treaty by means of a statute and "requested and directed" the President to give notice of the termination to Norway. Despite the unusual procedure, the Supreme Court decided that the treaty had been properly terminated since both political departments had concurred in the termination. Thus, where the President and the Congress are in harmony on the termination, the court will consider such action as proper.24 But direct confrontation on the issue of the President's power to terminate a treaty without some form of congressional approbation was avoided:

[W]e think that 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 here involved.25

In United States v. Curtiss-Wright Export Corp.,26 the Supreme Court dealt with the power of the President as the "sole organ of the federal government in the field of international relations." Congress had passed a joint resolution empowering the President to prohibit the sale of arms or munitions into certain Latin American countries. The President thereafter issued proclamations putting the resolution into effect. The constitutionality of this procedure was in issue. With sweeping language, Mr. Justice Sutherland broadly defined the presidential power in foreign relations:

Not only, as we have shown, is the Federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.27

Whether this general language could be used to support the proposition that the President may terminate a treaty alone is doubtful. Not all treaties involve merely political relationships with foreign nations. Chief Justice Marshall has said:

Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.28

If a particular treaty is fundamentally legislation on an international plane, as in the case of the Warsaw Convention, and if it relates principally to private rights and liabilities, the analogy presents itself between repeal of a statute and termination of a treaty legislative in nature. The power to repeal is inherent in the power to legislate, and

24 Riesenfeld, supra note 8, at 665.

25 297 U.S. at 117.

20 299 U.S. 304, 320 (1946).

27 Id. at 319.

28 Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829). See note 11 supra; Geofroy v. Riggs. 133 U.S. 258 (1890) (extent of the treaty-making power). Marshall's statement has been repeated often. Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 747 (1838); United States v. Arredondo, 31 U.S. (6 Pet.) 691, 735 (1832).

it would seem that the same formalities would be necessary in both enactment and repeal. Since a treaty cannot become effective either as an international compact or as internal law in the United States until two-thirds of the Senate consent, then can it be terminated internationally or internally without action by the Senate or Congress? Congress has considerable power to modify or to abrogate treaties.

Congress by legislation, and so far as the people and authorities of the United States are concerned, could abrogate a treaty between this country and another country which had been negotiated by the President and approved by the Senate.29

In Taylor v. Morton,30 Mr. Justice Curtis wrote this illuminating discussion of the power of Congress to abrogate a treaty by inconsistent legislation:

The first and most obvious distinction between a treaty and an act of congress is, that the former is made by the presídent and ratified by two thirds of the senators present; the latter by majorities of both houses of Congress and the president, or by both houses only, by constitutional majorities, if the president refuses his assent. Ordinarily, it is certainly true, that the powers of enacting and repealing laws reside in the same persons. But there is no reason, in the nature of things, why it may not be otherwise. *** I think it is impossible to maintain that, under our constitution, the president and senate exclusively, possess the power to modify or repeal a law found in a treaty.31

Curtis reasoned that the Constitution could not have been intended to render this country "helpless" by requiring the President and Senate to enter into a new treaty with the other country, requiring the latter's approval, before the present treaty could be terminated. Since both treaty and congressional legislation are on equal footing as the supreme law of the land, subsequent legislation can cause an inconsistent treaty to be abrogated. As in Van Der Weyde v. Ocean Transp. Co.,32 the rule in this line of cases accords with Mr. Justice Story's precept that treaty termination should be only "by some act of as high an import, and of as unequivocal an authority" as the formalities by which a treaty was made.33

But the influence of the executive branch on the courts in treaty matters is considerable. Whether a treaty continues to exist or has been extinguished is principally a matter for executive determination. Thus, the decision as to whether a treaty remains in effect despite a war between the two nations 3* and whether a treaty has been terminated by

34

29 La Abra Silver Mining Co. v. United States. 175 U.S. 423, 460 (1899). See also The Chinese Exclusion Case, 130 U.S. 581, 600-01 (1889); Head Money Cases, 112 U.S. 580, 597 (1884); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1870).

