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Since the international agreements which are designated "treaties” and "executive agreements" respectively by the constitutional law of the United States are included under the "generic” term “treaty” in international law, the conditions requisite to the valid termination of a treaty under the rules of international law are identical with respect to executive agreements. Therefore, the enumerated contingencies are equally applicable to both “treaties” and "executive agreements.” A survey of United States practice during the period under study demonstrates conclusively that executive agreements and treaties have been terminated in precisely the same way. There is no evidence to indicate other than the obligations assumed by the United States were of equal force and validity irrespective of the instrument employed to consummate the agreement.

A survey of the international agreements terminated by the United States since 1940 shows that all such terminations fall within the scope of one or the other of the legally accepted formulas enumerated above.? There is no record of any arbitrary denunciation of an international agreement by the United States. The general practice has been to bring about the termination by an exchange of notes in which the agreement to terminate is set forth.8

6 Harvard Law School, Law of Treaties, Draft Conrention with comment, Supp., 29 Am. J. Int'l L. 439. 711 (1935) ; Brierly, Report on the Law of Treaties, U.N. Doc. No. A/CN. 4/23, 10 (1950); McNair, The Law of Treaties. British Practice and Opinions 48 (1938).

7 See the following for sample terminations :

(1) Official termination of International Materials Conference. At a meeting on December 15, 1953, the Central Group concluded that it had accomplished its task and recommended that the Conference be officially terminated as of December 31, 1953. 30 Dep't State Bull. 60 (1954).

(2) Termination of the Wheat Agreement with Pakistan. Agreement asserted by Prime Minister Mohammed Ali to “have" served its purpose. Id. at 760.

(3) Portugal-United States Military Agreement regarding facilities in the Azores, Sept. 6, 1951, art. XII, “This agreement will enter into effect on date of its signature and on the same date the agreement of Feb. 2, 1948, will cease to have validity." 27 Dep't State Bull. 14 (1952).

(4) On July 28, 1952, an exchange of notes between the United States and the United Kingdom released the government of the United States from the obligations of Jan. 18, 1952, under which agreement the United States bad an obligation to prevent private importation of tin for the duration of the agreement unless consultation between the two governments took place. Id. at 266.

(5) Termination of Reciprocal Trade Agreement with Turkey of 1939 by mutual consent as of Aug. 4, 1952, because Turkey had become a member of GATT. Effected by an exchange of notes at Ankara, July 5, 1952. Termination to be effective on 30th day following date of note. Id. at 179, 268.

(6) Industrial Controls Agreement, United States, United Kingdom, France, replaces agreement signed April, 1949. 24 Dep't State Bull. 621 (1951).

(7) Greenland, Defense Agreement with Denmark signed April 27, 1951. On entry into force, Agreement of April 9, 1941, sball cease to be in force, Art. XII. Id. at 814, 943.

(8) Trade Agreement with Costa Rica signed Nov. 28, 1936. and terminated by an exchange of notes dated April 3, 1951. Agreement to cease to be in force after June 1, 1931, by mutual consent. Id. at 622.

(9) As a result of Sweden's accession to GATT, an agreement was signed on May 25, 1950, by which the 1935 trade agreement was terminated, effective June 30, 1950. Id. at 624.

(10) Copyright Extension Agreement, United States United Kingdom signed March 10, 1944. Cancelled by an exchange of notes of July 26, 1950. Termination was effective Dec. 29, 1950. 23 Dep't State Bull. 388 (1950).

(11) Reciprocal Trade Agreement with Mexico of 1942, terminated by an exchange of notes dated about June 23. 1930, and will cease to be in force on Dec. 30, 1950. Terminated only after long and mutually cooperative negotiations. Id. at 215, 501.

(12) Trade Agreement with Haiti Superceded as of Jan. 1, 1950, through operation of agreement under GATT. 22 Dep't State Bull. 30 (1950).

(13) Trade Agreement with Columbia of Sept. 13, 1935, by exchange of notes released on Oct. 17. 1949. Mutual consent. Will cease to be in force after Dec. 1, 1949, 21 Dep't State Bull. 711 (1949).

(14) Trade Agreement with Brazil, 1935. All provisions of the agreement were made Inoperative except Art. XIV relating to termination upon six months' notice so long as the United States and Brazil are both members of GATT. Efected by an exchange of notes. Concluded June 30, 1948. 19 Dep't State Bull. 211 (1948).

