A. The Article 59 IHRAs
This Article 59 IHRAs amend the 2005 IHRs (2005 3rd ED) and were adopted by the WHA on 27 May 2022. They propose reducing the timing for rejection or implementation of any future proposed IHRAs (from 18 to 10 months, and 24 to 12 months respectively):
Express rejection of the Article 59 IHRAs is required by 1 December 2023 (ie within 18 months of the adoption by the WHA or delivery by the DG).
The Article 59 IHRAs are of immediate concern otherwise the timeframe for rejecting future amendments, i.e. the substantial and significant 307 IHRAs, decreases from 18 months to 10 months. This timeframe for a country to consider future IHRAs will be difficult and ambitious, especially where the 307 IHRs require significant changes to NZ’s domestic laws, all of which will need to be considered.
These binding changes do not require express acceptance: acceptance is by acquiescence as per Article 22 of the WHO’s Constitution, which provides that Regulations adopted “shall come into force for all Members after due notice has been given of their adoption by the Health Assembly”.
Therefore, the only way to reject the Proposed IHRAs is for New Zealand to expressly do so, in writing, in accordance with 2005 IHRs Article 59, item 1.
B. The 307 IHRAs:
The 307 IHRAs are egregious in their amendments and achieve the above expressed concerns as follows:
1. The WHO’s Standing Recommendations will now be binding
Under the 307 IHRAs, the WHO is able to determine an international health concern (of the WHO’s choosing) and that decision and consequential decision about that emergency will have BINDING effect – that is, each Member State must comply with the WHO’s decisions.
Standing recommendations under the current 2005 IHRs are expressly stated to be “non-binding”, i.e. the WHO’s advice is recommendations or suggestions only – member states can choose to follow the recommendations or not.
The 307 IHRAs propose deleting the words non-binding in Article 1 inferring that standing recommendations will now be binding. There are other subsequent amendments in Articles 12, 42, 43 that suggest this interpretation is correct, that a member states will be bound to the WHO’s decisions. This is where the concerns arise that New Zealand will lose its sovereignty if the WHO gets to make decisions on our country’s behalf.
In Article 1, the deletion of the word non-binding’ infers that standing recommendations will be binding:
Similar changes proposed in Article 12 provides that if the Director-General considers an event is a potential or actual public health emergency of international concern, the State Party, in whose territory the event arises no longer has a say whether the Director-General’s determination is correct.
Article 12 proposes removing the State Party’s right to agree to the classification of the public health emergency by the WHO Director-General.
Article 42 proposes that certain WHO recommendations will have to be implemented without delay:
Article 43 grants the Emergency Committee final say on recommendations required to be implemented by a concerned Member State:
The proposed drafting expands the WHO’s scope and purpose for potential, not actual health risks (in Article 2 and see also Article 12 above). The WHO defines any potential health risk of international health concern (of the WHO’s choosing). This wording is so loose and could arguably be used for more than a pandemic (e.g. such health risks could include climate related issues).
2. Removal of individual human rights and choice for the common good concepts of equity and inclusivity
The WHO’s proposed principles will no longer be around individual human rights but rather equity and coherence. This is likely around the medical response to be adopted to an event, including which pharmaceuticals are to be administered and who is to receive them. See Article 3:
3. Health passports
Digital Passenger Locator Forms will require health passports detail pathogen testing and/or vaccination status. See proposed amendments to Articles 23 and 36:
For more information regarding the Global Digital Health Certification Network, available on the:
- WHO’s website, which was supplied by the New Zealand’s Ministry of Health in response to a request: https://www.who.int/initiatives/global-digital-health-certification-network
- WHO’s Global Initiative on Digital Health; and
- The European Commission and WHO launch landmark digital health initiative to strengthen global health security in June 2023.
- The European Parliament and Members States in early November 2024, reached agreement to introduce the Digital Identity.
4. The supply of peronal health information to the WHO
Member States will be required to share personal health information to the WHO, and the WHO has the power to share or withhold any information as it sees fit, see Articles 7 and 11:
5. There are a number of other amendments in the current draft of the 307 IHRAs where:
- The WHO may direct Member States give money to developing nations – Article 44A
- A new Compliance Committee – another new committee Article 53
- Expands the powers of each member state’s appointed National IHR Focal Point. New Zealand already has an unelected appointed National IFR Focal Point, namely the Office of the Director of Public Health in the Ministry of Health who at present is Dr Nicholas Jones.
The version of the 307 IHRAs that are publicly available are the ones circulated 17 December 2022.
Much work has been done since by the IHR Working Group. The IHR Review Committee is require to consider the 307 IHRAs before supplying the to the Director General mid January 2023 as per Decision WHA 75/9.
The Director General is then required to circulate the 307 IHRAs to all member states 4 months in advance of them being voted upon for adoption, which is scheduled for the 77th WHA (end of May 2024).