[Ip-health] WHO: Executive Board adopts work plan on next FENSA negotiations

Mirza Alas mirzalas at gmail.com
Wed Feb 10 08:32:40 PST 2016

*Title :* TWN Health Info: WHO Executive Board adopts work plan on next
FENSA negotiations
*Date :* 10 February 2016


TWN Info Service on Health Issues (Feb16/01)
10 February 2016
Third World Network

*WHO: Executive Board adopts work plan on next FENSA negotiations*

Geneva 10 January (Third World Network*) – The 138th session of the World
Health Organization’s Executive Board meeting adopted the work plan on the
next negotiations on the WHO’s Framework of Engagement with Non-state
Actors (FENSA).

The Executive Board (EB) extended the mandate of the Open-Ended
Intergovernmental Meeting (OEIGM) on FENSA negotiations that will meet next
on 25-27 April.  This is expected to be the final session after several
years of often contentious and difficult negotiations.

The Chair of the OEIGM (Argentina), who proposed the decision to the EB
also informed the Board that the next meeting would find a consensus on
FENSA and the accompanying resolution for adoption by the World Health
Assembly later this year. Sufficient time would be given to the negotiation
of the FENSA text and the Secretariat’s document on implications on
implementation of FENSA.

Even though the EB discussed FENSA on 26January the decision was adopted on
the last day of the EB session i.e. 30 January. The decision was delayed
due to the recommendation of the Program Budget and Administration
Committee (PBAC).

The 23rd meeting of PBAC (21-22 January) considered the Report of the OEIGM
and made the following two recommendations to the 138th EB:

   - Endorse the request of the Open-ended Intergovernmental Meeting to
   extend its mandate, so that it may resume its work for a final
session from 25
   to 27 April 2016, in order to submit a consensus text of the draft
   framework and a draft resolution to the Sixty-ninth World Health Assembly
   through the Programme, Budget and Administration Committee; and

   - Request the Secretariat to present an objective and balanced report on
   the implications for WHO of the implementation of the framework, well in
   advance of the final session.

Even though there was no opposition during the EB discussion on FENSA on
26January, there is no consensus on the sequencing of discussion. Many
developing countries would like to finish the negotiation on the draft
FENSA text prior to the discussion on the implications for WHO of the
implementation of the framework. Developing countries believe that any
prior discussion on the implications of FENSA implementation is a strategy
to prevent robust regulation of the engagement of non-state actors (NSA)
with WHO.  Zambia, during the discussion, clearly stated that any
discussion on the Secretariat’s paper should take place only after the
conclusion of negotiations of the FENSA document.

The Chair of the OEIGM carried out informal consultations with Member
States to reach a consensus on the language of the EB decision point that
was then presentedon Saturday (30January), the last day of the EB session.

According to observers, the recommendation of the PBAC to present an
objective and balanced report on the implications for WHO of the
implementation of the framework, well in advance of the final session, was
a surprise. According to existing practice Member States in the normal
course of work do not amend the agreement reached during an open-ended
meeting. The report of the OEIGM does not contain any recommendation to the
EB to prepare such a document. Therefore the PBAC recommendation
effectively reopened the consensus reached in the OEIGM.

The report of OEIGM states: “The meeting requests the 138th session of the
Executive Board to extend its mandate, so that it may resume its work for a
final session between the Executive Board and the Sixty-ninth World Health
Assembly, in order to submit a consensus text of the draft Framework and a
draft resolution to the Health Assembly, in accordance with resolution

The recommendation of the PBAC, a small body constituted from the EB, thus
overruled the decision of the OEIGM.

Further, the resolution adopted at the 68th World Health Assembly (WHA) in
May 2015 requested DG to report to WHA through EB.  Operational Paragraph
2(2) of WHA 68.9 states: “ … to submit the finalized draft framework of
engagement with non-State actors for adoption to the Sixty-ninth World
Health Assembly, through the Executive Board at its 138th session”.  There
is no such recommendation in the resolution to submit the report of OEIGM
to the PBAC.

