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the conclusion of another treaty incompatible therewith either between the contracting parties or between the contracting and other parties.59
If the treaty has internationally expired or is terminated, its municipal effect also ceases, but the converse is not true. Which department of the government is vested with the power to terminate a treaty within the international sphere? Constitutions are determinative here also. In the United States one must probably distinguish the different situations outlined above. If the treaty is abrogated impliedly by virtue of international law through the conclusion of a new inconsistent treaty, there is no doubt that the treaty power is the only one which can bring about this result. If the treaty is abrogated by express mutual consent of the nations, it is within the treaty power to make such an arrangement and that, not only in case of the formation of a new treaty 60 but also in the case of outright rescission, particularly since it is within the scope of the treaty power to add to an existing treaty an article limiting its life. Mutual rescission is a contract, and it can be reasonably argued that the term "treaty" in the constitution extends to an agreement by which an existing treaty is rescinded.
But what is the constitutional rule with respect to unilateral denunciation? That was the question before the Court in the Van Der Weyde case. It could not avoid the issue and base its decision on the rule that a later statute overrides a prior inconsistent treaty so far as municipal law is concerned, because the Seamen's Act provided in section 18 61 that it did not immediately abrogate the municipal effect of inconsistent international treaties, but was to take effect only after the international termination of those treaties. The municipal effect of the Seaman's Act depended, therefore, upon the international termination of the inconsistent parts of the treaty.
The problem of what organs are vested with the power to denounce treaties has been an object of great controversy in American practice and literature, while in foreign countries it has received little attention. It seems there to be assumed that the power to denounce is vested in the department that concludes treaties.62
In the United States different views are taken. There is, in the first place, authority that Congress has the power. In Ropes v. Clinch 63 the court said:
There are three modes in which congress may practically yet efficiently annul or destroy the operative effect of any treaty with a foreign country. They may do it by giving the notice which the treaty contemplates shall be given before it shall be abrogated, in cases in which, like the present, such a notice was provided for; or, if the terms of the treaty require
59 As to the latter point there are some doubts. Rousseau, De la compatibilite des normes juridiques contradictoires dans éordre international (1932) 39 REVUE GÉNÉRALE DE DROIT INTERNATIONAL PUBLIC 133. See also in general, TOBIN, op. cit. supra note 56, at 206 ff.
60 Cf. Mathews, op. cit. supra note 1, at 486.
81 38 Stat. (1915) 1185: “That this Act shall take effect. . as to foreign vessels twelve months after its passage, except that such parts hereof as are in conflict with articles of any treaty or convention with any foreign nation shall take effect as regards the vessels of such foreign nation on the expiration of the period fixed in the notice of abrogation of the said articles so provided in section sixteen of this Act."
82 The writer has found but one foreign author who has mentioned the question, and he assumes the identity of treaty making with the denouncing power as a matter of course. Kundert, Völkerrechtlicher vertrag und staatsvertragsrecht in schweizerischen recht (1919) 20 : “Die Endigung des Staatsvertragezustandes erfolgt durch Kündigung seitens des dazu befugten Organs, das selbstverstandilich identisch sein wird mit demjenigen, das den Vertrag auch abgeschlossen hat."
03 (C.C.S.D.N.Y. 1871) Fed. Cas. No. 12,041.
no such notice, they may do it by the formal abrogation of
treaty shall be, from and after this date, at an end.” 64 The import of this dictum is that Congress may give the notice of denunciation. The same view is taken by Professor Corwin:
All in all, it appears that legislative precedent, which moreover is generally supported by the attitude of the Executive, sanctions the proposition that the power of terminating the international compacts to which the United States is a party belongs, as a prerogative of sovereignty, to Congress alone. This result no doubt transgresses the general principle of residual power of the Executive in foreign relations, but it flows naturally, if not inevitably, from the power of Congress over treaty provisions in their quality as law of the land.' Furthermore, by Article I, Section 8, Paragraph 10 of the Constitution, Congress has the power to define and punish ... offenses against the Law of Nations,' and so, it has been held, the power to define International Law is general for the
United States. 65 It would seem, however, that this view,66 at least in the form in which it is stated, is erroneous. Mere Congressional action has never been deemed sufficient to operate as a peaceful termination of a treaty in the international sphere; the dictum of the circuit court is unique : Professor Corwin's reasoning from legislative precedent is doubtful," and his other arguments are of little weight. From the fact that Congress may define the judicial application of international law, it does not follow that it has power to act directly for the United States in the international sphere; neither does it follow from the power of Congress to abrogate the internal operation of treaties. The argument invoking the "prerogative of sovereignty” is likewise without strength; it is sound only in so far as the powers of the national government as a whole 6s are
