There has been some confusion in recent weeks as to the timeline and status of proposed amendments to the WHO’s International Health Regulations, and in particular as to the significance of December 1st 2023. I aim here to clarify the situation and to signal next steps for those of us concerned by the inertia of our parliamentarians in the face of the WHO’s extraordinary ambitions.
A full analysis of the WHO’s original proposals — the only version currently published by the WHO — can be found in this lawyer-prepared briefing note which also addresses concerns stemming from the financial arrangements of the predominantly privately-funded WHO.
The WHO is expected to release new drafts of the legal texts imminently, but as currently drafted the amendments to the IHR and the new Pandemic Preparedness Treaty propose to grant significant new powers of direction and resource allocation to be exercised by the WHO during and in anticipation of international public health emergencies.
The proposals as published would empower the WHO to give binding directions to individual member states and regions, or globally, spanning a broad range of areas including: mandating financial contributions to fund pandemic response activities; overriding and potentially accelerating national safety approval processes for vaccines, gene-based therapies, medical devices and diagnostics; restricting citizens from travelling; and — astonishingly — requiring citizens to quarantine and undergo mandatory testing or even vaccination. The current published draft of the new Treaty includes provisions pursuant to which the WHO could in principle impose significant public spending commitments on member states including the U.K.
To date the IHRs have been structured so as only to grant the WHO the power to issue expressly non-binding recommendations. Unlike the EU legal regime, in which regulations issued at European level can have direct legal effect, binding on citizens and businesses as a domestic national legal matter, the WHO framework would operate slightly differently, albeit with the same intended effect. Specifically, as currently framed, the IHRs would empower the WHO to issue directions which would be binding on member states as a matter of international law, and which would oblige those member states then to implement and enforce the relevant measures at national level.
The significance of this change can barely be overstated, rewiring the relationship between national governments and the WHO and hardwiring into international law a top-down, paternalistic approach to public health. Additional provisions would give the WHO strengthened institutional capacity to globally coordinate and prevent the spread of mis- and dis-information transforming the WHO, effectively, into a a turbo-charged global censorship agency.
With the exception of a small handful of MPs, the majority of U.K. parliamentarians have so far remained oblivious to the threat these proposals signal for U.K. democracy and national autonomy. A reasonable and welcome intervention by the Chair of the Health and Social Care Committee, Steve Brine MP, over the summer was met by an astonishingly evasive response from Health Minister Steve Barclay MP. You can see that exchange, and UsForThem’s letter explaining our continuing concerns, here.
Making this yet more troubling is the fact that suggestions that the proposals stand to make the WHO’s pandemic pronouncements legally binding under international law risk being labelled ‘disinformation’. See for example this ‘fact check’ from the Associated Press, which misleading focuses on the Pandemic Treaty to establish its ‘fact check’ conclusion, while ignoring entirely the proposals to grant powers to issue legally-binding recommendations clearly set out in the main package of original IHR amendments. The counter-suggestion used in that and other articles that the WHO could not in any event enforce against a member state which breached an international law obligation under the new Treaty or the IHRs rings hollow too, as national governments tend to avoid routinely breaching international legal obligations because doing so has serious collateral implications for, e.g., the cost of public borrowing. These types of ‘fact check’ are, in my opinion as a lawyer, misleading and in most cases manifestly incorrect.