TREATY TERMINATION WEDNESDAY, APRIL 11, 1979 U.S. SENATE, COMMITTEE ON FOREIGN RELATIONS, The committee met at 2:10 p.m. in room 4221, Dirksen Senate Office Building, Hon. Frank Church (chairman) presiding. Present: Senators Church, McGovern, Sarbanes, Javits, and Percy. Senator SARBANES. The committee will come to order. The committee was in session all morning, in fact, up until 1 o'clock. There will be other members along shortly. I think we had better move ahead. OPENING STATEMENT Senator SARBANES. This is the conclusion of a series of hearings concerning the treaty power of the Senate, and in particular focusing on the issue of the power to terminate treaties. This afternoon the committee is very pleased to hear from two distinguished panels. The first will consist of the former Attorney General Brownell, and former Secretary of State Rusk; the second_will consist of Professor Gaffney of the University of Notre Dame Law School; Professor Lowenfeld of New York University Law School; Professor Reisman of Yale, and Prof. John Norton Moore of the University of Virginia Law School. While the committee is primarily interested in comments of our witnesses with respect to the termination question, which was referred to us by the Senate, and we were given a specific charge with respect to that question; we would, of course, also be interested in hearing the insights of the witnesses into other issues relating to the Senate's treaty power. Gentlemen, we are at your pleasure. If you wish to go through your prepared text as it is, that will be fine; if you wish to summarize and make comments, that would be fine. I will really leave it to you to proceed as best suits you. Attorney General Brownell, why not start with you, and then we will follow along with Secretary Rusk. The chronology of that might perhaps be correct, although I am not sure of the protocol. STATEMENT OF HON. HERBERT BROWNELL, FORMER ATTORNEY GENERAL, NEW YORK, N.Y. Mr. BROWNELL. Senator, thank you very much. I am honored to appear before the committee today, and I will take advantage of your suggestion that I summarize the prepared statement that the chairman requested at the time he made the invitation to come here today. (335) I understand that I am to give my views regarding the "sense of the Senate" resolution that was proposed by Senator Byrd of Virginia with respect, primarily, to the termination of our mutual defense treaties MDT. I would like to-as an aside-first compliment the committee on its judgment in obtaining the assistance of Professor Henkin in this matter because, surely, no one in the United States is more qualified to assist the committee on its deliberations on this resolution. BYRD RESOLUTION DIRECTED AT ALL TREATY TERMINATIONS The Byrd resolution appears to be directed at all treaty terminations, whether it involves existing treaties, or future treaties, and by any means whatever. But I assume, as I think you intimated, that the resolution was occasioned by President Carter's recent action in giving notice of termination under article X of our mutual defense treaty with the Republic of China, which the President did without seeking the advance approval of the Senate or the Congress as a whole for such notice. Seemingly, it is terminations of this kind that the proposed resolution is primarily concerned with. PRESIDENTIAL POWER TO TERMINATE TREATIES UNDER CONSTITUTION Accordingly, I think I should state at the outset that I have been consulted by the State Department from time to time on various matters of international constitutional law, and last year I was consulted regarding the legal questions in connection with the recognition of the People's Republic of China as the sole government of China, and among the most important questions considered was that of the President's power to terminate the mutual defense treaty with the Republic of China in the manner that he did. Now, I advised the Department of State on that occasion that in my opinion the President had such power under the Constitution. I think that the Byrd resolution could well serve a valuable purpose if the Senate makes it clear that it adopts the resolution with the intention of saying to the President something like the following: Because mutual defense treaties are of immense concern to the nation, they should not, as a general rule, be terminated until the President and the public have heard the views of the Senate, and unless the termination has enough political support to be approved by the Senate. If, on the other hand, the Senate's intention were to tell the President that as a matter of constitutional law he could not thereafter terminate a mutual defense treaty, I would respectfully submit that such a message should not be given to the President because it would confuse the Senate's understanding and the public's understanding of the state of the law relating to the termination of treaties and would in fact, in my opinion, be in error. LIMITING PRESIDENTIAL POWER TO TERMINATE FUTURE TREATIES At the same time, however, I do not suggest that the Senate has no means by which it might impose a legal requirement upon the President to obtain its consent to the termination of a defense treaty entered into in the future. I mean only that Senator Byrd's resolution alone would be ineffective to impose such a requirement with respect to either existing or future mutual defense treaties. As requested, I will touch on these other possible means of limiting the President's power to terminate future treaties in this discussion. CONSTITUTIONAL PROVISION FOR TREATY TERMINATION As you are well aware, the Constitution does not specifically provide a method for the President, or any other institution of the Federal Government, to terminate a treaty, as it does in the case of the original making of a treaty. If it did, of course, we would not be here this afternoon. The silence of the Constitution, however, does not, in my opinion, mean that constitutional