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TWN
Info Service on Health Issues (May23/02) 4 May 2023, Geneva, (Nithin Ramakrishnan and K M Gopakumar) – WHO Member States have expressed their willingness to engage in amendment proposals on the International Health Regulations (IHR) 2005, focussing on the delivery of equity at the 3rd meeting of the Working on Group on Amendments to IHR 2005 (WGIHR3). WGIHR3 took place in hybrid mode on 17 to 20 April at the WHO Headquarters Geneva. Though the report of the WGIHR3 meeting was discussed and adopted on 20 April the same is yet to be posted on the WGIHR webpage. After three and half days of detailed substantive discussions on the IHR amendment proposals, Member States adopted a report of the meeting on the 4th day which sets out the way forward. States have agreed to hold intersessional meetings in the following format till the 4th meeting of the WGIHR (24 – 28 July 2023):
Further,
there is an agreement on a joint meeting between WGIHR and the Intergovernmental
Negotiating Body (INB) that is developing the pandemic instrument
but this is not yet scheduled. The report states that many countries
expressed interest in scheduling the meeting after the 76th
Session of World Health Assembly in the last weeks of May and before
the INB drafting group meeting during the week of 2 June. Proposals on Articles 13(5), newly proposed Articles 13(7), 13A, and some parts of Annex 1, were discussed on the second day, focussing more on equitable access to health products and WHO’s centrality in international public health response. On the third day, proposals on Articles 44 and 44A were discussed along with the remaining parts of Annex 1 proposals, i.e. on coordination and collaboration and the establishment of a new WHO financial mechanism, accountable to WHO for the implementation of IHR 2005. On the final day, there was a brief discussion on newly proposed Annex 10 and then the process for the way forward was outlined in the report of the meeting. A lengthy debate occurred on the way forward, and the inclusion of WHO National Focal point experts. According to many delegates, the WGIHR3 discussions are a precursor to text-based negotiations. Member States focused on the amendment proposals and suggested additions and deletions, rather than trying to reach consensus on the textual proposals during WGIHR3. The European Union’s proposal to mandate the WGIHR Bureau to develop streamlined text for negotiations did not find much support. The WGIHR negotiations would instead be based on the textual proposals from the Member States. Another proposal from the WGIHR Bureau to have technical inputs from National IHR Focal Point experts during drafting group meetings received mixed response. This was finally withdrawn, and it was agreed that there will be informational briefings involving National IHR Focal Points, regarding implementation and governance. According to a developing country delegate, this is “how the negotiations should progress”, pointing towards the process and the faith it keeps to Member States’ text proposals. This shows Member States are working together despite their differences. When Member States’ text proposals are on the table, there is a lot more clarity on the content and the context. States know each other’s political situation, legal tradition, political economy outlook, their ambitions and interests. It is much easier to negotiate in this way than negotiating on text that comes from a third party, whereby it is difficult to assess the intent of the text, in turn making it difficult to find common ground. According to a senior diplomat from a developed country, it is heartening and absolutely positive that even delegations with drastically opposite views have found ways to engage with each other. “We are hopeful the intersessional work will begin to show convergences between Parties,” the diplomat added. Day 1: Debates on Implementation and Compliance After the 1st plenary session, in which the co-Chair requested Member States to remain focused on equity, deliberations began on the amendment proposals made by the Africa Group, the United States and the EU to establish implementation/compliance committees for improving the IHR 2005 implementation. The US and EU proposals sought to establish an expert committee of limited Member States with quasi-judicial powers, such as calling for more information from States Parties and conducting fact finding missions in the territories of the affected States Parties. Developing countries, on the other hand, were asking for an implementation committee, inclusive of all Member States, which would regularly monitor and provide guidance on the functioning of IHR 2005, establishment and development of capacities, extent and quality of international assistance provided, actual realisation of equity etc. The US and Switzerland apparently tried to incorporate an assessment mechanism that could conditionalize financial and technical assistance following the framework of IHR 2005. The US, that had proposed a universal periodic review on IHR core capacities establishment in its written submissions to WGIHR3, sought to circulate a new text proposal containing details of the review process, mostly adapting from the WHO’s pilot projects on Universal Health Preparedness Review. This proposal would convert existing voluntary assessment mechanisms into obligatory processes imposed on a State Party to IHR. (See TWN article, containing some elements of the newly proposed UHPR process.) The EU wants the implementation committee to be the part of the World Health Assembly (WHA) or to meet during the Assembly. Countries with smaller delegations are quite unhappy with this suggestion since during the WHA, there will be several agenda items going on, and the discussions on IHR implementation will then not get the required time to address the details and nuances. The Africa Group delivered a statement in the closing session reasserting their position that any committee that WGIHR may agree upon to promote compliance and assistance should have universal membership. They called on the US, the EU and Malaysia to take