Now if your position is sound that a treaty cannot be terminated without the concurrence of the Congress, what validity is there in limiting that rule to mutual defense treaties? Why should it not also apply to every other kind of treaty entered into between the United States and foreign governments inasmuch as the Constitution makes no distinction?

Senator GOLDWATER. I would say that on this kind of treaty it is the legislative power of the Congress at its peak. This gets very closely related to what we debated years ago on the War Powers Resolution, introduced by Senator Javits. I say that had he attempted to terminate any other treaty by a similar means, I would have raised the same question. But I think it is far more important to observe this. The question that comes to my mind, Mr. Chairman-and I think this is a serious question that has to be answered-is this. If we establish this as a precedent because this is the first time it has been done-what is to stop the President from dropping any law on the books, because a treaty itself is a law?

The CHAIRMAN. Well, I note that you have argued the proposition that treaties must be regarded as statutes and that since the President normally cannot terminate a statute, it therefore follows that he cannot terminate a treaty. But I would suggest that there are lots of differences between treaties and statutes.

Senator GOLDWATER. The Constitution doesn't say so.
The CHAIRMAN. Yes, I think it does.

Senator GOLDWATER. No, it doesn't.

The CHAIRMAN. Well, let me make my argument.

INITIATION OF STATUTES AND TREATIES

Let's look at the way a statute is passed. The Constitution contemplates that the Congress initiates legislation, that the Congress enacts legislation but that no statute can become law until the President signs it. On the other hand, the reverse process applies in the case of treaties. The Congress does not initiate treaties. The President decides whether to negotiate a treaty with a foreign government. He undertakes to negotiate the treaty. He is the initiator. The President's position is actually the reverse of what it is in the case of statute.

The Constitution provides that having signed a treaty, he mustif he choses to proceed with ratification-present it to the Senate, and it takes a two-thirds vote of the Senate to give it force and effect.

So I would suggest that just an examination of the procedures in dealing with statutes as opposed to treaties would show that we have a different sequence. It is the Senate, in effect that signs on the treaty by a two-thirds vote and gives it validity; just as it is the President who makes a statute law by signing on when he approves a statutory proposal sent to him by the Congress.

Senator GOLDWATER. But Mr. Chairman, once that treaty has been ratified, it carries the same power-in fact, according to Jefferson, the supreme power of law. Now I will agree with your argument that we have in the Constitution clearly defined ways to arrive at laws and to arrive at treaties. Because the Constitution does not spell out how we can undo a law, I think, nonetheless, we all know that we can meet and by a vote take off the books any law we want to. I think the same thing

applies to the President. When he wants to terminate a treaty, he should come down here and present you with the idea of termination, allow you to have hearings on it, take it out on the floor, and I have no doubt that what would happen would be the same thing as the President wanted. But I want to see him do it in the right way.

Senator JAVITS. Would the chairman yield for one point?
The CHAIRMAN. Yes.

EFFECT ON RECOGNITION/NONRECOGNITION ON TREATIES

Senator JAVITS. I think there still remains another question besides the one that Senator Church has raised: What is the effect of recognition or nonrecognition if we do not recognize a country with which we have a treaty? That is the power of the President. He can recognize or not recognize. Can the Congress require that treaty to remain in effect? If so, it is a complete nullity on its face, isn't it?

So, the President, for practical purposes, may be able to end a treaty, even if he can't do it directly, by just withdrawing recognition. Senator GOLDWATER. But the recognition power has never been used this way before. If it had been, I think we would have had it through the courts by now. There is no court case supporting the power of the President to cancel treaties by his recognition power. This is the sole. argument I have. I am not arguing whether we should or should not recognize the People's Republic of China. It is just the way it has been done.

The thing that really disturbs me, as a nonlawyer, is what will a man who comes in sometime, maybe on a white horse, and says well, if President Carter got away with this, and I don't like these laws, I will act accordingly.

Senator JAVITS. Senator Goldwater, tell me what a man would do if he became President and the House of Representatives, having just been elected, said, "We won't vote you a dime for anything, not the Army, Navy, or Air Force, not the White House-nothing." What would he do?

You know, there are these questions in this democracy. Nothing makes the Congress do anything.

Senator GOLDWATER. But what I am arguing is that the President has the power to terminate treaties only if he does it with our consent. I don't think that you, as one of the greatest supporters of the powers of the Senate, can be consistent in saying that we can overlook this power and we can give any President the right to terminate anything. I just don't buy that.

PROVISION WITHIN TREATY TO TERMINATE

The CHAIRMAN. Senator Goldwater, Im afraid that we have another vote, so we will have to cut short our discussion. But in the case of a statute, the Congress will sometimes delegate to the President limited discretionary power by which he can either invoke the law or elect not to. Where the treaty contains a provision that notice can be given and that either party, by giving notice, can terminate, the question arises as to whether by that provision the Senate intended to confer upon the President the right to terminate.

Now there are treaties, as you know, that do not contain such a provision. This particular treaty did contain that provision.

I understand your argument that by "party" you feel the Senate did not mean that the President could act alone. I understand your position. But the answer, I suppose, to the riddle depends upon a construction of what was meant by the term "party." We will have to look very carefully at the precedents to determine this.

Senator GOLDWATER. If you would yield for a moment, I have asked the State Department to reveal to me the documents used when this treaty came into being to find out how they arrived at "party." But I am unable to get that information from the State Department after several weeks of asking for it, although it has been promised under a protective order.

