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95th Congress COMMITTEE PRINT
TERMINATION OF TREATIES: THE
CONSTITUTIONAL ALLOCATION OF POWER
COMPILED BY THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
Printed for the use of the Committee on Foreig-n Relations
U.S. GOVERNMENT PRINTING OFFICE 32-770 WASHINGTON :1979
For sale by the Superintendent of Documents, U.S. Government Printiii- Office Washington, D.C. 20402
Stock Number 052-070-04S16-6
COMMITTEE ON FOREIGN RELATIONS JOHN SPARKMAN, Alabama, Chairman FRANK CHURCH, Idaho CLIFFORD P. CASE, New Jersey
CLAIBORNE PELL, Rhode Island JACOB K. JAVITS, New York
GEORGE McGOVERN, South Dakota JAMES B. PEARSON, Kansas DICK CLARK, Iowa CHARLES H. PERCY, Illinois
JOSEPH R. BIDEN, JR., Delaware ROBERT P. GRIFFIN, Michigan JOHN GLENN, Ohio HOWARD H. BAKER, JR., Tennessee
RICHARD STONE, Florida PAUL S. SARBANES, Maryland NORVILL JONES, Chief of Staff ABNER E. KENDRICK, Chief Clerk
As a result of P1residenit Carter's I eceitibl 15,P I I97S a)flh1ollIllt coflc0r111fl1 reco"ruitiofl of the People's l'eptiblic of (hinia aMd teriti(tlion of the treaty with the lRepulblic of (iiia. icreased attention has focused oni the qilestioll of whether the P'resident mayi teriniate a treaty by himself or whether the participation of tie, Senate or the Congress is required. The Committee has compiled a s et of documents
beaingupo thse ubjctswhich, I believe, the Senate wNill find iiu it in considering these matters. I should make clear that none of these documents necessarily reflects the views of the Committee or of any of its Mfembers.
Preface ----------------------------------------------------------- ill
List of withdrawals from bilateral treaties and other international agreements, through August 1977, compiled by the Department of State---- 1 List of withdrawals from multilateral treaties and other international agreements, through August 1977, compiled by the Department of State---- 19 Foreign Relations Law of the United States, Restatement of the Law
(Second), as adopted and promulgated by the American Law Institute at
Washington, D.C., May 26, 22
Denunciation of the Warsaw Convention, Department of State press
release of November 15, 255
Withdrawal From the International Convention for the Northwest Atlantic
Fisheries, Department of State press release of January 1, 1977 -------- 27 "Abrogating Treaties," by Barry Goldwater, New York Times, October 11,
1977, p. 37, and subsequent letter to the editor ---------------------- 29
"Normal Ties With China," by Jerome Alan Cohen, New York Times,
May 21, 1978, p. 21, and subsequent letter to the 30
"On the Termination of a U.S. Treaty," Andreas F. Lowenfeld, letter to
the New York Times, May 28, 32
"The Treaty Nullifiers," Joseph M. Siracusa, letter to the New York Times,
June 27, 34
"Who Is Empowered To Terminate a Treaty?" Congressional Research
Service memorandum, 124 Congressional Record, H. 11400, October 20,
"Precedents for U.S. Abrogation of Treaties," Congressional Research
Service memorandum, February 25, 1974 --------------------------- 44
"Normalization of Relations With the PRC: Practical Implications," excerpts from hearings before the Subcommittee on Asian and Pacific Affairs of the House Committee on International Relations, 95th Congress, 1st session, September and October, 1977 (pp. 79-l34)__________ 61 "De-Recognizing Taiwan: The Legal Problems," by Victor H. Li (Carnegie
Endowment for International Peace, 1977) -------------------------- 117
"China and the Abrogation of Treaties," by Barry Goldwater, Critical
Issues (the Heritage Foundation, 145
"Unilateral Denunciation of Treaty Because of Prior Violation of Obligations by Other Party," by Bhek Pati Sinha, excerpts (Mortimus Nijhofl,
The Hague, 1966) 175
"Termination of Treaties," 35 Michigan Law Review 88 (1936)_________ 197 "Presidential Amendment and Termination of Treaties: The Case of the
Warsaw. Convention," 34 University of Chicago Law Review No. 3 (1967) 202 'Congressional Power To Abrogate the Domestic Effect of a United Nations
Treaty Commitment: Diggs v. Schultz, 13 Columbia Journal of Transnational Law No. 1 229
"The Power of Congress and the President in International Relations: Three Recent Supreme Court Decisions," by Stefan Riesenfeld, 25 California Law Review No. 6 (September 243
"Termination of Treaties by the Executive Without Congressional Approval: The Case of the Warsaw Convention," by John H. Riggs, Jr., 32 Journal of Air Law and Commerce No. 4 (Autumn 1966) ------------- 260
"The Termination of Treaties and Executive Agreements by the United States: Theory and Practice," by Randall H. Nelson, 42 Minnesota Law Review No. 5 (April 1958) ---------------------------------------- 268
"Normalizing Relations With the PRC," by Jerome Alan Cohen, Vol. 64,
American Bar Association Journlal (July 290
"Legal Implications of Recognition of the PRC," Remarks by Jerome A.
Cohen and others at the 72nd Annual Meeting of the American Society
of International Law, April 27-29, 1978, Washington, D.C---------- 293
Statement of Intention To Grant Diplomatic Recognition to the PRC, by
President Carter, December 15, 1978 -------------------------------320
"Diptomatic Relations With the PRC and Future Relations With Taiwan,"
Department of State memorandum, December 1978----------------- 322
Mutual Defense Treaty Between the United States of America and the
Republic of China, December 2, 1954 (6 UST 433; TIAS 3178; 248
UNTS 2113) ------------------------------------------------ 329
"United States Recognition of Foreign Governments," hearing on Senate
Re solution 203, before the Senate Committee on Foreign Relations, 91st
Congress, 1st Session, June 17, 1969_ 333
Txt of Senate Resolution 20., and amended versions, 91st Congress, 1st
Sion, 1969---- ------------------------------------------- 389
"Pre idvnt's Power To Give Notice of Termination of U.S.-ROC Mutual Defense Treaty," memorandum from Herbert J. Hansel, State Department
Legal Adviser, to the Secretary of State, December 15, 1978----395
LIST OF WITHDRAWALS FROM BILATERAL TREA.TIES AND OTHER INTERNATIONAL AGREEMENTS (THROUGH AUGUST 1977, COMPILED BY THE
DEPARTMENT OF STATE)
Agreement relating to fuel and vegetable oil. Exchange of notes at Buenos Aires May 9, 1945; entered into force May 9, 1945.5,9 Stat. 1799; EAS 45. Terminated September 7, 1946 by exchange of notes of September 7, 1946.
Agreement for the loan of two submarines to Argentina. Exchange of notes at Washington March 4 and April 1, 1960; entered into force April 1, 1960. 11 UST 383; TIAS 4455.
Extensions: February 1 and 17, 1965 (16 UST 124; TIAS 5770). July 2 and 15, 1970 (21 UST 1729; TI AS 6926).
Terminated September 1, 1971 when the vessels were sold by the United States.
Military service agreement. Exchange of notes at Washington March 3 1, July 17, September 16 and 30, 1942; entered into force July 18, 1942. 56 Stat. 1884; EAS 303.
Terminated March 31, 1947- the date on which the functions of the Selective Service System terminated by Act of June 29, 1946c (60 Stat. 341).
Agreement concerning the level of future imports of beef, veal, and mutton from Australia. Exchange of notes at Washington February 17, 1964; entered into force February 17, 1964. 15 UST 127; TIAS 5527.
Terminated December 31, 1970 pursuant to notice given by the United States June 30, 1970.
Agreement on the limitation of imports of fresh, chilled or frozen meat of cattle, goats, and sheep except lambs of Australian origin and imports which are direct shipments from Australia. Exchange of notes at Washington December 28, 1971; entered into force December 28,1971.22 UST 2065; TIAS 7244.
Terminated July 22, 1972 pursuant to notice given by the United States July 12, 1972.
Agreement relating to relief assistance. Signed at Vienna June 25, 1947; entered into force June 25, 1947. 61 Stat. 2970;~ TIAS 1631.
Terminated December 31, 1948 by exchange of notes of December 23 and 28, 1948.
Agreement relating to the status and facilities to be accorded in Belgium to United States forces engaged in the occupation of Germany and Austria. Exchange of notes at Brussels April 29,1948; entered into force April 29, 1948. 5 Bevans 661.
Terminated August 7, 1969 by exchange of notes of May 6 and August 7, 1969.
Treaty of commerce and navigation. Signed at Washington July 17, 1858: entered into force April 16, 1859. 12 Stat. 1043; TS 20.
Terminated July 1, 1875 pursuant to notice given by the United States July 1, 1874.
Additional article to treaty of commerce and navigation of July 17, 1858. Signed at Brussels December 20, 1868; entered into force July 19. 1869.16 Stat. 765; TS 26.
Terminated July 1, 1875 pursuant to notice given by the United States July 1, 1874.
Military service agreement. Exchange of notes at Washington March 31, July 31, October 10 and 16, 1942; entered into force August 4, 1942. 56 Stat. 1889; EAS 304.
Terminated March 31, 1947-the date on which the functions of the Selective Service System terminated by Act of June 29, 1946 (60 Stat. 341).
Agreement relating to the waiver of passport visa fees for non-immigrants. Exchange of notes at Brussels April 2 and 8, 1927; entered into force April 15, 1927. 5 Bevans 543.
Terminated March 11, 1940 pursuant to notice given by the United States January 27, 1940.
Reciprocal trade agreement. Exchange of notes at Washington February 27, 1935; entered into force May 1, 1935. 49 Stat. 3680; EAS 75.
Terminated February 10, 1963 pursuant to notice given by the United States Augist 10,1969.
Understanding that the most-favored-nation provisions of the reciprocal trade agreement of February 27, 1935 should not retire the extension to Belgium of advantages accorded by the United States to the Philippines. Exchange of notes at Washington May 4 and July 11, 1946: entered into force July 11, 1946. 61 Stat. 2436; TIAS 157.
Terminated February 10, 1963 pursuant to notice given by the United States August 10, 1962.
Convention of commerce and navigation. Signed at Lima Noveiber 30, 1836; entered into force May 28, 1838. Stat. 487 TS 274.
Terminated by tho dissolution of the Bolivian-Peru Confederation in 189.
Meminorandum of understanding on coffee prices and supplies containm provisions to increase green coffee price ceilings and other measures to insure an adequate flow of coffee. Signed at Washington Auguilst 11, 1916; entered into force August 14, 1946. Not printed.
Terminated October 17, 1946 as result of decontrol of coffee prices announced by OPA.
Agreement for the loan of two destroyers to Brazil. Exchange of notes at Rio de Janeiro September 18 and October 19, 1959; entered into force October 19,1959. 11 UST 236; TIAS 44:37.
Terminated August 1, 1973-vessels sold by the United States.
Agreement for the loan of two destroyers to Brazil. Exchange of notes at Rio de Janeiro November 21 and December 27, 1960; entered into force December 27,1960. 11 UST 2663; TIAS 4662.
Terminated August 1, 1973-vessels sold by the United States.
Agreement for the loan of two submarines to Brazil. Exchange of notes at Rio de Janeiro December 28 and 29, 1960; entered into force December 29,1960. 11 UST 2665; TIAS 4662.
Terminated July 7, 1973-vessels sold by the United States.
Agreement relating to the loan of an additional vessel to Brazil. Exchange of notes at Washington June 15 and 28, 1967; entered into force June 28, 1967. 18 UST 1262; TIAS 6278.
Terminated April 11, 1973-vessel sold by the United States.
AgTeement relating to the loan of an additional vessel to Brazil. Exchange of notes at Washington June 23 and 28, 1967; entered into force June 28, 1967. 18 UST 1364; TIAS 6292.
Terminated May 10, 1968-vessel sold by the United States.
Military service agreement. Exchange of notes at Washington January 23, April 28, and May 24, 1943; entered into force April 30, 1943. 57 Stat. 994; EAS 327.
Terminated March 31, 1947-the date on which the functions of the Selective Service System terminated by Act of June 29, 1946 (60 Stat. 341).
Agreement relating to the appointment of officers and enlisted men of the United States Army, Navy and Air Forces to constitute an advisory mission to Brazil. Signed at Washington July 29, 1948; entered into force July 29,1948. 62 Stat. 2125 ; TIAS 1778.
Terminated May 3, 1960 when entire personnel of mission was recalled by the United States.
Provisional commercial agreement providing for reciprocal unconditional most-favored-nation treatment. Exchange of notes at Sofia August 18, 1932; entered into force August 18, 1932. 48 Stat. 1753; EAS 41.
Terminated October 12, 1951 pursuant to notice given by the United States July 12, 1951.
Agreement relating to the sale of military equipment, materials, and services to Burma. Exchange of notes at Rangoon June 24, 1958; entered into force June 24,1958.9 UST 1971; TIAS 4081. Terminated June 30,1971, by exchange of notes May 12 and 13, 1971.
Agreement relating to the establishment, maintenance, and operation by the United States of aerial refueling facilities in Canada, with an-
nex. Exchange of notes at Ottawa June 20, 1958; entered into force June 20,1958.9 UST 903; TIAS 4051.
Terminated July 1, 1964 by exchange of notes of April 10 and May 13, 1963.
Agreement relating to the application of Selective Training and Service Act of 1940, as amended to Canadians in the United States, and reciprocal treatment of American citizens in Canada. Exchange of notes at Washington March 30, April 6 and 8, 1942; entered into force April 8, 1942. 56 Stat. 1477; EAS 249. The agreement was based on the United States Selective Training and Service Act of 1940, as amended (50 U.S.C., App. 301-318). The functions of the Selective Service System terminated March 31, 1947 by Act approved June 29, 1946 (60 Stat. 341).
Agreement providing for the joint establishment and operation in Canada of a command and data acquisition station (PROJECT NIMBUS). Exchange of notes at Ottawa December 28, 1962; entered into force December 28,1962.13 UST 3858; TIAS 5260.
Terminated February 4, 1964 by exchange of notes.
Agreement concerning the establishment and operation of a temporary space tracking facility in connection with Project Skylab, with annex. Exchange of notes at Ottawa December 20, 1971 and February 3., 1972; entered into force February 23, 1972. 23 UST 122; TIAS 7281.
Amendments and extensions: June 5, 1973 (24 UST 1743; TIAS 7678). November 26,1974 (TIAS 8316).
Terminated November 17, 1975 pursuant to notice given by the United States August 19, 1975.
Agreement for the loan of a United States submarine to Chile. Exchange of notes at Santiago June 28 and July 16, 1960; entered into force July 16,1960. 11 UST 2197; TIAS 4589.
Terminated September 7, 1972-vessel sold by the United States.
Technical agreement for a cooperative program of education. Signed at Santiago January 16, 1951; entered into force January 16, 1951. 2 UST 922; TIAS 2246.
Terminated July 3, 1951 pursuant to notice given by the United States April 3,1951.
Agreement relating to military service. Exchange of notes at Washington June 7 and 11, 1945; entered into force June 11, 1945. 59 Stat. 1610: EAS 478.
