashion on their own policies for the Antarctic region in the name of all humanity.

Negotiating a Minerals Regime for Antarctica In sum, the ATCPs strove to create an institutional mechanism capable of effectively managing minerals activities, promoting scientific cooperation, ensuring economic priorities, and protecting the circumpolar environment—all to be accomplished without disturbing the geopolitical stability afforded by the Antarctic Treaty System. Principles Governing the Negotiations At the 1981 Consultative Party meeting in Buenos Aires, the ATCPs decided that negotiation of a minerals regime for Antarctica should begin as soon as possible. Recommendation XI-1, adopted at that meeting, is important because it formally set out the principles (discussed in earlier meetings) that should govern the minerals regime negotiations. Paragraph 5 states that: a) the Consultative Parties should continue to play an active and responsible role in dealing with the question of Antarctic mineral resources; b) the Antarctic Treaty must be retained in its entirety; c) protection of the unique Antarctic environment and of its dependent ecosystems should be a basic consideration; d) the Consultative Parties, in dealing with the question of mineral resources in Antarctica, should not prejudice the interests of all mankind in Antarctica; e) the provisions of Article IV of the Antarctic Treaty should not be affected by the regime. It should ensure that the principles embodied in Article IV are safeguarded in application to the area covered by the Antarctic Treaty.10 Moreover, Recommendation XI-1 specified certain elements that the minerals regime should contain. Among these were means to assess the possible impact of mineral resource activities on the Antarctic environment; to determine whether mineral resource activities in specific areas are acceptable; and to govern the ecological, technological, political, and economic aspects of those activities determined to be acceptable. Also to

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be included should be procedures to ensure adherence by states other than the ATCPs; provisions for cooperative arrangements between the regime and other relevant international organizations; provisions to ensure that the special responsibilities of the ATCPs are protected; provisions covering commercial exploration and exploitation; and a definition of the area of application.11 Recommendation XI-1 was thus both the culmination of events leading up to the decision to establish a regime and the beginning of the formal process to do so. Institutions of the Regime Many alternative regimes have been suggested for governing the activities of states in Antarctica. For instance, ATCPs theoretically could work to establish a condominium and thereby jointly assert sovereignty over Antarctica’s resources. Or they might decide to establish joint jurisdiction over resources only, leaving sovereignty questions aside while forming a joint venture to exploit common resources. Some nonparties to the Treaty have advanced the idea of establishing an international regime for developing Antarctica’s resources similar to that for exploiting seabed resources described in the Law of the Sea Convention; others have proposed that resource exploitation in Antarctica be forever banned and that a world park be established.12 That the regime evolved in the direction it did reflects the importance the ATCPs attached to the preservation of the Antarctic Treaty, the difficulty of compromising on the claims issue, the belief of the ATCPs that only those with continuing activities in Antarctica should make the important decisions, and the belief that the regime should provide a framework for future activities—but that certain institutions of the regime should not be activated until necessary. Hence, exploration and development activities would not be allowed in a given area unless a decision was made to permit them. The reverse is true of the CCAMLR, under which unregulated fishing is permitted unless there is a decision to regulate or stop it.13 After 10 formal negotiating sessions and numerous informal meetings, a distinctive proposed regime slowly emerged. The regime would have three important institutions: a Commission, one or more Regulatory Committees, and a Scientific, Technical, and Environmental Advisory Committee.

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At a minimum, membership in the Commission would include all of the ATCPs; additional membership could include states that are not ATCPs but that sponsor mining activities. The most important function of the Commission would be to decide whether or not to open an area to exploration and development. This decision would be made by consensus, as is the rule for most other important decisions made within the institutions of the Antarctic Treaty System. Other possibilities, such as a two-thirds majority vote or a simple majority, were rejected. Clearly, the requirement of a consensus vote would make it more difficult for an area to be opened for exploration. To assist in making this key decision, the Commission was to be provided with technical advice from the Advisory Committee. Regulatory Committees would also be established for each area opened by the Commission. These committees would be responsible for setting forth detailed rules governing activities within their areas of jurisdiction. They would also review exploration and development proposals, determine whether rights should be granted and what rights to grant, and oversee any mineral operations that take place. Clearly, the Regulatory Committees would have much responsibility, and it could be in this forum that deals concerning royalties and other rights would be negotiated between claimant members and other interested committee members. Membership in each of the Regulatory Committees would consist of both superpowers, the claimant(s) in whose claimed area mineral activities are contemplated, several additional claimants, and additional nonclaimants including one or more developing-country ATCPs. The goal was for Regulatory Committees to consist of a politically balanced subset of ATCPs.14

issues of substance or of procedure during the negotiating sessions. To the extent that a formally agreed committee structure existed, a plenary session functioned to open and close each general negotiation session. This occasion provided an opportunity for delegations to state their national positions on various issues in broad fashion. Most states, however, refrained from doing so in the later stages of the negotiations since their views were by then well known. Although no substantive committees were created per se, certain committees of the whole, called “Contact Groups” or “Working Groups,” were set up to examine specific areas of general concern. The Legal Group, for instance, was convened to consider technical legal issues such as dispute settlement, compliance, amendment, withdrawal, and liability; the Exploration and Development Group worked to resolve issues affecting filing and approval of exploration applications and submission of management schemes. A less formal group on the Confidentiality of Data and Information considered timing and procedures for public release of minerals—related data and other information and basic protection for proprietary data. Two other Contact Groups were active during early stages of the negotiations—a Prospecting Group and an Environmental Group—but they disbanded when the contentious issues were resolved. In serving as informal mechanisms for negotiating issues, these Contact Groups produced discussion papers and reports for perusal by the Chairman of the negotiations and for his use in revising texts.Working Group discussions allowed participants to determine more clearly where delegations stood on issues, and their papers demonstrated where consensus was crystallizing.

Process Considerations: The International Dimension Process Considerations: The Domestic Dimension The Antarctic minerals regime was the product of an evolutionary process. While not as formal as the United Nations law of the sea negotiations (1973–1982), the Antarctic mineral discussions tended to be more pragmatic. With only a relative few states participating, the negotiations operated very informally to enhance flexibility in the diplomatic process. There was no rigid committee structure, nor was there any need for parliamentary procedure. The Rules of Procedures of the Antarctic Treaty Consultative Meetings served as formal guidelines. There were no votes taken on either

The course of the Antarctic minerals negotiating process depended on the manner in which these interests were perceived and translated by ATCP governments into national policy positions. Examination of the procedure used by one prominent member—the United States—furnishes some worthwhile insights into governmental policymaking as it affected the Antarctic minerals negotiations. The negotiating position of the United States on Antarctic minerals issues was derived from a set of

Negotiating a Minerals Regime for Antarctica instructions drawn up by an interagency task force, the Antarctic Policy Group (APG). Within the APG, debate occurred over the ways and means for addressing various policy questions and the most appropriate policy alternatives to be followed. To produce a unified policy that would best serve U.S. national interests, the Department of State drafted a position paper that embodied agreement on issues by the Legal Adviser’s Office, the Bureau of Oceans and International Environmental and Scientific Affairs, and the Economic Bureau. This paper then was circulated to the APG. Most members on the U.S. delegation to the Antarctic minerals negotiations also served on the APG. The agencies represented at APG meetings included, inter alia, the departments of State, Interior (especially the U.S. Geological Survey), Energy, Defense, and Commerce (the National Ocean and Atmospheric Administration), as well as the Marine Mammals Commission, the Environmental Protection Agency, the National Science Foundation, and the Arms Control and Disarmament Agency. The APG was advised by the Antarctic Public Advisory Committee (APAC), a group drawn from public international organizations, industry, and the academic community. The APAC met two or three times each year with the APG and various congressional staff to discuss Antarctic issues and U.S. policies. In general, the APG, after appropriate study, would formulate a package of proposals that best represented the national interests of the United States and reflected those particular policies to be sought within the negotiating framework. A set of formal negotiating instructions was derived from these proposed policy objectives. These in turn served as the preeminent guide for U.S. policy in negotiating various points in the international negotiations. The Antarctic minerals delegation consisted of a public interest representative from the International Institute for Environment and Development, an industry representative from the American Petroleum Institute, and a private technical adviser from the academic community, as well as APG members. The process of squaring Antarctic minerals policy with the national interest began with the basic formulation of U.S.interests in APG discussions. The intent of the discussions was to construct a coherent, cogent position for all agencies in the U.S. government.

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At the international level, members of delegations took into account how domestic factors affecting the national interest weighed in the situation. For example, interests and policies differed depending on whether a state was potentially a producer or a consumer of Antarctic minerals. The acceptability of particular negotiating points was determined by a mix of political, legal, economic, and environmental considerations. As each state appraised these factors differently, opportunities for trade-offs were created. The Antarctic mineral negotiations sought to balance national interests in a regulatory regime for minerals and the maintenance of the Antarctic Treaty System with other, more individual ATCP priorities such as privileged rights for claimant nations, demands for special participation in decision-making organs, and special rights for developing nations. The Role of Informal Diplomacy Informal negotiations outside the convened sessions contributed immensely toward reaching an agreement. Such “corridor diplomacy” facilitated the search for practical solutions through informal encounters among the delegates. Coffee breaks, lunches, receptions, and dinners provided numerous opportunities for informal exchanges. Informal negotiations tended to be direct and issue-specific and usually were not obscured by the political rhetoric or ideological undercurrents that often typified the more formal negotiating sessions. It is likely that the consensus and progress attained in the formal sessions stemmed directly from this process of informal diplomacy. This may not be overly surprising given that the “formal” negotiations, apart from the plenary sessions, were themselves rather informal in character. As already noted, the Antarctic Treaty System has operated through consensus decision making. During the Antarctic minerals negotiations, consequently, the preeminent objective of attaining consensus tended to permeate the entire process. Near the close of each main plenary negotiating session, the Chairmen of the Contact Groups provided a “written/oral report” that presented the outcome of those discussions. While these reports were supposed to reflect consensus, they often explicitly indicated on what points delegations failed to agree. Each report essentially reflected the

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Group Chairman’s best estimate of the situation. No rebuttal or critique of points raised or views expressed in these reports occurred at the plenary session at which they were presented. Such debate was characteristically left for the next round of discussions. The Special Role of the Chairman A vital ingredient in the Antarctic minerals negotiating process was the role and personality of the Chairman of the negotiations, Ambassador Christopher Beeby of New Zealand. He engaged in considerable personal diplomacy, amounting to a continuous series of personal consultations with the heads of national delegations. This group of senior diplomats, sometimes called the Beeby Consultation Group, was extremely important in the negotiations. Working together as a group allowed the members to express directly their governments’ attitudes toward various issues. They were also able to engage in direct efforts to secure compromise on contentious points, as facilitated by the Chairman. It was through this senior group, in fact, that the Chairman played a pivotal role. It made it possible for him to promote greater rapport and mutual trust among the delegates. His cultivation of amiable personal relationships proved essential to building consensus. Beeby’s central role made him in effect an “honest broker” among the delegations and a key factor in drafting a viable Antarctic minerals regime. The Chairman’s personal role was made even more pivotal by the fact that no secretariat existed either for the Antarctic Treaty System or for the proposed minerals regime. The Beeby Texts The text of the Antarctic minerals convention was a product of complex diplomatic negotiations, facilitated by the special role of Chairman Beeby. The Chairman actually took on personally the task of drafting the text. Not surprisingly, successive iterations of the draft thus came to be known as the Beeby texts. The Beeby texts emerged through a gradual, evolutionary process, beginning with Beeby I in 1983 and continuing with Beeby II in 1984, Beeby III in 1986, and Beeby IV in 1987. The procedure used to advance the text through its evolution generally followed a characteristic pattern. First, a draft text was produced on the basis of discussions and the sharing of national views.

The draft was then read and commented upon by national delegations and the relevant ad hoc Contact Groups. They in turn conveyed their views through discussion papers and reports back to the Chairman, who then consulted informally with delegates to exchange private views in the general negotiating sessions and in various intersessional meetings. This process resulted in the production of a new text, which attempted to mirror the evolving consensus. The linchpin of this drafting process was the constant flow of communications between the Chairman and the 18 national delegations, mostly on an informal basis. The absence of a structured institutional approach invited some criticism because of its ad hoc nature, but the process seemed to work. Throughout the negotiations the tendency was to shy away from entrusting any person or group with the authority to draft an official text. The fundamental aim behind this strategy was to use the Chairman’s personal interpretation of negotiating points. In this way, ostensibly, no delegation’s position would be prejudiced. However, national delegations did in effect work to draft portions of the texts. That is to say, they influenced the substance of Contact Group discussion papers, and they communicated directly with the Chairman or submitted their own drafts of provisions to him, not for approval but for consideration. In the course of the Chairman’s search for consensus, he inserted language from these drafts into his own draft texts. The Beeby texts neither enjoyed nor were accorded the formal status of negotiating instruments during the Antarctic minerals negotiation sessions. Instead, they were characterized as “the Chairman’s offerings” or “the personal views of the Chairman.” They functioned as a basis for negotiation and served as practical, noncommitted official conference documents, without being officially acknowledged as working texts. Their de facto treatment as negotiating texts allowed for flexibility and openness in the negotiating process. Changes and suggestions could be made without complicating the positions of any particular delegation. The motive behind the production of the Beeby texts was practical necessity. The negotiation process needed a main document on which to concentrate the negotiators’ attention. Production of the Beeby drafts as a series supplied a way to determine where in the

Negotiating a Minerals Regime for Antarctica negotiations facets of consensus lay. In addition, the Beeby drafting process provided the diplomatic vehicle for moving the negotiations forward—for “testing the waters” on various negotiating points without having to seek formal agreement on any single provision. It was a political fiction to insist that the Beeby texts had no formal status in the negotiations, because the texts obviously existed and undeniably served as the focal point for the negotiations from 1983 on. Even so, each Beeby text was negotiable, malleable, and modifiable. The process represented a functional means to a negotiated end, namely, promulgation of an Antarctic minerals convention, and the Beeby texts were the conduit for reaching that end. Evaluation of the Process: Advantages and Disadvantages It is important to appreciate that the Antarctic minerals negotiations were intended to result in a “package deal.” The treaty product of these negotiations would either be accepted or rejected as a whole. No reservations by individual nations would be permitted on substantive provisions. As a result, if a national government was unable to accept a particular provision in the text, that state would have to opt to decline participation as a party. The “package deal” approach carries certain disadvantages. First, it complicates the decision-making process. Resolution of each individual issue in the treaty becomes linked to the successful negotiation of all the others. Second, the package deal approach often generates delays. Little need may be felt to press on with negotiations in one area until a problematic question in another is satisfactorily resolved. In the Antarctic mineral negotiations, this potential problem was largely overcome by the tendency to lay aside key troublesome issues and move on to others. A third liability inherent in the package deal strategy is that it encourages states to seek to trade off concessions in one area for concessions by other parties in another—such trade-off tactics may introduce new substantive complications and procedural delays into the negotiating process. On the other hand, it is equally true that trade-offs may also furnish the means to move a negotiation forward, if indeed the requisite deals can be cut. Linkages between contentious issues in the Antarctic minerals negotiations in fact became a common

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practice. The nature of the issues and the composition of the ATCP membership were such as naturally to give rise to these linkages. Both an internal and an external dynamic were at work in the negotiations, which involved a mixed cast of states with a mixed package of interests. On the one hand, cleavages existed between claimant and nonclaimant states. The claimant states asserted sovereign rights to portions of the continent and advocated that special considerations for their “territorial rights” be represented in the new minerals regime. On the other hand, nonclaimant states, which refused to recognize the validity of those claims, were reluctant to grant any special rights because to do so would be a tacit acknowledgment of a special place of claimant states in the regime. A schism was also evident between the more technologically advanced and the less developed states. The latter desired to secure preferential privileges and opportunities in light of their economic condition. The industrialized states—which undoubtedly would have to assume most of the technological investment burden—wanted to circumscribe any concessions of this type. The minerals negotiations strove to determine the right mix of provisions to accommodate the interests of all parties, without unacceptably encroaching upon the interests of any. As a consequence, revision of the draft text proceeded article by article, within the framework provided for by the Contact Groups concerned with particular issues. The Antarctic minerals negotiating process was earmarked by both strengths and deficiencies. On the positive side, toning down the formal trappings, political rhetoric, and strict procedure that often characterize more structured diplomatic negotiations facilitated the exchange of views. While the process came to be viewed generally as competent, it also remained less rigid and less stilted than other negotiations. Lack of a formal structure permitted delegations to seek out and give advice more freely, and this may have promoted consensus. In sum, the fluidity of the negotiations process enhanced the opportunities for substantive discussion of technical points in the negotiations. On the other hand, the flexible, unstructured nature of the process might be faulted for its seemingly chaotic nature and its tendency to allow the more powerful delegations greater opportunity to dominate the Chairman’s attention outside the formal sessions. Yet it bears remembering that the process did seem to work. And any negotiation, formal or informal, on matters of

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national import is likely to be disproportionately influenced by powerful states. There also existed the problem of changing memberships of delegations—some delegations experienced repeated turnover of personnel. All national delegations are composed of people with their own individual personalities. Continuity of personnel is important. Having the same people involved in the same negotiations from beginning to end improves the chances of expediting the process. New members on delegations require training, adjustment, familiarization with the issues, and a general integration into the process. All of this is apt to inhibit the negotiations and retard their momentum. On the other hand, bringing “new blood” into the negotiations also probably contributes fresh insights and ideas. Moreover, not only new people but new states came to the Antarctica minerals negotiating table: after the minerals negotiations began in 1982, six states— Brazil and India in 1983, the People’s Republic of China and Uruguay in 1985, and the German Democratic Republic and Italy in 1987—became members of the ATCP group.15 It was inevitable that these states’ admission in to the negotiations would give rise to delays of one sort or another. The size of delegations also affected the progress of the negotiations. Delegations of two were better able to cut deals with other delegations of two over any given problem than delegations consisting of 10 or 15 members. It is clear that initiation of the minerals negotiations served as a political catalyst for focusing international interest in and attention on Antarctica. The ATCPs’ haste to begin conducting minerals negotiations prompted a U.N. General Assembly debate on Antarctica and the rise of the so-called “Malaysia factor”—that country led a movement to have the Antarctic region declared part of the “common heritage of mankind.” Although not a certainty, this movement might eventually attempt to challenge the lawfulness of the entire Antarctic Treaty System. Finally, the initiative to craft a minerals regime for Antarctica diverted attention from more immediate concerns—such as the pollution and environmental degradation already occurring in the region, the collapse of fisheries in the southern ocean, and the creation of a badly needed secretariat for handling Antarctic affairs—in deference to the minerals question,

which at best is a consideration that will not become directly relevant until two to three decades from now, if indeed ever. Evaluating the Process: Lessons Learned Although not entirely unique among multilateral negotiations, the process of negotiating an Antarctic minerals regime was special, given the unusual physical environment at issue as well as the particular cast of ATCP states, their distinctive national interests, and their differences over the territorial status of Antarctica. It remains difficult to assess how much this negotiating experience will contribute to the form that international lawmaking takes in future international resource negotiations. Yet the Antarctic minerals experience does contribute certain procedural and operational lessons for the general process of international law creation through treaty negotiation. For one, the Antarctic minerals process drew upon lessons gleaned from past negotiations. Foremost among these was the ATCP’s successful experience since 1961 with consensus decision making, including that in drafting the 1980 CCAMLR. That process created a regime that served as a useful model in constructing the institutional structure for the minerals negotiations. Another model was the drafting of the United Nations Convention on the Law of the Sea from 1973 to 1982. That experience also involved negotiation through consensus and a package deal approach, as well as the small group aspect and ad hoc informal consultation, with the focus of negotiations concentrated on the Chairman’s single negotiating text. Finally, much was gained for the Antarctic minerals process from the collective skills and wisdom of professional diplomats who had been involved in several other bilateral and multilateral negotiations. A second and related lesson pertains to the role of informal diplomacy and negotiation. The informal, practical, goal-oriented approach was a major contributor to the success in negotiating the regime. Third, and no less important, was the perception by ATCPs that the Antarctic minerals negotiations served as a vehicle for enhancing regional cooperation in the Antarctic. Specifically, the minerals negotiations worked to maintain the Antarctic Treaty and preserve its system of appended regional arrangements. Hence,

Negotiating a Minerals Regime for Antarctica the ATCPs viewed this series of negotiations as contributing to the creation of institutions designed to protect the circumpolar environment in the event that mineral exploration and exploitation should ever get under way. The negotiations were aimed at having a regime in place to deal with possible exploitation through a regularized institution, rather than on an ad hoc, piecemeal basis. (The contrary concern of environmentalists, of course, is that once a treaty-based, institutionalized regime is in place, it will be easier for mineral extraction companies to secure the financial backing necessary to engage in exploration ventures in the Antarctic. Thus, creating the minerals regime could ostensibly become a self-fulfilling incentive to maximize the potential opportunities associated with its establishment.) To the extent that practical political realities affected the possible outcomes of the consensus approach in the Antarctic minerals negotiations, national interests had to be clearly delineated and resolutely articulated; only then could the feasibility and broad effects of those outcomes be fairly gauged. In this respect, U.S. national interests were enhanced by the Antarctic minerals negotiations, particularly insofar as many policy positions advocated by the United States were adopted by the Chairman and incorporated into the Beeby texts.16 Nevertheless, pressure to wind up the Antarctic minerals negotiating process carried within it an Antarctic “catch-22” for the ATCPs. On the one hand, the motivation to complete these negotiations was propelled by concern over the hostile sentiment of some in the United Nations toward the Antarctic Treaty System. Hence, it was believed that the sooner the ATCPs completed the negotiations, the more likely the U.N. General Assembly would redirect its attention away from the region toward more pressing political concerns. On the other hand, the push to consummate these negotiations galvanized international opposition to the process and the minerals regime in particular, as well as to the Antarctic Treaty System in general. The Antarctic minerals negotiations made substantive contributions to the process and substance of multilateral diplomacy affecting common-space resource regimes. Even so, the success of the negotiators in building an Antarctic minerals regime will be measured by how well this carefully balanced regime works if it is put to the test at some difficult-to-determine time in the future.

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THE LAST SESSION The Antarctic minerals negotiations illustrate how both internal and external pressures can lead a group of quite diverse countries to negotiate a far-reaching document, despite very different views about basic issues—principally in this case the status of territorial claims. Could a rational regime be developed to regulate the possible future exploitation of Antarctica’s resources, even though the countries did not agree on who owned the resources or who should have the right someday to exploit them? Before the negotiations, few believed that a minerals regime could be established without first settling the claims issue once and for all. But, as these negotiations illustrate, diplomats can be very skillful at making end runs around troublesome issues. The negotiations began in 1982 as the Fourth Special Antarctic Treaty Consultative Meeting. In all, 10 rounds of talks took place between 1982 and 1988. By the end of the 10th negotiating session, the Antarctic Treaty Consultative Parties had resolved numerous differences. The evolving convention had been painstakingly crafted through intense negotiations in the special session meetings, formal ad hoc working groups, intersessional gatherings, and numerous bilateral consultations. The personal influence, political credibility, and diplomatic skills of Chairman Beeby had been instrumental in securing agreement on numerous contentious issues among the various actors. Nevertheless, some key differences remained, and unless these could be resolved, no agreement would be possible. Prior to the eleventh session, the ATCPs realized that the time was fast approaching when they would have to make some difficult compromises. Accordingly, representatives from the Consultative Party states engaged in the negotiations agreed that the May-June 1988 session in Wellington, New Zealand, would be the last one, at which the final sticking points would have to be resolved and a convention adopted. Characterizing the mood of the delegates, one U.S. participant in the negotiations noted that most of the delegates felt that unless they were able to muster the political will to make some tough decisions soon, the negotiations could drag on for a very long time, becoming a formalized forum in which to agree to disagree. To most, such an outcome after six years of negotiations was unacceptable.

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Many elements of the regime, including the general principles to which all participants would adhere, had largely been settled. The most important of the remaining issues related, in one way or another, to differing points of view about Antarctic claims and the rights that accompanied these claims. If the minerals convention was to work at all, it would have to be a carefully crafted balance between the interests of the claimants and those of the nonclaimants. The risk was that a failure to reach agreement on these sticking points could bring about the collapse of the entire negotiation. The negotiators knew that such an outcome could produce severe strains on the entire Antarctic Treaty System and on the cooperative modus operandi that had earmarked its progressive development since 1959. The Actors The actors participating in and affected by the Antarctic minerals negotiations fell into a few sharply delineated groups. By far the most important group was the Antarctic Treaty Consultative Parties (ATCPs). These are the governments whose representatives meet regularly every two years to decide policy for Antarctica under the Antarctic Treaty regime. This group and this group alone has the power to ratify a new convention and see that it enters into force. By the time of the last negotiating session, 20 states had become ATCPs. (As already noted, Sweden and Spain became ATCPs in September 1988, after the final session, and hence their votes did not count toward ratification and entry into force of the convention). Several important divisions existed within the ATCP group. The most fundamental was that between the 7 states that asserted claims over portions of the continent (Argentina, Australia, Chile, France, New Zealand, Norway, and the United Kingdom) and the other 13 states that neither asserted claims of their own nor recognized the legitimacy of the others’. As the final session approached, the claimants, who preferred to retain the right to veto minerals activities in their claims, had lingering concerns over the sharing of revenues from mining activities, the composition and decision-making rules of institutions established by the new regime, authority over on-site inspections, and details relating to compliance. Within the nonclaimant group, differences existed between the technologically advanced states and the

developing countries. As leading members of the nonclaimant group, the United States, the Soviet Union, Japan, and West Germany often assumed prominent positions during the negotiations. A principal objective of this group was to ensure security of tenure for their potential mining firms and enterprises should such activities prove feasible on or around the continent. The nonclaimant developing countries, led by India, Brazil, and China, had gained strength during the course of the negotiations. They had steadily improved their bargaining ability and had gained influence by adopting a more unified negotiating strategy, undergirded by a common set of objectives. As a group, they were determined to secure guaranteed involvement in activities related to future minerals development. Their adamance came into sharp conflict with the more developed states’ reluctance to share their technology or to be bound to participation in mandatory joint ventures with developing ATCPs. In addition to the ATCPs, 18 other states have acceded to the Antarctic Treaty. Collectively, this group is known as the group of Non-Consultative Parties (NCPs). These governments have a voice but no decision-making vote in designing policy for the region. Their role in the minerals negotiations consequently was primarily that of observers. Included among these states are Austria, Bulgaria, Canada, Cuba, Czechoslovakia, Denmark, Ecuador, Finland, Greece, Hungary, the Democratic Republic of Korea, the Republic of Korea, the Netherlands, Papua New Guinea, Peru, Romania, Spain, and Sweden. The other countries of the international community were essentially outsiders to the talks. Certain states such as Malaysia, Antigua and Barbuda, and Sierra Leone had led a movement in the U.N. General Assembly to cut off the negotiations for an Antarctic minerals regime until it could be fashioned into a more universal arrangement. This confrontation in the General Assembly had produced much heat, frustration, and rhetoric, but little in the way of progress toward accommodation or a political solution acceptable to this group. Key Issues Prior to the final negotiating session, the Chairman circulated a revised draft of the minerals convention. Some progress had been made on various issues at an

Negotiating a Minerals Regime for Antarctica informal intersessional meeting of 14 ATCP governments held three months earlier. The most important unresolved issues, as noted above, related to fundamental differences regarding claims. The first such issue concerned the procedure for voting in the Commission: which decisions would be adopted by consensus, and which, if any, by some form of majority rule? Pro-development states opposed reliance on consensus, since one state would then be able to block minerals activities in an area. Those states with strong environmental concerns, and indeed environmentalists generally, favored a consensus rule, particularly for the critical, threshold decision of opening areas to development. It was expected that the final convention would require only supermajorities (probably two-thirds or three-fourths) for most Commission decisions. A consensus rule seemed likely for decisions involving opening an area for minerals activities and for budgetary decisions. The composition of the Regulatory Committees was a second unresolved issue. These limited-membership bodies were to be created to consider applications for licenses and to oversee minerals activities in areas of Antarctica approved for development by the Commission. Prior agreement had been reached that both the United States and the Soviet Union would have guaranteed seats on every Regulatory Committee; however, this agreement was not reached without severe criticism from developing ATCPs. A third issue concerned how the potential profits from minerals activities in the Antarctic might be apportioned within the regime. Claimant states sought the right to receive an automatic share of revenues derived from minerals activities on the continent. They contended that these royalties were essential to the process of internal accommodation in the Antarctic Treaty System. Claimants proposed that such revenues might be generated by their presumed right to tax development activities within their respective sectors. Other justifications for these payments were posed by the claimants in their capacity to set some kind of compensatory fee for relaxing mining rights associated with permanent sovereignty over natural resources, or in their role as special regional managers over mineral development activities. Nonclaimants rejected these suggestions. Even to enter into discussions on such matters, they argued, would give unwarranted credibility to the claimants’

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assertions that they possessed legitimate claim to title. The legal implications of this situation were such that nonclaimants flatly opposed even any consideration of royalties or tax payments to be made to claimant states. Compromises Despite these differences, the parties found many reasons to compromise. After all, one of the motivations for seeking a minerals convention was the increasing outside pressure coming from the United Nations. If the ATCPs proved unable to resolve their differences and to present a united front against planning for Antarctica’s future in the wider U.N. forum, the United Nations would be glad to get involved, and both claimant and nonclaimant interests inevitably would suffer. Moreover, claimants and nonclaimants had cooperated ever since the 1957–1958 IGY, and cooperation had become itself one of the most important values of the Antarctic Treaty System and one that both sides wished to preserve. The modus vivendi of the Antarctic Treaty and the related agreements suited all the ATCPs well, and no ATCP wanted to see this system jeopardized. The claimants to territory in Antarctica—particularly Chile, Argentina, and Australia, which all felt very strongly about their claims—faced a dilemma. No representative from these countries could ever publicly acknowledge that his country’s legal basis for making its claim was weak, or that some other countries—notably the United States and the Soviet Union—that had not made claims had equal justification for doing so. To do so would weaken his country’s negotiating position, leading to a final outcome much less acceptable to—and therefore much less likely to be ratified by—his government. Nevertheless, the claims could be challenged. It is likely that this consideration was discussed among the participants. Although claimant state delegates fully believed in the appropriateness of their countries’ claims, they understood well the positions and strength of the nonclaimants and other groups. Just how far could the claimant group push, how much could they achieve, and what kind of compromises would have to be accepted? In discussing negotiating strategy for the final session, the members of a claimant-country negotiating team might have reasoned thus: “We know that the other ATCPs, who now form a large majority of our group, will never agree to the solution that is nearest to

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our hearts (nor will non-Treaty countries), namely, recognition of our claims, thereby giving us sole authority to manage and develop any resources we might find there. We also understand that if we cannot agree with the ATCPs and the United Nations then gets involved, our positions will be further diluted. We don’t have to admit it, but we know that other countries could also make claims that would be looked upon as equally valid. That would make for an increasingly complicated situation, and one that would put the Antarctic Treaty System in jeopardy. We value our claims, but we also value the Antarctic Treaty System. Moreover, we simply do not know whether or not there are any resources worth exploiting in the area we have claimed, but there might be some in other claimed areas, and it might not be a bad idea to have access to those areas too. We do know that 98 percent of Antarctica is covered by ice and that the economics of recovering resources in Antarctica in the foreseeable future are dismal. “Therefore, it is highly unlikely that we would be giving up very much in material terms if we agreed to less than full control over the area we claim. But the symbolic aspect must also be considered. We have long referred to a part of Antarctica as ours. Our citizens `know’ that this part of Antarctica belongs to us. It is therefore important that we not appear to be giving in on the claims issue. For us to agree to participate in this minerals regime, the other ATCPs must agree to continue to abide by the rule set forth in Article IV of the Antarctic Treaty. We can live with the fact that the claims issue will still not be resolved. After all, limbo is sometimes not a bad place to be. But we need to have some special influence. We must have the ability to block development in the territory we claim. And we must be able to reap some of the benefits of any development that does take place.” In private strategy sessions of delegates from nonclaimant developed countries with the capability to undertake resource exploitation—countries like the United States—one might have heard the following discussion: “More than anything else, our goal is to maintain the smooth functioning of the Antarctic Treaty System. It has served well our interests in preserving the freedom of scientific research, in keeping Antarctica demilitarized, and in promoting a spirit of cooperation. But we also want our private firms and national enterprises to have equal opportunities in all parts of Antarctica to develop resources. We do not recognize

claims, so we do not believe that claimants should have any special privileges in areas they claim. We constitute a powerful and influential group that cannot be ignored. Moreover, some of us have as much basis for making a claim in Antarctica as those who have already done so; also, their claims are not widely recognized, either by the ATCP group or by the wider international community; some of the claimants would benefit by having access to areas other than “their own” area; and, finally, we know that the claimants, like ourselves, have come to see the preservation of the Antarctic Treaty System as an important objective in itself and one that they would jeopardize by pushing the claims issue too hard. “Still, we understand that the claimants are very serious about their claims and that some sort of compromise will be required to allow both sides to declare victory. The Antarctic Treaty System has worked well so far by making important decisions by consensus. We can live with this type of decision-making rule in the minerals regime up to a point, but we truly believe that some decisions must be made by different voting procedures—majority rule, for instance. We don’t want claimant countries to be able to block exploitation wherever and whenever they please.” Finally, the group of nonclaimant developing countries (India, Brazil, China, and Uruguay), the newest members of the ATCP club, shared some interests in common with other nonclaimants, but they also had some different interests and objectives and saw the world from a much different perspective. In recent years the less developed states had emerged as a political force in the ATCP group by virtue of their sheer number—6 out of 18. Consequently, they advocated their “special” right to involvement in all activities in the proposed regime, something that the more industrialized states were willing to accommodate only up to a point. Their specific interests included technological assistance for developing countries and mandatory inclusion of developing countries in joint ventures, should development ever proceed. Other ATCPs preferred more specific selection attributes for joint venture partners, including the financial soundness of the applicant, technical skill and experience, the adequacy of environmental protective measures, and international participation generally, without any mandatory participation provisions. Another unresolved concern

Negotiating a Minerals Regime for Antarctica prior to the last session was developing-country membership on Regulatory Committees. An observer at a meeting of the members of this group might have heard the following: “The fact that we are now fully accredited Consultative Parties is, in itself, a major achievement for us. It tells the world that, even though we are still considered developing countries, we are now advanced enough and wealthy enough to participate as full members of this group. We wish to do so responsibly, and we certainly do not want to be perceived by our new partners to be working to weaken the Treaty system. We agree with the other nonclaimants that claimants should not be accorded any special privileges. We are not as rich as our developed nonclaimant friends, however, and we think that if minerals development of Antarctica is allowed, we should not be discriminated against just because we may not have the sophisticated technology to undertake a project by ourselves. We need to make sure that we have the opportunity to participate as partners in development projects. If the other nonclaimant countries want our support, they will surely give in to us on this issue. As developing countries, we also feel it is our responsibility to remind the other ATCPs that the international community at large does have legitimate interests in Antarctica, and that such interests ought at least to be seriously considered. As new ATCPs, we have just as much right as the original members to call for a review of the Antarctic Treaty sometime after 1991. For this reason alone, our ATCP colleagues should seek to accommodate our interests. On the other hand, we recognize our relative weakness. We do not wish to press our demands so hard that the good will we have built with the other ATCPs is jeopardized, perhaps with adverse implications for issues outside Antarctica that are important to us.” The most important of the remaining questions the delegates had to resolve when they arrived in Wellington in May 1988 were the question of how to deal with any revenues that would be generated by resource exploitation, and the question of voting rules for key decisions. Successful resolution of both unresolved issues depended upon whether or not the claims issue could again be sidestepped, because it was very clear that neither claimants nor nonclaimants would give in on their claims position. Many of the claimant states arrived at the meeting hoping to secure a special share of any revenues generated from exploitation. But nonclaimant countries

17

could not be dissuaded from their position that no special privileges should apply. To grant special privileges to any claimant would be to accord implicit recognition of the claims. In any case, nonclaimants argued, most of the revenues, if indeed any should be generated, should be used to run the institutions of the minerals convention. Whereupon the claimant states modified their initial position and called for a special share of the surplus revenues over and above the costs of running the institutions. Nonclaimant states objected to this position as well, and for the same reasons. They also pointed out that operating the existing institutions of the Antarctic Treaty System had already cost a considerable amount of money, and that therefore any surplus revenues might well be applied to defraying past costs—in which case nothing would likely be left for any special shares to claimants. They also convinced the claimants that a special share of revenues generated in one area might turn out to be a special share of nothing. To divide revenues more equally could mean an opportunity to share in the benefits from other areas and to use them for Antarctica as a whole. Nevertheless, the claimant countries continued to press the issue. They finally accepted that if any surplus revenues were generated by resource development activities, the Commission would decide, on a case-bycase basis, what to do with them. On only one small point were the claimant states victorious: the essentially face-saving decision that any surplus revenues should be allocated to the parties “most directly affected” by the development—i.e., the relevant claimant states, among others. On the issue of voting rules, the United States among others hoped that the institutions of the regime could avoid making all key decisions by consensus. As already noted, consensus decision making would mean that a claimant state would have effective power to block any exploration and development in its claim that it did not like or for which it had not been allocated some special benefit. Others noted that consensus decision making had always served the ATCPs well in the past, and argued that on the very important threshold decision of whether or not to open an area for development, consensus should be the rule. The United States and others conceded the merit of this argument. However, it and the other nonclaimant countries insisted that if the decision to open an area for exploration and development was to be made by consensus, some other

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decisions, both in the Commission and in the Regulatory Committees, should be made by less than consensus voting. If consensus voting were to be used, it should be used at the earliest possible stage. Once the threshold decision to open an area has been made, nonclaimants argued, the relevant claimant by itself should not be given a second or third opportunity to dominate decisions. To do so would be to give too much weight to the claimant’s “special status” as well as play havoc with the need of commercial enterprises to know that, once an area has been opened for exploration and possible development, the rules will not change. Nonclaimants insisted that, at key decision points after the first threshold decision, a coalition of states should be able to override the desire of a single claimant. Several all-night negotiating sessions among key states had to take place before an agreement was finally reached. Consensus voting for the important decisions of the Commission was ultimately accepted, but as part of a package. Another part of the package—a focus of attention in the final session—concerned the composition and voting procedures of the Regulatory Committees. Claimant states advocated that, because of their special territorial status on the continent, they should receive four guaranteed seats on every Regulatory Committee. The claimants also sought an individual veto over any undesirable activities within their claims. Both these positions were unacceptable to the nonclaimants, however, who favored a supermajority system, preferably a two-thirds rule. Brazil, China, India, and Uruguay advocated a formula that would have provided balanced representation on Regulatory Committees between developed and developing states. This position was rejected by the developed states. Japan, with the support of the Federal Republic of Germany, had proposed that any state undertaking significant prospecting activities within an area opened by a Regulatory Committee should automatically be included on that committee. If accepted, this proposal would effectively guarantee potential miners seats on virtually all Regulatory Committees. In reaction, claimant governments voiced concern that the expanded size of Regulatory Committees would dilute their influence in decision making.