64 Ibid. at 1174.
67 As an instance where Congressional action, as such, terminated a treaty, the Act of July 7, 1798, terminating the treaty with France (1 Stat. (1845) 578), has often been referred to. But this abrogation was explained by_the Committee of Foreign Relations in 1856 on the basis of the state of hostility between France and the United States, SEN. REP. No. 97, 34th Cong. 1st Sess. (1856) 4., One could base it on the war power. The relations between the United States and France were a qualified state of war. Bas v. Tingy (1800) 4 U.S. (4 Dall.) 37. The Act itself purported to be an abrogation of the treaty by reason of repeated breaches and of authorization by France for the pursuance "of a system of predatory violence.” This power to declare a treaty terminated because of hostilities committed by the other party (which declaration (if unjustified is itself a breach) anil even more the power to declare that a state of hostility exists are certainly quite different from the power to terminate a treaty by notification pursuant to and in compliance with the terms of a treaty. This distinction has correctly been emphasized by the resolution of the Committee of Foreign Affairs referred to above. The war power could clearly not be invoked for such a peaceful termination in compliance with the terms of the treaties. Further. more, attention must be called to the fact that it is doubtful whether the power to declare a treaty terminated because of breaches. which are not acts of violence, as in the case of the French treaty, belongs to Congress or the President. Mr. Justice Iredell in Ware v. Hylton (1796) 3 U.S. (3 Dall.) 199, 260. 261, seems to have thought that Congress must make the declaration, and so did President Grant when the question of the breach of the treaty with Great Britain was raised in 1876 (Cf. WILLOUGHBY, op. cit. supra note 1, at 582-3) ; but in a more recent decision the Supreme Court intimated that the executive has this power. Charlton v. Kelly (1913) 229 U.S. 447, 476. Cf. Terlinden v. Ames (1902) 184 U.S. 270, 288. And Mr. Justice Cardozo in Techt v. Hughes, supra note 52, at 243, 128 N.E. at 192, seems also to have thought that President and Senate must act together in these cases.
88 This has repeatedly been emphasized by the Supreme Court. See Mackenzie v. Hare (1915) 239 U.S. 299, 311 : Monaco v. Misssisippi (1934) 292 U.S. 313, 331 ; United States v. Curtiss-Wright Export Corp., supra note 3, at 318, and the authorities there referred to.
concerned; it cannot be supported with respect to the distribution of these powers among the three departments of the national government.
Without doubt it is the function of the President, as head of the executive, to give notice to the other High Contracting Powers in his capacity as representative of the nation, for he makes all other declarations save the declaration of war.69 The President is the voice, and the only voice of the nation in the field of international relations.70 The action of Congress alone does not suffice.71 The problem is thus narrowed to one of the three possibilities, either
(a) The treaty power can denounce a treaty, or
(c) The President on authorization by Congress can denounce a treaty. The most logical view is that the power to denounce a treaty is vested in the President by and with the advice and consent of the Senate, so that the department of the government which makes the treaty can terminate it, regardless of whether the termination is by unilateral, but lawful, denunciation or by a new treaty. This would not too greatly extend the treaty power. The same reasons, i.e., secrecy and dispatch, which induced the framers of the Constitution to vest the power to make treaties in the President and the Senate and not in the Congress, may well apply to the power of denunciation. The entire subject matter of the international effect of treaties, including for example, conclusion, alteration, prolongation and lawful and peaceful termination either by mutual consent or by unilateral act pursuant to the terms of the treaty or even by denunciation on account of adverse breach,72 were vested in the same persons. Judicial authority to this effect is a dictum by Cardozo in Techt v. Hughes :73 “President and senate may denounce the treaty and thus terminate its life.” Taft,74 Crandall 15 and Willoughby 76 likewise think that this is the law under the Constitution. Practice furnishes additional authority. There are instances where treaties were terminated in this
71 way and the Committee of Foreign Relations has approved of this procedure with respect to denunciation.78 It is noteworthy, furthermore, that President Wilson objected on occasion of the Merchant Marine Act to any interference by Congress in regard to the denunciation of treaties, on the ground that a request of Congress to this effect would be an infringement of the treaty power.""