Terminated March 31, 1947-the date on which the functions of the Selective Service System terminated by Act of June 29, 1946 (60 Stat. 341).
Agreement for the establishment and operation of rawinsonde observation stat ions at Antofagasta, Quintero and Puerto Montt. Chile. Exchange of notes at Santiago March 1, 1957; entered into force March 25, 1957. 8 UST 436; TIAS 3795.
Extensions: November 13 and 21. 1958 (9 UST 1461; TIAS -1142). July 21 and September 7, 1960 (11 UST 2176; TTAS4585).
Terminaited Decenmber 15, 1975 pursuant to notice given by the lUnited States.
CHINA, REPUBLIC OF
Agreement relating to the loan of two destroyers to China. Exchange of notes at Talpei January 13, 1954; entered into force January 13, 1954. 5 UST 207; TIAS 2916.
Extensions: September 22, 1959 (10 UST 1819; TIAS 4340). June 11 and 18,1969 (20 UST 2647; TIAS 6723).
Terminated November 1, 1974-vessels sold by the United States.
Agreement for the loan of a destroyer to China. Exchange of notes at Taipei February 7, 1959; entered into force February 7, 1959. 10 UST 177; TIAS 4180.
Terminated November 1, 1974-vessel sold by the United States.
Agreement relating to military service. Exchange of notes at Washington November 6, 1943, May 11 and June 13, 1944; entered into force June 13, 1944. 58 Stat. 1442; EAS 436.
Terminated March 31, 1947-the date on which the functions of the Selective Service System terminated by Act of June 29, 1946 (60 Stat. 341).
Agreement relating to a cooperative program of anthropological research and investigation in Colombia. Exchange of notes at Bogot.i November 20 and 24, 1950; entered into force November 24, 1950. 2 UST 398; TIAS 2179.
Terminated July 1, 1952 pursuant to notice given by the United States May 2, 1952.
Agreement relating to military service. Exchange of notes at Washington January 27, 1944; entered into force January 27, 1944. 58 Stat. 1296; EAS 407.
Terminated March 31, 1947-the date on which the functions of the Selective Service System terminated by Act of June 29, 1946 (60 Stat. 341).
Agreement relating to a radio range station at Parrita and use of Costa Rican airport by United Statees army aircraft. Exchange of notes at San Jose' June 7 and July 12, 1943; entered into force July 12, 1943. Not printed.
Extension: October 22 and 24, 1946 (Not printed).
Terminated September 16, 1949 when range station was transferred to Costa Rica.
Commercial convention. Signed at 1-Tabana December 11, 1902; entered into force December 27,1903.33 Stat. 2136; TS 427.
Terminated August 21, 1963 pursuant to notice given by the United States August 21, 1962.
Supplementary commercial convention. Signed at Washington Januir- 26, 1903: entered into force March 31. 1903. 33 Stat. 2145; TS 428.
Terminated August 21, 1963 pursuant to notice given by the United States August 21, 1962.
Agreement relating to the naval aviation base at San Julian. Exchange of notes at Habana July 17, 19, and 20, 1.942; entered into force July 20, 1912. Not printed.
Tennrminated May 20, 1946 when airbase was turned over to Cuba.
Military service agreement. Exchange of notes at Washington November 6, 1942, January 9 and February 1, 1942; entered into force January 11, 1943. 57 Stat. 960, EAS 321.
Terminated March 31, 1947-the date on which the functions of the Selective Service System terminated by Act of June 29, 1946 (60 Stat. 341).
Reciprocal trade agreement, with related notes. Signed at Washington August 24, 1934; entered into force September 3, 1934. 49 Stat. 3559; EAS 67.
Terminated August 21, 1963 pursuant to notice given by the United States August 21, 1962.
Supplemental trade agreement, with protocol and exchanges of notes. Signed at Washington December 18, 1939; entered into force December 23, 1939. 54 Stat. 1997; EAS 165.
Terminated August 21, 1963 pursuant to notice given by the United States August 21, 1962.
Supplementary trade agreement, with exchange of notes. Signed at Habana December 23, 1941; entered into force January 5, 1942. 55 Stat. 1449; EAS 229.
Terminated August 21, 1963 pursuant to notice given by the United States August 21, 1962. ..
Agreement relating to military service. Exchange of notes at Washington April 3, 1942, September 29 and October 21, 1943; entered into force September 29,1943. 57 Stat. 1070; EAS 341.
Terminated March 31, 1947-the date on which the functions of the Selective Service System terminated by Act of June 29, 1946 (60 Stat. 341).
Additional articles to the general convention of friendship, commerce and navigation. Signed at Washington July 11, 1861; entered into force September 18, 1861.13 Stat. 605; TS 68.
Terminated July 1.1916 pursuant to the Act of March 4, 1915 (1915 Foreign Relations p. 6).
Do~rI NCANI REPUBLIC
Commercial arrangement. Exchange of notes at Washington June 4, 1891; entered into force September 1, 1891. TS 75.
Terminated October 27, 1894 by exchange of notes of October 26 and 27, 1894.
Protocol of agreement for publication of commercial arrangement. Signed at 'Washington June 4, 1891; entered into force June 4, 1891. TS 74.
Terminated October 27,1894 by exchange of notes of October 26 and Q. 1894.
Alphabetical repertory of the commercial arrangement of June 4, 1891. Signed at Washington August 11, 1891; entered into force Sept emher .1 1891. TS 75.
Terminated October 27, 1894 by exchange of notes of October 2o6 and 7, 1894.
Naval mission agreement. Signed at C(iudad Trujillo December 7, 1956; entered into force December 7, 1956. 7 UST 3237: TIAS 3703.
Terminated September 18, 1960-the date of departure of the last personnel of the mission.
Memorandum of understanding concerning the relhabilitat ion of certain Dominican roads. Signed at Ciudad Trujillo Noveniber 9, 1942; entered into force November 9, 1942. Not printed.
Terminated January 10, 1946 pursuant to notice given by the United States December 10, 1945.
General agreement for technical cooperation. Exbchange of notes at Ciudad Trujillo February 20, 1951; entered into force February 20, 1951.2 UST 709; TIAS 2226.
Amendment: December 12, 1951 and January 5, 1952 (3 UST 4708; TIAS 2630).
Terminated November 30, 1960 pursuant to notice given by the United States August 30, 1960.
Agreement relating to a vocational education programin in the Dominican Republic. Exchange of notes at Ciudad Trujillo March 16, 1951; entered into force March 16, 1951. 2 UST 897; TIAS 2244.
Amendments and extensions: February 19 and March 19. 1954 (5 UST 1117; TIAS 2994). April 19 and May 5, 1955 (6 UST 3075; TIAS 3358). June 2 and 7, 1960 (11 UST 1831; TIAS 4529).
Terminated November 30, 1960 pursuant to notice given by the United States August 30, 1960.
Agreement relating to a cooperative program of education in the Dominican Republic. Exchange of notes at Ciudad Trujillo February 12 and April 4, 1952; entered into force April 4, 1952. 3 UST 4034; TIAS 2544.
Terminated November 30. 1960 pursuant to notice given by the United States August 30, 1960.
Interim military arrangement. Exchange of notes at Quito Septeiber 9, 1970: entered into force September 9, 1970. 21 UST 2456; TIAS 6984.
Terminated February 11, 1971 pursuant to exchange of notes of February 1 and 11, 1971.
Agreement for the reciprocal waiver of nonimmigrant passport visa fees. Exchange of notes at Quito July 2 and 4,1936; entered into force July 20, 1936. 7 Bevans 336.
Terminated February 6, 1963 by exchange of notes of December 11, 1952 and January 7, 1963.
Reciprocal trade agreement. Signed at Quito August 6, 1938; entered into force October 23. 1938. 53 Stat. 1951; EAS 133.
Amendment : March 2, 1942 (56 Stat. 1472; EAS 248).
Terminated July 17, 1956 pursuant to notice given by the United States January 17, 1956.
Arrangement relating to the establishment of customs and other controls at Payne Field. Exchange of notes at Cairo January 5, 1946; entered into force January 5, 1946. 3 UST 530; TIAS 2410.
Terminated December 15, 1946 when the Field was formally delivered to Egypt.
Agreement relating to jurisdiction over criminal offenses committed by the armed forces of the United States. Exchange of notes at Cairo arch 2, 1943; entered into force March 2, 1943. 57 Stat. 1197; EAS 356.
Terminated April 28, 1952 by Act of Congress of January 2, 1942 (55 Stat. 880).
Military service agreement. Exchange of notes at Washington April 3. May 14 and 31, 1943; entered into force May 15, 1943. 57 Stat. 982: EAS 325.
Terminated March 31, 1947-the date on which the functions of the Selective Service System terminated by Act of June 29, 1946 (60 Stat. 341).
Treaty of alliance. Signed at Paris February 6, 1778; entered into force July 17, 1778. 8 Stat. 6; TS 82.
Terminated July 7, 1798 by Act of Congress of July 7, 1798 (1 Stat. 578).
Air navigation arrangement. Exchange of notes at Paris July 15, 1939: entered into force August 15, 1939. 53 Stat. 2408; EAS 152.
Terminated April 25, 1970 pursuant to notice given the United States February 24. 1970.
Treaty of amity and commerce. Signed at Paris February 6, 1778; entered into force July 17, 1778. 8 Stat. 12; TS 83.
Terminated July 7, 1798 by Act of Congress of July 7, 1798 (1 Stat. g) 18).
Act separate and secret reserving the right of the King of Spain to agree to the treaty of amity and commerce and the treaty of alliance between the United States and France. Signed at Paris February 6, 1778: entered into force July 17, 1778. 17 Stat. 7915; TS 83.
Terminated July 7, 1798 by Act of Congress of July 7, 1798 (1 Stat. 578).
Exchange of notes referring to Articles a and 3 of the treaty of amity and commerce of February 6, 1778. Exchange of notes at Versailles August 27 and September 9, 1784 and at Passy September 3, 1784. 7 Bevans 792.
Termiinated July 7, 1798 by Act of Congress of July 7, 1798 (1 Stat. 57R).
Reciprocal commercial agreement. Signed at Washington May 28, 18 8: entered into force June 1, 1898. TS 98.
Terminated October 31, 1909 pumrsuant to the Tariff Act of 1909.
Amen(latorv and additional agreement to the commercial agreement of May 28, 1898. Signed at Washington August 20, 1902; entered into forne August 22. 1902. TS 410.
Terminated October 31, 1909 pursuant to the Tariff Act of 1909.
Additional commercial agreement. Signed at Washington January 28:1908: entered into force February 1, 1908. TS 469.
Terminated October 31, 1909 pursuant to the Tariff Act of 1909.
Convention defining and establishing the functions and privileges of consuls and vice consuls. Signed at Versailles November 14, 1788; entered into force January 6, 1790. 8 Stat. 106; TS 84.
Terminated July 7, 1898 pursuant to an Act of Congress of July 7, 1798 (1 Stat. 578).
Agreement relating to the loan of the small aircraft carTier "Belleau Wood" (CVL) to France. Exchange of notes at Washington September 2, 1953; entered into force September 2, 1953. 5 UST 137; TIAS 2907.
Amendments and extension: February 3, 1956 (7 UST 345; TIAS 3509). August 22 and 26, 1958 (9 UST 1153; TIAS 4096).
Terninated-vessel returned to United States in 1960.
Reciprocal trade agreement, with protocol. Signed at Washington May 6, 1936; entered into force June 15, 1936. 53 Stat. 2236; EAS 146.
Terminated December 13, 1962 pursuant to notice given by the United States June 13, 1962.
Agreement supplementary to the general agreement on tariffs and trade, with exchange of notes. Signed at Geneva October 30, 1947; entered into force October 30, 1947, effective January 1, 1948. 61 Stat. 3715; TIAS 1704.
Terminated December 13, 1962 pursuant to notice given by the United States June 13, 1962.
GERMANY, FEDERAL REPUBLIC OF
Commercial agreement. Signed at Washington April 22, 1907 and at Levico May 2, 1907; entered into force July 1, 1907. TS 460.
Terminated February 7, 1910 pursuant to notice given by the United States August 7, 1909.
Military service agreement. Exchange of notes at Washington March 31, 1942, February 8, March 2 and 16, 1943; entered into force March 16,1943.57 Stat. 968; EAS 322.
Terminated March 31, 1947-the date on which the functions of the Selective Service System terminate by Act of June 29, 1946 (60 Stat. 341).
Agreement relating to the establishment of bases in Guatemala, with memorandum of understanding and exchange of notes. Exchange of notes at Guatemala November 16, 1942; entered into force November 16, 1942. 1942 Foreiqn Relatians, Vol. VI, p. 448.
Terminated April 19, 1949 for San Jose Base when it was turned over to Guatemala and September 23, 1954 when the other bases were turned over to Guatemala.
Agreement relating to the deposit by Guatemala of ten percent of the value of grant military assistance and excess defense articles furnished by the United States. Exchange of notes at Guatemala May 16 and July 19, 1972; entered into force April 26, 1973. 24 UST 1067; TIAS 7625.
Terminated March 2, 1977 by exchange of notes of December 28, 1976 and March 2, 1977.
Agriculture program agreement. Signed at Guatemala January 20, 1955; entered into force January 20, 1955. Not printed.
Terminated August 31, 1959 pursuant to notice given by the United States July 8, 1959.
Treaty of friendship, commerce and consular rights, with exchange of notes. Signed at Washington June 24, 1925; entered into force October 4, 1926. 44 Stat. 2441; TS 748.
Terminated July 5, 1952 pursuant to notice given by the United States July 5, 1951.
Air transport agreement, with exchange of notes. Signed at New Delhi February 3, 1956; entered into force February 3, 1956. 7 UST
2 75; TIAS 3504.
Terminated May 8, 1961 pursuant to notice given by the United States February 6, 1961.
Military service agreement. Exchange of notes at 'Washington March 30, May 25, July 3 and September 30, 1942; entered into force September 30, 1942. 56 Stat. 1912; EAS 308.
Terminated March 31, 1917-the date on which the functions of the Selective Service System terminated by Act of June 29, 1946 (60 Stat. 341).
Agreement relating to the deposit by Iran of ten percent of the value of grant military assistance furnished by the United States. Exchange of notes at Tehran May 8 and 29, 1972; entered into force May 8, 1972. effective February 7, 1972. 23 UST 1225; TIAS 7391.
Terminated May 7, 1975 pursuant to exchange of notes of January 19 and May 7, 1975.
Agreement concerning the level of future exports of beef and veal from Ireland to the United States. Exchange of notes at Washington February 25, 1964; entered into force February 25, 1964. 15 UST 132; TIAS 5528.
Terminated December 31, 1970 pursuant to notice given by the United States June 30,1970.
Commercial agreement. Signed at Washington February 8, 1900; entered into force July 18,1900.31 Stat. 1979; TS 182.
Terminated July 1, 1916 pursuant to notice given by the United States August 7, 1909.
Sltpplemenlltary commercial agreement. Signed at Washington March 2, 1909; entered into force April 24, 1909. 36 Stat. 2492; TS 32oI.
