By Konstantinos D. Magliveras, Professor of Public International Law at the University of the Aegean, Co-Editor of A Comparison of the European, Inter-American, African and Arab Human Rights Courts: Institutional Aspects (T.M.C. Asser Press / Springer 2025)

  1. Introduction

The U.S. Agency for International Development (USAID) was established in 1961, at the height of the Cold War, as the U.S. government’s principal international humanitarian and development agency. Its operation was unceremoniously terminated in 2025, an early victim of the drastic measures taken by the Department of Government Efficiency (DOGE) under the stewardship of a businessman (E. Musk).[1] Following the demise of USAID, the US administration has pursued other, radically different, avenues to carry on its foreign policy of providing assistance to third countries. The present note examines one such avenue, the memoranda of understanding (MoU) signed with individual African states in the area of health assistance. 

  1. Disbanding USAID, creating DOGE and the question of legality of the US administration’s actions

On 1 July 2025, Secretary of State Rubio announced that, as of the same day, ‘USAID will officially cease to implement foreign assistance’. The reason was that, as ‘every public servant has an obligation to American citizens to ensure any programs they fund advance our nation’s interests’, the review of  USAID’s work revealed that it  ‘fell well below this standard’.  Henceforth, all foreign assistance programmes would have to advance American interests. He mentioned an example: ‘ [i]n 2023, sub-Saharan African nations voted with the United States only 29 percent of the time on essential resolutions at the UN despite receiving $165 billion in outlays since 1991. That’s the lowest rate in the world’. Presumably, the point made here was that the continuation of aid to African nations was conditional upon their siding with US voting in the United Nations and/or in other international organisations. Arguably, it was the wrong argument: only between 2007–2013, the EU and its Member States disbursed some 141 billion euro as Official Development Assistance, principally to Africa. Therefore, if the interest of third states is to side with whoever offers the most aid and assistance, certainly this was not the USA.  

In Financial Year 2024, USAID managed more than 35 billion USD. The following year, the Rescissions Act of 2025, signed into law on 24 July 2025 (Public Law No: 119-28), cancelled almost 8 billion USD  in foreign assistance funds, effectively forcing the closure of USAID. In this development, instrumental was the role of DOGE, a rather peculiar government entity, whose title could bring back memories from A. Huxley’s Brave New World. Its legal basis was Executive Order 14158 of 20 January 2025 ‘Establishing and Implementing the President’s Department of Government Efficiency’ (90 Federal Record 8441); it provided that its operation would end on 4 July  2026. In reality, it was not a newly constituted federal agency but the reconstruction of a pre-existing one, the US Digital Service, which was renamed ‘US DOGE Service’ and placed under the executive branch’s authority. DOGE’s operation was terminated well before its expiry date, a fact that apparently became wider known only when Reuters published an article reporting that it was axed.[2]

The direct connection between, on the one hand, the shutting of USAID and, on the other hand, a private citizen (E. Musk), whose role in the running of the US government was a matter of speculation, and DOGE was alleged during litigation brought against Musk and DOGE before federal court. It was found that ‘the defendants’ actions taken to close USAID on an accelerated basis likely violated the US Constitution in multiple ways’.[3] In another federal court case, plaintiffs argued that DOGE’s actions were  arbitrary and capricious and violated US laws.[4] In this case, the judge said: ‘[DOGE] launched a search for the proverbial needle in the haystack, without any concrete knowledge that the needle is actually in the haystack”.[5] Finally, in a recent case a federal judge in New York ruled that the cancellation of more than 100 million USD in humanities grants through DOGE was unconstitutional.[6]

  1. US assistance to Africa in the area of health and the new aid environment

According to data from US Foreign Assistance, between 2001 and 2024 USAID disbursed to African countries, inter alia, almost 28 billion USD to fight HIV/AIDS, almost 9 billion USD to eradicate malaria, and almost 3.9 billion USD for maternal and child health. But this was the past. In September 2025,  the US Department of State published the America First Global Health Strategy. The Department’s website describes it as a comprehensive vision to make America safer, stronger, and more prosperous. In particular, to protect the USA by preventing infectious disease outbreaks from reaching it; and to strengthen relationships with third states by entering into multi-year, bilateral agreements, which will require co-investment from all recipient governments so as to move third states ‘along the path to decreased dependency on foreign assistance’. Therefore, these agreements are founded on the notion of conditionality, namely that to receive aid and to continue receiving aid the recipient has to meet certain conditions (prerequisites). Conditionality is mostly associated with IMF funding.  

