A draft World Health Organization (WHO) Pandemic Agreement, released on February 1, would make U.S. sovereignty to make its own decisions about public health and pandemic management provisional, “provided that” the U.S. response and activities “do not cause damage to their peoples and other countries.”
Article 4, Section 3 of the draft agreement states, “Sovereignty – States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to determine and manage their approach to public health, notably pandemic prevention, preparedness, response and recovery of health systems, pursuant to their own policies and legislation, provided that activities within their jurisdiction or control do not cause damage to their peoples and other countries. Sovereignty also covers the rights of States over their biological resources.”
The draft agreement also allows for provisional adoption of the agreement in Article 35 to expedite implementation, entitled, “Provisional application by the Parties, and actions to give effect to the provisions of the WHO CA+ by the World Health Assembly.” Article 35, Section 1 states in part, “The WHO CA+ may be applied provisionally, in whole or in part, by a signatory and/or Party that consents to its provisional application by so notifying the Depositary in writing at the time of signature of the instrument, or signature or deposit of its instrument of ratification, acceptance, approval, formal confirmation or accession.”
This essentially means that signatories like the U.S. — President Joe Biden is planning on signing the agreement — would retain sovereignty over their pandemic responses, but only insofar as it does not harm the American people and/or other countries, in the opinion of the other signatories, the World Health Assembly and WHO.
That is provisional sovereignty. And yet, provisional sovereignty is no sovereignty at all. The implication is that Biden apparently plans on agreeing to accepting the WHO’s dictates for any future pandemics that may arise.
To add insult to injury, Biden has no intention of sending this agreement to the U.S. Senate for ratification as a treaty. It would be one of those executive agreements that, like the Paris Climate Accords, was not really binding (although certain federal courts might invariably disagree), similarly allowed countries to set their own carbon emissions targets and never had any true enforcement mechanisms.
Former President Barack Obama signed the Paris agreement in 2016, former President Donald Trump pulled the U.S. out of the agreement in 2017 and current President Joe Biden brought the U.S. back into the agreement in 2021. In the meantime, actual emissions policies — to the extent any of them are even in effect any more after the Supreme Court struck down the so-called Clean Power Plan imposed on states in West Virginia v. EPA — are set by Congress by law and the executive branch by regulation.
To the extent that such executive agreements, whether the Paris accords or the WHO agreement lack any bipartisan input at all via the Article II, Section 2 treaty making process, they are hardly worth the paper they are printed on and amount to international virtue signaling. The downside is the U.S. will be a party to the agreement while Biden remains in office. The upside is that a future president can just ignore them or else just withdraw from them, as Trump did with the Paris agreement in 2017.
In the meantime, legislation offered by U.S. Sen. Ron Johnson (R-Wis.), if passed and signed into law, would have the WHO convention be “deemed to be a treaty” under law, mostly to create an up or down vote in the Senate that would stand a good chance of defeating the agreement if it were to come up.
Leaving aside constitutional arguments — is it “necessary and proper” for Congress under Article I, Section 8 of the Constitution to determine which prospective, draft international agreements the President must be delivered to the Senate, or is it in the President’s sole determination alone under Article II, Section 2 of the Constitution to say what constitutes a treaty? — the fact remains that under this particular agreement, the U.S. would only retain sovereignty over public health and pandemic response “provided that activities within their jurisdiction or control do not cause damage to their peoples and other countries.”
That might make this particular executive agreement unconstitutional, since it appears to potentially override U.S. laws and regulations that Congress and the President might put into effect in the event there is another global pandemic, and yet without any Senate ratification cannot effectively be deemed to be the “supreme law of the land” under Article VI of the Constitution.
Implicitly, that would mean states like Florida or Texas, which are bound by the Supremacy Clause to follow the Constitution, federal laws and treaties brought into effect under the terms of the Constitution, and therefore would be under no obligation to follow it if forced to choose between federal laws and regulations and contrary instructions from WHO. So why bother? States may wish to test this particular executive agreement in federal court.
President Biden should just submit the agreement as a treaty to the U.S. Senate if he feels strongly enough about it and wishes it to have any lasting impact. Of course it will be dead on arrival and go down in flames as Senate Republicans refuse to submit to a world governing body, but that is really no different than signing onto what amounts to a joint letter or press statement, pretending mightily that any of it really matters.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.
