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Info Service on Health Issues (Aug23/02) Geneva, 14 August (Nithin Ramakrishnan) – Developing countries called for equity across the board during the joint plenary meeting of the Working Group on Amendments to the International Health Regulations 2005 (WGIHR) and Intergovernmental Negotiating Body (INB) on the new pandemic instrument. The call is to incorporate equity in both the new pandemic instrument as well as in the amended International Health Regulations (IHR). In particular, developing countries strongly urged for the inclusion of provisions to facilitate equitable access to health products and technologies in both instruments given the development divide between developing and developed countries. Although developed countries like Monaco, Switzerland, Japan, Canada, and the U.K attempted to park the equity issues in the new pandemic instrument, Australia and the U.S. indicated the possibility and the need to address equity in both instruments. The E.U. on the other hand acknowledged that there is no constitutional barrier to accommodate equity in both instruments, without explicitly recognizing the need for equity in IHR 2005. The First Joint Plenary Meeting of WGIHR and INB took place on 21 and 24 July 2023 at the WHO headquarters in Geneva, in a hybrid mode. As reported earlier, the Joint Meeting was primarily organized to deliberate upon the relationship between the two instruments on the following agenda: objectives and scope of both instruments (agenda item 2), and a list of topics which are of common interests to both INB and WGIHR (agenda item 3). The list includes (i) equity, (ii) common but differentiated responsibilities between developed and developing countries (CBDR), (iii) surveillance, (iv) review and reporting, (v) access to health products, (vi) access and benefit sharing, (vii) financing, (viii) capacity building/collaboration and cooperation, and (ix) preparedness and health systems resilience. Ethiopia speaking on behalf of 47 Member States in the Africa Group in the opening statement explained the need to address equity within both instruments for the following reasons: “… the African Member States recognise that building resilient core capacities for effective implementation of the IHR is a necessary prerequisite for the realisation of the objectives of the IHR and that fit for purpose IHR implementation is critical to the aspirational objective of the WHO CA+ We therefore view the two instruments as being part of the same continuum and serving the same overall purpose but at varying degrees. Hence there is a need to ensure the maximum level of complementarity and synergy between the two instruments to ensure that they individually and collectively deliver on their respective objectives. The mandate from the 150th Session of the Executive Board urged WHO Member States to take all appropriate measures to propose amendments that address equity, technological or other developments that are critical to supporting effective implementation and compliance of the International Health Regulations. It is for these reasons that the African Member States proposed amendments to the IHR, which are focused on delivering on this equity mandate… the African Member States seek to address equity related gaps within both instruments” Kenya reiterated that IHR is the foundational instrument, and it fully supports strengthening of IHR through amendments in WGIHR. It stated that “The major role of WHO CA+ is to augment the IHR in the unfortunate event a PHEIC becomes Pandemic and this complementarity needs to be maintained with overlaps where necessary.” [WHO CA+ is the term used for “WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response” as the legal nature of the instrument is not decided yet.] Brazil stated that “it is crucial to ensure that both instruments are coherent, complementary, mutually reinforcing and guided by equity in order to address gaps identified in covid19 pandemic and in other PHEICs. In our view some elements should remain in the IHR such as surveillance, notification of potential public health emergencies of international concern, health documents, recommendations of public health measures related to persons and cargo, including on the points of entry…. …each instrument has its own specificity and scope. However, equity is a key concept and should be present in both pandemic instruments and IHR. The same is true for access to health products, technologies, implementation support measures, resources and international cooperation.” Argentina said that it is convinced that both the processes have to be complementary. However, this should not weaken IHR to prevent the spread of a disease. It stressed the need to protect and strengthen IHR and keep in mind the legal nature of the instrument. According to the delegation, the “containment effort was the main justification for having IHR 2005, so that we could have a concerted response” that would prioritise the international community’s effort and focus on the source of the potential propagation event. The Philippines stated that IHR and WHO CA+ have similar