TWN Info Service on Intellectual Property Issues (June12/01)
15 June 2012
Third World Network

Member States’ participation in the reform process undermined

Geneva, 6 June, (K M Gopakumar) – The effective participation of the World Health Organisation Members States in the mandated reform of the organisation appears to be systematically undermined.

This emerged from the outcomes of the World Health Assembly (WHA) that took place in Geneva on 21-26 May and the subsequent WHO Executive Board (EB) meeting on 28-29 May.

The reform process was formally initiated at the 128th session of the EB in January 2011 and later endorsed by the WHA in its last annual session in May 2011 (SUNS # 7077).

In its May 2012 meeting the WHA adopted a decision on reform containing 18 decision points falling under three categories of reform viz. programmatic reform, governance reforms and managerial reforms. Out of these 16 decisions points were contained in a document titled “WHO Reform: Consolidated report by the Director General” (A65/5).

During the deliberations Switzerland proposed a decision point to request the DG, in consultation with Member States, to propose options on changes in rules of procedures of governing bodies to restrict the number of resolutions and also to streamline reporting and communications with the Member States.

Following the WHA Decision, the 131st session of the EB, which was held on 28-29 May adopted three decisions related to reform agenda viz. adoption of the evaluation policy, amended terms of reference and the extraordinary session of the Program, Budget and Administrative Committee (PBAC) on 5-7 December to discuss particular aspects of reform viz. transparency, accountability and predictability and flexibility of WHO financing and review of the draft General Programme of Work, Program and Budget including the results ofdiscussions that will take place in the Regional Committees.

These decisions collectively undermine the effective participation of Member States in the reform process, which was recognised as a fundamental principle of the reform process in the 129th EB session in May 2011 (SUNS # 7163).

(The 129th EB decision on reform decided “to establish a transparent, Member State driven and inclusive consultativeprocess, on WHO reform, based on existing mechanisms”. The same decision also decided to convene the special session of EB (EBSS) to discuss the reform proposal.)

The most recent WHA decision on reform effectively hands over the decision-making in substantial areas to the Secretariat and the EB. The WHA is the highest decision-making body of the WHO where all Member States enjoy a single vote and therefore enjoy an equal say. Membership of the other two bodies viz. the EB and PBAC (this is not an established body under the WHO Constitution as in the case of the EB) are limited to 34 and 14 members respectively. Voting rights in both bodies are restricted to only those Members even though all WHO Member States can attend the meetings of the EB and PBAC as observers. The decision undermines the role of Member States in the decision-making regarding WHO reform mainly in the following ways.

First, reforms in certain critical areas such as staffing policies, accountability framework, risk management, conflict of interest and the establishment of an ethics office are completely in the hands the Secretariat. The role of governing bodies including the EB in the development of policies in these areas is not clear. Secondly, reform decisions on issues such as transparency; predictability and flexibility of financing, WHO’s engagement with stake holders viz. NGO and private sector; and the review of the DG’s report on WHO hosted partnership appears to sideline the role of WHA and place future decision-making in the hands of the EB.

Thirdly, the WHA seems to have been bypassed in the adoption of the evaluation policy and/or terms of reference of the PBAC. On both issues the Secretariat only requested the WHA to take note of the fact. The approval of both documents was done by the EB.

The EB decision to hold an extraordinary session of the PBAC also undermines the effective participation of Member States on a crucial issue such as predictable and flexible financing. Even through it is open to all Member States they have no role in PBAC decision making, which is the prerogative of the 12 PBAC members. There is no clarity regarding the decision making process in the EB decision because all Member States cannot exercise voting rights at the extraordinary session of PBAC.

Further, it also compromises transparency in the reform process on the critical issue of future financing of the WHO because the PBAC meetings do not allow the attendance of non-governmental observers. Hence, NGOs in official relation with the WHO, which include both public interest NGOs and business interest NGOs, and the public cannot attend the extraordinary session of the PBAC.

As shown below some of the decision points have the potential to curtail the freedom of Member States in bringing issues of their concern to the agenda of governing body meeting.

Programmatic Reform

The WHA decision “Welcomes”, instead of endorsing, the “Chairman’s report on the meeting of Member States on programmes and priority setting and the criteria, categories and timeline set out in its three appendices”.

