One day before the effective date of the denunciation, the United States provisionally withdrew its notice after agreement by the leading international air carriers to the setting of a new damages limit for all international flights originating, terminating or stopping over in the United States.83 7. CONCLUSION The one thing which is clear from the precedents cited above is that no single procedure for treaty abrogation by the United States has been undisputably established: ... An expression of Congressional will that a treaty be abrogated and a direction to the President to terminate a treaty would perhaps be the most effective and unquestionable method so far as this Government is concerned of terminating a treaty. It would seem to be clear that the power that makes the treaty can likewise revoke it; in other words, that the President, acting in conjunction with the Senate of the United States, would be authorized to terminate a treaty to which the United States is a party.. A third method of terminating a treaty is by notice given by the President upon his own initiative without either a resolution of the Senate or the joint resolution of the Congress It is thus seen that there are three methods of terminating a treaty, so far as the United States is concerned, and that the choice of method would seem to depend either upon the importance of the international question or upon the preference of the Executive.84 The President, or any other agent acting under the President's orders, transmits notice of treaty termination, because the executive branch is the only one which carries on correspondence with foreign governments. The question which arises, however, is whether the President may act entirely on his own initiative and authority in giving such notice, or whether he needs the authorization of the Senate or the whole Congress. Edward Corwin clearly asserts that "all in all, it appears that legislative precedent, which moreover is generally supported by the attitude of the Executive, sanctions the proposition that the power of terminating the international compacts to which the United States is party belongs, as a prerogative of sovereignty, to Congress alone." 85 Most other scholars appear to disagree with this view and contend that it is within the power of the President to terminate treaties by giving notice on his own initiative without previous Congressional or Senatoral action. Louis Henkin unequivocally states that "since the Presi 86 For further discussion see, Riggs, John H. Termination of Treaties by the Executive without Congressional Approval: the Case of the Warsaw Convention. Journal of Air Law and Commerce, v. 32, 1966: 526–534. 84 Memorandum of the Solicitor for the Department of State (Scott), June 12, 1909, MS, Department of State, file 20158, cited in Hackworth. Digest, v. 5, p. 319. The President's Control of Foreign Relations. Princeton, Princeton University Press. 1917. p. 115. 8 Reeves, The Jones Act, p. 38; Nelson, Randall. The Termination of Treatles and Executive Agreements by the United States; Theory and Practice. Minnesota Law Review, v. 42. 1958; 887; Hyde, International Law, v. 2, p. 1519. 32-770-78- -5 dent acts for the United States internationally he can effectively terminate or violate treaties, and the Senate has not established its authority to join or veto him." 87 Randall Nelson argues that because the Constitution does not place express limits upon the President's power to abrogate treaties, no such limitation was mean to be placed upon him.88 Neither practice nor opinion give the President exclusive power to terminate treaties, however. Most scholars agree that a strong case can be made in principle for the view that treaties should be terminated by the treaty-making power-that is, the President with the advice and consent of the Senate.89 William Howard Taft was an especially strong spokesman for this method of treaty termination: The treaty-making power is in the President and two-thirds In practice, however, this method of treaty termination has been used only twice. Another strong argument can be made to deny to the President alone the power to abrogate a treaty since the provisions of a treaty are the supreme law of the land. Constitutionally only Congress has the power to repeal federal laws. Thus only Congress would appear to have the power to terminate the municipal law aspect of a treaty. From the above discussion it is arguable that any of the possible methods for terminating a treaty involve potential constitutional difficulties. There has never been a court decision which clearly held that any one procedure for treaty termination was the only constitutional method for effecting termination of a treaty. The lack of a settled procedure may occasionally lead to political impasses, but this has been the exception rather than the rule in the case of past treaty abrogations. Where conflict arises between the President and the Senate or Congress over the question of abrogation of a treaty, and the President acts contrary to the wishes of the Senate or Congress, there is no way for these