Revision of the International Health Regulations (2005) and the WHO Pandemic Agreement

Will the Covid-19 health crisis have a lasting impact on public health? The management of this crisis has resulted in serious infringements on fundamental freedoms due to the restrictions implemented to limit its spread. Additionally, governments have mobilized to strengthen the global healthcare system, but the balance between public health and individual rights remains delicate. The pandemic has also raised concerns about a potential takeover of global health by the WHO, exacerbated by the controversial revision of its regulations.

By Milly-Gloria ITANGIVYIZA

The WHO operates on several fundamental texts that guide its actions. Among these is the International Health Regulations (IHR)[1], enshrined in the Constitution of April 7, 1948[2]. This is a legally binding[3] international instrument for the 196 States Parties to the regulations, including 194 WHO member states. The current regulations date from 2005 and entered into force on June 15, 2007.

The IHR (2005) sets forth the approaches to be adopted and the obligations of States to prevent the international spread of diseases. Article 2 outlines its purpose and scope. It was established "to prevent the international spread of diseases, to protect against, control, and respond to such spread in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade." In other words, it serves to prevent and manage diseases at the international level, allowing States to take only the necessary measures to interfere as little as possible with the free movement of people and goods.

Since the COVID-19 health crisis, a new instrument to complement the IHR is under discussion: the proposed WHO Pandemic Agreement. Its objective is to complement the IHR by introducing new international health rules to enable the WHO to act more effectively in preventing and managing future pandemics.

Paris Peace Forum 2020: Starting Point

The idea of revising the IHR (2005) and adopting a new WHO pandemic agreement was launched in 2020 by the Paris Peace Forum.* This significant event brought together health experts, government representatives, international organizations, and major foundations. The various partners of the Forum played a key role in the organization and success of the event. Among others, the Bill & Melinda Gates Foundation funded the project with nearly one million[4] dollars. Other foundations such as Ford, Open Society, Rockefeller, and Brunswick also participated.

Organized in response to growing criticism of the management of the COVID-19 pandemic, the Forum's discussions focused on improving the speed of pandemic responses, information sharing, and international coordination. Forum participants agreed that the current IHR required substantial revisions to better respond to future health emergencies. From the outset, the 2020 Forum's organizers aimed to highlight the shortcomings and weaknesses of the current IHR in the face of an unprecedented global health crisis. Emphasis was thus placed on the need to reform and strengthen the WHO's role in pandemic management. Additionally, various workshops were organized to address specific topics such as epidemiological surveillance, equitable distribution of vaccines, and crisis communication strategies.

Two main concrete proposals from the Forum should be highlighted. Firstly, the negotiation of a new legally binding international instrument for pandemic response, the future WHO Pandemic Agreement. Secondly, the creation of a high-level expert council[5] "One Health" (OHHLEP). This council would be established as part of an interdisciplinary initiative led by FAO, WHO, OIE, and UNEP (the Partners) to consider the interactions between human, animal, and environmental health. The experts of OHHLEP, tasked with supporting and potentially guiding national, regional, and international health policies, were selected, and appointed following consultations between the Partners, after a public call[6] for applications.

Creation of Bodies Responsible for Revision and Negotiations

The process of amending the IHR (2005) is a continuation of the fight against the COVID-19 pandemic. This process is overseen by two entities: the Working Group on Amendments to the IHR (2005) and the Intergovernmental Negotiating Body. These bodies bring together health experts, including medical doctors and diplomats.

Negotiations within the Working Group on Amendments to the International Health Regulations

There are 196 States Parties to the IHR: the 194 WHO member states, Liechtenstein, and the Holy See. Since the entire IHR is not open for renegotiation, a compilation[7] of amendment proposals (a total of 307 amendments) on specific issues and concerns has been submitted for review. It is the 196 States Parties that negotiate[8] the proposed amendments to the IHR through the Working Group on Amendments to the International Health Regulations (2005).

The Working Group on Amendments to the IHR (2005) is composed of co-chairs, vice-chairs, and the amendments review committee. This group functions as a subdivision of the World Health Assembly. The negotiations are coordinated by the Working Group Bureau, which includes representatives from each WHO region, including two co-chairs. At the request of member states, the WHO Secretariat supports the Working Group and its Bureau by convening its meetings and providing the services and resources needed to fulfill its mission, along with information and advice.

Negotiations within the Intergovernmental Negotiating Body

During a special session of the Health Assembly in December 2021, governments agreed to develop and negotiate a convention, agreement, or other international and legally binding instrument for pandemic response under the WHO Constitution. These negotiations are conducted under the direction of the Intergovernmental Negotiating Body[9], composed of a bureau with representatives from the six WHO regions and a secretariat. It is responsible for drafting the text of the potential new agreement and facilitating negotiations between States.

