Info Service on Health Issues (Apr16/12)
Geneva 27 April (K M Gopakumar) – Switzerland refuses to join the consensus on the emergency exception to the World Health Organization’s Framework for Engagement with Non-State Actors (FENSA).
While there is a consensus on most of the text, Switzerland objected to part of the text that obligates the Director-General of WHO to communicate “without undue delay” the use of flexibility with regard to application of FENSA rules while engaging with non-State actors. Switzerland demands to replace “undue delay” with “in a reasonable timeframe”.
The issue of emergency exception was discussed on 25-26 April during the formal and informal sessions of the Open-Ended Intergovernmental Meeting (OEIGM) on FENSA that is meeting for 3 days in Geneva. Consensus had almost been reached on the second day (26 April), and with Switzerland’s objection to the term “undue delay”, an informal meeting was held in the evening.
The new text now reads:
69ter – alt: “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] (DEL: Switzerland) / [in a reasonable timeframe] (Switzerland) 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”.
“Appropriate means” is defined as “Including as described in UN General Assembly resolution A/RES/46/182 (Strengthening of the coordination of humanitarian assistance of the United Nations), which establishes the Secretary-General’s emergency relief coordinator, and the WHO International Health Regulations (2005)”.
Unlike the initial Norway proposal, the new language does not provide the flexibility to the Director-General (DG) to go against the principles identified in Paragraph 6 of the overarching framework of FENSA.
The Norway proposal reads: “The Director-General in the application of this framework, while responding to acute public health events described in the International Health Regulations (2005) or other emergencies with health consequences, will act consistent with the functions as described in the WHO Constitution ...”
Paragraph 6 of the overarching framework lists eight principles of engagement: “Any engagement must: (a) demonstrate a clear benefit to public health; (a bis) conform with WHO’s Constitution, mandate and general programme of work (b) respect the intergovernmental nature of WHO and the decision -making authority of Member States as set out in the WHO’s Constitution; (c) support and enhance, without compromising, the scientific and evidence -based approach that underpins WHO’s work; (d) protect WHO from any undue influence, in particular on the processes in setting and applying policies, norms and standards; (e) not compromise WHO’s integrity, independence, credibility and reputation; (f) be effectively managed, including by, where possible avoiding conflict of interest 2and other forms of risks to WHO; (g) be conducted on the basis of transparency, openness, inclusiveness, accountability, integrity and mutual respect”.
One of the main concerns with regard to flexibility was the potential risk of flexibility bringing undue influence especially “on the processes in setting and applying policies, norms and standards”. The proposed text clearly avoids such a risk by insisting that the DG is to act according to the principles mentioned in Paragraph 6.
Another departure form the Norway text is the deletion of reference to the “no regrets principle”. WHO’s Emergency Response Framework defines no-regrets policy as: “At the onset of all emergencies, WHO ensures that predictable levels of staff and funds are made available to the WCO, even if it is later realized that less is required, with full support from the Organization and without blame or regret. This policy affirms that it is better to err on the side of over-resourcing the critical functions rather than risk failure by under-resourcing”.
The reference to no-regrets policy would have expanded the scope of the principle beyond resource allocation as well as the scope of flexibilities.
Another concern was with regard to the phrase “other emergencies with health consequences” which is too broad and would give the DG the right to use the flexibilities even in a protracted crisis. However, an expert points out that the scope of the flexibility is limited to “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”. Therefore, there is little scope to justify the use of flexibilities in a protracted crisis, which can go for many years such as conflicts and droughts.
Regarding accountability to Member States with regard to the use of flexibilities, the proposed text proposes that the DG is to the communicate to Member Sates in particular written communication as well as to include summary information with justification on the use of such flexibility in the annual report on engagement with non-State actors. However there is no consensus regarding the timing of such communication.
There was a consensus during the informal consultations among Member States except Switzerland. While there is an agreement that the DG should communicate in writing “withoutundue delay” Switzerland prefers written communication in “a reasonable time frame” instead of “without undue delay”.
The broad language contained in the earlier proposal would have undermined the application of FENSA rules. The OEIGM is expected to continue negotiations on this issue during the post-lunch session today (27 April) to pursue Switzerland to join the consensus.