A. “Global Public-Private Partnerships” as an Emerging Policy Choice for Institutional Design

At the end of the twenty-first century's first decade, calls for action to address problems requiring global co-ordination are replete with references to the need for effective collaboration between public and private actors. In resolutions and outcome documents of large diplomatic meetings such as those of the United Nations (UN) General Assembly, for example, typical language to this effect exhorts “new partnerships with civil society, including with non-governmental organizations and the private sector, and innovative arrangements for mobilizing additional resources, both private and public”.Footnote 9 These exhortations have not been without impact. Some 400 global public-private partnerships are now active across different sectors of global governance,Footnote 10 and the range of non-state actors that participate in such entities is diverse. Non-state members of existing partnerships include established IOs (such as the UN, the World Bank, the United Nations Children's Fund or UNICEF, and the World Health Organization or WHO), private foundations (such as the Bill and Melinda Gates Foundation and the UN Foundation), business enterprises (such as British Petroleum, the Coca-Cola Company, and Pfizer), civil society organizations, and individuals representing various other configurations of private interests.Footnote 11 In particular, private funding sources through private foundations appear to be a key driver of policy choices favouring the global public-private partnership form.Footnote 12

GAVI and the Global Fund, the case-studies used in this article, represent only the global health sector. But the call for public and private to converge on various “global common purposes” has been made in other sectors, resulting in the creation of other organizations where private actors are also members on equal footing with public actors like states and established IOs. Two examples show the mimetic effect that this type of institutional design has had across different global governance sectors, and the way in which the establishment of such institutions tends to cross and converge with milestone intergovernmental initiatives to address priority issues. First, in the global food sector,Footnote 13 the Global Alliance for Improved Nutrition (GAIN) was established following the UN General Assembly's 2002 Special Session on Children. Its mandate is “to reduce malnutrition by supporting food fortification and other sustainable nutrition strategies in order to save lives and improve health, productivity and cognitive function”.Footnote 14 Its governance structure includes IOs such as UNICEF, private foundations such as the Bill and Melinda Gates Foundation, which is also a significant donor to GAVI and the Global Fund, and business enterprises from the food industry.Footnote 15 Like GAVI and the Global Fund, the Global Alliance for Improved Nutrition is a national private law organization headquartered in Geneva.Footnote 16

A second, more recent example relates to oceans and law of the sea issues.Footnote 17 In February 2012, outgoing World Bank President Robert Zoellick announced “an unprecedented Global Partnership for Oceans”, seeking to bring together “countries, scientific centers, NGOs, international organizations, foundations, and the private sector to pool knowledge, experience, expertise, and investment around a set of agreed upon goals” to address perceived gaps in oceans governance, including gaps in financing.Footnote 18 This announcement was made in the midst of preparatory meetings for the Rio+20 Summit in June 2012,Footnote 19 where the question of oceans governance has emerged as a key theme.Footnote 20 The governance structure of the Global Partnership for Oceans was due for discussion at a “Meeting of Supportive Organizations” in April 2012, but no further information about the outcome of that meeting was available at the time of this writing.

In short, among key actors with the power to influence such preferences, there is a prevailing sense that global public-private partnerships are a more efficient and effective option for delivering global public goods, relative to treaty-based IOs.Footnote 21 For example, the 2011 Multilateral Aid Review of the United Kingdom (UK) Department for International Aid, which aims “to ensure that the UK gets maximum value for money for UK aid through its contributions to multilateral organisations”, ranked GAVI and the Global Fund very favourably alongside established IOs such as the World Bank and UN specialized agencies,Footnote 22 citing strong scores in “satisfactory or strong strategic and performance management systems”.Footnote 23

Despite the high profile of these public-private initiatives, it should be highlighted that there is nothing particularly novel, as such, about public-private interest convergence at the global level. The standard international law narrative of IOs records significant private involvement in institution-based functional co-operation from at least the middle of the nineteenth century, through to the interwar period. One account puts the number of such “private international unions” established during this time at about 400, which roughly equates to the estimated number of global public-private partnerships now in operation.Footnote 24 These unions were primarily transnational professional associations, such as the International Dental Federation and the International Chamber of Commerce, but some of the private organizations that came into being during this time continue to exist today. These include the International Committee of the Red Cross, which now bears a specific treaty mandate by virtue of the Geneva Conventions, the Institut de Droit International, and the International Law Association. There are also those who identify colonial chartered companies and railroads as early forms of public-private partnerships.Footnote 25 Other older examples of institutional design incorporating public and private law elements include the European Company for the Financing of Railroad Rolling Stock (Eurofima), an établissement public internationaux established by treaty in 1955, and constituted as a joint stock company under Swiss national law.Footnote 26 To some degree, then, the emergence of the global public-private partnerships forming the subject matter of the present inquiry might be better described as a “re-emergence”.

