[From the New York Times, Oct. 11, 1977) ABROGATING TREATIES (By Barry M. Goldwater)1 WASHINGTON—In the debate over our China policy, almost no serious attention has been given to whether any of the conditions demanded by Communist China for normalized relations would require Congressional approval. For example, on Aug. 15, Senator Edward M. Kennedy called on the Carter Administration to recognize Red China and consider our defense treaty with the Republic of China on Taiwan as having lapsed. That the President could so terminate the treaty was assumed. The defense treaty involved provides for revocation upon one year's notice by one party to the other. It is my contention the President cannot give that notice, let alone abrogate the treaty without notice, before obaining legislative approval. If President Carter should seek Congressional approval, he will not get it. Public opinion against capitulating to Peking's terms is so strongly reflected in Congress that no President could obtain the necessary consent of two-thirds of the Senate or a majority of both Houses. It is true the Constitution does not spell out how a treaty is to be terminated. But the clear intent of the Constitutional text, supported by the overwhelming weight of historical practice, proves a treaty cannot be revoked without some role for Congress. Virtually nothing was said at the Constitutional Convention about the termination of treaties, but it is well known the Framers were concerned with restoring dependability to our treaties and were anxious to gain the respect and confidence of foreign nations. It would hardly instill confidence in other nations if a single officer could abrogate a treaty at will without any check from another department of Government. And, it is difficult to believe that the Framers, who established the Presidency and Senate as checks upon each other in completing a treaty, did not intend a check in the converse situtaion, the revoking of a treaty. The Framers may well have asumed the President would not attempt to annul a treaty independently since he is under a constitutional mandate to "take Care that the Laws be faithfully executed. . . ." As the Constitution specifies that a treaty is part of "the supreme law of the Land... the Framers undoubtedly expected Presidents to enforce and carry out treaties in good faith. The general rule follows: As the President alone cannot repeal a statute, so he alone cannot repeal a treaty. This was the belief of 1 Barry M. Goldwater is the Republican Senator from Arizona. James Madison who foresaw "the same authority, precisely, being exercised in annulling as in making a treaty." It was also the belief of Thomas Jefferson, who in his manual of rules and practices of the Senate, wrote: "Treaties being declared, equally with the laws of the United States, to be the supreme law of the land, it is understood that an act of the legislature alone can declare them infringed and rescinded." Historical practice supports Madison and Jefferson. Far more often than not, the Senate, or the whole Congress, has exercised power to approve the termination of treaties, and Presidents have usually sought legislative approval before giving notice of withdrawing from any treaty. There are exceptions, but none support an untrammeled power of the President to annul any treaty he wishes. In particular, the United States has never repudiated a defense treaty with a friendly nation. Nor has any President alone terminated a treaty that has not been breached by the other party, been placed in conflict with a subsequent law or treaty, or become impossible of performance due to circumstances not of his making. None of these exceptions apply to our treaty relations with the Republic of China. Even if one or two examples to the contrary can be dredged up, they cannot make legal what the Constitution makes invalid. Nor does it follow that, should the President take the improper step of de-recognizing the Republic of China, prior treaties would lapse. In a recent study, Stanford law Prof. Victor Li concluded: "International law does not require that treaties affecting only the territory controlled by the Taiwan authorities must lapse. On the contrary, there is strong support for protecting ongoing relations. . . .” Since the President alone could not abrogate treaties with the government on Taiwan, he must consider them as still being in effect. Any President who would violate the Constitution on such a major matter as breaking faith with the nation's treaty obligations would run the risk of impeachment. [From the New York Times, May 21, 1978] (By Jerome Alan Cohen)1 CAMBRIDGE, Mass.-Zbigniew Brzezinski, President Carter's national security adviser, on his trip to Peking will be probing China's attitude toward establishing formal diplomatic relations. In the United States there is confusion about the legal implications of normalization. Three misconceptions cloud analysis: 1. Normalization will mean American acceptance of Peking's sovereignty over Taiwan. If so, the United States would have no legal basis for continuing to defend Taiwan. Yet, even though the 1943 Cairo Declaration committed America to restore Taiwan to China after World War II, Washington has never 1 Jerome Alan Cohen is associate dean and director of East Asian legal studies at Harvard Law School, and co-author, with Joan Lebold Cohen, of "China Today." formally approved restoration. Between 1945 and 1950, we treated Taiwan as part of China, but we anticipated that the island's de facto status would be confirmed de jure by the forthcoming peace treaties. Once the Korean conflict occurred, however, Washington announced that Taiwan's status was undetermined. This implied the possibility of separating the island from China, and the peace treaties were constructed to confirm Japan's renunciation of Taiwan without confirming China's title. At Shanghai in 1972, America stated that it "does not challenge" the claim of all Chinese on either side of the Taiwan Strait that Taiwan is a part of China. Although American officials argued that this did not represent another shift in position, it did appear to eliminate the specter that Washington might permanently separate the island from China by failing to fulfill the Cairo Declaration's pledge. Nevertheless, this terminology did not formally confirm Taiwan's reincorporation into China. It simply renewed the hope that the pledge would eventually be fulfilled. Thus, if in recognizing Peking as the Government of China, Washington does nothing further to clarify Taiwan's status, it will not have undermined its legal basis for defending the island. 