[Member States meeting was held in 27-28 February 2012 as a result of the 130th EB Decision in January 2012. The decision set the terms of reference for the member State-driven process to provide recommendations on methods of programmes and priority setting for the consideration of the 65th WHA in May 2012. The 130th EB decision was in pursuance of the Special Session of the EB on reforms which was held November 2011 and which adopted a decision to initiate a Member Statesdriven process on programmes and priority setting SUNS# 7258. The Chairman’s report transmitted through the DG to the WHA contains the outcome of the Member States meeting in February 2012, and states that the meeting reached consensus on three areasviz. criteria, categories and timeline.]

The report mentions five criteria for priority setting and programmes in the WHO. These are:

• the current health situation,
• needs of individual countries
• internationally agreed instruments, evidence based,
• cost effective interventions,
• the comparative advantage of WHO which includes capacity to develop evidence in response to current and emerging health issues; ability to contribute to capacity building; capacity to respond to changing needs based on ongoing assessment of performance and potential to work with other sectors, organizations and stakeholders to have a significant impact of the health.

The report provides five categories for priority setting and programmes viz communicable diseases ; non-communicable diseases; promoting health through the life course; healthsystems and the preparedness, surveillance and response.

The time line starts in February 2012 and concludes in 2013 with the submission of the draft programme budget at the 66th WHA for the approval of Member States.

However, deliberations in the WHA showed a lot of resistance from some developing countries, especially UNASUR countries against the proposed categorization. They proposed an additional category be included on social determinants of health.

However this proposal while supported by some was vehemently opposed by others in particular the developed countries. Finally as a compromise the words “especially concerning health determinants and equity’ were added to the decision point.

Hence, the decision further requests the DG to use the agreed framework and guidance provided by the WHA especially concerning health determinants and equity in the formulation of the twelfth General Programme of Work and the proposed program budget for 2014-2015.

However, it is too early to see the way in which the Secretariat will translate the views of Member States expressed during the WHA into the General Programme of Work. During the 128th EB and 64th WHA deliberations on WHO reform, the DG and the documents prepared by the Secretariat revealed the intention of mainstreaming the social determinants of health along with other cross cutting issues like gender, and human rights. Several Member States and civil society organisations believe that the mainstreaming strategy will result in elimination of existing specific departments in WHO working on these issues and the eventual marginalisation of these themes in the WHO.

A public health expert commented to this writer that the proposed categories are a good work programme for a hospital but not for an international organisation like the WHO. According to many public health experts the WHO should not limit its functions to only disease categories and should address the determinants of health.

Governance Reforms

The WHA decision contains seven decision points (paragraphs 2-9) related to the reforms of WHO governance. The firstdecision point states: “to strengthen, streamline and improve the methods of work and roles of the governing bodies, which as adopted as a decision at the Special Session of the EB held in November 2011.”

The second decision point is on the scheduling of the governing body meeting. This decision points states to maintain the present schedule of the governing bodies meetings and return to the topic in January 2013. It also mentions presentation of a feasibility study on the possibility of shifting the financing year.

This decision point is based on an amendment proposed by the USA. The draft decision point contained four options on the schedule of the meetings of governing bodies. The first option proposed the status quo. The second option was to move the meeting of the PBAC and the EB to early February. The third option was to increase the interval between meetings of the PBAC and sessions of the EB. The fourth option was to revise the annual cycle to start with the Regional Committee in January and end with the WHA in the last quarter of the year.

The rationale behind the fourth option was to facilitate the proposed finance dialogue (donor conference) between EB and WHA. However, observers point out that this proposal may generate more donor dependency because donors would be able to set the priority if donor conference is held prior to WHA by committing finance and effectively this undermines the role of WHA and Member States.

The third decision point endorses four proposals for enhancing the alignment between the Regional Committees (RC) and the EB. These proposals are: (i) asking comments and inputs from the Committee on all global strategies, policies and legal instruments such as conventions, regulations and codes; (ii) the WHA seeking inputs from different regions through the Committee; (iii) submission of routine reports from thechairperson of the Committee; (iv) permitting the Committee through their summary reports to the EB to propose agenda items as well as draft resolutions to the EB.

The Constitution of the WHO under Article 50 already permits the Regional Committee to perform “such other functions as may be delegated to the regional committee by the Health Assembly, Board or the Director–General”. Hence, many feel that the second proposal is redundant. There is also concern regarding the overburdening of the Committee’s agenda, which is primarily to formulate policies governing matters of an exclusive regional character and also to supervise the activities of the regional offices under the WHO Constitution. Observers also point out that without amending the rules of procedures of the EB, theRegional Committee cannot directly propose agenda items to the EB.

The fourth decision point endorses three proposals for increasing harmonization across the Regional Committee in relation to nomination of regional directors, the review of credentials and participation of observers.

