Hostname: page-component-cd9895bd7-p9bg8 Total loading time: 0 Render date: 2024-12-25T04:57:43.844Z Has data issue: false hasContentIssue false
  • English
  • Français

Global Public-Private Partnerships in International Law

Published online by Cambridge University Press:  03 July 2012

Davinia AZIZ
Davinia AZIZ*
Affiliation:
National University of Singapore, Singapore
*
[email protected]
Get access Rights & Permissions [Opens in a new window]

Abstract

Over the last decade, public-private partnerships between states and a variety of non-state actors have proliferated as vehicles for functional co-operation at the global level. In parallel, there has been an emerging trend to accord such partnerships the privileges and immunities normally reserved for intergovernmental organizations (“IO-type privileges and immunities”). After identifying the legal and normative issues associated with this trend, this article argues that IO-type privileges and immunities should be restricted to entities that are clearly established under and governed by international law, and that any approach to IO-type privileges and immunities as a uniform package deal, regardless of the precise functional requirements of the global public-private partnership and its different categories of staff, or the specific conditions in the relevant national jurisdiction where a given privilege or immunity is sought, should be avoided.

Type
Articles
Information
Asian Journal of International Law , Volume 2 , Issue 2 , July 2012 , pp. 339 - 374
Copyright
Copyright © Asian Journal of International Law 2012

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

Adjunct Assistant Professor, Faculty of Law, National University of Singapore.

References

1. For example, the Global Fund to Fight AIDS, Tuberculosis, and Malaria now self-identifies as an “international financing institution”, recalling the Bretton Woods international financial institutions (the International Monetary Fund and the World Bank) and other international financial institutions established by treaty, such as the Bank of International Settlements and the various regional development banks. The Global Fund also provides versions of its website in each of the six official UN languages (namely Arabic, Mandarin Chinese, English, French, Russian, and Castilian Spanish). See The Global Fund, Homepage, online: The Global Fund 〈www.theglobalfund.org/en/〉.

2. On the Global Fund, see AZIZ, Davinia ABDUL, “Privileges and Immunities of Global Public-Private Partnerships: A Case Study of the Global Fund to Fight AIDS, Tuberculosis and Malaria” (2009) 6 International Organizations Law Review 383CrossRefGoogle Scholar; TRIPONEL, Anna, “Global Fund to Fight AIDS, Tuberculosis and Malaria: A New Legal and Conceptual Framework for Providing International Development Aid” (2009) 35 North Carolina Journal of International Law and Commercial Regulation 173Google Scholar; and BROWN, Garrett Wallace, “Multisectoralism, Participation, and Stakeholder Effectiveness: Increasing the Role of Nonstate Actors in the Global Fund to Fight AIDS, Tuberculosis and Malaria” (2009) 15 Global Governance 169Google Scholar.

3. The Global Fund, supra note 1.

4. These are aggregated at The Global Fund, “Protecting the Grant Money”, online: The Global Fund 〈www.theglobalfund.org/en/about/protecting/〉. See also Ann Danaiya USHER, “Donors Continue to Hold Back Support from Global Fund”, The Lancet (6 August 2011), online: The Lancet 〈www.thelancet.com/journals/lancet/article/PIIS0140-6736(11)61235-X/fulltext?rss%3Dyes〉.

5. The Global Fund, (RED)TM, online: The Global Fund 〈www.theglobalfund.org/en/privatesector/red/〉. See DADUSH, further Sarah, “Profiting in (RED): The Need for Enhanced Transparency in Cause-Related Marketing” (2010) 42 New York University Journal of International Law and Politics 1269Google Scholar.

6. The Global Fund, “Gabriel Jaramillo-General Manager”, online: The Global Fund 〈www.theglobalfund.org/en/about/secretariat/generalmanager/〉. See also Sarah BOSELEY, “Can the Global Fund's New Management Change Its Fortunes?” The Guardian-Sarah Boseley's Global Health Blog (18 April 2012), online: The Guardian 〈www.guardian.co.uk〉.

7. See further discussion in Section IIIinfra.

8. The Global Fund is a non-profit foundation registered under Swiss law that operates under the supervision of the Swiss Federal Supervisory Board for Foundations, The Global Fund, By Laws, art. 1 (as amended 2 March 2011), online: the Global Fund 〈www.theglobalfund.org〉. GAVI is also a Swiss law non-profit foundation, and is recognized in the United States as the foreign equivalent of a “501(c)(3) public charity” under US law. GAVI, “Governance and Legal Structures”, online: GAVI Alliance 〈www.gavialliance.org/about/governance/legal-structures/〉.

9. A World Fit for Children, GA Res. S-27/2, UN Doc. A/RES/S-27/2 (2002), para. 56.

10. The Partnership Database of the UN Commission on Sustainable Development lists 350 partnerships. UN Commission on Sustainable Development, “Partnerships for Sustainable Development-CSD Partnerships Database”, online: UN Commission on Sustainable Development 〈http://webapps01.un.org/dsd/partnerships/public/browse.do〉. A 2005 United Nations Development Program (UNDP) study estimates 400 partnerships across all sectors. See ., Marco SCHÄFERHOFFet al, “Transnational Public-Private Partnerships in International Relations: Making Sense of Concepts, Research Frameworks, and Results” (2009) 11 International Studies Review 451 at 453Google Scholar. See also the various lists and databases set out in Inge KAUL, “Exploring the Policy Space Between Markets and States: Global Public-Private Partnerships” in Inge KAUL and Pedro CONCEICÃO, eds., in The New Public Finance: Responding to Global Challenges (New York: Oxford University Press, 2006)Google Scholar, 91 at endnote 6.

11. There is a good indication of the range of non-state actors involved in global public-private partnerships in United Nations Office for Partnerships, Report of the Secretary-General, UN Doc. A/65/347 (2010) at 24–8.

12. For one account of Ted Turner's role in motivating UN engagement with the private sector through the UN Foundation, see BRADLEY, Christopher G., “Partner Capture in Public International Organizations” (2011) 44 Akron Law Review 261 at 263–273Google Scholar.

13. See KAAN, further Christopher and LIESE, Andrea, “Public Private Partnerships in Global Food Governance: Business Engagement and Legitimacy in the Global Fight Against Hunger and Malnutrition” (2010) 28 Agriculture and Human Values 385CrossRefGoogle Scholar.

