[Ip-health] TWN Info: WHO – Norway re-opens paragraph on due diligence and risk assessment of NSA

Mirza Alas mirzalas at gmail.com
Wed Apr 27 01:37:26 PDT 2016


*Title :* TWN Info: WHO – Norway re-opens paragraph on due diligence and
risk assessment of NSA
*Date :* 27 April 2016

*Contents:*

TWN Info Service on IP, Health and UN  Sust. Dev.
27 April 2016
Third World Network
www.twn.my

http://www.twn.my/title2/health.info/2016/hi160411.htm

*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 low 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.



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