principles are not dispositive because I think they are. I believe that the President's power to terminate a treaty in accordance with its terms derives directly from his power over the foreign relations of the United States. I am aware, of course, that in a way this view merely restates the problem because the exact source in the Constitution of the President's power to conduct foreign affairs on behalf of the Nation is anything but clear. Some, like Alexander Hamilton, have argued the view that I, myself, am partial to, that such power is a part of the executive power vested in the President by section 1 of article II of the Constitution. I realize, of course, that this view has been supported by the Supreme Court and criticized by the Supreme Court and by commentators as well. Others have derived the President's power by extrapolation from the specific constitutional provisions that the President shall be the Commander in Chief of the Armed Forces; shall have the power to make treaties; to nominate and receive ambassadors. This view has also been criticized. But, whatever the source, it is clear from our constitutional history that as a general proposition the President has the power to conduct the Nation's foreign affairs-not unlimited, of course; after all, thè President can only make treaties with the advice and consent of twothirds of the Senate. It should be acknowledged, too, that in any case for the effective long-term conduct of foreign relations the Nation is best served when the President has the support and the legislative, cooperation of the Congress. PRESIDENTIAL DISCRETIONARY AUTHORITY IN FOREIGN RELATIONS Nevertheless, it is clear that, to a greater or lesser extent and depending on the issues involved, the President has very large reserves of discretionary authority in foreign relations. Stated generally, the President has the power to exercise the international law rights that inhere to the United States as a sovereign nation. There are many examples of that. He can declare to foreign governments the policies and intentions of the United States on the whole range of international issues; recognize foreign governments and states; terminate diplomatic relations; recognize the status of belligerency and insurgency; declare the position of the United States on questions of customary international law, and claim new rights of the United States to territory or property-as, for example, President Truman's proclamation claiming mineral rights on the Continental Shelf. But more to the immediate point, he can seek redress for the United States if another state violates our international or treaty rights. He can employ the Armed Forces of the United States to vindicate such international law and treaty rights. So, from this, it seems to me reasonable to conclude that, as a general matter, the President also has the power to exercise the international law rights of the United States that are created by a treaty. As a simple example, he determines how we exercise our treaty right to cast votes in the United Nations. In other words, when a treaty creates rights and powers in the United States, I say, unless there is something that would clearly indicate otherwise, it must follow that the President is the authority within the United States which is entitled to exercise such rights on its behalf. He might, of course, in order to have the broadest possible support in the Congress and the Nation, seek the concurrence of the Senate or the Congress as a whole, and he has often done that, but he is not obligated to. I want to be very clear that when I talk this way, that I am talking about the President acting in accordance with the treaty's terms. In my opinion one of the clearest lines marking off a limit to the Presidential power over foreign relations, and one particularly pertinent in this discussion, is the provision of section 3 of article II of the Constitution that the President "shall take care that the laws be faithfully executed", and the provision of article VI of the Constitution, laws made pursuant thereto and treaties shall be the "supreme law of the land." In my opinion, in other words, this duty of the President to enforce the laws means that he may not terminate a treaty by an action that is not contemplated by the treaty and which would violate the treaty. In other words, he cannot simply declare a treaty invalid. Now, in my prepared statement I go into the historical practices, but because of the time limitation on prepared statements I shall not read that part of the prepared statement where I do come to the conclusion that in the past the President has, in certain instances-acting alone-terminated treaties in accordance with their terms. APPYING CONSTITUTIONAL PRINCIPLES TO MDT WITH ROC Now, applying these principles to the Mutual Defense Treaty with the Republic of China, I advised the State Department that the President could not on a particular day just announce that the Mutual Defense Treaty with the Republic of China was, from that moment on. void and of no further force and effect. To do so would violate his obligation to take care that the law of the treaty be enforced. On the other hand, it was my opinion that the President had the foreign affairs power to exercise the international law right of the United States created by the treaty itself, to terminate the treaty in accordance with its terms, by giving notice of termination in 1 year as contemplated by article X. To repeat, to put an end to a treaty in the first manner, by abrogating it in violation of its terms, would violate the President's constitutional duty to enforce the law. It would in fact constitute setting aside the law, which the President can no more do with a treaty than with an act of Congress. But, putting an end in the second manner, however, that is by giving notice of termination as contemplated by the treaty itself, is a very different matter and was acting pursuant to the law of the treaty. |