However, two key features of this “re-emergence”, if it is that, distinguish the institutional developments of the early twenty-first century from older examples of public-private interactions, and give rise to the international law issues that are the subject of this article. First, although the contemporary resurgence of public-private collaboration has had a real effect on policy preferences regarding institutional design, there is no legal consensus on the precise form that such collaborations should take.Footnote 27 This stands in contrast, for example, to the generally accepted proposition that IOs are usually established by treaty, or some other instrument that clarifies the legal status of the IO under international law, and creates challenges for a robust legal approach to global public-private partnerships. Second, this resurgence takes place in the context of larger developments in the scope and depth of global governance, including new types of global governance institutions other than global public-private partnerships, as well as more specific normative preoccupations with the operations and institutional design of currently established IOs.

These points are dealt with in Sections II.B and II.C below.

B. Defining “Global Public-Private Partnerships”

The term “global public-private partnership” is now a familiar part of the global governance lexicon. There is, however, no single legal definition of what a global public-private partnership is. The absence of a single legal definition is a key difficulty for international lawyers seeking to make sense of such partnerships within the orthodox framework of international law, alongside other new forms of global governance, and foreshadows some of the issues highlighted in Section IV below. A review of the political science literature reveals some consensus around the following proposition: a “global public-private partnership” is a transnational collaborative relationship, at varying degrees of permanence and institutionalization, involving states and a diverse range of non-state actors, constituted to achieve a shared set of public purpose goals.Footnote 28 I adopt this working definition for the purpose of this article.

Using a typology developed for the global health sector, partnerships can be constituted along the lines of at least four possible structural and governance models.Footnote 29 This typology describes partnerships according to degree of institutionalization. First, a partnership may simply be a network of participants in meetings co-ordinated and hosted by an established IO. Second, a partnership may refer to a programme with external participation, where an existing IO is responsible for hosting and administering a specific long-term programme with the substantive participation of certain non-IO and non-state stakeholders. Third, a partnership may be a formal partnership or alliance, which essentially amounts to a more institutionalized version of “programmes with external participation”, in the sense that the collaborative relationship may be formalized through a written memorandum of understanding. Fourth, a partnership may be a separate organization, with a governance structure reflecting the full and equal membership of all state and non-state stakeholders.Footnote 30 Under the first three models, the global public-private partnership has no autonomous legal status. Under the fourth model, however, the global public-private partnership does have autonomous legal status.

The examples of GAVI and the Global Fund show that the first three models are probably better understood as part of a spectrum, as opposed to hard categories. It is in the nature of such partnerships that they can provide flexible vehicles for public-private co-operation, and that their institutional form can be developed to suit the partnership's operations. GAVI and the Global Fund originated as “formal partnerships” after the third model. The Global Fund was hosted within the WHO under an administrative services agreement,Footnote 31 while GAVI was hosted by UNICEF.Footnote 32 Today, however, both organizations are constituted separately from their original host IOs as private non-profit foundations under Article 80 et seq of the Swiss Civil Code.Footnote 33 Like other IOs in Geneva, where both organizations are headquartered under specific legal arrangements with Switzerland, GAVI and the Global Fund are each supported by professional secretariats.Footnote 34 These legal arrangements are described in further detail in Section IV below. For the moment, however, it is sufficient to note that the arrangements that apply to GAVI and the Global Fund are more comprehensive than those that have been previously extended by Switzerland to private law organizations under so-called “fiscal privileges agreements”. In other words, GAVI and the Global Fund were the first private law organizations to benefit from the grant of substantive privileges and immunities in Switzerland comparable to those of an established IO, and structured in a manner analogous to those of an established IO.

C. Legitimacy and Accountability Concerns in Global Governance

To locate the problem examined in this article in proper context, it is important to note that the emergence of global public-private partnerships, with the associated phenomenon of according such partnerships preferential legal treatment under national law, is only one dimension of a broader developmental trajectory in the practice of global governance. The literature is now extensive, and only a synopsis can be given here.

The essential problem sought to be addressed by the major theoretical approaches in the contemporary global governance literature concerns the exercise of public power beyond and across states by entities that do not fall to be neatly regulated by some national legal system, or can otherwise be conceptualized using orthodox understandings of international law based around state consent.Footnote 35 One typology of such entities, under the rubric of “global administrative law”, classifies them into four basic types for analytical purposes:

1. 1. hybrid intergovernmental private bodies, which roughly equates with global public-private partnerships;

2. 2. formal intergovernmental organizations, which are discussed as IOs or established IOs in this article;

3. 3. intergovernmental networks of national regulatory officials; and

4. 4. private bodies exercising public governance functions.Footnote 36

The net outcome of activity by these authorities, it is said, has been to shift much of what has normally been understood and regulated in the national sphere as “administrative action”, or “rulemaking, adjudications, and other decisions that are neither treaty-making nor simple dispute settlements between parties”,Footnote 37 to an indeterminate “global administrative space” beyond the state.Footnote 38

Of particular relevance to the present discussion is the conclusion that such “administrative action” can no longer be effectively addressed through “traditional domestic and international law mechanisms to ensure that regulatory decision makers are accountable and responsive to those who are affected by their decisions”.Footnote 39 Specifically, global governance institutions undertaking such action are not generally subject to the usual political and legal accountability mechanisms intended to mediate the exercise of public power.Footnote 40 This deficit of accountability—which might be understood broadly for present purposes as “the disregard by global regulatory bodies of affected but marginalized social and economic interests”Footnote 41—has, in turn, raised further questions about the legitimacy of the exercise of public power by global governance institutions.Footnote 42 It is also worth noting more specific normative preoccupations in the literature with the operations and institutional design of established IOs, including what some scholars have called the “law-making” activities of such IOs, and problems surrounding the regulation of IO field operations.Footnote 43