14. Global Alliance for Improved Nutrition, “Statutes of the Global Alliance for Improved Nutrition” art. 3.1, online: Global Alliance for Improved Nutrition 〈www.gainhealth.org/sites/default/files/Amended%20Statutes%20ENGL_Approved.pdf〉.

15. Global Alliance for Improved Nutrition, “GAIN's Organizational Structure”, online: Global Alliance for Improved Nutrition 〈www.gainhealth.org/about-gain/gain%E2%80%99s-organizational-structure〉.

16. Global Alliance for Improved Nutrition, supra note 14 at art. 1.

17. This may also provide some tentative evidence against the observation of at least one commentator that “donors and other stakeholders are [now] aiming at a period of reflection, consolidation and coordination also as a reaction to the current financial crisis which has reduced the overall level of funding available for development assistance”. BURCI, Gian Luca, “Public/Private Partnerships in the Public Health Sector” (2009) 6 International Organizations Law Review 359 at 382CrossRefGoogle Scholar (noting that the WHO has not hosted any new significant partnerships since 2007).

18. The World Bank Group, “The Economist World Oceans Summit: ‘A New SOS: Save Our Seas’ ”, online: The World Bank Group 〈http://go.worldbank.org/H725Z6PE50〉. See also Global Partnership for Oceans, Homepage, online: Global Partnership for Oceans 〈www.globalpartnershipforoceans.org/〉.

19. Rio + 20 United Nations Conference on Sustainable Development (UNCSD), Homepage, online: Rio + 20 UNCSD 〈www.uncsd2012.org/rio20/index.html〉.

20. Rio + 20 UNCSD, “The Future We Want-Zero Draft of the Outcome Document”, online: Rio + 20 UNCSD 〈www.uncsd2012.org/rio20/futurewewant.html#Va〉, paras. 78–86. See also Rio + 20 UNCSD, “Issues Brief 4-Oceans”, online: Rio + 20 UNCSD 〈www.uncsd2012.org/rio20/index.php?page=view&type=400&nr=216&menu=45〉.

21. See e.g. Schäferhoff et al., supra note 10; Kenneth W. ABBOTT, “Public Private Partnership” (Februaryonline: Max Planck Encyclopedia of Public International Law 〈www.mpepil.com〉; Liliana B. ANDONOVA, “Globalization, Agency and Institutional Innovation: The Rise of Public-Private Partnerships in Global Governance”, (March 2006) Goldfarb Center Working Paper No. 2006-004; Kaul, supra note 10. For an indication of policy positions on global public-private partnerships within IOs, see Towards Global Partnerships, GA Res. 62/211, UN Doc. A/RES/62/211 (2007) and Enhanced Cooperation Between the United Nations and All Relevant Partners, in Particular the Private Sector, UN Doc. A/64/337 (2009). An overview of UN engagement of the private sector over the last decade can be found in ., Wade HOXTELLet al, Coming of Age: UN-Private Sector Collaboration Since 2000 (New York: United Nations, 2010)Google Scholar.

22. UK Department for International Development, “Multilateral Aid Review” (April 2011), online: DFID 〈www.dfid.gov.uk/Documents/publications1/mar/multilateral_aid_review.pdf〉.

23. Ibid. at 35.

24. SANDS, Philippe and KLEIN, Pierreeds., Bowett's Law of International Institutions, 6th ed. (London: Sweet & Maxwell, 2009)Google Scholar. For contemporaneous accounts, see REINSCH, Paul S., “International Administrative Law and National Sovereignty” (1909) 3 American Journal of International Law 1CrossRefGoogle Scholar and REINSCH, Paul S., “International Unions and Their Administration” (1907) 1 American Journal of International Law 579CrossRefGoogle Scholar.

25. Michael LIKOSKY, “The Privatization of Violence” in CHESTERMAN, Simon and FISHER, Angelinaeds., Private Security, Public Order: The Outsourcing of Public Services and Its Limits (Oxford; New York: Oxford University Press, 2009), 11 at 13–15CrossRefGoogle Scholar.

26. Convention for the Establishment of “Eurofima”, European Company for the Financing of Railroad Rolling Stock (20 October 1955), online: Eurofima 〈www.eurofima.org/pdfs/convention_e.pdf〉. Art. 1 of the Additional Protocol to the Convention, which is structured as a treaty between Switzerland on the one hand and the other Convention parties on the other, confers certain tax privileges on Eurofima in Switzerland, where Eurofima is headquartered. See also BROWNLIE, Ian, Principles of Public International Law, 7th ed. (Oxford; New York: Oxford University Press, 2008) at 66–67Google Scholar (noting that Eurofima is “given privileges on the international plane including exemption from taxation in Switzerland, the state of domicile”). On the appropriate legal regulatory framework for an établissement public internationaux like Eurofima, contrast Maurice MENDELSON, “The Definition of ‘International Organization’ in the International Law Commission's Current Project on the Responsibility of International Organizations” in RAGAZZI, Maurizioed., International Responsibility Today: Essays in Memory of Oscar Schachter (Leiden; Boston: Martinus Nijhoff Publishers, 2005), 371 at 379Google Scholar (noting that an établissement public internationaux is meant to have responsibilities under domestic law, not international law, and so would have been “out of place in a draft dealing with the international responsibility of organizations” (emphasis added) with Ignaz SEIDL-HOHENVELDERN, Corporations In and Under International Law (Cambridge: Grotius Publications, 1987) at 112 (noting a 1966 decision of the Swiss Federal Tribunal holding Eurofima's assets to be immune from attachment by a creditor of one of Eurofima's constituent national railway companies on the basis that Eurofima was a “common inter-state enterprise” with a public purpose, and not a private corporation).

27. See the useful trajectory of the institutional models of IOs headquartered in Switzerland sketched by Evelyne GERBER, Head of the Diplomatic and Consular Law Section of the Swiss Federal Department of Foreign Affairs, in GAVI Alliance, “Address on the Occasion of GAVI's Inauguration in Geneva” (17 September 2009), online: GAVI Alliance 〈http://fr.gavialliance.org/resources/Speech_Gerber_ENG_final.doc〉.

