Geneva (K M Gopakumar) – An informal meeting of World Health Organization Member States to negotiate the Framework of Engagement with Non-state Actors (FENSA) text begins on Monday 19 October
The 3-day meeting is being held at the WHO Headquarters in Geneva.
The 68th World Health Assembly (WHA) requested the Director General (DG) of WHO to submit the finalised draft text to the 69th WHA (in 2016) through the 138th session of WHO’s Executive Board. The resolution also requested the DG “to develop the register of non-State actors in time for the Sixty–ninth World Health Assembly, taking into account progress made on the draft framework of engagement with non-State actors”.Towards this end the DG was “to convene as soon as possible, and no later than October 15, an open-ended inter-governmental meeting (OEIGM) to finalize the draft framework”. The OEIGM held on 8-10 July could not finish the negotiations and was therefore suspended, to resume on 7-9 December.
The informal meeting is part of a process to seek consensus on the FENSA text among Member States prior to the formal resumed OEIGM in December.
This meeting is expected to discuss the specific-issue meetings organised by the Chair of OEIGM in September. The Chair had organised four one-day consultations focussing on the following specific issues:
• Advocacy and technical collaboration (1 September)
• Resources (persons and financial contributions) and protection of WHO’s normative work (9 September)
• Level of transparency, oversight and role of the independent Expert Oversight Advisory Committee and the Role of the Engagement Coordination Group and the feasibility of implementation (18 September)
• Caution with particular industries, official relations versus accreditation and non-compliance (22 September)
Third World Network (TWN) learned that only 20 to 25 Member States participated in the above-mentioned consultations in September.
The FENSA process was originally initiated as a part of WHO’s reform process under the governance reform pillar. However, a majority of Member States while welcoming the engagement with non-State actors (NSAs) expressed the need for a robust regulatory framework to avoid the risks of such engagement, especially the conflict of interests and the undue influence exercised by NSAs on WHO’s work.
FENSA contains an overarching framework of engagement with NSAs and specific policies to regulate each NSA viz. NGOs, private sector, philanthropic foundations and academic institutions.
The overarching framework contains the following parts: rationale, principles, benefits and risks of engagement, definition of NSAs, types of interaction, management of conflict of interest and other risks of engagement, specific provisions on WHO’s engagement with certain types of industries, association with WHO’s name and emblem and secondment, relation of the framework to WHO’s other policies, official relations, accreditation of NGOs, oversight of engagement, provisions related noncompliance and monitoring framework.
The specific policies spell out the details of the application of the overarching framework that are specific to each NSA.
There is consensus on a substantial part of the FENSA document. However, there is no consensus on many critical issues. This difference primarily emanates from the difference in approaches. The majority of WHO Member States, especially developing countries, wanted to have robust safeguards against the undue influence, conflict of interests and other risks from the engagement of NSAs in general and the private sector in particular. However, developed country Member States want less rules for regulating engagements with NSA especially with the private sector. This is clear from the submission of the United Kingdom. It states: “we believe it is vital that the policy be a platform for a proactive engagement with all actors that have a legitimate and positive role to play in advancing public health for all. So it should enable more engagement, not less, but with a clearer and more robust framework around that engagement. We feel it is important that the document fully captures that enabling spirit”.
Thus many developed countries especially the United States and the UK are using the FNESA negotiation to increase the engagement with the private sector and philanthropic foundations, thus resisting any robust safeguards. Often the US and the UK and other developed countries are proposing the removal of very limited safeguards against the risk of engagements with NSA especially with the private sector. For instance, during the negotiation it was learnt that the UK and the US proposed secondment from the private sector to WHO i.e. employee of a private sector entity is placed in the WHO for carrying out the work of the organization.
The WHO Secretariat’s approach to FENSA is of late is very much aligned with the developed countries. A developing country delegate told TWN that during the OEIGM in July on the issue of secondment the Secretariat insisted that the use of personnel including from the private sector is critical for emergency response. However, during the presentation it turned out that no personnel from the private sector was used for the recent emergency response on Ebola.
