The President on one occasion at least has terminated a treaty contract securing only the approval of the Senate, his action being pursuant to a provision in the treaty for termination by notice. The question of power was raised at the time and referred to the Senate Committee of Foreign Relations which made a careful study of the matter and reported:

The President and Senate could certainly terminate this treaty or any other, with the consent of the opposite contracting party, by the negotiation of a new treaty in terms annulling it. And what is the present case but such consent, providing in advance for its termination on a contingency and without further negotiations.

The committee are thus satisfied that the notice authorized by the Senate, and given by the President to Denmark, was a proper exercise of the right reserved in the treaty, and that its effect will be to annul the treaty at the expiration of the time limited, both as regards the two Governments and the citizens and subjects of either.15

It is interesting to note that both in Charlton v. Kelly and the case considered by the Senate committee, the situation was such that the obligation would be terminable under principles of ordinary contract law; so that these two instances fit in with the view expressed by Justice Curtis in Taylor v. Morton that a treaty obligation could not be terminated at the will of one party to it. So far, it seems sensible on the basis of reason and policy to say that a treaty in its international aspect can be terminated only as any contract can, and that such termination should be effected only by the President by and with the consent of the Senate.

But things are not so simple as that—at least on the basis of what has been said and done. At the very beginning Congress passed a law declaring the treaties with France to be not legally obligatory upon the United States.16 On two occasions lower federal courts have said that Congress can abrogate a treaty." President Grant in a message to

14 5 MOORE, INTERNATIONAL LAW DIGEST 322 (1906).

15 S. REP. 97, 34th Congress, 1st Sess., 8 Compilation of Reports of the Committee on Foreign Relations 107 at 111 (1901).

16 1 Stat. L. 578 (1798).

17 "There are three modes in which congress may practically yet efficiently annul or destroy the operative effect of any treaty with a foreign country. They may do it by giving the notice which the treaty contemplates shall be given before it shall be abrogated, in cases in which, like the present, such a notice was provided for; or, if the terms of the treaty require no such notice, they may do it by the formal abrogation of the treaty at once, by express terms; and even where, as in this case, there is a provision for the notice. İ think the government of the United States may disregard even that, and declare that 'the treaty shall be, from and after this date, at an end, and meet the consequences of their responsibility for a breach of faith with the Russian government. And yet, while I state that as my judgment of the legal proposition. I am not thereby intimating that it is a thing proper to be done, or that such a proposition can be presumed to be entertained by our government, or, if at all, except upon exigencies and under the pressure of considerations of state, of such importance and necessity as compels a departure from good faith. But, as a legal proposition, I suppose it is possible in that way to destroy the legal operation of a treaty." Ropes v. Clinch, (C.C.N.Y. 1871) 20 Fed. Cas. No. 12,041, p. 1171 at 1174. "This treaty is the supreme law of the land, which Congress alone may abrogate, and the courts of the United States must respect and enforce it." Teti v. Consolidated Coal Co., (D.C.N.Y. 1914) 217 F. 443 at 450.

Congress said:

It is for the wisdom of Congress to determine whether the article of the treaty-is to be any longer regarded as obligatory on the Government of the United States.18

President Hayes in a later Congressional message said:

The authority of Congress to terminate a treaty with a foreign power by expressing the will of the nation no longer to adhere to it is as free from controversy under our Constitution as is the further proposition that the power of making new treaties or modifying existing treaties is not lodged by the Constitution in Congress, but in the President, by and with the advice and consent of the Senate.19

And finally, Professor Corwin has also emphatically taken the position that the power to terminate treaty contracts is in Congress in the following statement:

All in all, it appears that legislative precedent, which moreover is generally supported by the attitude of the Executive, sanctions the proposition that the power of terminating the international compacts to which the United States is a party belongs, as a prerogative of sovereignty, to Congress alone. This result no doubt transgresses the general principle of the residual power of the Executive in foreign relations, but it flows naturally, if not inevitably, from the power of Congress over treaty provisions in their quality as "law of the land." Furthermore, by Article I, Section 8, Paragraph 10 of the Constitution, Congress has the power to "define and punishoffenses against the Law of Nations," and so, it has been generally held, the power to define International Law is general for the United States.20

