Privileges and immunities of global public-private partnerships: A case study of the global fund to fight AIDs, tuberculosis and malaria

International Organizations Law Review

Volumn 6, Issue 2, 2009, Pages 383-419

  Aziz, Davinia Abdul ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

Author keywords

Global health governance; Global public private partnerships; Multi actor funds; Privileges and immunities

Indexed keywords

EID: 77952610606     PISSN: 15723739     EISSN: 15718069     Source Type: Journal    
DOI: 10.1163/157237409X477635     Document Type: Conference Paper

References (145)

1. B. Kingsbury et al., "The Emergence of Global Administrative Law", 68 Law and Contemporary Problems (2005) p. 18.
2. This is not to say that the participation of non-state entities ipso facto precludes the definition of an organization as an "international organization" at international law: the European Communities' membership of the World Trade Organization and the employer/ employee/government constituencies of the International Labour Organization are oft-cited examples. Indeed, Article 2 of the UN International Law Commission's Draft Articles on the Responsibility of International Organizations allows that international organizations may include "other entities" apart from states among its membership. However, the draft still adopts, as its primary definition of "international organization", "an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality". Of particular significance for the purposes of the present discussion is the fact that organizations established under municipal law are decidedly not part of the International Law Commission's understanding of international organizations: see Report of the International Law Commission on the work of its sixty-first session (A/64/10), p. 45, and the discussion of the Global Fund's legal arrangements under Swiss law in section 2.2.1, infra.
3. see the discussion in section 3.1.2, infra.
4. Kingsbury et al., supra note 1, p. 18.
5. Ibid., p. 20.
6. The Global Fund, About the Global Fund, , visited on 8 March 2009.
7. "Hybrid intergovernmental-private arrangements" are posited as one of several "ideal" categories of globalized administrative regulation by Kingsbury et al. in order to facilitate further inquiry: see Kingsbury et al., supra note 1, p. 20.
8. Tw o examples are the World Health Organization's Tobacco-Free Initiative (), which involves NGOs and civil society in work on tobacco control, and the United Nations Global Compact (), which is a policy initiative designed to align corporate activity with certain "universally-accepted principles" in the areas of human rights, labour, the environment and anti-corruption. Neither is institutionalized along the lines of the Global Fund.
9. Here, I use the term "global public-private partnership" to indicate a transnational collaborative relationship involving both state and non-state actors (including NGOs, corporate actors and private foundations) constituted to achieve certain shared goals.
10. As at the time of writing, the Global Fund had committed approximately USD 15.6 billion in grants to programmes in 140 states: see The Global Fund, Homepage, , visited on 15 June 2009.
11. For detailed information on grant commitments and disbursements, see The Global Fund, Commitments and Disbursements, , visited on 20 February 2009.
12. Ibid. For information on liability exposure, see The Global Fund Secretariat, Report on Legal Status Options for the Global Fund, GF/B4/12, 29-31 January 2003, p. 3, , visited on 9 June 2009 [hereinafter "Report on Legal Status Options"].
13. Amir Attaran et al., "WHO, the Global Fund, and Medical Malpractice in Malaria Treatment", 363 The Lancet (2004) p. 238 (arguing that Global Fund decisions to finance "cheap but ineffective" chloroquine or sulfadoxine-pyrimethamine instead of artemisinin-class combination therapies for malaria in Senegal and Kenya were "indefensible").
14. The Global Fund, Office of Inspector-General, Final Audit Report on the Procurement, Supply Chain Management and Service Delivery of the Global Fund's Grants to the Government of India, Audit Report No. TGF-OIG-08-001, 9 September 2008, p. 12, , visited on 9 June 2009.
15. Subhir Baumik, "India child deaths blamed on Unicef", BBC News, 3 September 2003, , visited on 8 March 2009.
16. Agreement between the Swiss Federal Council and the Global Fund to Fight AIDS, Tuberculosis and Malaria in view of determining the legal status of the Global Fund in Switzerland, 13 December 2004, , visited on 9 June 2009 [hereinafter "the Swiss Headquarters Agreement"].
