Public-Private Partnerships and Responsibility under International Law

A Global Health Perspective

Lisa Clarke

• Publisher: Taylor & Francis
• Year: 2014
• Print ISBN: 9781138666481
• eBook ISBN: 9781317975373
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Partnerships between the public and private sectors are an increasingly accepted method to deal with pressing global issues, such as those relating to health. Partnerships, comprised of states and international organizations (public sector) and companies, non-governmental organizations, research institutes and philanthropic foundations (private sector), are forming to respond to pressing global health issues. These partnerships are managing activities that are normally regarded to be within the domain of states and international organizations, such as providing access to preventative and treatment measures for certain diseases, or improving health infrastructure within certain states to better manage the growing risk of disease. In the shadow of the success of these partnerships lies, however, the possibility of something going wrong and it is to this shadow that this book sheds light.

This book explores the issue of responsibility under international law in the context of global health public-private partnerships. The legal status of partnerships under international law is explored in order to determine whether or not partnerships have legal personality under international law, resulting in them being subject to rules of responsibility under international law. The possibility of holding partnerships responsible in domestic legal systems and the immunity partnerships have from the jurisdiction of domestic courts in certain states is also considered. The obstacles to holding partnerships themselves responsible leads finally to an investigation into the possibility of holding states and/or international organizations, as partners and/or hosts of partnerships, responsible under international law in relation to the acts of partnerships.

This book will be of interest to those researching and working in areas of global governance, especially hybrid public-private bodies; the responsibility under international law of states and international organizations; and also global health. It provides doctrinal clarification and practical guidance in a developing field of international law.

1 Introduction

People in developing countries are susceptible to diseases that are preventable and/or treatable in most other parts of the world and one of the main reasons behind this susceptibility is that the means to prevent and/or treat these diseases are not reaching them. In the past ten years, however, concrete steps have been made toward ameliorating this situation and much of the credit can be given to the establishment of global health public-private partnerships. In the shadow of the success of these partnerships lies, however, the possibility of something going wrong and it is on this shadow that this book sheds light.

Partnerships, comprising states and international organizations (representing the public sector) and companies, non-governmental organizations, research institutes and philanthropic foundations (representing the private sector), are forming in an attempt to respond to pressing global health issues, particularly in developing countries. It is through the work of these partnerships that a shift is taking place which moves (at least partly) regulation over global health matters from the hands of states and international organizations into the hands of public-private partnerships. These partnerships are managing activities that are normally regarded as in the domain of states and international organizations, such as providing access to preventative and treatment measures for certain diseases or improving health infrastructure within certain states to better manage the growing risk of disease. States and international organizations are, thus, no longer the sole regulators of health issues affecting people on the international plane, as this role is now also being performed by entities such as public-private partnerships.

In the beginning days of partnering in relation to global health, collaboration between the public and private sectors did not seem to raise concern. Perhaps this was due to the novelty of partnerships, or perhaps, at first, the impact of partnerships was seen as useful but still peripheral. This perception has, however, been changing. Collaboration between the public and private sectors is becoming a popular means to deal with global health issues and the impact can no longer be seen as novel or peripheral. Partnerships are becoming increasingly capable of affecting the lives and health of individuals, and the favorable and potentially adverse impact on the rights of individuals, especially the right to life and the right to health, cannot be ignored.

This potentially adverse impact of the increasing power exercised by global health public-private partnerships, in turn, leads to concerns of responsibility under international law. Indeed, power and responsibility under international law go hand in hand; responsibility under international law is the “logical corollary” of power.¹ Clyde Eagleton, writing on the responsibility of states under international law in 1928, argued that “power breeds responsibility” and that a state is more willing to accept responsibility for an act when it has authority over the act.² The rules on the responsibility of states under international law, set out by the International Law Commission (ILC) in the Articles on State Responsibility,³ in fact stem from the need to hold states responsible for an abuse of power resulting in an act that was wrongful under international law. State responsibility is, and always has been, intricately tied to the power of states.