28. Compare Schäferhof et al., supra note 10, stating:

These transnational institutions constitute a hybrid type of governance, in which non-state actors, such as transnational corporations (TNCs) and non-governmental organizations (NGOs), co-govern along with state actors and adopt governance functions that have formerly been the sole authority of sovereign states.

with Kaul, supra note 10, stating:

These partnerships straddle the conventional divide between state and nonstate actors. They often involve partners from government, business, and civil society. These public-private partnerships go beyond mere contracting across actor lines. They typically entail some joint decision-making and sharing of responsibilities, opportunities, and risks.

29. See generally Burci, supra note 17.

30. Ibid., at 366–8.

31. World Health Organization, “Guidance Paper on Global Fund to Fight AIDS, Tuberculosis and Malaria Related Activities in WHO” (March 2005), online: World Health Organization 〈www.who.int/hdp/publications/12a.pdf〉.

32. GAVI Alliance, “GAVI Secretariat Hosting Review: Draft Terms of Reference” (20 September 2006), online: GAVI Alliance 〈http://fr.gavialliance.org/resources/ec_27sep2006_AF4_GAVIHostingReview.pdf〉.

33. For an unofficial English translation of the Swiss Civil Code, see Swiss Civil Code (as at 1 January 2011), online: The Federal Authorities of the Swiss Confederation 〈www.admin.ch/ch/e/rs/2/210.en.pdf〉. The background on the legal establishment of the Global Fund can be found at The Global Fund, “Transitional Working Group”, online: The Global Fund 〈www.theglobalfund.org/en/board/twg/〉. For the considerations behind GAVI's decision to constitute as a foundation (as opposed to an association under art. 60 et seq of the Swiss Civil Code), see GAVI Alliance, “GAVI as a Swiss Foundation or Swiss Association”, online: GAVI Alliance 〈http://gavired4.elca-services.com/site_repository/1/resources/source/Description_of_features_of_Swiss_foundations_and_associations.pdf〉. GAVI also has tax-exempt status in the United States as a foreign equivalent of a 501(3)(c) public charity under US law: GAVI Alliance, “Governance and Legal Structures”, online: GAVI Alliance 〈www.gavialliance.org/about/governance/legal-structures/〉.

34. The GAVI Secretariat has 124 employees, while the Global Fund Secretariat has 568 employees. See GAVI Alliance, “GAVI Alliance Progress Report 2010”, online: GAVI Alliance 〈www.gavialliance.org/library/publications/gavi-progress-reports/gavi-alliance-progress-report-2010/〉; The Global Fund, “The Global Fund Secretariat”, online: The Global Fund 〈www.theglobalfund.org/en/about/structures/secretariat/〉.

35. On the “global administrative law” approach to this problem, which relies on the conceptualization of “global governance” as “administration”, see generally Symposium, “Global Governance and Global Administrative Law in the International Legal Order” (2006) European Journal of International Law 1 and Symposium, “The Emergence of Global Administrative Law” (2005) Law and Contemporary Problems 1. Other major theoretical approaches include those set out in KRISCH, Nico, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford: Oxford University Press, 2010)CrossRefGoogle Scholar; ., Armin VON BOGDANDYet al, The Exercise of Public Authority by International Institutions (Heidelberg: Springer, 2010)Google Scholar; and KLABBERS, Jan, PETERS, Anne, and ULFSTEIN, Geir, The Constitutionalization of International Law (Oxford; New York: Oxford University Press, 2009)CrossRefGoogle Scholar.

36. Benedict KINGSBURY and Richard B. STEWART, “Legitimacy and Accountability in Global Regulatory Governance: The Emerging Global Administrative Law and the Design and Operation of Administrative Tribunals of International Organizations” in FLOGAITIS, Spyridoned., International Administrative Tribunals in a Changing World (London: Esperia, 2008), 1 at 4Google Scholar.

37. KINGSBURY, Benedict, KRISCH, Nico, and STEWART, Richard B., “The Emergence of Global Administrative Law” (2005) 68 Law and Contemporary Problems 15 at 17Google Scholar.

38. Ibid., at 3–4; Kingsbury and Stewart, supra note 36 at 3.

39. Kingsbury and Stewart, supra note 36 at 1Google Scholar.

40. Kingsbury and Stewart, supra note 36 at 10–11Google Scholar. See also GRANT, Ruth W. and KEOHANE, Robert O., “Accountability and Abuses of Power in World Politics” (2005) 99 American Political Science Review 29CrossRefGoogle Scholar.

41. Kingsbury and Stewart, supra note 36 at 10Google Scholar.

42. Ibid., at 5–6. See also Allen BUCHANAN and Robert O. KEOHANE, “The Legitimacy of Global Governance Institutions” in MEYER, Lukas H.ed., Legitimacy, Justice and Public International Law (Cambridge: Cambridge University Press, 2009)CrossRefGoogle Scholar, 29 (examining legitimacy of global governance institutions in the normative sense, or the “right to rule” of global governance institutions) and FRANCK, Thomas, The Power of Legitimacy Among Nations (New York: Oxford University Press, 1990)Google Scholar (on the legitimacy of international rule-making systems). For an overview of “organizational legitimacy” in the sociological literature, see SUCHMAN, Mark C., “Managing Legitimacy: Strategic and Institutional Approaches” (1995) 20 Academy of Management Review 571CrossRefGoogle Scholar.

43. See generally ALVAREZ, José, International Organizations as Law-Makers (Oxford; New York: Oxford University Press, 2006)CrossRefGoogle Scholar; Symposium, “Global Administrative Law in the Operations of International Organizations” (2009) 6 International Organizations Law Review 315ff.; KINGSBURY, Benedict and CASINI, Lorenzo, “Global Administrative Law Dimensions of International Organizations Law” (2009) 6 International Organizations Law Review 319, especially at 326–334Google Scholar.

44. ESTY, Daniel C., “Good Governance at the Supranational Scale: Globalizing Administrative Law” (2006) 115 Yale Law Journal 1540 at 1521–1522CrossRefGoogle Scholar (arguing that administrative law-like mechanisms can have a significant compensatory function as regards legitimacy deficits); Laurence Boisson de Chazournes, “Changing Roles of International Organizations: Global Administrative Law and the Interplay of Legitimacies” (2009) 6 International Organizations Law Review 655CrossRefGoogle Scholar. On the Global Fund specifically, see Abdul Aziz, supra note 2 at 407–408Google Scholar.

