Status of a Treaty a Political Question
Interpretation and Termination of Treaties as International Compacts
The repeal by Congress of the self-executing clauses of a treaty as law of the land does not of itself terminate the treaty as an international contract, although it may very well provoke the other party to the treaty to do so. Hence, the questions arise where the Constitution lodges this power and where it lodges the power to interpret the contractual provisions of treaties. The first case of outright abrogation of a treaty by the United States occurred in 1798, when Congress by the Act of July 7 of that year, pronounced the United States freed and exonerated from the stipulations of the Treaties of 1778 with France.353 This act was followed two days later by one authorizing limited hostilities against the same country; in the case of Bas v. Tingy,354 the Supreme Court treated the act of abrogation as simply one of a bundle of acts declaring public war upon the French Republic.
353 1 Stat. 578 (1798).
354 4 U.S. (4 Dall.) 37 (1800). See also Gray v. United States, 21 Ct. Cl. 340 (1886), with respect to claims arising out of this situation.
Termination of Treaties by Notice.—Typically, a treaty provides for its termination by notice of one of the parties, usually after a prescribed time from the date of notice. Of course, treaties may also be terminated by agreement of the parties, or by breach by one of the parties, or by some other means. But it is in the instance of termination by notice that the issue has frequently been raised: where in the Government of the United States does the Constitution lodge the power to unmake treaties?355 Reasonable arguments may be made locating the power in the President alone, in the President and Senate, or in the Congress. Presidents generally have asserted the foreign relations power reposed in them under Article II and the inherent powers argument made in Curtiss-Wright. Because the Constitution requires the consent of the Senate for making a treaty, one can logically argue that its consent is as well required for terminating it. Finally, because treaties are, like statutes, the supreme law of the land, it may well be argued that, again like statutes, they may be undone only through law-making by the entire Congress; additionally, since Congress may be required to implement treaties and may displace them through legislation, this argument is reenforced.
Definitive resolution of this argument appears only remotely possible. Historical practice provides support for all three arguments and the judicial branch seems unlikely to essay any answer.
While abrogation of the French treaty, mentioned above, is apparently the only example of termination by Congress through a public law, many instances may be cited of congressional actions mandating terminations by notice of the President or changing the legal environment so that the President is required to terminate. The initial precedent in the instance of termination by notice pursuant to congressional action appears to have occurred in 1846,356 when by joint resolution Congress authorized the President at his discretion to notify the British government of the abrogation of the Convention of August 6, 1827, relative to the joint occupation of the Oregon Territory. As the President himself had requested the resolution, the episode is often cited to support the theory that international conventions to which the United States is a party, even those terminable on notice, are terminable only through action of Congress.357 Subsequently, Congress has often passed resolutions denouncing treaties or treaty provisions, which by their own terms were terminable on notice, and Presidents have usually, though not invariably, carried out such resolutions.358 By the La FolletteFuruseth Seaman’s Act,359 President Wilson was directed, within ninety days after the passage of the act, to give notice to foreign governments that so much of any treaties as might be in conflict with the provisions of the act would terminate on the expiration of the periods of notice provided for in such treaties, and the required notice was given.360 When, however, by section 34 of the Jones Merchant Marine Act of 1920, the same President was authorized and directed within ninety days to give notice to the other parties to certain treaties, with which the Act was not in conflict but which might restrict Congress in the future from enacting discriminatory tonnage duties, President Wilson refused to comply, asserting that he did not deem the direction contained in section 34 ... an exercise of any constitutional power possessed by Congress.361 The same attitude toward section 34 was continued by Presidents Harding and Coolidge.362
355 The matter was most extensively canvassed in the debate with respect to President Carter’s termination of the Mutual Defense Treaty of 1954 with the Republic of China (Taiwan). See, e.g., the various views argued in Treaty Termination: Hearings Before the Senate Committee on Foreign Relations, 96th Congress, 1st Sess. (1979). On the issue generally, see Restatement, Foreign Relations, § 339; CRS Study, supra, 158-167; L. Henkin, supra, at 167-171; Bestor, Respective Roles of Senate and President in the Making and Abrogation of Treaties—The Original Intent of the Framers of the Constitution Historically Examined, 55 WASH. L. REV. 1 (1979); Berger, The President’s Unilateral Termination of the Taiwan Treaty, 75 NW. U. L. REV. 577 (1980).
