[Ip-health] WHO negotiations to continue on FENSA

K.M. Gopakumar kumargopakm at gmail.com
Sat Jul 25 02:01:15 PDT 2015


*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.

*Official Relations *

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 44*bis*.  Paragraph 44 proposes the disengagement of WHO
from the arms and tobacco industry. However, there is no consensus on this.
Paragraph 44*bis* 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.+

http://www.twn.my/title2/health.info/2015/hi150704.htm



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