TWN Info Service on Health Issues (Jan24/01)
9 January 2024
Third World Network

WHO: Upcoming IHR amendment negotiations to focus on equity proposals

9 Jan 2024, Geneva (TWN) – The 6th meeting of the Working Group on Amendments to the International Health Regulations 2005 (WGIHR6) has decided to focus on equity and allocate more time to the discussions on amendment proposals relating to equity in its upcoming 7^th meeting, to be held on 5 to 9 February 2024.  

Attempts to push for an early harvest approach on amendment proposals relating to surveillance, sanitary, and quarantine measures, and the structure and role of national authorities, were dropped due to resistance from developing countries.

WGIHR6 was held on 7 to 8 December 2023 at the WHO headquarters in Geneva, in a hybrid mode. The report of the meeting was adopted on 8 December.

During the adoption of report of the meeting the Co-chair from New Zealand reaffirmed the commitment to the need for the amended International Health Regulations (IHR) to address equity.  He stated: “It’s heart; and it's really the key purpose and part of our original mandate”. The Co-chair also clarified that the WGIHR will continue its work up until May 2024, with an aim to reach consensus on a package of amendment proposals which could be then transmitted to the World Health Assembly (WHA) in May 2024.

While some developed countries had an interest in transmitting an early selection of amendment proposals to the WHO Director-General relating to surveillance and to implementation of health measures through national authorities and conveyance operators, such an attempt did not garner much support.

The 7th Working Group meeting is expected to take up amendment proposals relating to Articles 13, 13A, 44, 44A, 53A, 53bis-quarter, and Annexes 1 and 10 with more focus. These proposals relate to equity, financing, implementation and compliance, core-capacities and duty to cooperate. According to the report of WGIHR6, the Bureau of the Working Group has undertaken responsibility to facilitate informal consultations during the intersessional period with a view to sharing a revised text ahead of  WGIHR7.

In this regard, the report of the meeting states:

“6.       Member States and regional groups shared updates on text proposals related to the following articles: Article 13, Article 13A, Article 53A, 53 bis–quarter, 54 and 54 bis, and; Article 44; Article 44A; and Annexes 1 and 10. The drafting group agreed that the Bureau would consider the proposals and share proposed text with the drafting group ahead of the seventh meeting of the WGIHR in February 2024 (WGIHR7).

7.         Regarding the proposed amendments to Articles 13, 13A, 44, 44A, Annex 1, new Annex 10 relating broadly to equity, capacity building and financing to support capacity building and IHR implementation, the Bureau will consider the proposals and facilitate informal consultations during the intersessional period with a view to sharing a revised text ahead of WGIHR7. The drafting group also supported the suggestion for Bureau members to attend related INB subgroup discussions.”

Bangladesh, one of the proponents of major equity-related IHR amendment proposals, requested to discuss Articles 13 and 13A on equitable access to health products and technologies required to respond to public health emergencies of international concern (PHEIC), along with Articles 44, 44A, and Annexes 1 and 10 in the beginning of the next meeting. The Co-chair agreed to the proposal and indicated in the concluding session that these Articles will be placed upfront or discussion in the agenda of WGIHR7.

Monaco expressed doubts regarding the process, which stipulates that the IHR amendment proposals must be circulated at least four months ahead of the WHA. However, the Co-chair pointed out that the legal counsel has already advised that this stipulation is met with, when the compilation of IHR amendment proposals was first transmitted by the WHO Director-General to all Member States.

After taking updates from the Member States and Regional Groups on their proposed amendments, WGIHR4 discussed amendment proposals relating to Articles 15-18 on temporary and standing recommendations, as well as Articles 19, 23-24, 27-28, 31, 35-36 on health measures at points of entry, affected conveyances, role of conveyance operators, health documents etc.  It also discussed Articles 42-43, 45, and 56 on implementation of health measures, treatment of personal data, and settlement of disputes respectively.

Developed countries’ indifference towards equity

Several countries such as Japan, Australia, Norway, and the European Union have been trying to dilute, if not avoid, IHR amendment proposals relating to equitable access to health products by citing comments of the IHR Review Committee on equity-related amendment proposals.  The IHR Review Committee had termed some of the amendment proposals on equity proposals as complex, and therefore not targeted amendments. 

At one instance, relating to discussions on the amendment proposals in Articles 13A, 15-18, and 42, Japan questioned whether the WHO Director General can issue recommendations on equitable access to the health products and technologies. The major proposal from the developing countries spreading across all these Articles requires authorizing the WHO Director-General to issue recommendations to States Parties on realizing equitable access to health products such as vaccines, therapeutics and diagnostics during a PHEIC.

Under Article 13, the proposal is to empower WHO to request all States Parties to support the WHO Coordinated Activities against a PHEIC, including for equitable access to health products. Articles 15 to 18 are also proposed to be amended for enabling WHO to issue recommendations for equitable access such as temporary or standing instruction, after taking into account the status of demand and supplies of health products.

Operationalization of these functions of WHO and the States Parties’ obligation to implement such recommendations are dealt with in detail under the Article 13A proposal.

Accordingly, WHO has to assess the potential shortage of supplies during a PHEIC and has to make recommendations to the States Parties to promote equitable access including any allocation plans if required. The States are also to be mandated to follow those recommendations, through scaling up productions within their territories, diversifying production to developing countries and by adhering to allocation plans developed by the WHO. Under Articles 13A and 42 proposals, States are also required to ensure that non-State actors acting from their territories act consistently with WHO recommendations and health measures taken pursuant to IHR 2005, respectively.  

The Bureau in the context of Article 15-18 has proposed textual suggestions which state that while issuing “recommendations”, the Director-General can provide “guidance” to States Parties on access to, and allocation of, health products, technologies and know-how through WHO-coordinated mechanisms, as appropriate.

