1978] The Legislative Role in Treaty Abrogation 65 THE LESSONS OF HISTORY The historical usage described above upholds the conclusion of the late Professor Edward Corwin, one of this century's foremost authorities on the Constitution, who wrote: [All in all, it appears that legislative precedent, which moreover is generally supported by the attitude of the Executive, sanctions the proposition that the power of terminating the international compacts to which the United States is party belongs, as a prerogative of sovereignty, to Congress alone.161 A clarification that might be added to Professor Corwin's statement is that the abrogation of a treaty also can be made by the exercise of the treaty-making power itself, meaning the President together with two-thirds of the Senate, or possibly if Congress approves, by prompt Congressional ratification of a Presidential initiative. On the other hand, history also instructs that the President may, at least in the absence of Congressional disapproval, determine whether or not a treaty (1) has been superseded by a later law or treaty inconsistent with or clearly intended to replace an earlier one; (2) has been abrogated by breach of the other party, or (3) has been terminated or suspended because conditions essential to its continued effectiveness no longer exist and the change is not the result of our country's own action. The failure to distinguish between the termination of a treaty as a substantive policy decision and the interpretation of laws or events which have already replaced a treaty or made it voidable leads Louis Henkin to a different conclusion. In Foreign Affairs and the Constitution, Henkin observes: In principle, one might argue, if the Framers required the President to obtain the Senate's consent for making a treaty, its consent ought to be required also for terminating it, and there is eminent dictum to support that view. 162 But Henkin rejects this reasoning by adding: In any event, since the President acts for the United States internationally he can effectively terminate or violate treaties, and the Senate has not established its authority to join or veto him.163 It is true the President could, under his power of general control over foreign policy, effectively weaken the credibility of our national commitment under a defense treaty, such as NATO, by ordering a withdrawal of most American military forces from the foreign area involved, but he cannot unilaterally destroy the international legal obligations of our country under a formal treaty without the consent of the Senate or Congress. Indeed Henkin does not claim the President can legally terminate or violate treaties. He only writes that the President has ability to "effectively" breach treaties. This distinction would be 161. E. Corwin, The President's Control of Foreign Relations 115 (1917). 162. L. Henkin, Foreign Affairs and the Constitution 169 (1972). 163. Id. Henkin acknowledges "the President has the duty to see that the laws, including treaty-law, are faithfully executed," but makes the unsupported, boot-strap type claim that the "duty presumably ceases to exist when the treaty ceases to exist because the President acted under his constitutional authority in another capacity to destroy it." Id., at 168 note. No statements by the Framers or court cases are cited as the source of Henkin's opinion regarding the supremacy of the President's implied foreign affairs power over the specific constitutional directive that he faithfully execute the laws. With all their emphasis on a balance of powers and accountability, it is dangerous to presume, as Henkin does, that the Framers tossed these principles aside by vesting unchecked power in the President to break the sacred faith of the nation as expressed in its treaty commitments, whenever he pleases. 66 Journal of Legislation [Vol. 5: 46 of critical importance in any impeachment proceedings instituted by a Congress which considered the President to have violated the limits of his constitutional discretion. It also would have overriding weight in any judicial action challenging the legal validity of the President's purported denunciation or abrogation of a treaty. In observing that the Senate has not "established its authority" to join or veto the President, Henkin is no more than restating the fact that there has not been a definitive court decision squarely settling a conflict between the Executive and Senate in the Senate's favor. Henkin would agree, it is presumed, that it is for the judiciary to say what the law is, not for the President to create law by fiat until the courts speak.164 And, if the Senate has not established its power over treaty abrogation, nor is there any basis for claiming the opposite side of Henkin's argument. For there is no support in historical practice for the belief that the President has established his authority to denounce or abrogate treaties without legislative participation in his decision. To the contrary, the overwhelming weight of the precedents supports a role for the Senate or Congress in terminating treaties. Another commentator has attempted to justify Presidential control over the termination of treaties by arguing that just as the power of removing executive officers who have been appointed by and with the advice and consent of the Senate is implied from the need for Presidential direction over those who act under him, so the power of terminating treaties may be implied from the need for Presidential management of foreign policy.165 But the notion of equating international agreements between sovereign nations with the relationship between the President and subordinate officials is ludicrous. A treaty pledges the solemn word of our people and creates a binding obligation upon the country. A treaty is elevated to the same constitutional rank as a law and, in view of its international character, would presumably be secured by at least the same guarantee of fidelity and permanence as is a law. Treaties are made between two or more contracting parties among sovereign states; they are not a device for more effectively operating the mechanics of our own government.166 In other words, the removal power is simply not comparable to the abrogation power. That the President has the power of removing officials who are placed under his direction is not surprising. The power aids in the smooth performance of his constitutional duty to execute the laws without potential sabotage of his program by inferior officers. That he could break a formal compact with another nation, which under a specific provision of the Constitution he is bound to uphold as a law, is doubtful. Here the implied power would not be used to carry out the law; it would be exercised to thwart and overturn the law, just the opposite of his constitutional duty. 164. "Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison, 1 Cranch 137 (1803), that it is emphatically the province and duty of the judicial department to say what the law is." U.S. v. Nixon, 418 U.S. 683, 703 (1974). 