There has been some confusion in recent weeks as to the timeline and status of proposed amendments to the WHO’s International Health Regulations, and in particular as to the significance of December 1st 2023. I aim here to clarify the situation and to signal next steps for those of us concerned by the inertia of our parliamentarians in the face of the WHO’s extraordinary ambitions.
A full analysis of the WHO’s original proposals — the only version currently published by the WHO — can be found in this lawyer-prepared briefing note which also addresses concerns stemming from the financial arrangements of the predominantly privately-funded WHO.
The WHO is expected to release new drafts of the legal texts imminently, but as currently drafted the amendments to the IHR and the new Pandemic Preparedness Treaty propose to grant significant new powers of direction and resource allocation to be exercised by the WHO during and in anticipation of international public health emergencies.
The proposals as published would empower the WHO to give binding directions to individual member states and regions, or globally, spanning a broad range of areas including: mandating financial contributions to fund pandemic response activities; overriding and potentially accelerating national safety approval processes for vaccines, gene-based therapies, medical devices and diagnostics; restricting citizens from travelling; and — astonishingly — requiring citizens to quarantine and undergo mandatory testing or even vaccination. The current published draft of the new Treaty includes provisions pursuant to which the WHO could in principle impose significant public spending commitments on member states including the U.K.
To date the IHRs have been structured so as only to grant the WHO the power to issue expressly non-binding recommendations. Unlike the EU legal regime, in which regulations issued at European level can have direct legal effect, binding on citizens and businesses as a domestic national legal matter, the WHO framework would operate slightly differently, albeit with the same intended effect. Specifically, as currently framed, the IHRs would empower the WHO to issue directions which would be binding on member states as a matter of international law, and which would oblige those member states then to implement and enforce the relevant measures at national level.
The significance of this change can barely be overstated, rewiring the relationship between national governments and the WHO and hardwiring into international law a top-down, paternalistic approach to public health. Additional provisions would give the WHO strengthened institutional capacity to globally coordinate and prevent the spread of mis- and dis-information transforming the WHO, effectively, into a a turbo-charged global censorship agency.
With the exception of a small handful of MPs, the majority of U.K. parliamentarians have so far remained oblivious to the threat these proposals signal for U.K. democracy and national autonomy. A reasonable and welcome intervention by the Chair of the Health and Social Care Committee, Steve Brine MP, over the summer was met by an astonishingly evasive response from Health Minister Steve Barclay MP. You can see that exchange, and UsForThem’s letter explaining our continuing concerns, here.
Making this yet more troubling is the fact that suggestions that the proposals stand to make the WHO’s pandemic pronouncements legally binding under international law risk being labelled ‘disinformation’. See for example this ‘fact check’ from the Associated Press, which misleading focuses on the Pandemic Treaty to establish its ‘fact check’ conclusion, while ignoring entirely the proposals to grant powers to issue legally-binding recommendations clearly set out in the main package of original IHR amendments. The counter-suggestion used in that and other articles that the WHO could not in any event enforce against a member state which breached an international law obligation under the new Treaty or the IHRs rings hollow too, as national governments tend to avoid routinely breaching international legal obligations because doing so has serious collateral implications for, e.g., the cost of public borrowing. These types of ‘fact check’ are, in my opinion as a lawyer, misleading and in most cases manifestly incorrect.
Whilst it is the case that any proposals still in draft form might change, the legal effect of the drafts as published is to give the WHO new explicitly binding powers. Among the amendments proposed for the IHRs is a change to the definition of the categories of ‘recommendation’ which the WHO is empowered to issue, explicitly removing the words “non-binding” in each case, and supplementing this with a commitment that WHO member states “undertake to follow” those directions. Although provisions in the pre-amble to the draft Pandemic Preparedness Treaty purport to recognise and assert the primacy of national sovereignty, those preamble statements conflict with the substantive provisions of both draft texts insofar as they envisage the WHO being able to issue directions which member states would — as a matter of international law — be committed to implement.
The December deadline
The December 1st deadline concerned a narrow but significant amendment which the World Health Assembly, at the initiative of the USA, adopted at its meeting in May 2022.
The so-called ‘Article 59 amendment’ shortens the period in which WHO member states are required to give notice that they plan to reject any amendment to the IHRs, from 18 months to 10 months. Though pockets of resistance to the WHO’s ambitions appear now to be growing, the Article 59 amendment looks to have been widely accepted by WHO member states and should therefore become legally effective for most, if not all, including the U.K. and the U.S., in time for the next World Health Assembly in May 2024.
As regards the main package of substantive amendments to the IHRs, which are being negotiated alongside the proposal for a new Pandemic Preparedness Treaty among WHO member states, that package remains under negotiation and the December 1st deadline has no immediate relevance for the negotiation process.
