Developing Countries Could Use IHR Negotiations as a Tool to Ensure Pandemic Agreement Talks Stay on Course [WG-IHR Update]

Newsletter Edition #60 [Treaty Talks]

Dec 11, 2023

Hi,

We bring you a quick update on some of the deliberations from last week at the Working Group to set up to amend the International Health Regulations - the technical rules that govern health emergencies.

Technical as they may be, these discussions are not insulated from politics or realpolitik. These set of negotiations will be shaped and informed by the much more contentious discussions on the Pandemic Agreement that has captured the imagination of politicians and people alike.

Also check out our update on the INB meeting sent late last week, in case you missed it: Pandemic Agreement Talks “Difficult” Amidst Polarisation, Pressure Builds for a "Lite" Accord by May 2024 sans Contentious Provisions

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Thank you for reading.

Best,

Priti

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I. STORY OF THE WEEK

Developing Countries Could Use IHR Negotiations as a Tool to Ensure Pandemic Agreement Talks Stay on Course

Priti Patnaik and Tessa Jager

WHO member states met in Geneva during December 7-8 to make headway in the negotiations to amend the International Health Regulations. Countries met under the aegis of the Working Group to set up to amend these legally binding technical regulations applicable to 196 States Parties and WHO on public health events with risk of international spread.

More than 300 amendments have been submitted by countries to 33 of the 66 articles of the IHR, in response to the COVID-19 pandemic. When the process first began more than two years ago, countries were supposed to have concluded their negotiations on the IHR by December 2023.

But pending discussions and consensus on key proposals including those focused on introducing equity-related considerations to the IHR, more time has been sought to conclude the negotiations on amending these rules. In addition, critical issues such as definition of a pandemic; a tiered alert system for declaring health emergencies; and on financing mechanisms; are being addressed both in the forum to amend the IHR, and in parallel discussions towards a new Pandemic Agreement. Unless these key issues are addressed within the overall scope of governing health emergencies including also pandemics, changes to IHR cannot be approved in isolation, diplomatic sources explained to us this past week.

This story takes stock on the proceedings of the meeting, and key issues discussed by countries.

Image Credit: Photo by Mikhail Nilov, Pexels

THE WG-IHR MEETING: December 7-8, 2023

The meeting reviewed and discussed some of the proposals suggested by the Bureau of the WG-IHR on a number of different amendments proposed by member states.

At the meeting, the WG-IHR discussed the Bureau’s text proposals on Articles 4–9; 15–19; 23; 24; 27; 28; 31; 35; 36; 42; 43; 45; 56; and Annexes 3; 4; 6; and 8.

The bureau’s proposed text was considered in the following groups:

-          Group 1 - Article 19, Article 24, Article 27, Article 28, Annex 4
-          Group 2 – Article 23, Article 31, Article 35, Article 36, Article 45, Annex 3, Annex 6, Annex 8
-          Group 3 – Article 15, Article 16, Article 17, Article 18, Article 42, Article 43, Article 56
-          Group 4 – Article 4, Article 5, Article 8, Article 9, Annex 2

The Co-Chairs Abdullah Asiri of Saudi Arabia and Ashley Bloomfield of New Zealand, provided an update on the proposed approach for further work on: Article 10 Verification and Article 11 Provision of information by WHO – Article 12 Determination of a public health emergency of international concern, together with Part IX, Chapter II – The Emergency Committee, Article 48 Terms of reference and composition; Article 49 Procedure; and Annex 2 Decision instrument for the assessment and notification of events that may constitute a public health emergency of international concern – Article 1 Definitions; Article 2 Purpose and scope; and Article 3 Principles.

In addition, countries and blocs also provided updates on the following text proposals: – Article 13A Equitable access to health products, technologies and know-how for public health response (Africa Group and Bangladesh) – Article 44; Article 44A; and Annexes 1 and 10 – Current technical support, capacity-building and collaborative activities undertaken (Saudi Arabia) – Article 53A Establishment of an implementation committee (Africa Group) – Article 53 bis-quater The Compliance Committee (United States of America) – Article 54 Reporting and review (Malaysia) and Article 54 bis Implementation (European Union).