In order to address these concerns about legitimacy and accountability, some global governance institutions, including the Global Fund, have adopted institutional design elements that explicitly embrace mechanisms akin to those found in national administrative law in order to forestall and respond to such critiques.Footnote 44 For example, a stated commitment to transparency and accountability is a significant element of the Global Fund's strategy to address the incidents relating to grant money that opened this article. This commitment is underpinned by a multilayered system of risk management and fiduciary controls, including an Office of the Inspector-General that reports directly to the Global Fund Board, operating independently from the Global Fund Secretariat.Footnote 45

However, critiques based around deficits of legitimacy and accountability continue to fuel ongoing research into the practice of global governance. More crucially, while institutional design fixes within individual global governance entities may go some way towards addressing such critiques on an ad hoc episodic basis, it is questionable whether they resolve the more fundamental issue of the appropriate legal status of such global governance entities within orthodox understandings of international law. And at a more specific level, conferring preferential legal treatment on global public-private partnerships through IO-type privileges and immunities without fully addressing this issue of legal status immediately engages substantive questions of legal accountability. The precise shape of privileges and immunities regimes in international law, and their connection with the post-1945 IO, will now be considered.

A. Defining “International Organizations”

There is no single definition of the term “international organization” under international law. This is simply a reflection of the truism that “the realities of international relations are not reducible to a simple formula”.Footnote 50 States may choose to co-operate in a variety of different ways.Footnote 51 That said, the leading international law texts are generally aligned on the basic indicia that demonstrate whether a particular entity is an “international organization” with some degree of legal capacity to act on the international plane. These indicia are:

1. 1. a membership composed of states, or states and other IOs;

2. 2. establishment by treaty or some other instrument governed by (public) international law;

3. 3. an autonomous will distinct from that of its members, and international legal personality; and

4. 4. the ability to adopt norms addressed to its members.Footnote 52

In 2011, the UN International Law Commission completed its most recent—and, likely, last—codification project in the law of international responsibility.Footnote 53 The Commission produced a set of draft articles on the responsibility of international organizations for internationally wrongful acts,Footnote 54 which were then annexed to a UN General Assembly resolution that “commended them to the attention of Governments and international organizations without prejudice to the question of their future adoption or other appropriate action”.Footnote 55 The Commission's draft articles on the responsibility of international organizations will be considered again at the sixty-ninth session of the UN General Assembly, “with a view to examining, inter alia, the question of the form that might be given to the articles”.Footnote 56 This is the same two-stage formula that was used when the General Assembly first took action on the Commission's articles on state responsibility in 2001.Footnote 57

The Commission's draft articles on the responsibility of international organizations have received a decidedly mixed reception from states as well as international organizations.Footnote 58 Reactions have run the gamut from polite requests from states for the Commission to clarify some of the more obscure elements of the draft, particularly those elements that represent “progressive development” rather than a straightforward codification of the lex lata (such as it is),Footnote 59 to trenchant critiques of some very fundamental assumptions underpinning the Commission's approach to this subject,Footnote 60 particularly by the very IOs that the rules in the draft articles are meant to regulate.Footnote 61 On the definitional point, however, the Commission has not sought to alter the four basic indicia set out above. It is worth noting that the Commission drafted these articles between 2002 and 2011,Footnote 62 so the Commission's work on the topic of the law of international responsibility for IOs was roughly contemporaneous with the institutional developments in global governance highlighted in Section II of this article. The Commission's treatment of the term “international organization” in these draft articles therefore provides a useful benchmark for locating the limits of orthodox understandings of international law, with respect to the regulation of new global governance institutions.

Article 1 of the draft articles defines their scope. Article 1, paragraph 1 specifies that the draft articles “apply to the responsibility of an international organization for an internationally wrongful act”. The term “international organization” is then defined in Article 2, subparagraph (a). That definition reads:

Two points about this definition are relevant for the purpose of the present discussion. First, while it is true that the Commission's definition does not require a treaty,Footnote 64 the definition does require that the constituent instrument of the organization be an instrument “governed by international law”. This requirement is reinforced by paragraph (6) of the Commission's commentary to Article 2, which clarifies that the definition excludes organizations established under national law. This, in turn, means that organizations established under national law, like the Global Fund, GAVI, and other global public-private partnerships constituted as private foundations, are excluded from the Commission's scheme of international responsibility. The Commission cites the International Union for the Conservation of Nature (IUCN), which was established as a private association under Article 60 et seq of the Swiss Civil Code,Footnote 65 and the Institut du Monde Arabe, which was established as a foundation under French law,Footnote 66 as examples of organizations to which the draft articles would not apply. The Commission took this view although both the IUCN and the Institut include states among their members, and at least one state (Switzerland) classifies the IUCN as a “quasi inter-governmental organization”, as distinct from a non-governmental organization meriting no preferential treatment comparable to that accorded to an IO. The IUCN also performs important global functions in the field of biodiversity, including those done through the IUCN Red List of Threatened SpeciesFootnote 67 and as the Secretariat of the Ramsar Convention on Wetlands.Footnote 68

