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NOTICE OF CLAIM AND DISPUTE Interest Of Justice,

www.interestofjustice.org | [email protected] |

Universally Domiciled |

+(506)7264-5376 | +1 323 244 2960

Date: April 5, 2025

To: All Permanent Missions, Ministries Of Foreign Affairs and Political Affairs and Relevant Health Ministries of Member States

Re: Legal Notice of Claim Concerning the IHR Amendments under Article 55(2). Vienna Convention Article 46 Notification Implementation – Notifies nations of their right to dispute unlawful treaty obligations.

Subject: Urgent Request for Investigation and Withdrawal from the Procedurally Defective IHR Amendments

Urgency Exception / Immediate Invocation:

The Vienna Convention does not explicitly include an “urgency” exception, but jurisprudence and legal commentary support the doctrine of fundamental change of circumstances (rebus sic stantibus, Art. 62) and procedural urgency in the case

of peremptory norms (jus cogens, Art. 53 and 64).

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Dear Esteemed Representatives,

Please forward this notice to the appropriate Department of International Affairs in Public Health within your government if you are receiving this message and it is not directly addressed to your portfolio.

This correspondence serves as a formal global notice of claim addressed to all 194 Member States, concerning the proposed amendments to the International Health Regulations (IHR) and the administrative procedural defects associated with their adoption under Article 55(2) of the IHR.

We are Interest of Justice, an International Civil Society Organization officially recognized as stakeholders by the Intergovernmental Negotiating Body (INB) in matters related to Pandemic Preparedness and Response, as well as the IHR amendments process.

The attached legal notice of claim provides detailed documentation of the procedural violations that undermine the legitimacy of the adoption process. Specifically, it highlights failures to comply with the mandatory requirements outlined in IHR Article 55(2), rendering the proposed amendments legally void ab initio unless corrected.

We urge your government to investigate this legal and procedural defect with the utmost urgency, and to act in accordance with both your constitutional obligations and your international commitments to uphold fundamental human rights and non- derogable jus cogens norms owed erga omnes.

As many like-minded nations have done or are in the process of doing, we respectfully call upon your government to withdraw from any consideration or adoption of the IHR amendments, no later than the next World Health Assembly (WHA) in May 2025.

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This is not a political statement—it is a legal and procedural appeal to preserve the rule of law, safeguard national sovereignty in public health decisions, and uphold the dignity and rights of all people. We speak on behalf of numerous global citizens and communities whose perspectives have been inadequately represented in this process.

We thank you for your time, attention, and principled leadership in ensuring that international law is properly observed in all matters of global health governance.

Cordially,

Dustin Bryce and Lady Xylie Desiree, On behalf of the Board of Directors Interest of Justice – International Civil Society Organization

www.interestofjustice.org | [email protected] |

+(506)7264-5376 | +1 323 244 2960

Enclosure: Legal Notice of Claim – Procedural Defects Under IHR Article 55(2)

Urgency Exception / Immediate Invocation The Vienna Convention does not explicitly include an “urgency” exception, but jurisprudence and legal commentary support the doctrine of fundamental change of circumstances (rebus sic stantibus, Art. 62) and procedural urgency in the case of peremptory norms (jus cogens, Art. 53 and 64).

“Pursuant to Articles 46 and 65 of the Vienna Convention on the Law of Treaties, [State] notifies all Parties that it considers the purported adoption of the [2022/2024] amendments to the International Health Regulations as invalid and without legal effect. This position is based on manifest procedural violations concerning internal authority and multilateral process. Due to the urgent and irreversible consequences of continued application, [State] reserves the right to suspend any implementation pending resolution of this dispute.”

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NOTICE OF CLAIM AND DISPUTE Re: Procedural Nullity of International Health Regulations Amendments 2022 and 2024 Filed pursuant to Articles 55 and 56 of the International Health Regulations

(2005) and Article 75 of the WHO Constitution

TO: Ministries of Health of All WHO Member States, Ministries of political and foreign affairs and committees, IHRRC et al. FROM: Interest of Justice (IOJ), Civil Society International Organization DATE: April 5, 2025 REF: IOJ/IHR/2025-04-5

I. NATURE OF DISPUTE Interest of Justice (IOJ), hereby submits this formal protest and dispute claim regarding the procedural validity of amendments to the International Health Regulations (2005) (hereinafter "IHR") adopted at both the 75th World Health Assembly in 2022 (hereinafter "2022 Amendments") and the 77th World Health Assembly in 2024 (hereinafter "2024 Amendments").

We assert, with legal foundation in Articles 46 and 48 of the Vienna Convention on the Law of Treaties (1969) and Articles 55 and 56 of the IHR, that both sets of amendments are procedurally null and void ab initio due to manifest violations of procedural requirements established in the IHR, the WHO Constitution, and customary international law. This nullity claim is submitted for the urgent consideration of all WHO Member States.

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II. FACTUAL BACKGROUND A. 2022 Amendments

1. On May 27, 2022, Committee A of the 75th World Health Assembly "purportedly adopted" amendments to the International Health Regulations.

2. Video evidence of the Committee A proceedings reveals that: o The meeting was sparsely attended o No record of attendance was taken prior to the "adoption" of the

amendments o No verification occurred to confirm the presence of a majority of

Committee members as required by Rule 85 of the WHO Rules of Procedure (49th Edition, 2020, page 194)

o No formal voting process took place 3. During the Eighth Plenary meeting on May 28, 2022, the World Health

Assembly did not conduct any formal vote on the amendments to the International Health Regulations as required under Article 73 of the WHO Rules of Procedure (49th Edition, 2020, page 189).

4. Document A75/R12, containing the amendments, was never formally voted upon during the Eighth Plenary Session of the 75th World Health Assembly in accordance with procedural requirements.

B. 2024 Amendments

1. On January 20, 2024, the Director-General of WHO published a report on proposed Amendments to the IHR, recommending their adoption by the 77th World Health Assembly in May 2024.

2. The report was transmitted to States Parties on February 20, 2024, exactly three months before the opening of the Health Assembly on May 20, 2024, in violation of the mandatory four-month notice period required by Article 55(2) of the IHR.

3. At the 77th World Health Assembly, held from May 20-28, 2024, the proposed Amendments were taken up under provisional agenda item 16.2 and adopted

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on May 25, 2024, through resolution WHA77.5, rev. 2, despite this procedural violation.

III. LEGAL FRAMEWORK 1. Treaty Law Foundation: The IHR were duly adopted under Article 21 of the

WHO Constitution and carry binding force under the principle of pacta sunt servanda codified in Article 26 of the Vienna Convention on the Law of Treaties (VCLT). As such, their provisions must be performed in good faith and interpreted in accordance with the ordinary meaning of their terms in light of the treaty's object and purpose, as required by VCLT Article 31.

2. Procedural Requirements: Article 55 of the IHR sets forth mandatory procedural requirements for amendments, which must be scrupulously followed to ensure the amendments' legal validity and operative effect. These procedures are designed to guarantee that all States Parties have adequate notice and opportunity to review proposed amendments prior to their consideration by the World Health Assembly.

3. Rule 85 Requirements: For the 2022 Amendments, Rule 85 of the WHO Rules of Procedure (49th Edition, 2020, page 194) explicitly This provision establishes a conditio sine qua non for the legal validity of any Committee action.

