Push to Prioritize Prevention Over Response in the Negotiations to Amend the IHR, Developing Countries Dig Their Heels To Preserve Equity Proposals
Newsletter Edition #46 [Treaty Talks - IHR]
Hi,
Global Health is where the technical meets the political. The negotiations to amend the International Health Regulations captures this better than nothing else.
Today we bring you an update on the discussions that took place last week in Geneva, on some of the proposals to amend the IHR, at a meeting of the working group set up to conduct these negotiations.
Grateful as ever to diplomats, experts who take the time to educate us and our readers on the many nuances in the rules that govern health emergencies. (Do not miss the quotable quote from a diplomat: “It is like playing 3D chess” weighing positions and motivations in these two track negotiations.)
Reporting on these discussions, while rewarding, is a fair amount of hard work. We are keen on making information and analysis available in a timely manner to meet the needs of negotiators and others involved in these processes. We want more country missions to support us by becoming paying subscribers so that we are able to continue covering these negotiations, the way we do. Get in touch with us to know more about institutional subscriptions.
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Please note that our publishing schedule will be a bit wonky in the coming weeks as determined by the news cycle, and on account of some personal commitments. [We are heading into the autumn school break in this part of Switzerland.]
Thank you for understanding.
Best,
Priti
Feel free to write to us: patnaik.reporting@gmail.com or genevahealthfiles@protonmail.com; Follow us on Twitter: @filesgeneva
I. STORY OF THE WEEK
Push to Prioritize Prevention Over Response in the Negotiations to Amend the IHR, Developing Countries Dig Their Heels To Preserve Equity Proposals
[An Update from WGIHR5]
By Priti Patnaik & Tessa Jager
The initial assumptions on the apparently narrow and technical nature of the IHR are now being tested, with realpolitik inevitably now shaping these negotiations. As WHO member states get deeper into discussing and negotiating the proposed amendments to the IHR, it is becoming obvious that several difficult choices will need to be made in order to make this instrument better fit for purpose.
Various stakeholders including some developed countries, have shown propensity to focus on surveillance, broadly, prevention-related measures, that they feel would likely attract consensus more easily. But developing countries continue to push for fairer treatment of response related amendments to the IHR, including notably equity proposals such as access to countermeasures among others.
So, while some negotiators acknowledged that there has been greater recognition to treat equity related provisions in the IHR, developing country diplomats foresee an uphill battle on translating rhetoric on equity to actual obligations.
In the fifth meeting of the Working Group set up to amend the IHR, countries decided to buy more time to finalize the amendments to the IHR, pushing the initial deadline from January 2024 to May 2024, in line with what is allowed under the legal procedures of the WHO constitution. (See more on this below.)
In this story, we discuss provisions, politics and the question of timeline of these discussions. We spoke with numerous negotiators and experts on the sidelines of the meeting at WHO in Geneva last week.
WG-IHR FIFTH MEETING: [October 2nd-6th]
Last week countries discussed a range of provisions on health emergencies including points of entry, transport-related measures, health documents, use of data, and also the more fundamental provisions on definitions, scope and principles.
Co-Chairs of the working group, Abdullah Asiri of Saudi Arabia and Ashley Bloomfield of New Zealand, also provided updates on the discussions on proposals considered at the previous meeting, on the intersessional briefings and facilitated informal consultations. The following are some of the issues that were previously discussed: Responsible authorities – Article 4; Notification, verification, and provision of information – Article 5 (paragraph 4 and new proposals for paragraph 5); Articles 9 and 10, Annex 2; Temporary and standing recommendations – Article 18; The Emergency Committee – Articles 48 and 49.
Countries also discussed specific proposals including on Article 8 on consultation (Japan) and Article 11 on provision of information by WHO, paragraph 5 (India and the U.S.)
The meeting last week considered the amendment proposals of these articles: points of entry (article 19 general obligations); public health measures (General provisions); Health measures on arrival and departure (Article 23); Special provisions for conveyances and conveyance operators (Article 24); Affected conveyances (Article 27) and Ships and aircraft at points of entry (Article 28); Special provisions for travellers; Health measures relating to entry of travellers (Article 31); and Annexes 3 and 4.