Terminated August 7, 1910 pursuant to notice given by the United States August 7, 1909.
S-Ipplementary convention to the consular convention of May 8, 17 Signed at Washington February 24, 1881; entered into force June 18, 1881. 22 Stat. 831; TS 179.
Terminated July 1, 1916 pursuant to notice given by the Tji t( States in accordance with Seaman's Act of March 4, 1915 (38 Stat. 1164).
Agreement amending the agreement of April 27, 1954 for the loan of two submarines to Italy. Exchange of notes at Rome January 29, 1960; entered into force January 29, 1960. 11 UST 126; TIAS 4418.
Terminated in 1974 when vessels were returned to the United States.
Treaty of commerce and navigation, with protocol. Signed at Waslington February 21, 1911; entered into force July 17, 1911. 37 Stat. 1504; TS 5)8.
Terminated January 26, 1940 pursuant to notice given by the United States July 26, 1939.
IKOREA, REPUBLIC OF
Agreement relating to the deposit by Korea of ten percent of the value of grant military asistance and excess defense articles furnished by the United :States. Exchange of notes at Seoul May 12, 197 2: entered into force May 12, 1972, effective February 7, 1972. 23 UST 889; TIAS 7351.
Terminated February 19, 1977 pursuant to the notes of January 4 and February 19, 1977.
Agreement to include the Loran site near Matratiin, Tripolitania in the list of agreed areas under the military bases agreement of September 9, 1954. Exchange of notes at Benghazi October 28 and November 5, 1958; entered into force November 5, 1958. Not printed.
Terminated May 15, 1970-the date of turnover to Libya.
Agreement regarding the provision of facilities for United States Air Force aircraft at Plaisance Airfield in connection with the Apollo project, with agreed minute. Signed at Port Louis September 3, 196S; entered into force September 3, 1968. 10 UST 6215; TIAS 6576.
Terminated October 29, 1973 pursuant to notes of October 29 and November 28, 1973.
Agreement relating to a program of anthropological teaching and research in Mexico. Exchange of notes at Mexico December 4, 1943and April 19, 1944; entered into force April 19, 1944. 63 Stat. 264"2; TIAS 1961.
Extension: June 21, 1949 (63 Stat. 2642; TIAS 1961). Terminated July 1, 1952 pursuant to notice given by the United States May 2, 1952.
Convention for the establishment of an international commission for the scientific investigation of tuna. Signed at Mexico January 25, 1949; entered into force July 11, 1950. 1 U ST ,513; TJAS2094. Amendment: January 26 and 31, 1949 (1 UST 513; TIAS 2091).
Terminated February 5, 1965 pursuant to notice given by the United States February 5, 1964.
Agreement relating to the waiver of passport visa fees for nonimmigrants. Exchange of notes at Mexico October 6 and 7, 1925; entered into force October 20, 1925. 9 Bevans 946.
Terminated March 31, 1950 pursuant to notice given by the United States February 20, 1950.
Agreement relating to the establishment on a reciprocal basis of fees for the documentation of Mexican citizens traveling to the United States for temporary periods and United States citizens traveling to Mexico for similar periods. Exchange of notes at Mexico May 3, 1950: entered into force May 3, 1950, operative June 1, 1950. 1 UST 91 : TIAS 2090.
Terminated November 12, 1953 pursuant to notes of October 28, November 10 and 12, 1953.
('onvention for the prevention of smuggling and for certain other objects. Signed at Washington December 23, 1925; entered into force Iareh :28, 1926.44 Stat. 2358; TS 732.
Terminated March 28, 1927 pursuant to notice given by the United States March 21, 1927.
Agreement for survey of Mexico's technical education activities and needs pursuant to the agreement of June 27, 1951, as amended. Exchange of notes at Mexico June 7, 1954; entered into force June 7, 1954. 5 UST 1619: TIAS 3038.
Terminated August 17, 1956 pursuant to notice given by the United States July 17, 1956.
Agreement for a cooperative project with Escuela Superior de Agrieniltura "Antonio Marro" to be carried out through contract with a United States college or university. Exchange of notes at Mexico June 17, 1954; entered into force June 17, 1954. 5 UST 2304; TIAS 3091.
Terminated April 2, 1956 pursuant to notes of March 26 and April 2, 1956.
Reciprocal trade agreement. Signed at Washington December 23, 1942; entered into force January 30, 1943. 57 Stat. 833; EAS 311.
Terminated December 31, 1950 pursuant to notes of June 23, 1950.
Agreement relating to the level of future exports of beef and veal from Mexico to the United States. Exchange of notes at Washington M :iv 14, 1964; entered into force May 14, 1964. 15 UST 644; TIAS 554.
Terminated December 31, 1970 pursuant to notive given by the Suited States July 2, 1970.
Treaty of commerce and navigation. Siorned at Washington Janu ) 1. 1839: entered into force July 4, 1839. 8 Stat. 524; TS 951.
Terminated( May 10, 1919 pursuant to notice given 1v the United Stats May 10, 1918. Article TI terminated July 1, 1916 pursuant to te Scaeno s ,Act of March 4.191) (38 Stat. 1164). (omnercial agreement. Signed at Washin~ton May 16. 1907; entere(d into force August 12, 1908. 35 Stat. 2199; TS 505.
Terminated Aumust 7, 1910 I)ursuant to notice given by the United St t(s .\ ~ugust 7, 1909.
Consular convention concerning the reciprocal rights, privileges and immunities of consular officers. Sig-ned at Washington May 23, 1878; entered into force July 31, 1879, operative September 18, 1879.
Terminated May 10, 1919 pursuant to notice given by the United States May 10, 1918.
Military service agreement. Exchange of notes at Washington March 31, July 2, September 24 and 30, 1942; entered into force July 8, 1942. 56 Stat. 1900; EAS 306.
Terminated March 31, 1947-the date on which the functions of the Selective Service System terminated by Act of June 29, 1946 (60 Stat. 341).
Reciprocal trade agreement, with protocol. Signed at Washington December 20, 1935; entered into force May 8, 1937, operative for Articles I-XVI, inclusive February 1, 1936. 50 Stat. 1504; EAS 100.
Terminated December 7, 1962 pursuant to notice given by the United States June 7, 1962.
Agreement supplementary to the general agreement on tariffs and trade, with exchange of notes. Signed at Geneva October 30, 1947; entered into force October 30, 1947, effective January 1, 1948. 61 Stat. 3721; TIAS 1705.
Terminated December 7, 1962 pursuant to notice given by the United States June 7, 1962.
Agreement relating to the loan of a naval vessel to New Zealand. Exchange of notes at Washington June 8, 1962; entered into force June 8,1962.13 UST 1273; TIAS 5075.
Extension: December 15, 1966 and May 5, 1967 (18 UST 510; TIAS 6257).
Terminated April 8, 1971 pursuant to notes of March 30 and April 8, 1971.
Military service agreement. Exchange of notes at Washington March 31, July 1, August 15 and September 30, 1942; entered into force July 2, 1942. 56 Stat. 1896; EAS 305.
Terminated March 31, 1947-the date on which the functions of the Selective Service System terminated by Act of June 29, 1946 (60 Stat. 341).
Agreement concerning the level of future exports of beef and veal from New Zealand. Exchange of notes at Washington February 17, 1964; entered into force February 17, 1964. 15 UST 137; TIAS 5529.
Terminated December 31, 1970 pursuant to notice given by the United States June 30, 1970.
Agreement relating to the development of air bases at Puerto Cabezas and Las Mercedes. Exchange of notes at Managua May 29 and June 2, 1942; entered into force June 2, 1942. Not printed.
Terminated December 14, 1946 when bases were returned to Nicaragua.
Agreement relating to the construction of a naval, air, and motorto torpedo boat station at Corinto. Exchange of notes at Managua October 14 and November 25, 1942; entered into force November 27, 1942. Not printed.
Amendments: February 3 and 19, 1943 (Not printed). March 16 and April 2, 1943 (Not printed). May 17 and June 3, 1943 (Not printed). May 31 and June 4, 1943 (Not printed). June 26 and 30, 1943 (Not printed).
Terminated June 6, 1946 when base was returned to Nicaragua.
Agreement relating to the loan of a seaplane tender to Norway. Exchange of notes at Oslo April 17 and May 8, 1958; entered into force May 8,1958. 9 UST971; TIAS4064.
Extension: November 16, 1962 and January 14, 1963 (14 UST 8: TIAS 5272).
Terminated May 17, 1968 when vessel was sold to Norway.
Military service agreement. Exchange of notes at Washington March 31, October 6, December 23, 1942 and January 16, 1943; entered into force December 24, 1942. 57 Stat. 949; EAS 319.
Terminated March 31, 1947-the date on which the functions of the Selective Service System terminated by Act of June 29, 1946 (60 Stat. 341).
Agreement for the establishment by the United States Navy of a high-frequency direction finder on San Mayen Island. Exchange of notes at London October-November 1943; entered into force November 1, 1943. Not printed.
Terminated January 15, 1946 when American personnel was withdrawn.
Agreement relating to the loan of the vessel "USMS Mission Santa Clara" to Pakistan. Exchange of notes at Karachi January 15 and 16. 1963; entered into force January 16, 1963. 14 UST 104; TIAS 5275.
Terminated May 31, 1974 when U.S. sold the vessel.
Agreement relating to United States emergency wheat aid to Pakistan. Signed at Washington June 25, 1933; entered into force June 25, 1953. 4 UST 1642; TIAS 2832.
Terminated June 30, 1934 pursuant to Act of Congress (67 Stat. 80).
Taft agreement relating to the canal. Signed December 3, 6, 28, 1904. January 7, 1905 and January 5. 1911 ; entered into force D)ecember 12 1904. 37 Stt. 560.
Terminatedl Jlune 1, 1924 pursuant to notice given by the Unitedl States November 5. 1923.
Agreement relating to the lease of defense sites, with exchanges of notes. Signed at Panama May 18, 1942: entered into force May 11, P1: t, Stat. 12'2 SAS 3 59.
Terminated February 19, 1948 ptursant to notes of February 16 and 19. 1948.
Agreeent relatinr to the construction of a highway between ('1rrera :nd io Into. Exchange of notes at Washington March 191:i entered into force March 2,. 1940. SS Stat. 1599; EAS 449.
Terminated February 17, 1948 when responsibility for the highway was transferred to Panama.
Agreement relating to the deposit by Paraguay of ten percent of the value of grant military assistance and excess defense -articles furnished by the United States. Exchange of notes at Asunci6n May 12, 1972; entered into force May 12, 1972, effective February 7, 1972. 23 UST 2679; TIAS 7461.
Terminated January 27, 1975 pursuant to the notes of January 27, 1975.
Agreement relating to a military aviation mission. Exchange of notes at Washington October 27, 1943; entered into force October 27, 1943. 57 Stat. 1100; EAS 343.
Amendments and extensions: October 25 and November 20, 1947 (141 INTS 408). May 31 and July 30, 1951 (3 UST 4297; TIAS 2578). July 22, 1955 (6 UST 2923; TIAS 3339). February 20 and March 30, 1959 (10 UST 842; TIAS 4221).
Terminated February 15, 1977 pursuant to notice given by the United States November 12, 1976.
Agreement relating to a military mission. Signed ,at Washington December 10, 1943; entered into force December 10, 1943. 57 Stat. 1184; EAS 354.
Extensions and amendments: October 25 and November 20, 1947 (141 UNTS 407). May 31 and July 30, 1951 (3 UST 4297; TIAS 2578). July 22, 1955 (6 UST 2967; TIAS 3345). February 20 and March 30, 1959 (10 UST 842; TIAS 4221).
Terminated February 15, 1977 pursuant to notice given by the United States February 15, 1977.
Agreement for the loan of a destroyer to Peru. Exchange of notes at Washington December 27 and 28, 1960; entered into force December 28, 1960. 12 UST 364; TIAS 4724.
Extension: June 8 and 28, 1965 (16 UST 995; TIAS 5841). Terminated October 1, 1973-vessel sold to Peru. Agreement relating to the stationing of heavy bombardment airplanes at Talara. Exchange of notes at Lima January 23, April 8 and 11. 1942; entered into force April 11, 1942. Not printed.
Terminated October 29, 1946 when El Pato air base was returned to Peru.
Agreement for construction of landing field near Talara. Signed April 24, 1942. Not printed.
Terminated October 29, 1946 when El Patp air base was returned to Peru.
Military service agreement. Exchange of notes at Washington May 28 and June 12, 1945; entered into force June 12, 1945. 56 Stat. 1606; EAS 477.
Terminated March 31, 1947-the date on which the functions of the Selective Service System terminated by Act of June 29, 1946 (60 Stat. 341).
Treaty of friendship, commerce and consular rights. Signed at Washington June 15, 1931; entered into force July 9, 1933. 48 Stat. 1507; TS 862.
Terminated January 5, 1952 pursuant to notice given by the United States July 5, 1951.
Military service agreement. Exchange of notes at Washington March 30, December 14, 1942, January 26 and February 25, 1943; entered into force January 27, 1943.57 Stat. 954; EAS 320.
Terminated March 31, 1947-the date on which the functions of the Selective Service System terminated by Act of June 29, 1946 (60 Stat. 341).ROMANA
Provisional commercial agreement. Signed at Bucharest August 20, 1930; entered into force September 1, 1930. 47 Stat. 2593; EAS 8.
Terminated July 27, 1951 pursuant to notice given by the United States June 27, 1951.
Military service agreement. Exchanges of notes at Washington March 31, June 9, August 12, October 7 and 31, 1942; entered into force June 11. 1942. 56 Stat. 1921; EAS 310. Terminated March 31, 1947-the date on which the functions of the Selective Service Systemn terminated by Act of June 29, 1946 (60 Stat. 341).
Agreement relating to the loan of vessels or small craft to Spain. with annex. Exchange of notes at Madrid March 9, 1957; entered into force March 9. 1957. 8 UST 397; TIAS 3789. Amendment and extensions: June 19. 1962 (13 UST 1361; TIAS 5096). June 20, 1969 (20 UST 851; TIAS 6700). Terminated July 2, 1969 when vessels were sold by the United States.
Agreement relating to the loan of vessels to Turkey. Exchange of notes at Ankara October 14, 1958; entered into force October 14, 1958.
9 UST 1294; TIAS 4117.
Extensions: November 12, 1968 (19 TST 6711; TIAS 6588). July 30, 1970 (21 UST 1726: TIAS 6925). Terminated August 15, 1973 when vessels were sold by the United States.
Agreement relating to the loan of two submarines to Turkey. Exchange of notes at Ankara June 18, 1971:; entered into force June 18, 1971. 22 TTIST 1466: TIAS 7159.
Terminated August 15, 1973 when thle vessels were sold 1by the United States.
Agreement relating to the loan of two submarines to Turkev. Exchange of notes at Ankara July 28, 1972; entered into force July S, 1972.2 IS 1299 TTAl 72107.
Terminated August 15, 1973 when vessels were sold by the United States.
UNION OF SOVIET SOCIALIST RFUBLICS
Treaty of navigation, and commerce, with separate article. Signed at St. Petersburg December 18, 1832; entered into force May 11, 1S33.
