Yet even if we assume that normalization would legally constitute American abrogation of the treaty, I do not believe that legislative approval would be required. The treaty itself simply provides for abrogation, nor was such approval made a condition of the Senate's consent to the treaty. There is also no consistently observed custom that compels the President to obtain such approval. Although history reveals both cases in which such approval was obtained and dicta endorsing this practice, there have been many other instances in which the President has acted alone, especially in modern experience, and this action has been accepted as within his authority. The fact that the President has sometimes terminated treaties in collaboration with the Congress does not negate his power to act independently in this respect.

One can well understand the policy reasons that led to the requirement that the advice and consent of the Senate be obtained prior to binding the United States to treaty obligations. [One can also understand why the decision to release the country from such entanglements would not require similar approval. The President's appointment and removal of Cabinet officials provides an analogous example.] Consent of the Senate is necessary for their appointment; it is not required for termination of employment.

Thus, although the President's power to abrogate treaties without legislative participation is not as free from doubt as Prof. Andreas Lowenfeld (letter May 28) suggests, I agree with his conclusion. JEROME ALAN COHEN,

Director, East Asian Legal Studies,
Harvard Law School.

[From the New York Times, June 27, 1978]

THE TREATY NULLIFIERS

To the Editor: Prof. Andreas Lowenfeld's reply (May 28) to Professor Cohen's Op-Ed piece on the normalization of relations with the People's Republic of China (May 21) raised some interesting points with regard to which branch of our Government would assume the responsibility for abrogating the 1954 Mutual Defense Treaty with Taiwan.

Professor Lowenfeld is absolutely correct in asserting that the Constitution is silent on the termination of treaties. A closer look at our national experience reveals, however, that when the occasion arose in the past-the termination of the two treaties of 1778 with Francethe Congress and not the President assumed the task.

On July 7, 1778, the Senate and the House of Representatives declared the Franco-American treaties void. Strangely enough, John Adams did not for a moment take the view that withdrawal from a treaty was an executive act. Who knows? We all might learn something from our earlier Presidents.

JOSEPH M. SIRACUSA,

Sr. Lecturer, American Diplomatic History,

University of Queensland, Australia.

[From the Congressional Record, Oct. 20, 1977]

CONGRESSIONAL RESEARCH SERVICE

Washington, D.C., September 30, 1977.

To: Honorable Paul Simon, Attention: David Solomon.
From: American Law Division.

Subject: Who is empowered to terminate a treaty?

Reference is made to your inquiry of September 1, 1977, requesting information on the above matter. Specifically, you ask whether the Mutual Defense Treaty with the Republic of China, December 2, 1954, TIAS 3178, 6 UST 433 (1955), can be terminated by the President or whether joint presidential-congressional action is necessary:

I

Your inquiry touches on a long-standing and largely unresolved political legal controversy. "The procedure by which, from the viewpoint of national law and practice, treaties may be terminated involves questions to be resolved in accordance with constitutional and related procedures in each country. The United States Constitution is silent with respect to the power to terminate treaties. The matter was not discussed in the debates of the Constitutional Convention in Philadelphia." Whiteman, 14 Digest of International Law 461 (1970). Briefly, "while the Constitution tells us who can make treaties-the President "shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties"_"it does not say who can unmake them." Henkin, Foreign Affairs and the Constitution 168 (1972). As a consequence of the Constitution's silence in this regard, "there has been some confusion of doctrine upon the point and a variety in practice." Willoughby, 1 Constitutional Law of the United States 323 (1929).

The doctrinal confusion stems in large measure from various seemingly inconsistent or opposing concepts. As explained by one noted commentator:

"From the point of view of American law. . ., the Constitution does not limit the authority to terminate treaties to the possessors of the treatymaking power, i.e., the President and Senate.... Article VI vests treaties with the same domestic status as federal statutes, which means that the courts must disregard treaty provisions insofar as they are inconsistent with later acts of Congress. A federal statute inconsistent with the terms of an existing treaty consequently operates to deprive such treaty of its force as law within this country. Under Article VI, the Congress can, in effect, terminate a treaty, so far as its effect in our domestic law is concerned. Such Congressional termination, the Supreme Court has said, "must control in our courts as the later expression of our municipal law, even though it conflicted with the provision of the treaty and the international obligation remained unaffected.

