It was during my LLM studies last year – I took this one-week course that made me think thoroughly about the types and nature of legal instruments produced by the World Health Organization (WHO). This course, Public Health Emergencies: Enabling Preparedness & Response through Law and Policy, analyzed case studies from various global events including infectious diseases, chemical, and radiological events, and natural disasters to better understand how international and national laws and policies impact preparedness and response in Public Health. Halfway through our first session with this course, we discussed the law-making powers of the WHO under its Constitution and their respective legal status under international law and we had to pause for a discussion on the question one of the students raised. The question was about how different the status of WHO Regulations could be as compared to the treaties/conventions that the WHO adopts. The question was raised because of the following three facts, which sometimes confuse or as some people said give the Regulations a ‘weird’ status under international law:

  1. These Regulations (on five stipulated areas) are adopted by the World Health Assembly (WHA), the decision making body of the WHO that also adopts conventions on matters within the competence of the organization.
  2. Both the treaties and Regulations the WHA adopts are ‘agreements’ in the general sense and have their legitimacy from the Constitution’s Articles 19 and 21.
  3. Both the treaties and Regulations are intended to govern all member states. This, of course, is subject to member states’ reservations and rejection (in the case of Regulations).

We discussed why WHO Regulations can be considered to have the same legal status as WHO treaties and whether the Vienna Convention on the Law of Treaties (VCLT) applies to them as it would apply to other agreements among states parties. Some students thought that there was not a significant difference in the effects of these two instruments since they both have WHO member states as their subjects. But of course, since this was not the major focus of the class, we have not gotten any deeper than a very high-level appreciation of the ideas.

A couple of weeks ago, I thought of this matter while I was assisting with the Global Health Law class. Students were working on a Simulation where they represented countries and negotiated a revision to the International Health Regulations (IHRs), one of the two Regulations the WHO has adopted under Art. 21 of its Constitution. I was reading the WHA Rules of Procedure to see how amendments to instruments such as the IHRs are negotiated and voted for at the WHA. As I thought the status of WHO Regulations under international law, I found differences significant enough to offer them a distinct place under international law than treaties.

To begin with, while the WHO Constitution itself is registered as Treaty under the UN system, the Regulations are somehow designed to govern the implementation of matters specifically identified under the Constitution such as the prevention of international spread of diseases. For me, this reflects the uniqueness in the purpose and nature of these instruments that are different from Conventions adopted on any matters falling within the competence of the Organization. A two-thirds vote is required to adopt conventions and states, by virtue of Art. 19 of the VCLT, can obviously make reservations to such conventions. With Regulations, on the other hand, member states can either reject the regulations all together or opt to make reservations. Both the Constitution and the WHA Rules of Procedure haven’t explicitly required a two-thirds majority to adopt a Regulation. Such a requirement, however, can be implied from Rule 71 that states that a two-thirds majority is needed to decide on all questions that are not explicitly dealt with under any of the Rules. Another distinction relates to the enforcement of the instruments: while treaties need domestic ratification to begin to have effect at a national level, Regulations automatically come in to force after the notice period allotted for rejection/reservation lapses. 

Therefore, although both instruments depend on member states’ ‘agreement’ to be bound, they are treated differently under international law, as their nature, depth, status, and purpose are significantly different.