(15) On Dec. 4, 1947, the President issued proclamation No. 2763, 12 Fed. Reg. 8866 (1947), declaring to be inoperative all provisions except those relating to termination on six months' notice of the trade agreement with respect to which it was issuerl-trade agreements with certain countries where such agreements conflicted with GATT, Belgo


In 1951, the Congress passed an act extending the Reciprocal Trade Act, section 5 of which instructed the President to abolish agreements containing trade concessions to all countries in the communist bloc. Most of the agreements concerned were executive agreements; but two. those with Poland 10 and Hungary, were treaties. The presidential response to the congressional direction 12 demonstrates rather conclusively that the United States treats executive agreements and treaties in precisely the same manner when effecting their termination. Every agreement included within the scope of the congressional act was


(Continued) Luxumbourg Economic Union, France, Netherlands, and Great Britain. 18 Dep't State Bull. 30 (1948).

(16) Termination of Commercial Aviation Treaty with Cuba, 1928, in accordance with Article XXXVII of the treaty (T.S. 840) and in compliance with Article LXXX of the Convention of Civil Aviation (T.I.A.S. 1591). 17 Dep't State Bull. 599 (1947).

(17) Termination of Fox Fur Quota Agreement of 1940 as supplemental by an exchange of notes agreeing to supplementary trade agreement of Jan. 1, 1940, and later agreement replacing first of Dec. 20, 1940. Termination in accordance with terms by exchange of notes effective May 1, 1947. 16 Dep't State Bull. 678 (1947).

(18) Termination effective Oct. 29, 1946, of Agreement with Peru for_El Pato Airba se of April 24, 1942, in accordance with termination clause. 15 Dep't State Bull. 866 (1946).

(19) Denunciation on July 25, 1946, by United States of Five Freedoms Agreement formulated at Chicago in 1944. Withdrawal is in accordance with Article V of the Agreement which requires ratification of all contracting parties. Id, at 236.

(20) Termination of 1941 Defense Agreement with Iceland effected by an exchange of notes, Sept. 19, 1946, which constituted a new agreement. Id. at 583.

(21) Termination of Coffee Price Control Agreement with Brazil was brought about by decontrol of coffee prices on Oct. 17, 1946. Memo of Understanding was to endure until March 31, 1947, or as long as coffee was subject to price control, which ever was the shorter periori. Id. at 872.

(22) Rubber agreement between the United States, Argentina, and Brazil (T.I.A.S. 1542). Cancellation dated May 2, 1945. Effected by an exchange of notes. Id. at 514, 827.

(23) Expiration of Agreement signed on Nov. 28, 1944, between the United States and Portugal for airfield in Azores. Expired on June 2. 1946. Agreement provided for termination six months after end of hostilities or armistice with period of three months grace for removal of forces and material by the United States. Effected by an exchange of notes bring. ing the agreement to an end. 14 Dep't State Bull. 1051, 1080 (1946).

(24) United States, Haiti, exchange of notes dated Sept. 9, and 16, 1944, confirming automatic termination of certain agreements between the United States and Haiti upon termination of the Haiti-Dominican Republic commercial treaty of Aug. 26, 1941. 11 Dep't State Bull. 394 (1944).

(25) United Maritime Authority Agreement of Aug. 5, 1944 (T.1.A.S. 1722), terminated March 2, 1946, by Agreement under paragraph 9. 14 Dep't State Bull. 487 (1946).

(26) Protocol on the Inter-American Registration of Trade Marks of Feb. 20, 1929 (T.S. 833), denounced by United States in accordance with Art. XIX, para. 3 of the Protocol on Sept. 29. 1944, by a letter to the Director General of the Pan American Union. 11 Dep't State Bull. 442 (1944).

(27) Relinquishment of Extraterritoriality with China by treaty of Jan. 11, 1943 (57 Stat. 767. T.S. 984). 7 Dep't State Bull. 805, 839, 854 (1942).

(28) The State Department announced that the United States considers itself released from requirements contained in para. (a), and (b) of the tax convention with Canadla signed Dec. 30, 1936, by reason of the fact that Canada on April 30, 1941. raised the rates on non-resident Americans, entitling the United States, under the provisions of the Con. vention to regard these paragraphs as of that date. 4 Dep't State Buill. 546 (1941).

