TREATY TERMINATION TUESDAY, APRIL 10, 1979 U.S. SENATE, COMMITTEE ON FOREIGN RELATIONS, Washington, D.C. The committee met, pursuant to notice, at 2:40 p.m., in room 4221, Dirksen Senate Office Building, Hon. Claiborne Pell presiding. Present: Senators Pell, Zorinsky, Javits, and Helms. Senator PELL. In behalf of the chairman, I will call the Committee on Foreign Relations to order. OPENING STATEMENT Senator PELL. The committee today resumes its series of hearings on the treaty power of the Senate, focusing on the issue of the power to terminate treaties. The committee has scheduled two panels for this afternoon. The first consists of Prof. Thomas M. Franck, of New York University Law School; Prof. Covey T. Oliver of Rice University; William D. Rogers, former Assistant Secretary of State for Inter-American Affairs; and Prof. Alan Swan of the University of Miami Law School. The second panel consists of two former legal advisers of the Department of State-Abram Chayes and Leonard Meeker. While we will be primarily interested in our witnesses' comments on the terminal question, we will also be most interested in hearing their insights into other issues relating to the Senate's treaty powers, including the Senate's advice role, the process by which it grants its consent to the ratification of treaties. I would ask that each witness limit his statement to approximately 10 minutes, giving us an opportunity to hear the other panelists and to comment upon and question the panelists. I would assure each witness that his statement will be printed in full in the record. Let us proceed in alphabetical order. Professor Franck, would you please begin. STATEMENT OF THOMAS M. FRANCK, NEW YORK UNIVERSITY SCHOOL OF LAW, NEW YORK, N.Y. Mr. FRANCK. Thank you, Mr. Chairman. In lieu of preparing a statement, I would ask permission to submit for the record chapter 6 of a book to be published in September by Prof. Ed Weisband and me, called "Foreign Policy by Congress,' (223) which deals with most of the issues raised in the letter addressed to me by the chairman of the committee. Senator PELL. Without objection, that will be done. Mr. FRANCK. Thank you, Mr. Chairman. [The information referred to follows:] CHAPTER VI PUTTING "ADVICE" TREATIES, AGREEMENTS AND COMMITMENTS: BACK INTO ADVICE AND CONSENT Of the various foreign relations initiatives open to a country, the most crucial are the making of war and the undertaking of solemn commitments. The U.S. Constitution clearly provides that both functions shall be exercised through executive-congressional codetermination; yet, in recent years, both became effectively a presidential monopoly. In the War Powers Resolution, Congress created a framework for reasserting its share of responsibility for the international use of force. However, efforts to create a similarly comprehensive process of codetermination for the making of international commitments, have eluded Congress. The result is continued warfare between the branches. Disarray in this area of foreign policy is a very serious problem for a superpower whose ability to speak clearly, decisively and credibly, is the lynch-pin of the international system. The Decline of Advice The Constitution provides that the President "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur. This represents a compromise, for the original draft of the Committee of Detail had assigned the treaty power exclusively to the Senate.2 As conceived by the drafters, the Senate was to play two parts: it was to advise on the negotiations and it was to 4 advice function amounted to much, but most delegates agreed with Pierce Butler of South Carolina that it meant treaties should "be gone over, clause by clause, by the President and tion, President Washington on August 21, 1789, sent a message The Senate, as it so often does, referred the matters raised at that meeting to a committee, forcing the President to come back a second time. Although that particular in-person consultation proved mutually embarrassing,7 and was not repeated, Washington continued to seek senatorial advice by other, less direct means. On February 9, 1790, he sent a message asking for detailed advice on a wide range of U.S.-British boundary disputes prior to entering into treaty negotiations, declaring it "advisable to postpone any negotiations on the subject, until I shall be informed of the results of your deliberations, and receive your advice as to the propositions most proper to be offered...."8 The Senate responded in writing on March 24. The vitality of the advice function continued. 9 /In the 1790's the Senate was asked to approve the appointment 10 of treaty negotiators1 and to advise on their negotiating instructions.11 Jefferson had occasion to warn Washington not to begin talks with Algiers without first consulting the Senate, since that body might otherwise withhold its consent to whatever was eventually agreed.12 The President took that advice, asking Senators whether they would be likely to approve a ransom scheme for the release of U.S. captives.1 13 By 1794, however, slippage had begun. That year the Jay Treaty became the first agreement negotiated without prior senatorial advice. The Senate responded by amending its article 12 as part of the process of giving its consent.14 With that, stream. a new practice came on / Presidents now rarely consulted the Senate on the terms of a treaty before, or during negotiations, while the Senate, cut out of its "advisory" role, retaliated by making extensive changes in the finished text of agreements as part of its "consent" function. This new practice vastly annoyed the parties with which the U.S. was negotiating, as it still does. In 1803, British Foreign Secretary Lord Harrowby, denouncing the practice "of ratifying treaties, with exceptions to parts of them" angrily rejected the King-Hawkesbury Convention from which the Senate had amputated article 5.15 Presidential officers were no less vexed. Secretary of State Hay, after the Senate had altered the Hay-Pauncefote Treaty of 1900 concerning a proposed canal through the Panama Isthmus, wrote that "it never entered into mind that anyone not out of a madhouse could have objected"16 to its terms. In view of the Senate's changes, the British rejected that one, too. |