The drafting group agreed that the Bureau would consider these proposals and share proposed text with the drafting group ahead of the seventh meeting of the WGIHR in February 2024 (WGIHR7), according to a webcast of the close of the meeting.

An update was also given on the joint sessions held over the last few weeks, with the bureau of the Intergovernmental Negotiating Body, including on issues relating to financing mechanisms, on the PHEIC-pandemic continuum, on surveillance and prevention addressing One Health and capacity building.

It was also clarified that there will be coordination with the INB on these matters because “they clearly have an interest in this issue about the pandemic definitions and this continuum and how it relates to triggering provisions that may be in the agreed Pandemic Agreement,” Co-Chair Bloomfield said during the proceedings.

Discussions will also continue to develop an approach to financing that meets the needs and mandates of both processes.

In a statement after the meeting, WHO said:
“WGIHR members had very constructive discussions this week that continue to move us towards a package of amendments to be submitted to the next World Health Assembly. Of particular importance was agreeing on next steps on financing mechanisms for health emergency preparedness and response. The WGIHR is working in coordination with the INB on this and other common issues,” said Co-Chair Dr Ashley Bloomfield of New Zealand.
Co-Chair Dr Abdullah Asiri of Saudi Arabia also noted that, "One of the most critical matters the WGIHR is discussing centres on proposals for a tiered alert system, also referred to by Member States as the ‘public health alert – PHEIC – pandemic continuum’. The greater clarity we achieve on these definitions and the actions they require, the more prepared the world will be for the next pandemic.”
Delegations considered the text proposals from the Bureau, a group of 6 Member States representatives, appointed by the WGIHR from among the 6 WHO Regions, to facilitate the negotiations on the proposed amendments. For this meeting, the Bureau’s text covered more than half of the articles and annexes for which amendments have been submitted and was derived from discussions at previous meetings. Work will continue on the remaining articles that have proposed amendments, so that an overall package can be finalized and agreed by May 2024.
Member States of the WGIHR are working in close coordination with the INB, another ongoing government-led process to negotiate an international agreement, instrument or convention to prevent, prepare for and respond to pandemics. One of the cross-cutting subjects for both processes is the alert and response system, in particular the pandemic declaration and actions connected with it. To support this, the WGIHR will convene a subgroup to facilitate further consultations, in coordination with the INB. Before the next WGIHR meeting, scheduled to take place on 5-9 February 2024, discussions will continue among proponents of different amendments, including with INB subgroups. The Working Group will also meet in April 2024 to finalize its proposed package of amendments to be presented to the World Health Assembly in May.”

(See schedule here)

COME JANUARY 2024

Co-Chair Bloomfield also explained the next steps in the process to officially communicate the status of the negotiations to the WHO Executive Board in January 2024.

He said at the close of the meeting, in response to a clarification:

“I just want to update States Parties on the way that we intend to report to the Director-General in January, on the work of this Working Group. The original request of us was to provide a pack of Amendments to the Director-General. And we have had a discussion, as you will recall, previously, and had advice from the Legal Officer, that we can continue our work beyond January. And, in fact, we have committed to doing that, with meetings scheduled in February and April. And what we would propose to do is: as a Bureau, or as Co-Chairs, we will write to the Director-General in January to summarize or to outline the work we have done so far, the progress we have made, and what our intention is, over the coming months, to conclude our work in time to provide a full package of amendments for consideration at the World Health Assembly next year.”

He also clarified: “I don't think it's wise for us to provide a partially agreed set of amendments, because we've been very clear through this process: it's a full package that we want to provide.” The co-chair also recognized the “the need for the amended IHR to address equity at its heart. And it's a really key purpose, and it was part of our original mandate.”

So, for now, it seems that developing countries have been able to buy more time to discuss and push for equity related provisions, and have likely stalled efforts to split the amendments to “easier” proposals and the more “difficult” ones.

(Also see Third World Network: WGIHR Bureau’s proposals raise concerns on early harvest approach at the cost of equity)

THE PROPOSALS FOR AMENDMENTS

Some of the Bureau’s text proposals that were discussed include the creation of a National IHR Authority (Article 4), in addition to IHR focal points. But experts point out that without financial commitments, such additional institutions will be difficult for many countries.