356 Compare the different views of the 1846 action in Treaty Termination: Hearings Before the Senate Committee on Foreign Relations, 96th Congress, 1st Sess. (1979), 160-162 (memorandum of Hon. Herbert Hansell, Legal Advisor, Department of State), and in Taiwan: Hearings Before the Senate Committee on Foreign Relations, 96th Congress, 1st Sess. (1979), 300 (memorandum of Senator Goldwater).
357 S. Crandall, supra, at 458-459.
358 Id. at 459-62; Q. Wright, supra, at 258.
359 38 Stat. 1164 (1915).
360 S. Crandall, supra, at 460. See Van der Weyde v. Ocean Transp. Co., 297 U. S. 114 (1936).
361 41 Stat. 1007. See Reeves, The Jones Act and the Denunciation of Treaties, 15 AM. J. INT’L. L. 33 (1921). In 1879, Congress passed a resolution requiring the President to abrogate a treaty with China, but President Hayes vetoed it, partly on the ground that Congress as an entity had no role to play in ending treaties, only the President with the advice and consent of the Senate. 9 J. Richardson, supra at 4466, 4470-4471. For the views of President Taft on the matter in context, see W. TAFT, THE PRESIDENCY, ITS DUTIES, ITS POWERS, ITS OPPORTUNITIES AND ITS LIMITATIONS 112-113 (1916).
362 Since this time, very few instances appear in which Congress has requested or directed termination by notice, but they have resulted in compliance. E.g., 65 Stat. 72 (1951) (directing termination of most-favored-nation provisions with certain Communist countries in commercial treaties); 70 Stat. 773 (1956) (requesting renunciation of treaty rights of extraterritoriality in Morroco). The most recent example appears to be § 313 of the Anti-Apartheid Act of 1986, which required the Secretary of State to terminate immediately, in accordance with its terms, the tax treaty and protocol with South Africa that had been concluded on Decemberr 13, 1946. P. L. 99-440, 100 Stat. 3515, 22 U.S.C. § 5063.
Very few precedents exist in which the President terminated a treaty after obtaining the approval of the Senate alone. The first occurred in 1854-1855, when President Pierce requested and received Senate approval to terminate a treaty with Denmark.363 When the validity of this action was questioned in the Senate, the Committee on Foreign Relations reported that the procedure was correct, that prior full-Congress actions were incorrect, and that the right to terminate resides in the treaty-making authorities, the President and the Senate.364
363 5 J. Richardson, supra at 279, 334.
364 S. Rep. No. 97, 34th Congress, 1st Sess. (1856), 6-7. The other instance was President Wilson’s request, which the Senate endorsed, for termination of the International Sanitary Convention of 1903. See 61 CONG. REC. 1793-1794 (1921). See CRS Study, supra at 161-62.
Examples of treaty terminations in which the President acted alone are much disputed with respect both to facts and to the underlying legal circumstances.365 Apparently, President Lincoln was the first to give notice of termination in the absence of prior congressional authorization or direction, and Congress shortly thereafter by joint resolution ratified his action.366 The first such action by the President, with no such subsequent congressional action, appears to be that of President McKinley in 1899, in terminating an 1850 treaty with Switzerland, but the action may be explainable as the treaty being inconsistent with a subsequently enacted law.367 Other such renunciations by the President acting on his own have been similarly explained and similarly the explanations have been controverted. While the Department of State, in setting forth legal justification for President Carter’s notice of termination of the treaty with Taiwan, cited many examples of the President acting alone, many of these are ambiguous and may be explained away by, i.e., conflicts with later statutes, changed circumstances, or the like.368
No such ambiguity accompanied President Carter’s action on the Taiwan treaty,369 and a somewhat lengthy Senate debate was provoked. In the end, the Senate on a preliminary vote approved a sense of the Senate resolution claiming for itself a consenting role in the termination of treaties, but no final vote was ever taken and the Senate thus did not place itself in conflict with the President.370 However, several Members of Congress went to court to contest the termination, apparently the first time a judicial resolution of the question had been sought. A divided Court of Appeals, on the merits, held that presidential action was sufficient by itself to terminate treaties, but the Supreme Court, no majority agreeing on a common ground, vacated that decision and instructed the trial court to dismiss the suit.371 While no opinion of the Court bars future litigation, it appears that the political question doctrine or some other rule of judicial restraint will leave such disputes to the contending forces of the political branches.372
365 Compare, e.g., Treaty Termination: Hearings Before the Senate Committee on Foreign Relations, 96th Congress, 1st Sess. (1979), 156-191 (memorandum of Hon. Herbert Hansell, Legal Advisor, Department of State), with Taiwan: Hearings Before the Senate Committee on Foreign Relations, 96th Congress, 1st Sess. (1979), 300-307 (memorandum of Senator Goldwater). See CRS Study, supra at 164-66.
