IHR Goes into Extra Time: Countries Make Definite Progress on the Amendments to the International Health Regulations, But Not Enough to Close a Deal [WG-IHR8]
Newsletter Edition #84 [Treaty Talks- IHR]
Hi,
WHO member states could have hardly sought better umpiring in the negotiations towards amending the International Health Regulations. But as sports fans know, even the best umpires cannot restrain competitive sides. And hence, we head into extra time.
This also shows that efficiency is not an insurance against realpolitik. As is the wont of WHO member states, they will take the time to get the best outcome to match their interests.
In today’s edition, we bring you key takeaways of the meeting of the Working Group to amend the IHR, that concluded last evening in Geneva.
I also take the opportunity to thank numerous diplomats, experts and stakeholders for setting aside time to speak with us, and to educate our readers on the nuances in these complex, closed-door processes.
Thank you for reading.
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We are on the ground next week as well, to track the final stretch of negotiations towards a new Pandemic Agreement.
Until later.
Best,
Priti
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I. STORY OF THE WEEK: WG-IHR8
IHR Goes into Extra Time: Countries Make Definite Progress on the Amendments to the International Health Regulations, But Not Enough to Close a Deal
By Priti Patnaik
Tessa Jager contributed to this story
Negotiations on the International Health Regulations go down to the wire as countries were unable to complete the discussions at the end of the final meeting of the Working Group to amend the IHR, that concluded this week. Riding on a constructive approach and an overall positive momentum, countries made steady progress under the decisive leadership of co-chairs Abdullah Asiri and Ashley Bloomfield, but a few areas of contention remained as the clock ticked away towards the conclusion of the meeting on April 26, Friday.
The working group decided to buy additional time to conclude the negotiations and are expected to meet on May 16-17 to complete the process. More time is needed to reach consensus on key contentious matters including on technology transfer, a dedicated fund, governance of an implementation committee, among other areas, diplomatic sources said.
But such an outcome was not completely unexpected given the complexity and persistent divisions around these issues. Some countries, particularly in Africa, have long maintained that they would endorse the package of amendments to the IHR only when there is more clarity on the evolution of the process towards a new Pandemic Agreement under a separate track of the Intergovernmental Negotiating Body.
In an exclusive interview with us earlier this week, co-chairs described this update of the IHR (2005) as the most significant and have called it a real step change.
For the first time, there will be recognition of equity not only as a principle, but these revisions are poised to reflect equity in concrete obligations for State Parties and WHO. Countries also appeared to agree, in principle to have a financing framework to address IHR implementation more effectively – for the first time in the context of these rules, according to senior diplomats involved in the process. The set of amendments also seek to improve upon governance of the IHR by way of an implementation committee – although they are yet to reach an agreement on this.
The meeting also saw extensive discussion on the continuum of health emergencies ranging from the declaration of a Public Health Emergency of International Concern (PHEIC), leading to a pathway that would trigger a pandemic via the potential new Pandemic Agreement.
In this story we look at key, contentious provisions on equitable access of medical products and on financing – on which hinges the final deal on the IHR amendments. We review the Bureau’s revised proposed text on provisions 13 and 44. (These are from April 23). For this story, we spoke to numerous negotiators as discussions evolved during the meeting. We also analyse process and what this reveals.
THE BOTTLENECKS
The key sticking points predictably have been around the provisions concerning equity and financing. While it is significant that in general, countries agree on enshrining equity in the IHR, the details of operationalising this have not attracted consensus. The Co-Chairs acknowledge that these could be key in reaching a deal.
See our previous report that discusses these specific provisions in depth (based on a Bureau’s text released prior to the meeting). Also see a detailed breakdown on the opposition to these provisions in a report from Third World Network in the course of last week’s meeting: Developed countries push for dilution of WGGIHR Bureau’s text proposal on equity)
We base the following analysis on a revised text from the Bureau on these provisions that were released during the meeting. Please note that discussions have evolved since. This serves as a snapshot to show where countries stand on issues within these provisions.
Article 13 Public health response, including access to “relevant” health products
Note that some developed countries, sought to qualify the provision by adding “relevant” that could restrict the scope of this provision.
