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TWN
Info Service on Health Issues (Feb23/06) WHO: Secretariat attempts to influence international health regulations amendment negotiations using Review Committee Geneva, 26 January (Nithin Ramakrishnan) – There are concerns that negotiations to amend the International Health Regulations (IHR) 2005 may be inappropriately influenced by a review committee that was initiated by the WHO Secretariat. At the 2nd meeting Working Group on Amendments to International Health Regulations 2005 that ended on 24 February, the Secretariat had proposed that the IHR Review Committee may be reconvened “at any time during the negotiations” to provide assistance if required. This suggestion was in response to a question from the delegation from China on how Member States could benefit from the IHR Review Committee in going forward with the negotiations. According to some close to the negotiations, there was also a move to request the presence of the Review Committee members in the meetings of the Working Group which was not accepted. The meeting took place from 20 to 24 February at the WHO Headquarters, in Geneva. The Working Group was discussing not only the IHR amendment proposals made by the States Parties to IHR 2005, but also considered a few other agenda items which included consideration of a report by the IHR Review Committee constituted to provide technical recommendations to amendment proposals made by the States Parties. [The IHR Review Committee was constituted at the suggestion of the Secretariat. This was pushed ahead by several States Parties who feared faster progress in the Working Group would make the negotiations for a new pandemic instrument partly redundant. The Terms of Reference were accordingly prepared by the WHO Secretariat leading the Review Committee to produce “legal opinions” instead of “technical” recommendations.] According to a deeply disappointed delegate, “this sets a wrong precedent on international law-making negotiations. It challenges the principles of State Sovereignty. Experts in international law handpicked by an international organization’s Secretariat should not have passed judgements on Member States’ text proposals, no matter how their work is balanced and unbiased. In being balanced and unbiased – there is a bias.” This irregular procedure has been previously reported amidst concerns over the IHR Review Committee’s terms of reference. These concerns have been affirmed as the IHR Review Committee came out with a report that failed to make meaningful technical recommendations, but instead made conservative remarks, more or less aligning with the status quo. Though Member States expressed appreciation for the work of the IHR Review Committee, countries like the United States, Brazil, Namibia, Kenya and Bangladesh questioned the work of the Committee and the resulting report. The U.S. asked whether there was a reference to the previous review committees’ work on IHR implementation and tits recommendations, referring to IHR review committees that had reviewed the technical aspects of IHR implementation previously during H1N1, Ebola and COVID-19 outbreaks as well as the review committee on establishment of national public health capacities mentioned in Annex 1 of IHR 2005. Brazil stated that the Member States were not given ample opportunity to interact with IHR Review Committee, and Member States who proposed amendments should especially have had opportunities to fully explain their proposals to the committee or to respond to questions or provide clarifications on proposals which might not have been understood properly by the Committee. Brazil also reminded other States Parties that any decision on these proposals is not necessarily technical but political - indicating the limits of the Review Committee’s mandate. Namibia questioned the doubts cast by some of the Review Committee Members on the applicability of the principle of common but differentiated responsibilities (CBDR) in health emergency law. It pointed to the continued neglect of the principle of solidarity and international cooperation by States and told the Review Committee that the CBDR principle has become relevant in this context in order to translate political commitment of solidarity into a legal obligation to cooperate and provide assistance. Namibia also questioned the Review Committee’s remark against the creation of a WHO financial mechanism for providing financial assistance to Member States on health emergency capacities and response. It stressed that the Review Committee’s remark could be inconsistent with the provisions of the WHO’s Constitution and raised the question whether the Committee’s advice can be reconciled with Article 58 of the Constitution. [Article 58 reads: “A special fund to be used at the discretion of the Board shall be established to meet emergencies and unforeseen contingencies”.] Kenya, speaking in its national capacity, welcomed some of the recommendations of the Review Committee and criticised some others. It specifically called out the Review Committee’s analysis on the proposed Annex 10 on duty to cooperate as “humdrum”. Kenya explained that the Annex 10 would help build health emergency preparedness and response capacities including health systems strengthening. It reminded the Review Committee and States Parties that “difficulty to implement” (the remark of the Committee on Annex 10) does not mean “impossibility”. Kenya also reminded that all proposals must be discussed by the Working Group on the Amendments of the IHR, indirectly indicating the Review Committee’s recommendations should not be the basis to reject proposals. Bangladesh pointed out that the divergences of the Member States are not explained or appended to the Review Committee’s report, while these divergent views would have helped the negotiations. However, in the end the Secretariat, while responding to the question put forward by China, said active engagement with Review Committee officials such as the Chair, vice-Chair and rapporteur would help clarify these issues or difference of opinions. The Secretariat also indicated that it is better for the Review Committee to speak through these officials rather than allowing Review Committee Members who have divergent views to explain themselves to the Working Group. According to many familiar with the negotiations, the WHO Secretariat is trying to constrain the negotiations of amending IHR 2005 from several sides. Most unfortunate part of this move, comes from a misplaced fear that they will lose new legal instruments and facilities and funds that would follow from it, if Member States after amending IHR 2005 find a new instrument redundant. This fear is misplaced because countries clearly know that a new pandemic instrument is inevitable – not to fill in the gaps of IHR 2005, but to augment the obligations of IHR 2005 – to prevent, prepare, respond and recover from pandemic emergencies. There was no decision taken on this suggestion by the Secretariat. Sources following the negotiations indicate that some developed countries wanting to restrict the IHR amendments to not include provisions on equitable access are more likely to press for continued engagement with the Review Committee. Several developing countries are also clear that they would not want such interferences from Review Committee in the negotiations. The Secretariat will further prepare a tabulated document of IHR amendment proposals and respective comments from the Review Committee. In the final day of the meeting on 24 February, developing countries suggested that this document be marked a “reference/information” document, meaning the text will not form the basis of negotiations. Developed countries, speaking through Monaco, tried to oppose this move, but did not succeed. Monaco indicated that the Review Committee report is very useful in terms of understanding the “feasibility” of the amendment proposals. Since the Review Committee had cast doubts on the feasibility of several amendment proposals for enriching equity on flimsy grounds, it is becoming apparent that the Committee’s recommendations are an additional battle front for developing countries who have proposed amendments to operationalise equity.+
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