Toward facilitating a voice for politically marginalized minorities and enhancing presidential public accountability and transparency in foreign health policymaking.
ABSTRACT
Residents of underdeveloped countries who belong to ethnic, racial, sexual, and political minorities usually endure relatively ineffective political voices. More than any other world population segment, these marginalized people are vulnerable to, and suffer from, compromised
TABLE OF CONTENTS
I. INTRODUCTION
II. THE HIV/AIDS PANDEMIC
A. Overview
B. The Story of HIV/AIDS
1. In the Beginning, Response Avoidance
2. The Mid- to Late-1980s
3. The Early- to the Mid-1990s
4. The Mid- to Late-1990s and the
New Millennium
5. Summary
III. FOREIGN POLICY DECISION-MAKING STRUCTURE-THE
ACTORS
A. The President as the Primary Foreign
Policymaker
B. Executive Branch Agencies
C. Nonprofits as Nongovernmental Actors
IV. PRACTICAL REASONS FOR A FORMAL POLICYMAKING
ROLE FOR NONPROFITS
A. Nonprofit Organizations as Unofficial
Designers of Foreign Health Policy
B. Limitations of Unofficial Role
C. Practical Reasons for an Official Role
V. CONSTRUCTING AN APPROPRIATE POLICYMAKING
STRUCTURE
A. Paradigms of Nongovernmental
Organizations' Participation in
International Bodies' Policymaking
Processes
1. World Trade Organization
2. The NGO-World Bank Committee
3. U.N.'s World Health Organization
4. International Labor Organization
5. Organization for Economic Cooperation
and Development
6. U.N.'s Economic and Social Council
B. A Constitutionally Acceptable Revised
Presidential Foreign Health Policymaking
Structure
1. A Presidential Advisory Committee
2. A New Presidential Advisory
Committee on U.S. Foreign
Health Policy
3. An Assembly of Nonprofit Entities
VI. CONCLUSION
A popular government, without popular information, or the means for acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.--James Madison **
I. INTRODUCTION
Residents of underdeveloped countries (1) who belong to ethnic, racial, sexual, and political minorities usually endure relatively ineffective or nonexistent political voices. More than any other world population segment, these people are vulnerable to, and suffer from, compromised health and life expectancies. These marginalized people have received increased international visibility since the onset of globalization and worldwide recognition that their immense human tolls have spawned enormous fractures in "critical infrastructures that sustain the security, stability, and viability of modern nation-states," (2) contrary to the strategic interests of developed countries, including the United States. (3) Nonetheless, in the de facto role of primary foreign policymaker, (4) U.S. presidents have failed to act adequately to forestall these groups' health crises and to avert consequential damaging global outcomes.
Perhaps it should be no surprise that U.S. presidents have been mightily deficient in tackling the health needs of such Third World countries' marginalized residents. In the United States, it is well documented that even during the past fifty years, the overall health and life expectancies of politically under-represented ethnic, racial, and sexual groups--women, gays, African-Americans, Hispanic-Americans, Asian-Americans, Pacific-Americans, American Indians, and Native Alaskans--have been below those of the U.S. population as a whole. (5) Nonetheless, the medical hardships of these Americans pale in comparison to the substandard health status of underdeveloped countries' ethnic, racial, sexual, and political minorities.
Statistical data regarding health conditions of Third World women and children confirms this disparity: despite the growth of gender-targeted healthcare programs available to some underprivileged women residing in underdeveloped countries, (6) these women continue to be particularly plagued by high levels of complications from pregnancy or delivery, many of which result in lifelong disabilities. Indeed, more than 80,000 women residing in poor countries annually develop fistula, which leaves them permanently incontinent and socially ostracized. (7) Women in the Third World also are particularly susceptible to death from disease and maternal difficulties. Reports reveal that around the world more than 500,000 women die every year--that is, one woman every minute--from pregnancy and childbirth complications, such as delays or failures in obtaining obstetrical care, unsafe abortions, and the lack of access to drugs. (8) Ninety-nine percent of these deaths occur in low-income countries. (9) The World Health Organization (WHO) reported in 2005 that more than 500,000 women in underdeveloped countries have demonstrated particular vulnerability to contagious diseases. (10) They contract malaria, tuberculosis, and HIV/AIDS in disproportionately elevated numbers. (11) As of 2005, women comprised 45% of all people (women, men, and children) worldwide living with HIV/AIDS. (12) Women's deaths from contagious diseases are notably high. For example, on a worldwide basis, tuberculosis accounts for 9% of women's deaths annually. (13)
Children residing in Third World countries are another group sorely under-represented by political voice who disproportionately suffer from preventable or treatable health issues. (14) For example, each day approximately 6,000 girls, often between the ages of four and eight living in eastern, central, and western African communities, the Middle East, and in immigrant communities in Asia, the Pacific, Latin America, and Europe, are subject to female genital mutilation. (15) This practice has led to grave psychological and physical health problems such as organ damage, serious long-term infection, HIV/AIDS, infertility, and death for an estimated 135 million females. (16) Across the world, approximately 1,500 children contract HIV/AIDS every day, (17) and those living primarily in poor countries now account for one-half of all new HIV/AIDS sufferers worldwide. (18) At the end of 2005, more than 2.3 million children under age fifteen lived with HIV/AIDS, (19) and most of these children resided in the Third World. (20) Strikingly, HIV/AIDS afflicts young girls in certain countries to a larger measure than boys. For instance, 76% of youths with HIV/AIDS in Sub-Saharan Africa between ages fifteen and twenty-four are girls. (21) All of these youngsters are plagued by severe physical and emotional consequences of the disease.
Children in underdeveloped countries also experience high mortality rates. (22) The Global Health Council reports that "[e]very minute of every day, 20 children die somewhere in the world, and two-thirds of these deaths could be readily averted by existing preventive and therapeutic strategies." (23) Moreover, of "the 10.8 million children under age five who die each year, 10 million (more than 92 percent) resided in the lower-income countries." (24) Childhood mortality from HIV/AIDS, largely acquired from mothers during birthing or breast feeding, (25) is exceedingly high. By 2000, about 4.3 million children younger than age fifteen had died from HIV/AIDS. (26) In 2005 alone, estimates reveal that between 290,000 and 500,000 children under fifteen years old died of HIV/AIDS. (27)
These small glimpses into just two politically under-represented population segments living in underdeveloped countries suggest the magnitude of various health maladies that impact numerous such groups. They beg us to ask how our nation's leading foreign policymaker permits such tragedies to continue unabated despite U.S. strategic interests to the contrary. (28) The story of the HIV/AIDS pandemic is revealing.
The HIV/AIDS pandemic reared its ugly head in Africa and the Caribbean more than two decades ago (29) before striking politically under-represented minorities of developing and developed countries, including the United States. (30) President Ronald Reagan was aware of the mounting HIV/AIDS problem at home and abroad as early as 1983. (31) Nonetheless, he and his administration discounted the evidence, denied the disease's potentialities, and failed to react. (32) For almost two decades thereafter, presidents (and other policymakers) largely ignored the rapidly growing HIV/AIDS crises. (33) The reasons for their inaction are based on attitudes, information, and politics. Initially, in the U.S. HIV/AIDS was viewed as a disease primarily affecting the domestic gay population, a minority affinity group with little political clout in the early 1980s. Moreover, the disease was then considered exclusively sexually transmitted. (34) Persons who contracted HIV/AIDS were viewed as foolishly having engaged in risky behavior preventable by sexual abstinence or precautionary measures. In other words, a prevalent attitude was that these individuals got what they deserved. As the drug-addicted population became victims of the disease as a result of their use of contaminated needles, stigmatization mounted. Superimposing these stigmas on top of racial and ethnic biases associated with the disease's probable African origin (35) further tainted perspectives of the populations affected by HIV/AIDS abroad. Some African leaders reinforced U.S. presidents' ignorance about the epidemic proportions of HIV/AIDS by denying that HIV/AIDS was a major health issue among both heterosexuals and homosexuals. (36) Additionally, presidents faced with constituents' opinions and perhaps a desire for reelection conceivably felt paralyzed. (37) Thus, presidents' personal homophobic, ethnic, and racial biases; their sentiments about drug addiction; their lack of knowledge; (38) and their desires for the electorates' votes clouded their perceptions of HIV/AIDS and contributed to policymaking inaction. (39) Unfortunately, their disregard contributed to an immense and persistent human toll in the United States and abroad and to unprecedented global humanitarian, economic, social, political, and security dilemmas contrary to U.S. strategic interests. (40)
The active engagement of the White House in politically underrepresented minorities' emerging and recognized world health challenges is imperative to the creation and implementation of appropriate foreign health policies. (41) As one government official stated in 2003, the HIV/AIDS story makes it clear that "the government cannot do it alone. Not only do we have limited resources, but we don't always have the best answers and solutions. Indeed, people and nongovernmental organizations [NGOs] can often best address the many challenges [together] here at home and throughout the world." (42) The government official's admission that the government is not omnipotent and cannot be effective in accomplishing crucial policy tasks alone underscores the vital need for structural changes in presidential foreign health policymaking processes. (43)
In A Voice for Nonprofits, (44) John M. Berry and David F. Arons analyze the potential effectiveness of the joint production of policy by U.S. policymakers and nonprofit interest groups and organizations. Drawing from the research of other scholars, (45) they view nonprofits as "service bureaus" that can assist the government by anticipating needs, providing research and information, offering perspectives, and giving technical and financial support. (46) This has long been borne out. U.S.-based public charities and domestic private foundations have an extensive history of facilitating U.S. interests and of serving under-represented groups in the United States and abroad. (47) They have championed new ideas and programs and have been instrumental in recognizing and responding to sudden, as well as ongoing, needs of marginalized people when the U.S. government has failed to do so, sometimes despite national interests to the contrary. (48) Thus, through their missions, economic support, and activities, domestic nonprofits have privately designed unofficial foreign policy that profoundly has impacted foreign affairs. (49)
Nonetheless, there has never been an official role for nonprofits in a president's foreign health policymaking apparatus. (50) The lack of such a formal structure effectively has maintained the two sectors' independence. While sector autonomy has important advantages, (51) this Article's subsequent tale of the lengthy road to constructing U.S. foreign policy for HIV/AIDS and its discussion of the presidential policymaking structure highlight downsides. (52)
The Article focuses on presidential foreign policymaking structures largely because in modern times the president has been the dominant foreign policymaker. (53) And, whether involving global health or another policy area, the president rather easily can maintain insular perspectives and inalterable policy positions without broad public accountability and transparency. (54) Thus, absent structural changes to the presidential foreign policymaking approach, the president is vulnerable to making foreign policy that does not satisfy national interests.
