This four part series arose in response to hearing the following three claims concerning the pending amendments to the International Health Regulations (2005) submitted to the World Health Organization in January 2022.
The amendments are a threat to our sovereignty. Yes, but not in the way it is being conveyed.
They will usurp our Constitution. No.
If 2/3 of the member states vote to accept them, they apply to all. No.
Hearing these claims inspired me to dig into what laws governed us during Covid 19 as I had been incredulous over the plethora of responses ranging from near total freedom (Tanzania, Belarus, Florida) to complete totalitarian lockdown (California, Wisconsin, New Zealand, and even now in 2022, Shanghai.). This article is part II following part I, US Federal and State Responses to Covid 19 where I conclude that federal and state laws reigned supreme as explained herein.
Before plunging into the details of the amendments and the rationale behind them, let’s first have a look at what international law is, how we ensure the primacy of our domestic laws over any obligations contained in treaties and the specifics of the IHR (2005.) We’re going to shine a light on the often overlooked technical and regulatory functions of the WHO that are the real drivers of global pandemic response that are NOT included in the IHR directly, but whose activation in response to a declared pandemic trigger a mind boggling flow of funds for global corporate, NGO, private foundation and individual profit in Part III of the series.
Reminder: we signed the IHR treaty in 2005 and it has been in effect since 2007.
The Source of International Law is Contained in Treaties
Treaties are international law and are binding on the States that agree to be bound by them.
“…Although there is a wide and complex array of binding international legal sources, most international law today, including global health law, can be found in treaties. The word treaty is a generic term that encompasses all written instruments concluded between states by which states establish obligations by and among themselves. Treaties function essentially as contracts between states whereby states make binding written rules to govern their own conduct and the conduct of their individual and corporate nationals. When states become parties to treaties, they explicitly agree to limit their sovereign freedom of action in some respect to achieve mutually agreed-upon goals…” https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7150305/
The Vienna Convention Governs Treaty and Amendment Preparation and Protocol https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
The crafting of treaties - from preparing the language, who is qualified to participate in negotiating the language and in finalizing the language for presentation to States for review - is governed by the Vienna Convention, signed in 1969.
“…Treaties are also subject to a significant corpus of international law: the 1969 Vienna Convention on the Law of Treaties (the Vienna Convention). The Vienna Convention, the so-called law of treaties, provides general rules of treaty implementation and interpretation.” https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7150305/
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 in claim #3, above.
No State or majority is able to bind another State without its express consent.
From the UN: Does international treaty law impinge on a nation’s sovereignty?
To become 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. https://treaties.un.org/doc/source/events/2011/Press_kit/fact_sheet_1_english.pdf
What Governs the Adoption of a Treaty in the US?
From the US Department of State website https://www.state.gov/policy-issues/treaties-and-international-agreements/
“… The United States enters into more than 200 treaties and other international agreements each year. The subjects of treaties span the whole spectrum of international relations: peace, trade, defense, territorial boundaries, human rights, law enforcement, environmental matters, and many others. As times change, so do treaties. In 1796, the United States entered into the Treaty with Tripoli to protect American citizens from kidnapping and ransom by pirates in the Mediterranean Sea. In 2001, the United States agreed to a treaty on cybercrime.
The Office of the Assistant Legal Adviser for Treaty Affairs, within the Office of the Legal Adviser, provides guidance on all aspects of U.S. and international treaty law and practice. It manages the process under which the Department of State approves the negotiation and conclusion of all international agreements to which the U.S. will become a party. It also coordinates with the Senate Foreign Relations Committee on issues involving the Senate’s advice and consent to ratification of treaties…”
Also governing the adoption of a treaty: “…The Treaty Clause is the second clause of Article II, Section 2 of the United States Constitution that establishes the procedure for ratification of international agreements. It empowers the President of the United States as the primary negotiator of agreements between the United States and other countries, which, upon receiving the advice and consent of a two-thirds supermajority of the Senate, become binding with the force of federal law.” https://en.wikipedia.org/wiki/Treaty_Clause
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.
What IS the IHR (2005)?
194 member countries of the World Health Organization plus 2 nonmember 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 promptly report said event to the World Health Organization, and a commitment on the part of ratifying countries to strengthen national disease prevention, control and response internally.
The Regulations also outline the criteria to determine whether or not a particular event constitutes a “public health emergency of international concern” (PHEIC.) The IHR require countries to designate a National IHR Focal Point for communications with WHO, to establish and maintain core capacities for surveillance and response, including at designated points of entry. Additional provisions address the areas of international travel and transport such as the health documents required for international traffic. Finally, the IHR introduce important safeguards to protect the rights of travelers and other persons in relation to the treatment of personal data, informed consent and non-discrimination in the application of health measures.
Reservations and Understandings Included in Treaties By States
Reservations
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…”. https://apps.who.int/iris/rest/bitstreams/1031116/retrieve
A reservation is the decision of a State to not abide by some of the provisions of a treaty upon ratification. It is a declaration made by a state by which it purports to exclude or alter the legal effect of certain provisions of the treaty in their application to that State. https://nliu-cril.weebly.com/blog/reservation-in-international-treaties-a-double-edged-sword
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.
What all of the above means is that there is legally binding established protocol for treaty creation and adoption and amendment creation and adoption contained in the Vienna Convention. The adoption of the amendments to the IHR are governed by Articles 59-64 contained in the IHR which follow the established protocol of presentation to the State after the text has been agreed to be adopted by 2/3 of the Assembly. Each state may accept, reject, or accept with reservation. This process is directed by the US Department of State. In addition, the acceptance of amendments INCLUDES our reservations. There are also ‘Understandings’ included in our Reservation that will become important when we discuss the proposed amendments to the IHR.
Understandings
The US included understandings with the reservation in signing the IHR (2005.). Understandings are statements made by States regarding how they intend to interpret provisions contained in treaties.
“The Mission, by means of this note, also submits three understandings on behalf of the Government of the United States of America. The first understanding relates to the application of the IHRs to incidents involving natural, accidental or deliberate release of chemical, biological or radiological materials:
In view of the definitions of “disease,” “event,” and “public health emergency of international concern” as set forth in Article 1 of these Regulations, the notification requirements of Articles 6 and 7, and the decision instrument and guidelines set forth in Annex 2, the United States understands that States Parties to these Regulations have assumed an obligation to notify to WHO potential public health emergencies of international concern, irrespective of origin or source, whether they involve the natural, accidental or deliberate release of biological, chemical or radionuclear materials.
The second understanding relates to the application of Article 9 of the IHRs: Article 9 of these Regulations obligates a State Party “as far as practicable” to notify the World Health Organization (WHO) of evidence received by that State of a public health risk occurring outside of its territory that may result in the international spread of disease. Among other notifications that could prove to be impractical under this article, it is the United States' understanding that any notification that would undermine the ability of the U.S. Armed Forces to operate effectively in pursuit of U.S. national security interests would not be considered practical for purposes of this Article.
This understanding means that IF the United States obtains information regarding ANY potential ‘public health emergency of international concern,’ and IF the United States deems that said information would affect national security interests, we will NOT report it to the WHO.
The US will not cede our laws or matters we deem ‘of national security interest’ to the WHO.
Let’s revisit the three initial claims concerning the amendments to the International Health Regulations (2005.). The exact claims apply to the unamended IHR
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.
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.
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.
NEXT: Part III
The WHO’s Technical and Regulatory Functions in Managing a Public Health Emergency of International Concern … Or, Where the Bodies are Really Buried
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