they propose to bind themselves legally to identifiable obligations, or did they have in mind simply a policy declaration which either one could alter without giving rise to an assertion by the other than an obligation was being violated?

I should like to move on now to the central issue before the
It has been phrased in the following terms:

Committee.

"May the President constitutionally terminate a
treaty (or a Congressionally approved 'Executive
Agreement') on his own authority without Senate
(or Congressional) concurrence?"

The question of who is constitutionally empowered to terminate a treaty (or Congressionally approved executive agreement) is a complex one. As we know, Article II is explicit in its description of the manner in which treaties are to be made, but offers no prescription on how they should be terminated.

Nor has the

Supreme Court ever had occasion or seen fit to offer a definitive pronouncement on the subject. Even the records of the Federal Convention debates, which shed some light on the Founders' concerns regarding treaty making, are of little assistance in determining who was intended to exercise the termination power.

One is left, therefore, to make inferences in the light of past practice and the Constitutional allocation of powers among the Branches of the Federal Government. My conclusion is that the President is empowered to terminate treaties on his own authority; this view is supported by precedent, the weight of scholarly opinion, and the practical necessities inherent in the conduct of foreign policy.

At the outset it should be noted that there are two aspects

to termination of a treaty;

action to terminate its international

obligations as between countries, and action to terminate the

effect of a treaty as domestic law in the United States. There is clearly a linkage between the two, but these aspects are

distinct.

Varying methods of treaty termination have been employed in the past: action by the President with the concurrence of the Senate or of both Houses of Congress; action by the President alone.

On a review of precedents and practice, there is no basis for concluding that a treaty-termination process involving the Senate or both Houses of Congress is any more warranted and effective under the Constitution than a termination by the President acting alone.

President Lincoln may have been the first President to give notice of termination acting alone. In 1864 he have notice of termination of the 1817 Rush-Bagot Agreement with Great Britain, pursuant to a provision in the agreement. In 1865, however, a joint resolution of Congress stated that the notice given was "adopted and notified as if the same had been authorized by

Congress. The notice of termination was later withdrawn by the President. 3/

37 McClure, International Executive Agreements (1941) 17.

Executive action to terminate has become increasingly common practice during the 20th century. President Wilson, in 1920, terminated the 1891 Treaty of Amity, Commerce and Navigation with Belgium concerning the Congo through an exchange of notes; 4/ Presidents Coolidge, Roosevelt, Eisenhower, Kennedy, and Johnson all acted alone to give notices of termination, pursuant to provisions contained in the treaties.

5/

In none of these instances

did the Senate or House of Representatives challenge the authority

of the President to terminate the treaties. Thus no question

was ever raised as to the domestic law effect of the actions.

The effectiveness of presidential action as a matter of international law was never in dispute.

47

V Hackworth, Digest of International Law (1943) 317-18.

5/ Coolidge: 1925 Treaty with Mexico on Prevention of Smuggling, notice given in 1927;

Roosevelt: 1911 Treaty of Commerce and Navigation with Japan, notice given in 1939; 1931 Treaty of Extradition with Greece, notice given (later withdrawn) in 1933, inter alia;

Eisenhower: 1923 Convention on Uniformity of Nomenclature for the Classification of Merchandise, notice of withdrawal given in 1954;

Kennedy: 1902 Convention on Commercial Relations with Cuba, notice given in 1962;,

Johnson: 1929 Warsaw Convention, notice of denunciation (later withdrawn) given in 1965.

The distinction between domestic and international law effects is a salient one here. Since treaties and statutes occupy equal status as "supreme law of the land" under Article VI of the Constitution, Congress, in its legislative capacity, can effectively cancel an international obligation by (a) refusing to pass implementing legislation, if the treaty is not self-executing, or (b) enacting inconsistent domestic legislation, even over the President's veto. If such action were taken by Congress, the treaty would no longer be law in the United States, the President would not be able to carry out its provisions, and he might decide to terminate it internationally. Alternatively, the treaty'

partner or partners might decide to terminate in light of the
American breach. The Supreme Court has said that, in terms of
domestic law, "a treaty may supersede a prior act of Congress,
and an act of Congress may supersede a prior treaty." 6/
Where a treaty and a statute are in such obvious conflict that
a court could not hope to reconcile them, judicial practice has
been to give effect to the later action.

But while Congress through the exercise of its own Constitutional authority can cause an international obligation to go unfulfilled, it cannot extinguish that obligation. Only the President can speak for the nation in international relations. In the words of John Marshall, the President is "the sole organ of the nation

6 The Cherokee Tobacco, 78 U.S. 616 (1871); Foster v. Neilson,

2 Pet. 253 (1829); Taylor v. Morton, 2 Curt. 454 (1855); see Cook V. United States, 288 U.S. 102, 118 (1933).

in its external relations, and its sole representative with

foreign nations." 7/

In 1936, the Supreme Court wrote that

the President is "the sole organ of the federal government in the field of foreign relations," exercising a "plenary and exclusive power", having sole "power to speak or listen as a representative of the nation" in a "vast external realm". 8/

Thus, the President's foreign policy powers are limited only by the Constitution itself. While Constitutional interpretation in this area, as in others, is ultimately in the hands of the Judicial Branch, the Supreme Court has been reluctant to rule on questions of allocation of power between the political branches. Most often, it has relied upon the "political question" doctrine to refuse to rule on such issues, especially when confronted by the absence of "judicially manageable standards". Moreover, the Court has written that the "very nature of executive 9/ decisions as to foreign policy is political, not judicial."

What this means is not that the President enjoys unfettered discretion, for he does not. He remains bound by the terms of the Constitution, and may not contravene any Constitutional

prohibitions.

Although the courts are generally reluctant to rule on the propriety of Executive actions in the field of international relations, political forces are powerful constraints.

1/ 10 Annals of Congress 613 (1800).

8/ United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).

9/ Chicago & Southern Airlines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948).