165. R. Nelson, The Termination of Treaties and Executive Agreements by the United States: Theory and Practice, 42 Minn. L. Rev. 878, 883-888 (1958). 166. See the views of James Wilson concerning the hope the United States would uphold its treaties and thereby gain the respect of other nations, which contradicts the position of commentators who in effect claim the Framers meant for treaties to be easily broken by Presidential directive alone. Wilson, supra note 22. The pin-pointing by James Madison and Alexander Hamilton of the unfaithful adherance to treaties by the United States under the Articles of Confederation as being one of the material defects remedied by the Constitution also runs counter to assumptions the Framers were not concerned about breaking treaties. See Madison, Jay, supra note 13. 1978] The Legislative Role in Treaty Abrogation 67 LACK OF JUDICIAL PRECEDENTS To this point, the discussion has emphasized the logic of the Constitution itself and the lessons to be drawn from historical usage. Judicial precedents have not been cited because there simply are no court holdings squarely deciding a conflict between the President and the Senate or Congress over the treaty abrogation power. What few related cases exist can be discussed briefly. First, there is a 1931 Supreme Court decision, Charlton v. Kelly, 167 which some commentators argue supports a discretion for the President to interpret whether a treaty is void in circumstances where the other party violates it.168 There the President gave notice to Italy that a pre-World War II extradition treaty was still in force even though Italy refused to comply with it. The case has no application to a situation where the President, without legislative approval, declares a treaty void which has not been violated by the other party. Moreover, Charlton involved a treaty which neither the Executive, not Congress, wanted to void. 169 Since the treaty was not denounced, the case is not even a decisive ruling for the single situation where a breach occurs. A second case is Van der Weyde v. Ocean Transport Company in 1936.170 Here, the Supreme Court decided that since Congress had directed the President by the Seamen's Act of 1915171 to give notice of the termination of treaty provisions in conflict with that act, “it was incumbent" upon him to determine the inconsistency between the law and a treaty with Norway. 172 The Court expressly avoided any question "as to the authority of the Executive in the absence of congressional action, or of action by the treaty-making power, to denounce a treaty . . . "173 But it did appear to recognize the power of Congress to require the President to interpret whether a treaty is inconsistent with a statute. A third case involving treaty abrogation is Clark v. Allen, 174 where the Supreme Court examined the question of whether the outbreak of war necessarily suspends or abrogates treaties. On its face, this 1947 case involved a construction of national policy expressed in an Act of Congress, the Trading with the Enemy Act.175 Although it is dicta, the pertinent part of the opinion for our analysis comes from the favorable use by the Court of a statement made by then New York State Court of Appeals Judge Cardozo: [The] President and Senate may denounce the treaty, and thus terminate its life. Congress may enact an inconsistent rule, which will control the action of the courts. 176 By favorably quoting Cardozo's interpretation of the treaty abrogation power, 167. 229 U.S. 447 (1913). 168. E.g., McClure, supra note 59, at 20; Presidential Amendment and Termination of Treaties, supra note 74, at 593. 169. See Nelson, supra note 165, at 901-902. 170. 297 U.S. 114 (1936). 171. See text accompanying notes 90-93 supra. 172. 297 U.S., supra note 170, at 118. 173. Id. 174. 331 U.S. 503 (1947). 175. Id. at 508. 176. Id. at 509. A lower Federal court has also affirmed the need for legislative action. In Teti v. Consolidated Coal Co., 217 F. 443, 450 (D.C.N.Y. 1914), the court said: "This treaty is the supreme law of the land, which congress alone may abrogate 68 Journal of Legislation [Vol. 5: 46 the Supreme Court seems to have approved the proposition that either the Senate or Congress must participate in the annulment of a treaty. Two other voices from the bench add weight to the power of Congress in this field. In an opinion he published with the case of Ware v. Hylton in 1796,177 Supreme Court Justice Iredell twice emphasized his belief that Congress alone has "authority under our Government" of declaring treaty vacated by reason of the breach by the other party. 