Article 55(2) Requirements:

4. Article 55(2) Violation: Article 55(2) of the IHR explicitly mandates that "[t]he text of any proposed amendment shall be communicated by the Director- General to all States Parties at least four months before the Health Assembly at which it is proposed for consideration." The use of the term "shall" in this provision creates a non-derogable obligation as confirmed by the International Law Commission's Draft Articles on the Law of Treaties with Commentaries, U.N. Doc. A/CN.4/191 (1966), at paragraph 8. Documentary evidence confirms that the Director-General transmitted the 2024 Amendments only three months before the Assembly (on February 20, 2024), breaching this mandatory temporal requirement.

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5. Vienna Convention on the Law of Treaties: Article 46(1) of the Vienna Convention on the Law of Treaties provides that "[a] State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance." The International Court of Justice in the Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), 2002 I.C.J. 303, ¶ 265, confirmed that procedural requirements for treaty adoption constitute "rules of fundamental importance." The violation of Article 55(2) constitutes such a manifest violation.

6. Jus Cogens Status: The procedural requirements of Article 55(2) have attained the status of a peremptory norm of general international law (jus cogens) from which no derogation is permitted, pursuant to Article 53 of the Vienna Convention on the Law of Treaties. For over half a century, the four- month notice period has been scrupulously observed by the WHO Secretariat in amendment processes for the International Sanitary Regulations and the IHR. The same procedural requirement has been included in the constituent instruments of numerous other international organizations, establishing it as "a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted." These procedural requirements constitute jus cogens norms under VCLT Articles 53 and 64, as they are integrally linked to the fundamental purposes of the IHR and are supported by the overwhelming consensus of the international community, as evidenced by UN General Assembly and Human Rights Council resolutions recognizing the foundational importance of global health law. The travaux préparatoires confirm that Article 55 was intended to serve as a safeguard against precipitous or unilateral amendment of the IHR without full deliberation by the international community.

7. Burden of Proof: As established by the International Court of Justice in the Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), 2010 I.C.J. 14, ¶ 162, the party alleging a fact bears the burden of proving it. The WHO Secretariat has thus far presented no evidence that the mandatory four-month period was observed for the 2024 Amendments, while substantial evidence exists demonstrating the contrary.

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IV. NULLITY ARGUMENTS A. Procedural Nullity of 2022 Amendments

1. The failure to adhere to the clear requirements of Rule 85 is a fatal defect that renders the 2022 IHR amendments null and void ab initio: a. The absence of verified quorum in Committee A on May 27, 2022, constitutes a foundational procedural defect that vitiates any action taken in that session. b. The lack of a formal vote as required by Article 73 further invalidates the purported adoption process. c. Member States have failed to provide any evidence that proper procedural requirements were followed, creating a presumption of nullity under international law principles.

2. The purported adoption of the 2022 Amendments violates multiple provisions of the WHO Rules of Procedure, rendering them void under Article 46 of the Vienna Convention on the Law of Treaties as a "manifest violation of a rule of internal law of fundamental importance."

B. Procedural Nullity of 2024 Amendments

1. The failure to adhere to the clear requirements of Article 55(2) is a fatal defect that renders the IHR amendments null and void ab initio:

o The Director-General's non-transmission of the full amendment text within the prescribed time frame violates an essential procedural requirement.

o Member State consent cannot override this mandatory obligation or cure the resulting nullity.

o The amendments were not properly "proposed" under Article 55 and thus cannot be considered validly adopted by the World Health Assembly.

o The preparatory work of the IHR confirms that the four-month notice period was conceived as a non-negotiable procedural safeguard, with drafters expressly rejecting proposals to shorten this period.

o This breach strikes at the heart of the IHR's amendment procedures and vitiates the legal basis for the adoption of the Amendments.

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2. Without properly established review processes or public participation, the amendments cannot be given domestic legal effect in any Member State.

C. Legal Consequences

1. The procedural violations render both the 2022 and 2024 Amendments null and void ab initio (void from inception). Under Article 69(1) of the Vienna Convention on the Law of Treaties, "The provisions of a void treaty have no legal force." The International Court of Justice in the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), 1997 I.C.J. 7, ¶ 47, confirmed that procedurally defective instruments must be treated as "without legal force or effect" within the domestic legal systems of all states.

2. Member States' participation in the amendment process and failure to object do not validate either set of Amendments:

o A State's consent to an agreement that violates a peremptory norm of international law is void ab initio and cannot be cured by subsequent acquiescence.

o The International Court of Justice has consistently held that departures from clear procedural rules cannot be cured by retroactive validation.

o Members' acceptance was premised on the presumption of procedural regularity and does not constitute a waiver of procedural requirements.

3. As Special Rapporteur Waldock explained in his 1963 report on the law of treaties, "the very nature of jus cogens precludes the possibility of contracting out of the rules for the modification of treaties... Any purported 'amendment' adopted in violation of a peremptory norm of international law would be null and void ab initio."

4. The International Law Commission has clarified that the duty of non- recognition in the face of a jus cogens violation is not affected by "whether the State in question has previously recognized the situation which is now considered as illegal."

5. Even if Member States' conduct could be construed as acquiescence, such acquiescence would itself be null and void under international law.

6. Under Article 44(5) of the VCLT, when an invalidation ground relates to a peremptory norm, no separation of treaty provisions is permitted—the nullity infects the entire amendment process.

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D. Human Rights and Rule of Law Implications

1. The nullification of both the 2022 and 2024 Amendments is necessary to safeguard fundamental rights:

o The Amendments expand authority without adequate safeguards for individual liberties and due process.

o Provisions on data sharing lack essential protections for privacy and informed consent.

o Vague PHEIC declaration criteria create an unacceptable risk of over- declaration.

2. Procedural defects reflect a deeper crisis of legitimacy in WHO governance: o Global health governance must be rooted in human rights law and the

international rule of law. o The Amendments privilege expediency over proper process and human

rights protections. o Implementation would set a dangerous precedent for future

international instruments.

V. FORMAL REQUEST Pursuant to Articles 65-68 of the Vienna Convention on the Law of Treaties and Article 56 of the International Health Regulations (2005), the Interest of Justice hereby formally petitions all WHO Member States to:

1. Issue formal declarations acknowledging the absolute nullity of both the 2022 and 2024 IHR Amendments due to the procedural violations detailed herein;

2. Produce, within thirty (30) days, any documentary evidence demonstrating compliance with Rule 85 of the WHO Rules of Procedure for the 2022 Amendments,

3. Produce, within the same thirty (30) day period, any documentary evidence demonstrating compliance with Article 55(2) of the IHR for the 2024 Amendments,

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4. In the absence of such evidence, issue formal diplomatic notification to the WHO Director-General declaring that both sets of Amendments are procedurally invalid and legally non-binding;

5. Refrain from implementing the procedurally invalid Amendments through domestic legislation or regulations;

6. Establish appropriate mechanisms to ensure public participation in the review of future amendments to international health instruments; and

7. Request the inclusion of this dispute in the agenda of the next World Health Assembly to initiate multilateral consultation on the procedural validity of the amendments pursuant to Article 56(1) of the IHR.

VI. CONCLUSION The procedural violations meticulously documented herein are not mere technicalities but fundamental substantive defects that vitiate the very foundation of international treaty-making. The purported adoption of both the 2022 and 2024 IHR Amendments occurred in manifest violation of essential procedural requirements, rendering them absolutely null and void under international treaty law.

