The COVID-19 pandemic gave the World Health Organisation and its partners unprecedented visibility and a tremendous amount of “soft” power to shape public health law and policies across the world. Over the past year or so, the WHO has been pushing hard to consolidate and expand its power to declare and manage public health emergencies on a global scale.
It is not entirely clear why the WHO decided to negotiate a separate pandemic treaty that overlaps in significant ways with the proposed IHR amendments. In any case, most of the far-reaching changes to global health regulations are already contained within the IHR amendments, so that is what we will focus on here.
The WHO wants the IHR amendments to be finalised on time for next year’s World Health Assembly, scheduled for 27 May–1 June. Assuming the amendments are approved by a simple majority of the delegates, they will be considered fully ratified 12 months after that, unless heads of state formally reject them within the designated opt-out period, which has been reduced from 18 to 10 months.
To get a flavour of how these changes in international law are likely to affect the policies of governments and citizens’ lives more broadly, it is sufficient to review a selection of the proposed amendments. Although we do not know which of the amendments will survive the negotiation process, the direction of travel is alarming.
Should these amendments come into force, states will be bound by international law, in the event of a public health emergency (as defined by WHO), to follow the playbook of health policies determined by the WHO and its “emergency committee” of “experts,” leaving far less scope for national parliaments and governments to set policies that diverge from WHO recommendations.
Insofar as national states formally consent to the IHR amendments, their sovereignty would remain intact, from a legal perspective. But insofar as they are binding themselves to dance to the tune of political actors outside the scope of national politics, they would clearly lose their freedom to set their own policies in this domain, and health policy “gurus,” instead of representing their fellow citizens, would represent a global health regime transcending national politics and operating above national law.
Under a globally coordinated public health regime, activated by an international public health emergency declared by the WHO, citizens would be vulnerable to errors committed by WHO-nominated “experts” sitting in Geneva or New York, errors which could replicate themselves through a global health system with little resistance from national governments.
Citizens have a right to know that the amended regulations as they stand would give unprecedented power to a WHO-led global health regime and, by implication, its most influential financial and political stakeholders such as the World Economic Forum, the World Bank, and the Bill & Melinda Gates Foundation, all of which are largely beyond the reach of national voters and legislators.
States Bind Themselves to Follow WHO’s Advice as ‘The Guidance and Coordinating Authority’ During an International Public Health Emergency
One of the amendments to IHR reads, “States Parties recognize WHO as the guidance and coordinating authority of international public health response during public health Emergency of International Concern and undertake to follow WHO’s recommendations in their international public health responses.” Like many other treaty “undertakings,” the means for other parties to IHR to enforce this “undertaking” are limited.Removal of ‘Non-Binding’ Language
In the previous version of Article 1, WHO “recommendations” were defined as “non-binding advice.” In the new version, they are defined simply as “advice.” The only reasonable interpretation of this change is that the author wished to remove the impression that states were at liberty to disregard WHO recommendations. Insofar as signatories do “undertake to follow WHO’s recommendations in their international public health responses,” it would indeed appear that such “advice” becomes legally “binding” under the new regulations, making it legally difficult for states to dissent from WHO recommendations.Removal of Reference to ‘Dignity, Human Rights and Fundamental Freedoms’
One of the most extraordinary and disturbing aspects of the proposed amendments to IHR is the removal of an important clause requiring that the implementation of the regulations be “with full respect for the dignity, human rights and fundamental freedoms of persons.”Expansion of Scope of International Health Regulations
In the revised version of Article 2, the scope of IHR includes not only public health risks, but also “all risks with a potential to impact public health.” Under this amendment, International Health Regulations, and their main coordinating body, the WHO, would be concerned not only with public health risks, but with every conceivable societal risk that might “impact” public health. Workplace stress? Vaccine hesitancy? Disinformation? Misinformation? Availability of pharmaceutical products? Low GDP? The basis for WHO intervention and guidance could be expanded indefinitely.Consolidation of a Global Health Bureaucracy
Each state should nominate a “National IHR Focal Point” for “the implementation of health measures under these regulations.” These “focal points” could avail themselves of WHO “capacity building” and “technical assistance.” IHR Focal Points, presumably manned by unelected bureaucrats and “experts,” would be essentially nodes in a new WHO-led global health bureaucracy.Expansion of WHO Emergency Powers