17. See also The Global Fund, Global Fund Gains Privileges and Immunities Similar to International Organizations, 13 December 2004, , visited on 20 February 2009.
18. See also section 2.3, infra.
19. Executive Order 13395, 13 January 2006, , visited on 9 June 2009 [hereinafter "Executive Order 13395"];
20. International Organizations Immunities Act, § 288f-6 (Global Fund to Fight AIDS, Tuberculosis and Malaria; extension of privileges, exemptions, and immunities).
21. See also section 2.3, infra.
22. The Global Fund, Report of the Policy and Strategy Committee (GF/B18/4), 7-8 November 2008, p. 11, , visited on 19 January 2009 [hereinafter "PSC Report GF/B18/4"];
23. The Global Fund, Report of the Policy and Strategy Committee (GF/B19/4), 5-6 May 2009, p. 14, , visited on 15 June 2009 [hereinafter "PSC Report GF/B19/4"].
24. According to PSC Report GF/B18/4 and PSC Report GF/B19/4, the initial strategy is to secure such privileges and immunities by approaching states with the necessary framework legislation "on the possibility of designating the Global Fund as an organization that enjoys privileges and immunities within their domestic legal systems": see also the discussion in section 3.3.2, infra. A working group comprising legal advisers of Board members belonging to the Policy and Strategy Committee will also examine other mechanisms for the grant of privileges and immunities, including a multilateral agreement. The working group is to present its proposal at the next meeting of the Global Fund Board in November 2009: PSC Report GF/B19/4, p. 14.
25. These range from critiques that P&I regimes attenuate legal accountability generally, to critiques specific to situations that are said to qualify as abuse of P&I regimes. see, e.g., M. Singer, "Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns", 36 Virginia Journal of International Law (1995) pp. 53-165;
26. A. Reinisch, "Securing the Accountability of International Organizations, 7 Global Governance (2001) pp. 131-149; (Pubitemid 33403114)
27. K. Wellens, Remedies Against International Organisations (Cambridge University Press, Cambridge, 2002);
28. F. Rawski, "To Waive Or Not to Waive: Immunity and Accountability in UN Peacekeeping Operations", 18 Connecticut Journal of International Law (2002) pp. 103-132;
29. and E. Gaillard and I. Pingel-Lenuzza, "International Organisations and Immunity From Jurisdiction: To Restrict Or to Bypass", 51 International and Comparative Law Quarterly (2002) pp. 1-15.
30. The GAVI Alliance is a second global public-private partnership that has secured privileges and immunities normally reserved for international organizations in Switzerland, and is also the first entity to be accorded such status under the Federal Act on the Privileges, Immunities and Facilities and the Financial Subsidies granted by Switzerland as a Host State ("the Swiss Host State Act"): see GAVI Alliance, GAVI recognized as international institution, , visited on 18 July 2009. For an English translation of the Swiss Host State Act, see , visited on 18 July 2009. See further the discussion in section 3.3, infra.
31. In his speech to the Summit, then-UN Secretary General Kofi Annan "propose[d] the creation of a Global Fund, dedicated to the battle against HIV/AIDS and other infectious diseases": the text of this speech is available at , visited on 9 March 2009.
32. See also the accounts given in The Global Fund, History of the Global Fund, , visited on 22 December, 2008; The Global Fund, The Global Fund: Who We Are, What We Do, , visited on 24 December 2008; A. Triponel, "Global Fund to Fight Aids, Tuberculosis and Malaria: A New Legal and Conceptual Framework for Providing International Development Aid" , visited on 9 June 2009; R.W. Copson and T. Salaam, The Global Fund to Fight Aids, Tuberculosis and Malaria: Background and Current Issues, CRS-2 (2005), , visited on 1 December 2008; J. Heimans, Multiactor Funds: New Tools to Address Urgent Global Problems , visited on 9 June 2009 (describing then-UN Secretary-General Kofi Annan as a "key instigator" of the Global Fund).
