extra-constitutional action." Furthermore, while it is evident that the President occupies a position of great power and trust when acting in the sphere of foreign relations, he is nonetheless required by the electorate and the oath of office to execute this position in good faith. Thus, although it is unlikely that the President would consciously violate his obligations, even if in the position to do so, the final impediment to precipitous executive actions may be of a political nature,113 depending upon an aroused Congress or public.

III. THE POWER TO MODIFY TREATIES

Related to the termination of treaties is their revision or amendment, since any major change in treaty provisions is considered a rescission of the old treaty and replacement with a new one." Supporting the legal treatment of proposed modifications to an existing treaty as terms for a new treaty, requiring Senate approval to complete, is the nearuniform practice of the executive branch itself. Desired changes in treaties governing such diverse factors as extraterritorial rights and boundaries, tariff rates, transfer of duties, effective date of the treaty, diversion of boundary waters, and tenure of officials have all been deferred by the Department of State until the Senate had voiced its consent, on the ground that any change in the terms of a treaty "would be a partial abrogation of that treaty, which would require the concurrence of the legislative branch of the Government." 115 This fundamental requirement would appear all the more necessary when the subject

11 From a strictly legal standpoint, the preponderance of authority agrees that an agent's competence to bind a state internationally is determined by national law, and that foreign states are held to a knowledge of the more obvious constitutional provisions. FOSTER, PRACTICE OF DIPLOMACY 276 (1929); 1 WILLOUGHY, THE CONSTITUTIONAL LAW OF THE UNITED STATES 527-529 (1929); WRIGHT, CONTROL OF FOREIGN RELATIONS 44 (1922); Fairman, Competence to Bind the State, 30 AM. J. INT. L. 441, 445, 452-54 (1936); Levitan, supra note 110, at 372-73. Contrá, 5 HACKWORTH, op. cit. supra note 96, at 393; Bishop, Unconstitutional Treaties, 42 MINN. L. REV. 773, 793 n.51, 799, 801 (1959). Thus, for example, even though the President has signed a treaty, it would not become law until the Senate concurred by constitutional mandate. It is probably true that the more "notorious" and clear-cut the constitutional provision may be, the quicker its violation should be recognized as a nullity. Bishop, supra at 801. But even though the Constitution is verbally silent regarding the explicit manner of terminating treaties, its entire language more closely supports legislative participation, and a case could be made for a treaty's continuing validity absent that cooperation, which the foreign party may observe or disregard. But the confusion regarding the properly designated agency to terminate treaties, when coupled with the rapid abdication of that authority by Congress, renders unconvincing any prospect that a foreign party would be found guilty of breach by accepting presidential termination as final.

113 "Of course no President or Secretary of State will in practice disregard the views of Congress or of its more influential members, any more than they will disregard public opinion." Bishop, supra note 110, at 301.

114 Lord McNair has stated some prerequisites for treaty modification: "As a question of law, there is not much to be said upon the revision of treaties. It frequently happens that a change in circumstances may induce a Government on political grounds to accede to the request of another Government for the termination of a treaty and for its revision in the light of new circumstances. But, as a matter of principle, no State has a legal right to demand the revision of a treaty in the absence of some provision to that effect contained in that treaty [A] revised treaty is a new treaty, and, subject to the same limitation, no State is legally obligated to conclude a treaty." MCNAIR, THE LAW OF TREATIES: 534 (1961).

115 5 HACKWORTH, op. cit. supra 96, at 333; see generally id. at 333-37. As to whether Congress may authorize modification of treaties, President Hayes in his March 1, 1879, message to the House of Representatives, said: "As the power of modifying an existing treaty, whether by adding or striking out provisions, is a part of the treaty-making power under the Constitution, its exercise is not competent for Congress ." 9 RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS 4466 (1899), cited in CRANDALL, op. cit. supra note 99, at 460 n. 130; see THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 475 n.72 (Corwin ed. 1964). The Solicitor for the Department of State emphasized in 1920: "Congress may pass an act violative of a treaty. It may express its sense that a treaty should be terminated. But it cannot in effect undertake legally to modify a treaty no matter what methods it may employ. In doing that it, in effect, attempts to conduct diplomatic negotiations and to encroach on the Treaty-making power composed of the President and the Senate." N.Y. Times, Sept. 25, 1920, p. 1, col. 1, reprinted in 5 HACKWORTH, op. cit. supra note 96, at 324. But see Whitney v. Robertson, 124 U.S. 190, 194 (1887); The Head Money Cases, 112 U.S. 580, 597-99 (1884).

matter of a treaty, like the Warsaw Convention, relates to commerce, with which the courts have held that the President has no power to deal unless expressly authorized by Congress.116

