This memorandum provides background information for the hearings to be held on the afternoons of Monday, Tuesday, and Wednesday of next week on the issue of treaty termination. The hearings will begin each day at 2:30 p.m. in 4221 Dirksen Senate Office Building.

On March 8, during the debate on the Taiwan Enabling Act,
Senator Harry Byrd of Virginia offiered the following amendment:

It is the sense of the Senate that approval of
the United States Senate is required to terminate
any mutual defense treaty between the United
States and another nation.

The amendment was withdrawn in accordance with the following unanimous consent agreement:

Mr. Robert C. Byrd. Mr. President, I ask
unanimous consent that the amendment that is
now pending, by the distinguished Senator
from Virginia (Mr. Harry F. Byrd, Jr.) be
withdrawn and that the amendment in the form
of a resolution, bearing his name and the
names of any other Senators he wishes to have
as cosponsors, be referred to the Committee
on Foreign Relations; that that resolution as
amended, be reported back to the Senate no
later than 60 days from today; that it be made

the pending question before the Senate no later
than 90 days from today, and that there be an
up-and-down vote on his amendment at that time,
if the distinguished Senator from Virginia feels
constrained to offer it.

Mr. President, for the phrase 'no later than 60
days,' I substitute 'no later than May 1.'

The Byrd Resolution is now before the Committee for action by May 1.
The scheduled day for such action is Tuesday afternoon, April 24.

Pursuant to this agreement, the following hearing schedule has

been set:

On April 9, the Committee's first witness will be Senator Barry Goldwater. He will be followed by John Harmon, the Assistant Attorney General for the Office of the Legal Counsel, speaking for the Attorney General, and by Herbert Hansell, the Department of State Legal Adviser.

On April 10, beginning at 2:30 p.m., the Committee will have two panels of witnesses. The first will consist of Professor Thomas M. Franck of the New York University Law School; Professor Covey T. Oliver of Rice University; and William D. Rogers of the District of Columbia bar. The second will consist of two former State Department Legal Advisers, Professor Abram Chayes of the Harvard Law School and Leonard Meeker of the District of Columbia bar.

On April 11, beginning at 2:30 p.m., the Committee will again hear two panels of witnesses. The first will consist of former Attorney General Herbert Brownell and former Secretary of State Dean Rusk. The second will be composed of Professor Edward Gaffney, Jr., of the Notre Dame Law School; Professor Andreas Lowenfeld of the New York University Law School; Professor Michael Reisman of the Yale Law School; and Professor John Norton Moore of the University of Virginia Law School.

The Justice Department and the State Department received the following request from the Chairman:

I hope that you will address your testimony not simply to the issues raised by this one measure, but to the broader question of the constitutional allocation of power to terminate treaties -specifically, may the President constitutionally terminate a treaty (or a Congressionally-approved "executive agreement") on his own authority without Senate, or Congressional, concurrence? Does it matter whether he terminates it in accordance with its own terms or in violation of them? May the Congress or the Senate prospectively or retrospectively prohibit the President from

acting alone?

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Finally, I am enclosing a copy of Rule 37 of the
Standing Rules of the Senate which governs the
Senate's consideration of treaties. Any comments
or recommendations you would care to make on
Rule 37 would be welcome.

The other witnesses have been asked to address the following issues:

1. What constitutes an international agreement

requiring the advice and consent of the
Senate? What should be the role of the
Senate's "advice" power respecting the
initiation and negotiation of treaties,
including the question of what agree-
ments, if any, must be concluded as
treaties? Do parallel, unilateral state-
ments of intent by two or more parties
constitute an international agreement?

2. May the President constitutionally termi-
nate a treaty (or a Congressionally-
approved "Executive Agreement") on his
own authority without Senate (or Congres-
sional) concurrence? Does it matter
whether he terminates it in accordance
with the treaty's terms or in violation
of them? What is the effect of Senate
conditions regarding the termination of
a treaty which might be included

in the original resolution of consent to

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The question at issue whether the President may terminate a treaty in the absence of Senate or Congressional concurrence is one of first impression. The courts have not addressed the question directly, and the intent of the Framers is ambiguous. The historical precedents are also inconclusive, although the general pattern seems to be one of routine Congressional participation during the nineteenth century and of greater executive independence in the twentieth, particularly beginning with the administration of Franklin Roosevelt.

On December 22, 1979, Senator Barry Goldwater and six other Senators (Thurmond, Curtis, Garn, Hatch, Helms and Humphrey) brought an action in the U.S. District Court for the District of Columbia seeking, inter alia, a declaratory judgment that the President's termination notice transmitted to the ROC was unconstitutional, null and void. The Justice Department moved to dismiss on February 26; plantiffs' answer is due to be filed April 18, and oral arguments are scheduled for May 2.

The Committee has the option of acting on the treaty termination question either in the terms defined in the Byrd Resolution or in the broader context of the Senate's role in the treaty process as developed in the hearings. Under the terms of the unanimous consent agreement, an amended version of the resolution may be reported. The Committee in any event must report back on the Byrd resolution no later than May 1.

G.

Collateral Issues

1. Vienna Convention in the Law of Treaties.

The Convention, which sets forth principles governing the status and interpretation of treaties, has been before the Committee since 1972. (Senator Case proposed an understanding concerning the Senate's treaty power, to which the Nixon Administration objected.) The Committee could consider attaching any statements it wishes to make on these subjects as understandings to the Vienna Convention.

2.

Recommendations Concerning Rule 37 of the Standing Rules
of the Senate.

Rule 37, which sets forth the procedure to be followed by the Senate in consenting to treaties, dates from the nineteenth century and may be outmoded. It contains, for example, antiquated references to treaties with Indian tribes and injunctions of secrecy. It also prescribes a "Committee of the Whole" procedure adopted when the Senate was a much smaller body. Under that procedure the Senate must consider amendments to the text of the treaty at a separate stage of its deliberations than those in which reser vations and understandings to the resolution of consent to ratification can be offered. The Committee may wish to recommend amendments to modernize and expedite this cumbersome procedure. Such amendments would probably require action by the Rules Committee. (A copy of Rule 37 is attached, together with rulings from the Chair on questions submitted by Senator Allen on February 8, 1978 on this procedure.)