Under the revised regulations, the Director-General of the World Health Organisation, “based on the opinion/advice of the Emergency Committee,” may designate an event as “having the potential to develop into a public health emergency of international concern, (and) communicate this and the recommended measures to State parties…” The introduction of the concept of a “potential” public health emergency, along with the idea of an “intermediate” emergency, also to be found among the proposed amendments, gives the WHO much wider leeway to set in motion emergency protocols and recommendations. For who knows what a “potential” or “intermediate” emergency amounts to?Entrenchment and Legitimation of an International Bio-Surveillance Regime
The old Article 23, “Health Measures on arrival and departure,” authorises states to require that travellers produce certain medical credentials prior to travel, including “a non-invasive medical examination which is the least intrusive examination that could achieve the public health objective.” In the new version of Article 23, travellers may be required to produce “documents containing information…on a laboratory test for a pathogen and/or information on vaccination against a disease.”Global Initiatives for Combating ‘False and Unreliable Information’
Both the WHO and states bound by IHR, under the revised draft of IHR, “shall collaborate” in “countering the dissemination of false and unreliable information about public health events, preventive and anti-epidemic measures and activities in the media, social networks, and other ways of disseminating such information.” Clearly, the misinformation/disinformation amendments entail a propaganda and censorship regime.There is no other plausible way to interpret “countering the dissemination of false and unreliable information,” and this is exactly how anti-disinformation measures have been interpreted since the COVID-19 pandemic was announced in 2020—measures, it may be added, that suppressed sound scientific contributions concerning vaccine risks, lab origins of the novel coronavirus, and efficacy of community masking.
The joint effect of these and other proposed changes to International Health Regulations would be to enthrone the WHO and its director-general at the head of an elaborate global health bureaucracy beholden to the special interests of WHO patrons, a bureaucracy that would be operated largely with the cooperation of state officials and agencies implementing “advice” and “recommendations” issued by the WHO, which state parties have legally undertaken to follow.
Although it is true that international treaties cannot be coercively enforced, this does not mean that international law is inconsequential. Under the newly amended regulations, a highly centralised public health bureaucracy would be propped up by lavish funding mechanisms and protected by international law. A bureaucracy of this sort would inevitably become entrenched and intertwined with national bureaucracies and would become an important element of the policymaking architecture of pandemic planning and responses.
Though national states could, theoretically, bypass this bureaucracy and renege on their legal undertakings under IHR, taking a different path to that recommended by the WHO, this would be rather strange, given that they themselves would have both approved and financed the regime they are boycotting.
In the face of opposition from one or more signatory states, the WHO and its partners could pressure such a state into complying with its edicts by shaming it into upholding its legal commitments, or else other states may reprimand “renegade” states for putting international health in jeopardy and apply political, financial, and diplomatic pressure to secure compliance. Thus, although the WHO, through IHR, would operate upon state officials in a softer way than national, police-backed regulations, it would certainly not be powerless or politically inconsequential.
The effect of the new global health bureaucracy on the lives of ordinary citizens may be quite dramatic: It would erect a global censorship regime legitimated by international law, making challenges to officially sanctioned information harder than ever, and it would make international public health responses even more slavishly dependent on WHO directives than they were before, discouraging independent, dissenting responses such as that of Sweden during the COVID pandemic.
Last but not least, the new global health bureaucracy would put the fate of ordinary citizens—our national and international mobility, our right to informed consent to medication, our bodily integrity, and ultimately, our health—in the hands of public health officials acting in lockstep with WHO “recommendations.”
Apart from the fact that policy diversification and experimentation is essential to a robust health care system and is crushed by a highly centralised response to health emergencies, the WHO is already riddled with internal conflicts of interest and a track record of catastrophically unsound judgments, making them singularly unqualified to reliably identify a global health emergency or coordinate the response to it.
To start with, the WHO’s income stream depends on individuals such as Bill Gates who have significant financial stakes in the pharmaceutical industry. How can we possibly expect the WHO to make impartial, disinterested recommendations about, say, the safety and efficacy of vaccines, when its own donors are financially invested in the success of specific pharmaceutical products, including vaccines?