(Also see this based on experts’ views on proposals from member states: Reference document: proposed amendments and technical recommendations)

Last week, the meeting also discussed proposals to amend provisions relating to traffic and trade (Articles 19 to 31). TWN experts caution against a Bureau proposal on “empowering conveyance operators to implement measures such as isolation and quarantine in Article 24.” They believe that this could allow conveyance operator to isolate passengers, and suggest that “This empowerment must be strictly circumscribed with obligations to be fair, proportionate and reasonable. Measures taken up by conveyance operators should be subject to human rights law and standards.”

Some delegates drew attention to proposed amendments on the recommendations that can be issued by the Director General (Articles 15 to 18: Recommendations of WHO Director-General). There are efforts to broaden the scope of what the DG can recommend, including referring to “health products” in a detailed manner. But some countries want these recommendations from the DG to go further, to be able to also explicit articulate measures and actions to ensure equitable access and allocation to such products. The proposed text by the Bureau refers to a WHO-coordinated mechanism on health products, without fully explaining what such a mechanism could be, delegates said.

(The Bureau’s suggested text on more than 20 different proposed amendments are not public. Geneva Health Files has been able to review some of these proposals.)

THE INB-IHR DYNAMIC

A number of diplomats from developing countries told us that although the amendments to the IHR could have a greater acknowledgment on matters of equity in the principles, it will remain to be seen whether proposals operationalizing equity will eventually feature in final package of amendments.

“I do not see developed countries agreeing to substantial changes in the current structure of the IHR, to include equity related proposals to amend these rules,” a senior diplomat from a large developing country told us last week on the sidelines of the WG-IHR meeting.

Interestingly, not all developing countries fully agree that the amendments to the IHR must transform the technical nature of the instrument. For some countries, bringing in equity related provisions amounts to politicization of the instrument.

“The IHR has its own character. We do not believe that the structure should change too much,” a developing country negotiator told us. Some countries are taking purist positions on this, observers say.

And yet, for developing countries particularly the Africa Group, among others, mainstreaming equity in the IHR are a central purpose to these proposed amendments.

“We have live examples to show why IHR has failed and has to be broadened to include equity provisions. Take Mpox for example. Africa has struggled to get access to vaccines, while the U.S. has stockpiled them. How can we have a situation like this, for a condition that was characterised as a Public Health Emergency of International Concern,” a negotiator from a small country raised the question.

(See Los Angeles Times: A year after outbreak, Africa waits for its share of mpox vaccines” and New York Times: How the U.S. Let 20 Million Doses of Monkeypox Vaccine Expire)

On some matters on access to medical products, there has been a propensity to suggest that some of these discussions are being conducted at the INB, diplomatic sources said. And yet, on the difficult issues on technology transfer or those related to intellectual property, there has been little progress even within the INB.

Countries are also looking at the IHR more broadly to govern health emergencies in general, than the narrow approach of the Pandemic Agreement that is intended to focus only for pandemics. “We are keen that the definition of a pandemic should feature in the IHR. PHEICs become pandemics, so it logical for the IHR to have this definition,” a diplomatic source explained to us.

Notwithstanding the uncertainty around an instrument (a new Pandemic Agreement) that does not exist yet, countries are keen to have as much legal clarity as is possible in a prevailing instrument (the IHR) that has 196 State Parties to it.

And that brings up the dynamics of countries wanting to bind both these tracks of negotiations into a combined package that will deliver not only amendments to the IHR, but also a new Pandemic Agreement.

A number of developing country negotiators indicated this week, that countries would not approve a package of amendments to the IHR, unless the negotiations for a Pandemic Agreement will also deliver intended results.

For developed countries, if their preferred goals on better surveillance measures are met through the IHR, they would be less invested in negotiating the tricky processes on the tough asks on equity from developing countries, observers say.

So, in the event that there is no Pandemic Agreement by May 2024, will the amendments to the IHR hang in balance? It is a possibility that cannot be ruled out.

