Interesting US Foreign Relations Law analysis (as always) from Harold Koh, but we need an Int'l Law Twitter discussion too - why assume USG can w/draw from @WHO Constitution at all? I think @StateDept must do more than 12 mos. notice: justsecurity.org/70493/trumps-e… via @just_security
The Vienna Convention on the Law of Treaties (VCLT) is widely recognized to codify an exhaustive list of treaty exit options (&, yes, I know US has never ratified the VCLT but the last 8 Administrations all recognized most of its provisions reflect customary int'l law)
VCLT Art. 56(2) says that where a treaty has no provision for withdrawal (and note the @WHO Constitution lacks such a provision) the treaty "is not subject to denunciation or withdrawal" with 2 exceptions.
First, withdrawal is possible if "it is established that the parties intended to admit the possibility of denunciation or withdrawal" or, second, a right of w/drawal "may be implied by the nature of the treaty."
Under VCLT Art. 56(2) a party is required to give "not less than 12 months' notice of its intention to denounce or withdraw" from treaties, BUT ONLY within the 2 exceptional categories of 56(1)
Now presumably, many are assuming a 12 months notice period to w/draw from the @WHO Constitution (b/c the US Congress provided as much in its authorization for US consent to that treaty). I wonder though if we don't need to double-check Congress' assumptions?
Simply put, is the @WHO Constitution the type of treaty for which a right to withdraw may be implied? (or does the travaux preparatoires reveal a collective expectation of such a right). To be honest, I don't know the answer to that question.
But I do think the @StateDept will need to at least make the case for why a w/drawal right may be implied here, as otherwise the default position is no withdrawal at all!
Note, moreover, this case is unlike US w/drawal from @UNESCO since its Constitution includes an explicit w/drawal clause (which provides for 12 months notice). In contrast, the UN Charter has no w/drawal clause and many have assumed w/drawal is not a legally available option
Bottom line - given the default rule that the US cannot w/draw from the WHO Constitution as a matter of int'l law unless that treaty fits into one of 2 exceptions, I think its on the US to make the case for why one of those exceptions applies here.
And one more thing, if the US can imply a right to w/draw on 12 months notice, it will still be obligated to comply with the WHO Constitution till the expiration of that time period (see VCLT Art. 70(1)(b))