goals, and continuum of the PHEIC and pandemic response naturally lead to crossovers in both the processes. It further stated that equity is the core principle and the desired outcome of WHO CA+ and amended IHR. The delegation called upon Member States to resist the urge to compartmentalise prematurely and warned about the loss of useful proposals altogether otherwise. It said “When we have greater certainty over the form that each instrument takes, we can begin to identify where duplications serve to reinforce and where they create conflict and confusion that need to be resolved.” Fiji stated that “complementarity does not mean that a certain issue cannot be reflected in both instruments where necessary as long as it is not contradictory… With a pandemic being a level up from the PHEIC, we therefore agree with Africa Group that certain provisions of WHO CA+ must also apply to PHEIC to prevent escalation to pandemic, example access to pandemic related products, technology transfer and financing etc.” Indonesia, which cautioned against making the joint meeting of WGIHR and INR a third track of negotiations, stated that IHR and the pandemic instrument are two equal footing instruments of different scope. It stated that “two instruments should ensure that the next pandemic is addressed in a more equitable manner” and argued that equity should guide the discussion and its operationalization should be one of the main goals of the processes. China argued that IHR and WHO CA+ are the two stages of the same thing and that they are interrelated and inseparable. The delegation stressed on a few requirements. First, equity should be fully discussed and fully reflected in both instruments. Second, duplication should be reduced in the governance institutional arrangements, including evaluation and reporting such that it “should be an arrangement that does not create a dual track that burdens Member States compliance and implementation”. Third, it wanted to settle the definition of pandemic and determination mechanism for pandemic, as soon as possible. Fourth, China expressed support for continued meetings of the joint session of WGIHR and INB. Rebuttal on “technical” and “universal” nature of IHR 2005 Certain countries such as Monaco, Chile, Switzerland, and Canada referred to the technical nature of IHR 2005 and claimed it cannot address issues like equitable access to health products and technologies. Some of them also referred to the principle of universality in Article 3 of IHR 2005 and asserted that the CBDR principle cannot be incorporated within IHR 2005. By technical nature, some of these countries intend to argue that IHR 2005 is an international instrument to set up surveillance, detect disease, assess, notify the WHO, determine whether a disease is an emergency of international concern or not, and if a disease is spreading across borders, ensure quarantine and sanitary measures. Although Article 13 clearly provides for adopting “public health measures” and other provisions speak about issues relating to access to medical care and facilities (limited to international travellers), these countries tend to argue that access to medicines and other health supplies are beyond the scope of IHR 2005. Switzerland argued that only the issues already covered under the present provisions of IHR 2005 can be dealt with under IHR and therefore amendments should pertain to such issues only. New ideas should be kept in INB. In this regard, Switzerland went ahead to pick up issues to be allocated between WGIHR and INB from the document containing the list of the topics of common interests. It said that only topics 3,4,8 in the list can be discussed under IHR, which are surveillance, review and reporting, and capacity building/collaboration and cooperation respectively. It stated that topics like equity, access to health products, access and benefit sharing, reviews and reports specifically those related to universal health preparedness and review, financing, and health systems resilience, could be dealt with in INB. Canada was of the opinion that amendments to IHR should be targeted and based on the existing scope and there is need to ensure that any proposed amendments follow the scope of Article 21(a). It stressed the need to be cognizant that the IHR provides the authority for the existing programme about what happens when there is a public health emergency, adding that the WHO CA+ addresses systemic acts, prevention and preparedness specifically when a pandemic is declared. Monaco, one of the delegations which is proactive in criticising developing country proposals on equity in both WGIHR and INB, argued that IHR 2005’s stated purpose, scope and principles cannot be changed. Ignoring the mandate of WGIHR under the WHO Executive Board Decision EB150(3) and World Health Assembly Decision WHA74(9), to which these countries had agreed in 2022, they argued that topics such as equity cannot be therefore considered as a subject matter to be dealt with under IHR 2005. The U.K. stated that the IHR scope and purpose are clearly stated in Article 2 and based on this it asserted: “We believe the purpose and scope of the IHR