WHO and Trump’s Treaty Termination — Lawful, Yes. But Bad Policy.


Good editorial in the New York Times today — “Don’t Leave the WHO, Strengthen it.”  Here’s some statements concerning the president’s right to withdraw from a treaty:

    • The world is fighting the most serious pandemic in a century, and the United States is in the process of withdrawing from the only international organization equipped to lead that effort.
    • It remains to be seen whether Mr. Trump can withdraw from the organization without congressional approval.
    • Some global policy experts say that because the United States joined the W.H.O. by treaty, the president will need congressional approval to leave it. But previous presidents have withdrawn from treaties without lawmakers’ approval.
    • But just because Mr. Trump may have legal standing to take the country out of the W.H.O. doesn’t mean he should.
    • But withdrawing from the W.H.O. in the middle of a global pandemic is a terrible solution to those problems.

The New York Times isn’t quite right as to the law. Presidents do have the right to terminate and withdraw from a treaty without congressional approval. It’s part of his foreign affairs powers. Courts have upheld this unilateral termination. In fact, I would argue even if the implementing legislation for a treaty precludes this, as a matter of international law that termination would still stand.

A lot more can be said about treaty termination. Unfortunately, the Constitution and the courts don’t say much about it. Neither does public international law or the law of treaties, specifically. The inter-play between constitutional law, international law, self-executing and non-self-executing treaties and foreign policy is certainly an area that could benefit from renewed attention by American courts and scholars.

But the decision to withdraw from the WHO, whether or not it conforms to U.S. law or the treaty itself, is a real bad idea.

 

About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (School of Public Policy).
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