Senator Byrd graciously withdrew an amendment identical to this resolution which he had offered to the Taiwan Relations Act. We agreed that his resolution will be reported by this committee to the Senate not later than May 1, and the committee has scheduled a markup session for the afternoon of April 24.

The hearings to be held this week represent the first time in recent years that any committee of the Senate will have undertaken a review of the Senate's treaty power. We intend, necessarily, to concentrate on the issues raised by Senate Resolution 15, but it is my firm belief that those issues cannot be considered in a vacuum-that to understand the role of the Senate in terminating treaties, it is necessary to examine the role of the Senate in approving treaties-specifically, which agreements require Senate approval, how the Senate's "advice" function is most properly performed, and whether the Senate's internal procedures for consenting to the ratification of treaties should be modernized.

In this connection, I have invited all the witnesses to comment on rule 37, which sets out the procedure under which treaties are considered in the Senate.

To address these issues, the committee has assembled some of the top legal scholars in this country.

Tomorrow, beginning at 2:30 p.m., the committee will have two panels of witnesses. The first will consist of Prof. Thomas M. Franck, of the New York University Law School; Prof. Covey T. Oliver of Rice University; William D. Rogers of the District of Columbia Bar; and Prof. Alan Swan of the University of Miami Law School.

The second will consist of two former State Department Legal Advisers, Prof. Abram Chayes of the Harvard Law School and Leonard Meeker of the District of Columbia Bar.

Wednesday, beginning at 2:30 p.m., the committee will again hear two panels of witnesses. The first will consist of former Attorney General Herbert Brownell and former Secretary of State Dean Rusk. The second will be composed of Prof. Edward Gaffney, Jr., of the Notre Dame Law School; Prof. Andreas Lowenfeld of the New York University Law School; Prof. Michael Reisman of the Yale Law School; and Prof. John Norton Moore of the University of Virginia Law School.

Today, the committee will hear Senator Barry Goldwater, who has brought an action in the Federal courts to have the President's termination notice regarding the United States-Republic of China Mutual Defense Treaty declared unconstitutional. Also appearing will be the author of Senate Resolution 15, Senator Byrd of Virginia. He will be followed by representatives of the administration-the State Department's Legal Adviser, Herbert Hansell, and the Deputy Assistant Attorney General, Office of the Legal Counsel, Lawrence Hammond. Other members of the committee will be here presently. We were held up by virtue of the luncheon that the committee hosted for the Foreign Minister of Japan. It went later than we had anticipated. But I am sure that other members will soon be arriving.

Since we are late, I would like to invite you, Senator Byrd, as the sponsor of the resolution, to begin our discussion.

STATEMENT OF HON. HARRY F. BYRD, JR., A U.S. SENATOR FROM VIRGINIA

Senator BYRD. Thank you, Mr. Chairman.

To you and to the committee I want to express my appreciation for permitting me the opportunity to appear before you today.

PRESIDENT SHARES TREATY MAKING PROCESS WITH THE SENATE

There is no disagreement, I am sure, with the assertion that under our Constitution the President of the United States clearly shares the treaty-making process with the Senate of the United States. Does he not then share the treaty-terminating power with the Senate?

SENATE RESOLUTION 15 INTRODUCED AS AMENDMENT TO TAIWAN BILL

That is the issue addressed by the Byrd resolution, which the Committee on Foreign Relations is considering today.

In introduced Senate Resolution 15 on the opening day of the Congress, January 15, and it was debated in the Senate on March 7 and March 8, when I presented it as an amendment to the Taiwan Relations Act. I did not press it to a vote when I received assurance that it would be made the pending Senate business not later than June 8; and with the further assurance of a direct vote on the resolution if I so chose. Senate Resolution 15 is cosponsored by Senators Warner, Helms, Havakawa, Garn, Thurmond, and Proxmire.

The resolution is a brief one, and with your permission, I shall read it:

It is the sense of the Senate that approval by the Senate of the United States is required to terminate any mutual treaty between the United States and another nation.

In debate in the Senate on March 7, the distinguished senior Republican member of this committee, Senator Javits, with his customary ability to get to the heart of a matter, stated that "this is not just another sense of the Senate resolution. This is the real McCoy."

