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US law and possible Palestinian WHO membership: Implications for WHO funding

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This post was co-authored by Eric A. Friedman and Professor Lawrence O. Gostin.

At the end of October, the United States announced that it would cease funding UNESCO, the UN Educational, Scientific and Cultural Organization, when the agency voted to accept the Palestinian application for full membership, which will make Palestine UNESCO’s 195th member. This immediately raised questions about US funding for other UN agencies in which the Palestinian Authority may seek membership. Under current US law, if the PA seeks full membership in the World Health Organization (WHO) – as reportedly it is interested in doing – the consequences for global health could be dire.

The 1990 and 1994 U.S. laws that led to the cut-off of funding for UNESCO, and could do the same for WHO, bar any U.S. contributions to the UN or any affiliated agency that grants full membership to an organization “without the internationally recognized attributes of statehood,” or to the UN or any specialized agency that grants full membership to the Palestinian Liberation Organization:

Limitation on Contributions to the United Nations and Affiliated Organizations

Pub.L. 103-236, Title IV, § 410, Apr. 30, 1994, 108 Stat. 454, provided that: “The United States shall not make any voluntary or assessed contribution-

“(1) to any affiliated organization of the United Nations which grants full membership as a state to any organization or group that does not have the internationally recognized attributes of statehood, or

“(2) to the United Nations, if the United Nations grants full membership as a state in the United Nations to any organization or group that does not have the internationally recognized attributes of statehood, during any period in which such membership is effective.”

Membership of the Palestine Liberation Organization in United Nations Agencies

Pub.L. 101-246, Title IV, § 414, Feb. 16, 1990, 104 Stat. 70, provided that:

“(a) Prohibition.–No funds authorized to be appropriated by this Act or any other Act shall be available for the United Nations or any specialized agency thereof which accords the Palestine Liberation Organization the same standing as member states. 

Palestinian application for WHO membership fits within the plain meaning of the law, particularly the 1994 law. The President lacks meaningful discretion in implementing the law, and would be hard-pressed to do other than cut off funding for the WHO should Palestine be admitted as a full member.

 The law itself does not provide any explicit Presidential discretion. The only discretion, therefore, would come in determining whether or not Palestine’s membership in the WHO would come within the scope of the law. Most plausibly, the President might determine that the singling out of the PLO in the law does not render the law’s automatic application to the entity that actually would apply for membership, the Palestinian National Authority (PNA). The PLO is a political organization, whereas the PNA is an elected governing body of much of the West Bank and (the lack of control notwithstanding) the Gaza Strip.

If the President determined that the PNA’s application for membership did not automatically trigger the law, the President would have face the question whether Palestine has internationally recognized attributes of statehood, and if not, whether WHO is an affiliated agency of the United Nations covered by the law.

The President might well determine that Palestine has internationally recognized attributes of statehood, though this is clearly a subject of some controversy. These attributes (as delineated in the 1933 Montevideo Convention on the Rights and Duties of States are: a) a permanent population; b) a defined territory; c) a government; and d) the capacity to enter into relations with the other states. The most controversial of these may be a defined territory, as its final borders are still to be negotiated.  Still, South Sudan has been uncontroversially recognized as a state even with final borders that had yet to be negotiated. And Palestine would hardly be the first state to have ongoing border or territorial disputes with its neighbor. The elected government does not control the Gaza, but again, Palestine would hardly be the first state where the recognized government – in this case, the Palestinian National Authority – lacks control over significant portions of its territory. Indeed, more than 100 countries recognize the state of Palestine.

If the Administration did not concede that Palestine met criteria for statehood, it would be hard-pressed to avoid cutting off funding to the WHO, as that would mean that the WHO is not an “affiliated organization of the United Nations” within the meaning of the law.

A logical distinction might be made between organizations under the direct control of one of the main organs of the United Nations, such as the General Assembly (to which UNICEF and the UN Development Programme report, for example), and organizations with a less direct UN connection. The WHO is a specialized agency, meaning that it was independently established, with its own governing structure, but entered into a special arrangement with the United Nations, which made it a specialized agency within the meaning of article 57 of the UN Charter. This specialized agency status is incorporated into the WHO’s own Constitution (article 69). Still, determining that WHO and other specialized agencies were not “affiliated organizations of the United Nations” would have pushed the bounds of reasonable interpretation of the law. Organizations such as UNICEF and the UNDP do not establish membership separate from general UN membership, which would render wholly redundant the application of the law to organizations affiliated with the UN as opposed to UN membership itself, which is also covered by the law.