forward discussions on composition, structure and functioning of the committee through informal consultations during the inter-sessional period. It is learnt that Malaysia was previously involved in the informal discussions between the US, the EU and the Africa Group on the implementation of IHR 2005, although they have not proposed any text themselves. Meanwhile, another crucial debate at WGIHR3 was on the use of the phraseology “developed countries” and “developing countries”. Many amendments proposed to IHR 2005 seek to create specific obligations on developed countries to provide assistance and support to other States Parties and WHO. Developed countries, especially the EU, wanted to alter these amendment proposals using the World Bank classification of countries based on income status such as high income, upper middle income, lower middle income, and low-income countries. Developing countries opposed the move and showed that several other organisations including the United Nations and World Trade Organization are continuing to use the words “developed” and “developing”. It is understood that Russia had questioned which are the developed and developing countries, and whether WHO has previous understanding of these terms. In fact, Article 50(6) of IHR 2005 uses both terms and Article 44(2)(c) uses “developing countries”, both obligating WHO to perform certain functions. The operations of WHO for the last fifteen years under IHR 2005 thus clearly indicate that there is no problem in continuing with this terminology. Moreover, it is important to understand that income-based classification of countries is not a fully relevant classification for the purposes of IHR 2005. The indicators of development included in the UN classification, on the other hand, are appropriate for public health purposes. Discussions on accountability on technical assistance According to the current text of Article 13(4) of IHR 2005, WHO is given a discretionary authority to offer assistance in terms of on-site assessment of disease/emergency outbreak by international experts, in addition to any support WHO may provide to the countries affected by the outbreak pursuant to Article 13(3). States Parties are free to accept or reject such offers of assistance. But once WHO decides to invoke Article 13(4), developing countries are more susceptible to such offers. Developed countries who are not dependent on WHO do not have the pressure to accept any such offers. This provision allows for the intrusion into the internal affairs of the developing country States Parties by coupling together “technical assistance” with “on-site assessment of outbreaks”, forcing them to open their borders to international assessment teams, that could also at times involve security or defence personnel from other countries. This provision usually does not affect developed countries since they customarily do not seek assistance from WHO. [Article 13(3) reads: At the request of a State Party, WHO shall collaborate in the response to public health risks and other events by providing technical guidance and assistance and by assessing the effectiveness of the control measures in place, including the mobilization of international teams of experts for on-site assistance, when necessary. Article 13(4) reads: If WHO, in consultation with the States Parties concerned as provided in Article 12, determines that a public health emergency of international concern is occurring, it may offer, in addition to the support indicated in paragraph 3 of this Article, further assistance to the State Party, including an assessment of the severity of the international risk and the adequacy of control measures. Such collaboration may include the offer to mobilize international assistance in order to support the national authorities in conducting and coordinating on-site assessments. When requested by the State Party, WHO shall provide information supporting such an offer.] The US in its proposals has sought to remove the clause that says, “At the request of State Party” in Article 13(3), and convert “it (WHO) may offer” to “it shall offer” in Article 13(4). This means Article 13(3) and 13(4) would both trigger mandatory pro-active offers of assistance from WHO. Further the US proposed that a country must either accept or reject such an offer of assistance within 48 hours and, in the case of rejection such country shall provide WHO with its rationale for the rejection. The proposal in turn mandates WHO to share the same with other States Parties. Further, the proposal seeks to append another sentence to Article 13(4): “Regarding onsite assistance, in compliance with its national law, a State Party shall make reasonable efforts to facilitate short-term access to relevant sites; in the event of a denial, it shall provide its rationale for the denial of access”. All
this shows that the real U.S. interest in offering pro-active assistance
is an attempt to gain access to outbreak sites and pressurize countries
Interestingly, when the Africa Group sought to amend Article 13(5) that deals with the obligation of States Parties to support WHO coordinated public health response activities in a similar fashion, the US, the EU and other developed countries opposed such a proposal. The Africa Group had proposed to create an obligation on States Parties to provide support to WHO’s coordinated public health response to public health emergencies of international concern (PHEICs), when requested by WHO. According to the proposal, the support shall include supply of health products and technologies, especially diagnostics and other devices, personal protective equipment, therapeutics, and vaccines. The proposal further wants to extend the obligation that the States Parties must also give reasons to WHO, if they are unable to provide the required support to WHO. The Africa Group has also proposed to introduce a new Annex 10 to IHR 2005, wherein Paragraph 1 sets up a similar obligation to provide collaboration and assistance or to provide reasons in cases where collaboration or assistance is not provided. There is no timeline set in the Africa Group’s proposal for responding to