Second, while the Commission's definition does envisage that “other entities” may be members of “international organizations”, apart from states, this has to be read in conjunction with the requirement that the organization be established under international law. At first blush, it appears from paragraph (13) of the commentary to draft Article 2 that the Commission was not unaware of contemporary institutional developments. There, the Commission explains that:

However, the Commission's footnote against the term “private entities” in this paragraph is the UN World Trade Organization (UNWTO). The UNWTO has “affiliate members” from the tourism industry, but has a constituent instrument governed by international law and is a UN specialized agency. It is worth adding, at this point, that the standard clauses of the UN on the privileges and immunities regime of specialized agencies apply to the UNWTO through the 1947 Convention on the Privileges and Immunities of the Specialized Agencies (1947 CPISA).Footnote 70

Thus, global governance institutions established under national law, including global public-private partnerships fitting this legal description, continue to remain outside the orthodox IO paradigm under international law, including the arrangements that apply to the conferral of privileges and immunities to IOs under international law.

B. A Closer Look at the Privileges and Immunities of IOs

Once the exclusive preserve of interstate interaction through the rules applicable to diplomats, legation, foreign sovereign immunity, and visiting armed forces, the language of privileges and immunities is now synonymous with the modern IO that came into being after 1945.Footnote 71 Writing of the immunities of the UN and its agencies, Franck has noted that:

Privileges and immunities regimes have become so entwined with the legal concept of “international organization” that states seeking to constitute or reconstitute themselves in such a form—as opposed to some less legally robust form of co-operation, such as a political associationFootnote 73—also agree to accord this form of preferential treatment within their respective national jurisdictions to that organization and its personnel, in order to further organizational aims. This connection is sometimes put the other way, so that any functional reasons for IO-type privileges and immunities may also guide the appropriate choice of legal vehicle for international co-operation in a given issue-area.Footnote 74

The story of the Association of Southeast Asian Nations (ASEAN) affords a good example of the close affinity between the language of “privileges and immunities” and formal legal status as an IO established and governed by international law.Footnote 75 Before 2007, ASEAN operated as an “Association for Regional Cooperation”, its activities broadly governed by the 1967 Bangkok DeclarationFootnote 76 and the 1976 Declaration of ASEAN Concord.Footnote 77 In 2007, the ten member states of ASEAN signed the Charter of the Association of Southeast Asian Nations, which they subsequently ratified.Footnote 78 For the first time, the ASEAN Charter explicitly spells out the international legal personality of ASEAN “as an inter-governmental organization”.Footnote 79 Further, Chapter VII of the ASEAN Charter provides for the organization and its personnel to benefit from privileges and immunities on the basis of the theory of “functional necessity”,Footnote 80 as in the constituent treaties of other IOs, such as the UN Charter.Footnote 81 Following the usual structural lines for such arrangements adopted in other IOs,Footnote 82 these privileges and immunities are detailed in the 2009 Agreement on the Privileges and Immunities of the Association of Southeast Asian Nations.

What, precisely, do privileges and immunities entail in operational terms? In essence, any type of privilege or immunity, including foreign sovereign immunity,Footnote 83 is an exemption from the normal operation of law within a national jurisdiction.Footnote 84 The terms “privilege” and “immunity” refer to a series of special and separate exemptions from national jurisdiction. Though the doctrines of foreign sovereign immunity, diplomatic privileges and immunities, and IO privileges and immunities, are all dealt with as part of international law, each privilege and each immunity are granted and guaranteed by an interlocking web of mechanisms under national as well as international law. The precise content of a privileges and immunities regime can differ between IOs, since this usually falls to be worked out by individual arrangements between the IO and the host state, usually recorded in a treaty or some other written instrument governed by international law.

It is, however, possible to identify a typical list of IO privileges and immunities, taking reference from the 1946 Convention on the Privileges and Immunities of the United NationsFootnote 85 and the 1947 CPISA.Footnote 86 The usual “privileges” include exemptions from national law in the form of direct tax exemptions for the IO and its personnel, some form of reimbursement scheme for indirect taxes, exemptions from foreign exchange controls, customs and immigration rules, inviolability of the IO's premises and archives, and facilitation of official communications. The usual “immunities” include immunity for the IO from “every form of legal process”—effectively, immunity from suit encompassing both immunity from jurisdiction and immunity from execution, with immunity from execution not ordinarily subject to waiver—as well as immunity for IO personnel and representatives of IO Member States from “legal process” in respect of official speech and acts.