Why is this a big deal? Well, look not too far – at the WTO countries spent two years and yet did not agree on the kind of therapeutic and diagnostic products that merited the same treatment as COVID-19 vaccines in terms of extending clarifications that developing countries say would have helped in the access to such products. An innocuous word like “relevant” could suck up precious time during a health emergency in deciding which products merit access.
In Article 13, paragraphs 7, 8 and 9 are where most of the disagreements remain.
Take para 7: Countries appear to agree on the following: “WHO shall support States Parties and coordinate response activities during public health emergencies of international concern, including pandemic emergencies.” This in itself is significant, legal experts say.
The next sentence reads something like this, with many requests for additions and deletions:
“To facilitate equitable access to health products, this support may include, as necessary, coordinating with mechanisms and networks that facilitate equitable allocation and distribution of relevant health products including through technology transfer to diversify and scale up production. The aforesaid mechanisms and networks may include, but are not limited to, regional arrangements and those established under relevant international agreements.”
To this above sentence, Iran, China, Syria, Cuba, Nigeria, Bangladesh among others want to add “unhindered” access, while the UK is not in favour of such an addition. On technology transfer, the EU, USA, Israel, Japan, Australia want an additional qualification with the word “voluntary”. Developing countries including Nigeria, Bangladesh, Pakistan among others oppose this.
In the context of these discussions, it appears countries seem less opposed to “mutually agreed terms” wrt technology transfer, also given the somewhat accepted status of this phrase, also in other international instruments, sources told us.
Scores of countries want to add know-how to this sentence following technology transfer, including Africa Group, Egypt, Colombia, Indonesia, Fiji, Malaysia, Mexico among others. Switzerland and Japan oppose this.
On para 8, bulk of the obligations lists out tasks for the Director-General – steps to be taken to ensure equitable access following the declaration of a PHEIC including a pandemic emergency. These include conducting, reviewing, assessing public health needs, taking into account availability and affordability of health products “when issuing, modifying, extending or terminating temporary recommendations”. On this obligation alone, Japan, New Zealand among others have expressed reservation on the term affordability.
COVID-19 also shows us how complicated it was when the pandemic was waning, and countries disagreed at the WTO, on the severity of the emergency and its related decision to making drugs available. So even though the IHR concerns WHO, such revisions are crucial for other fora as well given its implications for trade policy.
Financing
The crux of the disagreement on financing issues seems to be the need for a dedicated fund as demanded by some developing countries including Africa Group, Egypt, Syria, Bangladesh:
“ALT (d) establish a fund under the WHO to provide financing to support, strengthen and expand IHR core capacities as well as capacities needed for preventing, and responding to health emergencies, particularly in developing countries.”
Countries including Canada, Japan, Switzerland the EU, the U.S., Australia, Korea, the UK, Israel are not in favour of “supplementary financing, in particular to developing countries, to build, strengthen and maintain the capacities”
On implementation, concerns centre around representation and governance of such a committee. There is yet to be clarity on this, given also a proposed new committee on emergencies – Committee – proposed in a new Pandemic Agreement, diplomatic sources pointed out.
THE TALE OF THE TWO TRACK NEGOTIATIONS:
Where they meet and where they diverge
Delegations across a range of countries are bracing for the INB meeting that resumes next week beginning the 29th. The mood this past week has been strikingly positive in contrast to the trepidation that has occupied the minds of the negotiators on process-related concerns in the INB track. A number of diplomats across developed and developing countries articulated their anxiety on whether the atmosphere will be conducive for negotiations in the final stretch of the INB discussions. The comparison with the IHR process has been inevitable, even though the latter had an existing text to start with, and the INB arguably has had it tougher in crafting new binding provisions across a whole host of areas. But few want to give brownie points to the INB process despite its uphill challenge.
We have reported in these pages earlier, that while the role of Bureau, the cohesion between its members, the role of the WHO secretariat, have all played a role across both these tracks of negotiations, ultimately the buck stops with the member states who have had every opportunity to shape this complex process.
Senior officials involved in the IHR process point to the fundamental differences in approach. While the INB Bureau has sought to direct the process of coming up with text, the IHR Bureau has followed with precision, the feedback from member states while supporting its judgement on proposing text based on transparency and well-reasoned rationale that has drawn even the harshest critics into conversation and negotiation.