8 Stat. 444; TS 299.
Terminated January 1, 1913 pursuant to notice given by the United States December 17, 1911.
Agreement relating to commercial relations. Exchange of notes at Moscow August 4, 1937; entered into force August 6, 1937. 50 Stat. 1619; EAS 105.
Extensions: August 5, 1938 (53 Stat. 1947; EAS 132). August 2, 1939 (53 Stat. 2404; EAS 151). August 6, 1940 (54 Stat. 2366: EAS 179). August 2, 1941 (55 Stat. 1316; EAS 215). July 31, 1942 (56 Stat. 1575; EAS 265).
Terminated December 23, 1951 pursuant to notice given by the United States June 23, 1951.
U ITED KINGDOM
Commercial agreement. Signed at London November 19, 1907; entered into force November 19, 1907. TS 468.
Terminated February 7, 1910 pursuant to notice given by the United States August 6, 1909.
Treaty regarding the North Atlantic fisheries, commercial reciprocity with British North American colonies, and navigation of the St. Lawrence River, Lake Michigan and other waters. Signed at Washington June 5, 1854; entered into force September 9, 1854. 10 Stat. 1089; TS 124.
Terminated March 17, 1866 pursuant to notice given by the United States March 17, 1865.
Treaty for the recovery of persons who may desert from merchant vessels of either country while in the ports of the other. Signed at Washington June 3, 1892; entered into force August 31, 1892. 27 Stat. 961; TS 141.
Terminated July 1, 1916 pursuant to Seaman's Act of March 4, 1951 (38 Stat. 1164).
Military service agreement. Exchange of iiotes at Washiiigton March 30. April 29. June 9 and September 30, 1942; entered into force April 30. 1942. 56 Stat. 1906: EAS 307.
Terminated March 31, 1947-the date on which the functions of the Selective Service System terminated by Act of June 29. 1946 (60 Stat. 341).
Agreement providing for the establishment and operation of a space vehicle tracking and communication station on Canton Island (Project Mercury). Exchange of notes at London April 6, 1961; entered into force April 6, 1961. 12 UST 313; TIAS 4718.
Amendment and extension: September 23. 1963 (14 UST 1415: TIAS 5438). Terminated January 1, 1968 pursuant to notice given by the United States August 23, 1967.
Agreement relating to trade in cereals, with annex. Exchange of notes at London July 1, 1971; entered into force July 1, 1971. 22 UST 1485; TIAS 7165.
Terminated December 29, 1972 pursuant to notice given by the United States September 29, 1972.
Agreement relating to the purchase of Uruguayan wool. Exchange of notes at Washington November 23, 1942; entered into force November 23. 1942.12 Bevans 1008.
Terminated October 11, 1943 pursuant to notice given by the United States July 13, 1943.
Military service agreement. Exchange of notes at Washington May 10 and 11, 1945; entered into force May 11, 1945. 59 Stat. 1602; EAS 476.
Terminated March 31, 1947-the date on which the functions of the Selective Service System terminated by Act of June 29, 1946 (60 Stat. 341).
Military service agreement. Exchange of notes at Washington March 31, May 14, June 25 and September 30, 1942; entered into force May 18, 1942. 56 Stat. 1917; EAS 309. Terminated March 31, 1947-the date on which the functions of the Selective Service System terminated by Act of June 29, 1946 (60 Stat. 341).
LIST OF WITHDRAWALS FROM MULTILATERAL TREATIES AND OTHER INTERNATIONAL AGREEMENTS' (THROUGH AUGUST 1977, COMPILED BY THE DEPARTMENT OF STATE) ___ARMAMENTS
Treaty for the limitation of naval armaments and the exchange of information concerninga naval construction, with protocol of signature land additional protocol. Signed at London March 25, 1936; entered into force for the United States July 29, 1937. 50 Stat. 1363; TS 919.
Notice of intention to suspend operation of the treaty given by the United States October 3, 19309.
Convention on commercial aviation. Signed at H-abana February 20, 1928; entered into force June 13, 1929; for the United States Auguist 26, 1931. 47 Stat. 1901; TS 840.
Terminated for the United States November 29, 1947 pursuant to notice given by the United States May 29, 1947.
International air transport agreement. Signed at Chicago December 7, 1944; entered into force for the United States February 8, 194,5. 59 Stat. 1701; EAS 488.
Terminated for the United States July 25, 1947 pursuant to notice given by the United States July 25, 1946.
Agreement for the establishment of the Caribbean Organization, with annexed statute. Signed at Washington June 21,1960; entered into force September 6, 1961. 12 UST 129; TIAS 4853.
Terminated for the United States December 31, 1965 pursuant to notice of withdrawal given Decem ber 29, 1964.
CENTRAL COMM~ISION OF THlE RhIINE
Arrangement providing for participation by the United States in the Central 'Commission of the Rhine. Exchange of notes at London October 4 and 29 and November 5, 1945. 60 Stat. 1,932; TIAS 15 71. Terminated for the United States December 31, 1964 upon withdrawal.
International convention for the Northwest Atl1antic fisheries. Dono at Washington February 8, 1949; entered into force July 3, 1950. 1 UST 477; TIAS 2089.
June 25. 1956 (10 IST 59; TIAS 4170).
April 24. 1961 (14 UST 994: TIAS 5o80).
July 1.193 (17 1S 635: TIAS 6011).
November 29, 1965 (21 UST 5 ; TIAS 6840).
November D, 196. (21 UST 3576: TIAS 6841).
October 1, 1969 (23 UST 1304; TIAS 7492).
October r 6. 1970 (25 UST 2716; TIAS 7941).
Terminated for the United States December 31, 1976 pursuant to n olt 1he of withdrawal June 2, 1976.
International sanitary convention. Signed at Paris December 3,
1 JI:: entered ilto force April 6, 1907. 35 Stat. 1770; TS 466.
Terminated for the United States April 6, 1922 pursuant to notice of withdrawal April 6, 1922.
Arrangement for the e.tablishlment of the international office of pub- lic health. Signed at Rnome December 9, 1907: entered into force for the In ited States November 15. 1908. 35 Stat. 2061; TS 511.
Notice of denunciation given by the United States November 3, 1949.
SAFETY AT SEA
Convention for promoting safety of life at sea, with annexed reguJat ions. Signed at London May 31, 1929; entered into force January 1, 198:3: for the United States November 7, 1936. 50 Stat. 1121; TS 910.
Terminated for the united States November 19, 193 pursuant to notice of denunciation November 19, 1952.
Convention on uniformity of nomenclature for the classification of merdhandise. Signed at Santiago May 3, 1923; entered into force May ,. 1924.44 Stat. 2559; TS 754.
Terminated for the United States May 24, 1955 pursuant to notice of denunciation May 24, 1954.
Convention with protocol, for the abolition of import and export prohibitions and restrictions. Done at Geneva November 8, 1927; entered into force January 1, 1930. 46 Stat. 2461; TS 811.
T erminated for the United States June 30, 1933, definitively June 30, 1934.
Agreement relating to most-favored-nation treatment for areas of Ve'tern ('ermany under military occupation. Dated at Geneva Septeidxr 14, 1948: entered into force for the United States October 14, 198. 62 Stat. 65; TIAS 1886.
Terminated for the United States June 15, 1952 pursuant to notice of entmnciait ion DIecember 14, 1951.
Agreement for the regulation of whaling, Nith final act. Signed a t London June 8, 19:17. Enitered into force pr-ovisionally July 1,I 9 definitively Mlay 7, 1988. 52 Stat. 1460; TC (9323.
Terminated June 30, 194.9, effective, (late of wvithdrawal 1)v thei UnTiited States.
Protocol amendlrg thie iagieemenit, of Junle. 8,1937 foi- the regrulat ion of whaling. Signed at iLondoln June 21' 19P38. Enlter id into oreprov isionally July 1, 1938; definitively Decemiber 30'), 18;effective for tho United Stateg March 8(X 19239. 53Stat. 1794; r S 941.
Tei-minated Jilne 3"0, 19419, effective. (late of withdrawal by the iited States.
RESTATEMENT OF THIE LAW (SECOND)
FOREIGN RELATIONS LAW OF THE UNITED STATES
As Adopted and Promulgated by the American Law Institute at
Washington, D.C., May 26, 1962
(Revisions adopted and promulgated by the American Law Institute at Washington, D.C., on May 20, 1964 and May 20, 1965)
Toric 2. LAW OF THE UNITED STATES
163. Aut iority to Modify, Suspend, or Terminate
(1) Under the law of the United States, the President or a person acting under his authority, has, with respect to an international agreement to which the United States is a party, the authority to
(a) take the action necessary to accomplish under the rule
stated in 155 the suspension or termination of the agreement in
accordance with provisions included in it for the purpose,
(b) make the determination of conditions that establish that
the agreement may be suspended or terminated under the rule stated in 158 because of its violation by another party or that it is terminated under the rule stated in 159 as regards a party that
has ceased to exist,
(c) elect in a particular case not to suspend or terminate the
agreement when the United States may do so under the rule stated in 158 because of violation of the agreement, or not to pursue a claim that the United States has under the rule stated in 3(1) (a) for the violation of international law resulting from violation of
(2) The modification, suspension, or termination of an international agreement to which the United States is a party, by the consent of the parties under the rule stated in 156, is subject to the same rules as apply to the making of an international agreement as stated in 117-121.
Comnm e nt
a. General. The rules stated in this Section are based on the authority of the President to conduct the foreign relations of the United States as part of the executive power vested in him by Article 11, Section 1 of the Constitution. This authority is normally exercised in his name by the Secretary of State, and references to the President in this Section include the Secretary or other nemll)ers of the executive branch acting under the authority of the President. As to the power of the Prei(lent to mak(e an international agreement. see 132.
b. Termination or suspension in accordance with terms of agreement.
The great majority of cases in which the President suspends or terminates, by acting alone, an international agreement to which the United States is a party, are cases in which the agreement contains provisions for its suspension or termination. An agreement will not normally state who is to take such action, on behalf of the parties, leaving this for determination by their respective constitutions. Illustration:
1. The United States makes a treaty with state A, which provides that it will remain in effect for 10 years and that thereafter either party may terminate the treaty by notifying the other that the treaty shall terminate one year after the receipt of the notice. The treaty is ratified by the President with the advice, and consent of the Senate. At the end of the 10 year period, the Secretary of State notifies A that the treaty will be considered as terminated by the United States one year after A receives the notice. The Secretary has the authority to take such action on behalf of the President.
c. Determin.ation of conditions calling for suspension or t(rminato .
The application of the rule stated in 158, which permits a party to an international agreement to suspend or terminate it with respect to another party that violates tlhe agreement. calls for a determination that the agreement has in fact been violated. This is a matter for the President to determine as the person authorized to conduct the foreign relations of the United States and having the necessary knowledge on which to base the determination.
2. The United States makes a treaty with state A by which each state agrees to adl valorem limits on customs duties on certain imports from the other. United States exporters to A claim that A's method of valuation is such as to impose duties in excess of the applicable limit. A claims that the method is consistent with the treaty. The Secretary of State acting on behalf of the President has authority to determine whether the United States will treat the treaty as suspended in whole or in part.
The application of the rule stated in 1509, which provides that an international agreement terminates by the disappearance of a state party to it, requires a determination that the state has in fact disappeared, as by entering into a union or some other association. This determination likewise falls within the authority of the President.
d. Waiver of violation of agreement. Whether or not a right of the United States under an international agreement shall be enforced at all in a particular case is a matter for the President to decide. This is not to say that he may surrender a right of the U nited States under an international agreement to which it is a party or that, for example, he could forego the claim of the United States to the riaht so often and for such a period of time that the United States would be estopped by laches from claiming it. But in each particular case in which there is a violation of a right of the United States under one of its agreements. it is the responsibility of the President to decide, not only in the light of the legal issue as such but also in the light of all other circumstances. including considerations of policy, whether it shall be enforced at all.
3. Same facts as in Illustration 2, except that the Secretary determines that there is a violation of the treaty and, within a reasonable time, protests A's action. A denies that the treaty has been violated but expresses willingness to enter into discussions with the United States with a view to reaching an understanding concerning methods of calculating the value of the type of products involved. The Secretary accepts the suggestion and, while reserving the rights of the united States in le controversy. elects not to take the remedial action for violation of the agreement that he mayv take under international law. This decision is within his authority acting on behalf of the President as indicated in Subsection (1) (3).
e. Modification. suspev sion, or term-i nation by new agreement. To atree to modify, suspend, or terminate an agreement is in effect to make a new agreement. IHence all the rules concerning authority to make international agreements in 117-121 apply to their modifeation, suspension, or termination by agreement of the parties. Reporters' Note
ELffect of executive waiver of violation. In connection with a challenge to the validity of an extradition from the United States to Italy, on the ground that the Italian Government refused to extradite to the IUnited States persons who appeared to be covered by the same agreement, tlhe Supreme Court said:
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 oblition to surrender the appellant as one imposed by the treaty as the supreme law of the land and as affording authority for the warrant of extradition. Charlton v. Kelly, 229 U.S. 447,
As to the power of the President to decide whether a right or claim of the United States should be enforced at all, see La Abra Siler Mining Co. v. United States, 175 U.S. 423 (1899).
[Nov. 15, 1965, Legislative Reference Service No. 268]
DENUNCIATION OF THE WARSAW CONVENTION
(DEPARTMENT OF STATE PRESS RELEASE OF
NOVEMBER 15, 1965)
The United States today gave formal notice of denunciation of tl(e Warsaw Convention on the Unification of Certain Rules Relating to International Transportation by Air.
The Warsaw Convention was signed in 1929 and entered into force for the United States in 1934. The principal effect of the Convention is to limit the liability of air carriers for personal injury or death of passengers in international air transportation to approximately $8,300 per passenger in most cases. The Convention was amended by a Protocol signed at the Hague in 1955 which raised the limits of liability to approximately $16,600 per passenger, but the United States has never ratified this Protocol.
Today's action was taken under Article 39 of the Convention, which provides that any member country may denounce the Convention uppn six months' notice. The notification carries out a decision, made known previously, that the United States would give notice of denunciation of the Warsaw Convention on November 15, unless by that time satisfactory provisional arrangements for the protection of international air passengers had been worked out among the principal international air carriers. A plan for a provisional arrangement whereby the international carriers serving the United States would waive their limits of liability up to $50,000 per passenger was recently proposed by the International Air Transport Association. However. the IATA proposal would have applied only to transportation to and from the United States covered by the Hague Protocol. Since the United States has not ratified the Hague Protocol, the JATA proposal would thus have been inapplicable to the great, majority of United States travelers. In addition, it was felt that a ceiling of only $50,000 on recovery by victims of air disasters would not justify continued adherence )y the United States to the NVarsaw Convention.
The United States would be prepared to withdraw the notice of de nunciation deposited today if prior to its effective date of May 15, 1966 there is a reasonable prospect of an international agreement on limits of liability in international air transportation in the area of ;100.000 per passenger or on uniform rules but without any limit of liability, and if, pending the effectiveness of such international agreement, there is a provisional arrangement among the principal international air lines waiving the limits of liability up to $75,000 per )assenger.
