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Litigating the President’s Power to Terminate Treaties

Published online by Cambridge University Press:  27 February 2017

Louis Henkin
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Editorial Comments
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American Journal of International Law , Volume 73 , Issue 4 , October 1979 , pp. 647 - 654
Copyright
Copyright © American Society of International Law 1979

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References

1 E.g., The War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973).

2 Dole v. Carter, 444 F. Supp. 1065 (D. Kan. 1977), motion for injunction pending appeal denied, 569 F.2d 1109 (10th Cir. 1977); Edwards v. Carter, 580 F.2d 1055 (D.C. Cir. 1978), cert, denied, 436 U.S. 907 (1978). Earlier, members of Congress were among those who sought the help of the courts against the Vietnam War, e.g., Gravel v. Laird, 347 F. Supp. 7 (D.D.C. 1972); Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), rev’g 361 F. Supp. 553 (1973), cert, denied, 416 U.S. 936 (1974).

3 Goldwater v. Carter (D.D.C. June 6, 1979), reprinted in 125 Cong. Rec. S7050 (daily ed. June 6, 1979).

4 Baker v. Carr, 369 U.S. 186 (1962). The Court said:

There are sweeping statements to the effect that all questions touching foreign relations are political questions. Not only does the resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single-voiced statement of the Government’s views. Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.

369 U.S., at 211 (footnotes omitted). See generally, Henkin, L., Foreign Affairs and the Constitution 210-16 (1972)Google Scholar; compare Henkin, , Is There a “Political Question” Doctrine? , 85 Yale L.J. 597 (1976)Google Scholar.

5 E.g., Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), rev’g 361 F. Supp. 553 (1973), cert, denied, 416 U.S. 936 (1974); and Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973).

6 The court did not consider whether the case might be moot because the treaty in question was dead, and no order of the court could have any effect on it. The Mutual Defense Treaty of 1954 was between the United States and the state of China represented by the Nationalist regime, then the recognized Government of China. That regime has now been derecognized and the People’s Republic recognized instead. Derecognition of the government that made a treaty does not, of course, terminate the treaty; a treaty is not between governments but between states, and the state of China persists and has not been affected by the recognition of a different government. This particular treaty, however, was effectively with China as represented by the Nationalist Government and was directed against authorities of the People’s Republic. It would be anomalous to consider that such a treaty could survive derecognition of the Nationalist authorities and recognition of Peking, the target of the treaty. Neither the United States nor the now-recognized Government of China sees the 1954 treaty now as a treaty with China: the Communist authorities had condemned and rejected the treaty from the beginning; the United States surely does not see the Mutual Defense Treaty as a treaty with China as now represented. As to some other treaties made by the United States with the Nationalist authorities, one can perhaps argue that they survive the change of recognized regimes, continuing as a treaty with China, although applicable to only one part of China (Taiwan) and administered between the United States and the local (Taiwan) authorities with the tacit acquiescence of the recognized Government of China. The Mutual Defense Treaty, however, by its very character, one might say, has become a nontreaty with a nonstate represented by a nongovernment.

Under the above argument, the President did not have to give notice of termination of the Mutual Defense Treaty; he had killed it by derecognizing the Nationalist authorities and recognizing the Communists. Perhaps for political reasons, both domestic and international, including a desire to continue other links with Taiwan and to continue to deter Peking from attacking the island, the President saw fit to treat the Mutual Defense Treaty as alive, terminating it only after 12 months. Since the President had done that, the executive branch would not, of course, be disposed to argue in Senator Goldwater’s case that the treaty had died and the case was moot. The court could have considered the mootness question on its own motion but might have been reluctant to challenge the President’s policy on that issue, perhaps treating it as a “political question” on which the courts should accept executive determination. See note 4 supra.

7 E.g., Myers v. United States, 272 U.S. 52 (1926); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

8 See Frankfurter, J., note 14 infra; Is There a “Political Question” Doctrine?, note 4 supra, at 600 n.8.

9 See Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974). The House of Representatives has also been held to have standing to assert its investigating power in court and to designate a member to intervene in a judicial proceeding on its behalf. U.S. v. American Tel. & Tel. Co., 551 F.2d 384, 391 (D.C. Cir. 1976).

10 See Baker v. Carr, 369 U.S. 186, 204 (1962); Association of Data Processing Service Orgs., Inc. v. Camp, 397 U.S. 150, 152 (1970).

11 See, e.g., Harrington v. Schlesinger, 528 F.2d 455, 459 (4th Cir. 1975); Metcalf v. National Petroleum Council, 553 F.2d 176 (D.C. Cir. 1977); Harrington v. Bush, 553 F.2d 190 (D.C. Cir. 1977), which (at 207-09) abandoned a more ample view of standing suggested in Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973), and relied on in Nader v. Bork, 366 F. Supp. 104, 106 (D.D.C. 1973).

12 511 F.2d 430 (D.C. Cir. 1974). See also Coleman v. Miller, 307 U.S. 433, 438 (1939), upholding the standing of state legislators, in order to protect the effectiveness of their vote, to challenge the authority of the Lieutenant-Governor to cast a tiebreaking vote for ratification of a constitutional amendment. But see the Frankfurter opinion, note 14 infra.