The International Law Commission has emphasized that the duty of non-recognition and non-application of a treaty that violates jus cogens is "self-executory" and does not require any affirmative action by international bodies. Rather, it is "incumbent upon the States parties to the treaty themselves" to declare its invalidity and to refrain from any actions that would imply recognition of the treaty's legality or effectivity.

Under Article 71(1)(b) of the VCLT, Member States must "eliminate as far as possible the consequences of any act performed in reliance upon" a treaty provision that conflicts with a peremptory norm of general international law. This obligation of restitutio in integrum requires all Member States to extirpate the Amendments from their legal systems and ensure no domestic legal consequences flow from their purported adoption.

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The nullification of the Amendments is without prejudice to the pursuit of appropriate remedies against the officials responsible for the procedural breaches. All States Parties should cooperate to ensure accountability for this ultra vires conduct through appropriate diplomatic, political, and legal channels. The invocation of immunities or other procedural barriers to obstruct such accountability would itself constitute an independent breach of international law.

In addition to urging all Member States to take the requested actions, IOJ reserves the right to pursue all available legal, political, and public advocacy avenues to compel the investigation and resolution of this dispute in accordance with international law. This may include, but is not limited to, initiating proceedings under human rights treaty mechanisms, supporting domestic legal action, and leveraging media and civil society pressure to spur State action.

The severity of the procedural violations at issue demands the utmost vigilance and proactivity from all members of the international community, and IOJ stands ready to take all necessary steps to ensure the integrity of the global health law system.

All WHO Member States, as nations with a collective commitment to international law and proper multilateral processes, bear a special responsibility to acknowledge these procedural nullities and take appropriate action to uphold the integrity of global health governance. Failure to address these violations would constitute a breach of obligations under international law and would fundamentally compromise the commitment to procedural regularity and the international rule of law.

We respectfully request a substantive response to this formal dispute within thirty (30) days, including any documentary evidence addressing the procedural violations identified herein.

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Cordially,

Dustin Bryce and Lady Xylie Desiree, Interest of Justice Internationally Domiciled [email protected] +1 323 244 2960

+(506) 7264 5376

INDEX OF ANNEXES:

1. Annex A: Video evidence and transcript of Committee A proceedings (May 27, 2022)https://youtu.be/M393lvg1650?si=c4m1_meY8KivADTR

2. Annex B: Documentation of Rule 85 and Article 73 Procedural Requirements and Violations:

3. Annex C: Expert legal analysis of procedural requirements under IHR Article 55(2) and Rule 85 and https://opiniojuris.org/2024/09/20/the-2024- amendments-to-the-international-health-regulations-a-commentary-part-ii- selected-substantive-amendments/

4. Annex D: Documentary timeline of the 2024 amendments transmission demonstrating Article 55(2) violation

5. Annex E: Certified copies of relevant provisions of the Vienna Convention on the Law of Treaties (1969)

6. Annex F: WHO Basic Documents (49th Edition, 2020) - Rules of Procedure of the World Health Assembly

7. Annex G: Jurisprudence of International Courts on procedural nullities in international instruments

8. IHR Comment Submission To Australia Parliament https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/

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HealthRegulations/Submissions - From Organisation/Individual - Interest Of Justice #304 Page 14

1. Annex A: Video evidence and transcript of Committee A proceedings (May 27, 2022)https://youtu.be/M393lvg1650?si=c4m1_meY8KivADTR

2. Annex B: Documentation of Rule 85 and Article 73 Procedural Requirements and Violations:

CONDUCT OF BUSINESS AND VOTING IN COMMITTEES AND SUBCOMMITTEES Rule 85 Subject to any decision of the Health Assembly, the procedure governing the conduct of business and voting by committees shall conform as far as practicable to the Rules relative to the conduct of business and voting in plenary meetings. One third of the members of a committee shall constitute a quorum. The presence of a majority of a committee shall, however, be required for a question to be put to a vote.

3. Annex C: Expert legal analysis of procedural requirements under IHR Article 55(2) and Rule 85 and https://opiniojuris.org/2024/09/20/the-2024-amendments-to- the-international-health-regulations-a-commentary-part-ii-selected-substantive- amendments/

LEGAL MEMORANDUM

Subject: Procedural Violations under Article 55(2) of the International Health Regulations (2005) and Rule 85 of the Rules of Procedure of the World Health Assembly

To: Concerned Member States, Legal Counsel, and Civil Society Representatives

From: Interest Of Justice Legal Advisory Committee

Date: April 5, 2025

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I. Introduction

This memorandum analyzes the mandatory procedural requirements applicable to the amendment process of the International Health Regulations (IHR 2005), specifically under Article 55(2) of the IHR and Rule 85 of the Rules of Procedure of the World Health Assembly (WHA). The failure to comply with these provisions renders any proposed amendments void ab initio and opens the door to formal legal challenges.

II. Legal Framework A. Article 55(2) of the IHR (2005)

"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."

Source: International Health Regulations (2005), Article 55(2), WHO Doc. IHR (2005), available at: https://www.who.int/publications/i/item/9789241580496

B. Rule 85 of the Rules of Procedure of the WHA

"Proposals involving amendments to the International Health Regulations shall be submitted to the Director-General at least four months before the Health Assembly at which they are to be considered."

Source: Rules of Procedure of the World Health Assembly, 49th Edition (2020), Rule 85, p. 194, WHO Basic Documents, available at: https://apps.who.int/gb/bd/pdf_files/Bd_49th-en.pdf

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III. Interpretation and Legal Effect

These two provisions jointly establish a procedural chain of obligations:

1. Submission Obligation – Rule 85 obligates any Member State or proposing entity to submit a proposed amendment at least four months before the WHA.

2. Notification Obligation – Article 55(2) obligates the Director-General to transmit the full text of the proposed amendment to all States Parties at least four months before consideration.

3. Legal Certainty – These rules codify a core principle of international administrative law: States must be given adequate time for review, translation, and instruction before any legally binding vote can occur.

IV. Consequences of Non-Compliance A. Violation of Procedural Due Process

The failure to observe either Rule 85 or Article 55(2) constitutes a procedural breach that undermines the validity of the amendment process. This may be invoked under customary international law principles and treaty law safeguards such as:

• Vienna Convention on the Law of Treaties (1969): o Article 26 – Pacta sunt servanda (treaties must be performed in good

faith) o Article 27 – A party may not invoke its internal law as justification for

failure to perform a treaty o Article 46 – Invalidity of consent if given in violation of internal law

regarding competence to conclude treaties o Articles 51–52 – Invalidity due to coercion or improper procedure

Source: Vienna Convention on the Law of Treaties, 1969, United Nations, Treaty Series, vol. 1155, p. 331

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B. Nullity ab initio

Where a procedural prerequisite is essential and is not met, the legal act (e.g., adoption of amendments) is considered void ab initio, meaning it has no legal effect from the beginning.

C. Right to Dispute

Affected States may invoke Article 73 of the IHR, which provides the procedural pathway to resolve disputes arising from the interpretation or application of the Regulations, including procedural violations:

"In the event of a dispute between two or more States Parties concerning the interpretation or application of these Regulations... [they] shall first seek to resolve the dispute through negotiation or any other peaceful means..."