"At the same time, it is clear that, in such a case, the international obligation does remain unaffected.... The repeal of a treaty by a later

statute is only a matter of American law. Regardless of the abrogation of the municipal effect of a treaty by an overriding statute, the treaty is not abrogated in the international sense. Schwartz, II The Powers of Government 130 (1963).

...

In addition to effectively terminating a treaty by legislatively negativing its municipal consequences, the Congress may effect a termination in other ways, such as by a declaration of war, see Bas v. Tingy, 4 Dail. 37 (1800); Wright, The Control of American Foreign Relations 256 (1922); cf. Whiteman, 14 Digest of International Law at § 41, the Senate's withholding of its advice and consent to a treaty, and, in the case of non self-executing treaties, failing to approve necessary implementing legislation.

All of the foregoing is true notwithstanding that "In so far as a treaty is regarded as an international compact, it seems almost too clear for argument that Congress [cf, the Senate], not having been made by the Constitution a participant in the treaty-making power, has no constitutional authority to exercise that power either affirmatively or negatively, that is by creating or destroying international agreements". Willoughly, 1 Constitutional Law of the United States at § 324. Moreover, "It may be noted that Congress has no means whereby it may itself give a notice of termination of a treaty to the foreign government concerned, for, under the Constitution, Congress has no power to communicate directly with foreign Powers". Ibid. "But it is well for the Senate and for Congress also to remember that it does not lie in our hands alone to give this notice to a foreign Government. We can not give the notice". Senator Lodge, Chairman on Foreign Relations, 48 Cong. Rec. 480 (1911)

To the president is ascribed the role of the "organ of foreign relations". The Supreme Court of the United States described "the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations". United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). As such, the President has the exclusive power to conduct negotiations on behalf of the United States. "He alone negotiates. Into the field of negotiations, the Senate cannot intrude; and Congress is powerless to invade it." 299 U.S. at 319. Although the Congress can effectively terminate a treaty's domestic effect, the power to terminate the outstanding international obligation seems to reside with the President since he alone is able to communicate foreign powers. "The only organ of this Government recognized by foreign Governments is the Executive-the President of the United States. If he does give the notice, it will be given". Senator Lodge, 48 Cong. Rec. at 480.

Whether the President alone can terminate a treaty's domestic effect remains an open question. See Van Derke Weyde v. Ocean Co., 297 U.S. 114, 117 (1936). As a practical matter, however, the President has this power since the courts have, from the beginning, held that they are conclusively bound by executive determination with regard to whether a treaty is still in effect. See Terlinden vs. Ames, 184 U.S. 270, 290, (1902); Charlton v. Kelly, 229 U.S. 477, 476 (1913). The same result may apply to a congressional termination, particularly if it is viewed as a declaration of war. See Bas v. Tingy, 4 Dall. 37 (1800).

The actual practice whereby treaties have been terminated demonstrates considerable variation. "In some cases treaties have been terminated by the President, in accordance with their terms pursuant to action by the Congress. In other cases action was taken by the President pursuant to resolutions of the Senate alone. In still others the initiative was taken by the President, in some cases independently, and in others his action was later notified to one or both Houses of Congress and approved by both Houses. No settled rule or procedure has been followed. Whiteman, 14 Digest of International Law at § 38 (Emphasis added.) Hackworth quotes the Solicitor of the State Department as saying "that the choice of method would seem to depend either upon the importance of the international question or upon the preference of the Executive." V Digest of International Law § 509 (1927). Indeed, insofar as general conclusions on this subject are concerned, theory and practice unequivocally support the view that the termination of a treaty being a political act, the courts do not terminate treaties. When required to determine whether a treaty still exists for purposes of resolving some ancillary domestic problem (e.g. extradition), the courts are guided by the actions or inactions of the political branches relative thereto. Charlton v. Kelly, 229 U.S. at 474.

II

Article X of the Mutual Defense Treaty with the Republic of China (Taiwan) provides that it is a treaty of indefinite duration; however each Party may terminate it one year after notice has been given to the other Party.

