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The World Health Organization (WHO) recently put up a defense of its violation of its own legal requirements by submitting draft amendments to the International Health Regulations (IHR) for a vote at the 77th World Health Assembly (WHA) this May.

This was in response to various concerns raised in parliaments and civil society. This matters because (i) in ignoring legal requirements and rushing a vote the WHO is putting global health and economies at risk, and (ii) the WHO is acting like a spoiled child, which suggests the organization is no longer fit for its mandate.

A Rush Without Reason

For more than eighteen months, negotiations have been underway at the WHO on two documents intended to change the way pandemics and threats of pandemics are managed, centralizing coordination and decision-making with the WHO. As of early May, the amendments to the 2005 International Health Regulations (IHR) and a new Pandemic Agreement, are still being negotiated at the Working Group on Amendments to the International Health Regulations (WGIHR) and the Intergovernmental Negotiating Body (INB) respectively. Despite the WHO being shown to have grossly misrepresented their evidence on the frequency of natural outbreaks and pandemic risk, which have been declining over the past one to two decades, these are proceeding with unusual urgency. 

With the Covid-19 outbreak shown to probably result from unnatural means (gain-of-function research) and a WHO review of the effectiveness of the novel and highly disruptive response not due until 2030, national negotiating teams and the WHO are nonetheless continuing with a paradigm of mass surveillance followed by mass vaccination with vaccines that will not undergo normal clinical trials. 

This is clearly inappropriate from a public health standpoint but, perhaps in light of this, is all the stranger in that the WHO is breaking its own legal requirements to go forward with a vote on these in just three weeks time. The WHO still plans for its Member States to vote on them in the provisional agenda of the 77th WHA without reference documents. 

This planned vote does not respect Article 55(2) of the current IHR which provides:

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.

Concerns regarding this strange situation have been raised by politicians, academics, grassroots organizations, and civil society. A recent open letter calling upon the WHO and its Member States to halt the planned adoption of both texts has garnished more than 13,000 endorsements of citizens from multiple countries. One European parliament has voted to postpone the votes at WHA and respect the legal process (it is, after all, simply sensible to properly review a legally binding and complex agreement before signing). All 49 Republican Senators signed a strong letter on the 1st of May calling upon President Biden to withdraw American support to both the draft texts and pointing at the violation of article 55(2). 

Perhaps in response to the various concerns raised, the IHR Secretariat recently updated its Q&A online section, with a quite imaginative claim that the WHO has fulfilled the requirements of article 55(2), as below: 

In fulfilling the Article 55(2) requirement, the WHO Secretariat circulated all proposals for amendments to the IHR on 16 November 2022, some 17 months before the Seventy-seventh World Health Assembly, which begins on 27 May 2024, when they are proposed for consideration.

In addition, the IHR Secretariat even claimed that it had exceeded the technical requirements under Art. 55(2) IHR by communicating “all proposed changes to these [308] amendments developed by the WGIHR drafting group, to all 196 States Parties, after each WGIHR meeting.”

However, a factual account of the relevant WHO documents easily demonstrates that these claims are flawed. The amendments presented over 17 months ago, by and large, no longer exist. The amendments reached after each round of negotiations have also been largely modified, replaced, or deleted. The current amendments are the result of months of revision, bargaining, and rewording to change the meanings at the behest of State Parties.

To claim that wording no longer exists and will not be voted on fulfills the requirements for Member States to review a text before a vote, ignoring the text they will actually be held to, and calls into question the seriousness of the entire WGIHR process. It is particularly unfortunate and deeply concerning to see a global body like the WHO acting with such disrespect for the people it is supposed to serve, and perhaps says much about the problems that currently beset global public health.

WHO Circulated the Targeted Amendments Under its Obligation from Decision WHA 75(9) and Decision A/WGIHR/1/5

In reality, when the WHO circulated the package of 308 targeted amendments on 16 November 2022, the organization simply fulfilled its obligation under a Decision of the 75th WHA – Decision WHA 75(9) para 2 (c) – adopted in May 2022.