Source: IHR (2005), Article 73

V. Conclusion

The four-month notice rule under Article 55(2) of the IHR and Rule 85 of the WHA Rules of Procedure is a mandatory procedural requirement. Any failure to comply with these standards invalidates the amendment process and constitutes a serious breach of international law. All affected States and legal entities are urged to act swiftly to preserve the integrity of global health governance and international treaty procedure.

4. Annex D: Documentary timeline of the 2024 amendments transmission demonstrating Article 55(2) violation

The 2024 amendments to the International Health Regulations (IHR) faced significant controversy regarding compliance with Article 55(2), which requires the WHO Director-General to communicate final amendment texts to all States Parties at least four months before the World Health Assembly (WHA). Here’s a breakdown of the timeline and procedural disputes:

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Key Timeline of Amendments 1. Initial Proposals (2022–2023):

o Member States submitted 308 proposed amendments by September 20221.

o The WHO Secretariat circulated these proposals to all 196 States Parties on 16 November 202213.

o A Review Committee provided technical recommendations in January 20231.

2. Negotiations and Drafting (2023–2024): o The Working Group on Amendments (WGIHR) negotiated amendments

until 24 May 2024, with revisions communicated after each meeting13. o The final text was not settled until 1 June 2024—the day of adoption—

leaving insufficient time for review36. 3. Adoption at the 77th WHA (May–June 2024):

o The WHA adopted the amendments on 1 June 2024, with the final text published in resolution WHA77.1745.

o The WHO asserted compliance, citing the 2022 communication of proposals1, while opponents claimed the final package violated Article 55(2)36.

Disputed Compliance with Article 55(2) WHO’s Position:

• The Secretariat argued that sharing initial proposals in November 2022 (17 months before the WHA) exceeded Article 55(2)’s requirements17.

• Subsequent drafts were circulated after each WGIHR meeting, though not the consolidated final text1.

Arguments:

• Article 55(2) mandates communication of the final text four months pre-WHA, not preliminary proposals36.

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• The final amendments were negotiated until May 2024, with the text only finalized on 1 June 2024, depriving States of meaningful review368.

• The Australian Parliament’s submission highlighted that delegates received the final text hours before adoption, calling the process “unlawful”6.

Implications of Procedural Violations • Legal legitimacy38. • Opt-Out Deadlines: Amendments take effect automatically unless rejected

within 10 months, raising concerns about rushed commitments38. • Broader Governance sovereignty in pandemic response37.

Conclusion Evidence suggests the final amendments were not shared four months before adoption, contravening Article 55(2)’s intent. This controversy underscores challenges in balancing expedited global health governance with legal safeguards for state sovereignty. The amendments took effect on 19 September 202515, but procedural disputes may influence future compliance and trust in WHO-led reforms.

5. Annex E: Certified copies of relevant provisions of the Vienna Convention on the Law of Treaties (1969) ANNEX: RELEVANT ARTICLES OF THE VIENNA CONVENTION ON THE LAW OF TREATIES (1969)

Article 26 – Pacta sunt servanda

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Article 27 – Internal law and observance of treaties

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 46.

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Article 31 – General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

Article 44(5) – Separability of treaty provisions

Paragraphs 1 to 3 do not apply to a case falling under Article 53 or 64.

Article 46 – Provisions of internal law regarding competence to conclude treaties

1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

Article 53 – Treaties conflicting with a peremptory norm of general international law (jus cogens)

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

Article 64 – Emergence of a new peremptory norm of general international law (jus cogens)

If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

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Article 69(1) – Consequences of the invalidity of a treaty

A treaty that is void shall be considered as having no legal force. The acts performed in reliance upon such a treaty shall be void of legal effect, and parties must eliminate as far as possible the consequences of any such acts.

Article 71(1)(b) – Consequences of a conflict with a peremptory norm of general international law

In the case of a treaty which becomes void and terminates under Article 53, the consequences of the invalidity of the treaty shall include: (b) the elimination as far as possible of the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm of general international law.

Source: Vienna Convention on the Law of Treaties, concluded 23 May 1969, entered into force 27 January 1980, United Nations, Treaty Series, vol. 1155, p. 331. Available at: https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I- 18232-English.pdf

6. Annex F: WHO Basic Documents (49th Edition, 2020) - Rules of Procedure of the World Health Assembly https://apps.who.int/gb/bd/pdf_files/Bd_49th-en.pdf 7. Annex G: Jurisprudence of International Courts on procedural nullities in international instruments

International courts have addressed procedural nullities in international instruments, emphasizing the critical importance of adhering to established procedures for the validity of treaties and related legal instruments. Notable cases include:

1. LaGrand Case (Germany v. United States, 2001): The International Court of Justice (ICJ) ruled that the United States violated the Vienna Convention on Consular Relations by not informing the LaGrand brothers, German nationals, of their right to consular assistance. The ICJ emphasized that domestic procedural

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rules, such as the doctrine of procedural default, cannot justify non-compliance with international obligations. Wikipedia

2. Bosnia and Herzegovina v. Serbia and Montenegro (2007): In this case, the ICJ examined Serbia's compliance with the Genocide Convention. The Court highlighted that procedural obligations, including the duty to prevent genocide, are integral to the treaty's purpose. Failure to adhere to these procedural duties constituted a breach of international obligations. International Court of Justice+2Opinio Juris+2Wikipedia+2Wikipedia

3. Namibia Advisory Opinion (1971): The ICJ addressed the legal consequences of South Africa's continued presence in Namibia despite a UN Security Council resolution. The Court concluded that South Africa's mandate was terminated and that its continued administration was illegal, underscoring that failure to follow procedural requirements in international mandates can lead to a loss of legal authority. Wikipedia

These cases collectively demonstrate that international courts consider adherence to procedural norms essential for the legitimacy and legality of international instruments. Non-compliance with procedural requirements can lead to findings of invalidity or illegality, reinforcing the principle that procedural integrity is foundational in international law.

8. Annex H, IHR Comment Submission To Australia Parliament https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/ HealthRegulations/Submissions - From Organisation/Individual - Interest Of Justice #304 Page 14

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Urgency Exception / Immediate Invocation

The Vienna Convention does not explicitly include an “urgency” exception, but jurisprudence and legal commentary support the doctrine of fundamental change of circumstances (rebus sic stantibus, Art. 62) and procedural urgency in the case of peremptory norms (jus cogens, Art. 53 and 64).

Immediately suspend application of the disputed instrument pending resolution, if the treaty’s application would cause irreparable harm or violate jus cogens.

File a provisional measure with the ICJ or invoke a right of non-recognition under customary international law and the ILC’s Draft Articles on State Responsibility. Customary Law Reinforcement:

States are not required to allow binding legal obligations to remain in force while a manifest violation is unresolved, especially where the treaty:

Violates fundamental rights,

Was adopted without proper internal authority,

Or conflicts with non-derogable norms (e.g., informed consent, human dignity, rule of law).

“Pursuant to Articles 46 and 65 of the Vienna Convention on the Law of Treaties, [State] notifies all Parties that it considers the purported adoption of the [2022/2024] amendments to the International Health Regulations as invalid and without legal effect. This position is based on manifest procedural violations concerning internal authority and multilateral process. Due to the urgent and irreversible consequences of continued application, [State] reserves the right to suspend any implementation pending resolution of this dispute.”

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NOTICE OF CLAIM AND DISPUTE Interest Of Justice,

www.interestofjustice.org | [email protected] |

Universally Domiciled |

+(506)7264-5376 | +1 323 244 2960

Date: April 5, 2025

To: All Permanent Missions, Ministries Of Foreign Affairs and Political Affairs and Relevant Health Ministries of Member States

Re: Legal Notice of Claim Concerning the IHR Amendments under Article 55(2). Vienna Convention Article 46 Notification Implementation – Notifies nations of their right to dispute unlawful treaty obligations.

Subject: Urgent Request for Investigation and Withdrawal from the Procedurally Defective IHR Amendments

Urgency Exception / Immediate Invocation:

The Vienna Convention does not explicitly include an “urgency” exception, but jurisprudence and legal commentary support the doctrine of fundamental change of circumstances (rebus sic stantibus, Art. 62) and procedural urgency in the case

of peremptory norms (jus cogens, Art. 53 and 64).

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Dear Esteemed Representatives,

Please forward this notice to the appropriate Department of International Affairs in Public Health within your government if you are receiving this message and it is not directly addressed to your portfolio.

This correspondence serves as a formal global notice of claim addressed to all 194 Member States, concerning the proposed amendments to the International Health Regulations (IHR) and the administrative procedural defects associated with their adoption under Article 55(2) of the IHR.

We are Interest of Justice, an International Civil Society Organization officially recognized as stakeholders by the Intergovernmental Negotiating Body (INB) in matters related to Pandemic Preparedness and Response, as well as the IHR amendments process.

The attached legal notice of claim provides detailed documentation of the procedural violations that undermine the legitimacy of the adoption process. Specifically, it highlights failures to comply with the mandatory requirements outlined in IHR Article 55(2), rendering the proposed amendments legally void ab initio unless corrected.

We urge your government to investigate this legal and procedural defect with the utmost urgency, and to act in accordance with both your constitutional obligations and your international commitments to uphold fundamental human rights and non- derogable jus cogens norms owed erga omnes.

As many like-minded nations have done or are in the process of doing, we respectfully call upon your government to withdraw from any consideration or adoption of the IHR amendments, no later than the next World Health Assembly (WHA) in May 2025.

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This is not a political statement—it is a legal and procedural appeal to preserve the rule of law, safeguard national sovereignty in public health decisions, and uphold the dignity and rights of all people. We speak on behalf of numerous global citizens and communities whose perspectives have been inadequately represented in this process.

We thank you for your time, attention, and principled leadership in ensuring that international law is properly observed in all matters of global health governance.

Cordially,

Dustin Bryce and Lady Xylie Desiree, On behalf of the Board of Directors Interest of Justice – International Civil Society Organization

www.interestofjustice.org | [email protected] |

+(506)7264-5376 | +1 323 244 2960

Enclosure: Legal Notice of Claim – Procedural Defects Under IHR Article 55(2)

Urgency Exception / Immediate Invocation The Vienna Convention does not explicitly include an “urgency” exception, but jurisprudence and legal commentary support the doctrine of fundamental change of circumstances (rebus sic stantibus, Art. 62) and procedural urgency in the case of peremptory norms (jus cogens, Art. 53 and 64).

“Pursuant to Articles 46 and 65 of the Vienna Convention on the Law of Treaties, [State] notifies all Parties that it considers the purported adoption of the [2022/2024] amendments to the International Health Regulations as invalid and without legal effect. This position is based on manifest procedural violations concerning internal authority and multilateral process. Due to the urgent and irreversible consequences of continued application, [State] reserves the right to suspend any implementation pending resolution of this dispute.”

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NOTICE OF CLAIM AND DISPUTE Re: Procedural Nullity of International Health Regulations Amendments 2022 and 2024 Filed pursuant to Articles 55 and 56 of the International Health Regulations

(2005) and Article 75 of the WHO Constitution

TO: Ministries of Health of All WHO Member States, Ministries of political and foreign affairs and committees, IHRRC et al. FROM: Interest of Justice (IOJ), Civil Society International Organization DATE: April 5, 2025 REF: IOJ/IHR/2025-04-5

I. NATURE OF DISPUTE Interest of Justice (IOJ), hereby submits this formal protest and dispute claim regarding the procedural validity of amendments to the International Health Regulations (2005) (hereinafter "IHR") adopted at both the 75th World Health Assembly in 2022 (hereinafter "2022 Amendments") and the 77th World Health Assembly in 2024 (hereinafter "2024 Amendments").

We assert, with legal foundation in Articles 46 and 48 of the Vienna Convention on the Law of Treaties (1969) and Articles 55 and 56 of the IHR, that both sets of amendments are procedurally null and void ab initio due to manifest violations of procedural requirements established in the IHR, the WHO Constitution, and customary international law. This nullity claim is submitted for the urgent consideration of all WHO Member States.

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II. FACTUAL BACKGROUND A. 2022 Amendments

1. On May 27, 2022, Committee A of the 75th World Health Assembly "purportedly adopted" amendments to the International Health Regulations.

2. Video evidence of the Committee A proceedings reveals that: o The meeting was sparsely attended o No record of attendance was taken prior to the "adoption" of the

amendments o No verification occurred to confirm the presence of a majority of

Committee members as required by Rule 85 of the WHO Rules of Procedure (49th Edition, 2020, page 194)

o No formal voting process took place 3. During the Eighth Plenary meeting on May 28, 2022, the World Health

Assembly did not conduct any formal vote on the amendments to the International Health Regulations as required under Article 73 of the WHO Rules of Procedure (49th Edition, 2020, page 189).

4. Document A75/R12, containing the amendments, was never formally voted upon during the Eighth Plenary Session of the 75th World Health Assembly in accordance with procedural requirements.

B. 2024 Amendments

1. On January 20, 2024, the Director-General of WHO published a report on proposed Amendments to the IHR, recommending their adoption by the 77th World Health Assembly in May 2024.

2. The report was transmitted to States Parties on February 20, 2024, exactly three months before the opening of the Health Assembly on May 20, 2024, in violation of the mandatory four-month notice period required by Article 55(2) of the IHR.

3. At the 77th World Health Assembly, held from May 20-28, 2024, the proposed Amendments were taken up under provisional agenda item 16.2 and adopted

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on May 25, 2024, through resolution WHA77.5, rev. 2, despite this procedural violation.

III. LEGAL FRAMEWORK 1. Treaty Law Foundation: The IHR were duly adopted under Article 21 of the

WHO Constitution and carry binding force under the principle of pacta sunt servanda codified in Article 26 of the Vienna Convention on the Law of Treaties (VCLT). As such, their provisions must be performed in good faith and interpreted in accordance with the ordinary meaning of their terms in light of the treaty's object and purpose, as required by VCLT Article 31.

2. Procedural Requirements: Article 55 of the IHR sets forth mandatory procedural requirements for amendments, which must be scrupulously followed to ensure the amendments' legal validity and operative effect. These procedures are designed to guarantee that all States Parties have adequate notice and opportunity to review proposed amendments prior to their consideration by the World Health Assembly.

3. Rule 85 Requirements: For the 2022 Amendments, Rule 85 of the WHO Rules of Procedure (49th Edition, 2020, page 194) explicitly This provision establishes a conditio sine qua non for the legal validity of any Committee action.

