WHO Drafting Group established on “non-state actors” engagement
Gopakumar KM, Shashikant S: TWN Info Service, May14/05
On the other hand developed countries such as the United States of America, Australia, the United Kingdom, Canada and the European Union called for the adoption of the NSA framework in its current form. Some developing countries including South Africa and Kenya also agreed with the views of those developed countries. In light of the divergent views, Member States accepted the suggestion of WHO Director-General Dr. Margret Chan to set up a drafting group to finalize the NSA framework. However, Dr. Chan mentioned a working group instead of the drafting group. This has created some confusion among the Member States. A “Working Group” generally refers to a meeting of Member States on specific themes during the intersessional periods of the WHO governing body meetings. The establishment of the drafting group means that Member States have taken ownership over the drafting of the NSA Framework. Since the decision of the WHA Executive Board through a Chair’s Summary in January 2012, the Secretariat had attempted to produce the draft NSA framework. The first draft was released in March 2014 for the second informal consultation among Member States. The first meeting of the drafting group took place on the afternoon of 20 May. A few delegates who attended the drafting group meeting told Third World Network (TWN) that the progress is very slow. Currently the discussions are on paragraph 6 (c) of the NSA framework. Para 6 (c) states: “WHO does not engage with industries making products that directly harm human health, including specifically the tobacco or arms industries.” Many developing country Member States are opposing this narrow approach of singling out the arms and tobacco industry and proposing instead the inclusion of the alcohol and food industries in the list. The drafting group is yet to find consensus on this issue. Para 6 (c) is in page 2 of a 29-page document, signaling the long road ahead for the negotiations. The drafting group will reconvene on 21 May at 2.30 pm. Some delegates are skeptical about the drafting group process and expressed doubt about the completion of the work on 24May, the last day of the 67th WHA. The NSA framework is a revised text after the Member States failed to reach a consensus during the second informal consultation, which was held in Geneva on 27-28 March 2014. During that consultation it was decided to present a revised draft for the consideration of the WHA. For details see: WHO: No consensus on draft policy on non-State actors
published in SUNS #7777 dated 3 April 2014. http://www.twnside.org.sg/title2/health.info/2014/hi140401.htm The revised NSA framework however failed to incorporate the concerns expressed by many Member States. It has not brought any substantial improvement in its content and rearranges the earlier draft framework and makes a few cosmetic changes without substantially changing the content of the document. The Secretariat has submitted the revised NSA framework, inviting the WHA to note this report and to provide guidance on the annexed draft framework of engagement. The draft NSA framework contains an overarching framework for the engagement of NSA and draft policy and operational procedure for four types of NSAs viz. non-governmental organizations (NGOs), private sector, philanthropic foundations, and academic institutions. According to the policy, international business associations (IBA) are considered as private sector, however IBAs are allowed to attend the governing body meetings of the WHO. The framework does indicate whether IBAs would be allowed to attend the governing body meetings with the same badge as NGOs, which is the current practice. As a result, many IBAs and industry-funded NGOs are attending WHO governing body meetings as NGOs. Both the overarching framework and the policies favor the private sector. There is no effective safeguard in the NSA framework to check the direct and indirect influence of the private sector through financing NGOs, philanthropic foundations and academic institutions. The framework in paragraph 11 states that a philanthropic foundation would be considered as private sector if it is clearly influenced by the private sector. However, paragraph 34 rules out changes in the status of NSAs and also rejects funding as a yardstick to determine the status of an NSA. Paragraph 34 states: “When other non-State actors, such as nongovernmental organizations, philanthropic foundations and academic institutions, receive funding from private sector entities, they will not automatically be considered as being themselves private sector entities, unless the level and modalities of funding are such that the non-State actor can no longer be considered as independent of the funding private sector entities. The attribution of the non-State actor to one of the four categories does not change, but relevant provisions of the private sector policy may apply, subject to an assessment of the relevant circumstances, such as the level of funding provided by the private sector entity and the nature and purpose of the engagement.” The framework ignores concerns expressed by Member States regarding the secondment of personnel to the WHO. Under the secondment arrangement, the regular staff of an NSA would work at the WHO and the cost is to be borne by the NSA. The policy on NGOs clearly allows the possibility of secondment from NGOs. However, the private sector policy states: “WHO does not accept in principle secondments from private sector entities”. This clearly means that while as a general rule it does not accept secondments, it also does not rule them out. The language of the previous draft policy, which explicitly permitted secondment from the private sector was amended taking into consideration the objection from Member States. However, the draft policy on the private sector still permits the secondment from the private sector. A developing country delegate told TWN that the Secretariat in the informal consultation in March admitted that there are 10-12 persons already working in secondment at the WHO without giving the details of their organizational details and their attached department in the WHO. Similarly, the policy on private sector allows the private sector to finance the salary of specific staff members or posts including short-term consultants, except where it gives rise to real or perceived conflict of interest. This essentially means that the policy allows the private sector to direct funds to specific posts that are of interest to them. This is said to be an extremely dangerous as it opens the WHO up to undue influence. Further there is no clarity in the document regarding what is real and perceived conflict of interest. The policy on private sector also allows the WHO to receive financing from a commercial enterprise for a clinical trial arranged by the WHO on the company’s proprietary product. According to observers, since the WHO is involved in assisting the company with its proprietary product, it is only equitable that the company has some public health obligation with regard to making the product. There is no clarification in the document whether the company agrees to enter into a binding arrangement with the WHO with the aim of making the product