In debate in the Senate on March 7, the distinguished senior Republican member of this Committee, Senator Javits, with his customary ability to get to the heart of a matter, stated that "this is not just another Sense of the Senate Resolution*** this is the real McCoy." The senior Senator from New York immediately recognized, when I called this resolution up for consideration, that the Senate was being asked to make a decision of great future importance to the country and to the Senate itself. Whatever the Senate finally does in regard to the Byrd Resolution-whether it approves it, or defeats it-a clear precedent will have been established. The issue posed by the Resolution is far broader than the question of Taiwan and the 30-year-old treaty of friendship with the Republic of China. We have many treaties of friendship with nations throughout the world and what happens to them in the future could depend on what action is taken on Senate Resolution 15. At this point, let me say this: I favor establishing full diplomatic relations with the People's Republic of China. It is one of the great nations of the world; it has a population larger than that of any other country. It is important that our country and the People's Republic have contact, that there be a dialog between our countries. So I look with favor upon the establishment of diplomatic relations. What I do not favor, however, is that in bringing this about, the President of the United States threw overboard a longtime friend and ally. The Senator from Ohio (Mr. Glenn), in his presentation to the Senate, pointed out that the treaty of friendship between the United States and Taiwan was sought to be terminated by the President without consultation with the other partner to that treaty, the Republic of China; that, in fact, the first the Republic of China knew about the proposal to terminate the treaty was when it learned such fact through the news media. The second aspect of this action taken by the President last December is much broader than the question of Taiwan. It seems to me that it is important to establish for the future whether a President may unilaterally terminate a Mutual Defense Treaty with other nations. Our country has many such treaties. Some of them are extremely important, in the view of the Senator from Virginia, to the welfare of the United States. I believe that a President alone does not have the authority to terminate such treaties. In the research that my staff has been able to do, no case has been found in which a major treaty with another nation, of a defense nature, ever has been abrogated unilaterally by a President of the United States. There have been cases, of course, in which minor treaties have been set aside; there have been cases in which, with the outbreak of war, the treaty became ipso facto, nonbinding. However, so far as I can determine, this is the first time an attempt has been made to set aside a treaty of this magnitude by unilateral action of the executive branch of government. In 1954, Secretary of State John Foster Dulles responded as follows to an inquiry by Senator Jenner of Indiana. This was the statement of the Secretary of State: "In light of the fact that your letter specifically raised the question whether the Department of State, under the present administration, claims authority to modify treaties, I am glad to assure you that it is my view that the Executive may modify a treaty or a provision thereof only by the conclusion of another treaty entered into by and with the advice and consent of the Senate. This is also the view of my advisors who are fully aware of my position and fully share my views." Admittedly, Mr. Chairman, there is a difference of opinion among lawyers and the Constitution itself is silent on the direct question. The Constitution provides as how treaties are made, but it is silent as to termination. But, Mr. Chairman, the Constitution is also silent in explaining how statutes are terminated. The Constitution describes carefully the process of creating a law, but nowhere does it describe the process of nullifying a law. All of us know that a President cannot unilaterally terminate a law-yet a treaty is a law. To hold that a President can nullify a treaty is to assign to the President the power to unilaterally set aside a law-because a treaty is a law and is so recognized. The Constitution in Article VI reads: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Admittedly a statute or treaty can be self-limiting by providing in its own terms for termination of its effectiveness upon the occurrence of specified coningencies ✦✦✦ for example, the expiration of a fixed term of years. However, if a statute or treaty does not provide that it is to be in effect for a limited term or that it will automaically terminate on the happening of some other contingency, then it will not terminate, in my view, unless and until terminated by a subsequent action of like status. Now, Mr. Chairman, there is no precedent for the termination of a mutual defense treaty by executive action alone. On March 7, on the Senate floor, I asked the Senator from Ohio, Mr. Glenn, the following question: "Has any mutual defense treaty been terminated by unilateral action?" Senator Glenn responded: "I do not believe so *** in that time since World War II, which is the only time we have had mutual defense treaties, the answer is no.” Mr. Chairman, there may be some isolated precedent involving termination of minor treaties in abnormal circumstances by uncontested executive action. But it is a well established principle, repeately enunciated by the Supreme Court, that the occurrence of an unconstitutional action in the past does not justify or make constitutional