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the Court at least, any doubt of the effectiveness of the notice by the President. It invoked simultaneously the President's power in the conduct of foreign relations and his duty to take care that the laws are faithfully executed. Thus many questions remain unanswered, particularly the following:

(a) Can the President, with concurrence of two-thirds of the Senate, terminate treaties by giving notice in compliance with their terms?

(b) Can the President without any action of Congress or Senate give such notice?

(c) Was the Van Der Weyde case a special case, or can the President generally give notice of termination on authorization of Congress; in other words, was the enactment of an inconsistent statute the reason that the President had the power to give a valid

notice? It has already been pointed out that the Court was very careful in its language regarding the duty of the President to follow the direction of Congress in the conduct of foreign relations. All that is said is that if an inconsistent act is passed and the President is directed to terminate a treaty in so far as such inconsistency exists, the Preident has the duty to reach a conclusion” in respect to the inconsistency. 89

Thus one must be careful not to overemphasize the importance of the Van Der Weyde case. It settles positively only that under certain circumstances the termination of treaties through notice in compliance with its terms can be given without concurrence of two-thirds of the Senate but by the President alone following a direction of Congress. The case, however, is indicative of a tendency of the Supreme Court in regard to constitutional construction so far as the conduct of foreign relations is concerned: if the President and Congress are in harmony and act together the Court will, if possible, consider such action as proper. In the Van Der Weyde case this tendency resulted in a refusal to extend the scope of the treaty power; in the CurtissWright case it resulted in a refusal to extend the delegation-of-power prohibition to the field of international relations.

89 Certainly the Court did not even intimate that the President could be compelled to give the notice. That this cannot be done is generally accepted. Cf. Reeves, op. cit. supra note 79, at 37: MATHEWS, op. cit. supra note 1, at 496. On the other hand the Court did not strongly deny any legal duty on the part of the President as Mathews and Taft seem to do. MATHEWS, op. cit. supra note 1, at 495, 496; Taft, op. cit. supra note 5, at 609.

[From the Journal of Air Law and Commerce, Volume 32, No. 4, Autumn 1966].



(By John H. Riggs, Jr.*)



On 15 November 1965, the United States Department of State delivered a diplomatic note to the Polish Government in Warsaw announcing the withdrawal of the United States from the Warsaw Con-vention. The note and accompanying press release 2 indicated that the denunciation resulted solely from the Convention's low limitations on liability for injury or death to passengers, and in no way represented a departure from the long-standing commitment of the United States to international co-operation in matters relating to civil aviation. It further disclosed that the withdrawal, which by the terms of Article 39 of the Convention would not take effect until six months afterdelivery of the notice of denunciation,3 would be rescinded if

prior to its effective date of May 15, 1966, there is a reasonable
prospect of an international agreement on limits of liability
in international air transportation in the area of $100,000 per
passenger or on uniform rules but without any limit of sia-
bility, and if, pending the effectiveness of such international
agreement, there is a provisional arrangement among the
principal international airlines waiving the limits of liability

up to $75,000 per passenger. At the time of the denunciation, neither the Congress nor the Senateby itself had taken formal action to concur in or to advise the withdrawal of the United States from the Convention."

*B.A., Yale University ; LL.B., University of Virginia. Members of the New York Bar.

1 Convention for the Unification of Certain Rules Relating to International Transportation by Air (Warsaw Convention), 12 Oct. 1929, 49 Stat. 3000, T.S. No. 876 (1934) (hereinafter Warsaw Convention). Although not an original signatory to the Warsaw Convention when it was negotiated in 1929, the United States adhered to the treaty on 29 October 1931. The Senate advised adherence, subject to the reservation under the "Additional Protocol,” on 15 June 1934, and the President duly proclaimed the adherence on 29 October 1934. The_United States signed. but has never ratified The Hague Protocol which modifies the Warsaw Convention, and which took effect for the ratifying countries on 1 August 1963.

