1 laterally abrogate, denounce, or otherwise terminate, give 2 notice of intention to terminate, alter, or suspend any of the 3 security treaties comprising the post-World War II complex 4 of treaties, including mutual defense treaties, without the 5 advice and consent of the Senate, which was involved in their 6 initial ratification, or the approval of both Houses of Con 7 gress. 43-968 O 79 - 2 Senator GOLDWATER. You also have the Byrd resolution before you, which is a concise and accurate statement of constitutional doctrine. It declares that no defense treaty can be terminated without the approval of the Senate. RECOMMENDS FAVORABLE COMMITTEE ACTION ON BOTH RESOLUTIONS Mr. Chairman, I recommend the committee act favorably on both resolutions. The Byrd resolution announces the position of the Senate alone, while my resolution states the policy of the Congress and must be approved by both Houses. TERMINATION OF A TREATY There are two ways a treaty is normally terminated under our Constitution. First, the President acts together with the Senate, since they are the party who made the treaty. Second, the President acts together with both Houses of Congress in repealing a treatv, just as Congress and the President act jointly in repealing any other law. If the President wishes to terminate a treaty or give notice that a treaty will be terminated, he may act with the approval of the Senate alone. But in this situation, two-thirds of the Senate must give its approval, as it does in ratifying a treaty. This procedure has been followed twice in our history, and in each case Senate resolutions were approved by more than two-thirds of the Senate. Also, a treaty can be terminated with the advice and consent. of the Senate by making a new treaty which repeals an earlier one. This has happened at least five times. However, the usual way a treaty has been terminated is by authority given in an act of Congress or joint resolution. I have identified 45 instances in which treaties or treaty provisions were terminated with congressional action of this kind. Forty-two of these treaties were cancelled at the direction or with the implied authority of Congress, and three of them were terminated because of the enactment of inconsistent legislation which conflicted with earlier treaties. Mr. Chairman, my office has prepared a table of all 52 treaties terminated with legislative action, and I ask that it appear in the published hearings. The CHAIRMAN. It will appear, without objection, at this point in the record. [The information referred to follows:] TERMINATION OF TREATY OR TREATY PROVISION WITH LEGISLATIVE ACTION (52) 1 [Supplied by Senator Goldwater] A. TERMINATION WITH LEGISLATIVE APPROVAL OR RATIFICATION (49) 2 Authorizing legislation Act of July 7, 1798, 1 Stat. 578. H.J. Res. of April 27, 1846, 9 Stat. 109. Treaty French-American Treaties of 1778-88.. S. Res. of March 3, 1855, 9 Senate Executive Journal 431... Commercial Treaty with Denmark.. J. Res. of Jan. 8, 1865, 13 Stat. 566. J. Res. of June 17, 1874, 18 Stat. 287. Reciprocity Treaty with Britain. Total treaties affected 4 Act of February 26, 1883, 22 Stat. 641. J. Res. of December 21, 1911, 37 Stat. 627. S. Res. of May 26, 1921, 61 Congressional Record 1793. 1944 Chicago Convention on International Civil Aviation, 1946 Convention for the Regulation of Whaling, 4 Bevans 249. Trade Agreements Extension Act of 1951, 65 Stat. 72...... 1948 Convention on Safety of Life at Sea. Foreign Assistance Act of 1961, 75 Stat. 424; Export Control Act of 1948, 50 U.S.C. App. 2021 et. sec.; Trading with the Enemy Act, 50 U.S.C. App. 1 et. seq.; Mutual Assistance Act of 1954, 22 U.S.C. 1934; Inter-American Treaty of Reciprocal Assistance of 1947, 4 Bevans 559; Cuban Resolution of 1962, 76 Stat. 697. Byrd Amendment of 1971, 85 Stat. 427, sec. 503. Treaty of Commerce and Navigation and Com- Amity Treaty with G. Britain. "One aspect of our treaty obligations under the Fishery Conservation and Management Act of 1976, 16 Three Conventions on Fisheries.. B. TERMINATION WITH IMPLIED AUTHORITY CONFERRED BY INCONSISTENT LEGISLATION (3) 3 Tariff Act of July 24, 1897, 30 Stat. 151.. Trade Agreements Act of June 12, 1934, 48 Stat. 943...... Commercial Convention with Switzerland. Treaty of Commerce and Navigation with Italy.. 1 2 111 1 3 11 11 incident of congressional ratification of a Presidential notice is not included in the table because notice was withdrawn before the treaty was terminated. In 1865, shortly after President Lincoln had notified Great Britain of our withdrawal from the Rush-Baggot Convention regulating naval forces upon the Great Lakes, Congress defended its power in the field by passing a joint resolution based on the principle that Lincoln's action was invalid until ratified and confirmed by Congress. H.J. Res. of Feb. 9, 1865; 13 Stat. 568. 2 Congress terminated all existing treaties of the Hawaiian Islands with foreign nations in the Joint Resolution of July 7, 1898, 30 Stat. 750, but the action is not included in the table because those treaties were not ratified under the Constitution. 3 Another treaty which was terminated because of inconsistent legislation is the 1891 Treaty of Amity, Commerce and Navigation with the Independent State of the Congo. In 1916, Belgium, which had annexed the Congo, twice denounced the whole treaty after Congress directed the termination of a substantive article thereof in the Seamen's Act of 1915. The treaty is counted only once in the above tables, being included with those treaties affected by the Seamen's Act in table A. Termination of the treaty is reported by the State Department under the heading "Abrogation of Treaties and Provisions of Treaties which Conflicted with the Seamen's Act of March 4, 1915," Foreign Relations, 1920, vol. 1, pp. 207-209. Note: Each of the above treaty termination actions are discussed in detail in Emerson, "The Legislative Role In Treaty Abrogation," 5 Journal of Legislation, University of Notre Dame Law School, pp. 52-64 (May 1978); 125 Congressional Record (daily edition, Mar. 1, 1979) pp. S 