The Working Group on Amendments to the International Health Regulations (WGIHR) have failed to reach consensus on the final package of targeted amendments to the IHR ahead of the start of the 77th World Health Assembly (WHA).
Their formal announcement can be read here along with the WGIHR Bureau proposed text from 20th May 2024.
Clause 5 of the document states the following:
“5. The Bureau’s view is that the Working Group is close to agreeing a consensus package of amendments to the Regulations and that there is a strong willingness to conclude the process successfully. The mandate of the WGIHR Co-Chairs and Bureau has now ended but we stand ready to support the next steps agreed by the Seventy-seventh World Health Assembly, including facilitating any further discussions if so decided.”
It would appear that the WGIHR may seek a mandate to continue with the negotiations and therefore as the WHA starts (27th May 2024) we thought we should try to understand the procedure for the adoption and coming into force of the proposed package of targeted amendments to the IHR should a consensus be reached in the future.
(A reminder that it is the position of UK Citizen that the WGIHR is in breach of Article 55.2 of the IHR and thus any adoption at the 77th World Health Assembly, in May 2024 (now seemingly extremely unlikely due to failure to reach consensus), is unlawful.
What is the procedure for adoption and coming into force of the proposed package of targeted amendments?
A) Steps to adoption and coming into force:
- A quorum is required
Rule 52 of the Rules of Procedure of the WHA provides:
“A majority of the Members represented at the session shall constitute a quorum for the conduct of business at plenary meetings of the Health Assembly.”
There are 194 Members to the WHO so this would suggest that 98 Members at the meeting is quorate.
Issues:
- what is the definition of “session”?
- how it is the quorum established? Is there a roll call? Is the roll call carried out in public? Rule 72 of the Rules of Procedure of the WHA states that “normally” for voting a show of hands is used however, a delegate can request a roll-call. There is no mention of this applying to the establishment of a quorum.
- A simple majority is required
Rule 71 of the Rules of Procedure of the WHA provides:
“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.”
- Voting on the proposed package of targeted amendments
Rule 69 of the Rules of Procedure of the WHA provides:
“Each Member shall have one vote in the Health Assembly. For the purposes of these Rules, the phrase “Members present and voting” means Members casting a valid affirmative or negative vote. Members abstaining from voting are considered as not voting.”
Therefore, in order for the proposed package of targeted amendments to the IHR to be adopted, there needs to be a quorate present and a majority of the Members must vote affirmatively or negatively.
Although decision-making by vote is a legally viable option for the WHA, it is not uncommon for the WHA to work by consensus.
- Opting-out after adoption of the proposed package of targeted amendments
The date of the vote, at the WHA77, will impact the timeframe that the majority of Members, including the UK, (see below for exceptions) have to “opt-out” and the timeframe for the amendments to come into force as detailed in Clause 27 in this document.
“27. The amendments to Articles 55, 59, 61, 62 and 63 of the Regulations, adopted by the Seventy-fifth World Health Assembly through resolution WHA75.12 (2022), will enter into force on 31 May 2024. As communicated to all States Parties, the Islamic Republic of Iran, the Kingdom of the Netherlands, New Zealand and Slovakia notified the Director-General of their rejection of the above-referenced amendments.”
Therefore:
- should the vote take place prior to 31st May 2024, the UK will have 18 months to “opt-out” of the amendments and, in the absence of such “opt-out”, the amendments will come into force 24 months after the date of notification by the WHO Director-General of the adoption of amendments; and
- should the vote take place on or later than 31st May 2024 the UK will have 10 months to “opt-out” of the adopted amendments and, in the absence of such “opt-out”, the amendments will come into force 12 months after the date of notification by the WHO Director-General of the adoption of amendments.
Note that the Islamic Republic of Iran, the Kingdom of the Netherlands, New Zealand and Slovakia opted-out i.e. rejected the amendments adopted at the 75th WHA therefore, irrespective of the timing of the vote those countries have 18 months to opt-out and in the absence of that the amendments will come into force 24 months after the date of notification by the WHO Director-General of the adoption of the amendments.
B. Domestic Implementing Legislation
The IHR is an international legal instrument and therefore “binds” countries rather than the citizens of the UK. Whilst an Act of Parliament is not required for an international treaty to bind the UK, domestic legislation may be needed for the UK to meet its obligations under a treaty (and thus impact the people of the UK) in the form of “implementing legislation”.
As you can see from the letter from Andrew Stephenson MP, Minister of State for Health and Secondary Care, which you can find here, the implementing legislation for the IHR is already in place in the form of the “Public Health (Control of Disease) Act 1984” and “The Health protection Agency (Amendment) Regulations”.
C. Does the Constitutional Reform and Governance Act 2010 (CRaG) apply to the proposed package of targeted amendments?
The “Treaties and Memoranda of Understanding (MOUs) Guidance on Practice and Procedures” (Guidance Note) provides the following:
“The term treaty describes an international agreement concluded in writing between States which creates rights and obligations in international law.”
The above definition would suggest that the proposed package of targeted amendments to the IHR falls within the remit of the Guidance Note however, the Guidance Note does not specifically mention proposed amendments to an already existing international agreement.
The Guidance Note provides:
- That the Foreign, Commonwealth and Development Office (FCDO) legal advisers and FCDO Treaty Section must be given the opportunity to comment on the drafts of all treaties under negotiation;
- That under Part 2 of the Constitutional Reform and Governance Act 2010 (CRaG), no treaty (there are some exceptions listed in the Guidance Note) “that is subject to ratification, acceptance, approval, the mutual notification of completion of procedures, or to which the UK intends to accede, can be brought into force unless it has been laid before Parliament for 21 sitting days without either House having resolved that the UK should not demonstrate its consent to be bound (e.g. ratify, accede).”
The IHR was amended in 2015 and again in 2022 and we have yet to establish whether the terms of the Guidance Note and thus CRaG were followed. We intend to try to obtain the answers via a Freedom of Information Request as it is crucial we understand whether the proposed package of targeted amendments should be laid before Parliament.