The Seventy-fifth World Health Assembly (…) decided (…):

(2)  with respect to targeted amendments to the International Health Regulations (2005):

(c) to invite proposed amendments to be submitted by 30 September 2022, with all such proposed amendments being communicated by the Director-General to all States Parties without delay;

This Decision invited States to submit their proposals for amendments prior to 30 September 2022. The compilation of the notes verbales (designating an official communication between an international organization and a State’s Permanent Mission) was published online in both original languages and English, entitled “Proposed Amendments to the International Health Regulations (2005) submitted in accordance with decision WHA75(9) (2022)”. Their cover pages showed that these documents were published pursuant to a decision of the WGIHR at its first meeting on 14-15 November 2022, as reported in document A/WGIHR/1/5:

3. (a) The Secretariat shall publish the proposed amendments online, as submitted by Member States unless otherwise informed by the submitting Member States; further, the Secretariat shall also publish online an article-by-article compilation of the proposed amendments, as authorized by the submitting Member States, in the six official languages, without attribution of the proposals to the Member States proposing them.

The WGIHR went further than the 65th WHA to detail the mode of communication of targeted amendments – online and in a compilation, in all six official languages. Hence, the online publication of the compilation of the amendments by the WHO one day later was the result of these Decisions, and not of the application of article 55(2) IHR. 

The Initial Intent of Respecting Article 55(2) IHR was Strangely Discarded

In addition, several key documents indicated that at the very beginning of this process, all WHO, WGIHR, and the IHR Review Committee (an expert panel set up in accordance with article 47 IHR to review the outcome of the WGIHR) were mindful of the requirements of article 55(2) and had intended to respect it.

Back in October 2022, at its first meeting on 14-15 October 2022, the WGIHR adopted its method of work (document A/WGIHR/1/4) which set its own reporting and timeline: 

Pursuant to decision WHA75(9), the Working Group will propose a package of targeted amendments for consideration by the Seventy-seventh World Health Assembly, in accordance with Article 55 of the International Health Regulations (2005).

(para. 6)

Separately, the Terms of Reference of the IHR Review Committee also clearly set the expectation for the WGIHR to reach the final package of amendments by January 2024, which would have given States four months to review them prior to the 77th WHA in May 2024.

15 December 2023: The Review Committee remains “dormant” during 2023, and it will be reconvened in December 2023, to review the package of amendments agreed by the WGIHR, with a view to submit its final technical recommendations to the DG before mid-January 2024.

January 2024: WGIHR submits their final package of proposed amendments to the DG who will communicate them to all States Parties in accordance with Article 55.2, for the consideration of the Seventy-seventh World Health Assembly.

The Terms of Reference thus undoubtedly refer to the final package of the proposed amendments; that is, the proposed amendments to the IHR in their final wording in which they should be considered by the WHA. 

These documents show that the “package of amendments” ready for review and vote should be the final text of any proposed amendments that the WGIHR was mandated to reach. As the guardian organization tasked to advise and support both the WGIHR and the IHR Review Committee, the WHO has the duty to advise these to respect the rules, procedures, timelines, and mandates. However, the negotiations within the WGIHR still continue less than a month before the vote, with the latest draft released on 16 April. If the WHO still intends to advise the WHA to breach legal requirements at the end of May, a breach of trust of both Member States and the public at large will be unavoidable. The WHO will be making a mockery of its internal processes.

Appeal to WHO and 196 States Parties to the IHR to Respect Article 55(2)

There is currently no increasing frequency of natural outbreaks or pandemics and the burden of natural outbreaks, relative to other disease burdens, is tiny. Many of the interventions being proposed in the pandemic documents – lockdowns, mass vaccination, and widespread “whole-of-government, whole-of-society” economic disruption and human rights removal in response to low-burden disease or mere threats – have not been demonstrated to be beneficial. Obvious conflicts of interest that afflict the agreements, with corporate sponsors of the WHO being among those who will profit from the proposed approach, have not been dealt with. There is a clear risk that resource diversion will degrade overall health.

Nemo est supra leges” – No one is above the law. Our societies are founded on this basis. The respect of the law by leaders and decision-makers must be seen. False claims made in bad faith damage public trust. 

A sane decision in this case would be to set a new deadline, like the end of May, for a new 4-month review period. Nothing prevents the WHO from convening an extraordinary session of the WHA later this year to vote on such a final package if reached. What might explain this rush and this contempt to violate article 55(2) IHR? Why does the WHO consider it appropriate that its Member States should not have a legally required time to review documents meant to bind them? 

republished with permission

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