On the decision of the 136th EB (in 2015) that requested submission of the
report of the OEIGM held on 30 March to 1 April 2015 to the WHA through the
PBAC, the text reads: “… submit, based on the outcome of the above
intergovernmental meeting, a revised version of the Framework of Engagement
with non-State actors to the Sixty-eighth World Health Assembly through the
Programme, Budget and Administration Committee”.  This mandate given by EB
ended after the adoption of WHA 68.9 in May 2015.

The United States of America (USA), Sweden, Canada, South Africa, France,
Norway, Monaco, Panama, Brazil, Switzerland and Algeria made interventions
after the proposal from the Chair.  *The USA* welcomed the proposal and
stated that the Secretariat’s document to the WHA on financial implications
of implementation of FENSA should be a detailed document and not the usual
document attached to a resolution.

*Sweden* stated that it is important to get a thorough understanding on the
implementation of the framework and its impact. Further, Sweden asked the
Secretariat to make the document available at least four weeks before the
OEIGM meeting in April 2016. It also asked the Secretariat to organise a
briefing for the missions in Geneva on the document at least one week
before the OEIGM meeting.

*South Africa on behalf of the African Region* reaffirmed their commitment
for the finalisation of FENSA and fully supported the Chair’s draft
decision. Further, it also stated that the African region is not in support
of reopening of the green text, which has already been agreed in the past
round of negotiations.  (Text highlighted in green indicated consensus from
the previous negotiation session.)

*Norway* repeated their position on the implementation of FENSA, that
implementation of FENSA is an issue that cannot only be addressed through
the negotiation on the resolution for the adoption of FENSA. It made it
clear that Norway would address implementation as an issue in the context
of the FENSA document.  Further Norway stated that it is looking at FENSA
as an instrument of accountability therefore it was not in a position to
give a large amount of flexibility in its implementation and wanted the
Secretariat to implement FENSA in full. Flexibility in the implementation
of FENSA would not serve the purpose of accountability, said Norway, adding
that the words ‘objective’ and ‘balance’ meant that the Secretariat should
give correct and factual account of the implications of implementation of
FENSA at all three levels of the WHO. The word balance does not mean that
half of the document should speak on the positive aspects of FENSA
implementation and the other half on the challenges of implementation.

*Brazil *recalled that the suggestion of balance came from Brazil and
stated that it is important to finish the work of FENSA before getting into
protracted discussion on the cost of implications of implementation of
FENSA.  Further, it stated that the word balance means an attempt to get
from the Secretariat not a negative view but a positive and constructive
view on the implementation of the framework. Brazil also suggested the
possibility of overhead charges to cover the cost of due diligence
activities. It added that Brazil does not want to see a listing of
obstacles that would indicate it is unviable or impossible to implement

*Switzerland *reacted by saying the word balance is attached to a political
document and they expect a mathematical or technical document. According to
Switzerland the balance between negative and positive aspects does not
matter and it expects a factual and objective document.  Further
Switzerland said it is in a difficult position to further greening of FENSA
text without having the Secretariat’s document. Therefore it is not in a
position to conclude the negotiation without the information on
implementation.  Switzerland also said that it was mistake to green the
text in a blind way without understanding the implication on implementation

The Chair twice reminded Member States after the intervention of Norway and
Switzerland to confine their interventions only on the future process and
not on the substantial issues.

During the discussion on 26January many developed countries set various
conditions for the adoption and implementation of FENSA. Primarily most of
the developed countries intervened to stress that they would like to
evaluate the implications on implementation of FENSA and the resources
required.  Countries such as Norway and Germany wanted a discussion on the
implications on and resources for implementation of FENSA at the next
meeting of the OEIGM in April.

