Warning and criticism from legal experts

“International Pandemic Treaty” and “International Health Regulations”

by Thomas Oysmüller,* Austria

(23 May 2023) (Edit.) From 21–30 May 2023, the 76th Annual Session of the World Health Assembly – the supreme decision-making body of the WHO – will take place in Geneva. Planned reforms offer much explosive material and endanger the sovereignty of the 194 member countries. The following article describes the current situation based on the results of the previous Geneva negotiations of February 2023.

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Currently, the WHO is working on two far-reaching reforms: the “International Pandemic Treaty” and the “International Health Regulations”. Silvia Behrendt and Amrei Müller, two legal experts, have presented a detailed analysis.

In February 2023, negotiations on the International Health Regulations (IHR) continued at the Geneva headquarters of the World Health Organisation (WHO). Recently, however, clear dissent emerged even within the WHO: the review committee had presented considerable objections to the planned changes, which would mean a massive expansion of power for the WHO. In addition, a new “pandemic treaty” is being negotiated, for which they will meet again at the end of May 2023.

In the shadow of public attention

Silvia Behrendt, a lawyer from Salzburg and former legal advisor to the WHO IHR Secretariat, published an Analysis of the WHO Reform¹ on Monday [27 February] together with the lawyer Amrei Müller. Behrendt is an expert in this field, as she also has a doctorate on the IHR (University of St. Gallen/Georgetown University Law Center, Washington). The two legal experts criticise that so far there has been

“little public or jurisprudential discussion of these sweeping changes (and the parallel processes within WHO to negotiate a new treaty on pandemic preparedness and response).“

In fact, the negotiations are more or less ignored by the leading media, reported mainly by so-called “alternative media” – TKP has closely followed the WHO reform.²

Behrendt and Müller express surprise at this because they certainly agree with the judgement of a few critics. The negotiations receive hardly any public attention,

“despite the fact that the outcomes of these processes have the potential to affect the livelihoods, lives, health and human rights of people around the world, in part because the proposed changes, if adopted, give WHO, and in particular its Director-General (DG), unique ‘emergency’ powers, thereby enshrining in international health law the safety-focused approaches to infectious disease outbreak management embodied in the so-called Global Health Security (GHS) doctrine which has dominated the WHO-led global response to Covid-19.”

In the international law blog “OpinioJuris”,³ the two therefore wrote a “human rights-based commentary on selected proposed amendments, with a focus on amendments aimed at expanding WHO’s emergency and bio surveillance powers.” Other legal points are also discussed in depth in the analysis.

To the lawyers, both reforms – the pandemic treaty and the amendments to the IHR – seem “rushed”. In May 2024, both reforms are to be passed – at least that is the plan.

It takes a simple majority to pass the IHR amendments. Then “the IHR amendments will enter into force for all states within 12 months, unless a state proactively submits rejections or reservations within a 10-month period.” The pandemic treaty instead needs a 2/3 majority and national ratification is based on national law.

WHO as global legislator

In any case, lawyers are extremely critical of the pace of reform:

“Negotiating a new multilateral treaty in less than three years is highly unusual. States also had only four months to submit amendments to the IHR, and the experts who drafted the review report (pp. 11, 15) criticised the short time frame within which the report had to be produced, thereby limiting their mandate.”

But that was not all:

“At the same time, the intended relation between the two instruments [pandemic treaty and IHR] remains unclear. In their current form, there is overlap in content in almost all regulated areas, and it is unclear why WHO and its member states are devoting resources to negotiating two international instruments with overlapping scope and content.”

Behrendt and Müller then provide a precise and in-depth analysis of the amendments to the IHR that are currently on the table. Some important points summarised from their perspective:

– The proposals aim to significantly expand the situations in which the DG can declare a public health emergency, which would have numerous legal and practical consequences.

– The DG could be given authority to declare a “medium health alert” when a public health event does not meet the criteria of a health crisis (a so-called “public health emergencies of international concern”, PHEIC) but “requires increased international awareness and preparedness measures”.

What is missing here is a clear definition of what such a health alert would be. There is no clear benchmark: “The question of whether such clusters pose a significant risk of international spread and international travel and trade restrictions need not be assessed, and it remains unclear how the ‘severity’ is assessed.”

– The approval, production and use of medicines is to be relaxed in advance of a health crisis.

– The current “non-binding recommendations” of the WHO could become legally binding instructions and the WHO would become a “global legislator” during a health emergency. The WHO could then have “legislative powers that no other UN organ or specialised agency has, with the exception of the UN Security Council.” Many proposed amendments are to be read in this context.

In their analysis, Behrendt and Müller conclude:

“This initial analysis of the proposed amendments may encourage those involved in the negotiation processes at WHO to also consider the proposals in terms of their compatibility with the obligations of states to respect, protect and realise human rights, including ensuring that their membership of international organisations such as WHO does not prevent them from fulfilling these obligations.”

* Thomas Oysmüller, born in 1990, studied philosophy and social sciences, is a freelance journalist and used to work for the German online radio station detektor.fm, for a few years at zackzack.at and for smaller newspapers.

Source: https://tkp.at/2023/02/28/who-reform-warnung-und-kritik-von-rechtsexperten, 28 February 2023
Reprinted with kind permission of the author.

(Translation “Swiss Standpoint”)

1 https://opiniojuris.org/2023/02/27/the-proposed-amendments-to-the-international-health-regulations-an-analysis/

2 https://tkp.at/2023/02/13/diktatorische-who-reform-strauchelt-hauseigenes-pruefkomitee-lehnt-aenderungen-ab/

3 https://opiniojuris.org/2023/02/27/the-proposed-amendments-to-the-international-health-regulations-an-analysis/