Claimants and nonclaimant potential miners favored concentration of decision-making power in the Regulatory Committees, with only minimal review influence to be exercised by the Commission. Opposition to this view came from the Soviet Union, Poland, and most of the developing states, as well as the NCPs. This coalition generally supported the position that authority for primary review and subsequent approval of all significant Regulatory Committee decisions should be vested in the Commission. As part of the package deal, nonclaimants were granted the ability to override the objections of a single claimant (or other state) to decisions made in the Regulatory Committees. Hence, the agreed voting procedure for key decisions (e.g., approval of a management scheme) called for only a two-thirds majority of those present and voting. The compromise finally agreed upon was a “chambered” majority. Thus, for key Regulatory Committee decisions, the 7-member majority of a 10-member committee had to include at least three claimants and four nonclaimants. It was finally agreed, however, that the Regulatory Committees could have more than 10 members if states sponsoring prospecting or exploration and development activities were not otherwise members of the Committee. Provision was made for Commission review of Regulatory Committee decisions, as the NCPs had wanted, but the Commission’s role was limited to this review. If it found any inconsistencies with the general principles of the convention, it could “request that Regulatory Committee to reconsider its decision” but could not require a change. How fragile is the compromise convention worked out between the ACTPs? If put to the test, would it work? The test is sure to come the first time a state requests that an area be considered for exploration and development. Negotiations reached an agreement, however tenuous, because, on the one hand, the balance of power among parties was such that no group had an overwhelming advantage and, on the other, common interests—including preservation of the Antarctic Treaty System, environmental protection, and limiting decision-making roles to those with active and substantial interests in Antarctica—propelled the parties toward compromise.

Negotiating a Minerals Regime for Antarctica

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NOTES 1. Disputes over boundaries and islands, although sometimes important, are usually concerned with only very small amounts of territory. 2. United States House of Representatives. Committee on Science and Technology. Subcommittee on Energy, Research, Development, and Demonstration (Fossil Fuels), Polar Energy Resources Potential (Washington, D.C.: United States Government Printing Office, September 1976), p. 20. 3. Antarctic Treaty, 12 U.S.T. 794, T.I.A.S. No. 4780, 402 U.N.T.S. 71. Articles I, II, III, and V. 4. Ibid., Article IV. 5. David A. Colson, “The United States Position on Antarctica,” Cornell International Law Journal, Vol. 19, No. 2 (Summer 1986), pp. 291–300. 6. Antarctic Treaty, Article VI 7. An “occurrence” may be nothing more than a trace amount. In general, available data about occurrences are too few to determine the feasibility of economic development. 8. Oil and Gas Technologies for the Arctic and Deepwater (Washington, D.C.: United States Congress, Office of Technology Assessment, OTA-O-270, May 1985). 9. Colson, op. cit.

10. Recommendation XI-1, paragraph 5. 11. Recommendation XI-1, paragraph 7. 12. W. E. Westermeyer, The Politics of Mineral Resource Development in Antarctica: Alternative Regimes for the Future (Boulder, Colo.: Westview Press, 1984). 13. T. L. Laughlin, “Minerals Regime in Antarctica,” address before the Eleventh Annual Seminar of the Center for Oceans Law and Policy, University of Virginia School of Law, March 26–28, 1987, p. 6. 14. Christopher C. Joyner, “The Evolving Antarctic Minerals Regime,” in Christopher C. Joyner and Sudhir Chopra, eds., The Antarctic Legal Regime (The Hague: Martinus Nijhoff, 1987). 15. In September 1988, the two newest members were added to the ATCP group, Sweden and Spain. They were not ATCP members as of the final negotiating session, however, and so are not included among those ATCPs whose votes are necessary to ratify the new convention. 16. See Christopher C. Joyner and Ethel R. Theis, “The United States and Antarctica: Rethinking the Interplay of Law and Interests,” Cornell International Law Journal, Vol. 20, No. 1 (Winter 1987), pp. 65–103.

BIBLIOGRAPHY The following is a selected recent bibliography, any portion of which may be assigned to elaborate on background issues affecting the process and structure of the Antarctic minerals regime. Auburn, F. M. Antarctic Law and Politics. Bloomington: Indiana University Press, 1982. Francioni, Francesco, and Tullio Scovazzi, eds. International Law for Antarctica. Milan: Giuffré Editore, 1987. Joyner, Christopher C., and Sudhir Chopra, eds. The Antarctic Legal Regime. The Hague: Martinus Nijhoff, 1988. Joyner, Christopher C. “The Evolving Antarctic Minerals Regime.” Ocean Development and International Law 19:1 (1988): 73–96. ———. “The 1988 Antarctic MineralsConvention.” Marine Policy Reports 1:1 (1989): in press. ———. “The Antarctic Minerals Negotiating Process.” Ameri-

can Journal of International Law 81:4 (1987): 888–905. Kimball, Lee. “Report on Antarctica.” Washington, D.C.: International Institute for Development and Environment, December 1987. ———. “Special Report on the Antarctic Minerals Convention.” Washington, D.C.: International Institute for Environment and Development, World Resources Institute, July 1988. Orrego Vicuña, Francisco. Antarctic Mineral Exploration: The Emerging Framework. New York: Cambridge University Press, 1988. Peterson, M. J. Managing the Frozen South: The Creation and Evolution of the Antarctic Treaty System. Berkeley: University of California Press, 1988. Triggs, G., ed. The Antarctic Treaty Regime. Cambridge: Cambridge University Press, 1987.

Case 164

Institute for the Study of Diplomacy Case Study I

THE KUWAIT CRISIS:

Sanctions, Negotiations, and the Decision to Go to War

Dorinda G. Dallmeyer Cover photo: A formation of armored vehicles, manned by U.S. soldiers and Marines, stand ready to lead a convoy of coalition forces through the parade grounds established for the 50/20 celebration in Kuwait City, Kuwait, Feb. 21, 2011. http://archive. defense.gov/news/newsarticle.aspx?id=62945

Case 164

The Kuwait Crisis: Sanctions, Negotiations, and the Decision to Go to War Dorinda G. Dallmeyer Copyright © 1993 by the Institute for the Study of Diplomacy

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This case study was made possible (in part) by a grant from the Carnegie Corporation of New York. The statements made and views expressed are solely the responsibility of the author.

The Kuwait Crisis: Sanctions, Negotiations and the Decision to Go to War D O R I N D A G. D A L L M E Y E R UNIVER S IT Y OF GEORG IA & THE CAR NEG IE COUNC I L ON ETHIC S AN D INTER NAT IONAL AF F AIR S

On the first anniversary of Iraq’s invasion of Kuwait, President George Bush offered the following analysis of the efforts of the United States and its coalition partners. “What liberated Kuwait was an unprecedented effort, one that brought together most of the international community—initially in support of sanctions, ultimately in support of military force, and always consistent with the principles and resolutions of the United Nations.” Yet a month later UN Secretary General Javier Perez de Cuellar in his annual report characterized the UN efforts to resolve the Kuwait crisis as “a startling failure of collective diplomacy.” How could two persons so intimately involved in the same event arrive at such opposite evaluations of its success? Iraq’s invasion of Kuwait presented the first major challenge to the post–Cold War vision of a “New World Order” for the maintenance of peace and security. For the first time the United States had to decide how to use its position as the world’s sole superpower to assist in resolving an international crisis. While the UN moved

swiftly to condemn the invasion and to impose economic sanctions, much of the pressure for UN approval of military action came from the United States. Iraq’s actions presented the United States with the task of balancing the allure of traditional forms of military force and great-power pressure diplomacy with attempts to define and advance the concept of common security. In 1913 Britain and the Ottoman empire signed a treaty demarcating the boundary between Iraq and Kuwait.1 When Iraq succeeded to full membership in the League of Nations in 1932, it recognized this border as well as other boundaries that had been worked out in the interim between Iraq, Kuwait, and Saudi Arabia. Shortly after Kuwait achieved independence from the United Kingdom in 1961, Iraq reasserted its claim to sovereignty over Kuwaiti territory. British troops were joined in Kuwait by forces from the Arab League and remained until 1963 when Kuwait was admitted to the United Nations and Iraq recognized its independence. There were no further problems until 1973 when Iraq attacked a Kuwaiti customs outpost overlooking the Iraqi port of Umm Qasr. Iraq demanded not only the coastal strip south of the post but also two Kuwaiti islands which it had long claimed for assured access to the Persian Gulf. Although Iraq bowed to international 1

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pressure and removed its troops, it continued to make forays into the disputed territory. In an effort to resolve the controversy, a joint Iraqi–Kuwaiti ministerial committee was formed in 1977. While refusing a subsequent Iraqi proposal to lease the islands, Kuwait nevertheless sought to maintain friendly relations with Iraq, including loans in excess of $10 billion for its war against Iran. Following the end of the Iran–Iraq War in August 1988, Iraq refused to pay off its heavy debts and made little progress in reducing its expensive million-man army.2 It also continued to pursue an expensive economic development program. A drop in oil prices exacerbated the debt problem and Iraq’s credit rating began to sink rapidly. At an Arab League summit meeting May 30, 1990, Iraqi President Saddam Hussein complained that Kuwait was waging “economic warfare” against his country by exceeding its oil production quota. He demanded billions of dollars in reparations as well as territorial concessions from the Emir of Kuwait. In midJuly 1990, the Iraqi foreign minister, Tariq Aziz, sent a letter to members of the Arab League threatening Iraqi action to stop both Kuwait and the United Arab Emirates from continuing to exceed their OPEC oil quotas. More specifically the letter accused Kuwait of stealing $2.4 billion of Iraqi oil from the Ramaila field (which straddles their common border), building military installations on disputed territory, and refusing to cancel the repayment of loans made to Iraq during the Iran–Iraq War. In reply, Kuwait pointed to frequent violations of its territory by Iraq and Iraq’s refusal to enter negotiations to resolve these long-standing border disputes. In a mediation effort Egyptian President Hosni Mubarak consulted with Mr. Aziz in Cairo and also shuttled to Kuwait and Saudi Arabia to discuss the situation. By July 25, President Mubarak’s efforts seemed to be bearing fruit as Kuwait and Iraq agreed to commit officials to continue the discussions. Two days later OPEC reached a new target price agreement which one participant characterized as having a high level of commitment from members due in no small part to Iraq’s threat of force against those who disagreed or violated the accord.3 Meanwhile the buildup of Iraqi forces along the Kuwait border, which had begun in mid-July, intensified as Iraq tripled the number of forces deployed there to 100,000 by July 30. Talks between Iraqi and Kuwaiti delegations, mediated by King Fahd in Saudi Arabia,

ended on August 1 without an agreement although there were indications that talks might resume later in Baghdad. The next day Iraq invaded Kuwait and occupied the entire country within hours. The response of the international community was swift. The UN Security Council with only Yemen abstaining passed Resolution 660 demanding the immediate and unconditional withdrawal of Iraqi forces from Kuwait and calling for intensive negotiations to resolve their differences. A host of countries condemned the invasion and acted immediately to freeze Iraqi and Kuwaiti assets. In the United States President Bush froze Kuwaiti and Iraqi assets and issued an executive order to isolate Iraq by banning sea and air travel into and out of Iraq, and all trade and financial transactions. In addition to U.S. forces which had been sent to the Gulf in response to the Iraqi buildup in July, the United States began the deployment of land, air, and naval forces to defend Saudi Arabia from a possible Iraqi incursion. In order to deprive Iraq of any benefits of its aggression, the Security Council began debate over the implementation of measures under Article 41 of its Charter to interrupt Iraq’s economic relations. Although some members of the Security Council viewed sanctions as premature and favored a cooling off period in which to seek a negotiated withdrawal of Iraqi forces, on August 6 it passed Resolution 661 imposing a mandatory embargo on trade with Iraq and Kuwait and preventing transfers of funds to either country. The Security Council also established a Sanctions Committee to oversee the implementation of the Resolution. With unprecedented speed the international community had reached consensus on a program of punitive containment. With Iraq effectively isolated, the long process of finding a peaceful resolution to the crisis began. The Security Council worked speedily to condemn each of Iraq’s attempts to further consolidate its hold over Kuwait. On August 9 it unanimously passed Resolution 662, declaring Iraq’s announced annexation of Kuwait null and void. Nine days later in Resolution 664 the Council again voted unanimously to demand the release of all foreign nationals held in Iraq and Kuwait. The Secretary General announced he would send UN officials to Iraq to discuss Iraq’s detention of foreigners. As thousands of coalition troops streamed into Saudi Arabia and as Iraq’s oil pipelines through Turkey

The Kuwait Crisis and Saudi Arabia were being shut off, on August 12 Iraq proposed a withdrawal of its troops from Kuwait in exchange for (1) an Israeli withdrawal from the West Bank and Gaza Strip and Syria’s withdrawal from Lebanon; (2) withdrawal of U.S. forces from Saudi Arabia to be replaced by Arab forces (excluding Egyptian troops); and (3) an end to the embargo. Iraq’s underlying motive in its first demand was for all cases of occupation to be treated uniformly by the Security Council, a call for consistency which would mark its public statements throughout the crisis. Not surprisingly the United States rejected the deal. Subsequently Iraq proposed a trio of alternatives which could lead to the release of foreign nationals: (1) in exchange for the withdrawal of U.S. troops from Saudi Arabia, the Security Council would guarantee the security of Saudi Arabia from attack by Iraq; or (2) upon withdrawal of U.S. forces the Security Council could guarantee security throughout the region; or (3) the United States could withdraw its forces, renounce the use of force against Iraq, and lift the embargo. Iraq offered to conduct direct talks with the United States to negotiate a settlement. But it refused to withdraw its troops from Kuwait. The United States continued to demand complete withdrawal by Iraq from Kuwait before settlement talks could begin. Meanwhile the United States was conducting naval operations in the Gulf to halt all Iraqi imports and exports. It stated that it was acting upon the request of Kuwait in an action of collective self-defence under the provisions of Article 51 of the UN Charter. While some allies joined the intercept operation, other Security Council members (including Canada, France, the Soviet Union, and Malaysia) decided to delay their participation pending a vote in the Security Council to explicitly authorize a blockade under Article 42. This article permits interdiction, by force if necessary, if the Security Council decides its actions to suspend economic relations under Article 41 have proved inadequate. The debate on what became Resolution 665 was intense. Cuba objected strongly to the ongoing U.S. maritime interception conducted without UN approval and suggested it might be appropriate to set up a similar naval blockade to enforce an arms embargo against South Africa. It also suggested that it was time to activate Articles 46 and 47 which provide for the establishment of a Military Staff Committee to advise the

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Security Council on all questions related to its military requirements for the maintenance of international peace. Even Spain expressed apprehension over the tendency toward U.S. unilateral decision making. Several members asserted that it was premature to call for a supplemental blockade before the Secretary General presented his report, due on September 4, discussing the progress of sanctions imposed by Resolution 661. Colombia, Yemen, and Malaysia chided the drafters for essentially delegating the authority of the Security Council without specifying to whom, without specifying how the forces would be used, and without providing any method of accountability. Resolution 665 nevertheless passed 13–0, with Cuba and Yemen abstaining. Iraq stepped up its pressure on foreigners in Kuwait and Iraq. When embassies in Kuwait failed to comply with an August 24 deadline to close operations or be considered as having forfeited their diplomatic immunity, troops surrounded the compounds and diplomats and dependents who left Kuwait were detained in transit through Baghdad under threats that they would not be released until the embassies closed. These acts were followed by the termination of water and electrical service to the compounds. Iraq later relented somewhat and announced it would allow all foreign women and children to leave Iraq and Kuwait. In the meantime Libya offered a nine-point peace initiative which proposed the substitution of UN forces for those of Iraq in Kuwait while requiring the withdrawal of “NATO” forces from the Gulf. Arab and Islamic forces would replace Western forces deployed on the Arabian Peninsula. The economic blockade would be lifted and Iraq would be given Bubiyan Island and the Ramaila oilfield, both of which had long been in dispute. Kuwait’s internal affairs would be left exclusively to the people of Kuwait. A single Arab oil policy would be established and complied with and any debts or demands for compensation resulting from the crisis would be settled. Libya proposed an Arab summit to confirm the plan which would be implemented under the joint supervision of the UN Secretary General and the Secretary General of the Arab League. Kuwait’s UN representative rejected the plan because it violated parliamentary procedures of the Arab League, because it failed to restore the existing government of Kuwait, and because it rewarded aggression by ceding the oilfield and island to Iraq. The United States continued its stand

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that there could be no negotiations with Iraq until it withdrew its troops from Kuwait. Although the trade embargo exempted medical supplies and foodstuffs, the Iraqi government indicated that its military forces would receive first preference in the distribution of these goods. By mid-September there was growing concern about the health status of civilian residents of Iraq and Kuwait as well as foreign nationals detained there. Of particular concern were the humanitarian needs of thousands of migrant workers from developing countries stranded there. To provide this assistance while ensuring that Iraq did not divert supplies, the Security Council in Resolution 666 set out requirements for the delivery and distribution of humanitarian assistance under the control of international agencies. Some members of the Security Council argued that these procedures, especially the requirement that Iraq play no part in distribution, unnecessarily complicated the provision of aid to people in urgent need. On September 16 the Security Council by a unanimous vote passed Resolution 667 condemning Iraq’s continuing violations of diplomatic and consular immunity. That same day President Bush in a taped broadcast aired on Iraqi television warned the people of Iraq that they were on the brink of war. Reports surfaced that Iraqi forces already had rigged most of the oil wells in Kuwait with explosives. Within a week President Hussein threatened to destroy the oilfields if the UN sanctions “strangled” Iraq. People in Iraq and Kuwait were not the only ones suffering because of the embargo. Many third countries, particularly those in Eastern Europe, had depended heavily on Iraqi oil supplies. These countries also were cut off from debt repayments by the freeze on financial transactions. The trade embargo meant disruption of markets as well, such as the estimated $37 million loss of revenues Sri Lanka experienced when its tea exports to Iraq and Kuwait were cut off. Hundreds of thousands of people who had worked in the two countries now were transformed into refugees. Their home countries not only faced the costs of repatriating their citizens but also the loss of billions of dollars of income remitted by persons working in the Gulf region. Under Article 50 of the UN Charter, states confronted with special economic problems arising from enforcement measures may consult with the Security Council in an effort to address these issues. With no formal discussion the

Security Council unanimously adopted Resolution 669 which charged the Sanctions Committee with the task of evaluating requests for assistance and recommending action to the Council. The following day the Security Council took up the issue of whether the embargo should be extended to cover aircraft flights to and from Iraq. Meeting at the level of foreign ministers, the Secretary General addressed the group. He urged that the unprecedented nature of the acts taken thus far under the enforcement provisions of Chapter VII required that the deliberants demonstrate that the way of enforcement is qualitatively different from the way of war; that as such action issues from a collective engagement, it requires a discipline all its own; ... that what it demands from the party against which it is employed is not surrender but the righting of the wrong which has been committed; and that it does not foreclose diplomatic efforts to arrive at a peaceful solution consistent with the principles of the Charter and the determinations made by the Security Council.4 In addition to strengthening the sanctions regime, Secretary of State Baker described the draft resolution as put[ting] the Government of Iraq on notice that its continued failure to comply could lead to further action, including action under Chapter VII of the Charter. The international community has made clear its desire to exhaust every possibility for resolving this matter in accordance with the principles of the United Nations Charter. But we are all very well aware that the Charter envisages the possibility of further individual and collective measures to defend against aggression and flagrant violations of international humanitarian law.5 Only Cuba voted against Resolution 670. Yet a number of Council members expressed a desire that efforts be redoubled to seek a peaceful solution to the crisis. Malaysia indicated that it was “perturbed” by the headlong rush to implement so many resolutions over so short a time span. Foreign Minister Abu Hassan questioned whether each resolution was being given time to work or whether instead there was an intent to

The Kuwait Crisis hastily conclude that sanctions would not work and that more stringent means would be required. He must not have been encouraged by Secretary Baker’s remarks. On the diplomatic front, French President François Mitterrand offered a four-part peace initiative in a speech to the General Assembly on September 27. In return for a statement from Iraq that it would withdraw its troops and free hostages, the international community would supervise the withdrawal as well as the restoration of Kuwaiti sovereignty. Next would come an international conference to address the broad range of conflicts in the Middle East. The final step would be a plan to reduce armaments in the region. United States officials rejected Mitterrand’s peace initiative because it seemed not to require unconditional withdrawal. President Mitterrand was not alone in offering peace proposals. Early October was marked by a series of events on the diplomatic front. Perhaps in response to international pressure, Iraq rescinded its earlier restrictions on foreign nationals and announced that they now would receive food ration cards rather than being forced to rely on whatever food could be supplied by their home countries. Iraq also announced that it was prepared to discuss a partial withdrawal from Kuwait. Although Prime Minister Thatcher rejected any negotiations with Iraq, President Bush in a speech to the UN General Assembly indicated that an Iraqi withdrawal might open opportunities for discussions of other disputes, such as the Arab–Israeli problem. His senior advisers indicated that the United States was preparing a series of new diplomatic moves which might avert the threat of war, including what Secretary Baker termed “a new political order” for the region.6 Soviet envoy Yevgeny Primakov made the rounds of Jordan and Iraq and President Mitterrand visited Saudi Arabia and the United Arab Emirates. Suggestions resurfaced that Kuwait cede territory in exchange for a withdrawal, a proposal immediately rejected by the United States. As U.S. forces deployed in the Gulf reached the 200,000 mark, Iraq began to release foreign nationals and President Hussein began to speak of a possible withdrawal from Kuwait which would not compromise Iraqi “rights” there. On October 29 the Security Council adopted by a 13–2 vote Resolution 674 which reaffirmed its pronouncements on a number of issues, including the release of hostages, provision of humanitarian assistance to Kuwaiti nationals and nationals of third states,

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and protection of diplomatic and consular personnel. It reminded Iraq of its liability to pay compensation for any loss or damage resulting from its invasion of Kuwait. Yet by this time there were increasing signs that the U.S. administration was growing impatient with the lack of progress in the situation. While sanctions were working far better than anyone had expected, the administration was faced with what one official termed “a race between the sanctions and the dismantling of Kuwait.”7 Because of Iraq’s efforts to eradicate Kuwait as a state as well as plundering its property, officials began to realize that if sanctions took much longer, there might be nothing left to restore in the emirate. Also there was growing realization that Iraq’s withdrawal would do nothing to neutralize its army as the major power in the region. On November 8, two days after mid-term elections, President Bush announced his intention to increase the 230,000 U.S. troops deployed in the Gulf region by 150,000 to 200,000 to provide the allies with an offensive option. The President rejected a request to call a special session of Congress to approve his new deployment plan. Thwarted on that front Congress began a series of hearings to explore the reasons behind this shift in strategy. In addition to the objectives sought by the UN Resolutions, new justifications for the deployment began to emanate from the Bush administration. In a statement which drew great criticism, Secretary Baker warned that Iraq’s occupation of Kuwait threatened the economic lifeline of the West and that U.S. efforts to contain Iraq were taken to protect U.S. jobs. Less than a week after a New York Times poll indicated that a majority of Americans would support military action to prevent Iraq from acquiring nuclear weapons, President Bush adopted that objective in support of his decision to nearly double the number of U.S. troops in the region.8 By mid-month President Hussein indicated he would be willing to negotiate with Saudi Arabia and the United States but not if an Iraqi withdrawal from Kuwait was a precondition to negotiations. Iraq also announced it would free the remaining foreigners trapped in Iraq by March 25, 1991, providing nothing was done to disturb the situation in the Gulf. On the other hand, Iraq continued its attempts to absorb Kuwait by altering the official population registry and the demographic composition of the country. In response to continuing abuses of humanitarian law, the

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Security Council unanimously passed Resolution 677 condemning these acts. Debate resumed the next day on what would become Resolution 678, the controversial decision to institute a deadline after which military force could be used to dislodge Iraq from Kuwait. Members of the Security Council were represented by foreign ministers for only the fourth time in the history of that body. Secretary Baker opened the discussion by quoting Haile Selassie’s appeal to the League of Nations to end the occupation of Ethiopia in 1936. Citing the League’s failure to take effective action and forestall the world war which ultimately resulted, he urged the Council to put the choice facing Iraq in “unmistakable terms”: either reverse course or face other measures, including the use of force. A number of Council members expressed reservations about the vagueness of the draft’s wording. It contained no reference to Chapter VII procedures for the use of force under UN auspices. Rather it referred only to “Member States cooperating with the Government of Kuwait” as being authorized to use all necessary means to uphold and implement the Security Council resolutions to restore international peace and security in the area. There was no activation of the Military Staff Committee nor was there any overarching UN control of forces; the resolution simply requested that the states concerned keep the Council regularly informed of the progress of their actions. Colombian Foreign Minister Jaramillo lamented the failure of the Council to clarify for itself and for Iraq any framework for negotiations which could lead to a withdrawal. While the resolution instituted a “pause of goodwill” until January 15, there was no directive to the Secretary General to mediate between the parties in the interim. The Resolution passed by a 13–2–1 vote (Cuba and Yemen voting no, China abstaining). In Congressional hearings administration officials began downplaying the potential for sanctions to eventually force Iraq out of Kuwait. While admitting the embargo had taken a terrific economic toll on Iraq, CIA director Webster indicated that the Iraqi military might be able to maintain its current state of readiness for nine more months, thus subjecting allied troops to the rigors of the desert summer. Secretary of Defense Cheney described war as the only means of forcing Iraq to withdraw from Kuwait. A host of former Cabinet members as well as two former joint chiefs of staff, however,

counselled the United States to continue to press sanctions and not resort to force. President Bush invited Foreign Minister Aziz to Washington and offered to send Secretary Baker to Iraq in an attempt to reach a settlement. Iraq accepted the offer and stated that any dialogue with the United States would include discussion of the occupied territories. The Bush administration, however, rejected any attempted linkage of the two issues. Israel urged that the United States not reach any agreement which would leave the Iraqi military intact. Meanwhile Iraq and the United States quibbled over dates for the meetings. The original offer was that Secretary Baker would go to Baghdad between December 15 and January 15. Iraq said they would meet with him on January 12. Secretary Baker countered that the meeting should take place between December 20 and January 3. Iraq then stated it would cancel its plans to send Foreign Minister Aziz to Washington as scheduled on December 17 because the United States rejected its proposal. With the deadline looming the two sides finally agreed to meet in Geneva on January 9. Shortly before the meeting in Geneva Iraq indicated that it would consider withdrawing from Kuwait if it received guarantees that it would not be attacked, that oil prices and production quotas would be stabilized, and that a regional security framework could be established to balance forces in the region. But after six and one-half hours of direct talks in Geneva, the two sides reached an impasse. As a last ditch effort, the Secretary General went to Iraq for two days in an effort to reach a peaceful solution to the crisis. He assured the Iraqis that if they took clear steps to begin to implement the Security Council resolutions, neither Iraq nor its forces in Kuwait would be attacked. He proposed that UN observers, or if necessary UN forces, could be sent to monitor the withdrawal. Following a withdrawal he would urge the Security Council to end sanctions. He indicated he had assurances from the highest levels of governments that resolution of the conflict would lead to a comprehensive discussion of the Arab–Israeli problem. Yet even as the deadline approached, the Security Council failed to meet; in fact it did not discuss the Gulf crisis from November 29, when Resolution 678 was adopted, until February 14, when it met in closed session. Western nations wound down negotiation efforts, leaving the field to representatives of Arab states who

The Kuwait Crisis continued to offer peace proposals to the Iraqi government. In the final hours the Secretary General on his own initiative made a final plea to Iraq to comply with the UN resolutions. On January 16, 1991, President Bush certified in writing to Congress that all diplomatic efforts had failed and that he would now use military

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force to resolve the situation. Kuwait informed the Security Council that it was “exercising its rights to selfdefense and to the restoration of its rights . . . [in cooperation] with the forces of fraternal and friendly States which are equally determined to end the obdurate Iraqi occupation.” Desert Storm had begun.

NOTES 1. For a compendium of relevant historical documents, see Ernst Lauterpacht, et al., eds., The Kuwait Crisis: Basic Documents (Cambridge: Grotius Publications Ltd., 1991). 2. For an excellent summary of U.S. inattention to the increasing antagonisms between Iraq and Kuwait, see “Missed Signals in the Middle East,” Washington Post Magazine, March 17, 1991, W19. 3. See U.S. Congress, House Committee on Foreign Affairs, subcommittee on arms control, international security and science, The Persian Gulf Crisis, June 1991, 251. 4. See Basic Documents, supra note 1, 133–34.

5. Ibid., 134 (emphasis added). 6. U.S. Congress, House Committee on Foreign Affairs, subcommittee on hearings and markup, Crisis in the Persian Gulf, Oct. 18, 1990, 103. 7. Quoted in “Confrontation in the Gulf,” New York Times, October 7, 1990, section A, 20. 8. For criticism of this objective, see testimony of James Schlesinger, in Crisis in the Persian Gulf Region: U.S. Policy Options and Implications, U.S. Congress, Senate Hearings 101–1071, Committee on Armed Services, November 27, 1990, p. 121.

FURTHER READING Ernst Lauterpacht, et al., eds., The Kuwait Crisis: Basic Documents (Cambridge: Grotius Publications Ltd., 1991). “The Persian Gulf Crisis,” H. Rep. Report, subcommittee on arms control, international security and science, Committee on Foreign Affairs, June 1991 (especially good chronology of events at pp. 189–252). “Crisis in the Persian Gulf,” H. Rep. Hearings and markup, Committee on Foreign Affairs, September 4 & 27, October 18, 1990. “Crisis in the Persian Gulf: U.S. Policy Options and Implications,” Senate Hearing 101–1071, Committee on Armed Services, September 11, 13; November 27–30; December 3, 1990. “U.S. Policy in the Persian Gulf,” Senate Hearing 101–1128, pts. 1 & 2, December 4–6, 12–13, 1990. Baldwin, David A., Economic Statecraft (Princeton NJ: Princeton University Press, 1985). Doxey, Margaret P., International Sanctions in Contemporary Perspective (New York: St. Martin's Press, 1987).

Hufbauer, G. C., and J. J. Schott, Economic Sanctions in Support of Foreign Policy Goals (Cambridge MA: MIT Press, 1983). Oberdorfer, D., “Missed Signals in the Middle East,” Washington Post Magazine, March 17, 1991, W19. Foreign Policy (Spring 1991 issuearticles by M. S. Adelman, J. R. Starr, Tom Farer, C. W. Maynes). Foreign Affairs (Fall 1991 issuearticles by Z. B. Begin, Daniel Pipes, A. Z. Rubinstein, W. J. Perry, and McGeorge Bundy). Foreign Affairs (Spring 1991 issuearticles by P. W. Rodman, Ze’ev Schiff, B. R. Kuniholm, C. E. Vuono, Bruce Russett & J. S. Sutterlin, and M. J. Glennon). American Journal of International Law 85 (1991), 63–110 (articles by T. M. Franck & Faiza Patel, M. J. Glennon, D. D. Caron, L. F. Damroth, and Theodore Meron). American Journal of International Law 85 (1991), 452–73, 506–36 (articles by Oscar Schachter, E. V. Rostow, and B. H. Weston).

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APPENDIX RELEVANT UN SECURITY COUNCIL RESOLUTIONS

RESOLUTION 660 (1990) Adopted by the Security Council at its 2932nd meeting, on 2 August 1990 The Security Council, Alarmed by the invasion of Kuwait on 2 August 1990 by the military forces of Iraq, Determining that there exists a breach of international peace and security as regards the Iraqi invasion of Kuwait, Acting under Articles 39 and 40 of the Charter of the United Nations,

1. Condemns the Iraqi invasion of Kuwait; 2. Demands that Iraq withdraw immediately and unconditionally all its forces to the positions in which they were located on 1 August 1990; 3. Calls upon Iraq and Kuwait to begin immediately intensive negotiations for the resolution of their differences and supports all efforts in this regard, and especially those of the League of Arab States; 4. Decides to meet again as necessary to consider further steps to ensure compliance with the present resolution.