as the technical framework for a broader range of public health events remain valid and should not be expanded. These regulations are broadly fit for purpose and its strength is in setting out required course valence and response capacities for State Parties. We believe that implementation, especially related to surveillance and information sharing are the primary issues that must be addressed through targeted amendments.” For Japan it is surveillance and information sharing that should be in both instruments, while equitable access should be in the new instrument. It must be noted that none of these arguments can be sustained as WGIHR has a clear mandate from EB150(3) to address equity through the amendments to IHR 2005. Reiterating this mandate Africa Group further reiterated at the 24 July joint meeting: “Africa Member States continue to advocate for Equity as a principle, objectives as well as an outcome…. The decision of the Second Special Session of the World Health Assembly as well as that by the 150th Executive Board puts Equity at the centre of both the WHO CA+ and WGIHR (2005) amendment process. As such, the success of these two processes will be judged or evaluated by how much the operationalisation of equity has found itself in the two instruments. It is for these reasons that the African Member States made submission to propose amendments to the IHR, which are focused on delivering on this equity mandate.” Countries such as Kenya, Botswana, and Uganda further supported the statement made by the Africa Group. Bangladesh in its statement responded to the challenges raised. On the scope it said: “… remit of WHO Constitution, current IHR and principles of human rights, as a matter of fact, empower us to set the right direction for both instruments. Application of Equity for both instruments is exigent to produce efficacy. If we have a close look at the IHR of 1969 vis-à-vis the IHR of 2005, we see how the IHR has gone through changes: first, in structure, second, in scope, and third, in terms of actions and deliverables. We have to repeat the same in order to take it to the next higher level with required changes for realizing equity.” It further stated as follows: “… the two processes are envisaged for dealing with two different levels of health emergency situation. Our journey should be to stop the PHEIC so that it does not escalate to a pandemic situation. Towards that, it would be seminal first, to mobilize resources for the countries in need of support, assistance and cooperation to strengthen their health systems and second, to make relevant PHIEC products available at an affordable cost in the market. The whole efforts should be premised upon equity.” Philippines said: “It would be more practical at this point to approach the common issues with a greater focus on ensuring how effectively and efficiently the instruments can be operationalized to achieve their desired outcome, which is preparing States to ensure early detection and a timely, coordinated, and effective response to health emergencies, all while adhering to the principles of solidarity, equity, accountability, and transparency. For the Philippines, overcoming differences in capacities that affect the level of implementation of the obligations would be very important for Lower and Middle-Income countries, and operationalizing equity through enhanced cooperation and coordination must be reflected throughout the many components of both instruments.” Malaysia also insisted that equity should be addressed by both instruments. Regarding access to health products, it argued that access must be ensured for pandemic-related products as well as PHEIC-related products. It also reasoned that a financial mechanism should be established in IHR 2005 and could be linked to the pandemic instrument by citing the need for finance to establish the core capacities mentioned in IHR 2005 and the universal membership of IHR 2005. Interestingly the E.U. made it clear that there is no constitutional barrier against including equity in IHR 2005. Although it prefers to see equitable access to health products in the new pandemic instrument, speaking on scope of the constitutional mandate and allocation on topics on 24 July, it stated: “When it comes to the scope, from a legal point of view, the proposals made for both pandemic agreement and the IHR fall within the constitutional mandate of WHO as set out in the Article 19 and Article 21(a) respectively. We do not see any constitutional requirement that would clearly indicate the choice of the pandemic agreement or IHR for any particular issue. Such a choice may be influenced by other policy considerations such as differences between the two instruments in terms of ratification, enter into force or participation. It may be of particular relevance when deciding on the allocation of issues under the two instruments to reply to the following question: how important the universality of the certain obligation and their rapid entry into force are perceived to be for the effective implementation of the instrument.” However, the E.U. also stated that objectives of the IHR are established while the objective