They also considered provisions on: health documents (Article 35 General rule); Certificates of vaccination or other prophylaxis (Article 36); Implementation of health measures (Article 42), Additional health measures (Article 43); treatment of personal data (Article 45); Annexes 6 and 8; Settlement of disputes (Article 56). There were discussions on definitions, purpose and scope, principles (Article 1, Article 2, Article 3 respectively).
(See all the 300+ proposals for amendments here, and by country submission.)
THE PROVISIONS
ON DEFINITIONS, SCOPE AND PRINCIPLES
Countries including Malaysia and Africa Group had made proposals to amend the definitions in the IHR to define health products and technologies.
Bangladesh has sought an amendment in the definition on temporary and standing recommendations, suggesting a deletion of “non-binding advice”.
This proposal from Bangladesh has to be read in conjunction with their proposal for a new provision Art 13A that seeks equitable access to health products and technologies. However, Bangladesh’s proposal wants this to be binding on countries, and hence the suggested amendment in the definitions.
(See TWN update with legal analyses on these provisions here: WGIHR to discuss health emergency measures and unilateral actions)
SCOPE
As has been reported earlier, there has been resistance on expanding the scope of the instrument among some countries. Some academic experts are also divided on expanding the scope of the instrument. For IHR purists, preserving the technical nature of the regulations is key. Including equity measures or expanding the IHR amounts to politicizing these rules, they say.
But several countries point out how the previous revision of the IHR in 2005 compared to the version in 1969, was substantially expanded post-SARS in 2003. “There is an urgent need to expand the scope of the IHR over what was agreed in 2005,” a diplomat from a country in Asia told us.
Negotiators also pointed out statements from Mike Ryan, WHO’s emergencies chief who has emphasized how the IHR has served the world well. Experts agree that the weaknesses in the IHR lie in the implementation. This draws attention to the need to beef up response measures in the IHR, developing country negotiators argue. (Also see Ryan’s comments on the usefulness of the IHR at a July meeting that was webcast.)
“Therefore, we need to focus our energies negotiating equity measures including the contentious issues of financing, access to countermeasures, and Access to information and Benefits-Sharing. The prevention provisions in the IHR have served us well.”, a developing country negotiator told us in the sidelines of the meeting last week.
Developing countries have suggested text to amend Article 2 including references to preparedness (India), health systems readiness and resilience (Bangladesh) and to equitable access to health products and technologies (Africa Group).
PRINCIPLES
Countries continued to debate on incorporating certain principles from the environmental legal regime into global health, notably Common but Differentiated Responsibilities, and the use of the precautionary approach.
Precautionary Approach:
While some developed countries favor reflecting the principle of the “precautionary approach” in the IHR, developing countries seem to be cautious on the resulting implications of doing so, including an increase in potential obligations without associated resources for implementing such obligations whether it relates to the so-called “One-Health Approach” or in general towards sharing more information.
Overall, countries would prefer to preserve the proportionality approach embedded in the IHR that seeks to strike a balance between health, trade and human rights. In theory, the IHR promotes carefully the weighing scientific evidence of effectiveness against the restrictive nature of certain measures, informed by the principle of proportionality.
Common but Differentiated Responsibilities:
The proposed use of CBDR has been contentious right from the beginning of these discussions more than a year ago. To be sure it is not only developed countries that do not seem to be in favor of this principle. Not all developing countries are convinced about CBDR in a pandemic accord.
For the proponents of the CBDR proposal including the Africa Group, Bangladesh, India, Malaysia among others, the efforts are to link this principle to the question of resources and the financing of core capacities. (See our recent guest essay on this: Decolonizing Global Health Law By Drawing on Lessons from International Environmental Law.)
“We are not arguing for reduced responsibilities, we are seeking obligations based on different levels of development. We want more well-resourced countries to contribute to greater financing for implementation of IHR. However, this is being spun in a way that is not accurate, as if we are not ready to commit to IHR obligations,” a developing country diplomat told us. “It does not make sense for us to sign up for more obligations without corresponding resources, but all not developing countries seem to understand this,” the diplomat added.
Many countries in Africa lurch from one health emergency to another (Ebola, COVID-19, Mpox) without having the resources and space to recover their health systems, diplomats say. Some countries are clearly more affected than others, and hence the need for CBDR, they argue.