bodies to stop him. He might be impeached. However, once notice of termination has been sent, no other body has the power to recall it, and the other state has no right to question the constitutional validity of the President's action. Congress has, of course, the power to breach treaties by refusing to pass implementing legislation or by enacting legislation which is inconsistent with treaty obligations. Moreover, Congress can declare war and terminate or suspend treaty relations with other belligerents. Moreover, various precedents show that Congress, in one instance at least, has claimed to have the power to abrogate treaties for the United States. More often Congress has claimed to have the power to direct the President to give notice. In practice Presidents have usually chosen to comply with congressional desires concerning abrogation of treaties. 87 Foreign Affairs and the Constitution, p. 169. 88 Nelson. Termination, p. 887. Riesenfield, Stefan. The power of Congress and the President in International Relations; Three Recent Supreme Court Decisions. California Law Review, v. 25, 1937. n. 660; Hackworth, Digest, v. 5. p. 337. notes 3; McDougal. Myers and Asher Lans. Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy. Yale Law Review, v. 54, 1945, pp. 336-337. 90 The Boundaries between the Executive. the Legislative and the Judicial Branches of the Government. Yale Law Journal, v. 25, 1916, pp. 609-610. NORMALIZATION OF RELATIONS WITH THE PEOPLE'S REPUBLIC OF CHINA: PRACTICAL IMPLICATIONS Legislative and Legal Problems WEDNESDAY, SEPTEMBER 21, 1977 HOUSE OF REPRESENTATIVES, COMMITTEE ON INTERNATIONAL RELATIONS, SUBCOMMITTEE ON ASIAN AND PACIFIC AFFAIRS, Washington, D.C. The subcommittee met at 1:15 p.m. in room 2200, Rayburn House Office Building, Hon. Helen S. Meyner presiding. Mrs. MEYNER. The subcommittee will come to order. Perhaps I should explain that the chairman of the Subcommittee on Asian and Pacific Affairs, Congressman Wolff from New York, has asked me to take over in his absence. He has been appointed to the United Nations as the representative from Congress for this session of the General Assembly. Mr. Wolff has prepared some remarks to open this hearing which I will now read: OPENING STATEMENT OF SUBCOMMITTEE CHAIRMAN, HON. LESTER L. WOLFF AS READ BY MRS. MEYNER I would like to welcome everyone to the second in the seven-hearing series on the practical implications of normalization with the People's Republic of China being held by the Subcommittee on Asian and Pacific Affairs. Yesterday afternoon we began the first hearing, entitled "Global Implications of Normalization," and while we intended to spend time discussing the broad questions that title implies, a significant portion of the hearing revolved around the question of Taiwan. I mention this because I suspect that much as we might wish to dwell upon more esoteric aspects of the normalization question, the Taiwan issue will refuse to go away-that is, until all parties to the question work out some modus vivendi. Our Government is committed to a policy of normalization, but we as yet have developed no publicly articulated policy of how or when to do so. Today's hearing, on the legislative and legal aspects of normalization, will, perhaps more than any other hearing in the series, probe new ground. Certainly insofar as the House is concerned, no indepth examination of the possible effects on our laws and agreements has been undertaken from the standpoint of the working premise that normalization is the intended policy of the U.S. Government. As an example, at last count, we had some 59 treaties and agreements with Taiwan. I should add that when this point was raised with a visiting delegation from the PRC last summer, the leader of the delegation said, and I quote, that he really didn't care whether we had 50, 500, or 5,000 treaties with Taiwan, the problem was ours and ours alone-Peking's position was clear on that. Well, I suspect that the question is not so simple as that, as today's distinguished panel of witnesses will no doubt demonstrate for us. Let me caution at the outset that no one on this subcommittee is an expert on the topics of today's hearing but it has become clear more than once in our history that the details of the law, of business practice, and indeed a knowledge of the Constitution itself, triumph over political intention. So following those remarks let me formally welcome Jerome Cohen, director of East Asian Legal Studies, Harvard Law School; Victor Li, Stanford Law School; Eugene Theroux with Baker & McKenzie; and Francis Valeo, former Secretary of the Senate. Let me ask you, gentlemen, to feel free to guide us and to bear with us as we attempt to educate ourselves this afternoon. If the China normalization question is itself frequently incomprehensible, indeed, Byzantine, the legal and legislative aspects of normalization are no doubt doubly so, and with that let us begin to unravel the knot. Let us just go straight down the table. Mr. Cohen, would you start, please. STATEMENT OF JEROME A. COHEN, DIRECTOR, EAST ASIAN LEGAL