All Eyes on Geneva

The 77th World Health Assembly (WHA) started on 27th May until 1st June in Geneva (Switzerland) at the headquarters of the World Health Organization (WHO). All eyes are watching what will be happening this week regarding the future of the two pandemic draft texts, the draft amendments to the International Health Regulations (IHR), and the draft Pandemic Agreement. Related reports will be considered on Tuesday afternoon (Items 13.4 and 13.3).

The negotiations of these texts are probably the most closely watched ever intergovernmental processes. They also mark a clear division of the points of view of the “elite” on one side and the people on the other side. Health bureaucrats, politicians in power, and the mainstream media keep repeating messages on how the world urgently needs to be better prepared for future harmful and more devastating pandemics.

The people notably expressed themselves through this open letter endorsed by more than 15,000 signatures, demanding accountability and rejecting authoritarian, large-scale, one-size-fits-all responses known during the catastrophic Covid response. They just emerged from that deeply hurt, impoverished, and unfairly disadvantaged; while the majority of Covid decision-makers continue to be in charge.

On the first day of the 77th WHA, it was announced that the Intergovernmental Negotiating Body (INB) did not reach a consensus. Therefore, the final draft will likely not be voted on. The decision to launch the negotiation for a pandemic agreement was reached by consensus and announced by the WHO that it would be conducted under Article 19 of WHO’s Constitution: 

Article 19 (WHO’s Constitution)

The Health Assembly shall have authority to adopt conventions or agreements with respect to any matter within the competence of the Organization. A two-thirds vote of the Health Assembly shall be required for the adoption of such conventions or agreements, which shall come into force for each Member when accepted by it in accordance with its constitutional processes.

A two-thirds majority of the WHO’s 194 Member States present and voting (one Member one vote, abstaining votes not counted – Rule 69) is required to pass such a text, according to the Rules of procedure of the WHA (Rule 70).

Rule 70 (Rules of procedure of WHA)

Decisions by the Health Assembly on important questions shall be made by a two thirds majority of the Members present and voting. These questions shall include: the adoption of conventions or agreements; (…)

In diplomatic terms, submitting a text that was not agreed to by the previous consensus for a two-thirds majority vote would be suicidal and show disdain to peer countries who have expressed their inflexibilities on certain issues. This situation at best invites the WHA to renew the INB’s mandate to continue where it was left, or simply to abandon the process. 

In contrast, however, the WGIHR (Working Group on Amendments to the International Health Regulations) seems to push for a vote at the WHA. The report indicated that, in its Bureau’s view, the WGIHR was “close to agreeing a consensus package of amendments to the Regulations” and that there was “a strong willingness to conclude the process successfully.” 

This might well lead to a vote on agreed draft amendments. In this case, the voting procedure only requires a simple majority of 196 States parties (194 Member States plus Liechtenstein and the Holy See) to pass, as the IHR(2005) was approved under Article 21 of the WHO’s Constitution which doesn’t require a two-thirds majority vote according to Rule 71 of WHA’s Rules of procedure. 

It is nevertheless unfortunate that legally binding texts negotiated under Article 21 don’t require a two-thirds majority vote; however, the change will only come from an amendment of the WHO’s Constitution, which will not happen today.

Article 21(WHO’s Constitution)

The Health Assembly shall have authority to adopt regulations concerning:

• (a) sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease; 
• (b) nomenclatures with respect to diseases, causes of death and public health practices; 
• (c) standards with respect to diagnostic procedures for international use; 
• (d) standards with respect to the safety, purity and potency of biological, pharmaceutical and similar products moving in international commerce;
• (e) advertising and labelling of biological, pharmaceutical and similar products moving in international commerce.

Rule 71 (Rules of procedure of WHA)

Except as stipulated otherwise in these Rules, decisions on other questions, including the determination of additional categories of questions to be decided by a two-thirds majority, shall be made by a majority of the Members present and voting. 

A simple majority vote is easy to attain. Two years ago, small but consequential amendments to the IHR(2005) that reduced the rejection period from 18 months to 10 months, were passed without a formal vote at the 75th WHA as the consensus had been reached. However, if submitted for a vote this week, new draft amendments that did not get consensus should be left out.

After more than two years of intense negotiations paid for by tax-paid money, it is plausible that those in power will ensure that some draft amendments pass, for the sake of saving the WHO’s remaining reputation and some people’s faces and egos, even though that vote would be illegal since the WGIHR and the WHO did not present the package of draft amendments at least four months as required by Article 55(2) of the 2005 IHR.

We may well be at the beginning of a long battle and in unfair positions. So far however, we have won by being together and uniting our voices, to reclaim and preserve our inherent human rights and fundamental freedoms.