366 13 Stat. 568 (1865).
367 The treaty, see 11 C. BEVANS, TREATIES AND OTHER INTERNATIONAL AGREEMENTS OF THE UNITED STATES OF AMERICA 894 (1970), was probably at odds with the Tariff Act of 1897. 30 Stat. 151.
368 Compare the views expressed in the Hansell and Goldwater memoranda, supra. For expressions of views preceding the immediate controversy, see, e.g., Riesenfeld, The Power of Congress and the President in International Relations, 25 CALIF. L. REV. 643, 658-665 (1937); Nelson, The Termination of Treaties and Executive Agreements by the United States, 42 MINN. L. REV. 879 (1958).
369 Note that the President terminated the treaty in the face of an expression of the sense of Congress that prior consultation between President and Congress should occur. 92 Stat. 730, 746 (1978).
370 Originally, S. Res. 15 had disapproved presidential action alone, but it was amended and reported by the Foreign Relations Committee to recognize at least 14 bases of presidential termination. S. Rep. No. 119, 96th Congress, 1st Sess. (1979). In turn, this resolution was amended to state the described sense of the Senate view, but the matter was never brought to final action. See 125 CONG. REC. 13672, 13696, 13711, 15209, 15859 (1979).
371 Goldwater v. Carter, 617 F.2d 697 (D.C. Cir.) (en banc), vacated and remanded, 444 U.S. 996 (1979). Four Justices found the case nonjusticiable because of the political question doctrine, id. at 1002, but one other Justice in the majority and one in dissent rejected this analysis. Id. at 998 (Justice Powell), 1006 (Justice Brennan). The remaining three Justices were silent on the doctrine.
Determination Whether a Treaty Has Lapsed.—There is clear judicial recognition that the President may without consulting Congress validly determine the question whether specific treaty provisions have lapsed. The following passage from Justice Lurton’s opinion in Charlton v. Kelly373 is pertinent: If the attitude of Italy was, as contended, a violation of the obligation of the treaty, which, in international law, would have justified the United States in denouncing the treaty as no longer obligatory, it did not automatically have that effect. If the United States elected not to declare its abrogation, or come to a rupture, the treaty would remain in force. It was only voidable, not void; and if the United States should prefer, it might waive any breach which in its judgment had occurred and conform to its own obligation as if there had been no such breach.... That the political branch of the Government recognizes the treaty obligation as still existing is evidenced by its action in this case.... The executive department having thus elected to waive any right to free itself from the obligation to deliver up its own citizens, it is the plain duty of this court to recognize the obligation to surrender the appellant as one imposed by the treaty as the supreme law of the land as affording authority for the warrant of extradition.374 So also it is primarily for the political departments to determine whether certain provisions of a treaty have survived a war in which the other contracting state ceased to exist as a member of the international community.375
Status of a Treaty a Political Question.—It is clear that many questions which arise concerning a treaty are of a political nature and will not be decided by the courts. In the words of Justice Curtis in Taylor v. Morton:376 It is not a judicial question, whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty, has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; whether the views and acts of a foreign sovereign, manifested through his representative have given just occasion to the political departments of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise.... These powers have not been confided by the people to the judiciary, which has no suitable means to exercise them; but to the executive and the legislative departments of our government. They belong to diplomacy and legislation, and not to the administration of existing laws and it necessarily follows that if they are denied to Congress and the Executive, in the exercise of their legislative power, they can be found nowhere, in our system of government. Chief Justice Marshall’s language in Foster v. Neilson377 is to the same effect.
376 23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass. 1855).
377 27 U.S. (2 Pet.) 253, 309 (1829). Baker v. Carr, 369 U.S. 186 (1962), qualifies this certainty considerably, and Goldwater v. Carter, 444 U.S. 996 (1979), prolongs the uncertainty. See L. Henkin, supra at 208-16; Restatement, Foreign Relations, § 326.