However, whatever the extent that these potential ways out from the constraints of the application of the law may have existed, the Administration’s decision to apply the law when the PNA applied for membership to UNESCO seems to have foreclosed any possible executive discretion when it comes to the WHO. Both UNESCO and WHO are specialized agencies of the United Nations. Since the Administration determined the law applies to Palestinian membership in UNESCO, it seems bound to make the same determiniation for the WHO. Unlike UNESCO, the WHO does not have “UN” in its name, but legally speaking, this distinction is immaterial.

The impact of cutting of the US cutting off funding to the WHO would be very significant. In 2008-2009, the United States was the top voluntary contributor in absolute terms, providing the Organization $407,449,466. Those two years, the United States also paid approximately $208 million in assessed contributions. The United States pays 22% of total assessed contributions, and will pay, for the upcoming 2012-2013 biennial WHO budget, $219,758,900 in assessed contributions. If voluntary contributions remain the same, the United States would be providing the WHO with more than $600 million in 2012-2013, or about 15-16% of the WHO’s total $3.959 billion budget. (If the US did not pay, the WHO’s governing body, the World Health Assembly, would have the option of suspending its “voting privileges and services” (WHO Constitution, article 7).

Palestine is presently an observer, a status not included in the WHO Constitution. Could there be a deal where the Palestinians could upgrade their status in the WHO without becoming a full member – in particular, by becoming an Associate Member? This is not a meaningful option. It is a rare status; currently, there are only two such Associate Members, Puerto Rico and Tokelau. The US would not have to cut off funding to the WHO if Palestine were admitted as an Associate Member (since this would not be full membership and not the same standing as member states).

However, this is essentially a moot point. According to the WHO Constitution, “Territories or groups of territories which are not responsible for the conduct of their international relations may be admitted as Associate Members by the Health Assembly upon application made on behalf of such territory or group of territories by the Member or other authority having responsibility for their international relations” (art. 8.). By any reasonable interpretation, the Palestinian National Authority is responsible for its own conduct of international relations. Surely it is acting independently of Israel. Yet even an assertion that it was in some way not responsible for the conduct of its international relations because of the control that Israel continues to exert would require that Israel itself seek Palestine’s associate membership in the WHO, which is quite implausible in the current political environment.

If Palestine applied for full WHO membership, it would have a very good chance of being accepted – unless recognizing that damage this would do to WHO in terms of funding, many states that would support Palestinian membership in concept were to vote against such membership. For non-UN Charter members, all that membership takes is a simple majority vote in the WHA. The vote in UNESCO in favor of Palestinian membership was 107-14-52. If anything remotely close to this vote were to be replicated in the WHA, Palestine would be admitted as a full WHO member.

A recent, though contested, report suggests that there might be a negotiated solution to the current debate over Palestinian membership in UN agencies, if not perhaps UN membership itself. This may lead the PNA to suspend its application to the WHO.

Whether or not this proves the case, the warning bell has rung. Funding expectations have already forced the WHO to cut its 2012-13 budget by nearly $1 billion compared to the Director-General’s initial plans, resulting in a budget of $3.959 billion. A further cut of over $600 million would be devastating. It is worrisome enough that this is a real possibility under current US law. It should be unacceptable, though, that Palestinian membership would automatically trigger this cut, without any opportunity to weigh the consequences to global health, and choose a less harmful course.

One could debate whether or not, at this stage, Palestinian membership in UN agencies would advance the cause of a genuine peace and two-state solution. Beyond doubt, however, is that under current law, and how the Administration has chosen to apply it to UNESCO, if the PNA seeks and receives Palestinian membership into the WHO, global health will be the loser.

Congress should act now to prevent this possibility from coming to pass. At the least, it should amend the 1994 law to expressly give the President or Secretary of State the discretion to decline to apply the law if they determine that cutting off funding would undermine U.S. interests, including international policy goals such as improving global health. Such a goal is best served by a fully funded World Health Organization.

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