The Review Committee on the IHR Amendments: Questions on Fairness of Content & Procedure. [Guest Essay]
Newsletter Edition #008 [Treaty Talks]
Six months is a long time in global health Geneva. Just as the champions for a Pandemic Accord got comfortable with the reality of negotiating a new instrument under the aegis of the Intergovernmental Negotiating Body, it now appears the process towards amending the IHR has suddenly acquired critical mass.
The centrality of the International Health Regulations in framing new rules for health emergencies has been restored to an extent. And how.
As many as 14 countries have articulated their proposals to amend the IHR. Last week, WHO said, “… the following 14 States Parties submitted proposals for amendments to the IHR, of which four States Parties submitted those proposals also on behalf of other States Parties – Armenia; Bangladesh; Brazil; Czech Republic on behalf of the Member States of the European Union; Eswatini on behalf the WHO African Region Member States; India; Indonesia; Japan; Namibia; New Zealand; Russian Federation on behalf of the Member States of the Eurasian Economic Union; Switzerland; United States of America; and Uruguay on behalf of MERCOSUR.”
While WHO member states have presented their visions for the amendments of the IHR, the process will also be shaped and informed by the work of a Review Committee. WHO has said, “The sole purpose of this Review Committee is to provide technical recommendations to the Director-General on amendments proposed by State Parties to the IHR, as decided by the Health Assembly in Decision WHA75(9).”
At an event at the World Health Summit in Berlin this morning, a senior WHO official seem to have suggested that the Review Committee would bring together all proposals into one, single proposal to be considered by member states. Highly problematic, if true.
Our guest authors today, question the ostensible purpose of such a Review Committee. Read on.
p.s. Please note we will likely not have an edition on Friday this week.
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I. GUEST ESSAY
The Review Committee on the IHR Amendments: Questions on Fairness of Content & Procedure.
By K M Gopakumar & Nithin Ramakrishnan
Many developing country Member States and observers were caught by surprise, earlier this year, when the WHO secretariat suggested that the IHR amendment proposals can be referred to a IHR Review Committee (Review Committee). This was during the discussions on the timeline of the IHR amendment process, at the Working group on strengthening WHO preparedness and response to health emergencies (WGPR). There are a few reasons for their surprise.
First, whenever amendment proposals to international legal instruments are submitted by sovereign states, it is not the practice to allow a panel of experts acting in their individual capacity, to offer comments on such proposals. The normal practice is that such proposals are treated on an equal footing and opened for negotiations to find a consensus.
Second, Article 55 of the IHR deals with the amendment process and there is no such requirement to submit the amendment proposals to the scrutiny of any Review Committee. Article 55 (1) reads: “Amendments to these Regulations may be proposed by any State Party or by the Director- General. Such proposals for amendments shall be submitted to the Health Assembly for its consideration”. Article 55(2) states that the Director General should communicate the amendment texts to all State parties at least four months before the Health Assembly at which it is proposed for consideration”.
Article 50(1)(a) states that “The Director-General shall establish a Review Committee, which shall carry out the following functions: (a) make technical recommendations to the Director-General regarding amendments to these Regulations”. However, it is understood that such technical recommendations are generally after the adoption of amendments or whenever any amendment proposals come from the DG. The word used in Article 50(1) is amendment and not amendment proposals. The 75th World Health Assembly (WHA) adopted the amendment proposed by the USA without referring to the IHR Review Committee, for example.
While many Member States welcomed the Secretariat’s suggestion in good faith to appoint a IHR Review Committee, they also insisted that the mandate of the Review Committee should be under Article 50 and 51. However many seasoned negotiators and observers viewed this unprecedented suggestion from the Secretariat as a move to rig the process and content of EB 150 decision [EB 150 (3) ] to amend the IHR.
The battle lines on the discussions around the IHR amendments were already drawn, when developed countries proposed more stringent obligations on preparedness especially surveillance without any corresponding obligations on various aspects health response. There is no clarity on the obligations for predictable availability of health products required for the response to public health emergency of international concern (PHEIC), and for the access and benefit sharing emanating from the utilisation of samples of pathogens collected from humans. Developed countries like the EU want to limit the equity elements in the health emergency only to the pandemic context and therefore do not want such obligations to include the IHR amendments.
DG Exceeds the WHA Mandate?
The Terms of Reference (ToR) of the IHR Review Committee endorses the above mentioned apprehensions. The mandate emanating from the WHA 75(9), provides for technical recommendations on the proposed amendments. It states: “in accordance with Part IX, Chapter III, of the International Health Regulations (2005), in particular Article 50, paragraphs 1(a) and 6, with particular attention to be paid to the fulfilment of the letter and spirit of Article 51, paragraph 2, to make technical recommendations on the proposed amendments referred to in sub-paragraph (c) below, with a view to informing the work of the WGIHR”.
It appears that the DG Tedros has stretched the mandate under Article 50(1)(a) and entrusts the mandate to IHR Review Committee to pass judgment on the proposals from State Parties.
The ToRs prima facie set boundaries on the scope of the amendments. For instance, the first task: Analysis of each of the proposed amendments to the IHR submitted no later than 30 September 2022, has many variables. As per this mandate, the IHR Review committee is expected to carry out an analysis of the pertinence of the amendment proposals vis-à-vis the purpose and scope of the IHR, as defined in Article 2. It raises an interesting question on how the Review Committee would carry out such an exercise on a proposal to amend Article 2 of the IHR.
(Article 2 of the IHR: The purpose and scope of these Regulations are to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade.)
The Review Committee is also expected to check the “Compatibility and consistency with the Working Draft of a WHO Convention, Agreement, or other International Instrument on Pandemic Prevention, Preparedness and Response” (Document A/INB/2/3). This is quite a baffling assignment because the content of the document is not even a negotiated document and only a compilation by the Secretariat and the Bureau of INB. This proposed instrument is expected to deal with only pandemics - a subset of Public Health Emergency of International Concern (PHEIC). Thus, it can be inferred that, examining the compatibility of amendment proposals with a document where there is no consensus or clarity regarding the normative content is an attempt to limit the inclusion of equity provisions in IHR by stating that equity will be addressed in the new pandemic instrument.
This move sets a de-facto scope of the amendment proposal by overruling the decision of the World Health Assembly and the Executive Board. EB150(3) sets the scope of the IHR amendment, which explicitly states that the Amendments should “address specific and clearly identified issues, challenges, including equity, technological or other developments, or gaps that could not effectively be addressed otherwise but are critical to supporting effective implementation and compliance of the International Health Regulations (2005), and their universal application for the protection of all people of the world from the international spread of disease in an equitable manner.”
Surprisingly, the ToRs do not even refer to the EB 150 decision in the scope of work which really sets the boundary for the amendment proposals.
A mandate to override the prerogative of State Parties?
The mandate of the Review Committee as per WHA 75 (9) is to “to make technical recommendations on the proposed amendments”. However, the ToRs also give the mandate for reformulation and/or clarification.
According to the ToRs, “ rewording, rephrasing, inclusion of cross- references to other relevant articles of the IHR, inclusion of compliance monitoring elements – and/or consolidation, if/when necessary, of the text of the article intended to be amended, as well as of the text of any other article of the Regulations that needs amendments for the article intended to be amended to be applicable. Such proposals shall ensure the internal consistency, integrity, and robustness of the text of the IHR, as well as the compatibility and consistency with any other relevant international legal instrument under the auspices of intergovernmental and international organization. Each of the abovementioned proposals for reformulation and/or refinement by the IHR Amendments RC shall be accompanied by its rationale, including the reason/s why amendments proposed by States Parties have not been totally or partially retained, or have been reallocated to an article different from the one initially intended to be amended.”
This gives a clear mandate to the Review Committee even to recommend the deletion of an amendment proposed by States Parties. This could vitiate the negotiating process. By commenting on the proposals of State Parties, the Review Committee can potentially be seen as exercising power.
Similarly, the ToRs also tasks the Review Committee “to advise on definitions of terms, either new or existing terms the meaning of which might be changed following the proposed amendments, to ensure clarity and consistency; as well as to advise on whether the inclusion, in the text of the IHR, of an explicit taxonomy related to the nature of amendments (e.g., targeted amendments, conforming amendments, technical adjustments, updates, “reopening the instrument”) is warranted and, if so, to formulate a proposal in that respect.”.
This is an attempt to classify the proposals on whether they fall within the definition of targeted amendments. This could also discredit progressive proposals that do not fall within the category of ‘targeted amendments.
Though the WHA 75(9) sets time line to the “Review Committee submit its report to the Director-General no later than 15 January 2023”, ToR extends this further to January 2024. While the mandate of WHA75(9) only requires to provide technical recommendations on the proposed amendments submitted before 30th September 2022, the ToR is asking the Review Committee to review “the package of amendments agreed by the WGIHR” later in December 2023-January 2024. This back door extension of the duration of the Review Committee bears the danger of unduly influencing the negotiations.
The ToRs shows that the Review Committee is a ploy to reinforce the status quo in the IHR Regime by discrediting the proposals of developing countries aiming to bring equity and justice in the international public health emergency regime. The ToRs clearly move away from the spirit of WHA decision 75(9), which agreed in good faith, to refer the amendment proposals to the Review Committee for technical recommendations.
Such a process may create trust deficit in the functioning of Working Group on Amendments to the IHR (2005) (WGIHR), the State Party mechanism to lead the amendment process. Such a move may also create trust deficits even before negotiations on the amendments begin. We would wait to see if the process will be fair and legitimate.
Like this essay? Get in touch with Nithin Ramakrishnan here: firstname.lastname@example.org
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