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The Legislative Role in Treaty Abrogation

The whole power to bind the government by treaty is vested in the President and Senate, two-thirds of the Senators present concurring. The treaty in question was created by the will of the treaty-making power, and it contained a reservation by which that will should be revoked or its exercise cease on a stipulated notice. It is thus the will of the treaty-making power which is the subject of revocation, and it follows that the revocation is incident to the will.51

55

The Committee conceded that in certain cases it would be wise to have the concurrence of the House of Representatives in order to make the decision to annul a treaty more impressive upon the other government. Thus, the Committee took the position:

Although it be true, as an exercise of Constitutional power, that the advice of the Senate alone is sufficient to enable the President to give the notice, it does not follow that the joint assent of the Senate and House of Representatives involves a denial of the separate power of the Senate.52

In May, 1858, the Foreign Relations Committee boldly reaffirmed its position by changing a joint resolution, authorizing the President to give Hanover notice of termination of the commercial treaty of 1846, to a mere Senate resolution.53 The treaty does not appear to have been denounced until 1866, however, when Hanover was absorbed into the Prussian Empire.54

C. Congress Rebukes Lincoln

The first time a President openly attempted to terminate a treaty without any prior legislative approval was late in 1864, when President Lincoln notified Great Britain of our withdrawal from the Rush-Baggot Convention55 regulating naval forces upon the Great Lakes.56 This episode does not serve as a precedent for unilateral Presidential action because Congress rushed to defend its prerogative by passing a joint resolution based on the principle that Lincoln's conduct was invalid until ratified and confirmed by Congress.57

Senate debate was dominated by Senators who argued that the act of the President was wholly invalid until adopted by Congress. The prevailing view was expressed by Senator Garret Davis of Kentucky, who said:

It is indispensably incumbent and necessary, in order to secure the termination of this treaty, that it shall be terminated, not by the action of the President, but by the action of Congress.58

51. Id. at 111.

52. Id.

53. Id. at 123-124.

54. S. Crandall, Treaties: Their Making and Enforcement 426 (2d ed. 1916).

55. Rush-Bagot Agreement Regarding Naval Forces on the American Lakes with Great Britain of April, 1917, 12 Bevans 54 (1974).

56. Bite, supra note 35, at 103.

57. H.J. Res. of Feb. 9, 1865; 13 Stat. 568. The Rush-Bagot Agreement originated in notes exchanged between the U.S. and Canada in 1817 in the form of an executive agreement. However, the notes were submitted to the Senate for its advice and consent which was given in 1818, followed by a Presidential Proclamation. Because of this unusual background, some claim the notes are still an executive agreement, which casts further doubt on the significance of Lincoln's purported termination of the agreement as a precedent for Executive annulment of agreements whose character as treaties is unchallenged. See Rush-Bagot Agreement, supra note 55, at 54; H. Miller, 2 Treaties and other International Acts of the United States of America 645-649 (1937).

58. 35 Cong. Globe 313 (Rives ed. 1865).

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[Vol. 5: 46 Senator Charles Sumner of Massachusetts agreed that "the intervention of Congress is necessary to the termination of this treaty. . . He explained that the legislation embodied the conclusion that since a treaty is a part of the law of the land, it is "to be repealed or set aside only as other law is repealed or set aside: that is by act of Congress."'59

Congress did not wait long to reaffirm its position. By the joint resolution of January 8, 1865,60 it charged President Lincoln with the duty of communicating notice of termination of the Reciprocity Treaty of 1854 with Great Britain.61 Then Congress used the same legislative formula again in June of 1874, when it enacted a law62 authorizing President Grant to give notice of termination of our Treaty of Commerce and Navigation of 1857 with Belgium.63 The same law had the effect of terminating the Commercial Convention of 186364 with Belgium.65

Two years later, the same President sent a curious message to Congress appearing to acknowledge the need for a legislative role in the termination of treaties while asserting power to decline enforcement of a treaty he thought had been abrogated by the other party. Grant's message of June 10, 1876, regarding the extradition article of the Treaty of 1842 with Great Britain,66 said:

It is for the wisdom of Congress to determine whether the article of the treaty relating to extradition is to be any longer regarded obligatory on the Government of the United States or as forming part of the supreme law of the land.67 He added, however:

Should the attitude of the British Government remain unchanged, I shall not, without an expression of the wish of Congress that I should do so, take any action either in making or granting requisitions for the surrender of fugitive criminals under the treaty of 1842.68

At most, this is a precedent for Presidential authority to consider a breach of a treaty by the other party as having suspended it by making enforcement impossible, subject to correction of the President's judgment by Congress.

D. Hayes Vetoes Law, But Concedes Legislative Role

In 1879, President Hayes recognized the joint power of Congress in terminating treaties, even though it was in the process of vetoing an Act of Congress. The legislature had passed a statute seeking to require him to

59. 35 Cong. Globe 312 (Rives ed. 1865). Actually the agreement was only temporarily suspended because Lincoln's action was subsequently retracted and it continued in force, without further action by Congress. W. McClure, International Executive Agreements 17 (1941).