The first proposal states that RCs that have not yet done so in line with principles of fairness, accountability and transparency, establish criteria for the selection of candidates and a process for the assessment of all candidates’ qualifications. The second proposal calls on the RCs to review the credentials of Member States. The third proposal is regarding the participation of observers and asks the RCs that do not have mechanism for the participation of observers to ensure that there is an explicit procedure that enable them to invite observers toattend their sessions, including as appropriate, Member States form other regions, intergovernmental and nongovernmental organizations.

The fifth decision point is to note the revised terms of reference (ToR) of the PBAC to be presented to the 131st session of the EB for adoption. As mentioned above, the EB adopted the changed ToR for PBAC in line with the WHA decision. However, doubts were raised on the propriety of empowering the EB to decide on the revised ToR because under the revised ToR some functions of the EB weredelegated to the PBAC. Hence, many feel that it should have been done at the WHA instead of the EB.

The sixth decision point is to endorse three proposals for streamlining the decision making aswell as to improve the governing body meetings. The first proposal empowers the officers of the EB to review items for inclusion on the Board’s agenda using criteria including those setting in the General Programme of Work.

The second proposal is that the EB considers the amendment of its rules and procedures in order to manage the last submission of the draft resolutions.

The third proposal is about making better use of the Chairman’s summaries, reported in the official record with theunderstanding that they do not replace formal resolutions.

Proposals one and three generate concerns. The first proposal is an amended proposal of that found in paragraph 43 of A 65/5. Paragraph 43 proposed four proposals to streamline the governing body meeting. The first proposal states that that “ for officers of the Board to use criteria, including those used for priority setting in the GPW, in reviewing items for inclusion on the Board’s agenda on the basis that fewer items would result in fewer related resolutions and decision”. Even though the proposal in the agreed decision does not contain the last part of the proposal in paragraph 43 i.e. “on the basis that fewer items would result in fewer related resolutions and decision”, observers point out that the decision gives a filtering power to the EB to screen the agenda and will compromise Member States’ right to propose an agenda item or resolution or both to the EB meeting.

Another concern is related to the third proposal i.e. make better use of the Chairman’s summaries reported in the official record, with the understanding that they do not replace formal resolutions. This proposal is an amended version of what is contained in paragraph 43 of A 65/5 and the draft decision circulated by the Secretariat. Paragrapgh 43 of 65/5 proposal states “to make more use of the Chairman’s summaries, reported in the official records, in cases where a formal resolutions is not deemed to be essential”. The final proposal as contained in the decision is an amended proposal per the amendment proposed by Iran. It does guarantee that Chairman’s summaries do not replace the formal resolution but the real issue is with regard to the legal enforceability of Chairman’s summary. Unlike the decision or resolution there is no clarity regarding the chairman’s summary within the WHO context. Hence the Chairman’s summary may be ignored or bypassed by the Secretariat, as happened in the case of the Chairman’s summary on reform at the 130th EB session in January 2012, which is explained later.

The eighth decision point requests the DG to propose options on possible changes of rules of procedures of the governing bodies to limit the number of agenda items and resolutions and also streamline the reporting and communication with member States. The ninth decision point requests the DG to present two draft policy papers and submit them to the EB.

The first is on WHO engagement with nongovernmental organizations to be submitted to the 132nd session of the EB in January 2013. The second is on the WHO ‘s engagement with the private commercial entities to the 133rd session of the EB in May 2013. Further, the DG is also to present a report on WHO’s hosting arrangements of health partnerships and proposals to harmonizing work with hosted partnerships, to the EB in its 232nd session in January 2013.

The decision sets out five guiding principles for the DG to carry out the abovementioned work:

1. The intergovernmental nature of WHO ‘s decision making remains paramount;
2. The development of norms, standards, policies and strategies, which lies at the heart of WHO’s work , must continue to be based on the systematic use of evidence and protected from influence by any form of vested interest;
3. The need for due consultation with all relevant parties keeping in mind the principles and guidelines laid down for WHO’s interactions with Member States and other parties;
4. Any new initiative must have clear benefits and add value in terms of enriching policy or increasing national capacity from a public health perspective;
5. Building on existing mechanisms should take precedence over creating new forums, meetings or structures with a clear analysis provided of how any additional costs can lead to better outcomes.

This decision clearly bypasses the Chairman’s summary of EB 130, which states that “Further discussion will be required on WHO’s engagement with other stakeholders, including different categories of nongovernmental organizations and industry, and the proposals to review andupdate principles governing WHO relations with nongovernmental organizations and to develop comprehensive policy frameworks to guide interaction with the private-for-profit sector, as well as not-for-profit philanthropic organizations. These will be held during the 65th World Health Assembly.”

