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Whereas such uncertainty adversely affects the interests of the
United States in its relations with foreign nations: Now, therefore, be it
Resolved, That it is the sense of the Senate that when
2 the United States recognizes a foreign government and 3 exchanges diplomatic representatives with it, this does not 4 of itself imply that the United States approves of the form,
5 ideology, or policy of that foreign government.
THE LEGAL ADVISER,
DEPARTMENT OF STATE,
Washington, D.C., December 15, 1978. Memorandum for the Secretary of State. From: Herbert J. Hansel, The Legal Adviser. Subject: President's Power to Give Notice of Termination of U.S.
ROC Mutual Defense Treaty. This memorandum confirms my advice to you that the President has the authority under the Constitution to decide whether the United States shall give the notice of termination provided for in Article X of the U.S.-ROC Mutual Defense Treaty and to give that notice, without Congressional or Senate action.
While treaty termination may be and sometimes has been, undertaken by the President following Congressional or Senate action, such action is not legally necessary and numerous authorities recognize the President's power to terminate treaties acting alone. Presidents have exercised that power on several occasions. The following sections of this memorandum note the views of a number of Constitutional and international law authorities, and identify previous Presidential treaty terminations undertaken without action by Congress. An Appendix to this memorandum contains detailed histories of past U.S. treaty terminations.
VIEWS OF CONSTITUTIONAL AND INTERNATIONAL LAW AUTHORITIES
The Restatement of the Foreign Relations Law of the United States, by the American Law Institute, states in section 163:
Under the law of the United States, the President or a person acting under his authority, has, with respect to an international agreement to which the United States is a party, the authority to . . . take the action necessary to accomplish under the rule stated in section 155 the termination of the agreement in accordance with provisions included in it for the purpose .
(at p. 493)* Section 155 of the Restatement provides that “An international agreement
may be ... terminated in accordance with provisions included for that purpose in the agreement” (at p. 477). The Restatement comment to Section 163 states “The rules stated in this Section are based on the authority of the President to conduct the foreign relations of the United States as part of the executive power vested in him by Article II, Section 1 of the Constitution ... The great majority of cases in which the President suspends or terminates, by acting alone, an international agreement to which the United States is a party, are cases in which the agreement contains provisions for its suspension or termination."
*Emphasis supplied throughout.
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Professor Louis Henkin, Hamilton Fish Professor of International Law at Columbia University, states in his book Foreign Affairs and the Constitution (1972) that:
Once the Senate has consented, the President is free to make (or not to make) the treaty and the Senate has no further authority in respect of it. Attempts by the Senate to withdraw, modify or interpret its consent after a treaty is ratified have no legal weight; nor has the Senate any authoritative voice in interpreting a treaty or in terminating it. (at
Dr. Elbert M. Byrd, Jr., of the University of Maryland, has written in his book Treaties and Executive Agreements in the United States (1960) that:
.. from a constitutional view, it is much easier to terminate treaties than to make them. A treaty, by definition in constitutional law, can come into existence only by positive action by the President and two-thirds of the Senate, but a simple majority of both Houses with the President's approval can terminate them, and they may be terminated by the President
alone. (at p. 145) Professor Laurence H. Tribe, of the Harvard Law School, has written in his recently published American Constitutional Law (1978) as follows:
Although influenced (often decisively) by congressional action or constitutional restraint, the President ... has exclusive responsibility for announcing and implementing military policy, for negotiating, administering, and terminating treaties or executive agreements; for establishing and breaking relations with foreign governments; and generally for apply
ing the foreign policy of the United States." (at pp. 164–165) Mr. Wallace McClure, in his work entitled International Executive Agreements (1941), wrote:
In treaty making the Senate may be said to act merely as
dent. (at pp. 16, 306) Professor Myres S. McDougal, William K. Townsend, Professor of Law at the Yale Law School, wrote as follows in his study with Asher Lans on "Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy,” 54 Yale Law Journal 336 (1945) :
. termination [of treaties) may be effected by executive denunciation, with or without prior Congressional authoriza