its recurrence. I do no think, therefore, that too great stock should be placed in obscure precedents which may be cited to the committee. As I said during the debate of the Taiwan Enabling Legislation, the issue presented is clear cut. The Senate must participate in the treaty making process. Without Senate consent, a treaty cannot be ratified. Logic requires, therefore, that Senate consent is necessary to terminate a treaty. Otherwise, Mr. Chairman, the Senate could grant consent to the President's ratification of a treaty, and within a matter of weeks or months, a new President, newly elected, could undo that action. I do not believe that a precipitious reversal of policy of that nature should be permitted solely on the whim of a single man or on the outcome of an election for a single office. It would not be sensible to require Senate approval of ratification of a mutual defense treaty and, at the same time, permit a virtually immediate reversal of that decision without Senate approval. Now, Mr. Chairman, Article X of the particular mutual defense treaty between the United States and Taiwan reads as follows: "This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice has been given to the other Party." I believe it is highly significant that nowhere in Article X does the term "President" appear. Article X does use the term "Party". Clearly, the term "Party" means government. In the case of the United States, our government includes both the President and the Congress. Article X also uses the term "may terminate". This language is permissive. It does not say "must terminate". It does not say "will be terminated". It merely says "may terminate". The Senator from New York (Mr. Javits) stated categorically to the Senate (page S 2135 March 7) that "it is my judgment, and I sat through all the sessions of the Committee, that the Committee did not intend to approve or disapprove of the legality of President Carter's action." The Committee report on Page 18 asserts that the Committee is "inclined" to believe that the President did not act unconstitutionally. I am inclined to the same position as enunciated by the Committee. It seems to me the President does have the authority to give notice of intended termination of a treaty, but that the actual termination does not occur until approved by the Senate. I end as I began. Under our Constitution, the President of the United States clearly shares the treaty-making power with the Senate of the United States. In my judgment, he likewise shares the treaty-terminating power with the Senate. The CHAIRMAN. Thank you, Senator Byrd, very much for your opening statement. I think we might hear from Senator Goldwater before we start with questions. STATEMENT OF HON. BARRY GOLDWATER, A U.S. SENATOR Senator GOLDWATER. Thank you, Mr. Chairman. It is a pleasure to speak before you on the legislative role in treaty termination. Mr. Chairman, I have introduced Senate Concurrent Resolution No. 2, which is pending in your committee, to uphold the constitutional power of the Senate in this field. It is sponsored by 22 Senators, and I ask that the text of the resolution and the names of all sponsors appear in the published hearings. The CHAIRMAN. Very well, that will be done. [Text of S. Con. Res. 2 follows:] 96TH CONGRESS 1ST SESSION S. CON. RES. 2 To uphold the separation of powers between the executive and legislative branches of Government in the termination of treaties. IN THE SENATE OF THE UNITED STATES JANUARY 18 (legislative day, JANUARY 15), 1979 Mr. GOLDWATER, (for himself, Mr. DECONCINI, Mr. DOLE, Mr. DOMENICI, Mr. Morgan CONCURRENT RESOLUTION To uphold the separation of powers between the executive and legislative branches of Government in the termination of treaties. Whereas under the Constitution of the United States, treaties are solemn undertakings of the duly established authorities; Whereas by article VI of the Constitution and decisions of the Supreme Court, treaties are deemed to be part of the law of the land; Whereas article II, section 3, of the Constitution states that the President "shall take care that the laws be faithfully executed;" V-E Whereas the Senate, being a partner with the President to the treatymaking authority, possesses a special interest and role in the method used by the United States for the termination of treaties; Whereas, in accordance with the separation of powers, the President should not unilaterally terminate a treaty absent a material breach by another party; Whereas the termination of a defense treaty is a decision of the highest national importance which, under the checks and balances system, should receive the added deliberation provided by the participation of the Senate or Congress; Whereas, as a matter of actual practice under the Constitution, treaties or obligations thereunder generally have been terminated by the United States only upon notice having been given by the President acting pursuant to or in anticipation of the authorization or direction of the Congress or Senate; Whereas under United States practice, the Senate and House of Representatives have acted jointly in the enactment of legislation terminating over forty treaties; Whereas the United States has never terminated a defense treaty with a friendly government; and Whereas bipartisan support in the United States Senate was instrumental in creating the entire structure of interlocking and interdependent treaties which has helped safeguard the peace and security of the Nation in the period following World War II: Now, therefore, be it 1 Resolved by the Senate (the House of Representatives 2 concurring), That, in accordance with the separation of 3 powers under the Constitution, the President should not uni |