Info Service on Health Issues (Jul15/04)
WHO negotiations to continue on FENSA
New Delhi, 20 July (K M Gopakumar) – Members States of the World Health Organization have decided to continue the negotiations on a Framework of Engagement with Non-State Actors (FENSA) as several key issues remain unresolved.
The second Open-ended Intergovernmental Meeting (OEIGM) was held 8-10 July at the WHO’s Head Quarters in Geneva.
The 68th World Health Assembly in May 2015 through a resolution requested the Director-General “to convene as soon as possible, and no later than October 15, an open-ended intergovernmental meeting to finalize the draft framework of engagement with non-State actors on the basis of progress made during the Sixty-eighth World Health Assembly”.
The OEIGM decided on a-four month process from September to October 2015 to carry out the negotiations prior to the 138th session of the WHO Executive Board.
In September the Chair is to hold meetings on specific issues in September open to all Member States. The Chair is expected to carry forward proposals developed at these meetings to the informal meeting to be held during the week of 19-23 October. The exact dates of the meetings are to be finalised in consultation with the regional coordinators of Member States. The resumed session of the OEIM is scheduled for 7-9 December.
The first two days of the recently concluded July OEIGM negotiations resulted in consensus on three issues viz the relation of FENSA with other existing policies such as WHO policy on partnership (paragraph 48), non-State actors’ official relations with WHO (paragraphs 50, 51 and 55), and the oversight of engagement (paragraph 66).
Relation with other Policies and Regulations
The Secretariat originally proposed the coexistence of existing policies with FENSA. It stated: “The implementation of the framework for engagement with non -State actors is coordinated with the following related policies …” Six such policies were then listed including the WHO policy on partnerships. On the partnership policy it stated that, “WHO’s involvement in external partnerships is regulated by the policy on WHO’s engagement with global health partnerships and hosting arrangements. For the management of risks of WHO’s engagement in these partnerships the present framework for engagement with non-State actors applies.” However, this does not clarify which policies would prevail in case of a conflict with FENSA and whether FENSA fully applies to partnerships.
The new text states that, “The implementation of the policies listed below as they relate to WHO’s engagement with non-State actors will be coordinated and aligned with the framework of engagement with non-State actors. In the event that a conflict is identified, it will be brought to the attention of the Executive Board through the PBAC (Program Budget and Administrative Committee)”. Thus in case of conflict there would be an intervention of the WHO Governing Bodies. However, it is not clear who is bringing the identified conflict before the PBAC, whether it is the Secretariat or Member States or both that can bring the issues of conflict between FENSA and the policies or regulations listed in paragraph 48.
Regarding the Partnership policy, paragraph 48(a) provides as follows: “Policy on WHO’s engagement with global health partnerships and hosting arrangements.
“(i) Hosted partnerships derive their legal personality from WHO and are subject to the Organization’s rules and regulations. Therefore the Framework of engagement with non-State actors applies to their engagement with non-State actors. They have a formal governance structure, separate from that of the WHO governing bodies, in which decisions are taken on direction, work plans and budgets; and their programmatic accountability frameworks are also independent from those of the Organization. In the same way the framework applies to other hosted entities which are subject to the Organizations Rules and Regulations.
“(ii) WHO’s involvement in external partnerships is regulated by the policy on WHO’s engagement with global health partnerships and hosting arrangements. The framework of engagement with non-State actors also applies to WHO’s engagement in these partnerships.”
This brings more clarity to the issues. It clearly spells out that FENSA is applicable to both external and hosted partnerships. Earlier the Secretariat had proposed that FENSA applies only to the management of risk. Application of FENSA is important because partnerships are turning to be the prime mode of WHO’s engagement with non-State actors. A non-exhaustive list of partnerships and collaborations published by the Secretariat lists around 83 hosted and external partnership including collaborations.
