a revolution of government in a foreign country, whether the Hence, in the instance stated, treaties can only be made by (Letters of Pacificus and Helvidius on the Proclamation of Neutrality of 1793, Gideon, Washington, 1845, p. A Presidential notice of termination pursuant to the terms of a notice provision does not constitute an abrogation or repeal of the law of the land, but rather is a termination in the manner prescribed by the terms of the treaty, as approved by the Senate. The President's constitutional power to give a notice of termination provided for by the terms of a treaty derives from the President's authority and responsibility as chief executive to conduct the nation's foreign affairs and execute the laws. When a treaty takes effect as an international agreement and law of the land, the President must see that its terms are carried out. The Senate's role in giving advice and consent to the making of the treaty is fulfilled when the treaty is made; thereafter execution and performance of its terms, including terms relating to its duration or termination, are delegated by the Constitution to the nation's chief executive. Where the treaty provides for its termination by notice, the President, as the officer charged by the Constitution with the authority and responsibility for the conduct of the nation's foreign affairs and execution of the treaty, has the power to give such notice when he deems termination to be necessary or desirable for the best interests of the United States. COURT DECISIONS Three cases in which the Supreme Court has dealt with treaty terminations have reflected the principles that legislation may supersede the domestic legal effect of treaties and that whether a treaty should be deemed to be in effect for international law and foreign relations purposes generally will be determined by the position of the Executive. Thus, in Charlton v. Kelly, 229 U.S. 447 (1913), involving the question of whether non-performance by Italy of an extradition treaty justified refusal of performance by the United States, the Supreme Court held that it did not because: the political branch of the Government recognizes the treaty obligation as still existing . . . The executive department having thus elected to waive any right to free itself from the obligation to deliver up its own citizens, it is the plain duty of this court to recognize the obligation to surrender the appellant... (at p. 474-6) In Terlinden v. Ames, 184 U.S. 270 (1902), also involving the continued validity of an extradition treaty the Supreme Court stated “... we think that on the question whether this treaty has ever been terminated, governmental action in respect to it must be regarded as of controlling importance;" and it refused to review the position of the German Empire that the treaty was still in force "especially as the Executive Department of our Government has accepted these conclusions and proceeded accordingly." (at p. 285-8) In Van Der Weyde v. Ocean Transport Co. Ltd., 297 U.S. 114 (1936), in which the Supreme Court held that a treaty provision had properly been abrogated as provided by statute, it declined to pass on the President's power to terminate a treaty without Congressional authorization: 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 government 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 new law. It is not possible to say that his conclusion as to Articles XII and XIV was arbitrary or inadmissible. Having determined that their termination was necessary, the President through the Secretary of State took appropriate steps to effect it. (at pp. 117–118) CONCLUSION Accordingly, President Carter has authority to give the notice of termination provided for in Article X of the US-ROC Mutual Defense Treaty. APPENDIX TO MEMORANDUM FOR THE SECRETARY OF STATE HISTORY OF TREATY TERMINATIONS BY THE UNITED STATES THE EARLY PRACTICE 1798-Termination by statute The first treaties terminated by the United States were three U.S.French treaties of 1778, and these were terminated by a 1798 Act of Congress, whose validity was upheld by the U.S. Court of Claims in 1887 in the case of Hooper v. United States, 22 Ct. Cl. 404 (1887). The Hooper case held that the treaties were terminated under both U.S. domestic law and under international law. But with respect to the termination of the treaties as a matter of international law, the Court did not rely entirely upon the Act of 1798, but rather gave great weight to the actions of the Executive Branch. The Court held that the 1798 Act was "binding upon all subordinate agents of the nation, including its courts, but not necessarily final as the annulment of an existing contract between two sovereign powers." As for international validity, the Court said: We fail to find that the Executive did, after the passage of the annulling statute, recognize the existing force of the treaties as an international obligation, whatever value may have been accorded to the claim of France that one party was without power to abrogate them. (pp. 416, 423.) For the Court of Claims, the Congress could terminate a treaty by statute for domestic law purposes, but apparently only the Executive Branch could terminate a treaty under international law. 1815—Madison Agreement to Termination of 1782 Treaty with the Netherlands The first Presidential action that appeared to terminate a treaty occurred in 1815 during the Administration of President James Madison. The case is not clear-cut, but scholars have viewed it as the first Presidential termination of a treaty. There was no notice provision involved. After the Napoleonic wars in Europe, discussions were held between the United States and the Netherlands concerning the legal status of the 1782 commercial treaty between the two countries. (10 Bevans 6; Foreign Relations of the United States, 1873, Part 2, pp. 720-727.) In 1815, the Dutch Minister in Washington gave a note to Secretary of State James Monroe proposing a treaty of amity and commerce and proposing as a basis for the treaty the text of the 1782 treaty. The 1782 treaty had not been formally terminated by the parties, and a question remained whether it was still in force. On April 15, 1815, Secretary Monroe replied, in part : The treaties between the United States and some of the powers of Europe having been annuled by causes proceeding from the state of Europe for some time past, and other treaties having expired, the United States have now to form their system of commercial intercourse with every power, as it were, at the same time. ... You have proposed to form a new treaty. To this the President has readily agreed. (Ibid., p. 722.) It was also suggested by the Netherlands that the 1782 treaty could be renewed. To this Secretary Monroe responded that "It is presumed that the former treaty cannot be revived without being again ratified and exchanged in the form that is usual in such cases, and in the manner prescribed by our