RESOLUTION 661 (1990) Adopted by the Security Council at its 2933rd meeting on 6 August 1990 The Security Council, Reaffirming its resolution 660 (1990), Deeply concerned that the resolution has not been implemented and that the invasion by Iraq of Kuwait continues with further loss of human life and material destruction, Determined to bring the invasion and occupation of Kuwait by Iraq to an end and to restore the sovereignty, independence and territorial integrity of Kuwait, Noting that the legitimate Government of Kuwait has expressed it readiness to comply with resolution 669 (1990), Mindful of its responsibilities under the Charter of the United Nations for maintenance of international peace and security, Affirming the inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the Charter, Acting under Chapter VII of the Charter of the United Nations,

1. Determines that Iraq so far has failed to comply with paragraph 2 of resolution 660 (1990) and has usurped the authority of the legitimate Government of Kuwait; 2. Decides, as a consequence, to take the following measures to secure compliance of Iraq with paragraph 2 of resolution 660 (1990) and to restore the authority of the legitimate Government of Kuwait; 3. Decides that all States shall prevent: a) The import into their territories of all commodities and products originating in Iraq or Kuwait exported therefrom after the date of the present resolution; b) Any activities by their nationals or in their territories which would promote or are calculated to promote the export or transshipment of any commodities or products from Iraq or Kuwait; and any dealings by their nationals or their flag vessels or in their territories in any commodities or products originating in Iraq or Kuwait and exported therefrom after the date of the present resolution, including in particular any transfer of funds to Iraq or Kuwait for the purposes of such activities or dealings; c) The sale or supply by their nationals or from their territories or using their flag vessels of any commodities or products, including weapons or any other military equipment, whether or not originating in their territories but not including supplies intended strictly

The Kuwait Crisis for medical purposes, and, in humanitarian circumstances, foodstuffs, to any person or body in Iraq or Kuwait or to any person or body for the purposes of any business carried on in or operated from Iraq or Kuwait, and any activities by their nationals or in there territories which promote or are calculated to promote such sale or supply of such commodities or products; 4. Decides that all states shall not make available to the Government of Iraq or to any commercial, industrial or public undertaking in Iraq or Kuwait, any funds or any other financial or economic resources and shall prevent their nationals and any persons within their territories from removing from their territories or otherwise making available to that Government or to any such persons or bodies within Iraq or Kuwait, except payments exclusively for strictly medical or humanitarian purposes and, in humanitarian circumstances, foodstuffs; 5. Calls upon all States, including States non-members of the United Nations, to act strictly in accordance with the provisions of the present resolution notwithstanding any contract entered into or licence granted before the date of the present resolution; 6. Decides to establish, in accordance with rule 28 of the provisional rules of procedure of the Security Council, a Committee of the Security Council consisting of all the members of the Council, to undertake the following tasks and to report on its work to the Council with its observations and recommendations:

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a) To examine the reports on the progress of the implementation of the present resolution which will be submitted by the Secretary–General; b) To seek from all States further information regarding the action taken by them concerning the effective implementation of the provisions laid down in the present resolution; 7. Calls upon all States to cooperate fully with the Committee n the fulfillment of its task, including supplying such information as may be sought by the Committee in pursuance of the present resolution; 8. Requests the Secretary–General to provide all necessary assistance to the Committee and to make the necessary arrangements in the Secretariat for the purpose; 9. Decides that, notwithstanding paragraphs 4 through 8 above, nothing in the present resolution shall prohibit assistance to the legitimate Government of Kuwait, and calls upon all States: a) To take appropriate measures to protect assets of the legitimate Government of Kuwait and its agencies; b) Not to recognize any regime set up by the occupying Power; 10. Requests the Secretary General to report to the Council on the progress of the implementation of the present resolution, the first report to be submitted within thirty days; 11. Decides to keep this item on its agenda and to continue its efforts to put an early end to the invasion by Iraq.

RESOLUTION 662 (1990) Adopted by the Security Council at its 2934th meeting, on 9 August 1990 The Security Council, Recalling its resolutions 660 (1990) and 661 (1990), Gravely alarmed by the declaration by Iraq of a “comprehensive and eternal merger” with Kuwait, Demanding, once again, that Iraq withdraw immediately and unconditionally all its forces to the positions in which they were located on 1 August 1990, Determined to bring the occupation of Kuwait by Iraq to an end and to restore the sovereignty, independence and territorial integrity of Kuwait, Determined also to restore the authority of the

legitimate Government of Kuwait. 1. Decides that annexation of Kuwait by Iraq under any form and whatever pretext has not legal validity, and is considered null and void; 2. Calls upon all States, international organizations and specialized agencies not to recognize that annexation, and to refrain from any action or dealing that might be interpreted as an indirect recognition of the annexation; 3. Further demands that Iraq rescind its actions purporting to annex Kuwait; 4. Decides to keep this item on its agenda and to continue its efforts to put an early end to the occupation.

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RESOLUTION 664 (1990) Adopted by the Security Council at its 2937th meeting on 18 August 1990 The Security Council, Recalling the Iraqi invasion and purported annexation of Kuwait and resolutions 660, 661 and 662, Deeply concerned for the safety and well being of third state nationals in Iraq and Kuwait, Recalling the obligations of Iraq in this regard under international law, Welcoming the efforts of the Secretary–General to pursue urgent consultations with the Government of Iraq following the concern and anxiety expressed by the members of the Council on 17 August 1990, Acting under Chapter VII of the United Nations Charter:

1. Demands that Iraq permit and facilitate the immediate departure from Kuwait and Iraq of the nationals of third countries and grant immediate and continuing access of consular officials to such nationals; 2. Further demands that Iraq take no action to jeopardize the safety, security or health of such nationals; 3. Reaffirms its decision in resolution 662 (1990) that annexation of Kuwait by Iraq is null and void, and therefore demands that the government of Iraq rescind its orders for the closure of diplomatic and consular missions in Kuwait and the withdrawal of the immunity of their personnel, and refrain from any such actions in the future; 4. Requests the Secretary–General to report to the Council on compliance with this resolution at the earliest possible time.

RESOLUTION 665 Adopted by the Security Council at its 2938th meeting, on 25 August 1990 The Security Council, Recalling its resolutions 660 (1990), 661 (1990), 661 (1990) and 664 (1990) and demanding their full and immediate implementation, Having decided in resolution 661 (1990) to impose economic sanction under Chapter VII of the Charter of the United Nations, Determined to bring an end to the occupation of Kuwait by Iraq which imperils the existence of a Member State and to restore the legitimate authority, and the sovereignty, independence and territorial integrity of Kuwait which requires the speedy implementation of the above resolutions, Deploring the loss of innocent life stemming from the Iraqi invasion of Kuwait and determined to prevent further such losses, Gravely alarmed that Iraq continues to refuse to comply with resolutions 660 (1990), 661 (1990), 662 (1990) and 664 (1990) and in particular at the conduct of the Government of Iraq in using Iraqi flag vessels to export oil,

1. Calls upon those Member States cooperating with the Government of Kuwait which are deploying maritime forces to the area to use such measures commensurate to the specific circumstances as may be necessary under the authority of the Security Council to halt all inward and outward maritime shipping in order to inspect and verify their cargoes and destinations and to ensure strict implementation of the provisions related to such shipping laid down in resolution 661 (1990); 2. Invites Member States accordingly to cooperate as may be necessary to ensure compliance with the provisions of resolution 661 (1990) with maximum use of political and diplomatic measures, in accordance with paragraph 1 above; 3. Requests all States to provide in accordance with the Charter such assistance as may be required by the States referred to in paragraph 1 of this resolution; 4. Further requests the States concerned to coordinate their actions in pursuit of the above paragraphs of this resolution using as appropriate mechanisms to submit reports to the Security Council and its Committee established under resolution 661 (1990) to facilitate the monitoring of the implementation of this resolution; 5. Decides to remain actively seized of the matter.

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RESOLUTION 666 (1990) Adopted by the Security Council at its 2939th meeting on 13 September 1990 The Security Council, Recalling its resolution 661 (1990), paragraphs 3 (c) and 4 of which apply, except in humanitarian circumstances, to foodstuffs, Recognizing that circumstances may arise in which it will be necessary for foodstuffs to be supplied to the civilian population in Iraq or Kuwait in order to relieve human suffering, Noting that in this respect the Committee established under paragraph 6 of that resolution has received communications from several Member States, Emphasizing that it is for the Security Council, alone or acting through the Committee, to determine whether humanitarian circumstances have arisen, Deeply concerned that Iraq has failed to comply with its obligations under Security Council resolution 664 (1990) in respect of the safety and well-being of their State nationals, and reaffirming that Iraq retains full responsibility in this regard under international humanitarian law including, where applicable, the Fourth Geneva Convention, Acting under Chapter VII of the Charter of the United Nations, 1. Decides that in order to make the necessary determination whether or not for the purposes of paragraph 3 (c) and paragraph 4 of resolution 661 (1990) humanitarian circumstances have arisen, the Committee shall keep the situation regarding foodstuffs in Iraq and Kuwait under constant review; 2. Expects Iraq to comply with its obligations under Security Council resolution 664 (1990) in respect of third State nationals and reaffirms that Iraq remains fully responsible for their safety and well-being in accordance with international humanitarian law including, where applicable, the Fourth Geneva Convention;

3. Requests, for the purposes of paragraphs 1 and 2 of this resolution, that the Secretary–General seek urgently, and on a continuing basis, information from relevant United Nations and other appropriate humanitarian agencies and all other sources on the availability of food in Iraq and Kuwait, such information to be communicated by the Secretary–General to the Committee regularly; 4. Requests further that in seeking and supplying such information particular attention will be paid to such categories of persons who might suffer specially, such as children under 15 years of age, expectant mothers, maternity cases, the sick and the elderly; 5. Decides that if the Committee, after receiving the reports from the Secretary–General, determines that circumstances have arisen in which there is an urgent humanitarian need to supply foodstuffs to Iraq or Kuwait in order to relieve human suffering, it will report promptly to the Council its decision as to how such need should be met; 6. Directs the Committee that in formulating its decisions it should bear in mind that foodstuffs should be provided through the United Nations in cooperation with the International Committee of the Red Cross or other appropriate humanitarian agencies and distributed by them or under their supervision in order to ensure that they reach the intended beneficiaries; 7. Requests the Secretary–General to use his good offices to facilitate the delivery and distribution of foodstuffs to Kuwait and Iraq in accordance with the provisions of this and other relevant resolutions; 8. Recalls that resolution 661 (1990) does not apply to supplies intended strictly for medical purposes, but in this connection recommends that medical supplies should be exported under the strict supervision of the Government of the exporting State or by appropriate humanitarian agencies.

RESOLUTION 667 (1990) Adopted by the Security Council at its 2940th meeting, on 16 September 1990

The Security Council, Reaffirming its resolutions 660 (1990), 661 (1990), 662 (1990), 664 (1990), 665 (1990) and 666 (1990),

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Recalling the Vienna Conventions of 18 April 1961 on diplomatic relations and of 24 April 1963 on consular relations, to both of which Iraq is a party, Considering that the decision of Iraq to order the closure of diplomatic and consular missions in Kuwait and to withdraw the immunity and privileges of these missions and their personnel is contrary to the decisions of the Security Council, the international Convention mentioned above and international law, Deeply concerned that Iraq, notwithstanding the decisions of the Security Council and the provisions of the Conventions mentioned above, has committed acts of violence against diplomatic missions and their personnel in Kuwait, Outraged at recent violations by Iraq of diplomatic premises in Kuwait and at the abduction of personnel enjoying diplomatic immunity and foreign nationals who were present in these premises, Considering that the above actions by Iraq constitute aggressive acts and a flagrant violation if its international obligations which strike at the root of the conduct of international relations in accordance with the Charter of the United Nations, Recalling that Iraq is fully responsible for any use of violence against foreign nationals or against any diplomatic or consular mission in Kuwait or its personnel, Determined to ensure respect for its decisions and for Article 25 of the Charter of the United Nations, Further considering that the grave nature of Iraq’s actions, which constitute a new escalation of its violations of international law, obliges the Council not only to express its immediate reaction but also to consult

urgently to take further concrete measures to ensure Iraq’s compliance with the Council’s resolutions, Acting under Chapter VII of the Charter of the United Nations, 1. Strongly condemns aggressive acts perpetrated by Iraq against diplomatic premises and personnel in Kuwait, including the abduction of foreign nationals who were present in those premises; 2. Demands the immediate release of those foreign nationals as well as all nationals in resolution 664 (1990); 3. Further demands that Iraq immediately and fully comply with its international obligations under resolutions 660 (1990), 662 (1990) and 664 (1990) of the Security Council, the Vienna Conventions on diplomatic and consular relations and international law; 4. Further demands that Iraq immediately protect the safety and well-being of diplomatic and consular personnel and premises in Kuwait and in Iraq and take no action to hinder the diplomatic and consular missions in the performance of their functions, including access to their nationals and the protection of their person and interests; 5. Reminds all States that they are obliged to observe strictly resolutions 661 (1990), 662 (1990), 664 (1990), 665 (1990) and 665 (1990); 6. Decides to consult urgently to take further concrete measures as soon as possible, under Chapter VII of the Charter, in response to Iraq’s continued violation of the Charter, of resolutions of the Council and of international law.

RESOLUTION 669 Adopted by the Security Council at its 2942nd meeting, on 24 September 1990 The Security Council, Recalling its resolution 661 (1990) of 6 August 1990, Recalling also Article 50 of the Charter of the United Nations, Conscious of the fact that an increasing number of requests for assistance have been received under the

provisions of Article 50 of the Charter of the United Nations, Entrusts the Committee established under resolution 661 (1990) concerning the situation between Iraq and Kuwait with the task of examining requests for assistance under the provisions of Article 50 of the Charter of the United Nations and making recommendations to the President of the Security Council for appropriate action.

The Kuwait Crisis

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RESOLUTION 670 (1990) Adopted by the Security Council at its 2943rd meeting, on 25 September 1990 The Security Council, Reaffirming its resolutions 660 (1990), 661 (1990), 662 (1990), 664 (1990), 665 (1990), 665 (1990), 666 (1990) and 667 (1990), Condemning Iraq’s continued occupation of Kuwait, its failure to rescind its actions and end its purported annexation and its holding of third State nationals against their will, in flagrant violation of resolutions 660 (1990), 662 (1990), 664 (1990) and 667 (1990) and of international humanitarian law, Condemning further the treatment by Iraqi forces of Kuwaiti nationals, including measures to force them to leave their own country and mistreatment of persons and property in Kuwait in violation of international law, Noting with grave concern the persistent attempts to evade the measures laid down in resolution 661 (1990), Further noting that a number of States have limited the number of Iraqi diplomatic and consular officials in their countries and that others are planning to do so, Determined to ensure by all necessary means the strict and complete application of the measures laid down in resolution 661 (1990), Determined to ensure respect for its decisions and the provisions of Articles 25 and 48 of the Charter of the United Nations, Affirming that any acts of the Government of Iraq which are contrary to the above-mentioned resolutions or to Articles 25 or 48 of the Charter of the United Nations, such as Decree No. 377 of the Revolution Command Council of Iraq of 16 September 1990, are null and void, Reaffirming its determination to ensure compliance with Security Council resolutions by maximum use of political and diplomatic means, Welcoming the Secretary–General’s use of his good offices to advance a peaceful solution based on the relevant Security Council resolutions and noting with appreciation his continuing efforts to this end, Underlining to the Government of Iraq that its continued failure to comply with the terms of resolutions 660 (1990), 661 (1990), 662 (1990), 664 (1990), 666 (1990) and 667 (1990) could lead to further serious

action by the Council under the Charter of the United Nations, including under Chapter VII, Recalling the provisions of Article 103 of the Charter of the United Nations, Acting under Chapter VII of the Charter of the United Nations, 1. Calls upon all States to carry out their obligations to ensure strict and complete compliance with resolution 661 (1990) and in particular paragraphs 3, 4, and 5 thereof; 2. Confirms that resolution 661 (1990) applies to all means of transport, including aircraft; 3. Decides that all States, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into any licence or permit granted before the date of the present resolution, shall deny permission to any aircraft to take off from their territory if the aircraft would carry any cargo to or from Iraq or Kuwait other than food in humanitarian circumstances, subject to authorization by the Council or the Committee established by resolution 661 (1990) and in accordance with resolution 666 (1990), or supplies intended strictly for medical purposes or solely for UNIIMOG; 4. Decides further that all States shall deny permission to any aircraft destined to land in Iraq or Kuwait, or whatever its State of registration, to overfly its territory unless: a) The aircraft lands at an airfield designated by the State outside Iraq or Kuwait in order to permit its inspection to ensure that there is no cargo on board in violation of resolution 661 (1990) or the present resolution, and for this purpose the aircraft may be detained for as long as necessary; or b) The particular flight has been approved by the Committee established by resolution 661 (1990); or c) The flight is certified by the United Nations as solely for the purposes of UNIIMOG; 5. Decides that each State shall take all necessary measures to ensure that any aircraft registered in its territory or operated by an operator who has his principal place of business or permanent residence in its territory complies with the provisions of resolution 661 (1990) and the present resolution; 6. Decides further that all States shall notify in a timely fashion the Committee established by resolution

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661 (1990) of any flight between its territory and Iraq or Kuwait to which the requirement to land in paragraph 4 above does not apply, and the purpose for such a flight; 7. Calls upon all States to cooperate in taking such measures as may be necessary, consistent with international law, including the Chicago Convention, to ensure the effective implementation of the provisions of resolution 661 (1990) or the present resolution; 8. Calls upon all States to detain any ships of Iraqi registry which enter their ports and which are being or have been used in violation of resolution 661 (1990), or to deny such ships entrance to their ports except in circumstances recognized under international law as necessary to safeguard human life; 9. Reminds all States of their obligations under resolution 661 (1990) with regard to the freezing of Iraqi assets, and the protection of the assets of the legitimate Government of Kuwait and its agencies, located within their territory and to report to the Committee established under resolution 661 (1990) regarding those assets;

10. Calls upon all States to provide to the Committee established by resolution 661 (1990) information regarding the action taken by them to implement the provisions laid down in the present resolution; 11. Affirms that the United Nations Organization, the specialized agencies and other international organizations in the United Nations system are required to take such measures as may be necessary to give effect to the terms of resolution 661 (1990) and this resolution; 12. Decides to consider, in the event of evasion of the provisions of resolution 661 (1990) or of the present resolution by a State or its nationals or through its territory, measures directed at the State in question to prevent such evasion; 13. Reaffirms that the Fourth Geneva Convention applies to Kuwait and that as a High Contracting Party to the Convention Iraq is bound to comply fully with all its terms and in particular is liable under the Convention in respect of the grave breaches committed by it, as are individuals who commit or order the commission of grave breaches.

RESOLUTION 674 (1990) Adopted by the Security Council at its 2951st meeting, on 29 October 1990 The Security Council, Recalling its resolutions 660 (1990), 661 (1990), 662 (1990), 664 (1990), 665 (1990), 665 (1990), 666 (1990), 667 (1990) and 670 (1990), Stressing the urgent need for the immediate and unconditional withdrawal of all Iraqi forces from Kuwait, for the restoration of Kuwait’s sovereignty, independence and territorial integrity and of the authority of its legitimate government, Condemning the actions by the Iraqi authorities and occupying forces to take third-State nationals hostage and to mistreat and oppress Kuwaiti and thirdState nationals, and the other actions reported to the Security Council, such as the destruction of Kuwaiti demographic records, the forced departure of Kuwaitis, the relocation of population in Kuwait and the unlawful destruction and seizure of public and private property in Kuwait, including hospital supplies and equipment, in violation of the decisions of the Council, the Charter of the United Nations, the Fourth Geneva Convention,

the Vienna Conventions on Diplomatic and Consular Relations and international law, Expressing grave alarm over the situation of nationals of third States in Kuwait and Iraq, including the personnel of the diplomatic and consular missions of such States, Reaffirming that the Fourth Geneva Convention applies to Kuwait and that as a High Contracting Party to the Convention to Iraq is bound to comply fully with all its terms and in particular is liable under the Convention in respect of the grave breaches committed by it, as are individuals who commit or order the commission of grave breaches, Recalling the efforts of the Secretary–General concerning the safety and well-being of third-State nationals in Iraq and Kuwait, Deeply concerned at the economic cost and at the loss and suffering caused to individuals in Kuwait and Iraq as a result of the invasion and occupation of Kuwait by Iraq, Acting under Chapter VII of the Charter of the United Nations

The Kuwait Crisis Reaffirming the goal of the international community of maintaining international peace and security by seeking to resolve international disputes and conflicts through peaceful means, Recalling the important role that the United Nations and its Secretary–General have played in the peaceful solution of disputes and conflicts in conformity with the provisions of the Charter, Alarmed by the dangers of the present crisis caused by the Iraqi invasion and occupation of Kuwait, which directly threaten international peace and security, and seeking to avoid any further worsening of the situation, Calling upon Iraq to comply with the relevant resolutions of the Security Council, in particular its resolutions 660 (1990), 662 (1990) and 664 (1990), Reaffirming its determination to ensure compliance by Iraq with the Security Council resolutions by maximum use of political and diplomatic means, 1. Demands that the Iraqi authorities and occupying forces immediately cease and desist from taking third-State nationals hostage, mistreating and oppressing Kuwaiti and third-State nationals and any other actions, such as those reported to the Security Council and described above, that violate the decisions of this Council, the Charter of the United Nations, the Fourth Geneva Convention, the Vienna Conventions on Diplomatic and Consular Relations and international law; 2. Invites States to collate substantiated information in their possession or submitted to them on the grave breaches by Iraq as per paragraph 1 above and to make this information available to the Security Council; 3. Reaffirm its demand that Iraq immediately fulfil its obligations to third-State nationals in Kuwait and Iraq, including the personnel of diplomatic and consular missions, under the Charter, the Fourth Geneva Convention, the Vienna Conventions on Diplomatic and Consular Relations, general principles of international law and the relevant resolutions of the Council; 4. Also reaffirms its demands that Iraq permit and facilitate the immediate departure from Kuwait and Iraq of those third-State nationals, including diplomatic and consular personnel, who wish to leave; 5. Demands that Iraq ensure the immediate access to food, water and basic services necessary to the protection and well-being of Kuwaiti nationals and of nationals of third States in Kuwait and Iraq, including the personnel of diplomatic and consular missions in Kuwait;

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6. Reaffirms its demand that Iraq immediately protect the safety and well-being of diplomatic and consular personnel and premises in Kuwait and in Iraq, take no action to hinder these diplomatic and consular missions in the performance of their functions, including access to their nationals and the protection of their person and interests and rescind its orders for the closure of diplomatic and consular missions in Kuwait and the withdrawal of the immunity of their personnel; 7. Requests the Secretary–General, in the context of the continued exercise of his good offices concerning the safety and well-being of their-State nationals in Iraq and Kuwait, to seek to achieve the objects of paragraphs 4, 5 and 6 above and in particular the provision of food, water and basic services to Kuwaiti nationals and to the diplomatic and consular missions in Kuwait and the evacuation of third-State nationals; 8. Reminds Iraq that under international law it is liable for any loss, damage or injury arising in regard to Kuwait and third States, and their nationals and corporations, as a result of the invasion and illegal occupation of Kuwait by Iraq; 9. Invites States to collect relevant information regarding their claims, and those of their nationals and corporations, for restitution or financial compensation by Iraq with a view to such arrangements as may be established in accordance with international law; 10. Requires that Iraq comply with the provisions of the present resolution and its previous resolutions, failing which the Security Council will need to take further measure under the Charter; 11. Decides to remain actively and permanently seized of the matter until Kuwait has regained its independence and peace has been restored in conformity with the relevant resolutions of the Security Council. 12. Reposes its trust in the Secretary–General to make available his good offices and, as he considers appropriate, to pursue them and to undertake diplomatic efforts in order to reach a peaceful solution to the crisis caused by the Iraqi invasion and occupation of Kuwait on the basis of Security Council resolution 660 (1990), 662 (1990) and 664 (1990), and calls upon all States, both those in the region and others, to pursue on this basis their efforts to this end, in conformity with the Charter, in order to improve the situation and restore peace, security and stability;

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13. Requests the Secretary–General to report to the Security Council on the results of his good offices and diplomatic efforts.

RESOLUTION 677 (1990) Adopted by the Security Council at its 2962nd meeting, on 28 November 1990 The Security Council, Recalling its resolutions 660 (1990) of 2 August, 662 (1990) of 9 August and 674 (1990) of 29 October 1990, Reiterating its concern for the suffering caused to individuals in Kuwait as a result of the invasion and occupation of Kuwait by Iraq, Gravely concerned at the ongoing attempt by iraq to alter the demographic composition of the population of Kuwait and to destroy the civil records maintained by the legitimate Government of Kuwait,

Acting under Chapter VII of the Charter of the United Nations, 1. Condemns the attempts by Iraq to alter the demographic composition of the population of Kuwait and to destroy the civil records maintained by the legitimate government of Kuwait; 2. Mandates the Secretary–General to take custody of a copy of the population register of Kuwait, the authenticity of which has been certified by the legitimate Government of Kuwait and which covers the registration of the population up to 1 August 1990; 3. Requests the Secretary–General to establish, in cooperation with the legitimate Government of Kuwait, an Order of Rules and Regulations governing access to and use of the said copy of the population register.

RESOLUTION 678 (1990) Adopted by the Security Council at its 2963rd meeting, on 29 November 1990 The Security Council, Recalling and reaffirming its resolutions 660 (1990) of 2 August 1990, 661 (1990) of 6 August 1990, 662 (1990) of 9 August 1990, 664 (1990) of 18 August 1990, 665 (1990) of 25 August 1990, 666 (1990) of 13 September 1990, 667 (1990) of 16 September 1990, 669 (1990) of 24 September 1990, 670 (1990) of 25 September 1990, 674 (1990) of 29 October 1990 and 677 (1990) of 28 November 1990, Noting that, despite all efforts by the united Nations, Iraq refuses to comply with its obligation to implement resolution 660 (1990) and the above-mentioned subsequent relevant resolutions, in flagrant contempt of the Security Council, Mindful of its duties and responsibilities under the Charter of the United Nations for the maintenance and preservation of international peace and security, Determined to secure full compliance with its decisions,

Acting under Chapter VII of the Charter, 1. Demands that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions, and decides, while maintaining all it decisions, to allow Iraq one final opportunity, as a pause of goodwill, to do so; 2. Authorizes Member States cooperating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the foregoing resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area; 3. Requests all States to provide appropriate support for the actions undertaken in pursuance of paragraph 2 of the present resolution; 4. Requests the States concerned to keep the Security Council regularly informed on the progress of actions undertaken pursuant to paragraphs 2 and 3 of the present resolution; 5. Decides to remain seized of the matter.

Case 343

Institute for the Study of Diplomacy Case Study

THE 2014-2015 WEST AFRICA EBOLA OUTBREAK:

The Diplomacy of Response and Recovery in Guinea

Claire J. Standley Cover photo source: https://www.flickr.com/photos/121483302@ N02/14632566347

Case 343

The 2014-2015 West Africa Ebola Outbreak: The Diplomacy of Response and Recovery in Guinea Claire J. Standley ISBN: 978-1-56927-019-6 Copyright © 2019 by the Institute for the Study of Diplomacy

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior permission of the Institute for the Study of Diplomacy. The opinions and analysis contained in this case study are solely those of the author(s), and do not necessarily reflect the views of the Institute for the Study of Diplomacy, the School of Foreign Service, or Georgetown University.

1316 36th St. N.W. Washington, D.C. 20007 | isd.georgetown.edu | [email protected]

Claire J. Standley, PhD, MSc

Department of International Health Center for Global Health Science and Security

Dr. Claire J. Standley is an assistant research professor with Georgetown University’s Center for Global Health Science and Security, with a primary faculty appointment in the Department of International Health at Georgetown University. Her research focuses on the analysis of health systems strengthening and international capacity building for public health, with an emphasis on prevention and control of infectious diseases in both humans and animals, as well as public health emergency preparedness and response.

This case study was made possible (in part) by a grant from the Carnegie Corporation of New York. The statements made and views expressed are solely the responsibility of the author.

The Diplomacy of Response and Recovery in Guinea

Introduction When the Republic of Guinea reported a confirmed case of Ebola virus disease (EVD) in March 2014, the global public health community was caught off guard. EVD wasn’t a new disease, having first been identified in the 1970s in what is now the Democratic Republic of Congo. But this was the first time that multiple human cases had been confirmed in West Africa. Beyond this initial surprise, the outbreak continued to set new and devastating records, ultimately resulting in the deadliest and most widespread outbreak of EVD in history—with over 28,000 reported cases and more than 11,000 fatalities in Guinea, Sierra Leone, and Liberia, the three countries most heavily and directly affected by the outbreak.1 This total corresponded to more deaths than the total from all previous EVD outbreaks put together. Beyond the tragic human costs, these countries also suffered an extraordinary social and economic impact: The World Bank estimated economic losses of $2.8 billion across the three countries in 2014-2015, with additional longer-term impacts resulting from slowed growth.2 The infectious disease outbreaks that garner international response usually fall into one of three categories. Some emerge as a secondary effect of an existing humanitarian or natural disaster (for example, the cholera outbreaks of 2010 that followed the Haiti earthquake and the floods in Pakistan), while others appear as an acute, isolated event in an under-resourced setting that requires a short but sharp influx of assistance, primarily in the form of international technical expertise. All previous reported EVD outbreaks fell into this second category, and were confined to deeply

1  “Ebola Data and Statistics,” World Health Organization, 2016, http://apps.who.int/gho/data/view. ebola-sitrep.ebola-summary-20160511?lang=en. 2  “2014-2015 West Africa Ebola Crisis: Impact Update,” World Bank Group, 2016, http://pubdocs.worldbank.org/ en/297531463677588074/Ebola-Economic-Impact-andLessons-Paper-short-version.pdf.

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forested regions in Central and East Africa. A third category, which includes cases of Severe Acute Respiratory Syndrome (SARS) in 2003 and the emergence of Middle East Respiratory Syndrome (MERS) in 2012, originate in middleand high-income countries. This third category highlights the importance of vigilance by all countries, and demonstrates situations where international and national health authorities, including bilateral assistance, may be required to support even countries with substantial domestic resources. In contrast to previous EVD outbreaks, the emergence of the disease in West Africa in late 2013 and early 2014 morphed into a prolonged response with a significant humanitarian urgency, involving stakeholders and processes commonly associated with disaster relief, thus blurring the line between past experiences with infectious disease outbreaks and humanitarian response. This transition—of actors, actions, and approaches—from a purely containmentdriven mindset to one with an eye on longerterm activities, challenged existing mechanisms for coordination and deliberation. The transition also forced the international community to rethink strategies for engagement with the affected countries, with respect to finding a new balance between supporting emergency response versus committing resources toward sustained capacity building and development. As such, the EVD outbreak provides a number of insights into the process of global health diplomacy, particularly from the perspective of understanding the foreign policy and other motivations behind different stakeholders’ involvement. These lessons may be useful for future infectious disease pandemics, as well as for other settings where a humanitarian emergency provides opportunities for long-term development activities, some of which may be motivated by different diplomacy or political factors.

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The 2014-2015 West Africa Ebola Outbreak

The 2014-2015 West Africa Ebola Outbreak Prior to 2014, there had been 23 reported outbreaks of naturally occurring EVD in humans.3 These had all originated in the forested region of Central and East Africa. With the benefit of hindsight, however, there were already indications of broader geographic distribution. In 1994, a scientist conducting an autopsy on a wild chimpanzee in Côte d’Ivoire became infected with a new strain of Ebola virus, now known as Taï Forest virus. This signaled the presence of the virus in West Africa for the first time.4 Similarly, retrospective work on samples collected from patients between 2006 and 2014 in Sierra Leone has suggested that the Ebola virus had in fact circulated there previously, but went undetected; cases likely were either misdiagnosed as Lassa fever, another viral hemorrhagic fever endemic to West Africa though less deadly than EVD, or were missed entirely by the frail health system of a country wracked by years of civil conflict.5, 6

3  Additional outbreaks of Reston virus were reported from pigs and macaque monkeys in the Philippines and among imported animals in the United States and Italy; there were also three reported instances of laboratoryacquired exposure in Russia (twice) and the United Kingdom (see, for instance, “Years of Ebola Virus Disease Outbreaks,” CDC, 2018, https://www.cdc.gov/vhf/ebola/ history/chronology.html). 4  Formenty, Pierre, Christophe Hatz, Bernard Le Guenno, Agnés Stoll, Philipp Rogenmoser, and Andreas Widmer, “Human Infection Due to Ebola Virus, Subtype Côte d’Ivoire: Clinical and Biologic Presentation,” The Journal of Infectious Diseases, 1999, 179 (s1): S48–53, https://academic.oup.com/jid/article/179/Supplement_1/ S48/882283. 5  O’Hearn, Aileen E., Matthew A. Voorhees, David P. Fetterer, Nadia Wauquier, Moinya R. Coomber, James Bangura, Joseph N. Fair, Jean-Paul Gonzalez, and Randal J. Schoepp, “Serosurveillance of Viral Pathogens Circulating in West Africa,” Virology Journal, 2016, 13 (1), BioMed Central: 163, https://virologyj.biomedcentral.com/ articles/10.1186/s12985-016-0621-4. 6  Schoepp, Randal J., Cynthia A. Rossi, Sheik H. Khan, Augustine Goba, and Joseph N. Fair, “Undiagnosed Acute Viral Febrile Illnesses, Sierra Leone,” Emerging Infectious

Past EVD outbreaks were usually identified in or originated from isolated communities, and rarely involved more than 100 suspected cases.7 When countries requested external expertise to help control the outbreak, this support was usually limited to small numbers of highly trained infectious disease experts. These experiences contributed to a public health perception that EVD outbreaks were rare, isolated, and, while terrifying, usually relatively self-limiting due to the small populations affected, and controllable using small teams of experts sent in for a short period of time. This mindset was shattered in 2014.The emergence of EVD in West Africa defied all expectations for how the outbreak would behave and evolve. Numerous factors contributed to the explosion of cases and the prolonged nature of the response, including the near-absence of any health care infrastructure from the region; a lack of trust in government and its institutions due to war and political marginalization; tribal boundaries overlapping international, colonial-era official borders; the slow realization of the international community that a radically different approach was needed to contain transmission; and traditional burial practices, to name but a few. The remainder of this section briefly outlines key moments in the early timeline of the outbreak that contributed to its rapid spread, as well as indications that the initial international response was woefully insufficient. Some of the most important moments in the outbreak occurred long before the world knew about it. Researchers have traced the index case for the outbreak back to a young boy in Méliandou, a small village in Guéckédou prefecture in

Diseases, 2014, 20 (7): 1176–82, https://wwwnc.cdc.gov/ eid/article/20/7/13-1265_article. 7  “40 Years of Ebola Virus Disease Outbreaks,” CDC, https://www.cdc.gov/vhf/ebola/history/chronology.html.

The Diplomacy of Response and Recovery in Guinea

southeastern Guinea, close to the borders with both Liberia and Sierra Leone. The area is primarily inhabited by the Kissi people, with colonially derived boundaries largely irrelevant to daily life.8 Researchers believe the child was infected through contact with an insectivorous bat carrying Ebola virus. This single spillover event, in December 2013, was the spark that ignited all subsequent transmission chains over the next two and a half years.9 In January and February 2014, rumors began circulating of a mysterious disease causing sudden deaths in this remote forest region. Early reports suspected cholera; as the hemorrhagic symptoms of victims became more apparent, other observers hypothesized Lassa fever to be the cause. As early as late January, local authorities consulted Médécins Sans Frontières (MSF, known in English as Doctors Without Borders) doctors working on a malaria project in Guéckédou. At the time, however, no one suspected Ebola. The numbers of patients began to build up, and by February, several prefectures in the region had begun reporting cases. The Ministry of Health in Guinea’s capital, Conakry, dispatched a team that included experts from the World Health Organization (WHO) to the region to investigate. The team soon realized that the separate reports were likely linked—and indicative of a much more serious and widespread outbreak. In mid-March, a field report from the investigation happened to land on the desk of an MSF expert on viral hemorrhagic fevers;

8  Wauquier, Nadia, James Bangura, Lina Moses, Sheik Humarr Khan, Moinya Coomber, Victor Lungay, Michael Gbakie, et al., “Understanding the Emergence of Ebola Virus Disease in Sierra Leone: Stalking the Virus in the Threatening Wake of Emergence,” PLoS Currents 7 (April 2015), Public Library of Science, http://currents.plos.org/ outbreaks/index.html%3Fp=56890.html. 9  Baize, Sylvain, Delphine Pannetier, Lisa Oestereich, Toni Rieger, Lamine Koivogui, N’Faly Magassouba, Barrè Soropogui, et al, “Emergence of Zaire Ebola Virus Disease in Guinea,” New England Journal of Medicine 371, 2014 (15), Massachusetts Medical Society: 1418–25, https:// www.nejm.org/doi/full/10.1056/NEJMoa1404505.

