Between 29 November and 1 December 2021, member states are meeting in a special session with the World Health Organisation to discuss, possibly sign, a new treaty on pandemic preparedness and response.

The International Health Regulations (2005)[2] signed by 196 countries already provide States the legal right to:

“– review travel history in affected areas;

– review proof of medical examination and any laboratory analysis;

– require medical examinations;

– review proof of vaccination or other prophylaxis;

– require vaccination or other prophylaxis;

– place suspect persons under public health observation;

– implement quarantine or other health measures for suspect persons;

– implement isolation and treatment where necessary of affected persons;

– implement tracing of contacts of suspect or affected persons;

– refuse entry of suspect and affected persons;

– refuse entry of unaffected persons to affected areas; and

– implement exit screening and/or restrictions on persons from affected areas.”

In other words, all the measures applied round the world since 2020, including mandatory vaccination, are in effect legal under this former treaty.  In particular, it critically changes the definition of “quarantine”  from that in the 1969 IHR. There, it is used only in the expression “in quarantine” defined to be a “state or condition during which measures are applied by a health authority to a … means of transport or container, to prevent the spread of disease, reservoirs of disease or vectors of disease from the object of quarantine”.[3]

The 2005 revised IHR use the term by itself, and define it as “the restriction of activities and/or separation from others of suspect persons who are not ill or of suspect baggage, containers, conveyances or goods in such a manner as to prevent the possible spread of infection or contamination”. This represents a subtle but critical shift from protection of the community to restriction of individual liberties.

The implementation of quarantine and other coercive measures on all, including surveillance and vaccination, is legalized: the expression “suspect persons” criminalizes every individual, both healthy and unhealthy. Indeed, it covers anyone “considered by a State Party as having been exposed, or possibly exposed, to a public health risk and that could be a possible source of spread of disease”. Of significance is the use of “possibly” and “possible”, hence not just anyone definitely known to be a risk factor.

So why the need for a new treaty?

The answer was given by WHO Director-General Tedros Adhanom Ghebreyesus.  “It’s the one major change, Tedros said, that would do the most to boost global health security and also empower the World Health Organization.”[4]  The 2005 revised IHR  still leave some authority to States and require certain conditions for a health event in a particular State to be considered sufficiently serious globally for the State to be forced to communicate it to WHO.

Once communicated, it becomes the prerogative of the director general of WHO to determine whether it “constitutes a public health emergency”, but in collaboration with that particular State.  Although it should be added that in case of disagreement, the director general decides after consultation with the emergency committee of WHO, and passed a certain period no State can reject or emit reservations about the IHR or any later amendments.

Still, to some extent, measures implemented remain the result of a dialogue between  “IHR focal points” in each country and “WHO IHR contact points”.  What is particularly important is that the above listed measures, although rendered legal by the IHR, can under this treaty, only be recommended by the WHO, not imposed, and that it is up to the States to proceed towards their imposition, and to verify they are followed by means already existing in their respective countries.[5]

The new treaty would address the above “weaknesses” of the IHR as they are considered to be, by ensuring “independent verification, monitoring, and compliance”.  Given the clearly expressed end of empowering the WHO,  should one conclude that “independent” means under the authority of WHO rather than the States themselves?[6]

Further the IHR cover “public health hazards and public health emergencies of international concern”,  whereas the treaty will concern “all hazards”, not just pandemics.  In the latter case, it would take over from the IHR once a pandemic is officially declared by the WHO.[7]

This said, the treaty would presumably also make clear the idea expressed in the 2007 CDC “Interim Pre-pandemic planning guidance”,[8] namely overruling the need of a pandemic to implement restrictive measures.  All that would be needed would be for an event to be declared a “public health emergency of pandemic potential”.  Given that any future event is always hypothetical, does this enable the maintenance of the measures for an indeterminate period?

