Power and Distribution in Global Health Governance

Since at least the 1980s, private actors and market-based mechanisms have played an increasingly important role in the provision of public goods and services and the pursuit of public policy objectives in general. A market approach is also widely used in the field of public health. In countries around the world, various aspects of public health, such as health insurance, services and medical goods, are to be provided by the market and are subject to market forces, with varying degrees of regulation and oversight. Overall, it is often assumed that leaving things to the ´market´ will increase efficiency and effectiveness in serving the public interest, while reducing the burden on the public sector.

Private organizations and action: a structural aspect of Global Health

The private sector also plays an important role in addressing issues of global health. The World Health Organisation (WHO) has institutionalized cooperation with charities, businesses (for example, from the medical industry), non-governmental organisations, and other private actors, building Public Private Partnerships (PPPs) that deal with various aspects of global health. PPPs can take many different forms but are generally characterised by an institutionalized collaboration of public and private actors in pursuing public goals. Prominent examples in the field of global health are the Global Fund to Fight AIDS, Tuberculosis and Malaria, and GAVI, The Vaccine Alliance, which both form so-called Global Health Partnerships involving governments, civil society, international organizations and the private sector, as well as communities affected by the respective public health issues. But there are many more PPPs in global health: A list published by WHO in 2019 counts more than one hundred “Partnerships” and “Collaborative Arrangements” with private partners in which the WHO is involved as a member, leader, or observer.

In addition to this, private money is an important source of financing activity in the field of Global Health. The WHO´s budget is a good example of that: While assessed contributions by Member States account for a mere sixteen percent of WHO’s total budget, nearly ten percent of the WHO’s funds come from philanthropic foundations, predominantly the Bill & Melinda Gates Foundation. The WHO itself has observed: “As […] assessed contributions have declined in real terms, they have been replaced over time by an increasing share of funding to WHO coming as voluntary contributions where donors direct funding according to their priorities.” As a result, WHO´s funding structure makes the organisation increasingly dependent on private donations. In addition to that, a large proportion of public contributions are made in a contractualist mode centered on voluntarism, where states are free to contribute (or not) and pursue their own agendas and priorities. This has become characteristic of the global health field.

PPPs and private donors contribute means and agency to the field of global health. But the pervasiveness of private and contractualist forms of funding, organisation and action in global health raises a structural question: What are the implications for the economic and health inequalities and power imbalances existing between the industrialized, high-income countries (“donor countries”) and the lower-income countries that receive funds, supplies or services through private organisations and, in many cases, depend on these provisions (“recipient countries”)? In what follows, the PPP COVAX will serve as an example to take up this perspective and develop a structural critique of the PPP approach in global health.

High hopes on COVAX, disappointed

A Public Private Partnership, based on voluntary contributions by states and private donors, has been the main instrument to deliver the core medical countermeasure to the existential global health crisis that COVID-19 brought about: In 2020, GAVI, the private foundation, introduced COVAX to combat the COVID-19 pandemic. It envisaged COVAX to acquire and distribute COVID-19 vaccines, funded by states as well as private donors. Its main goal was to deliver vaccine doses to middle- and lower-income countries that could not or not fully afford to buy them at market rates. It was also supposed to be an answer to the pervasive occurrence of vaccine nationalism. GAVI´s leadership promoted COVAX as the “only truly global solution to this pandemic because it is the only effort to ensure that people in all corners of the world will get access to COVID-19 vaccines once they are available, regardless of their wealth.” In other words: A Public Private Partnership, acting through private law contracts with both donor and recipient states, funded by public and private money (additionally, in-kind donations of vaccine doses were made available by some states), administered by the private foundation GAVI, was envisaged to implement fair and equal access to vaccines worldwide. Yet, as widely criticized, including by actors from the countries that rely on COVAX for access to vaccinations, NGOs as well as scholars, COVAX has failed its goals by far.

The ineffectiveness of COVAX in ensuring fair and equitable access to COVID-19 vaccines, however, is not the result of administrative failure by its staff and governance bodies, or by its legal administrator, GAVI. It is not actually a failure of COVAX. Rather, it highlights that overall, making use of a PPP to deal with the distributive issue of global access to vaccines during the pandemic was problematic in the first place. COVAX, with its private-law institutional structure and operating method, is an example of how private governance, private law principles such as freedom of contract, and voluntary economic redistribution through donations are inadequate to address the need for solidarity and redistribution that exists in global health, particularly between high-income, industrialised countries and low-income countries. This reflects general concerns and problems of the PPP approach in the field of Global Health.