The Article suggests alteration of the presidential foreign policymaking system to address global health matters affecting the well-being and very existence of marginalized minorities throughout the world. To illustrate why structural changes are required, Part II reviews the two decades of lost opportunities for inclusion of HIV/AIDS as a U.S. foreign policy priority. Thereafter, Part III provides a brief overview of the official foreign policy decision-making structure. The Article next presents in Part IV practical reasons for formally adding domestic nonprofit organizations as official actors in the presidential foreign health policymaking processes. In Part V, the Article reviews several existing paradigms that provide formal arrangements for the participation of NGOs in various international bodies charged with rule making and policymaking authority, such as the International Labor Organization formal NGO "association" structure, (55) the Organization for Economic Cooperation and Development formal advisory committee system, (56) and the consultative status of NGOs to the United Nations (U.N.) Economic and Social Council. (57) These paradigms feature certain attractive attributes that the Article identifies as important to incorporate in a presidential foreign health policymaking arrangement. The Article attempts to fit these qualities into a constitutionally acceptable structure that will permit domestic nonprofits to be official voices of politically marginalized minorities in presidential foreign health policymaking. To this end, the Article proposes a pair of new structures. In brief, the Article first suggests the president's establishment of a Presidential Advisory Committee on U.S. Foreign Health Policy, composed of representatives from the nonprofit sector. It then proposes the creation of an Assembly on Nonprofit Entities to give broad voice to nonprofits with expertise and experience in global health matters and to present to presidential advisors on a new Presidential Advisory Committee the nonprofits' insights, research, and recommendations.
II. THE HIV/AIDS PANDEMIC
A. Overview
As HIV/AIDS (58) gripped the world, U.S. government policymakers were not prepared for, and did not readily react to, its appearance. (59) Twenty-five years later, HIV/AIDS had "already killed more people than all the soldiers killed in the major wars of the twentieth century, and equals the toll taken by the bubonic plague in 1347." (60) Since its known inception 25 years ago, the AIDS causing virus, HIV, has infected in excess of 65 million people, and AIDS has killed approximately 25 million people worldwide (that is, an average of 1 million individuals annually). (61) While there is a sense that the spread of HIV/AIDS appears under control in affluent countries, (62) the pandemic currently continues without apparent abatement in poor and developing countries, (63) despite the global funding response to the HIV/AIDS crisis since 2001. (64) Approximately 38.6 million individuals live with HIV/AIDS, and between 3.4 million and 6.2 million people were newly infected with HIV in 2005. (65) The United Nations AIDS (UNAIDS) 2006 report reveals that approximately 65% of all global victims infected with HIV live in Africa. (66) A 2004 U.N. report found that the number of people living with HIV in East Asia rose nearly 50% between 2002 and 2004. (67) Despite antiretroviral therapies, the range of daily deaths worldwide attributed to the disease is 7,600-8,000 individuals, (68) a statistic that dwarfs the number of human fatalities from war or other causes. (69)
The HIV/AIDS threat to world development and security exceeds all other known hazards, "with the possible exceptions of use of nuclear weapons in densely populated areas or a devastating global pandemic similar to the 1917-18 influenza episode." (70) It has profoundly harmed human capital, health systems, family structures, social stability, labor productivity, natural resource development, business investments, national economies, political leadership, and political and military security throughout the world that now are perceived as directly connected to key strategic U.S. national interests. (71) To avoid similar devastating repercussions from inadequate or symbolic responses to other global health issues that impact ethnic, racial, sexual, and other political minorities, it is worth reviewing how the global HIV/AIDS problem reached its epic proportions. (72)
B. The Story of HIV/AIDS
1. In the Beginning, Response Avoidance
As early as 1981, U.S. government health officials knew the HIV virus had infected African and American populations. (73) Records of the Center for Disease Control (C.D.C.) indicate that HIV plagued hundreds of Americans at that time; (74) as many as 339 cases were diagnosed in the United States in 1981 alone. (75) As of February 1983, the C.D.C. had reported 1,000 AIDS victims in the United States. (76) Avert.org, an international AIDS charity, reports that between 1981 and the end of 1983 in the United States 4,793 cases of AIDS had been diagnosed and 2,137 individuals had died from AIDS, a fatality rate of approximately 44%. (77) By contrast, the widely publicized outbreak of Legionnaires' Disease in 1976 in Philadelphia, Pennsylvania, infected 221 people and killed 34, a fatality rate of less than 15%. (78)
Global surveillance by the WHO revealed a real international epidemic by 1983. HIV/AIDS cases were known in Canada, fifteen European countries, Haiti, Zaire, seven Latin American countries, Australia, and Rwanda. (79) Despite President Reagan's awareness of the HIV/AIDS crisis here and abroad, in 1983 his administration refused to acknowledge the dimensions of the HIV/AIDS global crisis. (80) No steps were taken to develop domestic or foreign policy to address the HIV/AIDS predicament. (81)
2. The Mid--to Late-1980s
By the end of 1986, eighty-five countries reported a total of 38,401 HIV/AIDS-identified cases. (82) Of these cases, 2,323 were in Africa, 31,741 were in the Americas, 3,858 were in Europe, 395 were in Oceania, and 84 were in Asia. (83)
As the number of HIV/AIDS cases rose in the mid-1980s, gay activist groups and other nonprofit organizations, (84) as well as the media, (85) were instrumental in raising public awareness of the disease but perhaps not extensive sympathy for the activists' cause or for those individuals infected. Nonetheless, several private foundations, such as the Robert Wood Johnson Foundation and the foundations of Michael Milken and David Geffen, began to support AIDS initiatives. (86) Gay activist nonprofits prominently funded research and other HIV/AIDS initiatives. (87) In 1987, (88) some professional staff members of elite private foundations were motivated to increase philanthropic resources and "to mobilize philanthropic leadership, ideas and resources, domestically and internationally, to eradicate the HIV/AIDS pandemic and to address its social and economic consequences." (89) Thus, they formed a new nonprofit organization, the Funders Concerned About AIDS (F.C.A.A.). In 1988, the Ford Foundation created a collaborative funding pool for AIDS initiatives, the National Community AIDS Partnership (now known as the National AIDS Fund), which raised large sums from community, corporate, and national foundations for AIDS projects in cities and states across the United States over the following eight years. (90)
Without the support of these nonprofit organizations, HIV/AIDS initiatives would have been largely devoid of aid. The U.S government lacked interest in policy development with respect to HIV/AIDS and failed to fund (91) HIV/AIDS efforts either domestically or globally. (92) The Department of State appeared relatively unconcerned about the HIV/AIDS problem abroad. (93) Similarly, the Surgeon General did not demonstrate serious interest in the domestic or global HIV/AIDS crisis. (94) In 1986, Congress appropriated a paltry $2 million to address the worldwide impact of HIV/AIDS. (95) Although in 1987 President Reagan appointed a Presidential Advisory Council on AIDS, it purportedly amounted to an "empty political gesture," (96) symbolic at best. (97) Thus, essentially during the first decade of the HIV/AIDS onslaught, governmental officials largely ignored the growing magnitude of the health epidemic and its need for a place on the policymaking agenda.
3. The Early- to the Mid-1990s
As Presidential candidate William J. Clinton campaigned across the United States in 1992, he declared HIV/AIDS a domestic crisis but was silent as to its global impact. (98) By the time of his January 21, 1993 inaugural speech, he proclaimed that the HIV/AIDS crisis abroad presented a challenge to the United States. (99) In 1994, President Clinton appointed Patricia Fleming as national AIDS policy director. (100) Despite President Clinton's speeches and appointments, no real White House policymaking action followed. (101) Nonprofit organizations, such as F.C.A.A. and New York City's ACT UP, attempted to further elevate the HIV/AIDS pandemic in the consciences of the U.S. public and government officials. (102) Some F.C.A.A. internationally oriented funders, including the Rockefeller, Ford, and MacArthur foundations, supported global AIDS related issues and programs. (103) The National Community AIDS Partnership raised substantial amounts of funding for domestic community AIDS projects. (104) Nonetheless, there was little appreciation by key governmental policymakers that HIV/AIDS should be a crucial ingredient in U.S. domestic and foreign policies. (105)
4. The Mid--to Late-1990s and the New Millennium
It was not until the beginning of the new millennium that U.S. domestic and foreign policy advanced full throttle to include HIV/AIDS. The confluence of many factors and the efforts of many individuals in the mid- and late-1990s spurred the movement. In the mid- and late-1990s, political activism aimed at pushing domestic HIV/AIDS policies surged. (106) The domestic private philanthropic community widely appreciated HIV/AIDS as a global crisis. (107) A particularly important year was 1996: in that year, UNAIDS was formed, and it quickly became a leading authority on global HIV/AIDS. (108) It scored successes in stimulating U.S. and global responses to the HIV/AIDS crisis abroad. (109) Also in 1996, the medical world recognized anti-retroviral drugs as an effective therapy for HIV/AIDS. (110) The availability of this treatment helped to galvanize HIV/AIDS advocates who likely saw the therapeutic, albeit expensive, elixir as the hope for the many still living HIV/AIDS victims worldwide. (111) Moreover, the Rockefeller Foundation launched the International Aids Vaccine Initiative. (112) The year ended well for those favoring a prominent place for HIV/MDS on the domestic and foreign policy agendas. In December, Secretary of State Madeleine Albright commissioned a State Department report on the HIV/AIDS pandemic. (113)
Between 1999 and 2000, attention focused increasingly on the global HIV/AIDS crisis. In 2000, Vice President Al Gore presided over a special session on Africa and health at the U.N. Security Council. (114) There, armed with information that the HIV/MDS pandemic was creating world instability and security crises, (115) Vice President Gore injected HIV/AIDS into the highest levels of political discourse. (116) As a result, the U.N. Security Council passed a resolution to press national leaders to become more engaged in the global HIV/AIDS catastrophe. (117)
In 2000 and 2001, nonprofit organizations and the U.S. government published studies and research papers that proclaimed the global HIV/AIDS pandemic neither to be confined to a narrow geographic area nor to a health issue. (118) These and subsequent publications suggested HIV/AIDS to be a destabilizing threat to the economic, political, social, and security interests of both developing and developed countries. (119) These publications prompted the attention of the U.S. government, (120) which then came to view HIV/AIDS as a potential harm to development and democracy and a force possibly causing states' failures by destroying their infrastructures. (121) Multinational corporations (122) and corporate philanthropies (123) became increasingly attentive and responsive to the HIV/AIDS global crises. Of particular note, after previously making grants of $1.5 million and $25 million for global HIV/AIDS initiatives, in January 2001, the Bill and Melinda Gates Foundation committed a multi-year $100 million challenge grant to the International AIDS Vaccine Initiative, a global nonprofit organization aimed at speeding the development and distribution of an AIDS vaccine. (124)
The year 2001 brought further significant changes. African leaders broke their former silence and called on the United States to assist in the global HIV/AIDS crisis. (125) The U.N. launched a new effort to focus international attention and resources on the global AIDS pandemic. (126) U.N. Secretary General Kofi Annan publicly outlined objectives for combating HIV/AIDS and called for leadership, resources, and openness to fight HIV/AIDS. (127) He proposed the creation of the Global Fund to Fight AIDS, Tuberculosis, and Malaria (Global Fund). (126) an independent organization formed with the endorsement of the U.N. and leaders of the G8 and African countries to attract and disburse funds to prevent and treat AIDS, tuberculosis, and malaria. (129) Secretary General Annan obtained initial financial support commitments from the United States and others totaling between $7 billion and $10 billion. (130)
In 2002, then-former President Clinton publicly declared HIV/AIDS to be a humanitarian issue, and regretting that he had not furthered the cause more by making it a domestic and foreign policy priority during his presidency, he announced global HIV/AIDS as one of his post-presidential main concerns. (131) He perceived the HIV/AIDS cause as a means for the United States to become involved in helping the global community, leading him to propose a plan for developing nations to contribute sufficient funds to support the costs of HIV/AIDS drugs, care, and needed resources. (132)
As time progressed, more reports relayed the enormous impact of HIV/AIDS. Worldwide the number of individuals living with HIV/AIDS continued to rise in every region. (133) Through the new millennium, Sub-Saharan Africa remained the area most affected--nearly two-thirds of all of the world's infected people reside in Sub-Saharan Africa, and 76% of all HIV-infected women live there. (134) But at the same time, steep increases in individuals living with HIV/AIDS occurred in Eastern Europe, Central Asia, and Eastern Asia. (135)
Regardless of the region, infections and deaths increased among gay men, heterosexual married couples, and women, (136) leaving unprecedented numbers of orphaned children. (137) HIV/AIDS had become a cause celebre of various interest groups. The same conservatives that once called HIV/AIDS the punishment for sinning against God were now saying it was a moral imperative to get involved and help the people dying of HIV/AIDS. (138) This conservative religious interest group had changed its tune, and it had the ear of President George W. Bush. (139) President Bush began to publicly talk of funding the fight against HIV/AIDS in Africa. (140) This was a way for President Bush to placate his conservative base and to show the world the good citizenry of the United States. In other words, the United States had used up much of its political capital by going to war in Iraq, and taking the lead in committing funding to combat HIV/AIDS in Africa was a way for the United States to be seen in a different light. Also, a growing groundswell of diverse and influential individuals and government officials pressed President Bush to make global HIV/AIDS a "flagship issue" and to increase the U.S. financial support for the Global Fund. (141) Nonetheless, with Iraq on President Bush's front burner, he had a difficult time making the HIV/AIDS cause a policy priority.
