WHO proposed new standing committee usurps powers of IHR ‘05

Health - An infant receives a polio vaccine during a campaign that targeted over six million children in Afghanistan. (file) Unicef - K Shah

27 May, Geneva (Nithin Ramakrishnan) – The terms of reference (ToR) proposed for a new WHO Executive Board Standing Committee on Health Emergency Prevention, Preparedness and Response (SCHEPPR) raises concern as they seek to usurp powers of the International Health Regulations (IHR) 2005.

The proposed ToR text marked as “Chairs Draft after Informal Cons. April 1, 2022” had been informally circulated amongst Member States since 25 April. On 9 May Austria organised an informal meeting at which several small delegations expressed their reservations. It is understood that the above version has been “green-ed” (finalised) in the 9 May meeting with some changes, despite several countries’ silence and non-participation.

A draft decision text that was finalised through the informal meeting was then open until 12 May for Member States to become co-sponsors of the text. This decision text is currently available in the EB151 dashboard as a conference paper (EB151/CONF./1) dated 27 May 2022. According to Operative Paragraph 2, the 151st Session of the WHO Executive Board (EB151) on 30 May is expected to approve the ToR text tabled after the 9 May informal meeting. The ToR is annexed to the draft decision text.

It is further understood that there was a suggestion from several Member States to consider the recommendation for a standing committee under the Member States Working Group on Strengthening WHO Preparedness and Response to Health Emergencies (WGPR) in order to bring coherence and to avoid spreading too thin. This was not paid attention to by developed countries, including Austria, the proponent of the SCHEPPR proposal.

According to the proposed functions under Paragraph 5 of the ToR the SCHEPPR, which will act as a standing committee of the Executive Board (EB), will have powers over the cases that have not been determined as Public Health Emergency of International Concern (PHEIC) under IHR 2005. Also, in the cases where a public health event is determined as PHEIC, the proposal now requires the WHO Director General to hold an extraordinary meeting of the SCHEPPR, as early as possible, in order to seek guidance and advice, through the EB.

Paragraph 5 of the ToR in the Annex states as follows:

“The Standing Committee shall:

a) In the event a PHEIC is determined pursuant to the International Health Regulations (2005): Consider information provided by the Director-General about the event that has been determined to constitute a public health emergency of international concern (“PHEIC”) and, as appropriate, provide guidance to the Executive Board and advice to the Director-General, through the Executive Board, on matters regarding health emergency prevention, preparedness and response, and immediate capacities of the World Health Organization Emergencies Programme; and

b) Outside of the cases where a PHEIC is determined pursuant to the IHR (2005): Review, provide guidance and, as appropriate, make recommendations to the Executive Board regarding the strengthening and oversight of the WHO Health Emergencies Programme and for effective health emergency prevention, preparedness and response.”

The draft decision is sponsored by Austria, Canada, the European Union and its Member States, Japan, Republic of Moldova, Switzerland, United Kingdom of Great Britain and Northern Ireland, United States of America and Vanuatu.

SCHEPPR seeks powers beyond the Constitutional Mandate

The EB itself does not have such wide-reaching powers under the WHO Constitution. Under Article 28 of the WHO Constitution, the functions of the EB are limited as an executive organ of the Health Assembly, except for taking up some emergency functions as mentioned in clause (i) of Article 28. Even there, the Article limits EB functions to certain specific purposes.

Article 28(i) of the WHO Constitution states as follows: “(i) to take emergency measures within the functions and financial resources of the Organization to deal with events requiring immediate action. In particular it may authorize the Director-General to take the necessary steps to combat epidemics, to participate in the organization of health relief to victims of a calamity and to undertake studies and research the urgency of which has been drawn to the attention of the Board by any Member or by the Director-General.”

EB has power to combat epidemics or address victims of calamities and to undertake research. But through paragraph 5(b) of the terms of reference, the newly proposed standing committee can act over any public health event, not just epidemic, and also even if they are not determined as PHEIC under IHR 2005. This far exceeds the functions under Article 28(i) of the Constitution.

It must be noted that the WHO, right from the beginning of its establishment, was dealing with only specific infectious diseases, until IHR 2005 was adopted. IHR 2005 was the revised version of IHR 1969 which dealt with specific diseases. WHO Member States who revised IHR 2005 were very careful in this revolutionary change and not to emancipate enable WHO and the international community with excessive power to intervene in the health affairs and policy of the Member States. The definition of PHEIC was therefore adopted under Article 1 and the criteria for determining the PHEIC status of any public health event were laid down in Article 12 of the IHR 2005.

The actions of WHO and international community in the area of health emergencies are therefore limited and bound by the legal instrument, IHR 2005. It must be noted that the WHO’s functions on sharing of information are also governed by Article 11 and there are very limited actions which WHO can pursue itself during events that are not PHEIC.

Furthermore, IHR 2005 authorizes the WHO DG to take actions in the advent of a PHEIC. The EB is not actually bestowed with such specific authorizations. For example, Article 15 of IHR 2005 authorises the DG to make temporary recommendations during a PHEIC to effectively respond to the PHEIC. The word “Executive Board” is mentioned only once in IHR 2005, and that too, only to receive the reports from the IHR review committee through the DG under Article 52(3). The DG is also not required to call an extraordinary EB meeting or a sub-committee meeting of the EB under the IHR 2005.

For all these reasons, the functions of the EB under Article 28(i) can only be delivered by the EB in a manner not prejudicial to the processes under IHR 2005. On the other hand, Paragraph 5 of the proposed ToR and the draft decision is an attempt by the EB to acquire authority in an area in which they have no mandate provided either by the Health Assembly or by the legal instruments of WHO, including its Constitution. The proposed paragraph 5(b) of the ToR of SCHEPPR, in particular, bypasses the limitations laid down by IHR 2005 and allows the standing committee to provide guidance and to make recommendations to the EB even when cases are outside the scope of IHR 2005.

Paragraph 8 of the ToR for the proposed SCHEPPR, further reads thus:

“In the event a PHEIC is determined pursuant to the International Health Regulations (2005), the Director-General shall convene an extraordinary meeting of the Standing Committee as soon as reasonably practicable, and ideally within 24 hours following the determination of the PHEIC”

The above quoted paragraph requires the DG to conduct an extraordinary meeting of the SCHEPPR as soon as a PHEIC is determined under IHR 2005, and if possible, within 24 hours of such determination. It must be noted that there is no requirement for the DG to hold an extraordinary or special session of the Executive Board under IHR 2005 in response to a PHEIC. Therefore, such a mandate can only be effective after the amendment of IHR 2005. EB cannot suo motto acquire powers in the subject matter which are already decided by the WHA.

Further Paragraph 8 of ToR means in effect, the work and the advice of the SCHEPPR will have influence on the DG, even before WHO EB deliberates upon such advice. For example, a PHEIC is determined in the month of February, a SCHEPPR meeting will be organized in the month of February itself, and the EB will be meeting only in month of May, if an extraordinary meeting of EB is not called for. This will result in the DG looking to the SCHEPPR for all practical and immediate purposes until the EB is constituted. This is inconsistent with paragraph 5(a) of ToR which says the SCHEPPR may provide advice to DG “through the EB”.

This means these are serious interferences with the DG’s powers and these changes can only be made by suitable amendment of IHR 2005 by the Health Assembly. In a way, the proposed SCHEPPR is expanding the WHO’s role and authority over the public health events beyond the scope of IHR 2005, to which Member States of Health Assembly have not given their consent.

It must be noted that under Article 38 of the WHO Constitution the EB has powers to establish committees on its own initiative (as in this case of SCHEPPR) but they must be desirable to serve any purpose “within the competence of the Organization.”

When the Health Assembly has exercised its authority and established a mechanism to deal with a subject, that settles the boundaries of the competence of the organisation. The EB, therefore, cannot at its own initiative expand the scope of the competence or alter the method of exercise of the authority, which was decided by the Health Assembly. Unfortunately, the proposed ToR for SCHEPPR is doing exactly this. It proposes to the EB to appropriate or usurp powers and role in health emergency governance, which is a matter in which the Health Assembly has already developed methods for exercising the power and authority of the WHO.

Imbalanced Composition of the SCHEPPR

Paragraph 1 of the ToR explains the composition of the proposed SCHEPPR, and it reads as follows:

“The Standing Committee on Health Emergency Prevention, Preparedness and Response (“the Standing Committee”) shall be composed of 14 members, two from each region, selected from among Executive Board members, as well as the Chair and a Vice-Chair of the Board, ex officio, in line with the principles set out in Rule 18 of the Rules of Procedure of the Executive Board, reflecting a balanced representation of developed and developing countries. Members of the Standing Committee shall serve for two years.”

