TWN Info Service on Health Issues (Feb24/01)
5 February 2024
Third World Network

WHO: WGIHR 7 agenda proposes inequitable treatment for equity proposals  

Geneva, 5 February (Nithin Ramakrishnan and K M Gopakumar) – The provisional agenda and programme of work for the 7th meeting of the Working Group on Amendments to the International Health Regulations 2005 (WGIHR7) do not treat amendment proposals for operationalizing equity in IHR 2005 on the same footing with other amendment proposals that are either technical in nature or in the interests of the developed countries.

It is not clear whether there will be negotiations on equity-related provisions and others of interest to developing countries, because the Bureau has not circulated the text on equity-related provisions.

This is a backtracking from the commitment made by the Co-Chair during the last day of the 6th meeting of WGIHR held in December 2023 and goes against the mandate of the Bureau to work during the intersessional period on these equity-related proposals.

In this regard, the WGIHR6 report reads: “Regarding the proposed amendments to Article 13, Article 13A, Article 44, Article 44A, Annex 1 and new Annex 10 relating broadly to equity, capacity-building and financing to support capacity-building and the implementation of the International Health Regulations (2005), the Bureau will consider the proposals and facilitate informal consultations during the intersessional period with a view to sharing a revised text ahead of the seventh meeting of the WGIHR.”

TWN learnt that the WHO Secretariat had communicated textual proposals on equity-related proposals on Friday afternoon (2 February) for the consideration of the Bureau which has yet to take a decision regarding the circulation of the text as the Bureau’s text.   A couple of developing country delegates also confirmed that there was no intersessional work or informal consultations on most of these Articles. (The proposed text concerned are Articles 13, 13A, 44, 44 A, Annex 1 and Annex 10.)

WGIHR7 will take place on 5 to 9 February 2024 at the WHO headquarters in a hybrid mode.

The Draft Programme of Work for WGIHR7 does not envisage discussions on equity-related amendment proposals such as those related  to Articles 2, 3, 13, 44 and Annex 1, as well as proposed new articles 13A and 44A.

[Article 2 deals with the purpose and scope of IHR 2005, Article 3 is on principles, Article 13 is on public health response. The new amendment proposals are as follows: Article13A on equitable access to health products, technologies and know-how, Article 44 on collaboration and assistance, Article 44A on Financial Mechanism, and Annex 1 on Health Emergency Preparedness and Response Capacities.]

According to the draft programme of work, agenda item no 3 is the consideration of proposed amendments which is titled “Consideration of proposed amendments including text proposals from the Bureau and the outcome of intersessional discussions”. However, this agenda item is further divided into two sub-items.

“… • The Co-Chairs will introduce the updated Bureau’s text on proposed amendments related to the following articles and annexes:
– Articles 4; 5; 8; 9; 15–18; 24; 35; 36; 37; 42; 43; 45; 56; and Annexes 2–4; 6;

and 8

•  The Co-Chairs will provide an update on the Bureau’s text proposals related to the following articles and annexes, including updates on the facilitated discussions on these proposals during the intersessional period:
– Articles 6; 7; 10–13; 13A; 44; 44A; 48; 49; 53A; 53 bis–quater; 54; 54 bis; and Annex 1; and new Annex 10 …”

Thus, the first sub-item will introduce and discuss the updated Bureau’s text on the proposed amendments. Subject matters covered in this item are responsible authorities (Article 4), surveillance (Article 5), consultation and reports (Article 8 and 9), temporary and standing recommendations (Articles 15-18), conveyance operators (Article 24), health documents (Article 35 and 36), implementation of health measures (Article 42), additional health measures (Article 43), treatment of personal data (Article 45), settlement of disputes (Article 56), decision instrument for assessment of public health events (Annex 2), model ship sanitation control exemption certificate/ship sanitation control certificate (Annex 3), technical requirements pertaining to conveyances and conveyance operators (Annex 4), vaccination, prophylaxis and Related Certificates (Annex 6), Model of Maritime Declaration of Health (Article 8).

However, the second sub-item, which contains major amendment proposals with respect to achieving equity, would only provide an update on the Bureau’s text proposals. This means the Bureau does not propose a text-based discussion on equity-related amendment proposals, quite contrary to the commitment given by the Bureau Co-Chair during WGIHR6.

During the concluding session of WGIHR6 in December 2023 one of the Co-Chairs had responded affirmatively to the following request from Bangladesh.

Bangladesh asked “still we have to make progress on Articles 13, 13A, 44, 44A and Annex 1… so we request you to consider that at the beginning in the next round of discussions. I think it is important to ensure that all articles are on equal footing. Because of your intention… our intentions as well is to advance equity as the prime focus of the amendments”.

The Chair replied “… as you see that our commitment would be to put those upfront on the agenda for our next meeting to make sure we really are going through them in detail and having a good discussion on those articles that are seen through to delivering on equity.”