Developed countries also want to suspend the application of FENSA rules
while responding to emergencies.  Further, developed countries from Europe
insisted that FENSA should be applied in all three levels of the
Organization as a precondition for the adoption of FENSA. Member States of
PAHO (Pan American Health Organization that serves as WHO’s regional office
for the Americas) are believed to have circulated a paper seeking some
exceptions for the implementation of FENSA. A paragraph that suggested to
carve out non-application of FENSA during emergency operation was deleted
during the 7-9 December 2015 meeting of the OEIGM.

On the other hand, many developing countries stressed that such a report
will prejudge the outcome of the final negotiations and will further
complicate the process.  During the last round of negotiations held in
October 2015 a non-paper presented by the Secretariat on the implications
of FENSA caused the outrage of over 60 civil society organizations that
sent a letter to the WHO Director-General protesting that this undermines
the negotiations (http://www.twn.my/title2/health.info/2015/hi151017.htm)
and a few developing country delegates also told Third World Network that
the non-paper had only presented assumed implications with little evidence
and was unbalanced. (http://www.twn.my/title2/health.info/2015/hi151011.htm)

Even though countries have managed to agree on a significant proportion of
the text, key issues remain unresolved and this was clearly noted in the
statements with countries like Germany clearly stating that FENSA should
not unintentionally impose rigidity and FENSA is in no way going to impede
WHO’s work during health emergencies. This position from Germany reflects
one of the issues that the negotiations have not been able to resolve.
Currently the FENSA text proposes that in the case of emergencies there
should be a waiver in the implementation of the framework. However, many
countries have questioned how this waiver will be implemented with Member
States requesting that at least they should be notified when such a waiver
is used. Another important aspect is what constitutes an emergency and how
this will be defined.

The other main issue that still needs to be resolved is Conflict of
Interest (COI) and its management. Developing countries such as India and
Egypt have been calling for a comprehensive policy that will address COI
since WHO currently does not have one. While the majority of countries in
their statements agreed that it is important to manage conflict of
interest, the way in which this will be addressed is still unclear.

A similar demand was made by civil society organizations in a letter
addressing the EB Member States on January 26 asking them to “do an
in-depth review of the adequacy and implementation of existing relevant WHO
policies. In particular the WHO Guidelines on Interaction with Commercial
Enterprises and the 2010 policy on WHO’s Engagement with Global Health
Partnerships and Hosting arrangements in order to establish whether FENSA
strengthens or weakens safeguards. Start work on a comprehensive and
effective COI policy for WHO,  including  whistleblower protection,  as
 well  as    other  such  essential  safeguards addressing  risks  of
 secondments, and the ‘revolving door’.  Such a policy is a prerequisite,
before any rules on interactions with any external actor are framed and

It is clear that much progress has been achieved in certain areas of the
framework but concerns remain about whether the forthcoming negotiations
will be enough to resolve key issues that are at the center to protect the
integrity and independence of the WHO.

Below are highlights of interventions by Member States made on 29 January.

*Egypt* said that on behalf of the Eastern Mediterranean (EMRO) region
stressed that progress has been made and that finalizing this document
would be an important step on the way forward to the WHO reform. It also
pointed out that there is a need to ensure the integrity and independence
of the WHO as in spite of progress, there are remaining questions: FENSA in
the context of emergencies and the need for a policy on COI. Egypt asked
Member States not to be too fast and pay attention.

*The Dominican Republic *on behalf of the Americas welcomed the significant
progress achieved on the framework and stated that there is need to engage
with non-State actors but this must be conducted within a principle of a
clear framework and rules.

*The Gambia* for theAfrican region appreciated the progress made and hoped
for a consensus to be reached on the document.It agreed with the
continuation of the mandate of the Committee to end the discussion on FENSA
before we discuss implications of implementation of FENSA.  The Gambia did
not support the PBAC proposal and the European Union (EU) about a paper on
implications as this will take away from discussion on FENSA.