The CHAIRMAN. We will certainly try to get that information, Senator.

Senator GOLDWATER. I wish you success. I have had very bad luck. The CHAIRMAN. We will see if we can do better.

Let me say to both Senator Byrd and Senator Goldwater that I don't want to keep you for the rest of the afternoon in view of the fact that we have these votes on the floor. I want to say that we take very seriously the arguments you have presented, and we will look very carefully at the documents and materials you have given us in an attempt to reach a decision that is sound.

We thank you both.

Senator JAVITS. May I say, too, the fact that I asked provocative questions does not mean that I will decide that way. But I do feel that there are certain challenging questions which proponents must answer. Senator GOLDWATER. I have never know a good lawyer yet who didn't ask provocative questions.

Senator JAVITS. We both thank you.

Senator BYRD. Thank you, Mr. Chairman. Thank you, Senator Javits.

Senator GOLDWATER. Thank you.

The CHAIRMAN. Thank you, Senators.

We will take another brief recess.

[A brief recess was taken.]

The CHAIRMAN. The hearing will please come back to order.

Our next witness is the Honorable Herbert Hansell, the Legal Adviser of the Department of State.

STATEMENT OF HON. HERBERT J. HANSELL, LEGAL ADVISER, DEPARTMENT OF STATE

Mr. HANSELL. Mr. Chairman, I appreciate the opportunity to appear before you today to discuss Senate Resolution 15.

This resolution would express the sense of the Senate that approval of the Senate is required to terminate any mutual defense treaty between the United States and another nation.

UNITED STATES FULLY COMMITTED TO MUTUAL DEFENSE TREATIES

At the outset, I should like to emphasize on behalf of the administration that the United States is fully committed to our mutual defense treaties. We do not foresee any circumstances in which they would be

terminated. There should be no doubts with respect to the strength and firmness of our commitments to our mutual defense treaties and to our treaty partners. Accordingly, this resolution raises an entirely hypothetical issue.

The CHAIRMAN. Now wait a minute. Don't you think that is a bit of hyperbole you don't see any circumstances in which mutual defense treaties would be terminated?

There are mutual defense treaties that are moribund, like SEATO. Even the headquarters structure has been abandoned. SEATO was never honored, except in its breach, by any of the major signatories, except the United States. Are we going to go on living forever with SEATO?

Mr. HANSELL. Mr. Chairman, this, of course, is intended to address all of our mutual defense treaties.

The CHAIRMAN. Well, that is one of them.

You know, I don't think the State Department serves itself well when it comes in with such overstatements.

Mr. HANSELL. Well, at the moment, with respect to SEATO, it is in force and we remain a party to it. It is an obligation and we don't foresee an occasion that would call for termination of it. Recognizing the facts that you mention, our concern with the resolution is that it some how suggests that there may be on the part of the Senate, concerns with regard to intent to terminate mutual defense treaties.

The CHAIRMAN. Are you going to tell us that forever and ever, you cannot foresee circumstances when any of these treaties would ever be terminated? On its face, that statement doesn't make any sense. I can foresee many circumstances and so can you in this changing world where it would no longer be in our national interest to preserve or perpetuate a given treaty.

We have just done it with Taiwan. We are just in the act of terminating a mutual security treaty.

It just doesn't seem to me to be helpful to the State Department to say this. It doesn't give you much credibility when you come up here and make a statement like that. This is my only point. I don't think you give us reassurance by making that kind of statement.

Gentlemen, I'm terribly sorry, but we have another vote on. We will come back again to take this matter up where we are leaving it off. The committee will be in recess for a few minutes.

[A brief recess was taken.]

The CHAIRMAN. The hearing will come back to order.

The prepared statement of the Department of State will be included in the record as though read so that we may go directly to questions. [Mr. Hansell's prepared statement follows:]

PREPARED STATEMENT OF MR. HERBERT J. HANSELL

MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE:

I APPRECIATE THE OPPORTUNITY TO APPEAR BEFORE YOU TODAY TO DISCUSS SENATE RESOLUTION 15.

THIS RESOLUTION WOULD EXPRESS THE SENSE OF THE SENATE THAT APPROVAL OF THE SENATE IS REQUIRED TO TERMINATE ANY MUTUAL DEFENSE TREATY BETWEEN THE UNITED STATES AND ANOTHER NATION.

AT THE OUTSET I SHOULD LIKE TO EMPHASIZE ON BEHALF OF THE ADMINISTRATION THAT THE UNITED STATES IS FULLY COMMITTED TO OUR MUTUAL DEFENSE TREATIES. WE DO NOT FORESEE ANY CIRCUMSTANCES IN WHICH THEY WOULD BE TERMINATED. THERE SHOULD BE NO DOUBTS WITH RESPECT TO THE STRENGTH AND FIRMNESS OF OUR COMMITMENTS TO OUR MUTUAL DEFENSE TREATIES AND TO OUR TREATY PARTNERS. ACCORDINGLY, THIS RESOLUTION RAISES AN ENTIRELY HYPOTHETICAL ISSUE.

I RECOGNIZE THAT THE RESOLUTION HAS BEEN PROPOSED AS A CONSEQUENCE OF THE TERMINATION OF THE MUTUAL DEFENSE TREATY WITH TAIWAN. HOWEVER AS THIS COMMITTEE IS FULLY AWARE, THE TERMINATION OF THAT TREATY OCCURRED IN UNIQUE