Two important legislative processes are underway at the World Health Organisation (WHO).
The first is the development of a new “pandemic treaty” which will govern how nation-states respond to future pandemics by “strengthen pandemic prevention, preparedness and response”. South Africa is set to be a signatory of the treaty, with President Cyril Ramaphosa expressing his support of it. Should South Africa sign the treaty and Parliament approves, it will be legally binding on the Republic.
The second is the amendment of the existing International Health Regulations (IHR). The IHR is legally binding on South Africa. It is “an overarching legal framework that defines countries’ rights and obligations in handling public health events and emergencies that have the potential to cross borders”.
Both the treaty and IHR amendments contain proposals that could have a detrimental impact on religious freedom and other civil liberties.
The new international pandemic treaty:
The new pandemic treaty is being negotiated and drafted by the WHO Intergovernmental Negotiating Body (INB). The INB first met in February 2022 and plans to finalise the draft treaty by May 2024.
The amendment of the existing International Health Regulations:
The Working Group on Amendments to the International Health Regulations (WGIHR) first met in November 2022. The WGIHR will consider the various amendment proposals submitted by different WHO member states and plans to compile a final list of proposals by May 2024. South Africa made proposals as part of a joint submission by the member states of the WHO Africa Region.
From a religious freedom point of view, the most problematic aspects of the proposed new pandemic treaty combined with the amendments to the IHR relate to:
· Undermining of nation-states’ national sovereignty;
· Restriction of religious freedom and related rights and freedoms; and
· Mandatory medical treatments and global health certificates.
National sovereignty, in simple terms, is the ability of countries to make their own decisions autonomously – i.e. without being influenced by or dictated to by external entities.
A significant proposal concerns widening the definition of “public health emergency of international concern” (PHEIC) to include even potential public health emergencies.[i] The proposal includes removing the requirement of seeking agreement from relevant WHO member states concerning whether a health-related event is indeed a public health emergency and of international (or regional) concern. Coupled with the proposed expansion of the WHO Director-General’s (DG) powers once a PHEIC is declared,[ii] this means that the DG effectively can declare a PHEIC unilaterally – against member states’ wishes and even the advice of his own advisory committee.[iii]
Once the DG has declared a PHEIC, he or she can issue mandatory instructions to member states[iv] – whether states agree that the health-related event is a PHEIC or not. This effectively overrides state sovereignty – with vast socio-economic and human rights implications.
The WHO claims that nation-states’ sovereignty will be respected. Despite these assurances, looking at the overall effect of the proposed treaty and especially the amendment proposals to the IHR, it does seem that the WHO is set to become a governing body that issues orders that must be followed by its member states instead of an advisory body that simply makes recommendations.[v] Once the DG declares a PHEIC, the WHO will be able to override member states’ decisions concerning health measures to be taken in their own sovereign territory.[vi] This would mean that the WHO – and not sovereign states – gets to have the final say.
Impact on human rights and freedoms:
How will these developments impact the fundamental rights and freedom of citizens of (and others who are resident or even just present in) nation-states that are WHO members? A very disturbing proposal is that the implementation of the IHR will no longer be guided by the “full respect for the dignity, human rights and fundamental freedoms of persons” but based on “principles of equity, inclusivity, [and] coherence” based on member states’ socio-economic development.[vii]
This implies a hierarchy of rights (and responsibilities) depending on socio-economic status (wealth) rather than equality before the law[viii] (as guaranteed by the Universal Declaration on Human Rights (UDHR)[ix] and the Constitution).[x]
Mandatory medical treatments and global health certificates:
The Constitution guarantees the right to freedom and security of the person,[xi] which includes the right to bodily and psychological integrity, and also the right to privacy.[xii] It is concerning then, that proposals include giving the WHO the authority to require medical examinations and proof of vaccination, and also to implement contact tracing, quarantine and even treatment.[xiii]
The Constitution also protects the right to freedom of movement.[xiv] Yet proposals include the introduction of global health certificates for travellers, which will necessarily impose restrictions on movement.[xv]
Of course, when there is a real public health crisis, citizens should act responsibly towards their fellow man. However, rights and freedoms should still be respected, and not simply be restricted or even suspended. For this reason, important questions arise. For example, will citizens be:
· Able to refuse vaccination and other medical treatment, or being traced;
· Forced into self-isolation, quarantined, or detained against their will; and
· Restricted from travelling abroad or even locally?