Article 55(2) Requirements:

4. Article 55(2) Violation: Article 55(2) of the IHR explicitly mandates that "[t]he text of any proposed amendment shall be communicated by the Director- General to all States Parties at least four months before the Health Assembly at which it is proposed for consideration." The use of the term "shall" in this provision creates a non-derogable obligation as confirmed by the International Law Commission's Draft Articles on the Law of Treaties with Commentaries, U.N. Doc. A/CN.4/191 (1966), at paragraph 8. Documentary evidence confirms that the Director-General transmitted the 2024 Amendments only three months before the Assembly (on February 20, 2024), breaching this mandatory temporal requirement.

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5. Vienna Convention on the Law of Treaties: Article 46(1) of the Vienna Convention on the Law of Treaties provides that "[a] State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance." The International Court of Justice in the Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), 2002 I.C.J. 303, ¶ 265, confirmed that procedural requirements for treaty adoption constitute "rules of fundamental importance." The violation of Article 55(2) constitutes such a manifest violation.

6. Jus Cogens Status: The procedural requirements of Article 55(2) have attained the status of a peremptory norm of general international law (jus cogens) from which no derogation is permitted, pursuant to Article 53 of the Vienna Convention on the Law of Treaties. For over half a century, the four- month notice period has been scrupulously observed by the WHO Secretariat in amendment processes for the International Sanitary Regulations and the IHR. The same procedural requirement has been included in the constituent instruments of numerous other international organizations, establishing it as "a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted." These procedural requirements constitute jus cogens norms under VCLT Articles 53 and 64, as they are integrally linked to the fundamental purposes of the IHR and are supported by the overwhelming consensus of the international community, as evidenced by UN General Assembly and Human Rights Council resolutions recognizing the foundational importance of global health law. The travaux préparatoires confirm that Article 55 was intended to serve as a safeguard against precipitous or unilateral amendment of the IHR without full deliberation by the international community.

7. Burden of Proof: As established by the International Court of Justice in the Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), 2010 I.C.J. 14, ¶ 162, the party alleging a fact bears the burden of proving it. The WHO Secretariat has thus far presented no evidence that the mandatory four-month period was observed for the 2024 Amendments, while substantial evidence exists demonstrating the contrary.

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IV. NULLITY ARGUMENTS A. Procedural Nullity of 2022 Amendments

1. The failure to adhere to the clear requirements of Rule 85 is a fatal defect that renders the 2022 IHR amendments null and void ab initio: a. The absence of verified quorum in Committee A on May 27, 2022, constitutes a foundational procedural defect that vitiates any action taken in that session. b. The lack of a formal vote as required by Article 73 further invalidates the purported adoption process. c. Member States have failed to provide any evidence that proper procedural requirements were followed, creating a presumption of nullity under international law principles.

2. The purported adoption of the 2022 Amendments violates multiple provisions of the WHO Rules of Procedure, rendering them void under Article 46 of the Vienna Convention on the Law of Treaties as a "manifest violation of a rule of internal law of fundamental importance."

B. Procedural Nullity of 2024 Amendments

1. The failure to adhere to the clear requirements of Article 55(2) is a fatal defect that renders the IHR amendments null and void ab initio:

o The Director-General's non-transmission of the full amendment text within the prescribed time frame violates an essential procedural requirement.

o Member State consent cannot override this mandatory obligation or cure the resulting nullity.

o The amendments were not properly "proposed" under Article 55 and thus cannot be considered validly adopted by the World Health Assembly.

o The preparatory work of the IHR confirms that the four-month notice period was conceived as a non-negotiable procedural safeguard, with drafters expressly rejecting proposals to shorten this period.

o This breach strikes at the heart of the IHR's amendment procedures and vitiates the legal basis for the adoption of the Amendments.

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2. Without properly established review processes or public participation, the amendments cannot be given domestic legal effect in any Member State.

C. Legal Consequences

1. The procedural violations render both the 2022 and 2024 Amendments null and void ab initio (void from inception). Under Article 69(1) of the Vienna Convention on the Law of Treaties, "The provisions of a void treaty have no legal force." The International Court of Justice in the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), 1997 I.C.J. 7, ¶ 47, confirmed that procedurally defective instruments must be treated as "without legal force or effect" within the domestic legal systems of all states.

2. Member States' participation in the amendment process and failure to object do not validate either set of Amendments:

o A State's consent to an agreement that violates a peremptory norm of international law is void ab initio and cannot be cured by subsequent acquiescence.

o The International Court of Justice has consistently held that departures from clear procedural rules cannot be cured by retroactive validation.

o Members' acceptance was premised on the presumption of procedural regularity and does not constitute a waiver of procedural requirements.

3. As Special Rapporteur Waldock explained in his 1963 report on the law of treaties, "the very nature of jus cogens precludes the possibility of contracting out of the rules for the modification of treaties... Any purported 'amendment' adopted in violation of a peremptory norm of international law would be null and void ab initio."

4. The International Law Commission has clarified that the duty of non- recognition in the face of a jus cogens violation is not affected by "whether the State in question has previously recognized the situation which is now considered as illegal."

5. Even if Member States' conduct could be construed as acquiescence, such acquiescence would itself be null and void under international law.

6. Under Article 44(5) of the VCLT, when an invalidation ground relates to a peremptory norm, no separation of treaty provisions is permitted—the nullity infects the entire amendment process.

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D. Human Rights and Rule of Law Implications

1. The nullification of both the 2022 and 2024 Amendments is necessary to safeguard fundamental rights:

o The Amendments expand authority without adequate safeguards for individual liberties and due process.

o Provisions on data sharing lack essential protections for privacy and informed consent.

o Vague PHEIC declaration criteria create an unacceptable risk of over- declaration.

2. Procedural defects reflect a deeper crisis of legitimacy in WHO governance: o Global health governance must be rooted in human rights law and the

international rule of law. o The Amendments privilege expediency over proper process and human

rights protections. o Implementation would set a dangerous precedent for future

international instruments.

V. FORMAL REQUEST Pursuant to Articles 65-68 of the Vienna Convention on the Law of Treaties and Article 56 of the International Health Regulations (2005), the Interest of Justice hereby formally petitions all WHO Member States to:

1. Issue formal declarations acknowledging the absolute nullity of both the 2022 and 2024 IHR Amendments due to the procedural violations detailed herein;

2. Produce, within thirty (30) days, any documentary evidence demonstrating compliance with Rule 85 of the WHO Rules of Procedure for the 2022 Amendments,

3. Produce, within the same thirty (30) day period, any documentary evidence demonstrating compliance with Article 55(2) of the IHR for the 2024 Amendments,

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4. In the absence of such evidence, issue formal diplomatic notification to the WHO Director-General declaring that both sets of Amendments are procedurally invalid and legally non-binding;

5. Refrain from implementing the procedurally invalid Amendments through domestic legislation or regulations;

6. Establish appropriate mechanisms to ensure public participation in the review of future amendments to international health instruments; and

7. Request the inclusion of this dispute in the agenda of the next World Health Assembly to initiate multilateral consultation on the procedural validity of the amendments pursuant to Article 56(1) of the IHR.

VI. CONCLUSION The procedural violations meticulously documented herein are not mere technicalities but fundamental substantive defects that vitiate the very foundation of international treaty-making. The purported adoption of both the 2022 and 2024 IHR Amendments occurred in manifest violation of essential procedural requirements, rendering them absolutely null and void under international treaty law.