Developed countries do not see their historical responsibility arising out of the acceptance and application of the CBDR principle the way it has been articulated in the climate context. (Historical contribution to climate change on account of industrialization.)
However, some scholars have argued that colonialism has been a determinant of weak health systems. But countries are hesitant to bring this aspect into the current negotiations, sources told us. “We do not want to go there. But developed countries should get the message,” one diplomat shared with us.
Safeguards for information use: A peaceful purpose clause
Also discussed, was Malaysia proposal on peaceful purpose: “New 6: Exchange of information between State Parties or between State Parties and WHO pursuant to the implementation of these Regulations shall be exclusively for peaceful purposes.”
In the context of greater emphasis on the sharing of information, Malaysia seeks to address a potential loophole in the way such information can be mishandled. To reduce potential risks of biological weapons proliferation or bioterrorism, Malaysia has suggested this language under Article 3 on principles.
ON HEALTH MEASURES
Countries spent substantial part of their discussions on provisions related to health measures in the meeting last week.
These included discussions on certain amendments under special provisions for conveyances and conveyance operators. A proposal from Japan on these set of articles (24, 27, 28) seeks to increase the power of state parties to impose quarantine measures “on board” for example, drawing from the country’s experience during COVID-19 where a luxury ship was docked in Yokohama, Japan. Experts caution human rights implications of such proposals.
Also on the agenda were proposals to amend Article 43 on additional health measures that governs the circumstances under which state parties can impose measures, such as for example, the entry of persons and goods. It also governs WHO’s role in assessing these measures and issuing recommendations. The EU has also submitted language on this.
Africa Group has sought to introduce new language (Para 3bis): New 3 bis. “A State Party implementing additional health measures referred to in paragraph 1 of this Article shall ensure such measures generally do not result in obstruction or cause impediment to the WHO’s allocation mechanism or any other State Party’s access to health products, technologies and knowhow, required to effectively respond to a public health emergency of international concern. States Parties adopting such exceptional measures shall provide reasons to WHO.”
Data Governance
Countries also discussed proposals from Brazil, Indonesia, Russia and the EU to amend Articles 23, 31, 35 and 36 broadly on health documents and the digitalization of such documents in the context of health emergencies.
In their analysis of these proposals, TWN experts say that digitalization as a policy measure differs in the way developed and developing countries approach this issue. While standardization of health documents and interoperability of platforms streamlines operations, they caution against transferring data from one jurisdiction to another.
Some safeguards have also been suggested by Japan, Indonesia and Africa Group with respect to treatment of personal data under Article 45.
THE POLITICS: RESISTANCE TO DISCUSS EQUITY
During the meeting, sources said that some countries were not keen on discussing equity related provisions in the IHR, suggesting that the Intergovernmental Negotiating Body working towards a new Pandemic Accord, was already working on these elements. They instead suggested that other prevention related measures should be tackled first. But developing countries pushed back against segmenting the amendment proposals into such categories, according to some diplomats.
“Without clarity in INB, without knowing the contours of the Pandemic Accord, the global south finds it difficult to trust the process. Hence their emphasis on equity related measures in the IHR. So, making progress in the IHR is going to be difficult,” a developed country negotiator told us.
The reason for ensuring equity provisions in the IHR are two-fold according to developing country diplomats: one, pending clarity in the INB process, they want this to be addressed in a binding instrument such as the IHR that has wide participation with 196 countries. Second, the pandemic accord will focus on pandemics, but the IHR can address a wider set of health emergencies.
At the opening session of the meeting, Namibia said:
“….We are however concerned that we might be headed toward an early harvest approach for some proposed amendments, while significant progress is lacking on some of the proposed amendments, especially those that seek to mainstream equity into the International Health Regulations. Co-Chairs, there was broad support for the inclusion of proposals that seek to operationalize equity under both instruments: that is the Pandemic Accord and the International Health Regulations. To quote my distinguished colleagues from the European Union…they said that “there is no constitutional barrier to accommodate equity in both instruments.’’ Given this broad consensus among Member States, we need to see significant progress on the equity proposals…”
Financing
One of the least tackled, but critical areas for these negotiations are financing arrangements to address implementation and core capacities mandated under the IHR. While there has been an intersessional briefing on the subject, countries are yet to begin negotiations on this. A presentation at a session held earlier this month, from the G20 secretariat showed multiple existing mechanisms. It is becoming clear that a wide range of countries see World Bank’s Pandemic Fund as only one of the many existing mechanisms. (Some countries questioned why the World Bank had not bothered to show up at the briefing session on financing.)