33. Organization of African Unity, Abuja Declaration on HIV/AIDS, Tuberculosis and Other Related Infectious Diseases (OAU/SPS/ABUJA/3), para. 29, , visited on 9 June 2009.
34. Declaration of Commitment on HIV/AIDS (U.N. Doc. A/Res/S-26/2), paras 90-91. The Declaration both endorsed "the establishment, on an urgent basis, of a global HIV/AIDS and health fund" financed from public and private sources, and linked the establishment of the proposed fund to the effective realization of the Millennium Development Goals, which have their own inception in another soft law instrument, the United Nations Millennium Declaration (U.N. Doc. A/Res/55/2). The eradication of HIV/AIDS and other infectious diseases is listed as Millennium Development Goal 6: see United Nations Millennium Development Goals, Goal 6: Combat HIV/AIDS, Malaria and Other Diseases, , visited on 17 February 2009.
35. Group of Eight, Communiqué (22 July 2001), para. 15, , visited on 9 June 2009.
36. The meeting and consultation documents of the Transitional Working Group are available at . The Transitional Working Group consisted of about 40 representatives of developing and donor states, NGOs, the private sector and UN agencies: see The Global Fund, Transitional Working Group, , visited on 20 February 2009.
37. According to Heimans' empirical study (supra note 20), hostility toward the UN system, including the WHO, was palpable during the negotiations: Heimans, supra note 20, p. 3.
38. This story is also borne out by Transitional Working Group meeting documents ("Other members would prefer total independence from existing organizations. This was regarded as critical to establish public confidence".): see Second Meeting of the Transitional Working Group, p. 4, , visited on 20 February 2009.
39. D. Sullivan, "International Coalitions of the Willing", 99 Proceedings of the American Society of International Law (2005) p. 246.
40. The Global Fund, Report on Legal Status Options for the Global Fund (GF/B4/12), , visited on 9 June 2009.
41. To the extent that the normal operation of Swiss law is modified under the Swiss Headquarters Agreement, supra note 15.
42. The Global Fund, Bylaws, , visited on 19 January 2009 [hereinafter "Bylaws"].
43. The Global Fund, Framework Document, , visited on 19 January 2009 [hereinafter "Framework Document"].
44. The Global Fund, Homepage, , visited on 1 January 2009;
45. The Global Fund, About the Global Fund, , visited on 19 February 2009.
46. The Global Fund, The Global Fund Becomes an Administratively Autonomous Institution as of 2009, , visited on 24 December 2008.
47. Bylaws, supra note 29, Article 5.
48. The Global Fund, Technical Evaluation Reference Group, , visited on 9 March 2009.
49. The Global Fund, Office of Inspector-General, , visited on 19 February 2009.
50. See also the discussion at the end of section 2.2.2, infra.
51. On this tripartite structure, see José E. Alvarez, International Organizations as Law-Makers (Oxford, Oxford University Press, 2006) p. 9.
52. José E. Alvarez, International Organizations as Law-Makers (2006) p. 9 Ibid.
53. These are set out in Section III (Principles) of the Framework Document, supra note 30, and at The Global Fund, How the Global Fund Works, , visited on 19 January 2009.
54. Bylaws, supra note 29, Article 6.1.
55. See also Sullivan, supra note 26, p. 245.
56. Ibid.
57. The Global Fund, Partnership Forum, , visited on 24 December 2008.
58. see, e.g., Recommendations from the Global Fund Partnership Forum (8-10 December 2008), , visited on 20 February 2009.
59. Bylaws, supra note 29, Article 7.4. The Board meets at least twice a year. Meeting documents and Board decisions are disseminated through the Global Fund website at and , visited on 20 February 2009.
