The increasing involvement of private bodies in international inter-governmental organizations is not a new phenomenon. There is a panoply of ways in which many private bodies do take part in the activities of international organizations even if their presence is not directly visible. For example, the World Trade Organization (WTO) is an international inter-governmental organization where non-state actors have no direct footing. Despite that, it is well-known that the inputs of the private businesses do influence the negotiating position of the member states of the WTO and that ultimately feeds into the agenda of the organization and also the final text adopted by the member states.
However, compared to that, the involvement of private actors in the World Health Organization (WHO) is a much less discussed issue among international legal scholars. This article argues that this increased involvement of private actors is not only undermining the credibility of the status of WHO as an international inter-governmental body, one of the 16 specialized agencies of the United Nations but may also undermine global public health. This article also points out that this trend sets a potentially bad precedent for funding the activities of international inter-governmental institutions. In this matter, there is a bigger stake than meets the eye.
Overview of the WHO Foundation’s Involvement with the WHO
What the WHO Foundation entails has been explained elsewhere and need not be retold here. In essence, it would suffice to say here a few words about the basic structure of the WHO Foundation. It is an independent grant-making entity, established in Geneva, under the Swiss law set up for working on promoting WHO’s efforts to address the pressing global health challenges. It is proclaimed that the WHO Foundation “will work responsibly with individual donors, the general public and corporate partners to strengthen health systems globally.” It is rather remarkable that the WHO Foundation acknowledged that the WHO has not been set up for approaching individual and/or corporate donors.
Thus, it clearly acknowledges that the funding mechanism of the WHO would radically shift from what was envisaged by the founders of the WHO. However, this is not by any means a sudden aberration; rather it epitomizes a much broader trend of the disinvestment of states in the WHO and the increasing incursion of non-state actors in the WHO regime. For instance, in 2002, the Global Fund to Fight AIDS, Tuberculosis and Malaria was set up as a distinct, independent, public-private partnership body for drawing resources for fighting the designated diseases and promptly disbursing them. However, the funding here was also drawn from the governments. And also, the funding was for dealing with fighting some particular diseases. And apparently, there was no clear acknowledgment that the funding mechanism was radically different from the way the WHO was supposed to draw its funding.
One positive feature of the WHO Foundation mechanism is that funds channelled through the Foundation would not be used for furthering any specific projects of the WHO. Earmarking voluntary funds constituting the lion’s share of the current WHO funding for specific objectives have sometimes rightly been criticized as too much controlled by the donors of the specific fund and governed by the imperatives of the donor (Gostin, 2015). Thus, it should give the WHO greater freedom to work independently of the donor imperatives and help promote its general work. The private funding may also entail fewer regulations, and a prompter disbursement of the fund may also bring about the prompt response which may arguably be able to respond to the situations where prompt response is warranted.
Concerns with the Mechanism
Given that states represent individuals and organizations, the direct involvement of non-state actors within international governmental organizations may not appear to be problematic. One can argue that any donation from any individual or organization is a donation for the good of humankind. However, for all of their good intentions, the private bodies are compelled to respond to shareholder-driven incentives. Even non-profit bodies are not in any way unanswerable to the public at large and they often represent the interest or the priorities of special interest groups who set up and govern them. A labour rights NGO cannot but be leaning towards the interest of the labour groups.
As one scholar has raised a legitimate question if there is the prospect of setting up a NATO foundation involving private interest groups for responding to the security need of member states when the member states themselves were unwilling to become involved, how the states in question would respond would (Richter, 2012). Clearly, such a scenario within the NATO or UN Security Council would be completely unpalatable to the member states of the respective international organization. If in the case of inter-governmental organizations dealing with peace and security meddling by the private sector is unpalatable, the same reason does not seem to be fundamentally different in the matter of global public health. The kind of unwarranted influence of the private sector and the WHO has given rise to the adoption of the 2001 internal ‘Guidelines on Interaction with Commercial Enterprises to Achieve Health Outcomes’ (WHO, 2000). The Guidelines recognise that any set of recommendations by the WHO can have a direct impact on the private sector in terms of the cost, demand or the profit of goods and services offered by them (WHO, 2000). It underscores the need for avoiding situations related to conflict of interest involving the WHO or its staff and the private sector with which it interacts. With too much private sector donation directly being funnelled to the WHO, the avoidance of conflicts of interest or perceived conflicts of interest would become difficult to avoid (WHO, 2000).
One may argue that the collaborative model of global public health such as the Global Alliance for Vaccines and Immunization (GAVI) and other public-private collaborative measures’ success is inadequate. It tells what has been achieved, but that does not mean that public funding by the member states of WHO alone could not achieve the same thing or better. It is possible that fully state-funded programmes could have achieved the same or more. Indeed, the disinvestment of states in the WHO sponsored programmes seems to have permeated a situation where the private bodies by making donations to the WHO has created a mirage that the most effective way of contributing to the cause of addressing some pressing global health challenges is through the charity of private bodies.
Thus, there is a paradox here that WHO’s role in global public health governance is central as it is expected to issue health guidelines and set standards that would guide its member states. Article 2 of the Constitution of the WHO mandates the WHO “directing and co-ordinating authority on international health work”. But in fact, other organizations such as the World Bank or even more awkwardly, the private sector has more resources and inevitably concomitant clout to work on global public health than the WHO has. Thus, in global healthy policymaking and standard-setting, it is fair to say that those with power would have less responsibility and the institution with responsibility would have less power. The WHO has already been criticised for doing less in being too circumspect in using its regulatory power for bringing its member states into account for any failure in complying with the standards agreed by them.
While too much governance by governments resulting in too many complex and unnecessary regulations would be frowned upon by most, the retreat of the government in some basic matters of universal need and abdication of public functions by private bodies can hardly be a welcome development. The private donors may make their funding without channeling them through and directly or indirectly interfering with the activities of the WHO. Since the end of the Second World War, international law has seen a radical shift with the growing presence of non-state actors in the international legal landscape where hitherto the states were sole actors. Not only individuals have directly or indirectly become the subject of international law, but the world has also witnessed an exponential growth of inter-governmental institutions which are an integral part of the international legal system of today.
Due to their inter-governmental fabric, these institutions are distinct from the plethora of non-governmental organizations having a presence beyond national boundaries. Exactly how this would shape in another half a century is anyone’s guess. However, it seems rational to think that the growing meddling of private interest groups in some of the most pressing matters of global interest would not be as good a force as the assertion of individual rights and the emergence of global inter-governmental organizations have been on the development of international law. The global policymakers need to acknowledge that the WHO needs more and more public funding and not less.
Md. Rizwanul Islam is a Professor at the Department of Law, North South University, Bangladesh. He would like to thank Sajid Hossain for his able research assistance.