As distinct from diplomatic privileges and immunities or foreign sovereign immunity, contemporary IO privileges and immunities were shaped by the development of the UN system.Footnote 87 One effect of this connection has been the symbolic link between full legal status as an IO and the attachment of privileges and immunities to that IO, as noted earlier. But the connection between privileges and immunities rules and the development of the UN system is more complex than considerations of symbolism and political legitimation, important as those considerations are, and has significant legal implications. This is because the existing rules relating to IO privileges and immunities have to be operationalized in conjunction with foundational concepts of orthodox international law. These concepts include those of treaty law, international legal personality, and the law of international responsibility. This legal connection between IO status and privileges and immunities regimes has two further implications. First, it is difficult to implement IO-type privileges and immunities in a coherent and meaningful way for entities that are not clearly governed by international law, or where the scope of application of international law to such entities is in doubt. Second, even if we accept that IO-type privileges and immunities should be extended to such entities for policy reasons, then such extension should encompass concomitant legal understandings of such privileges and immunities, which must include recent developments in some municipal courts to restrict the scope of jurisdictional immunity of the IO where access to justice issues are engaged.

These two implications are now examined in turn.

A. The Policy Case for Privileges and Immunities: GAVI and the Global Fund

For GAVI and the Global Fund, the policy imperatives to secure IO-type privileges and immunities did not clearly crystallize until both organizations had to review their respective legal positions within Switzerland, the host country. Recalling the typology in Section II.B above, these “legal status reviews” were carried out during the organizations’ transitions in the early 2000s from formal partnerships hosted within UNICEF and the WHO, respectively, to separate organizations.

The policy case for IO-type privileges and immunities can be clustered into two distinct sets of factors, and is interspersed with elements of legal policy to the extent that choices of legal form and institutional design influence national jurisdictions’ ability to confer certain privileges and immunities on particular types of legal entities. These two distinct sets of factors have to do with function as well as political recognition.

First, for functional reasons, the central question of how the new separate organizations should constitute themselves in Switzerland had an inherent connection to the question of whether the chosen form of legal entity would be able to benefit from IO-type privileges and immunities under Swiss law.Footnote 110 By the end of the twentieth century, Switzerland had in place a long-established host state policy for private law organizations, such as the World Anti-Doping Agency and the International Air Transport Association, as well as for the traditional Geneva IOs such as the UN, the WHO, and the World Trade Organization.

However, the terms of Swiss host state policy before 2004 were different for private law organizations. Those terms provided only for the preferential fiscal treatment of certain private law organizations, well short of the full complement of privileges and immunities extended to the traditional Geneva IOs. This specific category of private law organizations included only those with some element of governmental membership, and were classified by the Swiss Federal Council as “organizations with tax agreement”,Footnote 111 to distinguish them from wholly non-governmental private organizations not entitled to tax privileges. These tax privileges were secured through an appropriately titled “agreement to regulate the fiscal status of the organization and its personnel in Switzerland”.Footnote 112

Based on open-source research, at least seven such “quasi-intergovernmental organizations” have concluded fiscal agreements with Switzerland. These include the World Anti-Doping Agency (headquartered in Lausanne; Article 80 foundation),Footnote 113 the International Air Transport Association (headquartered in Montreal with subsidiary seat in Geneva; association incorporated under Canadian law),Footnote 114 and the International Union for the Conservation of Nature and Natural Resources (headquartered in Gland; Article 60 association).Footnote 115 Generally speaking, these agreements entitle the beneficiary organizations to the following tax privileges, which are expressed to be “for the proper functioning of the organization”:Footnote 116

• • exemption for the organization from direct and indirect taxes, with provision for a reimbursement scheme if necessary;

• • exemption for non-Swiss personnel from all direct taxes on salaries paid to them from the organization;

• • entitlement for non-Swiss personnel to work and residence permits in accordance with Swiss law;

• • exemption for non-Swiss personnel from Swiss social security laws, but with provision for equivalent social security coverage under alternative schemes.

The legal status review documents for both GAVI and the Global Fund reveal that something over and above preferential tax treatment was required. In particular, there was significant anxiety about the impending loss of specific privileges and immunities previously available to the organizations and their staff within Switzerland, as part of the hosting arrangements with UNICEF and the WHO, once each organization became autonomous from their former host IOs.Footnote 117 According to a Report on Legal Status Options drawn up by the Global Fund Secretariat in 2003, “intergovernmental status through a headquarters agreement” with Switzerland offered the “best solution”, because it would, among other things, “provide[] full fiscal benefits for the institution and its individuals and improve[] the Global Fund's immunities as an institution”, and would further provide “equivalent individual immunities from suits in Switzerland as the current arrangement with WHO”.Footnote 118 One clear recurring theme in the legal status reviews of both organizations was that IO-type privileges and immunities were required in order to mitigate legal risk to a level that was acceptable in order for GAVI and the Global Fund to fulfil their mandates effectively. In that connection, some key practical motivating factors were evident:

1. 1. the need to ensure the personal safety of representatives of the organization on official travel outside Switzerland (requiring immunity from legal process);

2. 2. the need to secure legal protection for the organization (requiring immunity from legal process and organizational privileges including inviolability of premises and archives); and

3. 3. the need to run an efficient and cost-effective secretariat (requiring various tax privileges; GAVI, for example, estimated that IO-type privileges would reduce annual recurrent costs by US$2 million).Footnote 119

