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it has been the policy of the United States to terminate all international agreements, treaties and executive agreements, in accordance with the rules of international law.
The problem of treaty termination is complicated by the diffusion of the foreign relations power of the United States among the President, the Senate, and the Congress and the failure of the framers to make any express provision for the termination of treaties. Diplomatic practice coupled with judicial opinion demonstrates that the President as the chief organ of foreign relations, has the primary responsibility with respect to the termination of treaties. He may perform this function alone or in conjunction with the Congress or the Senate. The Congress, on the other hand, may suspend the internal operation of a treaty by the passage of conflicting legislation or by refusal to pass necessary implementing legislation. Congressional action alone, howerer, cannot relieve the nation of its international responsibility.
Except for the fact that the Senate has no separate role to play, executive agreements are terminable by the same methods as treaties. As in the case of treaties, Congress can suspend the internal enforcement of an executive agreement by the passage of conflicting legislation, by refusal to enact implementing legislation, or by the termination of statutory delegation of power to the President. The Congress cannot, however, terminate ipso facto the international obligation which the United States has assumed in such agreements.
The courts have recognized that the primary responsibility for terminating international agreements belongs to the political branches of the government. The courts must, however, when called upon to do so, resolve difficult questions relating to the termination of international agreements. The actual power of termination is a political power; and, in this respect, presidential authority, though not exclusive, is paramount.
[From the American Bar Association Journal, Volume 64, July 1978]
PERSONAL VIEWPOINT FROM ONE OF OUR READERS
NORMALIZING RELATIONS WITH THE PEOPLE'S REPUBLIC OF CHINA
(By Jerome Alan Cohen') More than six years ago the Shanghai Communique committed the United States and the People's Republic of China to the establishment of formal diplomatic relations. In April President Carter expressed the hope that the long overdue normalization of relations will be achieved in a matter of months. In May Zbigniew Brzezinski, the administration's national security adviser, visited the People's Republic. Although only global issues were on his agenda, he probably probed Peking's attitude toward normalization.
Yet in Washington confusion exists concerning the legal implications of normalization. This inhibits the president from accurately assessing its international and domestic costs. Three misconceptions cloud analysis.
The first is that normalization will mean our acceptance of Peking's sovereignty over Taiwan. If so, we would have no legal basis for continuing to defend Taiwan. But a recognizing state need not confirm the territorial claims of the government it recognizes, and the P.R.C. has established diplomatic relations with many states that have failed to acknowledge its sovereignty over Taiwan.
Although the 1943 Cairo Declaration committed the United States to restore Taiwan to China after World War II, Washington has never formally approved the restoration. Between mid-1945 and mid1950 we treated Taiwan as part of China but anticipated that the island's de facto status would be confirmed de jure by the forthcoming peace treaties. Once the Korean conflict occurred, however, Washington announced, "The determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations." This implied the possibility of separating the island from China, and the peace treaties were artfully constructed to confirm Japan's renunciation of Taiwan without confirmed China's title.
Yet at Shanghai in 1972 the United States declared that it does not challenge” the claim of all Chinese on either side of the Taiwan Strait that Taiwan is a part of China. Although American officials argued that this language did not represent another shift in position, it did appear to eliminate the specter that Washington might permanently separate the island from China by failing to fulfill the Cairo
1 / Jerome Alan Cohen 18 associate dean and director of East Asian Legal studies at Harvard Law School.)
Declaration's pledge. Nevertheless, this carefully chosen terminology did not formally confirm Taiwan's reincorporation into China. It simply renewed the hope that the pledge would be fulfilled at some future date.
Thus, if in the process of recognizing the P.R.C. as the government of China, Washington does nothing further to clarify Taiwan's status, it will not have undermined its legal basis for defending the island.
The second misconception is that normalization need not terminate the 1954 United States treaty to defend Taiwan. It has been argued that the treaty, made with the Republic of China, can survive recognition of the P.R.C. as the new government of China, since its terms are limited to territory controlled by the R.O.C. This would vastly complicate the normalization process.
Fortunately, the argument is wrong. The defense treaty was concluded with the R.O.C. as the government of the state of China. Once the United States meets Peking's first condition for normalization by formally acknowledging the P.R.C. rather than the R.O.C. as the government of that state, it will be for Peking, as well as Washington, to determine whether the treaty should be maintained. Whatever the consequence for the defense treaty might be if we were simply withdrawing recognition from Taipei, that is not the situation contemplated. By recognizing Peking, we will confer upon it the mantle of China for legal purposes, thereby enabling it to decide not to continue the treaty regardless of whether the treaty applies to only a specific area.
Termination of the treaty is the second of Peking's conditions for normalization. The P.R.C. has branded the treaty void since its negotiation. Indeed, because Peking has regarded the R.O.C. as a bogus government since the P.R.C.'s founding in 1949, it has refused to recognize any agreements concluded by its rival on Taiwan after that date. Moreover, it would make no sense for the P.R.C. to succeed to a treaty to defend the island against the P.R.C.
