deny the benefits of trade agreement concessions to imports from the Soviet Union and other communist countries. The commercial treaties with Hungary (8 Bevans 1117) and Poland (11 Bevans 237) respectively provided for most-favored-nation treatment in customs matters. Both treaties provided for termination on notice, one year in the case of Hungary, and six months for Poland.

Accordingly, on July 5, 1951 the Department of State addressed a note to each government proposing modification of the treaty by termination of the most-favored-nation articles, and giving the required notice that if this proposal was not acceptable the treaty as a whole would terminate within the prescribed time. (Dept. of State Press Release 597, July 6, 1951.) Since neither government agreed to the proposed modification, the treaties terminated at the end of the prescribed time period.

1952-Truman Notice of Termination of 1929 Convention on Safety of Life at Sea

Another case in which a subsequent treaty led to a Presidential notice of termination of an earlier treaty was the 1952 termination of the 1929 Convention on Safety of Life at Sea. (2 Bevans 782.) Article 66 of the 1929 Convention provided that it might be denounced within five years after its entry into force by a one year notice.

The preamble to the 1948 Convention on the same subject recited that promotion of safety of life at sea "may be best achieved by the conclusion of a Convention to replace" the 1929 Convention. (TIAS 2495; 3 UST 3450.) The 1948 Convention entered into force on November 19, 1952. The notice of denunciation of the 1929 Convention was given by the United States on the same day without further reference to the Senate or the Congress.

Similarly, on May 26, 1965, the United States gave notice of denunciation of the 1948 Convention, pursuant to Article XII of that Convention, because it had been supplanted by the 1960 Convention for Safety of Life at Sea (TIAS 5780; 16 UST 185). The 1960 Convention entered into force for the United States on May 26, 1965. 1954-Eisenhower Notice of Withdrawal from 1923 Convention

On May 24, 1954, the United States gave notice of withdrawal from the 1923 Convention on Uniformity of Nomenclature for the Classification of Merchandise (T.S. 754; 33 L.N.T.S. 81). The Convention contained a provision for withdrawal on one year's notice. The U.S. notice was given without the prior or subsequent approval of the Senate or Congress. The withdrawal took effect for the United States on May 24, 1955.

It has been asserted that a fundamental change in circumstances resulting in impossibility of performance was invoked by the United States in announcing its withdrawal from the Convention. In fact, the United States did not invoke the fundamental change of circumstances doctrine, nor did it refer to impossibility of performance.

Under the 1923 Convention, the parties had agreed to employ the Brussels nomenclature of 1913 in their statistical reporting of international commerce, either exclusively or as a supplement to other systems. However, the Brussels system of 1913 had become outdated. In 1950 the United Nations developed what is known as the Standard

International Trade Classification. Following this development was the adoption of the Uniform Central American Customs Nomenclature by the Committee on Economic Cooperation of the Ministers of Economy of Central America sponsored by the U.N. Economic Commission for Latin America. This nomenclature employed the Standard International Trade Classification as its basis. In 1950 the United Nations Economic and Social Council urged governments to use the Standard International Trade Classification.

Under these circumstances, the Tenth Inter-American Conference of American States, meeting at Caracas, Venezuela in 1954, adopted Resolution LXXXVIII on Customs Nomenclature. The Resolution, after reciting the above history of the matter, made the following recommendation:

1. That, in as much as the Brussels nomenclature of 1913 has become outdated and has thereby rendered inapplicable the Santiago Convention on Uniformity of Nomenclature for the Classification of Merchandise, the ratifying Governments consider the desirability of withdrawing from the said Convention, as provided in Article V, in order that the Convention may be legally abandoned by all the parties.

2. That the Member States take cognizance of the method used in the development of the new Uniform Central American Customs Nomenclature, accomplished with the assistance of the United Nations and the Inter-American Statistical Institute, and seek to adopt and put in effect as soon as possible the Standard International Trade Classification of the United Nations, either exclusively or as a supplement to the national systems. (U.S. Archives, 74D431.)

The U.S. notice of withdrawal from the 1923 Convention simply quoted recommendation 1 of Resolution LXXXVIII, and said that "in accordance with the foregoing recommendation," the U.S. Government was giving its notice of withdrawal. There was no mention of the fundamental change of circumstances doctrine or of impossibility of performance.