It seems that there could be growing appetite for a new financing mechanism with governance structures that reflects the needs of WHO member states. “Financing could hold the key to unlock some of the difficult discussions in other areas, such as for example tech transfer,” a developed country negotiator indicated.
In a statement made at a session that was webcast, Kenya said:
“As such, we welcome the ongoing discussions in both WGIHR and the INB to address these gaps and ensure equitable access to health products and sustainable financing. On the 19th of September, Member States of both the WGIHR and the INB were also briefed on the financing landscape for health emergency preparedness and response by WHO and other stakeholders. From the presentation and ensuing discussions, the African Member States noted the importance of close coordination of the multiple existing financing efforts to ensure synergies and minimize inefficiencies, as well as the need for trigger in both instruments for financing of the different work streams based on the prevailing situation. We also noted the significant funding gap that currently exists and the reality that no one fund could adequately address the needs related to PPPR. The African Member States have made a proposal for a Member State-led financing mechanism under Article 44 to support implementation of the IHR. We therefore reiterate the importance of flexible and predictable financing arrangements which are not adversely affected when financing preferences and priorities change.”
THE TIMELINE AS A CATALYST FOR CONVERGENCE
Given the distance that countries need to cover in order to review, negotiate and decide on 300+ proposals for amendments, the WG-IHR decided to buy more time till May 2024.
The co-chairs indicated that is not realistically possible to be ready with a whole package of amendments by January 2024. They sought counsel from WHO’s legal experts to be able to continue negotiations till May 2024.
Co-chair, Asiri of Saudi Arabia said that “the WGIHR is confident that we will be able to deliver on our mandate by the [May] 77th World Health Assembly. The will is there.”
Steve Solomon, WHO’s Principal Legal Officer explained:
“The Health Assembly, in Decision WHA75.9, requested the Working Group, and I quote: ‘’to establish a programme of work consistent with Decision EB153 and taking into consideration the report of the IHR Review Committee, to propose a package of targeted amendments for consideration by the 77th World Health Assembly, in accordance with Article 55 of the International Health Regulations.’’ Article 55 of the IHR, which is referred to in Decision 75.9, sets out two procedural requirements relating to proposed amendments. The first one is that ‘’proposals for amendments shall be submitted to the Health Assembly for its consideration.’’ The second one is that ‘’the text of any such proposed amendment shall be communicated to all States Parties by the Director General at least four months before the Health Assembly at which it is proposed for consideration.’’
Again, that is the text of the relevant Article of the IHR, Article 55. Article 55 of the IHR, including this four-month requirement, has never been applied to amendments submitted collectively by a subdivision of the Health Assembly - which is exactly what the WGIHR is. The WGIHR is a subdivision of the Health Assembly under Rule 41 of the Rules of Procedure of the Health Assembly. Thus, there are no precedents to rely on, with respect to the manner in which the four-month requirement set out in Article 55 should be satisfied. That is to say: Article 55 has been applied to amendments proposed by the State Party or by the Director General, but never by a subdivision of the Health Assembly. Indeed, it has not been applied with respect to any subdivision. This is a first.
Accordingly, an option for consideration by the Working Group would be for the Director General to communicate in January 2024, the following documents to all States Parties: first, the proposed amendments as originally submitted by Member States and already communicated by the Secretariat to all States Parties by email, and second, the proposed amendments as they might be shown on the screen at the closure of WGIHR6. This approach would allow work to continue in the WGIHR, if necessary, up until the 77th Health Assembly itself, recognizing the importance of complementarity with the INB process, which as we know, is mandated to work up until the 77th WHA.
In addition to that, the Working Group may consider requesting the Secretariat to include in the January communication from the Director General, a clarification, according to which the amendments from the final session of the WGIHR, which could be, conceivably, as late as May 2024, if necessary, would allow these final results of such a session to be formally submitted to the 77th World Health Assembly….”