After the United States had been fully entrenched in Iraq for over a year, President Bush began to focus more attention on HIV/AIDS. At a time when the disease domestically was more under control, he declared intentions to increase governmental funds for fighting the disease abroad. (142) At his State of the Union Address on January 28, 2003, President Bush acknowledged the vital importance to the United States of saving millions abroad from decimation by HIV/AIDS. (143) He announced the President's Emergency Plan for AIDS Relief Program (PEPFAR) directed at fifteen focus countries where half of the world's HIV/AIDS victims live. (144) He requested Congress to commit $15 billion in funds for disease prevention and care and treatment of HIV/AIDS victims over five years. (145) Almost one-tenth of all PEPFAR funding was marked specifically for Africa for expenditure on children whose parents were HIV/AIDS victims. (146) It was reported that in its first eight months, PEPFAR supported treatment for approximately 155,000 HIV-infected children and adults in the target countries. (147) It also has been reported that, unfortunately, a large portion of the U.S. aid never actually reaches the identified beneficiaries. (148) Nonetheless, U.S. funding for HIV/AIDS appears to have gained a place on the U.S. global policy agenda. For fiscal year 2006, President Bush asked Congress for $3.2 billion for international HIV programs, but Congress reduced that amount to less than $2 billion. (149) For fiscal year 2007, President Bush requested a $2.89 billion appropriation for global HIV/AIDS. (150) Most of this governmental money is to be channeled through the U.S. Agency for International Development (USAID). (151)
Critics have pointed out that the government's support for fighting HIV/AIDS has been diluted by other health policies of President Bush. (152) Perhaps foremost was President Bush's reinstatement of the global gag rule on his inaugural day in office in January 2001. (153) The global gag rule prevents the principal bilateral conduit of U.S. funding, USAID, from financially supporting foreign NGOs that use their own funds to provide abortion services, counseling, referrals, and information about abortion, whether safe or unsafe, and to participate in legislative or grassroots lobbying on these topics. (154) In 2003, President Bush broadened the global gag rule to cover funding received by foreign NGOs from the U.S. Department of State. (155) President Bush also supported three conservative legislative amendments to PEPFAR that have damaged financial support for HIV/AIDS. (156) Under an amendment introduced by Congressman Joe Pitts, 33% of the PEPFAR funding available for prevention programs and services must be earmarked for "abstinence until marriage" programs. (157) This amendment reduces potential allocations of funds for programs in underdeveloped countries that would inform about the benefits of utilizing condoms to prevent HIV/AIDS and that might otherwise help politically marginalized females subjected to males' sexual and societal dominance. (158) The "Smith Conscience Amendment" permits U.S. funded faith based organizations to refrain from providing information on condoms, even though condoms have been proved effective against contracting HIV/AIDS. (159) The third amendment requires NGOs that receive PEPFAR funds to certify their opposition to prostitution, sex trafficking, and the legalization of prostitution. (160) Although recently held unconstitutional by two federal district courts as applied to two domestic NGOs, (161) this amendment has undercut HIV/AIDS treatment and prevention efforts for sex workers. (162) Reports indicate that these legislative actions have resulted in reduced distributions of condoms and other contraceptive supplies, lessened spending on programs to prevent HIV/AIDS transmission, heightened allocations of MDS relief funding to faith based organizations that traditionally support abstinence-only means of HIV/AIDS prevention and protection, and eliminated funding to international family planning programs that provide legal abortions or abortion counseling in addition to HIV/AIDS prevention programs. (163) These actions have undermined attempts to restrict the spread of the HIV/AIDS pandemic. (164) Thus, there is abundant cynicism with respect to, and criticism of, President Bush's motives and means of implementing his chosen global HIV/AIDS policy. (165)
5. Summary
In sum, as activist nonprofits and the media raised public awareness and private grantors funded HIV/AIDS initiatives, the U.S. government finally became mobilized to financially support the global fight against HIV/AIDS. Various initiatives and innovative partnerships formed and were funded. (166) More corporate and family private foundations shifted commitments to health in their international giving priorities. (167) In large part, the Bill and Melinda Gates Foundation (168) deserves credit not only for its tremendous contributions to projects for the prevention, treatment, and research of HIV/AIDS (and other epidemics), (169) but also for spurring other funders. Indeed, between 1998 and 2002 financial support for disease prevention and treatment, the second largest health recipient category, (170) grew more than ten-fold to almost $161 million, of which more than $71 million was directed overseas. (171)
Despite the raised profile of HIV/AIDS in the late 1990s and the new millennium, the increased financial support, and the flurry of activity, the harsh reality is that the United States (and the world) missed many vital opportunities and years for developing foreign health policies that would help to contain the HIV/AIDS virus and avoid the multitude of global crises produced by proliferation of the disease. For nearly two decades, the president and other official policymakers were not receptive to messages of activist nonprofit organizations or the handful of established private foundations concerned about HIV/AIDS. Presidents' disregard and inaction (172) permitted HIV/AIDS to become a global pandemic of epic proportion, one that to date the global community has been unable to effectively control. Such a tragedy should not be permitted to be repeated as other threats to the health of politically marginalized people around the globe arise. This Article suggests that restructuring the presidential foreign health policymaking system can help avert other such tragic outcomes.
III. FOREIGN POLICY DECISION-MAKING STRUCTURE--THE ACTORS
The making of foreign policy has always been a dynamic and complex process impacted by many events and actors. Scholars suggest that modern U.S. foreign policy can be divided into distinguishable time periods identified by historical motivating forces such as the Cold War and the war against terrorism. (173) They also indicate that U.S. foreign policy in part has stemmed from policymakers' reactive or proactive behavior to these events. (174) How some of those actors should participate in the future is at the heart of this Article.
The many actors involved in the U.S. foreign policymaking processes can be categorized as those having and those not having formal participatory authority. The U.S. Constitution confers on Congress and the president shared powers (175) over foreign affairs. Nonetheless, in modern times, (176) particularly since the presidency of Franklin Delano Roosevelt, the president has been, and may well continue to be, the "imperial" (177) or dominant foreign policymaker. (178) Executive branch agencies, some created in part to provide counsel to policy decisionmakers and to execute policy decisions, (179) also can be important institutional actors in the foreign policymaking system. Since the Vietnam War, an increasing multitude of individuals, (180) private sector businesses, (181) and nonprofits, all of which have no prescribed legal authority or other official position in the foreign policymaking apparatus, have actively vied to influence foreign policymaking. (182) As a result of this mixture, "foreign policy may emerge from shifting and uncertain interactions between the White House, Congress, bureaucratic agencies, and groups and individuals from the private sector." (183)
A. The President as the Primary Foreign Policymaker
The president's expansive visions of executive power (184) and a congressional ceding of its de facto constitutional powers over foreign policy during the first decade of the Cold War era and the current post-September 11th period (185) have enabled presidential dominance over the selection of U.S. foreign policy priorities and the formulation of policy approaches. (186) Disconcertingly, limited transparency and public accountability of the president's official advisory structure have contributed to heightening the president's foreign policy powers. They may also effectively have prevented placement of global health matters on the president's foreign policy agenda. Elite presidential advisors and powerful confidants who have their own foreign policy agendas and biases may create an insular policymaking environment for the president. Because a president's direct contacts with nongovernmental foreign policy actors--individuals, businesses, nonprofit interest groups, and organizations--are initiated by the White House, it is possible for such gatekeepers to shield a president from them, particularly if their concerns are perceived as inconsistent with, or beyond the scope of, U.S. national interest. (187)
The history of the HIV/AIDS crisis is a testament to the insularity of presidents and the lack of transparency and public accountability of their foreign policymaking system. (188) Four presidents--Ronald Reagan, George H.W. Bush, Bill Clinton, and during his first term, George W. Bush (189)--largely ignored, or affirmatively rejected, (190) the need to attend to the HIV/AIDS pandemic and the worldwide humanitarian, health, economic, political, and security crises it generated. (191) And their tragic inaction occurred despite formal organizational structures that enable presidents to receive from governmental advisors input on noteworthy foreign issues. (192)
B. Executive Branch Agencies
Executive branch agencies are "expected to be the government's 'eyes and ears,' searching for incipient global changes and assessing American needs and interests abroad." (193) Leaders of such executive agencies as the Departments of State, Defense, Treasury, Homeland Security, and Health and Human Services (H.H.S.), as well as the Central Intelligence Agency are expected to provide expert and impartial counsel to the president in shaping foreign policy. (194)
Nonetheless, political and job-related pressures can affect the impartiality, scope, and nature of the advice that these government officials offer to a president for consideration in his foreign policy deliberations. Without publicly transparent processes, these governmental "eyes and ears" may fail to aggressively pursue matters unpopular to a president or may spin information to fit a president's own foreign policy agenda, perhaps leaving little room to represent those lurking dangers to U.S. interests precipitated by health privations endured by politically marginalized minorities abroad.
