Info Service on Health Issues (Feb16/01)
WHO: Executive Board adopts work plan on next FENSA negotiations
Geneva, 10 February (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 presented on 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 WHA68.9”.
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 FENSA.
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 of FENSA.
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 developed.”
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:
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 work.
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)