2 The Department of State's note is reprinted in 31 J. AIR L. & Com. 305 (1965), 53 DEP'T STATE BULL. 924 (1965). "he press release. dated 15 November 1965, is set forth in 53 DEP'T STATD BULL. 923 (1965). See gunerally Kreindler, The Denunciation of the Warsauo Convention, 31 J. AIR L. & Com. 291 (1965).

3 Warsaw Convention, art. 39 : (1) Any one of the High Contracting Parties may denounce this convention by a notification addressed to the Government of the Republic of Poland, which shall at once inform the Government of each of the High Contracting Parties. (2) Denunciation shall take effect six months after the notification of denunciation, and shall operate only as regards the party which shall have proceeded to denunciation.

• Dep't of State Press Release No. 268, 15 Nov. 1965; 53 DEP'T STATE BULL. 923, 924 (1965).

Just one day prior to the effective date, the Department of State announced the withdrawal of its denunciation of the Warsaw Convention. Essentially, the withdrawal of the denunciation resulted from an eleventh hour agreement among the world's leading international air carriers to waive the $8300 personal injury and death damages limitation as well as certain defenses under the Convention, in exchange for a tariff provision setting a new damages limit of $75,000 under conditions of virtual absolute liability. But in cancelling its denunciation, the Department of State made it clear that the agreement by the carriers was only a "provisional” measure and that, "the Government of the United States looks forward to continued discussions looking to an up-to-date and permanent international agreement on the important issues dealt with in the Warsaw Convention." ? Thus, the State Department may again denounce the Warsaw Convention if it does not feel that steps are being taken with deliberate speed to negotiate a multilateral replacement treaty for the WarsawHague combination.

The possibility of a later denunciation raises the question of Presidential power to unilaterally withdraw or terminate United States adherence to a self-executing treaty of the nature of the Warsaw Convention. The Constitution provides that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur. . However, the Constitution is silent on the question of where the treatyterminating powers lies. It would seem logical that the same formalities required for making a treaty would prevail in the termination of a bilateral one or in the withdrawal from a multilateral one. 10

Yet there is no judicial decision in American jurisprudence which has directly met this question. Perhaps one reason for the absence of



5 The only action taken by Congress or the Senate alone was a hearing by the Senate Foreign Relations Committee on 26–27 May 1965, on the question of ratification of The Hague Protocol to the Warsaw Convention. In the Committee's report dated 29 June 1965, ratification of The Hague Protocol was recommended ; but the Committee added that if legislation containing a complementary insurance program "is not enacted within a reasonable time (i.e., prior to the adjournment of the 89th Congress), the Department of State should take immediate steps to denounce the Warsaw Convention and The Hague Protocol." 32 J. AIR L. & COM. 244 (1966). No formal action has been taken by the Congress or the Senate since then. However, a resolution sponsored by twenty-eight senators directing the President to denounce the Warsaw Convention was introduced on 3 May 1965, and is currently pending before the Senate Foreign Relations Committee (S. Res. 256, 89th Cong.).

6 54 DEP'T STATE BULL. 1033 (1966). The text of the United States note to the Polish Government dated 14 May 1966, and the press releases of the Department of State on the withdrawal of the denunciation are set forth in 32 J. AIR L. & COM. 243-48 (1966). Three domestic airlines, Delta, National, and United, have not accepted the absolute liability provision.

? Department of State Note to Polish Government, 14 May 1966, reprinted in 32 J. AIR L. & COM. 248 (1966).

8 See generally CORWIN. THE CONSTITUTION OF THE UNITED STATES OF AMERICA 423-25 (1953) ; 5 HACKWORTH, DIGEST OF INTERNATIONAL LAW 319-42 (1943) ; 2 HYDE. INTERNATIONAL LAW CHIEFLY AS INTERPRETED AND APPLIED BY THE UNITED STATES 1516–27 (2d ed. 1945); Nelson, The Termination of Treaties and Executive Agreements by the United States: Theory and Practire, 42 MINN. L. Rev. 879 (1958); and Riesenfeld, The Power of Congress and the President in International Relations: Three Recent Supreme Court Decisions, 25 CALIF. L. REV. 643 (1937).