(29) Announcement of suspension of Parcel Post Agreements with certain foreign coun. tries because of the disruption of transportation facilities. 2 Dep't State Bull. 720 (1940),

(30) Termination of Agreement for Reciprocal waiver of visa fees with Belgium. Ter. mination effective March 9, 1940. Agreement signed April 15. 1927. Id. at 332.

8 In 1941, the President took the very unusual step of invoking the doctrine of rebus sio stantibus as justification for a proclamation (Proc. Fed. Reg. 3999) suspended the United States' obligations under the International Loadline Convention of July 5. 1930 (T.S. 8.58). The presidential proclamation was based on an opinion by the Attorney General. 40 Ons. Att's Gen. 119 (1941). For comment, see Briggs, The Attorney General Invokes Rebus Sio Stantibus. 36 Am. J. Int'l L. 89 (1942).

9 65 Stat. 72 (1951).
19 Poland. 44 Stat. 1507 (1948), T.S. 862.
11 Hungary, 44 Stat. 2441 (1948), T.S. 748.

12 The presidential proclamation read in part as follows: "Whereas an important ele. mont in determining when it may be practicable to apply these provisions to particular articles is the ability to do so consistently with the international obligations of the United States;

Whereas, in giving effect to the procedures available to free the United States from international obligations existing with respect to some of the nations and areas covered br the allove provisions, it will not be practicable to apply such provisions to all such nations and areas at the same time.” See Proc. No. 2935, 16 Fed. Reg. 7635 (1951).


terminated in accordance with the letter of the agreement irrespective of whether it was labeled “treaty" or "executive agreement." 13

Although the rules of international law for the termination of executive agreements are identical with the rules of international law for the termination of treaties, there are discernible distinctions in the municipal law of the United States with respect to this problem. Just as there is no provision in the Constitution with respect to the removal of officials appointed by the President “by and with the advice and consent of the Senate," 14 there is no provision in the Constitution for the termination of treaties which have been made "by and with the advice and consent of the Senate." 15 The answer to the former question seems to have been settled by practice confirmed by the Myers case 16 as modified by the Humphrey case.17

The Myers case presented the Supreme Court for the first time with the question “whether under the Constitution the President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate.” 18 In 1917, President Wilson appointed Frank S. Myers "by and with the advice and consent of the Senate" to be a first class postmaster for a four-year term. The law under which the appointment was made expressly provided:"Postmasters of the first second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate and shall hold their offices for four years unless sooner removed or suspended according to law." 19

In 1920, prior to the expiration of the four-year term, President Wilson requested the resignation of Myers; and when Myers refused to tender his resignation, the Postmaster General contrary to the provisions of the law, pursuant to the order of President Wilson, removed Myers from his office. Myers protested his removal and, upon expiration of the term for which he had been appointed, brought suit in the Court of Claims to recover the salary allegedly due him for the unexpired portion of his term. The Court of Claims decided against Myers. Myers died, but his wife and administrix, Lois C. Myers, appealed to the Supreme Court. In a sweeping opinion, Chief Justice William H. Taft, who had previously rejected a broad interpretation of presidential power,

power,20 held the president's power to remove officers appointed by him “by and with the advice and consent of the Senate" to be complete. 21

Addressing himself to the specific provision of the Constitution in question, the Chief Justice said.“... The executive power was given in general terms, strengthened by specific terms where emphasis was regarded as appropriate, and was limited by direct expressions where limitation was needed, and the fact that no expressed limit was placed on the power of removal by the Executive was convincing indication

Is See 25 Den't State Bull. 95. 914 (1951) ; 26 Dep't State Bull. 946 (1952).
14. U.S. Const. art. II, sec. 2, cl. 2.
18 Thid.
IA Meyers v. United States, 272 U.S. 52 (1926).
11 Himphrey v. United States, 295 U.S. 602 (1935).
18 272 U.S. 52, 106 (1926).
19 19 Stat. 80, 81c (1876).

0 In 1916, ex-president Taft had written, “The true view of the executive functions is, as I conceive it. that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary. ." See Taft, Our Chief Magistrate and His Powers, 139. cited in Corwin. The President Office and Powers, 1787–1948; History and Analysis of Practice and Opinion. 208 (3rd ed. 1948).