These opinions and precedents do obscure the analysis made above, but they can be explained away with some degree of effectiveness. The Act of 1798 terminating the treaties with France was explained by the Committee of Foreign Relations as an exercise by Congress of its power to declare war 21-a view supported by the attitude of the Supreme Court in Bas v. Tingy.22 The statements in the two federal cases mentioned were very oblique dicta.23 If Presidents Grant and Hayes can be said to have laid down an executive precedent, they are "overruled" by President Wilson who flatly refused to denounce treaty obligations when directed to do so by Congress in the Merchant Marine Act of 1920 on the ground that this direction of Congress was an unconstitutional interference with the treaty-making power.24 And Professor Corwin's contention that the power to terminate treaty obligations flows "naturally, if not inevitably" from the power to repeal the treaty as the law of the land is refuted by the language quoted above from the opinion in the Pigeon River Improvement case.25 All in all,

18 FOREIGN RELATIONS 255 (1876).

19 RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS 518 (1898).

20 CORWIN, THE PRESIDENT'S CONTROL OF FOREIGN RELATIONS 115 (1917).

218 COMPILATION OF REPORTS OF THE COMMITTEE ON FOREIGN RELATIONS 107 at 110 (1901).

22 4 Dall. (4 U.S.) 37 (1800).

23 See note 17, above.

24 N.Y. TIMES, p. 1:1 (Sept. 25, 1920).

25 See text at note 9, above.

one could still say with some assurance that the power to terminate a treaty rests only with the President and the Senate, if it were not for the recent case of Van der Weyde v. Ocean Transport Co.26

In that case the Circuit Court of Appeals had said that the federal courts did not have jurisdiction over a foreign seaman's claim against his vessel because of articles 13 and 14 of the Treaty of 1827 with Norway and Sweden.27 The Supreme Court reversed this decision on the ground that the treaty provisions in question had been abrogated. Section 16 of the Seamen's Act of 1915 28 directed the President to terminate such treaty provisions as were inconsistent with the act. Pursuant to this direction notice was given to terminate the treaty according to its terms, but after negotiation this notice was withdrawn as to all of the treaty except articles 13 and 14.29 The significant part of the Court's opinion can be set forth in a very short space:

We think that the question as to the authority of the Executive in the absence of congressional action, or of action by the treaty-making power, to denounce a treaty of the United States, is not here involved. In this instance, the Congress requested and directed the President to give notice of the termination of the treaty provisions in conflict with the act. From every point of view, it was incumbent upon the President, charged with the conduct of negotiations with foreign governments and also with the duty to take care that the laws. of the United States are faithfully executed, to reach a conclusion as to the inconsistency between the provisions of the treaty and the provisions of the new law. It is not possible to say that his conclusion as to articles 13 and 14 was arbitrary or inadmissible. Having determined that their termination was necessary, the President through the Secretary of State took appropriate steps to effect it. Norway agreed to the termination of articles 13 and 14 and her consul cannot be heard to question it." 30

The Court could have decided the case by saying that the direction to the President indicates a clear intent on the part of Congress that the treaties be repealed as part of our municipal law, and it was not necessary to decide what had happened to the international obligation. But the theory of the decision seems to be that the treaty is no longer law because it is no longer a treaty. The Presidents action cannot be interpreted as an exercise of the treaty power because the Court says that he was bound to follow the direction of Congress, and because no consent by the Senate is indicated. So this case seems to be a clear holding by the Supreme Court that Congress can terminate a treaty obligation.

The Court in giving its decision cited no cases and made no careful analysis of the principles involved, and the result is not consonant with the most reasonable construction of the treaty power clause. It is unfortunate that the Court missed this opportunity to clarify doctrines which have been so long obscure.

