No consensus at World Health Assembly on non-state actors engagement framework

Efforts to forge a consensus at the World Health Assembly in May on a document governing WHO's engagement with non-state actors (Framework for Engagement with Non-State Actors or FENSA) came to naught. KM Gopakumar and Mirza Alas report on the Assembly's deliberations on the issue.

SEVEN days of hectic talks which started on 20 May failed to resolve differences at the 68th World Health Assembly (WHA) on critical issues regarding WHO's Framework for Engagement with Non-State Actors (FENSA). The WHA took place from 18 to 26 May in Geneva.

Instead, the WHA adopted a resolution to continue the negotiations on the outstanding issues.

The resolution welcomes the consensus reflected in many parts of the Framework, including in its introduction, rationale, principles, benefits of engagement, risks of engagement, non-state actors (NSAs), and types of interaction.

The resolution requested the WHO Director-General (DG) 'to convene as soon as possible, and no later than 15 October, an open-ended intergovernmental meeting to finalise the draft framework of engagements with non-State actors on the basis of progress made' during the WHA.

Further, it requested the DG to submit the finalised draft text to the 69th WHA (in 2016) through the 138th session of WHO's Executive Board (EB).

The resolution also requested the DG 'to develop the register of non-State actors in time for the Sixty-ninth World Health Assembly, taking into account progress made on the draft framework of engagement with non-State actors'.

The origin of the policy for engagement with NSAs goes back to a resolution adopted by the 64th WHA in May 2011 which endorsed WHO reform. The resolution requested member states 'to present a detailed concept paper for the November 2012 World Health Forum, setting out objectives, numbers of participants, format and costs, to the Executive Board at its 130th session in January 2012'.

Member states later opposed this provision in the resolution during a November 2011 special session of the EB on WHO reform, and this led to a silent burial of the idea of a World Health Forum. The special session of the EB then set the following rules on engagement:

* the intergovernmental nature of WHO's decision-making remains paramount;

*      the development of norms, standards, policies and strategies, which lies at the heart of WHO's work, must continue to be based on the systematic use of evidence and protected from influence by any form of vested interest;

*      any new initiative must have clear benefits and add value in terms of enriching policy or increasing national capacity from a public health perspective;

*      building on existing mechanisms should take precedence over creating new forums, meetings or structures, with a clear analysis provided of how any additional costs can lead to better outcomes.

The special session requested the DG to further analyse proposals to promote engagement with other stakeholders.

Subsequently the 130th EB in January 2012 agreed on an informal decision which stated: 'Further discussion will be required on WHO's engagement with other stakeholders, including different categories of non-governmental organisations [NGOs] and industry, and the proposals to review and update principles governing WHO relations with non-governmental organisations, and to develop comprehensive policy frameworks to guide interaction with the private-for-profit sector, as well as not-for-profit philanthropic organisations. These will be held during the Sixty-fifth World Health Assembly.'

However, there was no such policy submitted for the consideration of the 65th WHA in 2012. Instead, the WHA requested the DG 'to present a draft policy paper on WHO's engagement with non-governmental organisations to the Executive Board at its 132nd session in January 2013'.

The 132nd EB requested the DG to harmonise the development of the draft policy for engagement with NGOs with the draft policy on WHO's relations with private commercial entities, such development being guided by principles stated by the 65th WHA. It further requested the DG to report on the development of the two draft policies to the EB at its 134th session in January 2014.

The 133rd EB then decided as follows: '(1) noted the outlined approach to engagement with non-State actors, in particular the overarching principles of engagement and the typology of interactions; (2) requested the Director-General to advance the work proposed, taking into account the deliberations of the Executive Board at its 133rd session, particularly in relation to transparency, risk and conflict of interest, towards the development of a more detailed framework of engagement with non-State actors for consideration by the Board at its 134th session in January 2014'.

At the 134th EB session, the WHO secretariat submitted a draft FENSA, which was then forwarded to the 67th WHA in May 2014. Even though a drafting group was formed to draft the policy, the attempt was dropped after three days due to lack of progress. The 67th WHA requested the DG 'to submit a paper to the Executive Board at its 136th session, in January 2015, ensuring that Member States receive it by mid-December 2014 in order to allow them sufficient time to study the content and to be better prepared for discussion and deliberation'.

In response to this, the WHO secretariat submitted a draft FENSA to the 136th EB session. The EB then requested the DG to convene an open-ended intergovernmental meeting from 30 March to 1 April 2015 to discuss member states' textual proposals on the draft. That meeting was followed up with a couple of rounds of informal consultations before the 68th WHA.

Even though consensus has now been achieved on major parts of the text, there is no agreement on crucial issues such as the definition of resources, secondments, the relation of WHO with industries other than the tobacco and arms industries, transparency requirements, oversight mechanism of engagements with non-state actors, ceiling on financial resources etc.

The initiative has not reached a conclusion primarily due to the divergence of views among member states. While the original initiative in 2011 was to facilitate more engagement with stakeholders, it had to take a different direction due to opposition from a large section of member states. Enhanced engagement with NSAs was advocated by developed countries but this was viewed by developing countries as an attempt to facilitate corporate capture of WHO.