requests from WHO or from other States Parties, unlike the US proposal on offers of assistance, yet developed countries opposed such an amendment proposal arguing that it is invasive of national policy space. It is learnt that several developing countries, on the other hand, supported the Africa Group’s proposals. The double standards maintained by the developed countries including the US thus got exposed in the meetings. A developing country delegate said that the developing countries have all legitimate reasons to oppose the amendments sought by the US, while the developed and rich countries have no moral or political reasoning to oppose the Africa Group proposal. Developed countries’ stance starkly contrasts with various international agreements on emergency that promote a duty to respond promptly to the request for assistance. Examples include the International Civil Defence Organization (ICDO)’s Framework Convention on Civil Defence Assistance 2000, ASEAN (Association of South East Asian Nations) Agreement on Disaster Management and Emergency Response, 2005 and SAARC (South Asian Association for Regional Cooperation) Agreement on Rapid Response to Natural Disasters 2011. Such norms and rules have become part of the United Nations International Law Commission’s work recently. Article 12 (2) of the Draft articles on the protection of persons in the event of disasters 2016 states: “When external assistance is sought by an affected State by means of a request addressed to another State, the United Nations, or other potential assisting actor, the addressee shall expeditiously give due consideration to the request and inform the affected State of its reply”. The Africa Group’s proposal to include an obligation to provide support to WHO coordinated activities in Article 13(5) and to provide collaboration and assistance in Annex 10 is thus important and consistent with international law in this regard. Paragraph 1 of Annex 10 reads: “States Parties may request collaboration or assistance from WHO or from other States Parties in any of the activities mentioned in paragraph 2 or any other activities in which collaboration or assistance with regard to health emergency preparedness and response become necessary. It shall be (the) obligation of the WHO and States Parties, to whom such requests are addressed to respond to such request, promptly and to provide collaboration and assistance as requested. Any inability to provide such collaboration and assistance shall be communicated to the requesting States and WHO along with reasons.” Days 2 & 3: Equitable Access to Health Products, Technologies and Finance On the second day of WGIHR3, developed countries initially opposed the proposals made by the Africa Group and Bangladesh for a New Article 13A in IHR 2005 which address equitable access to health products and WHO-led international public health response. Both the proposals of the Africa Group and Bangladesh seek to address the issues of equitable access to health products through a WHO mediated allocation plan and diversification of production. The developed countries, despite their failure to provide for equitable access to health products for responding to the COVID-19 pandemic, continued to oppose these proposals with arguments on the scope of IHR 2005 and WHO’s constitutional mandate. While making such arguments they totally ignored the travaux preparatoires (negotiation history) and current practice of IHR 2005 that suggest the scope of IHR 2005 to be inclusive of equitable access to health products, required for responding to PHEICs. It is understood that WHO’s Legal Counsel, Steven Soloman, clarified that these proposals could fall within the scope of WHO’s mandate. The WHO Secretariat was commended for their “wise interventions” by Brazil during the closing session. Following detailed interventions by the Africa Group and Bangladesh, Member States decided to further engage in informal consultations on the proposals. Similarly, after initial resistance to developing country proposals for amendments to Article 44 on coordination and assistance, and a new Article 44A establishing a financial mechanism for IHR 2005 implementation, the discussions ended on a positive note, where Member States agreed to further consider the proposals through intersessional work. It was learnt that developing country Member States cited the example and modalities of the contingency fund established at WHO by the Executive Board decision following the Ebola outbreak and response. Although certain developed countries belonging to the Group of Friends of a Pandemic Treaty continue to be sceptical on the scope of IHR 2005, there is a clear understanding emerging that IHR 2005’s scope is amenable to Member States’ interpretation. On the last day of WGIHR3, Brazil emphasised the need for balancing the possibility of enlarging the minimum requirements of surveillance under IHR with equitable and timely access to pandemic response products. Brazil reasserted that the equity discussions should take place in the WGIHR and INB, while Indonesia acknowledged there will be some duplication in both instruments. During the opening plenary of WGIHR3, Indonesia had stated that, “For Indonesia, synergy and coherence means not only the avoidance of duplication; perhaps, some duplication is necessary, but synergy and coherence could be in the form of cross-referencing among the two documents or in other forms that may be necessary”. During the closing plenary, Tanzania stressed the need for equity in IHR 2005, while Kenya stated that it is looking forward to a strengthened IHR 2005 that addresses the equity-related gaps identified by several expert review panels. Ethiopia said it is optimistic on the equity pillar. The US also called for “tangible outcomes”, while China remarked on the constructive engagement of Member States and said that it is improving when compared to the past negotiations. The Africa Group stressed the need for an implementation committee that is inclusive of all States Parties to IHR 2005 and highlighted the importance of health systems strengthening.+
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