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he immediately suspected Ebola and began to mobilize MSF’s resources to respond.10 Within a week, samples from Guinea arrived at reference facilities in Senegal and Paris; within a couple of days, the worst had been confirmed. Guinea was experiencing an Ebola outbreak. The Ministry of Health formally notified WHO of the outbreak on March 21, 2014, and the UN agency released the information publicly two days later.11 Despite the close involvement of the WHO country office in the initial stages of the outbreak investigation, following procedures defined by the International Health Regulations (IHR)12—a 2005 global treaty governing how countries must communicate with WHO in the event of a potential public health emergency of international concern—meant that the formal notification was a necessary step toward mobilizing an international response.13 The initial response was par for the course in terms of supporting containment of an EVD outbreak, despite the unusual setting of West, rather than Central or East, Africa. WHO focused on rapid deployment of small teams of technical experts to support epidemiological investigation, case management, and diagnostics. By March 28, it had deployed 19 experts from the African Regional Office in Brazzaville, Republic of the Congo, as well as from its Geneva headquarters, and released an appeal through the WHO Global Outbreak Alert and Response

10  Stern, Jeffrey E., “Hell in the Hot Zone,” Vanity Fair, October 2014, http://www.vanityfair.com/news/2014/10/ ebola-virus-epidemic-containment. 11  “Ebola Virus Disease in Guinea,” World Health Organization, 2014, http://www.who.int/csr/ don/2014_03_23_ebola/en/. 12  International Health Regulations (2005), 3rd ed., World Health Organization, https://apps.who.int/iris/bitstream/ handle/10665/246107/9789241580496-eng.pdf;jsessioni d=77F8DFAD7D9BC1AAF9B398EE55615D67?sequen ce=1. 13  Ibid.

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The 2014-2015 West Africa Ebola Outbreak

Network (GOARN) for additional technical assistance. WHO also mobilized a number of other partners and sources of diagnostic support at this time, including the Institut Pasteur in Dakar and the European Mobile Laboratory (EMLab) team. Médécins Sans Frontières was the only international partner providing patient care.14 By this time, cases had already been confirmed in Conakry, a city of over 1.6 million people. The US Centers for Disease Control and Prevention (CDC) deployed a team of expert epidemiologists via the GOARN appeal in late March. The concerted effort appeared to pay off, with case numbers dropping throughout April. By May, most experts thought the outbreak was largely under control—and, while acute, had largely followed the expected trajectory of an EVD outbreak. CDC experts packed their bags and flew home, although they maintained a close watch on Guinea, and were instrumental in helping to raise the alarm later in 2014 regarding the severity of the outbreak.15 In retrospect, the warning signs were there, and even explicitly recognized by some organizations. As early as March 31, 2014, MSF had warned that the geographic extent of transmission and the magnitude of cases would pose significant challenges, and the current outbreak was already breaking precedent with past outbreaks.16 There

14  “Situation Report 1 Ebola Virus Disease, Guinea, March 28, 2014,” WHO Regional Office for Africa, 2014, http://www.afro.who.int/en/disease-outbreaks/4070sitrep-1-ebola-guinea-28-march-2014.html. 15  Dahl, Benjamin A., Michael H. Kinzer, Pratima L. Raghunathan, Athalia Christie, Kevin M. De Cock, Frank Mahoney, Sarah D. Bennett, Sara Hersey, and Oliver W. Morgan, “CDC’s Response to the 2014–2016 Ebola Epidemic – Guinea, Liberia, and Sierra Leone,” MMWR Supplements, 2016, 65 (3): 12–20, https://www.cdc.gov/ mmwr/volumes/65/su/su6503a3.htm. 16  “Guinea: Mobilisation against an Unprecedented Ebola Epidemic” Médécins Sans Frontières, March 31, 2014 press release, http://www.msf.org/en/article/guineamobilisation-against-unprecedented-ebola-epidemic.

had been earlier reports of suspected cases in Sierra Leone and Liberia, and while none had been confirmed in Sierra Leone, reticence from local populations toward health teams had limited their ability to investigate cases and follow up. In addition, lack of effective communication between field teams and higher-level officials, both within the Guinean Ministry of Health and international partners such as WHO, led to lapses in follow-up on specific infected individuals who had crossed the border from Guinea into Sierra Leone.17 Moreover, WHO and the Ministry of Health were already aware that cases of the disease were suspected in Conakry, a densely populated city— also a first, as Ebola outbreaks previously had not seen transmission in an urban setting. Finally, traditional burial practices involving close contact with the body of the deceased patient by family members and friends, as well as use of traditional healers, also had been shown to be a significant source of transmission during the Uganda EVD outbreak of 2000-200118; the Kissi people also observed funeral practices that carried a high risk of transmission and routinely visited traditional healers in lieu of the formal health care sector, so it should have not come as a surprise when several major new chains of transmission, including that which resulted in the first confirmed cases in Sierra Leone at the end of May 2014, were traced back to funerals.19 These new cases indicated that the outbreak had continued to smolder in the background, even while international experts were declaring the battle already won.

17  Fink, Sheri, “Cuts at W.H.O. Hurt Response to Ebola Crisis,” The New York Times, September 3, 2014. 18  Lamunu, M, J.J. Lutwama, J. Kamugisha, A. Opio, J. Nambooze, N. Ndayimirije, and S. Okware, “Containing a Haemorrhagic Fever Epidemic: The Ebola Experience in Uganda (October 2000-January 2001),” International Journal of Infectious Diseases, 2004, 8 (1), Elsevier: 27–37, https://europepmc.org/abstract/med/14690778. 19  Wauquier et al, 2015.

The Diplomacy of Response and Recovery in Guinea

From May 2014 onward, it became increasingly clear that the scope and scale of this EVD outbreak were, to quote MSF’s director of operations at the time, “out of control.”20 The rest of the epidemiological and response timeline has been described in detail elsewhere; see, for example, Katz et al.,21 as well as WHO’s interactive map of cases across the three most-affected countries (see Appendix). The outbreak rapidly overwhelmed the response mechanisms dispatched to assist, as these had been predicated on previous experiences with small, isolated EVD outbreaks. MSF and other first-response nongovernmental organizations (NGOs) were rapidly stretched to their limit, and continued to press the global community for recognition that this response required a different approach and new leadership.22

Global Leadership (and the Lack Thereof ) in the Response As the United Nations’ public health arm, the World Health Organization is the primary agency responsible for global health issues, including management of outbreaks in member countries. The 2005 International Health Regulations provided a legal foundation for WHO’s leadership in the event of a potential public health emergency of international concern, which could include

20  “Ebola in West Africa: Epidemic Requires Massive Deployment of Resources,” Médecins Sans Frontières, June 21, 2014 press release, http://www.msf.org/en/article/ ebola-west-africa-epidemic-requires-massive-deploymentresources. 21  Katz, Rebecca, Claire J. Standley, Sarah Kornblet, Erin Sorrell, Andrea Vaught, and Julie E. Fischer, “Information-Sharing and Disease Reporting in a New Era of International Frameworks and Communication Technology: Middle East Respiratory Syndrome Coronavirus and Ebola Virus Disease Outbreaks,” In Pathways to Global Health: Case Studies in Global Health Diplomacy (Volume 2, 2017), edited by Stephen Matlin and Ilona Kickbusch, 141–70, World Scientific, https://www. worldscientific.com/worldscibooks/10.1142/10140. 22  Médécins Sans Frontières, “Pushed to the Limit and Beyond: A Year into the Largest Ever Ebola Outbreak.”

5

particularly severe or unusual outbreaks that cross, or even threaten to cross, international borders. During humanitarian emergencies, during which many other actors are involved, WHO was the designated lead agency for health issues under the cluster system.23 However, WHO’s leadership was roundly criticized both during and in the immediate aftermath of the response to the West Africa EVD crisis. Some of the blame lies with WHO’s inherent structure and bureaucratic processes. The history of WHO’s formation in the wake of World War II, with the Pan-American Health Organization already in existence as a regional public health entity, meant that from the outset significant autonomy and responsibility devolved from its Geneva headquarters to the regional offices. As such, when Ebola struck in West Africa, necessitating a global mobilization of resources, it was not fully clear whether experts in Geneva or the Regional Office for Africa (AFRO), based in Brazzaville in the Republic of Congo, should lead the global response. WHO headquarters’ initial hesitancy may have stemmed from a reluctance to overstep their remit and undermine the regional office. Moreover, while the IHR gave WHO the authority to overrule a country with respect to raising the alarm over a potential public health emergency of international concern, WHO headquarters was reluctant to publicly contradict the official government positions of the affected countries. Indeed, when AFRO officials finally directly requested additional political mobilization from Geneva in June 2014, officials demurred, citing the importance of maintaining good relations with Guinea, Sierra Leone, and Liberia.24

23  “Questions and Answers about WHO’s Role in Humanitarian Health Action,” World Health Organization, http://www.who.int/hac/about/faqs/en/ index3.html. 24  Kamradt-Scott, Adam, “WHO’s to Blame? The World Health Organization and the 2014 Ebola Outbreak in West Africa,” Third World Quarterly 37 (3), 2016, Routledge: 401–18, https://www.tandfonline.com/doi/full/ 10.1080/01436597.2015.1112232.

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The 2014-2015 West Africa Ebola Outbreak

Perhaps most pertinently, WHO had suffered sharp budget cuts in the five years after the 20082009 global financial crunch, and these funding deficits had impinged on the organization’s overall ability to conduct, or even coordinate, a global response.25 WHO’s emergency response division was particularly hard-hit, with a 51 percent reduction in spending from member countries states in 2013 alone.26 To bolster its financial resources to respond to the unfolding EVD outbreak in West Africa, WHO issued a Flash Appeal for support in March 2014, requesting a paltry $2 million.27 Donors failed to meet even this modest target. In comparison, the UN funding response target released in September 2014 was nearly $1 billion, while the total FY 2014-2016 US government funding dedicated to combating the EVD outbreak significantly exceeded $2 billion.28 WHO also made repeated GOARN appeals for technical support; these were met, to some extent, by the international community and national agencies like the US Centers for Disease Control and Prevention, which sent a small team to Guinea and Liberia in March 2014. CDC activated its Emergency Operations Center (EOC) in July 2014 to facilitate deployment of additional staff, yet was still treating the outbreak via a traditional epidemic response focused on specific public

25  Fink, Sheri, “Cuts at W.H.O. Hurt Response to Ebola Crisis,” The New York Times, September 3, 2014. 26  Kamradt-Scott, Adam, “WHO’s to Blame? The World Health Organization and the 2014 Ebola Outbreak in West Africa.” 27  “Situation Report 1 Ebola Virus Disease, Guinea, 28 March 2014,” WHO Regional Office for Africa, http:// www.afro.who.int/en/disease-outbreaks/4070-sitrep-1ebola-guinea-28-march-2014.html. 28  “West Africa - Ebola Outbreak: Fact Sheet #6, Fiscal Year (FY) 2016,” USAID and CDC, https://www.usaid. gov/sites/default/files/documents/1866/west_africa_ fs07_01-21-2016.pdf.

health needs.29 With the exception of the United States Agency for International Development (USAID), which had active development missions across the region, the rest of the US government was only tangentially engaged in the Ebola effort. Under extreme pressure as the number of cases mounted, WHO Director-General Margaret Chan eventually used her authority under the International Health Regulations to declare the West Africa EVD outbreak a public health emergency of international concern (PHEIC) on August 8, 2014. This was the first time WHO’s Emergency Committee had met to discuss the outbreak.30 This formal declaration added a political dimension, albeit a non-binding one, to the response and catalyzed donor willingness to contribute to stemming the tide of the outbreak. By this time, highly publicized cases of international travel contributing to new case clusters, as well as medical evacuations of foreign aid workers infected with Ebola, created a global media storm. Notably, Patrick Sawyer, a Liberian attorney who traveled to Nigeria to seek medical treatment, started a frightening chain of transmission in Lagos. As much as WHO’s PHEIC declaration and the crescendo of public attention on the outbreak may have served to loosen donor pockets, it also encouraged governments to join the growing chorus of criticism against WHO.

29  Bell, Beth P., Inger K. Damon, Daniel B. Jernigan, Thomas A. Kenyon, Stuart T. Nichol, John P. O’Connor, and Jordan W. Tappero, “Overview, Control Strategies, and Lessons Learned in the CDC Response to the 2014–2016 Ebola Epidemic,” MMWR Supplements 2016, 65 (3): 4–11, https://www.cdc.gov/mmwr/volumes/65/su/su6503a2.htm. 30  “Technical Meeting to Support Ebola-Affected Countries on the Recovery and Resilience Plans with a Focus on GAVI, the Global Fund and Other Partners’ Funding,” WHO, June 9-11, 2015, https://apps.who.int/ iris/bitstream/handle/10665/180816/WHO_EVD_HGF_ REPORT_15.1_eng.pdf;jsessionid=C5A55D0B23B9FFA 34503EE823403AEE0?sequence=1.

The Diplomacy of Response and Recovery in Guinea

7

The challenges to WHO’s leadership in the outbreak response reached a climax in September 2014. MSF President Joanne Liu made an impassioned plea to members of the United Nations General Assembly (UNGA) for additional support in fighting the outbreak; while stopping short of publicly criticizing WHO in that forum, the clear message was that to date, global leadership had been lacking and had failed to mobilize sufficient technical and financial support to control the outbreak.31 Heeding the calls for a new approach to addressing the crisis, the UN took the unprecedented move of stepping in and taking over management of the global response by creating the UN Mission for Ebola Emergency Response (UNMEER) as its own coordination mechanism. This was the first time that the UN had created a mission for a public health event, and demonstrated the growing recognition that the outbreak had expanded into a humanitarian crisis.32 At this point, the lines had blurred between a “typical” Ebola response, with a rapid and acute global reaction, versus the type of infectious disease response more commonly associated with a natural disaster or other humanitarian event. At this nexus, NGOs like MSF found themselves in an unfamiliar role, where their health carefocused resources continued to be stretched in unfamiliar conditions, even as they were asked

to take on additional responsibilities within new coordination structures on the ground.33, 34

31  “MSF President Urges UN General Assembly to Act NOW,” Médécins Sans Frontières speech, September 24, 2015, http://www.msf.org/en/article/msf-president-urgesun-general-assembly-act-now.

33  “Beyond Ebola: From Dignified Response to Dignified Recovery,” International Federation of Red Cross and Red Crescent Societies, 2015, https://www.ifrc. org/Global/Documents/Secretariat/201601/Beyond%20 Ebola%20report-EN_LR.pdf.

32  “WHO Welcomes Decision to Establish United Nations Mission for Ebola Emergency Response,” WHO, September 19, 2014, http://www.who.int/mediacentre/ news/releases/2014/ebola-emergency-response/en/.

UN involvement in the outbreak, coupled with the PHEIC declaration the previous month, coalesced international support, with additional non-governmental donors also eager to assist by providing emergency assistance to plug the perceived gaps in the response. The emphasis on capacity building, rather than just response, can be seen at this stage, perhaps marking a shift in view: This quickly became a “multi-stakeholder” crisis, rather than a “public health only” event. Indeed, a number of observers noted that focusing on building core capacities for detecting and responding to outbreaks, for example, per IHR guidelines, would have likely prevented the outbreak—moving forward, these efforts would be necessary for any long-term solution.35 However, at the time it was still not clear whether there was a common understanding between donors and other stakeholders as to what sort of longer-term engagement would be required, or who would lead it. UNMEER’s role was focused only on the Ebola outbreak itself, and would not extend to any further capacity building or development activities, largely leaving those decisions to the individual countries and their bilateral relationships with specific donors.

34  “Pushed to the Limit and Beyond: A Year into the Largest Ever Ebola Outbreak,” Médécins Sans Frontières, March 23, 2015, https://www.msf.org/ebola-pushed-limitand-beyond. 35  Olu, Olushayo Oluseu, “The Ebola Virus Disease Outbreak in West Africa: A Wake-up Call to Revitalize Implementation of the International Health Regulations,” Frontiers in Public Health 4, 2016, Frontiers Media, SA: 120, https://www.frontiersin.org/articles/10.3389/ fpubh.2016.00120/full.

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The 2014-2015 West Africa Ebola Outbreak

The Transition from Response to Recovery Conversations about the “recovery” from the Ebola outbreak began in earnest in late 2014 and early 2015, as new case numbers finally began to fall in the three countries most affected by the outbreak. In December 2014, the UN Secretary General and the governments of Guinea, Sierra Leone, and Liberia charged the UN Development Programme (UNDP) to lead an Ebola Recovery Assessment, which took place in January 2015. The UNDP assembled a multi-agency team, including experts from the World Bank, other UN agencies, the European Union (EU), and the African Development Bank, which consulted with representatives from the Mano River Union,36 the Economic Community of West African States (ECOWAS), and the African Union (AU). The team was asked to make recommendations for recovery priorities over the short term (12 months) as well as the longer term (3 to 5 years). Notably, and in keeping with the new identity of the outbreak as a broad-spectrum humanitarian crisis, the assessment included health systems as one of its working groups, but also encompassed governance, infrastructure, and socio-economic revitalization.37 A number of formal diplomatic and multilateral processes took place in early 2015 to determine pathways and conditions for recovery in these three countries. Some of these discussions, like the World Bank-facilitated plans for economic recovery, received significant attention in the Western media but did not directly address health systems strengthening or even broader development activities. Other processes, such as the

36  The Mano River Union is an international association formed to advance social progress, economic growth, and other aspects of development. Its members are Guinea, Sierra Leone, Liberia, and Côte d’Ivoire. 37  “Recovering from the Ebola Crisis: A Summary Report,” United Nations, World Bank, European Union, and African Development Bank, 2015, http://www.undp. org/content/dam/undp/library/crisis prevention/UNDP_ CPR_EbolaRecovery_2015.pdf.

G7+38 dialogue on the New Deal—a framework designed to improve country “ownership” of development and increase aid effectiveness, specifically targeting fragile states and those emerging from conflict—and Ebola,39 were far less publicized, despite presenting important viewpoints from the affected countries themselves on how they would like to see future engagement and foreign assistance for the recovery process. For example, representatives from Guinea, Sierra Leone, and Liberia emphasized the need for transparency from donors, including disaggregation of funding and in-kind contributions to better track resources and assistance. There were also calls, including from the NGO community, to ensure that national governments and affected communities, rather than donors, were the primary drivers of any future recovery plans.40 The fact that the New Deal was evoked in the setting of the Ebola recovery signaled once again the extent to which the outbreak was now seen as an extended crisis, with real risks for governance and social stability.

38  The G7+ group includes 20 countries that have been affected by conflict and are now in transition to the next stage of development: Afghanistan, Burundi, Central African Republic, Chad, Comoros, Côte D’Ivoire, Democratic Republic of Congo, Guinea, Guinea-Bissau, Haiti, Liberia, Papua New Guinea, Sao Tome and Principe, Sierra Leone, Solomon Islands, Somalia, South Sudan, Timor-Leste, Togo, and Yemen. See http://www.g7plus.org. 39  “Using the New Deal in Ebola Response and Recovery: A Note Towards Better Practice,” International Dialogue on Peacebuilding & Statebuilding, 2015, https://www.pbsbdialogue.org/media/filer_ public/7a/0e/7a0e0444-899b-4a02-bbbe-870577268f02/ using_new_deal_in_ebola_response_and_recovery.pdf. 40  “Prioritising Community Engagement to Strengthen Health Systems in Ebola Recovery,” Oxfam International, 2015, https://www.oxfam.org/sites/www.oxfam.org/files/ file_attachments/ib-prioritising-community-engagementhealth-systems-ebola-recovery-090715-en.pdf.

The Diplomacy of Response and Recovery in Guinea

Within the public health sector, there were also calls to link the EVD crisis to broader health systems strengthening and capacity building. On a local level, WHO worked with national governments to establish “Phase 3” plans as case numbers dropped toward zero, focusing on enhanced surveillance, sustained community outreach, and intensive case identification efforts.41 While aligned with recovery, these Phase 3 plans did not explicitly look beyond the EVD outbreak to the impact of the activity or resource on the future of the health system; indeed, in some cases, long-term sustainability was actively dismissed as taking attention away from Ebola. Conversely, on a global scale, the IHR remained the primary framework for strengthening public health emergency capacity building—with strong emphasis on health systems strengthening in the form of identified core capacity requirements that would enable countries to detect, assess, report, and respond to potential public health emergencies of international concern. In February 2014 (while Ebola cases simmered unrecognized in the Guinean Forest Region), President Barack Obama’s administration, together with more than 20 partner nations and international organizations, including WHO, launched the Global Health Security Agenda (GHSA). One of the primary GHSA objectives was to “accelerate and elevate” progress toward a world free from infectious disease threats, and re-energize countries toward meeting core capacity requirements as outlined under the IHR. As the West Africa EVD outbreak grew in scale, the United States and other nations increasingly cited the GHSA as a possible mechanism for

41  The WHO website describes the three phases of the organization’s response to the EVD outbreak in West Africa: “Phase 1 focused on rapid scale-up of the response; phase 2 focused on increasing capacities, phase 3 focused on interrupting all remaining chains of Ebola transmission, and responding to the consequences of residual risks.” See https://www.who.int/csr/disease/ebola/response/phases/ en/.

9

guiding and coordination activities to strengthen health systems, albeit not one with the universal reach of the IHR, which was binding on all WHO member countries. The GHSA received an additional political boost when it, along with IHR, was cited by the G7—the United States, the United Kingdom, Canada, France, Germany, Italy, and Japan—as key frameworks for building infectious disease preparedness and response capacities. At its June 2015 summit, the G7 committed to assisting 60 countries, including those affected by Ebola in West Africa, to prevent future outbreaks through support to GHSA and implementation of the International Health Regulations.42 Despite these multilateral pledges, and the mechanisms that appeared to be in place to guide capacity building, much of the assistance for capacity building that began to take shape in early 2015 was actually based on bilateral interests and relationships. This led to separate, but related, challenges with coordination and resource allocation in the aftermath of the outbreak—as observers had already noted during the outbreak. It is therefore also pertinent to review the assistance provided to the three affected countries in West Africa through the lens of global health diplomacy, and the soft power objectives that might be achieved through provision of health assistance and capacity building.43 The following section focuses specifically on the provision of laboratory capacity building in Guinea as an example of a public health capacity

42  “Leaders’ Declaration G7 Summit, 7-8 June 2015,” G7 Germany, 2015, https://www.g7germany.de/Content/EN/_ Anlagen/G7/2015-06-08-g7-abschluss-eng_en.pdf ?__ blob=publicationFile&v=3. 43  Katz, Rebecca, Sarah Kornblet, Grace Arnold, Eric Lief, and Julie E Fischer, “Defining Health Diplomacy: Changing Demands in the Era of Globalization,” The Milbank Quarterly 2011, 89 (3), Milbank Memorial Fund: 503–23, https://onlinelibrary.wiley.com/doi/full/10.1111/ j.1468-0009.2011.00637.x.

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The 2014-2015 West Africa Ebola Outbreak

that spanned the response to recovery transition— and to examine the possible foreign policy and political motivations behind the engagement of some of the major actors in the post-Ebola assistance effort.

Building Laboratory Capacity in Guinea During and After the EVD Outbreak The previous sections have provided an overview of the 2014-2015 West Africa Ebola outbreak from both an epidemiological and governance standpoint, and charted some of the key moments in the transition of the outbreak from a public health issue to a humanitarian emergency, with associated implications for societal, economic, and health systems “recovery.” This section will look at laboratory capacity in Guinea as a means to explore whether donor actions or approaches also changed along that transition axis, and the extent to which those changes can be linked back to foreign policy or diplomatic considerations. Prior to the EVD outbreak, the laboratory system in Guinea had a low capacity to diagnose infectious diseases. Few laboratories in the peripheral public health system were equipped to provide anything beyond basic microbiological techniques or deployment of point-of-care rapid diagnostic tests (when available), and the national reference laboratories were themselves plagued by lack of reagents and trained technicians, and by broken or uncalibrated equipment.44 The country’s Viral Hemorrhagic Fever Laboratory, based at the Donka Hospital in Conakry, was virtually unused;

44  The exception was vertically funded disease programs, where a donor provided equipment, reagents, and training in order to support diagnostics for a particular disease. For example, during a visit to the National Public Health Institute in Conakry, the only sections that were functional were the HIV diagnostics laboratory, funded entirely by the French government, and the cholera laboratory, supported by the African Cholera Surveillance Network (AFRICHOL) and implemented by France’s Agence de Médecine Preventive (AMP).

samples of suspected hemorrhagic fevers were usually sent to the Institut Pasteur in Dakar or Paris for testing. Obtaining viable samples from the interior of the country was another hurdle, as the journey could take many days, particularly in the wet season. Over the course of the outbreak, a large number of stakeholders attempted to address these deficits, albeit in different ways. Some focused entirely on the response, others planned longerterm activities from the outset, and still others appeared to change strategy as the dialogue surrounding the outbreak itself morphed from talk of response to that of recovery. From a global governance perspective, WHO’s Phase 3 plan provided no specific guidance for laboratories or mobile laboratories;45 moreover, while mentioned in passing as one of Guinea’s priority areas for capacity building, laboratories were not an area of focus during WHO’s technical meeting to support affected countries with their recovery plans.46 The UNDP’s Ebola Recovery Assessment called for recovery efforts to build on existing assets, specifically including laboratory equipment and facilities47; however, the extent to which this proved to be the case varied among donors. Within Guinea, the National Ebola Coordination Cell (CNLEB) organized a laboratory subcommittee, chaired by the director of the National Public Health Institute (INSP), which included WHO, CDC, and other major stakeholders in laboratory capacity building. Part of the subcommittee’s mandate was to organize and coordinate the process of transitioning capacity from response

45  “Ebola Response Phase III: Framework for Achieving and Sustaining a Resilient Zero,” WHO. 46  “Technical Meeting to Support Ebola-Affected Countries on the Recovery and Resilience Plans with a Focus on GAVI, the Global Fund and Other Partners’ Funding,” WHO. 47  “Recovering from the Ebola Crisis: A Summary Report,” United Nations, World Bank, European Union, and African Development Bank, 2015.

The Diplomacy of Response and Recovery in Guinea

to recovery, though its efficacy was heavily reliant on external factors, including which stakeholders chose to participate in the meetings. In reality, though, foreign assistance was typically negotiated at a higher level, such as between the donor and the director or deputy director of the CNLEB directly. To capture the transition from response to recovery, this case study will only examine those laboratories that were listed by WHO’s situation report as still operating within Guinea as Phase 3 began in earnest on December 30, 2015, the day after WHO declared Guinea to be free from Ebola, in the absence of any confirmed cases for 42 consecutive days. A map of these laboratories,

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adapted from the WHO December 30 Ebola Situation Report, is included below. One of the nine labs that were present at the time Guinea was declared Ebola-free, the INSP/ PFGH/IPD laboratory in N’Zérékoré had been recently established as part of an EU-funded collaborative research project. As it had not been set up to support the response directly, and had a research (rather than public health) primary objective, it falls outside this review. Among the eight remaining laboratories, all had originally been set up as “mobile” facilities, albeit on different scales of mobility and footprint. Table 1 summarizes the deployment history of each of these laboratories.

Map of Ebola diagnostic laboratories in Guinea as of December 30, 2016. 1=IP Dakar – Conakry; 4=K-Plan Mobile Lab – Conakry; 7=REDC Lab – Conakry; 11=EU Mobile Lab – Nongo; 13=K-Plan Mobile Lab – Forecariah; 14=CREMS Lab – Kindia; 16=Boke Mobile Lab; 17=INSP/PFHG/IPD LAB – N’Zérékoré; 18= EUWAM Lab – Conakry. Adapted by the author from WHO December 30, 2016 Ebola Situation Report, http://www.who.int/csr/disease/ ebola/maps/en/.

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The 2014-2015 West Africa Ebola Outbreak

Table 1

Lab Name (Map reference)

Location

Donor

Deployment Dates

Transition Plan

EU Mobile Lab (11)

Guéckédou / Coyah

European Union

March 2014 – March 2015; in Coyah April 2015 – October 2016

Left country after Phase 3.

EUWAM Lab (18)

Conakry (Nongo)

European Union

July 2015 – early 2016

Left Guinea but remained in West Africa as a regional resource.

Conakry (Donka)

Senegal (Institut Pasteur)

IP-Dakar (1)

August 2014 – April 2015 as mobile facility; April 2015 – January 2016 as CREMS

Handed over to Ministry of Higher Education and Scientific Research and the Ministry of Health in January 2016. Became part of IRBAG (Institut de Récherche en Biologie Appliquée en Guinée).

CREMS Lab (14)

Kindia

K-Plan Mobile Lab (4)

Conakry (Hôpital Ignace Deen, Kaloum)

France (Expertise France)

April 2015 – February 2016

Handed over in February 2016 to CNLE (Conseil national des politiques de lutte contre la pauvreté et l’exclusion sociale).

K-Plan Mobile Lab (13)

Forecariah (also Beyla)

France (Expertise France)

February 2015 – February 2016

Handed over in February 2016 to the Ebola treatment center in Forécariah.

REDC Lab (7)

Conakry (Ratoma) US (DOD/DTRA)

April 2015 – September 2016

Handed over to the Ministry of Health in September 2016.

Boké Mobile Lab (16)

Matam (Conakry) and Boké

April 2015 – late 2015

Left after Guinea declared Ebola-free.

December 2015

Research project lab delocalized from main VHF lab in Conakry; the lab was not involved in the Ebola response.

INSP/PFHG/IPD Lab (17)

N/Zérékoré

Russia (RUSAL)

March 2014

IP-D experts left Guinea, but equipment and trained technicians remained at VHF lab in Donka.

Canada (PHAC)

France / EU

The Diplomacy of Response and Recovery in Guinea

The EU Mobile Lab, the EU West Africa Mobile Lab (EUWAM Lab), the Canadian lab in Boké, and the Institut Pasteur-Dakar laboratory all packed up and left Guinea once the outbreak was over, an indication that their missions had been purely response-based. Indeed, throughout the outbreak, several of these laboratories had been notable for moving large distances across the country to address urgent diagnostic needs. For example, Guinean health officials originally deployed the EU Mobile Lab to Guéckédou at the very beginning of the outbreak, when the majority of transmission chains still stemmed from that region. In early 2015, the lab relocated to Coyah as the foci of new infections shifted toward the prefectures surrounding Conakry.48,49,50,51 Likewise, the Public Health Agency of Canada (PHAC) originally deployed the Canadian mobile laboratory to support operations in Sierra Leone; the lab then relocated to Guinea at the request of the Guinean government to support diagnostics. The lab initially operated in Conakry, but moved

48  Kerber, Romy, Ralf Krumkamp, Boubacar Diallo, Anna Jaeger, Martin Rudolf, Simone Lanini, Joseph Akoi Bore, et al., “Analysis of Diagnostic Findings From the European Mobile Laboratory in Guéckédou, Guinea, March 2014 Through March 2015,” Journal of Infectious Diseases 2016, 214 (suppl 3): S250–57, https://academic. oup.com/jid/article/214/suppl_3/S250/2388264. 49  Wölfel, R, K Stoecker, E Fleischmann, B Gramsamer, M Wagner, P Molkenthin, A Di Caro, et al., “Mobile Diagnostics in Outbreak Response, Not Only for Ebola: A Blueprint for a Modular and Robust Field Laboratory,” Eurosurveillance 2015, 20 (44), November 5, 2015, https:// www.eurosurveillance.org/content/10.2807/1560-7917. ES.2015.20.44.30055. 50  “EMLab Team #16 Dispatched to Coyah, Guinea,” European Mobile Laboratory Project, 2015, http://www. emlab.eu/news-events/news-detail/emlab-team-16dispatched-to-coyah-guinea.html. 51  “Partial Relocation of EMLab Unit in Guinea from Guéckédou to Coyah,” European Mobile Laboratory Project, 2015, http://www.emlab.eu/news-events/newsdetail/partial-relocation-of-emlab-unit-in-guinea-fromgueckedou-to-coyah.html.

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to the northern prefecture of Boké after a cluster of cases there late in the outbreak. Because the disease threatened to spill the crisis over the border into Guinea-Bissau, the Guinea government placed a high priority on rapid identification of new cases. While both the IP-Dakar laboratory and the EUWAM laboratory were focused on outbreak response, not long-term recovery, there was a stronger element of capacity building in their operations. For instance, the IP-Dakar laboratory left much of its equipment to the Viral Hemorrhagic Fever (VHF) laboratory— with which it had been co-located during much of the outbreak), and also trained 10 Guinean technicians to stay on to support local capacity for diagnostics.52 It is worth noting that IP-Dakar was one of the first institutions to provide diagnostic support to Guinea, and WHO facilitated the deployment of the mobile lab as early as March 2014. The EUWAM laboratory, designed to be a fully mobile, highly robust diagnostic unit packable onto a single truck, departed Guinea but remained in the region to support any future West African needs.53 The remaining four mobile laboratories remained active after the outbreak, but transitioned into semi-permanent or permanent facilities that were donated to the government of Guinea. The CREMS laboratory was established via a collaboration between the Russian Federal Service for Surveillance on Consumer Rights Protection and Human Wellbeing (Rospotrebnadzor) and RUSAL, the world’s sixth-largest aluminum mining company, based in Russia. Initially established as a fully mobile facility, manned by

52  “Ebola Virus and Institut Pasteur,” Pasteur Foundation, 2014, http://www.pasteurfoundation.org/ news-article/ebola-virus-and-institut-pasteur. 53  “EU Response to the Ebola Outbreak,” European Commission, 2017, https://ec.europa.eu/europeaid/ regions/africa/west-africa/ebola-response_en.

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The 2014-2015 West Africa Ebola Outbreak

technical experts from Rospotrebnadzor, it was later integrated into a permanent location at the site of the long-abandoned “Pastoria” research facility in Kindia prefecture, about 130 kilometers (80 miles) from Conakry.54,55,56 Unlike many other donors, the Russians initiated the engagement by signing a formal memorandum of understanding with the relevant Guinean ministries. In January 2016, the laboratory was formally handed over to the Guinean Ministry of Higher Education and Scientific Research as well as the Ministry of Health, although the Russian government committed to provide funding as well as technical support from a senior laboratorian through at least 2017. Rospotrebnadzor provided training for Guinean technicians in biosecurity and laboratory diagnostics, though press releases regarding the laboratory emphasized that only diagnostic tools developed in Russia

were used by the facility.57, 58, 59 In 2017, Russian Foreign Minister Sergey Lavrov referred to the laboratory as a facility to support “regional” health security, highlighting Russia’s intent to place its engagement in the context of capacity building and global health security, rather than the Ebola outbreak specifically.60 The US government also contributed a mobile laboratory to support the EVD response in Guinea. At the request of the CDC, the Defense Threat Reduction Agency’s (DTRA) Cooperative Biological Engagement Program (CBEP) deployed a state-of-the-art, containerbased mobile laboratory. Slow US government procurement and contracting processes delayed the arrival of the Ratoma Ebola Diagnostics Center (REDC) until April 2015, by which time Ebola cases had already begun to fall sharply, and most stakeholders were beginning to look ahead toward recovery activities. The language barrier between the English-speaking laboratory staff and the French-speaking CNLEB and response apparatus

57  “Epidemiology, Bacteriology and Virology Training Courses Open in Guinea,” Embassy of the Russian Federation in the Republic of Guinea, 2015, http:// guinea.mid.ru/web/guinee-fr/actualites-de-l-ambassade/-/ asset_publisher/u42vl5IwZdlL/content/epidemiologybacteriology-and-virology-training-courses-open-inguinea?inheritRedirect=false. 54  “Statement by Deputy Permanent Representative of the Russian Federation to the United Nations Mr. Dmitry I. Maksimychev at the Open Meeting of the UN Security Council on Agenda Item ‘Peace and Security in Africa’ in Connection with the Outbreak of Ebola Fever,” Permanent Mission of the Russian Federation to the United Nations, 2014, http://russiaun.ru/en/news/sc_afebl.

58  “Russian Scientists to Set up Lab in Guinea to Fight Ebola,” Reuters via RT News, 2017.

55  “Russian Scientists to Set up Lab in Guinea to Fight Ebola,” Reuters via RT News, 2017, https://www.rt.com/ news/181864-russian-virologists-ebola-laboratory/.

60  “Remarks and Response to Media Questions by Russian Foreign Minister Sergey Lavrov at Joint Press Conference Following Talks with Minister of Foreign Affairs, Cooperation and Affairs of Burkinabe Abroad of Burkina Faso A. Barri, Moscow, February 20, 2017,” Russian Federation Ministry of Foreign Affairs, 2017, http://www.mid.ru/web/guest/meropriyatiya_s_uchastiem_ ministra/-/asset_publisher/xK1BhB2bUjd3/content/ id/2652344.

56  “On the Contribution of the Russian Federation to International Efforts to Combat the Outbreak of Ebola,” Rospotrebnadzor, 2015, http://www.rospotrebnadzor. ru/en/about/info/news/news_details.php?ELEMENT_ ID=2978.

