[Ip-health] Discussions Continue On How To Govern WHO Interactions With Outside Actors

K.M. Gopakumar kumargopakm at gmail.com
Mon May 2 02:37:12 PDT 2016

The World Health Organization interacts with a large number of actors aside
from governments, such as industry, philanthropic organisations, academia,
and civil society. With an eye to preventing undue influence on the work of
the organisation, member states have been trying to finalise a draft
framework on WHO interaction with those actors. This week, what was seen as
a last effort at reaching a consensual text did not quite meet the goal and
some additional informal discussions are expected to take place before the
annual World Health Assembly in late May.

The Open-Ended Intergovernmental Meeting on the draft framework of
engagement with non-State actors (FENSA) met from 25-27 April, with the
task of breaching differences on the draft framework and present a
consensus text and a draft resolution to the 23-28 May World Health
Assembly (WHA) through the Programme, Budget and Administration Committee.

The framework is part of the overall reform of the WHO, which started in
2010 <http://www.who.int/about/who_reform/chronology/en/>.

WHO members were expected to work from the latest version of the draft text
[pdf], attached to the meeting document, which has colour-coded text. The
text highlighted in green had been agreed upon, text in yellow was
non-consensual, and text not highlighted had not been considered yet.

A new confidential version
[pdf] of the text was issued at the end of the session showing the text as
it appeared on screen at 17:00.
[image: WHO Headquarter in Geneva, Switzerland. Copyright : WHO/Pierre

WHO Headquarter in Geneva, Switzerland.
Copyright : WHO/Pierre Virot

The majority of the text is, as it was, in green highlights, however some
paragraphs which were yellow or white now have been agreed upon.

For example, paragraph 46 was yellow and is now green, stating: “WHO does
not accept secondments from private sector entities.” A secondment is an
employee of an outside entity who is essentially “on loan” to WHO.

Also paragraph 69 on implementation has been fleshed out and appears to
have been agreed upon.

Previous 69bis read: [Consistent with the principles identified in
paragraph 6, this framework will be implemented in its entirety in a manner
which enhances WHO engagement with non-State actors towards the attainment
of public health objectives, whilst protecting and preserving WHO’s
integrity, independence, credibility and reputation.]

It now reads: “Consistent with the principles identified in paragraph 6,
this framework will be implemented in its entirety in a manner that manages
and strengthens WHO’s engagement with non-State actors towards the
attainment of public health objectives, including through multistakeholder
partnerships, whilst protecting and preserving WHO’s integrity,
independence, credibility and reputation;”

69ter reads: “The Director-General, in the application of this framework,
when responding to acute public health events described in the
International Health Regulations (2005) or other emergencies with health
consequences, will act according to the WHO Constitution (FOOTNOTE:
Including article 2(d) of the WHO Constitution) and the principles
identified in this framework. In doing so, the Director-General may
exercise flexibility as might be needed in the application of the
procedures of this framework in those responses, when he/she deems
necessary, in accordance with WHO’s responsibilities as health cluster
lead, and the need to engage quickly and broadly with non-State actors for
coordination, scale up and service delivery (FOOTNOTE: Taking into account
resolution WHA65.20 (WHO’s response, and role as the health cluster lead,
in meeting the growing demands of health in humanitarian emergencies)). The
Director-General will inform Member States through appropriate means,
including in particular written communication, 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 on engagement with non-State actors.”

However, paragraph 14 is still in yellow: “[The [Director-General] /
[Health Assembly] can [propose to] set up mechanisms for pooling
contributions from multiple sources, [including for private sector entities
whose business relate to that of WHO,] if the mechanisms are designed in
such a manner as to avoid any perceived influence from the contributors on
WHO’s work; if the mechanism is open to all interested contributors;]

Also appearing in green are paragraphs relating to technical collaboration
with the private sector, and philanthropic foundations.

*Next Steps*

According to a meeting document
[pdf] obtained by *Intellectual Property Watch*, member states are expected
to finalise paragraphs which are still open in the draft FENSA, including
paragraph 14 on private sector policy.

At the WHA, member states are expected to consider a number of paragraphs
which have been agreed upon (16, 17, 27, 32, 34, 35, 38 and 38bis), shown
in green in the text. For example, WHO’s involvement in meetings organised
wholly or partly by a non-State actor, risk management, and transparency.