Bangladesh had also asked when the Bureau’s textual proposals would be circulated for the discussions in WGIHR7 as per the mandate reiterated in the report of WGIHR6. The Co-Chair had then said the text proposals will be circulated as and when they are prepared with the support of WHO Secretariat.

By placing the dedicated discussions on the Bureau’s text on various other Articles, the Bureau and the WHO Secretariat seems to attempt to shift the focus from the various proposals from Member States to incorporate equity-related provisions in IHR 2005.

For WGIHR7, the Bureau has circulated its proposals for around 17 Articles and 5 Annexes. Amongst these, on Articles relating to surveillance, verification of external reports, certificates of vaccination or other prophylaxis and health measure, i.e. Article 5, 9, 36 and 42 respectively, the Bureau has proposed to retain the current IHR 2005 text. Regarding article 24, on conveyance operators, the Bureau agrees to continue with the text proposals that were on the screen during the last discussion on 8 December.

However, on Articles 4, 8, 15, 16, 17, 18, 35, 43, 45, 56 the Bureau has amended the texts that were shown in the screen during the last meeting. These proposals, as well as proposals on 5 annexes, are up for discussion in WGIHR7.

Thus, most of the initial discussions under Agenda Item 3 will focus on technical matters such as health documents, operations of conveyance operators, responsible authorities etc., although certain articles like 15-18, 42 and 43 reflect some elements of equity. The most crucial elements of equity, i.e. financing for core capacity building (Article 44A) and equitable access to health products, technologies and know-how (Article 13A) are not included in the list of Articles which will be discussed under the first agenda sub-item. These Articles are mentioned under the second sub-item, but there is no mention of consideration of any textual proposals, neither from the Bureau or from the States Parties to IHR 2005.

Bureau’s Text Proposals for Articles 4 and 5 ignore equity

The WGIHR Bureau’s text proposals for Articles 4 and 5 have conspicuously avoided elements of equity. Article 4 which deals with responsible authorities originally contained obligations to establish and maintain responsible authorities in the States Parties for implementation of IHR 2005, and in particular, national focal points which shall communicate and coordinate with the WHO focal point in the implementation of IHR 2005. Article 5 deals with the establishment of surveillance capacities, detection and assessment of public health events that may become a potential PHEIC.

The Bureau’s textual proposals on Article 4 compromises equity on two fronts.

Firstly, the text proposal envisages to create a network of national authorities of technical expertise and bypass national discretion in sharing information about public health events. This could create several economic repercussions to developing countries, including low credit rating profiles in the financial market.

It must be noted that the proposal from the Bureau to establish a National IHR Authority, National IHR Focal Point and National IHR Competent Authority is not limited to national context and law, as it appears from proposed paragraph 1 of Article 4. A newly proposed paragraph 5 to Article 4 seeks to obligate States Parties to amend their national law to enable them to allocate adequate human and financial resources to these entities. Although the establishment of these entities appears to be an obligation which is domestic in nature, there is another proposal which seeks to share contacts of these entities with all States Parties and WHO. This establishes a de facto international network of technical authorities that could eventually side line the political entities’ discretionary authority over health emergency affairs, resulting in unnecessary interference with trade and traffic. This defeats the very purpose of IHR 2005 which seeks to avoid such unnecessary interferences.

Secondly, the text proposals fall short of taking into account the importance of WHO State Parties’ communication regarding a coordinated public health response to PHEIC or need for assistance in responding to PHEIC. It is interesting to see that while the Bureau’s textual proposal is aligned with certain developed countries’ proposal to alter paragraph 2 of Article 4 of the IHR 2005 to convert the functions of National IHR focal points into obligations of National IHR Focal points, the proposal does not make efforts to expand the role of focal points to communicate on issues associated with public health response, support and assistance. They continue to be obligated for communications pursuant to Article 6 to 12. Thus, there is no guarantee that a State Party will respond to a WHO request under Article 13(5) to provide support for WHO coordinated activities to help another State Party where PHEIC is prevalent.

However, the Bureau’s text does not refer to Article 13 or 13A on equity in their proposed amendment for Article 4(2) for creation of a National IHR Authority. Similarly, the Bureau’s text makes no effort to ensure that WHO’s focal point has an obligation to respond to communications (requests for support) made to WHO by States Parties under Article 13 and newly proposed Article 13A.

Therefore, the Bureau’s proposal for Article 4 perpetuates the inherent inequity of international health emergency law, where communication and coordination are obligatory only for sharing of information about potential public health events. There is not even a guarantee that a State Party’s request for assistance in responding to a disease outbreak will be responded to by WHO or by other States Parties.

In addition, the Bureau’s proposal to retain the original text of Article 5 also avoids the proposal to incorporate the differential treatment of the obligation of developing countries in establishing surveillance capacities. Countries like Malaysia have proposed changes to Article 5 to this effect and it has support from a larger number of developing countries, but the text is not reflected in the Bureau’s proposal for Article 5 in any manner whatsoever. This will further force developing countries to invest more in surveillance, even when they lack primary health care facilities.+