Leaders in Peking have indicated that the treaty will lapse as a result of normalization. Of all the many states that have already transferred recognition from the R.O.C. to the P.R.C. I know of none that has managed to maintain previously concluded agreements with the R.O.C. We will prove no exception.
The demise of the defense treaty, however, will not prevent the United States from using some means other than a treaty to renew its commitment to defend Taiwan. Some form of unilateral assurance will be legally possible so long as Washington does not formally confirm the island's status as part of China. For example, the president, echoing the Shanghai Communique, could announce that the United States "reaffirms its interest in a peaceful settlement of the Taiwan question by the Chinese themselves.”
Because of its insistence that Taiwan is Chinese territory, the P.R.C. obviously will not agree to that formulation. Yet, if otherwise satisfied with the terms for normalization, there is a genuine possibilitydespite contrary statements occasionally made to the press—that it will tolerate the arrangement.
The third misconception is that termination of the defense treaty will require formal consent of the Senate or the Congress. An argument
has been made that normalization will result in termination of the defense treaty, that this will be tantamount to abrogation of the treaty, and that under American constitutional law the president can only abrogate a treaty with the consent of the Senate or the Congress.
This argument mistakenly assumes that normalization will equal abrogation. In fact, normalization is distinct from abrogation, although, by establishing diplomatic relations with the new government of China, the president will make it possible for that government to decide to terminate the treaty by not succeeding to it.
The point that must be grasped is that in these circumstances it is not the United States but China that would be terminating the treaty. The president would be exercising his traditionally unfettered power to establish diplomatic relations, but he would not be abrogating the treaty. Therefore, we would not reach the question whether it is necessary for the Senate or Congress to approve of abrogation.
Èven if we assume that normalization legally constitutes abrogation, I do not believe that legislative approval is required. The treaty itself simply provides for abrogation with one year's notice. It states nothing about Senate or congressional approval of abrogation, nor was that approval made a condition of the Senate's consent to the treaty. There is also no consistently observed custom that compels the president to obtain that approval.
Although history reveals both cases in which approval was obtained and dicta endorsing this practice, there have been many other instances in which the president has acted alone, especially in modern experience, and this action has been accepted as within his authority. The fact that the president has sometimes terminated treaties in collaboration with the Congress does not negate his power to act independently in this respect.
One can well understand the policy reasons that led to the requirement that the advice and consent of the Senate be obtained prior to binding the United States to treaty obligations. One can also understand why the decision to release the country from treaty entanglements would not require similar approval. The president's appointment and removal of cabinet officials provides an analogous example. The consent of the Senate is necessary for their appointment, but it is not required for their termination.
Thus, although the power of the president to terminate treaties is not entirely free from doubt, Louis Henkin, our leading commentator on foreign affairs and the Constitution, appears to be correct in concluding that neither the Senate nor the Congress is likely to be successful in asserting a plausible legal challenge to it, since it is the president who acts for the nation internationally. This does not mean, of course, that it would be politically wise for the president not to consult the Congress about his plans for normalization, only that there can be no constitutional obstacle to normalization and its consequence-formal termination of the defense treaty.
[Proceedings, 72nd Annual Meeting, American Society of Interna
tional Law, Washington, D.C.]
LEGAL IMPLICATIONS OF RECOGNITION OF THE
PEOPLE'S REPUBLIC OF CHINA
The session was conveyed at 2:30 p.m., April 28, 1978, by its Chairman, Walter S. Surrey.1
INTRODUCTION BY THE CHAIRMAN The Chairman suggested that the issues to be discussed by the panel resolved around the issuance of the 1972 Shanghai Communique, where it was at least agreed that there were disputes between the United States and the People's Republic of China (PRC) and that both sides wished to reconcile differences. In the communique the PRC indicated that the Taiwan issue was crucial, and that it insisted upon a United States acknowledgement of a "one China” policy. On its part the United States somewhat ambiguously endorsed a "one China" policy. The two sides agreed that they would keep channels open, through such mechanisms as the United States Liaison Office in Peking and the Council of U.S.-China Trade. The Chairman noted that the PRC Government had expected further steps towards normalization during the second Nixon Administration, and again during the Ford Administration. History frustrated both expectations, but the PRC Government undoubtedly continues to monitor developments here.
REMARKS BY JEROME ALAN COHEN 2
Now that the Panama Canal treaties have received the consent of the Senate, President Carter is free to turn to other foreign problems. Will the normalization of relations with the People's Republic of China (PRC) be among them? The President recently expressed the hope that the normalization process might be completed within a matter of months. Whether this hope will be realized will depend upon his perception of the domestic and international political costs. Accurate assessment of those costs requires clear understanding of the legal questions involved.
Unfortunately considerable confusion exists concerning those legal questions. This was demonstrated, for example, at the valuable hearings on the practical implications of normalization that the House Committee on International Relations held last fall. Time does not permit even a brief survey of all the relevant legal issues. Here I will
1 of the District of Columbia Bar.
2 Associate Dean, Professor of Law and Director, East Asian Legal Studies, Harvard Law School.