More recently, and in the aftermath of the alleged mismanagement of grant money mentioned in Section I above, the Global Fund's Office of the Inspector-General has identified the lack of privileges and immunities for Global Fund staff in recipient countries outside Switzerland as a “significant area of weakness” in relation to Office of the Inspector General (OIG) investigations of fraud allegations, and has recommended that grant disbursement should be conditioned on the recipient government's consent to confer such privileges and immunities.Footnote 120

Within Switzerland, both GAVI and the Global Fund now benefit from a much broader suite of privileges and immunities comparable to those of traditional IOs. These privileges and immunities include inviolability of premises, immunity from jurisdiction and execution, and immunity from arrest or detention for personnel. The outcome in both cases was achieved through slightly different legal techniques.

In the case of the Global Fund, 1955 Swiss law was “applied by analogy” to enable the conclusion of a headquarters agreement in 2004 between the Swiss Federal Council and the Global Fund (the Global Fund headquarters agreement), which provided for IO-type privileges and immunities.Footnote 121 It seemed, however, that this “application by analogy” had pushed the 1955 Swiss law to its “limits” by 2004, so that the Global Fund headquarters agreement was accepted with “bad grace” by the Swiss Ministries of Justice and Finance.Footnote 122 A new legal basis in Swiss national law had to be found for according IO-type privileges and immunities to entities structured like the Global Fund, which did not fit within the legal conception of IOs under international law.

This new legal basis was used in the case of GAVI. In 2007, the Swiss Federal Assembly enacted a Federal Act on the Privileges, Immunities and Facilities and the Financial Subsidies Granted by Switzerland as a Host State (Swiss Host State Act). The new Swiss Host State Act provides for different permutations of privileges and immunities for different categories of legal entities. One of these categories is “international institutions”, a category distinct from “intergovernmental organizations” or “quasi-intergovernmental organizations”, such as the International Air Transport Association or the International Union for the Conservation of Nature, dealt with above. Article 7 of the Swiss Host State Act identifies the conditions under which an international institution “may be accorded privileges, immunities and facilities”:

1. a. has structures similar to those of an intergovernmental organization;

2. b. performs functions of a governmental nature or functions typically assigned to an intergovernmental organization; and

3. c. enjoys international recognition in the international legal order, and in particular under an international treaty, a resolution of an intergovernmental organization, or a policy document adopted by a group of states.

This provided the basis under Swiss law for the conclusion of the 2009 headquarters agreement between the Swiss Federal Council and GAVI.Footnote 123

Apart from functional considerations, however, there is a second set of factors in play in the discourse regarding IO-type privileges and immunities for entities that do not have the legal status of IOs established under international law. This second set of factors has to do with political recognition of the overall purpose of such organizations, and is suggested as well by Article 7(c) of the Swiss Host State Act (“international recognition in the international legal order”). This drive to secure equivalence in terms of the political status associated with traditional IOs recalls Franck's argument that privileges and immunities have “symbolic as well as practical significance”. The Global Fund, for example, has embarked on efforts to “multilateralize” its privileges and immunities arrangements beyond Switzerland and the United States by encouraging general ratification of an agreement that bears close parallels to the 1946 CPIUN.Footnote 124 The preamble to this multilateral agreement cites the Global Fund's mandate “to attract, manage and disburse resources to make a sustainable and significant contribution to the reduction of infections, illness and death, thereby mitigating the impact of HIV/AIDS, tuberculosis and malaria in countries in need, and contributing to poverty reduction”.Footnote 125 To date, and as far as the present author was able to determine through open sources, Ethiopia, Ghana, Montenegro, Moldova, and Swaziland have ratified the multilateral agreement.Footnote 126 Though the Global Fund has taken the position that the multilateral agreement will “enable the Global Fund to work more effectively in the country”,Footnote 127 and this “multilateral” strategy is largely in line with the recommendation of the OIG, the text of the agreement itself does not distinguish between donor or recipient countries, and therefore does not calibrate the privileges and immunities sought to functional requirements within either category of countries, which may well be different. Further, it appears that at least one state, Moldova, has ratified the multilateral agreement with reservations against the tax privilege provisions.Footnote 128

As a final point, it is worth noting some alternative methods for managing legal risk for organizations without clear legal status under international law, other than securing IO-type privileges and immunities. GAVI, for example, has not adopted the Global Fund “multilateralization” model beyond Switzerland. Rather, it appears that GAVI continues to rely on directors and officers liability insurance or D&O insurance for any claims arising outside Switzerland against individuals serving on the GAVI Board.Footnote 129