U.S. CONST. art. II, 8 2. 10. “[T]he obligations of the treaty could not be changed or varied, but by the same formalities with which they were introduced ; or, at least, by some act of as high an import, and of as unequivocal an authority." The Amiahle Isabella. 19 U.S. (6 Wheat.) 1, 75 (1821) (Story. J.); Techt v. Hughes, 229 N.Y. 222. 243, 128 N.E. 185, 192 (Cardozo, J.), cert. denied, 254 U.S. 643 (1920) ; cf. Jones v. Walker, 13 Fed. Cas. '1059, 1062-63' (No. 7507) (C.C. Va., date unknown) (Jay, C.J.).

case law on the subject is that relatively few treaties are legislative and self-executing in nature, and very few of such treaties have been terminated by the executive branch alone. Most treaties are in the nature of international compacts which relate to governmental relations only. Only a small number are conventions which establish both an international and, in the case of the United States, 11 an internal (legislative) body of law governing rights between private individuals or companies. Thus, few instances occur where private persons have the opportunity to litigate the issue of whether private rights, established by a treaty, have been unconstitutionally abrogated by the improper termination of a treaty by the Executive alone. Because of the problem of "standing," it is doubtful that an individual could litigate this issue unless the treaty in question involved private rights and the termination affected him directly. But if the Department of State again denounces the Warsaw Convention and allows the denunciation to become effective six months afterwards, a strong possibility exists that this issue might be litigated because of the Convention's direct effect on both individuals and companies.

The question of the power of the executive branch to terminate a Jegislative treaty without the concurrence of all or part of the legislative branch is a matter of municipal law, not international law. The internal enforceability of a treaty as "the Supreme Law of the Land" after an attempted unilaterial termination by the President depends entirely upon American constitutional law. 12


"The position of the executive branch on this question has been inconsistent. In a memorandum relating to the termination of a bilateral treaty of commerce and navigation with Italy, Green H. Hackworth, then Legal Adviser of the Department of State, wrote to President Roosevelt:

The question as to the authority of the Executive to terminate treaties independently of the Congress or of the Senate is in a somewhat confused state. Although the Constitution contains provision with reference to the making of treaties, it is silent with respect to their abrogation. In some cases treaties have been terminated by the President pursuant to action by Congress. In other cases action has been taken by the President pursuant to resolutions of the Senate alone. In still others the initiative has been taken by the President. In some cases his action was afterwards notified to the Senate or to both Houses of Congress and approved, in other cases it was not referred to either House. No settled rule or procedure has been followed.13

11 U.S. Const. art. VI, & 2 provides : This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land ; and the Judges of every State shall be bound thereby, anything in the Constitution or Laws of any State to the contrary notwithstanding. United States v. Belmont, 301 U.S. 324, 331-32 (1937); Asakura v. Seattle, 261 U.S. 332 (1924); Missouri v. Holland, 232 U.S. 416 (1920).

12 Riesenfeld, supra note 8, at 636-58.

13 HACKWORTH, op. cit. supra note 8, at 330, Mr. Hackworth nevertheless advised Presi. dent Roosevelt that he had the power to terminate the Italian Treaty without seeking the advice and consent of the Senate or the approval of Congress because of an 18.58 precedent involving unilateral termination of a clause in a similar treaty with Switzerland. President Roosevelt thereafter gave notice to the Italian Government of the termination of