PPPs: institutional choice by the international community

While PPPs might be initiated and organized by private actors, their prominent and ever-growing role in Global Health is a matter of choice by the international community, particularly the high-income countries. COVAX was initiated by the private foundation GAVI. Yet, the near monopoly COVAX had in pursuing global access to vaccines in the pandemic reflects that (a majority of) states had not opted for a binding and public mechanism in the first place. Evidently, states had not empowered and funded the WHO to procure and distribute vaccines, and they also did not waive intellectual property protections to allow for production of vaccines in lower-income countries. In that perspective, the existence and activity of COVAX reflects the power structures within the international community.

For high-income countries, a PPP such as COVAX has a great advantage: As a mechanism based on private law, a PPP does not itself impose on states any international legal obligations. COVAX did not legally commit states to effective solidarity during the pandemic: They were not obliged to fund vaccine doses for the development-aid component of COVAX to enable equal global access to vaccines. Rather, because of the private character of COVAX and the lack of any binding mechanism, redistributing financial means and vaccines remained voluntary and optional. In addition, within COVAX, states which had the means could continue procuring vaccines through their own contracts. While low-income countries depended on COVAX, high-income states, in fact, were not in any way restricted in pursuing their vaccine nationalism.

In effect, the PPP approach, as illustrated by COVAX, can therefore work to structurally protect the interests of (a majority) of the high-income countries. While PPPs in global health may do a lot of good things, their private law, contractualist nature and structures safeguard formal state sovereignty and voluntarism, predominantly benefitting high-income donor countries. The fact that a PPP deals with a distributive aspect of global health, rather than a binding mechanism of international law, protects the freedom of high-income countries not to redistribute and make medical countermeasures available to countries in need, and to maintain the market advantages of their industries. In this way, the pervasiveness of PPPs in global health may help preserve the given economic and health imbalances within the international community.

Inequality of states within COVAX´ governance structures

A further case in point is the actual governance structures of PPPs, as exemplified by COVAX. Within PPPs, there is no intergovernmental decision-making and governing body. As a result, states do not hold formal decision-making and steering power – this, of course, is a defining feature of public-private cooperation in a PPP. Yet, in COVAX, even where states are consulted in an advisory function, there is no straight-forward structure: Rather, two categories of states are distinguished at the institutional level: There are, firstly, so-called self-financing states – countries which were supposed to pay the full COVAX-negotiated price for vaccine doses procured through COVAX (if they would have happened to use it for procurement, which high-income states actually did not). Then, secondly, there are those countries that are eligible for development assistance under World Bank criteria: They are to receive vaccines as a form of development assistance. Self-financing states are represented in the COVAX Shareholders Council, which is intended to foster exchange among members and provide strategic guidance and advice to the COVAX Office. The countries receiving vaccines as development assistance, on the other hand, participate exclusively in a separate consultation group, the COVAX Advance Market Commitment Engagement Group. This group handles the development-aid dimension of COVAX; it is intended to implement strategic advice and guidance in this area. However, this group does not consist solely of recipient countries; it is also open to donor countries, individual donors, and lenders.

In this governance structure, donor and recipient countries do not participate in the same way, but through different bodies. The body for self-financed states is not open to states receiving vaccines as development aid. This separate institutional structure creates a distinct status. This distinction thus ultimately signals a disparity in importance, and performatively highlights the fact that dominance and dependency relationships exist in world politics between high-income donor states and low-income recipient states.

COVAX exercises distributive International public authority

To develop a conceptual and normative perspective on the structural concerns regarding PPPs in global health outlined here, the notion of international public authority is helpful: COVAX, by controlling the global distribution of vaccines in the COVID-19 pandemic, exercises international public authority, in a distributive form (I have developed this perspective in more detail here). COVAX is intended to implement the WHO´s Concept for fair access and equitable allocation of COVID-19 health products in practice, and this public international ‘soft law’ is invoked to justify its activity. COVAX has been tasked with providing a key means of protecting the human right to health in the pandemic by enabling vaccination. In this way, it has been entrusted with serving a public interest on a global scale. COVAX’s fulfilment of this task has determined to what extent countries in need have been able to vaccinate their population, protecting individuals and health systems. Many low-income countries have been depending on COVAX to fulfil their human rights responsibility and protect their populations in the pandemic by vaccination.

In general, distributive action by PPPs in global health, which bears on receiving states’ capacity to deliver (aspects of) public health, can be considered international public authority if a public-law foundation for their private-law action is invoked. This foundation can be ‘hard’ or ‘soft’ public international law.; strictly private philanthropy lacking any substantive claim of a public legal basis is thus not included in this definition.