These failures appear to have contributed to presidents' policy inaction with respect to HIV/AIDS. Despite recognition in the early 1980s by the C.D.C., a division of H.H.S., (195) of HIV/AIDS as a potential health threat of great magnitude domestically and abroad, (196) the leaders of H.H.S. did not demonstrate much interest in pushing the HIV/AIDS pandemic onto the presidents' foreign policy screens. There were a few minor exceptions. For example, more than a decade after HIV/AIDS was branded a potential public health threat, President Clinton appointed Donna Shalala Secretary of H.H.S. in 1993. Soon after her appointment, Ms. Shalala declared AIDS as the number one disease priority, both domestically and internationally. (197) During her six years as Secretary of H.H.S. she directed the process to reform the welfare system, made health insurance available to an estimated 3.3 million children through the approval of all State Children's Health Insurance Programs, raised child immunization rates to the highest levels in history, led major reforms of the Federal Drug Administration's drug approval process and food safety system, revitalized the National Institutes of Health, and directed a major management and policy reform of Medicare. (198) Despite these accomplishments, she was unable to generate sufficient interest to elevate AIDS to the president's domestic or foreign policy realm. (199)
Another executive branch appointee of President Clinton, Madeleine Albright, who assumed the position of Secretary of State in 1996, made some tentative efforts that year to raise public awareness of the HIV/AIDS problem. In December 1996, she addressed the World AIDS Day participants and thereafter commissioned a State Department report on the pandemic. 200 But, if she made any attempts in 1997 or 1998 to elevate HIV/AIDS as a possible presidential foreign policy matter, she was unsuccessful. The State Department's March 1999 issuance of its report, the "1999 U.S. International Response to HIV/AIDS," did not place the global pandemic onto the list of the president's foreign policy priorities. (201) Nor did Mrs. Albright's subsequent address to the U.S.-Africa Partnership Ministerial in Washington, D.C., indicate that she was successful, when she stated that "[w]e need to focus urgently on the devastating impact of HIV/AIDS, and make a commitment to address the disease as a national and international priority." (202)
The failure to advance HIV/AIDS to a position on President Clinton's foreign policy agenda may not be surprising. Although Ms. Shalala served as President Clinton's main health counsel and Mrs. Albright served as his principal foreign policy advisor, apparently neither Secretary forcefully and continuously emphasized her imperative conviction to forging solutions to the global HIV/AIDS problems. (203) Many political scientists, moreover, characterize President Clinton as a president who viewed "foreign policy as a 'distraction' from his domestic agenda and sought to delegate its formulation to others whenever possible." (204) If President Clinton's integral senior foreign policy expert with "unparalleled responsibilities at the apex of the U.S. foreign policy-making apparatus" (205) was not fully committed to combating global HIV/AIDS, and his top H.H.S. official failed to vociferously and repeatedly push for his attention to the disease, then inclusion of global HIV/AIDS on President Clinton's foreign policy agenda had zero to slim chance. Therefore, it appears that the government's "eyes and ears" are not necessarily protectorates of significant U.S. interests in the presidential foreign policymaking scheme.
C. Nonprofits as Nongovernmental Actors
Domestic nonprofit organizations and interest groups (206) have exploded in number in recent years. (207) They have represented various ethnic or religious constituencies, coalesced around specific causes, sought to direct public opinion on foreign policy matters, financed foreign policy studies, (208) and supported foreign policy initiatives. Although some have marshaled considerable financial and electoral forces, scholars have suggested that their activity levels must be distinguished from, and are not the equivalent of, a power to truly influence a president's actual formulation, selection, and adoption of U.S. foreign policy. (209) Indeed their overall influence on the president's foreign policymaking processes appears relatively minor. (210)
IV. PRACTICAL REASONS FOR A FORMAL POLICYMAKING ROLE FOR NONPROFITS
A. Nonprofit Organizations as Unofficial Designers of Foreign Health Policy
The modest influence of domestic nonprofits on presidential foreign policymaking is not without some counterbalance. For many years, domestic nonprofits privately, often quietly, and unofficially have designed a substratum of foreign health policy through their missions, economic support, and activities. (211) In efforts to contain and eradicate infectious and other diseases that afflict adults and children abroad, domestic private foundations and public charities have created and implemented new prevention, treatment, intervention, and relief programs. (212) They have financially supported and provided family planning services, prenatal care, and reproductive health initiatives worldwide. (213) These nonprofit organizations have made grants and initiated health and medical education projects, healthcare training services to communities, and training programs for healthcare workers abroad. (214) Private foundations have funded research on drugs, gene therapy, and other medical treatments for combating diseases afflicting men, women, and children worldwide. (215) They have financially supported health policy issues aimed at promoting global health equity and international public health policy initiatives. (216) Frequently as first responsible responders, often impelled by inadequate U.S. government reaction, domestic nonprofits have formulated their contributions to and involvement in global health matters when major diseases and medical needs are detected and as overseas geographic areas and population segments requiring assistance are identified.
B. Limitations of Unofficial Role
One thus might consider the world fortunate that our domestic nonprofits are such integral actors in foreign health policymaking and implementation. Nonetheless, there are distinct real or potential limitations to their informal role.
First, there is negligible public accountability for, and transparency by which, nonprofit organizations privately create a substratum of foreign health policy. While nonprofits freely develop many worthwhile global health initiatives for politically vulnerable minorities abroad, they generally do so with tax advantaged funds. This tax advantage carries with it a responsibility for openness and public accountability.
Second, where nonprofit organizations are the primary, or sometimes even the exclusive, unofficial responders to global health needs, the response conceivably can suffer from a lack of orchestration on several levels. On a macro foreign policy level, if and when nonprofit entities act without consultation with governmental policymakers, they may interfere inadvertently with unrelated foreign affairs and consequently create tensions or unanticipated problems. They may unintentionally impede certain diplomatic processes. (217) On a micro foreign policy level, where nonprofit entities do not consult with one another and do not orchestrate their plans, projects, and funding, their efforts can be duplicative and the potential impact of outcomes diluted.
Third, informal interaction of nonprofits with the president is subject to the previously discussed notable constraint of presidential advisors' and staff members' acting as gatekeepers. Those gatekeepers easily might exclude many knowledgeable nonprofit organizations in favor of the inclusion primarily of elite, rich, (218) established, sympathetic, financially supportive, and politically agreeable nonprofits. (219) The executive gate keeping mechanism obviously has the ability to readily deny access by groups and entities that represent certain unpopular or politically risky views, causes, and people. Therefore, small nonprofit affinity groups generally are not granted direct contact with the president, despite the fact that they have the potential to be '"an advance alert system' ... to raise the visibility of emerging social problems and policy issues." (220) Overall, the system permits a distortion of information access and limits vigorous discussions of important concerns and large and perhaps innovative ideas with the nation's primary foreign policy decisionmaker.
Finally, the public may speculate that interactions of the select few nonprofit representatives who directly interact behind closed doors with the president include more than exchanges of ideas and expertise. The absence of public scrutiny and accountability can damage confidence in the appropriateness of interests represented, information transmitted, terms of deals arranged, and subsequent satisfaction of negotiated obligations. (221)
C. Practical Reasons for an Official Role
Providing an official institutionalized role for nonprofits at the president's foreign health policymaking table could positively attend to the above identified limitations of the current system. A modified system could and should be structured to include a broader base of nonprofit "service bureaus" (and thus a wider range of people they represent). (222) It should enhance the flow of high quality information; directly bring greater expertise, analysis, and innovative ideas to long-range global health policy matters; provide a forum for the exchange of controversial proposals and for deliberate feedback; (223) and create vigorous discussion. Alteration must proceed with caution to ensure that the president's foreign health policymaking process evolves into opportunities for constructive interchange on serious global health matters by responsible participants. It should include increased transparency of process and public accountability of all official participants who contribute to identifying the global health problems, determine risks and stakes of action and inaction, define policy options, and otherwise enable the president to set and implement an appropriate foreign health policy agenda.
Under a modified system, as U.S. foreign health policy is defined, adopted, and executed, all formal participants would have a stake in the outcome and be subject to public scrutiny. Thus, the institutional inclusion of nonprofits could offer a more transparent and balanced political enterprise, enhance the operative democratic principles of our nation, (224) restrain inordinate executive power through increased accountability, imbue the presidential foreign policymaking processes with a new legitimacy, and further the interests of U.S. citizens and people across the globe.
V. CONSTRUCTING AN APPROPRIATE POLICYMAKING STRUCTURE
A. Paradigms of Nongovernmental Organizations' Participation in International Bodies' Policymaking Processes
There is no magical best structure for achieving the integration of domestic nonprofit organizations as official actors in the president's foreign health policymaking processes. Paradigms that provide formal arrangements for the participation of NGOs (225) in various international bodies charged with goals of rule making and policymaking authority incorporate qualities and some functions comparable to the one envisioned here. Therefore, six possible models, each with different features, are discussed below.
Because no one of the six paradigms presents an entirely suitable arrangement for the task at hand, formulation of a new structure should draw upon a composite of the models' most appropriate attributes. Each of the six models--the World Trade Organization (WTO), the NGO-World Bank Committee, the WHO, the International Labor Organization (ILO), the Organization for Economic Cooperation and Development (OECD), and the U.N.'s Economic and Social Council (ECOSOC)--contain negative and positive characteristics. Clearly, the pervasively weak traits of each paradigm should be avoided, and the structure of a paradigm considered as lacking overall operational effectiveness should not be adopted without considerable modification. In particular, the WTO paradigm does not recognize direct involvement by NGOs in the work of the WTO, an attribute to avoid. Such direct involvement is important in a new presidential foreign health policymaking structure for purposes of NGO public accountability and contributions of diverse and informed perspectives. Many, but not all, characteristics of the NGO-World Bank Committee and the WHO models are eschewed because these models have been forcefully criticized as overly complex and ineffective. (226) On the other hand, the ILO, the OECD, and ECOSOC have been considered largely effective and contain numerous positive attributes that should be imported into a new presidential foreign health policymaking structure.
After briefly outlining the various attributes of the six models, this Article suggests those characteristics that may help cure infirmities of the current processes. The Article then suggests how these attributes might be aggregated and utilized in a constitutionally acceptable and functionally appropriate structure that extends a significant official role to nonprofits.
