[Ip-health] TWN Helath Info: WHO Secretariat “scare mongering” on FENSA

Mirza Alas mirzalas at gmail.com
Mon Oct 19 04:45:38 PDT 2015

*Title :* TWN Helath Info: WHO Secretariat “scare mongering” on FENSA
*Date :* 19 October 2015


TWN Info Service on Health Issues (Oct15/10)
19 October 2015
Third World Network

*WHO:  Secretariat “scare mongering” on FENSA *

Geneva, 19 October (K M Gopakumar) – There are concerns that the World
Health Organization Secretariat is scare mongering on the Framework of
Engagement with Non-State Actors (FENSA) by providing a list of intended
and unintended consequences of FENSA implementation through a ‘non-paper’.

The paper dated 14 October 2015 states that FENSA could have “detrimental
consequences on the work of WHO” without giving any clear examples to back
up many of the risks listed in the paper.

The paper is prepared by the Secretariat for the consideration of an
informal meeting of Member States on FENSA taking place on 19-23 October at
the WHO Headquarters in Geneva.

Apart from the introduction the paper contains three sections viz. intended
consequences of FENSA implementation, risks of unintended consequences of
FENSA implementation, and possible mitigation measures to limit unintended
negative consequences of FENSA.

In the introduction it states: “If an engagement management policy and
system is too cumbersome for non-State actors and the Secretariat, it could
lead to an important reduction of WHO's engagement with non-State actors
and thereby hamper WHO's ability to fulfil its mandate”.  According to the
Secretariat on FENSA in its current form, “there is a significant risk of
an unintentional restriction of WHO’s engagement with the non-State actors”.

Under the intended consequences of FENSA implementation the Secretariat
listed two issues. One is the additional workload on the Programme Budget
and Administrative Committee (PBAC) due to three new agenda items related
to PBAC.  Another is the additional financial cost for the implementation
of FENSA. The cost breakdown is: USD 734,000 for the building and
maintenance of a register of non-state actors (NSA) with USD 76,000 for
annual maintenance, USD 100,000 training cost of launching the NSA register
and FENSA, USD 50,000 in 2016 for internal and external communication of
change, and USD 30,000 for the cost of a possible extra day of PBAC meeting
in 2017.

The third part of the Secretariat’s document i.e. the risks of unintended
consequences of FENSA implementation, listed out two types of risks viz.
the risks involved in the implementation of already agreed provisions, and
the risks of implementation of certain proposals which are currently in
brackets due to lack of consensus.

Interestingly the paper does not provide any details regarding the benefit
of FENSA to WHO except for the following remark: “Implementing FENSA will
have clearly foreseeable and intended consequences, including the fact that
it will put WHO's engagement with non-State actors on a more solid basis
and strengthen the management of risks of engagement”.

*Risks of FENSA Implementation*

The Secretariat identifies several risks related to the
transparency-related provisions of FENSA such as: “Transparency beyond a
certain level could lead to the unwillingness of some key actors to engage
with WHO and expose WHO to the risk of litigation and claims to justify in
details each due diligence and risk assessment. While a transparent process
is in principle in the interest of the Organization, there are cases where
some aspects of transparency may conflict with legal undertakings entered
into by WHO with regards to accessing or disclosing certain information
such as trade secrets or could expose some non-State actors to major risks
such as during conflict and civil war situations.”

According to the Secretariat, “If all aspects of FENSA had to be rolled-out
at once, the system would likely collapse or create major bottlenecks and
delays in decision making, which may lead to major operational, financial
and reputational ramifications for the Organization”.

Another risk of FENSA identified by the Secretariat is that “using the full
FENSA system during emergencies could jeopardize WHO’s important role
currently being strengthened through emergency reforms”.

According to the Secretariat, there is also the “high risk that WHO could
not be able to perform its normative and technical functions to meet the
expectations of Member States and other stakeholders, and could no longer
access most up-toญdate knowledge and expertise.”  This risk refers to
engagement of individuals employed by or linked with a NSA that is subject
to due diligence and risk assessment under FENSA, even though FENSA does
not apply to individuals.