30 23 Fed. Cas. 784 (No. 13799) (C.C.D. Mass. 1855).

31 Id. at 785-86.

32 297 U.S. 114 (1936).

33 The Amiable Isabella. 19 U.S. (6 Wheat). 1, 75 (1821).

34 Clark v. Allen, 331 U.S. 503, 514 (1947); Techt v. Hughes, 229 N.Y. 222, 128 N.E. 185, cert. denied, 254 U.S. 643 (1920). President has on one occasion invoked the rule of rebus sic stantibus (a treaty shall cease to be obligatory as soon as the state of facts and conditions upon which it was founded has substantially changed) in justification for suspending United States obligations under the International Loadline Convention of 5 July 1930. 47 Stat. 2228. T.S. No. 858 (1931). The presidential proclamation was based on an opinion of the Attorney General, 40 OPS. ATT'Y GEN. 119 (1941). See Briggs, The Attorney General Invokes Rebus Sic Stantibus, 36 AM. J. INT'L L. 89 (1942). 2 HYDE, op. cit. supra note 8, at 1527.

36

the breach of the other country is for the Executive alone to answer.35 In Charlton v. Kelly, the Department of State had advised the Court that it considered the United States still bound by an extradition treaty with Italy, although Italy had apparently violated the treaty on several occasions. The Supreme Court stated, "A construction of a treaty by the political department of the Government, while not conclusive upon a court called upon to construe such a treaty in a matter involving personal rights, is nevertheless of much weight." 37 It can be argued that the Court's recognition of the views of the executive branch on the effectiveness or interpretation of a treaty is a reflection of the judiciary's deference to the President in matters relating more to the conduct of foreign relations than to the making of treaties. Although, in some instances, the power to interpret a treaty may be the power to terminate it, the two powers remain fundamentally different in most

cases.

It has been suggested that there is a controlling analogy between the President's power of removal from office and the power to terminate treaties.38 In the same section which grants the treaty-making power to the President by and with the advice and consent of the Senate, the Constitution gives the President the power to appoint all officers of the United States not otherwise provided for, again "by and with the Advice and Consent of the Senate. . . ."39 At first glance, there would seem to be a clear parallel between the two provisions due to their proximity in the Constitution and their common language.

In Parsons v. United States,40 the Supreme Court held that the President could remove a federal district attorney from his office before the end of his term without congressional or senatorial approval even though a statute provided for a four-year tenure of office. Later, in Myers v. United States,11 the Court considered the power of the President to unilaterally remove a postmaster. A statute passed by Congress providing that the postmaster could be removed from office by the President only with the advice and consent of the Senate was held an unconstitutional limitation on the removal power of the President. The pronouncement in Myers was narrowed considerably in Humphrey's Executor v. United States,42 where it was held that the President could not unilaterally remove officers appointed pursuant to an act of Congress to an office of legislative or judicial nature. Thus, the Myers decision affirming the power of the President alone to remove was confined to purely executive officers.

It has been argued that the powers of termination and removal are both essentially negative, that the Constitution does not expressly limit either power, and that the President is in both cases best suited to determine whether a treaty should remain in effect or whether a person

35 Charlton v. Kelly, 229 U.S. 447 (1913); cf. Terlinden v. Ames, 184 U.S. 270, 285 (1902). 36 229 U.S. 447 (1913).

37 Id. at 468. In nontreaty matters involving the exercse by the Executive of its power to conduct the foreign relations of the United States, the influence of the Department of State's opinion is similarly persuasive on the courts. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964); 58 AM. J. INT'L L. 779 (1964). But see, Banco Nacional de Cuba v. Farr. 243 F. Supp. 957 (S.D.N.Y. 1965); Comment, 59 AM. J. ÍNT'L L. 899 (1965). Cf. Latvian State Cargo & Passenger S.S. Line v. McGrath, 188 F.2d 1000 (D.C. Cir. 1951); The Maret. 145 F.2d 431 (3d Cir. 1944).

38 Nelson, supra note 8, at 883-88.

39 U.S. CONST. art. II, § 2.

40 167 U.S. 324 (1897).

