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TWN Info Service on UN Sustainable Development (Apr16/03)
25 April 2016
Third World Network


WHO – Norway proposal on emergency exception weakens FENSA rules

Geneva, 25 April (K M Gopakumar) – A new proposal from Norway on an emergency exception to the application of the World Health Organization’s proposed Framework of Engagement with Non-State Actors (FENSA) would neutralise the safeguards.

The proposal provides the power to the WHO Director-General to not follow FENSA rules while engaging with non-state actors (NSA) to respond to emergency situations.  However, the broad scope of the word ‘emergency’ raises concerns that the objectives of FENSA would be undermined.  The text proposed by Norway is a modification of a text negotiated in the informal meeting of the Open-Ended Intergovernmental Meeting (OEIGM) on FENSA in October 2015. Negotiations to finalise FENSA will take place on 25 to 27 April at the WHO headquarters in Geneva.

The Norway text 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, bearing in mind the no-regrets principle. In doing so, the Director-General shall have the flexibility in the applications of the procedures of this framework as needed to fulfil WHO’s responsibilities in this area. The Director-General will inform through appropriate means including in particular written communication, [when he or she deems necessary] [where applicable in advance, otherwise 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 in engagement with NSAs”.

The October OEIGM text reads:

[15bis The Director-General shall have flexibility in the application of the procedures of this framework when responding to acute public health events described in the International Health Regulations (2005) or other emergencies with health consequences, consistent with the functions of WHO as set out in the Constitution including article 2d thereof and without prejudice to the principles identified in paragraph 6 of this framework. [The Director General will include information on and provide justification of use of such flexibilities in the annual report on engagement with non-State actors.]
OR [The Director-General will inform Member States that flexibility has been required if and when he or she deems necessary, and will include summary information with justification on the use of such flexibility in the annual report on engagement with non-State actors.]
OR [The Director-General will notify in advance all Member States about the decision/action he or she deems necessary. In this regard, the Director-General will provide summary information as well as justification on the decisions/actions in the annual report on engagement with non-State actors.]]


The central concern is around the scope of this exception as reflected in both texts. According to the proposal the flexibility i.e. the right to suspend the application of proposed FENSA rules while engaging with NSAs to respond to emergencies would apply in two situations. First, the “acute public health events described in the International Health Regulations” and secondly, “other emergencies with health consequences”. The phrase “other emergencies with health consequences” is too broad and gives a blanket right to the Director-General to suspend the application of FENSA by citing emergencies. This goes beyond the scope of emergencies referred to in WHO’s Emergency Response Framework (http://www.who.int/hac/about/erf.pdf).

That framework grades emergencies into four categories based on the health consequences of the event.  The grade definitions are as follows:

“Ungraded: an event that is being assessed, tracked or monitored by WHO but that requires no WHO response at the time.

Grade 1: a single or multiple country event with minimal public health consequences that requires a minimal WCO (WHO country office) response or a minimal international WHO response. Organizational and/or external support required by the WCO is minimal. The provision of support to the WCO is coordinated by a focal point in the regional office.

Grade 2: a single or multiple country event with moderate public health consequences that requires a moderate WCO response and/or moderate international WHO response. Organizational and/or external support required by the WCO is moderate. An Emergency Support Team, run out of the regional office, coordinates the provision of support to the WCO.

Grade 3: a single or multiple country event with substantial public health consequences that requires a substantial WCO response and/or substantial international WHO response. Organizational and/or external support required by the WCO is substantial. An Emergency Support Team, run out of the regional office, coordinates the provision of support to the WCO.”

An observer points out that the IHR does not refer to “acute public health events” –one of the proposed OEIGM options as well as the Norway modified version refers to “acute public health events described in the International Health Regulations”. 

The IHR uses terminology such as “public health emergency of international concern”, “public health risk” and imposes obligations on Member States during “unexpected or unusual public health events”. Thus the words “acute public health events described in the International Health Regulations” are too vague and subject to broad interpretation.

One delegate told Third World Network that there are protracted crises that will continue for many years, such as conflicts. Therefore it is important that protracted kind of emergencies should be distinguished from short-term emergencies such as natural resources that need swift actions. According to this delegate, flexibility should not be applicable for protracted emergencies.

TWN learned that some Member States also expressed their concern on the phrase “no-regrets principle”. The no-regrets principle is referred in the context of staff and financial resource mobilisation to respond to emergencies. However, the principle has no direct link to safeguards on engagement with NSAs.  The ERF 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”. Thus the reference to no-regrets principle beyond the resource allocation would raise serious concerns of conflict of interest.

The Norway text departed significantly from the OEIGM text of October 2015. The October text provided flexibility to the WHO Director-General in the application of FENSA rules to respond to emergencies. However, the flexibility was conditional and did not allow the Director-General the flexibility to compromise the principles identified in paragraph 6.