09 In the Curtiss-Wright case the Court said, “The President alone has the power to speak ... as a representative of the nation." Supra note 3, at 319.
70 Cf. United States v. Curtiss-Wright Corp., supra note 3, at 319; United States v. Belmont, supra note 4, at 718.
71 Cf. Taft, op. cit. supra note 5, at 609: “Congress has at times passed resolutions affecting our foreign relations which the Executive in its correspondence with foreign countries had declined to recognze as an authoritative expression of our government. Resolutions passed to be transmitted to a foreign government by the Congress of the United States may or may not be so transmitted by the Executive in his discretion."
72 As far as denunciation because of an adverse breach is concerned, one could have greater doubts than in the other case. Cf. supra note 67.
73 Supra note 52, at 243, 128 N.E, at 192 (italics ours). It should be noted in connection with the remarks supra note 42, that Cardozo made this general statement with respect to the denunciation of treaties in a case involving the termination of treaties because of war; consequently it would appear that he thought the whole field of termination by denunciation was in the control of the treaty power.
74 Op. cit. supra note 5. at 610 : "The abrogation of the treaty involves the exercise of the same kind of power as the making of it."
75 CRANDALL, op. cit. supra note 1, at 461.
77 See WRIGHT, op. cit. supra note 1, at 259 ; CRANDALL, op. cit. supra note 1, at 459; 1 WILLOUGHBY, op. cit. supra note 1, at 586 ; Note (1936) 35 Mich. L. REV. 88, 93.
78 SEN, REP. No. 97, 34th Cong., 1st Sess. (1856) 4.
On the other hand there seems to be at least one instance where the President alone without cooperation of Senate or Congress has terminated certain treaty provisions, i.e., in the case of a treaty with Switzerland.80 It would seem more difficult to justify this course of action.
One might argue in its favor that unilateral denunciation does not involve an obligation of the nation but only the bringing to an end of such an obligation; that it is a mere unilateral act of the executive with respect to foreign relations and as such is within the power of the President as are other unilateral acts, as for instance, recognition of new states and governments. This view is defended by Reeves 81 and Mathews.82 The latter writer gives as a reason that since the Senate has already, in its treatymaking capacity, acted upon a treaty providing for its termination upon notice, no further senatorial action is necessary in effecting such termination.
Finally there are cases where joint resolutions or acts of Congress authorized or requested the President to terminate treaties. In 1846 Congress passed a "Joint Resolution concerning the Oregon Territory” whereby the President was "authorized at his discretion” to give notice of the termination of the Treaty of 1827 with Great Britain.83 In 1856 Congress passed a Joint Resolution Providing for the Reciprocity Treaty of June 5th, 1854, between the United States and Great Britain, "charging the President with the communication of such notice.” 84 In 1883 Congress passed a "Joint Resolution providing for the termination of articles... of the treaty between the United States and Her Britannic Majesty, etc." in which it directed the President to give and communicate notice of termination at the time provided for by the treaty and simultaneously declared that from this time said articles should be deemed to have expired and of no force and effect by every department of the Government.85 Another important instance is the authorization and direction of the President by Congress to terminate the agreements under the Tariff Act of 1897, contained in section 4 of the Tariff Act of 1909. There it was provided, “That the President shall have the power and it shall be his duty to give notice, within 10 days . . ., to all foreign countries with which commercial agreements in conformity with the authority granted by section three of the Act entitled 'An Act to provide revenue for the Government [etc.]', have been or shall have been entered into, of the intention of the United States to terminate such agreement ..." 86 Recent instances are the Seamen's Act of 1915, involved in the Curtiss-Wright case and the Merchant Marine Act of 1920, which provoked the above mentioned protest of President Wilson.