STUDIES, HARVARD LAW SCHOOL BIOGRAPHY Jerome A. Cohen, who specializes in Chinese law and government, in 1965 became Professor of Law at Harvard Law School. Professor Cohen is the author of several books: "The Criminal Process in the People's Republic of China 19491963: An Introduction" (1968); "People's China and International Law" (with Hungdah Chiu, 1974); “China Today and Her Ancient Treasures" (with three others, 1971). He is the editor of "Contemporary Chinese Law: Research Problems and Perspectives" (1970), "The Dynamics of China's Foreign Relations" (1970), "China's Practice of International Law: Some Case Studies" (1972), and co-editor of "China's Legal Tradition" (1977). He has also contributed over 35 articles and book reviews in professional journals. Born in Elizabeth, New Jersey, in 1930, he received the A.B. degree in 1951 from Yale University. Afte a year's study at the University of Lyons, France, he attended the Yale Law School and received the LL.B. degree in 1955. He served as a law secretary for the U.S. Supreme Court, under Mr. Chief Justice Warren from 1955 to 1956 and under Mr. Justice Frankfurther from 1956 to 1957. During 1957-58 he was an associate in the Washington, D.C. law firm of Covington and Burling, was Assistant U.S. Attorney for the District of Columbia in 1958-59 and served as a consultant to the U.S. Senate Committee on Foreign Relations. He taught law at the University of California at Berkeley before coming to Harvard in 1964. Professor Cohen is a member of Phi Beta Kappa, Order of the Coif, and the Board of Editors of the American Journal of International Law. He is also Chairman of the China Council of the Asia Society. Professor Cohen is married, has three teen-age children and lives in Cambridge, Massachusetts. Mr. COHEN. Thank you very much, Mrs. Meyner. This opening statement will emphasize a few basic points concerning the legal problems of normalizing relations with the People's Republic of China. There are three categories of legal problems to be considered. These relate to international law, domestic legislation and executive branch regulations. Here I will focus on international law, with only brief reference to legislative and administrative problems. Our principal task with respect to international law is to forecast the implications of normalization with the PRC for the U.S. treaties with the Republic of China on Taiwan. Because the United States cannot recognize both of two contending governments as the legitimate government of the state of China, normalization with Peking—that is, the establishment of diplomatic relations at the ambassadorial level-will require Washington to withdraw recognition from Taipei, thereby severing diplomatic relations with Taipei. What impact will this have on our mutual defense treaty, our friendship commerce and navigation treaty, and other important bilateral agreements with the ROC? Can they continue in effect? If not, can some substitute arrangements be made in order to avoid unsettling either our contacts with Taiwan or the stability of the island? DEFENSE TREATY My own view has long been that we cannot expect the defense treaty to survive a change in our recognition policy. That treaty was conIcluded with the state of China. Once we formally acknowledge the PRC to be the government of that state, it will be for Peking, as well as Washington, to determine whether the treaty should be maintained. The PRC has followed a policy of choosing which of the treaties that it has inherited from the ROC it wishes to continue. There is no likelihood, however, that the PRC will allow the defense treaty to survive because Peking has denounced it as void ever since it was negotiated. Therefore, although I share many of the views that my friend, Prof. Victor Li, has adopted in the valuable statement that he has submitted for the record of this hearing, I do not agree that the defense treaty can survive withdrawal of recognition from Taipei and conferral of recognition upon Peking. It is the latter aspect-the recognition of Peking-that is crucial. Whatever the consequence might be if the United States were simply withdrawing recognition from Taipei and not conferring it upon Peking, that is not the situation we are contemplating. By conferring recognition on Peking, we will confer upon it the mantle of China for legal purposes, thereby enabling it to decide not to continue the treaty. I do not know of any case in which a country that has transferred recognition from Taipei to Peking has been able to maintain its treaties with Taipei. For example, the 1952 Japan-ROC peace treaty lapsed when Japan recognized the PRC, and Tokyo has had to construct an elaborate web of unofficial agreements to replace the other important treaties that it had previously maintained with the ROC. If international law and practice permitted a country to maintain its treaties with the ROC after recognizing the PRC, surely many countries would have done so. Let me stress, however, that this does not mean that normalization will deprive the United States of the legal ability to renew its pledge |