affordable and available in a timely manner to all those who need it. Further it is also not very clear on the availability of clinical trial data for the public. Another issue of concern is the NSA’s engagement with regard to technical collaboration with the WHO. The NSA framework lists five types of technical collaborations viz. product development, capacity building, support to policy making at the national level, operational collaboration in emergencies, and contributing to the implementation of WHO policies. Collaboration between the WHO and NSAs, especially with the private sector to support policy making at the national level is a matter of great concern. Further, paragraph 36 of the private sector policy states that technical collaboration with the private sector is allowed “if potential risks of engagement are managed or mitigated, provided that the normative work of WHO is protected from any undue influence and there is no interference with WHO’s advisory function to Member States”. However the policy does not spell out the specific risks involved in each type of collaboration, and technical collaboration with the private sector should be avoided in certain cases such as support to policy making at national level and capacity building. Often the private sector uses capacity building activities to promote their commercial agenda. Therefore the WHO should not collaborate with private sector for capacity building. Paragraph 38 of the private sector policy deals with technical collaboration for product development and acceptance of funds from the private sector to carry out clinical trials. However, the policy is silent on the mechanism to ensure access to those products by WHO Member States which are in need of the products as well as the data from the clinical trials. The NSA framework refers to the issue of conflict of interest. However, there is no detail on this. Many government delegates told TWN that there is no clarity with regard to the existence of a comprehensive conflict of interest policy in the WHO. Another important limitation of the NSA framework is the lack of any regulation to prevent donor-driven programs. Currently there is no restriction on NSAs to provide tied funds without giving any flexibility to spend the resources on a more needy public health program. During the past two years there were suggestions to put a ceiling on an NSA’s tied funding but the NSA framework is silent on this aspect. This has generated worry that resources from NSAs may lead to donor-driven implementation of WHO’s work program. During the current WHA discussion Zimbabwe said that the NSA framework needs further discussion. It also sought clarity on conflict of interest, acceptance of financial resources from NSAs and secondment of persons from NSA. Japan stressed the need for transparency. Vietnam said that the WHO's engagement with NSAs has risks and also stated that the NSA framework needs to be developed prudently. Surinam on behalf of UNASUR, while stressing the importance of engagements with NSA, also listed concerns with regard to the revised NSA framework. It pointed out the need for further work in the document for finalization. Brazil aligned its statement with that of Surinam. Brazil said that it supported continuance of discussion and stressed the need to review the full text. It said that the Pandemic Influenza Preparatory framework could be used. Brazil sought clarity on conflict of interest. It further made it clear that secondment from the private sector is unacceptable. It stressed that the text is not ready for adoption. Argentina said that the NSA framework still needs details on the regulation on finance from NSAs. It stated that the document is preliminary and more detailing of the NSA framework is required. Argentina said that there is a need for a drafting committee. India said that caution is needed about indirect funding. It said that even though the document is in a good direction, it needed clarifications. Therefore India also proposed further consultation. Ecuador aligned with Surinam’s statement and supported the demand for the review of the document. It supported the need for a working group. It also recalled that WHO is a Member States-run organization. Ecuador also supported the view of Brazil for a full review of the NSA Framework. China said that business associations should be included as private sector. It stated that during the last Program Budget Administrative Committee meeting (14-16 May), many delegates did not have the time to assess the NSA document. China said that it is premature to adopt framework at this stage. Strong concerns were also expressed by civil society networks and coalitions on this crucial issue. International Baby Food Action Network (IBFAN) stated that, “the current Framework opens up floodgates to increased influences by transnational corporations and philanthropies in various ways: It accepts into Official Relations as legitimate entities to participate in the WHO’s governing bodies both business associations and venture philanthropies, thus not taking into account the request for WHO to reverse the trend of accrediting actors whose primary aim, by nature cannot be in “conformity with the spirit… of WHO’s constitution . In the name of ‘inclusiveness’, it also opens other channels for corporate and donor influence: these include “resources” such as “staff secondment”, ”pro-bono work”; and “participation” at all kind of meetings, as well as “support to policy making”. The Framework says that WHO takes a “risk management approach to engagement”; the words “conflict of interest” and “undue influence” appear frequently. Observers may thus feel that risks are addressed. Yet, when examined closely, the risk assessment is based on a misconception of conflict of interest theory. Institutional CoI (conflict of interest) are not about a conflict between“WHO’s work” and “vested interest” of a non-state actor. They are about the risk of WHO’s constitutional mandate and functions being unduly influenced by WHO’s own secondary interest, e.g. its efforts to secure funding”. Health Action International (HAI) said that it is “problematic that crucial distinctions between civil society and the private sector are blurred by subsuming them as non-State actors in the proposed Framework before the assembly”. According to Corporate accountability International, “Civil society and the private sector are not the same, and cannot be considered to share the same value-based primary interests. In fact, we do not believe that the policy is proposing a thorough examination of conflict of interests. If taken forward in its current form, it may lead down a slippery path towards corporate capture of the global public health arena. Food and beverage corporations marketing junk to our kids are not stakeholders in health. The framework on engagement with non-State actors must expand its boundaries on non-engagement to include the food, beverage, alcohol and pharmaceutical industries as “red lines” for their harms to health through specific products or policies”. Medicine Mundi International said that, “the new policy may not be sufficient in curbing the influence of private interests over the functioning of the WHO. It is dependent on complex bureaucratic procedures while ignoring the structural causes of improper influence”.