From ... in Health Political — Mar 18, 2024

Open letter to WHO: The process of the IHR amendments is unlawful and violates international law; you WILL BE held responsible

Earlier this month Global Health Responsibility published an open letter to Tedros Adhanom Ghebreyesus regarding the procedural obligations in the process to amend the International Health Regulations and how the World Health Organisation is violating international legal obligations.

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In 2021, Dr. Silvia Behrendt founded the Global Health Responsibility (“GHR”) Agency as a global health law representative committed to challenging unquestioned narratives. Dr. Behrendt is an Austrian administrative lawyer. She served as legal advisor to the World Health Organisation (“WHO”) during the H1N1 influenza known as swine flu. GHR’s open letter dated 6 March 2024 to the World Health Organisation (“WHO”) is signed by Dr. Behrendt as GHR’s director.

On 7 October 2023, WHO released a statement in which WHO declared it would not share the finalised International Health Regulations (“IHR”) amendments with the public and member states four months before the vote on it in May 2024 as WHO’s own rules require.

“To be lawful, any procedures to amend the IHR have to be carried out in accordance with legal requirements set out in the IHR itself,” the open letter to Ghebreyesus dated 6 March 2024 states. “It is your binding legal obligation.”

The open letter goes on the explain that not making the draft available four months before the World Health Assembly (“WHA”) meets in May 2024, “leads to a situation that does not allow for a lawful presentation of a draft resolution on IHR amendments to the 77th WHA.”

“If the WGIHR and the Secretariat do not abide by the legal rules of the IHR amendment procedure, WHO commits an internationally wrongful act,” the letter states, “this malfeasance can be held to account by any of the 196 State Parties.”

“Next to invoking WHO’s institutional responsibility for committing an intentionally wrongful act … a claim for individual responsibility under international law of any person acting on behalf of the organisation could be established.”

The letter names those who could and should be held accountable: Tedros Adhanom Ghebreyesus, Dr. Abdullah Asiri, Dr. Ashley Bloomfield, Dr. Sultani Matendechero, Colin McIff, François Rivasseau and Grata Endah Werdaningtyas.

The letter concludes by stating that presenting a draft of the IHR amendments to the WHA meeting “would constitute an intentional violation … and can attract institutional and individual responsibility … We urge you to immediately issue a clear command to the WGIHR and advise the public that the IHR amendments cannot be adopted at the 77th WHA.”

Below is a copy of GHR Agency’s open letter. As James Roguski commented: “I encourage everyone to adapt Silvia Behrendt’s open letter and send it to Tedros and their country’s politicians and officials, demanding that no amendments can be adopted by the 77th World Health Assembly in May 2024.”

Open letter to Tedros Adhanom Ghebreyesus from GHR Agency

To: H.E. Dr. Tedros Adhanom Ghebreyesus

Subject: Open letter on violating a procedural obligation in the amendment process of the International Health Regulations (2005) by the WGIHR

Salzburg, 6^th of March 2024

Dear Dr. Tedros,

Our Agency devotes its work to institutional transparency and responsibility in global health and is highly concerned about the intention of the ‘Working Group on Amendments to the International Health Regulations’ (WGIHR) to submit a draft resolution on the final package of the amendments to the International Health Regulations 2005 (IHR) only at the very start of the 77^th World Health Assembly (WHA).

To be lawful, any procedures to amend the IHR have to be carried out in accordance with legal requirements set out in the IHR itself as the applicable lex specialis regime. The relevant Art. 55 para. 2 IHR reads 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.”

The wording “shall” of Art. 55 para. 2 IHR clearly indicates that it is your binding legal obligation under the IHR to communicate “any” IHR amendments to all States Parties four months in advance of the Assembly. This includes the final version of the amendments proposed by the WGIHR.

The applicable general rules of treaty interpretation set out in Article 31 of the Vienna Convention on the Law of Treaties require that Art. 55 para. 2 IHR must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of Art. 55 para. 2 IHR in their context and in the light of the IHR’s object and purpose. This confirms that no exception is available for the current situation. Art. 55 para. 2 is the lex specialis to the general rule enshrined in Art. 40 para. 2 of the Vienna Convention on the Law of Treaties. According to the express will and intent of the drafters of Art. 55 para. 2 IHR, States Parties must be given at least 4 months to consider any amendment prior to the Assembly. This allows the State Parties to thoroughly reflect on the amendments, including their domestic legal and institutional implications, and prevents the State Parties from rushing out of negotiations into a hasty adoption of a resolution. This is all the more important given the unique status of the IHR. As a legal instrument, it automatically binds the WHO’s administration by its status as a resolution. Adopted amendments will also automatically enter into force for all State Parties which do not no-opt out within the required time frame in accordance with Arts. 59, 61 and 62 IHR as well as Art. 22 of the WHO’s Constitution.