In fact the advance in nomenclature clearly did not render "impossible" the use of the "outdated" system. Advances in statistical reporting systems had been developed and these were deemed more desirable than the older systems. The Inter-American Conference therefore urged states to adopt and put into effect the newer systems. There was no question of impossibility or fundamental change of circumstances. The case represents another instance of Presidential termination of a treaty by notice pursuant to a notice provision. There was no prior or subsequent approval by the Senate or the Congress. There was no violation, or inconsistent statute or treaty. Impossibility was not a relevant factor.

1962-Kennedy Notice of Termination of 1902 Commercial Treaty with Cuba

On August 21, 1962, the United States gave notice of termination of the 1902 commercial convention with Cuba (T.S. 427; 6 Bevans 1106.)

The notice was given pursuant to a one year notice provision in the convention. At the same time the United States gave notice of termination of the 1934 reciprocal trade agreement with Cuba (49 Stat. 3559; E.A.S. 67; 6 Bevans 1163). This was an executive agreement. Both of these agreements had been suspended on October 30, 1947 by an executive agreement between the United States and Cuba (6 Bevans 1229) which expressly declared that both agreements would be "inoperative" for as long as the United States and Cuba remained parties to the General Agreement on Tariffs and Trade (GATT) (TIAS 1700).

It has been asserted that the termination was a formality mandated by a national policy, adopted by Congress, expressed in the Foreign Assistance Act, the Export Control Act, the Trading with the Enemy Act, the Mutual Assistance Act, the Cuban Resolution of 1962, and the Punta del Este Agreement of 1962.

However, the United States also terminated other trade agreements with friendly European countries at the same time because of the GATT negotiations that had recently been completed. In approving the recommendations of the Interdepartmental Committee on Trade Agreements (TAC) on the conclusion of the 1960-61 Geneva tariff negotiations, President Kennedy approved the completion of steps for the termination of several suspended bilateral trade agreements with friendly countries which were proposed in such recommendations. Aside from Cuba, agreements with the Belgo-Luxembourg Economic Union, the United Kingdom, France, and the Netherlands were also terminated at the same time. (See e.g. 13 UST 1786, the 1962 termination of earlier trade agreements with the United Kingdom.)

The President's action in giving notice of termination of the 1902 commercial treaty with Cuba was thus taken in a broader context than punitive measures against Cuba. While it is not possible to prove the point, the termination would probably have taken place even had relations with Cuba been friendly.

Put most accurately, the GATT was a subsequent executive agreement, which, along with the executive agreement of October 30, 1947, effectively and legally suspended the operation of the 1902 commercial treaty with Cuba. The final termination of the 1902 treaty was consistent with Congressional enactments. but was not required by them. We have found no evidence that the Congress or Senate addressed the issue or thought at all about authorizing or directing the President to terminate the 1902 treaty. The termination of that treaty was part of a larger program of terminating certain commercial agreements, even with friendly governments, as part of the GATT process, by means of executive action.

1965-Johnson Notice of Termination of the Warsaw Convention On November 15, 1965, the United States gave notice of denunciation of the 1929 Convention for the Unification of Certain Rules relating to International Transportation by Air and the Additional Protocol relating thereto, known as the Warsaw Convention (49 Stat. 3000; T.S. 876; 2 Bevans 983). The notice was given pursuant to a six months

notice provision contained in Article 39 of the Convention. The notification was withdrawn on May 14, 1966, just one day before the six month notice period would have expired.

The President's notice of termination, as well as the withdrawal of the notice, did not receive any prior or subsequent approval from the Senate or the Congress. There was no violation of the convention, no subsequent inconsistent statute or treaty, and impossibility of performance was not a factor. The sole reason for giving the notice of termination, as expressed in the official U.S. notice, was "the low limits of liability for death or personal injury” provided in the Convention. (Dept. of State Press Release No. 268, Nov. 15, 1965.)

Hearings were held on the matter by the Senate Foreign Relations Committee, but at no time did the manner of withdrawal become an issue. Many witnesses at the hearings, including attorneys, professors, deans, and representatives of lawyers' associations, testified in favor of U.S. withdrawal from the Convention, but it was not suggested that this could be done only with the approval of the Senate or the Congress.

