TWN Info Service on Health Issues (Apr16/11)
27 April 2016
Third World Network

WHO:  Norway re-opens paragraph on due diligence and risk assessment of NSA

Geneva, 27 April (TWN) – Norway re-opened the paragraph on due diligence and risk assessment in the Overarching Framework of Engagement with Non-State Actors under on-going negotiations at the World Health Organization.

[The negotiation text contains the Overarching Framework of Engagement with Non-State Actors (FENSA) and four separate policies for each non-state actors (NSA) viz. NGOs, private sector, philanthropic foundations and academic institutions.]

Norway made this surprise move of reopening an already agreed paragraph in the morning of 26 April, and Member States could not reach any consensus.  Based on the deliberations, the Chair of the Open-Ended Intergovernmental Meeting, Julio Mercado (Minister, Permanent Mission of Argentina in Geneva) proposed a text. Negotiations based on the Chair’s text will take place on 27 April, the last day of OEIGM.

The agreed Paragraph 27 sets out the procedure to initiate due diligence and risk analyses of NGOs. It reads:

“When the possibility of entering into an engagement is being considered, the relevant technical unit in the Secretariat conducts an initial examination in order to establish whether such an engagement would be in the interest of the Organization and in line with the principles of WHO’s engagement with non-State actors in paragraph 6 and the priorities defined in the General Programme of Work and Programme budget. If this seems to be the case, the technical unit asks the non-State actor to provide its basic information. Using the Organization-wide electronic tool, the unit then complements this information with a description of the proposed engagement and its own assessment of the benefits and risks involved. This information is then transmitted to a specialized central unit which is responsible for analysing the information provided”.

Norway’s proposal to amend the Paragraph 27 is as follows:

“When the possibility of entering into an engagement is being considered, the relevant technical unit in the Secretariat conducts an initial examination in order to establish whether such an engagement would be in the interest of the Organization and in line with the principles of WHO’s engagement with non-State actors in paragraph 6 and the priorities defined in the General Programme of Work and Programme budget. If this seems to be the case, it will further consider if the engagement has a significant potential risk. If the risk is not deemed to be significant, the Secretariat will take such steps as is needed to ensure compliance with paragraph 6, and will register the engagement in the WHO Register of Non-State actor. If the potential risk is deemed to be significant, the procedures outlined in paragraphs 27 bis-41 will be applied. If the engagement is of repetitive nature (foot note) and has already been subject to due diligence and risk assessment, it will be considered lo w risk. Both for the initial assessment and in the application of paragraph 27 bis-41, full use will be made of any previously received relevant information, in order to avoid duplication and minimise the workload and resource impact.”

The Norway proposal effectively dilutes the due diligence and risk assessment procedure in many ways. First, in the absence of any definition of terms such as ‘low risk’ and ‘significant risk’ the Secretariat would get considerable discretion in determining the meaning and content of the degree of risk. 

Secondly, the proposal automatically treats all the earlier risk assessment as low risk and avoids further risk assessment. Thus the proposal risks legitimising all existing engagements as low risk. Further, the dynamic nature of risk is ignored if a procedure is accepted that once due diligence and risk assessment is done on an NSA it is  valid forever. It also sets a non-transparent system of due diligence and risk assessment.

[Paragraph 8 of the Framework explains the risk of engagements as follows: “WHO’s engagement with non-State actors can involve risks which need to be effectively managed and, where appropriate, avoided. Risks relate inter alia to the occurrence in particular of the following: (a) conflicts of interest; (b) undue or improper influence exercised by a non -State actor on WHO’s work, especially in, but not limited to, policies, norms and standard setting;(c) a negative impact on WHO’s integrity, independence, credibility and reputation; and public health mandate; (d) the engagement being primarily used to serve the interests of the non-State actor concerned with limited or no benefits for WHO and public health; (e) the engagement conferring an endorsement of the non-State actor’s name , brand, product, views or activity; (f) the whitewashing of a non-State actor’s image through an engagement with WHO; (g) a competitive advantage for a non-State actor.]

The Chair’s text reads as follows:

“When the possibility of entering into an engagement is being considered, the relevant technical unit in the Secretariat conducts an initial examination in order to establish whether such an engagement would be in the interest of the Organization and in line with the principles of WHO’s engagement with non-State actors in paragraph 6 and the priorities defined in the General Programme of Work and Programme budget. If the engagement seems to be in the interest of the organization,

If it appears to the technical unit that the potential engagement is in the interest of the Organization and low risk, a simplified procedure for the assessment of the entity, risk assessment of the engagement, risk management and transparency will apply.  This simplified procedure and guidance on the analysis of risks will be set out in the Director-General’s guide to staff referred to in paragraph 41. Engagements involving resources, evidence and advocacy shall normally be considered as having significant potential risks. The adequacy of this distinction will be periodically reviewed by the Programme, Budget and Administration Committee of the Executive Board (PBAC) based on experience gained in the implementation of this framework. 

For all other potential engagements, Tthe technical unit asks the non-State actor to provide its basic information. Using the Organization-wide electronic tool, the unit then complements this information with a description of the proposed engagement and its own assessment of the benefits and risks involved. This information is then transmitted to a specialized central unit which is responsible for analysing the information provided.”

The Chair’s text proposes a simplified procedure for “the assessment of the entity, risk assessment of the engagement, risk management and transparency for the low risk” engagements.  However, it classifies the following three engagements as engagements with significant risks: resources, evidence and advocacy. 

However, the devil is in the details. The Chair’s text states: “Engagements involving resources, evidence and advocacy shall normally be considered as having significant potential risks”.

The word ‘normally’ creates discretionary powers for the Secretariat to even classify certain engagements for resources, evidence and advocacy as low risk engagement. In other words the word ‘normally’ effectively neutralises the classification of certain engagements as significant risk. Third World Network learnt from a developing country delegate that the WHO Secretariat had inserted the word  ‘normally’ in the Chair’s text.

Further, technical collaboration that is an important engagement identified under the Framework that bears a high degree of risk has been excluded from the list of engagements that pose significant risk.  Under the Framework, technical collaboration means the following four activities: product development, capacity building, operational collaboration in emergencies, contributing to the implementation of WHO’s policies.  Technical collaboration activities such as capacity building and contribution to the implementation of WHO policies bear significant risk because the engagement with NSAs such as the private sector or private sector-linked entities could undermine public health objectives.

There is no direction with regard to procedures for the assessment of low risk. The Chair’s text only states: “This simplified procedure and guidance on the analysis of risks will be set out in the Director-General’s guide to staff referred to in paragraph 41.”

Lastly, there is no reporting mechanism with regard to reporting of cases of low risk assessment to the WHO governing bodies to facilitate the scrutiny of such assessment.

Norway cited cost saving as the rationale behind its proposal to reopen Paragraph 27..  Interestingly a power point presentation circulated by the Secretariat regarding the cost of implementation of FENSA does not project a significant increase for the technical unit level and the increase at the central unit can be justified for the avoidance of risk to WHO’s independence and integrity. Based on an assumption of carrying out 4000 cases of due diligence/risk assessment in the next year the Secretariat estimated the cost to the tune of USD 2.9 million at the technical unit level and USD 3.5 million at the central unit. The current cost due diligence/risk assessment is USD 2.5 million at the technical unit level and USD 0.4 million at the central unit.