International Law, the Power of the Purse, and Speaking with One Voice: The Legal Cacophony Created by Withholding U.S. Dues from the United Nations

Summary

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Throughout the last quarter of a century, the United States has frequently withheld the dues it owes the United Nations. Both Congress and the President have, alternatively, instigated the withholdings. The U.S. government has often made payment of its U.N. dues contingent on the United Nations accomplishing certain specific tasks. The most recent example of such contingent withholdings was the Henry J. Hyde United Nations Reform Act of 2005, passed by the House of Representatives on June 17, 2005. The Hyde Act was a congressional attempt to "force" the United Nations to reform by making the United States' payment of U.N. dues contingent on a series of extensive reforms. Although the Hyde Act did not pass in the Senate, the controversy created by its passage in the House demonstrates the problems created when one branch of the government single-handedly attempts to abrogate the United States' treaty obligation to pay U.N. dues. This Note argues that single-branch withholdings of the United States' dues to the United Nations, such as the Hyde Act, are illegal and unconstitutional. Because the Hyde Act would have authorized the United States to violate its international treaty obligation of collective financial responsibility set forth in the U.N. Charter, the Act would have violated international law. Because the Hyde Act would have usurped the executive branch's power to regulate the nation's foreign affairs and execute the laws, the Act would have been unconstitutional. This Note concludes that the United States should not withhold its U.N.-assessed dues or threaten to do so because doing so violates international law. However, this Note concludes that, if the United States does engage in withholdings, constitutional law requires those withholdings to be executed through a power-sharing arrangement involving meaningful participation of both the legislative and executive branches.

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International Law, the Power of the Purse, and Speaking with One Voice: The Legal Cacophony Created by Withholding U.S. Dues from the United Nations

Britta A. Schnoor: I would like to thank my family, friends, and teachers around the globe for constantly reaffirming my belief that a better world is both necessary and possible. I would also like to thank the Iowa Law Review editors and student writers for their many insightful comments and edits throughout the publication process. All errors and omissions are my own. "Violating the Law of Nations is neither an appropriate nor effective technique to express exasperation with the United Nations."

- Representative James A. Leach1"These provisions impermissibly infringe on the President's authority under the Constitution to conduct the Nation's foreign affairs."

- Bush Administration2"[W]ith all due respect to the Executive Branch, the purse strings do not belong to you. They belong to the people and they are determined from here."

- Representative Darrell E. Issa3

I. Introduction

When the victors of World War II came together to found the United Nations in 1945, they set forth their vision of a world free from the "scourge of war."4 The founders idealized an organization that would "maintain international peace and security," "develop friendly relations among nations," "achieve international co-operation in solving international problems," and "be a centre for harmonizing the actions of nations in the attainment of these common ends."5 In order to enable the organization to achieve these ideals, the founders signed on to the collective financial responsibility to fund the U.N. budget.6

Although the United States was among the founding countries-and thus accepted its collective financial responsibility as a treaty obligation when it became a member of the United Nations and signed the U.N. Charter-the United States has since circumvented its responsibility on multiple occasions. Most recently, the U.S. House of Representatives attempted to make the United States' payment of U.N. dues contingent on a series of wide-ranging reforms. On June 17, 2005, by a vote of 221 to 184, the House passed legislation to withhold dues from the United Nations should it fail to complete a series of extensive reforms within the next two years.7

Representatives named the legislation the "Henry J. Hyde United Nations Reform Act of 2005" (the "Hyde Act") after the Act's author, then-House International Relations Committee ("HIRC")8 Chairman Henry J. Hyde.9

The Hyde Act was controversial because it mandated the United States to withhold fifty percent of its U.N. dues should the United Nations fail to implement at least thirty-two of the thirty-nine proposed reforms within two years.10 Another controversial provision would have required the President to veto any new or expanded peacekeeping operation until a series of peacekeeping reforms were certified.11

Supporters of the Hyde Act argued that threatening to withhold dues would be the only way to make the United Nations reform.12 In contrast, the diverse array of actors opposing the Hyde Act argued that the Act violated international law,13 usurped the executive branch's foreign-relations power,14 and signified a poor policy decision at a time when the United States was desperately in need of friends within the world community.15

The Hyde Act was not the first time the United States has considered withholding dues from the United Nations in order to make it reform.16Even so, the passage of the Act ignited criticism on multiple fronts. This Note examines the criticisms of the Hyde Act and similar withholdings and argues that single-branch withholdings of the United States' regularly assessed dues to the United Nations violate the international treaty obligation of collective financial responsibility under the U.N. Charter and are unconstitutional under the separation-of-powers doctrine.

Part II of this Note begins by giving a brief history of U.S. relations with the United Nations, including the history of withholdings,17 and then explains the basic international and domestic legal issues presented by the withholding of dues.18 Part III discusses the Hyde Act and various actors' reactions to it.19 Moving on to the substantive legal arguments, Part IV argues that any U.S. withholding of regularly assessed dues to the United Nations violates the United States' treaty obligations.20 Part IV also argues that, even if the U.S. government ignores the international law violation, the withholdings are unconstitutional under the foreign-affairs and separation- of-powers doctrines.21 Finally, Part V concludes by discussing the ways in which the international community could respond should the United States once again withhold its U.N. dues.22

II. Histo...

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