of the WHO CA+ is yet to be determined. According to the E.U. objectives of IHR focus on preparedness, early detection, surveillance during outbreaks including PHEIC and containment “including through public health measures”. The objective of the pandemic agreement on the other hand is to set out provisions aimed at addressing pandemic situations across the prevention, preparedness, and response cycle. Earlier on 21 July it had called upon States not to debate about what issue should discussed under which process. The principle of Universality is taken from Article 3 of IHR 2005 which states that “the implementation of these Regulations shall be guided by the goal of their universal application for the protection of all people of the world from the international spread of disease”. However, citing this, several developed countries argue there is no place for CBDR either in IHR 2005 nor in the new pandemic instrument. This would leave populations in many developing countries susceptible to international spread of disease without adequate and equitable access to vaccines and other health products as seen in the COVID-19 response. Monaco opposed CBDR referring to a perceived inconsistency with the principle of universality of IHR implementation. It stated on 24 July: “We are not prepared to amend principle of universality under IHR 2005 and therefore mention of CBDR as issue 2 in the list of the topics of common interest is not appropriate.” Namibia
It further substantiated the importance of incorporating equity under both instruments because it might take longer for some Member States to ratify the envisaged pandemic treaty and some others may not even ratify the treaty. It questioned the application of the principle of universality pointing out to reservations made by certain countries, which have altered the scope and nature of the information sharing for those countries. It categorically stated universality is a fallacy and it should not be cited as reason to not to incorporate CBDR. Malaysia, on this issue, argued that recognizing the developmental divide in both instruments is important to operationalize equity. Chile, a member of the Group of Friends of Pandemic Treaty and also Group for Equity, on the other hand supported the statement of Monaco and Switzerland on the scope of IHR 2005 on 21 July. However, subsequently on 24 July, following many of the above-mentioned interventions by other developing countries, Chile retracted from that support and proposed that equity should be addressed in both IHR 2005 and a new pandemic instrument. The U.S. and Australia indicated the possibility of accommodating “equity” in both instruments. The U.S. not only welcomed the discussion at the joint session, but also called for future joint work as appropriate to consider substantive areas of overlaps and how best to address them to protect people and lives. Referring to the list of the topics of common interest between WGIHR and INB, the U.S. stated that it regards equity as the underlying concept of both processes and as something that should be accomplished through both instruments. Speaking through the virtual platform, the U.S. Ambassador stated: “We could continue to hold formal joint sessions of WGIHR and INB, but also understand very real capacity constraints put on the delegations and want to work in a way i.e. acceptable for all. Alternatively, and in the interests of focussing on substance first, we would like to suggest assigning specific topics to a specific negotiating track being clear that doing so would not prejudice any outcomes in the other track. We could then invite members of the other negotiation track to participate as appropriate, facilitating fuller and more efficient negotiations while reducing the overall burden on our delegations. Later we would decide on the most appropriate placement for specific provisions. It could be that one provision on one topic might end up in the IHR and another provision on the same topic in the accord, or perhaps, the same provision could end up in both instruments. This process could potentially be supported by the joint discussion.” Australia, on the other hand, recognizing explicitly the importance of equity, stated as follows: “Viewing prevention, preparedness and response as a continuum, the IHR largely focuses on the middle of that continuum, addressing detection, assessment and initial response to disease events. In our view, the pandemic agreement should focus on aspects of the continuum, beyond the scope of the IHR at one end prevention measures to reduce the risk of dangerous pathogens emerging or re-emerging and at the other cooperation and coordination for sustained and effective public health response and recovery, while also reinforcing preparedness commitments under the IHR. Equity is fundamental across the entire continuum.” No decision and report adoption The Joint Plenary Meeting of WGIHR and INB was “closed” without a report for adoption on 24 July. It requested States to submit in writing how they would like to organise further joint meetings until the end of that week.+
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