The 2024 Amendments to the International Health Regulations: A Commentary (Part I: Procedural Issues)

[Dr. Amrei Müller is Assistant Professor/Lecturer (Ad Astra Fellow) at University College Dublin, Sutherland School of Law.

Dr. Silvia Behrendt is the founder and director of the Global Health Responsibility Agency.]

Introduction

At the last hour of the last day of the 77^th session of the World Health Assembly (WHA), at 9 pm on the 1^st of June 2024, the WHA adopted far-reaching amendments to the International Health Regulations (IHR) (2005). The amendments were adopted via a resolution by consensus, that is, without a vote. At the same time, the WHA adopted another decision extending the mandate of the Intergovernmental Negotiating Body (INB) to finish the work on the Pandemic Agreement for consideration of either a special session of the WHA later in 2024 or the 78^th session of the WHA in 2025.      

What follows is a brief comment on the adopted amendments published in two parts. Part I concerns irregularities in the adoption procedure of the amendments. Part II will offer an analysis of the content of some of the amendments. 

Irregularities in the Adoption Procedure of the Amendments  

By adopting the IHR amendment resolution, the WHA, guided by the WHO Secretariat and with the ultimate responsibility of the WHO Director-General, who is ex officio the Secretary of the WHA (see Article 32 WHO Constitution (WHOC) and Rule 17 Rules of Procedure of the WHA), acted in violation of international law, and in particular of Article 55(2) IHR. 

The Requirements of Article 55(2) IHR and their Rationale

In accordance with the amendment procedures set out Article 55(2) IHR, the Director-General must communicate to all WHO member states the final text of all amendments to the IHR four months in advance of the WHA that shall consider and potentially adopt these amendments. The IHR do not provide for possibilities to derogate from this timeframe. 

This four-months period is explained first by the unique normative authority of the WHA under Article 21(a) WHOC to adopt legally binding ‘regulations’ like the IHR to ‘prevent the international spread of disease’, and amendments to such regulations. Second, and in particular, it is justified by the unique procedure in accordance with which they enter into force: they enter into force automatically for all WHO member states, unless a state files a formal objection or reservation with the WHO Secretariat within the short timeframe of 10 months in accordance with Articles 59, 61 and 62 IHR as well as Article 22 WHOC (opt-out clause). 

In light of these legal peculiarities, i.e. with no requirement for regular signing and ratification processes common for the adoption of multilateral treaties (and amendments thereto) under the Vienna Convention on the Law of Treaties (VCLT), the four-months period under Article 55(2) IHR is indeed an essential procedural safeguard for states to thoroughly assess the legal, administrative, institutional, economic, financial and other implications of any IHR amendments at the domestic level before adoption by the WHA. This appears even more relevant against the background of earlier amendments to the IHR, adopted in May 2022, which cut the period from 18 months to 10 months within which states can proactively opt out of amendments to the IHR after they have been adopted by the WHA.

The Trajectory Leading to the Violation of Article 55(2) IHR 

It appears that the WHO and its Secretariat, and in particular the Working Group on the Amendments of the International Health Regulations (WGIHR), decided (see here (para.5) and here) already in October 2023 to no longer comply with Article 55(2) IHR and to keep negotiating the amendments to the IHR right up to the start of the 77^th WHA. This decision was made despite the fact that the WGIHR’s Terms of Reference expressly tasked the WGIHR to act in compliance with Article 55(2) IHR, requiring it to submit, in January 2024, 

‘[…] their final package of proposed amendments to the Director-General who will communicate them to all States Parties in accordance with Article 55(2) for the consideration of the Seventy-seventh World Health Assembly.’ (para.6)           

After civil society organisations, including the Pan-Africa Epidemic and Pandemic Working Group as well as various Parliamentarians (see here and here) and Senators raised concerns about the impending violations of Article 55(2) IHR and pointing to the possibility that it could attract institutional and individual responsibilities of WHO and the Directo-General under international law, the WHO Secretariat published an explanation on its website on the 17^th of April 2024 as to why it regarded its own and the WGIHR’s activities to be lawful. It argued that the requirements of Article 55(2) IHR were fulfilled because the Secretariat 

‘circulated all proposals for amendments to the IHR on 16 November 2022, some 17 months before the Seventy-seventh World Health Assembly, which begins on 27 May 2024, when they are proposed for consideration.’

This argument is not convincing for two reasons. First, in line with its object and purpose, Article 55(2) IHR requires that the final text of amendments to the IHR must be circulated four months prior to the respective WHA at which they shall be adopted for states to be able to meaningfully evaluate their implications for their domestic legal and institutional order. Publishing 308 incoherent and contradictory proposals for amendments of the IHR made by different states in November 2022, the purpose of which was to launch a 15-month negotiation process of the IHR amendments within the WGIHR in late 2022 (see here, paras.2(a) and (c)), were clearly not the final text of the amendments adopted on the 1^st of June 2024 by the WHA. Second, the WHO Secretariat itself had no legal intention in November 2022 to circulate the 308 amendments proposed by state parties under the remit of Article 55(2) IHR. Rather, it published and circulated them at the explicit request of the WGIHR.  

A Concerning Development 

The violations of Article 55(2) IHR by the WHA (and its sub-division the WGIHR) and the WHO Secretariat are highly concerning also from a general rule of (international) law perspective with such rule of (international) law coming under ever-increasing pressure in recent years. WHO’s conduct also disregards its constitutional obligation (WHOC, preamble) to act in conformity with the UN Charter by virtue of its status as a specialised UN agency, which includes the objective ‘to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained’ (preamble, UN Charter).

Some of the substantive 2024 amendments to the IHR are analysed in Part II of this contribution.