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

The instances in which the Congress, by Joint Resolutions, has authorized or directed the President to terminate treaties "have been considerable." Willoughby, 1 Constitutional Law of the United States at § 324:

"In some instances the Congressional action for the denunciation of a treaty has empowered the President "at his discretion" to give the necessary notice to the foreign Governments concerned. In other instances, he has been directed, that is, charged with the duty, of giving the notice. For example the Joint Resolution of Congress of January 18, 1865, relative to the Canadian Reciprocity Treaty, declared that notice of denunciation should be given, and that "the president of the United States is hereby charged with the communication of such notice." Of the same tenor was the Joint Resolution of March 4, 1883, relative to the Treaty of Washington with Great Britain. [This Resolution declared that articles of the treaty ought to be terminated at the earliest time, and that to this end, "the President be and he hereby is, directed to give notice to the government of His Britannic Majesty that the provisions of . . . the articles aforesaid will terminate and be of no force on the expiration of two years next after the time of giving such notice."] Ibid.

Similar or related expressions are contained in statutory enactments of the Congress. The Seaman's Act of March 4, 1915, 38 Stat. 1164, 1184, for example, requested and directed the President to give notice of the termination of the treaty provisions in conflct with the Act. Section 16 of that Act expressly provided that "the President be . . . requested and directed... to give notice to the several Governments, respectively, that so much as herein described of all such treaties and conventions between the United States and foreign Governments will terminate on the expiration of such periods after notices have been given as may be required in such treaties and conventions."

This method was approved in Van Der Weyde v. Ocean Co., 297 U.S. at 118, the Court noting: "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 should be noted that the Court's language does not indicate the binding character vel non of the statutory direction, but relates only to obligation on the President to distinguish between consistencies and inconsistencies in foreign treaties and the law in question. Moreover, the Court expressly stated that the question of the sufficiency of presidential power alone to terminate treaties was not before it. ". 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." 297 U.S. at 117.

The propriety of congressional action advising or directing the President to notify foreign governments of the termination of treaties between them and the United States, has not gone unchallenged. In 1879 President Hayes vetoed the Chinese Immigration Bill of that year

on the ground, inter alia, that it instructed him to abrogate certain articles of the existing treaty with China. He said: "As the power of modifying an existing treaty, whether by advising or striking out provisions, is a part of the treaty making power under the Constitution, its exercise is not competent for Congress, nor would the assent of China to this partial abrogation of the treaty make the action of Congress in thus procuring an amendment of a treaty, a competent exercise of authority under the Constitution." Hackworth, V Digest of International Law at § 509.

Similarly, in 1920, President Wilson refused to carry out section 34 of the Merchant Marine Act of that year. That section directed the President to terminate any provisions of existing treaties that restricted the right of the United States "to impose discriminating customs duties on imports entering the United States . . . and discriminatory tonnage duties. . . ." A Department of State press release of September 24, 1920, in part, stated:

"The Department of State has been informed by the President that he does not deem the direction, contained in Section 34 . . . an exercise of any constitutional power possessed by the Congress.

"Secretary Colby, commenting on the point made by the President, that Congress had exceeded its powers, called attention to the veto by President Hayes of an Act passed by Congress in 1879, . . . President Hayes declared that 'the power of making new treaties or of 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, as shown by the concurrence of two-thirds of that body."" Hackworth, V Digest of International Law at § 509.

As to the different and seemingly contradictory treatment accorded by the President to section 16 of the Seamen's Act and section 34 of the Merchant Marine Act of 1920, it has been observed:

"The situation presented by section 34 of the Merchant Marine Act of June 5, 1920 was different from that presented by the Seamen's Act. . . . The Seamen's Act was inconsistent with treaty provisions, and it was therefore necessary, or at least desirable, for the President to rectify the situation by relieving the United States of its treaty obligations and thus avoiding the odium of treaty violation. The Merchant Marine Act was not inconsistent with treaty obligations. It merely called upon the President to terminate such obligations as served as a deterrent to action by Congress of a discriminatory character as between American and foreign vessels." Hackworth, V Digest of International Law at § 509.

