Withdrawal from the World Health Organization: Legal Basis and Implications
Legal Sidebari
Withdrawal from the World Health
Organization: Legal Basis and Implications
June 5, 2020
On May 30, 2020, President Trump announced that he plans to terminate the United States’ relationship
with the World Health Organization (WHO). This Sidebar assumes that “terminate” means to withdraw
from the WHO (as opposed to, for instance, stop sending funds to the WHO), and addresses the legal
framework that applies to the President’s authority and Congress’s role in a potential withdrawal from the
WHO.
Background
On January 30, 2020, the WHO declared a public health emergency caused by the coronavirus disease.
Some U.S. officials have expressed dissatisfaction with how the WHO has handled the crisis. In April
2020, President Trump announced that the United States would suspend funding to the WHO and, on May
18, 2020, sent a letter to the WHO Director-General, indicating his Administration may make such
funding freezes “permanent” and may reconsider U.S. participation in the organization. On May 30, 2020,
President Trump announced his intention to terminate the United States’ relationship with the WHO.
The President’s Authority to Withdraw the United States
from the WHO Without Congressional Action
An initial question is whether the President has the authority to terminate the United States’ international
obligations under the WHO Constitution and withdraw the United States from the WHO without further
action from Congress. This question has two related parts: (1) whether, under international law, the
President may terminate U.S. international obligations under the WHO Constitution without
congressional approval; and (2) whether, under domestic law, the President, relying on constitutional or
statutory authority, may unilateral y terminate U.S. international obligations under the WHO Constitution.
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Withdrawal from the WHO Under International Law
Regarding the first question, the WHO Constitution does not include a provision on withdrawal from the
WHO Agreement, though it does indicate that the Health Assembly (the WHO’s governing body) may
“suspend the voting privileges and services to which a Member is entitled” if it “fails to meet its financial
obligations to the Organization.” In the absence of a specific treaty provision on withdrawal, the Vienna
Convention on the Law of Treaties (Vienna Convention) furnishes default rules for withdrawal from
international agreements. The United States has not ratified the Vienna Convention but considers it to
reflect, in many aspects, customary international law (i.e., those “aspects of international law that become
binding on nations through general acceptance as a matter of legal obligation”).
As relevant here, Article 54 of the Vienna Convention provides that withdrawal from a treaty may occur
“by consent of the parties.” Assuming that the other WHO members fail to agree that the United States
could withdraw from the WHO Agreement immediately, then Article 56 may apply. This article provides
that withdrawal from a treaty containing no provision regarding termination or withdrawal may take place
only after the country that seeks to withdraw provides twelve months’ notice to the other parties if the
nature of the treaty implies a right of withdrawal or establishes that the parties intended the possibility of
withdrawal.
Thus, under international law, the President appears to be able to terminate the United States’
international obligations under the WHO Agreement by delivering twelve months’ notice of withdrawal to
the WHO’s Director-General, provided such notice later becomes effective. This conclusion assumes
(1) that a court does not enjoin the Executive from issuing the notice or declare such issuance unlawful on
the grounds that it exceeds the Executive’s authority, and (2) that the President does not revoke the notice
of termination prior to its effective date.
Withdrawal from the WHO Under Domestic Law
The answer to the second question—that is, whether under domestic law the President could rely upon
constitutional or statutory authority to withdraw the United States from the WHO, is less clear. As
described more fully in a CRS Report on the United States’ withdrawal from international agreements,
answering that question requires a reviewing court to confront several complicated issues of first
impression, including the scope of the President’s constitutional and statutory authority to terminate an
international agreement. Justiciability questions (e.g., whether the scope of the President’s authority is a
political question) may prevent a court from definitively answering these questions, leaving the resolution
of the President’s constitutional authority to the political process. There is an emerging scholarly debate
over the extent to which the Constitution permits the President to act without the approval of the
legislative branch in such circumstances.
Perhaps notable in the context of WHO withdrawal, in 1948, Congress adopted a joint resolution
authorizing the President to accept membership in the WHO. This resolution reserved the right of the
“United States” to withdraw from the organization after a one-year notice, and specified that U.S.
financial obligations to the organization must be met in full for the organization’s “current fiscal year”
before withdrawal could become effective. The resolution does not specify whether the “United States”
includes the President as Head of State acting alone to effect withdrawal or the President and Congres s
acting jointly to accomplish withdrawal (e.g., by joint resolution). However, even if the 1948 joint
resolution contemplates the President acting alone, the joint resolution appears to impose two conditions
on the President’s withdrawal from the organization: (1) that the President provide a one-year notice; and
(2) that the United States meet its financial obligations to the organization in full for the organization’s
current fiscal year before withdrawing (discussed below).