The key interventions of member states on the FENSA issue during the 68th WHA are highlighted below.

Zimbabwe spoke on behalf of the African Region (AFRO) and reiterated its commitment on reaching consensus. It wanted to ensure that WHO has a sound engagement framework and expressed its appreciation for the commitment and hard work of member states, particularly Argentina, the chair of the drafting group.

It stressed the importance of having a common understanding of important elements of the framework. It said it was important to explore the possibility of meetings at the earliest possible in order to finalise this issue, and said the final draft document should be ready by the 138th session of the EB.

Indonesia noted that considering the magnitude of global health challenges, it was important to have participation of all stakeholders, and so the formulation of engagement of all actors was welcomed. All stakeholders could positively contribute, it said, while at the same time respecting and preserving the credibility of WHO. However, the process should not be hasty. This was not a delaying approach but rather a cautious approach in addressing this important issue, in view of the scheduled finalisation of the framework by the next WHA. Indonesia also thanked Argentina for facilitating the negotiation process.

Brazil stated its appreciation for Argentina as the chair of the process. It noted that these intergovernmental negotiations highlighted the commitment to seriously discuss the topic and this was crucial for the future of WHO as the directing and coordinating organisation in health work. Brazil said it remained committed to the process and remarked on the progress that had been achieved. It also indicated that it was important to continue moving to reach consensus by the 69th WHA.

The paragraphs where no agreement had been reached were at the core of the framework, and particular caution was necessary, stressed Brazil. The health landscape was changing, and Ebola had shown the growing role of NSAs. Similar emergencies may take place and there was a need to be prepared. There was a need to protect the role of WHO in operations and its norm- and standard-setting role in global health policy. This framework had to be robust to address all these challenges.

Iran joined others in thanking Argentina in the challenging and non-stop negotiations. It said it was committed to finalising this framework, noting that NSAs were increasingly important in WHO's leadership in global health. Saying that further deliberation on this document was now necessary and that the document had long-term implications for the future, Iran supported the draft document that showed progress made until then and prepared for future consensus.

India commended the patience in deliberating on this important subject and said member states made invaluable contributions. It said it saw the work of the drafting group as very positive, and stood strongly committed to the process and looked forward to working together with member states and WHO to conclude and reach agreement.

China thanked Argentina and the secretariat for the tireless efforts over the past few days, and supported the continuation of the reform process. It said it was committed to working with other member states and working actively in this negotiation process.

Malta supported the proposal for the resolution to be adopted by the 68th WHA but also had two comments on the draft presented. It said that paragraph 1 on the issue of consensus seemed to imply there was consensus in the room. Malta wanted the language to clarify that the consensus was reached in the drafting group and proposed to change the language to 'consensus reached in the drafting group'.

Malta's second comment on the resolution was about the implications on implementation and resources. Malta proposed to add an extra paragraph requesting the DG to submit through the 138th EB a report on practical and resource implications of implementation of the proposed framework. Malta considered that it was important to have this information for adopting the framework. It also requested clarification on the third paragraph of the resolution which gave the DG an action regarding a framework that was not yet approved and was still in the process of being drafted.

Colombia thanked Argentina and stressed the importance of the process. It fully supported the draft resolution, which it said established clear responsibilities for member states and the secretariat in view of the conclusion of FENSA at the next WHA.

Regarding the amendments proposed by Malta, Colombia said that all resolutions had a budgetary aspect so a specific mention was not needed; this work was linked to the continued work of WHO and was not a specific budgetary expense.

France said the framework was one of the most important issues for reform of WHO and for its capacity to take action. It noted how close member states had been to adopting it at this WHA. The fact that it did not happen meant it was important to be careful of the message given to people who were not in the drafting group and in the assembly. The message had to be positive. There had been a lot of progress made and France supported the resolution.

Canada remarked on the efforts to work on the framework and how useful it would be for WHO in order to cost-effectively carry on its work. Canada recognised the important role of NSAs and their role on many different fronts in cooperation with WHO. It said the framework would help transparent engagement and help WHO in its role and its world health mandate. There was good momentum for this which needed to continue, and Canada hoped that the work would be completed for the 138th EB.

Switzerland welcomed major progress made in the deliberations on FENSA. It hoped the deliberations would continue at this pace and in a constructive way. WHO must adapt to the changing landscape of public health actors and have a unique normative role, it added. Switzerland hoped that by the 69th WHA the framework would be adopted with a clear basis and transparent engagement with NSAs.

The United States commended the good work done and hoped that an excellent document would be presented to the WHA and the EB next year. The US would like to have the benefits and risks of engagement listed, including for partners and member states. There was a need for updating the policy for engagement with WHO.

It noted the benefit of the process, which made benefits more visible and reaffirmed safeguards as core for WHO's regulating function. The resolution hoped to empower WHO to reinforce its existing mechanisms, for both benefits and risks of engagement with NSAs; risks would be better articulated and benefits highlighted. Risks should be managed and benefits made transparent, for the benefit of public health.

