I am an Assistant Professor in Law at the University of Nottingham. My research examines the legal status and powers of non-state actors, ranging from international organizations, the EU, and philanthropic actors, in order to consider questions of accountability and responsibility.  My focus most recently has been on the role of these actors in the field of global health.

The field of global health has led the way in terms of incorporating ‘non-traditional’ actors, with some examples being philanthropic actors, public private partnerships (PPPs), or entirely distinct actors that struggle with classification. Much can be learned from examining the interaction of international legal actors in this field for the question of the UK government moving towards a role of ‘investor’ rather than donor in the area of development. With the field of aid and development seeing engagement with such vulnerable communities, often at the point of crisis, there is a fundamental need for continued engagement. The shift towards a role of investor is an understandable one in terms of financial position and ensuring more sustainable financing in this area. It brings risks, however, in terms of the influence of these actors and, connected with this, questions of accountability of actions. This can be direct accountability of those actors but also accountability of governments for actions connected with these more diverse actors.

Accountability is a flexible notion in international law with a general understanding of ‘answerability’ for actions. There is an understanding that accountability is an important aspect of any legal system to ensure a check on power and authority. For a full and comprehensive approach to accountability, all aspects of action need to have the potential for review. This needs to include the decision-making process, the carrying out of actions, and reviews after the event. Accountability in a global sense has become increasingly complex because of the range of actors now involved. With a move towards engagement with investors and philanthropic actors, this poses a risk because of the increased complexity at every stage.

Examples of engagement with philanthropy from elsewhere.

-          World Health Organization (WHO)

The WHO suffered from inadequacies of funding since its inception in 1948. The problematic nature of its funding structure, combined with high expectations of its role has precipitated a huge funding gap in global health. Engagement with a range of actors, predominantly though voluntary contributions but also partnerships with WHO has seen increased dominance to tackle this.

One recent development following a real growth in the funding crisis came with the creation of the World Health-Organisation Foundation (WHO-F) in 2020. This is a charitable foundation set up to generate funds from philanthropic entities and high net worth individuals. The money is then provided to different priorities within global health, one key beneficiary being the general fund of WHO. While this addresses some concerns of accountability in keeping donors and beneficiaries at one step removed from one another, there remain difficulties and complexities within this model. There is a lack of formal consideration as to accountability. In addition to this, keeping the donors removed from the WHO, also keeps them removed from the preexisting mechanisms of accountability, due diligence, and regulation of non-state partnerships.

WHO experience can show two significant risks for engagement with philanthropic sources, in spite of the financial benefits. The first risk is in terms of unwarranted power and influence being held by individuals or bodies within these philanthropic sources. This is the obvious risk. The second risk, however, which requires equal consideration is that of perception. While there may not be any real power and influence exerted by such philanthropic sources. There could be a perception of this, however. In a field where political sensitivities can run high, ensuring that actors are not only engaging without this risk but also without the perception of this, is equally as important.

The second development has been the WHO’s creation of an ‘investment round’ in order to fund its core activities. Investment funds have a range of practice in addition to this within the WHO, for example, the Global Islamic Fund for Refugees, an innovative investment fund to provide finance for UNHCR programmes. This endowment fund has raised over $260 million since its inception. Investment funds have seen some success but are also susceptible to the above risks of power and influence.

-          Global Fund.

The Global Fund is a distinct body. It is a partnership among different international actors focused upon programmes to tackle TB, malaria, and HIV. It is founded upon an investment model and undergoes a replenishment every three years. Outside replenishment, it engages in private partnerships and innovative financing. Its work is dependent upon the extent to which it gains funding, however, a formal structure can provide a consistent concept of accountability.

-          State example: United States

The United States has more of a history of philanthropy funding so lessons can be learned. Examples from the US context demonstrate the need for caution and an exercise of due diligence for both the perception of, as well as the reality of influence over policy.

Two concerning examples can be seen with (i) Coca Cola and sugar taxes and (ii) alcohol producers and the NIH National Institute of Alcohol Abuse and Alcoholism. Turning to the first of these examples, Coca-Cola has a large philanthropic foundation, through which it has provided funding to the CDC Foundation and the International Life Science Institute. This funding largely went to research and charity projects encouraging physical activity. In doing so, however, relationships developed between Coca-Cola and CDC and these relationships were later used for lobbying the WHO on sugar taxes. It provides an interesting example of where the funding itself did not demonstrate an exertion of authority but rather provided the opportunity for relationships that could later be utilised.

The second example provides a different concern. A study addressing the effects of alcohol on health was co-funded by alcohol producers and the NIH National Institute of Alcohol Abuse and Alcoholism was later found to be skewed in its design in ways that favoured the alcohol industry.

These two examples demonstrate that there are a variety of ways in which conflicts of interest can arise. While the frequent critique in private investment is that funds can be utilised to obtain a direct benefit, this is not the issue seen in the examples. Rather, they are demonstrative of the need to ensure a broad and considered concept of accountability.

Lessons Learned

The concerns common to these examples can be categorised:

-          Explicit and direct influence;

-          Direct or indirect shaping of policy, research, and data gathering;

-          Development of relationships that are later utilised;

-          Questions and concerns over the source of funds.

Recommendations

Overall what was lacking in the US context and what is perhaps underdeveloped and subject to criticism in the WHO context is some sort of framework for reviewing and checking the engagement with government investment.

1. Further investigation needed into the nature and type of partnerships with philanthropic actors, active partnerships where funding is generated with private actors but policy is decided and implemented by UK government, or more of an independent body through which both UK government and other actors engage as two core examples. This will require some consideration of government aims and also more detail from some examples.
2. Development of a framework of engagement with private actors/funding sources with due diligence at its core. This framework would not only regulate the nature of investment but, in having a central element of due diligence running throughout, it would also function as an accountability framework. The nature of this framework will differ depending upon whether the UK favours a structured system of partnership where private actors generate funds or a more ad hoc approach to ongoing partnerships. As a concept within a legal framework, however, due diligence is positive in its flexible approach and could be the basic foundation to different varieties of structure. It would have the ability to address:
1. the multiple different stages involved in action here: (i) the development of relationships and generation of funds; (ii) the development of policy, decision making; (iii) the implementation of decisions and ‘investment’ of funds; (iv) post action reporting and relationships maintenance
2. the multiple stages of accountability necessary to ensure a complete framework of accountability. Many focus on the end stage of ‘answering’ for actions but a more comprehensive approach to accountability works at every stage of decision making: from transparency in decision making and relationships, through to reviewing action as it happens, and finally to answering for how actions were carried out.

My research addresses the nature of non-state actors and the fundamental questions of accountability and legal responsibility. I am one of the few legal scholars in the country exploring the specific question of the legal nature of philanthropic actors and specifically within the context of accountability and responsibility. As such, should you require any elaboration on points made within this, please do feel free to contact me: scarlett.mcardle1@nottingham.ac.uk