In the latest instalment of President Trump’s escalating attacks on the World Health Organisation (WHO), Trump has now declared that the US will be ‘terminating’ its relationship with the organisation on account of China’s ‘total control’. The move is unsurprising given Trump has already frozen WHO funding and that withdrawal (or threatening withdrawal) is becoming one of his signature diplomatic moves. Since 2017, Trump has announced, hinted at, or commenced withdrawal from a growing list of bilateral and multilateral arrangements, including (but not limited to) the Paris Climate Agreement, UNESCO, the TPP, the Optional Protocol to the Vienna Convention for Diplomatic Relations on Dispute Settlement, the Universal Postal Union Treaty (which, so far, has been reversed), NAFTA, the WTO and NATO.
However, whether Trump can actually withdraw from the WHO is far more complicated than issuing a declaration in the Rose Garden or drafting a tweet. In reality, it is a matter which remains highly contested and complicated both in international law and under domestic law, particularly US law. This post briefly outlines some of the key issues arising from Trump’s attempt to withdraw from the WHO and proposes the need for greater clarity on both domestic withdrawal processes and the implied right in international law to withdraw from a treaty.
International law – an implied right to withdraw?
The WHO Constitution is silent on withdrawal. Article 56 of the Vienna Convention on the Law of Treaties (VCLT) presumes that a treaty which does not expressly provide for termination, denunciation or withdrawal is not subject to such acts unless an implied right can be derived from the intention of the parties or the nature of the treaty. A right to withdraw will be implied either where it is established the parties intended to admit the possibility of withdrawal, or where a right of withdrawal can be implied from the nature of the treaty (VCLT Articles 56(1)(a) and (b); see also Gabčíkovo-Nagymarosat ).
Interestingly, statistical reviews of treaty provisions reveal that around 70 percent of agreements include express withdrawal provisions. One consequence of this is that the literature on an implied right of treaty withdrawal remains nascent. Article 56 itself is a source of controversy. Each Special Rapporteur on the Law of Treaties took a starkly different approach to the issues when drafting the VCLT. The finished product (Article 56) has received ‘trenchant criticism’ and its application has been described by Villiger as ‘far from settled’ (p. 706). Publicists have long disagreed over the customary status of the article, with Sir Ian Sinclair describing it as progressive development, whilst Sir Robert Jennings maintained it was a consolidation of lex lata (compare Ian Sinclair, The Vienna Convention on the Law of Treaties (Manchester University Press, 2nd ed, 1984, 17) and Robert Yewdall Jennings, ‘The law of treaties’, in: Collected Courses of the Hague Academy of International Law (Martinus Nijhoff Publishers, 2011) 565, 575). Indeed, the article was amended by the United Kingdom at the eleventh hour to include paragraph (b): allowing withdrawal to be implied on the basis of the nature of treaty. The article in its amended form passed by a slim majority of 26 votes to 25, with 37 abstentions (Akehurst, 144).
From a practical perspective, as highlighted by Judge James Crawford, it is a case of easier said than done when it comes to actually ascertaining whether the parties intended to admit the possibility of withdrawal, or whether the nature of the treaty should imply it. Moreover, it remains unclear whether the procedural regime established in Articles 65 to 67 of the VLCT, including the requirement of written notice and the ability to submit termination disputes to the International Court of Justice, also govern implied withdrawal under Article 56. These provisions apply where a state invokes a ‘ground’ for withdrawal pursuant ‘to the provisions of the treaty’ from which it seeks to withdraw. On their ordinary meaning, it is arguable these procedural safeguards do not apply to an Article 56 withdrawal, and therefore, to Trump’s exit from the WHO. However, Crawford has suggested that, in order to avoid a lacuna, effective principles of treaty interpretation should be employed so that, for example, any VCLT articles on entry into a treaty (e.g. the full power requirement) also apply by analogy to treaty exit.
A deep dive into the travaux préparatoires of the WHO Constitution to ascertain whether the parties intended to admit the possibility of withdrawal might not be necessary when it comes to Trump’s exit. Arguably, the US reserved its right to withdraw from the WHO. A 1948 Senate Resolution indicates that US signature was contingent on:
‘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’.