On the second day of theOEIGM session official relations with WHO was taken up for negotiations. Consensus was reached on three pending paragraphs 50, 51 and 55. Paragraph 50 prescribes: “Entities in official relations are international in membership and/or scope. All entities in official relations shall have a constitution or similar basic document, an established headquarters, a governing body, an administrative structure, and a regularly updated entry in the WHO register of non-State actors”. Civil society organisations have certain apprehensions on this paragraph because it would result in the exclusion of certain loosely organised civil society coalitions, networks and movements from entering into official relations. These coalitions or networks or movements are not structured in the form of an NGO and may not have an organisational structure prescribed in paragraph 50.
Paragraph 51 states: “Official relations shall be based on a plan for collaboration between WHO and the entity with agreed objectives and outlining activities for the coming three-year period structured in accordance with the General Programme of Work and Programme budget and consistent with this framework. This plan shall also be published in the WHO register of non‑State actors. These organizations shall provide annually a short report on the progress made in implementing the plan of collaboration and other related activities which will also be published in the WHO register. These plans shall be free from concerns which are primarily of a commercial or profit-making nature”.
The new paragraph 51 clearly brings a certain degree of safeguards against using a collaboration plan between an NGO and WHO to further commercial interest. It clearly states: “These plans shall be free from concerns which are primarily of a commercial or profit-making nature”. Further, it also prescribes that collaboration plans should be consistent with the FENSA framework. This would prevent drawing up of collaboration plans to engage in activities to further the commercial interest or activities involving conflict of interests. Some of the existing collaboration plans between WHO and certain NGOs in official relations goes against the risk of engagement identified in FENSA.
Paragraph 55 allows the WHO Regional Committees to accredit certain NGOs not in official relations to attend Regional Committee meetings. It states: “Regional committees may also decide on a procedure granting accreditation to their meetings to other non-State actors not in official relations with WHO as long as the procedure is managed in accordance with this framework”.
FENSA revamped the official relations rules and now explicitly allows not only NGOs but also international business associations and philanthropic foundations to enter into official relations with WHO. Under the existing arrangement official relations are managed through the Principles Governing Relations between the World Health Organization and Nongovernmental Organizations and this allow only NGOs to enter into official relations. However, in practice WHO has allowed international business associations and philanthropic foundations to enter into official relations in violation of the criteria mentioned in the document.
There is lack of clarity with regard to the criteria for applying for official relations. According to paragraph 50 this “is a privilege that the Executive Board may grant to nongovernmental organizations, international business associations and philanthropic foundations that have had and continue to have a sustained and systematic engagementin the interest of the Organization”.
There is no clarity with regard to the words ‘systematic engagement’. The footnote defines systematic engagement as “At least two years of systematic engagement as documented in the WHO register of non-State actors, assessed by both parties to be mutually beneficial. Participation in each other’s meetings alone is not considered to be a systematic engagement.”
This definition does not clarify the exact meaning of systematic engagement and also raises the question whether FENSA applies to systematic engagement. Further, there is no clarity about the requirement of “assessed by both parties to be mutually beneficial”. This may give raise to concerns that international business associations or philanthropic foundations may use their engagement to pursue their interest rather than the interest of WHO. Civil society organisations have also expressed concerns on the sentence which states “Participation in each other’s meetings alone is not considered to be a systematic engagement”. This means that systematic engagement should be more than the participation of meetings or consultation listed in paragraph 16 of FENSA. However, there is no clarity with regard to the exact requirements to establish ‘systematic engagement’. Paragraph 16 of FENSA identifies five modes of engagements viz. participation, resources, evidence, advocacy and tech nical collaboration.
The Principles Governing Relations between the World Health Organization and Nongovernmental Organizations (NGO Policy) extends three privileges to the NGOs in official relations. First, the right to appoint a representative to participate and make a statement of an expository nature at the request of the Chairperson or of the World Health Assembly or the Executive Board. Secondly, “to access to non-confidential documentation and such other documentation as the Director-General may see fit to make available through such special distribution facilities as WHO may establish”. Thirdly, “the right to submit a memorandum to the Director-General, who would determine the nature and scope of the circulation”. According to the NGO policy, “In the event of a memorandum being submitted which the Director-General considers might be placed on the agenda of the Health Assembly such memorandum shall be placed before the Executive Board for possible inclusion in the agenda of the Assembly”.