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

The State Department has taken the position that the principles who can execute treaties can terminate them. ". . . the power that makes the treaty can likewise revoke it; in other words, that the President, acting in conjunction with the Senate of the United States would be authorized to terminate a treaty to which the United States is a party." Hackworth, V Digest of International Law at § 509. This method has received some judicial recognition. "President and Senate may denounce the treaty and thus terminate its life.” Techt v. Hughes, 229 N.Y. 222, 243 (1920).

Willoughby gives the following example of this method of terminating a treaty:

"There has also been one occasion at least upon which the President has denounced a treaty upon the authorization of the Senate, without the cooperation of the House of Representatives being asked or had. In his annual message to Congress the President had asked for authority to give the notice of termination required by the treaty of commerce and navigation of 1826 with Denmark, and this authorization was given to him by the Senate Resolution of March 3, 1856." 1 Constitutional Law of the United States at § 324.

As a consequence of its actions in connection with the termination of the 1826 treaty with Denmark, the Senate directed the Foreign Relations Committee to study the need for congressional action in these circumstances. The Committee upheld the authority of the treatymaking power to modify or terminate an existing treaty. The report states: "The Committees are clear in the opinion that it is competent for the President and Senate, acting together, to terminate it in the manner prescribed by the eleventh article without the aid or intervention of legislation by Congress, and that when so terminated it is at an end to every intent both as a contract between the Governments and as a law of the land." Senate Report No. 97, 34th Cong., 1st Sess., p. 3. C. Executive action without prior specific authorization or direction, but with subsequent approval of the Congress

In 1911, President Taft, without congressional direction, gave notice to the Russian Government of the termination of the treaty of 1832 with that country. Thereafter, he communicated his action to the Senate, as part of the treaty-making power of the government for its approval. The Senate Foreign Relations Committee, however, reported a Joint Resolution by which the notice of termination by the President was "adopted and ratified". This Joint Resolution was passed by both Houses of Congress and was signed by the President on December 21, 1911. Hackworth, V Digest of International Law at § 509; Willoughby, 1 Constitutional Law of the United States at § 324.

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

Although all of the aforementioned authorities recognize this method and affirm its use, no examples are given. It should be noted that President Taft in terminating the 1832 treaty with Russia, discussed immediately above, sought to use this mode. Although his action was subsequently approved by joint congresional action, it must be assumed that his initial approach was based upon some precedent. During the Senate debate on that resolution, Senator Lodge, Chairman, Foreign Relations Committee, endorsed the President's use of this method, He said:

"The President has entire authority to give that notice and to ask for the approval of Congress or approval of the Senate. He takes the view, which is held by very many of the best judges, that the treaty making power is entirely able to terminate a treaty which carries with it no legislation and the President did nothing unusual in this action. 48 Cong. Rec. 455 (1911).

"The Senate and the President alone can end an existing treaty by simply agreeing to a new one, they can do it without any consultation with any other body, and certainly where no legislation is involved it seems to me that those who represented the high contracting party in the making of a treaty are capable of representing the high contracting party in its unmaking." "48 Cong. Rec. 480 (1911).

E. Executive action without specific prior authorization or direction and without subsequent approval by either the Congress or the Senate

There appears to be a difference of opinion among the commentators as to the first termination of a treaty by a President alone. Two noted writers seem inclined to give President Lincoln that distinction in connection with termination in 1864 of the Great Lakes Agreement. Schwartz, II The Power of Government at 406, note 250 Henkin, Foreign Affairs and the Constitution at 417, note 132. However, it should be noted that this action by the President was given subsequent congressional endorsement. As described by Willoughby:

"During President Lincoln's administration, Secretary of State Seward gave notice to Great Britain that the United States considered as terminated the Great Lakes Agreement of 1817. A Joint Resolution to that effect having passed the House of Representatives but having failed in the Senate, Congress proceeded to pass a Joint Resolution 'adopting and ratifying' the notice that had been given, 'as if the same had been authorized by Congress.'" I Constitutional Law of the United States at § 324.