The general rules for treaty modification, however, are marked with frequent exceptions. By mere exchange of diplomatic notes, the President has interpreted the meaning of treaties," temporarily suspended the operation of a treaty or extended its duration, agreed to minor administrative changes,119 and even tacitly acquiesced in some actions by foreign parties which had the effect of revision.120

121

118

As with the authority to terminate treaties, it is apparent that the power to change or substitute major treaty provisions is shifting from the legislative branch to the President. In the case of the Warsaw Convention, the Department of State did not "tacitly acquiesce" in the carrier modification, but actively set forth the terms of the agreement. Moreover, carrier liability limitations are not mere administrative details; as major terms, any revision thereof represents a substantial new treaty which should be approved by the Senate. Inasmuch as a treaty is a contract between nations, the analogy to the contractual doctrine of "substantial performance" is presented. Any alteration of terms which materially defeats the original purpose of the contracting parties would prevent the agreement from being "substantially performed," and would result in a breach unless a new contract is made." Thus, when the President agreed at The Hague to raise limits on carrier

122

116 In United States v. Guy W. Capps, Inc., 204 F. 2d 655 (4th Cir. 1953), the Fourth Circuit invalidated a presidential agreement regulating the importation of Canadian potatoes on the grounds that (1) it contravened a prior act of Congress, and (2) Congress had not authorized the President to make such an agreement. In broad terms, the court declared: "The power to regulate foreign commerce is vested in Congress, not in the Executive or the courts; and the Executive may not exercise the power by entering into executive agreements " Id. at 658. This expressly contradicted the district court's statement that "the President through his Secretary of State or other representative may, without the authorization or approval of the Congress, enter into commercial compacts." 100 F. Supp. 30, 32, (E.D. Va. 1951). Even though the Supreme Court affirmed on other grounds, 348 U.S. 296 (1955), the proposition that foreign commerce is exclusively within Congress' control was reaffirmed in Best Foods v. United States, 158 F. Supp. 583 (Customs 1957). In at least one other recent case, a court has declared part of an executive commercial proclamation ultra vires and void "for the reason that the President exceeded the powers conferred upon him by the Trade Agreements Extension Act of 1945." American Bitumuls & Asphalt Co. v. United States, 146 F. Supp. 703, 710 (1956).

117 MCCLURE, op. cit. supra note 107, at 37; Borchard, Treaties and Executive Agreements A Reply, 54 YALE L.J. 616, 652 n.143 (1945). Contra, 1 WILLOUGHBY, PRINCIPLES OF CONSTITUTIONAL LAW OF THE UNITED STATES 232 (2d ed. 1938).

118 See 5 HACKWORTH, op. cit. supra note 96, at 324-26.

119 On one notable occasion, the President through the Secretary of State agreed to extend the six-month time limit provided by the "Bryan peace treaties" for the organization of commission following the ratifications of the respective treaties, when it turned out that the agreed limit was too restrictive. 5 HACKWORTH, op. cit. supra note 96, at 337; MCCLURE, op. cit. supra note 107, at 27. That these minor and temporary changes were not regarded as having any practical or long-range effect on the operation of the treaties them. selves is evidenced by the fact that, when requested by Italy to modify those same treaties so that the commissioners would serve indefinite terms rather than the five-year period established by the treaty, the Department of State forthwith refused to do so by mere exchange of notes, but instead requested a new treaty for that purpose. HACKWORTH, supra at 335.

120 The Department of State Counselor has explained: "The President is, of course, without authority except by and with the advice and consent of the Senate, to modify a treaty provision. There are, however, instances in which he, acting through the Secretary of State, has tacitly acquiesced in action by foreign governments which had the effect of modifying stipulations in our treaties." Ms. Dept. of State, file 893.512/31, May 4, 1914, reprinted in 5 HACKWORTH, op. cit. supra note 96, at 340. In the case in point, a sequence of changes effected between China and other nations regarding customs tariffs within its borders was accepted by the Executive as binding even though most of the revisions were not approved by the Senate until much later.

121 The Warsaw Convention was primarily framed for the purpose of "fixing the liability of air carriers and limiting that liability in the matter of air transport." Minutes of the French Delegation, 2d International Conference on Private Air Law in Warsaw, 1 Oct. 4-12, 1929, p. 155, cited in Karlin, Warsaw, Hague, the 88th Congress and Limited Damages in International Air Crashes, 12 DE PAUL L. REV. 59, 61 n.4 (1963).