59  Klomegah, Kester Kenn, “The Threat of Ebola and Russia’s Response,” Pambazuka News, 2014, https://www. pambazuka.org/food-health/threat-ebola-and-russiasresponse.

The Diplomacy of Response and Recovery in Guinea

in Guinea proved a challenge to integrating the laboratory into the response effort. REDC staff did not begin attending CLNEB laboratory subcommission meetings until November 2015, by which time no new cases had been reported for several weeks. Given the large footprint of the laboratory, which required several heavy shipping containers, it seemed unlikely from the outset that the REDC laboratory could be moved readily, making it likely that it would take on a longer-term role. However, such a plan was not yet in place when the laboratory arrived. In 2016, CBEP included a mandate for training Guinean technicians and in September of that year formally handed the facility over as a gift from the US government to the Guinean Ministry of Health, with DTRA pledging to continue funding operations for at least an additional year.61 The extremely high operating costs of the facility, estimated at over $15,000 per month, suggest a long-term sustainability challenge.

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February 2016. Through discussions among the CNLEB’s laboratory subcommission, it became clear prior to the transition that the types of consumables and reagents used by the K-Plan facilities were not compatible with some of the other mobile facilities operating in the area (such as the EUWAM Lab, for example), complicating efforts to pool and share resources when supply lines faltered. In March 2017, for example, the K-Plan labs were reported to be on hiatus due to a lack of available reagents.

The Geopolitics of Foreign Laboratories

The final two laboratories present at the end of the outbreak in Guinea were the K-Plan facilities, provided by the French Ministry of Foreign Affairs via its implementation arm, Expertise France. One facility was initially deployed to the Forest Region in February 2015 (later moving to Forécariah, when it became an epicenter of new cases). The second laboratory arrived in Conakry in April 2015, and set up on the grounds of Ignance Deen Hospital, one of the three national hospitals in Guinea. With a rotating workforce of almost 30 technicians, the K-Plan facilities also trained four Guinean biologists and one technician (sending people to training courses in France, versus onsite training provided by the US and Russian labs). The French government formally handed both laboratories over to the government of Guinea in

These examples revealed patterns reflecting Guinea’s post-colonial history. Was it just a coincidence that each of the laboratories that transitioned post-response into part of a longterm capacity building effort was affiliated with one of the three major foreign influences in Guinea’s development assistance history? On the Guinean side, while there were efforts to manage and align donor contributions via the centralized Ebola response apparatus, it is clear that bilateral relationships and direct high-level engagement trumped these fragile technical-level coordination mechanisms. Since independence in 1958, Guinea historically had maintained a strong level of control over donor contributions at high levels of the government. In the context of the Ebola outbreak, the government may have been willing to accept whatever aid was being offered, rather than ensure equipment and diagnostic platforms were mutually compatible or sustainable over the long term. Despite the fact that Guinea was a member of the G7+ group and a signatory to the New Deal, some parties within the Guinean government may have had a low awareness of how New Deal principles might have leveraged and advocated for greater country ownership and oversight of the recovery process.62

61  “DTRA Extends MRIGlobal Mobile Lab Support in West Africa,” Global Biodefence, 2016, https:// globalbiodefense.com/2016/02/23/dtra-extends-mriglobalmobile-lab-support-in-west-africa/.

62  “The New Deal and Ebola – A Framework for Effective Recovery: An International Dialogue Brainstorming Workshop Report,” International Dialogue

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The 2014-2015 West Africa Ebola Outbreak

In terms of post-colonial historical parallels, analysts observed elsewhere that in the decade or so since Russia developed a foreign assistance strategy that its aid recipients tended to reflect the USSR’s historical sphere of influence, with an emphasis on former USSR countries as well as socialist satellite states.63 While Guinea was never formally aligned with the Soviet bloc, its first president, Ahmed Sekou Touré, was a committed Marxist, and the USSR provided high levels of in-kind and other assistance throughout his regime. The preference for targeting countries of past influence also extended to the Russian private sector; for example, RUSAL, the Russian aluminum company, had a significant presence in Guinea, which no doubt influenced Russian contributions toward the Ebola response and recovery. It is worth noting that Russia provided no assistance to Sierra Leone or Liberia during the outbreak, and overall, while sub-Saharan Africa accounts for a very modest proportion of Russia’s foreign assistance budget, Guinea featured significantly. The history of US assistance to Guinea in past decades was more nuanced. Recognizing Sekou Touré’s socialist leanings, the US government sought to bolster Guinea against the impending threat of communism by providing foreign assistance. President Sekou Touré, for his part, was a master of playing both sides through a formal policy of “positive neutrality,”64 emphasizing throughout

on Peacebuilding and Statebuilding, and UNDP, May 25, 2015, http://www.pbsbdialogue.org/media/filer_public/ d1/06/d10681da-463a-4e54-873b-350177b8c9cc/rd_3_ the_new_deal_and_ebola.pdf. 63  Brezhneva, Anna, and Daria Ukhova, “Russia as a Humanitarian Aid Donor,” Oxfam International, 2013, https://www.oxfam.org/sites/www.oxfam.org/files/dprussia-humanitarian-donor-150713-en.pdf. 64  Macdonald, Mairi Stewart, “The Challenge of Guinean Independence, 1958-1971,” University of Toronto, 1958, https://tspace.library.utoronto.ca/ bitstream/1807/19287/1/MacDonald_Mairi_S_200911_ PhD_Thesis.pdf.

the importance of Guinea’s sovereignty over its own development—a philosophy that persists strongly in the Guinean government. The end of the Cold War in the 1990s therefore dramatically reduced US strategic interest in Guinea, although some support to development and other programs continued. Overall, US support to Guinea during the Ebola crisis was dwarfed by its assistance to Liberia and Sierra Leone, and exacerbated by challenges with the language barrier. The CDC, for example, struggled to find enough Frenchspeaking technical experts within their own ranks to deploy to Guinea, and was forced to put out a call to the broader US government interagency for volunteers, despite its overall response to the epidemic being its largest ever, with thousands of personnel deployed to West Africa as well as mobilized in Atlanta. Some analysts would argue that the US government’s interest in the Ebola outbreak, while in part focused on the response, also was linked to domestic and broader health security objectives. A $5.4 billion emergency appropriation allowed the Obama White House to secure congressional funding to bolster domestic health security and provide financial support for the Global Health Security Agenda, while maintaining bilateral response capabilities to affected countries. As such, it is tempting to view the US provision of laboratory capacity in Guinea, while significant in the context of the country, as relatively minor when compared to the US health security investments made elsewhere during this time, including to other countries in the region. This view would reflect historical patterns of US foreign assistance, where Guinea was secondary to more strategically significant (and largely Anglophone) assets in the region, including Nigeria and Liberia. The role of the French government in Guinea’s

The Diplomacy of Response and Recovery in Guinea

EVD response and recovery is also complex. France responded early to the outbreak by sending technical expertise and, like most other countries, ramped up its level of involvement significantly after the PHEIC declaration in August 2014. With the agreement of the Guinean government, rather than provide solely new funds to support response activities, the French government diverted portions of existing foreign aid toward the health system, greatly increasing the speed at which resources could be deployed. Throughout, there was a perception that France would “lead” the international donor community and response in Guinea, while the US would “lead” in Liberia and the British in Sierra Leone, reflecting the colonial-era histories of the three affected countries. However, France’s relationship with its former colony was somewhat unique within the “Francophonie,” as Guinea rejected the terms of an offered pathway to independence in favor of full autonomy in 1958. Relations were bitter between the two countries for several years, with France refusing to recognize Guinea’s independence and Guinea seeking at every opportunity to undermine French influence on the continent.65 Despite this turbulent past, the French government emphasized engagement with Guinea over any assistance to either of the two other countries affected by Ebola, though it did make investments in other French-speaking countries in West Africa. France spent roughly 200 million euros (approximately $224 million) on the Guinea response, far less than the United States spent. But by coordinating through France’s Ministry of Foreign Affairs and focusing on its strengths in providing laboratory capacity, the French government was able to

65  Du Bois, Victor D, “Thaw In The Tropics. France and Guinea Move Toward a Rapprochement,” American Universities Field Staff Reports, West Africa Series, 1963, VI (2): 1–12, http://www.webguinee.net/blogguinee/ documents/france-and-guinea-rapprochement-1963/.

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have a significant and lasting impact. Moreover, the French government developed a transition plan to guide capacity building from response to recovery.66

Looking Toward the Future On a practical level, what are the implications of these varying approaches and strategies to Guinea’s post-Ebola recovery and long-term capacity building? First, the emphasis on securing assistance through bilateral ties, a practice that stretched back to Cold War-era relationships, may have contributed to the challenges for coordination of resource provision and the lack of a cohesive approach to capacity building, including within the laboratory sector. The absence of a Guinea-led plan at the time for provision of laboratory capacity, with an emphasis on local needs and supply chains, will likely result in challenges down the road with sustainability as well as interoperability between the disparate components of Guinea’s new permanent laboratory network. However, on a political level, these bilateral ties may have also set the groundwork for additional, sustained engagement on the part of the major donors; the United States, for example, committed to supporting GHSA activities in Guinea through FY 2019, and the French government similarly committed to a multiyear approach.67 In early 2017, Expertise France invited Dr. Sakoba Keita, the director of the CNLEB, to speak at their headquarters in Paris on the future of building

66  Salignon, Pierre, and Adrien Absolu, “L’action de l’État Français En Guinée: Envers et Par-Delà Ebola,” Revue Humanitaire, 2015, 40, Médecins du Monde: 52–63, https://humanitaire.revues.org/3138?lang=en. 67  “Relance Du Système de Santé Guinéen: Retour Sur La Mission d’Expertise France,” Expertise France, 2016, http://www.expertisefrance.fr/Actualites/Relancedu-systeme-de-sante-guineen-retour-sur-la-mission-dExpertise-France.

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The 2014-2015 West Africa Ebola Outbreak

health security capacity in Guinea.68 For its part, in February 2017 RUSAL announced the opening of a brand-new laboratory facility in Guinea, again associated with the IRBAG facility in Kindia, but now including a full biosafety level 3 facility—the first of its kind in the country.69 If history is a guide to future foreign assistance in Guinea, it will be worth observing whether China seeks to expand its health security engagements in the country. Like Russia, China has extensive and significant mining interests in Guinea, and a long-standing bilateral relationship stretching back to the late 1950s. While China did not provide laboratory capacity to Guinea, it did send a mobile laboratory team to Sierra Leone—China is Sierra Leone’s largest trading partner.70,71 As China’s investment in Guinea grows, there may be a parallel increase in the level of technical and development assistance. Given these disparate partners, and with the standing-down of the CNLEB, Guinea will need to establish other mechanisms to guide foreign investment and assistance.

68  “La Guinée Après Ebola: Quelle Stratégie Nationale de Réponse Aux Défis de La Sécurité Sanitaire Internationale?” Expertise France, 2017, http://www. expertisefrance.fr/Evenements/La-Guinee-apres-Ebolaquelle-strategie-nationale-de-reponse-aux-defis-de-lasecurite-sanitaire-internationale. 69  “UC RUSAL Announces the Opening of a New, One-of-a-Kind Laboratory for Combatting Highly Infectious Diseases as Part of Its Hospital in Guinea,” RUSAL press release, February 15, 2017, http://www.rusal. ru/en/press-center/press-releases/16771/. 70  Huang, Yanzhong, “China’s Response to the 2014 Ebola Outbreak in West Africa,” Global Challenges, 2017, 1 (2): 1600001, https://onlinelibrary.wiley.com/doi/ full/10.1002/gch2.201600001. 71  “Sierra Leone Exports to China Grows by 44% in 2016,” Awoko News, April 24, 2017, http://awoko. org/2017/04/24/sierra-leone-business-sierra-leoneexports-to-china-grows-by-44-in-2016/.

Recent reforms to the 2005 International Health Regulations evaluation process have aligned its metrics with Global Health Security Agenda, encouraging countries to participate in a joint external evaluation ( JEE) process intended to result in the development of multi-sectorial, multi-stakeholder action plans for health security capacity building. This process may also serve to coordinate activities designed to address gaps. Guinea voluntarily agreed to participate in the JEE process, with the external evaluation taking place in April 2017. However, it is not clear the extent to which all donors, and in particular those not bound by IHR, such as the private sector, will feel obliged to align assistance to the JEE action plan. In general, there may need to be some recognition that the assistance landscape, particularly in resource-rich countries like Guinea, goes beyond traditional donors and multilateral agencies, and will need to include new stakeholders.72 Efforts to encourage Guinean ownership of the action plan, and to resist assistance unless coordinated through the relevant authority, may be critical to ensuring that the investments made during the Ebola response and recovery are not only sustained, but reinforced. On a global level, the observations of the international response, and particularly the transition between response and recovery, laid bare significant deficiencies in global health leadership. The WHO established the UN Mission for Ebola Emergency Response (UNMEER) to fill this role, but this was a temporary mission that ended after the outbreak. While the World Health Organization was able to bridge the transition to some extent, it faced its own period of soulsearching and reform. A number of independent reviews analyzed WHO’s performance during

72  Hillier, Debbie, Ruth Mhlanga, and Suzanne Zweben, Ebola and the Private Sector: Bolstering the Response and West African Economies,” Oxfam International, 2014, http://policy-practice.oxfam.org.uk/publications/ebolaand-the-private-sector-bolstering-the-response-and-westafrican-economies-336916.

The Diplomacy of Response and Recovery in Guinea

the outbreak and suggested improvements; one of these led WHO to establish a new Health Emergencies Program (WHE) in 2016,73 though WHO’s perennial challenge of raising funds remained. As of the end of 2017, WHO reported a financing gap of 22 percent between received contributions and the total $412.5 million required budget for the program.74 It is not clear which donors, if any, would step up to fill these remaining gaps. Individual countries also pledged to bolster their capabilities to contribute to an international response; for example, the US Centers for Disease Control and Prevention established a Global Rapid Response Team (GRRT), a roster of experts on call to deploy to support public health emergency response worldwide.75 While such unilateral efforts should be lauded, there is also a concern that providing a mixed multilateral/bilateral response to future outbreaks could result in similar challenges to coordination and communication as those observed during the West Africa EVD outbreak.

Conclusions The 2014-2015 West Africa Ebola Virus Disease outbreak changed the way the global community perceived infectious disease epidemics, and introduced a humanitarian element to what had previously been a purely public health response. This change in perception also encouraged longer-term engagement from key donors and assistance stakeholders, with a shift in emphasis from disease containment to capacity building

73  “Questions and Answers about WHO’s Role in Humanitarian Health Action,” WHO. 74  “WHO Health Emergency Program,” Figures by Programme, WHO, http://open.who.int/2016-17/ourwork/category/12/about/key-figures. 75  “CDC Global Rapid Response Team,” CDC, https:// www.cdc.gov/globalhealth/healthprotection/errb/globalrrt.htm.

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to detect and address any future outbreaks more effectively. While the landscape of donors was diverse, in Guinea the example of laboratory capacity demonstrates that specific bilateral relationships, paralleling historical patterns of assistance, extended beyond response and into the recovery phase, and may reflect larger trends in global health diplomacy. Since laboratory capacity building is just one component of the overall response framework, it would be interesting to explore whether these patterns hold true for other technical areas, such as surveillance, emergency management, or social mobilization. The aftermath of the outbreak also catalyzed changes in global governance structures for responding to pandemics and other public health emergencies. The success of these initiatives will largely depend on the extent to which countries, and other stakeholders in global health diplomacy, view continuing investment in health security capacity building as a strategic and political priority.

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The 2014-2015 West Africa Ebola Outbreak

Additional Reading Bell, Beth P., Inger K. Damon, Daniel B. Jernigan, Thomas A. Kenyon, Stuart T. Nichol, John P. O’Connor, and Jordan W. Tappero, “Overview, Control Strategies, and Lessons Learned in the CDC Response to the 2014– 2016 Ebola Epidemic,” MMWR Supplements 2016, 65 (3): 4–11, https://www.cdc.gov/mmwr/ volumes/65/su/su6503a2.htm. “Beyond Ebola: From Dignified Response to Dignified Recovery,” International Federation of Red Cross and Red Crescent Societies, 2016, http://www.ifrc.org/Global/Documents/ Secretariat/201601/Beyond Ebola report-EN_ LR.pdf. Kamradt-Scott, Adam, “WHO’s to Blame? The World Health Organization and the 2014 Ebola Outbreak in West Africa,” Third World Quarterly 37 2016 (3), Routledge: 401–18, https://www.tandfonline.com/doi/full/10.1080/0 1436597.2015.1112232. Olu, Olushayo Oluseun, “The Ebola Virus Disease Outbreak in West Africa: A Wakeup Call to Revitalize Implementation of the International Health Regulations,” Frontiers in Public Health 2016, 4, Frontiers Media SA: 120, https://www.frontiersin.org/articles/10.3389/ fpubh.2016.00120/full. “Recovering from the Ebola Crisis: A Summary Report,” United Nations, The World Bank, European Union, and African Development Bank, 2015, http://www.undp.org/content/dam/ undp/library/crisis prevention/UNDP_CPR_ EbolaRecovery_2015.pdf.

Discussion Questions 1. What challenges do existing mechanisms of health care coordination face in the event of a global epidemic or health emergency? 2. What strategies exist for engagement with countries affected by a health crisis? How do donors and countries balance supporting emergency response with committing resources toward longer-term capacity building and development? 3. To what extent do donor countries balance strategic priorities against being a good global partner when it comes to responding to health emergencies? Do you think the Ebola outbreak has changed this balance in any way? 4. What lessons can be drawn for future pandemic infectious disease scenarios?

The Diplomacy of Response and Recovery in Guinea

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Appendix 1 Ebola Outbreak Distribution Map October 29, 2014

Source: Wikimedia Commons, image from the Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, https://commons.wikimedia.org/wiki/File:Ebola_Outbreak_ Map.png. For an animation demonstrating the spread of Ebola, see the WHO interactive map: http://www.who.int/csr/disease/ebola/maps/en/.

Case 328

Institute for the Study of Diplomacy Case Study

Pharmaceuticals, Patents, and U.S. Trade Policy Michael K. McDonald

photo source: https://www.pexels.com/photo/ capsules-cure-drug-health-415825/

Case 328

Pharmaceuticals, Patents, and U.S. Trade Policy Michael K. McDonald

ISBN: 1-56927-379-0 Copyright © 2012 by the Institute for the Study of Diplomacy

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior permission of the Institute for the Study of Diplomacy. The opinions and analysis contained in this case study are solely those of the author(s), and do not necessarily reflect the views of the Institute for the Study of Diplomacy, the School of Foreign Service, or Georgetown University.

1316 36th St. N.W. Washington, D.C. 20007 | isd.georgetown.edu | [email protected]

This case study was made possible (in part) by a grant from the Carnegie Corporation of New York. The statements made and views expressed are solely the responsibility of the author.

Pharmaceuticals, Patents, and U.S. Trade Policy MI C H A E L K . MC D O N A L D UNI VER S IT Y OF MA R Y LAND

I don’t have the money to pay for both my wife and I to receive antiretrovirals. If I pay for my wife, my children cannot go to school and will have no future. If I stop taking the ARVs and my wife starts instead, I will die. What will happen to my family? —John, a local fisherman living with HIV/AIDS in Uganda1

With over forty million people living with HIV/AIDS around the world, access to essential medicines has emerged as an important topic for nongovernmental organizations (NGOs), public health groups, doctors, and governments—especially those working in the developing world. At the same time, a debate has emerged in the arena of U.S. trade policymaking around the role of intellectual property rights in international trade agreements. On the one hand, economists and business leaders have pushed for increased intellectual property (IP) protections to be included in trade agreements, forcing trade partners to respect and protect American IP. This, they argue, will be good for U.S. economic growth and spur innovation and research in new and better technologies. On the other hand,

NGOs, public health advocates, and developing countries’ governments have pushed back, suggesting stronger IP protections will make it harder for people to obtain life-saving drugs and other urgently needed technology. In April 2009, just four months into office, President Obama was presented with this problem as one of his first major trade decisions. Each April, the president issues a set of reports on international violations of intellectual property protections by U.S. trade partners. Section 301 of the Trade Act of 1974 authorizes the president to take appropriate action, including retaliation, against any foreign government found to be in violation of international agreements. As a result, these reports are known as “Section 301” reports. President Obama and his newly appointed U.S. Trade Representative (USTR) Ron Kirk faced a critical decision point in U.S. trade policy that could set the stage for the next four years: Would they continue the Bush administration’s policy of pressing for stronger IP protections from trade partners, or would they soften that stance in response to pressure from NGOs and developing countries? This is the key decision examined in this case study. The case proceeds first with a discussion of the domestic and international politics of intellectual property and how the World Trade Organization (WTO) and trade policy became the central battleground for IP 1

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Michael K. McDonald

politics. The second section recounts a shift in congressional power in the 2006 midterm elections and the impact of that shift on U.S. trade policymaking. Then, in the third section, the case examines Thailand’s drug licensing program—the use of compulsory licenses to override a valid patent on a critical AIDS medication— and the Bush administration’s response. These key elements set the stage for the Obama administration’s first major trade decision.

TRADE POLITICS AND INTELLECTUAL PROPERTY RIGHTS2 In the mid-1990s, when the global trading regime transitioned from the General Agreement on Tariffs and Trade (GATT) to the WTO, the mandate and purview of the world’s multilateral trading system was drastically widened. As a part of that process, negotiators at the Uruguay Round of trade negotiations (1995) crafted what has become the most significant piece of international law governing intellectual property rights: the WTO’S Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The TRIPS agreement introduced IP rules into the multilateral trade regime for the first time and, unlike most international law, the agreement is binding and enforceable. TRIPS violations can be challenged through the WTO’s comprehensive dispute settlement mechanism. TRIPS covers several aspects of intellectual property, including how to give protection to intellectual property rights, how to enforce those rights, how to settle disputes between WTO members, and how basic principles of the trading system and other IP agreements should be applied. These new rules were based on IP agreements created at the World Intellectual Property Organization (WIPO), which, until 1994, had been the central venue for international IP discourse and regulation. TRIPS protects many kinds of intellectual property, including copyright, trademarks, geographical indications, and industrial designs. Most relevant to this discussion, however, are the TRIPS rules governing patents. The agreement sets a baseline of twenty years of protection for patents and requires that patents be available for both products and processes. Countries that had never provided protection for patent owners before would now be required to do so, with develop-

ing countries allowed extra time to come into compliance with the agreement. Thus, TRIPS represents the first comprehensive and enforceable international agreement on intellectual property, and it applies to a diverse and comprehensive set of countries.3 Throughout the late 1990s, public health activists and NGOs worried that TRIPS would hurt efforts to protect public health, especially in restricting access to life-saving medicines. Their lobbying efforts culminated in a TRIPS declaration affirming the primacy of public health during the Doha (Qatar) ministerial meeting in 2001. The Declaration on the TRIPS Agreement and Public Health (Doha Declaration),4 emphasized that the TRIPS agreement should be interpreted in a way that supports public health. Its widely quoted paragraph 4 notes: We agree that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO members’ right to protect public health and, in particular, to promote access to medicines for all.5 The Doha Declaration goes on to enumerate the flexibilities built into the TRIPS agreement, and it emphasizes the use of those flexibilities to protect public health. One important flexibility in Article 31 of TRIPS, reaffirmed in the Doha Declaration, is the use of compulsory licenses. TRIPS permits all WTO members to issue compulsory licenses for pharmaceuticals, which override a patent and allow the production of a generic version of the protected drug. While TRIPS does not limit the conditions under which compulsory licenses can be granted, it does impose obligations such as fair compensation to the patent owner and a procedural requirement that the government issuing the license first attempt to negotiate lower prices or voluntary generics from the patent owner. This procedural requirement can be waived for health emergencies or public, noncommercial use of the patent. Article 31 also requires that drugs produced under a compulsory license be used “predominately for the supply of the domestic market” and not exported. Additionally, if off-

Pharmaceuticals, Patents, and U.S. Trade Policy patent generics are available from other countries, compulsory licenses allow their importation without the consent of the domestic patent holder. As legal scholar Frederick Abbott has noted, these flexibilities did create a problem for any country hoping to use a compulsory license while facing two simultaneous conditions: (1) the country lacks the capacity to produce its own generic drugs, and (2) the drug in question is under patent in all potential supplying countries. Under these conditions, TRIPS would effectively prevent compulsory licensing. This was not a problem until January 2005, when India, a major manufacturer of generic medicines, was obligated to come into compliance with TRIPS.6 At that time, access to off-patent generics for countries without domestic pharmaceutical industries dried up. Recognizing this potential problem, paragraph 6 of the Doha Declaration instructed the TRIPS Council to find a solution by the end of 2002.7 After several rounds of negotiation, the Decision on Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health (Paragraph 6 Decision) was adopted on August 20, 2003.8 The Paragraph 6 Decision, hailed as a great success by the WTO, was received cautiously by NGOs and activists because of its complexity. In the end, the decision provided a system for importing generic versions of patented drugs when a compulsory license permitted it, as long as several conditions and procedures were satisfied.9 Since the passage of TRIPS, both the United States and the European Union (EU) have responded to industry demands to increase protection for intellectual property. While the multilateral trading regime has emphasized the flexibilities present in TRIPS, the United States and the European Union have worked to close off many of those flexibilities and provide even more protection for patent owners. The United States has worked hard to get other nations and especially developing countries to accept TRIPS-plus conditions.10 They have done this in several ways, including asking for TRIPS-plus provisions during WTO accession negotiations.11 Most effectively, the United States has included TRIPS-plus language in bilateral and regional free trade agreements (FTAs), including agreements with Australia, Bahrain, Chile, Central American countries, and the Dominican Republic (CAFTA), or the Central American Free Trade Agreement, Jordan, Morocco, Oman, and Singa-

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pore.12 Some specific TRIPS-plus provisions are discussed in the following section, but each of these FTAs has included significant intellectual property clauses that go beyond the requirements of TRIPS. In each of the FTAs above, administration negotiators and the USTR faced pressure from public health advocates and NGOs to lessen or eliminate TRIPS-plus demands. Within the policy-making framework and process, however, the USTR enjoyed the support of a Republican-controlled, trade and IP-friendly Congress. Outside the Republican majority, some American political leaders, especially Democratic congressmen, voiced opposition to many of the intellectual property provisions in regional and bilateral FTAs. After the November 2006 elections, when control of the House of Representatives shifted in favor of the Democrats, many of those FTA opponents enjoyed new positions of power in constructing U.S. trade policy.

THE 2006 MIDTERM ELECTION AND A SHIFT IN POWER Since the Bush administration entered office in 2001, USTR Robert Zoellick had worked hard to restart global trade negotiations after disappointing results for the Clinton administration at the WTO ministerial meeting in Seattle, November 30 to December 3, 1999, and after Clinton’s two failed attempts to secure fasttrack negotiating authority (now known as Trade Promotion Authority, or TPA).13 With the support of a small Republican majority in the House as well as some trade-friendly Democrats, the Bush administration and USTR Zoellick narrowly secured TPA and began negotiating the Doha Round of talks in late 2001. In terms of regional and bilateral free trade agreements, several FTAs with relatively advanced countries (i.e., Australia, Chile, Morocco, and Singapore) won broad support in Congress, but Democratic opposition swelled when the Central American Free Trade Agreement (CAFTA-DR) came up for a vote in July 2005.14 Concerns over poor labor conditions and lax environmental regulations eroded the bipartisan consensus of previous FTA votes, and the CAFTA-DR agreement passed by a narrow two-vote margin, with 217 in favor and 215 opposed.15 With the shift of power to Democrats, concerns over labor, the environment, intellectual property, and

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port security began to play a greater role in administration/congressional negotiation over free trade agreements. The new majority brought key Democrats to leadership positions in the House of Representatives, including Representative Charles Rangel (D-NY), who was elevated to the position of chairman of the House Committee on Ways and Means, as well as Representative Sander Levin (D-MI), who became the top Democrat on the trade subcommittee. Joining the Ways and Means Democrats in criticizing previous FTAs, particularly the intellectual property provisions, was Representative Henry Waxman (D-CA), the new chairman of the Government Reform Committee. After the November elections, there was a general expectation that newly empowered Democrats would challenge or slow U.S. trade deals. In particular, FTAs previously signed with Colombia and Peru would come before Congress for a vote in 2007, and Democrats were expected to demand changes, especially regarding labor conditions.16 While labor was widely viewed as the central battleground, intellectual property issues surfaced. U.S. pharmaceutical companies expected IP disputes would focus on domestic rather than international agreements, especially legislation supported by Waxman (among others) to overhaul the U.S. patent system. NGOs and public health activists, on the other hand, suggested that the shift in power might present the perfect opportunity to challenge strong IP provisions in trade deals. At a strategy session on issues of trade and health, Gaelle Krikorian at the University of Paris suggested, “The new U.S. political context might be the perfect time to challenge IPR [intellectual property rights] chapters in [bilateral trade deals], not only by opposing but by offering alternatives.”17 On March 12, 2007, twelve congressional Democrats sent a letter to USTR Susan Schwab expressing concern over intellectual property provisions in recent FTAs that went beyond the protections guaranteed by TRIPS.18 Citing the Doha Declaration, as well as the 2002 Trade Promotion Authority Act, which directed the administration to adhere to the Doha Declaration as a “principle negotiating objective” in trade negotiations, the authors called on Schwab to reconsider IP provisions in U.S. bilateral and regional FTAs, particularly those negotiated with Colombia, Panama, and Peru, and in pending agreements with Malaysia, Thailand, and others.19 The letter argued:

Regrettably, recent U.S. free trade agreements appear to undermine this commitment with provisions that strip away flexibilities to which countries are entitled under TRIPS. The FTA provisions also appear to upset an important balance between innovation and access by elevating intellectual property at the expense of public health.20 The authors went on to highlight four specific IP provisions jeopardizing access to essential medicines: data exclusivity, patent extensions and “linkage,” compulsory licensing, and an absence of consumer safeguards, issues that had been discussed by Congressman Waxman and health advocates for years. Data Exclusivity Data exclusivity effectively extends patents for some drugs beyond the twenty years of protection offered by TRIPS. Many generic drugs rely on clinical test data submitted for a drug’s first (brand-name) approval, and regulatory agencies usually accept these test data for unaltered generic versions. Based on similar provisions in U.S. law, FTAs with Colombia, Panama, and Peru guaranteed at least five years of data exclusivity. Unlike U.S. law, however, the FTAs did not require caps on patent extensions, which meant developing countries could face pressure to adopt even longer periods. This means that generic drugs may not be available in developing countries, even after a patent has expired and the generics are available in the United States. As the congressional authors noted, “five years or more without a medicine priced out of reach can be severe.”21 Patent Extensions and “Linkage” The FTAs in question also extend patents beyond twenty years by requiring each country to compensate drug manufacturers for delays in the review and approval process. With scarce resources and underdeveloped regulatory institutions, delays in developing countries can be significant. In U.S. patent law, upon which these extensions are based, IP rights holders are allowed compensation for these kinds of delays, but there are overall limitations on the total duration of patents.22 However, in these FTAs there are no limitations, which means patent extensions could continue protection well beyond the twenty-year term.