The Senate Foreign Relations Committee itself recommended notice of withdrawal, but did not suggest that the President's notice required the prior or subsequent approval of the Senate or Congress. The Committee said that unless a complementary insurance program was enacted within a reasonable time (which meant 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." (S. Exec. Rept. No. 3, 89th Cong., 1st Sess., app. p. 7.) No action was taken by the Senate or Congress, and there were no contentions, as far as we have been able to determine, in the Senate or the Congress that the President alone could not give the notice of denunciation without Senate or Congressional approval.

There was one interchange at the Foreign Relations Committee hearings (between Senator Carlson and a witness who favored denunciation) on the method of giving notice:

Senator CARLSON. Mr. Speiser, you suggested that we denounce . . . the Warsaw Convention.

...

Mr. SPEISER. Yes.

Senator CARLSON. That gets to be an executive act, I think, and only the President can do that, isn't that correct?

Mr. SPEISER. I have discussed this with the State Department and apparently the United States has denounced treaties in two ways, either by the President alone and the Senate.

Senator CARLSON. I would assume that the Senate, of course, could advise the President by resolution. We probably could cut off funds and we probably have other methods, but personally, I would feel that it would be an executive act.

(Hearings on the Hague Protocol to the Warsaw Convention before the Senate Committee on Foreign Relations, 89th Cong., 1st Sess., 1965, Pt. 2, p. 42.)

In fact on May 3, 1966, when it was known that the Department of State might withdraw its notice of denunciation, a resolution (S. Res. 256, 89th Cong.) was introduced requesting that the notice not be with

drawn until full public hearings were held. The original sponsors of the resolution were Senators Nelson, Hartke, Kennedy of New York, Montoya, and Yarborough. While the resolution was sponsored by 29 Senators, the Administration withdrew the notice before the Senate. took action on the resolution.

In brief, there was no indication from the Senate, including the Foreign Relations Committee, or from the House, that the President could not give the notice without Senate or Congressional approval. As noted, there was no treaty violation, no subsequent inconsistent statute or treaty, and impossibility was not a factor. The case stands as a clear example of Presidential notice of termination without Senate or Congressional approval, and without Senate or Congressional objection. 1975-Ford Notice of Withdrawal from the International Labor Organization

On November 5, 1975, Secretary of State Kissinger gave notice of intention to terminate United States membership in the International Labor Organization. The notice became effective, pursuant to the provisions of Article 1(5) of the ILO Constitution, two years later. The Carter Administration affirmed the withdrawal, did not extend the two-year time period after considering that step, and thus withdrew the United States from the ILO in November 1977. There was no prior or subsequent approval by the Senate or the Congress.

The United States membership in the ILO was not authorized by treaty, but rather by a joint resolution of Congress approved by the President on June 19, 1934 (S. J. Res. 131, Public Res. 43, 73d Cong.). Nevertheless U.S. adherence to the ILO Constitution constituted an extremely important international obligation which included membership in an international organization. Yet termination was accomplished without Congressional approval, and as far as we have been able to determine, the issue of Congressional approval was not raised in either House of the Congress, despite the fact that a number of members of the Senate and House did not favor U.S. withdrawal from the ILO.

1976-The Fishery Conservation and Management Act

The most recent treaty terminations by the United States have been pursuant to the Fishery Conservation and Management Act of 1976 (P.L. 94-265). Section 202 (b) of the Act provides that "it is the sense of the Congress" that the United States shall withdraw from any treaty that is not renegotiated within a reasonable time so as to conform with the purposes, policy and provisions of the Act.

Pursuant to this provision, the United States gave notice of intention to withdraw from the 1949 International Convention for the Northwest Atlantic Fisheries (TIAS 2089; 1 UST 477) on June 22, 1976, effective December 31, 1976. The United States also gave notice of termination of the 1953 convention with Canada for the preservation of the halibut fishery of the Northern Pacific Ocean and Bering Sea (TIAS 2900; 5 UST 5) on April 1, 1977, effective April 1, 1979; and the 1952 convention for the high seas fisheries of the North Pacific Ocean (TIAS 2786; 4 UST 380) on February 10, 1977, effective February 10, 1978.

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