Insofar as the termination of agreements under the Tariff Act of 1909 is concerned, one might easily argue that this termination has no
79 Cf. Reeves. The Jones Act and the Denunciation of Treaties (1921) 15 AM. J. INT. LAW 33; WRIGHT, op. cit. supra note 1, at 258. In Note (1936) 35 Mich. L. REV. 88. 92, it is stated that President Hayes had taken the opposite view, but his statement is explained as meaning the internal effect only. See 1 WILLOUGHBY, op. cit. supra note 1, at 584.
80 1 WILLOUGHBY, op. cit. supra note 1, at 586; MATHEWS, op. cit. supra note 1, at 488. 81 Op. cit. supra note 79, at 38. 82 Op. cit. supra note 1, at 515. 83 9 STAT. (1846) 109. 84 13 STAT. (1865) 566. 85 22 STAT. (1883) 641. 1 36 STAI (1909) Part I, 11, at 83.
value as precedent whatsover, because no treaty but only executive agreements under special congressional authorization were involved. But the other situations are clearly instances of authorization of the President by Congress to denounce treaties and, save the first instance, of even imposing a duty on him to do so. The Senate Committee on Foreign Relations, which held that the treaty power must act in the denunciation, believed that it makes no difference whether the Senate acts in conjunction with the House of Representatives or alone.$This is not correct. Where the Senate acts in the exercise of the treaty power, no other body of legislators is required to act as when it acts as part of Congress, and furthermore, the necessary number of votes in favor of a treaty (two-thirds of the Senators present) differs from the number necessary if the Senate is in session as a legislative body. Differences exist seemingly also with respect to the quorum. Therefore, it is clearly relevant to decide whether this practice is constitutional.
The Van Der Weyde case has the effect of sanctioning this practice. at least to a certain extent. Considering the many legislative precedents and the policy of the Court not to disturb, if possible, long established constitutional practice, this was not amazing 88 It is, however, necessary to examine how far this sanction extends. This is not easy as the Court was vague.
In the first place the Court has not said that the President could not give effect to a unilateral denunciation of the treaty without congressional authority, i.e., that the authorization is indispensable. It has likewise not said that the treaty power could not denounce a treaty: But it did say that the President could denounce a treaty if authorized by a congressional act under the circumstances of the case. The opinion starts, as we have seen, with the mysterious sentence: “The question as to the authority of the executive in the absence of congressional action, or of action by the treaty-making power, to denounce a treaty of the United States is not involved.” This is, it must be submitted, not quite correct. The power of the President in the absence of the treaty-making power was involved. The President acted not under concurrence of two-thirds of the Senate present, but upon authority of Congress. Hence the Court decided, that the power to denounce a treaty can be exercised under certain circumstances by the President in conjunction with Congress, leaving open the question whether this can be done concurrently with or in exclusion of the treaty power. Furthermore, one must observe the circumstances of the case. There was an act of Congress introducing regulations inconsistent with the treaty. Corsequently all that has been decided comes down to the following: If there exists a self-executing treaty and Congress passes a statute inconsistent therewith, (either outright or reserving treaty rights until notice has been given) and the statute authorized the President to denounce the treaties, then the notice of denunciation of the treaties by the President without concurrence of two-thirds of the Senate present is considered to be internationally valid and terminates the municipal effect of such treaties. From the opinion more can hardly be deduced than that the action by Congress removed, in the mind of
87 SEN. REP. NO. 97, op. cit. supra note 78, at 6.
88 Cf. Field v. Clark (1892) 143 U.S. 649. 691 : United States v. Curtiss-Wright Export Corp.. supra note 3, at 328, 329 ; Cincinnati Soap Co. v. United States (1937) 81 L. Ed. Adv. Op. 707, 711.