The decision point totally ignores the consultation process although on India’s insistence the need for consultation is mentioned as a guiding principle. Nevertheless, it is unclear how this principle will be translated in implementation.

Further, the Chair’s summary also mentions a policy for engagement with not for profit philanthropic organizations. Thisaspect is completely missing form the decision.

Lastly, this decision point containing policy framework for the engagement of NGOs, private sector as well as the review of hosting partnership does not envisage any role for the WHA in the adoption of the policy. These policy documents and study will be submitted only to EB for its decision.

Managerial Reforms

The decision on managerial reform contains 9 decision points. The first decision point is to note progress made in relation to strengthening technical and policy support to all Member States.

The second decision point is to note the progress made in relation to staffing policy and practice. However, the details of the reforms in this area are mentioned in Paragraphs 78-87 of A65/5) that deal with reforms in the human resources area under three headings (staff development, flexible workforce and mobile workforce). The proposals on human resource suggest flexible staff including the outsourcing of WHO work. These proposals raise concerns over quality, accountability and transparency in the human resource policy. Further, it may also raise serious conflict of interest issues. Outsourcing and flexible human resource may compromise the quality of human resources. Further it may potentially disrupt the equitable geographical distribution of jobs, as short-term contracts will attract staff largely from the Euro region. However, the WHA has not been given any role in the decision-making.

The third decision point requests the DG to further develop the proposals to increase the transparency, predictability and flexibility of WHO’s financing based on the guidance received from the 65th WHA and present it to the 132nd EB in January 2013. Predictable and flexible finance is cited as the primary rationale for WHO reform. However,there is no role given to the WHA on this matter.

Further even though the 131st EB decided to convene an extraordinary session of the PBAC open to all Member States to discuss transparency, accountability and predictability and flexibility of the WHO financing, theconcerns remain valid because PBAC membership is limited to twelve Member States and other Member States participate as observers without voting rights. This asymmetry in the participation affects the outcome of the process.

Further, the Secretariat has ignored the Chairman’s summary. The Chairs’ Summary of the 130th EB required the Secretariat to further elaborate the proposals for the predictable financing mechanism and present it to the 131st session of the EB through the PBAC. However no proposals on financing were presented to the PBAC or to the 131st session of the EB.

The fourth decision point is to note progress on developing WHO’s internal control framework, and the fifth is to note the progress made in the areas of accountability, riskmanagement, conflict of interests and the establishment of an ethics office.

In the abovementioned decisions point on internal control framework and accountability including conflict of interest, there is no role envisaged for the WHA and no road map of the process is mentioned.

The Sixth decision point is to note that the draft WHO evaluation policy would be presented at the EB 131st immediately after the May 2012 WHA and which was then adopted by the EB.

The seventh decision point is to note the findings and recommendation of the stage one evaluation report presented by the External Auditor.

The eight decision point is to note the proposed ToR for the second stage of independent evaluation as outlined in the report of the external auditor and to request the DG to provide a paper on the specific modalities of this evaluation for consideration of the 132nd session of the EB in January 2013.

Further, the decision point nine notes the progress of strategic communications. It endorses the decisions and conclusions reached by the EB at its special session withregard to organizational effectiveness, alignment and efficiency, financing of the organization; human resources policies and management; result based planning, management and accountability and strategic communications.

Lastly, paragraph 19 of the decision requests the DG to report through the 132nd EB to the 66th WHA on the basis of a monitoring and implementation framework on progress in the implementation of WHO reform.

Generally the quality of discussion on WHO reform during the WHA was inadequate due to several factors. First, there was no indication given to Member States on the structure of discussion. As a result many Member States prepared for four rounds of discussion viz. general comments, comments on reform proposal on programme and priority setting, governance and management. However, when the agenda item started certain countries sought clarifications on the structure of discussion and finally agreed to combine general comments and comments on priority setting, and made separate comments on the governance and management reform.

One developing country delegate told the writer that the intervention of his delegation had to be compressed into one and half page form the original length of five pages.

Moreover the Secretariat presented a vague draft resolution on the topic on the morning of the discussion, leaving member states little time to discuss changes within the regional groupings and propose alternative language.

While the discussion on reform was progressing, a parallel drafting group was convened to draft a resolution to spell out the follow up activities of the Report of the Consultative Expert Working Group on Research and Development Financing andCoordination. As a result there was hardly any deliberation on the reform proposals on governance and management contained in A 65/5.