As stated in the note delivered today by the American Embassy in Warsaw to the Polish Government, the United States wishes to make clear that the action to denounce the Warsaw Convention is taken solely because of the Convention's low limits of liability for injury or death to passengers, and in no way represents a departure from the long-standing commitment of the United States to the tradition of international cooperation in matters relating to civil aviation.
In this connection, the United States notes that the Council of the International Civil Aviation Organization has called an international conference in Montreal beginning on February 1, 1966 to consider reviion of the limits of liability for passengers under the Warsaw Convntion. The United States welcomes the recognition by ICAO of the need to reconsider the question of compensation to victims of international air disasters. The United States will participate fully in the Montreal Conference, and hopes that it will be possible to arrive at on international consensus on this important question.
o1 full text of the notice of denunciation is as follows:
I have the honor, under instructions from my Government, to give formal notification to the Government of the Polish People's Republic of the denunciation by the Government of the United States of America. for itself, its territories, and all other areas under its sovereignty or authority, of the Convention for the Unification of Certain Rules relating to International Transporation by Air and the Additional Protocol relatin( thereto signed at Warsaw on October 12, 1929. This notification is given in accordance with the provisions of Article 39 of the Convention.
-The United States of America wishes to state that it gives this notification solely because of the low limits of liability for death or personal injury provided in the Warsaw Convention, even as those limits would be increased by the Protocol to amend the Convention done at The Hague on September 28, 1955.
"My Government would appreciate it if the Government of the Polish People's Republic would inform the Government of each of the I1ih Contracting Parties to the Convention of this notification and the reason therefor. My Government would also appreciate it if the governmentt of the Polish People's Republic would inform the (ov(;'r1nents of the High Contracting Parties that the United States of America wishes to make clear its continued desire to maintain its tradition of international cooperation in matters relating to civil aviat ion. To this end, the United States of America stands ready to participate in the negotiation of the revision of the Warsaw Convention which would provide substantially higher limits, or of a convention covering the other matters contained in the Warsaw Convention and Hague Protocol but without limits of liability for personal injury or death."
[January 1, 1977-No. 1]
STATEMENT BY THE ACTING SECRETARY OF STATE IN CONNECTION
WITH THE U.S. WITHDRAWAL FROM THE INTERNATIONAL CON-VENTION FOR THE NORTH-WEST ATLANTIC FIShERIES (IG.NAF)
In April of last year, President Ford signed into law the FishIery Conservation and Management Act of 1976, extending United States fishery jurisdiction to 200 miles as of March 1, 1977. Since that time, the United States has been moving steadily toward domestic mianagement of our fishery resources.
As a consequence of our extended domestic jurisdiction, and in keeping with the intent of the Act, the President has decided that the United States would withdraw from the International Convention for the Northwest Atlantic Fisheries (IGNAF) effective December 31, 1976.
The LUnited States has been an active member of ICNAF since its inception 26 years ago. That Convention has made significant contributions to fishery conservation in the Northwest Atlantic area. W~e have benefited from decisions taken by Convention members. The scientific research and management of fisheries of the area which have been carried out under ICNAF are outstanding examples of the benefits which can be achieved through international cooperation. The President has, therefore, concluded that as we move toward implementation of our legislation the United States should take into account, in developing our 1977 management plans, the management proposals developed at the last meeting of ICNAF.
The expertise developed within ICNAF will provide a sound basis for the establishment of a successor organization which will provide fisheries management within our 200 mile zone will now be a domestic responsibility of the United States. The United States will actively support efforts to continue international consultation and cooperation in dealing with fisheries problems in the Northwest Atlantic and will participate in the conference of plenipotentiaries, in late 1977 to consider the drafting of a new convention.
The U.S. withdrawal from ICNAF included withdrawal from the following agreements:
7. International Convention for the Northwest Atlantic Fisheries, February 8, 1949. In force, but not for the United States (citation: 1 UST 477; TIAS 2089).
(a) Protocol to the International Convention for the Northwest Atlantic Fisheries, June 25, 1956 (10 UST 59; TIAS 4170).
(b) Declaration of Understanding Regarding the International Convention for the Northwest Atlantic Fisheries, April 24, 1961 (11 UST 924; TIAS 5380).
(c) Protocol to the International Convention for the Northwest Atlantic Fisheries Relating to Harp and Hood Seals, July 15, 1963 (17 UST 635; TIAS 6011).
(d) Protocol to the International Convention by the Northwest Atlantic Fisheries Relating to Harp and Hood Seals, July 15, 1963, (17 UST 635.; qCIAS 6011). Entry into Force of Proposals Adopted by the Commission, November 29,1965 (21 UST 567; TIAS 6840).
(e) Protocol to the International Convention for the Northwest Atlantic Fisheries Relating to Measures of Control, November 29, 1965 (21 UST 576; TIAS 6841).
(f) Protocol to the International Convention for the Northwest Atlantic Fisheries Relating to Panel Membership and to Regulatory Measures, October 1, 1969 (23 UST 1504; TIAS 7432). V
(g) Protocol to the International Convention for the Northwest Atlantic Fisheries Relating to Amendments to the Convention, October 6,1970 (24 UST; 2716; TIAS 7941).
Implementing legislation for the Convention was repealed by Congress in 1977 (Public Law 95-6).
[From the New York Times, Oct. 11, 19771
ABROGAT-ING c TREATIES
(By Barry M. Goldwater)'1
WASIINGTo-N-In the debate over our China policy, almost no serious attention has been given to whether any of the conditions demanded by Communist China for normalized r-elations would requiire Congressional approval.
For example, on Aug. 15, Senator Edward ATI. Kennedy called on the Carter Administration to recognize Red China and consider our defense, treaty with the Republic of China, on Taiwan as having lapsed. That the President could so terminate the treaty was assumed.
The defense treaty involved provides for revocation upon one years notice by one party to the other. It is my contention the President cannot give that notice, let alone abrogate the treaty without notice, before obaining legislative approval.
If President Carter should seek Congressional approval, he will not get it. Public opinion against capituilating to Peking's terms is so strongly reflected in Congress that no President could obtain the necessary consent of two-thirds of the Senate or a majority of both Houses.
It is true the Constitution does not spell out how a treaty is to be terminated. But the clear intent of the Constitutional text, supported by the overwhelming weight of historical practice, proves a treaty cannot be revoked without some role for Congoress.
Virtually nothing was said at the Constitutional Convention about the termination of treaties, but it is well known the Framers weire concerned with restoring dependability to our treaties and were anxious to gain the respect and confidence of foreign nations. It would hardly instill confidence in other nations if a single officer could abrogate a treaty at will without any check from another department of Government.
And, it is difficult to believe that the Framers, who established the Presidency and Senate as checks upon each other in completing a treaty, did not intend a check in the converse situtaion, the revoking of a treaty.
The Framers may well have asumed the President would not attempt to annul a treaty independently since he is under a constitutional manldate to "take Care that the Laws be faithfully executed ...."1 As the Constitution specifies that a treaty is part of "the supreme law of the Land ... the Framers undoubtedly expected Presidents to enforce and carry out treaties in good faith.
The general rule follows: As the President alone cannot repeal a statute, so he alone cannot repeal a treaty. This was the belief of
1 Barry Mv. Goldwater is the Republican Senator from-Arizona.
James Mfadison who foresaw "the same authority, precisely, being exercised in annulling as in making a treaty."
It was also the belief of Thomas Jefferson, who in his manual of rules and practices of the Senate. wrote: "Treaties being declared, equally with the laws of the United States, to be the supreme law of the land. it is understood that an act of the legislature alone can declare them infringed and rescinded."
Historical practice supports Madison and Jefferson. Far more often than not, the Senate, or the whole Congress, has exercised power to approve the termination of treaties. and Presidents have usually sought legislative approval before giving notice of withdrawing from any treaty.
There are exceptions, but none support an untrammeled power of the President to annul any treaty he wishes. In particular, the United States has never repudiated a defense treaty with a friendly nation. Nor has any President alone terminated a treaty that has not been breached by the other party. been placed in conflict with a subsequent law or treaty, or become impossible of performance due to circumstances not of his making.
None of these exceptions apply to our treaty relations with the Republic of China. Even if one or two examples to the contrary can be dredged up, they cannot make legal what the Constitution makes invalid.
Nor does it follow that, should the President take the improper step of de-recognizing the Republic of China, prior treaties would lapse. In a recent study, Stanford law Prof. Victor Li concluded: "International law does not require that treaties affecting only the territory controlled by the Taiwan authorities must lapse. On the contrary, there is strong support for protecting ongoing relations... ."
Since the President alone could not abrogate treaties with the government on Taiwan, he must consider them as still being in effect. Any President who would violate the Constitution on such a major matter as breaking faith with the nation's treaty obligations would run the risk of impeachment.
[From the New York Times, May 21, 1978]
NoRM TAI TIns WITTH CHINA
(By Jerome Alan Cohen) I
C.BmcrE, MAass.-Zbigniew Brzezinski, President Carter's national security adviser, on his trip to Peking will be probing China's attitude toward establishing formal diplomatic relations. In the United States there is confusion about the legal implications of normalization. Three misconceptions cloud analysis:
1. Nornma alltion will mean American acceptance of Peking's sovere;gnty orver Taiwan.
If so, the United States would have no legal basis for continuing to defend Taiwan.
Yet, even though the 1943 Cairo Declaration committed America to resore Taiwan to China after World War II. Washington has never
SJerome Alan Cohen is associate dean and director of East Asian legal studies at Harvard Law School, and co-author, with Joan Lehold Cohen, of "China Today."
formally approved restoration. Between 1945 and 1950, we treated Taiwan as part of China, but we anticipated that the island's de fioto status would be confirmed de jure by the forthcoming peace treat ies. Once the Korean conflict occurred, however, Washington announced that Taiwan's status was undetermined. This implied the possibility of separating the island from China, and the peace treaties were constructed to confirm Japan's renunciation of Taiwan without confirming China's title.
At Shanghai in 1972, America stated that it "does not challenge" the claim of all Chinese on either side of the Taiwan Strait that Taiwan is a part of China. Although American officials argued that this did not represent another shift in position, it did appear to eliminate the specter that Washington might permanently separate the island from China by failing to fulfill the Cairo Declaration's pledge. Nevertheless, this terminology did not formally confirm Taiwan's reincorporation into China. It simply renewed the hope that the pledge would eventually be fulfilled.
Thus, if in recognizing Peking as the Government of China, Washington does nothing further to clarify Taiwan's status, it will not have undermined its legal basis for defending the island.
2. Normalization need not terminate our 1954 treaty to defend Taiwan.
It has been argued that the treaty, made with the Republic of China, can survive reognition of the People's Republic of China as the new Government of China, since its terms are limited to territory controlled by the Republic of China. This would vastly complicate the normalization process.
The defense treaty, however, was concluded with the Republic of China as the Government of the state of China. Once we meet Peking 's first condition for normalization by formally acknowledging the People's Republic rather than the Republic of China as the Government of that state, it will be for Peking, as well as Vashington, to determine whether the treaty should be maintained, even though the treaty applies to only a specific area.
Termination of the treaty is the second of Peking's conditions for normalization. Peking has termed the treaty void even since its negotiation. Moreover, it would make no sense for Peking to succeed to a treaty to defend against an attack by itself. and Peking's leaders have indicated that the treaty will lapse as a result of normalization. No state that has recognized the People's Republic has managed to maintain previously concluded agreements with the Republic of China. We will prove no exception.
The demise of the defense treaty, however, will not prevent the United States from unilaterally guaranteeing Taiwan's defense.
3. Termination of the defense treaty will require form al cOnschf of the Senate or the Congress.
An argument has been made that. since normalization will result in termination of the defense treaty, this will be tantamount to abrogation of the treaty by America and that under American constitutional law the President can abrogate a treaty only with the consent of the Senate or the Congress.
This mistakenly assumes that normalization will amount to abrogation by Washington. Actually normalization is distinct from abroga-
tion, even though, by establishing diplomatic relations with the new Government of China, the President will make it possible for that Government to terminate the treaty. It is not the United States that will be terminating the treaty but China. The President will simply be exercising his traditionally unfettered power to recognize and establish diplomatic relations with the new government of a state. Therefore, no constitutional issue will arise, although the President will plainly be wise to secure Congressional cooperation.
[From the New York Times, May 28, 1978]
ON THE TERMINATION OF A U.S. TREATY
To the Editor: Prof. Jerome Alan Cohen may well be right in his prescriptions for normalizing relations with the People's Republic of China (Op-Ed May 21). He may even be right in his judgment that the gains from full diplomatic relations with Peking would outweigh the losses-direct and indirect-from giving up the 1954 Mutual Defense Treaty with the Republic of China. But your readers should not be left with the impression that termination of a treaty, if undertaken by the United States, is under the Constitution an act requiring concurrence of the President and the Senate (or the Congress).
The Constitution itself does not contain any provision on the subject of termination of treaties: however, successive Presidents have-I think without exception-taken the view that withdrawal from, as c(ontrasted with entering into a treaty is an executive act, committed by the Constitution to the Presidency as part of the conduct of foreign affairs. Some doubt has been expressed on this issue in the past, and of coui>se in the age beyond the "imperial Presidency" all precedents of this kind are open to reexamination.
But where express provision is made in a treaty for termination on a specified period of notice (one year in the case of the 1954 Defense Treaty), so that termination is the exercise of a right, [it would be a nidjor-and I believe unsound-reversal of constitutional practice] to require formal consent by the Senate to a notice of termination of a t rea t v.
To; those who are not convinced by two centuries of history, I suggest trying to deduce from the Constitution by what vote--one-third, twothirds. simple majority, concurrence of both Houses etc.-the legislative branch might participate in the treaty-unmaking process. I suggest the answer is none of the above.
ANnDRE .s F. LOWENFED,
Professor of Law, N.Y.U.
[From the New York Tlimes, June 1, 1978]
TAIWAN : IIAT IT TAKES To ABROGATE A TEATY
To the Editor: Jerome Cohen's argument (Op-Ed May 21) that the Iresident cal terminae t he defense treaty with the Republic of China on avwan ),y the, exercise of his diplomiatic recon(liton power is u1111foi(le (t Illaw or precedent.
First, the United States has never abrogated a defense treaty with a friendly nation.
Second, the President can no more break a treaty than he can a statute.
It is true the President possesses the power to recogniize, new grovernments. But any implied power he may possess incident to recognition does not give him power to repeal another express provision of the Constitution. Article 11 direct the President to faithf ul ly execute the lawNs, of which treaties are a part. Thus, the recognitio power in no way relates to Presidential voiding of formal treaties.
Moreover, a Presidential decision to annul a treaty or allow a treaty to lapse is a decision of the highest national importance. The Framers created a system of checks and balances especially to assure that there would be joint deliberation within the Government on important matters of this kind. The added deliberation called for by requiring legislative participation offers security to the people that an action of major consequences will not be taken lightly or without an opportunity for adequate consideration. To argue, as Cohen does, that the President is unchecked by Congress or the Senate in the matter of breaking our formal treaties runs counter to the basic scheme of the Constitution.