Accordingly, the working group decided that countries will be able to continue negotiating on the IHR amendments until May 2024. It was agreed that in January 2024, WHO DG Tedros will communicate to all States Parties, proposed amendments originally submitted, in addition to amendments at the end of WGIHR6 – a meeting scheduled for December 2023. The DG will submit to the 77th World Health Assembly the package of amendments agreed at the final session of the Working Group to be held before WHA77 in May 2024.
(Also read the co-chairs’ interview with us in July: “Some aspects of IHR amendments linked to, dependent on, where the INB process finishes. Need for us to remain in step until May 2024”: WG-IHR Co-Chairs Asiri & Bloomfield)
But there is more than just time at stake. For some countries, it is essential that both tracks of the discussions continue in parallel. “You cannot finish negotiating the IHR and give up on the treaty. We have to hedge our risks, to ensure that all countries remain committed on both tracks,” a developing country negotiator told us.
“So, if we eventually buy more time for the INB, we will also have to put on hold the IHR amendments’ process,” the negotiator added.
Trade-offs in the negotiations akin to “3D Chess”?
Not only expect trade-offs to be made between the both tracks of negotiations, but within each of these tracks. During these weeks, many countries “reserved” their positions on some of the amendment proposals pending how other pieces in the negotiations move, sources said.
“Countries are weighing their options across the various proposals for amendments to the IHR. They might give in on some, while gaining on others. They will also keep moving on INB discussions relative to what is being discussed here. It is like playing 3-D chess,” a developed country diplomat told us.
At a session that was webcast, Nigeria said: “It is important that we continue to work and look at the entire proposals as a package. So, this will enable concessions to be made where necessary. This will enable trade-offs where necessary, this will enable everyone to work together to ensure that everyone’s interest is carried along.”
Countries are seeking to strike a balance across these tracks to ensure some of their goals will be reasonably met. This will likely be messy and opportunistic.
THE CONDUCT OF THE IHR NEGOTIATIONS
Over the last many months, diplomats had referred to the IHR discussions as being positive, organized and efficient, compared to the INB negotiations for a new Pandemic Accord. And yet, some are beginning to share their scepticism in the process.
“These negotiations are tricky. There isn’t a lot of flexibility. We are constrained by the amendment proposals previously submitted. There is no room for altering text outside of the proposals. In the INB there is greater scope for creativity,” one diplomat told us.
Yet many believe that the targeted nature of these discussions mean that countries do not open up the entire instrument for negotiation. It is also acknowledged that the way the IHR have been constructed, changing language in a provision, also has implications on other provisions. To some, this process has been difficult and too straight-jacketed, also given the resistance to expand scope of the instrument.
Countries also want the bureau of the WG-IHR and for the Co-Chairs, to play a more proactive role in bringing countries together particularly on the contentious issues with deep divergences. “They should work more in the background in trying to persuade some of the developed countries,” one negotiator told us.
NEXT STEPS
In terms of next steps over the coming weeks, a statement from WHO stated:
“It was agreed that efforts should continue during the intersessional period (before the next meeting of the WGIHR in December), including:
discussions between proponents of various proposed amendments, with a view to presentation of any outcomes for the consideration of the drafting group;
intersessional briefings and facilitated intersessional consultations covering Articles, Annexes and topics discussed during this and previous meetings of the WGIHR, including those that have been the subject of intersessional work. This includes also work on financing for public health emergencies and IHR implementation, and the Public Health Alert – PHEIC – pandemic continuum, including definitions, criteria and the process for determining each. The outcomes of facilitated intersessional consultations will not constitute agreed text and will be made available in advance of the next WGIHR meeting in December 2023; and
preparation, as relevant, by the Bureau with the assistance of the Secretariat, of draft text proposals based on the discussions so far, for consideration by the Working Group at the Sixth Meeting.”
Time is ticking for Geneva’s health diplomats who are in constant consultation and dialogue to conclude these negotiations in time. With the world’s newest war demanding attention, political commitment to PPR negotiations is ebbing away faster than expected in a swiftly changing geopolitical landscape.
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