Constitution." (Ibid., and Moore, Digest of International Law, Vol. V, p. 345.) A few years later Secretary of State John Quincy Adams argued that the 1782 treaty nevertheless remained in force. He was then espousing certain claims of U.S. citizens against the Netherlands on the basis of the 1782 treaty. The Netherlands denied the continuing force and validity of the 1782 treaty, and the United States agreed not to press the matter further. The claims were presented for payment by France. The first negotiations in the 1820's between the United States and the Netherlands for a new commercial treaty failed, and it was not until 1839 that a new commercial treaty was agreed upon by the parties. It was followed by still another such treaty in 1852. (10 Bevans 22, 25.) Several years later the issue of whether the 1782 treaty was still in force was raised once again, despite the 1839 and 1852 treaties, and on this occasion the Netherlands asserted that the 1782 treaty was still valid. In 1873 Secretary of State Hamilton Fish successfully argued that it had been agreed by the Netherlands government and President Madison in 1815 to regard the treaty as terminated. Secretary Fish cited at length the correspondence between Monroe and the Dutch Minister, and concluded: In the opinion of the President, this correspondence between Mr. Monroe and [the Dutch Minister], taken in connection with the subsequent action of the Dutch government in denying that the treaty had any valid operative force during the long period of eighteen years when its existence would have been of advantage to the United States, and also in connection with the acquiescence of the Government of the United States in that action, and its submission of the rejected claims for compensation from France, places beyond doubt the fact that the treaty of 1782, for a period of over fifty years, has been mutually regarded as no longer in force. (1873 Foreign Relations, op.cit., p. 724.) While the case did not entail Presidential termination by notice pursuant to a notice provision, it was an apparent example of treaty termination through executive action. There was a difficult question regarding the status of the 1782 treaty and the effect of the Napoleonic wars upon its continuing validity. President Madison might have maintained, as his successor did, that the treaty remained in full force and effect. Instead he agreed with the government of the Netherlands "to form a new treaty." On behalf of the United States he agreed that the 1782 treaty was no longer in force, and he did so without benefit of advice and consent from the Senate or approval of the Congress. Professor McDougal, who wrote in 1945 that treaty termination "may be effected by executive denunciation, with or without prior Congressional authorization," lists this 1815 action by President Madison as the first example of such executive denunciation. ("Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy," 54 Yale Law Journal (March, 1945), No. 2, p. 336.) It should be noted further that there had been no violation of the treaty by the Netherlands, and there was no superseding treaty (until 1839) or statute. Nor was impossibility of performance a relevant factor in 1815. 1846-Polk Notice of Termination of 1827 Treaty The precise issue of termination pursuant to a notice provision was not debated in the United States until 1846. That year President Polk gave notice of termination of the 1827 convention with Great Britain for the joint occupation of the Oregon territory. Congress enacted a joint resolution authorizing the President to give the one year notice required under the treaty. This was the first case in the nation's history of termination pursuant to a notice provision. President Polk himself recommended to the Congress in 1845 "that provision be made by law for giving" the notice. But it is not at all clear that the President believed such authorization to be legally necessary, and the Congress was itself unsure. There were several expressions of opinion that the President could give the notice without Congressional approval. James Buchanan, who in March, 1845 became Polk's Secretary of State and was himself to become President in 1856, said: It could not... be expected that the President would give the proposed notice on his own responsibility alone. On the question of his abstract power to do so, I express no opinion. (Congressional Globe, Vol. 13, 28th Cong., 1st Sess., Appendix, p. 345, March 12, 1844.) In 1845, before the inauguration of President Polk, a bill to organize a territorial government over the Oregon territory was debated in the House. The Chairman of the Committee on Territories said that when his Committee reported the bill, which had no provision for notice to terminate the 1827 convention, "they were leaving the executive to act when and how it pleased with regard to giving the notice." He declared that the Committee "did not conceive it a proper question, nor did he think it a proper question now in this House to say anything at all whether this notice should be given. . . .” (Ibid., Vol. XIV, 28th Cong., 2d Sess., pp. 202, 222, Jan. 27, 30, 1845.) ... On January 5, 1846, the House Committee on Foreign Affairs reported a joint resolution that "The President cause notice to be given..." (Ibid., Vol. XV, 29th Cong., 1st Sess., p. 138.) On the same day, three members of that Committee submitted a minority report recommending that the question of giving notice was "not a matter for the decision of Congress." The report indicated that the question of notice of termination was for the President alone, or for the President and the Senate together. The report said, in part: The act of giving the notice is a high discretionary power, created not by the Constitution, but by the President in negotiating, and by the Senate in ratifying, a treaty with such a provision. . . . The House may be, and often is, required to exert appropriate legislative powers in the execution of treaties; but this notice is not one of that class. It has no property of a legislative power. It is executive in its essence, or it is, in our system, of the nature of, and incident to, the treatymaking power. It is a high discretion, pertaining not to our internal affairs, but to our relations with a foreign Government, created by this treaty-making power itself, resting with it, and depending upon its will alone for the exercise. . . . If the notice be expedient and proper, it has become so without its [the House's] act. It is rendered so by the refusal of the President to arbitrate the controversy, and by his closing further negotiation. These were his own acts, about which this House had no constitutional right to interfere. The President asked not its advice or interposition in them, whether they be proper or not. He alone was competent to their performance, and he alone ought to be held responsible; ... it is his business, not that of the House. In the present state of |