1. World Trade Organization
The WTO is the only international organization dealing with the global rules of trade between nations dedicated to promoting economic globalization and free trade. (227) It currently includes 149 member countries. (228) The WTO has two major functions, one legislative and another judicial. It is a forum for member nations to negotiate and develop by consensus trade rules, policies, and agreements with the goal of helping "producers of goods and services, exporters, and importers conduct their business" (229) by reducing or eliminating international trade barriers. (231) The WTO also functions as a trade dispute resolution body, although it has no significant enforcement power other than sanctions. (231)
Upon its 1994 formation, the WTO adopted a formal consultative role for NGOs. (232) According to Article V of the Marrakesh Protocol, (233) the WTO General Council has discretion to "make appropriate arrangements for consultation and cooperation with nongovernmental organizations concerned with matters related to those of the TWO." (234) Two years later, to establish that relationship the WTO General Council adopted "Guidelines for Arrangements on Relations with Non-Governmental Organizations" (Guidelines). (235)
The Guidelines acknowledge the importance of the public's image of WTO activities and in this regard suggest that better communications with NGOs and greater organizational transparency are key to this end. (236) Nonetheless, the Guidelines adopt the view that NGOs should not be "directly involved in the work of the WTO or its meetings." (237) Instead, the Secretariat should have more active interactions with NGOs, which, as a "valuable resource," can contribute to public discourse and on an ad hoc basis might participate in some manner in symposia, present information helpful to delegates, and respond to requests for general information and briefings about the WTO. (238) The Guidelines authorize a WTO council or committee chairperson to interact with NGOs in an official capacity (as opposed to a personal capacity) only if the council or committee approves. (239)
Thus, the Marrakesh Protocol and the Guidelines established at most the illusion of an official role for NGOs in formal WTO processes. (240) These documents do not encourage NGOs, as voices for under-represented or unrepresented people, to formally, regularly, and reliably provide input to the member nations negotiating trade policies. This model, therefore, is inadequate for a new presidential foreign health policymaking structure.
2. The NGO-World Bank Committee
The World Bank, a development bank that provides loans, policy advice, and technical assistance to developing countries, states that its mission is "global poverty reduction and improvement of living standards." (241) It undertakes initiatives intended to foster job creation and empower the poor, (242) and it acknowledges the importance of NGOs in accomplishing these global goals.
In 1981, sixteen international NGOs and the World Bank formed the NGO-World Bank Committee in an effort to strengthen their relationship, dialogue, and exchange. (243) The NGO-World Bank Committee is intended as a vehicle for collaborative discussion of World Bank policies, programs, and projects. (244)
The NGO-World Bank Committee is composed of World Bank senior managers and a global steering committee, currently composed of fifteen international, national, and regional NGOs from countries around the world. (245) The global steering committee's NGO participants are elected by the NGO Working Group on the World Bank (NGOWG), an autonomous group open to NGOs worldwide concerned about and involved in equitable and sustainable development. (246)
The NGOWG attempts to be globally focused, but it concentrates increasingly on establishing liaison capacity with networks of countries' regional and local NGOs. (247) The current ambition to establish liaisons defines the NGOWG's present priorities. To this end, NGOWG intends its research projects and information sharing to strengthen the World Bank's dialogue with NGOs, the expansiveness of its regional work and meetings in developing countries, and the selection of diverse NGOs to serve on the NGO-World Bank steering committee. (248)
For years, the NGOWG met annually to elect members of the NGO-World Bank steering committee and to recommend to the steering committee priorities for the annual NGO-World Bank Committee meeting. From 1995 through 1997, the NGOWG decentralized its approach, dividing the world into seven regions (249) and commencing regional meetings to elect members of the NGO-World Bank steering committee. (250) The NGOWG intended this restructuring to promote a broader range of NGO participation, foster regional versions of the NGO-World Bank Committee, utilize regional meetings to elect members of the global steering committee, and strengthen grassroots input into World Bank Initiatives. (251) Three years later, the NGO-World Bank Committee itself endorsed a joint resolution between the World Bank and the NGOWG to further enhance relations, promote involvement of a larger range of civil society organizations, and facilitate a wider range of regional activities. (252)
These complex participatory structures and stated ideals purport to involve a wide group of NGOs in issues and projects important to the World Bank and civil society around the world. (253) The broad inclusion of NGOs has advantages, and the inclusivity should foster collaboration among local and regional NGOs at regional conferences. But in reality collaboration among local and regional NGOs frequently occurs outside the formal processes, which critics regard as potentially rendering official processes less effective. The breadth of NGO representation also should bring diverse but well considered, persuasive, and informed perspectives to NGO-World Bank Committee meetings. Restricted public access to NGO-World Bank Committee meetings, however, may diminish the effectiveness of the NGO stakeholders relative to that of the World Bank representatives. (254) Moreover, closed doors allow little transparency and limited public accountability about what transpires in those meetings. Despite the achievement of some significant initiatives as a result of the NGOWG and the NGO-World Bank Committee processes, (255) many NGOs have criticized these collaborative outcomes and have faulted the participatory structures as merely World Bank public relations tools. (256) These problems must be avoided in adopting a new structure for the president's foreign health policymaking.
3. U.N.'s World Health Organization
The WHO, the U.N.'s specialized agency for health created in 1948, seeks to enable people globally to attain a high level of health. (257) The World Health Assembly (WHA), the WHO's governing body, is composed of 192 member states. (258) Among the WHA's main responsibilities is the determination of the WHO's policies and programs. (259) The WHA appoints a Director-General, who serves as the head of the WHO. (260)
In accordance with Article 1 of the WHO's Constitution, the WHO may make "suitable arrangements for consultation and cooperation" with NGOs. (261) The WHO's Principles Governing Relations with Nongovernmental Organizations (Principles), specify that such arrangements can be in the form of both official and informal relationships between the WHO and NGOs. (262) But any official relationship must be preceded by at least a two year informal collaborative working relationship. (263) The Principles provide that those NGOs that are eligible for official status are normally international organizations (264) with a federated composition (of national or regional groups or having individual members from different countries), foundations that raise financial resources for health development in different countries, and other bodies that promote international health. (265)
As of 2002, 189 NGOs had official status in the WHO. (266) That status entitles them, but not those NGOs with merely informal status, to appoint a representative to participate in WHO meetings, conferences, and committees. (267) In no event do official NGOs have voting rights. (268) In meetings, conferences, and committees, however, they may discuss items of particular interest to them and their constituencies, submit expository statements at the chairperson's invitation or upon agreement to an NGO's request, have access to non-confidential documents as the WHO Director-General permits, and present a memorandum to the Director-General for circulation as he permits. (269)
With the agreement of the WHO Director-General, the U.N.'s Civil Society Initiative commissioned a report to review the effectiveness of the NGO-WHO dual relationship system. (270) The 2002 report criticized several aspects of these relationships, including the application process to obtain official NGO status as excessively arduous and bureaucratic, (271) the interests of some official NGOs' concerns as inappropriately political or commercial, (272) actual attendance of official NGOs at WHA meetings as under-representative of all official NGOs, (273) and the submission of written statements and receipt of non-confidential documents as unduly restrictive, minimizing meaningful NGO participation. (274) Again, such structurally related deficiencies must be avoided in formulating a new presidential foreign health policymaking system.
4. International Labor Organization
The ILO is a specialized agency that the U.N. created to promote social justice and international recognition of human and labor rights. (275) Among its tasks, the ILO sets international labor standards. (276) Its annual International Labor Conference (ILC) has three official participants: NGOs representing employers, NGOs representing workers, and the 178 member governments. (277) The ILC is tasked with making policy, suggesting legislative and practical recommendations on labor matters, and proposing standards in the form of conventions for member states' ratification. (278)
To accomplish its goals, the ILO Constitution provides official means for participation of the employer and worker NGOs in ILO affairs. The constitution broadly provides that the ILO must cooperate with "any general international organization entrusted with the co-ordination of the activities of public international organizations having specialized responsibilities and with public international organizations having specialized responsibilities in related fields." (279) The constitution further permits, but does not mandate, the ILO to allow public international organization representatives to participate without vote in ILO deliberations and to make arrangements for recognized international NGOs to consult with the ILO. (280) These general constitutional articles are given more specific practical application in other provisions that address the annual ILC.
At each annual ILC, member state representatives are entitled to vote on all matters taken into consideration by the conference. (281) Participation at the ILC by employer and worker NGOs, however, depends upon a state's representative nominating an NGO as a delegate or advisor. (282) In particular, the constitution provides that, after complying with written procedures, a state's representative may appoint worker and employer NGO agents as its deputy delegates. (283) The advisor, while acting as the deputy, is permitted to speak and vote at the ILC. (284) If, however, only one NGO agent is appointed, that NGO is allowed to speak at the ILC but not to vote. (285) Absent fulfillment of the requisite written procedures, an NGO may act solely in an advisory capacity to the representative. (286) In that situation, the NGO advisor is prohibited from speaking except on the representative's request and by special authorization of the ILC president. (287) Such an advising NGO cannot vote at the ILC. (288)
This ILO constitutional structure thus extends to NGOs the potential for an official, formal role "approaching parity" to that of member states at an ILC in making policy, advancing legislative and practical recommendations on labor matters, and proposing labor standards. (289) Because NGOs are not merely engaged in hallway politics but assume a spokesperson role, a voter role, or both, their public accountability is reinforced. This attribute should be emulated in a new structure for presidential foreign health policymaking.
5. Organization for Economic Cooperation and Development
The OECD, (290) an organization composed of thirty developed market member countries, (291) is committed globally to democratic government, promoting "the highest sustainable growth of their economies," and improving "the economic and social well-being" of their citizens. (292) In consultation and cooperation with seventy nonmember states, (293) predominantly emerging or developing countries, and civil society organizations, the OECD identifies and pursues policies and undertakes efforts to "foster prosperity and fight poverty through economic growth, financial stability, trade and investment, technology, innovation, entrepreneurship and development cooperation." (294) The OECD generates international instruments, (295) decisions, and recommendations to promote countries' growth and progress in the globalized economy. (296) It is an organization where exchanges and policy research on topics of mutual concern and interest occur. (297)
With the 1960 adoption of the Convention on the Organization for Economic Cooperation and Development, the OECD created its basic authority to establish and maintain relations with non-member states and organizations. (298) Two years later, the OECD's ruling body, the Council, adopted a decision providing for consultation with NGOs. (299) This decision establishes three criteria for NGO official "consultative status": the NGO must have (1) wide responsibility in general economic matters or in a specific economic sector, (2) affiliated bodies belonging to all or most OECD member countries, and (3) substantial representation of nongovernmental interests. (300) Few nongovernmental organizations qualify under these standards; currently only five NGOs have consultative status with the OECD. (301) The two primary NGOs with consultative status are the Trade Union Advisory Committee (TUAC) and the Business and Industry Advisory Committee (BIAC).
