1978] The Legislative Role in Treaty Abrogation 75 but a major action having the gravest international consequences and impact if the United States should break a defense treaty or other formal compact with a friendly ally. Second, it would be a total departure from past history for the President alone to consider a treaty voided in circumstances where the other party has given no cause and conditions do not make it impossible to perform. Douglas specifically tied his opinion to evidence that it was common practice for Presidents to conclude executive agreements and he relied on the Court's recognition in an earlier case that the Litvinov Assignment was such an executive agreement which did not require the participation of the Senate.218 Here there is no historical record indicating that Presidents have commonly abrogated treaties on their own power and no prior case recognizing such a power as belonging to the President. In contrast to the facts of the Pink case, there simply is no historic conception of the President as possessing an independent power of abrogating treaties without the participation of the Senate or Congress. Third, unlike the Pink case, here there is a specific injunction in the Constitution that the President shall faithfully execute the laws, of which a treaty is a part. As discussed above, the President does not have power to set aside a law of the United States219 and it would be a true drastic revision of the historic concept of his powers were he to be now recognized as having such authority. An obstacle in the way of rehabilitation of relations it may be, but the obstacle is the Consitution itself which prevails over any interest the Executive may have in effectiveness in conducting foreign affairs. The President may lose flexibility of action; but the people would lose the security of his accountability if there were no check on his conduct. D. Treaty Provision Authorizing Withdrawal Another question arising out of the defense treaty with the ROC, which applies with equal relevance to almost every treaty this nation has ratified, is whether legislative consent to Presidential power can be inferred from the presence in the treaty text of a provision specifically authorizing both parties to denounce the treaty after a certain interval following notice. Specifically, does the fact that article X220 of the 1954 treaty states that either "Party may terminate it one year after notice has been given to the other Party" confer authority upon the President alone to give such notice? The question must be answered from an interpretation of the term "Party" and the legislative history of the treaty. On the basis of both approaches, it is clear the provision offers no source of increased power to the President. In the first place, the provision does not authorize termination after notice given 218. Id. at 229. 219. See text accompanying notes 27-28, supra. It is true the President is "the sole organ of the nation in its external relations, and its sole representative with foreign nations." U.S. v. Curtiss-Wright Export Corp., 229 U.S. 304, 319-320 (1936), quoting John Marshall as a Member of the House of Representatives in 1800. At most, however, this means it is the President who must communicate the message terminating a treaty, not that he alone can make the decision to annul the treaty. Even this much was rejected by the 5th Congress, which enacted the statute annulling the French treaties without providing for notice by the President. See text accompanying notes 36-39 supra. The idea is also rejected by statements in at least two court cases. Hooper, supra note 39; Ropes, supra note Absent specific direction to the contrary in the Constitution or in the proceedings of the Constitutional Convention and State ratifying conventions, it must be assumed the Constitution itself controls the question by specifically requiring that the President faithfully execute the laws and by including treaties among those laws. Surely the President's implied control over foreign relations does not give him power to repeal other express provisions of the Constitution. 220. 6 UST 437. 186. 76 Journal of Legislation [Vol. 5: 46 by "the President" or "Executive" of either Party. It only uses the term "Party."221 This term in a treaty obviously means the government of the state or international entity involved, which requires a reference to the constitutional processes of that government in order to determine, first, what authority shall make the decision to give notice and second, after that decision has been made, what authority shall give the notice. In our case, this necessarily brings us back to the fact that under the Constitution, regardless of what authority may communicate the notice to another nation, the power to make the initial decision is a joint one shared by the President and Senate or Congress. A duration provision in a treaty may offer support for an interpretation that it is the President who will act as the message bearer conveying notice to other nations of our intended withdrawal from that treaty since he is the officer who traditionally represents the nation