Paragraph 6 of the draft FENSA text states that WHO’s engagement with NSAs is to be guided by principles, one of which states:  “ … protect WHO from any undue influence, in particular on the process in setting and applying policies, norms and standards”. The Norway text removes the reference to Paragraph 6. As a result the flexibility may even allow WHO to engage NSAs for norms and standard setting activities which may compromise the Organization’s integrity and independence.

Another contentious issue is the reporting obligation on the part of the Diector-General while using flexibilities. The Secretariat is to report to Member States only after the exercise of the flexibilities through the Director-General’s report to the Executive Board on engagement with NSAs. A few Member States are worried that such reporting would escape the attention of Member States during the Executive Board meeting, and they therefore require the Secretariat to report on the exercise of the flexibilities prior to the use of such flexibilities. These Member States are demanding communications from the Director-General prior to the use of flexibilities and not the prior permission to use the flexibilities. This would help Member States to seek further explanation during the Executive Board meeting if required.

Developed countries, especially from the European Region, are increasingly demanding flexibilities in the application of FENSA as a condition for the finalisation of the framework. According to these countries, engagement with NSAs especially the private sector is critical for effective response to emergencies. However, the response of WHO’s Emergency Risk Management (ERM) division to an external auditor’s survey reveals that there was no such reported engagement with private sector entities in 2015 with respect to WHO’s involvement in emergency response. The survey reveals that in 2015 the engagements were restricted to participation, resources, technical collaboration and evidence.  The main mode of engagement was participation, wherein 49 NGOs participated in 25 meetings at the headquarters level and 64 meetings at the country level.  Six academic institutions participated in 25 meetings at the headquarters level and an unknown number of meetings in 24 countries. Four philanthropic institutions participated in meetings as standby partners and WHO received funds from two philanthropic foundations. In 2015 WHO also distributed funds to 75 NGOs, and had 16 technical collaborations with 3 NGO standby partners.

According to an observer, to seek emergency flexibility without safeguards is an effort to facilitate private sector participation in emergency response. Traditionally the participation of the private sector in emergency response has been confined to resource mobilisation and communication strategies. However, for nearly a decade or so now the private sector has been seeking new opportunities in emergency response situations.  Various reports by think tanks and business lobby groups such as the World Economic Forum (WEF) are lobbying for the greater role of the private sector in emergency response.

For instance, a paper by the UK’s Overseas Development Institute (ODI) states: “Entire elements of humanitarian action, including cash transfers, telecommunications and logistics, have been transformed as business have become increasingly involved. Affected populations increasingly expect aid agencies to provide assistance through local markets rather than serving as frontline aid providers”. (http://www.odi.org/sites/odi.org.uk/files/odi-assets/
publications-opinion-files/9078.pdf
)

In 2007, WEF in collaboration with the UN Office for the Coordination of Humanitarian Affairs (OCHA) developed guiding principles for public–private collaboration for humanitarian action. This guideline does not offer any insight to address the risks of private sector engagement in humanitarian responses. For instance, Principle No. 7 states: “Both parties should establish a clear separation between their divisions managing public–private partnerships for humanitarian action and those responsible for procurement. This does not preclude private sector actors from participating in procurement processes, nor does it preclude them from perceiving a business case for their engagement in philanthropic partnerships …”

A weak and ineffective caveat completes this principle: “That being said, their collaborative efforts with the humanitarian community to alleviate human suffering should not be used for commercial gain.”
(http://www.un.org/partnerships/Docs/Principles%20for%20Public-Private%20Collaboration%20for%20Humanitarian%20Action.pdf)

The partnership approach is pushed by various panel reports of the UN (almost always initiated by the UN Secretariat) and other intergovernmental organisations. Interestingly these reports never spell out details on the risks involved in private sector participation in emergencies.

The January 2016 report of the UN Secretary-General’s High Level Panel on Humanitarian Financing that focused on the financing gap states: “Beyond governments, the humanitarian community must harness the power of business to deliver its key skills and capabilities. Business is still a modest factor in humanitarian activities, yet has the creativity and capacity at scale to provide new solutions to risk management, support aid delivery, create jobs, and modernise transparency and accountability. Involving staff in humanitarian action is also motivational, and companies need to be encouraged – from insurance and digital cash to logistics and telecommunications – to get involved in providing their relevant skills and capacity for delivering life-saving assistance. (http://reliefweb.int/sites/reliefweb.int/files/resources/[HLP%20Report]
%20Too%20important%20to%20fail%E2%80%94addressing%20the%20
humanitarian%20financing%20gap.pdf
)

Similarly, the WHO appointed Advisory Group on Reform of WHO’s work in outbreaks and emergencies also states: “WHO must look beyond its traditional government ministry partners and develop an understanding of the  entire ecosystem of partners on the ground, including the private sector, civil society and faith-based groups’. (http://www.who.int/about/who_reform/emergency-capacities/advisory-group/second-report.pdf?ua=1)

However, many experts are of the view that private sector engagement without a proper framework and safeguards would facilitate the commercial interest rather than public interest.

(See also TWN Info of 21 April 2016: WHO - Developed countries turning against non-State actor engagement framework.)

 


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