Pockets of resistance
In the weeks leading up to the December deadline, news broke across social media platforms of a series of countries apparently rejecting the WHO’s proposals. In some cases this has involved groups of parliamentarians or other representatives writing to their respective government officials; in others it appears to have involved Government ministers and leaders themselves expressing doubts about the WHO’s ambitions.
What is not yet clear is which if any WHO member state governments in fact submitted notices of a decision to reject and opt out of the Article 59 amendment.
In Estonia, for example, it has been widely publicised that 11 MPs wrote directly to the WHO to express their rejection of not only the Article 59 amendment but also the broader package of IHR amendments and the parallel Pandemic Preparedness Treaty. The legal status of that letter in Estonia is presently unclear, however, because (as reported by journalist Simon Ameba) though the letter purported to exercise Estonia’s right to opt out, it was apparently signed by just 11 of the 101 members of the Estonian parliament.
In Slovakia, the recently re-elected Prime Minister Robert Fico is reported as having said during his party’s conference that his Government will not sign up to the Pandemic Preparedness Treaty, but again whether this reflects the Slovak Government’s official position, and whether Slovakia has expressed its position to the WHO in any formal sense, is not yet clear.
Perhaps most significantly, New Zealand appears to have lodged an urgent reservation with the WHO, in the form of a letter stating that the country will not yet support amendments to the International Health Regulations; effectively a stalling process to allow the incoming Government more time to consider whether the amendments are consistent with a ‘national interest test’ required by New Zealand law. What this might mean in practice is hard to discern: Prime Minister Christopher Luxon on one occasion seemed to play down its significance saying “as a new Government, [we] want to be able to take a pause and make sure that it meets a national interest test”, adding that this would not necessarily result in rejection but that “we’re just saying there’s a decision that needs to be made”. However, according to the same report the New Zealand Health and Foreign Affairs and Trade Ministry has formally notified the WHO of New Zealand’s reservations about the amendments “in their entirety”.
Reports of resistance among parliamentarians in the Philippines, Australia and South Africa are also emerging, although again the initial reporting has not clarified whether this refers to the Article 59 amendments, to the full package of IHR amendments or to both; and the extent of official support for those positions is not yet certain.
It is encouraging to see that, while seemingly not yet reaching a level of coordinated action to have prevented the Article 59 amendment taking effect, there is a growing momentum now to question and challenge the WHO’s ambitions to acquire new powers and significant new resources from its member states.
That is momentum on which U.K. parliamentarians could certainly now capitalise, with support from the public, to persuade the relevant Government Ministers at the FCDO and the DSHC (a number of whom have recently been appointed) to apply a more critical mind to the Government’s apparent assumption that the U.K. wishes to remain a core advocate for the WHO and to support its coronation as a global public health authority.
The main package of amendments to the IHRs
At its last meeting in Geneva, the IHR Working Group acknowledged that it will not have reached a point of agreement in time for a final set of amendment proposals to be circulated to member states before the end of this year, as had originally been planned.
That caused a minor legal headache for the WHO because Article 55 of the IHR requires that “The text of any proposed amendment shall be communicated to all States Parties by the Director-General at least four months before the Health Assembly at which it is proposed for consideration”. This had been thought to mean that a final draft of the IHR amendments needed to be circulated by mid January at the latest. Fortunately, for the WHO at least, its head lawyer was able to conclude on a technical reading that this did not matter, as long as the WHO had circulated to member states before January 2024 both the original set of proposed amendments and a more recent interim version of those amendments.
So the current plan is that an interim draft version of the IHR will be circulated to all member states (and — we must hope and expect — published for us all to see) at or around the time of the next IHR Working Group meeting, which is scheduled to take place in Geneva later this week on December 7th and 8th. Negotiations will then continue between December and April 2024, in anticipation of the final draft text of the amendments becoming available probably only during May, leaving most likely just a few weeks for member states to decide whether to vote in favour of the package at the 2024 World Health Assembly scheduled to run from May 27th to June 1st 2024.
If that package is then adopted by a simple majority of member states at the WHA, the amendments will become binding under international law with effect from May 2025 in all member state countries that do not opt out of those amendments by March 2025 (10 months after adoption, on the basis that the Article 59 amendment has taken effect).
While these are encouraging signs, the dam is far from breaking and if the next drafts of the proposals reveal that widely-held concerns persist, as we expect to be the case, there will be a critical three month window early next year in which to rally parliamentarians and decision-makers in the U.K.
Ben Kingsley coordinates the strategic legal aspects of UsForThem’s campaigns, having completed a career as a partner in the law firm Slaughter and May advising on regulatory, financial crime and commercial law. His new book, coauthored with Molly Kingsley and Arabella Skinner, The Accountability Deficit: How ministers and officials evaded accountability, misled the public and violated democracy during the pandemic is available now at Amazon and other book stores. This article was first published on the UsForThem Substack page. Subscribe here.