The senior Senator from New York immediately recognized that the Senate was being asked to make a decision of great future importance to the country and to the Senate itself.

Whatever the Senate finally does in regard to this resolution, whether it approves it or defeats it, a clear precedent will have been established.

The issue posed by the resolution is far broader than the question of Taiwan and the 30-year-old Treaty of Friendship with the Republic of China. We have many treaties of friendship with nations throughout the world, and what happens to them in the future could depend on what action is taken on Senate Resolution 15.

SUPPORT DIPLOMATIC RELATIONS WITH PEOPLES' DEMOCRATIC REPUBLIC OF CHINA

At this point, let me say that I favor establishing diplomatic relations with the People's Republic of China [PRC]. It is one of the great nations of the world; it has a population larger than that of any other country.

It is important that our country and mainland China have contact, that there be a dialog between the two countries. So I look with favor upon the establishment of diplomatic relations.

UNITED STATES-TAIWAN TREATY TERMINATED WITHOUT CONSULTATION

What I do not favor, however, is that in bringing this about, President Carter threw overboard a long-time friend and ally. The Senator from Ohio, Mr. Glenn, in his presentation to the Senate, pointed out that the treaty of friendship between the United States and Taiwan was sought to be terminated by the President without consultation with the other partner to that treaty, the Republic of China; that, in fact, the first Taiwan knew about the proposal to terminate the treaty was when it learned such fact through the news media.

PRESIDENTIAL AUTHORITY TO TERMINATE DEFENSE TREATIES

The second aspect of this action taken by the President last December is much broader than the question of Taiwan. It seems to me that it is important to establish for the future whether a President may unilaterally terminate a mutual defense treaty with other nations.

Our country has many such treaties. Some of them are extremely important, in the view of the Senator from Virginia, to the welfare of the United States.

I believe that a President alone does not have the authority to terminate such treaties. In the research that my staff has been able to do, no case has been found in which a major treaty with another nation, of a defense nature. ever has been abrogated unilaterally by a President of the United States. There have been cases, of course, in which minor treaties have been set aside; there have been cases in which, with the outbreak of war, the treaty becomes ipso facto, nonbinding.

UNILATERAL ACTION BY THE EXECUTIVE BRANCH

However, so far as I can determine, this is the first time an attempt. has been made to set aside a treaty of this magnitude by unilateral action of the executive branch of Government.

In 1954, Secretary of State John Foster Dulles responded as follows to an inquiry by Senator Jenner of Indiana. This was the statement of the Secretary of State, himself a foremost constitutional lawyer, I quote Secretary Dulles:

In light of the fact that your letter specifically raised the question whether the Department of State, under the present administration, claims authority to modify treaties, I am glad to assure you that it is my view that the Executive may modify a treaty or a provision thereof only by the conclusion of another treaty entered into by and with the advice and consent of the Senate. This is also the view of my advisors who are fully aware of my position and fully share my views.

NO PROVISION IN CONSTITUTION FOR TREATY TERMINATION

Admittedly. Mr. Chairman. there is a difference of opinion among lawyers and the Constitution itself is silent on the direct question. The Constitution provides as how treaties are made, but it is silent as to termination.

But, Mr. Chairman, the Constitution is also silent in explaining how statutes are terminated. The Constitution describes carefully the process of creating a law; but nowhere does it describe the process of nulifying a law. All of us know that a President cannot unilaterally terminate a law; yet a treaty is a law.

To hold that a President can nullify a treaty is to assign to the President the power unilaterally to set aside a law, because a treaty is a law and is so recognized.

The Constitution in article VI reads:

This Constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land.

Admittedly, a statute or treaty can be self-limiting by providing in its own terms for termination of its effectiveness upon the occurrence of specified contingencies; for example, the expiration of a fixed period of years.

However, if a statute or treaty does not provide that it is to be in effect for a limited term or that it will automatically terminate on the happening of some other contingency, then it will not terminate, in my view, unless and until terminated by a subsequent action of like status.