However, FENSA offers only one privilege to non-State actors in official relations i.e. the possibility to appoint a representative to participate in meetings of WHO’s governing bodies or in meetings of the committees and conferences and the possibility to make a statement. This statement is to be submitted in advance of the debate for the Secretariat to post on a dedicated website. This requirement of advanced submission may make the statements of NGOs redundant at the time discussion and may not respond in a timely manner to the exact issue under discussion.
Third World Network learned that there was a discussion to extend the privilege of the right to submit a memorandum to the Director-General, who would determine the nature and scope of the circulation only to NGOs. This was dropped due to the demand from the developed countries to apply the privilege of submission of memoranda to all non-State actors in official relations, such as the international business association and philanthropic foundations along with NGOs.
Oversight of Engagements
The second day also witnessed consensus on paragraph 66 dealing with the scope of oversight. The Executive Board through the PBAC is to oversee the implementation of FENSA.
According to the newly agreed paragraph 66, the PBAC “shall review, provide guidance and, as appropriate, make recommendations to the Executive Board on:
(a) oversight of WHO’s implementation of the framework for engagement with non-State actors including: (i) consideration of the annual report on engagement with non-State actors submitted by the Director-General (ii) any other matter on engagement referred to the Committee by the Board;
(b) entities in official relations with WHO, including: (i) proposals for admitting non-State actors into official relations (ii)review of renewals of entities in official relations;
(c) any proposal, when needed, for revisions of the framework of engagement with non-State actors.
There was a proposal for the consideration of a report from the Independent Expert Oversight Advisory Committee on WHO’s engagements with non-State actors by PBAC. The OEIGM decided to drop this proposal. The committee would have provided a more independent assessment than the Director-General’s annual report that bears the danger of justifying acts of the Secretariat.
Since PBAC discussions are not open to observers there would be a transparency deficit with regard to the deliberations of the PBAC on non-State actor engagements.
It is learned that on the second day of OEIGM there was discussion on paragraphs 44 and 44bis. Paragraph 44 proposes the disengagement of WHO from the arms and tobacco industry. However, there is no consensus on this. Paragraph 44bis deals with extra caution to be exercised with regard to WHO’s engagement with certain industries other than the tobacco and arms industry, such as food and beverage, alcohol and breast milk substitutes. However, the developed countries are against explicitly naming these industries and prefer to have a general clause of extra caution when engaging with the private sector without mentioning any particular industry. Industries such as food and beverage, and alcohol have direct implications on the incidence of non-communicable diseases.
OEIGM also deleted paragraph 72 of the Overarching Principles, which proposed certain follow up actions after the adoption of FENSA. These include review of certain existing policies such as the WHO partnership policy, categorisation of 202 NGOs in official relations into private sector or NGOs or philanthropic foundations by applying the criteria mentioned in FENSA etc. The Chair’s proposal was to address the issues mentioned in paragraph 72 in a WHA resolution which will adopt FENSA instead of having it in FENSA. It is not clear whether the deletion of paragraph 72 is based on the Chair’s proposal.
The third day of the OEIGM focussed on the issue of staff secondment. Since the issue of secondment is linked to the definition of resources, the secretariat took a position that there is a need to deploy personnel from non-State actors for the Organization’s emergency response work. It is learned that Member States have asked the Secretariat for the details of such deployment during emergency response work in the past, especially during the Ebola crisis. The Secretariat made the presentation; however it lacked precise information such as the exact number of people engaged by WHO from non-State actors and details of such actors from where these people were drawn.
On the third day the OEIGM also focussed on engagement of personnel from non-State actors in policy, norms and standard setting functions. Many Member States opposed the engagement of personnel from non-State actors to carry out activities related to policies, norms and standard setting. Third World Network learned that the Secretariat advocated for the use of personnel from non-State actors for such activities citing the current practice. Some Member States have asked for the details from the Secretariat with regard to current practices. The Secretariat promised to provide the information during the next meeting of OEIGM.+