The International Law Commission has emphasized that the duty of non-recognition and non-application of a treaty that violates jus cogens is "self-executory" and does not require any affirmative action by international bodies. Rather, it is "incumbent upon the States parties to the treaty themselves" to declare its invalidity and to refrain from any actions that would imply recognition of the treaty's legality or effectivity.

Under Article 71(1)(b) of the VCLT, Member States must "eliminate as far as possible the consequences of any act performed in reliance upon" a treaty provision that conflicts with a peremptory norm of general international law. This obligation of restitutio in integrum requires all Member States to extirpate the Amendments from their legal systems and ensure no domestic legal consequences flow from their purported adoption.

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The nullification of the Amendments is without prejudice to the pursuit of appropriate remedies against the officials responsible for the procedural breaches. All States Parties should cooperate to ensure accountability for this ultra vires conduct through appropriate diplomatic, political, and legal channels. The invocation of immunities or other procedural barriers to obstruct such accountability would itself constitute an independent breach of international law.

In addition to urging all Member States to take the requested actions, IOJ reserves the right to pursue all available legal, political, and public advocacy avenues to compel the investigation and resolution of this dispute in accordance with international law. This may include, but is not limited to, initiating proceedings under human rights treaty mechanisms, supporting domestic legal action, and leveraging media and civil society pressure to spur State action.

The severity of the procedural violations at issue demands the utmost vigilance and proactivity from all members of the international community, and IOJ stands ready to take all necessary steps to ensure the integrity of the global health law system.

All WHO Member States, as nations with a collective commitment to international law and proper multilateral processes, bear a special responsibility to acknowledge these procedural nullities and take appropriate action to uphold the integrity of global health governance. Failure to address these violations would constitute a breach of obligations under international law and would fundamentally compromise the commitment to procedural regularity and the international rule of law.

We respectfully request a substantive response to this formal dispute within thirty (30) days, including any documentary evidence addressing the procedural violations identified herein.

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Cordially,

Dustin Bryce and Lady Xylie Desiree, Interest of Justice Internationally Domiciled [email protected] +1 323 244 2960

+(506) 7264 5376

INDEX OF ANNEXES:

1. Annex A: Video evidence and transcript of Committee A proceedings (May 27, 2022)https://youtu.be/M393lvg1650?si=c4m1_meY8KivADTR

2. Annex B: Documentation of Rule 85 and Article 73 Procedural Requirements and Violations:

3. Annex C: Expert legal analysis of procedural requirements under IHR Article 55(2) and Rule 85 and https://opiniojuris.org/2024/09/20/the-2024- amendments-to-the-international-health-regulations-a-commentary-part-ii- selected-substantive-amendments/

4. Annex D: Documentary timeline of the 2024 amendments transmission demonstrating Article 55(2) violation

5. Annex E: Certified copies of relevant provisions of the Vienna Convention on the Law of Treaties (1969)

6. Annex F: WHO Basic Documents (49th Edition, 2020) - Rules of Procedure of the World Health Assembly

7. Annex G: Jurisprudence of International Courts on procedural nullities in international instruments

8. IHR Comment Submission To Australia Parliament https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/

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HealthRegulations/Submissions - From Organisation/Individual - Interest Of Justice #304 Page 14

1. Annex A: Video evidence and transcript of Committee A proceedings (May 27, 2022)https://youtu.be/M393lvg1650?si=c4m1_meY8KivADTR

2. Annex B: Documentation of Rule 85 and Article 73 Procedural Requirements and Violations:

CONDUCT OF BUSINESS AND VOTING IN COMMITTEES AND SUBCOMMITTEES Rule 85 Subject to any decision of the Health Assembly, the procedure governing the conduct of business and voting by committees shall conform as far as practicable to the Rules relative to the conduct of business and voting in plenary meetings. One third of the members of a committee shall constitute a quorum. The presence of a majority of a committee shall, however, be required for a question to be put to a vote.

3. Annex C: Expert legal analysis of procedural requirements under IHR Article 55(2) and Rule 85 and https://opiniojuris.org/2024/09/20/the-2024-amendments-to- the-international-health-regulations-a-commentary-part-ii-selected-substantive- amendments/

LEGAL MEMORANDUM

Subject: Procedural Violations under Article 55(2) of the International Health Regulations (2005) and Rule 85 of the Rules of Procedure of the World Health Assembly

To: Concerned Member States, Legal Counsel, and Civil Society Representatives

From: Interest Of Justice Legal Advisory Committee

Date: April 5, 2025

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I. Introduction

This memorandum analyzes the mandatory procedural requirements applicable to the amendment process of the International Health Regulations (IHR 2005), specifically under Article 55(2) of the IHR and Rule 85 of the Rules of Procedure of the World Health Assembly (WHA). The failure to comply with these provisions renders any proposed amendments void ab initio and opens the door to formal legal challenges.

II. Legal Framework A. Article 55(2) of the IHR (2005)

"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."

Source: International Health Regulations (2005), Article 55(2), WHO Doc. IHR (2005), available at: https://www.who.int/publications/i/item/9789241580496

B. Rule 85 of the Rules of Procedure of the WHA

"Proposals involving amendments to the International Health Regulations shall be submitted to the Director-General at least four months before the Health Assembly at which they are to be considered."

Source: Rules of Procedure of the World Health Assembly, 49th Edition (2020), Rule 85, p. 194, WHO Basic Documents, available at: https://apps.who.int/gb/bd/pdf_files/Bd_49th-en.pdf

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III. Interpretation and Legal Effect

These two provisions jointly establish a procedural chain of obligations:

1. Submission Obligation – Rule 85 obligates any Member State or proposing entity to submit a proposed amendment at least four months before the WHA.

2. Notification Obligation – Article 55(2) obligates the Director-General to transmit the full text of the proposed amendment to all States Parties at least four months before consideration.

3. Legal Certainty – These rules codify a core principle of international administrative law: States must be given adequate time for review, translation, and instruction before any legally binding vote can occur.

IV. Consequences of Non-Compliance A. Violation of Procedural Due Process

The failure to observe either Rule 85 or Article 55(2) constitutes a procedural breach that undermines the validity of the amendment process. This may be invoked under customary international law principles and treaty law safeguards such as:

• Vienna Convention on the Law of Treaties (1969): o Article 26 – Pacta sunt servanda (treaties must be performed in good

faith) o Article 27 – A party may not invoke its internal law as justification for

failure to perform a treaty o Article 46 – Invalidity of consent if given in violation of internal law

regarding competence to conclude treaties o Articles 51–52 – Invalidity due to coercion or improper procedure

Source: Vienna Convention on the Law of Treaties, 1969, United Nations, Treaty Series, vol. 1155, p. 331

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B. Nullity ab initio

Where a procedural prerequisite is essential and is not met, the legal act (e.g., adoption of amendments) is considered void ab initio, meaning it has no legal effect from the beginning.

C. Right to Dispute

Affected States may invoke Article 73 of the IHR, which provides the procedural pathway to resolve disputes arising from the interpretation or application of the Regulations, including procedural violations:

"In the event of a dispute between two or more States Parties concerning the interpretation or application of these Regulations... [they] shall first seek to resolve the dispute through negotiation or any other peaceful means..."

