Mr. HANSELL. I would not make that sweeping a generalization, Mr. Chairman.

The CHAIRMAN. But it seems to me you have.

Mr. HANSELL. I am saying that the Constitution does repose in the President authority to terminate international obligations of the United States.

The CHAIRMAN. Where does the Constitution so provide?

Mr. HANSELL. The power of the President as defined in article II, Mr. Chairman.

The CHAIRMAN. Well, where does article II say that the President may terminate treaties or international agreements?

Mr. HANSELL. It does not expressly so state, of course.

Senator JAVITS. Well, what are you relying on? Read it to us.
The CHAIRMAN. Just what are you relying on?

Mr. HANSELL. I would like to express one very important comment in regard to all this. As I think Senator Javits expressed earlier in this hearing, this is fundamentally a matter of accommodation between the two branches. Let me quote one paragraph from my prior statement that has been submitted for the record.

It is this.

There has been a remarkable degree of harmony and accommodation between the executive and legislative branches on treaty terminations. Various treaties have been terminated in two centuries of U.S. constitutional history, some involving action by both branches—that is, the legislative and executive-and some by the executive alone. There have been very few instances of formal or official disagreement by one branch with action taken by the other relative to treaty termination.

PRESIDENTIAL AUTHORITY UNDER ARTICLE II OF THE CONSTITUTION

The CHAIRMAN. Well, that may be because there have been relatively few cases where anyone from the State Department has asserted that the President has the authority, with or without the concurrence of the Congress, to terminate any treaty whether or not it contains a termination clause, and can do so unilaterally.

I ask you for your source of authority for such a statement. You said article II. I asked you what part of article II, and you have not yet responded appropriately.

Mr. HANSELL. May I quote, Mr. Chairman, from the American Law Institute Restatement of the Foreign Relations Law of the United States.

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

and then it refers to a rule in section 55, which we can get to in a

moment

the suspension or termination of the agreement in accordance with provisions included in it for the purpose.

The CHAIRMAN. But that does not respond to my question. I am talking about a treaty that does not contain any such provision. Mr. HANSELL. I understand that, Mr. Chairman.

The CHAIRMAN. You have also cited the Constitution. Will you cite me the provision of the Constitution on which you rest your case?

Mr. HANSELL. I would need to refer you to article II, the provisions of which I don't have with me at the moment.

Senator JAVITS. We will get that for you.

Mr. HANSELL. It concerns the power of the President to conduct the foreign relations of the United States, which have inherently been recognized as the basis for that power.

If I may paraphrase the brief of the United States in the litigation that previously was referred to, it notes that article II provides, in pertinent part, that the executive power shall be vested in a President of the United States; that the President shall be Commander-in-Chief; that the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur. The statement in the brief on this issue is as follows:

Article II confers the Executive power in general terms, strengthened by specific provisions where emphasis was appropriate and limited by direct constraints where limitation was intended. No express constraint was placed on the termination of treaties nor was any express power with respect to treaty termination granted to Congress. The Senate role of advising and consenting in the making of treaties is, therefore, not an independent source of legislative power, but is, instead, a limitation upon the treaty-making power granted to the President.

The President's power to terminate treaties, Mr. Chairman, is derived by implication, not by express terms, from article II. In two centuries of constitutional history exercised on a number of occasions, and has been recognized, I think, by most authorities. It has been the consistent view of the Department of State and the executive branch that the President has that authority.

PRECEDENTS FOR PRESIDENTIAL TERMINATION OF TREATIES WITHOUT

TERMINATION PROVISIONS

The CHAIRMAN. Well, we have been given a good deal of scholarly opinion to the contrary. The committee has been referred to any number of cases where the Congress has acted to terminate treaties with the concurrence of the President.

Can you cite a case where the President has terminated a treaty that did not contain a provision relating to termination, and without the concurrence of the Congress?

You heard Senator Goldwater examine, or analyze, the 12 cases the State Department had presented and said that there were extenuating circumstances in those cases and, therefore, they were not valid as precedents for the proposition that you put to us this afternoon.

Mr. HANSELL. I did hear that, Mr. Chairman, and I welcome the opportunity to refute that comment. In the memorandum which we have submitted for the record, and also in the brief filed with the district court, are identified a number of instances of Presidential termination. In my statement, if you will turn to pages 6, 7, 8, 9, and 10, you will see there listed statements by a group of eminent constitutional and international law scholars, such as Professor Henkin, Professor McClure, Dr. Byrd of Maryland, Professor Tribe of Harvard, Professor McDougal of Yale, Professor Nelson of Southern Illinois, Professor Reeves of Michigan, Professor Willoughby of Johns Hopkins, and quotations from their works on this issue.