*Brazil *fully supported the intervention of the Dominican Republic on
behalf of Americas, and stressed the need to bring transparency and
accountability to the dialogue of non-State actors. Clear and objective
rules are the best platform to support the collaboration with NSA without
conflicts of interest, said Brazil.  It highlighted the following issues:

   - The ban on secondments from the private sector;
   - Implementation of FENSA with periodical reports of implementation and
   a review process aiming at the continuous improvement.

Brazil supported the extension of the OEIGMmandate, the formal meeting next
April, and hoped for the draft to be finalized and to be approved at the
next WHA.

*India* said that the recommendation of a paper on implications will
complicate the ease of reaching consensus on the FENSA document itself. The
open-ended meeting envisaged in 2016 gives hope for consensus on the
document. What needs to be agreed is that a consensus should not be
compromised by conflict of interest.

*Iran* supported extension of the OEIGMwork and looked forward to an agreed
FENSA, and is willing to participate in all discussions regarding it. It
wants to protect WHO from all inappropriate influence, stressing that it
does not want to compromise WHO’s reputation. Iran wants to avoid conflict
of interest, a WHO with transparency, accountability, inclusiveness and
integrity, emphasizing that this is about public health.

*Zambia* aligned with the Gambia and reminded Member States that the
involvement of the Secretariat in the discussion of FENSA with a paper on
implications could delay the negotiations.

*Saudi Arabia* expressed the need to have a hard look to try to avoid any
type of conflict of interest and the influence of private organizations. It
is in favor of the renewal of the mandate of the OEIGM, under the
chairmanship of Argentina, in order to achieve the securing the functioning
of the WHO.

*China* expressed its willingness to participate in the April meetingand
hope to have a draft resolution for the WHA. It supports the Secretariat
for providing costing and planning of the implementation in advance of the
WHA, for discussion.

*Albania* welcomed the work of the Intergovernmental Open-ended Group and
highlighted that this draft is the result of a consultative process. There
are still remaining questions to settle, i.e. philanthropic organizations
and accreditations procedures. It is in favor of the continuation of the

*Malta** speaking on behalf of the EU and its Member States* thanked
Argentina and all the Member States that were engaged in the process on
negotiating the framework. Complicated issues such as WHO’s engagement with
NSA are still in question, it said, also expressing  concern on the broader
concerns of FENSA. Until now there are no clear documents presented on the
financing of the FENSA program, it added, and recommended the submission of
a paper on the issues raised for further discussion.

*The USA* aligned with the Dominican Republic on behalf of the Americas,
and fully supported both recommendations of the PBAC: the recommendation of
the extension of the mandate, and the recommendation of a report of
implementation of the framework.  It pointed to the importance for the body
to refocus on the need of strengthen WHO’s ability to engage with NSA. The
USA said that WHO needs multi-stake actors, including for non-communicable
diseases, the road safety declaration, the declaration on social
determinants of health, the Sustainable Development Goals (SDGs).

*Sweden *aligned with Malta for the EU, and went on to speak on behalf of
Latvia, Lithuania, Sweden and Denmark. It said that the SDGs call for more
multi-stakeholder partnerships to fulfill them, and that the WHO needs them
in order to deliver the service that our citizens and governments are
expecting. It also called for a strong framework of engagement with NSA in
a clear and transparent way. It supported the April meeting, hoping to
finalize the agreement by this year’s WHA that will benefit WHO and global
health. Sweden said that there is need to be clear about the consequences
of FENSA for WHO’s work in emergencies, practical and resource
implications, as well as uniform applicability on the levels of WHO.

*Germany* fully aligned with Malta and strongly supported the
recommendations of the PBAC.  The point of departure, it said, is that WHO
needs to adequately engage all its actors but protect its integrity too. It
further said that FENSA should not unintentionally impose rigidity, and
should in no way impede WHO’s work in health emergencies.

 (* With inputs from the People’s Health Movement Watch Team)

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