[Ip-health] WHO – Norway proposal on emergency exception weakens FENSA rules

Mirza Alas mirzalas at gmail.com
Mon Apr 25 01:52:08 PDT 2016


*TWN Info Service on Health Issues (Apr16/07) 25 April 2016 Third World
Network*


http://www.twn.my/title2/health.info/2016/hi160407.htm



*WHO – Norway proposal on emergency exception weakens FENSA rules *

Geneva, 25 April (K M Gopakumar) – A new proposal from Norway on an
emergency exception to the application of the World Health Organization’s
proposed Framework of Engagement with Non-State Actors (FENSA) would
neutralise the safeguards.

The proposal provides the power to the WHO Director-General to not follow
FENSA rules while engaging with non-state actors (NSA) to respond to
emergency situations.  However, the broad scope of the word ‘emergency’
raises concerns that the objectives of FENSA would be undermined.  The text
proposed by Norway is a modification of a text negotiated in the informal
meeting of the Open-Ended Intergovernmental Meeting (OEIGM) on FENSA in
October 2015. Negotiations to finalise FENSA will take place on 25 to 27
May at the WHO headquarters in Geneva.

The Norway text reads:

“The Director-General in the application of this framework, while
responding to acute public health events described in the International
Health Regulations (2005) or other emergencies with health consequences,
will act consistent with the functions as described in the WHO
Constitution, bearing in mind the no-regrets principle. In doing so, the
Director-General shall have the flexibility in the applications of the
procedures of this framework as needed to fulfil WHO’s responsibilities in
this area. The Director-General will inform through appropriate means
including in particular written communication, [when he or she deems
necessary] [where applicable in advance, otherwise without undue delay]
when such a response requires exercise of flexibility and include summary
information with justification on the use of such flexibility in the annual
report in engagement with NSAs”.

The October OEIGM text reads:

[15bis The Director-General shall have flexibility in the application of
the procedures of this framework when responding to acute public health
events described in the International Health Regulations (2005) or other
emergencies with health consequences, consistent with the functions of WHO
as set out in the Constitution including article 2d thereof and without
prejudice to the principles identified in paragraph 6 of this framework.
[The Director General will include information on and provide justification
of use of such flexibilities in the annual report on engagement with
non-State actors.]
OR [The Director-General will inform Member States that flexibility has
been required if and when he or she deems necessary, and will include
summary information with justification on the use of such flexibility in
the annual report on engagement with non-State actors.]
OR [The Director-General will notify in advance all Member States about the
decision/action he or she deems necessary. In this regard, the
Director-General will provide summary information as well as justification
on the decisions/actions in the annual report on engagement with non-State
actors.]]


The central concern is around the scope of this exception as reflected in
both texts. According to the proposal the flexibility i.e. the right to
suspend the application of proposed FENSA rules while engaging with NSAs to
respond to emergencies would apply in two situations. First, the “acute
public health events described in the International Health Regulations” and
secondly, “other emergencies with health consequences”. The phrase “other
emergencies with health consequences” is too broad and gives a blanket
right to the Director-General to suspend the application of FENSA by citing
emergencies. This goes beyond the scope of emergencies referred to in WHO’s
Emergency Response Framework (http://www.who.int/hac/about/erf.pdf).

That framework grades emergencies into four categories based on the health
consequences of the event.  The grade definitions are as follows:

“Ungraded: an event that is being assessed, tracked or monitored by WHO but
that requires no WHO response at the time.

Grade 1: a single or multiple country event with minimal public health
consequences that requires a minimal WCO (WHO country office) response or a
minimal international WHO response. Organizational and/or external support
required by the WCO is minimal. The provision of support to the WCO is
coordinated by a focal point in the regional office.

Grade 2: a single or multiple country event with moderate public health
consequences that requires a moderate WCO response and/or moderate
international WHO response. Organizational and/or external support required
by the WCO is moderate. An Emergency Support Team, run out of the regional
office, coordinates the provision of support to the WCO.

Grade 3: a single or multiple country event with substantial public health
consequences that requires a substantial WCO response and/or substantial
international WHO response. Organizational and/or external support required
by the WCO is substantial. An Emergency Support Team, run out of the
regional office, coordinates the provision of support to the WCO.”

An observer points out that the IHR does not refer to “acute public health
events” –one of the proposed OEIGM options as well as the Norway modified
version refers to “acute public health events described in the
International Health Regulations”.

The IHR uses terminology such as “public health emergency of international
concern”, “public health risk” and imposes obligations on Member States
during “unexpected or unusual public health events”. Thus the words “acute
public health events described in the International Health Regulations” are
too vague and subject to broad interpretation.

One delegate told Third World Network that there are protracted crises that
will continue for many years, such as conflicts. Therefore it is important
that protracted kind of emergencies should be distinguished from short-term
emergencies such as natural resources that need swift actions. According to
this delegate, flexibility should not be applicable for protracted
emergencies.

TWN learned that some Member States also expressed their concern on the
phrase “no-regrets principle”. The no-regrets principle is referred in the
context of staff and financial resource mobilisation to respond to
emergencies. However, the principle has no direct link to safeguards on
engagement with NSAs.  The ERF defines no-regrets policy as: “At the onset
of all emergencies, WHO ensures that predictable levels of staff and funds
are made available to the WCO, even if it is later realized that less is
required, with full support from the Organization and without blame or
regret. This policy affirms that it is better to err on the side of
over-resourcing the critical functions rather than risk failure by
under-resourcing”. Thus the reference to no-regrets principle beyond the
resource allocation would raise serious concerns of conflict of interest.

The Norway text departed significantly from the OEIGM text of October 2015.
The October text provided flexibility to the WHO Director-General in the
application of FENSA rules to respond to emergencies. However, the
flexibility was conditional and did not allow the Director-General the
flexibility to compromise the principles identified in paragraph 6.