Willoughby and the State Department cite the termination in 1899 of certain clauses in the commercial treaty of 1850 with Switzerland as an early example of the President terminating a treaty on his own. I Constitutional Law of the United States at § 324; Hackworth, V Digest of International Law at § 509.

Hackworth gives various examples of the "resident acting alone" including termination of the convention with Mexico for the prevention of smuggling signed on December 23, 1925, the convention for the abolition of import and export prohibition and restriction, signed at Geneva on November 8, 1927, the treaty of Commerce and Navigation of 1871 with Italy, and the commercial treaty with Japan signed February 21, 1911. V Digest of International Law at § 509.

Henkin cites two more recent examples involving President Franklin D. Roosevelt: termination of an extradition treaty with Greece in 1933 because Greece had refused to extradite Mr. Insull, and termination in 1939 of the Treaty of Commerce, Friendship and Navigation with Japan. Foreign Affairs and the Constitution at 168.

To the foregoing methods might be added the singular instance of a treaty termination by the Congress. The latter occurred in 1798 when Congress by a Joint Resolution declared the United States "freed and exonerated from the stipulation of the treaties" with France, and "that the same shall not henceforth be regarded legally obligatory on the Government or citizens of the United States." 1 Stat. 578. Willoughby, I Constitutional Law of the United States at § 324. In the report of the Senate Foreign Relations Committee previously referred to, this action by the Congress was viewed as being a declaration of war. Senate Report 97, 34th Cong., 1st Sess. In fact, two days follow

ing its passages, the Congress authorized hostilities against France, and in Bas v. Tingy, 4 Dall. 37, the Supreme Court regarded these acts as declaring war.

IV

The arguments in support of the respective claims of the President and the Congress as regards the proper method to eliminate treaties turn largely on two factors. With respect to the congressional side of the debate, much weight is given to a treaty's status as law pursuant to Article VI, that is, to the distinction between a treaty as an international compact and, under American law, as municipal law. Understandably, arguments in behalf of presidential claims focus prominently on his preeminent position in foreign affairs.

On the former, it has been observed

"In the course of a 1911 debate on a Presidential termination of a treaty, a Senator asserted that 'A treaty is the supreme law of the land under the language of the Constitution, and the supreme law of the land ought not to be set aside except by legislative action of both Houses. It is difficult to rebut this assertion with legal reasoning. Certainly, to repeal a law is an exercise of legislative power and since the self-executing provisions of a treaty have the domestic effect of law, the same should be true of authority to terminate such domestic effect." Schwartz, II The Powers of Government at 132.

While acknowledging that—

... an expression of Congressional will that a treaty be abrogated and a direction to the President to terminate a treaty would perhaps be the most effective and unquestionable method so far as the Government is concerned of terminating a treaty..

The State Department has taken the position that "the power to denounce a treaty inheres in the President of the United States in his capacity as Chief Executive of a sovereign state."

"... This capacity . . . is inherent in the sovereign quality of the Government, and carries with it full control over the foreign relations of the nation, except as specifically limited by the Constitution. Without entering into a lengthy discussion of the general and specific arguments leading to this conclusion, it will perhaps be sufficient to quote the conclusion of Professor Willoughby...: It would seem, indeed, that there is no constitutional obligation upon the part of the Executive to submit his treaty denunciations to the Congress for its approval and ratification, although, as has been seen, this has been several times done.' The author questions even the power of Congress, by joint resolution or otherwise, to direct the President to denounce a treaty, though such directions also have been given, and in some instances followed, though in others the direction has been successfully refused. . . . This conclusion would seem to be entirely in accord with the general spirit of the interpretation of the Constitution in this regard by the Supreme Court of the United States. As indicated, for instance, by the case of United States v. Curtiss-Wright Export Co., 299 U.S. p. 304. Hackworth, V Digest of International Law at § 509.

"A contention that the action of the President in denouncing a treaty must be submitted to either the Senate or the Congress for ratification presupposes that action by one or the other of them is necessary to give validity to the action of the President. This argument,

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