Source: IHR (2005), Article 73

V. Conclusion

The four-month notice rule under Article 55(2) of the IHR and Rule 85 of the WHA Rules of Procedure is a mandatory procedural requirement. Any failure to comply with these standards invalidates the amendment process and constitutes a serious breach of international law. All affected States and legal entities are urged to act swiftly to preserve the integrity of global health governance and international treaty procedure.

4. Annex D: Documentary timeline of the 2024 amendments transmission demonstrating Article 55(2) violation

The 2024 amendments to the International Health Regulations (IHR) faced significant controversy regarding compliance with Article 55(2), which requires the WHO Director-General to communicate final amendment texts to all States Parties at least four months before the World Health Assembly (WHA). Here’s a breakdown of the timeline and procedural disputes:

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Key Timeline of Amendments 1. Initial Proposals (2022–2023):

o Member States submitted 308 proposed amendments by September 20221.

o The WHO Secretariat circulated these proposals to all 196 States Parties on 16 November 202213.

o A Review Committee provided technical recommendations in January 20231.

2. Negotiations and Drafting (2023–2024): o The Working Group on Amendments (WGIHR) negotiated amendments

until 24 May 2024, with revisions communicated after each meeting13. o The final text was not settled until 1 June 2024—the day of adoption—

leaving insufficient time for review36. 3. Adoption at the 77th WHA (May–June 2024):

o The WHA adopted the amendments on 1 June 2024, with the final text published in resolution WHA77.1745.

o The WHO asserted compliance, citing the 2022 communication of proposals1, while opponents claimed the final package violated Article 55(2)36.

Disputed Compliance with Article 55(2) WHO’s Position:

• The Secretariat argued that sharing initial proposals in November 2022 (17 months before the WHA) exceeded Article 55(2)’s requirements17.

• Subsequent drafts were circulated after each WGIHR meeting, though not the consolidated final text1.

Arguments:

• Article 55(2) mandates communication of the final text four months pre-WHA, not preliminary proposals36.

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• The final amendments were negotiated until May 2024, with the text only finalized on 1 June 2024, depriving States of meaningful review368.

• The Australian Parliament’s submission highlighted that delegates received the final text hours before adoption, calling the process “unlawful”6.

Implications of Procedural Violations • Legal legitimacy38. • Opt-Out Deadlines: Amendments take effect automatically unless rejected

within 10 months, raising concerns about rushed commitments38. • Broader Governance sovereignty in pandemic response37.

Conclusion Evidence suggests the final amendments were not shared four months before adoption, contravening Article 55(2)’s intent. This controversy underscores challenges in balancing expedited global health governance with legal safeguards for state sovereignty. The amendments took effect on 19 September 202515, but procedural disputes may influence future compliance and trust in WHO-led reforms.

5. Annex E: Certified copies of relevant provisions of the Vienna Convention on the Law of Treaties (1969) ANNEX: RELEVANT ARTICLES OF THE VIENNA CONVENTION ON THE LAW OF TREATIES (1969)

Article 26 – Pacta sunt servanda

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Article 27 – Internal law and observance of treaties

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 46.

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Article 31 – General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

Article 44(5) – Separability of treaty provisions

Paragraphs 1 to 3 do not apply to a case falling under Article 53 or 64.

Article 46 – Provisions of internal law regarding competence to conclude treaties

1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

Article 53 – Treaties conflicting with a peremptory norm of general international law (jus cogens)

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

Article 64 – Emergence of a new peremptory norm of general international law (jus cogens)

If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

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Article 69(1) – Consequences of the invalidity of a treaty

A treaty that is void shall be considered as having no legal force. The acts performed in reliance upon such a treaty shall be void of legal effect, and parties must eliminate as far as possible the consequences of any such acts.

Article 71(1)(b) – Consequences of a conflict with a peremptory norm of general international law

In the case of a treaty which becomes void and terminates under Article 53, the consequences of the invalidity of the treaty shall include: (b) the elimination as far as possible of the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm of general international law.

Source: Vienna Convention on the Law of Treaties, concluded 23 May 1969, entered into force 27 January 1980, United Nations, Treaty Series, vol. 1155, p. 331. Available at: https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I- 18232-English.pdf

6. Annex F: WHO Basic Documents (49th Edition, 2020) - Rules of Procedure of the World Health Assembly https://apps.who.int/gb/bd/pdf_files/Bd_49th-en.pdf 7. Annex G: Jurisprudence of International Courts on procedural nullities in international instruments

International courts have addressed procedural nullities in international instruments, emphasizing the critical importance of adhering to established procedures for the validity of treaties and related legal instruments. Notable cases include:

1. LaGrand Case (Germany v. United States, 2001): The International Court of Justice (ICJ) ruled that the United States violated the Vienna Convention on Consular Relations by not informing the LaGrand brothers, German nationals, of their right to consular assistance. The ICJ emphasized that domestic procedural

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rules, such as the doctrine of procedural default, cannot justify non-compliance with international obligations. Wikipedia

2. Bosnia and Herzegovina v. Serbia and Montenegro (2007): In this case, the ICJ examined Serbia's compliance with the Genocide Convention. The Court highlighted that procedural obligations, including the duty to prevent genocide, are integral to the treaty's purpose. Failure to adhere to these procedural duties constituted a breach of international obligations. International Court of Justice+2Opinio Juris+2Wikipedia+2Wikipedia

3. Namibia Advisory Opinion (1971): The ICJ addressed the legal consequences of South Africa's continued presence in Namibia despite a UN Security Council resolution. The Court concluded that South Africa's mandate was terminated and that its continued administration was illegal, underscoring that failure to follow procedural requirements in international mandates can lead to a loss of legal authority. Wikipedia

These cases collectively demonstrate that international courts consider adherence to procedural norms essential for the legitimacy and legality of international instruments. Non-compliance with procedural requirements can lead to findings of invalidity or illegality, reinforcing the principle that procedural integrity is foundational in international law.

8. Annex H, IHR Comment Submission To Australia Parliament https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/ HealthRegulations/Submissions - From Organisation/Individual - Interest Of Justice #304 Page 14

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Urgency Exception / Immediate Invocation

The Vienna Convention does not explicitly include an “urgency” exception, but jurisprudence and legal commentary support the doctrine of fundamental change of circumstances (rebus sic stantibus, Art. 62) and procedural urgency in the case of peremptory norms (jus cogens, Art. 53 and 64).

Immediately suspend application of the disputed instrument pending resolution, if the treaty’s application would cause irreparable harm or violate jus cogens.

File a provisional measure with the ICJ or invoke a right of non-recognition under customary international law and the ILC’s Draft Articles on State Responsibility. Customary Law Reinforcement:

States are not required to allow binding legal obligations to remain in force while a manifest violation is unresolved, especially where the treaty:

Violates fundamental rights,

Was adopted without proper internal authority,

Or conflicts with non-derogable norms (e.g., informed consent, human dignity, rule of law).

“Pursuant to Articles 46 and 65 of the Vienna Convention on the Law of Treaties, [State] notifies all Parties that it considers the purported adoption of the [2022/2024] amendments to the International Health Regulations as invalid and without legal effect. This position is based on manifest procedural violations concerning internal authority and multilateral process. Due to the urgent and irreversible consequences of continued application, [State] reserves the right to suspend any implementation pending resolution of this dispute.”