In 1962, BIAC was created, and officially recognized by the OECD as an umbrella organization to actively represent the interests of its industrial and employer constituents drawn from the thirty member states of the OECD. (302) BIAC has its own standing committees that functionally mirror OECD committees. Therefore, each BIAC standing committee, as well as BIAC task forces and policy groups, can identify important emerging topics, address long-term issues, and develop positions important to its constituents and the OECD members. (303) BIAC positions are structured as consensus documents, enabling BIAC to speak with one voice for all members at OECD meetings, global forums, and in consultations with OECD leaders, government delegates, committees, and working groups. (304)
TUAC coordinates and represents policy views of trade unions from the industrialized member countries of the OECD. (305) Its constituents are fifty-six national trade unions, which together represent approximately 66 million workers. (306) TUAC does not have standing committees that mirror the OECD committees. Instead, it has working groups on economic policy, global trade and investment, and education, training and labor market policy that prepare TUAC positions for consultations with the OECD. (307)
BIAC's and TUAC's consultations with the OECD, for which the OECD chief administrative officer, the Secretary-General, is tasked to maintain and administer, (308) can occur through three separate means of formal exchange. First, communications and involvement can be through the OECD's NGO Liaison Committee, which is responsible directly to the OECD Council, the main acting body of the OECD. (309) Second, BIAC and TUAC can be participants at special meetings of OECD committees. If permitted, they may express views orally or through position papers, but gatekeepers may limit their participatory role to one of an observer. (310) And the NGOs do not have the right to propose agenda items for the meetings. (311) Finally, the consultative NGOs can be invited to participate at sessions of an OECD subsidiary body. (312) But in no situation does a consultative NGO have voting rights. (313)
OECD leaders as gatekeepers also can control BIAC's and TUAC's access to OECD documents. The consultative NGOs may request general information on the work of the OECD and may ask for OECD documents and summaries often unavailable to the public and other entities, (314) but there is no assurance that they will obtain access to requested materials.
In sum, there are established means for consultative NGOs, as representatives of their constituencies, to be official participants in the OECD policy consideration processes. Although this attribute is positive, there appears to be little regularization of ongoing participation levels. (315) A notably constructive feature of BIAC's and TUAC's formal roles is that functionally, on behalf of their respective constituents, each presents a united force and a singular view to the actual policy decisionmakers. Thus, certain characteristics of the OECD model should be imported into a restructured presidential foreign health policymaking structure, while others should be avoided.
6. U.N.'s Economic and Social Council
The U.N.'s ECOSOC is designed to promote social and economic progress, encourage respect for human rights, and identify solutions for health problems. (316) ECOSOC coordinates the work of its specialized agencies, (317) programs, and commissions, and it issues policy recommendations to the U.N. General Assembly. (318)
Article 71 of the U.N. Charter provides for formal consultative status of NGOs to ECOSOC through "suitable arrangements." (319) The main purposes of consultative status arrangement are to benefit ECOSOC by NGOs sharing their expertise and to enable NGOs to express "important elements of public opinion" and other valuable perspectives. (320) NGOs also serve as technical experts and advisors, and they raise awareness of issues unknown, overlooked, or ignored by the U.N. with the aim of influencing diplomats' decisions. (321)
In practice, NGOs participate widely and extensively. (322) Currently, over 2,700 NGOs enjoy ECOSOC consultative status. (323) Each of these NGOs is recognized as having consultative status for "matters falling within the competence of the Economic & Social Council and its subsidiary bodies." (324) Each consultative NGO must conform to guidelines listed in Resolution 1996/31, (325) which requires the NGO to have "recognized standing" among organizations in the "field of its competence or of a representative character." (326) For the most part, these NGOs are international NGOs; national NGOs qualify only in exceptional circumstances. (327) Each such NGO must have an established headquarters and a democratically adopted constitution with policymaking provisions. (328) In addition, the "basic resources" of a consultative NGO must be derived mainly from contributions of national affiliates or individual members. (329) The extent of an NGO's ability to contribute to, and participate in, the work of ECOSOC depends upon the level of accreditation granted by ECOSOC. (330) In other words, an NGO's rights, as well as its obligations, are determined in accordance with a three-tier accreditation system. Pursuant to this tiered system, NGOs can be granted general consultative, special consultative, or roster consultative status. (331)
General consultative status provides the broadest prerogatives. To qualify, NGOs must demonstrate that they "have substantive and sustained contributions to make to the achievement of the objectives to the United Nations ... and are closely involved with the economic and social life of the peoples of the areas they represent and whose membership, which should be considerable, is broadly representative of major segments of society." (332) Generally, these qualifications limit general consultative status to "large, well established international NGOs with a broad geographic reach." (333)
Special consultative status is limited to NGOs that "are concerned specifically with only a few of the fields of activity covered by the Council ... and that are known within the fields for which they have or seek consultative status." (334) Roster consultative status is conferred on NGOs that "can make occasional and useful contributions to the work of the Council." (335)
These three tiers accord formal participatory rights. But regardless of the tier into which an NGO fits, an NGO does not have any right to vote on matters deliberated by ECOSOC. (336) Those NGOs granted general consultative status have the most extensive rights, including: (1) entitlement to receive ECOSOC provisional agendas; (337) (2) the ability to propose ECOSOC agenda items; (338) (3) the right to designate representatives and to sit as observers at public meetings of ECOSOC and its subsidiaries; (339) (4) entitlement to circulate statements of 2,000 words at ECOSOC meetings and meetings of its subsidiaries, with such statements published as U.N. documents and circulated by the Secretariat; (340) (5) the right to speak at ECOSOC meetings and those of its subsidiaries; (341) (6) entitlement to participate in U.N. conferences; (342) and (7) entitlement to consult with officers of sections of the Secretariat on matters of mutual concern or interest. (343)
NGOs granted special consultative status have many of the same rights as those granted general consultative status. Special consultative NGOs are denied, however, the rights to propose ECOSOC agenda items (344) and to speak at ECOSOC meetings (but they can speak at the meetings of ECOSOC subsidiary bodies). (345) Moreover, their statements circulated at ECOSOC meetings are limited to 500 words, and those circulated at meeting of ECOSOC's subsidiaries are limited to 1,500 words. (346)
More limited rights are conferred upon NGOs accorded roster consultative status. Such NGOs can (1) receive ECOSOC provisional agendas, (347) (2) designate representatives at a public meeting of ECOSOC or a subsidiary body if such meeting concerns matters within the NGO's particular area of competence, (348) (3) be invited to U.N. conferences, (349) and (4) be entitled to consult with officers of sections of the Secretariat on matters of mutual concern or interest. (350)
These rules have permitted NGOs with consultative status to regularly be a non-voting but integral public influence on global affairs. This positive attribute is tempered, however. Because the accreditation criteria imposed result in excluding national NGOs and in including largely Western NGOs, critics have suggested that these influences can be skewed. (351) Nonetheless, the consultative NGOs generally are perceived as a reliable and centralized source to which U.N. delegates and the public can turn for identification of issues, as well as education and technical advice with respect to those matters. Their published materials and oral statements become part of the public record and official dialogue, and thus they have significant public accountability. (352) The consultative NGOs' working relationships with sections of the Secretariat and section programs, as well as their participation in conferences and other official forums, help to shape not only the policy issues presented to U.N. delegates and the world but also the policy outcomes. (353) Such attributes should be imported into a new presidential foreign health policymaking system.
B. A Constitutionally Acceptable Revised Presidential Foreign Health Policymaking Structure
The remainder of this Article focuses on proposing a formulation for a new presidential foreign health policymaking arrangement. The proposal conceives of using an existing structure, a Presidential Advisory Committee, as one part of the system. For reasons set forth below, an additional supplementary structure, an Assembly of Nonprofit Entities, is envisioned. The Article suggests that together these two components can enhance and strengthen the president's policymaking on global health matters through greater inclusiveness of voices at his policymaking table.
1. A Presidential Advisory Committee
Since nearly the birth of our nation, presidents have created advisory committees for the purpose of directly soliciting their members' specialized expert opinions, ideas, and recommendations. (354) In modern times, presidents have sought advice on a range of topics, including ecosystems and health care, and consequently have directly established advisory committees. (355) Since 1972, Presidential Advisory Committees have operated under the administrative procedural requisites and restrictions of the Federal Advisory Committee Act (FACA). (356)
FACA describes the term "Presidential Advisory Committee" as "an advisory committee that advises the President." (357) The Act more broadly defines "advisory committee" as a committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof ... which is--
(A) established by statute or reorganization plan, or
(B) established or utilized by the President, or
(C) established or utilized by one or more agencies,
in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government. (358)
The Supreme Court described the term "advisory committee" as having "almost unfettered breadth." (359) Nonetheless, FACA has several express exclusions from the definition of an "advisory committee." (360) Moreover, the courts have held that a group that is principally operational and is not functionally a direct advisor to the president is not considered a Presidential Advisory Committee under FACA. (361) Thus, a Presidential Advisory Committee is solely advisory in function; it is not a decision-making body. (362)
Congress designed FACA to enhance governmental transparency and accountability. (363) Numerous provisions in FACA attempt to make such an advisory committee publicly accountable. Pursuant to FACA, the public and Congress must be kept apprised of a Presidential Advisory Committee's functional scope, objectives, membership, and activities. (364) Prior to its first meeting, a Presidential Advisory Committee must have a charter that states its purpose (365) and limits its duration to a two-year term (366) that may be renewable with proper justification. (367) FACA requires the meetings of an advisory committee generally to be open to the public (368) and to be chaired or attended by a designated federal government official. (369) Records of the advisory committee must be publicly disclosed and available, (370) subject to nine possible exemptions under the Freedom of Information Act. (371)
In addition to the focus on transparency and accountability, FACA attempts to ensure that a Presidential Advisory Committee is well rounded, and its advice is unbiased. Accordingly, the advisory committee's membership composition must be "fairly balanced in terms of the points of view represented," (372) and the committee's advice must be free of inappropriate influences "by the appointing authority or by any special interest." (373)
2. A New Presidential Advisory Committee on U.S. Foreign Health Policy
The major characteristics of a Presidential Advisory Committee--(1) its establishment by the president for the explicit purpose of his directly receiving informed opinions, advice, and recommendations of individuals having special expertise, who cumulatively are fairly balanced and whose advice will not represent any one special interest; (2) its transparency; and (3) its public accountability--fit several of the important criteria for placing the nonprofit sector in a meaningful official role in U.S. foreign health policymaking. The president could create and meaningfully utilize a new Presidential Advisory Committee on U.S. Foreign Health Policy, the membership of which should be representatives of domestic nonprofits that are involved in and have special knowledge of global health matters affecting marginalized minorities abroad. The Committee members, a small number by necessity, should represent the broad spectrum of global health grant-making institutions, U.S. based international health service oriented entities, and health policy and treatment research organizations--that is, private foundations, public charities, academic institutions, and think tanks. (374)
A Presidential Advisory Committee on U.S. Foreign Health Policy could help remedy the weaknesses described earlier. Such a knowledgeable group would have direct access to the president and could offer the president insights and counsel based on varied experiences, sources of information and data, and perspectives. The proposed Presidential Advisory Committee could provide a forum for sincere engagement, debate, and constructive interchange on emerging and ongoing global health issues impacting marginalized minorities abroad, (375) could reinforce the appropriate direction for foreign health policy, and could facilitate policy execution. Such a Committee also would give nonprofits a real stake in the process and, ultimately, in implementation of the final policy adopted by the foreign policy decisionmaker, the president. The suggested Presidential Advisory Committee on U.S. Foreign Health Policy also would provide a formal institutionalized means of enhancing democratic participation in policymaking on global health matters for at least an experimental period of two years, the initial statutory duration of a Presidential Advisory Committee. (376)
Nonetheless, the proposed Presidential Advisory Committee lacks an element crucial to a new presidential foreign policymaking regime. Although as conceived the Committee's membership would broadly represent nonprofits involved in, and concerned about, global health matters, it necessarily must be limited in number. Consequently, this suggested Presidential Advisory Committee structure alone cannot provide institutionalized opportunities for the broad spectrum of nonprofits to have input and exchanges on emerging and ongoing important global health matters, the outcomes of which should be shared with the president. Therefore, an additional vital facet must be designed and coupled with the proposed Presidential Advisory Committee to ensure that many nonprofit voices with relevant worldwide experience or knowledge are considered in the advice ultimately represented to the president.