60. 13 Stat. 566.

61. Treaty on Fisheries, Commerce, and Navigation in North America with Great Britain, June 5, 1854, 12 Bevans 116 (1974).

62. J. Res. of June 17, 1874, 18 Stat. 287.

63. Treaty of Commerce and Navigation with Belgium, July 17, 1858, 5 Bevans 454 (1970).

64. Commercial Convention of May 20, 1863, 5 Bevans 468 (1970).

65. U.S. For. Rel. 64-66 (1874).

66. Treaty on Boundaries, Slave Trade, Extradition with Great Britain, Aug. 9, 1842, 12 Bevans 82 (1974).

67. Message of June 20, 1876, 9 Richardson 4324-4327, especially at 4327.

68. Id. The provision of the treaty was in fact considered suspended for six months, but then continued in force. Crandall, supra note 54, at 464.

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abrogate two articles of the Burlingame Treaty of 1868 with China.69 He vetoed the bill on the ground that the legislation amended an existing treaty by striking out selected provisions of it. The power to amend treaties, he said, is "not lodged by the Constitution in Congress, but in the President, by and with the consent of the Senate . . .

"70

Hayes also conceded that the "authority of Congress to terminate a treaty with a foreign power by expressing the will of the nation no longer to adhere to it is... free from controversy under our Constitution."71 Thus, he made no claim of power for the Executive to annul a treaty without legislative approval, but rather upheld the traditional joint role of the President and Senate together to make or modify treaties.

In 1883, Congress passed another joint resolution reaffirming a legislative role in the termination of treaties. This law, the Act of February 26, 1883,72 directed President Arthur to give notice of the termination of several articles of an 1871 Treaty with Great Britain.73

E. Presidential Interpretation of Congressional Intent

Occasionally, Presidents have given notice of our nation's withdrawal from a treaty on the basis of their interpretation of Congressional intent. This occurs when Congress passes legislation in conflict with a prior treaty, but does not specifically direct our withdrawal from the treaty. Since the President cannot enforce two equally valid laws which are in conflict, he is compelled to select the one which reflects the current will of Congress.74 While the President may seem to be using his own power, he actually is fulfilling his duty to faithfully execute the laws by enforcing the latest expression of Congress on the subject.

An interesting example of this principle in practice is found in the events leading up to denunciation of certain parts of the 1850 Commercial Convention with Switzerland.75 Following enactment of the Tariff Act of July 24, 1897,76 the United States had entered into a reciprocity agreement with France under authority specifically granted to the President by that law. The Swiss government promptly claimed a right under the most-favored nation clause of the convention to enjoy the same concessions for Swiss imports as we had given French products.77

We responded that it was our long-continuing policy not to construe the most-favored nation clause as entitling a third government to demand benefits of a special trade agreement purchased by another party with equivalent concessions. In other words, we told the Swiss they could not receive something for nothing. If we made an exception in their case, it would embarrass us in relations with all other trading partners.78

69. Treaty of Peace, Amity, and Commerce, July 28, 1868, 6 Bevans 680 (1971).

70. Message of March 1, 1897, 9 Richardson 4466-4472.

71. Id. at 4470.

72. 22 Stat. 641.

73. Amity Treaty with Great Britain, May 8, 1871, 12 Bevans 170 (1974).

74. Presidential Amendment and Termination of Treaties: The Case of the Warsaw Convention, 34 U. Chi. L. Rev. 580, 592 (1967).

75. Convention of Friendship, Reciprocal Establishments, Commerce, and Extradition with Switzerland, Nov. 25, 1850, 11 Bevans 894 (1974).

76. 30 Stat. 151.

77. 5 Miller, supra note 57, at 902; U.S. Foreign Relations 740-757 (1899).

78. U.S. Foreign Relations, id., at 740-741, 749, 750, 754-756.

43-968 O- 79 - 30

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[Vol. 5: 46 Moreover, the 1897 Tariff Act had reaffirmed this historic policy. Section 3 specifically provided that the President is to negotiate commercial agreements "in which reciprocal and equivalent concessions may be secured in favor of the products and manufactures of the United States."79 The President lacked authority to conclude agreements in which the other country made no concessions, and if he had yielded to the Swiss demand it would have been out of line with the clear policy of the law.

Thus, in the face of Switzerland's refusal to renegotiate the contested articles of the agreement, the State Department notified her that the provisions were arrested.80 Although the State Department would later claim this action served as a precedent for independent Presidential power,81 it would have been inconsistent with the trade policy set by Congress in the 1897 law and with unbroken precedents if Switzerland had been granted privileged treatment without making any compensating concessions.82 In any event, President McKinley did not act in the total absence of any pertinent supporting statute.