122 Sinha seems to suggest a test of substantial breach: whether a party could justifiably relinquish its treaty obligations upon actions by the other party which materially deviate from the original intent and purpose of the treaty. See SINHA, op. cit. supra note 99, at

liability, this modification of the Warsaw Convention did not become immediately effective in the United States, but was contingent upon Senate consent. Accordingly, had the President agreed with treaty members in Montreal during February 1966 to further amend the Warsaw limits, this modification would also have required a Senate vote. Although the modifying Montreal Agreement was technically among private carriers and not Warsaw signatories, the practical effect is the same as if the treaty had been formally amended. The carriers are the "true parties in interest" and beneficiaries of the treaty, being primarily affected by any change in its provisions. This is even more significant in view of the fact that most foreign airlines are nationally owned and merely expressed their government's desires by signing the new agreement. Furthermore, the revising terms when filed with the Civil Aeronautics Bureau bind the carriers with all the force of an international treaty unless the Board allows them to withdraw, pending approval by the President himself.123

The State Department contends that, by persuading the carriers privately to alter the terms of the Warsaw Convention, the Government actually complied with the treaty's own provisions for modification." In this respect, the Convention specifies only two procedures: (1) Any contracting party may call in international assembly to discuss possible improvement;125 or (2) "by special contract, the carrier and the passenger may agree to a higher limit of liability." 126 The first provision does not fit the facts of the Montreal carrier agreement, and the second requires the passenger to be a party to the agreement. Moreover, the language of Article 22 bespeaks a special contract and does not persuasively support authorization for a broad agreement among many or all carriers to agree in futuro to a higher limit of liability as to all passengers, particularly if arranged by one of the contracting parties as a means of avoiding the method provided for general revision by formal amendment at an international conference. It is true that some countries have raised the limitations on their own national airlines, presumably under authority of the "special contract" clause of Article

but no country has attempted to fix higher limitations on other carriers." Even as applied domestically, the British have interpreted that clause to allow only for voluntarily agreements between carrier and passenger unless "British carriers were persuaded to do so by the Minister with the authority of Parliament...." 128

Consultation with Congress or the Senate before imposing new "interim" conditions upon the carriers has been explained as "clearly impractical" 129 due to the impending deadline for complete termina

123 Section 403 of the Federal Aviation Act of 1958 requires that all carriers file changes in tariffs, rates, etc, with the CAB, which by the terms of section 412 must then approve or reject them according to federal policies. The President by $801 has the privilege of ratifying all carrier rates, certificates, changes, etc. Section 1102, however, specifically requires that no policy or rate be established which is inconsistent with international treaties and conventions. Civil Aeronautics Act, 49 U.S.C. §§ 483, 492, 601, 672 (1958). 124 Dep't of State Document, May 5, 1966, reprinted in 32 J. AIR L. & COM. 243-44 (1966). 125 Warsaw Convention art. 41.

126 Warsaw Convention art. 22 (1).

127 Sand, Air Carrier's Limitation of Liability and Air Passengers' Accident Compensation Under the Warsaw Convention, 28 J. AIR L. & COM. 260, 275 n.146 (1962).

Apart from the matter of higher liability, there is no implication to be drawn from any corner of the treaty that imposition of strict liability by group waiver of defenses reserved to the carriers by article 20 (1) can be achieved in any way but by international conference. 128 Caplan, British Business Law, 1961 J. Bus. 282 (emphasis added); Sand, supra note 127, at 266 n.65.

129 Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 HARV. L. REV. 497, 594 (1967).

tion of United States membership in the treaty. However, the Executive should be estopped from using this excuse, since it was that branch of government which knowingly created the cause of that "impracticality" by denouncing the treaty. Lowenfeld and Mendelsohn foresaw the advisability of legislative consent and the possible impact of its omission:

Consultations under these circumstances seemed essential, since the arrangement, though characterized as "interim," would have no terminal date and might well continue until a new treaty was negotiated and brought into effect. Thus, not only could it be argued that a treaty would in effect be amended without the advice and consent of the Senate, but a new standard of tort liability would be imposed with respect to international air transportation-a standard that would certainly be controversial and could fairly be termed a major departure from the common law principle of liability only for fault.130

IV. EXECUTIVE LATITUDE IN PRACTICE AND THEORY

Separate from the legal significance of the actions of the executive branch with respect to the Warsaw Convention is the need to examine whether in some cases the President might be best situated to decide on treaty amendment or termination. Of primary concern is the extent to which the original conceptions of the executive office and its relationship to the legislative branch in such matters remain viable today.

With memories of the tyrannies produced by a unified executive and legislative power, the Framers of the Constitution applied to both foreign and domestic affairs the principle of checks and balances.131 Even as vigorous an exponent of executive powers as Hamilton vividly explained why the President was not given complete power to make treaties with foreign nations:

130 Id. at 588. The Administration did convene a briefing session with the Senate Committee on Foreign Relations to explain the interim plan, but it was afterwards reported that: "Underlying the discussion was the uneasy feeling that, right or wrong, the Administration could be accused of doing something by executive act that properly fell within the prerogative of Congress." Id. at 595.

