This panel was convened at 11:15 a.m., Thursday, March 24, by its moderator, Jeffrey L. Dunoff of Temple University, who introduced the panelists: Lisa Clarke of the University of Amsterdam, Amsterdam Center for International Law; David Gartner of Arizona State University, Sandra Day O'Connor College of Law; Erika Techera of Macquarie University, Macquarie Law School; and Margaret Young of Melbourne Law School.
INTRODUCTORY REMARKS BY JEFFREY L. DUNOFF
It is an honor to chair the panel "New Voices I: Global Health, Trade, and Common Resource Regimes." Our panelists have prepared engaging and stimulating papers. In this very brief introduction, I will offer just a few observations on what these "new voices" have to say that is "new."
First, each paper directs our attention to the increasing influence of new types of international bodies in various areas of global governance. In the aggregate, the papers foreground a series of non-traditional forms--and non-traditional sites--of international law-making, often involving a combination of states, international organizations, and non-state actors in multi-stakeholder forms of governance. By highlighting these diverse and innovative forms of global governance, the new voices reveal that our traditional approaches to law-making and governance are significantly under-inclusive. The papers that follow convincingly demonstrate that it is a mistake to continue to ignore this heretofore largely hidden world of global governance.
Yet another theme uniting the papers is that international lawyers' traditional focus on the creation and interpretation of normative instruments, whether hard or soft, is increasingly inadequate. These new forms of global governance detailed in the papers involve much more than the generation of new norms. The papers do not suggest that examining the making and interpretation of norms is unimportant, but they do suggest that it is hardly the whole story. Specifically, they suggest that we need to be mindful of the informal decisions made in overseeing and implementing international regulatory regimes, as well as the diverse set of operational activities that international bodies undertake. In the aggregate, these less formal and "below the radar" processes and activities regulate and manage vast areas of international relations, and we cannot understand new forms of international cooperation unless we understand these informal processes.
Notably, the papers' contributions are not limited to the descriptive and methodological; each author recognizes the normative implications of the developments he or she describes.
In particular, the papers fully recognize that the new configurations of authority they highlight reflect important shifts in power. The papers also acknowledge that the new sites of power--like traditional sites of power--raise difficult but essential questions regarding legitimacy and accountability. To their credit, the papers do not shrink from these challenging normative questions; on the contrary, they suggest a number of intriguing approaches to these issues.
These brief observations only scratch the surface of a very rich set of papers. Stepping back from the particular arguments found in each paper, I add one final observation: If a discipline's continuing vitality depends on its ongoing ability to attract talented new voices, then this panel is evidence that international law will continue to be a vibrant academic discipline for years to come.
BY JEFFREY L. DUNOFF, Professor of Law, Temple University.
THE EXERCISE OF PUBLIC POWER OVER GLOBAL HEALTH THROUGH PUBLIC-PRIVATE PARTNERSHIPS AND THE QUESTION OF RESPONSIBILITY UNDER INTERNATIONAL LAW
By Lisa Clarke
Global health issues, such as AIDS, tuberculosis, and malaria, are not being sufficiently addressed by the public or private sector alone. In response, states and international organizations (the public sector) and companies, non-governmental organizations, research institutes, and philanthropic foundations (the private sector) are joining forces in public-private partnerships, (la) One consequence of this response is that public power over aspects of global health is moving from the hands of states and international organizations into the hands of public-private partnerships.
Stemming from this exercise of public power is the capability to impact favorably but also the capability to impact adversely the rights of individuals, in particular the rights to life and health under international law. This, in turn, instigates a discussion on responsibility under international law. At the moment, however, there are no rules directly addressing the responsibility of public-private partnerships under international law. A gap therefore exists between exercises of public power over global health by public-private partnerships and responsibility under international law.
A way to close this gap might be to hold states, as partners, and/or international organizations, as partners and/or hosts, responsible under international law for the acts of public-private partnerships. States and international organizations, as partners and/or hosts, are enabling partnerships to manage activities which normally fall within the domain of states and international organizations. If a partnership infringes on the rights to life and/or health under international law, could the states and/or international organizations involved justifiably disassociate themselves from responsibility under international law?
I suggest attributing the acts of partnerships to states and/or international organizations through application of the International Law Commission's (ILC) Articles on State Responsibility (2) and the ILC's draft articles on the responsibility of international organizations, (3) respectively.
The provisions of the Articles on State Responsibility which might lead to the attribution of the acts of global health public-private partnerships to states are Article 5 and Article 8.
Article 5 states that "[t]he conduct of a person or entity which is not an organ of the State ... but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law." (4a) An argument could be made that states have empowered public-private partnerships to deal with global health issues that are, ordinarily, within the governmental authority of states.
These partnerships, however, do not seem to fall within the scope of the term "entity" in Article 5. (5a) "[E]ntity" tends to include "para-statal entities" or "former State corporations [that] have been privatized but retain certain public or regulatory functions." (6) But are these entities cited as examples because they were the types of entities reasonably foreseen to be covered by Article 5 at the time of its drafting? Perhaps the scope of the term "entity" in Article 5 should be widened to include entities such as partnerships. Such a widening is imaginable based on a plain reading of Article 5 and, further, would reflect the changing nature of the relationships in which states participate.
Article 5 is, however, further restricted in its application to global health public-private partnerships since this article requires that only exercises of governmental authority empowered by the law of the state shall be attributed to the state. (7) An act of a partnership, thus, only falls within the parameters of Article 5 if the law of the state clearly authorized the act of the partnership. But this is often difficult to determine.
Article 8 states that "[t]he conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State." (8) Public-private partnerships governing global health fall within the category of "person or group of persons" without much controversy. (9) The phrase "acting ... under the direction or control of" is, however, more contentious. A debate revolves around the degree of direction or control, of the state over the person or group of persons, necessary to invoke attribution.
The leading case on point is Nicaragua, where the International Court of Justice (ICJ) held that "[f]or ... conduct to give rise to legal responsibility of the [State], it would in principle have to be proved that that State had effective control." (10) States might be found to have effective control over global health public-private partnerships through financing and/or decisionmaking. States often provide a significant portion of the funding of these partnerships. (11a) Further, the boards of these partnerships often require a certain degree of state approval before a decision is made. (12) Nicaragua interpreted effective control to mean a high degree of control, including not only overall control but further specific instructions. (13) This was reaffirmed by the ICJ in the Bosnian Genocide case, which held that effective control must be "in respect of each operation." (14a) Providing funding and approving board decisions, without specific instructions, does not, therefore, seem to meet the standard of effective control set out in these cases.
There is a reluctance to stretch the scope of Article 8. But should "direction or control" only trigger attribution to states where specific instructions are involved? Perhaps the degree of direction or control should be "overall" direction or control, (15a) including, although not necessarily, specific instructions. This would more realistically reflect the changing nature of the relationships in which states participate.
THE RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS
Attribution is discussed in the draft articles on the responsibility of international organizations in draft Article 5: "The conduct of an organ or agent of an international...