Since the language in such text formulation can potentially create an ambiguity as to the authority of the Director-General to make recommendations, certain developing countries, including the Africa Group during WGIHR4 insisted on using language which makes it clear and straightforward that the WHO Director-General can make recommendations for equitable access. Japan and developed countries on the other hand, do not want WHO or the Director- General to have such functions. They also do not want to take up “obligations” to cooperate and assist in this regard.  

The WHO Secretariat, however, showed examples during the COVID-19 pandemic, when the WHO Director-General made recommendations relating to equitable access to health products. This has strengthened the developing countries’ proposition that equity and equitable access to health products are matters within the scope of IHR 2005. 

Technical Amendments without adequate safeguards on Human Rights

WGIHR6 discussed the Bureau’s textual proposals for amending IHR 2005 in areas such as health measures to be undertaken in vessels and points of entry and health documents (format and standards).  

Relating to vessels, the Bureau’s proposal took inputs from developed country’s proposals, seeking to empower conveyance operators to implement health measures, including onboard quarantining, under Article 24. The proposals also seek to empower competent authorities of port States to implement additional health measures, including quarantine of conveyances to prevent international spread of disease under Article 27.

Further, under Article 35, the Bureau proposed that health documents can be either in paper or digital format, and also proposes that WHO, in consultation with States, can develop standards and specifications, including for inter-operability.

[Interoperability generally refers to the ability of two or more systems to work with other systems. In the current context, it refers to computer systems, programmes or other digital tools interacting or working with each other, using a common data format or communication protocols which enhances the speed of data sharing, and ease of processing. While this may contribute to increased data transfers across national borders there are implications on sovereign control by States over the data generated or stored in their territories.]

Interestingly, WGIHR seems to be generating some form of convergence and consensus on the above-mentioned amendment proposals in IHR 2005 relating to (i) on-board quarantining and (ii) use of digital health documents.

In Article 24, the proposal is to obligate States Parties to take practicable measures such that the conveyance operators comply with and implement health measures recommended by WHO and adopted by a State Party, including on-board quarantining, and other measures upon embarkation and disembarkation. The proposal is getting some convergence across WGIHR members.

However, the proposals from certain developing countries to balance such a proposal with inclusion of human rights standards were not accepted by several States and the Bureau. In fact, the Bureau was assisted by the WHO legal counsel to argue that recommendations developed by WHO and health measures adopted by the State Party consistent with such recommendation will meet human rights standards by virtue of Article 3 of the IHR 2005.

It is learnt that some developing countries expressed dissatisfaction with this explanation as Article 3 speaks on only general principles, with nothing explicit on non-State actors’ obligation to act consistently with human rights standards. They argued that health measures like on-board quarantine poses several risks and challenges in safeguarding human rights and therefore there is a need to specifically mention human rights standards, when IHR enables conveyance actors to implement such measures.  They continue to insist on their proposal that obligates States Parties to ensure conveyance operators, who are implementing such health measures, act consistently with human rights standards.

Similarly, there are several proposals to explicitly include digital health documents within IHR. Some of them are gaining acceptance in the WGIHR discussions. Nevertheless, in the name of emergency operations and interoperability, the proposals seek to dilute the right to privacy of the individuals as well as data sovereignty of the States Parties. The proposals from the Bureau on accepting digital health documents are largely welcomed by the States Parties. At the same time, the Africa Group’s proposal safeguarding data through regulating the secondary storages and duplication of data under Article 45 is reportedly withdrawn.

However, certain countries like India, Indonesia and Botswana have questioned the stress on interoperability and how much interoperable systems can be developed while respecting the right to privacy of individuals and sovereignty of the States Parties over the data of their residents and citizens. On enquiry, some of the Africa Group delegations indicated that the group may propose a revised amendment language to Article 45.

WGIHR to coordinate with INB on definition of pandemic, public health alerts and financing approaches

It has been agreed by the Members States in the WGIHR6 meeting that there will be increased coordination with the Intergovernmental Negotiating Body (INB) that working on a proposed pandemic instrument, in the areas relating to public health alert, definition of pandemic, PHEIC and pandemic continuum and financing approaches to meet the needs and mandates of the both the instruments, i.e. IHR 2005 and the proposed pandemic instrument.

In this regard, the WGIHR6 report states:

“5. Following an initial discussion on the proposed amendments held in an open session, the Working Group transitioned into a drafting session and proceeded with a discussion on financing mechanisms. The drafting group agreed to continue discussions during the intersessional period, in coordination with the INB, to develop an approach to financing that meets the needs and mandates of both processes…

9. Regarding proposed amendments related to the public health alert – PHEIC – pandemic continuum, including definitions, criteria and the process for determining each, the drafting group agreed to form a subgroup, convened by the Bureau and open to all drafting group members, and in coordination with the INB, to move the discussions forward and to provide an update at the WGIHR7.”

In addition, the WGIHR6 report also states that “The drafting group also supported the suggestion for Bureau members to attend related INB subgroup discussions”, in matters relating to equity and capacity building.

However, Botswana told the WGIHR Bureau that this increased coordination must result in specific drafting outcomes for both WGIHR and INB, indicating that IHR and the new pandemic instrument are two different international instruments. Developing a financing solution or solutions for challenges to equitable access in any one of the instruments cannot suffice with similar requirements in the other instrument.

According to the Africa Group, it is crucial to address equity gaps through both instruments since equity is the most critical gap experienced during the COVID-19 pandemic and other PHEICs such as Monkey Pox or Ebola, which are not pandemics. Botswana was endorsing the general position of the Africa Group and at the concluding session the WGIHR Co-Chair said that the WGIHR Bureau has specifically noted the suggestion by the delegation from Botswana.+