With regard to the general subject of the termination of treaties, the Assistant Legal Adviser, Department of State, has written as follows:

It is customary for provisions regarding duration to prescribe that the treaty shall remain in force definitely for a specified period, such as one year, five years, ten years, or twenty years, and shall continue in force thereafter indefinitely, subject to the right of either party to terminate it by giving notice for that purpose to the other party, the notice to take effect at the end of a specified period, say six months or one year, after the date of such notice. There is no rule of international law governing the provisions regarding duration in a treaty. The countries entering into the treaty may incorporate in the treaty such provision on that matter as they may agree to be desirable.

*

If it should be agreed by the parties to a bilateral treaty that certain portions thereof shall be terminated or abrogated and that the remainder of the treaty shall remain in force, there is no rule of international law to preclude them from doing this. This would be accomplished by entering into an agreement having the character of a supplementary treaty. Upon entry into force of the latter treaty, the earlier treaty would be effectively modified in accordance with the agreed terms.

Some treaties do not contain provisions establishing a procedure by which either party may terminate it by unilateral action. In other words, some treaties do not contain provisions relating to termination or abrogation. It is considered that, in such a case, the treaty can be terminated or abrogated only by mutual consent.

It is to be understood, of course, that modification or amendment of a treaty also requires mutual consent of the two parties.

There is no rule of international law to prevent a party to a treaty from relinquishing or waiving certain rights accorded to it by such treaty. In general, all such matters are subject to the mutual understanding of the two parties to the treaty. 14 Digest of International Law at § 34.

The conclusion of a new treaty (that is, the entering into a new treaty) expressly or by necessary implication terminating, either in whole or in part, the provisions of a treaty of prior date is a procedure which appears to have universal acceptance.

It appears that there is general acceptance in this country of the principle that an act of Congress is to be respected and enforced regardless of treaty provisions on the same subject which may have entered into force prior to the date on which the act became effective. ... [citing an opinion of Attorney General Knox, dated October 10, 1901 (Official Opinions of the Attorney General, volume 23, page 347)]. It has been held by the Supreme Court of the United States that Congress, by legislation, can abrogate a treaty between the country and another country, such abrogation being effective municipally-that is, in so far as the people and authorities of the United States are concerned-although the treaty may continue binding internationally-Whitney v. Robertson (1888), 124 U.S. 190, 194. Ibid.

"International law", it has been asserted, "recognizes the powerthough not the right-to break a treaty and abide by the international consequences." Henkin, Foreign Affairs and the Constitution at 168. That the government has the constitutional power to terminate treaties on behalf of the United States is clear. See The Chinese Exclusion Case, 130 U.S. 581, 602 (1889). The power which inheres in sovereignty is not negated by the Supremacy Clause or any other clause of the Constitution. Ibid. Although the other party to a broken agreement has a "legitimate grievance", its avenue of redress is "by the negotiation of a new agreement, or failing peaceful modes of settlement, by more drastic means, should the grievance be deemed a sufficiently serious one." Willoughby, 1 Constitutional Law of the United States at § 324. Cf. "A violation of a treaty obligation, as of any other obligation, may give rise to a right in the other party to take non-forcible reprisals and these reprisals may properly relate to the defaulting party's rights under the treaty." U.N. International Law Commission, quoted at Whiteman, 14 Digest of International Law at § 39. "The question whether our government is justified in disregarding its engagements with another nation is not one for the determination of the courts. . . . This court is not a censor of the morals of other departments of the government. . . ." The Chinese Exclusion Case, 130 U.S. at 602-603

As indicated, the power to terminate a treaty has been exercised, at one time or other, by the President, the Congress, and by joint action of the President and the Congress or Senate The "actual practice" has been summarized as follows:

1. Executive action pursuant to prior authorization or direction by the Congress.

2. Executive action pursuant to prior authorization or direction by the Senate.

3. Executive action without prior specific authorization or direction, but with subsequent approval, by the Congress.

4. Executive action without prior specific authorization or direction, but with subsequent approval by the Senate.

5. Executive action without specific prior authorization or direction and without subsequent approval by either the Congress or the Senate. 14 Digest of International Law at § 38.