F. Taft Seeks Ratification

Another action mistakenly asserted in support of Executive treaty-breaking is the effort of President Taft to head off passage by Congress of what he considered an inflamatory resolution calling for abrogation of the Commercial Treaty of 1832 between the United States and Russia.83 Disputes had arisen with Russia as early as then over the treatment of Americans of Jewish faith,84 and on December 13, 1911, the House of Representatives passed a strongly-worded joint resolution demanding termination of the treaty.85 In order to beat action by the Senate, President Taft informed Russia on December 15 of our intention to terminate the treaty.86

On December 18, the President dutifully gave notice of his action to the Senate "as a part of the treaty-making power of this Government, with a view to its ratification and approval."87 He openly recognized the need for the Senate and the President to act together in order to end an existing treaty and made no claim that his diplomatic notice would have any validity without legislative approval.

Both Houses of Congress passed a joint resolution, which the President signed on December 21, just three days after his message to the Senate.88 The House vote was 301 to 1 and the Senate vote was unanimous, proving that the President's advance notice to Russia was a concession to recognized Congressional power, rather than a sign of independent authority of the President.89

Moreover, under the terms of the treaty, the nationals of both countries were entitled to reside and travel in the territory of each other to engage in

79. 30 Stat. 203.

80. The United States denounced the Swiss treaty by giving notice on March 23, 1899. U.S. Foreign Relations 756 (1899).

81. See text accompanying notes 109-113.

82. U.S. Foreign Relations 747 (1899).

83. Treaty of Commerce and Navigation with Russia, Dec. 18, 1832, 11 Bevans 1208 (1974).

84. See generally the catalogue of complaints of discrimination against American citizen Jews by Russia in Hearings on Termination of the Treaty of 1832 between the United States and Russia before the

House Comm. on Foreign Affairs, and before the Senate Comm. on Foreign Relations, respectively, 62d Cong., 2d Sess. (1911).

85. H.J. Res. 166, 62d Cong., 2d Sess., 48 Cong. Rec. 353 (1911).

86. G. Hackworth, 5 Digest of International Law 320 (1943).

87. Id.

88. 37 Stat. 627.

89. Hackworth, supra note 86, at 320.

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commercial activities. By imposing restrictions on Jews, Russia had violated the treaty. Thus, the case is an example of a President seeking legislative ratification even in the narrow situation where there is a breach by the other party.

G. Wilson and Harding Insist on Clear Congressional Intent

Congress again asserted its power in the Seamen's Act of March 5, 1915.90 This law ordered President Wilson to notify several countries of the termination of all articles in treaties and conventions of the United States "in conflict with this act."91 The notices were duly given and the authority of Congress to impose this obligation on the President was upheld by the Supreme Court in a case discussed below.92 According to Wallace McClure, twenty-five treaties were affected.93

Then, in the Merchant Marine Act of 1920,94 Congress directed President Wilson to give blanket notice of the termination of all provisions in treaties which imposed any restriction on the right of the United States to vary its duties on imports, depending upon whether the carrier vessels were domestic or foreign.95 This time President Wilson rebuffed the legislature by announcing that he must distinguish between the power of Congress to enact a substantive law plainly inconsistent with entire treaties and the power to piecemeal call for the violation of parts of treaties. This law was not an effort to terminate treaties, he contended, but to modify them, which Congress could not do.96 A memorandum prepared by Secretary of State Hughes for President Harding in October, 1921 also conceded the power of Congress to terminate entire treaties but only if it so provided in clear and unambiguous language. While Congress had called only for a partial termination in the Merchant Marine Act, the law would have had the practical effect of a total termination. If Congress actually intended to abrogate entire treaties, Hughes reasoned, it must say so in plain language.9 97

Presidents Wilson and Harding had refused to impute an intention by Congress that they should violate numerous treaties outright. There was no Presidential denial of the power of Congress to legislate the abrogation of treaties when "its intention is unequivocally expressed,"98 and entirely absent was any claim for the Presidency of a power to terminate treaties without the shared responsibility of the Congress. Evidence of President Wilson's recognition of the essential role of Congress in the treaty annullment process is found in the fact that he first sought the advice and consent of the Senate before attempting to withdraw from the International Sanitary Convention of 1903.99 Only after two-thirds of the Senate present had resolved to “advise and consent to the denunciation of the said convention" in May, 1921,100 by

90. 38 Stat. 1164.

91. See $16, id. at 1184.

92. See text accompanying notes 170-173, infra.

93. McClure, supra note 59, at 23; Hackworth, supra note 86, at 309-317.

94. Known as the Jones Act, 41 Stat. 988.

95. 41 Stat. 1007, §34.

96. See position of President Wilson set forth in a Department of State press release of Sept. 24, 1920, reprinted in Hackworth, supra note 86, at 323-324. The Department of States believed at least 32 treaties would be violated, explaining the Executive reluctance to interpret the statute broadly. Id. 97. See memorandum prepared by Secretary Hughes for President Harding, Oct. 8, 1921, reprinted in Hackworth, id. at 324-326.

98. So conceded Secretary of State Hughes, see Hackworth, id. at 325.

99. Convention of Dec. 3, 1903, 1 Bevans 359 (1968).

100. S. Res. of May 26, 1921, 61 Cong. Rec. 1793.