Insufficient legitimacy and structural inadequacy of the PPP-approach in global health

To qualify COVAX’, and more generally, PPP’s distributive activity in global health as international public authority signals that this action, despite its private-law principles belongs to the sphere of the public. It is a choice by the international community and needs to be legitimized vis-à-vis the public whose common good it affects. In that perspective, the PPP-approach is highly problematic. Most importantly, it contributes to maintaining the economic and health inequalities and power imbalances between the industrialized, high-income countries and the lower-income countries that receive funds, supplies or services through PPPs. Most importantly and evidently, voluntarism, contractualism and the principle of donation, i.e. the lack of legal obligations on states to redistribute, help preserve and performatively reinforce the general pattern of a power imbalance and structural inequality between donor countries and recipient countries. This structural problem is also reflected in the governance structures of COVAX, which distinguish between donor and recipient countries and involve them through separate bodies. This makes it even more difficult to politicize the structural and practical problems arising from COVAX’s practice. COVAX thus demonstrates a model of redistribution in the field of international public health that centers on contractualist, private modes of cooperation between high-income donor states and lower-income recipient states and is organized under private law, and that the subject to market economy principles is inadequate. It maintains and reproduces power imbalances within the international community and stark health inequalities within the world population.

Outlook: Distributive instrument in the draft Pandemic Treaty

The Draft Negotiating Text of WHO Pandemic Agreement contains the WHO Pathogen Access and Benefit-Sharing System (WHO PABS System), a “multilateral system for access and benefit sharing, on an equal footing, to ensure rapid and timely risk assessment and facilitate rapid and timely development of, and equitable access to pandemic-related products for pandemic prevention, preparedness and response.”  However – as Mark Eccleston-Turner convincingly argues in his contribution to this blog symposium – the PABS approach to the redistribution of vaccines and medical countermeasures in a pandemic has serious problems. Among them are built-in aspects of contractualism (“Standard Material Transfer Agreements”), the small share (20 percent) of any participant´s vaccine production that PABS would make available to the WHO, as well as likely export bans by the high-income countries hosting manufacturers in a future pandemic. As a result of this, PABS can hardly be expected to bring about “vaccine equity” and guarantee that everyone’s right to health is protected by timely, equal access to vaccination, regardless of where they live. In the process of reforming the International Health Regulations, a proposal for a new Art. 13A on “Access to Health Products, Technologies and Know-How for Public Health Response”, is currently being discussed. The proposal, put forward by the Member States of the WHO African Region, is focused on enabling local production of required health products. It would oblige parties to provide exemptions and limitations to the exclusive rights of intellectual property holders to facilitate the manufacture, export and import of the required health products, including their materials and components. Yet, it is more than doubtful that the high-income countries which host most manufacturers and benefit from their profits, will agree on this. The PABS mechanism seems to be as far as they are willing to go. For those reasons, my guess would be that in a future pandemic, a PPP-mechanism could again become part of the toolbox of making (some amounts of) vaccines available to countries in need.

COVAX itself was officially closed down on 31 December 2023. By GAVI´s own numbers, 52 of the 92 economies eligible for its development-aid aspect had relied on COVAX for more than half of their COVID-19 vaccine supply; and COVAX supplied 74 percent of all COVID-19 vaccine doses supplied to low-income countries during the pandemic. According to GAVI, among the 92 recipient states, the double vaccination rate reached an average of 57 percent, compared to a global average of 67 percent. Yet, these average rates do not do justice to the wide disparities in vaccination rates between populations of some of the richest and some of the poorest countries in the world that still remain: According to data by the New York Times, in more than 30 countries worldwide, vaccination rates are still below 30 percent. These continuing shortcomings have been acknowledged by COVAX´s legal administrator, if only in very broad terms: GAVI has stated that while COVAX has made a significant contribution to “alleviating the suffering caused by COVID-19 in the Global South”, it has not been able to “fully overcome the tragic vaccine inequity that has characterized the global response”.

GAVI has also published a white paper with learnings and recommendations from COVAX´s activity during the pandemic. This paper, which merits further analysis, includes a description of “50 critical workstreams and innovations that needed to be developed to implement COVAX” related to the establishment, financing, and other factors of the mechanism. The paper discusses many challenges. Ultimately, however, COVAX´s activity and GAVI´s documentation of its “lessons learned” still provide a kind of playbook for deploying a similar mechanism in a future pandemic situation. In particular, the structural limitations of the proposed PABS mechanism make it likely that the PPP approach to vaccine redistribution could be revived as an additional tool. In this scenario, of course, populations in need would again be receiving only the amount of vaccine that high-income countries and the industry would be willing to provide voluntarily, as a donation.