TWN Info Service on Health Issues (Oct23/04)
13 October 2023
Third World Network

WHO: IHR amendments deadline extended to May 2024; Bureau mandated to draft text

Geneva, 13 October (TWN) – The deadline to conclude negotiations on the amendment of the International Heath Regulations (IHR) of 2005 is extended to May 2024.

This was decided at the 5^th meeting of the Working Group on Amendments to the IHR (WGIHR), the mandated negotiations body, that took place on 2 to 6 October 2023 in a hybrid format at the WHO Headquarters in Geneva.

The report of WGIHR5 states: “…The Co-Chairs noted that, in reference to Decision WHA75(9), it appeared unlikely that the package of amendments would be ready by January 2024. In this regard, the Working Group agreed to continue its work between January and May 2024. The Director-General will submit to the 77th Health Assembly the package of amendments agreed by the Working Group”.

WGIHR Co-chair Dr Ashley Bloomfield, while opening the closing plenary, stated: “What I can say without any doubt to all our relevant stakeholders, and I am sure that this view would be shared in the room, is that we have a shared and clear understanding of our mandate which is two-fold, first to come up with a set of targeted amendments, but secondly, and these are interlinked, to reorient the IHR towards equity.

“We have made progress this week on that topic, perhaps not as much as, definitely not as much as, we intend to. But we have intercessional plans to keep progress going on both parts of our mandate, both the technical amendments, but also the reorientation towards equity and that remains a very strong focus for our work here. And we'll continue. We will continue our work between now and our next meeting in December and as a working group we have also agreed that we will need to continue our work in the new year between January and May 2024”.

According to the decision of the World Health Assembly (WHA 75.9) the WGIHR is “to establish a programme of work, consistent with decision EB150(3), and taking into consideration the report of the IHR Review Committee, to propose a package of targeted amendments, for consideration by the Seventy-seventh World Health Assembly, in accordance with Article 55 of the International Health Regulations (2005)”.

[Article 55 of IHR states: “The text of any proposed amendment shall be communicated to all States Parties by the Director-General at least four months before the Health Assembly at which it is proposed for consideration.”]

The WHO’s Principal Legal Officer suggested the way forward by stating that though the WGIHR is a subsidiary body working under the WHA the Director-General needs to fulfil the obligation under Article 55(b) by circulating the amendment proposal to Member States in January 2024. This allows the WGIHR to continue to work prior to WHA 2024 in May and directly submit the package of amendments to the WHA.

The Principal Legal Officer stated that, “Article 55 of the IHR, including this four-month requirement, has never been applied to amendments submitted collectively by a subdivision of the Health Assembly - which is exactly what the WGIHR is. The WGIHR is a subdivision of the Health Assembly under Rule 41 of the Rules of Procedure of the Health Assembly. Thus, there are no precedents to rely on, with respect to the manner in which the four-month requirement set out in Article 55 should be satisfied. That is to say, Article 55 has been applied to amendments proposed by the State Party or by the Director General, but never by a subdivision of the Health Assembly…

“This is a first. Accordingly, an option for consideration by the Working Group would be for the Director General to communicate in January 2023 the following documents to all States Parties: first, the proposed amendments as originally submitted by Member States, and already communicated by the Secretariat to all States Parties by email. And second, the proposed amendments as they might be shown on the screen at the closure of WGHR6. This approach would allow work to continue in the WGIHR, if necessary, up until the 77^th Health Assembly itself, recognizing the importance of complementarity with the INB process which as we know is mandated to work up until the 77^th WHA.

“…This approach just outlined for your consideration would fulfil the four-month requirement in its purpose as prescribed by Article 55 of the IHR, … at the same time, allowing the Working Group to continue its consideration and negotiation of the proposed amendments including possible modifications to the package that would be communicated to States Parties. Should this approach be considered satisfactory, … the Working Group may wish to consider reflecting it in the report of this session of the WGIHR.”.

[The INB is the Intergovernmental Negotiating Body mandated to develop a new pandemic instrument in a parallel process.]

According to the Report of the 5^th meeting of WGIHR apart from the scheduled work program WGIHR5 also discussed “a consolidated proposal of proposed amendments, by proponent States Parties, to Article 13A Equitable Access to Health Products, Technologies and Know-How for Public Health Response, as well as Article 8 Consultation”.

However, many developing country delegates told TWN that developed countries followed a non-engagement policy during the discussions on equitable access.

Bureau to Prepare Text

The Bureau of the WGIHR is now empowered, with the assistance of the Secretariat, to prepare draft text proposals based on the discussion so far. This is a major departure from the existing practice. Usually, the Chair or Co-chairs may suggest a text in their individual capacity based on the various positions that have emerged during the negotiations, to move forward in the negotiations.

When the Bureau takes over the role of the Chair or Co-Chairs to propose text during negotiations there are two types of risks. First, it puts the Bureau members under pressure to own the text and compromises their national position during the negotiations. Second, historically the Secretariat is mostly aligned with the developed countries and developing country delegates face stiff resistance inside the Bureau to push their case.

The WGIHR5 Meeting Report states: “Preparation, as relevant, by the Bureau with the assistance of the Secretariat, of draft text proposals based on the discussions so far, for consideration by the Working Group at the Sixth Meeting, without prejudice to the status of the proposed amendments by States Parties.”

Initially, the European Union (E.U.) proposed this paragraph, without the qualification“without prejudice to the status of the proposed amendments by States Parties”. Developing countries like Malaysia proposed to include such a clause. The E.U. concurred and this was added to the end of the paragraph.

There are serious concerns that this text drafting role given to the Bureau also impinges on the effectiveness of other processes such as intersessional briefings and intersessional consultations set out in the Report to reduce the differences among the Member States on various issues. According to the WGIHR5 Meeting Report:

“Discussions between proponents of various proposed amendments, with a view to presentation of any outcomes for the consideration of the drafting group.

Intersessional briefings and facilitated intersessional consultations, in a hybrid format, open to all drafting group members, as well as joint intersessional work with the INB at dates and times to be announced, covering Articles, Annexes and topics discussed during this and previous meetings of the WGIHR, including those that have been the subject of intersessional work. Work will also continue on financing for public health emergencies and IHR implementation, and the Public Health Alert - PHEIC - pandemic continuum, including definitions, criteria and the process for determining each. The outcomes of facilitated intersessional consultations are understood not to constitute agreed text and will be made available in advance of the next WGIHR meeting in December 2023.”

Since the Bureau has the mandate to draft the text the intersessional processes are now reduced to providing input to the Bureau instead of finding consensus or bridging the divergence in country or group positions. The experience of Bureau text on the pandemic instrument shows that such text has left out many crucial proposals of developing countries aiming to achieve equity in the international health emergency regime.