The following Secretariat-identified risks are related to those proposals
which are yet to be agreed by Member States:

ท      “A ceiling of earmarked contributions would probably deter non-state
contributors from making such contribution and have important resource
mobilization implication.

ท      WHO could not perform its work on preparing norm and standards if no
experts connected to a non-State actor could be involved, since a large
part of the expert knowledge WHO needs is outside of state actors.

ท      An extensive interpretation of the non-engagement with the arms
industry could lead to important missed opportunities, such as engagement
with the IT sector on e-health and mญhealth, since most of companies
operating in this field have either close ties with defence industry or
have developed expertise, branches and subsidiaries in this area.

ท      Making full due diligence and risk assessment reports available may
put at stake WHO's reputation and may encourage non-State actors to press
charges against WHO and create major litigation risks and additional
workload for the Organization. This could also politicize the review
process which should be neutral.

ท      Publishing summary reports of due diligence and risk assessments
could also expose WHO to external criticism and complaints in case the
non-state actors concerned challenge its conclusions.

ท      If there are no more secondments from non-State actors to WHO, their
expertise will have to be found otherwise, which might prove difficult.

ท      A separate accreditation procedure in addition to the procedure for
accepting entities into official relations could create confusion and
uncertainties with regard to their respective procedures and would create
significant additional workload for governing bodies and for the
Secretariat to manage this separate procedure.”

*Possible Mitigation Measures*

The Secretariat has six proposals to limit the negative consequences of
FENSA. First, to allow a stepwise implementation of FENSA starting with
engagement involving the highest risks, such as financial contributions.
Secondly, a simpler procedure for minor engagement with very limited risks
for the Organisation. Thirdly, to make more explicit the authority of the
Director-General to decide in situations where FENSA procedures and
provisions would be detrimental to the Organisation to suspend their
application. Fourthly, explicitly provide flexibility for the
implementation of FENSA. Fifthly, exclude emergency response from te
procedures of FENSA. Sixthly, just provide the name, address and webpage of
NSAs for the occasional attendance of meetings except those relevant for
the global normative processes.

Many observers and developing country Member States delegates termed the
Secretariat’s “non–paper” as an attempt of the Secretariat to prevent if
not kill a robust framework of engagement with NSA.

According to them there was no decision in the 2015 World Health Assembly
(WHA) to produce such a report.   Even though Malta had requested during
the adoption of the WHA resolution a report on practical and resource
implications of implementation of the proposed framework, there was no
decision in this regard at the WHA.

Further, an observer also pointed out that Malta requested the report for
the 138th Session of the Executive Board. However, the Secretariat prepared
the document very early for the consideration of this week’s informal
meeting. According to this observer circulation of the paper now is an
attempt to block a robust framework to regulate WHO’s engagement with NSAs.

Interestingly, the paper made many assertions related to the risks involved
in the implementation of FENSA but does not provide any examples to back up
its claim. For instance, the paper states “there are cases where some
aspects of transparency may conflict with legal undertakings entered into
by WHO with regards to accessing or disclosing certain information such as
trade secrets or could expose some non-State actors to major risks such as
during conflict and civil war situations”.  However, no examples have been
provided in the paper.

The paper projects a financial cost of USD 734,000 for building up and
maintenance of a register of NSAs.  It was the proposal of the Secretariat
itself to create a NSA register as part of FENSA. Now the Secretariat turns
around and projects it as a major reason for the financial cost.

Similarly, the Secretariat’s version of the FENSA text presented to the
Executive Board recommended a ban on staff secondment from NSAs. However,
the non-paper states that if there are no more secondments from NSAs to
WHO, “their expertise will have to be found otherwise, which might prove

It is also interesting that there are seven risks cited in the report that
are related to the proposals which are currently under negotiation, and
therefore the purpose of the paper appears to be to influence the
negotiations of the outcome.

The list of risks clearly shows that there is a clear alignment of the
views of the Secretariat with a few powerful developed countries who are
opposed to the adoption of those provisions.+

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