in its foreign relations; but his capacity as a diplomatic organ in no way infers or conveys a power of making the threshold policy decision required preceding delivery of the notice. Congress or the Senate must share a role in making that decision. Perhaps the legislative branch can delegate its authority to participate in the decision-making to the President, although that is doubtful because it would defeat the constitutional expectation of greater deliberation upon an important political decision. In any event, there is a complete lack of legislative history indicating any such purpose or willingness by the Senate or Congress to waive its constitutional power in the case of the ROC treaty. And, it must be remembered that the defense treaty with Taiwan does not stand alone. Nearly every bilateral and multilateral treaty the United States has with other governments contains a provision similar to the one set forth in our treaty with the ROC. For example, NATO,222 the Test Ban Treaty,2 223 the Statute of the International Atomic Energy Agency,224 the Nuclear Nonproliferation Treaty, 225 the Biological Weapons Convention,226 the Universal Copyright Convention, 227 and the Outer Space Treaty228 each contain provisions expressly laying down agreed ways they can be terminated upon one year's or less notice having been given to the other parties. If the language in the Taiwan defense treaty were interpreted as allowing the President alone to provide such notice, each of the above treaties would equally be hostage to the sole discretion of the Executive. This news would undoubtedly come as a surprise to the Senate which had advised and consented to each of these documents without being informed of any such design. Imagine the uproar in the Congress, for example, should any President assert power unilaterally, without giving an opportunity for prior deliberation in the Senate or Congress, to violate the Nonproliferation Treaty by transferring nuclear warheads to South Africa. The truth is that the potential implications of Presidential discretion to void treaties has not been considered, publicly at least, by proponents of the concept; and it appears likely that many of the same advocates of terminating the treaty with the ROC would be among the 221. Id., article X. 222. Article 13, 4 Bevans 831 (1970). 223. Article IV, 14 UST 1319. 224. Article XVIII, 8 UST 1093, 1111. 225. Article X, 21 UST 493. 226. Article XIII, 26 UST 591. 227. Article XIV, 25 UST 1366. 228. Article XVI, 18 UST 2420. 1978] The Legislative Role in Treaty Abrogation 77 first to condemn, as an abuse of constitutional discretion, an attempt by a President unilaterally to denounce a treaty they favor. Moreover, an examination of each of the treaties described above which have been denounced or terminated by the United States in the past reveals that all but five included provisions allowing withdrawal upon notice.229 The fact that Presidents have generally so interpreted treaty provisions regarding duration as requiring them to seek Congressional or at least Senatorial approval before giving notice to the other party proves that inclusion of such a provision in a treaty does not change the domestic constitutional arrangement of powers between the Executive and Congress. As shown above, Congress has heretofore collaborated in the termination of over 40 treaties by enacting a joint resolution, agreeing to a Senate resolution or by Act of Congress.230 Congress obviously believed it retained a role in the treaty abrogation process in each of these instances, nearly all of which involved the annulment of treaties having duration provisions. There is no record to the contrary showing that the existence of such provisions in treaties has any relation to the powers of the President and Congress. CONCLUSION In conclusion, no President acting alone can abrogate, or give notice of the intention to abrogate, formal treaties. It is the clear instruction of history that the President cannot give valid notice of an intention to withdraw from a treaty, let alone void a treaty in violation of the formalities required by any provision it may contain regarding duration, without the approval or ratification of two-thirds of the Senate or a majority of both Houses of Congress. Any President who would seek to thwart this constitutional mandate runs the risk of impeachment. For the check of impeachment is clearly one of the safeguards provided by the Founding Fathers against political offenses, such as an irresponsible abuse by a President of a constitutional discretion.231 In fact, a study of the abrogation of treaties made by the Library of Congress in 1974 expressly concludes by observing that where a 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, the President "might be impeached."232 This answers the too clever reasoning of the Legal Adviser of the Department of State, which surfaced in a 1936 memorandum to President Roosevelt.233 His argument contended that the failure of the Congress or the Senate to approve the action of the President in giving notice of intention to terminate a treaty would be of no avail because once the