In the context of the UN Framework Convention on Climate Change (UNFCCC), issues have arisen in relation to managing legal risk for individuals serving on “constituted bodies under the Kyoto Protocol”.Footnote 130 These “constituted bodies” are the Executive Board of the Clean Development Mechanism,Footnote 131 the Joint Implementation Supervisory Committee, the Compliance Committee, the Adaptation Fund Board, and the expert review teams established under Article 8 of the Kyoto Protocol.Footnote 132 The individuals serving on these bodies, which do not have separate legal personality, are not generally covered by treaty-based privileges and immunities arrangements outside the UNFCCC host state of Germany, and neither does the UN Office of Legal Affairs consider these individuals to have the status of “experts on mission” under the 1946 CPIUN.Footnote 133 In the course of considering whether to negotiate a separate treaty basis for conferring privileges and immunities on these individuals, a risk analysis firm was engaged to carry out a feasibility study for the UNFCCC Secretariat on purchasing insurance for claims against these individuals in their personal capacity in national courts. The firm concluded that it was “only a matter of time” before such claims might be made, in the light of the potential financial interests of those submitting project proposals under the Kyoto Protocol market-based mechanisms.Footnote 134 Apart from the option of granting immunity to individuals serving on the Kyoto Protocol “constituted bodies”, the firm also recommended the following alternatives in order to minimize the cost of insurance:

1. 1. providing potential plaintiffs with more procedural rights within the Kyoto Protocol process, such as the right to be heard and the right to have a contested decision reviewed by an independent body, along the lines of domestic administrative law-like mechanisms;

2. 2. conferring the constituted bodies with separate legal personality, in order to divert claims away from the individuals serving on constituted bodies;

3. 3. establishing “hold harmless” agreements between the individuals serving on the constituted bodies and the constituted bodies themselves, so that individuals would be indemnified for damages arising from legal proceedings against such individuals for action taken in the course of their work for the constituted bodies; and

4. 4. concluding written agreements with entities submitting project proposals to divert all potential claims to an international dispute settlement body, such as the UNFCCC Secretariat.Footnote 135

B. Privileges and Immunities for Global Public-Private Partnerships Within the Larger Framework of International Law

This section situates the arrangements that apply to GAVI and the Global Fund against the larger framework of international law, with particular reference to the specific issues considered in Section III of this article. The following discussion outlines problems in application beyond mere nomenclature, demonstrating the difficulties that arise in attempting to fit global public-private partnerships into the structural logic of the international law rules regarding IO-type privileges and immunities. The intention here is not to resolve the doctrinal issues, but to suggest the dual effect of state action in this field. This dual effect is as follows: first, when states act to confer privileges and immunities on entities that do not have the legal status of IOs under international law, the relevant principles of international law are nevertheless engaged; and second, the cumulative effect of such conferrals over time could be to expand the legal category of entities classified as IOs under international law. Three sets of problems in application are identified, having to do with the capacity of global public-private partnerships to conclude treaties under international law, with the responsibility of global public-private partnerships for wrongful acts under international law, in the sense of international responsibility, and with operationalizing the IO-type privileges and immunities framework on a day-to-day basis.

First, it is not clear that global public-private partnerships have the capacity to make the treaty arrangements that are necessary to secure privileges and immunities. For both GAVI and the Global Fund, the arrangements to secure IO-type privileges and immunities within Switzerland, the host country, were made by way of headquarters agreements that closely parallel the types of treaties used to set out host country arrangements between states and IOs.Footnote 136 In both agreements, Switzerland expressly recognizes the international legal capacity of both global public-private partnerships, as well as their capacity under Swiss national law.Footnote 137 Capacity to make treaties, therefore, is implicitly assumed. This assumption appears to have been carried forward by the Global Fund in drafting its multilateral agreement, and has been accepted by several states in ratifying it.Footnote 138

However, the overall international law position on capacity is much more ambivalent than these developments suggest. According to one view, there is indeed no rule of international law that prohibits treaties between private law organizations and states.Footnote 139 Further, structurally speaking, a state's obligation to confer privileges and immunities must be a treaty obligation under international law in order to have real traction.Footnote 140 Although privileges and immunities are implemented within national jurisdiction, a state's failure to adjust national law or policy to refrain from levying taxes against the organization, for example, would have to be remedied by the organization making a claim against the state on the basis of the agreement between the state and that organization. Conceptually, this claim must be one that is enforceable on the international plane.Footnote 141 We might then conclude that global public-private partnerships have just enough capacity to conclude treaties regulating their own privileges and immunities.Footnote 142

But the question ought, perhaps, to be considered in the light of “the great shades of nuance that permeate international law”.Footnote 143 In that respect, there are rules that militate against assuming treaty-making capacity for global public-private partnerships established under national private law. While the 1969 Vienna Convention on the Law of Treaties does contemplate that treaties may be concluded between states and “other subjects” of international law, the scope of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986 Vienna Convention) is specifically limited to “intergovernmental organisations”.Footnote 144 Justifying this choice, the International Law Commission has stated:

As Catherine Brölmann has pointed out, this point was one of the most problematic aspects of the 1986 Vienna Convention.Footnote 146 In essence, what the Commission did in 1986 was to reflect the question of treaty-making capacity back to what states do—or put another way, what acts of the national private law organizations states are prepared to recognize as being acts with legal effect on the international plane. This accretive approach may work for deducing the existence of a customary international law rule over time, for example, but hardly seems apposite in the case of a treaty conferring fiscal privileges, immunity from legal process, and inviolability of premises on a national private law organization and its staff, where certainty of action must be a primary normative value.