26 297 U.S. 114, 56 S. Ct. 392 (1936).

27 8 Stat. L. 346 at 352 (1827).

28 38 Stat. L. 1164 at 1184 (1915); 22 U.S.C. § 258 n. (1915).

29 This action was taken by the State Department during the administration of President Wilson who in 1920 so vigorously resisted a similar direction by Congres (see text above at note 24). The writer has searched unsuccessfully for some expression of person opinion by President Wilson in connection with the Seamen's Act of 1915.

30 U.S. 114 at 117-118, 56 S. Ct. 392 (1936).

[From the University of Chicago Law Review, Vol 34, No. 3, 1967]

PRESIDENTIAL AMENDMENT AND TERMINATION OF TREATIES: THE CASE OF THE WARSAW CONVENTION

For more than thirty years the Warsaw Convention of 1929 1 posed a major obstacle to recovery of damages beyond the treaty's specified limitation of $8,300 by international air passengers who suffered death or personal injury. Finally, on November 15, 1965, the United States Ambassador to Poland delivered a diplomatic note denouncing the Warsaw Convention "solely because of dissatisfaction with the low limits of liability [for air carriers] provided in the Convention." 2 However, just one day prior to the effective date of the denunciation (May 15, 1966), the Department of State announced that it would withdraw denunciation and the United States would resume its commitments in matters relating to international civil aviation within the framework of the Warsaw Convention as altered by a "new plan." 4

3

The Department of State disclosed that the note was withdrawn because most of the world's principal air carriers had agreed to conditions set forth by the Administration that would provide victims of air disasters on journeys to or from the United States with up to $75,000 in damages without proof of carrier fault. At the time of this action, however, neither the efforts to denounce the Warsaw Convention nor the subsequent modifications promoted by the executive branch had been formally advised or consented to either by Congress as a whole or by the Senate. In fact, conditions similar to those imposed by the Administration had been previously rejected at the international conference tables and in Congress."

1 Convention for the Unification of Certain Rules Relating to International Carriage by Air and Additional Protocol with Other Powers, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934) [hereinafter cited as the Warsaw Convention].

2 Department of State Notice of Denunciation of the Warsaw Convention, 53 DEP'T STATE BULL. 924 (1965), reprinted in 31 J. AIR L. & COм. 303 (1965). Accompanying press releases are found in 53 DEP'T STATE BULL. 923 (1965), and 31 J. AIR L. & COM. 303 (1965).

3 Article 39 of the Warsaw Convention provides for denunciation in the following terms: "(1) Any one of the High Contracting Parties may denounce this convention by a notification addressed to the Government of the Republic of Poland, which shall at once inform the Government of each of the High Contracting Parties. (2) Denunciation shall take effect six months after the notification of denunciation, and shall operate only as regards the party which shall have proceeded to denunciation."

The term "denunciation" as used throughout this comment does not mean repudiation of an international commitment, but merely unilateral withdrawal from a treaty in accordance with its own provisions. The word "termination" usually connotes withdrawal of one party from a bilateral treaty. See note 38 infra and accompanying text.

4 The note to the Polish Government dated May 14, 1966, on the withdrawal of the denunciation is reprinted in 32 J. AIR L. & COM. 248 (1966), 54 DEP'T STATE BULL. 1033 (1966). See also Dep't of State. Press Release No. 110, May 13, 1966; Dep't of State Letter in 32 J. AIR L. & COM. 243-47 (1966).

5 The framework for an "interim arrangement" among carriers is set forth in Dep't of State, Press Release No. 110. May 13, 1966, and in Dep't of State document enttiled "United States Government Action Concerning the Warsaw Convention," May 5, 1966, both reprinted in 32 J. AIR L. & COM. 243-47 (1960).

See notes 20-30 infra and accompanying text.