Censorship and other concerns:
On a more general level, there are even concerns that the proposed treaty and IHR amendments will greatly expand the WHO’s power to censor what it considers to be misinformation or disinformation[xvi] – and even conduct surveillance.[xvii] Such proposals will have an impact on the right to freedom of expression[xviii] and the right to privacy, both of which enjoy Constitutional protection.
There are even concerns relating to property rights[xix] and economic activity (including freedom of trade[xx] and labour relations)[xxi] as during a PHEIC the WHO will be able to seize property (including intellectual property) and the products and means of production.[xxii]
Implications for freedom of religion:
The right to freedom of religion, belief and opinion is protected under section 15 of the Constitution. Other fundamental rights integral to protecting religious freedom, include the rights of religious communities[xxiii] and freedom of association.[xxiv]
The far-reaching implications of the WHO potentially transforming into a supra-national governing body that is essentially able to dictate to nation-states and their citizens cannot be overstated. For example:
· Will the right of religious persons who conscientiously object to receiving vaccines and/or other medical be respected?
· Will unvaccinated religious persons be barred from travel or face losing their jobs?
· Will faith communities be precluded by the threat of criminal sanction from gathering to worship and fellowship?
These are very important questions that need to be answered before South Africa agrees to either a new pandemic treaty or any amendments to the IHR.
The WHO plans to consider – and possibly adopt – both the pandemic treaty and the amendments to the IHR at its 77th World Health Assembly in May 2024.
These developments are made all the more troubling by the fact that, unlike members of a democratically elected Parliament, WHO officials are unelected bureaucrats (who are also tax-exempt and enjoy diplomatic immunity). This raises questions about who will keep WHO officials – who will be given extraordinarily broad and intrusive powers over the citizens of sovereign nation-states once a new pandemic treaty is adopted or the IHR is amended – in check and accountable.
The South African Constitution provides that the “negotiating and signing of all international agreements is the responsibility of the national executive”.[xxv] The Constitution further provides that an international agreement – for e.g. the pandemic treaty or IHR – only binds the Republic after it has been approved by both houses of Parliament.[xxvi]
Freedom of Religion South Africa (FOR SA) is monitoring both processes closely. Should the final treaty document and/or the final amendments to the IHR pose a threat to religious freedom, FOR SA will alert the national executive and Members of Parliament. We will also keep the faith communities of South Africa informed of important developments.
[i] See the proposed amendment to Articles 2 and 12 of the IHR.
[ii] See the proposed amendment of Articles 12 and 43.
[iii] See the proposed amendment of Article 12.
[iv] See the proposed amendment of Articles 1 and 12.
[v] See the proposed amendment of Articles 1, 12 and 42.
[vi] See the proposed amendment of Article 43.
[vii] See the proposed amendment of Article 3.
[viii] David Bell Amendments to WHO’s International Health Regulations: An Annotated Guide Brownstone Institute (1 February 2023).
[ix] The UDHR underpins the Constitution of the WHO.
[x] Section 9(1) of the Constitution of the Republic of South Africa, 1996 confirms that “everyone is equal before the law and has the right to equal protection and benefit of the law”. The Constitutional Court has also confirmed (more than once) that the Constitution knows no hierarchy of rights.
[xi] Section 12 of the Constitution.
[xii] Section 14 of the Constitution.
[xiii] See the proposed amendment of Article 18.
[xiv] Section 21 of the Constitution.
[xv] See the proposed amendment of Article 18.
[xvi] See the proposed amendment of Annexure 1.
[xvii] See the proposed amendment of Article 5.
[xviii] Section 16 of the Constitution.
[xix] Section 25 of the Constitution.
[xx] Section 22 of the Constitution.
[xxi] Section 23 of the Constitution.
[xxii] See the proposed new Article 13A.
[xxiii] Section 31 of the Constitution.
[xxiv] Section 18 of the Constitution.
[xxv] Section 231(1) of the Constitution.
[xxvi] Section 231(2) of the Constitution.
Freedom of Religion South Africa (FOR SA) is dedicated to protecting and preserving the freedoms and rights that the South African Constitution has granted to the faith community. If you have found this helpful, please consider supporting the work of FOR SA to protect our constitutional right to enjoy the freedom of religion by: