Serious concerns about the design of “global health” – Would the EU also support limiting the state’s capacity to act?
Amendments to the International Health Regulations (IHR) and draft zero of the International Treaty on Pandemic Preparedness and Response (CA+) have also come under heavy criticism regarding management, control, and sanctioning powers. Many believe that there would be a transfer of sovereign state functions to the World Health Organization (WHO). The organization's Director-General could declare a regional or global health emergency under the proposed regulations, even in the event of potential emergencies. With his decision, the WHO Director-General could override the basic constitutional order of virtually all states.
To better ensure a global framework, many in the Council of the European Union would also recommend that the new regulation "requires a more robust country reporting mechanism" and "wider use of joint external assessments" for individual states. This would risk turning country reports into an attempt to exert economic (and even political) pressure.
On 3 March 2022, the Council adopted a decision to open negotiations on an international agreement on the prevention of, preparedness for and response to pandemics, declaring a mandate to do so. Meanwhile, the European Commission is currently negotiating the agreement on behalf of the European Union on the basis of negotiating directives designated by the Council.
At the 76th World Health Assembly (WHA) held in Geneva, Switzerland, from 21 to 30 May 2023, hundreds of amendments to the International World Health Regulations (IHR) were tabled and the zero draft of the International Treaty on Pandemic Preparedness and Response (CA+) was also presented. (The International Health Regulations, or IHR for short, were first adopted by the World Health Assembly in 1969 and last revised in 2005; it is a legally binding rule that applies only to the WHO, its members, and was created as an instrument for international cooperation.)
These two documents are interpreted by many as essentially leading to a “backward step” of the will of sovereign states in these areas and to the transfer of control by states to the World Health Organization (WHO), a special UN agency not elected by citizens and thus lacking direct democratic legitimacy but intended to be strengthened on a supranational basis. The latter's own "reform document", the amendments to the IHR, would allow the WHO and its partners to serve the epidemic-based pharmaceutical industries globally. Furthermore, the CA+ international treaty is already clearly aimed at ensuring global governance and resources, without enforcing democratic principles or accountability, according to some more critical opinions.
The final draft of the WHO's "pandemic treaty" is expected to be presented at the 77th World Health Assembly in July 2024, and Member States will then have ten months to ratify or reject the proposals.
The WHO membership of Germany has also been challenged at the German Constitutional Court
The drafts of the international treaties reregulating the functioning of the WHO as a power body are, as we have indicated, severely criticised in relation to the management, control and sanctioning powers included therein. Moreover, some already see them as a transfer of sovereign state functions to the WHO. A critical approach in Germany even claims that the planned international treaties and amendments violate the sovereignty of the Federal Republic of Germany and the fundamental freedoms and human rights of its citizens. On 16 June 2023, before the political administrative summer break, a constitutional complaint was lodged with the Karlsruhe-based Federal Constitutional Court with a request for a preliminary measure against the two planned treaties.
The subject of the constitutional complaint and the request for preliminary measures are the aforementioned two draft international treaties, which, according to the complaint, result in numerous violations of fundamental freedoms and human rights under the German Basic Law, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (UN Civil Covenant), and the International Covenant on Economic, Social and Human Rights. In a European context, the complaint document highlights the Treaty on European Union (TEU), the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union.
In addition, the drafts require the establishment of international and national information regulatory authorities against “infodemic” (misinformation and disinformation) (as required by Article 18 of the CA+ Treaty), which therefore requires greater and more systematic use of monitoring in the future to prevent “health-related misinformation and disinformation” and to ensure demand for vaccines, for example.
The complaint further alleges that a WHO with widespread censorship is already an unconstitutional organization that seeks to manipulate public opinion with its censorship for the benefit of its donors and funders. However, the Basic Law prohibits Germany from becoming a member of an organization which violates the Basic Law [Article 23(1)]. Germany must always retain full capacity to act (see judgment of the German Constitutional Court CETA 2 BvR 1368/16). Germany may participate only in organizations which comply with democratic, constitutional, social, and federal principles and the principle of subsidiarity [cf. with the provisions of Article 23(1)]. However, the new draft treaties attempt to undermine free debate and destroy the free democratic basic order, according to the complainants, who can only invoke their right under Article 20(4) of the Basic Law to defend themselves against a major violation of their right to information and transparency. Therefore, in the event of such circumstances, contrary to the German Basic Law, Germany cannot be allowed membership of the WHO and must be terminated immediately.
According to the constitutional reasoning of the complaint, the Basic Law established the Federal Republic of Germany as an independent state, so no legal entity is above the country. German state bodies may be legally bound to the external will of others only to the extent provided for by the Basic Law, such as European integration under Article 23(1) and arbitration tribunals for the “settlement of international disputes” under Article 24. The complaint further alleges that, based on the IHR reform, the Director-General of the WHO, acting in his own capacity – and without the consent of the national governments concerned – could declare a regional or global health emergency, even in the event of potential (possible) emergencies. With his decision, the Director-General of the WHO can overrule not only the basic constitutional order of all states (separation of powers, principle of legality, etc.), but also the classic rights protecting individuals. The position expressed in the constitutional complaint before the German Federal Constitutional Court can therefore be summarized with the above findings.