Since the question has never been directly considered by an American court,14 the opinions of constitutional law authorities are split. Hackworth apparently considered the answer to lie in presidential precedents, not in constitutional law.15 It has also been argued that the silence of the Constitution on this point probably means that the President acting alone has the power to terminate a treaty as an international obligation, although perhaps not as binding municipal law.16 Others argue that "the abrogation of a treaty involves the exercise of the same kind of power as the making of it," 17 and that therefore some sort of congressional or senatorial concurrence in termination is necessary for it to have both international and internal effect. 18

Little judicial authority exists. In Techt v. Ilughes, 19 Judge Cardozo considered the effect of the first World War upon private rights created by a pre-war treaty between the United States and AustriaHungary. After repeating the well-established rule that courts alone may not invalidate a treaty provision without some action taken by “the political departments of the government that it has been sus. pended or annulled," 20 Judge Cardozo stated, in dicta:

President and Senate may denounce the treaty, and thus terminate its life. Congress may enact an inconsistent rule, which will control the action of the courts. . . . The treaty of peace itself may set up new relations, and terminate earlier pacts, either tacitly or expressly. ... But until one of these things is done, until some one of these events occurs, while war is still flagrant, and the will of the political departments of the government unrevealed, the courts, as I view their func

tion, play a humbler and more cautious part.21 This language has been quoted with approval by the Supreme Court, albeit again in dicta.22

In Van Der Weyde v. Ocean Transp. Co.,23 Congress terminated a

(Continued) the treaty, and no action by the Senate or Congress was sought. A similar treaty termination without legislative participation occurred in 1926 during President Coolidges allministration. But Presidents Wilson and Hayes took the position that the advice and consent of two-thirds of the Senate was required before they could give notice of termination. In President Wilson's case, withdrawal from a unilateral public health treaty was involved. Reeves, The Jones Act and the Denunciation of Treaties, 15 AM. J. INT'L. L. 33 (1921). President Taft obtained a joint resolution of both houses of Congress in 1911 ratifying prior notice given by him that the United States was terminating a commercial treaty with Russia. Other procedures have also been followed. These and other instances are described and catalogued in 5 HACKWORTH, op. c. supra note 8, at 319–33; Neison, 8u pra note 8, at 879-82.

14 The question of whether American courts would accept jurisdiction over this issue is discussed infra.

15 Cf. note 17 infra; CORWIN, op. cit. supra note 8, at 423–24.


17 Taft, The Boundaries Between the Executive, the Legislative and the Judicial Branches of the Government, 25 YALE L.J. 599. 610 (1916).

18 Riesenfeld, supra note 8, at 660-62.
19 229 N.Y. 222. 128 N.E. 185. cert. (lenierl. 254 U.S. 643 (1920).

20 In Jones v. Walker, 13 Fed. Cas. 1059, 1063 (No. 7507) (C.C. Va., date unknown). Chief Justice Jay stated, “Where the department authorized to annul a voidable treaty shall deem it most conducive to the national interest that it should longer continue to le obeyed and observed, no right can be incident to the judiciary to declare it void in a single instance." See also Charlton v. Kelly, 229 U.S. 447 (1913); Terlinden v. Ames, 184 U.S. 270 (1902). On the issue of the effect of war upon treaties, see Clark v. Allen, 331 U.S. 503 (1947); Society for the Propagation of the Gospel v. New Haven. 21 U.S. (8 Whert.) 464, 494-95 (18231 ; Argento v. Horn, 241 F.2d 258, 262-63 (6th Cir. 1957) (Stewart, C.J.): and 106 U. Pa. L. Rev. 617 (1958).

21 229 N.Y. at 243, 128 N.E. at 192.

22 Clark v. Allen. 331 U.S. 503, 509 (1947). See also Mr. Justice Story's language quoted in The Amiable Isabella, 19 U.S. (6 Wheat.) 1. 14 (1821).

23 297 U.S. 114 (1936). See the thorough discussion of the case in Riesenfeld, supra note 8, at 645–65; and Comment, 35 Mich. L. REV. 88 (1936).

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