13 See, e.g., United States v. Richardson, 418 U.S. 166 (1974); Warth v. Seldin, 422 U.S. 490 (1975); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976).

14 Compare the opinion of Frankfurter, J., in Coleman v. Miller, 307 U.S. 433, 460 (1939).

15 The Court of Appeals for the District of Columbia took a limited view of Kennedy in Harrington v. Bush, 553 F.2d 190 (D.C. Cir. 1977).

16 The district court denied a member of Congress standing to challenge an impoundment of funds in Brown v. Ruckelshaus, 364 F. Supp. 258, 264 (CD. Cal. 1973).

17 “If the Senate or the Congress rejected the President’s notice of termination or asserted a right to participate in the treaty termination process, the Court would be confronted by a clash of political branches in a posture suitable for judicial review.” Goldwater v. Carter, note 3 supra, at S7051. Does a “sense” resolution “assert a right to participate”? See text at p. 651 and note 18 infra.

18 See 125 Cong. Rec. S7015, S7038-39 (daily ed. June 6, 1979).

The text quoted is that of the “Byrd Resolution,” which on June 6, 1979, die Senate adopted as an amendment substituting for a different draft resolution before the Senate. The final vote on the resolution as amended, however, was postponed, and the matter returned to the Senate calendar on June 21. See Legislative Calendar, U.S. Senate, 96th Cong., 1st Sess., July 27, 1979. As of that time, then, the Senate had not in fact adopted the Byrd proposal as its Senate “sense resolution.”

19 See Treaty Termination: Hearings before the Senate Coram, on Foreign Relations, 96th Cong., 1st Sess. (April 9-11, 1979); see also Senate Comm. on Foreign Relations, 95th Cong., 2D Sess., Termination of Treaties: The Constitutional Allocation of Power (Comm. Print 1978).

20 See Vienna Convention on the Law of Treaties, Arts. 46-50, 60-62; reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969).

21 See Foreign Affairs and the Constitution, supra note 4, at 136, 167–71.

22 Goldwater v. Carter, note 3 supra, at S7051.

23 See Memorandum of the Legal Adviser, in Treaty Termination, note 19 supra, at 147 et sea.

24 See Foreign Affairs and the constitution, supra note 4, at 42-50; U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).

While the power of the President to terminate a treaty has not been adjudicated, the Supreme Court has held that when the United States had the option of terminating a treaty because of a material breach by another state, a decision by the executive branch that the U.S. option should not be exercised and the treaty should continue was binding on the courts. Charlton v. Kelly, 229 U.S. 447 (1913).

25 I have tried to make it. See Foreign Affairs and the Constitution 169-70, 79-85. 2 6See 1 Stat. 578 (1798); Foreign Affairs and the Constitution 418 n.136.

27 See Foreign Affairs and the Constitution 74-76.

28 See id. at 79-85.

29 See text at note 22 supra.

30 Congress sometimes attempted, by legislation, to require such Senate consent, but the Supreme Court held such legislation beyond the power of Congress. Myers v. United States, 272 U.S. 52 (1926).

31 It might be argued similarly that if more than a third of the Senate, at any time, wishes a treaty terminated, the treaty has lost the needed Senate support. But the role of the Senate is only auxiliary; the President is the sole organ and the principal maker of treaties and his willingness to unmake a treaty is clearly necessary. It would wreak havoc to give a third of the Senate power to make such decisions for the United States independently of the President, and would put every treaty in continuing jeopardy.

32 See Foster & Elam v. Neilson, 27 U.S. (2 Pet.) 253 (1829).

33 See, e.g., Techt v. Hughes, 229 N.Y. 222, 128 N.E. 185 (1920), cert, denied, 254 U.S. 643 (1920); Karnuth v. United States ex rel. Albro, 279 U.S. 231 (1929); Clark v. Allen, 331 U.S. 503 (1947).

34 See note 6 supra.

35 That was the purport, in part, of a sense resolution proposed by the Senate Foreign Relations Committee which the Senate never adopted. Senate Comm. on Foreign Relations, Treaty Termination Resolution, S. Rep. No. 96-119, 96th Cong., 1st Sess. 1 (1979). As noted in that report, I served the committee as consultant at that time, but claim neither credit nor responsibility for that report or for the resolution it proposed.

On the basis of the congressional war power, one might distinguish mutual defense treaties from other treaties, as the Senate did in the amendment voted on June 6, 1979, note 18 supra. But that resolution purported to distinguish such treaties as requiring Senate consent, not concurrence of Congress as a whole. Whatever argument there may be for requiring Senate consent to termination provides no basis for requiring such consent for terminating some treaties but not others. See text at p. 652.

* After this editorial note was completed and in print, Judge Gasch (on October 17, 1979) ruled that the vote of the Senate (note 18 supra) served to give the plaintiff Congressmen standing, and that the President could not act to terminate the treaty with the concurrence of Congress or of two-thirds of the Senate (see New York Times, October 18, 1979, p. 1).