Towards global control: "more robust country reporting mechanisms are needed"
One of the fundamental features of a convention, agreement or other international instrument is that it is legally binding under international law. Based on the agreement on the prevention of, preparedness for and response to pandemics to be adopted within the framework of the World Health Organization, rather than the free action and response of nation states, an internationally coordinated response to epidemics should be achieved throughout the whole cycle of detection, alert and response, a position that could receive majority support even in the Council of the European Union.
In the planned new framework (IHR amendments and CA+ draft) there are elements indicating both positive and negative directions, i.e., elements that seem justified or have rather "over-expanding" intentions. On the one hand, there is a partly legitimate effort to ensure access (called universal and equitable) to medicines, vaccines, and medical diagnostics, i.e., to "reposition" them in such a way that poorer regions of the world are not left out of effective protection against major epidemics. It is also an acceptable principle that there is a need for a global approach to health, in which the health of humans, animals and the planet are interconnected and can ensure a functioning unity of the ecosystem based on their interactions.
At the same time, the best course of action would be to have a stronger international health framework, but within that the WHO can only act as a coordinating authority on global health issues – as it could not function effectively without the strengthening role of sovereign states. The German Federal Constitutional Court (see Paragraph 211 of judgment 2 Bve 2/08 of 30 June 2009 of the Second Senate of the Court on the Treaty of Lisbon) held that citizens have the right to determine public power personally and meaningfully – through elections and votes – in the spirit of freedom and equality, inspired by the principles of democracy. Paragraph 212(aa) of the judgment provides that if decisions are taken in the public sphere that are binding on citizens, particularly as interference with fundamental rights, they must be based on the freely formed majority will of the people. (This argument was also raised in the German constitutional complaint described above.)
While the Council, which supports the draft pandemic treaty, acknowledges that the resilience of individual national health systems is key in the fight against pandemics, the EU body would essentially consider it acceptable to subject individual national health systems to global monitoring mechanisms. The argument is that for countries to respond effectively to a pandemic outbreak, they must have an effective national health system. To ensure this, the proposal in the new regulation would be that "a more robust country reporting mechanism is needed" and that "joint external assessments should be used more widely" for individual states. Thus, the new system would carry the risk that country reports would later become instruments of economic (and political) pressure or even blackmail attempts against the governments of countries found renitent for any (even business) reason.
“Big Pharma” to be put in position, weakening national sovereignty?
There is a clear ambition within both the WHO and the Council of the European Union to strengthen the capacities of the global pharmaceutical industry, following the Council's publicly available official argument that the COVID-19 pandemic has highlighted the importance of prompt action by the scientific community and the ability of the industry to always increase its manufacturing capacities without delay.
On 20 May 2021, the Council adopted a decision on EU support for the opening of negotiations on new regulations, within the framework of the WHO, in the context of an international agreement to combat pandemics. On 3 March 2022, the Council also adopted a decision on opening negotiations for an international agreement on the prevention of, preparedness for and response to pandemics, declaring a mandate to do so. The Commission is currently negotiating the agreement on behalf of the European Union on the basis of negotiating directives set by the Council on matters falling within EU competence.
Regarding the role of the Council, it should be noted that it is involved in the EU legislative process, but its members remain the members of the national governments (members of each government by policy area), i.e., member states are part of the EU executive power. The Council can therefore never exercise a kind of “executive federalism”, because to do so would call into question its own fundamental character (given by the Member States). Another problem that is still present in the international negotiations conducted by the Council is the limited transparency. Until the Treaty of Lisbon (2007), Council meetings were generally always closed to the public, but this transparency deficit still exists in part today, as Council meetings where no legislative decisions are taken, such as preparatory meetings or Foreign Affairs Council meetings, are still held in camera. This gives the green light to the influence of industry lobbyists (e.g., the pharmaceutical industry, global Big Pharma) and external international actors, including the WHO.
All this is closely linked to the issue of sovereignty. An essential element of the content of "sovereign" is that in modern democracies all the power of the state is exercised by the people, even if indirectly. That is, when a new government is elected in elections, the sovereign makes his own decision. This essential function of democracy cannot be taken over by any other level of organization, should it be supranational or global, thus neither the EU institutions nor the World Health Organization can take it over.
Századvég Reality Check
In the research of the Századvég Foundation, a new product will be introduced called Századvég Reality Check, in addition to the range of strategic or tactical analyses known so far. In the course of its multifaceted work, Századvég, as a dominant think tank in Hungary, has always strived to combine analysis, research and direct information transfer, the interpretation of facts and data, through its professional activities, which attract the attention and interest of a wide public audience.
Reality Check (actually confronting reality) is nothing more than a second opinion given about the state of a current (e.g., social, economic) situation. So, when we say that something is a reality-check for a specific target group, the goal here is actually to make them aware of the truth about a particular situation. Reality Check is similar to fact-check, but less formal.
In the field of public awareness, it can be considered an important aspect of development that a citizen, a voter who is open to the issues of politics and the economy, can distinguish between reality and fiction when forming his or her own thoughts and opinions. Errors in thinking, as well as inadequate information (incomplete or poor knowledge of facts, data, trends), can influence civic and voter behaviour and thus lead to unsound decisions in many areas of life. The "reality test" of Századvég highlights the importance of interpreting or possibly "correcting", i.e., checking, facts, data, and trends that play a significant role in public and social reality, which can be learned mainly from news.