notice is given, the foreign government concerned may decline to accept a withdrawal of such a notice. What the argument failed to note is that even if the foreign government is entitled and 229. There was one treaty in which the provisions of the process-verbal of the deposit of ratification conferred the right of denunciation, the International Sanitary Convention of 1903. Hackworth, supra note 86, at 322. The other four treaties which lacked any provision for withdrawal were the 18th Century French treaties. The Senate Foreign Relations Committee later used this distinction in reasoning that action by both Houses of Congress was appropriate to abrogate the French treatis instead of action by the Senate and President alone. See S. Doc. No. 231, supra note 44, at 109-110. 230. See text accompanying notes 35-151 supra. 231. Several delegates to the state conventions on adopting the Constitution argued the President was liable to impeachment from abuse of the treaty power. 3 Elliot's Debates, supra note 26, at 240 (Nicholas), 516 (Madison); 4 Elliot's Debates, id., at 124 (Spaight), 276 (E. Rutledge), 281 (C.C. Pinckney). 232. Bite, supra note 35, at 107. 233. Hackworth, supra note 86, at 328. 78 Journal of Legislation [Vol. 5: 46 wants to rely on such a notice without inquiring into the constitutional authority of the President,234 this does not change the domestic constitutional situation of the President in relation to the Senate or Congress. The President is still answerable to the Constitution and accountable to the Congress and people. It should be clarified that this study is not addressed to executive agreements, international agreements other than formal treaties. The above conclusions apply only to treaties in the constitutional sense of compacts between nations or other international entities, which have been formally signed, submitted for advice and consent to the Senate and ratified after having received the necessary two-thirds approval by the Senate. Actually, Congress normally retains a close check on the vast majority of executive agreements by specifying that it may at any time terminate by concurrent resolution those agreements which have been concluded pursuant to legislative authority.235 Since almost 99% of all executive agreements are made under authority granted in acts of Congress, this procedure preserves for the legislature a strong role, although not necessarily an exclusive one, in the unmaking as well as the making of such agreements.236 While different principles apply to the two types of international agreements, the Senate could, if it wished, reaffirm the traditional legislative role in terminating treaties by adopting a procedure somewhat similar to that used in the case of executive agreements, when giving its advice and consent to the ratification of formal treaties. For instance, the Senate could approve ratification of a treaty with a reservation declaring that the sole way the treaty may be terminated or suspended as to the United States shall be upon notice given to the other party after authority therefor has been conferred upon the President by concurrent resolution of Congress. Another less dramatic, but positive means of demonstrating its continued claim of power and interest in decisions regarding the abrogation of treaties would be enactment by Congress of a law requiring prompt notice to the Foreign Relations Committee of the Senate and International Relations Committee of the House of any decision by the President leading toward the intended termination of a treaty. Such a law should logically cover notices regarding the cancellation of executive agreements as well as treaties.237 Curiously, the files of the Senate Foreign Relations Committee contain no regular record of treaty abrogation notices made by the Department of State. There is no systemized or unofficial practice of communications by the Executive 234. Of course, in the context of the Republic of China, it may be presumed the authorities on Taiwan would choose not to exercise their option to treat the defense treaty as void, thereby holding the United States accountable under international law for a violation of our commitment and preserving the opportunity for reviving the treaty. Once before the Chinese declined to denounce a treaty violated by the United States, the Treaty of Immigration, Nov. 17, 1880, 6 Bevans 685 (1971). That treaty remained in force until it was superseded in 1946. Id. at 761. 235. Nelson, supra note 165, at 893. 236. See compilation by U.S. Department of State in Hearing on S.3475 before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 92nd Cong., 2d Sess. at 416 (1972). 237. A logical vehicle for such a proposed law would be an amendment to the Case Act which requires that Congress shall be notified of the existence of executive agreements. 