Recent writings suggest that the general question of treaty-making capacity of national private law organizations remains open. On the governing law of co-operation agreements between the Food and Agricultural Organization and non-governmental organizations, one writer has suggested that such agreements are “governed by general principles of law, to the exclusion of any national system of law”.Footnote 147 Finally, the first report of the newly established International Law Association Committee on Non-State Actors identifies the following as an issue for study:

Next, even if we accept that global public-private partnerships do have sufficient capacity to conclude treaties governing their own privileges and immunities, does this measure of capacity equate to a measure of personality sufficient to imply also responsibility on the international plane? As noted in Section III.B, it is no longer controversial to say that IOs can incur responsibility for internationally wrongful acts, but there is little beyond this minimum proposition that amounts to settled doctrine.Footnote 149

Finally, how do the operational issues that arise in the day-to-day application of IO-type privileges and immunities play out in the legal and institutional design of global public-private partnerships? I use the public-private model of the Global Fund to illustrate this point, since it is the most highly developed example available, but it will be apparent that the difficulties I highlight will arise whenever there is a significant private element in the organization's institutional structure. At least two key difficulties are clear, though there may well be others.

The first difficulty has to do with the application of the theory of “functional necessity”, which is the theory now used to define the parameters of organizational immunity and the immunity of personnel in practice. This theory, which already presents problems in application in the case of IOs,Footnote 150 is even more difficult to apply in the absence of a constituent instrument governed by international law that would provide an agreed basis for articulating the function of the organization. For example, the preamble of the Global Fund multilateral agreement describes the overall function of the Global Fund as being “to attract, manage and disburse resources to make a sustainable and significant contribution to the reduction of infections, illness and death, thereby mitigating the impact of HIV/AIDS, tuberculosis and malaria in countries in need, and contributing to poverty reduction”.Footnote 151 This is text lifted from the Global Fund's Framework Document (Section II) and By-laws (Article 2). Both documents are listed as “Governance Documents” on the Global Fund website. While it is very unlikely in practice that states represented on the Global Fund Board would disavow these documents,Footnote 152 it is less apparent what legal status other states should ascribe to them. Specifically, what legal weight should a national court give to the statement of the Global Fund's purpose in the preamble of the Global Fund multilateral agreement?Footnote 153

The second difficulty has to do with importing the usual procedure for waiving immunity to the global public-private partnership model. Article 3 of the Global Fund multilateral agreement prescribes a particular suite of privileges and immunities for “representatives of States and other persons constituting the organs of the Global Fund” at meetings convened by the Global Fund.Footnote 154 Article 3, paragraph 4 of the Global Fund multilateral agreement then provides:

The second sentence of Article 3, paragraph 4 appears to be an awkward amalgamation of the models for waiver used in Sections 14 and 20 of the 1946 CPIUN. Section 14 sets out who may waive the immunity of representatives of UN Member States, while Section 20 sets out who may waive the immunity of UN officials.Footnote 156 In the case of representatives of UN Member States, their immunity may be waived by the sending state, while in the case of UN officials, their immunity may be waived by the UN Secretary-General, the chief administrative officer of the UN.

The “non-state representatives” referred to in Article 3, paragraph 4 of the Global Fund multilateral agreement are the representatives of the private sector, private foundations, civil society, and affected communities that constitute the “private” element of the Global Fund membership, as well as the Swiss national whose presence is required on the Global Fund Board under the Swiss Civil Code. The Global Fund's choice of waiver procedure for such non-state representatives presents at least two issues. The first issue is that of a potential conflict of interests for the Global Fund Executive Director. The non-state representative whose immunity is sought to be waived may well be the representative of a private foundation which figures prominently on the Global Fund's list of donors, or the Swiss national whose membership on the Board is required by the Swiss Civil Code, so that the decision to waive may impact on the voluntary financial contributions that the Global Fund requires to carry out its work, or the relationship with the host state.

The second issue is a conceptual one. Article 3, paragraph 4 of the Global Fund multilateral agreement faithfully reproduces the customary language on the privileges and immunities of individuals that is found in most multilateral treaties providing for the detailed privileges and immunities of IOs. This customary language states that the privileges and immunities are accorded to individuals “not for the personal benefit of the individuals themselves”, but “to safeguard the independent exercise of their functions in connection with [the organization]”, in the case of individuals who represent Member States at the organization, or “in the interests of [the organization]”, in the case of individuals who are staff of the organization.Footnote 157 In other words, the privileges and immunities of individuals belong, in substance, to the individual's sending state, or to the organization itself, as the case may be.Footnote 158 On this analogy, it should not be for the Global Fund Executive Director to waive the immunity of an individual who is not a member of the Global Fund staff, but is a member of a non-state organization that is part of the Global Fund membership. Given the difficulties associated with ascribing immunity to private entities, a better solution might have been to adopt the model for waiver used in the context of the tripartite membership structure of the International Labour Organization. Paragraph 1 of Annex I to the 1947 CPISA provides that the immunity of employers’ and workers’ members and deputy members of the International Labour Organization Governing Body may be waived by the Governing Body itself,Footnote 159 not the state of origin.Footnote 160