45. The Global Fund, “Protecting the Grant Money”, online: The Global Fund 〈www.theglobalfund.org/en/about/protecting/〉; The Global Fund, “Results With Integrity: The Global Fund's Response to Fraud”, online: The Global Fund 〈www.theglobalfund.org/Documents/core/whitepapers/Core_ResultsWithIntegrityResponseToFraud_WhitePaper_en/〉.

46. Observer Status for the Global Fund to Fight AIDS, Tuberculosis and Malaria in the General Assembly, UN Doc. A/RES/64/122 (2009).

47. Often resulting in requests from the floor by more technically minded delegations for UN General Assembly decision 49/426 (1994) to be circulated by the UN Secretariat when the criteria in the decision are departed from: see e.g. the request made by the delegate of the Islamic Republic of Iran in the Sixth Committee of the UN General Assembly with respect to the agenda item concerning the Global Fund in Agenda Item 166: Observer Status for the Global Fund to Fight AIDS, Tuberculosis and Malaria in the General Assembly, Sixth Committee, UN Doc. A/C.6/64/SR.10 (2009), para. 53.

48. Request for the Inclusion of an Item in the Provisional Agenda of the Sixty-Fourth Session, Observer Status for the Global Fund to Fight AIDS, Tuberculosis and Malaria in the General Assembly, Note Verbale dated 14 July 2009 from the Permanent Mission of the United Republic of Tanzania to the United Nations addressed to the Secretary-General, UN Doc. A/64/144 (2009), para. 23 [Tanzania Note Verbale].

49. Reineccius et al. v. Bank for International Settlements, Partial Award of 22 November 2002, online: Permanent Court of Arbitration 〈www.pca-cpa.org/upload/files/EPA.pdf〉, paras. 1, 108 (finding that “[t]he Constituent Instruments confirm that the Bank was established under international law in conformity with a treaty between the Governments of Germany, Belgium, France, the United Kingdom, Italy, Japan and Switzerland, which was concluded on 20 January 1930”). See also WILLIAMS, Sir John Fischer, “The Legal Character of the Bank for International Settlements” (1930) 24 American Journal of International Law 665CrossRefGoogle Scholar. For the view that the Reineccius arbitration tribunal emphasized the functional role of the Bank in international affairs rather than its treaty origin to conclude that the Bank was an IO governed by the rules of international law, see David J. BEDERMAN, “The Unique Status of the Bank for International Settlements Comes into Focus” (2003) 16 Leiden Journal of International Law 787 (2003) and PORTMANN, Roland, Legal Personality in International Law (New York: Cambridge University Press, 2010) at 228–232CrossRefGoogle Scholar (characterizing the arbitration tribunal's approach as an “actor conception” approach to the question of legal personality in international law).

50. Brownlie, supra note 26 at 58Google Scholar.

51. Mendelson, supra note 26 at 372Google Scholar.

52. Sands and Klein, eds., supra note 24 at 15–16Google Scholar.

53. UN International Law Commission, “Responsibility of International Organizations”, online: UN International Law Commission 〈http://untreaty.un.org/ilc/summaries/9_11.htm〉.

54. Text of the Draft Articles on the Responsibility of International Organizations, Report of the International Law Commission, UN Doc. A/66/10, at 69, para. 88 [Draft Articles on the Responsibility of International Organizations and Commentaries Thereto].

55. Responsibility of International Organizations, GA Res. 66/100, UN Doc. A/RES/66/100 (2011).

56. Ibid.

57. Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83, UN Doc. A/RES/56/83 (2001).

58. Topical Summary of the Discussion held in the Sixth Committee of the General Assembly During its Sixty-Sixth Session, Prepared by the Secretariat, UN Doc. A/CN.4/650/Add.1.

59. See e.g. the statement of the Singapore delegate in UN Doc. A/C.6/64/SR.15, paras. 76–8. The Commission sought to address this particular set of critiques with a “General Commentary” prefacing the draft articles. Draft Articles on the Responsibility of International Organizations and Commentaries Thereto, supra note 54 at para. 88.

60. See e.g. José ALVAREZ, “Memorandum to the US State Department Advisory Committee on International Law” (21 June 2010), online: New York University School of Law 〈www.law.nyu.edu/ecm_dlv3/groups/public/@nyu_law_website__faculty__faculty_profiles__jalvarez/documents/documents/ecm_pro_066900.pdf〉, and earlier in José ALVAREZ, “Luncheon Address to the Canadian Council of International Law's 35th Annual Conference on Responsibility of Individuals, States and Organizations” (27 October 2006), online: American Society of International Law 〈www.asil.org/aboutasil/documents/CCILspeech061102.pdf〉.

61. See e.g. the statement of the representatives of the World Bank (speaking also on behalf of several international financial institutions and UN specialized agencies) and UNESCO (speaking also on behalf of several UN specialized agencies) in UN Doc. A/C.6/66/SR.20, paras. 88–93.

62. UN International Law Commission, supra note 53.

63. Supra note 34 at art. 2(a).

64. Tanzania Note Verbale, supra note 48, paras. 21–2 (citing the UN International Law Commission's work on the draft text that would become the 1986 Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations).

65. International Union for the Conservation of Nature and Natural Resources, “Statutes, including Rules of Procedure of the World Conservation Congress, and Regulations”, online: IUCN 〈http://cmsdata.iucn.org/downloads/statutes_en.pdf〉.

66. Draft Articles on the Responsibility of International Organizations and Commentaries Thereto, supra note 54 at 75.

67. International Union for the Conservation of Nature and Natural Resources, “About the IUCN Red List”, online: IUCN 〈www.iucn.org〉. According to the IUCN, the Red List “[p]rovides information to help establish conservation priorities at the local level and guide conservation action” and “[h]elps influence national and international policy”, among other functions.

68. Convention on Wetlands of International Importance Especially as Waterfowl Habitat, 2 February 1971, 996 U.N.T.S. 245 (entered into force 21 December 1975) [Ramsar Convention], art. 8, para. 1.