Paragraph 6 of the draft FENSA text states that WHO’s engagement with NSAs
is to be guided by principles, one of which states:  “ … protect WHO from
any undue influence, in particular on the process in setting and applying
policies, norms and standards”. The Norway text removes the reference to
Paragraph 6. As a result the flexibility may even allow WHO to engage NSAs
for norms and standard setting activities which may compromise the
Organization’s integrity and independence.

Another contentious issue is the reporting obligation on the part of the
Diector-General while using flexibilities. The Secretariat is to report to
Member States only after the exercise of the flexibilities through the
Director-General’s report to the Executive Board on engagement with NSAs. A
few Member States are worried that such reporting would escape the
attention of Member States during the Executive Board meeting, and they
therefore require the Secretariat to report on the exercise of the
flexibilities prior to the use of such flexibilities. These Member States
are demanding communications from the Director-General prior to the use of
flexibilities and not the prior permission to use the flexibilities. This
would help Member States to seek further explanation during the Executive
Board meeting if required.

Developed countries, especially from the European Region, are increasingly
demanding flexibilities in the application of FENSA as a condition for the
finalisation of the framework. According to these countries, engagement
with NSAs especially the private sector is critical for effective response
to emergencies. However, the response of WHO’s Emergency Risk Management
(ERM) division to an external auditor’s survey reveals that there was no
such reported engagement with private sector entities in 2015 with respect
to WHO’s involvement in emergency response. The survey reveals that in 2015
the engagements were restricted to participation, resources, technical
collaboration and evidence.  The main mode of engagement was participation,
wherein 49 NGOs participated in 25 meetings at the headquarters level and
64 meetings at the country level.  Six academic institutions participated
in 25 meetings at the headquarters level and an unknown number of meetings
in 24 countries. Four philanthropic institutions participated in meetings
as standby partners and WHO received funds from two philanthropic
foundations. In 2015 WHO also distributed funds to 75 NGOs, and had 16
technical collaborations with 3 NGO standby partners.

According to an observer, to seek emergency flexibility without safeguards
is an effort to facilitate private sector participation in emergency
response. Traditionally the participation of the private sector in
emergency response has been confined to resource mobilisation and
communication strategies. However, for nearly a decade or so now the
private sector has been seeking new opportunities in emergency response
situations.  Various reports by think tanks and business lobby groups such
as the World Economic Forum (WEF) are lobbying for the greater role of the
private sector in emergency response.

For instance, a paper by the UK’s Overseas Development Institute (ODI)
states: “Entire elements of humanitarian action, including cash transfers,
telecommunications and logistics, have been transformed as business have
become increasingly involved. Affected populations increasingly expect aid
agencies to provide assistance through local markets rather than serving as
frontline aid providers”. (
http://www.odi.org/sites/odi.org.uk/files/odi-assets/
publications-opinion-files/9078.pdf)

In 2007, WEF in collaboration with the UN Office for the Coordination of
Humanitarian Affairs (OCHA) developed guiding principles for public–private
collaboration for humanitarian action. This guideline does not offer any
insight to address the risks of private sector engagement in humanitarian
responses. For instance, Principle No. 7 states: “Both parties should
establish a clear separation between their divisions managing
public–private partnerships for humanitarian action and those responsible
for procurement. This does not preclude private sector actors from
participating in procurement processes, nor does it preclude them from
perceiving a business case for their engagement in philanthropic
partnerships …”

A weak and ineffective caveat completes this principle: “That being said,
their collaborative efforts with the humanitarian community to alleviate
human suffering should not be used for commercial gain.”
(
http://www.un.org/partnerships/Docs/Principles%20for%20Public-Private%20Collaboration%20for%20Humanitarian%20Action.pdf
)

The partnership approach is pushed by various panel reports of the UN
(almost always initiated by the UN Secretariat) and other intergovernmental
organisations. Interestingly these reports never spell out details on the
risks involved in private sector participation in emergencies.

The January 2016 report of the UN Secretary-General’s High Level Panel on
Humanitarian Financing that focused on the financing gap states: “Beyond
governments, the humanitarian community must harness the power of business
to deliver its key skills and capabilities. Business is still a modest
factor in humanitarian activities, yet has the creativity and capacity at
scale to provide new solutions to risk management, support aid delivery,
create jobs, and modernise transparency and accountability. Involving staff
in humanitarian action is also motivational, and companies need to be
encouraged – from insurance and digital cash to logistics and
telecommunications – to get involved in providing their relevant skills and
capacity for delivering life-saving assistance. (
http://reliefweb.int/sites/reliefweb.int/files/resources/[HLP%20Report]
%20Too%20important%20to%20fail%E2%80%94addressing%20the%20
humanitarian%20financing%20gap.pdf
<http://reliefweb.int/sites/reliefweb.int/files/resources/%5bHLP%20Report%5d%20Too%20important%20to%20fail%E2%80%94addressing%20the%20humanitarian%20financing%20gap.pdf>
)

Similarly, the WHO appointed Advisory Group on Reform of WHO’s work in
outbreaks and emergencies also states: “WHO must look beyond its
traditional government ministry partners and develop an understanding of
the  entire ecosystem of partners on the ground, including the private
sector, civil society and faith-based groups’. (
http://www.who.int/about/who_reform/emergency-capacities/advisory-group/second-report.pdf?ua=1
)

However, many experts are of the view that private sector engagement
without a proper framework and safeguards would facilitate the commercial
interest rather than public interest.

(See also TWN Info of 21 April 2016: WHO - Developed countries turning
against non-State actor engagement framework
<http://twn.my/title2/health.info/2016/hi160405.htm>.)



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