Argentina, as chair of the drafting group, said the draft resolution reflected the spirit of mutual respect and that any proposal was welcome. This was a long process (nine formal sessions and three informal sessions). All were aware of the importance of the issue and every step was taken with great care. The drafting group tried to agree on balanced language and Argentina called on member states to consider the draft resolution.

Regarding Malta's amendments, it said the paragraphs they referred to had taken at least two hours to agree on. But an agreement had been reached that there was a kind of consensus on elements. They reflected a consensus at this assembly. Regarding the budgetary amendment, as mentioned by Colombia, any resolution had a document concerning budgetary implications and Argentina did not think it necessary to state it in the text.

Regarding a register of NSAs, there had already been commitment given by the DG before the draft resolution, and the drafting group decided to include it.

Malta expressed thanks for the explanations, and was supportive of moving forward and not trying to stall the process. It was satisfied with the explanation given for the issue of consensus. On the budgetary issue, Malta said this was a framework that would dictate the way of one of the lifelines of work for WHO, so more explanations on financial implications were still needed. There should be figures on implications of the framework, not only resources but also a report on practical implications. What was being approved? How would it impact the functioning of WHO in the future? These were serious matters that needed serious analysis, said Malta.

Interventions by NGOs

The following are highlights of several NGO statements on the FENSA issue at the WHA.

Health Action International (HAI) said WHO should exercise particular caution when engaging with industries affecting human health or affected by WHO's norms and standards. It recalled recent examples of industry interference on public health, such as 25 pharmaceutical companies having been implicated in a planned campaign to delay South Africa's draft intellectual property policy reforms which aimed to increase access to medicines in the country.

The New York City Board of Health's limit on the size of sugary drinks was thwarted by a campaign funded by the beverage lobby and various legal challenges. And in 2003, the US sugar industry had threatened to slash WHO funding via the US Congress over planned guidelines on sugar intake.

Two months ago, it was revealed that the International Food and Beverage Alliance (IFBA) had engaged in direct lobbying of member states to ensure their industries were not excluded from FENSA. HAI said it advocated for delineating industries up-front in FENSA where WHO should exercise caution.

HAI stressed that private interests could not be allowed to drive policy-making. It urged member states to ensure FENSA created a strong enough 'fence' to safeguard public health against private interests. WHO must be given the mandate to assess conflicts of interest, monitor ongoing risks of engagement, and manage engagements with full transparency.

The International Baby Food Action Network (IBFAN) said the current FENSA draft as it understood it, still raised concerns: it reasserted old channels of undue influence, e.g., it contained a new official relations policy which, instead of re-examining the constitutionality of accrediting business-interest associations as 'NGOs', proposed their wholesale admission. It also legitimised new channels of undue industry influence: 'participation', provision of 'resources', 'evidence' creation and 'advocacy' were all categories of high risk for undue industry influence, usually considered as 'at risk areas' for conflicts of interest, it added.

IBFAN said the draft gave the false impression that risks of interactions with transnational corporations and philanthropies, including conflicts of interest (CoIs), were adequately addressed. The conflict-of-interest section still presented an incorrect CoI concept and continued conflating CoIs, conflicts within a person or institution, with conflicts between actors. Institutional CoIs were situations where WHO's primary interest as reflected in its constitution may be unduly influenced by secondary interests of WHO or its staff in a way that affects, or may reasonably be perceived to affect, the independence and objectivity of WHO's work.

IBFAN called for a re-evaluation of the framework. Concepts needed to be clarified, missing evidence obtained, and a public review of the adequacy of existing relevant WHO policies carried out. This debate should include how best to assure adequate core funding of WHO. WHO's budget was, after all, less than one-third of the budget of the US Centers for Disease Control and Prevention.

Medicus Mundi International and People's Health Movement (PHM) said the present FENSA draft was contested, obscure and complex. It did not provide a robust framework to prevent improper influence. Corporate interests which run counter to public health interests were the pre-eminent risk arising from WHO's engagement with non-state actors. There had been several incidents of improper influence in recent years, all involving large transnational corporations. These included: the IMPACT debate, the EWG process, virus sharing in the context of PIP and lobbying by the sugar industry and related ultra-processed food industries against the WHO recommendation of a 5% ceiling on sugar intake.

Medicus Mundi International and PHM said that the proposed protocols said nothing about the accountability of the member states for protecting WHO's integrity. However, in several of the above cases, member states were involved in initiatives which created risks for the integrity and decision-making of WHO. WHO was under continuing pressure to treat corporations as equal and legitimate 'partners' and 'stakeholders' in public affairs. Proposals for 'multi-stakeholder partnerships' would designate junk food manufacturers as partners in the task of addressing obesity, heart disease and stroke.

The two NGOs urged delegates at the WHA to defend the integrity and independence of WHO and to take such time as was necessary to achieve a robust framework to protect the organisation from improper influence.

KM Gopakumar and Mirza Alas are researchers with the Third World Network. This article was written with inputs from the People's Health Movement Global Health Watch team: Susana Barria, Claire Ellise Burdet, Ornella Punzo and Daniel Amoun. It is reproduced from the South-North Development Monitor (SUNS, No. 8029, 28 May 2015) published by TWN.

*Third World Resurgence No. 298/299, June/July 2015, pp 31-34