WHO’s International Health Regulations: The intent of the newly released draft remains unchanged

The New IHR Changes Are Merely Cosmetic

By David Bell and Thi Thuy Van Dinh

For two years, the 196 State Parties to the 2005 International Health Regulations (“IHR”) – composed of 194 Member States of the World Health Organisation (“WHO”), and Liechtenstein and the Vatican – have been submitting and discussing proposed amendments to update this agreement. Introduced in the 1960s, the IHR are intended to strengthen national capacities and improve coordination among countries in the event of a health emergency. Though a legally binding agreement under international law (i.e. a treaty), most of the provisions have always been voluntary.

The draft of the IHR amendments and an accompanying draft Pandemic Agreement are both still under negotiation a month short of the intended vote at the World Health Assembly (“WHA”) in late May. Together, they reflect a sea change in international public health over the past two decades. They aim to further centralise control of public health policy within the WHO and base response to disease outbreaks on a heavily commoditised approach, rather than the WHO’s prior emphasis of building resilience to disease through nutrition, sanitation, and strengthened community-based health care.

[Please note:  The Pandemic Treaty is also referred to as also referred to as the Pandemic Accord, Pandemic Agreement and WHO Convention Agreement + (“WHO CA+”).]

The Changing Public Health Environment

Public health’s metamorphosis responds to the increasingly directive nature of the WHO’s funding and an increasing participation of the private sector in that funding. Together with a growth of commodity-based public-private partnerships including Gavi (for vaccines) and CEPI (vaccines for pandemics), this has been heavily directed by powerful privately-owned foundations with strong connections to Pharma, who shape the work of these organisations through direct funding and through influence brought directly upon countries.

This became particularly prominent during the response to covid-19, in which prior WHO guidance was abandoned in favour of more directive and community-wide measures including mass workplace closures and mandated vaccination. The resultant concentration of wealth within private and corporate sponsors of the WHO, and increasing impoverishment and indebtedness of countries and populations, both set a precedent for such approaches and left the world more vulnerable to their imposition.

Implications of the New Draft

In understanding the apparent reversals of some proposals amending the IHR in the latest draft, it is important to understand that the covid-19 response demonstrated great success in imposing this new outbreak response paradigm under the current voluntary nature of the IHR. Pharmaceutical corporations successfully sealed highly lucrative contracts directly with States, including public funding for research and development, and liability-free advance purchase agreements. This was supported with heavy sponsorship of media, health, regulatory and political sectors enabling both the high level of compliance and the stifling of dissent.

Centralising more proscriptive powers within the WHO to repeat this business approach under a legally binding agreement would simplify future repetition, but also introduces an element of the unknown into a system already proven to work. These aspects of the previous drafts also presented an obvious focus for public opposition. Pharma has been aware of this reality during the negotiating process.

The latest version of the IHR amendments released on 16 April thus removes wording that would involve Member States “undertaking” to follow any future recommendation from the Director General (“DG”) when he/she declares a pandemic or other Public Health Emergency of International Concern (“PHEIC”) (former New Article 13A). They now remain as “non-binding” recommendations.

This change is sane, conforms with the WHO Constitution, and reflects concerns within country delegations regarding overreach. The shortened review time that passed in rather ad hoc fashion by the 2022 World Health Assembly will apply to all but four countries that rejected them. Otherwise, the intent of the draft, and how it is likely to play out, is essentially unchanged. The World Bank, IMF, and G20 have signalled an expectation that the overall plan will proceed, and rising national indebtedness further increases powers to coerce this.

States are still expected to manage dissenting opinion, and together with the accompanying Pandemic Agreement, the WHO and its partners continue to set up a highly dangerous complex (from a public health, equity, and human rights viewpoint) involving a massive and expensive surveillance system to identify natural viral variants, a requirement for rapid notification by countries, passage of samples by the WHO to pharmaceutical manufacturers of their choice, a 100-day mRNA vaccine delivery bypassing normal regulatory and safety trials, and then a mass-vaccination-based response that will, as seen in the covid-19 response, be pitched as a way to get back to normal. This can still be invoked by the DG alone, simply on his/her perception of a threat rather than actual harm. The pharmaceutical companies will be supported by public funds (See discussion on the Pandemic Agreement), but receive liability-protected profits.

An Unfit and Unready Document

This system will be overseen by the WHO, despite being a beneficiary of Pharma funding, which in turn will be the major financial beneficiary of the pandemic response. The DG personally selects the committee members who may advise and oversee this process (rather than the Member States which are supposed to ultimately be in charge). The WHO receives funding for its emergency agenda from the same organisations and private investors that stand to benefit.

The conflicts of interest and vulnerabilities to corruption in this scheme are obvious. A whole international bureaucracy is already being put in place for this, whose sole reason for existence is to determine that viral variants and minor outbreaks, a natural part of existence, are a threat requiring a specific response that they must then implement. The current DG declared a global emergency over Monkeypox, after just five deaths in a clear and relatively restricted demographic group.

Lastly, the current text of the amendments discussed below looks far from complete. There are internal contradictions, such as clauses both requiring informed consent and, strangely and alarmingly, recommending that this be overridden. The definition provided of a pandemic is as much based on the response put in place as the pathogen or disease itself. By removing the shortened review period and removing overt compulsion, the prior misrepresentation of urgency and outbreak frequency seems to have been recognised.

Yet, this document, and the draft Pandemic Agreement, are still intended to be voted on before the end of May. This completely abrogates the legal requirement within Article 55 of the IHR (2005) and is repeated in this draft, for a four-month review period before any vote. This is not only irrational given the unfinished nature of the text, but inequitable as it disadvantages less-resourced countries in fully assessing likely impacts on health, human rights, and their economies. There are no procedural reasons to prevent the WHO from calling for a later WHA vote after the drafts have been properly reviewed. Member States should clearly demand this.