TWN Info Service on Health Issues (Oct15/11)
19 October 2015
Third World Network

WHO:  Secretariat “scare mongering” on FENSA 

Geneva, 19 October (K M Gopakumar) – There are concerns that the World Health Organization Secretariat is scare mongering on the Framework of Engagement with Non-State Actors (FENSA) by providing a list of intended and unintended consequences of FENSA implementation through a ‘non-paper’.

The paper dated 14 October 2015 states that FENSA could have “detrimental consequences on the work of WHO” without giving any clear examples to back up many of the risks listed in the paper.

The paper is prepared by the Secretariat for the consideration of an informal meeting of Member States on FENSA taking place on 19-23 October at the WHO Headquarters in Geneva.

Apart from the introduction the paper contains three sections viz. intended consequences of FENSA implementation, risks of unintended consequences of FENSA implementation, and possible mitigation measures to limit unintended negative consequences of FENSA.

In the introduction it states: “If an engagement management policy and system is too cumbersome for non-State actors and the Secretariat, it could lead to an important reduction of WHO's engagement with non-State actors and thereby hamper WHO's ability to fulfil its mandate”.  According to the Secretariat on FENSA in its current form, “there is a significant risk of an unintentional restriction of WHO’s engagement with the non-State actors”.

Under the intended consequences of FENSA implementation the Secretariat listed two issues. One is the additional workload on the Programme Budget and Administrative Committee (PBAC) due to three new agenda items related to PBAC.  Another is the additional financial cost for the implementation of FENSA. The cost breakdown is: USD 734,000 for the building and maintenance of a register of non-state actors (NSA) with USD 76,000 for annual maintenance, USD 100,000 training cost of launching the NSA register and FENSA, USD 50,000 in 2016 for internal and external communication of change, and USD 30,000 for the cost of a possible extra day of PBAC meeting in 2017. 

The third part of the Secretariat’s document i.e. the risks of unintended consequences of FENSA implementation, listed out two types of risks viz. the risks involved in the implementation of already agreed provisions, and the risks of implementation of certain proposals which are currently in brackets due to lack of consensus.

Interestingly the paper does not provide any details regarding the benefit of FENSA to WHO except for the following remark: “Implementing FENSA will have clearly foreseeable and intended consequences, including the fact that it will put WHO's engagement with non-State actors on a more solid basis and strengthen the management of risks of engagement”.

Risks of FENSA Implementation

The Secretariat identifies several risks related to the transparency-related provisions of FENSA such as: “Transparency beyond a certain level could lead to the unwillingness of some key actors to engage with WHO and expose WHO to the risk of litigation and claims to justify in details each due diligence and risk assessment. While a transparent process is in principle in the interest of the Organization, there are cases where some aspects of transparency may conflict with legal undertakings entered into by WHO with regards to accessing or disclosing certain information such as trade secrets or could expose some non-State actors to major risks such as during conflict and civil war situations.”

According to the Secretariat, “If all aspects of FENSA had to be rolled-out at once, the system would likely collapse or create major bottlenecks and delays in decision making, which may lead to major operational, financial and reputational ramifications for the Organization”.

Another risk of FENSA identified by the Secretariat is that “using the full FENSA system during emergencies could jeopardize WHO’s important role currently being strengthened through emergency reforms”.

According to the Secretariat, there is also the “high risk that WHO could not be able to perform its normative and technical functions to meet the expectations of Member States and other stakeholders, and could no longer access most up-toญdate knowledge and expertise.”  This risk refers to engagement of individuals employed by or linked with a NSA that is subject to due diligence and risk assessment under FENSA, even though FENSA does not apply to individuals.

The following Secretariat-identified risks are related to those proposals which are yet to be agreed by Member States:

·         “A ceiling of earmarked contributions would probably deter non-state contributors from making such contribution and have important resource mobilization implication.

·         WHO could not perform its work on preparing norm and standards if no experts connected to a non-State actor could be involved, since a large part of the expert knowledge WHO needs is outside of state actors.

·         An extensive interpretation of the non-engagement with the arms industry could lead to important missed opportunities, such as engagement with the IT sector on e-health and mญhealth, since most of companies operating in this field have either close ties with defence industry or have developed expertise, branches and subsidiaries in this area.

·         Making full due diligence and risk assessment reports available may put at stake WHO's reputation and may encourage non-State actors to press charges against WHO and create major litigation risks and additional workload for the Organization. This could also politicize the review process which should be neutral.

·         Publishing summary reports of due diligence and risk assessments could also expose WHO to external criticism and complaints in case the non-state actors concerned challenge its conclusions.

·         If there are no more secondments from non-State actors to WHO, their expertise will have to be found otherwise, which might prove difficult.

·         A separate accreditation procedure in addition to the procedure for accepting entities into official relations could create confusion and uncertainties with regard to their respective procedures and would create significant additional workload for governing bodies and for the Secretariat to manage this separate procedure.”

Possible Mitigation Measures

The Secretariat has six proposals to limit the negative consequences of FENSA. First, to allow a stepwise implementation of FENSA starting with engagement involving the highest risks, such as financial contributions. Secondly, a simpler procedure for minor engagement with very limited risks for the Organisation. Thirdly, to make more explicit the authority of the Director-General to decide in situations where FENSA procedures and provisions would be detrimental to the Organisation to suspend their application. Fourthly, explicitly provide flexibility for the implementation of FENSA. Fifthly, exclude emergency response from te procedures of FENSA. Sixthly, just provide the name, address and webpage of NSAs for the occasional attendance of meetings except those relevant for the global normative processes.

Many observers and developing country Member States delegates termed the Secretariat’s “non–paper” as an attempt of the Secretariat to prevent if not kill a robust framework of engagement with NSA. 

According to them there was no decision in the 2015 World Health Assembly (WHA) to produce such a report.   Even though Malta had requested during the adoption of the WHA resolution a report on practical and resource implications of implementation of the proposed framework, there was no decision in this regard at the WHA.

Further, an observer also pointed out that Malta requested the report for the 138th Session of the Executive Board. However, the Secretariat prepared the document very early for the consideration of this week’s informal meeting. According to this observer circulation of the paper now is an attempt to block a robust framework to regulate WHO’s engagement with NSAs.

Interestingly, the paper made many assertions related to the risks involved in the implementation of FENSA but does not provide any examples to back up its claim. For instance, the paper states “there are cases where some aspects of transparency may conflict with legal undertakings entered into by WHO with regards to accessing or disclosing certain information such as trade secrets or could expose some non-State actors to major risks such as during conflict and civil war situations”.  However, no examples have been provided in the paper.

The paper projects a financial cost of USD 734,000 for building up and maintenance of a register of NSAs.  It was the proposal of the Secretariat itself to create a NSA register as part of FENSA. Now the Secretariat turns around and projects it as a major reason for the financial cost.

Similarly, the Secretariat’s version of the FENSA text presented to the Executive Board recommended a ban on staff secondment from NSAs. However, the non-paper states that if there are no more secondments from NSAs to WHO, “their expertise will have to be found otherwise, which might prove difficult”.

It is also interesting that there are seven risks cited in the report that are related to the proposals which are currently under negotiation, and therefore the purpose of the paper appears to be to influence the negotiations of the outcome.

The list of risks clearly shows that there is a clear alignment of the views of the Secretariat with a few powerful developed countries who are opposed to the adoption of those provisions.+