In this instance, the unique legal nature of the IHR has to be recalled. This binding legal instrument has been registered with the UN Secretariat in accordance with Art. 102 of the Charter of the United Nations under the category as a multilateral treaty in the UNTS Volume Number 2509 (p. 79) via the Certificate of Registration No. 56548 . Consequently, there is no doubt of its nature as a treaty under public international law binding its States Parties. Consequently, both the State Parties as well as the Secretariat of WHO, composed of the Director-General and the WGIHR, as a subdivision of the Health Assembly, are under a legal obligation to follow Art. 55 para. 2 IHR.

With regard to the 77^th WHA, the deadline to lawfully circulate the proposed amendments to the IHR States Parties by the Director-General in accordance with Art. 55 para. 2 IHR has passed on the 27^th January of 2024. This deadline elapsed without any communication from the Director-General to the State Parties of the package of amendments compiled by the WGIHR. As of yet, no final draft version of the amendments has been communicated to the States Parties by the Secretariat.

This leads to a situation that does not allow for a lawful presentation of a draft resolution on IHR amendments to the 77th WHA by the WGIHR.

Despite the unequivocal legal obligation of WHO to respect Art. 55 para. 2 IHR, the Secretariat and the WGIHR publicly proclaimed their intention to violate international legal obligations incumbent upon them by finalising the package of the amendments for the possible adoption at the 77^th WHA, as evidenced duringthe7^th meeting of the WGIHR on 5^th – 9^th of February 2024 and as well as through the schedule of the final 8^th meeting on 22^nd– 26^th of April 2024.

If the WGIHR and the Secretariat do not abide by the legal rules of the IHR amendment procedure, WHO commits an internationally wrongful act under the UN Draft Articles on the Responsibility of International Organisations . Although these Articles have not yet been officially adopted by States, there is sufficient doctrinal consensus, including state practice, international jurisprudence and scholarly opinion, that would qualify this unlawful administration of the IHR amendment process as a wrongful act of WHO in accordance with the Draft Articles, which attracts institutional responsibility, including cessation, non-repetition (draft Art. 30) and reparation (draft Art. 31) of the WHO. This malfeasance can be held to account by any of the 196 State Parties.

Next to invoking WHO’s institutional responsibility for committing an intentionally wrongful act by proceeding to propose a resolution on the IHR amendments at the 77^th WHA, a claim for individual responsibility under international law of any person acting on behalf of the organisation could be established (draft Art. 66).

In this regard, the co-chairs of the WGIHR, Dr. Abdullah Asiri of Saudi Arabia and Dr. Ashley Bloomfield of New Zealand as well as the Vice-Chairs Dr. Sultani Matendechero of Kenya, Mr. Colin McIff of the United States of America, Ambassador François Rivasseau of France, and Ambassador Grata Endah Werdaningtyas of Indonesia could and should be held accountable for violating Art. 55 para. 2 IHR by intending to submit the final version of the IHR amendments to the WHA without meeting the deadline for the 4-months notification requirement.

The public webcast of 2^nd of October 2023 (available HERE ) provides evidence that the WGIHR is aware of violating Art. 55 para. 2 IHR, as WHO’s Principal Legal Officer, Dr. Steven Solomon, expressly pointed out. His legal opinion that Art. 55 para. 2 IHR can be derogated by the WGIHR’s status as a sub-committee of the WHA is legally invalid, because the IHR are part of WHO’s corpus iuris that cannot be changed at the discretion and convenience of a newly created Sub-Committee of the Assembly unless violating the rule of law. It is evident from the discussions at the 7^th meeting of the WGIHR, that they consciously and purposefully progress in violation of Art. 55 para. 2 IHR and negotiate until the approximate start of the Assembly.

Dr. Tedros, in your honourable function as Director-General, you undisputedly represent WHO and any conduct of a wrongful act is directly establishing WHO’s international responsibility without precluding any potential claims of your individual responsibility. As indicated, doing this in a lawful way in accordance with Art. 55 para. 2 IHR is no longer possible and publicly proclaiming that the IHR can be revised at the 77^th WHA is a conduct entailing responsibility on your side. Thereby, you also infringe your general duties as the Director-General of the WHO to ensure that the Organisation and its Secretariat act in accordance with the rule of international law.

Our Agency would like to end this letter with calling on you as the Director-General of the WHO and the Head of the WHO Secretariat to not present a draft resolution on the amendments of the IHR to the 77th WHA. Doing so would constitute an intentional violation of Art. 55, para. 2 IHR and can attract institutional and individual responsibility under the Draft Articles on the Responsibility of International Organisations and any other available mechanisms. Therefore, we urge you to immediately issue a clear command to the WGIHR and advise the public that the IHR amendments cannot be adopted at the 77^th WHA.

Sincerely, Dr. S. Behrendt

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