1 USC 112b There is a long forgotten precedent for such explicit reports. In 1889 the Department of State published a volume listing all the treaties and conventions, except postal agreements, ratified by the United States, a publication which was somewhat similar to the current Treaties in Force series. However, unlike the present compilations and in response to the specific direction of a Senate Resolution approved January 5, 1885, the earlier compilation also identified "such treaties or conventions, or such parts of treaties or conventions, as having been changed or abrogated." The affected agreements were clearly indicated in the printed edition by a footnote at the beginning of each treaty or convention, with a reference to the notes where an explanation was given as to the manner and extent of their abrogation, suspension, or amendment. U.S. Treaties and Conventions 1776-1887 (U.S. Department of State 1889), preface at iv-v. 1978] The Legislative Role in Treaty Abrogation 79 Branch to Congress informing it of treaties which the President considers as having been or about to be terminated. The other country receives prompt notice of our intention to withdraw from or suspend a treaty, but the Congress itself is left in the dark about unilateral Presidential actions purporting to repeal or suspend our solemn international commitments. It is true the Congress may find out about the purported termination or suspension of a treaty by eventually observing that it has disappeared from publication in the annual State Department paperback, Treaties in Force, but this delayed method leaves Congress entirely out of the decision when its influence may still have affected events. Even if Congress were given copies of the actual notices delivered to foreign governments, it would often remain ignorant of the reasons for denouncing treaties. Many of the notices contain no more than a bare recital of our intention to withdraw from particular treaties in accordance with the provisions thereof.238 No explanation of why the United States is discarding the treaty is set forth in the notice. Thus, to be effective, the proposed law should mandate that Congress immediately be informed whenever notice has been transmitted to another government regarding termination of a treaty, and be given a detailed explanation of the reasons and authority for pulling out of the treaty. The Senate or Congress could then respond with whatever counteraction it may choose to initiate to ratify or block the President's action. Or Congress might, in addition to or in the alternative, adopt a concurrent resolution expressing its sense of the rules and conditions which apply to the termination and suspension of a treaty. Since no full scale hearings have been held on the subject of treaty abrogation in Congress during this century,239 just the scheduling of hearings on such a concurrent resolution by committees in both Houses of Congress, at which witnesses from the Executive Branch are called upon to testify, may help produce a clarification and mutual understanding of the respective positions held by the President and Congress on the subject. Hopefully, the hearings would also result in improved cooperation and consultation between the two political branches on matters involving the possible termination or suspension of treaties. Whatever procedure may recommend itself to Congress, it would appear prudent for the legislature to reaffirm its constitutional role in making the 238. E.g., the notice conveying our intention to withdraw from the convention with Mexico for the scientific study of tuna merely recites that the agreement is being terminated "by common accord". In fact, it was replaced by another convention, but no one would learn this from reading the notice. See text accompanying notes 156-157 supra. 239. The conclusion is based on inquiries with the staff of the Senate Foreign Relations Committee and the House International Relations Committee and an examination of the several volumes of the Index of Congressional Committee Hearings and Cumulative Index of Congressional Committee Hearings. It is true hearings were held on termination of the treaty of 1832 with Russia before the then House Committee on Foreign Affairs and the Senate Foreign Relations Committee in 1911, but only one witness, Mr. Louis Marshall, presented any detailed and documented analysis of the constitutional question, hardly qualifying the hearings as a full-scale, comprehensive study of the issue. See Hearings on termination of Treaty of 1832 with Russia, supra note 84, House hearings at 41-50, Senate hearings at 31-32. In 1977, Congressional hearings, with four witnesses, were held on certain legislative and legal problems involved in recognizing Peking, but the constitutional question of the necessity for legislative approval of the abrogation of the U.S.-ROC defense treaty, as demanded by Peking, was addressed only in a cursory way and was not the primary focus of the hearings. Hearings before the Subcomm. on Asian and Pacific Affairs of the House Comm. on International Relations, 95th Cong., 1st Sess. at 114-15, 119. A likely candidate for in depth hearings precisely on the constitutional power issues is a Senate concurrent resolution to be introduced by Senator Barry M. Goldwater in the 96th Congress "to uphold the separation of powers between the Executive and Legislative Branches of Government in the termination of treaties.' |