In the second of Susan Guest’s four-part in-depth investigation into the legal basis of the US state and federal responses to Covid-19, she examines the legal authority of the World Health Organisation and whether it is usurping the American constitution. You can read Part 1 here.
ABOUT five weeks ago I began to hear of a number of claims concerning the pending amendments to the International Health Regulations (2005) submitted to the World Health Organisation in January 2022. These were first, that the amendments are a threat to our sovereignty, second, that they will usurp our Constitution and third, if 2/3 of the member states vote to accept them, they apply to all.
My brief conclusion in response to the first is yes, they are, but not in the way it is being conveyed; and to the second and third, a simple no. My detailed explanation follows.
Before plunging into the details of the amendments and the rationale behind them, we need to look at what international law is and how the primacy of our domestic laws is ensured over any obligations contained in treaties and the specifics of the IHR (2005). Light also needs to be shone on the often overlooked technical and regulatory functions of the WHO. These are the real drivers of global pandemic response which are not included in the IHR directly, but whose activation in response to a declared pandemic triggers a mind-boggling flow of funds for global corporate, NGO, private foundation and individual profit – an account of which will follow in Part 3 of this series.
The US signed the IHR Treaty in 2005 and it has been in effect since 2007. As with all international law its source is contained in treaties and these are binding on the states that agree to be bound by them.
The crafting of treaties, from preparing the language to who is qualified to participate in negotiating the language and to finalising the language for presentation to States for review, is all governed by the Vienna Convention, signed in 1969.
The Vienna Convention states that adoption of the language of a treaty requires a simple majority vote if there are no objections to the language, and a 2/3 vote if there are objections. Once the language is adopted, the treaty is presented to states for adoption, rejection, and reservation. This ‘2/3 adoption’ of the text of a treaty was misunderstood as applying to adoption of a treaty as set out in the third of the claims made listed at the start of this piece. No state or majority is able to bind another state without its express consent.
The question of whether international treaty law can impinge on a nation’s sovereignty is clearly answered by the UN that states tobecome party to a treaty, a state must express, through a concrete act, its willingness to undertake the legal rights and obligations contained in the treaty – it must ‘consent to be bound’ by the treaty.
This brings us to the question of what governs the adoption of a treaty in the US?
I have found nothing to confirm or deny that ratification of the 2022 Amendments to the IHR will deviate from the process requiring a 2/3 majority vote from the Senate, though it is possible that the adoption of the IHR 2005 was signed by the President and did not receive approval of the Senate. Treaties may be adopted in this manner and are called Executive Agreements and carry the full force and weight of treaties. As with all my writing I actively encourage the provision of additional information as this entire process is disconcertingly opaque.
The next question is what exactly is the IHR (2005)?
194 member countries of the World Health Organisation plus two non-member countries are signatory to a document known as the International Health Regulations (2005). Among the purposes of the treaty are surveillance for early identification of health events that could have international consequences, a notification system to report said event to the World Health Organisation, and a commitment on the part of ratifying countries to strengthen national disease prevention, control and response internally.
When the United States agreed to be bound by the IHR (2005) it did so with the following reservation, commonly known as the Federalism Reservation:
‘The Government of the United States of America reserves the right to assume obligations under these Regulations in a manner consistent with its fundamental principles of federalism. With respect to obligations concerning the development, strengthening, and maintenance of the core capacity requirements set forth in Annex 1, these Regulations shall be implemented by the Federal Government or the state governments, as appropriate and in accordance with our Constitution, to the extent that the implementation of these obligations comes under the legal jurisdiction of the Federal Government. To the extent that such obligations come under the legal jurisdiction of the state governments, the Federal Government shall bring such obligations with a favorable recommendation to the notice of the appropriate state authorities.’
A reservation is the decision of a state to not abide by some of the provisions of a treaty.
Because the US included this Federalism Reservation, anything undertaken in the United States for purposes of implementing and abiding by IHR (2005) will be governed by federal law or state law as applicable. The Federalism Reservation is a direct statement that nothing in this treaty supersedes our own laws. We do not cede the sovereignty of our own laws and Constitution to any person or entity.
Let’s revisit the three initial claims concerning the amendments to the International Health Regulations (2005). The exact claims apply to the unamended IHR.
1. They cede our sovereignty to the WHO. They do, but only because we’ve agreed to build a surveillance, notification, and response to ‘public health emergencies of international concern’ that we have unequivocally stated will comport with our federal and state laws, and no other. Our ‘sovereignty is ceded’ because we would not have agreed to undergo such tremendous devotion of time, resources and money to this endeavor absent the treaty.
2. They supersede our Constitution. No. No State or majority of States can bind us to an international treaty that we did not follow international and domestic protocol for binding ourselves to, and we did so with the reservation that our laws reign supreme.
3. 2/3 of the attendees of the World Health Assembly, meeting May 22-28 2022 in Geneva, can bind us to the amendments. No. 2/3 of the Assembly will vote to adopt the language of the amendments that will be presented to States for adoption or rejection. Our reservations in the original IHR (2005) apply to amendments.
Part 3 will consider the WHO’s technical and regulatory functions in managing a public health emergency of international concern . . . or where the bodies are really buried.