7

Despite the broad powers already granted to the President to conduct this country's foreign relations, and the increasingly delicate interdependence of foreign and domestic affairs, serious constitutional questions are raised by the procedures through which the new arrangement was created. May the President now cancel or revise international obligations affecting private rights without legislative concurrence? To what extent is the President, acting alone, best suited to determine the character and binding effect of these obligations? Beginning with the events preceding the carrier liability agreement, this comment examines the legal bases for independent executive authority to terminate or modify treaties, and concludes that the law requires a joint effort between the executive and legislative branches." The Warsaw Convention changes were attained without this cooperation, and therefore indicate a disturbing shift in the constitutional balance of powers.

I. THE WARSAW CONVENTION: PAST AND PRESENT

The Warsaw Convention is perhaps the most universally accepted commercial treaty ever framed. It has over ninety adherents who account for ninety-nine percent of the total revenue from international air services,1o and is considered by many to be "the only widespread substantive achievement in the unification of private law by international agreement." 11 But although it represents "the core of in

7 These powers in the words of President Truman, "would have made Caesar or Genghis Khan or Napoleon bite his nails with envy." RoSSITER, THE AMERICAN PRESIDENCY 30 (1960). Explains Hirschleld. The Powers of the Contemporary Presidency, 14 PARLIAMENTARY AFFAIRS 353 (1961): "In general terms the Presidency at the beginning of the 1960's is easily described: It is the focus of both the American governmental system and the free world coalition, an office of great authority and commensurate responsibility. Resting firmly on the twin supports of democratic election and the necessities of a critical era, it is now a permanently strong office, an institutionalized version of Lincoln, Wilson, Roosevelt, and Truman. And like the regimes from which it stems, the outstanding feature of the executive office today is power."

8 The distinction which Mr. Justice Sutherland attempted to draw between government's roles in respect to "foreign or external affairs and those in respect of domestic or internal affairs,' United States v. Curtiss-Wright Export Corp., 299 U.S. 304. 315 (1936), has since undergone almost daily obliteration. Not only has the United States committed vast resources and manpower to furthering its relations abroad, but international complications have to a great extent shaped the policies pursued at home. "No one familiar with the New Orleans Mafia riots, the troubles of foreign corporations seeking state licenses, or more recently, Birmingham and segregation on Route 40, can doubt the impact of state conduct on American foreign relations." Howard, Constitutional Limitation and American Foreign Policy, in ESSAYS ON THE AMERICAN CONSTITUTION 159, at 164 (Dietze ed. 1964).

Beyond the scope of this comment is the continuing controversy whether the treatymaking clause has been made obsolete by another device, the "executive agreement," which may be concluded by the President's independent powers or with authority from Congress. Power in the Chief Executive to bind the United States to such agreements was the subject of much debate during the Bricker Amendment controversy in the mid-1950s. See Bricker & Webb, Treaty Law vs. Domestic Constitutional Law, 29 Notre Dame Law 529 (1954); Perlman, On Amending the Treaty Power, 52 Colum L. Rev. 825 (1952). As to the subject matter presently considered exclusively reserved for the treaty power and not the executive agreement, see BYRD, TREATIES AND EXECUTIVE AGREEMENTS IN THE UNITED STATES 132-35 (1960). The question of whether the treaty mechanism has become a constitutional anachronism is effectively debated by McDougal & Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy, 54 YALE L.J. 181 (1945) and Borchard, Treaties and Executive Agreements-A Reply, 54 YALE L.J. 616 (1945). The fact that countless vital obligations between the United States and foreign powers today exist in the form of ratified treaties preserves the justification for the present inquiry into the requisite authority to amend or terminate treaty obligations.

10 Reiber, Ratification of the Hague Protocol; Its Relation to the Uniform International Air Carrier Liability Law Achieved by the Warsaw Convention, 23 J. AIR L. & COM. 272, 279 (1956). Warsaw Convention adherents as of June 6, 1966, are listed in 3 Av. L. REP. 27,053 (1966).

11 Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 HARV. L. REV. 497, 513 (1967).

32-770-78-14