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Notice of Reservations to the May 2022 Amendments which shorten the timeline.

Unofficial translation using Google translate

Answers to parliamentary questions from member Pouw-Verweij (BBB) about the “creeping” negotiations on the WHO pandemic treaty and the IHR (2023Z17849, questions submitted on October 19, 2023)

Question 1: Is it correct that the government must object to this before December 1, 2023, proposed amendments to the International Health Regulations (IHR), a binding international regime for contagious diseases and other cross-border threats to public health? Is this also true with regard to proposals regarding the pandemic treaty of the World Health Organization (WHO)?

Answer 1: In accordance with the provisions of Article 59 IHR, first paragraph, Member States have 18 months the time to make a reservation on a decision to amend the IHL or to reject this. The 18 months start from the moment the Director General of the World Health Organization (WHO) in accordance with Article 65, second paragraph of the IHR, has notified a proposed amendment to the Member States of the WHO, after approval by the World Health Assembly (WHA) is accepted. With regard to the WHA’s decision to amend Article 59 of the IHR, as well as the impact thereof in Articles 55, 61, 62 and 63,  the Director-General of WHO has notified Members on 31 May 2022. Members must therefore object before 1 December 2023 or reject the change. The Netherlands informed the WHO on August 16, 2023 that it has a has made a reservation regarding the decision of the WHA, as there was no parliamentary approval. The national approval procedure for the change is currently being prepared. Should your Chamber grant approval to the decision to amend, then our country can, on the basis of Article 63 paragraph 1 of the IHR withdraw the reservation regarding the decision, after which this will also apply to our country and comes into force. With regard to the proposals regarding the pandemic treaty, there is currently: neither necessity nor possibility of rejection. The negotiations about the treaty are still in progress and the final draft treaty will be finalized after conclusion thereof by the WHA – in accordance with the applicable national approval procedure – will be submitted for approval to the Dutch parliament.

Question 2: Can you confirm the proposed changes of the WHO pandemic treaty and the IHR cause a far-reaching infringement of the sovereignty and autonomy of the Netherlands with regard to the approach to a future health crisis, in particular and with regard to its health policy in general?

Answer 2: The proposals for a new pandemic treaty, as well as the amendment proposals submitted to the International Health Regulations (IHR, 2005) and currently under negotiations do not contain elements that result in far-reaching violations of the sovereignty and autonomy of the Netherlands with regard to combating future health crises or regarding health care policy in general. As indicated in the letter to parliament dated February 23, 2023, the negotiations for both legal instruments take place under the principle that nothing is decided, until everything is decided. It is expected that the final proposal for the pandemic treaty and the final proposal for amendment of the IHR, will be submitted to the World Health Assembly (WHA) in May 2024 for adoption by the WHO Members. Based on the contents of the document determined at that time by the WHA pandemic treaty and the decision adopting the proposed amendments to the IHR, our country can decide to become a party to the pandemic treaty and/or to accept or reject proposals for amendments to the IHR. Both instruments will be used at that time in accordance with the applicable rules approval procedure be submitted to Parliament. Adopted motions of the Dutch parliament will be taken into account in the further development of the pandemic instrument.

Question 3 : Can you inform the House this month about the outcome of the negotiations on the IHR amendments and if so, please indicate which amendments are mainly technical in nature and which are substantive ? 

Answer 3 : The negotiations on the proposed amendments of the International Health Regulations (IHR) submitted by WHO Members in September 2022 are still in progress. The expectation is that the total package of amendments will not be known until the World Health Assembly in May 2024. Many of the proposals submitted to the IHR relate to: the preparedness and response towards future international health crises. This is done, among other things, by improving surveillance and monitoring of pathogens, faster information sharing, strengthening national core capacities, improved cooperation and coordination. There are also new elements, such as greater attention for equality and equality between rich and poor countries when it comes to distribute medical countermeasures in times of crisis and for example around strengthening governance, testing and reporting on compliance of the agreements made. The common goal is that the IHR will be in the future more efficient and improve their implementation. As indicated above, there will already be one change to the IHR which was accepted in May 2022; the amendment of Article 59 of the IHR. Because of the amendment to Article 59 and the impact of the change, the legal service of the WHO indicated that changes to Articles 55, 61, 62 and 63 were also necessary. The amendment therefore concerns Articles 55, 59, 61, 62 and 63 of the IHR. On the one hand, these changes concern shortening the decision period for Members from the current 18 to 10 months to either make a reservation against an amendment to IHR or to reject such a proposal. In addition the period for entry into force of amendments to the IHR is reduced from 24 to 12 months.

Question 4: What negotiating position does the Netherlands take with regard to specific parts of the IHR and the WHO pandemic treaty?