We did not include in my statement, but there have been included in the memorandum I have submitted for the record, the dozen instances to which Senator Goldwater referred. I do have to say to you, without any reflection on the scholarship of his staff, that his characterization can only be described as erroneous.

Let me identify some of those for you, Mr. Chairman, if I may, because I think in answer to your question I can quickly enumerate the treaty terminations that would respond to your question.

I will identify very hastily the cases listed in the memo, and then those that I can recall which were treaties that did not have a termination notice provision.

In 1815, President Madison terminated the Treaty of Amity and Commerce with the Netherlands; in 1899, President McKinley terminated certain articles of the Extradition, Friendship, and Commerce Treaty with Switzerland; in 1920-and this one I am quite sure was a treaty that had no termination clause-President Wilson terminated a Treaty of Amity, Commerce, and Navigation with Belgium. These were all instances where there was Presidential action only.

In 1927, President Coolidge gave notive of termination of the 1925 treaty with Mexico on the prevention of smuggling. In 1933, President Roosevelt issued notice of withdrawal from the Multilateral Convention for the Abolition of Import and Export Prohibitions and Restrictions. In 1933 President Roosevelt gave notice of termination of the Extradition Treaty with Greece. In 1936, President Roosevelt terminated the 1871 Treaty of Commerce with Italy. In 1939, President Roosevelt terminated a 1911 Treaty of Commerce and Navigation with Japan. In 1944, President Roosevelt terminated the Inter-American Convention for Trademark and Commercial Protection.

In 1954, President Eisenhower gave notive of withdrawal from the 1923 Convention on the Uniformity of Nomenclature for the Classification of Merchandise.

In 1962, President Kennedy terminated the 1902 Convention on Commercial Relations with Cuba. In 1965, President Johnson gave notice of denunciation of the 1929 Warsaw Convention Concerning International Air Travel, which subsequently was withdrawn contrary to the request of a number of members of this body.

As I said, I am clear about one of those cases, but would have to check the others again, as to whether or not there was a provision for notice of termination.

The CHAIRMAN. Senator Javits?

Senator JAVITS. Thank you, Mr. Chairman.

Mr. Hansell, you don't have to answer any of these questions orally now. Just take them away and think about them. Have a home examination.

It seems to me that we need to know the following.

EFFECT OF PASSAGE OF SENATE CONCURRENT RESOLUTION 2

If we passed Senate Concurrent Resolution 2 and the House passes it, and the President vetoes it, which we must assume, as he may do that, and we passed it over his veto, it then becomes law. Now, having passed the law contained in this bill, would the President thereafter be able to terminate a treaty according to its terms?

Mr. HAMMOND. Excuse me, Senator, are you referring to Seantor Goldwater's resolution?

Senator JAVITS. I am referring to the resolution introduced by Senator Goldwater, Senate Concurrent Resolution 2.

Mr. HAMMOND. That is a concurrent resolution, I believe, and is not subject to the President's consideration or to his veto.

Senator JAVITS. OK, let's leave out the concurrent resolution. Suppose we passed Senate Joint Resolution 2, and it was passed over the President's veto, that is, he had vetoed it. Would he, in your opinion, thereafter, have the power to terminate a treaty, except according to the terms of the law which we have passed?

That is the real $64 question to me. Frankly, I don't think we can do anything about the past, including the PRC. But that doesn't solve it at all. That's not even why it was raised.

That is why I said you don't have to answer this now.

Mr. HANSELL. Senator, I think I would like to accept your invitation not to do so for the reason that you have posed a hypothetical issue which we prefer, for a good many reasons, not to try to speculate about. But I understand the serious interest of the committee in the question and with your permission, I would like to take it and consider how we might respond to it.

Senator JAVITS. Might I ask you to do this hurriedly and quickly. We don't want you to go away under any false impression. There is really nothing hypothetical about it because we can report out a joint resolution instead of a concurrent resolution. There is nothing to stop us from doing that at all. On the contrary, I am sure that the sponsors would be very pleased to do this.

That is a very pertinent question.

[The information referred to follows:]

Can the Congress by law prohibit the President from terminating existing or future treaties without Congressional concurrencies:

[supplied by Department of State]

In our judgment, a statute purporting to prohibit the President from terminating existing or future treaties without Congressional concurrence would be unwise as a matter of policy, would raise serious Constitutional questions, and would be in conflict with a Constitutional practice that has worked successfully for nearly 200 years.

As a matter of policy, it would be unwise to weaken in this fashion the President's power to conduct foreign policy, and in any event such legislation would be unworkable more often than not. There are many situations in which the President must make determinations and findings of fact that will result in a termination of a treaty, or its suspension, or in a withholding of performance.

The President must decide whether there has been a material breach by the other party justifying responsive action, or whether armed conflict or other emergency indicates a termination or suspension. There may have been a fundamental change in