Another developing country delegate revealed to TWN that often the approach of the Secretariat is that a robust framework would deter NSAs from engaging with the WHO, instead of supporting a robust framework especially provisions like transparency takes a stand that more transparency rules would expose WHO to legal challenges.
Some of the main areas of differences are explained below:
Definition of resources and secondment
FENSA identified resources, especially accepting resources from NSAs, as a form engagement. The original definition of “resources” proposed by the Secretariat includes personnel and many Member States opposed to the definition because it would then result in accepting secondment from NSAs to WHO.
TWN learned that the Chair has proposed a new definition of resources based on the Chair’s consultation in September. According to this new definition NSAs are allowed to contribute goods and services but the FENSA would not be applicable if an individual from a NSA provides services to WHO without a contract between the NSA and WHO. The Chair’s earlier proposal on secondment is still there and it reads: “WHO does not accept secondments from Non-State actors.” An observer pointed out that the new definition does not resolve the problem; rather it legitimises the issue of secondment.
Conflict of Interest
Even though the language on conflict of interest is marked in green as an indication of consensus but the entire paragraph is still in brackets. The main issue with the conflict of interest provision in the FENSA text is the lack of clarity with regard to its implementation. This lack of clarity primarily emanates for the absence of a comprehensive conflict of interest policy in WHO especially to manage the institutional conflict of interest. According to a developing country delegate the Secretariat has made no commitment with regard to the development of comprehensive conflict of interest policy.
Engagement with Certain industries
Another unresolved issue is the WHO’s engagement with certain industries which has implications for the protection of public health. FENSA proposes non-engagement with the tobacco and arms industries. However, there is no clarity or consensus over whether WHO needs to distance itself from the affiliates of these industries.
Similarly many developing countries also demand that apart from the tobacco and arms industries WHO should either distance itself or restrict its engagement with food and beverages industries or agribusiness corporations.
Developed countries do not agree with this proposition. It is learnt that the Chair’s text proposes a particular caution while engaging with certain industries which are negatively affecting human health or affected by WHO’s policies, norms ad standards. According to an observer the Chair’s text does not spell out the details of “particular care”. As a result the Secretariat has the discretion to determine what constitutes the ‘particular care’.
Transparency
There is a difference of opinion among Member States with regard to accessing the due diligence, risk assessment and risk management reports from the Secretariat. Both the Secretariat and developed countries oppose provision of the full due diligence and risk assessment reports to Member States. It is learnt that the Chair is proposing a consensus text that emerged out of the consultation, which provides a summary of due diligence and risk assessment and risk management undertaken by the Secretariat. However, there is no consensus with regard to making the full report available to the Member States even at the request of Member States in this regard. According to an observer the lack of information would make it difficult to monitor the implementation of FENSA.
Private Sector Policy
There are many contentious issues in the private sector policy. Some of these are related to the conditions for accepting resources from the private sector, as follows:
• the proposed condition to accept resources from entities whose business activities are unrelated to WHO as well as compatible with WHO’s mandate and work their activities
• the condition not to accept financial resources from private sector entities whose activities are undermining the mandate of WHO
• the proposal for a ceiling on in the specified voluntary contribution from the private sector to prevent the private sector from picking and choosing programmes for funding. It is to avoid the risk of donor-driven programmes.
Both the Secretariat and developed country Member States oppose any of the above-mentioned conditions for the acceptance of resource from the private sector. According to one developing country delegate the Secretariat often asserts that these conditions would hamper resource mobilisation from the private sector. According to a Secretariat document, in 2012 only $25 million, or 1.5% of WHO’s income was received from the private sector. (http://www.who.int/about/who_reform/governance/mapping-of-WHO-engagement-with-non-State-actors.pdf?ua=1)
TWN learned that the Chair has proposed a broad exception to the FENSA framework to respond to the emergency situations. This would also be deliberated at the informal meeting on 19-21 October.
According to several observers, the FENSA exercise would be futile if it either lowers the regulatory safeguards for the engagement with NSAs especially with the private sector or merely restates the status quo. – Third World Netwotrk
