The WHO's accelerating ambitions create a cliff edge for democracy
Rumours of the demise of the WHO's IHR amendments are premature despite encouraging signs of resistance
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 1 December 2023. We clarify the position here and signal next steps for those of us concerned by the inertia of the majority of our parliamentarians in the face of the WHO’s extraordinary ambitions.
The significance of December
The 1 December deadline concerned a narrow but significant amendment which the World Health Assembly, at the initiative of the USA, had adopted at its meeting in May 2022.
The so-called ‘Article 59 amendment’ shortens the period within which WHO member states are required to give notice to reject any amendment to the IHRs adopted by the World Health Assembly, 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 UK and the US, 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 and which are to be put forward for adoption by the Assembly in May 2024 — that package remains under negotiation and the 1 December 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 formal notices 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 entirely 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 recent Article 59 amendments, to the full package of IHR amendments still under negotiation, or to both; and the extent of official support for those positions is also not yet clear.
It is nevertheless encouraging to see that, while not yet reaching a level of coordinated action to have prevented the Article 59 amendment taking effect, there is a growing momentum now to challenge the WHO’s ambitions to acquire new powers and significant new resources from its member states.
That is momentum on which our UK 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 only recently been appointed) to apply a more critical mind to the Government’s apparent assumption that the UK 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 7 and 8 December. 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 27 May to 1 June 2024.
If that package is then adopted by a majority of member states at the WHA, the amendments will become binding under international law with effect from the end of May 2025 in all WHO member states, other than any which opt out before April 2025 (10 months after adoption, on the basis that the Article 59 amendment has taken effect).
So while recent signs of critical resistance are encouraging, the dam is far from broken, and if the next drafts of the proposals reveal that widely-held concerns remain — as we expect to be the case — there will be a vital three-month window early next year in which to rally parliamentarians and decision-makers to resist the WHO’s accelerating ambitions.
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