69. Supra note 34 at Commentary to art. 2, para. 13.

70. 21 November 1947, 33 U.N.T.S. 261 (entered into force 2 December 1948) [1947 CPISA]. The “standard clauses” of the 1947 CPISA are its arts. II to IX. Through the 1947 CPISA, UN Member States sought to achieve “unification” of the various privileges and immunities applicable to the UN and its specialized agencies. As such, the General Assembly resolution adopting the 1947 CPISA recommended the following:

[That] the constitutional instrument of any specialized agency which may hereafter be established should not contain detailed provisions relating to the privileges and immunities to be accorded to, or in connexion with, that specialized agency, but should provide that such privileges and immunities shall be governed by the [1947 CPISA] modified as may be required.

See Coordination of the Privileges and Immunities of the Specialized Agencies, GA Res. 179 (II) (1947).

71. See e.g. the standard accounts of the genesis of privileges and immunities for international organizations given in ROBERTS, Sir Ivor, Satow's Diplomatic Practice, 6th ed. (New York: Oxford University Press, 2009) at 292–293CrossRefGoogle Scholar; KLABBERS, Jan, An Introduction to International Institutional Law, 2nd ed. (Cambridge; New York: Cambridge University Press, 2009) at 131–152CrossRefGoogle Scholar; Sands and Klein, eds., supra note 24 at 490–516Google Scholar; C.F. AMERASINGHE, Principles of the Institutional Law of International Organizations, 2nd ed. (Cambridge: Cambridge University Press, 2005) at 315–51;SCHERMERS, Henry G. and BLOKKER, Niels M., International Institutional Law: Unity Within Diversity, 4th ed. (Boston: Martinus Nijhoff Publishers, 2003)Google Scholar at §§323–334; Peter H.F. BEKKER,The Legal Position of Intergovernmental Organizations: A Functional Necessity Analysis of their Legal Status and Immunities (Dordrecht; Boston: Martinus Nijhoff, 1994). For an earlier account that is contemporaneous with the rapid post-World War II development of privileges and immunities regimes for international organizations that came with the establishment of the United Nations system, see KUNZ, Josef, “Privileges and Immunities of International Organizations” (1947) 41 American Journal of International Law 828CrossRefGoogle Scholar.

72. FRANCK, Thomas M., The Power of Legitimacy Among Nations (New York: Oxford University Press, 1990) at 102–103Google Scholar.

73. See generally KLABBERS, Jan, “Institutional Ambivalence by Design: Soft Organizations in International Law” (2001) 70 Nordic Journal of International Law 403CrossRefGoogle Scholar–421 (analyzing some examples of “international cooperation [that] has been increasingly kept at the fringes of international law, or even outside it altogether”, such as the Organization for Security and Cooperation in Europe, the Arctic Council, and the Asia-Pacific Economic Cooperation).

74. Roberts, supra note 71 at 292Google Scholar (stating that “[o]ne factor which will be relevant for determining the appropriate form for international cooperation on a particular matter is whether the body to be established and its officers and servants are thought to require privileges and immunities”).

75. The 1995 transformation of the Conference on Security and Cooperation in Europe (CSCE) into the Organization for Security and Cooperation in Europe (OSCE) is an interesting comparison. In that case, the participating states of the CSCE agreed to confer privileges and immunities on the new OSCE and its personnel, but by way of a political declaration rather than a treaty. See SAPIRO, Miriam, “Changing the CSCE into the OSCE: Legal Aspects of a Political Transformation” (1995) 89 American Journal of International Law 631 at 634–635CrossRefGoogle Scholar.

76. Declaration of ASEAN (Bangkok Declaration), 8 August 1967, online: ASEAN 〈www.asean.org/1212.htm〉.

77. Declaration of ASEAN Concord, 24 February 1976, online: ASEAN 〈www.asean.org/1216.htm〉.

78. Charter of the Association of Southeast Asian Nations, 20 November 2009, online: ASEAN 〈www.aseansec.org/AC.htm〉 (entered into force 15 December 2008) [ASEAN Charter]. For varying views on the legal significance (or lack thereof) of the ASEAN Charter, see Symposium, “ASEAN Feature” (2008) 12 Singapore Year Book of International Law 151ff. and LEVITER, Lee, “The ASEAN Charter: ASEAN Failure or Member Failure?” (2010) 43 New York University Journal of International Law and Politics 159Google Scholar.

79. ASEAN Charter, supra note 78, art. 3.

80. On the theory of “functional necessity”, see generally the sources cited supra note 71, as well as August REINISCH, “Privileges and Immunities” in KLABBERS, Jan and WALLENDAHL, Åsaeds., Research Handbook on the Law of International Organizations (Cheltenham: Edward Elgar Publishing, 2011)CrossRefGoogle Scholar, 132; REINISCH, August, International Organizations Before National Courts (Cambridge: Cambridge University Press, 1999)Google Scholar.

81. In relation to the immunity of the organization, art. 17, para. 1 of the ASEAN Charter provides that “ASEAN shall enjoy in the territories of the Member States such immunities and privileges as are necessary for the fulfilment of its purposes”. This echoes art. 105 of the UN Charter, which reads: “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.”

82. See further discussion in Section III.B(1), infra.

83. See generally FOX, Hazel, The Law of State Immunity, 3rd ed. (Oxford; New York: Oxford University Press, 2008)Google Scholar.

84. Reinisch, supra note 80Google Scholar.

85. 13 February 1946, 1 U.N.T.S. 15 (entered into force 17 September 1946) [1946 CPIUN].

86. On this “typical list”, see also Reinisch (2011), supra note 80 at 133.

87. Roberts, supra note 71 at 292–293Google Scholar; Sands and Klein, eds., supra note 24 at 490–491Google Scholar; JENKS, C. Wilfred, International Immunities (New York: Oceana Publications, 1961) at 1–3Google Scholar; and more generally Kunz, supra note 71. However, early writings on international organizations during the interwar period already drew links between the legal personality of international organizations under international law and whether the host state of the organization had granted that organization immunity from the jurisdiction of its local law. See BEDERMAN, David J., “The Souls of International Organizations: Legal Personality and the Lighthouse at Cape Spartel” (1995) 36 Virginia Journal of International Law 275 at 350Google Scholar.