Pharmaceuticals, Patents, and U.S. Trade Policy Not only do the FTAs extend patents based on regulatory delays, but they also link drug approval and patent protection by requiring the drug regulatory authority to certify that no patent would be violated by generic licenses. As the authors of the letter noted, “Such provisions put a significant burden on regulatory agencies that have neither the expertise nor the authority to enforce private patent holder rights.”23 In light of the previously discussed patent extensions for licensing delays, the “linkage” between regulation and patents could cause further delays and make generic drugs even less accessible. Compulsory Licensing Compulsory licenses allow a government to circumvent a valid patent and authorize another manufacturer to produce a vital drug at an affordable price. One key component of the Doha Declaration was to affirm each WTO member’s “freedom to determine the grounds upon which such licenses are granted.”24 Previous FTAs introduced a narrow set of conditions under which governments could issue compulsory licenses, restricting their use to combating “anti-competitive” behavior, for government use, and for use in a “national emergency or other circumstances of extreme urgency.”25 Addressing USTR Schwab, the congressional authors argued, “USTR has also refused to reference the right to compulsory licensing—or other public health exceptions— in the text of FTAs. Instead, USTR has relied upon the use of vaguely worded ‘side letters’ that are subordinate to the agreements and non-binding on the parties.”26 Absence of Appropriate Consumer Safeguards Finally, the letter highlighted an absence of fundamental consumer access provisions present in U.S. law governing generic drugs. Among missing consumer safeguards is the Bolar provision, which allows early registration of generic drugs so that they can enter the market immediately when a patent expires. In addition, FTAs lack any requirement that patent applications describe the “best mode” of reproducing an invention. Finally, there is no protection against “evergreening,” the process of repeatedly renewing patents by making only minor changes to an existing drug.27 With Waxman and others pushing hard for revisions to the intellectual property chapters of the Latin

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American FTAs, other Ways and Means leaders, and Sander Levin in particular, made labor their top concern in negotiations with USTR and the administration.28 The brand-name pharmaceutical industry, through their lobbying group, the Pharmaceutical Researchers and Manufacturers of America (PhRMA), expressed dissatisfaction with these proposed changes to IP rights. One PhRMA source indicated that his organization would oppose any changes to IP provisions in the FTAs, suggesting that such changes were “completely unnecessary” and would undermine access to medicines by decreasing incentives to produce relevant drugs.29 For their part, NGOs and health advocates pushed for even more movement against IP provisions in FTAs. On April 20, 2007, Representative Tom Allen broadly issued a “Dear Colleague” letter calling attention to several public health objectives for international trade negotiations.30 The objectives were developed by a coalition of public health organizations called the Public Health Advisory Committee on Trade, and they were originally submitted to the USTR and the Ways and Means Committee at its Hearing on the U.S. Trade Agenda on February 14, 2007. Their public health objectives for global trade included making the process more democratic; developing trade relationships that create sustainable economic development; ensuring the sovereignty of trade partners; and excluding tobacco, alcohol, and provisions that address vital human services. However, their boldest objective included: Eliminat[ing] intellectual property provisions related to pharmaceuticals from bilateral and regional negotiations, as these are more appropriately addressed in multilateral fora, and promote trade provisions which enable countries to exercise all flexibilities provided by the Doha Declaration on Public Health, including compulsory licenses for patented pharmaceuticals, parallel importation, and other measures that address high prices and promote access to affordable medicines.31 Whereas the brand-name pharmaceutical industry and a sympathetic USTR pushed for increased IP protection in the FTAs, NGOs and public health groups pushed to eliminate IP provisions altogether and

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further to include language emphasizing the need and right to make full use of flexibilities provided by TRIPS. The twelve congressmen who authored the March 12 letter appeared to be pushing a compromise that emphasized the need to include IP provisions in the FTAs without making the terms TRIPS-plus. They suggested as much in the closing of the letter, saying, “Protecting innovation is important, but the intellectual property provisions in current FTAs expand pharmaceutical monopolies without sufficient regard to consumer access and public health.”32

A DEAL IS STRUCK After months of negotiation between the administration and Congress, House Speaker Nancy Pelosi (DCA) hosted a news conference on Thursday, May 10, 2007. “Nearly 50 years ago, President John F. Kennedy advanced a new trade policy that cemented Democrats as the party of free and fair trade,” Pelosi began. “Today, we build on that tradition to announce a new bipartisan breakthrough for fair trade—where we expand opportunities for American businesses, workers and farmers.”33 Joining Pelosi at the press conference were other key players, including Rangel, Levin, and Schwab. Also present and key to the deal were Treasury Secretary Henry Paulson, who supported USTR Schwab at the negotiations; Senator Max Baucus (D-MT), chair of the Senate Finance Committee; and Representative Jim McCrery (R-LA), the ranking Republican on Ways and Means. Actors from both sides of the aisle and both branches of government praised the breakthrough agreement.34 Rangel declared that “today’s agreement signals a new direction and renewed spirit of bipartisanship.” Schwab echoed the sentiment, seeing the deal as “a historic bipartisan breakthrough.” McCrery called it a “good and fair compromise,” and Baucus suggested that “trade in America is turning a corner toward more cooperation.” The compromise reached between the administration and Congress, termed “A New Trade Policy For America,” secured for the Democrats most of what they were seeking. The Bush administration initially avoided tougher labor standards under pressure from domestic businesses fearful that strong labor provisions in trade

agreements might increase the power of U.S. labor unions. Facing tough demands from Ways and Means Democrats—especially from Sander Levin—the administration ultimately determined that tougher labor rules would have to be tolerated if a bargain was going to be possible.35 The National Association of Manufacturers (NAM), the largest industrial trade association in the United States and a long-time opponent of tough labor standards, summed up the need for compromise on labor. “This agreement reached yesterday frankly is not the trade policy that the NAM would have designed,” NAM President John Engler said. “However, it reflects political reality and compromises that are necessary in restoring the bipartisanship that has been missing from U.S. trade policy.”36 The final deal ensured that enforceable labor provisions would be included in the text of future FTAs to protect the ability of workers abroad to unionize and bargain collectively. In addition, future FTAs would be required to ban forced and child labor, as well as workplace discrimination.37 The agreement also included important compromises on environmental, government procurement, port security, and investment provisions, as well as an agreement to create a Strategic Worker Assistance and Training Initiative to assist American workers hurt by free trade.38 The May 11 agreement also provided most of what the Democrats requested regarding intellectual property provisions.39 The agreement allowed for a change in the data exclusivity provisions in developing country FTAs to allow for a “concurrent” period of data exclusivity when a drug is introduced in the United States and the foreign country at (roughly) the same time. For instance, rather than a five-year exclusivity in the United States followed by another five years in the developing country, the periods would expire at the same time. In theory, this change should prevent generics from becoming available in the United States well before they are available in developing nations. In addition, the May 11 agreement permitted an exception to data exclusivity if necessary to protect public health. Further, FTAs with developing countries would no longer require patent extensions to compensate for delays in the approval and registration process. Rather than using binding language that local regulators “shall” extend a company’s patents to make up for delays, future FTAs would suggest that patents “may” be extended. Accompanying this concession were new

Pharmaceuticals, Patents, and U.S. Trade Policy provisions stipulating that trading partners will do their best to ensure expeditious patent and marketing approval. The agreement also eliminated requirements in FTAs that regulatory agencies certify that no patents would be violated before approving a generic drug. To compensate for this change, FTAs will ask developing countries to strengthen judicial processes to ensure drug companies can protect their innovations. Finally, the USTR agreed to include a statement that nothing in the FTA would prevent a country from utilizing flexibilities in the Doha Declaration within the text of the FTA. Such statements had previously been included in side letters rather than in the FTA itself, making them nonbinding.40 Reaction to the May 11 agreement from pharmaceutical firms and NGOs was mixed. Many health advocates believed the compromise deal would do little to improve access to necessary medicines. In a joint press release by Health GAP (Global Access Project), Essential Action, and the Student Global AIDS Campaign, the May 11 deal was described as needed “first steps” to lessen the harm of U.S. trade agreements, but the groups insisted that more must be done. They suggested, “It is not true, as some accounts have suggested, that the May 11 deal will limit brand-name drug companies’ patent and related monopolies. In a best-case scenario, what the deal will do is limit the extent to which U.S. trade agreements expand brand-name drug companies’ monopolies.” They went on to suggest that “arguing about how to make trade deals ‘less harmful’ is the wrong framework.”41 James Love of public health NGO Knowledge Ecology International also welcomed the changes represented by the May 11 agreement but expressed similar concern, particularly with regard to data exclusivity. He pointed out that “any regime of ‘data exclusivity’ is objectionable, since it implicitly requires a generic competitor to replicate scientific tests on humans, a practice that is both wasteful and unethical.”42 He went on to note that the changes made to the data exclusivity provision would be minor, “at best shortening the term of exclusivity by six months, in cases where the foreign registration is based upon the U.S. registration, and occurs within six months of the U.S. registration.” In many cases, foreign registration of generics is not done within this six-month window, or the registration does not rely on the same test data used in the U.S. market-

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ing approval process. Love also expressed concern that limitations and exceptions to data exclusivity would appear only in a “poorly drafted” side letter rather than in the text of the agreement.43 The reaction from brand-name pharmaceutical firms and their lobbying group, PhRMA, was negative. Immediately following the announcement of the bipartisan deal, PhRMA president Billy Tauzin issued a statement that the trade association was reviewing the outcome of the deal and had no comment on its substance. However, Tauzin did warn, “The future innovation of medicines could be threatened if countries around the world are free to undermine intellectual property protections that create incentives for pharmaceutical companies to continue their investment in the development of new cures.”44 A few days later, Tauzin had more to say about the trade deal. He attributed the Bush administration’s need to compromise with Congress to the fact that Trade Promotion Authority was set to expire in the summer of 2007. Without a renewal of TPA, the Bush administration would have a hard time pursuing its overall trade goals: continuing to pursue regional and bilateral FTAs while attempting to restart the fledgling Doha Round at the WTO. In an interview with the Wall Street Journal, Tauzin suggested the administration “has permitted the weakening of intellectual-property protections in these agreements.” He went on to say, “They were desperate to get continuing trade authority. . . . The fact is, their leverage changed since November.”45 In the days following the May 11 deal, brand-name drug companies and the pharmaceutical industry’s lobby, PhRMA, took a neutral stance toward the Panama and Peru FTAs. There was broad understanding that the May 11 deal had ensured congressional support for the FTAs and that the pharmaceutical industry would have a difficult time stopping the trade deals from being approved regardless of the amount of resources they put into fighting them. Furthermore, even with revised IP chapters, the Latin FTAs promised to provide increased patent protection vis-à-vis the status quo in those countries. As an export-oriented industry, it would be difficult for the pharmaceutical lobby to oppose any free trade agreement, especially one with broad governmental support.46 Some observers attributed the muted response to the fact that the Bush administration had provided some key domestic victories to brand-name pharmaceuticals, such as legislation

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to stop the import of drugs from Canada.47 PhRMA appeared to focus on limiting the compromise provisions to the three pending Latin American trade agreements. There was concern that the new trade compromise might serve as a precedent for future USTR/congressional negotiations. While not denying any future implications of the May 11 agreement, U.S. trade officials noted that the compromise was “about the four FTAs that are pending Congressional approval.” Regarding IP provisions in future FTAs, the official noted, “This was not a part of our discussion with Congress, and that is just a bridge we haven’t crossed yet.”48 Throughout May and June, the USTR worked with Rangel and Levin to craft the specific legal language to be used in the pending FTAs. When they released the final text of the Panama and Peru FTAs in late June, neither the public health NGOs nor the brand-name pharmaceutical companies were happy with the compromise. For its part, PhRMA determined to stay neutral and neither support nor oppose the free trade agreements. One pharmaceutical representative complained, “It is unprecedented when you have Congress demanding that we take out things that were agreed by other countries that will hurt U.S. jobs and workers.”49 Another industry source emphasized the indebtedness of brand-name pharmaceuticals to the Bush administration, suggesting: “The White House has told the industry they have to swallow this.”50 By the end of August, PhRMA had decided not to lobby in either direction for the FTAs. Mark Grayson, a PhRMA spokesman, expressed the industry group’s frustration with the new IP provisions, which would apply to the Colombia, Panama, and Peru FTAs not but not to the U.S.-Korea agreement. On August 22, Grayson said: While we have long supported free trade in the hemisphere and still believe it’s an essential element for enhancing economic prosperity there, and believe that Peru, Colombia, and Panama are all key partners in markets that could be key centers for research and development of pharmaceuticals, our board has decided that, given restrictions to the recent agreements, we cannot support passage of the agreements.51 He went on to say, “As such, we will be spending our time trying to work in support of the Korea agree-

ment.”52 He also noted that while not supporting the deals with Colombia, Panama, and Peru, PhRMA “will not actively oppose or lobby against” the agreements.53 NGOs welcomed the improvements represented by the May 11 compromise and the subsequent changes to the Latin FTAs, but they also expressed concern that the free trade agreements would hurt rather than help gain access to essential medicines. In a joint press release on July 2, public health groups Essential Action and Health GAP lamented, “It remains the case that the Peru/Panama trade deals will leave patients worse off than they would be with no agreement.”54 The press release was not all negative, and the NGOs suggested the May 11 compromise should be the new template for future trade deals. They declared, “The days of the U.S. government trade bureaucracy reflexively carrying water for Big Pharma are coming to an end.”55 PhRMA and the firms it represents retained some increased intellectual property protection but failed to get everything they wanted: the full set of IP protections offered in previous FTAs. Likewise, public health advocates and NGOs succeeded in limiting the extent of TRIPS-plus conditions in the Colombia, Panama, and Peru deals without achieving their preferred outcome: a complete removal of IP language from the trade agreements. Congressional Democrats emerged the victor, having secured most of what they wanted in restraining TRIPS-plus language in the FTAs, perhaps demonstrating a shift in power in trade policymaking and a potential shift in American policy-making priorities. To understanding how this shift in power and subsequent compromise between Congress and the administration would affect trade policy for President Bush and then for President Obama, Thailand’s drug licensing program provides a useful test.

THAILAND’S DRUG LICENSING PROGRAM On November 29, 2006, just two months after Thai Prime Minister Thaksin Shinawatra was overthrown in a bloodless coup, Thailand’s Department of Disease Control and the Ministry of Public Health announced that Thailand would issue a compulsory license on the antiretroviral AIDS medication Stocrin (brand name Efavirenz). Thailand said it would pay a royalty fee of 0.5 percent of the total sale value to the drug’s patent

Pharmaceuticals, Patents, and U.S. Trade Policy owner, Merck. The compulsory license would be limited to two hundred thousand patients each year, and it would expire in December 2011.56 As justification for overriding Merck’s patent, Thai authorities pointed to the more than half a million people suffering from HIV/AIDS in Thailand. They said many patients could not take readily available, first-line HIV/AIDS medications because they were no longer effective or because of serious side effects. The price of Stocin in Thailand, $468 per patient per year, was over twice the price available from generic manufacturers in India.57 While compulsory licenses had been issued by other countries, including several small, developing countries, Thailand was the first middle-income country with a large HIV/AIDS population to override a patent. In January 2007, Thailand issued two more compulsory licenses, one for the antiretroviral drug Kaletra (patented by Abbott) and another for the heart medication Plavix (patented by Bristol-Myers Squibb). The Thai decisions came under immediate attack from the brand-name pharmaceutical industry as well as the United States and other western nations. Pharmaceutical firms, their lobbyists, and other observers characterized the compulsory licenses as a violation of the TRIPS agreement.58 Public health activists and NGOs defended the Thai decision as perfectly consistent with Article 31 of TRIPS and the Doha Declaration. Some observers suggested that the issuance of the compulsory license itself was a violation of TRIPS because Thailand had not declared any medical emergency, but activists were quick to point out that Article 31 provides no limitations on when a patent can be overridden. It is left up to each country to decide when to issue a compulsory license. The majority of observers, including the U.S. government and PhRMA, did not dispute this fact but instead complained that Thai authorities had not attempted to negotiate lower prices with the patent holders before issuing compulsory licenses. The language of Article 31(b) permits compulsory licenses when a country has “made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions, and that such efforts have not been successful within a reasonable period of time.” The patent holders involved complained that Thai authorities had not entered into negotiations over these drugs prior to issuing the licenses. However, Article 31 also provides a waiver of this consultation in cases of

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“national emergency or other circumstances of extreme urgency or in cases of public non-commercial use.” The Thai government claimed the latter, suggesting that the drugs would be produced by the publicly owned Government Pharmaceutical Organization (GPO) and given to patients in Thailand’s national healthcare program. Thailand’s critics challenged the notion that the licenses had been issued for public, noncommercial use. Ronald A. Cass, dean emeritus of Boston University Law School and chairman of the Center for the Rule of Law, noted that the GPO was a for-profit, state-owned drug manufacturer and that this did not fit the exception for public, noncommercial use.59 On April 23, 2007, two associates from Abbott’s law firm published an article in the Bangkok press making a similar argument. They suggested the compulsory licenses would be used for a commercial purpose. They pointed to a provision in the Thai legislation creating the GPO saying the organization carries on “business,” and they pointed to comments by Thai legislators that they expect the GPO to run a surplus that it would pay back to the government. Finally, they noted that the GPO has joint ventures with private pharmaceutical companies.60 Health activists and NGOs supported the Thai decision and argued fervently that the Thai licenses qualified as public, noncommercial use. Brook Baker from Health GAP, Sean Flynn from American University’s Program on Information Justice and Intellectual Property, and Judit Rius Sanjuan from Knowledge Ecology International noted, “The public non-commercial use language of Article 31(b) of the TRIPS agreement is focused on the ‘use’ made of the licensed product, not who the manufacturer or distributor is.”61 They went on to say, “Here, the use is clear—Thailand will only use the licensed [drugs] within its national public health insurance schemes. Indeed, Abbott will retain its exclusive rights to sell in Thailand’s small private sector where it can continue to charge its exorbitant monopoly prices.”62 In addition to supporting the claim of public, noncommercial use, health NGOs noted the years of fruitless negotiations Thailand had already held with pharmaceutical firms.63 Abbott created more waves when the firm declared it would no longer seek to register new HIV/AIDS medications in Thailand, since it was clear their patents would not be respected. This announcement engen-

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dered a storm of opposition from concerned NGOs. Brook Baker called the decision immoral and cynical, saying: A company which has been subsidized through NIH and university research for most of its discoveries, which gets huge tax breaks for its research and development expenditures, and which earns monopoly profits on all its sales in rich country markets that collectively comprise 90% of global pharmaceutical sales, now determines that it will withhold marketing of life-saving medicines when a country seeks to exercise its lawful, TRIPS-compliant rights to access more affordable generic medicines.64 Abbott later backed off of this threat, although it remains to be seen if Abbot registers and markets newly created drugs in Thailand at the same time they become available elsewhere.

U.S. RESPONSE AND CONGRESSIONAL REACTION Immediately following Thailand’s announcement in November 2006 to issue compulsory licenses, USTR Schwab and the Office of the Secretary of State put pressure on Thailand to reverse its decision. Public health NGOs then asked the U.S. government not to interfere. On December 21, 2006, 157 NGOs, activists, doctors, academics, and individuals sent a letter to U.S. Secretary of State Condoleezza Rice and USTR Susan Schwab to protest American involvement in the Thai decision. They wrote, “We are writing to express our concern that the United States Department of State and the United States Trade Representative have intervened in the decision by the government of Thailand to issue a compulsory license on patents for the AIDS drug Efavirenz, and to explain why the U.S. government should refrain from such actions.”65 They went on to say: “The U.S. government is reportedly asking the Thai government to engage in prior negotiation with patent owners before issuing compulsory licenses. Not only is this not required under the World Trade Organization (WTO) rules when the compulsory license is for government use, it is not required under U.S. law.”66 Pointing to the Doha Declaration and the success of the Brazilian gov-

ernment’s generics program, the authors offered unqualified support for the Thai decision and asked the U.S. government to refrain from “any opposition or interference with the Thai efforts to use WTO flexibilities to buy generic AIDS medicines.”67 A week later, the executive director of the U.S. division of Doctors Without Borders Médecins sans Frontières, (MSF-USA), Nicolas de Torrente, sent a similar letter (borrowing much of the same language) to Secretary Rice and USTR Schwab. Torrente also noted that in 2005 and 2006, both the World Health Organization and the World Bank predicted rising costs of medicines in Thailand and recommended the use of public health safeguards enshrined in the Doha Declaration.68 A few weeks later, on January 10, 2007, twenty-two congressmen, including Henry Waxman and Sander Levin, penned a letter to USTR Schwab. The representatives asked Schwab to respect the decision of the Thai government to issue compulsory licenses, reiterating, “Thailand’s action is entirely consistent with international trade rules.”69 The authors referred to the Trade Promotion Authority Act of 2002 and called on the USTR to respect Thailand’s right to protect public health. One week later, USTR Schwab responded to the January 10 letter, saying, “The Administration also remains fully committed to the flexibilities established within the global and national intellectual property regimes enabling countries to address effectively significant public health emergencies. As recognized in the 2001 Doha Declaration, these flexibilities include recourse to the issuance of compulsory licenses.”70 With regard to Thailand’s specific situation, Schwab confirmed that Thailand had acted legally and that the USTR’s office was not attempting to play a major role arbitrating the situation. She said, With respect to the recent announcement of the Thai Government, we have taken care to respect fully the Thai Government’s ability to issue compulsory licenses in accordance with its own law and its obligations as a member of the World Trade Organization (WTO). We have not suggested that Thailand has failed to comply with particular national or international rules. We have indicated that it would be appropriate for the Thai authorities to respond to any requests for direct discussions by concerned stakeholders, including, among

Pharmaceuticals, Patents, and U.S. Trade Policy others, the patent holder; we have not sought to insert the U.S. Government into any such discussions.71 Schwab’s response seemed to indicate an interest in keeping the U.S. government out of the issue and allowing Thailand and the pharmaceutical industry to settle the matter on their own. Congressman Waxman’s cohort was not the only set of U.S. legislators lobbying the USTR’s office on the issue. In late March, five U.S. senators—all Democrats— wrote to Schwab expressing their concern over the potential for expansion of Thailand’s compulsory licensing.72 They noted recent actions by the Thai Ministry of Public Health that demonstrated intent to expand the program. While expressing their support for addressing public health needs like HIV/AIDS, tuberculosis, and malaria, the senators worried that Thailand would use compulsory licenses as a standard government policy without consulting the patent holders: “Thailand’s actions appear to constitute a governmental policy to expropriate patents on all manner of innovative medicines not used to address urgent public health needs.”73 The authors concluded by asking the USTR to encourage the Thai government to consult with patent holders and ensure strong intellectual property protection. On March 15, fifteen members of the House reportedly sent a similar letter.74 Despite the Bush administration’s response to Congress, which seemed to keep the Thai drug issue at arm’s length, the USTR stirred up more controversy when in late April she issued the annual Section 301 report detailing countries with insufficient protection of U.S. intellectual property. The 2007 report listed forty-three countries in total, twelve of which were targeted for the Priority Watch List, the highest elevation before the USTR initiates actions against a country. Of those twelve countries, only one was not on the list the previous year: Thailand. Washington had long recognized intellectual property problems in Thailand. The country was on the Priority Watch List from 1989 to 1992 but had moved to the less serious Watch List since 1992.75 Its lone elevation signaled particular attention for Thailand and generated another round of action by concerned congressmen as well as NGOs and health activists. In her statement releasing the Section 301 report, USTR Schwab underscored the importance of intellec-

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tual property in her mind. “Innovation is the lifeblood of a dynamic economy here in the United States, and around the world,” she said. “We must defend ideas, inventions and creativity from rip-off artists and thieves.”76 Yet, in the introduction to the chapter on Intellectual Property and Health Policy, Schwab reiterated support for the flexibilities outlined in the Doha Declaration before turning to a lengthy discussion of the importance of pharmaceutical innovation. Regarding Thailand specifically, the Special 301 report noted, “Thailand will be elevated to the Priority Watch List in 2007, reflecting a concern that the past year has been characterized by an overall deterioration in the protection and enforcement of IPR in Thailand.”77 The report mentioned long-standing IPR problems with media piracy and counterfeiting, including book piracy, cable and signal theft, and software piracy. It also mentioned trademark infringement in apparel and footwear. All of these things, however, had been mentioned in previous (lower-level) Special 301 comments about Thailand. The report then highlighted new problems, saying, “In addition to these longstanding concerns with deficient IPR protection in Thailand, in late 2006 and early 2007, there were further indications of a weakening of respect for patents, as the Thai government announced decisions to issue compulsory licenses for several patented pharmaceutical products.”78 What specifically had Thailand done wrong? The report noted, “While the United States acknowledges a country’s ability to issue such licenses in accordance with WTO rules, the lack of transparency and due process exhibited in Thailand represents a serious concern.”79 Congressman Waxman, along with thirty-four other Representatives, sent a letter to USTR Schwab requesting Thailand’s removal from the Priority Watch List.80 They emphasized that since the drugs would be used for noncommercial government use, Thailand was not required by TRIPS to consult with patent holders. Notwithstanding that fact, they argued, Thailand had made efforts during 2005 and 2006 to negotiate lower prices, even going so far as to establish an interagency working group to meet with pharmaceutical companies. The congressmen pointed to Schwab’s letter from January 2007 in which she said USTR had not suggested Thailand broke any laws, a statement that now seemed in conflict with Thailand’s elevation to the Priority Watch List. “It is difficult to interpret this decision as

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anything other than retaliation for Thailand’s recent actions,” they noted. “It sends a troubling message, not only to Thailand but to the whole world, that the exercise of recognized public health flexibilities in trade obligations is frowned upon by the United States.”81 NGOs, for their part, criticized the USTR as well. Robert Weissman of Essential Action called the USTR action “outrageous, cynical, and shameful.”82 James Love called the Special 301 report “pander[ing] to a handful of trade associations and special interests.”83 Love challenged the USTR rationale, especially the meaning of phrases such as “lack of transparency” and “due process.” He argued, “If Thailand actually did something the U.S. claims is contrary to U.S. trade policy, the USTR should at least be able to explain it. . . . We should not be giving the impression to the world that U.S. pharmaceutical industry lobbyists can use USTR to settle commercial disputes, entirely outside of the framework of global trade rules.”84 Love also pointed out the fact that the United States has issued compulsory licenses several times in the past few years to give the government, military, and Pentagon access to patented and copyrighted material. His statement concluded, “The sanctioning of countries for using legitimate and important flexibilities in the TRIPS agreement brings shame to all U.S. citizens who are increasingly seen in Thailand and elsewhere as bullies and hypocrites.”85 Putting Thailand on the Priority Watch List appeared to get the attention of Thai officials, and in May 2007, Thai Minister of Public Health Mongkol Na Songkla traveled to Washington to meet with administration officials and members of Congress, as well as PhRMA President Billy Tauzin. Reflecting on his meeting with Mongkol, Tauzin said he was assured the Thai government believed compulsory licenses should be used rarely, but he said that if Thailand expanded its compulsory licensing program, the United States should consider penalizing the country.86 Further threats against Thailand were made, perhaps more discreetly, when in late May the Senate passed a nonbinding resolution sponsored by Senators Jim DeMint (R-SC), Tom Coburn (R-OK), and Mel Martinez (R-FL) that called on the USTR to use “all the tools at its disposal, including reviews of IPR compliance in trade preference programs, in dealing with IPR concerns such as the issuance of compulsory licenses.”87 The resolution was included in the Food

and Drug Administration Revitalization Act, which passed the Senate by a vote of ninety-three to one, although one source suggested many senators were unaware of the IPR language.88 Lobbying efforts continued throughout 2007, with PhRMA and the Biotechnology Industry Organization—a lobbying organization for the biotechnology industry—urging the administration to take further action against Thailand. NGOs continued to press the administration to stay out of the matter. At the same time, Thailand continued to consider an expansion of its licensing program. On June 22, 2007, Thailand created exploratory committees to consider issuing compulsory licenses for several cancer medications.89 On September 24, 2007, four of those cancer drugs were marked for voluntary licenses, and the Public Health Ministry announced it would begin negotiations with patent holders to see if they would agree to lower prices.90 By November, the cancer drug manufacturers showed signs of a willingness to bargain, and Novartis told Thailand it would offer Imatinib (one of its cancer drugs) free of charge if Thailand stopped its attempts to secure generic alternatives.91 However, in December, negotiations over the other drugs began to break down, and on January 4, 2008, Thailand announced its intent to issue compulsory licenses for four cancer drugs.92 About the same time in early February 2008, rumors in the Thai press suggested the United States was preparing a WTO case against Thailand. In response, the USTR officially denied the rumors. “Speculation about a WTO case is frankly surprising,” one USTR source said. “Any such consideration would only happen after a thorough review of the consistency of such measure with WTO rules and extensive discussion with the Thai government, neither of which has happened.”93 The rumors of a WTO case came at a time when PhRMA and the Biotechnology Industry Organization were asking the USTR to designate Thailand as a Priority Foreign Country in the 2008 Special 301 report. A designation of Priority Foreign Country, a step beyond the Priority Watch List, would lead to the USTR investigating Thai action and either negotiating an end to Thai policies or deciding what punitive action to take. If the USTR found a violation of a trade agreement or unreasonable trade discrimination, it would be forced to retaliate and take away WTO benefits unilaterally or issue a challenge in the WTO.94 Some reports in the

Pharmaceuticals, Patents, and U.S. Trade Policy Thai press in early 2008 also suggested the European Union was preparing a WTO case against Thailand, but in March EU representatives denied those allegations.95 Following Thai elections in December that returned democracy to Thailand, a new set of government officials took office in late February. On his first day, the new minister of Public Health, Chaiya Sosamsap, announced he would end the compulsory licensing of cancer drugs. He also ordered health officials to review the policy governing generic medicines in Thailand. Chaiya cited as his reason a letter from the Commerce Ministry concerned that Thailand would be designated a Priority Foreign Country by the U.S. government.96 After Chaiya made this announcement and fired the Health Ministry’s chief drug negotiator, health activists and doctors immediately called for his removal.97 Within a few weeks, Chaiya announced that the Health Ministry would in fact go forward with compulsory licenses on the three cancer drugs still in question, declaring the move would save Thailand more than 3 billion baht ($100 million) in five years.98 About the same time in early March, Chatree Banchuen, the new head of Thailand’s Food and Drug Administration, quit after just a week on the job, because he felt “uncomfortable with the politics” of the compulsory licensing situation.99 Chatree’s predecessor had been “transferred to an inactive post” the previous week by the new prime minister.100 On April 9, 2008, toward the end of the Special 301 process, twenty-seven congressmen, led by Representative Waxman, sent a letter to USTR Schwab. In it they recalled the USTR decision in 2006 to downgrade Thailand to the Priority Watch List. They also discussed Thailand’s right to issue compulsory licenses as protected by TRIPS and the Doha Declaration, and they identified a particular concern about the USTR’s interpretation of that right. The letter noted: We are concerned that the USTR’s recently released 2008 National Trade Estimate (NTE) Report on Foreign Trade Barriers inaccurately characterizes Thailand’s authority to issue compulsory licenses. The NTE states that ‘The United States acknowledges Thailand’s ability to issue compulsory licenses to address public health emergencies, subject to Thailand’s domestic and international legal obligations as a WTO member.’ In

13

fact, TRIPS does not limit compulsory licenses to ‘emergencies,’ but rather, as discussed above, permits countries to determine when they are necessary. The letter concludes by asking the USTR to reaffirm the U.S. commitment to the Doha Declaration during the Special 301 report. A few weeks later, the USTR released its Section 301 report. Its short section on Thailand began: “Thailand will remain on the Priority Watch List in 2008 due to a broad range of concerns surrounding IPR protection and enforcement.” The report mentioned piracy and counterfeiting, but focused much attention on the issue of pharmaceuticals. “While the United States recognizes the importance of Thailand’s public health challenges,” it said, “Thailand’s recent policies and actions regarding the compulsory licensing of patented medicines have contributed to continuing concerns regarding the adequate and effective protection of IPR in Thailand.” The report concluded, “The United States is awaiting further information on the new Thai government’s approach in this area and hopes to work constructively on this and other IPR issues in order to strengthen Thailand’s IPR regime.”101 Despite using language that seems to support Thailand’s right to issue compulsory licenses, the USTR continued to use the compulsory licensing program as evidence of lax IPR protection.

THE OBAMA ADMINISTRATION FACES A CHOICE Coming into office with a great deal of popularity and political capital, President Obama had little trouble getting his nominee for U.S. Trade Representative, Ron Kirk, approved by Congress. Industry organizations and activist groups began lobbying the new president and the USTR almost immediately, not least because the 2009 Section 301 report would be due just four months after the new administration took office. Despite plenty of discussion and hypothesizing about what set of priorities Obama and Kirk would pursue, the 2009 Section 301 report was the first test of those priorities. Would the new president continue Bush administration pressure on Thailand by leaving it on the Priority Watch List? Would the president instead make

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Michael K. McDonald

a clear statement about priorities by removing Thailand from the report altogether? Or would the reaction be

somewhere in between?

NOTES 1. Oxfam International, “U.S. bullying on drug patents: one year after Doha” (Oxford, UK: Oxfam Briefing Paper, November 2002). http://oxfam.intelli-direct.com/e/d.dll? m=235&url=http://www.oxfam.org/en/files/ pp021112_bullying_patents.pdf/download. 2. Much of this section relies on publicly available information on the WTO website. http://www.wto.org/english/ thewto_e/whatis_e/tif_e/agrm7_e.htm. 3. As Susan Sell has noted, the Intellectual Property Committee, throughout the decade between 1985 and 1995, included corporations such as Bristol-Myers Squibb, Digital Equipment Corporation, FMC, General Electric, HewlettPackard, IBM, Johnson & Johnson, Merck, Pfizer, Procter & Gamble, Rockwell International, and Time Warner. See Susan Sell, “TRIPS and the Access to Medicines Campaign,” 20 Wisconsin International Law Journal 481 (2001). 4. World Trade Organization, Declaration on the TRIPS Agreement and Public Health (“Doha Declaration”) (Doha, Qatar: WTO Ministerial Conference, Fourth Session, WT/ MIN(01)/DEC/2, adopted November 14, 2001). http:// www.wto.org/english/thewto_e/minist_e/min01_e/ mindecl_trips_e.htm. 5. Ibid., para. 4. 6. Frederick M. Abbott, “The WTO Medicines Decision: World Pharmaceutical Trade and the Protection of Public Health,” American Journal of International Law (April 2005): 317. 7. WTO, Declaration on the TRIPS Agreement, para. 6. 8. World Trade Organization, Decision on Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health (“Paragraph 6 Decision”) (Doc. WT/L/540, adopted August 20, 2003). http://docsonline.wto.org/imrd/directdoc.asp?DDFDocuments/t/WT/L/ 540.doc. 9. For an excellent discussion of the negotiating process and ultimate content of the Paragraph 6 Decision, see Abbott, “The WTO Medicines Decision.” 10. By TRIPS-plus, I refer to any protections for intellectual property that go beyond those enshrined in the TRIPS agreement. 11. Oxfam International, “All Costs, No Benefits: How TRIPS-plus intellectual property rules in the U.S.-Jordan FTA [Free Trade Agreement] affect access to medicines” (Oxford, UK: Oxfam Briefing Paper, 2007). http:// www.oxfam.org/en/policy/bp102_jordan_us_fta. 12. For excellent and thorough discussions of these FTAs and their TRIPS-plus provisions, see ibid.; see also World Bank, “Tightening TRIPS: The Intellectual Property Provisions of Recent U.S. Free Trade Agreements” (Washington,

DC: Trade Note 20, 2005). http://siteresources.worldbank.org/INTRANETTRADE/Resources/Pubs/TradeNote 20.pdf; Peter Drahos, “Bilateralism in Intellectual Property” (Oxford, UK: Oxfam International, 2001). http://www.bilaterals.org/IMG/pdf/Drahos_study_2001.pdf; and Carlos María Correa, “Implications of bilateral free trade agreements on access to medicines,” Bulletin of the World Health Organization (May 2006): 399. http://www.sea ro.who.int/ LinkFiles/Global_Trade_and_Health_GTH_No5.pdf. 13. Fast-track (or TPA) authority has been essential in creating multilateral trade deals. TPA ensures that any agreement negotiated by the administration will receive an up-ordown vote in Congress and cannot be amended. This guarantee is important to America’s trading partners, who wish to avoid putting effort and political capital into creating a trade deal only to have it cut up and redesigned on the floor of Congress, likely making it unacceptable or leading to more, and costly, negotiations. 14. I. M. (Mac) Destler, “American Trade Politics in 2007: Building Bipartisan Compromise” (Washington, DC: Peterson Institute for International Economics, Policy Brief Number PB07-5, 2007). http://www.bookstore.petersoninstitute.org/publications/pb/pb07-5.pdf. 15. Ibid. 16. Martin Vaughan, “Democrats Could Slow U.S. Trade Deals But May Change Little On IP” (Geneva, Switzerland: Intellectual Property Watch, November 23, 2006). http:// www.ip-watch.org/weblog/2006/11/23/democrats-couldslow-us-trade-deals-but-may-change-little-on-ip/. 17. Ibid. 18. The twelve congressmen included Reps. Henry Waxman, Jim McDermott, Tom Allen, Lloyd Doggett, Janice Schakowsky, Pete Stark, Diana DeGette, Chris Van Hollen, Barbara Lee, Earl Blumenauer, John Lewis, and Rahm Emanuel. See Henry Waxman, et al., Letter to Ambassador Susan Schwab, United States Trade Representative (Washington, DC: March 12, 2007). http://www.oversight.house.gov/Documents/20070312150354-57129.pdf. 19. Ibid., p. 1. 20. Ibid. 21. Waxman, Letter to Schwab, p. 3. 22. For instance, 35 U.S.C. § 156 limits approval delays to a single, five-year period; limits extensions to only one patent per product; and limits the total life of a patent from the time of marketing approval to fourteen years. Ibid. 23. Waxman, Letter to Schwab, p. 3. 24. World Trade Organization, Declaration on the TRIPS Agreement, para. 5(b). 25. Waxman, Letter to Schwab, p. 1.

