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Can the #US halting of #WHO funding be justified as a countermeasure? Note, ofc, that this is not the only and by far not the most important question, and even a positive answer doesn’t mean that it should be done -- plus rules on cm constrain as much as authorise. 1/n https://twitter.com/WhiteHouse/status/1250194670031974400
Usual dynamic, trailing structure if not fine legal print in State/IO practice, is (1) IO engages in conduct, (2) viewed as wrongful by a CP, (3) which halts funding until IO ceases to wrongful act, (4) IO folds/CP resumes funding or (5) IO doesn’t fold/no funding/CP folds. 2/n
Worth noting that some bits of the 2001 ILC Articles on countermeasures more clearly customary than others – in my view, basic structural assumptions (Arts 49, 51, 53) are good custom, with a small ? about parameters of proportionality, conditions in Art 52 less clearly so. 3/n
Wrongful act by US. Cm apply to justify wrongful conduct, so if conduct not wrongful it need not be justified. Happy to be corrected by IO financing experts but it seems that US financing is ¾ voluntary, so to that extent halting it not wrongful (?) http://open.who.int/2018-19/contributors/contributor 4/n
Wrongful act by WHO. Unusual twist is that States usually argue that IOs have acted ultra vires – think old debates about peacekeeping or European disputes recently – while here the argument seems to be that WHO has failed to do what it had to do. https://twitter.com/WhiteHouse/status/1250196870305058821?s=20 5/n
Seems to be fairly creative (legal) reasoning – read charitably, Vivendi annulment type argument that not doing something that has to be done is just as ultra vires as doing something that cannot be done – couched in global administrative law language #impact @nyuiilj 6/n
Induce compliance. Cm are usually directed at cessation of continuing wrongful acts, although may be applied to get reparations. Here, it seems that US reacts to alleged concluded wrongful acts, rather than tries to induce WHO to change something -- not what cm are about. 7/n
Resumption of compliance/termination. In general, suspension of funding is eminently suitable to resumption of compliance. The problem with timing is that criticism seems to be solely of past conduct so not clear what ongoing conduct calls for adoption/maintenance of cm. 8/n
Proportionality. Hard to discuss proportionality without greater clarity about the alleged breach is. This feeds into the discussion of timing: if the measure is adopted before review of allegedly wrongful acts has taken place, can it be proportionate? 9/n
Procedural conditions. Not obviously complied with but, as I said in the beginning, these may have a lighter relation to custom. Not obvious, in any event, that this is a case of urgency that would allow foregoing procedural requirements. 10/n
Tl;dr: cm relevant only to the extent that US acts wrongfully, and ? for IO financing experts whether suspension of voluntary funding is; otherwise biggest problem that suspension framed as punishment for concluded past conduct, not as inducement to resume good conduct. 11/11
