The Fifth meeting of the Working Group on Amendments to the International Health Regulations (2005) (IHR) took place in Geneva between 2nd and 6th October 2023.
This was for the purpose of (1) agreeing a targeted set of amendments to the IHR; and (2) re-orienting the IHR towards equity.
As per the previous meetings of the WGIHR, several of the sessions were “open” and publicly webcast whilst the actual substantive drafting sessions were held in “closed” session i.e., in secret.
The WGIHR5 was co-chaired by:
Dr Abdullah Asiri of Saudi Arabia and Dr Ashley Bloomfield of New Zealand pictured below.
In the opening session, on Monday 2nd October, there was the expected update regarding the Articles of the IHR considered during the WGIHR3, WGIHR4 and the inter-sessional informal sessions. What was not expected, however, was the following announcement by Co-Chair Abdullah Asiri:
“Dear colleagues, we have been operating with the understanding that the package of the proposed amendments resulting from the work of the group would be finalised by January 2024 to meet the four month deadline stated in Article 55. However, we believe that we all share the same sentiment that, realistically, the whole package of amendments will probably not be ready by January 2024. We would like to ask the Secretariat whether, procedurally, we could continue working until the 76th [he meant to say 77th] World Health Assembly in May 2024. I’d like to invite the Secretariat to provide some guidance on this matter.”
What happened next?
Essentially, the Co-Chair asked the Secretariat legal counsel to advise whether it is OK for the WGIHR to breach Article 55 of the legally binding IHR the text of which can be read, in full, here:
“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.
3. Amendments to these Regulations adopted by the Health Assembly pursuant to this Article shall come into force for all States Parties on the same terms, and subject to the same rights and obligations, as provided for in Article 22 of the Constitution of WHO and Articles 59 to 64 of these Regulations.”
A breach of international law
What followed was mental gymnastics by the Secretariat to justify a blatant breach of international law:
“The Health Assembly in decision WHA/75(9) requested the Working Group and I quote “to establish a programme of work consistent with decision EB150(3) and taking into consideration the report of the IHR Review Committee to propose a package of targeted amendments for consideration by the 77th WHA in accordance with Article 55 of the IHR”. Article 55 of the IHR which is referred to in decision WHA/75(9) sets out two procedural requirements relating to proposed amendments.
The first one is that, quote, “proposals for amendments shall be submitted to the Health Assembly for its consideration”.
The second one is that, “The text of any such 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.”
Again, that’s the set of the relevant Article of the IHR Article 55. Article 55 of the IHR including this four month requirement has never been applied to amendments submitted collectively by a sub-division of the Health Assembly, which is exactly what the WGIHR is. The WGIHR is a subdivision of the Health Assembly under Rule 41 of the Rules on Procedure of the Health Assembly. Thus, there are no precedents to rely on with respect to the manner in which the four months requirement set out in Article 55 should be satisfied. That is to say, Article 55 has been applied to amendments proposed by a State Party or by the Director-General but never by a subdivision of the Health Assembly. Indeed, it has only been applied with respect to um.. it has not been applied with respect to any sub-division. This is a first.”
You can see proceedings for yourself in this short video: https://rumble.com/v3otipq-did-the-world-health-organization-just-breach-international-law.html
No room for interpretation – Article 55 is very clear
Precedent setting is not relevant, Article 55 could not be clearer. If the intent was for different rules to apply to sub-divisions of the WHA or to groups of State Parties, then such exceptions would have been contemplated and included in the text. There are no exceptions to the four month time frame.
Consequently, if the WGIHR wish to change the time frame in Article 55 or the way Article 55 is intended to operate, they should add the proposed amendment(s) to the current raft of 307 proposed amendments for consideration at the 77th WHA in May 2024. Instead, the Secretariat gave the Working Group “an option for consideration”; i.e., a way to circumvent a legally binding international obligation as follows:
1. the Director-General to communicate in January 2024 to all State Parties the proposed amendments as originally submitted by Member States as already communicated by the Secretariat to all State Parties by e-mail and, second, the amendments as they might be shown on the screen at the closure of the WGIHR6;
2. allow the WGIHR to continue work, if necessary, up until the 77th Health Assembly in May 2024.
The Secretariat used the “complimentary” INB process as further justification for breach of Article 55. The “complimentary” nature of the two processes has been known from the outset and in any event is not contemplated in Article 55.
In the closing session on 6th October, things worsened as can be seen by the following agreed wording to be included in the final Report of the 5th Session of the WGIHR (not yet published):
“The Co-Chairs noted that, in reference to Decision WHA75(9), it appeared unlikely that the package of amendments would be ready by January 2024. In this regard, the Working Group agreed to continue its work between January and May 2024. The Director-General will submit to the 77th Heath Assembly the package of amendments agreed by the Working Group”.
Evidently, all time lines have been removed with respect to submission dates for the amendments meaning that the final package of amendments may, potentially, not be disclosed until May 2024 at the 77th WHA where the said proposed amendments are to be considered.
A clearer breach of Article 55 of the IHR there could not be!
There has been no revised text of the proposed amendments made available to the people since December 2022 in spite of WGIHR 2, 3, 4 and 5 plus numerous inter-sessional informal sessions having taken place in the interim. All in secret!
How should the process have worked once the January deadline was missed?
Pursuant to decision WHA75(9), the WGIHR has a mandate to propose a package of amendments for consideration by the 77th World Health Assembly in May 2024. If the deadline established in Article 55 is missed, as is the case with the current raft of amendments, then the WGIHR would require a new mandate in order to continue their work beyond 77th World Health Assembly thus providing them with the authority to present a proposed package of amendments in January 2025 for consideration at the 78th World Health Assembly in May 2025.
The consequence of missing the January 2024 deadline should be a delay in the process of an entire year.
The good news!
The lack of consensus was clearly apparent. Equity, financing, access and benefit sharing, tech transfer and capacity building were identified by Dr Bloomfield as “challenging, but central issues” and all are far for being agreed.
WGIHR6 takes place on 7th and 8th December 2023.
Notes and links
A. Seventy-fifth World Health Assembly (WHA75(9)) Agenda item 16.2 27, May 2022 –
Strengthening WHO preparedness for and response to health emergencies sets out the mandate given to the WGIHR. Readers will see that it clearly states, “for consideration by the 77th World Health Assembly in 2024. This supports the argument that if they can’t agree at the WHA in May 2024, then the WGIHR would need a new mandate to take them through to May 2025. (https://apps.who.int/gb/ebwha/pdf_files/WHA75/A75(9)-en.pdf).
B. The first meeting of the Working Group on Amendments to the International Health Regulations (2005) (A/WGIHR/1/5) Agenda item 4 – 30 November 2022 – Report of the first meeting of the Working Group on Amendments to the International Health Regulations (2005) references the mandate given to the WGIHR (https://apps.who.int/gb/wgihr/pdf_files/wgihr1/A_WGIHR1_5-en.pdf).
Below is Letter 21 – Breach of International Law by the World Health Organization which you may wish to send to your MP and perhaps copy in your local councillor or media organisation.
Think about sharing with friends and family – ask them what they think to this unelected, supranational, secret organisation breaking the law.
Remember, the WHO is aiming to strengthen the role they would play in future health emergencies, including “pandemics”. Would YOU trust them? Isn’t it time to #bintheWHO?