41 272 U.S. 52 (1926).

42 295 U.S. 602 (1935).

43

should remain in office. But, as previously pointed out, treaties are often fundamentally legislative; they can, like the Warsaw Convention, provide a set of international rules governing rights and liabilities between private persons. Termination of a legislative treaty is by no means essentially a negative act. Treaties, together with the Constitution and federal legislation, are at the top of the hierarchy of statutes establishing American law. Terminating a treaty of this sort automatically causes the applicable law in most cases to become that of the various states. In any case, some substitute local law moves in immediately to fill the void. The decision to terminate a legislative treaty, involving as it does the exchange of one body of law for another, is principally for the legislature, although the interests of the Executive in the conduct of foreign relations may be indirectly involved.45 The issue remains, however, whether in some cases the President is, after all, best suited to decide on treaty termination in an area traditionally and constitutionally governed by legislation.

44

43 Nelson, supra note 8, at 887-88.

44 Cf. Erie R.R. v. Tompkins, 304 U.S. 64 (1938); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941).

45 It should be noted that in the Warsaw Convention situation, what is involved is mostly the regulation of foreign commerce, which duty devolves upon the Congress (U.S. CONST. art. I, 8), although foreign relations are peripherally involved. Perhaps, therefore, Congress should necessarily play some part in the question of whether the resolution of the problems with which the Convention deals should revert to local law instead of the present treaty.

32-770-78-18

[From the Minnesota Law Review, Volume 42, No. 5, April 1958]

THE TERMINATION OF TREATIES AND EXECUTIVE AGREEMENTS BY THE UNITED STATES: THEORY AND PRACTICE

(By Randall H. Nelson*)

The most universally accepted principle of international law relating to the subject of treaties is the doctrine of pacta sunt servanda.1 The normal operations of international intercourse, however, make necessary from time to time the termination of treaties and other international agreements. Logically enough, a body of international law has developed with respect to the subject of termination, and certain general principles have been established. Some of these principles are controversial. The discussion here will be confined to the constitutional law and practice of the United States relative to the termination of treaties and international agreements with emphasis on the period since 1940. The international law principles will be introduced where they are relevant to the discussion.

Green H. Hackworth enumerates the following procedures by which treaties may be terminated in accordance with international law: (1) notice by one of the parties pursuant to the terms of the treaty, (2) fulfillment of the provisions of the treaty, (3) expiration of the period of time for which the treaty was concerned, (4) extinguishment of one of the parties in the case of a bilateral treaty, or of the subject matter of the treaty, (5) agreement of the parties, (6) conclusion of a new treaty covering the same subject matter or one wholly inconsistent with the earlier treaty, (7) denunciation by one party with acquiescence by the other, and (8) effect of war.3

Although not included in this list, the doctrine of rebus sic stantibus, "a tacit condition, said to attach to all treaties, that they shall cease to be obligatory so soon as the state of facts and conditions upon which they were founded has substantially changed," ought to be included as a further basis for the termination of treaties.5

4

*Assistant Professor, Government Department, Southern Illinois University.

1 The doctrine of pacta sunt servanda is a principle of general international law postulating the binding force of treaties. See Kunz, The Meaning and the Range of the Norm Pacta Sunt Servanda, 39 Am. J. Int'l L. 180 (1945): Lauterpacht, Codification and Development of International Law, 49 Am. J. Int'l L. 17 (1955).

2 See, e.g., the discussion of the effect of the outbreak of war upon international treaty obligations in MacDonald, Jay Treaty of 1794-Abrogation of Treaties by Outbreak of War-Review of Canadian and Foreign Decisions, 34 Can. B. Rev. 602 (1956); with respect to the doctrine of rebus sic stantibus, see Kunz, supra note 1, at 190; McDougal and Lans. Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy: I, 54 Yale L.J. 181, 339 (1945).

3 Hackworth, Digest of International Law V. 297 (1953).

Black, Law Dictionary 1432 (4th ed. 1951).

5 Kunz, supra note 1, at 188.