3. An Assembly of Nonprofit Entities
Many of the paradigms discussed in Part V.A. above, including the ECOSOC, the OECD, the WHO, and the ILO, incorporate a means to engage NGOs in a consultative capacity and to harvest their expertise, experiences, and research to benefit policymaking processes. Some models, such as ECOSOC and the OECD, establish accreditation criteria to select a spectrum of representative NGOs to participate in the processes. For example, ECOSOC has an elaborate tiered system that confers participatory rights on NGOs in policymaking processes in accordance with their perceived ability to contribute to the processes. (377) Those NGOs conferred "general consultative" status as a result of their demonstrated substantive and sustained contributions to U.N. objectives are accorded the broadest prerogatives. Their privileges include rights to attend ECOSOC meetings and conferences, circulate statements for publication and consideration, speak at ECOSOC meetings, participate at U.N. conferences, and consult with ECOSOC leaders on matters of mutual concern. Those NGOs granted "special consultative" status because of their ability to make occasional and useful contributions to the U.N.'s goals are allowed more limited rights, but they can participate, without speaking, at ECOSOC meetings and can circulate limited statements at those meetings. Finally, "roster consultative" NGOs are permitted more limited privileges, but they, too, have formal participatory rights at ECOSOC meetings and U.N. conferences.
A new presidential foreign health policymaking structure should engage a broad spectrum of domestic nonprofit organizations that make grants; undertake research; organize or perform field work; or otherwise directly support, advocate for, or impact global health matters affecting marginalized minorities abroad. It is essential that their expertise, concerns, and insights inform the president. This flow of information can be accomplished indirectly through the president's advisors on a Presidential Advisory Committee for Foreign Health Policy. In other words, the nonprofits must meet formally with, be considered advisors to, and be represented by the members on such a Presidential Advisory Committee. (378) To this end, appropriate forums and procedures must be developed.
The paradigms of international policymaking bodies offer a potentially effective approach. Forums for discussion, debate and presentation, meetings, and conferences can be held both among the nonprofits and between those entities and the Presidential Advisory Committee members. Over time, at these meetings and conferences incipient and intensifying health concerns may be shared, global health matters ripe for inclusion on a U.S. foreign health policy agenda should be identified, formulations of responsive health policy could be suggested, and advice on implementation could be communicated.
To select a representative array of nonprofits to participate in such forums, accreditation standards might be developed. Like the accreditation standards used in several paradigms, a tiered approach might be created to ensure the greatest participatory privileges to those nonprofits with the most direct or broadest involvement in global health matters.
The exact contours and parameters of such an Assembly of Nonprofit Entities must be considered in far greater detail than this Article can present. There are many particulars that need addressing--the selection criteria for nonprofits' participation, the formal operational structure of the Assembly, whether the nonprofits should present consensus positions to members of the Presidential Advisory Committee, etc. Nonetheless, there are existing models, some of which are discussed in Part V.A. above, that could be quite helpful in developing the necessary structural and procedural details. The ultimate structure should enable many nonprofit entities with specialized experiences, insights, knowledge, and capabilities to valuably contribute to the president's foreign health policymaking endeavor.
VI. CONCLUSION
This Article suggested that the constraints and weaknesses of the current presidential foreign health policymaking process warrant its alteration. Seeking to foster greater public accountability and bring a new legitimacy to presidential foreign policymaking, it advocated the adoption of a structure offering a more transparent, better informed, and balanced enterprise. And, attempting to ensure that strategic U.S. concerns and global humanitarian, economic, social, political, and security interests are adequately and appropriately served, the Article promoted adoption of an approach that enhances the inclusiveness of concerned voices represented at the president's foreign policymaking table. Based on several paradigms offering valuable attributes, the Article suggested two new structures: a Presidential Advisory Board on U.S. Foreign Health Policy, composed of nonprofit organization representatives and an Assembly of Nonprofit Entities. This arrangement is proposed as a meaningful approach to officially integrating into the president's foreign health policymaking processes U.S. nonprofits that can assist in identifying incipient and intensifying global health problems and needs, in recommending responsive formulations and policy options, and in protecting vital U.S. interests.
** Letter from James Madison to W.T. Barry (Aug. 4, 1822), in 9 WRITINGS OF JAMES MADISON, at 103 (Gaillard Hund ed., 1910), quoted in Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group, 219 F. Supp. 2d 20, 52 (D.D.C. 2002).
(1.) Economically underdeveloped "Third World" countries, including those in Africa, Asia, Oceania, and Latin America, are characterized by economic dependence on advanced countries, widespread poverty, high birth rates, large populations living in rural areas, and rural social structures. See, e.g., Gerard Chaliand, Third World, definitions and descriptions, http://www.thirdworldtraveler.com/Travel/Def_Third_World.html (last visited Sept. 3, 2006).
(2.) MARK SCHNEIDER & MICHAEL MOODIE, THE DESTABILIZING IMPACTS OF HIV/AIDS 1 (2002). For further discussion of the global damages, see infra note 71 and accompanying text.
(3.) As a general matter, unless U.S. strategic interests are served, foreign policies will not be developed and implemented to address concerns of interest groups. See, e.g., LEE H. HAMILTON, A CREATIVE TENSION: THE FOREIGN POLICY ROLES OF THE PRESIDENT AND CONGRESS 44 (2002); Eric M. Uslaner, Cracks in the Armor? Interest Groups and Foreign Policy, in INTEREST GROUP POLITICS 355, 357 (Allan J. Cigler & Burdett A. Loomis, eds., 2002). For a discussion on U.S. strategic interests affected by global health matters, see infra note 71 and accompanying text.
(4.) See infra Parts II, III.
(5.) See generally U.S. Department of Heath and Human Services, The Office of Minority Health, http://www.omhrc.gov (last visited Sept. 15, 2006). These groups' political under-representation has stemmed from a variety of factors. Some groups, such as women, share common gender-specific health issues, such as reproductive health problems and breast and ovarian cancers. Nonetheless, until the women's liberation movement of the 1960s, women generally had accepted (and if not bowed to or were subjugated by) the prevalent paternalistic healthcare attitude of their professional medical provider, who was often a male. Where women's healthcare interest groups existed, they largely operated as a multitude of small, discrete, and unattached or loosely connected cadres that lacked funding; aggressive, strong, and entrepreneurial leadership; and a collective and unified political voice. See Maureen Casamayou, Collective Entrepreneurism and Breast Cancer Advocacy, in INTEREST GROUP POLITICS, supra note 3, at 79, 80-83. Moreover, society perceived women's gender-related medical problems as sexually intimate and therefore socially and publicly unacceptable discussion topics.
There are many reasons for the generally sub-optimal medical welfare of America's ethnic groups, such as African-Americans, Hispanic-Americans, Asian-Americans, Pacific-Americans, American Indians, and Native Alaskans. The groups' socioeconomic status has played a role, as has their ancestry. Moreover, as a general matter the interests of each group are fragmented, as are their political voices. Some of the health problems from which a particular ethnic or racial group suffers are not common to all citizens and residents of the United States, making them easier for the broad populace, the medical establishment, and politicians to ignore. Thus, until recently domestic health policies and health programs largely have not addressed their particular needs. Id.
Homosexual men, whose sexual preferences for many years were unacceptable to mainstream society and thus were relegated to hiding, were and continue to be a marginalized political group. They have been burdened by HIV/AIDS more than any other population cohort in America.
(6.) International nongovernmental organizations dedicated to women's human rights issues and the media have been effective in raising awareness of women's health issues.
(7.) Global Health Council, Women's Health, http://www.globalhealth.org/view_top.php3?id=225 (last visited Sept. 15, 2006). Fistula is a tear in the birth canal causing leakage from the bladder or rectum. Id.
(8.) Id.; see also World Health Organization, New Global Partnership Will Take Immediate Action to Help Women and Children Survive, Sept. 12, 2005, http://www.who.int/mediacentre/news/releases/2005/pr41/er/. In 2000, there were approximately 68,000 deaths from unsafe abortions, almost half (30,000) of which occurred in Africa. WORLD HEALTH ORG., UNSAFE ABORTION: GLOBAL AND REGIONAL ESTIMATES OF THE INCIDENCE OF UNSAFE ABORTION AND ASSOCIATED MORTALITY IN 2000, at 13 (4th ed. 2004), available at http://www.who.int/reproductivehealth/publications/ unsafe_abortion_estimates_04/estimates.pdf.
(9.) WORLD HEALTH ORG., supra note 8; Global Health Council, supra note 7.
(10.) See Avert.org, Worldwide AIDS & HIV Statistics, http://www.avert.org/worldstats.htm (last visited Sept. 15, 2006).
(11.) Id.
(12.) UNAIDS, 2006 REPORT ON THE GLOBAL AIDS EPIDEMIC, Core Epidemiology Slide 1 (2006), http://data.unaids.org/pub/GlobalReport/2006/2006_GR-Epicore_en.ppt; Avert.org, supra note 10. Fifty-nine percent of the Sub-Saharan African population living with HIV/AIDS were women. Id. African women are more than 1.4 times as likely as men to be infected with HIV/AIDS. Id.