181 CORWIN, THE PRESIDENT OFFICE AND POWERS 1787-1957, 416 n.1 (4th ed. 1957), claims that: "At no point did the Framers depart more conspicuously from their materials than in dispersing among the President, Congress, and the Senate the powers most immediately touching the conduct of foreign relations Blackstone, Locke, and Montesquieu were all in agreement in treating the direction of foreign affairs as a branch of 'executive,' or royal, power." But the Framers appeared convinced that they were following the teachings of those minds consistently throughout. Said Madison in THE FEDERALIST No. 47, at 302-03 (Rossiter ed. 1961): "On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties From these facts, by which Montesquieu was guided, it may clearly be inferred that in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates. (h) is meaning. . . can amount to no more than this, that whre the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted."

Mr. Justice Frankfurter emphasized the current necessity for this doctrine in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 593-94 (1952): "For [the Founders of this Nation] the doctrine of separation of powers was not mere theory; it was a felt necessity. Not so long ago it was fashionable to find our system of checks and balances obstructive to effective government. It was easy to ridicule that system as outmoded-too easy. The experience through which the world has passed in our own day has made vivid the realization that the Framers of our Constitution were not inexperienced doctrinaires. These long-headed statesmen had no illusion that our people enjoyed biological or psychological or sociological immunities from the hazards of concentrated power. It is absurd to see a dictator in a representative product of the sturdy democratic traditions of the Mississippi Valley. The accretion of dangerous power does not come in a day. It does come, however, slowly, from the generative force of unchecked disregard of the restriction that fence in even the most disinterested assertion of authority."

The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States. 132 The Framers intended that the Senate, as the President's partner in treaty-making, become, rather than a subservient collaborator in executive policy making, primarily a critic of proposals.133 Its real power in treaty making is not merely a mechanical one; it is the Senate's ability to provide a "ventilating chamber" for public discussion of issues, to awaken doubts, and to secure popular support for courses other than those proposed by the President.

When presented to the Senate Foreign Relations Committee, the Administration's proposed reforms of the Warsaw Convention immediately provoked both public and legislative controversy. Although all witnesses agreed that the Warsaw limitation was inadequate, all nongovernmental witnesses opposed the prospect of absolute carrier liability,134 which would prevent the airlines from disclaiming liability for disasters caused by such unavoidable phenomena as lightning, flying geese, and sabotage. 135 The twin goals expressed by the Department of State in defense of strict liability-lessening litigation and "guaranteeing the broadest possible protection for the...traveling public" 136_ are open to serious doubt. The passenger must still litigate the amount of his damages unless the carrier makes voluntary settlement. Also, the additional cost of accident insurance by the carriers may ultimately be borne by the passengers themselves in the form of increased fares.137 Finally, rather than protecting passengers, strict liability may unduly jeopardize them by inviting sabotage, since a key clue to the detection of saboteurs-high insurance purchases is eliminated.138 Whether wise or not, conditions even more stringent than those controverted and disapproved by Congress were imposed upon private parties only months thereafter by independent presidential pressures, 139 without recourse to salutary public debate.

It is, of course, clear that in many situations, particularly in times of crisis and emergency, the executive office is better suited for independent action than the Congress. Drawing on the sources of an informed international diplomatic network, the President is in a position to reach immediate decisions as world conditions abruptly change. Unlike Congress, the President is always "in session." Speed and permanency, when coupled with the secrecy inherent in the executive branch, enable the President to involve the nation in many arrangements vital to its

132 THE FEDERALIST No. 75, at 451 (Rossiter ed. 1961) (Hamilton).

133 THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 462 (Corwin ed. 1964); BYRD, TREATIES AND EXECUTIVE AGREEMENTS IN THE UNITED STATES 34-35 (1960). Patrick Henry was particularly dubious of the Senate's integrity and felt that for the right price it would, with the President, "combine and be as one.' 3 ELLIOTT, DEBATES ON THE FEDERAL CONSTITUTION 353 (2d ed. 1863).

134 Lowenfeld & Mendelsohn, supra note 129, at 545-46; Kriendler, The Denunciation of the Warsaw Convention, 31 J. Air. L & Com. 291, 297 (1965).

135 At the same time the Administration was proposing strict liability, domestic policies were moving away from such doctrines with regard to air carriers. See Wood v. United Air Lines, Inc., 223 N.Y.S. 2d 692 (1961).

136 Dep't of State Letter, supra note 124, at 246.

137 1965 Senate Hearings 115-16.

138 See Lowenfeld & Mendelsohn, supra note 129, at 538-93, 592–93.

130 In addition to the threat of treaty denunciation, other possible pressures available for use by the President against private carriers could include curtailment of postal franchises, termination of subsidy funds, and withholding of favored domestic and foreign air routes.