WHO Shows its Contempt for the International Rule of Law

This week, the Working Group on the Amendments to the International Health Regulations (WGIHR) will resume its eight round of negotiations on May 16-17th, scheduled only 10 days ahead of the 77th World Health Assembly (WHA) on May 27th, where it is planned to vote on the whole package of draft amendments. Concerns have been raised globally by academics, parliamentarians and civil society that the World Health Organisation (WHO) and the WGIHR do not respect their own procedural requirements of Article 55(2) IHR (2005) that prescribes a four-month review period prior to a vote.

Article 55 Amendments

1. Amendments to these Regulations may be proposed by any State Party or by the Director-General. Such proposals for amendments shall be submitted to the Health Assembly for its consideration.

2. 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 strange situation may be unfathomable for many. Negotiating delegations and country representations are surely composed of prominent diplomats and lawyers. However, when the matter was discussed at the fifth WGIHR meeting in October 2023, it didn’t cause them much discomfort. During the public discussion, WHO Legal Officer stated that Article 55(2) would not apply to the WGIHR as a sub-division of the WHA, disregarding the fact that Article 55(2) didn’t make such distinction, and that the WGIHR had initially intended to respect it by giving itself the January 2024 deadline. One Co-Chair of the WGIHR said that the negotiations of the previous package of amendments adopted in 2005 had continued until the morning of the 58th WHA session. This is a false precedent. The 1969 version of the IHR, amended in 1973 and 1981, had not contained any such procedural provision on amendment submission. The four-month requirement was only added to the 2005 version approved by the WHA at that meeting, and so became applicable after that time. It is therefore obvious that what happened in 2005 did not violate Article 55(2) since it did not exist.

Regrettably, the WGIHR went along with proposals to continue the work until May 2024, as noted in the meeting report.

5. The Co-Chairs noted that, in reference to decision WHA75(9) (2022), it appeared unlikely that the package of amendments would be ready by January 2024. In that regard, the Working Group agreed to continue its work between January and May 2024. The Director-General will submit to the 77th World Health Assembly the package of amendments agreed to by the Working Group.

We are witnessing some sort of cover-up, either voluntarily or not, of the violation of Article 55(2) by leaders and supra-national bodies that will make laws for the rest of the world. Governments subsequently did not raise eyebrows at the WHO’s recent unfounded claims that it had fulfilled the requirements of Article 55(2) by circulating a compilation of 308 proposed amendments in November 2022 – those that have been largely modified or deleted through multiple rounds of negotiations. These claims must be rejected since, as previously demonstrated, Article 55(2) requires the final text to be ready four months ahead of the WHA vote.

The whole IHR amendment process has since become a theatre. The negotiations on a draft pandemic agreement and the IHR draft amendments are probably the most closely watched intergovernmental processes ever. Worried by a future dictated by unelected health bureaucrats to restrain private and business activities without oversight and accountability, the public have made noise and reported and informed their elected representatives about their dismay. For example, this open letter has garnered more than 14,000 online signatures from concerned citizens around the world. Scrapping the four-month period will not only prevent governments from properly reviewing the text before signing up, but also means the public will have less or no time at all to manifest their concerns and opposition.

It is truly shameful that WHO and the WGIHR agreed to disregard Article 55(2) when this could have been an opportunity to demonstrate their seriousness. Internal egos and external pressures probably drive them to be seen as tireless pandemic fighters, despite the catastrophic COVID-19 response. Regardless, the whole world can now see a mockery by intergovernmental bodies ignoring their own rules. What is left of international rule of law?

Have governments realised that they have been misled by the repetitive messages from the G20, WHO and World Bank that there would be more harmful pandemics to come and that the world urgently needs new pandemic agreements? If they return to their senses, there may still be time for them to use Article 56(5) IHR to raise disagreement with the WHO’s interpretation of Article 55(2) at the coming WHA, demanding a deferral of the vote until legal requirements are fulfilled.

Article 56 Settlement of disputes

5. In the event of a dispute between WHO and one or more States Parties concerning the interpretation or application of these Regulations, the matter shall be submitted to the Health Assembly.

If they fail, their only appropriate option will be to massively vote against both pandemic texts at the 77th WHA.

Will there still be hope for the rule of law to apply in international forums?

Dr. Thi Thuy Van Dinh (LLM, PhD) worked on international law in the United Nations Office on Drugs and Crime and the Office of the High Commissioner for Human Rights. Subsequently, she managed multilateral organisation partnerships for Intellectual Ventures Global Good Fund and led environmental health technology development efforts for low-resource settings.