88. Brownlie, supra note 26 at 680Google Scholar. This is not to say that custom is silent on IO-type privileges and immunities. See e.g. Dapo AKANDE, “International Organizations” in EVANS, Malcolm D., International Law, 3rd ed. (Oxford: Oxford University Press, 2010)CrossRefGoogle Scholar, 252 at 272 and the references cited at ftn 63 therein.

89. Art. 105 of the UN Charter reads:

1. 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.

2. Representatives of the members of the United Nations and officials of the organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the organization.

See Charter of the United Nations, 24 October 1945, 1 U.N.T.S. 16 (entered into force 24 October 1945) [UN Charter].

90. Ibid. art. 1.

91. 1946 CPIUN, supra note 85.

92. See e.g. the Agreement Between the United Nations and the United States Regarding the Headquarters of the United Nations, 26 June 1947, 11 U.N.T.S. 12.

93. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980) [1969 Vienna Convention]; Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, 21 March 1986, online: http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_2_1986.pdf (not yet in force) [1986 Vienna Convention].

94. On the contextual nature of capacity in international law, see Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] I.C.J. 174 (“The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community.”). See also PORTMANN, Roland, Legal Personality in International Law (Cambridge: Cambridge University Press, 2010)CrossRefGoogle Scholar (positing five conceptions of personality in international law: the states-only conception, the recognition conception, the individualistic conception, the formal conception, and the actor conception). This is not to imply the lack of exceptions to the rule. Commonly cited exceptions include the International Committee of the Red Cross (ICRC), an association constituted under Swiss law, and Eurofima. In the cases of both the ICRC and Eurofima, however, the international law element remains clear: states have entrusted specific tasks to the ICRC under the Geneva Conventions; and Eurofima is a creature of treaty, despite its private corporate status under Swiss law. In the academic literature, the typical treatment is to say that these cases are sui generis.

95. Alain PELLET, “The Definition of Responsibility in International Law” in CRAWFORD, James, PELLET, Alain, OLLESON, and Simoneds., The Law of International Responsibility (Oxford: Oxford University Press, 2010)CrossRefGoogle Scholar, 3 at 6. Here, I refer to responsibility on the international plane. See also SINGER, Michael, “Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns” (1995) 36 Virginia Journal of International Law 53 at 163Google Scholar (“International law can accept and welcome the creation of new autonomous international actors, provided that such actors accept responsibility for conforming their conduct to the norms of international law”). For an internal perspective, see CHAZOURNES, Laurence BOISSON DE, “Changing Roles of International Organizations: Global Administrative Law and the Interplay of Legitimacies” (2009) 6 International Organizations Law Review 655 at 663Google Scholar (suggesting that “[a]s soon as [sui generis] institutions are granted privileges and immunities, it would seem normal that they also bear obligations similar to those of international organizations in terms of accountability”).

96. Sands and Klein, eds., supra note 24 at 516Google Scholar.

97. This is the standard treaty language formulation for expressing the jurisdictional immunity of the IO. See generally WELLENS, Karel, Remedies Against International Organizations (Cambridge: Cambridge University Press, 2002)CrossRefGoogle Scholar; Reinisch, supra note 80Google Scholar; Singer, supra note 95Google Scholar.

98. Supra note 85, art. II, sec. 2.

99. UN Charter, supra note 89.

100. See the sources cited supra note 71.

101. Reinisch (2011), supra note 80 at 138–40.

102. Ibid. This argument is also made in Alvarez, supra note 43.

103. (1999) 30 Eur. H.R. Rep. 261 [Waite and Kennedy].

104. For a useful overview of the current state of play, see Reinisch (2011), supra note 80 at 140−6. The case-law in national courts is also discussed extensively in Reinisch, supra note 77 and Wellens, supra note 97.

105. Convention on the Establishment of a European Space Agency, 30 May 1975, 14 I.L.M. 864 (entered into force 30 October 1980) [ESA Convention], annex I, art. IV.

106. Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 222 (entered into force 3 September 1953) [European Convention on Human Rights]. Art. 6, para. 1 of the European Convention on Human Rights provides that:

[I]n the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

107. ILDC 53 (BE 2003) [Siedler].

108. Jan WOUTERS, Cedric RYNGAERT, and Pierre SCHMITT, “Western European Union v. Siedler; General Secretariat of the ACP Group v. Lutchmaya; General Secretariat of the ACP Group v. B.D.” (2011) 105 American Journal of International Law 560. Art. 14, para. 1 of the International Covenant on Civil and Political Rights provides, in material part:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

See International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171 (entered into force 23 March 1976).

109. See generally KLABBERS, Jan and WALLENDAHL, Åsa, Research Handbook on the Law of International Organizations (Cheltenham: Edward Elgar Publishing, 2011)CrossRefGoogle Scholar and the sources cited supra note 43.

110. See source cited supra note 32; The Global Fund, “Report on Legal Status Options for the Global Fund” (2003), online: The Global Fund 〈www.theglobalfund.org/documents/board/04/BM04_12LegalStatusOptions_Report_en/〉 [Global Fund Report on Legal Status Options].

111. Permanent Mission of Switzerland to the United Nations and Other International Organizations in Geneva, “The 36 Organizations in Switzerland”, online: Swiss Confederation 〈www.eda.admin.ch/etc/medialib/downloads/edazen/topics/intorg/un/gemiss.Par.0219.File.tmp/OI%20tab%20recapitulatif%20070510%20EN.pdf〉.

112. Author's translation of the titles of the agreements cited infra notes 113, 114, and 115.

113. Constitutive Instrument of Foundation of the Agence Mondiale Antidopage / World Anti-Doping Agency, September 2009, online: World Anti-Doping Agency 〈www.wada-ama.org/Documents/About_WADA/Statutes/WADA_Statutes_2009_EN.pdf〉, art. 1; Accord du 5 Mars 2001 Entre le Conseil Fédéral Suisse et l'Agence Mondiale Antidopage Pour Régler le Statut Fiscal de l'Agence et de Son Personnel en Suisse, 5 March 2001, online: The Federal Authorities of the Swiss Confederation 〈www.admin.ch/ch/f/rs/c0_192_120_240.html〉.