NO PRECEDENT FOR TERMINATION OF MUTUAL DEFENSE TREATY

Now, Mr. Chairman, there is no precedent for the termination of a mutual defense treaty by executive action alone.

On March 7, on the Senate floor, I asked the Senator from Ohio, Mr. Glenn, a member of this committee, the following question: "Has any mutual defense treaty been terminated by unilateral action?" Senator Glenn responded: "I do not believe so **in that time since World War II, which is the only time we have had mutual defense treaties, the answer is no."

Mr. Chairman, there may be some isolated precedent involving termination of minor treaties in abnormal circumstances by uncontested executive action. But it is a well-established principle repeatedly enunciated by the Supreme Court, that the occurrence of an unconstitutional action in the past does not justify or make constitutional its recurrence. I do not think, therefore, that too great stock should be placed in obscure precedents which may be cited to the committee.

SENATE CONSENT IS NECESSARY TO TERMINATE TREATY

As I said during the debate on the Taiwan relations legislation, the issue is clear cut. The Senate must participate in the treaty-making process. Without Senate consent, a treaty cannot be ratified. Logic requires, therefore, that Senate consent is necessary to terminate a treaty. Otherwise, Mr. Chairman and gentlemen of the committee, the Senate could grant consent to the President's ratification of a treaty, and within a matter of weeks or months, a new President, newly elected, could undo that action.

I do not believe that a precipitous reversal of policy of that nature should be permitted solely on the judgment, or even the whim, of a single man. It would not be sensible, it seems to me, to require Senate approval of ratification of a mutual defense treaty and, at the same

time, permit a virtually immediate reversal of that decision without Senate approval.

ARTICLE X OF MUTUAL DEFENSE TREATY

Now, Mr. Chairman, article X of the particular mutual defense treaty between the United States and Taiwan reads as follows: "This treaty shall remain in force indefinitely. Either party may terminate it 1 year after notice has been given to the other party."

I believe it is highly significant that no where in article X does the term "President" appear. Article X does use the term "party." Clearly, the term "party" means "government." In the case of the United States, our Government includes both the President and the Congress.

Article X also uses the term "may terminate." This language is permissive. It does not say "must terminate." It does not say "will be terminated." It merely says "may terminate."

The Senator from New York, Mr. Javits, stated categorically to the Senate that "it is my judgment, and I sat through all the sessions of the committee, that the committee did not intend to approve or disapprove of the legality of President Carter's action."

The committee report on page 18 asserts that the committee is "inclined"-and that word is in quotes to believe that the President did not act unconstitutionally.

PRESIDENTIAL AUTHORITY TO GIVE NOTICE FOR INTENDED TERMINATION

I am inclined to the same position as enunciated by the committee. It seems to me the President does have the authority to give notice of intended termination of a treaty, but that the actual termination does not occur until approved by the Senate.

I end as I began, gentlemen of the committee. Under our Constitution, the President of the United States clearly shares the treatymaking power with the Senate of the United Staes. In my judgment, he likewise shares the treaty-terminating power with the Senate.

I am grateful to you, Mr. Chairman, and to the committee for permitting me to make these remarks this afternoon. [Senator Byrd's prepared statement follows:]

PREPARED STATEMENT OF SENATOR HARRY F. BYRD, JR.

There is no disagreement, I am sure, with the assertion that under our Constitution the President of the United States clearly shares the treaty-making process with the Senate of the United States.

Does he not then share the treaty-terminating power with the Senate?

That is the issue addressed by the Byrd Resolution which the Committee on Foreign Relations is considering today.

I introduced Senate Resolution 15 on the opening day of the Congress, January 15 and it was debated in the Senate on March 7 and March 8, when I presented it as an amendment to the Taiwan Enabling Act. I did not press it to a vote when I received assurance that it would be made the pending Senate business not later than June 8; and with the further assurance of a direct vote on the Resolution, if I so choose.

Senate Resolution 15 is cosponsored by Senators Warner, Helms, Hayakawa, Garn, Thurmond and Proxmire.

The Resolution is a brief one, and with your permission, I shall read it:

"It is the sense of the Senate that approval by the Senate of the United States is required to terminate any mutual defense treaty between the United States and another nation."