According to the Department of States’s website, so far MOUs have been concluded with twenty-one African, four Asian and seven American states (Angola, Bolivia, Botswana, Madagascar, Sierra Leone, Ethiopia, Burkina Faso, Burundi, Cambodia, Cameroon, Côte d’Ivoire, Democratic Republic of the Congo, Eswatini, Honduras,  Senegal, Kenya, Liberia, Malawi, Mozambique, Niger, Dominican Republic, Nigeria, Panama, Papua New Guinea, Philippines, Guatemala, Guinea, El Salvador, Rwanda, Tajikistan, Uganda, Lesotho). The Department of State refers to these MOUs as ‘landmark agreements’ and as ‘bilateral global health agreements’, which ‘preserve what works in our health foreign assistance programs while rapidly fixing what is broken’. However, they do not appear to be ‘agreements’ – at least as one understands the term under the general rules of international law (a written text whose entry into force requires the prior ratification/acceptance by signatory parties) – but only as expression of political intentions albeit in writing. 

To take the example of the bilateral MoU with the government of Nigeria signed on 19 December 2025.[7] Section 6.9 on legal status makes it abundantly clear that it ‘is not an international agreement and does not give rise to legal rights and obligations under international or domestic law’. The question then arises what its precise status is. Is it a document where two governments have agreed to certain ‘understandings’, in effect promises, which they do not want to construe as binding commitments? Indeed, the wording of Article 6.1, the clause on duration, indicates that there will be no process of ratification (resulting presumably in no parliamentary scrutiny). It provides that MOU activities will commence on 1 April 2026 and continue until 31 December 2030. While there is no express provision on the MoU’s prolongation, this could be done by applying Article 6.2, which stipulates that it may be modified by a mutual decision of the participants.

The argument that the MoU is rather a list of unbacked promises is reinforced by Article 6.8. Effectively, it says that nothing should be taken as granted because all MoU activities ‘are subject to the availability of funds, personnel, and other resources’, while US activities will be funded exclusively by the  Department of State. This provision should be read together with the requirement for co-investment, the element of conditionality mentioned above (see also Sections 2.2.3, 2.3.3, and 2.4.3). The amounts are not negligible: Nigeria will have to contribute 3 billion USD over the MoU’s duration, while the US two billion USD. Therefore, if say Nigeria is unable to make available the funds agreed, the USA is presumably entitled  to stop disbursements. However, if the opposite were to happen, if would not make much sense for Nigeria to cease funding the programmes because the beneficiary is no other but its own national health sector and its population. Should there be any differences arising in relation to the MoU’s interpretation or performance, according to Section 6.10, they will be resolved through bilateral consultations, no other means of dispute settlement being mentioned. Of course, a participant may opt not to engage in negotiations but to discontinue cooperation, in which case Section 6.30 provides that such participant ‘is expected to make best efforts to give one year’s advance notice to the other Participant’. It should be observed that (a) the MoU does not talk about withdrawal but only discontinuation, which implies that co-operation may be again pursued at some future point; and (b) one year’s advance notice is rather excessive given that the MoU duration is less than five years.

  1. How have the bilateral MoU been received in Africa

The agreements have been called ‘rushed’ and ‘another form of colonialism’. The latter was explained by the fact that the funding under the MoUs is, among others, tied to the recipients agreeing to provide up to the US administration 25 years of data collected from patients, including in some cases pathogenic samples as well.[8] These provisions have raised concerns, not least regarding compliance with national privacy laws and policies. Nowadays, scientific data can command very high prices especially when a state has limited access to them. The reference here is to the withdrawal of the USA from the World Health Organisation, which was formally completed on 22 January 2026. While the US administration has stated that the WHO has ‘trashed and tarnished’ it as a Member State, insulted it, and compromised its independence, it is naïve for the US administration to believe that withdrawing from a technical international organisation will not have any consequences. Arguably, the USA will have to pay billions of USD to acquire data, to which it could have access as part of its WHO membership.