STATEMENTS MADE BY NON-STATE ACTORS AT WG-IHR MEETING

Excerpts:

WTO:

“The WTO Secretariat thanks the WGIHR for the opportunity to comment, and does so under its own responsibility, and without prejudice to the positions of WTO members.

The WTO has closely followed and supports the efforts of WHO Member States to amend the IHR to promote Pandemic Prevention, Preparedness, and Response. We note that certain proposed amendments address topics with trade-related elements, that place prominently on the WTO agenda. Some promote open supply chains, and address trade restrictions, and unnecessary interference with international traffic and trade. Other seeks to further the transfer of technology and know-how to develop and diversify manufacturing capacity. Each of these topics, among others, were the subject of the WTO’s pandemic response adopted at the 12th Ministerial Conference in June 2022, and continue to be actively considered in multiple WTO bodies.

The WTO and WHO are both seeking to learn and apply lessons from the COVID-19 pandemic. We have a shared interest in promoting synergies and coherence across our organization and our legal instruments. To this end, we would welcome the opportunity to collaborate with the WHO on the development and implementation of an international pandemic response, as mandated by our Ministers last year. We stand ready to share our technical expertise and experience on matters intersecting with trade on request.”

Third World Network:

“One of the glaring short comings of IHR is its failure to effectively address equity and thus reinforcing the structural inequalities in the global health especially in the area of health emergency. This is a historical opportunity to address this major shortcoming, which even create legitimacy deficit on the instrument.

To effectively address equity, it is important to do the following:

• Recognise CBDR as a normative tool to address the issues related to implementation of IHR

• Address equitable access to products required for the preparedness and response to PHEIC

• Link pathogen and GSD sharing to ABS

• Establish a mechanism to provide finance for the effective implementation of IHR

• Establish a governing body to monitor the implementation of IHR, including elements of capacity building, preparedness and the international public health response to PHEIC”

Knowledge Ecology International

“KEI agrees with others that the IHR regulations should incorporate measures to address equitable access to products. KEI reminds delegations that in 2019, the WHA adopted the resolution WHA72.8 on “Improving the transparency of markets for medicines, vaccines, and other health products.” Among the measures that we hope can be reflected in future revisions of the IHR are measures to implement the transparency obligations in WHA72.8, including but not limited to those relating to the transparency of prices and units sold for counter measures, and the transparency and collection of data on R&D subsidies, patent landscapes and the outcomes, costs and subsidies relating to relevant clinical trials.”

Panel for a Global Public Health Convention

“It would be helpful to know how the discussion on compliance issues is developing. As stakeholders we are not in the drafting groups and it is difficult to know what is being considered.

In particular, the Panel is concerned that there should be alignment between the IHR amendments and the new Pandemic Agreement. There should be a single common system even if what is being assessed differs in the two Treaties and where there may also be different oversight bodies.

We also believe strongly that compliance should be based on independent assessment. At present countries often do not trust each other, nor do populations trust their governments. Independent assessment would help to build that trust. It is noticeable that a number of external bodies to the negotiations are calling for independent assessment because it is important to build that trust. They include GPMB, earlier members of the IPPPR, Pandemic Action Network, the Elders and our Panel.”

Response from Co-Chair Bloomfield to the Panel:

“The question related to this important issue of compliance, and also the matter of oversight of the monitoring and compliance with the two instruments in the future.

Two comments to make here. First of all: yes, this is one of our important topics. And we will be canvassing progress with our own discussions in the next agenda item and that relates to a new Article, well, Article 53, a new Article 53 A and Article 54 in the IHR. And likewise, there are relevant provisions in the draft INB Agreement that were discussed over the last few days.

So, we're very aware of the importance of this issue of compliance, oversight and monitoring, including what independent monitoring might look like. And just to point out: of course, our considerations here need to take into account existing monitoring arrangements like shipper(?) and the Independent Oversight and Advisory Committee, that the Director-General has established. So, all these matters are ones that we will be considering, both within our individual processes.

That I can say, that there are already informal discussions happening, I know, about how a future oversight and compliance arrangement would be constructed that takes into account both processes.”

Geneva Health Files