WHO pandemic amendments threaten national sovereignty

In an article headlined  “Pandemic preparations are unhealthy” (Mail & Guardian, 22 March 2024), I outlined the World Health Organisation’s (WHO’s) proposed pandemic agreement and amendments to the International Health Regulations (IHR). I also covered recent efforts by health experts and scholars in Africa to raise awareness about the threat the treaty and amendments pose to national health and economic sovereignty.

On 3 April 2024 Petro Terblanche wrote a response to my article, titled “Fatal misunderstanding: Why a pandemic agreement will return power to the people”. Rather than focusing on Terblanche’s bad faith accusations, I want to outline some of the facts regarding the amendments to the International Health Regulations. 

 Both the agreement and the amendments will be voted on by member states and against WHO legal procedure at the end of May 2024.

Terblanche is correct in quoting that “Nothing in the WHO Pandemic Agreement shall be interpreted as providing the WHO secretariat, including the WHO director general, any authority to direct, order, alter or otherwise prescribe the domestic laws or policies of any party …” That compulsion is located in the accompanying proposed amendments to the International Health Regulations (2005). 

The IHR draft amendments are being negotiated in the Working Group for amendments to the IHR. There are more than 300 proposed amendments to the regulations. Many of them cede sovereignty over important public health procedures to the WHO and director general. For example, the new Article 13A stipulates that states parties recognise the 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 health response”. Article 18 outlines that the WHO may “require medical examination”, “require vaccination or other prophylaxis”, “implement quarantine” and ”‘isolation and treatment” of member states, among other recommendations. Article 41 states that measures “shall be initiated and completed without delay by all state parties”.

Silvia Behrendt, the director of the Global Health Responsibility Agency, and International Health regulations expert and international human rights and humanitarian law expert Amrei Müller have written an in-depth legal analysis of the proposed amendments in Opinio Juris. They outline how the proposed amendments would give unique emergency powers to the WHO director general, as well as expand the WHO’s bio-surveillance powers. 

The amendments would expand situations constituting a “Public Health Emergency of International Concern” and give the WHO and director general global legislative emergency powers in the case of such a public health emergency. They would also change the director general’s recommendations into binding recommendations.  

In other words, if the proposed amendments are ratified, the WHO and the director general will be able to issue internationally legally binding instructions, and “will have legislative powers which, with the exception of the United Nations Security Council acting under chapter VII of the UN Charter, no other UN organ or specialised UN agency has”. The threat these proposed amendments pose to national sovereignty is incontrovertible. 

Moreover, “there is a general lack of engagement with the implications that many of the proposed amendments may, if adopted, have on the enjoyment of human rights as well as long fought-for standards of medical law aiming to ensure safety and efficacy of medical products.”

Contrary to Terblanche’s assertion of robust member participation in negotiations, the voting on amendments is being rushed through on an expedited timeline, and against existing International Health Regulations legislation and process. As outlined in a petition by the Pan-Africa Epidemic and Pandemic Working group,  voting on amendments in May 2024 is “being processed in an unlawful manner”. Article 55(2) of the IHR sets out the procedure as follows: “The text of any proposed amendment shall be communicated to all states parties by the director general at least four months before the Health Assembly at which it is proposed for consideration.” According to these rules, the director general should have circulated the package of proposed amendments to be voted on in May by 27 January 2024. This did not happen. As such, “the agenda of passing the amendments to the IHR cannot be legitimately tabled at the WHA 2024, as tabling them without complying with the requisite four-months rule would jeopardise procedural justice, democratic legitimacy, and equitable outcomes for all”. 

Already in 2022, African countries led by Botswana objected to the US led push to amend the IHR. Moses Keetile, the deputy permanent secretary in Botswana’s health ministry, told the WHO’s annual assembly that “The African region shares the view that the process should not be fast tracked.”

The South African parliament had its first debate on the amendments on 1 March 2024 in a mini plenary session, held only two months before the amendments are scheduled to be voted on. During this session the African Christian Democratic Party MP, Steven Swart, raised concern over the binding decision-making powers the amendments would furnish the WHO. He further argued that the amendments would have a detrimental effect on South Africa’s sovereignty. “It is nothing less than a power grab by the WHO.” The ACDP’s Wayne Thring argued that read together, the IHR amendments “will undermine South Africa’s sovereign right to determine its own public health policies”.

Global health and international law experts, together with a growing body of concerned groups, including the Pan-Africa Epidemic and Pandemic Working Group, are calling for an extension of the deadline for the adoption of the amendments to the IHR and pandemic agreement in an open letter and a petition to the WHO. This would be in line with current IHR rules and would safeguard the rule of law and equity. The request is quite simple — give member states enough time to properly consider whether to agree to the amendments and treaty. 

Terblanche asserts that investing in pandemic preparedness will create a strong overall health system. This is incorrect. The WHO is proposing a zero-sum investment in pandemic preparedness, which will divest funds away from treating other diseases. For example, it is set to divert $10.5 billion away from addressing diseases such as malaria and TB towards combating the threat of new viruses from wildlife. Scientists from the University of Leeds and former WHO executives have published a report finding that this new wildlife viruses agenda is unsupported by evidence and contradicts their own sources. 

Public health physician and global health specialist David Bell and international law specialist Thi Thuy Van Dinh have written a useful guide to the WHO Pandemic Agreement and IHR proposed Amendments. They outline how, in recent decades, the WHO has “become a public-private partnership required to serve the interests of funders rather than populations”. Because funding comes from countries with “major Pharma industrial bases”, the WHO “has been required to emphasise the use of pharmaceuticals and downplay evidence and knowledge where these clash”.

I support Terblanche’s call for discussion and not disinformation on the proposed amendment. That was precisely the point of my original article. But we do not need parties with profit interests in the pandemic agreement and proposed IHR amendments taking the lead in these discussions. The WHO is not democratically elected by South Africans. The idea that the amendments could be returning power to the people is therefore both nonsensical and dangerous. On the other hand, democratically elected South African MPs have raised the alarm on the amendments, arguing that they should not be agreed to as they stand. 

I encourage Terblanche to consider the expert scientific opinions on international law, global health and pandemic preparedness critical of the proposed amendments, and to talk to concerned citizens and democratically elected public officials in good faith, rather than towing the WHO and Big Pharma profit line.

Anjuli Webster is a PhD candidate in African History at Emory University, and a member of the Pan-Africa Epidemic and Pandemic Working Group.