President Trump decided in mid-April of 2020 to suspend U.S. funding for the World Health Organization (WHO) and to have his administration review its performance, contending that it was biased in favor of China and inept in its handling of the COVID-19 pandemic. In a letter to the WHO director-general a month later, Trump informed the director-general that his administration's review confirmed his accusations. He threatened that, unless the WHO implemented significant reforms, the United States would reconsider its membership in the organization. Less than two weeks later, on May 29, 2020, Trump announced his decision to terminate the U.S. relationship with the WHO. On July 6, the administration gave formal notice of U.S. withdrawal to the UN secretary-general, the depositary for the WHO Constitution. Assuming certain legal preconditions are satisfied and the notice of withdrawal is not revoked, the withdrawal will take effect on July 6, 2021.
The WHO was established on April 7, 1948, when the WHO Constitution entered into force.Footnote 1 Because the WHO Constitution does not provide for withdrawal,Footnote 2 when the United States sought membership in the WHO, the House and the Senate stipulated in a joint resolution authorizing U.S. membership that:
In adopting this joint resolution the Congress does so with the understanding that, in the absence of any provision in the World Health Organization Constitution for withdrawal from the Organization, the United States reserves its right to withdraw from the Organization on a one-year notice: Provided, however, That the financial obligations of the United States to the Organization shall be met in full for the Organization's current fiscal year.Footnote 3
President Truman made explicit that he was “acting pursuant to the authority granted by the joint resolution of the Congress . . . and subject to the provisions of that joint resolution” when he submitted the instrument of U.S. acceptance to the WHO Constitution.Footnote 4 A copy of the joint resolution was enclosed with this instrument of acceptance.Footnote 5 At the First World Health Assembly on July 2, 1948, the Assembly unanimously adopted a resolution that “[r]ecognized the validity of the ratification of the Constitution by the United States of America.”Footnote 6 This resolution passed after a short discussion in which the desirability of U.S. admission to the WHO was emphasized even though, as the UK representative put it, “[t]here [was] nothing to be gained by attempting to deny that certain conditions are attached to the ratification.”Footnote 7
In confronting the novel coronavirus, the WHO has faced a pandemic unparalleled in the modern era.Footnote 8 Trump began criticizing the WHO's response to the outbreak beginning in late March of 2020, voicing concerns that the Organization had “very—very much sided with China.”Footnote 9 Trump's criticisms of the WHO escalated in early April when he warned that he would be “put[ting] a hold on” funding to the Organization because it had purportedly mishandled the coronavirus outbreak.Footnote 10 He criticized the WHO for not declaring the coronavirus outbreak a pandemic sooner,Footnote 11 “minimiz[ing] the threat very strongly,”Footnote 12 announcing in January that the virus could not be transmitted between humans,Footnote 13 and criticizing his decision to restrict travel from China.Footnote 14 On April 14, Trump announced that he was “instructing my administration to halt funding of the World Health Organization while a review is conducted to assess [its] role in severely mismanaging and covering up the spread of the coronavirus.”Footnote 15 His response immediately drew criticism from foreign leaders.Footnote 16 Closer to home, leading congressional Democrats described Trump's decision as an “‘abdication of international responsibility and leadership’” and an attempt to deflect attention from how the “‘White House . . . grossly mishandled this crisis from the beginning, ignoring multiple warnings and squandering valuable time, dismissing medical science, [and] comparing COVID-19 to the common cold.’”Footnote 17
On the first day of the Seventy-third World Health Assembly held virtually on May 18, Trump sent a four-page letter to the WHO director-general.Footnote 18 In the letter, Trump asserted that his administration's review of the Organization's handling of the pandemic “confirmed many of the serious concerns I raised last month . . . especially the World Health Organization's alarming lack of independence from the People's Republic of China.”Footnote 19 The letter largely reiterated Trump's previous criticisms of the WHO, but in more detail.Footnote 20 He also accused the WHO of ignoring early reports of the virus's spread in Wuhan and not investigating the situation, improperly praising China for its transparency despite irregularities in China's reporting of information to the WHO, and issuing “grossly inaccurate or misleading” information of the coronavirus.Footnote 21 Trump concluded the letter with an ultimatum that “if the World Health Organization does not commit to major substantive improvements within the next 30 days, I will make my temporary freeze of United States funding to the World Health Organization permanent and reconsider our membership in the organization.”Footnote 22
On May 29, just eleven days after sending the letter to the WHO, Trump announced that he would be “terminating” U.S. engagement with the WHO.Footnote 23 Trump stated:
We have detailed the reforms that it must make and engage with them directly, but they have refused to act. Because they have failed to make the requested and greatly needed reforms, we will be today terminating our relationship with the World Health Organization and redirecting those funds to other worldwide and deserving, urgent, global public health needs.Footnote 24
Then, on July 6, the Trump administration formally submitted the U.S. notice of withdrawal from the WHO Constitution to the UN secretary-general, the depositary for the WHO Constitution.Footnote 25 The following day, the spokesperson for the secretary-general stated:
[O]n 6 July 2020, the United States of America notified the Secretary-General . . . of its withdrawal from the World Health Organization, effective on 6 July 2021.