114. Act of Incorporation, 18 December 1945, online: International Air Transport Association 〈www.iata.org/about/Documents/chapter-1-english-%20aoI.pdf〉; Accord du 20 Décembre 1976 Entre le Conseil Fédéral Suisse et l'Association du Transport Aérien International (IATA) pour Régler le Statut Fiscal des Services et du Personnel de Cette Organisation en Suisse, December 20 1976, online: The Federal Authorities of the Swiss Confederation 〈www.admin.ch/ch/f/rs/i1/0.192.122.748.fr.pdf〉 [1976 IATA agreement].

115. Statutes, last amended 25 May 2011, online: International Union for the Conservation of Nature and Natural Resources 〈http://cmsdata.iucn.org/downloads/statutes_en.pdf〉, art. 1; Accord du 17 Décembre 1986 Entre le Conseil Fédéral Suisse et l'Union Internationale pour la Conservation de la Nature et de Ses Ressources (UICN) pour Régler le Statut Fiscal de l'Union et de son Personnel en Suisse, 17 December 1986, online: The Federal Authorities of the Swiss Confederation 〈www.admin.ch/ch/f/rs/i1/0.192.122.451.fr.pdf〉.

116. It is interesting to note that this aspect of Swiss host state policy was not left unquestioned even within Switzerland. The decision by the Canton of Geneva to give effect to the tax privileges set out in the 1976 IATA agreement was challenged before the Swiss Federal Tribunal (Public Law Chamber) in Jenni & Ors. v. Conseil D’État of the Canton of Geneva 75 I.L.R. 99. The Chamber upheld the Canton's decision, finding that the Swiss Federal Council “did not make an arbitrary ruling when it considered that IATA was a public international organization, taking into account the functions performed by that Association and the role which it plays in an important sphere of inter-State relations” (emphasis added). But see the Note at the end of the case report, citing a contradictory earlier judgment of the Federal Tribunal (Administrative Law Chamber), which held that “IATA is not an intergovernmental organization but an international association of air navigation companies” (emphasis added). Ibid., at 105.

117. Global Fund Report on Legal Status Options, supra note 110 at 8–9.

118. Ibid., at 6–7.

119. GAVI Alliance, “GAVI Secretariat Hosting and Operating Platform Review: Recommendations from the Joint Hosting Committee”, (2007), online: GAVI 〈http://fr.gavialliance.org/resources/Hosting_reports_and_recommendations.pdf〉.

120. The Global Fund Office of the Inspector-General, “The Office of the Inspector General Progress Report for March−October 2010 and 2011 Audit Plan and Budget”, online: The Global Fund 〈www.theglobalfund.org/documents/board/22/BM22_09OIG_Report_en/〉, para. 4.46(i).

121. 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, 12 December 2004, online: The Global Fund 〈www.theglobalfund.org/documents/HQ_agreement_en.pdf〉 (unofficial English translation) [Global Fund Headquarters Agreement].

122. Gerber, supra note 27Google Scholar.

123. Accord Entre le Conseil Fédéral Suisse et GAVI Alliance (Global Alliance for Vaccines and Immunization) en vue de Déterminer le Statut Juridique, 23 June 2009, online: Swiss Confederation 〈www.admin.ch/ch/f/rs/i1/0.192.122.818.12.fr.pdf〉 (in French only) [GAVI Headquarters Agreement]. For further background, see Gerber, supra note 27.

124. Agreement on Privileges and Immunities of the Global Fund to Fight AIDS, Tuberculosis and Malaria, 2009, online: The Global Fund 〈www.theglobalfund.org/documents/board/20/BM20_04PolicyAndStrategyCommittee_Attachments1To4_en/〉.

125. Ibid.

126. Gülen Atay NEWTON, “The Global Fund to Fight AIDS, Tuberculosis and Malaria: An Innovation in the Form of International Organization” (31 December 2011) Istituto di Ricerche sulla Pubblica Amministrazione, IRPA GAL Working Paper 2012/1.

127. The Global Fund, “Moldova Signs Agreement to Grant Privileges and Immunities to the Global Fund” (28 September 2010), online: The Global Fund 〈www.theglobalfund.org〉.

128. Ministry of Health of Moldova, “The Reservation of the Republic of Moldova to the Agreement on Privileges and Immunities of the Global Fund to Fight AIDS, Tuberculosis and Malaria”, online: Ministry of Health of Moldova 〈www.ms.gov.md〉.

129. GAVI Alliance, “GAVI as a Swiss Foundation or Swiss Association”, online: GAVI 〈http://gavired4.elca-services.com〉.

130. This item remains on the agenda of the Kyoto Protocol Subsidiary Body for Implementation with no final decision as at the time of writing. UN Framework Convention on Climate Change, “Provisional Agenda of the Subsidiary Body for Implementation at its Thirty-Sixth session”, Agenda Item No. 19(e), online: UNFCCC 〈http://unfccc.int〉.

131. It is worth noting that the Clean Development Mechanism has attracted scholarly attention in much the same way as the Global Fund, in that both organizations raise similar normative concerns because they take decisions that directly affect individuals. On the Clean Development Mechanism, see e.g. STRECK, Charlotte and LIN, Jolene, “Making Markets Work: A Review of CDM Performance and the Need for Reform” (2008) 19 European Journal of International Law 409CrossRefGoogle Scholar (setting out proposals for reform of the Clean Development Mechanism as an institution that takes decisions with direct impact on individuals, including professionalizing the EB and the panels, securing better and more consistent funding, eliminating political interference, and introducing administrative law-like processes) and GREEN, Jessica F., “Delegation and Accountability in the Clean Development Mechanism: The New Authority of Non-State Actors” (2008) 4 Journal of International Law and International Relations 21Google Scholar (highlighting some fundamental structural issues in the institutional design of the Clean Development Mechanism that may contribute to agents acting in rent-seeking ways, to the detriment of the principals).

132. Each of these entities serves different functions under the Kyoto Protocol structure.

133. Consultations by the Secretariat with the Secretary-General of the United Nations on Privileges and Immunities for Individuals Serving on Constituted Bodies Established under the Kyoto Protocol, Note by the Secretariat, UN Doc. FCCC/SBI/2006/20 (2006), at 5, para. 4.

134. Privileges and Immunities for Individuals Serving on Constituted Bodies under the Kyoto Protocol: Report on the Feasibility Study on Possible Insurance for Individuals Serving on Constituted Bodies, Technical paper, UN Doc. FCCC/TP/2008/1 (2008), paras. 126–7.