For it can always be claimed that a pandemic will occur especially were the measures lifted.   This raises many questions, all the more so as the event would no long need to be of “international concern as in the current IHR”. “Measures”, as advised, should also go beyond the current scope of IHR”, in particular to cover the production and supply of vaccines, diagnostics, and treatments”.[9]

The treaty would unlike the IHR also go beyond sanitary issues and allow the implementation of measures against “social and economic disruptions” as well as “broader disaster risk”.[10]

Would this in effect not only make it legal to put an end to criticisms, and thus to the freedom of expression, and make it possible to control any public antagonism against restrictive measures through “urgent international assistance”,[11] namely not just by national police or military forces, but international ones?

In short, as believed by Dr Valentina Kiseleva, an independent expert on bio-ethics and bio-security, would the treaty not provide the international legal framework for derogation from the civil and political rights guaranteed “even in time of emergency threatening the life of the nation” by The Syracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights drafted in 1984,[12] namely:

“the right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment, and from medical or scientific experimentation without free consent; freedom from slavery or involuntary servitude; the right not be be imprisoned for contractual debt; the right not to be convicted or sentenced to a heavier penalty by virtue of retroactive criminal legislation; the right to recognition as a person before the law; and freedom of thought, conscience and religion.  These rights are not derogable under any conditions even for the asserted purpose of preserving the life of the nation”?

For the Syracuse Principle only ensure that “No state party shall” in any circumstance “derogate from the Covenant’s” above guarantees”.  However, according to the new treaty, would the WHO, possibly together with the help of other international bodies, not become an occupying planetary power, with each State a collaborating subservient unit, like France in 1940, and hence without any power to ensure that non-derogable rights are protected?

Last but not least,  “[t]rying to revise the IHR would be a long process and take several years. … In addition, any amendment made to the IHR will enter into force only two years after its adoption. A world in crisis cannot afford to wait this long.”[13] Why such a rush to get the treaty ratified?

It should not be forgotten that among the main contributors of WHO are the Bill and Melinda Gates foundation and the vaccine alliance (GAVI)  it established in 2000 and whose initial funding it essentially provided – a “unique public-private partnership … bring[ing] together key UN agencies, governments, the vaccine industry, private sector and civil society”.[14]

References:

[1]https://apps.who.int/gb/ebwha/pdf_files/WHA74/A74_ACONF7-en.pdf

[2]https://www.who.int/health-topics/international-health-regulations#tab=tab_1

[3]https://www.who.int/csr/ihr/WHA58-en.pdf

[4]https://www.npr.org/sections/coronavirus-live-updates/2021/05/31/1001943709/the-time-has-come-for-a-global-pandemic-treaty-whos-tedros-says?utm_source=dailybrief&utm_medium=email&utm_campaign=DailyBrief2021Jun1&utm_term=DailyNewsBrief

[5]https://www.who.int/csr/ihr/WHA58-en.pdf

[6]https://blogs.bmj.com/bmj/2021/05/23/how-would-a-pandemic-treaty-relate-with-the-existing-ihr-2005/?utm_campaign=shareaholic&utm_medium=twitter&utm_source=socialnetwork&utm_term=DailyNewsBrief

[7]Ibid.

[8]https://www.centerforhealthsecurity.org/cbn/2007/cbnreport_02072007.html

[9]https://blogs.bmj.com/bmj/2021/05/23/how-would-a-pandemic-treaty-relate-with-the-existing-ihr-2005/?utm_campaign=shareaholic&utm_medium=twitter&utm_source=socialnetwork&utm_term=DailyNewsBrief

[10]Ibid.

[11]Ibid.

[12]https://www.icj.org/wp-content/uploads/1984/07/Siracusa-principles-ICCPR-legal-submission-1985-eng.pdf

[13]https://blogs.bmj.com/bmj/2021/05/23/how-would-a-pandemic-treaty-relate-with-the-existing-ihr-2005/?utm_campaign=shareaholic&utm_medium=twitter&utm_source=socialnetwork&utm_term=DailyNewsBrief

[14]https://www.gavi.org/history-gavi

Header image: REUTERS/Denis Balibouse

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