Between Participation and Capture in International Rule-Making: The WHO Framework of Engagement with Non-State Actors

Abstract

Following demands for more democratic legitimacy and given the growing dependency of international organizations (IOs) on external information and resources, in the past decade and a half, IOs have opened up their rule-making to non-state actor (NSA) participation. In a broad sense, this participation trend tracks the 20th-century administrative law revolution in many democracies, whereby an expanding and more powerful administrative state engendered greater demands for transparency and citizen participation in rule-making. Such opening-up would indeed appear to improve the democratic responsiveness of IOs, yet what the literature has largely ignored so far is that it also increases the risk that rule-making becomes captured by the interests of narrow groups. Three main types of capture risks have become particularly prevalent in international rule-making: capture caused by the dependency of IOs on the information held by business entities, capture caused by the over-representation of business entities, and capture caused by the financial contributions of NSAs to IOs. The recent Boeing 737 Max scandal highlights the potentially tragic consequences of capture. In 2016, the WHO became one of the first IOs to adopt a comprehensive policy for encouraging NSA engagement while simultaneously mitigating the accompanying risks—the Framework of Engagement with Non-State Actors (FENSA). In this article, I explore how and whether FENSA prevents capture risks — on paper and in practice. Further, NSA engagement is a central feature of the 2030 Agenda for Sustainable Development and of the 2016 Sustainable Development Goals (SDGs), and many IOs are adapting their strategic approaches and work plans towards more NSA engagement. In the process, the IOs are considering ways to develop or revise outdated policies to address the risks of engagement, and they will likely look to FENSA for inspiration. FENSA thus also serves as a case from which I seek to draw more general lessons as to the capability of such engagement reforms to prevent capture in international rule-making.