135. Ibid., paras. 130–46.

136. Global Fund Headquarters Agreement, supra note 121; GAVI Headquarters Agreement, supra note 123.

137. Global Fund Headquarters Agreement, supra note 136, art. 1; GAVI Headquarters Agreement, supra note 136, art. 1.

138. See supra note 126 and accompanying text.

139. This is a typically classical view of international law, based on the paradigm of the 1927 decision of the Permanent Court of International Justice in The Case of the S.S. “Lotus” [1927] P.C.I.J. (ser. A) No. 9 (September 7).

140. This proposition does not necessarily imply the existence of a third-party dispute settlement mechanism, but instead implies that the claim should be opposable against the state in breach as a matter of international law. See Mendelson, supra note 26 at 383 (arguing that “although immunities and privileges operate primarily on the domestic plane, if they are violated one would expect it to be the organization which has an international claim in that regard”).

141. Ibid.

142. Mendelson makes this suggestion, but “tentatively”. Supra note 26 at 383. See also Sands and Klein, eds., supra note 24 at 492Google Scholar.

143. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, Declaration of Judge Simma, online: International Court of Justice 〈www.icj-cij.org/docket/files/141/15993.pdf〉.

144. 1986 Vienna Convention, supra note 93 at art. 2, para. 1(i).

145. UN International Law Commission, “Draft Articles on the Law of Treaties Between States and International Organizations or Between International Organizations with Commentaries” (1982), art. 1, commentary (23), online: UN International Law Commission 〈http://untreaty.un.org/ilc/texts/instruments/english/commentaries/1_2_1982.pdf〉.

146. BRÖLMANN, Catherine, “A Flat Earth? International Organizations in the System of International Law” (2001) 70 Nordic Journal of International Law 319 at 327–328CrossRefGoogle Scholar.

147. Anna-Karin LINDBLOM, “The Responsibility of Other Entities: Non-Governmental Organizations” in CRAWFORD, James, PELLET, Alain, OLLESON, and Simoneds., The Law of International Responsibility (Oxford: Oxford University Press, 2010)CrossRefGoogle Scholar, 343 at 350.

148. International Law Association, “Draft Report of the Committee on Non-State Actors” (2010), tenth un-numbered page, online: ILA 〈www.ila-hq.org〉. At the time of writing, the Report remained available only in draft.

149. The main theoretical difficulties include the use of the state responsibility analogy with respect to international organizations that do not constitute a homogenous legal category and secondary and concurrent liability of states and international organizations of which they are members, as well as the direction and control of an international organization by a Member State, and vice versa. These difficulties are documented on the website of the UN International Law Commission, on the Responsibility of International Organizations page, in the reports of the Special Rapporteur, the comments and observations of governments, and the topical summaries of debates in the Sixth Committee (Legal) of the UN General Assembly. See supra note 53.

150. See supra note 101 and accompanying text.

151. Multilateral agreement, supra note 124, preamble.

152. These states are listed at 〈www.theglobalfund.org/en/board/members/〉.

153. The literature suggests that only the UN Organization attracts jurisdictional immunity in national courts under customary international law. See Sands and Klein, eds., supra note 24 at 493.

154. The Global Fund multilateral agreement does not specify these “organs”, but the Geneva governance structures of the Global Fund are: the Partnership Forum (consists of Global Fund stakeholders: donor representatives, multilateral development co-operation agencies, civil society, NGO and community-based organizations, technical research agencies, and the private sector; includes up to 500 delegates at the biennial Partnership Forum in-person meeting) and the Board (the 24-member supreme governing body consisting of representatives from the private sector, private foundations, and NGOs, as well as donor and implementer states). Both the Board and the Partnership Forum sometimes meet in locations other than Geneva. The Global Fund, “Board Meetings”, online: The Global Fund 〈www.theglobalfund.org/en/board/meetings/?lang=en〉; The Global Fund, “Partnership Forum”, online: The Global Fund 〈www.theglobalfund.org〉.

155. Multilateral agreement, supra note 124 at art. 3, para. 4.

156. See also Sands and Klein, eds., supra note 24 at 511–512Google Scholar.

157. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, [1999] I.C.J. Rep. 62 at para. 60.

158. Roberts, supra note 71 at 135–136Google Scholar, citing the case of Waddington, 14 R.G.D.I.P. 159.

159. The Governing Body, one of the organs of the International Labour Organization (ILO) established under art. 2 of the ILO Constitution, is the executive body of the International Labour Office (roughly analogous to the Global Fund Board). It consists of 56 members (28 Government representatives, 14 employer representatives, and 14 worker representatives). See International Labour Organization, “Constitution of the ILO”, online: International Labour Organization 〈www.ilo.org/ilolex/english/constq.htm〉 arts. 2 and 7.

160. Sands and Klein, eds., supra note 24 at 506Google Scholar.

161. See sources cited supra note 49 and accompanying text.

162. Cross-Cutting Issues in the Design of the Green Climate Fund, Background Information Note prepared by the Technical Support Unit for the Transitional Committee under the Guidance of the Co-Chairs, UN Doc. TC-3/INF.1 (2011).

163. This view is close to that proposed by Portmann, supra note 49 at 276 (proposing that “[i]nternational law is an open system” and that “no entities are a priori excluded from it”). On non-state actors more generally, see D'ASPREMONT, Jeaned., Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law (New York; Abingdon: Routledge, 2011)Google Scholar. For a theoretical approach to international law that seeks to encompass the jurisgenerative activities of new actors rather than the question of who or what should be regulated by international law, see Benedict KINGSBURY, “International Law as Inter-Public Law” in RICHARDSON, Henry R. and WILLIAMS, Melissa S.eds., NOMOS XLIX: Moral Universalism and Pluralism (New York: New York University Press, 2009)Google Scholar, 167.

164. Privileges and Immunities of the United Nations, GA Res 22 (I) UN Doc A/RES/22(I) (13 February 1946). See also Roberts, supra note 71 at 304–305Google Scholar.

165. Survey of International Law in Relation to the Work of Codification of the International Law Commission: Preparatory Work within the Purview of Article 18, Paragraph 1, of the International Law Commission, Memorandum submitted by the Secretary-General, UN Doc. A/CN.4/1/Rev.1 (1949) at 21.