tion. (at p. 336) Professor Randall H. Nelson, of Southern Illinois University, in an article entitled "The Termination of Treaties and Executive Agreements by the United States: Theory and Practice,” 42 Minnesota Law Review (1958) wrote that:
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. (at p. 906) The late Professor Jesse S. Reeves, of the University of Michigan, in an article entitled “The Jones Act and the Denunciation of Treaties, 15 American Journal of International Law (1921), stated that:
It seems to be within the power of the President to terminate treaties by giving notice on his own motion without previous Congressional or Senatorial action. It would seem, on the other hand, that the President cannot be forced by Congress or by the Senate to perform the international act of giving
notice. (at p. 38) Professor Westel Willoughby, late of Johns Hopkins University, wrote in his work The Constitutional Law of the United States (1929) that:
It would seem indeed, that there is no constitutional obligation upon the part of the Executive to submit his treaty denunciations to the Congress for its approval and ratification although, as has been seen, this has been done several times. (Vol. I, at p. 585)
PREVIOUS PRESIDENTIAL TREATY TERMINATIONS
The President has taken action in a number of instances to terminate treaties without prior or subsequent action by either house of Congress. Such Presidential action has included giving notice of termination of bilateral treaties and notice of withdrawal or denunciation of multilateral treaties, pursuant to provisions in the treaties, and in a few cases, execution of termination agreements with the other parties to bilateral treaties.
Following are instances of treaty terminations effected by the President without Congressional or Senate action:
In 1815, President Madison exchanged correspondence with the Netherlands which has been construed by the United States as establishing that the 1782 Treaty of Amity and Commerce between the two countries had been annuled.
In 1899, President McKinley gave notice to the Swiss Government of the United States intent “to arrest the operations” of certain articles of the 1850 Convention of Friendship, Commerce and Extradiction with Switzerland.
In 1920, President Wilson by agreement terminated the 1891 Treaty of Amity, Commerce, and Navigation with Belgium concerning the Congo.
In 1927, President Coolidge gave notice of termination of the 1925 Treaty with Mexico on the Prevention of Smuggling.
In 1933, President Roosevelt delivered to the League of Nations a declaration of the United States' withdrawal from the 1927 multilateral Convention for the Abolition of Import and Export Prohibitions and Restrictions.
In 1933, President Roosevelt gave notice of termination (which was withdrawn subsequently) of the 1931 Treaty of Extradition with Greece.
In 1936, President Roosevelt approved a protocol (deemed to be notice of termination) terminating the 1871 Treaty of Commerce and Navigation with Italy.
In 1939, President Roosevelt gave notice of termination of the 1911 Treaty of Commerce and Navigation with Japan.
In 1944, President Roosevelt gave notice of denunciation of the 1929 Protocol to the Inter-American Convention for Trademark and Commercial Protection.
In 1954, President Eisenhower gave notice of withdrawal from the 1923 Convention on Uniformity of Nomenclature for the Classification of Merchandise.
In 1962, President Kennedy gave notice of termination of the 1902 Convention on Commercial Relations with Cuba.
In 1965, President Johnson gave notice of denunciation, subsequently withdrawn, of the 1929 Warsaw Convention concerning
international air travel. In addition to the above-listed Presidential actions to terminate treaties without Congressional authorization, as indicated earlier in this memorandum Presidents also have terminated treaties following enactment of laws providing for the termination, or in two cases, adoption of a resolution by the Senate. There also have been two occasions on which Presidential action terminating a treaty was subsequently "adopted and ratified” by statutory enactment. These instances do not, however, individually or in the aggregate, detract from the President's authority to act alone.
CONSTITUTIONAL HISTORY AND THEORY
The Constitution does not specifically address the question of treaty termination. The subject was not discussed at the Constitutional Convention and seems not to have received much attention in the early years of the Republic, perhaps because provision for termination by notice first appeared in a United States treaty in 1822. 1 Malloy Treaties (1910) 373. Several of the constitutional framers, including Jefferson and Madison, recognized that Congress could, by enactment of legislation, annul or rescind a treaty. Alexander Hamilton, writing of President Washington's 1793 Neutrality Proclamation in respect of France and its effect on the continuing validity of United States treaties with France, said:
The right of the executive to receive ambassadors and other public ministers ... includes that of judging, in the case of