Economics and Policy

The U.S. Withdrawal from the WHO: The Complications

Introduction

Diseases have been an integral part of human life, be it the 1918’s Spanish flu[1] or the recent COVID-19. However, it was when the United Nations became concerned about International public health that the World Health Organization was brought into existence[2]. It is always being said that “With great power comes, great responsibility” however, in the context of the WHO, it is quite ironic. The World Health Organisation has worked for human health and progress, but it is not free of political struggles and walkouts. Even in trying times like these, some political leaders persist to place their interests above those of humanity and mankind.

The United States President Donald Trump on Tuesday, July 7, 2020, formally began the process of withdrawal of the USA from the World Health Organization (WHO), depriving the health agency of its top funding source worth $400 million over its “irresponsible” response to the deadly coronavirus that has engulfed the world.

Past Incidences

Withdrawal from the World Health Organization is nothing new and completely unparalleled. Shortly after the formation of WHO, in 1949 the Soviet Union led a nine-member Eastern Bloc walkout over fears that the USA. had a more dominant say in the organisation. The WHO constitution at that point of time made no allowance for members to withdraw, and hence the Soviet Union never did withdraw. The WHO merely transferred the states to “inactive” status and restored their active status again in 1956 when they formally joined again.

Taiwan was then the representative of China and became a founding member of the World Health Organization. However, the UN recognised the People’s Republic of China as its sole delegate in 1971. This sparked a decade-long controversy over Taiwan gaining the observer status within the organization that was reinstated in 2009. Taiwan was removed in 2016 after China made a petition that was successfully voted for.

The Current US Withdrawal and its Impediments

For the United States too, the withdrawal process is complicated. The United Nations entered the WHO membership through a 1948 joint congressional resolution[3] that has been supported by all past administrations of the country. The current U.S. administration’s unilateral action notifying the U.N. that the U.S. is withdrawing violates U.S. law because it does not have the express approval of Congress to leave WHO. Harold Hongju Koh, a Former Assistant Secretary of State, and Lawrence O. Gostin, director of the World Health Organization Collaborating Center on National and Global Health Law, note that the Supreme Court has judged in the past that presidents do not have the unilateral constitutional authority to withdraw from such treaties [4].

The President does not have the legal authority to withdraw the United States from the WHO. As the same Joint Resolution authorised an annual appropriation to the State Department for the payment of the U.S. share of the expenses of the organisation, the Joint Resolution imposed its dual conditions on the President by exercising both Congress’ constitutional power to approve treaties and its power of the purse. As Justice Jackson famously observed in the Steel Seizure case, Youngstown Sheet & Tube Co. v. Sawyer[5], “Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” In this case, the power bestowed upon the President falls short of withdrawing the United States from binding international agreements in which the Congress is poised at a unanimous disjunction. By seeking to act contrary to both of Congress stated conditions, President Trump’s actions fall into Category Three of Justice Jackson’s famous tripartite Steel Seizure framework [6], where the President’s constitutional power stands at “its lowest ebb.”

The upcoming U.S. presidential election may also render the point moot. The administration must provide one-year notification and meet its established financial obligations and assessed contributions to leave the WHO, as specifically outlined in the 1948 resolution. While Trump has given the one-year notice for departure and because any withdrawal could not take effect until July 2021, a new U.S. presidential administration could simply revoke the withdrawal upon taking office. By then, the election in November could propel a new president.

How the WHO Can Deal with It

Even just threatening to leave the WHO casts a chilling effect on the public health community. Perhaps there will be a change in the country’s leadership, and it will never happen. Nevertheless, with the harm done by this move, the United States would find it challenging to collaborate with its foreign partners at the same degree of respect and trust.

Benjamin Mason Meier states, “This announcement appears to be little more than an election promise masquerading as health policy, and it is likely that WHO will diplomatically ignore it – considering the US an ‘inactive member’ and leaving open the door for U.S. re-engagement under the next administration,” he is an expert in international law and global health at U.N.C. Chappel Hill.[7]

Firstly, just like WHO made the Soviet Union an inactive member, as stated before, it can strategically do the same without incurring any losses. The U.S. is scheduled to elect a new administration before the expiry of the one-year notice period. Secondly, should Trump be re-elected, the United States would still be legally obliged to pay the balance of its 2020 assessed contribution: roughly $60 million, to fulfil one of the two congressional conditions. (For 2020, the assessed contribution is about $120 million, of which the United States has already paid half.) That is due not only to the Joint Resolution but also to the existence of congressionally approved funds for the WHO. As Speaker Nancy Pelosi recently argued, failure to pay the WHO would violate the same legal rule that the nonpartisan Governmental Accountability Office (G.A.O.) determined[8] the White House violated in delaying congressionally authorised funding for Ukraine, a matter at issue during the Trump impeachment.

Conclusion

“In times of crisis, real leadership is characterised by constructive engagement not destructive disengagement” – Tim Evans

The U.S. and other countries were worried about the results of WHO during the Ebola crisis in 2014-2015. Instead of withdrawing membership and support, the U.S. has helped the WHO improve in far different ways, under the outstanding leadership of Ambassador Jimmy Kolker.

COVID-19 exposed shortcomings in the powers and finances of the WHO, which require significant change. WHO has only limited powers to ensure obedience by the state to the I.H.R., including a restricted right to check official state reports independently. However, after leaving WHO, the U.S. would be on the outside looking in, without global influence to promote crucial reforms. Moreover, independent U.S. systems will never replace a genuinely global organisation.


Endnotes:

[1] https://www.history.com/topics/world-war-i/1918-flu-pandemic

[2] https://www.targethealth.com/post/history-of-the-world-health-organization-who#

[3] https://avalon.law.yale.edu/20th_century/decad052.asp

[4] http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1080&context=yjil

[5] https://www.oyez.org/cases/1940-1955/343us579

[6] https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1169&context=aulr

[7] https://www.forbes.com/sites/madhukarpai/2020/06/03/us-withdrawal-from-who-sad-for-global-health-and-bad-for-america/#50d58b9f1327

[8] https://www.washingtonpost.com/business/economy/white-house-hold-on-ukraine-aid-violated-federal-law-congressional-watchdog-says/2020/01/16/060ea7aa-37a3-11ea-9c01-d674772db96b_story.html

This article is authored by Deb Zyoti Das, a student of Himachal Pradesh National Law University.

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