Pharmaceuticals, Patents, and U.S. Trade Policy 26. Ibid. 27. Waxman, Letter to Schwab, p. 5. Consumer access provisions addressing each of these concerns exist in U.S. law. 28. Inside U.S. Trade, “Levin Signals No Change In FTA Labor Talks; Some See New Proposal,” March 16, 2007. 29. Inside U.S. Trade, “Democratic Labor Demands Difficult for USTR; PhRMA Rejects IPR Changes,” March 30, 2007. 30. Posting of Ellen Shaffer, [email protected], to [email protected] (May 1, 2007). http://lists.essential.org/pipermail/ip-health/2007-May/011077.html. 31. Ibid. 32. Waxman, Letter to Schwab, p. 5. 33. Nancy Pelosi, Pelosi Statement on New Trade Policy Recognizing International Labor and Environmental Standards (Washington, DC: May 10, 2007). http://www. speaker.gov/newsroom/pressreleases?id=0173. 34. Destler, “American Trade Politics in 2007,” p. 10. 35. Peter S. Goodman and Lori Montgomery, “Path Is Cleared for Trade Deals,” Washington Post, May 11, 2007. 36. National Association of Manufacturers, “NAM Seeks To Move Ahead With Trade Policy” (Washington, DC: May 11, 2007). http://www.nam.org/s_nam/doc1.asp?CID=14& DID=238632 (on file with author). 37. Ibid. 38. NAM, “NAM Seeks to Move Ahead.” 39. Inside U.S. Trade, “Congress, Administration Trade Deal,” May 11, 2007; USTR Trade Facts, “Bipartisan Trade Deal” (Washington, DC: May 11, 2008). http://www.ustr. gov/sites/default/files/uploads/factsheets/2007/ asset_upload_file127_11319.pdf. 40. Ibid.; also see Martin Vaughan, “US to Loosen Drug Patent Provisions in Some Trade Deals” (Geneva, Switzerland: Intellectual Property Watch, May 17, 2007). http://www.ipwatch.org/weblog/2007/05/17/us-to-loosen-drug-patentprovisions-in-some-trade-deals-amid-mixed-reaction/. 41. Essential Action, “Reaction from Public Health, AIDS Organizations to Democratic Leadership-Bush Administration Announcement on Trade Policy” (Washington, DC: May 14, 2007). http://www.essentialaction.org/access/index.php? /archives/81-News-Release-Reaction-from-Public-Health,AIDS-Organizations-to-Democratic-Leadership-BushAdministration-Announcement-on-Trade-Policy.html. 42. James Love, “KEI Statement on IPR/Health Aspects of Bipartisan ‘New Trade Policy’,” (Washington, DC: Knowledge Ecology International, May 14, 2007). http:// www.keionline.org/index.php?option=com_content&task= view&id=48&Itemid=1. 43. Ibid. 44. Vaughan, “US to Loosen Drug Patent Provisions.” 45. Sarah Lueck, “In Trade Deal, a Shift on Generics,” Wall Street Journal, May 17, 2007. 46. Ian Swanson, “Drug makers fear trade deal from House Dems, administration,” The Hill (Washington, DC). http://thehill.com/the-executive/drug-makers-fear-tradedeal-from-house-dems-administration-2007-05-02.html;

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Inside U.S. Trade, “Brand-Name Drug Industry Alarmed.” 47. Inside U.S. Trade, “Brand-Name Drug Industry Alarmed.” 48. Ibid. 49. Inside U.S. Trade, “FTA Template Language Delayed Over Peru Timber Provisions,” June 22, 2007. 50. Inside U.S. Trade, “Peru IPR Text Reflects FTA Template, Shows Reduced PhRMA Sway,” July 6, 2007. 51. Inside U.S. Trade, “PhRMA Will Not Back Latin FTAs, to Lobby for Korea Pact Only,” August 24, 2007. 52. Ibid. 53. Inside U.S. Trade, “PhRMA Will Not Back Latin FTAs.” 54. Robert Weissman, Asia Russell, and Brook Baker, “Comments and Analysis on Revised IP and Access to Medicines Provisions” (Washington, DC: Essential Action, July 2, 2007). http://www.essentialaction.org/access/index.php?/ archives/94-Comments-and-Analysis-on-Revised-IP-andAccess-to-Medicines-Provisions.html. 55. Ibid. 56. Inside U.S. Trade, “PhRMA Criticizes Thailand Compulsory License For HIV/AIDS Drug,” December 8, 2006; Program on Information Justice and Intellectual Property, “Timeline for Thailand’s Compulsory Licenses: Version 2” (Washington, DC: American University School of Law, March 2008). http://www.wcl.american.edu/pijip/documents/timeline.pdf?rd=1. 57. Nathan Ford et al., Sustaining access to antiretroviral therapy in the less-developed world: lessons from Brazil and Thailand, 21 Aids, S21 (2007). 58. Wall Street Journal, “Review & Outlook: Bangkok’s Drug War Goes Global,” March 7, 2007. http://online.wsj. com/article/SB117322181443628799.html?mod=opinion. 59. Martin Vaughan, “In Clash with Activists, Critics Charge Thailand Violation of Trade Rules” (Geneva, Switzerland: Intellectual Property Watch, March 19, 2007). www.ipbwatch.org/weblog/2007/03/19/in-clash-with-activists-critics-charge-thailand-violation-of-trade-rules/. 60. Peerapan Tungsuwan and William McKay, “Compulsory drug licenses violate world trade treaty,” Bangkok Post, April 23, 2007. 61. Posting by Brook Baker, [email protected], to [email protected] (April 25, 2007). http://lists.essential.org/pipermail/ip-health/2007-April/011015.html. 62. Ibid. 63. Brook Baker, “Standing Up To Abbott’s Decisions to Withhold Registration and Marketing of Life-Saving Medicines—A New Variant of Pharmaceutical Apartheid” (IP Disputes in Medicine, March 13, 2007). http://www.cptech.org/ blogs/ipdisputesinmedicine/2007/03/standing-up-toabbotts-decision-to.html. 64. Ibid. 65. ACT UP, East Bay, Oakland, CA, et al., Letter to Condoleezza Rice, U.S. Secretary of State, and Ambassador Susan Schwab, U.S. Trade Representative (December 21, 2006). http://www.cptech.org/ip/health/c/thailand/

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riceschwabthailand21dec06.pdf. 66. Ibid. 67. ACT Up, Letter to Rice and Schwab. 68. Nicolas de Torrente, executive director, Doctors Without Borders/Médecins Sans Frontières (MSF), and Paul Cawthorne, head of mission, MSF-Thailand, Letter to Condoleezza Rice, U.S. Secretary of State, and Ambassador Susan Schwab, U.S. Trade Representative (December 29, 2006). http://www.doctorswithoutborders.org/publications/ openletters/torice_12-29-2006.cfm. 69. Tom Allen, et al., Letter to Ambassador Susan Schwab, U.S. Trade Representative ( January 10, 2007). http:/ /www.cptech.org/ip/health/c/thailand/congressionalschwabletter-thailand-10jan06.pdf. 70. Susan Schwab, Letter to Tom Allen ( January 17, 2007). http://www.cptech.org/ip/health/c/thailand/letter. pdf. 71. Ibid. 72. Joseph Lieberman, et al., Letter to Ambassador Susan Schwab (March 20, 2007). http://www.keionline.org/miscdocs/liebermanplus4.pdf. 73. Ibid. 74. Inside U.S. Trade, “Brazil Threatens HIV/AIDS Drug Patent Under ‘Public Interest’,” April 27, 2007. 75. Associated Press, “Thailand to talk with U.S. about drug patents after being targeted for copyright violations,” International Herald Tribune, May 1, 2007. 76. Office of the U.S. Trade Representative, 2007 Special 301 Report (Washington, DC: April 30, 2007). http://www. ustr.gov/Document_Library/Press_Releases/2007/April/ SPECIAL_301_Report.html. 77. Office of the U.S. Trade Representative, 2007 Special 301 Report Chapter on Intellectual Property and Health Policy, (Washington, DC: April 2007). http://www.ustr.gov/ Document_Library/Reports_Publications/2007/ 2007_Special_301_Review/Section_Index.html. 78. Ibid. 79. Office of the U.S. Trade Representative, 2007 Special Report 301 Report, chapter on IP and Health Policy. 80. Henry Waxman Letter to Ambassador Susan Schwab, U.S. Trade Representative (Washington, DC: June 20, 2007). http://www.house.gov/waxman/pdfs/thailand%20letter%20to%20ustr%2006-20-07.pdf. 81. Ibid 82. Posting by Robert Weissman, [email protected], to

[email protected] (April 30, 2007). http://lists. essential.org/pipermail/ip-health/2007-April/011054. html. 83. James Love, “KEI Statement on USTR 301 List Reference to Thailand,” (Washington, DC: Knowledge Ecology International, April 30, 2007). http://www.keionline.org/ index.php?option=com_content&task=view&id=44. 84. Ibid. 85. Love, “KEI Statement.” 86. Inside U.S. Trade, “Thailand Minister Open to Talks, Considering More Compulsory Licenses,” May 25, 2007. 87. Ibid. 88. Inside U.S. Trade, “Thailand Minister Open to Talks.” 89. Program on Information Justice and Intellectual Property, Timeline for Thailand’s Compulsory Licenses: Version 2. 90. Ibid.; also see Nation (Thailand), “Four more marked for talks,” September 24, 2007. http://nationmultimedia.com/2007/09/24/national/national_30049990.php. 91. Nation (Thailand), “Four more marked for talks.” 92. Ibid. 93. Inside U.S. Trade, “USTR Not Preparing Case Against Thailand for Compulsory Licenses,” February 29, 2008. 94. Ibid. 95. Sarah Remmington, “Briefing Note: No EU WTO Challenge on Thai Compulsory Licenses” (Washington, DC: Essential Action, March 12, 2008). http://www.essentialaction.org/access/index.php?/archives/123-Briefing-Note-NoEU-WTO-Challenge-on-Thai-Compulsory-Licenses.html. 96. Pongphon Sarnsamak, “Drug Policy: Cancer patients’ lifeline—Chaiya backs down on licensing,” Nation (Thailand), March 11, 2008. www.nationmultimedia.com/2008/03/ 11/headlines/headlines_30067790.php. 97. Ibid. 98. Nopporn Wong-Anan, “Thailand will override cancer drug patents,” Thompson Reuters, March 10, 2008. http:// www.reuters.com/article/healthNews/ idUSBKK14764720080310. 99. Associated Press, “Head of Thailand’s Food and Drug Administration resigns after one week,” International Herald Tribune, March 3, 2008. http://www.iht.com/articles/ap/ 2008/03/03/asia/AS-GEN-Thailand-Drug-Patents.php. 100. Ibid. 101. Office of the U.S. Trade Representative, 2008 Special 301 Report (Washington, DC: 2008). http://www.ustr.gov/ assets/Document_Library/Reports_Publications/2008/ 2008_Special_301_Report/asset_upload_file558_14870.pdf.

Case 249

The Problems of Doing Good: Somalia as a Case Study in Humanitarian Intervention Alberto Coll Copyright © 1997 by the Institute for the Study of Diplomacy

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This case study was made possible (in part) by a grant from the Carnegie Corporation of New York. The statements made and views expressed are solely the responsibility of the author.

The Problems of Doing Good: Somalia as a Case Study in Humanitarian Intervention

A L B E R TO R . C O L L CA S E STUD Y F O R THE CAR NEG IE CO UN CI L ON ETHI C S AND INTER NAT IONAL A F FAIR S

The concept of humanitarian intervention has an ancient and noble lineage in the history of international relations. It refers to the forceful intervention in the domestic affairs of a state by another state or group of states for the purpose of stopping outrageous human rights abuses and alleviating human suffering. Medieval legal theorists such as St. Thomas Aquinas, and later international law thinkers in the sixteenth and seventeenth centuries such as Vitoria and Grotius, agreed that a prince’s right to rule undisturbed over his people could be superseded in cases where he committed egregious injustices or was incapable of maintaining basic justice, order, and human well-being as a result of natural calamities or his own moral or intellectual turpitude. In those cases, foreign princes had an obligation to intervene, by force if necessary, to uphold the basic rights of those being abused and to alleviate human suffering. This obligation was based on the idea of the common humanity of all peoples in which the entire world was a single human community ruled by basic standards of natural law and justice.

The notion of humanitarian intervention fell in disfavor in the eighteenth century as international law became progressively dominated by the notion of state sovereignty. In the conception of international law that first became prevalent in the eighteenth century and has continued down to our own time, states are seen as autonomous units with the right to exercise complete sovereignty over the people within their boundaries. Under this system, states were no longer obligated to intervene in another state to protect basic human rights. The only kind of humanitarian intervention recognized by this view of international law was in situations in which the state intervening was doing so to protect the lives and safety of its own citizens living in another state. Throughout the nineteenth century a number of European powers carried out a few of these interventions, invariably against less technologically advanced states outside European society, such as the Ottoman empire and China. As late as the 1970s, while the governments of Uganda and Cambodia engaged in wholesale slaughter and genocide that cost several million lives, the international community refused to sanction a humanitarian intervention on behalf of the peoples of either country. The suggestions by critics such as the late Senator George McGovern that the United Nations mount an 1

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effort to stop the atrocities of the Pol Pot regime in Cambodia met with little enthusiasm either in the United States or anywhere else. Third World countries were particularly suspicious of the idea, which they saw as a Trojan horse for new forms of Western imperialism and paternalism in the developing world. Eventually, Tanzania invaded Uganda and Vietnam intervened in Cambodia, thereby ousting Idi Amin and Pol Pot, respectively, and putting an end to the mass killings. But in spite of each country’s claims that it had staged a humanitarian intervention, and in spite of the worldwide relief that at last someone had done something, the international community refused to sanction the incidents, seeing them instead as self-interested actions by Tanzania and Vietnam rather than as humanitarian interventions benevolently aimed at protecting human rights and ending widespread suffering. In early 1991, with the end of the Cold War, the growth of fresh hopes for a rebirth in the United Nations’ fortunes, and the successful conclusion of the Persian Gulf War, the classical notion of humanitarian intervention underwent a dramatic revival. The first major case came in the aftermath of the Gulf War, when the United States, Great Britain, and France, with the authorization of the United Nations, carried out a humanitarian intervention in Northern Iraq on behalf of the Kurds. The large Kurdish minority in Iraq has long sought its own independent state, or at least a substantial degree of autonomy, neither of which the Iraqi government has ever accepted. When Saddam Hussein’s armies were defeated by the allied coalition in the Persian Gulf War of 1991, the Kurds grasped at what seemed an ideal opportunity to rise up in arms and achieve their dream of statehood. They were to be bitterly disappointed. Saddam had salvaged enough of his military forces from the wreckage of Desert Storm to mount a savage counterattack against the Kurdish rebels. As the Iraqi offensive intensified in its ferocity, the Western powers, however belatedly, finally stepped in and established a protected zone from which all Iraqi military forces were barred, and within which the United Nations was able to carry out extensive emergency relief activities to assist the beleaguered Kurdish population. Since Hussein had used chemical weapons against the Kurds during a similar rebellion in the 1980s, killing tens of thousands, it is not difficult to estimate that the allied/UN intervention of 1991 saved tens of thousands of lives at very low cost to the participants.

The Kurdish intervention was hailed as a harbinger of future humanitarian interventions. Interestingly, a survey of the major international law and foreign policy journals throughout the 1970s and 1980s reveals little discussion on the subject of humanitarian intervention, and whenever the subject was addressed, it was usually treated by academics and policymakers with the greatest skepticism as to its morality or practical relevance in a system of sovereign states. Beginning in 1991, however, a massive sea change took place. Scholars and practitioners alike began to admit that the end of the Cold War had created opportunities for international action of a much wider scope and of greater intrusiveness across increasingly permeable national boundaries. National sovereignty was no longer considered as rigid an obstacle, or as great a moral value, as before. Today the international consensus—which is not shared by a number of non-Western states such as China—seems to be that humanitarian intervention is legitimate as long as it meets several criteria. First, it must be sanctioned by the United Nations. Second, the purpose must be truly humanitarian: there must be a large number of lives at risk, or the human rights abuses in question need to be truly egregious. (Both of these are issues obviously subject to conflicting interpretations in specific cases.) Third, the intervention should be no more intrusive and last no longer than necessary for the international community to accomplish its humanitarian objectives.

SOMALIA AND THE BUSH ADMINISTRATION On December 4, 1992, President George Bush, recently defeated in his reelection bid by Arkansas Governor Bill Clinton, announced his decision to send over 20,000 U.S. troops to Somalia. The purpose of this military force was to insure that the large amount of food being donated to the Somali people by the international community would reach its intended beneficiaries. There was widespread fear among international relief organizations and the United Nations that large numbers of Somalis were on the verge of starving to death. The country was wracked by civil war, and the various rival groups struggling for power were keeping much of the international aid from reaching its final destination points. Unless military force was used to reopen seaports, roads, and the main airport at Mogadishu, and to

The Problems of Doing Good convoy the food supplies throughout the country, the famine would take a devastating toll. The American contingent, assisted by much smaller forces from other countries, would be under the command of a senior U.S. military officer and would operate in support of ongoing relief efforts by the United Nations and a number of nongovernmental international humanitarian organizations (NGOs). The president’s decision to use American military force for such a seemingly worthwhile objective was widely applauded around the world and within the United States. Thus began Operation Restore Hope. The president’s decision to send American troops to Somalia was surprising to those who in the previous two years had urged the administration, in vain as it turned out, to intervene in places of greater national interest to the United States than Somalia. In the spring of 1991, for example, Saddam Hussein, then staggering from the destruction of most of his army in Operation Desert Storm, had begun to massacre thousands of rebellious Shi’is and Kurds. In spite of repeated pleas for help, the United States did not move against Saddam for several weeks. When it finally did so, it limited its intervention to the imposition of a ban on Iraqi military aircraft in southern Iraq and the establishment of a protected zone in the northwestern Kurdish region of Iraq. A few months later, war in the former Yugoslavia broke out, and the United States refused to intervene. By late spring of 1992, with all of Europe concerned about the Serbian military onslaught against Croatia and the Muslim regions of Bosnia–Herzegovina, and despite such distinguished critics as Margaret Thatcher and former Secretary of State George Shultz urging vigorous American political and military efforts to end the conflict before it further damaged the fabric of European stability, the Bush administration took the position that this was a crisis beyond the capacity of American power to resolve at a reasonable cost, and that it was up to the Europeans to take the lead in resolving it. In the summer and fall of that year, Democratic presidential nominee Bill Clinton highlighted George Bush’s inaction as illustrative of the president’s alleged passivity and moral insensitivity. Why, then, did President Bush decide to intervene in Somalia? In the days of the Cold War, Somalia had been of some importance to the United States because of its geographical position astride the Horn of Africa. As the Soviets consolidated their hold over Ethiopia in

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the late 1970s, their relationship with Somali dictator Siad Barre deteriorated. In 1977, much to the United States’ elation, Barre expelled all Soviet advisers, and in 1980 he offered the U.S. Navy use of the port of Berbera in exchange for American arms and financial aid. Washington received another indirect benefit. Barre continued to support the Eritrean secessionist guerrillas in Ethiopia, which were creating serious difficulties for the Soviet-supported Ethiopian regime. Barre was overthrown in January of 1991 at the same time the Cold War ended. For a short time, Somalia seemed to disappear from the map of America’s strategic interests. The country became engulfed in a bloody civil war as different factions struggled to gain control. By late 1991, the civil war had begun to seriously disrupt the country’s food production. Over a million Somalis became displaced from their homes and famine began to spread. By early 1992 conditions had become so serious that the United Nations, along with a host of international nongovernmental organizations, was carrying out a massive famine relief effort. In the United States, newspapers and the Cable News Network (CNN) were carrying daily stories showing dramatic photographs of starving children with bloated bellies and emaciated bodies. By the summer, the dead count had passed the 200,000 mark and was still rising.1 On August 15, shortly before the Republican National Convention, President Bush, then trailing Bill Clinton in the polls by a wide margin, decided to step up American support for the famine relief efforts of the United Nations and various other international charitable organizations. The United States would increase the amount of food it was donating and would provide different kinds of technical and logistical support to insure the food was widely distributed once it reached Somalia. The new American measures, however, turned out to be insufficient to stop the famine. The key problem was Somalia’s political and military chaos. Central governmental authority had ceased to exist. The country had broken up into a series of fiefdoms controlled by rival warlords. Getting food shipments to various parts of the country required massive bribes to secure the permission of the roving militias and armed groups in control of those territories through which the food had to pass. In many cases the warlords outright obstructed the food shipments, trying to seize the food for their army’s use or for sale in the black market, or simply to deny it to their enemies.

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In addition, the civil war had taken a severe toll on the country’s roads and bridges. The ports and the major airport in the capital of Mogadishu were often shut down as a result of military violence. By late fall of 1992 it was obvious that the famine was continuing. Even though the volume of food entering the country had risen from 20,000 to 37,000 metric tons per month between September and November, the amount of donated food reaching those in need had declined from 60 to 20 percent.2 The United Nations warned that unless more drastic measures were taken, many Somalis would die within the next six months. In Washington, a number of officials began to think an American military intervention might be the best step to take, given the scale of the problem. At the same time, President Bush began to turn his full attention to Somalia after a disappointing defeat to Bill Clinton in the November election. He wanted to end his presidency on a high note. Foreign policy had always been George Bush’s strength, and indeed the president intended before leaving office to complete a major arms control accord with Russia that would remind the world and future historians of his key contribution, as he saw it, to ending the Cold War between the superpowers. UN Secretary-General Boutros Boutros-Ghali had made it clear to the president that he wanted to see the United Nations mount a major effort, with substantial American military support, to break the logjam of food distribution in Somalia. During the second week of November, the president instructed his senior advisers to prepare a set of policy options for dealing with the Somalia crisis, indicating that he wanted to put an end to the famine. Certainly it should be possible to bring American power to bear to save innocent lives at a reasonable cost to the United States. At the Pentagon, word arrived in mid-November that the president was serious about an American military intervention in Somalia, and the main question became what form it should take. On this issue there was a difference of opinion between the military and the civilian staff in the Defense Department. The military staffers were led by the chairman of the joint chiefs of staff, General Colin Powell. Born in Brooklyn of West Indies immigrant parents, Powell had risen by dint of hard work and unparalleled political skills to become the first African-American to occupy the highest post in the U.S. military. As with many other Vietnam veterans, his service in that disastrous war had been the key for-

mative experience shaping his professional outlook. The chief lesson Powell had carried from Vietnam was the need to avoid entangling the American military in wars that lacked popular support, and the requirement that, if the military was sent to war, it should be sent with all the massive strength necessary to win decisively and quickly. In the year following the 1991 war against Iraq, Powell had capitalized on the success of the American military to institutionalize his views through what became known in the Pentagon as the Powell Doctrine. A restatement of the earlier Weinberger Doctrine (1984), which Powell had helped to draft in his capacity as secretary of defense Weinberger’s military assistant, the Powell Doctrine stated that the United States should employ combat troops only (1) if vital American interests were at stake, (2) it could achieve a clearcut victory, and (3) military power was employed with overwhelming force. While the war against Iraq was an example of this use, a humanitarian intervention in the murky political complexities of Somalia was not. For months, Powell and his senior staff had been quietly lobbying against a U.S. military intervention in Somalia. On the civilian side, the outlook was somewhat different. The principal policy adviser to Defense Secretary Cheney was Paul Wolfowitz, a thoughtful official who, after receiving his Ph.D. from Cornell in 1967, had taught at Yale and subsequently entered public service as a young intern, quickly gaining the attention of Paul Nitze, and rose through successive Democratic and Republican administrations to become the third-highest ranking civilian in the Pentagon. Out of intellectual conviction, Wolfowitz kept his focus on what he considered the key strategic problems facing the United States in late 1992: strengthening NATO at a difficult time of uncertainty over the alliance’s future and the increasing disagreements over Bosnia, encouraging Russia and Ukraine to reduce their nuclear arsenals while maintaining tight control over them, and keeping a set of dangerous regional rogue states such as Iraq, Iran, and North Korea in check. In Under-Secretary Wolfowitz’s set of priorities there was little room for Somalia. When word arrived that the White House expected imminent serious action on Somalia, Wolfowitz passed the tasking to two offices in his staff: the deputy assistant secretary of defense for international security affairs, Africa (ISA-Africa) and the assistant secretary

The Problems of Doing Good of defense for special operations and low-intensity conflict (SOLIC). In the large bureaucratic battles of late 1991 and early 1992 over future U.S. military strategy and force structure, these two offices had been largely on the sidelines. Now their hour had come. While SOLIC had been repeatedly a strong advocate of using American special operations forces in various parts of the world in missions of broad military support to U.S. diplomacy, the position it took regarding Somalia was surprisingly conservative. Somalia was not important to U.S. interests. Thus, any commitment of U.S. resources should be limited. If American troops had to be used in a humanitarian intervention, they should be used in support of a broader UN operation in which the United Nations, not the United States, should bear the risks and pay any political costs that might accrue. A high-profile U.S. military intervention with the United States in the lead was inappropriate given Somalia’s low ranking in America’s strategic priorities. Ironically, it was General Powell who did the most to sink SOLIC’s proposed policy option and ensure that the American intervention in Somalia would be a solo effort, with the United States taking the lead and most of the potential risks. If the U.S. military was to be involved in Somalia and the politically sensitive general knew that George Bush had decided as much it would come as close as possible to the overwhelming force model favored by Powell. The notion of placing American combat forces under UN command was distasteful to Powell, who had little confidence in the United Nations’ ability to perform military operations competently, much less to safeguard American lives in the same way a U.S.-led and U.S.-commanded force would. For Powell, unlike for the civilians at SOLIC, Somalia was an all-or-nothing affair. Either the United States should not intervene (the general’s preferred alternative), or if it did it should do so on a large scale so as to accomplish its putative mission as bloodlessly and as quickly as possible and then get out. Powell’s view was shared by the theater commander, General Joseph Hoar, commander in chief of the Central Command, who would have overall responsibility for directing the military intervention. Within the Pentagon, Powell’s standing was so high, and his political prestige and capital so immense, that his victory in the bureaucratic battle over the shape of the Somalia military intervention came as no surprise to anyone. Certainly, the general enjoyed the well-

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earned confidence of both the secretary of defense and the president, the latter having become particularly fond of his counsel. The die was cast. As the massive force began to land in Somalia on December 9 under the incongruous glare of the lights of television cameramen who had gathered on the beaches to film the historic event, the Bush administration went out of its way to indicate that this was a limited humanitarian intervention. The American forces were there to make sure that the food reached the hungry. Once they accomplished this objective, the troops would be withdrawn and the mission would be turned over to the United Nations. In comments to journalists, National Security Adviser Brent Scowcroft hinted that he expected some of the U.S. troops involved would be returning home by January 21, the date of Presidentelect Clinton’s inauguration, or shortly thereafter, and though Secretary Cheney and General Powell distanced themselves from any such optimistic assessments, they insisted that this would be a mission limited in both its scope and duration. International and domestic support for Bush’s decision was overwhelming and included the strong endorsement of President-elect Clinton and the Congressional Black Caucus. Yet, there were a few dissenting voices, though at the time no one paid much attention to them. On December 1, several days before the intervention began, Smith Hempstone, U.S. ambassador to Kenya and a seasoned observer of African affairs, sent to Washington a long cable opposing the intervention. Hempstone was pessimistic about the prospects for success of a humanitarian intervention in Somalia. He believed that the efforts to end the famine would be no better than a temporary palliative. The rival factions would return to all-out civil war as soon as the international forces withdrew from the country. As for the intervention being a catalyst for producing longlasting economic and political reforms in Somalia, Hempstone had little hope of that happening. Somalia was simply too backward, and too dominated by semifeudal social traditions in which the highest allegiances were to oneself, to one’s family, and to one’s clan, in that order of priority, with the nation-state occupying a rather distant place in the average Somali’s affections and loyalties. Once the United States stepped into the morass of the Somali civil war, Hempstone warned, it would find it difficult to extricate itself. In somewhat injudicious language that had the unfortunate effect of

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lessening the power of his arguments, Hempstone wrote that Somalia would prove to be “a tar baby” that the United States would be unable to hand over to someone else. Elsewhere, one of America’s most celebrated diplomats and scholars of foreign affairs, George F. Kennan, had written in his diary on December 9 that the Somalia operation would turn out to be a dreadful error of American policy.With cool logic, he reasoned that The situation we are trying to correct has its roots in the fact that the people of Somalia are wholly unable to govern themselves and that the entire territory is simply without a government . . . this dreadful situation cannot possibly be put to right other than by the establishment of a governing power for the entire territory, and a very ruthless, determined one at that. It could not be a democratic one, because the very prerequisites for a democratic political system do not exist.3 In his diary reflections, Kennan raised another important set of ethical issues: given the United States’ massive budget deficits—which would have to be paid for by future generations of Americans—and its inability to address adequately its domestic human and social needs—particularly in America’s decaying cities—was it morally appropriate to pour several billion dollars into faraway Somalia? These questions certainly had to be part of the moral calculus by which the United States needed to assess whether or not it should intervene in Somalia. Yet, as Kennan noted, no one was asking these questions, certainly not in the White House, Congress, or the news media, all of which seemed to be caught up in a fever of humanitarian enthusiasm. Had Kennan published his gloomy reflections instead of keeping them to himself, he would have seemed like a modernday Scrooge to the American people and the first family, all of whom received much cheer that Christmas from the images of young American soldiers diligently alleviating the hunger pangs of millions of Somalis.

THE CLINTON ADMINISTRATION When Bill Clinton took the oath of office on the steps of the Capitol on January 21, 1993, the humanitarian mission was not over, and the process of bringing the

troops home had not yet begun. Indeed, American troop strength reached its peak of 25,000 that month. The process of clearing the political and physical obstacles to the relief effort and distributing the food supplies was taking longer than anticipated. Yet, success, as measured by the number of Somalis being fed and the quickly receding prospects for mass famine, was at hand. By late February it was clear that the mission, as narrowly defined initially, was about to end. It was at this point that policy discussions in Washington became complicated. The Clinton administration was divided on what to do next. On the one hand, the senior military leadership, including General Powell, believed that the United States should withdraw as quickly as possible and hand over the reins to the United Nations force then being assembled for the purpose of restoring some political stability to Somalia, UNOSOM II. According to this viewpoint, any American troops remaining in Somalia after the hand-over to the United Nations should be few in number and should play a supporting rather than a leading role. On the opposite side of the debate was a growing number of political appointees in the State and Defense Departments, supported by the career Africa region experts at the State Department and large segments of the press, who believed that now that the U.S. military was in Somalia, it should go beyond the narrow task of providing emergency relief and engage in a substantial degree of “nation-building”—the process of reconstructing Somalia’s shattered political and economic infrastructure. It would be a great pity, they argued, if not an outright tragedy, if the United States, having already spent large amounts of money and political energy alleviating the famine, were to leave Somalia without addressing some of the root causes of the instability and violence that had brought about the famine in the first place. Only after Somalia was on a course toward political reconciliation and economic stability would the United Nations be capable of taking over the task of reconstruction from the United States. It is important to point out that even though the advocates of immediate withdrawal seemed to carry the day—the United States handed over its mission to UNOSOM II on May 4—the underlying sentiment that favored a more thoroughgoing American involvement in Somalia’s internal political and economic affairs than the Bush administration had considered remained an

The Problems of Doing Good immensely powerful force in shaping subsequent American policy. Indeed, this sentiment was to guide efforts by the Clinton administration as it worked to support UNOSOM II from March 1993 on. After taking over from the Americans, UNOSOM II began to run into problems for a number of reasons. First, its political objectives were both highly ambitious and ill-defined. In late March, the UN Security Council, with the full support of the Clinton administration, had passed Resolution 814 setting forth UNOSOM II’s mandate. Its goals were no less than the economic rehabilitation of Somalia . . . to help the people of Somalia to promote and advance political reconciliation, through broad participation by all sectors of Somali society, and the reestablishment of national and regional institutions and civil administration in the entire country . . . the restoration and maintenance of peace, stability, and law and order . . . [and the creation] of conditions under which Somali civil society may have a role, at every level, in the process of political reconciliation and in the formulation and realization of rehabilitation and reconstruction programs.4 Given the giant scale of Somalia’s political and economic troubles, and the almost feudal condition of its institutions, not even the most ardent advocates of “nation-building” would be able to agree on the precise point at which UNOSOM II could consider that it had achieved success. Promoting Somalia’s transition toward political reconciliation was a case in point. Did this objective, hazily defined as it was, encompass merely the end of hostilities between warring factions in the country? Or did it also embrace reviving the old system of clan assemblies, in the hope that it would produce a national leadership acceptable to most Somalis? How far should UNOSOM II interfere in these processes? How should UNOSOM II relate to the warlords, most of whom saw themselves as representing large clans within the country and therefore as entitled to a large share of power if not the preeminent position of political power in the country? Should UNOSOM II simply prevent any renewed outbreaks of large-scale violence, or should it go further and disarm the warlords, by force if necessary? Although similar quandaries confronted UNOSOM II in the field of economic policy, it was in the political and military arena that

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UNOSOM II was most vulnerable to incoherence. Not only did the Clinton administration not attempt to clarify UNOSOM II’s objectives, but in its own internal debates and in its policymakers’ guidelines for supporting UNOSOM II, the administration, dominated by those who wanted to see Somalia reconstructed, showed an equal degree of conceptual confusion. In addition to objectives that were at best unclear and at worst overly ambitious, UNOSOM II faced a classic “Lippmann gap” between its goals and the military and economic resources available to implement them. The sums of money pledged by United Nations’ members to UNOSOM II’s work, large as they were, were insufficient for the enormous task at hand. Militarily, the UNOSOM II force was far weaker than the American contingent had been, and was hobbled by the typical problems facing UN military operations: an awkward command structure, a multiplicity of national sub-commands below the UNOSOM II command level, and sharp disagreements among UNOSOM II members about the operation’s military objectives and strategy. To these were added substantial shortfalls in mobility and heavy firepower. All of these problems were particularly worrisome given UNOSOM II’s ambitious agenda and the likelihood that in order to implement it, UNOSOM II might have to take on some of the warlords, a number of whom were heavily armed, had years of military experience, and knew the country’s terrain well. During the five months of their preliminary mission, the Americans had avoided conflict with the warlords by combining their superior and unquestionable military strength with a policy of talking and negotiating with the warlords whenever any difficulties arose. The American commander on the ground, Marine General Robert Johnston, was a veteran of the ill-fated 1983 Beirut “peacekeeping” mission. So was his political counterpart, Ambassador Robert Oakley, the U.S. special envoy to Somalia. They were determined not to get the United States entangled in Somalia’s civil war, and to avoid any appearance that they were favoring one faction over another. Given that their objective was simply to feed the starving, the Americans’ policy made sense and was a replay of the old Teddy Roosevelt adage, “speak softly and carry a big stick.” Perhaps inadvertently, and certainly unavoidably, given its limited resources and broad agenda, UNOSOM II began to move in the opposite direction shortly after it began

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operations, uttering rather ambitious rhetoric but carrying an inadequate stick to back it up. By then, General Johnston and Robert Oakley had left Somalia, and their places had been taken by Jonathan Howe and Robert Gosende, neither of whom had the same degree of sensitivity to the pitfalls of intervening in civil war situations. UNOSOM II’s presence and its agenda soon were perceived as a threat by some of the warlords, especially those who were strong enough to hope that, were UNOSOM II out of the way, they would gain power. Notable among these was Mohamed Farah Aideed, a shrewd, charismatic Somali politician and clan leader. Married four times and the father of fourteen children, Aideed had grown rich from extortionist activities he had carried out in connection with the 1992–94 famine and the international relief effort. During Siad Barre’s 21-year dictatorship, Aideed had been a political prisoner for several years. Barre later pardoned him and sent him to India as ambassador, hoping to co-opt him or at least him keep him at a safe distance. In 1990, as the dictatorship began to crumble, Aideed took up arms against Barre, and of all the warlords was the most effective militarily in helping to push the dictator out of the country and keep him from returning. Aideed considered himself entitled to lead the country, and he had amassed substantial military forces both inside and outside of Mogadishu. Aideed calculated, with good reason, that the further UNOSOM II succeeded in implementing its “nation-building” agenda, the less likely he would be to gain control of the country and the greater the risk that one of his rivals would. In May of 1993, he launched a virulent nationalist political campaign designed to persuade Somalis that UNOSOM II was bent on returning Somalia to colonial status and that it was time for the UN forces, including its small contingent of Americans, to depart from the country. His suspicions toward the United Nations were inseparable from the deep ill will he harbored toward its secretary-general, Boutros Boutros-Ghali, who, as Egypt’s foreign minister a few years earlier, had been, in Aideed’s view, excessively supportive of the corrupt and tyrannical Siad Barre. In response to the inflammatory rhetoric emanating from Aideed’s radio station, Radio Mogadishu, UNOSOM II decided to shut it down. Before doing so, it notified Aideed that it was sending teams of peacekeepers to inspect several of his weapons storage sites.