21 For a detailed statement of the facts of this case, see 272 U.S. 52, 106 (1926).

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that none was intended.” 22 After delineating between the effect of a Senate veto on the appointing power and a Senate veto on the removal power,23 Taft asserted that such limitation was ‘not to be implied.” 24 In order to sustain his position, the Chief Justice continued :

The power of removal is incident to the power of appointment ... and when the grant of the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power

the exclusive power of removal.25 Doubtless drawing upon his own experience as President of the United States, Chief Justice Taft proceeded to affirm in the President the power to remove all officials appointed by him irrespective of their functions. With respect to the removal of the most important presidential subordinates, the Chief Justice said:

[I]n all such cases, the discretion to be exercised is that of the President in determining the national public interest and in directing the action to be taken by his ... subordinates to protect it. In this field his cabinet officers must do his will. He must place in each member of his official family, and his chief executive subordinates, implicit faith. The moment he loses confidence in the intelligence, ability, judgment, or loyalty of any one of them, he must have the power to remove him with

out delay.26 Continuing this line of reasoning, the Chief Justice promptly extended the scope of his assertion by holding, “The imperative reasons requiring an unrestricted power to remove the most important of his subordinates in their most important duties must, therefore, control the interpretation of the Constitution as to all appointed by him." 27 In a further elaboration of this statement, he specifically included within the scope of his opinion those executive officers who perform duties of a "quasi judicial character.” 28 The Tenure of Office Act was declared by the Chief Justice to be unconstitutional, and the President was seemingly vested with an uncontrolled power of removal.

The opinion of the Chief Justice had clearly ranged beyond the question before the Court, that is, the removal of a first class postmaster, and in 1935, in the case of Humphrey's Executor. Rathbun V. United States,29 the Court refused to acquiesce in the opinion of Chief Justice Taft and expressly repudiated that portion of the opinion which related to the removal of officials appointed by the President "by and with the advice and consent of the Senate" but whose duties were described as "quasi judicial or quasi legislative."

The facts of the case may be stated briefly.30 William E. Humphrey was appointed in 1931 by President Hoover "by and with the advice and consent of the Senate” to be a member of the Federal Trade Commission for a term of seven years. In 1933, President Franklin D. Roosevelt asked for Mr. Humphrey's resignation. Humphrey refused to resign, whereupon President Roosevelt removed him from office. Humphrey refused to acquiesce in his summary removal and continued to assert his right to the office. Following Mr. Humphrey's death in 1934, a unit was pressed in the Court of Claims by his executor to recover the salary due him from the date of his removal until the date of his death.

22 d. at 118. 23 Id. at 121-122. 24 d. at 121. 25 d. at 122. 28 d. at 134. 27 Ibid. 28 Id. at 135. 29 295 U.S. 602 (1935). 30 For a complete statement of the facts, see 295 U.S. 602, 618-619 (1935).

The Act of February 13, 1925, under which the appointment had been made provided that “any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.” 31

After examining the legislative history of the act and the motives of Congress in prescribing the seven-year term for members of the Commission, the Court concluded that Congress had intended to limit the presidential power of removal by prescribing a specific term of office and limiting the power of removal to the causes enumerated.

In rendering a decision upon the constitutionality of the act as thus interpreted, the Court was obliged to distinguish the Myers case. Mr. Justice Sutherland, speaking for the Court, said:

The office of postmaster is so essentially unlike the office now involved that the decision in the Myers case cannot be accepted as controlling our decision here. A postmaster is an executive officer restricted in the performance of executive functions... the necessary reach of the decision goes far enough to include all purely executive officers. It goes no farther; much less does it include an officer who occupies no place in the executive department and who exercises no part of the executive power vested by the Constitution in the President.

The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties

as a legislative or as a judicial aid ....52 The Court observed that to admit the power of the President to remove the members of the Federal Trade Commission would require a similar exercise of power with respect to the Interstate Commerce Commission and the Court of Claims.33 The Court proceeded to hold that "under the Constitution that illimitable power of removal is not possessed by the President with respect of officers of the character of those just named.” 34 The Court summarized its opinion as follows:

The result of what we now have said is this: Whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term precluding a removal except for cause, will depend upon the character of the office; the Myers decision, affirming the power of the President alone to make the removal, is confined to purely executive officers; and as to officers of the kind here under consideration, we hold that no removal can be


31 43 Stat. 936, 939 (1925). 32 295 U.S. 602, 627 (1935). 83 Id. at 629. * Ibid.

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