Answer 4 : In both processes, the Dutch contribution takes place as much as possible in the EU context and in coordination with the other member states. The European Commission carries out the negotiations on behalf of the EU Member States for both instruments. As clarified in the letter to your parliament of 23 February 2023, the Netherlands has mainly a focus on improving and accelerating on the one hand

international cooperation in the field of monitoring, surveillance and combatting potential international health crises and the spread of

(resistant) infectious diseases and this will also strengthen implementation of national capabilities. Our country also supports the principle that:

a future pandemic will require a more just and equitable distribution of medical countermeasures, especially regarding

developing countries. To be able to follow the pandemic treaty, an adequate reporting and reporting system

compliance mechanism is needed. In particular, our country is in favor of targeted IHR

amendments to strengthen the instrument and its implementation and improve, without fundamentally changing the character and functioning of IHR changed.

Question 5 : If the government raises objections, what are they? If not, can you explain why the government does not see any overriding objections to relinquishing essential powers in relation to dealing with a health crisis? 

Answer 5: The possibility of lodging an objection currently only applies to possible new amendments in accordance with Article 59 of the IHR. For the Pandemic Treaty, it has yet to be determined in more detail according to which parties to the treaty can object to parts of the treaty or future amendments to it. However, neither the amendments to the IHR nor the process that could lead to a treaty on pandemics involve relinquishing essential competences of national Member States in relation to addressing a health crisis. In the future, the Director-General of the WHO will continue to be able to make recommendations for national and international measures in the event of an international health crisis. With the Pandemic Treaty, WHO Members will have access to new tools and improved cooperation mechanisms before and during a health crisis, so that the world is collectively better prepared for future pandemics. These are important goals that are supported by the government.

Question 6: Can you inform the House of Representatives (parliament) about the question of what options there are to instruct the government to object in a timely manner to the transfer of powers relating to the amendment of the WHO Pandemic Treaty and the IHR, which should remain at national level?

Answer 6: Neither the proposals for a treaty on pandemics submitted by WHO Members, nor the proposed amendments to the International Health Regulations (IHR), refer to the transfer of competences that can be better regulated at national level in accordance with the principle of subsidiarity. As far as the negotiation pathways are concerned, a decision of the World Health Organization to establish a treaty on pandemics, or to amend IHR, will be submitted to Parliament in accordance with the appropriate approval procedure, before they can enter into force for our country.

Question 7 : Does the way in which you implement the Van Haga/Smolders motion, in which the government is requested to inform the House of Representatives at least every two years about the progress of the pandemic treaty, do sufficient justice to the possibility for parliament to exert timely influence on proposed fundamental choices for the WHO pandemic treaty and the amendment of the IHR?  

Answer 7 : Since the Van Haga/Smolders motion, the House has been informed about both processes more than every two years, through two letters to the House of Representatives, the answers to parliamentary questions and through oral questions. The Bureau of the Intergovernmental Negotiation Body (INB) within which the pandemic treaty is being negotiated has recently submitted a proposal for a “Negotiation Text”. The first debates on this text are currently taking place. As indicated above, I will inform the House shortly about this new proposal.

Question 8 : In the Pandemic Treaty and after amending the IHR, will the WHO have an ‘absolute and non-questionable’ leadership, absolutely and without being able to argue with it, in a situation where this organization refers to pandemic prevention, preparedness and/or response?

Answer 8: No, that is not the case.

Question 9: What is the position of the Netherlands on granting this self-authorization to the WHO?

Answer 9: There is no question of self-authorization to the WHO.  

Question 10 : Can you explain the concrete details and assessment criteria for the concept of ‘One Health’, which is crucial in the plans for the role of the WHO in pandemic prevention, preparedness and response? 

Answer 10 As described in the Dutch Global Health Strategy, One Health is an integrated,  connecting approach that aims to sustainably balance and optimize the health of humans, animals and ecosystems. As many global health crises are caused by infectious diseases originating from animal reservoirs (zoonosis, such as SARS-CoV2, MERS, Ebola, avian influenza, bubonic plague), it is essential to take into account diseases that can jump from animal reservoirs to humans in both pandemic prevention and infectious disease surveillance.

Question 11 : What can you say about the intention to let the Director-General of the WHO independently determine when there is or could possibly be an ‘Public Health Emergency of International Concern’, i.e. a worrying situation, in which he can more or less force the Members  to take all kinds of restrictive measures such as lockdowns, (camera) surveillance and other severe measures?