2. Normalization need not terminate our 1954 treaty to defend Taiwan. It has been argued that the treaty, made with the Republic of China, can survive recognition of the People's Republic of China as the new Government of China, since its terms are limited to territory controlled by the Republic of China. This would vastly complicate the normalization process. The defense treaty, however, was concluded with the Republic of China as the Government of the state of China. Once we meet Peking's first condition for normalization by formally acknowledging the People's Republic rather than the Republic of China as the Government of that state, it will be for Peking, as well as Washington, to determine whether the treaty should be maintained, even though the treaty applies to only a specific area. Termination of the treaty is the second of Peking's conditions for normalization. Peking has termed the treaty void even since its negotiation. Moreover, it would make no sense for Peking to succeed to a treaty to defend against an attack by itself, and Peking's leaders have indicated that the treaty will lapse as a result of normalization. No state that has recognized the People's Republic has managed to maintain previously concluded agreements with the Republic of China. We will prove no exception. The demise of the defense treaty, however, will not prevent the United States from unilaterally guaranteeing Taiwan's defense. 3. Termination of the defense treaty will require formal consent of the Senate or the Congress. An argument has been made that, since normalization will result in termination of the defense treaty, this will be tantamount to abrogation of the treaty by America and that under American constitutional law the President can abrogate a treaty only with the consent of the Senate or the Congress. This mistakenly assumes that normalization will amount to abrogation by Washington. Actually normalization is distinct from abroga tion, even though, by establishing diplomatic relations with the new Government of China, the President will make it possible for that Government to terminate the treaty. It is not the United States that will be terminating the treaty but China. The President will simply be exercising his traditionally unfettered power to recognize and establish diplomatic relations with the new government of a state. Therefore, no constitutional issue will arise, although the President will plainly be wise to secure Congressional cooperation. [From the New York Times, May 28, 1978] ON THE TERMINATION OF A U.S. TREATY To the Editor: Prof. Jerome Alan Cohen may well be right in his prescriptions for normalizing relations with the People's Republic of China (Op-Ed May 21). He may even be right in his judgment that the gains from full diplomatic relations with Peking would outweigh the losses-direct and indirect-from giving up the 1954 Mutual Defense Treaty with the Republic of China. But your readers should not be left with the impression that termination of a treaty, if undertaken by the United States, is under the Constitution an act requiring concurrence of the President and the Senate (or the Congress). The Constitution itself does not contain any provision on the subject of termination of treaties; however, successive Presidents have-I think without exception-taken the view that withdrawal from, as contrasted with entering into a treaty is an executive act, committed by the Constitution to the Presidency as part of the conduct of foreign affairs. Some doubt has been expressed on this issue in the past, and of course in the age beyond the "imperial Presidency" all precedents of this kind are open to reexamination. But where express provision is made in a treaty for termination on a specified period of notice (one year in the case of the 1954 Defense Treaty), so that termination is the exercise of a right, [it would be a major and I believe unsound-reversal of constitutional practice] to require formal consent by the Senate to a notice of termination of a treaty. To those who are not convinced by two centuries of history, I suggest trying to deduce from the Constitution by what vote-one-third, twothirds, simple majority, concurrence of both Houses etc.-the legislative branch might participate in the treaty-unmaking process. I suggest the answer is none of the above. ANDREAS F. LOWENFELD, [From the New York Times, June 1, 1978] TAIWAN: WHAT IT TAKES TO ABROGATE A TREATY To the Editor: Jerome Cohen's argument (Op-Ed May 21) that the President can terminate the defense treaty with the Republic of China on Taiwan by the exercise of his diplomatic recognition power is unfounded in law or precedent. First, the United States has never abrogated a defense treaty with a friendly nation. Second, the President can no more break a treaty than he can a statute. It is true the President possesses the power to recognize new governments. But any implied power he may possess incident to recognition does not give him power to repeal another express provision of the Constitution. Article II direct the President to faithfully execute the laws, of which treaties are a part. Thus, the recognition power in no way relates to Presidential voiding of formal treaties. Moreover, a Presidential decision to annul a treaty or allow a treaty to lapse is a decision of the highest national importance. The Framers created a system of checks and balances especially to assure that there would be joint deliberation within the Government on important matters of this kind. The added deliberation called for by requiring legislative participation offers security to the people that an action of major consequences will not be taken lightly or without an opportunity for adequate consideration. To argue, as Cohen does, that the President is unchecked by Congress or the Senate in the matter of breaking our formal treaties runs counter to the basic scheme of the Constitution. If we should switch embassies from Taipei to Peking, no rule of domestic or international law would require the President to consider treaties with the still-existing authorities on Taiwan as having lapsed. Rather, this would be a political decision; and since the Constitution demands a legislative role in such a decision, a Presidential act of derecognition could not annul those treaties absent approval of Congress or two-third of the Senate. It should be noted that the defense treaty with Taiwan enjoys a unique status under our law. It was concluded after the Communist insurrection and removal of the Nationalist authorities to Taiwan. For the President to consider the treaty as having terminated, after a quarter of a century's adherence to it, would be a new development of his own making and not an immediate result of the revolution. The recognition power is inapplicable to this situation, if it ever did apply. BARRY GOLDWATER, United States Senator from Arizona. [From the New York Times, June 12, 1978] THE PRESIDENT'S POWER TO ABROGATE A TREATY To the Editor: Senator Barry Goldwater (letter June 1) assumes that if the United States Republic of China defense treaty lapses as a consequence of American normalization of diplomatic relations with the People's Republic of China, it necessarily will constitute "abrogation" of the treaty by the United States. I have stated (Op-Ed May 21) why, if the treaty lapses as a result of Peking's refusal to accede to it, no question of American abrogation will arise; there will therefore be no need to confront the constitutional question whether the President can abrogate a treaty without the approval of the Senate or the Congress. |