The USA and the World Health Organization: What has President Trump actually decided and what are its consequences?

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On Friday 29 May 2020, during a press statement denouncing China’s alleged “total control” of WHO, President Trump declared that “because they [WHO] have failed to make the requested and greatly needed reforms, we will be today terminating our relationship with the World Health Organization and redirecting those funds to other worldwide and deserving, urgent global public health needs” (see media article here).  The statement was the culmination of an increasingly hostile attitude against WHO because of its alleged failures in the early stages of the COVID-19 outbreak as well as its excessive deference towards China. On 14 April, Trump announced that the US was temporarily freezing its financial contributions to WHO pending an internal review of the latter’s management of the pandemic (see media article here). On 18 May, President Trump sent a very abrasive letter to WHO’s Director-General, detailing his accusations against the organization and stating that, “… if the World Health Organization does not commit to major substantive improvements within the next 30 days, I will make my temporary freeze of the United States funding to the World Health Organization permanent and reconsider membership in the organization.” (see media article here).  Without even waiting for the expiry of his ultimatum, the President followed up with the aforementioned statement.

What does Trump’s statement actually mean? A US withdrawal from WHO or something short of such a drastic step? The expressions used by the President (either purposely ambiguous or just careless) leave some room for interpretation.  As in similar past occurrences, it may take some time before Trump’s actual intentions are clarified and formalized as an act of the US government.  In the meantime, without entering into the merits of the controversy or discussing the practical impact of a US disengagement, I would like to briefly sketch some possible consequences of Trump’s statement from WHO’s perspective.  The list below is not exhaustive, and the disengagement of a state from the normative and institutional framework created by an international organizations can be extremely complex and raise unanticipated questions.

1) Termination of funding and working relations with WHO

Trump’s statement could signify a disengagement from the organization without withdrawing from it.  From a legal point of view, this would mean first and foremost extending indefinitely his initially temporary suspension of funding to WHO.  Overall US funding consists of both assessed contributions as apportioned by the World Health Assembly as well as voluntary contributions.  Since 2003, the US contributes 22% of the assessed part of WHO’s budget.   Given WHO’s predominant reliance on voluntary contributions to finance its budget (WHO’s 2020-2021 budget of $5840.4 million is financed by assessed contributions for only about 19%), most of the $400 million mentioned by Trump consists of earmarked voluntary contributions.  Since assessed contributions are appropriated by Congress, it is questionable whether the President can unilaterally stop their payment.  However, voluntary contributions come from a variety of federal agencies (USAID, CDC, HHS, DOD) and the President may have ultimate authority to direct their termination.  The US, like other major donors, agrees on multi-annual pledges with the WHO secretariat to focus its contributions strategically.  However, and regardless of considerations of good faith and support for the organization, contractual obligations only arise from executed funding agreements.  Based on information from the WHO secretariat, the US government reportedly stated that it would comply with its obligations under existing funding agreements until their termination. A long-term suspension of US voluntary funding would have dramatic consequences for WHO’s ability to implement key programs included in its budget, in particular ironically the health emergency program driving the international response to the COVID-19 pandemic, but it would not raise significant legal liabilities for the government.  This incident, however, highlights the financial vulnerability of WHO due to the distortion of a funding pattern too skewed towards voluntary contributions (a recent critical article by Kristina Daugirdas and me can be found here).

Should the USA suspend for an indefinite period of time also the payment of its assessed contributions, it would risk the suspension of its voting rights in the WHA.  Unlike the automatic loss of vote in the UN General Assembly under Article 18 of the Charter, WHO uses a more lenient approach in implementing Article 7 of its Constitution.  Once a member state is in arrears for an equivalent of at least two years of its assessed contributions, the secretariat reports it to the WHA which adopts a resolution suspending the voting rights of that state but only from its subsequent session.  The defaulting state thus gains an additional year to effect at least a partial repayment.  It is hard to assess, based on available financial data in WHO’s web site, when the US may cross that threshold.  Even though the WHA adopts virtually all decisions by consensus, a loss of voting rights for the US will still have a dramatic political effect and may precipitate the WHA into a similar crisis atmosphere as was the case for the UN General Assembly in the 1960s over the expenses for peace-keeping operations.

2) US withdrawal from WHO

a) US right of withdrawal

The WHO Constitution is deposited with the UN Secretary-General, thus withdrawal would require a formal notice of denunciation addressed to him.  The Constitution does not contain a withdrawal clause.  However, in accordance with a joint resolution of Congress of 14 June 1948, the US instrument of acceptance reserved the right of the US “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”. That reservation was approved by the WHA and the USA is consequently the sole WHO member state with an undisputable right of withdrawal subject to the conditions just noted. At the same time, even if the US notifies its withdrawal shortly, it will take effect in mid-2021. The US will therefore be liable to pay at least part of its assessed contributions also for that year since the WHO’s budgetary period coincides with the calendar year.  However, since the US left substantial unpaid arrears upon its withdrawals from UNESCO and UNIDO, there is no cause for much optimism on this point and the organization has no authority to enforce payments.

b) Authority of the President to withdraw

A related argument concerns the President’s authority to unilaterally denounce the Constitution, since its acceptance was based on a joint resolution by Congress and it could be argued that a similar action would be required for withdrawal. Even though this is a point of US constitutional law and practice on which I can’t claim any expertise, Trump’s worrying statement about WHO and his record of denunciation of other international agreements (including the second US withdrawal from UNESCO) are generating some debate among US scholars on the extent of the President’s authority. As noted most recently by Harold Koh (see here), the sole pronouncement by the Supreme Court in Goldwater v Carter (see text here) on the non-justiciability of the US withdrawal from a bilateral defence treaty with Taiwan may not be dispositive in such a different scenario as the constitution of an international organization. Also from this point of view, therefore, Trump’s statement leaves many questions open.