1891-1895. ARGUMENT BY LEGAL ADVISER OF STATE DEPARTMENT Senator GOLDWATER. I have read the argument by the legal adviser of the State Department, who claims there are 12 examples of Presidential treaty termination. I have examined each of these incidents in detail and I frankly must say that they are phony. There was ample legislative authority on the books for the cancellation of 6 of these 12 treaties. Two others were not terminated. Another expired because the country with whom we had entered into the treaty lost its existence and disappeared as a nation. The final three treaties expired because they were outdated and ineffective. They were inoperative under international law because of unique circumstances and not because of any power of the President to terminate treaties generally. I have with me a detailed analysis of the 12 incidents wrongly asserted by the State Department, and I ask that this paper may appear in the hearing record. The CHAIRMAN. Very well. May I say at this point that each of your requests with respect to the inclusion in the record of the material is granted and the insertions will appear at the appropriate place. Senator GOLDWATER. Thank you, Mr. Chairman. [The information referred to follows:] ANALYSIS OF 12 TREATY TERMINATIONS ARGUED BY STATE DEPARTMENT (By J. Terry Emerson) 1 1815: President Madison's administration exchanged correspondence with the Netherlands which allegedly established that the 1782 Treaty of Amity and Commerce had been annulled Analysis: There is strong historical evidence the treaty was not annulled in 1815, but remained in effect. Assuming the treaty was then annulled, the cause was the wartime destruction of one of the governmente and nations, not independent Presidential power. Also, President Madison did not give notice of the treaty's termination: the foreign government first denounced the treaty. Discussion: The Netherlands took the initiative in insisting the treaty of 1782 had exsired because of the Napoleonic wars, during which the United Netherlands, with whom the treaty was made, was absorbed into the French Empire, entirely disappearing as separate nation. After the war. It was transformed into a new nation unitke the original one According to Samuel Crandall in his Treatles: Their Making and Enforcement, the state thus formed "differed in name, territory, and form of government from the state which had entered into the treaty of October 8. 1782, with the United States." (p. 429) In response to a letter from the government of the new state, in 1815 Secretary of State Monroe appeared to acknowledge the Netherlands' claim that the treaty had been annulled. However, when Monroe became President, he himself repudiated this interpretation His Secretary of State John Q. Adams argued in 1818 that the 1782 treaty was still operative (U.S. Foreign Relations 722 et seq. (1873)) In 1831, the Supreme Court of North Carolina enforced the treaty as law in University v. Miller, 14 N.C. 188, 193. At most, the incident is a precedent for termination of a treaty in agreement with the other government. Obviously, in the present case, the Republic of China wishes the 1954 treaty to remain in effect. It is true that much later in 1873, the State Department informed the Minister of Holland that "The Treaty of 1782 is no longer binding on the parties." However, the State Department did not claim President Madison had terminated it. Rather, in a list of treaties that have been abrogated, which was prepared and published by the State Department in 1889, the Department included the Netherlands treaty under a category entitled "Treaties with Powers that have been abBorbed into other nationalities." The Department explained the termination of the treaty as follows: The principle of public law which causes Treaties under such circumstance to be regarded as abrogated is thus stated: "The obligations of Treaties, even where some of their stipulations are in their terms perpetual, expire in case either of the contracting parties losses its existence as an independent State, or in case its internal conBO changed as to render the stitution is Treaty inapplicable to the new condition of Conventions Treaties and (U.S. things." 1776-1887 (1889), at 1236-1236). Thus, the real ground for termination of the treaty, as interpreted by the State Department itself. In the extinction of the state with whom the treaty was originally made. As explained by most writers on international law, the execution of the treatles of a state are conditioned upon its power to exercise BOvereignty and this power is lost when the state is extinguished by forcible annexation or absorption into another state (Research in International Law, American Journal of International Supplement, vol. 29, 1935. p 1165.) S 1891 From this it is clear President Madison did not cause the treaty's annulment by his independent action. The treaty expired automatically under a well-established principle of international law. In contrast, here Prestdent Carter seeks to terminate the defense treaty with the Republic of China by his own action and at his own initiative. The two situations are as different as day and night. 2. In 1899, President McKinley gave notice to the Swiss Government of intent "to arrest the operations" of certain articles of the 1850 Convention of Friendship. Commerce and Extradition. Analysis: The Convention was superseded by a later Act of Congress inconsistent with the earlier treaty. That statute conferred implied authority on the President. Discussion: The State Department in its memorandum of December 15, 1978, admits the Presidential notice "may have been necessitated by the Tariff Act of 1897." (p. 9) This disqualifies the incident as a precedent for notice where there is no accompanying legislative action. Following enactment of the Tariff Act of 1897, the United States entered into an agreement with France under authority granted by that law. The Swiss government thereupon claimed the right to enjoy the same concessions for Swiss imports as was granted French products, but refused to make reciprocal con |