If we should switch embassies from Taipei to Peking, no rule of domestic or international law would require the President to consider treaties with the still-existing authorities on Taiwan as having lapsed. Rather, this would be a political decision; and since the Constitution demands a legislative role in such a decision, a Presidential act of derecognition could not annul those treaties absent approval of Congress or two-third of the Senate.
It should be noted that the defense treaty with Taiwan enjoys a unique status under our law. It was concluded after the Communist insurrection and removal of the Nationalist authorities to Taiwan. For the President to consider the treaty as having terminated, after a quarter of a century's adherence to it, would be a new development of his own making and not an immediate result of the revolution. The recognition power is inapplicable to this situation, if it ever did apply.
United States Senator from Arizona.
[From the New York Times, June 12, 1978]
THE PIESIDENT's POWER To ABROGATE A TREATY
To the Editor: Senator Barry Goldwater (letter June 1) assumes that if the United States Republic of China defense treaty lapses as a consequence of American normalization of diplomatic relations with the People's Republic of China, it necessarily will constitute "abrogation" of the treaty by the United States. I have stated (Op-Ed MNay 21) whyv, if the treaty lapses as a result of Peking's refusal to accede to it, no question of American abrogation will arise; there will therefore be no need to conf ront the constitutional question whether the President can abrogate a treaty without the approval of the Senate or' the Congress.
Yet even if we assume that normalization would legally constitute American abrogation of the treaty, I do not believe that legislative approval would be required. The treaty itself simply provides for abrogation, nor was such approval made a condition of the Senate's consent to the treaty. There is also no consistently observed custom that compels the President to obtain such approval. Although history reveals both cases in which such approval was obtained and dicta endorsing this practice, there have been many other instances in which the President has acted alone, especially in modern experience, and this action has been accepted as within his authority. The fact that the President has sometimes terminated treaties in collaboration with the Congress does not negate his power to act. independently in this respect.
One can well understand the policy reasons that led to the requirement that the advice and consent of the Senate be obtained prior to binding the United States to treaty obligations. [One can also understand why the decision to release the country from such entanglements would not require similar approval. The President's appointment and removal of Cabinet officials provides an analogous example.] Consent of the Senate is necessary for their appointment; it is not required for termination of employment.
Thus, although the President's power to abrogate treaties without legislative participation is not as free from doubt as Prof. Andreas Lowenfeld (letter May 28) suggests, I agree with his conclusion.
JEROME AiAN COHEN,
Director, East Asian Legal Studies, Hazard Law School.
[From the New York Times, June 27, 1978]
THE TREATY NULLIFIERS
To the Editor: Prof. Andreas Lowenfeld's reply (May 28) to Professor Cohen's Op-Ed piece on the normalization of relations with the People's Republic of China (May 21) raised some interesting points with regard to which branch of our Government would assume the responsibility for abrogating the 1954 Mutual Defense Treaty with Taiwan.
Professor Lowenfeld is absolutely correct in asserting that the Constitution is silent on the termination of treaties. A closer look at our national experience reveals, however, that when the occasion arose in the past-the termination of the two treaties of 1778 with Francethe Congress and not the President assumed the task.
On July 7, 1778, the Senate and the House of Re representatives declared the Franco-American treaties void. Strangely enough, John .\dams did not for a moment take the view that withdrawal from a treaty was an executive act. Who knows? We all might learn something from our earlier Presidents.
JOSEPH If. SIrZkCUSA,
Sr. Lecturer, Am.rican Diplomatic History,
University of Qpieenslavd, A vstralia.
[From the Congressional Record, Oct. 20, 1977 CONGRESSIONAL RXSEARCI-1 SERVICE
Washington, D.C., September 30, 1977.
To: Honorable Paul Simon, Attention: David Solomon. From: American Law Division.
Subject: Who is empowered to terminate a treaty?
Reference is made to your inquiry of September 1, 1977, requesting information on the above matter. Specifically, you ask whether the Mutual Defense Treaty with the Republic of China, December 2, 1954, TIAS 3178, 6 UST 433 (1955), can be terminated by the President or whether joint presidential-congressional action is necessary:
Your inquiry touches oil a long-stand ing and largely unresolved political legal controversy. "'The procedure by which, from the viewpoint of national law and practice, treaties may be terminated involves questions to be resolved in accordance with constitutional and related procedures in each country. The United States Constitution is silent with respect to the power to terminate treaties. The matter was not discussed in the debates of the Constitutional Convention in Philadelphia." Whiteman, 14 Digest of International Law. 461 (1970). Briefly, "while the Constitution tells us who can make treaties-the President "shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties" "it does not say who can unmake them." Henkin, Foreign Affairs and the Constitution 168 (1972). As a consequence of the Constitution's silence in this regard, "there has been some confusion of doctrine upon the point and a variety in practice." Willoughby, 1 Constitutional Law of ;the United States 323 (1929).
The doctrinal confusion stems in large measure from various seemingly inconsistent or opposing concepts. As explained by one noted commentator:
"From the point of view of American law . ., the Constitution does not limit the authority to terminate treaties to the possessors of the treatymaking power, i.e., the President and Senate.... Article VI vests, treaties witl the same domestic status as federal statutes, which means that the courts must disregard treaty provisions insofar as they are inconsistent with later acts of Congress. A federal statute inconsistent with the terms of an existing treaty consequently operates to deprive such treaty of its force as law with ln this country. Under Article VI, the Congress can, in effect, terminate a treaty, so far as its effect 'in our domestic law is concerned. Such Congressional termination, the Supreme Court has said, "must control in our courts as the later expression of our municipal law, even though it conflicted with the provision of the treaty and the international obligation remained unaffected.
"At the same time, it is clear that, in such a case, the international obligation does remain unaffected.... The repeal of a treaty by a later
statute is only a matter of American law. Regardless of the abrogation of the municipal effect of a treaty by an overriding statute, the treaty is not abrogated in the international sense. . ." Schwartz, II The Powers of Government 130 (1963).
In addition to effectively terminating a treaty by legislatively negativing its municipal consequences, the Congress may effect a termination mi other ways, such as by a declaration of war, see Bas v. Tingy, 4 Dail. 37 (1800) ; Wright, The Control of American Foreign Relations 256 (1922); cf. Whiteman, 14 Digest of International Law at 41, the Senate's withholding of its advice and consent to a treaty, and, in the case of non self-executing treaties, failing to approve necessary implementing legislation.
All of the foregoing is true notwithstanding that "In so far as a treaty is regarded as an international compact, it seems almost too clear for argument that Congress [cf, the Senate], not having been made by the Constitution a participant in the treaty-making power, has no constitutional authority to exercise that power either affirmatively or negatively, that is by creating or destroying international agreements". Willoughly, 1 Constitutional Law of the United States at 324. Moreover, "It may be noted that Congress has no means whereby it may itself give a notice of termination of a treaty to the foreign government concerned, for, under the Constitution, Congress has no power to communicate directly with foreign Powers". Ibid. "But it is well for the Senate and for Congress also to remember that it does not lie in our hands alone to give this notice to a foreign Government. We can not give the notice". Senator Lodge, Chairman on Foreign Relations, 48 Cong. Rec. 480 (1911)
To the president is ascribed the role of the "organ of foreign relations". The Supreme Court of the United States described "the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations". nited States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). As such, the President has the exclusive power to conduct negotiations on behalf of the United States. "He alone negotiates. Into the field of negotiations, the Senate cannot intrude; and Congress is powerless to invade it." 299 U.S. at 319. Although the Congress can effectively terminate a treaty's domestic effect, the power to terminate the outstanding international obligation seems to reside with the President since he alone is able to communicate foreign powers. "The only organ of this Government recognized by foreign Governments is the Executive-the President of the United States. If he does give the notice, it will be given". Senator Lodge, 48 Cong. Rec. at 480.
Whether the President alone can terminate a treaty's domestic off(ct remains an open question. See Van Derke IVeyde v. Ocean 0o., 297 IT.S. 114, 117 (1936). As a practical matter, however, the President has this power since the courts have, from the beginning, held that theyv are conclusively bound by executive determination with re-ard to whether a treaty is still in effect. See Terlinden vs. Amen. 184 1U.S. 270, 290. (1902); Charlton v. A'elly,. 229 U.S. 477, 476 (1913). The same result may apply to a congressional termination, particuLnvly if it is viewed as a declaration of war. See lias v. Tingy, 4 Dall.
The actual practice whei-eby treaties have been terminated demonstrates considerable variation. "In some cases treaties have been ternlinated by the President, in accordance with their terns pursuant to action by the Congress. In other cases action was taken by the President pursuant to resolutions of the Senate alone. In still others the, initiative was taken by the President, in some cases independently, and in others his action was later notified to one or both Houses of Conaress and approved by both Houses. No settled rule or procedure has been followed. Whiteman, 14 Digest of International Law at 38 (Emphasis added.) Hackworth quotes the Solicitor of the State Department as saying "that the choice of method would seem to depend either upon the importance of the international question or upon the preference of the Executive." V Digest of International La1w 509 (1927).
Indeed, insofar as general conclusions on this subject are concerned, theory and practice unequivocally support the view that the tern'lination of a treaty being a political act, the courts do not terminate treaties. When required to determine whether a treaty still exists for purposes of resolving some ancillary domestic problem (e.g. extradition) the courts are guided by the actions or inactions of the political branches relative thereto. Charlton v. Kelly, 229 U.S. at 474.
Article X of the Mutual Defense Treaty with the Republic of China (T.aiwan) provides that it is a treaty of indefinite duration; however each Party may terminate it one year after notice has been given to the other Party.
With regard to the general subject of the termination of treaties, the Assistant Legal Adviser, Department of State, has written as follows:
It is customary for provisions regarding duration to prescribe that the treaty sliall remain in force definitely for a specified period, such as one year, five years, ten years, or twenty years, and shall continue in force thereafter indefinitely, subject to the right of either party to terminate it by giving notice for that purpose to the other party, the notice to take effect at the end of a specified period, say six months or one year, after the-date of such notice. There is no rule of international law governing the provisions regarding duration in a treaty. The countries entering into the treaty may incorporate in the treaty such provi.-,ion on that matter as they may agree to be desirable.
If it should be agreed by the parties to a bilateral treaty that certain portions thereof shall be terminated or abrogated and -that the remainder of the treaty shall remain in force, there is no rule of international law to preclude tbein from doing this. This would be accomplished by entering into an agreement having the character of a supplementary treaty. Upon entry in-to force of the latter treaty, the earlier treaty would be effectively modified in accordance with the agreed terms.
Some treaties do not contain provisions establishing a procedure by which either party may terminate it by unilateral action. In other words, some treaties do not contain provisions relating to termination or abrogation. It is considered that, in such a case, the treaty can be terminated or abrogated only by mutual consent.
It is to be understood, of course, that modification or amendment of a treaty also requires mutual consent of the two parties.
There is no rule of international law to prevent a party to a treaty from relinquishing or waiving certain rights accorded to it by such treaty. In general, all such matters are subject to the mutual understanding of the two parties to the treaty. 14 Digest of International Law at 34.
The conclusion of a new treaty (that is, the entering into a new treaty) expressly or by necessary implication terminating, either in whole or in part, the provisions of a treaty of prior date is a procedure which appears -to have universal acceptance.
It appears that there is general acceptance in this country of the principle that an act of Congress is to be respected and enforced regardless of treaty provisions on the same subject which may have entered into force prior to the date on which the act became effective .... [citing an opinion of Attorney General Knox, dated October 10, 1901 (Official Opinions of the Attorney General,volume 23, page 347)].
It has been held by the Supreme Court of the United States that Congress, by legislation, can abrogate a treaty between the country and another country, such abrogation being effective municipally-that is, in so far as the people and authorities of the United States are concerned-although the treaty may continue binding internationally-Whitney v. Robertson (1888), 124 U.S. 190, 194. Ibid.
"International law", it has been asserted, "recognizes the powerthough not the right-to break a treaty and abide by the international consequences." Henkin, Foreign Affairs and the Constitution at 168. That the government has the constitutional power to terminate treaties on behalf of the United States is clear. See The Chinese Exclusion Case. 130 U.S. 581, 602 (1889). The power which inheres in sovereignty is not negated by the Supremacy Clause or any other clause of the Constitution. Ibid. Although the other party to a broken agreement has a "legitimate grievance", its avenue of redress is "by the negotiation of a new agreement, or failing peaceful modes of settlement, by more drastic means, should the grievance be deemed a sufficiently serious one." Willoughby, 1 Constitutional Law of the United States at 324. Cf. "A violation of a treaty obligation, as of any other obligation, may give rise to a right in the other party to take non-forcible reprisals and these reprisals may properly relate to the defaulting party's rights under the treaty." U.N. International Law Commission, quoted at Whiteman, 14 Digest of International Law at 39. "The question whether our government is justified in disregarding its engageminents with another nation is not one for the determination of the courts . This court is not a censor of the morals of other departments of the government. . ." The Chinese Exclusion Case, 130 U.S. at 602-603
As indicated, the power to terminate a treaty has been exercised, at one time or other, by the President, the Congress, and by joint action of the President and the Congress or Senate The "actual practice" has been summarized as follows:
1. Executive action pursuant to prior authorization or direction
b1)y the Congress.
2. Executive action pursuant to prior authorization or direction
by the Senate.
3. Executive action without prior specific authorization or direct ion, but with subsequent approval, by the Congress.
4. Executive action without prior specific authorization or direction, but with subsequent approval by the Senate.
5. Executive action without specific prior authorization or direction and without subsequent approval by either the Congr'ess
or the Senate. 14 Digest of International Law at 38.
A. Executive action pursuant to prior authou.zutwn or diactioo 7b
The instances in which the Congress, by Joint Resolutions, has authorized or directed the President to terminate treaties --have been considerable." Willoughby, 1 Con.stutioital Liw of //?e fIted ,o; (It 'Y at 324:
"In some instances the Congressional action for the denunciation of a treaty has empowered the President "at his dis(ret1ion" to gi ye the necessary notice to the foreign Governments concerned. In otl:eoi instances, he has been directed, that is, charged with thle duty, of giving the notice. For example the Joint Resolution of Congress of Jan1murV 18, 1865, relative to the Canadian Reciprocity Treaty, (leelcarei tlat notice of denunciation should be given, and that "the president of the United States is hereby charged with the communication of such notice." Of the same tenor was the Joint Resolution of M[arch 4, PS$-, relative to the Treaty of Washington with Great Britain. [This 1Resolution declared that articles of the treaty ought to be terminated at the earliest time, and that to this end, "the President be and he herel)v is, directed to give notice to the government of His Britannic M1ajesty that the provisions of . the articles aforesaid will terminate ad be of no force on the expiration of two years next after the time of giving such notice."] Ibid.
Similar or related expressions are contained in statutory enactments of the Congress. The Seaman's Act of larch 4, 1915, 38 Stat. 1164, 1184, for example, requested and directed the President to give notice of the termination of the treaty provisions in conflict with the Act. Section 16 of that Act expressly provided that "the President be . requested and directed . to give notice to the several Governments. respectively, that so much as herein described of all such treaties and conventions between the United States and foreign Governments will terminate on the expiration of such periods after notices have been given as may be required in such treaties and conventions."