The underlying logic of “power breeds responsibility” in relation to states naturally made its way into the world of international organizations.⁴ The responsibility of international organizations, like state responsibility, is tied to power. Power over global issues is now being governed by international organizations, in addition to, or instead of, states.⁵ This shift in power means that international organizations are capable of acting in ways that impact the social, political, economic and legal situation of individuals.⁶ This impact was not, in the beginning, recognized as troubling, as international organizations were seen in a positive light. International organizations were thought to have “a great role to play in the salvation of mankind”⁷ and to be incapable of doing harm. However, it was precisely this shift in power which opened up the possibility of rights violations by international organizations and led to the question – quis custodiet ipsos custodes? (who guards the guardians?).⁸

A decision of the World Health Organization (WHO) to issue a travel ban to a state where the outbreak of an infectious disease has occurred, a decision of the United Nations Security Council to blacklist an individual suspected of terrorist activities and subject him/her to sanctions, or a decision of the United Nations High Commissioner for Refugees as to a determination of refugee status, are just a few examples of situations where the decisions of international organizations are capable of having an adverse impact on the rights of individuals.⁹ The work of international organizations is now seen also in a negative light and it is in this negative light that a call came for the responsibility of international organizations. The power exercised by international organizations necessitated a counterbalance to responsibility and this counterbalance is seen in the ILC’s Articles on the Responsibility of International Organizations.¹⁰

Over time, governance over global issues has further shifted from states and international organizations to other entities, including public-private partnerships. Partnerships are stepping in and filling, or partially filling, the shoes of states and international organizations and, as a result, are regulating global issues in addition to, or instead of, states and international organizations. This power, like the power of states and international organizations, is capable of having an adverse impact on the rights of individuals and thus needs to be subject to legal restraints such as responsibility under international law.

The overarching purpose of this book is thus to explore responsibility under international law in the context of global health public-private partnerships. A foreseeable scenario is, for example, a public-private partnership providing (or assisting in providing) medication to a population that is damaging to the life and health of the population because it is unsafe, not properly tested and/or expired. The inquiry made, in relation to this and other similar scenarios, is: who can be held responsible under international law? Can the partnership be held responsible? And/or can the partners and/ or hosts of the partnership be held responsible? To address this inquiry, the legal status of global health public-private partnerships under international law is contemplated in order to determine whether or not these partnerships have legal personality under international law, resulting in them being subject to rules of responsibility under international law.¹¹ The absence of legal personality under international law, and in turn the failure to fall within the framework of responsibility under international law, incites consideration of the possibility of holding global health public-private partnerships responsible in domestic legal systems and the immunity these partnerships have from the jurisdiction of domestic courts in certain states.¹² The obstacles to holding global health public-private partnerships themselves responsible leads finally to an investigation into the potentiality of holding states and/or international organizations, as partners and/or hosts of these partnerships, responsible under international law in relation to the acts of these partnerships and possible remedies arising therefrom.¹³

1.1 Definitions

A couple of definitions of terms relied on throughout need to be provided as they are capable of varying connotations. The terms defined herein are publicprivate partnership (including networks, programs with external participation, formal partnerships or alliances and separate organizations) and international organization.

1.1.1 Public-private partnership

The term public-private partnership is often used flexibly to describe collaborations between the public and private sectors. The inconsistency in the use of the term makes generalizations with respect to the definition of public-private partnership difficult to make or, at least, very broad. Such inconsistency arises from the range of scope of activities of each partnership, the diverse composition of partners of each partnership and the differing structure of each partnership.¹⁴

Definitions of public-private partnership therefore tend to be all-encompassing. A report of the Secretary-General of the United Nations defines public-private partnerships as “voluntary and collaborative relationships between various parties, both State and non-State, in which all participants agree to work together to achieve a common purpose or undertake a specific task and...

Table of contents

• Cover
• Half Title
• Routledge Research in International Law
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Abbreviations
• 1 Introduction
• 2 Overview of Partnerships
• 3 Legal Status of Partnerships
• 4 Immunity from the Jurisdiction of Domestic Courts
• 5 State Responsibility
• 6 Responsibility of International Organizations
• 7 Remedies
• 8 Conclusion
• Bibliography
• List of Cases
• List of Treaties, Legislation and Other Agreements
• Selected Documents of Organizations
• Selected Resources on Partnerships
• Index