60. Bylaws, supra note 29, Article 7.6. The Chair and Vice-Chair of the Board are elected by the voting membership from its number in accordance with the voting procedure set out in the main text. The current Chair is Dr Tedros Adhanom Ghebreyesus, Minister of Health of the Federal Republic of Ethiopia. The current Vice-Chair is Mr Ernest Loevinsohn, Director-General, Health and Education Directorate, Sector B Global Partnerships Branch, Candian International Development Agency. Although this is not provided for in the Bylaws, it appears that there is a practice to have the Chair from a donor constituency, and the Vice-Chair from an implementor constituency, or vice versa: see L. Aspinall, J. Wittebrood and J.A. Tiendrebeogo, Global Fund Governance and Constituency Processes, (8 December 2008), , visited on 25 February 2009.
61. Bylaws, supra note 29, Article 8.1. The current (and second) Executive Director, Dr. Michel D. Kazatchkine, is a French immunologist. Before succeeding Sir Richard Feachem in April 2007, Dr. Kazatchkine served as Chair of the Technical Review Panel, and as Vice-Chair of the Board: The Global Fund, Executive Director, , visited on 20 February 2009.
62. Bylaws, supra note 29, Article 8.2.
63. The Global Fund, Secretariat, , visited on 9 June 2009.
64. Third Meeting of the Transitional Working Group, Annex 1: Governance, p. 4 (Dec. 14, 2001), , visited on 20 February 2009.
65. Final Report of the First Meeting of the Transitional Working Group to Establish a Global Fund to Fight AIDS, Tuberculosis and Malaria, (30 October 2001), p. 3, , visited on 24 December 2008.
66. Sullivan, supra note 26, p. 246.
67. The Global Fund, supra note 32.
68. The Global Fund, Report of the Finance and Audit Committee (31 October-3 November 2006), p. 3 , visited on 27 October 2008.
69. The World Bank, Integrity Vice Presidency, , visited on 9 June 2009.
70. E. de Wet, "Holding International Institutions Accountable: The Complementary Role of Non-Judicial Oversight Mechanisms and Judicial Review", 9 German Law Journal (2008) p. 1997 (drawing a comparison between the World Bank Department of Institutional Integrity and the UNHCR Inspector General, who investigates misconduct affecting UNHCR beneficiaries, including corruption and other misconduct related to refugee status determination).
71. The Global Fund, Office of Inspector General, , visited on 9 June 2009.
72. The Global Fund, Office of Inspector General-Reports, , visited on 9 June 2009.
73. There is a fifth report on allegations of misuse of a Global Fund bank account with Credit Suisse not listed at this page. However, that report appears to have been somewhat problematic, drawing vigorous disagreement from Global Fund management: The Global Fund, Comprehensive Account of the Reports Related to the Credit Suisse Account (31 May 2007), , visited on 9 June 2009.
74. The Global Fund, Office of Inspector-General, Whistleblowing Policy for the Secretariat and Governance Bodies of the Global Fund to Fight AIDS, Tuberculosis and Malaria, , visited on 9 June 2009.
75. The Global Fund, Office of Inspector-General, In-country Whistleblowing Policy for the Global Fund to Fight AIDS, Tuberculosis and Malaria, , visited on 9 June 2009.
76. Section III.C provides that "The Fund will base its work on programs that reflect national ownership and respect country-led formulation and implementation processes" see Framework Document, supra note 30.
77. Some aspects of the standard form programme grant agreement are dealt with further in section 2.3, infra.
78. For example, the Principal Recipient for many grants in Indonesia is the Ministry of Health, while the Principal Recipient for grants in Myanmar, when they subsisted, was UNDP: see information available at The Global Fund, Advanced Program Search, , visited on 15 June 2009.
79. The Global Fund, Framework Document, Section VI.4, , visited on 9 June 2009 [hereinafter "Framework Document"].
80. The Global Fund, Competitive Bidding Process, , visited on 9 March 2009.
81. The Global Fund, Office of Inspector-General, supra note 58, para. 5.
82. The Global Fund, Country Coordinating Mechanisms: Conflict of Interest, , visited on 9 June 2009.
83. Aidspan, Homepage, , visited on 8 March 2009. Among other publications, Aidspan issues The Global Fund Observer, which sets out commentary and analysis on Global Fund in-country activities.