The document also says that member states should finalise the draft
resolution at the WHA.

According to the document, the FENSA chair is to make a proposal on
paragraph 27 (Overarching Framework), 13(a) (Private sector policy), and 14
(private sector policy).

A conference paper is expected to reflect the outcomes of the informal
consultations between the end of this week’s meeting and the start of the
WHA, including proposals received on the draft resolution, according to the

WHA Committee A is expected to open the agenda item on 24 May (second day
of the weeklong meeting), so “that establishing a drafting group may be
considered.” notes the document.

*Divergent Reports on Implementation Implications*

One of the questions which kept discussions open are the possible
implications of the implementation of FENSA, according to sources.
Following a request from member states, the WHO secretariat issued a report
[pdf] in October on those implications.

According to several developing country sources, the report was criticised
as being overly negative.

The report stated that the proposed change in the work of WHO governing
bodies suggested by the FENSA draft would add additional agenda items to
the Programme Budget and Administration Committee (PBAC), which would have
to examine an annual report of the WHO Director General on WHO’s engagement
with non-state actors.

It also estimated costs, saying for instance that the cost for building up
and maintaining a system for the register of non-state actors would amount
to: Global engagement management (in 2015) would amount to US$ 734,000 in
start-up costs, and thereafter US$ 76,000 per year.

The report also said “it is expected that the major part of additional
workload will happen in technical unit and at country level. With thousands
of non-State actors WHO engages with and tens of thousands of engagements
per year, this workload is significant.”

“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,”
said the WHO report about unintended effects of the FENSA implementation.

In reaction, some sources told *Intellectual Property Watch*, developing
countries asked that the WHO external auditor also produce a report, which was
[pdf] in March (*IPW*, Public Health, 26 April 2016

In the view of some developing country sources, the external auditor’s
report gives a fairer evaluation of the implications of the FENSA

In its conclusions, the external auditor’s report said, “FENSA as an
overarching framework can already stand on its own and can be considered
for adoption, as it already embodies the strategic context of WHO on its
engagements with NSAs. Specific policy guidelines, however, need to be
separately provided to clarify the mechanism of the framework.”

Some developed countries have concerns about the lack of clarity on the
cost of the FENSA implementation, some sources told *Intellectual Property
Watch*. According to civil society sources, some European countries are
conditioning the adoption of FENSA to more information, in particular on

According to the WHO, the organisation “can receive three kinds of
resources: money, goods and services (…) Receiving money is referred to as
financial contributions, receiving goods and services can be either
procurement when they are bought on the market for market prices or in-kind
contributions when they are received free of charge or for an amount which
would not be available under market conditions. ”

The applicability of FENSA “depends on the nature of the interaction and
the actor WHO engages with. All procurements are regulated by the WHO
procurement strategy and do not fall under the Framework of engagement with
non-State actors,” according to a December 2015 unofficial document
(non-paper) [pdf]by the secretariat.

FENSA would be expected to replace the current principles of engagement
with non-state actors, governed by two documents: Principles governing
relations between the WHO and NGOs
(non-governmental organizations) [pdf], and Guidelines on interaction with
commercial enterprises to achieve health outcomes
<http://apps.who.int/iris/bitstream/10665/78660/1/ee20.pdf?ua=1> [pdf].

*Non-State Actors and Government Secondments, Issue For Some*

Meanwhile, the Third World Network (TWN) expressed concern in December
about philanthropic foundations, such as the Bill & Melinda Gates
Foundation and the United Nations Foundations, which have seconded their
staffers to top management positions at WHO (*IPW*, Outside Sources, 15
December 2015

According to TWN, between 2012 and 2015, WHO had 37 secondments from
non-state actors, from academic institutions, philanthropic foundation and
non-governmental organisations. But “the data does not reveal any direct
secondments from the private sector,” the group said.

During the FENSA meeting this week, several developing countries expressed
their concerns to *Intellectual Property Watch* about secondments from
governments. According to those sources, some developed countries have
seconded their staffers to WHO, in particular in the field, following
earmarked funding.

Those secondments are a sign of governments trying to influence health
policies on the ground, the sources said.

The WHO was unable to provide the number of people working at WHO who have
been seconded by their government at press time.

“We want a WHO that serves everyone,” a developing country source told
Property Watch*.


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