This method was approved in Van Der lVeyde v. Ocean Co., 297 U.S. at 118, the Court noting: "From every point of view, it was incumbent upon the President, charged with the conduct of negotiations with foreign governments and also with the duty to take care that the laws of the United States are faithfully executed, to reach a conclusion as to the inconsistency between the provisions of the treaty and the provisions of the new law." It should be noted that the Court's language does not indicate the binding character vel non of the statutory direction, but relates only to obligation on the President to distinguish between consistencies and inconsistencies in foreign treaties and the law in question. Moreover, the Court expressly stated that the question of the sufficiency of presidential power alone to terminate treaties was not before it. ". . the 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 of the United States is not here involved." 297 U.S. at 117.
The propriety of congressional action advising or directing the President to notify foreign governments of the termination of treaties between them and the United States, has not gone unchallenged. In 1879 President Hayes vetoed the Chinese Immigration Bill of that year
on the ground, inter alia, that it instructed him to abrogate certain articles of the existing treaty with China. He said: "As the power of modifying an existing treaty, whether by advising or striking out provisions. is a part of the treaty making power under the Constitution, its exercise is not competent for Congress, nor would the assent of China to this partial abrogation of the treaty make the action of Congress in thus procuring an amendment of a treaty, a competent exercise of authority under the Constitution." Hackworth, V Digest of Interi#oia l Law at 509.
Similarly, in 1920, President Wilson refused to carry out section 34 of the Merchant Marine Act of that year. That section directed the President to terminate any provisions of existing treaties that restricted the right of the United States "to impose discriminating customs duties on imports entering the United States . and discriminatory tonnage duties . A Department of State press release of September 24, 1920, in part, stated:
"The Department of State has been informed by the President that he does not deem the direction, contained in Section 34 . an exercise of any constitutional power possessed by the Congress.
"Secretary Colby, commenting on the point made by the President, that Congress had exceeded its powers, called attention to the veto by President Hayes of an Act passed by Congress in 1879, . President Hayes declared that 'the power of making new treaties or of modifying existing treaties is not lodged by the Constitution in Congress, but in the President, by and with the advice and consent of the Senate, as shown by the concurrence of two-thirds of that body.' "Hackworth, V Digest of International Law at 509.
As to the different and seemingly contradictory treatment accorded by the President to section 16 of the Seamen's Act and section 34 of the Merchant Marine Act of 1920, it has been observed:
"The situation presented by section 34 of the Merchant Marine Act of June 5, 1920 was different from that presented by the Seamen's Act. . The Seamen's Act was inconsistent with treaty provisions, and it was therefore necessary, or at least desirable, for the President to rectify the situation by relieving the United States of its treaty obligations and thus avoiding the odium of treaty violation. The Merchant Marine Act was not inconsistent with treaty obligations. It merely called upon the President to terminate such obligations as served as a deterrent to action by Congress of a discriminatory character as between American and foreign vessels." Hackworth, V Digest of International Law at 509.
B. Executive action pursuant to prior authorization or direction by
The State Department has taken the position that the principles who can execute treaties can terminate them. ". . the power that makes the treaty can likewise revoke it; in other words, that the President, acting in conjunction with the Senate of the United States would be authorized to terminate a treaty to which the United States is a party." Ihlckworth, V Digest of International Law at 509. This method as received some judicial recognition. "President and Senate may denounce the treaty and thus terminate its life." Techt v. Hughes, 229 N.Y. 0 222,243 (1920).
WYilloughby gives the fol lowinrg c xa iple of this method of terinating a treaty:
"There has also been one occasion at least upon which the Pres idlent has denounced a treaty upon the authorization of the Senate, without the cooperation of the House of Representatives being asked or had. In his annual message to Congress the President had asked for authority to give the notice of termination required by the treaty of commerce and navigation of 1826 with Denmark, and this authoriza1tion was given to him by the Senate Resolution of March 3, 1856.- 1 Constitutional Law of the United States at 324.
As a consequence of its actions in connection with the termination of the 1826 treaty with Denmark, the Senate directed the Foreign Relations Committee to study the need for congressional action in these circumstances. The Committee upheld the authority of the treatymaking power to modify or terminate an existing treaty. The report states: "The Committees are clear in the opinion that it is competent for the President and Senate, acting together, to terminate it in the manner prescribed by the eleventh article without the aid or interention of legislation by Congress, and that when so terminated it is at an end to every intent both as a contract between the Governments and as a law of the land." Senate Report No. 97, 34th Congr., 1st Sess., p. 3. C. Executive action without prior specific authorization ori direction,
but with subsequent approval of the Con gress
In 1911. President Taft, without congressional direction, gave notice to the Russian Government of the termination of the treaty of 1832 with that country. Thereafter, he communicated his action to the Senate, as part of the treaty-making power of the government for its approval. The Senate Foreign Relations Committee, however, reported a Joint Resolution by which the notice of termination by the President was "adopted and ratified". This Joint Resolution was passed by both Houses of Congress and was signed by the. President on December 21, 1911. Hackworth, V Digest of International Law at 509; Willoughby, 1 Constitutional Law of the United States at 324. D. Executive action without prior specific authorization or direction,
but with subsequent approval, by the Senate
Although all of the aforementioned authorities recognize this method and affirm its use, no examples are given. It should be noted that President Taft in terminating the 1832 treaty with Russia, discussed immediately above, sought to use this mode. Although his action was subsequently approved by joint congresional action, it must be assumed that his initial approach was based upon some precedent.
During the Senate debate on that resolution, Senator Lodge, Chairman, Foreign Relations Committee, endorsed the President's use of this method, He said:
"The President has entire authority to give that notice and to ask for the approval of Congress or approval of the Senate. He takes the view, which is held by very many of the best judges, that the treaty making power is entirely able to terminate a treaty which carries with it -no legislation and the President did nothing unusual in this action. '48 Cong. Rec. 455 (1911).
"The Senate and the President alone can end an existing treaty by simply agreeing to a new one, they can do it without any consultation with any other body, and certainly where no legislation is involved it seems to me that those who represented the high contracting party in the making of a treaty are capable of representing the high contracting party in its unmaking." 48 Cong. Rec. 480 (1911). E. Executive action without specific prior authorization or direction
and without subsequent approval by either the Congress or the
There appears to be a difference of opinion among the commentators as to the first termination of a treaty by a President alone. Two noted writers seem inclined to give President Lincoln that distinction in connection with termination in 1864 of the Great Lakes Agreement. Schwartz, II The Power of Gover'nment at 406, note 250 Henkin. Foreign Affairs and the Constitution at 417, note 132. However, it should be noted that this action by the President was given subsequent congressional endorsement. As described by Willoughby:
"During President Lincoln's administration, Secretary of State Seward gave notice to Great Britain that the United States considered as terminated the Great Lakes Agreement of 1817. A Joint Resolution to that effect having passed the House of Representatives but having failed in the Senate, Congress proceeded to pass a Joint Resolution 'adopting and ratifying' the notice that had been given, 'as if the sniame had been authorized by Congress.'" I Constitutional Law of the United States at 324.
Willoughby and the State Department cite the termination in 1899 of certain clauses in the commercial treaty of 1850 with Switzerland as an early example of the President terminating a treaty on his own. I Constitutional Law of the United States at 324; Hackworth, V Diqest of International Law at 509.
Hackworth gives various examples of the "resident acting alone" including termination of the convention with Mexico for the prevention of smuggling signed on December 23, 1925, the convention for the abolition of import and export prohibition and restriction, signed at Geneva on November 8, 1927, the treaty of Commerce and Navigation of 1871 with Italy, and the commercial treaty with Japan signed February 21, 1911. V Digest of International Law at 509.
Henkin cites two more recent examples involving President Franklin D. Roosevelt: termination of an extradition treaty with Greece in 1933 because Greece had refused to extradite Mr. Insull, and termination in 1939 of the Treaty of Commerce, Friendship and Navigation with Japan. Foreign Affairs and the Constitution at 168.
To the foregoing methods might be added the singular instance of a treaty termination by the Congress. The latter occurred in 1798 when Congress by a Joint Resolution declared the United States "freed and exonerated from the stipulation of the treaties" with France, and "that the same shall not henceforth be regarded legally obligatory on the Government or citizens of the United States." 1 Stat. 578. WVilloughby. I Constitutional Law of the United States at 324. In the report of the Senate Foreign Relations Committee previously referred lo, this action by the Congress was viewed as being a declaration of war. Senate Report 97, 34th Cong., 1st Sess. In fact, two days follow-
ing its passages, the Congress authorized hosi lities a gai nst F ran(, and in Bas v. Tingy, 4 Dall. 37, the Supreme Court regarded t acts as declaring war.
The arguments in support of the respective claims of the President and the Congress as regards the proper method to eliminate treaties turn largely on two factors. With respect to the congressional side of the debate, much weight is given to a treaty's status as law plrsuid to Article VI, that is, to the distinction between a treaty as an international compact and, under American law, as municipal law. 1Indi]'standably, arguments in behalf of presidential claims focus proiiuinently on his preeminent position in foreign affairs.
On the former, it has been observed"In the course of a 1911 debate on a Presidential termination of a treaty, a Senator asserted that 'A treaty is the supreme law of the land under the language of the Constitution, and the supreme law of the land ought not to be set aside except by legislative action of b oth Houses.' It is difficult to rebut this assertion with legal reasoning. Certainly, to repeal a law is an exercise of legislative power and since the self-executing provisions of a treaty have the domestic effect of law. the same should be true of authority to terminate such domestic effect." Schwartz, II The Powers of Government at 132.
While acknowledging that*.. an expression of Congressional will that a treaty be abrogated and a direction to the President to terminate a treaty would perhaps be the most effective and unquestionable method so far as the Government is concerned of terminating a treaty.. b
The State Department has taken the position that "the power to denounce a treaty inheres in the President of the United States in his capacity as Chief Executive of a sovereign state."
"... This capacity ... is inherent in the sovereign quality of the Government, and carries with it full control over the foreign relations of the nation, except as specifically limited by the Constitution. Without entering into a lengthy discussion of the general and specific arguments leading to this conclusion, it will perhaps be sufficient to quote the conclusion of Professor Willoughby ... : 'It would seem, indeed, that there is no constitutional obligation upon the part of the Executive to submit his treaty denunciations to the Congress for its approval and ratification, although, as has been seen, this has been several times done.' The author questions even the power of Congress, by joint resolution or otherwise, to direct the President to denounce a treaty, though such directions also have been given, and in some instances followed, though in others the direction has been successfully refused.... This conclusion would seem to be entirely in accord with the general spirit of the interpretation of the Constitution in this regard by the Supreme Court of the United States. As indicated, for instance, by the case of United States v. Curtiss-Wright Export (7o., 299 U.S. p. 304. Hackworth, V Digest of International Law at 509.
"'A contention that the action of the President in denouncincr a treaty must be submitted to either the Senate or the Congress for rat i fication presupposes that action by one or the other of them is necessary to give validity to the action of the President. This argument,
however, would seem to be questionable for the reason that when the President hlts given notice of the desire of this Government to terminate a treaty, the failure of the Congress or the Senate to approve does not alter the situation. The notice has already been given and the foreign government may decline to accept withdrawal of such notice. Consequently, the failure of the Congress or the Senate to approve the action of the President would be of no avail. . .' Ibid.
RAYMOND J. CELADA,
Senior Specialist in American Public Law.
FEBRUARY 25, 1974.
To: Committee on Foreign Relations. From: Vita Bite, Analyst in Foreign Affairs. Via: Chief. Foreign Affairs Division. Subject: Precedents for U.S. abrogation of treaties.
In practice no settled rule or procedure has been followed in the termination of treaties. Abrogation has been effected in the following ways: by the President acting alone; on initiation by the President with the approval of the Senate; on initiation by the President with the approval of Congress; on initiation by the Senate with the acquiescence of the President; and on initiation by the Congress with the acquiescence of the President.
1. ABROGATION BY ACT OF CONGRESS
There is only one instance in which action by the Congress in the form of a public law has been deemed as having abrogated a treaty. This occurred in 1798 when Congress declared that the treaties entered into with France from 1778 to 1789 were no longer binding on the United States. Among the treaties which Congress thus declared void was a Treaty of Alliance.' This also appears to be the only treaty abrogated by the United States which can be construed as a mutual defense treaty.
Serious differences about the interpretation and application of certain sections of the Franco-American treaties arose soon after the treaties came into effect. The signing of the Anglo-American Treaty (the Jay Treaty) in February, 1796 signalled the beginning of an open break between the two former allies. France regarded the Jay Treaty as incompatible with the earlier Franco-American treaties. The United States refused to accept this view and accused France of clear and repeated breaches of their treaties. Finally on July 7, 1798 Congress annulled the treaties with France, declaring:
Whereas the treaties concluded between the United States
and France have been repeatedly violated on the part of the French government and the just claims of the United States for reparation of the injuries committed have been refused, and their attempts to negotiate an amicable adjustment of all complaints between the two nations have been repelled with inldignity ; and whereas, under authority of the French GovSigned at Paris, Feb. 6, 1778 and entered into force, July 18, 1778. For text of the tronty sve. Malloy, William comp. Treaties, Convention, International Acts, Protocols, and Agrmnents between the United States of America and Other Powers, 1776-1909. v. I, Washington, U.S. Government Printing Office, 1910, pp. 479-483.
erunent, there is yet pursited against t like I lit('d States a System of predatory violence, infracting the said treaties and
hostile to the rights of a free and indepIndent nation:
Be it enacted by the Seate an-id IIouse of l
of the United States of Avnela-a in Corw.5lci a.,8 embled. That the United States are of right fnlred and exolnated from the stipulations of the treaties and of the consillar convention, hereto concluded between the United States and Fraice; and that the same shall not henceforth be regarded as legally
obligatory on the Government of the United States.2
The Act was signed by President Adams, but it does not appear that he took any steps to give France notice that the treaties had been denounced by the United States.3 The lack of a formal notice of the abrogation by the United States of the treaties in question led to considerable controversy as to whether the Act of 1798 did, in fact, terminate the international obligation involved.4
During the debate on the Act Congressman Sewall argued that:
It is certainly a novel doctrine to pass a law declaring a
treaty void; but the necessity arose from the peculiar situation of this country. In most countries, it is in the Chief Magistrate to suspend a treaty whenever he thinks proper;
here Congress only has that power.5
An opposing position was taken by Congress Harper who said that:
It is the business of the Legislature to pass laws; if a manifesto is proper to be published on this occasion, it would more probably fall under the Executive Department. It is his business to issue State papers, and he could do it much better
than it could be done in this House."
