Concern over proposed WHO standing body on health emergency

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Kochi, 14 January (Nithin Ramakrishnnan and K M Gopakumar) – The Austrian proposal for the establishment of a Standing Committee on Pandemic and Emergency Preparedness and Response (SCPPR) consisting of select members of the WHO Executive Board (EB) raises concerns on health emergency governance.

The proposal (EB 150/17) contains a White Paper describing the SCCPR details, a draft decision of the EB for the establishment of the SCPPR and its terms of reference (ToR). The 150th Session of the EB is scheduled to consider the proposal when it meets on 24-29 January.

Though the proposal is now part of the official documentation of the 150th EB, Austria had already organised an informal discussion in December 2021. The second informal discussion is to take place on 13 January.

According to the ToR, the SCPPR will have the following wide-ranging functions:

(a) Review, provide guidance and, as appropriate, make recommendations to the Executive Board on ongoing work regarding policy proposals on pandemic and emergency preparedness and response;

(b) Consider information provided by the Director-General about events that have been declared as a public health emergency of international concern pursuant to the International Health Regulations (2005), provide guidance to the Executive Board and, acting on behalf of the Executive Board, make recommendations to the Health Assembly on policy and related matters regarding the event and, upon request, provide advice to the Director-General to consider with respect to temporary recommendations in the event of a public health emergency of international concern.

The ToR proposed that the SCPPR be composed of 12 EB members i.e. 2 Member States from each WHO region as a “committee of limited membership” as referred to in Rule 18 of the EB Rules and Procedures. Although other WHO Member States shall have right to participate without a vote in the SCPPR meetings, the Chair is empowered to limit attendance at the Standing Committee meetings, or parts thereof, to members of the Standing Committee and essential Secretariat staff.

The SCPPR should have at least two regular meetings every year. Further, the EB can recommend convening extraordinary meetings. Most importantly, the Director-General of WHO should convene “an extraordinary meeting of the Standing Committee within 24 hours from a declaration of a public health emergency of international concern pursuant to the International Health Regulations (2005) in order for the Standing Committee to consider information provided by the Director-General about events that have been declared as a public health emergency of international concern pursuant to the International Health Regulations (2005) and, as appropriate, provide guidance to the Executive Board, make recommendations to the Health Assembly on policy and related matters regarding the event and, upon request, provide advice to the Director-General to consider with respect to temporary recommendations in the event of a public health emergency of international concern”.

The decisions of the SCPPR are to be based on consensus. If consensus is not arrived at, then the difference of views will be reported to the EB or World Health Assembly (WHA) as appropriate.

Interfering with IHR Process

The most important concern is that the SCCPR, consisting of 12 EB Members, is provided with powers to interfere with the implementation of the International Health Regulations 2005 (IHR 2005), a legally binding instrument, and the entire health emergency programme of WHO.

As mentioned above, upon request from the Director-General the SCPPR is to provide advice on the temporary recommendations under the IHR.

It must be noted that Article 15 of the IHR, on the other hand, not only obligates, but also empowers the Director-General to issue temporary recommendations in the event of a public health emergency of international concern (PHEIC) in accordance with the procedure set out in Article 49 of the IHR.

Under Article 49(5), the Director-General is the final authority to make a decision on the temporary recommendations after considering the views of the Emergency Committee. The commendations under Article 15(2) may include health measures to be implemented by the State Party experiencing the public health emergency of international concern, or by other States Parties, regarding persons, baggage, cargo, containers, conveyances, goods and/or postal parcels to prevent or reduce the international spread of disease.

Article 49 of the IHR further provides for the Director-General to convene an Emergency Committee, which shall be composed of experts selected from the IHR Expert Roster before the issuance of temporary recommendations. The Director-General is required to provide relevant information to the Emergency Committee including the temporary recommendation he or she proposes to issue. The Director-General is further obligated to invite the State Party in whose territory the event arises to present its views to the Emergency Committee. After considering the views of the Emergency Committee that were forwarded to him/her the Director-General shall make decisions.

The proposal now seeks to interfere with this power and functions of the Director-General. It proposes to incorporate a handful of Member State representatives in the process, and also to empower the Chair of such a committee to exclude participation of other Member States. The effect of the proposal will indirectly alter the implementation of IHR 2005 without an amendment of the IHR. This will make the Director-General’s decision susceptible to the undue influence of powerful Member States. Also, the proposal allows scope for the SCPPR to make decisions without consulting the affected States or other relevant States.

Though the SCPPR is to provide guidance, upon the request from the Director General, the power dynamics at the WHO, especially the dependence of WHO on the voluntary contributions from developed countries, would force the Director-General to seek and follow the advice from the SCPPR. This would compromise the independence of the office of the Director-General.

There is another process issue of concern with the Austrian proposal on the SCPPR. It seeks to alter the effect of a legally binding instrument, the IHR 2005, adopted by the WHA, through an EB resolution. Therefore, the legitimacy of the decision adopting such a proposal by the EB shall be questionable.

IHR 2005 is a legal instrument adopted by the WHA under Article 21 of the Constitution of the WHO. Article 21 says that the WHA shall have authority to adopt such regulations. The EB, on the other hand, under Article 28 of the Constitution, is required to give effect to WHA decisions and policies. It should act as an executive organ of the WHA. This means that the EB cannot act in ways which are not consistent with laws and regulations adopted by the WHA, although under Article 28(i), it may authorise the Director-General to take the necessary steps to combat epidemics. Furthermore, the EB cannot, by its own motion, seek to limit or interfere with the powers conferred on the Director-General by the WHA. However, the SCPPR proposal does both: firstly, it is inconsistent with the IHR process; and secondly it interferes with the powers and functions of the Director General.

Concerns on compromising scientific advice

According to the White Paper on the proposal, the establishment of SCPPR could improve WHO’s operations, and the role of its Member States therein, in the most critical moments of global health response to health emergencies, including by:

(a) Strengthening the role of Member States in guiding the Director-General;

(b) Narrowing the gap between WHO’s scientific advice (given by the Secretariat and Expert Committees) and actual policies in Member States; and

(c) Overcoming the structural shortcomings that have manifested themselves during the current pandemic (Covid19 pandemic).

Though the SCPPR proposal strengthens the role of selected Member States it could result in conflict between the scientific advice and actual policies of the WHO, and further worsen the coordination problem manifested during the COVID-19 pandemic response. Both the Emergency Committee acting under the IHR and the SCPPR are advisory bodies to the Director-General. The possibility of delivering conflicting or contradictory advice to the Director-General is greater because the bodies differ in their priorities.

The principles under which they make decisions shall also differ. This would compromise the capacity of office of the Director-General and the WHO, which need coherent policy suggestions to act swiftly during an emergency. Further, there is a real danger of undermining scientific advice for political reasons.

Exclusive Club of powerful Member States

Though the SCPPR allows for the attendance of WHO Member States in its meetings, the Chair of the SCPPR can exclude the participation of other WHO Member States under paragraph 3 of the ToR. Towards this purpose the draft decision paragraphs 2 and 3 also seek to amend Rules 3 and 18 of the EB Rules of Procedure respectively. The effect of the amended rules will allow the Chair of the Committees established under Rule 18 to exclude participation of the Member States of WHO in the committee meetings. It must be noted that earlier in the month of December 2021, Austria circulated another draft decision text, which proposed to suspend Rule 3 and the 3rd sentence of Rule 18.

Rule 3 of the EB Rules of Procedure reads: “All Member States not represented on the Board and Associate Members may designate a representative who shall have the right to participate without vote in the deliberations of meetings of the Board and of committees of limited membership (as defined in Rule 18) established by it)… Representatives of Member States and Associate Members participating in meetings under this Rule shall have the following rights: (a) the right to speak after members of the Board; (b) the right to make proposals, and amendments to proposals, which shall be considered by the Board only if seconded by a Board member; and (c) the right of reply.”

The 3rd sentence of Rule 18 states: “All Member States and Associate Members shall have the right to attend such committees in accordance with Rule 3.”

In its current proposal, Austria seeks to add a clause “unless the Chair of the committee decides otherwise, the reason for which must be presented to the next session of the Executive Board” towards the end of the 3rd sentence of Rule 18. In Rule 3, it proposes to include the words “pursuant to” before the words “as defined in Rule 18”.

The Austrian proposal thus turns the 3rd sentence of Rule 18 into the following:

“All Member States and Associate Members shall have the right to attend such committees in accordance with Rule 3 unless the Chair of the committee decides otherwise, the reason for which must be presented to the next session of the Executive Board”.

[ Rule 3 states: “All Member States not represented on the Board and Associate Members may designate a representative who shall have the right to participate without vote in the deliberations of meetings of the Board and of committees of limited membership (as defined in Rule 16) established by it”.]

The proposed amendments to Rules 3 and 18 mean that the Chair of the Committee shall have capacity to exclude participation of other Member States if required by providing a reason. The proposed Standing Committee can therefore function as an “exclusive club”, where only 12 Member States acting on behalf of the EB advise and make recommendations to the Constitutional Organs of the WHO such as the Secretariat, Director-General, Executive Board and WHA.

According to the experts and some delegates who spoke to Third World Network, the proposal is an attempt by developed countries to indirectly legitimise some of the activities carried out by the WHO Secretariat at their behest. For example, developed countries fund many programmatic tools and schemes of the WHO Secretariat such as the WHO Bio-Hub, Hub for Pandemic and Epidemic Intelligence, and Genomic Surveillance Strategy which ignore the policy inputs from the developing countries and their special needs or requirements. A major criticism against such initiatives is that they are not Member States-led and are not based on decisions of the WHA or EB. The proposed standing committee can be therefore be used to legitimise such initiatives, by-passing a substantive discussion in the WHA.

In short, the new proposal for the SCPPR effectively means that 12 Member States will have the power to take decisions relating to pandemic and emergency preparedness and response, with no transparency. They can act as an exclusive club, while wide-ranging powers, even to provide recommendations to the Director-General, EB and WHA, will be vested on them.

- Third World Network