4. PLAINTIFFS Senator Strom Thurmond and Senator Carl Curtis, are duly elected Senators from the States of South Carolina and Nebraska respectively. Senators Thurmond and Curtis sue herein in support of their constitutional right to vote and otherwise to give their advice and consent with respect to the termination of the 1954 Mutual Defense Treaty with the Republic of China, and in support of their sworn duty to preserve, protect, and defend the Constitutional allocation of powers to the Executive and Legislative branches of the federal government.

Senators Thurmond and Curtis were

members of the Senate in 1955 at the time the Mutual Defense Treaty was submitted to the Senate, and voted in favor of the resolution of ratification of that treaty, and further seek: to preserve the effectiveness of their past votes.

5.

PLAINTIFFS, Senators Jake Garn and Orrin Hatch from Utah, and Senator Jesse A. Helms from South Carolina, are duly elected Senators from their respective States. Senators Garn, Hatch, and Helms sue herein in support of their consitutional right to vote and otherwise give their advice and consent with respect to the termination of the 1954 Mutual Defense Treaty with the Republic of China, and in support of their sworn duty to preserve, protect, and defend the Constitutional allocation of powers to the Executive and Legislative branches of the federal government.

6.

PLAINTIFF, Senator-elect Gordon Humphrey was duly elected to be the Senator from the State of New Hampshire, and will assume his duties as a Senator in January, 1979. Senatorelect Humphrey sues herein in support of his constitutional right, albeit inchoate until January 1979, to vote and otherwise give his advice and consent with respect to the termination of the 1954 Defense Treaty with the Republic of China.

7. PLAINTIFFS Bauman from Maryland, Symms from Idaho, McDonald from Georgia, Daniel, Jr. from Virginia, Stump from Arizona, Rudd from Arizona, Ashbrock from Ohio, and Hansen from Idaho, are all duly elected Members of the United States House of Representatives from their respective districts. These Congressman sue herein in support of their constitutional right to vote and otherwise be consulted with respect to the termination of the 1954 Defense Treaty with the Republic of China, and in support of their sworn duty to preserve, protect, and defend the Constitutional allocation of powers to the Executive and Legislative branches of the federal government.

8. DEFENDANT James Earl Carter is President of the United States, and is sued solely in his official capacity for failing under the laws of the United States to seek the advice and consent of the Senate or the approval of both Houses of Congress in his unilateral and thus unlawful attempt to terminate the 1954 Treaty with the Republic of China.

9. DEFENDANT Cyrus Vance is Secretary of State of the United States, and is sued solely in his official capacity in his assisting the President in furthering the termination of the 1954 Defense Treaty.

IV. Statement of the Claim

10.

Plaintiffs incorporate by reference paragraphs

1 through 9 inclusive.

11.

Under Article VI of the United States Constitution, a treaty is considered to be the "supreme Law of the Land."

12. The President is required under Article II, section 3 of the United States Constitution to "take care that the laws be faithfully executed."

13. By virtue of Article II, section 2, clause 2 of the United States Constitution, the Senate is a partner with the President in treaty making. As a logical and natural consequence, the Senate is a part of the authority who possesses the power of deciding upon the termination of the treaty.

14. On January 6, 1955, the President of the United States transmitted to the United States Senate for its advice and consent, pursuant to Article 2 of the United States Constitution, a proposed Mutual Defense Treaty Between the United States of America and the Republic of China, signed at Washington on December 2, 1954 (hereinafter referred to as

"the Defense Treaty"). TIAS 3178, 6 UST 433 (1955).

15. In his message to the Senate transmitting the proposed Defense Treaty, then President Eisenhower stated in pertinent part that the treaty:

"is defense and mutual in character, designed to
deter any attempt by the Chinese Communist regime
to bring its aggressive military ambitions to bear
against the treaty area.

This Mutual Defense Treaty, taken in conjunction with similar treaties already concluded with Japan, Korea, the Philippines, and Australia and New Zealand, reinforces the system of collective security in the Pacific area.

(A copy of the entire message, the Report of the Secretary of State, as well as the full text of the Defense Treaty is attached hereto as Exhibit 1). .

16. Having debated and considered the merits of the proposed Mutual Defense Treaty, the Senate on February 3, 1955 reported favorably, and on February 9, 1955, advised and consented to the resolution of ratification of the Defense Treaty.

17.

entirety:

Article X of the Defense Treaty states in its

X. This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice has been given to the other Party.

18. At the time of the drafting of the Defense Treaty and its subsequent consideration by the Senate, neither the Republic of China nor the United States ever intended or envisioned that the Defense Treaty could be terminated by the President alone.

19. There is no evidence in the negotiations leading to the signing of the Defense Treaty, in the official documents. and papers relating thereto which were transmitted to the Senate by the President, or in any of the proceedings of the Senate during its consideration of the resolution of ratification to show that the term "party" in Article X of the Defense Treaty means the President acting alone.

20. None of the Plaintiffs to this lawsuit who were members of the Senate at the time the Defense Treaty was submitted to the Senate for its advice and consent were informed or understood that the Defense Treaty could be terminated by the President alone under Article X of that treaty or otherwise.

21. Article 2 of the Vienna Convention on the Law of

Treaties defines the term "party" as "a State which has consented to be bound by the treaty and for which the treaty is in force" and not the President thereof. Under the United States Constitution and as historically interpreted by the United States, the term "party", as used in Article X of the Defense Treaty, means the President acting together with the Senate or both Houses of Congress.

22. On July 25, 1978, the Senate passed by a vote of 94 to 0, the "Dole-Stone Amendment" to the International Security Assistance Act of 1978, which stated in pertinent part:

"It is the sense of the Senate that there should

be prior consultation between the Senate and
the executive branch on any proposed policy

changes affecting the continuation in force of the
Mutual Defense Treaty of 1954."

104 Cong. Rec. S11726-28 (daily ed., July 25, 1978).

23. On September 7, 1978, at the urging of conferees appointed by the House of Representatives, the committee on conference on the International Security Assistance Act of 1978

"adopted the Senate provision [referred to in paragraph
22] with an amendment to change all references to
'Senate' to 'Congress', with the exception of the
reference to 'Senate' which remain in paragraph (a) (4)
concerning advice and consent to treaties. The
purpose of this change is to make clear that the House
of Representatives is to be included in this consul-
tation process."

The "Dole-Stone Amendment" was thus amended to read in pertinent part:

"It is the sense of the Congress that there should be prior consultation between the Congress and the executive branch on any proposed policy changes affecting the continuation in force of the Mutual Defense Treaty of 1954."

See House Report No. 95-1546 on S. 3075, at 39.