A very interesting development has taken place in relation to the bilateral MoU with Kenya, signed on 4 December 2025. Six days later, the High Court of Kenya issued ex parte provisional / interim measures preventing the government implementing or operationalising the MoU. The measures will remain in force until the case has been heard and apply to what is mostly of interest to the US administration, namely having access to medical, epidemiological and other personal health data from Kenya. The main legal question is effectively whether the MoU complies with the provisions of Kenya’s Data Protection Act, 2019. Considering that the High Court of Kenya accepted to exercise jurisdiction and rule on the MoU, this would signify that the MoU is not treated as instrument devoid of any legal consequences.

  1. Conclusions

For several decades now, there has been a rather well known reality: African countries have been receiving aid and assistance principally from the so-called ‘First ‘World’.   Arguably, they have been used to rely on such assistance and expect it year after year for the foreseeable future. The existence of this dependency has been made a focal point of the current US administration, which has also indicated that, like any dependencies, it could be exploited. On the other hand, the recent outbreak of Ebola in East and Central Africa and the possibility that it could enter into the US  is no doubt complicated when there is no access to WHO data. It follows that the USA has to rely on bilateral agreements to secure the necessary information for this and other illnesses. In such situations, leverage can shift very quickly even if for limited periods of time. Finally, the question of African states’ co-financing the MoU programmes could prove another point of contention. Nigeria is no doubt a very rich country and it should manage to come up with the required three billion USD. But the situation with many an African country can be difficult. –   

Photo credit: Wikimedia Commons

[1] For further information on USAID, see US Congress, ‘U.S. Agency for International Development: An Overview’, 5 September 2025 <https://www.congress.gov/crs-product/IF10261&gt;.

[2] C. Rozen, ‘Exclusive: DOGE ‘doesn’t exist’ with eight months left on its charter’, Reuters, 24 November 2025 <https://www.reuters.com/world/us/doge-doesnt-exist-with-eight-months-left-its-charter-2025-11-23/>.

[3] SeeUnited States District Court for the District of Maryland, J.Does 1-26 v Elon Musk, United States DOGE service and the Department of Government Efficiency, Civil Action No. 25-0462-TDC, Memorandum Opinion, 18 March 2025 <https://www.courtlistener.com/docket/69636722/73/j-doe-4-v-musk/&gt;.

[4] See American Federation of State, County, and Municipal Employees, AFL-CIO v. Social Security Administration, United States District Court for the District of Maryland, Civil Action No. ELH-25-0596, Memorandum Opinion, 20 March 2025 <https://storage.courtlistener.com/recap/gov.uscourts.mdd.577321/gov.uscourts.mdd.577321.49.0.pdf&gt;.

[5] Ibid, p. 132.

[6] See ‘Judge finds Trump’s DOGE-led cancellation of humanities grants unconstitutional’, PBS News, 8 March 2026 <https://www.pbs.org/newshour/politics/judge-finds-trumps-doge-led-cancellation-of-humanities-grants-unconstitutional>.

[7] It might be a mere coincidence, but the signing of the MoU took place a week before the US bombarded positions in Nigeria rumored to be occupied by terrorists, during which bombardment  civilians were killed: Ministry of Foreign Affairs of Nigeria, ‘Nigeria–United States Security Cooperation And Intelligence Collaboration Hits At Terrorist Targets In Nigeria’, 26 December 2025 <https://fmino.gov.ng/nigeria-united-states-security-cooperation-and-intelligence-collaboration-hits-at-terrorist-targets-in-nigeria/>.

[8] D. Pilling, ‘US reboots foreign aid with cash-for-data strategy’, Financial Times (Europe), 25 May 2026, p. 3.