When the creation of the negotiating body was formalized, the World Health Assembly noted the need for complementarity and coherence between the work on the IHR and the development of the agreement. It was then requested that the Working Group on Amendments and the Negotiating Body establish regular coordination between the two bureaus, aligning meeting schedules and work plans.

Controversial Amendments

The revision of the IHR has not been without controversy. Some of the proposed amendments, although intended to protect public health, have raised concerns about respecting human dignity and fundamental rights. Among the proposed amendments, some were particularly shocking. They included drastic measures for quarantine and isolation, increased surveillance of populations, and the possibility of restricting individual freedoms during a health crisis.

For instance, one amendment proposed to remove the notions of respect for human dignity and fundamental freedoms enshrined in Article 3 of the IHR (2005). While the article stipulates that the implementation of the IHR must fully respect "the dignity, human rights, and fundamental freedoms of persons," Malaysia and India proposed replacing these principles with "equity, inclusiveness, and coherence."

Uruguay, on behalf of the member states of the Southern Common Market, proposed the digitization of health documents, notably through the introduction of international vaccination passports, which could infringe on the right to privacy.

Bangladesh proposed removing the "non-binding" aspect of permanent and temporary WHO recommendations, tending to give them a mandatory nature for States and their populations, thereby threatening individual autonomy and informed consent for making health-related decisions.

Other amendments consisted of removing the freedom of States to cooperate or not with the WHO and the requirement for WHO to consult with the State before acting on its territory[10]. Granting the WHO the power to unilaterally define pandemic[11] alert criteria and declare a global emergency was also deemed scandalous.

However, the experts of the review committee[12] expressed significant reservations regarding these amendments through technical recommendations[13]. They highlighted the risk of human rights violations and the imperative need to balance health security with respect for individual freedoms. Consequently, they rejected these amendments.

Conclusion

The COVID-19 pandemic has severely tested global health systems, disrupted economies, and profoundly affected societies. It exposed vulnerabilities and inequalities within health systems, necessitating a revamp of pandemic response strategies. One might question the validity of revising and adopting a new pandemic management instrument, particularly given the involvement of experts who could intervene on par with member states through recommendations. These recommendations serve as the basis for making health decisions in the context of international disease management. It is therefore crucial to remain vigilant and actively participate in debates to ensure that these agreements genuinely serve the common good without compromising individual rights. These measures could set a dangerous precedent, leading governments to restrict individual freedoms under the pretext of health security.

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* It is an international platform dedicated to global governance and multilateralism. It was the first major event to address the response to the COVID-19 pandemic. The 3rd edition was held from November 11 to 13, 2020, under the theme of "Building a Better World After the Pandemic." https://parispeaceforum.org/ 

[1] WHO, International Health Regulations (2005), 3^rd ed.

[2] The Constitution was adopted by the International Health Conference held in New York from June 19 to July 22, 1946, signed by the representatives of 61 States on July 22, 1946 (Off. Rec. World Hlth Org.) and came into force on April 7, 1948.

[3] IHR, Op. Cit., Art. 3 §§ 3 and 4: “3. The implementation of these Regulations shall be guided by the objective of their universal application for the protection of all people of the world from the international spread of disease. [...] 4. [...] States [...] shall promote the purposes of these Regulations.” See also: Arts. 53 and 59.

[4] $650,000 USD for stakeholder mobilization in support of collective action, thereby enabling the advancement of concrete governance projects and the digital platform for the online forum. An additional $349,451 USD has been allocated to support this high-level dialogue and to stimulate coordinated global policies on how to respond to the pandemic.

[5] https://www.fao.org/one-health/background/ohhlep/en

[6] https://www.who.int/news-room/articles-detail/call-for-experts-one-health-high-level-expert-panel-(ohhlep)

[7] https://apps.who.int/gb/wgihr/pdf_files/wgihr1/WGIHR_Compilation-fr.pdf

[8] Decision EB150(3), p. 15 https://apps.who.int/gb/ebwha/pdf_files/EB150/B150(3)-en.pdf

[9] Members of the INB, p. 1  https://apps.who.int/gb/inb/pdf_files/NFR/NFR_INB_27-02-03-03-2023-fr.pdf

[10] Passage removed as part of the amendments: "Before taking any action based on these reports, the WHO shall consult with the State Party in whose territory the event is alleged to occur and seek to verify the information with that State in accordance with the verification procedures set out in Article."

[11] See Proposed Amendments to the IHR (2005): New Article 5 §5, Article 9, Article 10 §4, Article 12, Article 35.

[12] Members of the IHR Amendments Review Committee: Report of the Review Committee on the Amendments to the International Health Regulations (2005) pp. 8 and 12.

[13] https://apps.who.int/gb/wgihr/pdf_files/wgihr2/A_WGIHR2_Reference_document-fr.pdf