Update on binding recommendations in the IHR amendments

The more things change, the more they stay the same? (And a salutary tale..."When I’m wrong, I change my mind. What do you do?")

Are the W.H.O.’s recommendations going to be binding under the proposed amendments to the International Health Regulations (IHR)?

Yes? No? Maybe?

Until a few days ago, all my analysis, writing and conversations about whether or not WHO recommendations will become binding under the proposed amendments to the International Health Regulations (IHR), have been based on the most recent (November 2022) official draft of the proposed amendments, “Article-by-Article Compilation of Proposed Amendments to the International Health Regulations (2005) submitted in accordance with decision WHA75(9) (2022)”. This document is often referred to as “the 300 amendments”, so that’s what I’ll call it in this article.

In February 2023, the “Report of the Review Committee regarding amendments to the International Health Regulations (2005)” (A/WGHR/2/5) was published by the WHO. I didn’t put much or any weight on this report, because I thought: who knows which amendments they’ll push ahead with anyway?

And I put even less weight on an unofficial version dated 9 February 2024 - because it was unofficial. It’s called the “Compilation of Bureau’s text proposals and text proposals by the Sub-group on the public health alert - PHEIC - pandemic continuum (“Sub-group”)”

But at the urging of a new-found friend, whom I respect very much, I’ve spent the last few days analysing the report and the unofficial version, and comparing them with the 300 amendments, and have changed my position completely. I reckon my analysis of the 300 amendments was correct - but things have changed! I missed the turnoff! I had been right, but now I am wrong!

According to the Wall Street Journal in 1983, “when someone kidded British economist John Maynard Keynes because he had altered his views on an economic question, Lord Keynes replied:

When I’m wrong, I change my mind. What do you do?

Let me explain…this is super important for an informed debate with our politicians about the proposed IHR amendments. We are always urging people to “look at the data” - we must lead by example, and follow our own advice. So let me trace how my understanding of the answer to the following question has evolved:

Will the WHO’s recommendations be binding under the proposed changes to the IHR amendments?

November 2022 changes proposed in the 307 amendments

The answer based on this document is: Yes, they will be binding under international law. (Not necessarily under domestic law, but that’s another story.)

Under the 2022 draft of the proposed changes (the 300 amendments), recommendations were to become binding, at least under international law:

Article 1

Article 13A

February 2023 comments in the review report

In the review report the Committee makes it clear that it would not be appropriate to make the recommendations binding:

So if the negotiating parties take on board the committee’s advice (and it looks like they have), the answer will be: No, recommendations won’t be binding.

February 2024 unofficial version of the IHR amendments

The latest draft of the IHR amendments clearly shows the definition of temporary recommendation DOES NOT have the words “non-binding” struck out:

This is consistent with the recommendation in the review report (see above).

The answer if this draft ends up being adopted would therefore be “No, the WHO’s recommendations will not be binding”.

Note: the source document is “Compilation of Bureau’s text proposals and text proposals by the Sub-group on the public health alert - PHEIC - pandemic continuum (“Sub-group”)”

To understand the proposed changes set out in the source document, and what changes are no longer proposed, please refer to the PDF below, which is the current version of the IHR marked up to show the changes set out in the source document. Details of the countries’ negotiating positions on each amendment have (mostly) been hidden for ease of reading. (If you want to see which countries are in favour of what, please refer to the source document above.) The acronyms are:

• DEL - some countries want to delete the text in the square brackets

• RETAIN - some countries want to retain the text in the square brackets

• RESERVE - some countries want to reserve their position on the text in the square brackets

• ALT - the whole text in the square brackets is suggested as an alternative. In some cases, I’ve shown the alternative text in a comment bubble for ease of reading.

Ihr 2005 Marked Up Without Country Positions

1.23MB ∙ PDF file

Download

Download

Editing note 10 April - the PDF has been replaced with a correction in Article 24 (addition of the words “as appropriate’ in para 1). Article 24 is very important in terms of the proposed ability of countries around the world to order individuals and even whole ships and planes into quarantine at the drop of a hat - see discussion here. It’s a simple 3-step process: WHO recommends a boat be quarantined, the country concerned adopts the recommendation, and whammo you’re not getting off that boat, the Captain has locked the doors. And this can be despite no-one on board being sick, and the boat not being contaminated - just on the basis of people on board not having their vaccine passports up to date. (Under the existing IHR, “quarantine” means “the restriction of activities and/or separation from others of suspect persons who are not ill or of suspect baggage, containers, conveyances orgoods in such a manner as to prevent the possible spread of infection or contamination” (emphasis added))

But wait, there’s more! Other provisions in the IHR

On a holistic view of the IHR, the answer is: Yes, WHO’s recommendations will be binding.

In addition to scouring the IHR amendments for references to binding or non-binding recommendations, we also need to be aware that there is an existing requirement in the current version of the IHR: “Health measures taken pursuant to these Regulations shall be initiated and completed without delay…” - Article 42:

This may explain why all countries complied with WHO directions during COVID even when recommendations weren’t defined as being binding.

In conclusion

It seems this is a classic example of the more things change, the more they stay the same.

My understanding (today!) is that countries are already obliged under international law to implement WHO recommendations - not because they’re binding, but because of Article 42.

The argument over whether recommendations will be binding or not is a massive red herring. Countries appear to want to follow them anyway; and are under a general obligation to do so under the IHR even if recommendations are expressed as being non-binding.

Which points us to some questions we can ask our Members of Parliament (rather than arguing about binding/non-binding):

In an emergency, should we:

A) Do what the Director General of the WHO determines is best for everyone globally,

or

B) Do what we determine to be in our national interest, which may or may not be following the WHO’s recommendations?

Why would we ever want to commit ourselves to following the WHO’s recommendations?

Why did we, during COVID?

Why would we want to commit ourselves to lockdowns (for example) next time, if that’s what the WHO recommends?

How could “one size fits all” recommendations by the WHO possibly be the best solution for every local area all across Australia? (OK, different States and Territories had varying periods of lockdown - but WHO said lockdowns were a good idea at all?!)

I look forward to reading your comments, particularly if you can show me I’m wrong!