178 Although his statements were dicta to the Court's decision, they are significant as an 18th Century understanding of the annulment power by one of the original members of the first Supreme Court. Similarly, in his Commentaries on the Constitution, Justice Story declared that the treaty power "will be found to partake more of the legislative, then of the executive character."179 He also explained it is essential treaties "should have the obligation and force of a law, that they may be executed by the judicial power, and be obeyed like other laws. This will not prevent them from being cancelled or abrogated by the nation upon grave and suitable occasions; for it will not be disputed, that they are subject to the legislative power, and may be repealed, like other laws, at its pleasure. "180 (Emphasis added.) Also, on several occasions, the courts have declared that the provisions of an act of Congress "if clear and explicit" must be upheld by the judiciary, "even in contravention of express stipulations in an earlier treaty."181 All of these cases take the position that by the Constitution a treaty is placed on the same footing with an act of legislation and "if the two are inconsistent, the one last in date will control the other."182 So in the Head Money Cases, the Supreme Court reasoned the Constitution gives a treaty "no superiority over an act of Congress," which the Court noted "may be repealed or modified by an act of a later date."183 "Nor," the Court stated, "is there anything in its essential character or in the branches of the government by which the treaty is made, which gives it the superior sanctity."184 The Court added: A treaty is made by the President and the Senate. Statutes are made by the 177. 3 U.S. (3 Dallas) 199 (1796). 178. Id. at 260, 261. 179. Story, supra note 20, §1513 at 366. Hamilton also wrote of the treaty power, "if we attend carefully to its operation it will be found to partake more of the legislative than of the executive character The Federalist No. 75, at 450. 180. Id. §1832 at 695. 181. E.g.. See Fong Yue Ting v. U.S., 149 U.S. 698, 720 (1893); La Abra Silver Mining Co. v. U.S., 175 U.S. 423, 460 (1899). 182. Whitney v. Robertson, 124 U.S. 190, 194 (1888). 183. 112 U.S. 580, 599 (1884). The Court added: "In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can become the subject of judical cognizance in the courts of this country, it is subject to such Acts as Congress may pass for its enforcement, modification, or repeal." Id. at 599. 184. Id. at 599. 185. Id. 1978] The Legislative Role in Treaty Abrogation 69 This line of decisions appears to decide the power of the Congress by legislation to terminate a treaty at least so far as domestic law is concerned. And if the President approves the law and furnishes diplomatic notice of our intention to annul a treaty to the other party, his action would appear to settle the question of whether or not a law can effectively end our international obligations under a treaty.1 186 Unfortunately, none of the above cases fully settles the question of a conflict between the President and Congress over the issue of terminating a treaty or answers the question of whether the President can abrogate a treaty without any action on the part of the legislature. The strong parallel which courts have repeatedly drawn between laws and treaties, however, supports the principle of treaties having equal sanctity with statutes under the constitutional provision requiring the President to faithfully execute the laws. Thus, the few pertinent cases may be summed up as providing no basis for Executive power over treaty abrogation, and some, but not definitive, support for Congressional power. EXCEPTIONS TO LEGISLATIVE ROLE IN TREATY TERMINATION A. Impossibility of Performance It has been noted above that limited exceptions exist where Presidents have historically exercised power to denounce or suspend treaties without legislative approval.187 Obviously, some occasions will arise when a decision is demanded for interpreting whether changed conditions have made it impossible to implement the original design of a treaty. Or a law or treaty adopted later in time may conflict with or replace an earlier treaty on the same subject. The President 186. Henkin writes that acts of Congress do not literally "repeal" a treaty. He explains a statute inconsistent with earlier treaty obligations "does not affect the validity of the treaty and its abiding international obligations, though it compels the United States to go into default." Henkin, supra note 162, at 164. Henkin appears to mean the obligations of our nation under international law do not expire so far as the other treaty party is concerned. The treaty is voidable by the other party, not automatically void. An interesting precedent occurred to illustrate this point involving China. In 1888 Congress enacted the Chinese Exclusion Act in clear violation of a Sino-American treaty regarding the entry and residence of Chinese nationals in the United States. Our government recognized that China would be justified in terminating the treaty due to our violation. However, China declined to denounce the treaty, and it remained in effect. B. Sinha, Unilateral Denunciation of Treaty Because of Prior Violations of Obligations By Other Party 129-130 (1966); U.S. Foreign Relations 115-150 (1889). Similarly, the French government did not consider the Franco-American treaties of 1778-1790 terminated by the unilateral action of Congress in enacting the statute of July 7, 1798, which declared such treaties annulled. The matter was finally resolved by the convention of Sept. 30, 1800, in which France renounced her claims under the earlier treaties. Id. Sinha, at 106-109; Bite, supra note 35, at 96; Gray v. U.S., 21 Ct. Cl. 340, 387 (1886). In contrast, U.S. courts have occasionally made reference to the power of Congress to affect international obligations. So in Hooper v. U.S., supra note 39, the Court of Claims stated that the Act of July 7, 1798, annulling the French treaties "was a valid one, not only as a municipal statute but as between the nations... "In Ropes v. Clinch, a similar view was expressed of Congress' power to denounce treaties: "There are three modes in which congress may practically yet efficiently annul or destroy the operative effect of any treaty with a foreign country. They may do it by giving the notice which the treaty contemplates shall be given before it shall abrogated, in cases in which, like the present, such a notice was provided for; or, if the terms of the treaty require no such notice, they may do it by the formal abrogation of the treaty at once, by express terms; and even where . . . there is a provision for the notice, I think the government of the United States may disregard even that, and declare that the treaty shall be from and after this date, at an end.""" (C.C.S.D.N.Y. 1871) Fed. Cas. No. 12,041. 187. See text accompanying notes 161-162 supra. |