In a letter tweeted out on May 18, US President Donald Trump mentioned his suspension of U.S. contributions to the World Health Organization (WHO).
The letter also noted a 30-day deadline for the body to commit to substantive improvements or risk losing millions and US membership altogether.
Prior to the end of ultimatum, just Friday, May 29, 2020, President Trump announced that as of that date, the U.S. relationship with the World Health Organization (WHO) is terminated.
Again, the US administration cited the WHO’s handling of the current pandemic as one of the main reasons for U.S. withdrawal. The United States was one of the original proponents and supporters of the WHO, and has been engaged with it since it began in 1948. In any event such an unprecedented move could undermine the global coronavirus response and make it more difficult to stamp out other disease threats.
Once again, President Trump criticized the WHO for failing to quickly sound the alarm when the novel virus emerged and accused it of helping China cover up the threat it posed. That countless lives have been taken and profound economic hardship has been inflicted all around the globe.
However, the American Medical Association, the country’s largest physician group, urged Trump in the “strongest terms possible” to reverse the decision.
Sen. Lamar Alexander (R-Tenn.), the head of the chamber’s health committee, warned canceling U.S. membership could disrupt clinical trials for vaccines that will be in high demand around the world.
A puzzling question: can the withdrawal occur without Congress’s approval?
Though there’s no straightforward answer, this piece intends to focus on legal grounds as well as past practice. As a matter of law, it raises several significant issues. However, one would ask whether Trump has authority to withdraw the US from the WHO?
The answer takes us back to the late 1940s. In 1948, the House of Representatives and the Senate passed a joint resolution authorizing U.S. membership to the WHO shortly after its formation. While the WHO Constitution lacked a withdrawal provision, the joint resolution passed by Congress included a specific provision regarding exit: “in adopting this joint resolution, the Congress does so with the understanding that, in the absence of any provision in the World Health Organization Constitution for withdrawal from the Organization, the United States reserves its right to withdraw from the Organization on a one-year notice: provided, however, that the financial obligations of the United States to the Organization shall be met in full for the Organization’s current fiscal year”.
This provision originated in the Senate. The chair of the Senate Foreign Relations Committee, Arthur Vandenberg, proposed it in a hearing: “I submit to the committee the idea that we reserve to ourselves the right to withdraw on ninety days’ notice whenever we consider that the national interest requires, with the understanding, expressed in the same reservation that withdrawal, the act of withdrawal, includes an obligation to pay our assessments for whatever current year in which we withdraw, so that we do not abruptly upset their financial arrangements”.
A few weeks after the U.S. deposited its instrument of acceptance, on July 2, 1948, the World Health Assembly unanimously adopted a resolution that recognized the validity of the ratification by the United States of America.
At the time the U.S. joined the WHO, customary international law was unclear with respect to the conditions under which a nation could withdraw from a treaty that did not contain a withdrawal clause.
Under international law, a State may withdraw from any binding international agreement either in conformity with the provisions of the agreement—if the agreement permits withdrawal—or with the consent of all parties.
Most modern international agreements contain provisions allowing and specifying the conditions of withdrawal, and many require a period of advance notice before withdrawal becomes effective.
Even when an agreement does not contain an express withdrawal clause, international law still permits withdrawal if the parties intended to allow a right of withdrawal or if there is an implied right to do so in the text of the agreement.
Under this rule, a notice of withdrawal issued by President Trump would effectively withdraw the United States from the international agreement as a matter of international law, provided such notice complied with applicable treaty withdrawal provisions. Under domestic law, it is generally accepted that the Executive, by virtue of its role as the ‘sole organ’ of the government charged with making official communications with foreign states, is responsible for communicating the United States’ intention to withdraw from international agreements and political commitments.
In the past, presidents have withdrawn the U.S. from such agreements on a few prior occasions. President Ronald Reagan withdrew the U.S. from UNESCO; President George W. Bush rejoined the United States to UNESCO (without intervening action by Congress); and Trump then re-withdrew the U.S. from UNESCO. While there is no judicial precedent on whether such unilateral withdrawal is indeed permissible, the president’s power to do so is still controversial.
Thus, at a minimum, Trump must choose between freezing U.S. assessed contributions and following through on his threat of withdrawal. He cannot do both.
The writer is a law expert.