“The leadership has presence, they have been able to steer the conversation on the floor,” a developed country negotiator told us this week, speaking of the IHR Co-Chairs.
“They have helped us come up with solutions. We feel we are being heard,” a developing country delegate said. To be sure, the process over the last one year has not been free from challenges, similar dynamics and political considerations plagued these discussions as well. But a sensitive, and an efficient management of these differences made an impact on lowering the temperature in the room eventually.
Many were hopeful that the IHR process would set the tone for the INB process. This optimism may be unwarranted. It is clear that these are two separate and distinct tracks with different mandates and contrasting complexion of the discussions. That the IHR process has gone reasonably well is no guarantee that this optimism would bleed into the INB track.
“Without a specific plan on how countries could reach consensus, the INB could fail,” a developed country diplomat cautioned. And there were others who concurred with this view.
Similar yet different
No doubt there are synergies between both processes – whether it is the continuum of declaring emergencies, or an over-arching financing framework, or even matters of compliance and governance, the two tracks inform and draw from each other, observers point out.
There are of course key differences. The thrust of the surveillance measures is in the proposed Pandemic Agreement, with some surveillance-related text also in the IHR. In addition, there are also no obligations on sharing pathogens in the IHR, experts have pointed out. On these two issues alone, countries have been able to settle on a less feverish pitch in the context of the IHR. Recall that in the INB, surveillance measures have raised the hackles of many developing countries worried about mounting obligations without any clarity on financing of such measures.
Similarly, tied to potential obligations on accessing pathogens, is the resulting expectations on sharing benefits – a key contentious discussion for the past year in the INB. The IHR proposals for amendments have no mention of genetic sequence data – for example.
Finally, on financing – the Pandemic Fund is predisposed to disbursing funds in the context of the IHR. But many matters in the Pandemic Agreement, fall outside the scope of the Pandemic Fund, observers point out. Hence the proposal to reform and adapt the governance, and the priorities of the Pandemic Fund to meet the needs arising from the obligations in the Pandemic Agreement.
And finally, many obligations in the IHR apply towards the WHO, and its Director-General, legal experts explained to us. “The process has been less contentious because countries are coming together to review the obligations of the WHO in the context of health emergencies. While there are obligations on State Parties, it is more about fixing what did not work earlier,” the expert added.
By clarifying and expanding on obligations for the Director-General, for example, a revised and amended IHR, can ensure that State Parties can demand for greater accountability through these processes, sources point out. (See amended provisions on declaration, temporary recommendations among others, for example.)
THE FINAL STRETCH
The IHR process will resume on May 16th-17th after the marathon negotiations of the INB that run April 29th-May 10th. Countries can share “targeted written inputs” due by May 6, and the Bureau is expected to come back with proposed text by May 10th.
This week, the Co-Chairs also introduced the draft WGIHR resolution in preparation for the 77th World Health Assembly. It is now agreed that “the draft resolution would be considered separately to the INB resolution to ensure clarity. Both resolutions would cross reference each other as needed,” according to an interim meeting report of WG-IHR8.
By having separate resolutions on the INB and the IHR, countries are also taking precautions to insulate the progress made in the IHR, from the potential uncertainties and vagaries of the INB process that has been characterized by sharp differences.
Finally, one observer also pointed out that the U.S. is more invested in the successful outcome of the IHR – a process that the U.S. initiated much before the amendments to the IHR gathered institutional steam that ended up drawing scores of countries into the fold of this track of negotiations. This might at least partly explain the more subdued profile of these discussions, that might ultimately steal the thunder away from the more political INB process.
While a stronger set of amended IHR is better than a weak Pandemic Agreement, the perception remains that IHR are “only rules” that have been ignored including during the COVID-19 pandemic, although there are provisions to ensure enforcement.
For many countries and stakeholders, only a Pandemic Agreement with political backing, with its legally binding nature, continues to be the ultimate prize.
CO-CHAIRS FULL INTERVIEW: READ & LISTEN
AUDIO FILE OF INTERVIEW
Produced by Parth Chandna
From earlier in the week:
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