On June 5, 1993, a team of Pakistanis, after inspecting the storage site located at the radio station, was attacked by Aideed’s militia, the SNA. The violence soon spread into a city-wide rampage that left 24 Pakistani soldiers dead and scores injured. There was now a direct military conflict underway between UNOSOM II and the country’s most powerful warlord. It was at this point that a prominent retired U.S. navy admiral, serving as special representative of the UN secretary-general to Somalia in his capacity as a private citizen, began to play a role that was to enmesh the United States further into UNOSOM II’s growing difficulties. Admiral Jonathan Howe had served his country with distinction as a naval officer for three decades. Before joining UNOSOM II, Howe had served as deputy national security adviser to President Bush and had been closely involved in the Bush administration’s decision to intervene in Somalia. Widely known as a “hard charger” who got things done when no one else could, Howe was extremely well connected in Washington throughout both the civilian and military bureaucracies. Shortly after taking the UNOSOM II job in the spring of 1993—with the full blessing of the Clinton administration—he began to use his extensive connections and his intricate knowledge of America’s military capabilities to lobby for a more vigorous American involvement in Somalia in support of the troubled UNOSOM II operation. Senior officials at the highest levels in the National Security Council, the State Department, and the Pentagon received frequent calls from Howe at all hours of the day and night requesting more American resources for UNOSOM II. By late June, with the Pakistani soldiers dead, Aideed in full open defiance, and his supporters roaming through the streets of Mogadishu, it was clear to Howe that UNOSOM II was in danger of collapsing unless the United States acted energetically to prop it up. Howe also worried that the contingent of American forces remaining in Somalia was becoming increasingly vulnerable to the spreading violence and might suffer an attack from Aideed similar to the one that ended in the loss of Pakistani lives. On June 17, after a bloody melee between Aideed’s SNA and UNOSOM II forces, Howe forsook whatever possibilities might have remained for negotiations with Aideed by issuing a warrant for his arrest and offering a $25,000 bounty for his capture. He also began to ask persistently that the United States send the famed Delta Force to Somalia to help

The Problems of Doing Good UNOSOM II capture Aideed. (Delta is a highly classified, superbly trained U.S. special counterterrorist unit.) In the Pentagon, Howe’s request met with considerable ambivalence. While the senior special forces commanders were eager to see the Delta Force sent into action, General Powell and much of the Joint Chiefs were leery of the considerable political and military risks involved. On the civilian side, the SOLIC office once again counseled restraint, reminding senior decision makers that Delta was a powerful and lethal military instrument inappropriate for this case, given the political uncertainties of Somalia and the limited nature of American interests at stake there. The new under-secretary for policy (and successor to Paul Wolfowitz), Ambassador Frank Wisner, agreed for the time being with SOLIC’s assessment that Delta should not be sent, even though he had been pushing for months for a more activist U.S. effort in Somalia. A brilliant foreign service officer who had served as ambassador to Egypt and later as under-secretary of state, Wisner had moved over to the Pentagon in late January of 1993 with an activist agenda. He was a strong believer in U.S. engagement in the Third World and the value of the United Nations to American interests in the post–Cold War world. As a young foreign service officer, Wisner served in Vietnam alongside Anthony Lake, who was now President Clinton’s national security adviser. Unlike many of his contemporaries, he gained in Vietnam a good deal of respect for the American military, particularly the Special Forces. Wisner was one of the senior Washington officials whom Howe contacted regularly from his Mogadishu post. While Wisner was reticent to back the use of the Delta Force to hunt down Aideed, he did agree with Howe on the need for more active American political and military support for UNOSOM II. As early as April, he had been mulling over the use of U.S. special operations forces to help disarm the warlords and destroy some of their large weapons stockpiles. By late June, he was warning the somewhat indecisive secretary of defense, Les Aspin, that the failure of the United Nations in Somalia would deal a severe blow to America’s national interest. The UN’s future potential as a useful peacekeeping organization was at stake. Failure in Somalia would spell an end to U.S. efforts to use the United Nations in crises which, though not significant enough to merit direct American involvement, were

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nevertheless sufficiently important to require active resolution. The month of July saw unremitting escalation of the military conflict between UNOSOM II and Aideed, with the United States using its small but powerful remaining contingent in Somalia—the Quick Reaction Force—in increasingly heavier strikes against Aideed as part of the Clinton administration’s strategy to bolster UNOSOM II. A major threshold was crossed on July 12 when the Quick Reaction Force, without any warning, carried out a devastating raid against Aideed’s command post. The military operation had been approved all the way up the chain of command to the White House and UN headquarters in New York. The helicopter gunships fired sixteen missiles into the compound, killing a number of prominent Aideed supporters and SNA leaders. The International Committee of the Red Cross put the Somali casualty figures at 54 killed and 161 wounded.5 In the wake of the raid, a top aide to Aideed warned that “there was no more United Nations, only Americans. If you could kill Americans, it would start problems in America directly.”6 Following a number of SNA attacks in early August that killed several American soldiers, President Clinton on August 22 secretly ordered the Delta Force to Somalia, augmented by the equally legendary Army Rangers. Once more, another Rubicon was crossed: the United States had again decided to stake its international reputation and the credibility of its elite military forces in a direct challenge to a minor Third World warlord. There was high confidence in Washington that Aideed would be the loser in this gambit. As in Vietnam, the United States was unable to translate its overwhelming technological superiority over ragtag forces into either a military or a political victory. With impressive skill and daring, the special forces searched for Aideed constantly, but he always managed to stay just a step ahead of them. His numerous sympathizers kept him well-informed of the special forces’ whereabouts and movements. He avoided radio communication to prevent interception of his messages. They never captured him. An intelligent man who, unlike Saddam Hussein, knew the United States well as a result of having spent considerable time living there, Aideed figured that the United States might tire of the whole enterprise if he could raise the political costs to them just a bit. After all, precisely because Somalia was not important to the United States, a few

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well-placed blows might induce the Americans to give up. By now, the U.S. Congress, including many Democrats, had become restless with the inconclusive and escalating Somalia operation. Besides, the president, still only eight months in office, seemed uninterested in foreign policy and uncomfortable with its details, thereby providing a tempting target for his Republican adversaries. As congressional opposition began to mount, a number of thoughtful critics in and outside Capitol Hill began to ask whether the administration had any exit strategy for Somalia, any notion of when and under what conditions it was prepared to bring to an end the U.S. intervention. The administration’s responses to these queries were less than reassuring. In various fora, the president and his secretary of defense argued that the situation was improving, that America could not be seen as retreating, and that the United States would be able to fulfill its mission and bring its forces home in the near future. Revealing how little he understood what the American forces were doing, or perhaps in a deliberate effort to tap into the American people’s humanitarian impulse even at the cost of misleading the public, the president kept insisting that the central purpose of the U.S. forces was to feed the starving, even though by then the famine had been over for several months. By late September, the U.S. special envoy to Somalia, Robert Gosende, had begun to reconsider the wisdom of the policy of waging war against Aideed, and submitted to the State Department a recommendation that the policy be changed to one of dialogue and negotiations. Unfortunately, however, the wheels of the State Department and National Security Council bureaucracies moved too slowly. On October 3, tragedy struck. A U.S. special forces team swooped down by helicopter on a Mogadishu building to arrest several prominent Aideed lieutenants who were in hiding. Within a few minutes, the special forces had rounded up the suspects and were ready to carry them away, the operation an apparent success. But by then, word of the raid had spread and hundreds of armed Aideed sympathizers, mixed with large numbers of women and children, began to gather around the building. They fired their weapons at the Americans, shooting down the helicopters that were hovering above the building preparing to take away the Americans and their prisoners, and trapped the U.S. force in a small area with the

intention of killing them. In the ensuing battle that lasted several hours, the handful of American troops killed over 300 of Aideed’s militia and wounded some 1,000, including a large number of women and children who were part of the crowd. The besieged American team was eventually rescued, but not before losing eighteen soldiers. Like the Tet offensive of 1968, the battle was a military victory for the United States but a political defeat. Pandemonium broke out in Washington. A beleaguered and exhausted secretary of defense was called to testify immediately before a congressional committee and set off a firestorm of outrage when, in an uncharacteristic outburst of genuine humility, he asked the congressmen their opinion of what American policy toward Somalia should be. To make matters worse, some Pentagon sources leaked the story that several weeks earlier the U.S. field commander in Somalia, General Montgomery, had requested heavy armored vehicles to protect the American forces but Aspin had turned down the request because of concerns that sending the heavy equipment might alarm Congress unduly by feeding suspicions about further escalation. In fairness to Aspin, none of his military advisers at the Pentagon, including General Powell, had been particularly adamant about the need for the vehicles. The secretary’s military advisers had not given him an accurate idea of the serious risk to which the American forces were exposed in Mogadishu, and thus it was understandable that he had decided the matter as he did. But now that a debacle was in the making, not one of Les Aspin’s advisers—or for that matter not even his superior, the president—stepped in to his rescue. He was allowed to twist slowly under withering congressional and media fire, the clear scapegoat for a disaster to which many others had contributed. To his credit, Aspin took most of the blame on himself, unfair as that may have been. With his credibility and reputation in tatters, he was to resign a few months later from the job to which he had aspired all his life, and in which he had lasted less than eleven months. He would die a broken man less than two years later. A few days after the October 3 debacle, President Clinton, eager to cut his mounting political losses, announced that the United States would withdraw its military forces from Somalia within a few months. There were no preconditions attached. Two weeks later, UNOSOM II opened negotiations with Aideed.

The Problems of Doing Good By the spring of 1994, the United States had withdrawn most of its remaining forces from Somalia and the other states participating in UNOSOM II had begun to pull out their troops. Surrounded by cheering throngs of supporters, Aideed entered Mogadishu triumphantly on May 20. The last UN forces left the country under protection of the U.S. military in March of 1995. Aideed, however, proved unable to consolidate his power, and the civil war continued. In August of 1996, in the course of a military skirmish with one of his rivals, he was mortally wounded and died a few days later. While there was no famine in the country, peace seemed as elusive as ever.

THE MORAL DEBATE From the United States’ perspective, after spending $2 billion on military operations alone, exclusive of the nonmilitary aid donated to Somalia, and with a total of 30 Americans dead and another 175 wounded, was it worth it? The answer to this question runs across a wide spectrum of opinion. On one end are those best described as interest-driven realists who argue that, no matter how powerful the United States is, and no matter how broad and global its interests are, its economic and political resources are still limited, and therefore it needs to choose carefully where and to what extent it becomes involved in the numerous crises dotting today’s world. For example, the significant sums of money that the Defense Department spent on Somalia came out of some other account in the Department’s budget; some important program had to be downgraded or sacrificed altogether, some significant investment neglected or postponed, in order to pay for the Somali intervention. Similarly, the political resources of the United States government are limited, as are the reservoirs of public support for foreign commitments. The enormous amounts of time, energy, intellectual focus, and political capital that the president and his top diplomatic and military advisers spent on Somalia came at the expense of other critical issues, some of them of possibly greater relevance to the well-being and security of the American people than Somalia. In a world of limited U.S. resources and multiple demands on these resources, the United States has to be selective and

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tough-minded as it chooses among competing priorities. The interest-driven realists argue that, in the context of the size and multiplicity of major international problems confronting the United States in the last decade of the twentieth century, Somalia should have been ranked low in American priorities. It is true that in the age of instant communication and CNN the American people were shocked and disturbed by the spreading famine, but not so much as to demand that the government intervene to stop it. Even though the president received wide popular support when he decided to intervene, there is no evidence that a failure to intervene would have led to strong public disapproval outside the Beltway. Furthermore, even if some form of intervention had been agreed upon, its scope, duration, and the size of the forces involved needed to be measured in the context of the limited U.S. interests at stake and the potential costs and risks involved. This was not an unopposed humanitarian intervention, as was the 1991 Operation Blue Angel in which the U.S. military, with the full support of the Bangladesh government, had extended humanitarian assistance to that country in the aftermath of a devastating cyclone. In Somalia there was a full-blown civil war among heavily armed factions, and the intervention ran the risk of becoming opposed by some of those factions, especially the more deeply it engaged in “nation-building” missions. Among interest-driven realists, especially those outside the isolationist or neo-isolationist camp, there are many that have what we might call an interestdriven “domino theory” of international precedent and consequences. They appreciate that isolated events and actions can have strategic consequences far beyond their original narrow context. This is why, in foreign policy and defense, realists tend to favor the exercise of American strength and resolve, as long as the interests at stake are significant. A tough stance on behalf of American interests in one country will affect perceptions of U.S. credibility and strength in another. A show of weakness in one place will embolden U.S. adversaries elsewhere. On the whole, interest-driven realists are skeptical of humanitarian interventions, especially those involving high costs and risks in places of marginal strategic importance to the United States. Lest we see these realists as bereft of a moral compass, they point out that

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selectivity in choosing whether to intervene, the weighing of costs and risks, and an appreciation of the nation’s limited resources in a world of multiple dangers are all morally worthwhile concerns. Moreover, they warn, costly interventions in places of limited value to the United States wind up leaving the American public with a sour taste for international commitments, thereby imperiling future public support for action in places that really matter, be they Kuwait, Korea, or Europe. As their final trump card, the realists like to point to the apparently inexhaustible reservoir of humanitarian crises around the world and the seemingly arbitrary choice of Somalia. Why not Sudan, where more people were dying from hunger? Why Haiti and not Cuba? Is it morally appropriate to allow CNN to dictate America’s strategic priorities? These are legitimate questions in a world of seemingly limitless human suffering and limited resources. At the other end of the spectrum in the debate over Somalia are those we might call value-driven globalists. Most of them consider themselves to be as aware of the realities of power politics and as concerned about promoting U.S. national interests as the interest-driven realists. The key differences are, first, their broader conception of the national interest in the light of contemporary global economic and political interdependence, and second, a value-driven “domino theory” of precedent and consequences. The globalists’ viewpoint has been expressed forcefully by the veteran American diplomat Chester Crocker, himself no starry-eyed idealist: President Bush was right—politically, strategically, and ethically to launch Operation Restore Hope, and President Clinton was right to support his decision. The judgment that U.S. forces could and should stop humanitarian disaster in Somalia was a proper assertion of global leadership. . . . As the end of the century nears, it is surely wise that we and others broaden our understanding of national interest to include consideration of interests related to global order (sanctity of borders, extension of the Nuclear Nonproliferation Treaty) and global standards (avoiding genocide, mass humanitarian catastrophe).7

Value-driven globalists focus on the degree to which the well-being and security of the United States is tied to a certain kind of benign international order. They would agree with the realists that this order needs American military power at its foundation, but it also depends for its health and vibrancy on global institutions of cooperation, including the United Nations, and the strengthening of shared international legal and moral norms that provide some restraints on state behavior. The spread of civil war and mass famine, even in a small country such as Somalia, could not be written off as a tragic but ultimately inconsequential event. To allow it to continue would have had repercussions beyond the purely humanitarian aspects. It would have contributed further to the overall deterioration of Africa. Moreover, once the United Nations intervened, a U.S. refusal to support the operation would have led to UN failure and thereby would have undermined that organization’s credibility. In keeping with their value-driven domino theory of precedent and consequences, globalists argue that allowing extreme suffering and degradation in a place like Somalia has its costs, imperceptible as these might seem to the realists. International passivity in the face of gross human suffering and violations of human rights in one particular place contributes to a generalized loss of respect for life and human dignity in the world as a whole. International society, morality, and basic decency form one whole fabric. A tear somewhere affects the fabric’s quality and strength everywhere else, and though obviously not all tears are of the same kind, one should fix them whenever feasible. It is interesting to note that the just war tradition has recognized these global communitarian links to which the globalists pay so much attention. In his sixteenth-century treatise The Indies, for example, Francisco de Vitoria argued that human rights violations in one country affected everyone else as a consequence of all persons being part of the same larger human society spanning the whole world. Globalists argue that, given the United States’ enormous resources, aid to Somalia and support for the UN intervention was a reasonable, feasible course of action. The fact that the intervention eventually became resented by many Somalis and perceived by most Americans as a fiasco does not erase several fundamental realities. First, thanks to American leadership, the

The Problems of Doing Good famine ended and many Somali lives were saved, though a serious study has shown that by the time the Marines landed in December the famine had peaked and the total number of lives saved by the intervention may have been as low as 10,000.8 Second, in spite of the affair’s ambiguous denouement, Somalia did not revert to the same degree of chaos as before. Although the civil war has continued, its level of violence is lower and the country is out of the worst throes of internal strife that almost destroyed it. Economically, Somalia also has a long way to go, but its agricultural production is considerably above 1991– 92 levels. On balance, a modicum of order and wellbeing was restored to a corner of Africa. All of these achievements justify the entire operation in the globalists’ eyes, in spite of the tragic loss of American lives, the financial cost to the Defense Department, the mistakes made along the way by all parties, and the incomplete and anticlimactic ending. To the degree that Somalia and the corner it occupies in Africa is a slightly more orderly place today, and the international system has one fewer points of chaos, the benefits to the United States of the Somalia intervention were indirect but not insubstantial. Finally, the globalists have an answer for the realists’ question of why Somalia was chosen. There may have been even more serious crises elsewhere, but there were practical opportunities to act in Somalia, and so it was appropriate and useful to step in even if it meant giving less attention to other humanitarian emergencies. We face similar dilemmas in our personal lives and in domestic policy. The fact that we are unable to assist all the deserving poor to the fullest extent of their needs does not prevent us from engaging in some forms of charity. Our choice of those charities is shaped by circumstances that are largely accidental if not arbitrary, yet no one would argue that it would be best not to give to any charity at all rather than give to some on the basis of less than fully systematic reasons.

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CONCLUSION The substantive debate between the interest-driven realists and the value-driven globalists, and among the various points in the spectrum between these two poles of opinion, will not be settled soon. In the Somalia intervention, good intentions were mixed with miscalculations in roughly equal proportions to produce an outcome that was as full of ambiguities and failures as it was of undeniable achievements. The United States started out its mission with high confidence that it could do some good at low cost, and without becoming entangled in Somalia’s conflict. As the humanitarian effort proceeded successfully, American officials and their UN counterparts fell to the temptation of expanding the mission in order to address Somalia’s wider political and economic problems. This was the fateful step. For in expanding the mission to include the country’s wholesale political and economic reconstruction, they put themselves on a collision course with powerful Somali forces that had a different vision of where the country should go. The error of expanding the mission was compounded when, after encountering resistance from such forces, notably Aideed, they proceeded to underestimate him and to forsake compromise in favor of all-out war. Although grossly outmatched technologically, Aideed fought this war skillfully, mindful that given Somalia’s relative unimportance to the United States if he could evade capture and continue killing American soldiers it would not be long before the Americans gave up. In the end, the United States did do some good, but not without incurring significant economic, political, and human costs. What started out as an effort to demonstrate American global leadership wound up leaving the United States embarrassed and humiliated. Clausewitz’s old-fashioned warning that “in war even the seemingly most simple things turn out not to be so simple” is as applicable to the use of military force in humanitarian interventions as it is to the larger conflicts with which we usually associate his somber words.

NOTES 1. Refugee Policy Group, Lives Lost, Lives Saved: Excess Mortality and the Impact of Health Interventions in the Somalia

Emergency (Washington: Center for Policy Analysis and Research on Refugee Issues, 1994), 16–17, 21, 24.

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2. Andrew Natsios, “Food Through Force: Humanitarian Intervention and U.S. Policy,” Washington Quarterly (Winter 1994), 135. 3. George F. Kennan, “Somalia, Through a Glass Darkly,” The New York Times, September 30, 1993, A25. 4. The United Nations and Somalia, 1992–1996 (New York: United Nations Department of Public Information, 1996), 261–263. 5. John L. Hirsch and Robert B. Oakley, Somalia and Operation Restore Hope: Reflections on Peacemaking and Peacekeeping (Washington: United States Institute of Peace,

1995), 121–22. 6. Keith B. Richburg, “In War on Aideed, UN Battled Itself,” Washington Post, December 6, 1993, cited by Hirsch and Oakley, Somalia and Operation Restore Hope, 121–22. Hirsch and Oakley add: “There is no doubt that the militia leaders had studied not only Operation Desert Storm but Vietnam and Lebanon to understand the domestic political impact of American casualties.” 7. Chester Crocker, “The Lessons of Somalia”, Foreign Affairs (May/June 1995), 7 8. Lives Lost, Lives Saved, 32.

Institute for the Study of Diplomacy Case Study

Case 202

NATIONS:

A SIMULATION GAME IN INTERNATIONAL POLITICS

Michael Herzig & David Skidmore Cover photo source: https://www.pexels.com/photo/astronomy-atmosphere-earth-exploration-220201/

Case 202

Nations: A Simulation Game in International Politics Michael Herzig & David Skidmore ISBN 1-56927-169-0 Copyright © 1995 by the Institute for the Study of Diplomacy

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior permission of the Institute for the Study of Diplomacy. The opinions and analysis contained in this case study are solely those of the author(s), and do not necessarily reflect the views of the Institute for the Study of Diplomacy, the School of Foreign Service, or Georgetown University.

1316 36th St. N.W. Washington, D.C. 20007 | isd.georgetown.edu | [email protected]

This case study was made possible (in part) by a grant from the Carnegie Corporation of New York. The statements made and views expressed are solely the responsibility of the author.

Part I Nations: A Simulation Game in International Politics MI C H A E L HE R Z I G

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INTRODUCTION

• Secrecy • Nationalism

“Nations” is a simulation game designed to help you understand the dynamics of international politics.1 You will participate in the foreign policy decision-making process of a fictitious country on an imaginary continent. Nations will familiarize you with a variety of phenomena that are important in the real world of international politics, including:

• Territorial conflicts • Ecological issues • Military rivalry and the threat of war

RULES AND GUIDELINES:

• Interstate bargaining • Group decision making under the constraints of uncertainty and time pressures • The choice among various policy tools for realizing national objectives, such as trade, diplomacy and war • The effect of ideological and cultural differences on interstate relations • Resource conflicts • Economic cartels • Terrorism • Propaganda • Deception and backstabbing

Read the following pages with care. They describe how the game will operate and the rules you must follow. 1. This is a simulation game based upon an imaginary continent containing seven nations, each with an independent government and unique civilization. As a member of one of these nations, you will adopt the beliefs and values of your nation during the simulation game. There also exists an organization called the World Council (represented by the class instructor) that functions somewhat like the United Nations, but in this case has much more power. The World Council may penalize the leadership of any nation whose behavior fails to faithfully reflect the underlying values, beliefs, and interests of its own people (that is, the World Council will subtract from your factor totals). 2. Your continent, called Lostralia, is suffering from many diplomatic, political, religious, and economic conflicts. It is your job, as part of your nation’s leader1

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ship, to resolve the problems that relate to your country by the end of the game. You must not, however, give up too much to get what you want. In other words, you cannot sacrifice your beliefs, independence, or lifestyle in order to solve a problem. A map of Lostralia is contained at the end of Part II. It shows where your country is located in relation to others. Study it carefully. 3. Each nation and group of students will create a government and pass out responsibilities to each member. You may select the kind of government that you believe best fits your nation. You will need to select a person or persons to do the following: A. One person will write daily news reports and keep track of factor totals. B. Two people will serve as your chief diplomats. C. One person will serve as your chief executive (President, King, Queen, and so on.) D. Each remaining member of the leadership will be assigned a specific problem to tackle. 4. Every nation will provide the World Council with a news release that will be read aloud near the beginning of class each day. This gives your nation a chance to use propaganda to get what it wants and needs. In your news release, you may wish to praise friends, denounce enemies, sway opinion, spread disinformation, or send diplomatic signals to other countries. Be creative (a little humor doesn’t hurt). 5. Each day of the game, you will meet with the members of your country at a special location in the room. That area belongs to your nation: members of other nations may not enter your territory. Nor may you enter theirs. Diplomatic negotiations (for example, trade and treaty talks) may only take place in a special neutral zone specified by the instructor (usually at the front of the room). Only diplomats are allowed to meet with representatives of other nations. 6. You may communicate with other nations through written messages. Messages will be delivered by the World Council. If you wish to propose face-toface diplomatic negotiations, you must first send a written message and wait for a reply. If the other nation agrees, then both nations may send diplomats to the neutral zone. You may not speak across the room. 7. One of your duties is to negotiate trade agreements with other nations. Each nation begins the game with a predetermined number of factors representing resource endowments across a number of categories (for example, natural resources, military power, food,

and so on). The initial factor totals are given in an accompanying handout. Your primary goal in the game is to acquire a minimum of 2400 factors in each of the nine resource categories by the end of the game. One way to accomplish this is through trade: you may exchange factors from a category where your nation has a surplus for another nation’s factors in a category where your nation is deficient. Both nations can gain from this sort of deal. Note, however, that you may not reduce your factor totals in any one of the nine categories to less than 1,000. Trade is encouraged and must be noted on trade treaties that must be given to the World Council. You must keep a running total of your factors at all times. Failure to do this will result in significant fines. 8. You may trade things other than factors. Land settlements, alliances, and other items can also be traded, either in exchange for factors or for other concessions. All agreements arrived at among nations (for example, diplomatic treaties, military alliances, resolution of border disputes, trade agreements, cartel arrangements, and so on) must be signed by the appropriate heads of states and submitted to the World Council before they become official. 9. Another one of your duties is to try to resolve the diplomatic, political, and social problems that face your nation. In many cases, the World Council will reward nations that resolve disputes on favorable terms by granting additional factors. In other cases, the World Council may punish nations for a failure to successfully resolve disputes. The World Council also has the power to force one nation to compensate another nation that has been wronged by the first. In cases where your country description or secrets indicate that accomplishment of a certain deed will be rewarded with factors, you must first demonstrate to the World Council that the task in question has been achieved before factors may be added to your totals. 10. In spite of your efforts, war may be essential— but only under the most serious conditions. If your declaration of war appears to be foolish, thoughtless, or without proper justification you will be promptly removed from the game. In other words, you must have a good reason to initiate a war. War is possible only under the following circumstances. You (that is, the attacking country or countries) must have four times (4x) the total number of army, navy, and air force factors as your opponent. When you declare war you will

Nations: A Simulation Game in International Politics inform the World Council which, in turn, will notify the nation(s) targeted for attack. From that time, both sides (attackers and defenders) have ten minutes to prepare for war. At the end of the ten minutes each nation will vote by secret ballot. Nations may vote to join the attacking coalition, to join the defender coalition, or to remain neutral. Each nation is free to vote as it wishes, regardless of any previous agreements or understandings it may have made with another nation (in other words, one nation may backstab another by shifting sides at the last minute without notice). If a nation votes to remain neutral, its military factors do not become part of the count to determine the victor. The attacking nation(s) must still have four times the amount of military factors as the defender nation(s). If the attacking coalition fails to accumulate at least four times the number of military factors possessed by the defending coalition, each attacking nation will be required to transfer ten percent of that nation’s total factors, to be divided

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equally among the members of the defender coalition. If the attack is successful (the attacker has at least four times the military factors as the defender), then the attacking nations will equally divide all of the factors and land previously possessed by the defender nation(s). The defender nation(s) will be disbanded and must exit from the game. 11. At the opening of the game the following situations should be noted: A. The nations may wish to greet one another and open diplomatic relations. B. There are a number of border disputes between nations. You may use these to help your factor totals. You must resolve your own border dispute(s). C. Some of the nations of Lostralia have hatred for one another based upon religious, racial, cultural, or social issues. These differences are long standing— some are centuries old—and cannot be resolved by a sudden change of heart.

Part II Nations: A Simulation Game in International Politics MI C H A E L HE R Z I G

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E DI NA HI GH SCHOO L AND DR AK E UNIV ER S IT Y

TERMS AND NAMES 1. The names of the nations and inhabitants are the following: • The States of Libertania: Libertanians • Holy Zott: Zottites • The Sacred States of Pyrote: Pyrotians • The Union of Zamboni States: Zambonis • The Democratic Republic of Crock: Crockites • The People’s Republic of Spartonia: Spartonians • The Bampff Autocracy: Bampffites

C. Areas marked on the map A, B, C, and so on, or areas in squares indicate land disputes between nations. If the letter in the square is in the Vastland it includes territory claimed by all of the nations on the continent. D. The Vastland on the map is territory that has been only partially explored. At present it belongs to no one, but several nations have lodged claims to portions of the Vastlands and hope to expand there one day. These conflicting claims must be resolved. E. Gilligan’s Island is neutral territory (it is protected by the World Council and cannot be invaded). Several nations use it as a source for natural resources, and one nation believes it is sacred territory. There are several bridges to the island.

2. Map Items and Factor Items: 3. Problems: A. Squirtite is the continent’s only energy producing resource. B. Items that are in small squares with the letters “S,” “FW,” “M,” and “E” are concentrations of squirtite, fishing waters, minerals, and other natural resources and electrical production facilities.

Each Nation has a set of problems it must solve. Those problems are given on each of the description sheets. All participants should read all these sheets. You many find a way to solve one of your problems by looking at the problems of other nations. 4. Secrets: On the day the game begins, secrets will be distributed to each nation. These secrets may change the

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Nations: A Simulation Game in International Politics factor totals for your nation. They also contain crucial information. Do not disclose these secrets to other nations.

COUNTRY DESCRIPTIONS The Democratic Republic of Crock This country is located to the South and East on the continent. Many of Crock’s people have emigrated from other countries on the continent of Lostralia where industrialization has taken hold. They believe that civilization corrupts. Crockites have distaste for the fastpaced, modern societies possessed by their neighbors. They seek a simple life of solitude, privacy, and peace. Problems: 1. You must resolve land dispute “A” with Libertania. 2. Your country and Pyrote jointly administer Convent San Tanko. Both countries have recently agreed to begin charging Zottite pilgrims for the privilege of visiting this holy site. Yet you now fear some sort of retribution from Zott, which has been angered by this decision. 3. You are fearful of Spartonia and do not like the situations for women in Zott, slaves in Bampff, and men in Libertania. 4. On grounds of principle, you seek to preserve the pristine ecology of the Vastlands. You have reason to fear that other nations with claims on the Vastland intend to pollute the area through the development of industry and mining. You also believe that Spartonia wants the Vastlands for military purposes, an objective you also oppose. You would like to transform the Vastlands into a “world park” under the protection of the World Council. Before this can happen, each nation must give up all claims to Vastland territory and agree to forego all industrial development there. 5. One of your boats was sunk in a crash with a Libertanian vessel. You charge the captain of the Libertanian ship with negligence and incompetence and seek compensation from the Libertanian government. The States of Libertania The States of Libertania is a relatively new nation. It is governed by women. All other nations on the conti-

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nent are ruled by men. The status of men in Libertania is an issue of controversy. According to the Libertanian Press, men are free and equal, but some other nations claim differently. Libertania was created by women who escaped from societies featuring male domination and chauvinism. Libertania encourages those women still enslaved to rebel or escape. Libertania has especially large deposits of squirtite. This is a crucial natural resource on the continent. Besides the issue of women, Libertanians are somewhat lackadaisical about religion. This offends both Pyrote and Zott. Problems: 1. You have been blamed by Zamboni for a huge squirtite slick off the coast. Zamboni believes you deliberately fouled their fishing waters out of anger over the subordinate status of women in their society. 2. You have a dispute with Bampff over the mining on Gilligan’s Island. You want to mine there, but Bampff thinks she has exclusive rights to carry out mining activities on the island. You will win 150 points from the World Council if you can persuade Bampff to relinquish its exclusive mining claims. 3. You need to resolve Land Dispute “D” with Zamboni and Land Dispute “A” with Crock. 4. One of your ships was badly damaged in a crash with a Crockite ship. The Crockite ship sank. Crock claims the accident was your fault and seeks compensation. The Sacred States of Pyrote This nation is made up of three states all unified by their great religious leader and prophet Bolivar. His remains are buried on Gilligan’s Island, which has become sacred land for the Pyrotians. They also visit this sacred place and become enraged when they think that this land is being mined and ruined by Zott and Bampff. Both deeply religious, Pyrotians and Zottites worship the same God, but follow a different prophet. As a result, they are quite hostile toward and suspicious of one another. Each people consider the other heretics. Problems: 1. Your nation has been accused of damaging Horst’s tomb. 2. You need to resolve Land Dispute “B” with Spartonia.

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3. Your citizens were killed (murdered in your opinion) while conducting a protest on the Holy Bridge. You suspect that either Zott or Bampff are responsible. You have no proof (yet), and both Bampff and Zott deny any wrong doing. Your people are enraged that forty-five of their fellow citizens are dead. Something must be done. 4. You are engaged in a propaganda battle with Libertania. You dislike Libertania due to both the nontraditional role played by women in that society and the prevalence of atheism among its people. 5. You are fearful of Spartonia. Its large war machine appears threatening. You would like to avoid war if possible, but seek protection should Spartonia decide to attack.

4. Spartonian exiles—now citizens of Zamboni— shot and killed a Spartonian general who had come to Zamboni to discuss trade matters. Spartonia is furious. You have captured the assassins. 5. You need to resolve Land Dispute “D” with Libertania. 6. You have discovered a squirtite slick on your fishing waters that you believe was caused by Libertania. You think they did this on purpose because they hate the status of women in your society. You want compensation. 7. You have also captured a group of Libertanian guerrillas sent, you suspect, to spark unrest among the women of your society. Holy Zott

Union of Zamboni States The Union of Zamboni States is a nation that consists of numerous races and types of people and cultures. Many of these people have been exiled from other surrounding nations or have escaped these nations and have journeyed to Zamboni for freedom. The Zamboni government proclaims itself liberal, free, and democratic. Some of the exiles in Zamboni are thought to be criminals and terrorists by other nations. The liberal Zambonis oppose the position of slaves in Bampff and the militarism of the Spartonians. Most Zambonis are atheists who resent the efforts of several other nations to promote the spread of religion within Zamboni. Problems: 1. Your nation eats much fish and has a large fishing industry. Competition from Bampff and Zott are cutting into your catch of fish. You decide to claim an exclusive fishing zone in the waters off of your own coast. This area will be reserved for Zamboni fishing vessels alone. This claim will have little practical effect, however, unless you persuade Bampff and Zott to officially recognize and respect your exclusive zone. 2. Zamboni officials/police have captured Pyrotian agents who entered your country in an effort to aid a small but violent religious sect in its efforts to overthrow the Zamboni government. 3. It is part of your assignment to encourage slave revolt in Bampff. Do this in the press. An effective campaign will win you 25 points from the World Council.

Holy Zott at this time does not recognize the existence of Spartonia because the Spartonians are accused by Zott of taking some land belonging to Zott to help form the nation of Spartonia. Zott broke away from Bampff for several reasons. Zott is a traditional society with men and women in traditional roles. When Bampff began its industrial revolution, Zottites opposed the changes that were taking place in society. Zottite women are secluded from society, marriages are arranged, and change is a threat. Religion is the most important thing to a Zottite. This may be the most important reason why they broke away from Bampff. Zottites worship Nar, their God, and His greatest prophet Horst, who was sent to Earth to destroy war. Horst teaches love, respect, and salvation through adherence to a rigorous moral code. As a religious duty, Zottites must make a pilgrimage to Convent San Tanko each year. However this convent is located along the border between Pyrote and Crock. The trip, which must be walked, is difficult and can be accomplished only by crossing the Holy Bridge in Pyrote. Zott and Pyrote hate one another. This hatred has been years in the making and is religious in nature. Both believe in the same God, Nar, but different prophets. Pyrote believes in the Prophet Bolivar whom the Zottites claim Horst condemned as a heretic. Problems: 1. Someone has destroyed Horst’s tomb, located on Gilligan’s Island. Your people are outraged. You suspect that either Pyrote or Bampff are responsible but have

Nations: A Simulation Game in International Politics not yet discovered proof. Conduct an investigation. Once it is complete, bring your charges along with the evidence you have assembled (use your imaginations) to the World Council. If the evidence is persuasive, the World Council will punish the offending nation. 2. Zott and Zamboni have a fishing waters dispute to settle. 3. In a potentially explosive issue, your nation is accused by Pyrote of killing Pyrotian pilgrims who placed themselves on the bridge connecting Gilligan’s Island. Pyrote suspects that either you or Bampff were responsible for the murders. Pyrote does not yet have proof of who is guilty. 4. You need to resolve Land Dispute “C” with Bampff. 5. You need to somehow resolve your religious dispute with Pyrote. This is an explosive issue. You need to cool down tensions. The Bampff Autocracy Bampff was one of the largest nations on the continent until it went into decline just a few centuries ago. Since then she has lost territory to new nations. Still, Bampff remains quite powerful. Bampff is highly industrialized and is one of two nations that mines Gilligan’s Island. Pyrote hates this. Bampff controls one of the bridges that crosses onto the island. Bampff depends upon a slave population for the majority of its labor. About fifty percent of the population is slave. Many nations condemn this slavery, but Bampff claims that life for a slave is better in Bampff than the lives of most other people in the other six countries . . . men in Libertania, women in Zott, the common soldier in Spartonia. Problems: 1. You must get an agreement that guarantees your access to the resources on Gilligan’s Island. 2. You also have been accused of killing the Pyrotian pilgrims who laid down on the bridge and were run down by unidentified truck drivers.

3. You need a constant source of squirtite. Get an agreement that guarantees this. 4. Try to find some way of reducing your political isolation without giving up slavery (the primary cause of your pariah status). 5. You need to resolve Land Dispute “C” with Holy Zott. The People’s Republic of Spartonia Spartonia is the newest of all seven nations. It is made up of people who invaded this region from the wilds of the Vastland. The Spartonians are a tribal people. Warlike and belligerent, they are not well liked by the other states. Spartonia is a military nation. You argue that since all nations dislike you and one doesn’t even recognize that you exist, you must develop a large military capacity simply to ensure survival. You claim that you are really a peace-loving country and that you would reduce the size of your military if each other country agreed to do the same. Your capital, Fort Eveready, is heavily fortified. Problems: 1. You must guarantee a steady supply of squirtite by treaty or conquest or your military machine will grind to a halt. 2. You must persuade other countries that your country is peaceful and your army is only for protection. 3. You need to resolve Land Dispute “B” with Pyrote. 4. You encourage slave riots in Bampff as part of what your country calls its “freedom for all people” program. 5. You would like to mine Gilligan’s Island. 6. You claim all of the Vastland and would like to see it developed. You disagree with Crock about this issue.

NOTE 1. Michael Herzig is the creator and primary author of “Nations.” This version has been edited and revised by David

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Skidmore, who also prepared the “Teaching Notes.”

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Nations: A Simulation Game in International Politics

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Michael Herzig and David Skidmore