The United States is a party to the World Health Organization Constitution since 21 June 1948. The United States’ participation in the World Health Organization was accepted by the World Health Assembly with certain conditions set out by the US for its eventual withdrawal from the World Health Organization. The said conditions include giving a one-year notice and fully meeting the payment of assessed financial contributions.
The Secretary-General, in his capacity as depository, is in the process of verifying with the World Health Organization whether all the conditions for such withdrawal are met.Footnote 26
In a communication to the other treaty parties on July 14, 2020, the secretary-general stated that the withdrawal “would take effect for the United States of America on 6 July 2021 pursuant to the provisions of the Joint Resolution of the Congress of the United States to which the acceptance of the Constitution of the World Health Organization by the United States is subject.”Footnote 27
After the initial announcement in late May, the director-general of the WHO stated that the Organization “wish[es] for this collaboration to continue” with the United States.Footnote 28 Other foreign leaders and health officials criticized the U.S. decision. The president of the European Commission issued a statement urging the United States to reconsider,Footnote 29 and the health minister of South Africa labelled the decision “unfortunate.”Footnote 30 The notice of withdrawal received strong criticism domestically, with House Speaker Nancy Pelosi calling it “an act of true senselessness” that “is crippling the international effort to defeat the virus.”Footnote 31 Others have observed that the U.S. withholding of funds and withdrawal from the WHO would severely undermine not just the Organization's short-term initiatives addressing the COVID-19 pandemic, but also its long-term public health initiatives around the world.Footnote 32
As a matter of international law, the United States is in a special posture relative to other WHO member states because of the conditional right of withdrawal that it incorporated into its original instrument of acceptance—and because of the WHO Assembly's subsequent acceptance of this instrument. When the WHO Constitution entered into force in 1948, international law was unsettled with respect to withdrawal from treaties that did not provide for withdrawal or termination.Footnote 33 In 1949, when the WHO received purported withdrawals from the Soviet Union and various of its allies, the WHO director-general responded that “‘because [the] Constitution of WHO makes no such provision [for withdrawal] I cannot accept your communication as withdrawal from the Organization.’”Footnote 34 Unlike these countries, however, the United States reserved a right of withdrawal in its original instrument of acceptance.Footnote 35 While customary international law regarding the status of reservations and their acceptance was not clearly fixed in 1948,Footnote 36 the unanimous acceptance of the U.S. ratification by the WHO Assembly provides strong legal grounds for treating this right of withdrawal as valid.Footnote 37
Although the United States thus appears to have a distinctive right of withdrawal as a matter of international law, this right is bounded by the prerequisites to withdrawal stipulated in the joint resolution.Footnote 38 Consistent with one of these prerequisites, the Trump administration has given a year's notice of the U.S. withdrawal.Footnote 39 This notice could be revoked before effectuated—including if Trump is not reelected in the U.S. presidential election in November of 2020.Footnote 40 As to another specified prerequisite—the provision that U.S. “financial obligations . . . shall be met in full for the Organization's current fiscal year”Footnote 41—it remains to be seen whether or how this will be satisfied by the United States. The United States carries an outstanding balance with the WHO of almost $58 million in the current year and more than an additional $41 million from prior years.Footnote 42
In addition to these international legal limitations, the Trump administration's decision to withdraw the United States from the WHO raises issues of domestic law. One issue is whether the executive branch can unilaterally withdraw the United States from the WHO Constitution without congressional approval. The United States joined the WHO not through the treaty process specified in Article II of the Constitution, but rather “pursuant to the authority granted” by the joint resolution passed by Congress.Footnote 43 On rare occasions in the past, U.S. presidents have unilaterally withdrawn the United States from international organizations that the United States joined through such joint resolutions.Footnote 44 The legality of this practice as a matter of domestic law remains untested in the courts.
A second set of domestic legal issues stems from the conditions on withdrawal set forth in the text of the joint resolution.Footnote 45 As international legal limits on the president's withdrawal power, these conditions may similarly serve as domestic legal limits.Footnote 46 Moreover, as a general principle of U.S. constitutional law, the president's “power is at its lowest ebb” when “tak[ing] measures incompatible with the . . . will of Congress.”Footnote 47 Should Trump seek to effectuate the U.S. withdrawal without fulfilling all the conditions set forth in the joint resolution, he would be acting in violation of a congressional mandate.Footnote 48