The Senate Resolution was ultimately included in the US’ instrument of acceptance of the WHO Constitution. Article 20(3) of the VCLT provides that ‘when a treaty is a constituent instrument of an international organization…a reservation requires the acceptance of the competent organ of that organization’. At the time, the reservation raised concerns including from then UN Secretary General, Trygve Lie. A number of States at the First Health Assembly referred to US reservation of a right to withdraw as a ‘technical difficulty’ they were prepared to overlook, on account of the US being a public health leader that could provide much needed financial support. The irony. Ultimately, the First World Health Assembly unanimously adopted a resolution that ‘recognized the validity of the ratification by the United States of America.’
If valid pursuant to this reservation (or some implied right to withdraw), Trump’s withdrawal from the WHO will only come into effect in May 2021, pursuant to the Senate’s imposition of a one-year notice period. This accords with the identical requirement in Article 56(2) that any implied right to withdraw is subject to a 12-month waiting period.
The second condition in the Senate Resolution will be a source of interest considering Trump has already frozen US funding of the WHO and the US owes almost $60 million for the 2020 year (on top of outstanding balances from prior years).
Domestic law – presidential power to unilaterally withdraw?
Issues of international law aside, whether the President alone can decide to withdraw from a treaty, or whether congressional approval is necessary, remains highly contested as a matter of US domestic law. The intricacies of this debate are beyond the scope of this blog post and have been dealt with in great detail by, for example, Professor Harold Koh.
However, it suffices to note in brief, that whilst the US Constitution provides that the President can make treaties with the advice and consent of two-thirds of the Senate, it is silent on who holds the power to withdraw the US from treaties, and in what circumstances. In a 1979 US District Court Case, Goldwater v Carter, MacKinnon J (somewhat prophetically) warned of ‘an ambitious or unreasoned President disengaging the United States from crucial bilateral and multilateral treaties with the stroke of a pen’. Nevertheless, the Court declined to review President Carter’s unilateral termination of a bilateral treaty with Taiwan, ultimately leaving the question of which branch of government has the power to withdrawal from a treaty undecided. Since Goldwater, the position under US law has remained ‘complicated and opaque’.
Similar questions on the power to withdraw one’s State from a treaty have been litigated elsewhere. In January 2017, the United Kingdom Supreme Court in Miller held that the executive could not exercise its prerogative powers to leave the European Union without parliamentary approval. Less than a month later in respect of the Rome Statute, the High Court of South Africa came to a similar conclusion in Democratic Alliance v Minister for International Relations. There, the Court ordered the executive to revoke the instrument of withdrawal and required any future withdrawal to be preceded by parliamentary approval. The Supreme Court of the Philippines was also due to consider the validity of Duterte’s withdrawal from the Rome Statute. However, after 12 months had passed, the withdrawal took effect before the Court delivered any judgment.
Trump is not the first to rely on treaty withdrawal as a go-to diplomatic tool. He is also not the first to have purported to withdraw from the WHO in particular. The Soviet Union and a number of Eastern European States claimed to have withdrawn in the 1950s. However, the list of withdrawals has grown exponentially in the past five years when we consider Brexit along with the growing number of African Union States, and the Philippines, making steps to withdraw from the Rome Statute. Indeed, we can expect to see more purported withdrawals as a symptom of the current international climate and what Judge Crawford describes as a period of ‘treaty fatigue’.
However, even if part of a broader and growing trend, Trump’s withdrawal from the WHO should serve as an important demonstration that although 70% of treaties include express withdrawal clauses, some of the most important multilateral conventions (including the two human rights Covenants, the UN Charter and, of course, the WHO Constitution) are silent on the issue. In November 2018, Professor Koh, declared the time ‘ripe for both the academy and the courts’ to explore the question of unilateral Presidential withdrawal afresh. The arrival of a pandemic and the attempted withdrawal of the US from the WHO, in the middle of that pandemic, makes the time overripe for consideration of these live domestic and international law questions.
Keilin Anderson is an Assistant Editor of the ILA Reporter.