84. Framework Document, supra note 30, Section III.G; The Global Fund, How the Global Fund Works, , visited on 9 June 2009.
85. See also the positive assessment in K. Buse and A.M. Harmer, Seven Habits of Highly Effective Global Public-Private Health Partnerships: Practice and Potential, 64 Social Science and Medicine (2007) pp. 262, 265.
86. The Global Fund, eForum 2008, , visited on 9 June 2009.
87. Although one might equally say that the need for P&I regimes may be interpreted as a function of pragmatism, in that it is simply necessary on instrumental grounds to facilitate the work of the Global Fund. see note 11 and accompanying text, supra.
88. PSC Report GF/B18/4, supra note 17, p. 11.
89. Sullivan, supra note 26, p. 246.
90. Swiss Headquarters Agreement, Parts I and II; International Organizations Immunities Act, §§ 288a-d. These compare to the list of privileges and immunities set out in the Convention on the Privileges and Immunities of the United Nations, Feb. 13, 1946, 1 U.N.T.S. 15 (entered into force 17 September 1946) [hereinafter "the 1946 Convention"].
91. The full text of the Global Fund standard form programme grant agreement is available at , visited on 9 March 2009.
92. Report on Legal Status Options, Annex 2: Liability Considerations, supra note 27.
93. PSC Report GF/B18/4, supra note 17, p. 11.
94. This is quite apart from situations of abuse, criminality or corruption. see Wellens, supra note 18, D.C. Esty, "Good Governance At the Supranational Scale: Globalizing Administrative Law", 115 Yale Law Journal (2006) p. 1540, and the writings cited in note 18, supra.
95. Kingsbury et al., supra note 1, p. 41, citing Waite and Kennedy v. Germany, 18 February 1999, ECHR, 30 Eur. H.R. Rep. 261 (1999);
96. see also R. Wilde, "Enhancing Accountability at the International Level: The Tension between International Organization and Member State Responsibility and the Underlying Issues at Stake", 12 ILSA Journal of International and Comparative Law (2005-2006) pp. 412, 413.
97. see, e.g., Waite and Kennedy v. Germany, supra note 77.
98. Here, it is worth noting that even the standard alternative dispute settlement clauses normally incorporated in procurement contracts between international organizations and private contractors are inadequate in this regard: see Y. Renouf, "When legal certainty matters less than a deal: procurement in international organizations", paper frst presented at the University of Geneva-NYU conference on "Practical Legal Problems of International Organizations. A Global Administrative Law Perspective on Public/Private Partnerships, Accountability, and Human Rights" (Geneva, 20-21 March 2009), available at .
99. supra, note 19. See especially Article 3 (Content), which lists, among other things, inviolability of the person, premises, property, archives, documents, correspondence and diplomatic bag, immunity from legal proceedings and the enforcement of judgments, and exemption from direct and indirect taxes as well as customs duties and other import taxes.
100. Although the UN International Law Commission has taken up this issue, work remains very much in progress: see UN International Law Commission, Analytical guide: responsibility of international organizations, , visited on 10 June 2009. Its work product also does not have the monopoly on the correct approach (see, e.g., the work of the International Law Association on the Accountability of International Organisations, , visited on 10 June 2009), and has also been the subject of trenchant critique by, for example, José Alvarez (cited in the Special Rapporteur's Fifth Report (A/CN.4/583), p. 8, , visited on 10 June 2009).
101. See also A. Stumer, "Liability of Member States for Acts of International Organizations: Reconsidering the Policy Objections", 48 Harvard Journal of International Law (2007) pp. 553-580 (arguing for an approach based on secondary or concurrent liability of the member states of an international organization).
102. International organizations "authorized by⋯the Charter" may request advisory opinions pursuant to Article 65.1 of the ICJ Statute, but there is no equivalent provision for contentious cases.
103. Suchman has defined "legitimacy" on a broad level to mean "a generalized perception or assumption that the actions of an entity are desirable, proper, or appropriate within some socially constructed system of norms, values, beliefs and definitions": see M.C. Suchman, "Managing Legitimacy: Strategic and Institutional Approaches", 20 Academy of Management Review (1995) p. 574.
104. In the specific context of supranational governance, Esty lists six types of legitimacy: democratic, results-based, order-derived, systemic, deliberative and procedural: Esty, supra note 76, p. 1515 et seq.
105. see, e.g., the type of arguments cited by S. Bartsch, "Global Public-Private Partnerships in Health: A Question of Accountability and Legitimacy", , visited on 10 June 2009.
106. Esty, supra note 76, p. 1511.
107. K. Buse and G. Walt, "Global Public-Private Partnerships: Part II - What Are the Health Issues for Global Governance?", 78 Bulletin of the World Health Organization (2000) p. 705.
108. Attaran et al., supra note 12;
109. E. Ollila, "Global Health Priorities - Priorities of the Wealthy?", 1 Globalization and Health (2005) p. 6-10.
110. A.L. Taylor, "Public-Private Partnerships for Health: The United Nations Global Fund on Aids and Health", 35 John Marshall Law Review (2002) p. 401;
111. A.L. Taylor, "Governing the Globalization of Public Health", 32 Journal of Law, Medicine and Ethics (2004) pp. 500-508;
112. L.O. Gostin, "A Proposal for a Framework Convention on Global Health", 10 Journal of International Economic Law (2007) pp. 989-1008.
113. Gostin, supra note 88, pp. 990-991.
114. This expression is somewhat recklessly pillaged from G.E.M. Anscombe, "Modern Moral Philosophy", 33 Philosophy (1958) p. 6.
115. C.W. Jenks, International Immunities (New York, Oceana Publications, 1961);
116. P.H.F. Bekker, The Legal Position of Intergovernmental Organizations: A Functional Necessity Analysis of Their Legal Status and Immunities (Dordrecht; Boston, M. Nijhoff, 1994). The prototypical expression of "functional necessity" doctrine is in Article 105 of the UN Charter, which provides that "the Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes". These purposes are, of course, articulated in Article 2 of the UN Charter.
117. see, e.g., A.J. Miller, "Privileges and Immunities of United Nations Officials" International Organizations Law Review (2007) pp. 197-198.
118. For a survey of national approaches, see A. Reinisch, International Organizations Before National Courts (Cambridge, New York, Cambridge University Press, 2000).
119. "Since an international organization is brought into being by sovereign and independent states and is an association of states, it must be given a special status in relation to the exercise of jurisdictional and administrative authority by individual states": Explanatory Report to Resolution (69) 29 of the Council of Europe on the Privileges and Immunities of International Organisations, cited in Bekker, supra note 91, pp. 100-1.
120. Tw o examples may be briefly noted here. In International Association of Machinists v. OPEC 649 F.2d 1354 (9th Cir. 1981), cert. denied, 454 U.S. 1163 (1982), the US Court of Appeals for the Ninth Circuit applied act of state doctrine to decline adjudicating on OPEC's petroleum price-fixing activity, on the ground that this activity had a "significant sovereign component". In Re EAL (Delaware) Corp 1994 US Dist. Lexis 20528 (D. Del. 1994), the US District Court for the District of Delaware dismissed a suit against Eurocontrol on the basis that it was a "foreign state" for the purpose of the Foreign Sovereign Immunities Act.
121. M. Aronson, "A Public Lawyer's Response to Privatisation and Outsourcing", in M. Taggart (ed.), The Province of Administrative Law (Oxford, Hart, 1997) p. 41.
122. see, e.g., F.X. Perrez, "Public-private partnerships: a tool to evade or to live up to commitment?", paper first presented at the University of Geneva-NYU conference on "Practical Legal Problems of International Organizations. A Global Administrative Law Perspective on Public/Private Partnerships, Accountability, and Human Rights" (Geneva, 20-21 March 2009), available at .
123. E. Benvenisti, "Exit and Voice in the Age of Globalization", 98 Michigan Law Review (1999) pp. 169-170.
124. K. Buse and G. Walt, "Global Public-Private Partnerships: Part I - A New Development in Health?", 78 Bulletin of the World Health Organization (2000) p. 551.
125. M. Edwards and S. Zadek, "Governing the Provision of Global Public Goods: The Role and Legitimacy of Non-State Actors", in I. Kaul et al. (eds), Providing Global Public Goods: Managing Globalization (New York, Oxford University Press, 2003) p. 203.
126. Bill & Melinda Gates Foundation, Grants Overview, , visited on 19 January 2009.
127. The Global Fund, Pledges and Contributions, , visited on 19 January 2009.
128. See supra, note 19.
129. Jenks, supra note 91.
130. see text accompanying note 80, supra.
131. Singer, supra note 18, p. 72.
132. Swiss Host State Act, supra note 19.
133. Kingsbury et al., supra note 1, pp. 28, 54;
134. C. Harlow, "Global Administrative Law: The Quest for Principles and Values", 17 European Journal of International Law (2006) p. 208;
135. J. McLean, "Divergent Legal Conceptions of the State: Implications for Global Administrative Law", 68 Law and Contemporary Problems (2005) p. 184.
136. The decision in Rv. Panel on Takeovers and Mergers, ex p Datafin plc, English Court of Appeal, Queen's Bench Reports (1987) p. 815 is paradigmatic. In that case, Datafin sought judicial review of a decision taken by the Panel on Takeovers and Mergers, arguing that the Panel had wrongly applied its own takeover rules. The Panel was a self-regulating body and had no direct statutory powers. However, the Court held that the Panel "was supported and sustained by a periphery of statutory powers and penalties", and "operate[d] wholly in the public domain". In the grey space between the two extremes of contractual and statutory "sources of power", the Court held that "the nature of the power" could render an entity amenable to public law judicial review.
137. This is typified by the United States Administrative Procedure Act, which mandates that administrative agency decisions should be taken in conformity with procedures that would generate a publicly available administrative record: Administrative Procedure Act § 552;
138. R.B. Stewart, "US Administrative Law: A Model for Global Administrative Law?" 68 Law and Contemporary Problems (2005) p. 74.
139. Esty, supra note 76, pp. 1521-1522.
140. Like the International Organisations Immunities Act, the approach in most Commonwealth jurisdictions is to list the standard privileges and immunities in primary legislation, and to designate new organizations by executive order.
141. A.J. Miller, "United Nations Experts on Mission and their Privileges and Immunities" 4 International Organizations Law Review (2007) p. 34.
142. See also the discussion of Global Fund strategy on privileges and immunities, supra, note 17.
143. see the references in notes 18 and 77, supra, and the examination of internal, national and international judicial accountability mechanisms in K. Wellens, Remedies Against International Organizations (Cambridge, Cambridge University Press, 2002)
144. and K. Wellens, "Fragmentation of International Law and Establishing an Accountability Regime for International Organizations: The Role of the Judiciary in Closing the Gap" 25 Michigan Journal of International Law (2003-2004) pp. 1159-1181.
145. see the discussion in section 3.1.2, infra. "Sovereignty" is by no means an agreed concept: see, e.g., the review of the relevant literature in D. Sarooshi, International Organizations and their Exercise of Sovereign Powers (New York, Oxford University Press, 2005) pp. 3-5. For the purposes of the present discussion, however, Judge Huber's characterization of the concept, with its connotations of exclusive territorial jurisdiction, is still apposite: "Sovereignty in the relation between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organisation of States during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations": Island of Palmas Case, 4 April 1928, PCA, Arbitral Award, p. 838, , visited on 17 January 2009.