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To resolve certain separation-of-powers conflicts, the Supreme Court typical y applies the approach set
forth in Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, which states
that the President’s constitutional powers often “are not fixed but fluctuate, depending on their disjunction
or conjunction with those of Congress.” Under this test, the President’s power is at its “lowest ebb” when
Congress shares power with the President over a particular subject matter and the President takes
measures incompatible with the wil of Congress. Thus, the President arguably may lack the authority to
withdraw from the WHO if he does not adhere to these conditions because Congress enacted them using
its constitutional Spending Clause power. However, it appears that the joint resolution would only
prohibit the President from withdrawing immediately. The President could, consistent with the joint
resolution, submit a notice of intent to withdraw, but it would not take effect for at least twelve months.
Withdrawal and U.S. Financial Obligations to the WHO
This section briefly describes the WHO funding structure and the issue of how withdrawal affects current
U.S. obligations to pay assessed contributions to the organization.
Background on WHO Budget and U.S. Funding
The WHO requires that al of its members pay assessed contributions to the organization’s two-year
budget. Congress has authorized appropriations to the Department of State to cover U.S. obligations to
the WHO, and appropriated funds to cover U.S. annual obligations to international organizations through
September 30, 2021. In making such sums available, the text of Congress’s relevant appropriations acts
does not specifical y appropriate sums to pay WHO assessed contributions. (For a more detailed
discussion of U.S. funding to the WHO, see this CRS Insight.)
Effect of Withdrawal on Existing Financial Obligations
The WHO’s governing documents do not include rules for collecting outstanding financial obligations of
a member who intends to withdraw, at most stating that the organization may suspend the voting rights of,
and services to, any member in arrears. Thus, the WHO itself seemingly cannot prevent withdrawal if a
member has failed to submit al existing financial requirements. However, under Article 70 of the Vienna
Convention, withdrawal from a treaty extinguishes a former member’s obligations going forward, but
does not “affect any right, obligation or legal situation of the parties created through the execution of the
treaty prior to its termination.” Thus, the United States would likely continue to have an international
obligation to meet any financial commitments under the treaty it incurred prior to its withdrawal from the
WHO, although it is unclear how such an obligation would be enforced.
As indicated above, Congress requires that U.S. financial obligations to the WHO “shal be met in full for
the Organization’s current fiscal year.” It is unclear whether the “current fiscal year” refers to the fiscal
year in which the United States submits a twelve-month notice of intent to withdraw or the fiscal year in
which the twelve-month notice period expires. In either case, although the President may decide to send a
formal notice of withdrawal without congressional approval, it would appear that the notice cannot legal y
take effect until the United States pays al current obligations.
If a situation arises in which the United States fails to pay its obligations in accordance with the joint
resolution, and therefore does not legal y withdraw from the WHO, the WHO may ultimately suspend the
United States’ voting privileges or other services to the United States. Should Congress seek to ensure
withdrawal occurs in accordance with the twelve-month notice period, it may consider making a specific
appropriation to the WHO for this purpose. However, if Congress seeks to oppose withdrawal while
avoiding a situation in which the United States may remain in the WHO but lose its voting rights, it may
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consider creating additional conditions for withdrawal (e.g., withdrawal may take effect only with
congressional approval) and provide for more direct appropriations to the WHO.
In sum, to the extent that the United States has not paid al current financial obligations, the WHO appears
to lack authority to mandate payment, although it may suspend U.S. voting rights if, during the twelve-
month notice period, it finds the United States to be in arrears. Congress has conditioned withdrawal from
the WHO on fulfil ment of U.S. financial obligations. Thus, it appears that a formal notice to withdraw
may not take legal effect until the United States satisfies its current financial obligations.
Considerations for Congress
Although the WHO Constitution does not set out rules for withdrawal, Congress has imposed some limits
on how the President may withdraw the United States from the organization, namely by requiring a
twelve-month notice period and full payment of financial obligations to the WHO for the organization’s
current fiscal year. Although it is unclear whether a court would enforce such limitations, to the extent
that Members of Congress may consider these limits insufficient, Congress may consider imposing
additional conditions on withdrawal. For example, Congress may extend the statutory time period for
withdrawal to take effect; require approval from Congress via a joint resolution or other means; or require
that the United States meet its financial obligations to the WHO for the two-year budget cycle, instead of
the current fiscal year. On the other hand, if Congress would like to facilitate withdrawal, it could amend
the statute to shorten the twelve-month notice period and provide direct appropriations to ensure the U.S.
obligations are fulfil ed, as required by the joint resolution, or amend the statute to eliminate the payment
obligation.
The WHO is only one of a number of international organizations and treaties to which the United
States is a member. Where legislation implementing U.S. participation in those organizations and
treaties does not specify conditions for withdrawal, Congress might consider whether to impose
conditions similar or different from those for the WHO, provided such provisions are consistent
with any more specific rules set out in the relevant treaties.
Author Information
Brandon J. Murrill
Nina M. Hart
Legislative Attorney
Legislative Attorney
Disclaimer
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