The Trump administration may end U.S. participation in the United Nations Human Rights Council (“UNHRC”), according to two sources in regular contact with former and current officials. While no immediate withdrawal is expected, this news is likely to deepen the concerns of global activists that the United States may decrease its role advancing global human rights under President Trump. Furthermore, U.S. withdrawal from UNHCR would be a severe blow to the institution as American funding accounts for nearly half its overall budget.
There could be several underlying reasons behind the potential withdrawal, such as concerns that the council unfairly targets Israel, questions about member states, and doubts about its overall usefulness. However, it can also be understood as a part of the Trump administration’s broader scheme of foreign policy initiatives. Potentially withdrawal from the UNHRC may only be the first of many exits from international institutions to come. Trump and his key advisers promote “America First” foreign policy, which sees international organizations as at best sometimes-convenient instruments to serve U.S. foreign policy interests; at worst, as unnecessary shackles.
The Trump administration’s anti-globalist stance, is reflected in the draft order “Auditing and Reducing U.S. Funding of International Organizations,” which sets to cut voluntary support United States for international bodies by at least 40%. The White House is not alone in this anti-globalist outlook. A bill, entitled the American Sovereignty Restoration Act of 2017, introduced by Alabama Representative Mike Rogers earlier this year, calls on the United States to “terminate” its membership in the United Nations (“UN”). Arizona Representative Andy Biggs, who cosponsored the bill, stated that he believes that “our sovereignty as a country is harmed by our membership in this body.”
So far very few Republican lawmakers support a full United States withdrawal from the UN. Nikki Haley, Trump’s pick to replace Samantha Power as the American ambassador to the UN, while acknowledging that international organizations are often at odds with American national interests, stated that she doesn’t believe that there should be “a slash and burn” of the U.S. funding for the organization. But with both the White House and the Congress recently gravitating towards reexamining the United States’ disproportionate financial contribution to international organizations, America departing from the UN is no longer such a far-fetched notion.
This elevated possibility of withdrawal raises the question of whether members may legally withdraw from the United Nations. Although circumstances were certainly different, recent British withdrawal from the European Union also provides extra cause to consider more generally about how and when states may in fact withdraw from international organizations. Unlike the now well-known Article 50 of the Treaty on European Union, there is no explicit clause or article in the United Nations Charter regarding withdrawal from the organization. There are also no resolution, public statements, or procedures regarding this issue.
The only case where a UN member attempted withdraw was when Indonesia communicated its withdrawal decision to the Secretary-General in January 1965, in protest of Malaysia’s election to the Security Council. Following changes in its government however, Indonesia swiftly sought reentry in September 1966 to “resume full co-operation with the UN and to resume participation in its activities.” Back then, the UN Office of Legal Counsel devised a pragmatic arrangement in dealing with Indonesia’s return by reasoning that since the withdrawal had not been officially accepted, Indonesia would not be treated as a new applicant and could skip the reapplication process. This avoided a potential veto to Indonesia’s readmission, but left uncertain the complex legal question of whether and when a member could legally withdraw from the UN.
Therefore, without even a clear precedent regarding this issue, an answer must be derived from the UN Charter and general treaty law. According to Art. 56(1) of the Vienna Convention on the Law of Treaties, if a treaty does not explicitly provide withdrawal, withdrawal is legally impermissible unless it is established that the parties implied a right of withdrawal. While the drafters of the UN Charter rejected a proposal to include an explicit withdrawal provision by a 19-24 vote, the committee nonetheless approved a declaration establishing withdrawal criteria.
The declaration enumerated three conditions under which a nation could withdraw: (1) when the UN was revealed to be unable to fulfill its role of maintaining peace, (2) when a member was unable to accept a charter amendment that had come into force, (3) or when a member feels constrained to withdraw because of exceptional circumstances. Proving that the UN has failed to fulfill its role or that there is an unacceptable amendment coming into force would be extremely difficult. Even the more general and open-ended “exceptional circumstances” clause cannot be interpreted as allowing withdrawal for any reason.
Washington’s recent inclination towards disengagement from international institutions involves several complexities that must be carefully considered, such as the risk of such decisions could destabilize friendly governments, hamper international humanitarian efforts, and create political chaos. But the legal issue of whether such exits are possible, or acceptable, must also be part of the equation.
Eric Lee is a second-year student at Columbia Law School. He graduated from Wesleyan University with a degree in East Asian Political Economy.