c) Participation in the International Health Regulations

Under Articles 21 and 22 of the Constitution, the WHA may adopt legally binding regulations that enter into force automatically at the expiry of a notice given by the Director-General, except for those states who object or (under certain conditions) file a reservation before the deadline. WHO has only adopted two such regulations, the best-known example being of course the International Health Regulations (IHR. For my recent post on the IHR, see here). Regulations are embedded in WHO’s governance and their legal basis rests directly in WHO’s Constitution, with the WHA providing oversight and reviewing their functioning. At the same time, the IHR are a “hybrid” instrument open to participation through acceptance by non-member states which were parties to one or more previous sanitary conventions or regulations.  Two such states are currently parties to the IHR, namely, the Holy See and Liechtenstein; for those states, the IHR are in fact a treaty. Under Article 64, non-member states may withdraw from the IHR subject to a six-month notice. Besides the aforementioned possibility of “opting out”, the IHR are silent as to denunciation or withdrawal for WHO member states.  Given their legal nature as a binding act by an international organization rooted in its constitution and arguing a contrario from Article 64, withdrawal is arguably excluded.

Based on the foregoing, a US withdrawal from WHO would arguably entail a parallel and simultaneous withdrawal from the IHR, since Articles 21 and 22 of the Constitution would be no longer in force for it.  From this perspective, the US would be in a position to join again the IHR if and when it chooses as a non-member states under Article 64. It would not be precluded from declaring, upon withdrawal, that it would voluntarily comply with the IHR until their entry into force pursuant to Article 64.

From a functional perspective, however, and to reflect the nature of global public good represented by the global health security framework based on the IHR, a plausible argument could be made in favour of the opposite conclusion.  As just noted, the IHR are based on a binary form of participation for member states and non-members, respectively. A withdrawing USA would fit in neither of these categories and represents a unique and unanticipated occurrence in the IHR architecture.  Since the US qualifies for participation as a non-member state under Article 64 it could be argued that, barring a clear opposite intention, the IHR remain in force for it even after its withdrawal from WHO but subject to the right of withdrawal from the IHR foreseen in the same article.  Unless the USA affirmatively expresses its intention to withdraw from the IHR, in other words, its silence would count as a rebuttable presumption of consent to remain bound by the latter albeit in a different capacity. The latter interpretation is not devoid of difficulties of course, and it cannot be excluded that the matter could be submitted by member states to the WHA’s authority to settle questions of interpretation of the Constitution under Article 75 thereof.

If the USA withdraws from the IHR, it would not be bound by the obligations of due diligence, transparency, cooperation and good faith that are at the very heart of the global health security governance model enshrined in the IHR.  This would be a very negative development given the importance of the country but also paradoxically its vulnerability to epidemics as currently on display with COVID-19. It would weaken the integrity of a health security framework that relies on its universality as an essential feature.  At the same time, the USA would be able to “free-ride” on the assessments, alert and guidance provided by WHO as a global public good to facilitate its own risk assessment and the planning of its national control measures.  It could not, however, use IHR obligations or recommendations as a defence for measures restricting international travel, transport and trade that would inevitably affect the rights of other states under the relevant agreements.

d) Participation in the Pan-American Health Organization

The Pan-American Health Organization (PAHO) is the oldest health organization still in existence (for its history and governance, see here).  Established in 1902 as a loose association of states dominated by the USA, it became a full-fledged regional organization in 1947 (its Constitution is available here).  Confronted with the determined opposition of most American states against merging PAHO into the nascent WHO, the latter’s Constitution acknowledges the temporary subsistence of PAHO pending “integration” with WHO. Notwithstanding this provision, the two organizations remain institutionally separate and independent to this day.  However, pursuant to an agreement concluded in 1949, PAHO serves permanently at the same time as WHO’s regional committee and office for the Americas.  Through a unique (to my knowledge at least) arrangement, PAHO is at the same time a separate organization as well as an organ of WHO.

While an arrangement of this kind has inevitably created ambiguities and difficulties in the relations between the two organizations, participation in PAHO as a separate organization is achieved through signature of its Constitution rather than membership in WHO. A withdrawal of the USA from WHO would therefore not affect its membership in PAHO, but would still raise a number of institutional complications.  For example, policy and programmatic decisions adopted by the WHA also apply to the Americas but would not be formally applicable to the USA unless they were explicitly endorsed by PAHO’s governance.  Conversely, while the PAHO’s Directing Council also acts as WHO’s Regional Committee for the Americas and, inter alia, appoints a person to serve simultaneously as PAHO’s Director and WHO’s Regional Director, the USA’s participation in the Council would have to be qualified in this respect.  In practical terms, it would be difficult if not impossible to disentangle it in a legally meaningful manner.  The USA would, consequently, still indirectly participate in WHO’s governance through PAHO.

Conclusions

This short and rather “clinical” post aims at placing Trump’s statement and its possible meaning and implications within WHO’s institutional framework. As shown above, the meaning and implementation of that statement raise a number of delicate legal questions with potentially multiple forums for discussion and resolution.  Besides these legal considerations, however, withdrawing from an organization that the USA has traditionally supported – and that remains the first line of defense against pandemics – would be extremely negative for the world and create a dangerous void in the heart of global health security. Many of WHO’s landmark achievements, from the eradication of smallpox and the control of poliomyelitis to the revision of the IHR were accomplished also thanks to USA leadership and commitment.  It is to be hoped that the Trump administration will use the “margin of ambiguity” of the President’s statement to avoid such dire consequences.

 

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