To have a balanced geographical representation, and between developed and developing countries, the composition is better suited at 12, i.e. two from each of the WHO region. Inclusion of Chair and Vice Chair of the EB as ex-officio members not only creates an imbalance in the composition but also provides a potential added advantage to the developed countries.

As far as the current system WHO EB representation is concerned, the US has almost a permanent representation on the Board. Furthermore, the EU has a disproportionate representation too. This may result in SCHEPPR tilting towards the interests of developed countries.

Although meetings of SCHEPPR is open to Member States according to Paragraph 11 of the ToR, it is not clear on the extent of their participation. Paragraph 4 only states “Member States in whose territory an event arises shall be invited to present their views to the Standing Committee.” Nevertheless, there is no mandate for the SCHEPPR to take into account the views of such affected Member States. Paragraph 6 only says “In performing its functions, the Standing Committee shall take into account the work of other relevant WHO instruments and bodies, as appropriate.”

Further it must be noted that while the SCHEPPR is mandated to be respectful of the scientific evidence provided by the IHR Emergency Committee in its actions, there is no corresponding requirement in the ToR to take into account “issues of equity” in the implementation of recommendations of the Emergency Committee or of the DG.

Participation of Observers and Experts in the Committee

According to Paragraph 3 of the ToR, the Chair and the Vice-Chair of the proposed SCHEPPR, in consultation with the DG, “may invite observers” to “attend a meeting of the Standing Committee without the right to vote” if they consider that this would enhance the work of the Standing Committee on a specific item or items on the agenda of the meeting.

Further, according to the same paragraph, the Chair and the Vice-Chair, in consultation with the DG, “may invite experts” to attend a meeting of the Standing Committee “to provide advice”, as appropriate.

It must be noted that the word “observers” is further explained using a footnote, according to which not all organisations in official relationship with WHO are included. The foot note reads as follows:

“For the purposes of attending and addressing the Standing Committee reference to “observers” is understood as referring to the Holy See; Palestine; Gavi, the Vaccine Alliance; the Order of Malta; the International Committee of the Red Cross; the International Federation of Red Cross and Red Crescent Societies; the Inter-Parliamentary Union; the Global Fund to Fight AIDS; Tuberculosis and Malaria; the United Nations and other intergovernmental organizations with which WHO has established effective relations under Article 70 of the Constitution; the European Union; and any other body so authorized for these purposes by the Executive Board.”

Accordingly, though CSOs and other non-State actors are excluded from the meeting of the SCHEPPR, representatives from multi-stakeholder entities like the Gavi, the Vaccine Alliance and Global Fund may be invited to attend the meeting. Further the term “experts” is not without any further qualifications. This approach will promote multi-stakeholderism in health emergency governance and compromise the leading and central role of WHO in health emergency preparedness and response.

DG’s white paper seeks to legitimise the SCHEPPR Proposal along with GHEC and UHPR

On 4 May, the WHO DG had issued a white paper for consultation titled “Strengthening the Global Architecture for Health Emergency Preparedness, Response and Resilience”, with an objective to “support and contribute to decision-making in the various fora within and beyond WHO that will determine the future global architecture of HEPR.”

The DG’s first proposal on governance is to have a Global Health Emergency Council (GHEC) which will work in complement with the proposed SCHEPPR. The DG went on to propose that creation of GHEC could “be linked with the creation of a Standing Committee on Health Emergencies as a sub-committee of the Executive Board. In considering this proposal, Member States may wish to consider establishing this alternatively as a committee of the World Health Assembly to:

● Review the work of WHO under GPW-13 Pillar 2: One billion more people better protected from health emergencies

● Act as a conference of State Parties to the International Health Regulations

● Act as the peer review mechanism for the Universal Health and Preparedness Review (UHPR)”

It must be noted that both GHEC and the Standing Committee, either of the EB or Health Assembly, especially with a limited membership, cannot be a legitimate body to act as a conference of State Parties to IHR 2005, or to act as a peer review mechanism for the UHPR. This way, a small number of States, especially developed countries can exercise their influence on or pressure other State Parties to IHR 2005, especially developing countries.+

- Third World Network