(13.) The Henry J. Kaiser Found., TB Largest Infectious Cause of Death Among Women Worldwide, Conference Attendees Say, Sept. 27, 2005, http://www.kaisernetwork.org/daily_reports/rep_index.cfm? hint=4&DR_ID=32790.
(14.) The weak political status of children is attributable in some part to the inability of children to form international human rights groups to represent their interests. Accordingly, even compared to women, their health issues stemming from poverty, poor nutrition, lack of education, and inferior healthcare are hugely burdensome. UNAIDS & WORLD HEALTH ORG., AIDS EPIDEMIC UPDATE 2 (2004), available at http://www.reliefweb.int/rw/lib.nsf/db900SID/LHON-69TDCG/ $FILE/MDS_Update_UNMDS_Dec_2004.pdf?OpenElement.
(15.) Amnesty Int'l, What is female genital mutilation?, http://www.amnesty.org/ailib/intcam/femgen/fgml.htm (last visited Sept. 7, 2006).
(16.) Id. Two million girls a year are at risk of genital mutilation. Id.
(17.) UNAIDS, supra note 12, at Core Epidemiology Slide 10.
(18.) UNAIDS & WORLD HEALTH ORG., supra note 14, at 4.
(19.) Avert.org, supra note 10. The number of AIDS orphans is horrific; in 2005 there were 12 million in Africa alone. Id.
(20.) Id.
(21.) UNAIDS & WORLD HEALTH ORG., supra note 14, at 4.
(22.) The troublesome childhood mortality in underdeveloped countries results from conditions associated with poverty, including unsafe drinking water, malnutrition, poor sanitation, absence of prenatal care, inadequate diets, and lack of healthcare to prevent or treat infectious diseases. Global Health Council, Child Health, http://www.globalhealth.org/printview.php3?id=226 (last visited Sept. 7, 2006).
(23.) Id. Recently, the Bill and Melinda Gates Foundation announced that it donated $84 million to two charities that work to prevent needless deaths of infants within the first several days of their births. See Donald G. McNeil, Jr., The Gateses Give $84 Million To Help Prevent Infant Deaths, N.Y. TIMES, Dec. 2, 2005, at A12.
(24.) Global Health Council, supra note 22.
(25.) Id. Blood factors, such as hemophilia and blood transfusions, account for some cases of HIV/AIDS. Avert.org, Can you get AIDS from ...?, http://www.avert.org/howcan.htm (last visited Sept. 7, 2006).
(26.) Nat'l Inst. of Allergy and Infectious Diseases, The Evidence That HIV Causes AIDS, Feb. 27, 2003, http://www.niaid.nih.gov/factsheets/evidhiv.htm.
(27.) UNAIDS, supra note 12, at Core Epidemiology Slide 8.
(28.) See GREG BEHRMAN, THE INVISIBLE PEOPLE: HOW THE U.S. HAS SLEPT THROUGH THE GLOBAL AIDS PANDEMIC, THE GREATEST HUMANITARIAN CATASTROPHE OF OUR TIME 5-8, 11-13 (2004).
(29.) See infra note 35 and accompanying text.
(30.) BEHRMAN, supra note 28, at 5-8, 11-13.
(31.) Id.
(32.) Id.
(33.) Id. Domestic and foreign policy regarding HIV/AIDS are inextricably connected, as are many policy areas. See, e.g., Ernest J. Wilson, III., Interest Groups and Foreign Policymaking: A View from the White House, in THE INTEREST GROUP CONNECTION 238, 243 (Paul S. Herrnson et al. eds., 1998).
(34.) Later, it was learned that transmission of HIV/AIDS also occurred by tainted blood supplies, birthing or breastfeeding by an infected mother, and other means. Avert.org, supra note 25.
(35.) BEHRMAN, supra note 28, at 15-16. But see Rebecca Voelker, HIV/AIDS in the Caribbean: Big Problems Among Small Islands, 285 J. AM. MED. ASS'N 2961, 2962 (2001) (indicating reports of the Caribbean Epidemiology Center suggest that HIV/AIDS first emerged in Jamaica in 1982).
(36.) See BEHRMAN, supra note 28, at 206 (indicating that African leaders finally broke their silence around 2001).
(37.) But see ERIC ALTERMAN, WHO SPEAKS FOR AMERICA? WHY DEMOCRACY MATTERS IN FOREIGN POLICY 4 (1998) (suggesting that elections occur too infrequently to greatly affect much foreign policy decision-making).
(38.) Some transmission of HIV/AIDS occurred as a result of tainted blood supplies, birthing, or breastfeeding by infected mothers. Avert.org, supra note 25.
(39.) Unlike the innocent Tsunami victims, to whom the U.S. government reacted rather quickly in 2004, the sufferers of HIV/AIDS may have been viewed as bringing their own fates upon themselves by inappropriate and avoidable sexual activities. For a discussion of the U.S. government's initial funding offer to assist the Tsunami victims and the outside pressures brought on the U.S. government to increase its financial support, see, for example, Elizabeth Becker, U.S. Nearly Triples Tsunami Aid Pledge, to $950 Million, N.Y. TIMES, Feb. 10, 2005, at A3; Alan Cowell, Pressure Grows for Rich Nations to Redouble Effort to Aid Africa, N.Y. TIMES, Jan. 28, 2005, at A3; Celia W. Dugger, U.N. Proposes Doubling of Aid to Cut Poverty, N.Y. TIMES, Jan. 18, 2005, at A1.
(40.) See infra note 71 and accompanying text.
(41.) Domestic and foreign policies are inextricably entangled; what the president does with foreign policy easily might affect aspects of domestic policy. See, e.g., Wilson, supra note 33, at 238, 243. For example, Americans are acutely aware that foreign trade policy impacts jobs at home and that foreign policies of varying natures affect national security policy. Id.
(42.) Paula Dobriansky, Under Secretary for Global Affairs, Remarks to the Fund for American Studies, Jan. 18, 2003, http://www.state.gov/g/rls/rm/2003/17895.htm.
(43.) There are other areas of concern, such as the environment, in which U.S. foreign policymaking processes might benefit from structural changes. Id.
(44.) JEFFREY M. BERRY WITH DAVID F. ARONS, A VOICE FOR NONPROFITS 130-45 (2003).
(45.) Id. at 143 (citing RAYMOND A. BAUER, ITHIEL DE SOLA POOL & LEWIS ANTHONY DEXTER, AMERICAN BUSINESS AND PUBLIC POLICY 350-57 (1972)).
(46.) Id. at 137-45.
(47.) See Nina J. Crimm, Through a Post-September 11 Looking Glass: Assessing the Roles of Federal Tax Laws and Tax Policies Applicable to Global Philanthropy by Private Foundations and Their Donors, 23 VA. TAX REV. 1, 17-18 (2003) [hereinafter Crimm, Through a Post-September 11 Looking Glass]; Nina J. Crimm, A Case Study of a Private Foundation's Governance and Self-Interested Fiduciaries Calls for Further Regulation, 50 EMORY L.J. 1093, 1095-96 (2001). Additionally, it is common for I.R.C. [section] 501(c)(4) advocacy organizations to represent interests of minority groups.
(48.) See BERRY WITH ARONS, supra note 44, at 130-45.
(49.) Much of the literature focuses on domestic private foundations. See EDWARD H. BERMAN, THE INFLUENCE OF THE CARNEGIE, FORD, AND ROCKEFELLER FOUNDATIONS ON AMERICAN FOREIGN POLICY: THE IDEOLOGY OF PHILANTHROPY 41-55 (1983); WALDEMAR A. NIELSEN, THE BIG FOUNDATIONS 54-57, 60-61, 80 (1972); JOAN ROELOFS, FOUNDATIONS AND PUBLIC POLICY 3-5, 38-40, 52-53, 139-43, 157-206 (2003); RENE WORMSER, FOUNDATIONS: THEIR POWER AND INFLUENCE 200, 204-205, 209 (1958); Crimm, Through a Post-September 11 Looking Glass, supra note 47, at 17-18; Gary R. Hess, Waging the Cold War in the Third World: The Foundations and the Challenges of Development, in CHARITY, PHILANTHROPY, AND CIVILITY IN AMERICAN HISTORY 319, 319-39 (Lawrence J. Friedman & Mark D. McGarvie eds., 2003). See infra note 209 and accompanying text (regarding the private design of foreign policy).
(50.) One Filer Commission Research Paper suggests logical reasons that private philanthropic institutions should be involved in public affairs. Adam Yarmolinsky, Philanthropic Activity in International Affairs, in 2 RESEARCH PAPERS: PHILANTHROPIC FIELDS OF INTEREST 761, 817-19 (Commission on Private Philanthropy and Public Needs, 1977) (suggesting a defined relationship with the government can reduce government costs and aggravations; speed responses to crises when necessary; operate as a means of incubating new ideas and processes; and provide a conscience, viewpoint, or reasoning otherwise not part of the governmental structure).
(51.) See Nina J. Crimm, Democratization, Global Grant-Making, and the Internal Revenue Code Lobbying Restrictions, 79 TUL. L. REV. 587, 593-94 (2005) (describing private foundations' outreach efforts and financial aid for human rights and humanitarian causes, health and education initiatives, economic development programs, and other foreign affairs matters during the Cold War and post-Cold War periods); Yarmolinsky, supra note 50, at 775-76 (noting that private foundations as private funding sources may meet with less resistance by foreign countries than funding from the U.S. government).
(52.) See infra Part II.
(53.) See infra Part III.
(54.) Foreign policymaking depends not only on the formal government structures formulated under the U.S. Constitution and on the exercise of those powers by the executive and legislative branches, but also on the particular individuals involved in the processes. The literature is replete with stories of the impact of various presidents; Secretaries of State, such as John Foster Dulles; and Congressional leaders on the making of U.S. foreign policy. While personalities significantly influence the formulation and development of foreign policy, this Article focuses instead on institutional and governmental relationships.
(55.) See infra Part V.A.4.
(56.) See HENRY G. AUBREY, ATLANTIC ECONOMIC COOPERATION: THE CASE OF THE OECD 131 (1967) (OECD has formal relationships with nongovernmental organizations in the form of advisory committees, including its Business and Industry Advisory Committee (BIAC) and Trade Union Advisory Committee (TUAC)). For further discussion, see infra Part V.A.5.
(57.) Article 71 of the United Nations Charter to the Economic and Social Council (ECOSOC) provides authority for consultative status of nongovernmental organizations. U.N. Charter art. 71; see E.S.C. Res. 1996/31, U.N. DOC. E/RES/1996/31 (July 25 1996). For further discussion, see infra Part V.A.6.
(58.) Human Immunodeficiency Virus (HIV) is a retrovirus recognized as the etiologic agent of its most severe disease manifestation, Acquired Immunodeficiency Syndrome (AIDS). See AIDSINFO, GLOSSARY OF HIV/AIDS-RELATED TERMS 57 (