Answer 11 : Article 12 of the International Health Regulations (IHR, 2005) allows the Director-General of the WHO to determine whether he considers that there is a Public Health Emergency of International Concern (PHEIC) in the event of a specific health threat. In doing so, the Director-General shall rely on information available to him, including information provided by a relevant WHO Member where a crisis situation occurs, the decision-making instrument in Annex 2 of the IHR, the advice of an “Emergency Committee” of independent experts, scientific insights and an assessment of the risks to public health, international spread of a disease and/or possible disruption of the international human and international health services or international passenger traffic. Pursuant to Articles 15 and 16 of the IHR respectively, the Director-General may, after the proclamation of a PHEIC, make temporary or standing recommendations to national Members regarding measures to be taken in the field of public health, but also with regard to the transport of passengers and goods. These recommendations are not binding. Member States are and will remain independently competent to decide on national protection measures, including possible measures such as lockdowns and (camera) surveillance. 

Question 12:  Is it true that the pandemic treaty in the making and the IHR do not contain a mechanism to question, adjust or stop decisions of the WHO in this regard?

Answer 12: Both the International Health Regulations (IHR) and the future Convention on Pandemics make Member states parties to these instruments. Member states may at any time submit amendments to the IHR to change the current provisions in the IHR regarding the declaration of a PHEIC. Such decisions are taken by the World Health Assembly (WHA), which includes all member states of the WHO. Because the negotiations on the pandemic treaty are still in full swing, the procedures for amending decisions have not yet been determined.

Question 13 : Are you aware of the ruling of the United States Court of Appeals for the Fifth Circuit, a federal appeals court in the US, in which this judge prohibits the Biden administration from restricting social media platforms under government coercion in the wake of the coronavirus policy, when they display information that is not in line with that policy?

Answer 13: Yes.

Question 14 :What does this court ruling have to say for the American situation for the Dutch situation, now that there was also government control in the Netherlands to get social media in line? 

Answer 14: There has been no question of the supposed control from the government in the Netherlands. Moreover, the U.S. judiciary assesses cases submitted to it in accordance with the applicable U.S. laws and regulations, which means that there are no legal implications for the Netherlands.

Question 15 : What do you think of the intention to have the WHO instruct member states when and how information in the media and on social media should be checked and adjusted when it deviates from the views and policies of the WHO? 

Answer 15 : The current proposal of the negotiating text includes an article proposed by Member states agreeing to combat misinformation about pandemics. In general, I think it is wise to combat misinformation. Under the current proposal, it is not the WHO that is concerned, but the Member state that decides when and how to act in this regard.

Question 16 : Do you agree that the national health situation and everything that plays a role in it, including measures to be taken, is so specifically national that the greatest possible restraint should be exercised in granting an international organization such as the WHO any power in this area that goes beyond advising the Member states?

Answer 16: Our health care system is primarily organized nationally. This also applies to a large extent to our public health policy. At the same time, it is clear that public health in the Netherlands cannot function without international  agreements between countries and multilateral organizations on cooperation and coordination. To a large extent, this already applies to our cooperation at EU level. But cooperation is also necessary on a global scale. One example is infectious disease surveillance. Without agreements on sharing information on outbreaks of infectious diseases, a country cannot prepare or respond adequately and in a timely manner to potential cross-border health threats when they arise. International coordination on the availability of medical devices is also desirable in order to be able to respond more quickly and effectively to cross-border health threats and, where possible, to mitigate them. As indicated, on the basis of the current IHR and also after the conclusion of the negotiations on the proposed amendments, the WHO only has the power to make non-binding recommendations for health measures at national level to combat a crisis. The same will apply to provisions in the Pandemic Treaty. 

Question 17: Is it possible to deal ethically or neutrally with a pandemic? If not, do you agree that it is irresponsible to transfer national powers to an international organization such as the WHO, powers that directly affect the area of ethically charged and political choices with potentially far-reaching social, psychosocial and economic implications?

Answer 17 : As mentioned above, it is unfortunately a misunderstanding that there are proposals to transfer our national competences to the WHO to a significant extent. 

Question 18: How do plans of the so-called Global Health Hub Netherlands and the recently signed Global Health Pact fit into the WHO’s plans for a pandemic treaty and the amendment of the IHR? 

Answer 18: The Global Health Hub Netherlands and the associated pact were launched on 28 September 2023. The Global Health Hub is a project of the Cabinet-wide Global Health Strategy. This Dutch Global Health Hub has been set up to promote intersectoral cooperation. The Global Health Hub unites all relevant actors and sectors, such as knowledge institutes and platforms, academics, NGOs, top sectors, innovators and think tanks in the field of different facets of global health. This network offers (global) health actors in the Netherlands the opportunity to join forces and further flesh out this strategy together. The Pandemic Treaty and the amendment of the IHR are negotiations ongoing at the WHO, in which the Global Health Hub is not involved.

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