Is There Hope for International Rule of Law?

This week, the Working Group on the Amendments to the International Health Regulations (WGIHR) will resume its 8^th round of negotiations on 16-17 May, scheduled only ten days ahead of the 77th World Health Assembly (WHA) on the 27^th of May, where a vote is planned on the whole package of draft amendments. Concerns have been raised globally by academics, parliamentarians, and civil society that the World Health Organization (WHO) and the WGIHR do not respect their own procedural requirements of Article 55(2) IHR (2005,) which prescribes a 4-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 5th WGIHR meeting in October 2023, it didn’t cause them much discomfort. During the public discussion, the WHO’s Legal Officer stated that Article 55(2) would not apply to the WGIHR as a subdivision 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 4-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 Seventy-seventh World Health Assembly the package of amendments agreed to by the Working Group.

We are witnessing some sort of coverup, 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 recent unfounded WHO’s 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, as previously demonstrated, that 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 theater. The negotiations on a draft pandemic agreement and the IHR draft amendments are probably the intergovernmental processes’ most closely watched ever. Worried by a future dictated by unelected health bureaucrats to restrain private and business activities without oversight and accountability, the public has made noise by reporting and informing their elected persons about their dismay. For example, this open letter has garnished more than 14,000 online signatures from concerned citizens around the world. Scrapping the 4-month period will not only prevent governments from properly reviewing the text before signing up, but it also means the public will have less or no time at all to manifest their concerns and opposition. 

It is truly shameful that the 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 dynamic pandemic fighters, despite the catastrophic Covid response. Regardless, the whole world now can see a mockery by intergovernmental bodies ignoring their own rules. What is left of international rule of law? 

Have governments realized that they have been misled by repetitive G20, WHO, and the World Bank’s messages 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) to 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?