In Bas v. Tingy 4 Dall 37 (1800), some Supreme Court Justices viewed the Act as a partial declaration of war and therefore as having validity under the constitutional power of Congress to declare war.The statement that the United States was, in effect, in a situation amounting to a state of war with France came up repeatedly during the debates in the House on the bill abrogating the treaties. Congressman Gallatin felt that there was little difference between saying that the treaties were ended, and declaring war outright. He moved that a declaration of war be added as an amendment to the bill abrogating the treaties." In 1846 during Senate debate on the merits of the 1798 actions as 'a precedent for later treaty abrogation, the 1798 congressional act terminating the treaties with France was described as a "quasi war measure.")9 It was pointed out moreover, that the 1798 bill as originally introduced was accompanied by a long preamble, in
2 1 Stat. 578; Moore, John Basset. A Digest of International Law. v. -, Washington, U.S. Government Printing Office, 1906, p. 356.
3 Corwin, Edward S. The President, Office and Powers; History and Analysis of Practice and Opinion, 17S7-1957. 4th ed., New York, New York University Press, 1957, p. 475, n. 75.
4 Garner, J. W. and V. Jobst Ill. The Unilateral Denunciation of Treaties. American Journal of International Law, v. 29, 1935: 582-583 ; Scott, J. B., ed. The Controversy over Neutral Rights between the United States and France, 1797-1800. New York. Oxford University Press, 1917, pp. 104-152; Harvard Law School, Research in International Law, Part III: Law of Treaties, Concord, N.H., Rumford Press, 1935, p. 1086.
U.S. Congress. Abridgement of the Debates of Congress from 1789 to 1856. v. III, New York. D. Appleton & Co., 1857, p. 312.
6 Ibid., p. 315.
7 See also Reeves, Jesse S. The Jones Act and the Denunciation of Treaties. American Journal of International Law. v. 15, 1921. 34-35.
8 Abridgement of the Debates of Congress, v. II, p. 311.
Abridgement of the Debates of Congress, v. 15, p. 472.
which were set forth acts of flagrant bad faith, if not of war, which France had perpetuated against the United States.10
The action of Congress in 1798 was, moreover, described in the 1846 debate in the House of Representatives as being a municipal declaration only to the citizens of the United States. "Congress did not assume to abrogate the treaties as a part of public law; but finding it already violated and void, it declared the citizens no longer bound by it."
France claimed that the treaties had not been properly abrogated and that they therefore continued in force.12 The confused situation was finally settled by the convention of September 30, 1800, by which the United States abandoned certain claims against France in exchange for renunciation by France of her rights under the treaties abrogated by the Act of July 7, 1798.
Many years later the United States Court of Claims upheld the Act of Congress as having indeed terminated the Franco-American treaties. Thus in Hooper v. the United States, Justice Davis ruled:
We are of the opinion that the circumstances justified the United States in annulling the treaties of 1778: that the act was a valid one, not only as a municipal statute but as between nations: and that hereafter the compact ended.'3
A similiar decision was made in the case of the Ship James Wi7hiam v. the United States. In this case it was ruled that the United States abrogated the treaty in toto, and thereby relieved France from all obligation under it.'4
All other cases of U.S. abrogation of treaties involved action by the President, sometimes following, sometimes preceding a resolution by the Senate or the whole Congress, and sometimes acting alone-purportedly on his own authority.
2. ABROGATION BY PRESIDENT FOLLOWING JOINT RESOLUTION OF CONGRESS
There are many instances of the President giving notice of the intention of the United States to terminate a treaty following a resolution to that effect passed by the whole Congress. In 1845 a bill to organize a territorial government in Oregon was passed by the House. The bill contained a provision stating:
Se<*. 42. And be it further enacted, That the President of the
United States be, and he is hereby, required to cause due notice to be given to the British Government of the desire and intention of the Government of the United States to annul and abrogate the convention with Great Britain relative to territory on the northwest coast of America . .5
Tho C('ongressional Globe, v. 17, Feb. 7, 1846: 254.
12 Crandnll. Samuel B. Treaties. Their Making and Enforcement. 2d ed., Washington. John Byrne and Co, 1916 p. 463 : Moore. John B. History and Digest of the International Arbitration to which the United States has been a Party, v. V, Washington, U.S. Governmoait Printing Office, 198, pp. 4399-4446 passim. 11 Hooper v. thle United Ptates, 22 UTT.S. Court of Claims, 425-426. See also the discussion in Sinha, whok P. Unilateral D)enuneiation of Treaty because of Prior Violations of Obligations by Other Party. The Hague. Mnrtinus Nijhoff, 1966. pp. 44-45; Mathews, John AfM. The Conduct of Amerienn Foreign Relations, New York, The Century Co., 1922; p. 238; ('rndanll. Treaties. pp. 463. 4A6.
Crnndall. Treaties, p. 4613.
"vrgr,ssional GlobeN. v. 17. Feb. 7, 1R46, 298.
At the beginning of the next session of Congress, in his first annual message to Congress on December 2, 1845, President Polk stated that le felt notice should be given of the intention of the United States to terminate the 1827 Convention with Great Britain concerning the joint occupation of the Oregon territory. He recommended, therefore, that "provision be made by law for giving it [notice] accordingly." 1r To accompany his message President Polk also transmitted to Con.gress various documents from the Department of State relating to negotiations with Great Britain in an attempt to reach a compromise ,on the Oregon question.17
There was much debate in Congress during the early months of 1846 concerning the termination of the treaty with Great Britain. Several Congressmen expressed the view that a notice of treaty abrogation would be tantamount to a declaration of war. Others declared unequivocally that "war cannot be the direct and necessary result of the notice to abrogate this convention," 18 and "the notice is not per se, a declaration of war, but on the contrary was designed, when provided for, as a means of preventing it." 19
If, however, the notice of U.S. intention to terminate the treaty was not regarded as a war declaration, then the difficult question arose of who had the power to abrogate the treaty-the President, the Senate, the House of Representatives, or some combination of these agents? Many different answers to this question were expressed during the debate in both houses of Congress. Senator Magnum expressed the view that the matter of treaty abrogation should not have been brought before Congress at all-except as a war or qasi war question. There. was, he argued, no direct or delegated authority by which Congress could in any way affect an existing treaty by either amending, altering or abrogating it. This responsibility belonged to the Executiv-e. Senator Magnum was, moreover, quite shocked to find that the Executive "in a Government of free and written constitutions, should call on the Senate to act, not on their responsibility, but on the responsibility of the Executive." 20
The minority report of the House Committee on Foreign Affairs ended with a resolution stating:
That the question whether a notice to terminate the convention between the United States of America and Great Britain, of October, 1818, and continued in force by the convention of August, 1827, ought to be given, is not a matter for the decision of Congress, and upon it this Iouse, at the present,
refrains from the expression of any opinion.21
The minority report questioned the propriety of the President's invitation to Congress to help him give notice. The report further questioned whether the House--which constitutionally has no Executive function whatever, could participate in the act of giving notice. It
"0 Richardson. ,James D.. comp. A Compilation of the Messages and Pipers of tile Presidents. 1789-1897. v. 4, Washington. U.S. Government Printing Office, 1897, p. .295; also Congressional Globe. v. 17, Dec. 3. 1845. 3.
'7 Congressional Globe, v. 17, Dec. 2. 1945. 22-37.
Congressional Globe v. 17, Jan. 16, 1846, 110 ; Jan. 7), 1946, 15.
211 Ahrldgement of the Debates of Congress, v. 15, April 1846, p. 472.
21 U.q. Congress. House. Report No. 34. 29th Cong., 1st sess., Jan. 5. 1946, p. .. The
majority report was not printed, nor is it included in the debate in Congressional Globe.
asked what warrant the IHouse had to act in the abrogation of a treaty when the Constitution confers on it no more power or agency to terminate a treaty than to make one, except in the case of a declaration of war, which would dissolve all existing treaties:
The House, by its resolution, might declare that it was expedient or inexpedient to give this notice; and if in the one form or the other, the President might or might not give heed to it. But it has no power to originate, or to concur in a legislative proceeding, whether in the form of joint resolution or bill to authorize this notice to be given. It can neither give
nor withhold power to that end.2
The majority of the members of Congress felt, however, that the President had acted properly in asking Congress to act on the question of terminating the treaty with Great Britain. These legislators pointed out that no President before had ever given notice without congressional action. Moreover, it was pointed out that the House of Representatives during the previous Congress had assumed that it had the necessary jurisdiction in the matter and had passed a provision directing the President to give notice. The Senate had also debated similar actions since that time. Thus both houses clearly felt that the question of notice was one involving legislative sanction and therefore within their jurisdiction.3 It was argued, moreover, that giving the Executive exclusive powers in treaty abrogation would be tantamount to giving him exclusive power to declare war since the abrogation being debated was viewed by many as a measure which might end in war, or which might be equivalent to a declaration of war.24
The prevailing expression in Congress was that while the power to make treaties clearly belonged to the President and the Senate jointly. the power to abrogate treaties belonged to the joint action of both Houses of Congress:
Our object, as expressed on all sides of the House, is, to abrogate the treaty of 1818, as renewed in 1827 between England and the United States, which is clearly a legislative duty, that cannot be performed constitutionally by any other power than the joint power of both Houses of Congress, as proposed
by the resolution before us.2
'iThe rationale for regaining an act of Congress to abrogate treaties ly in the fact that a treaty is the supreme law of the land. The power to annul a treaty was, therefore, the power to annul a law. This clearly wa not an Executive power, which is a power to execute the laws, )tI not to make or repeal them. It was clearly a legislative power "and t I I,,erefore vested in Congress." 26
()nee Con,-ess decided that it had the power to legislate on the matto of treaty te formination, the only question which remained was the manner in which the President was to be authorized to give notice of terminal ion. The or'minal version of thle joint resolution stated
Ibid., ('ongres onal Globr. v. 1,. January 1. 46, p. 139.
a ( o ,grosslonal GlobIa~e, v. 17, IP4eh. 6. 1 46, p. 281. : h., F17b. 9, 1.,46, p. 14
I"id., F '1I. 7. 1 T4) p. 2(M.
+ 11i0 J:n1 i 2R. I M46, p. 168.
Resolved by the Senate and House of Ib prese tat-,' of the United States of America in Congress assembled. That the President of the United States forthwith cause notice to be
given to the Government of Great Britain . .
Some members of Congress felt that the wording made the notice too absolute and left to the Presid(ent no choice as to the time and( manner in which notice was to be given. Congressman Ililliard proposed a change in the wording of the resolution which would "leave to the wisdom and discretion of the Executive the selection of the mailer and time of giving the notice." 28 This change was accepted by both Houses of Congress and the final version of the resolution read:
Resolved by the Senate and House of RLepr'esentatires of the
United States of America in Congress assembled, That the President of the United States be. and he is hereby authorized, at his discretion, to give to the Government of Great
Britain the notice required . .
Although the joint resolution was approved on April 27, 1846 ,and notice of the intention of the United States to terminate the treatv with Great Britain was duly given, the treaty was, in fact, superseded by a new treaty signed on June 15, 1846.
Another treaty which was terminated pursuant to notice given by the United States on the authority of a joint resolution of Congress was the Reciprocity Treaty as to Fisheries, Duties, and Navigation with Great Britain of June 5, 1854.30 A joint resolution introduced in the House of Representatives in the spring of 1864 declared:
Be it resolved by the Senate and lHose of Repre.e(ntatiqv',
of the United States of America in Congress assembled, That the President of the United States be. and he is hereby authorized and required to give notice to the Government of the
United Kingdom of Great Britain and Ireland ..
Congressional debate on the abrogation of this treaty was extreinely brief. Apparently Congress felt that because this treaty was concerned with commerce with a foreign nation as well as 1.S. revenues 1)both of which lie within the purview of congressional action. it had the power to abrogate a treaty which dealt with such questions.'The only serious question which arose concerning the abrogation of this treaty was whether the treaty could be abrogated ten years after its ratification (on September 11, 1854) or the President's proclamation (March 16, 1855). "In either event this Congress would be called upon to give notice and the only question would be whether it should be done at this session or next." 33
A few members of Congress felt that the termination clause should be struck from the resolution and only the section providing for ap27 Congressional Globe, v. 17, Jan. 6, 1846, p. 112. 23 Ibid., p. 113.
2 Abridgement of the Debates of Congress, v. 15, April 1846. p. 484. o Malloy, Treaties. v. 1. pp. 668-672: McClure, Wallace. International Executive Agreements, Democratic Procedure under the Constitution of the United States, New York, Columbia University Press, 1941, p. 22.
ex Congressional Globe, v. 34, May 6, 1864, p. 2509. Ibid., May 27, 1864. p. 156.
3 Ibid., May 19. 1864, p. 2364.
pointment of commissioners from both countries to meet and attempt to negotiate should be retained. If the negotiations were to fail then the treaty should be terminated.3
By the beginning of the next year general agreement on the immediate need to terminate the treaty with Great Britain had been reached and a joint resolution to that effect was passed by both houses of Congress. In the final version of the bill the words relating to the action of the President were altered slightly so that it read:
Resolved by the Senate and House of Representatives of
the United States of Amwr4ca in Congress assembled, That notice be given of the termination of the reciprocity treaty according to the provision contained therein for the termination of the same; and the President of the United States is hereby charged with the communication of such notice to the Government of the United Kingdom of Great Britain and
The treaty terminated by notice from the United States on March 7, 1866.
A joint resolution 36 authorizing the President to communicate notice of termination of the treaty of Commerce and Navigation of July 17, 1857 with Belgium aT was passed by both houses of Congress without substantial debate in June, 1874. The treaty was duly terminated by notice from the United States on July 1, 1875.
A joint resolution was again used to direct the President to terminate Articles XVIII-XXV, inclusive, ,and Article XXX of the May 8, 1971 treaty with Great Britain.38 During the brief congressional debate concerning the resolution no doubt was expressed about the propriety of such action. The general view expressed was that "by law we can require the Prsident to give notice under that treaty in accordance with its terms." 39
In later debate this position was made even clearer:
so as to guard against any possible misapprehension or implication concerning the joint resolution, that the committee by reporting it does not mean to have the Senate understand t Ihat we think it is indispensable that the termination should be made by a joint resolution: and the question is open and under reserve. I mention this so that there shall be no implication that the President by and with the consent of the Senate alone can not terminate it. I think he can; but to save all possible question we wish to pass the joint resolution if we can; but if we can not we shall undoubtedly (although I only speak for myself now) ask the Senate in its constitutional capacity of an adviser in respect of the foreign affairs of the Government. to advise the President to put an end to the treaty whether we have time to get the measure through
both Houses or not.40
7hid,, Mayn 1).9 r, 4, T). 2371.
( onfrosI1in Glole. v. 15. Jn. 18, 1865, p. 277.
T74d., v. 4". Junv 9) 1874. p. 4704.
7 dWlloy, Treaties, v. 1, pp. 700-722; Me~lure, International Executive Agreements, Sd~ Iv. 1. Tq 700 722.
U(onirryeo-1mnil NeU or(d v 14, Jnn. 10, 1 S.2, p. 1042. !1/bi4_, I' 9, 1 ) 222,::i
The final wording of the joint resolution left little doubt as to the position of Congress and the President in the termination of treaties:
the President be, and he hereby i-, directed to give and communicate to the government of her Britannic Majesty such notice of such termination on the first day of July, A.).
1883, or as soon thereafter as may be.4'
The treaty was duly terminated on Julv 1, 1885 after the Uiited1 States had given its notice of termination.i2
Section 16 of the Seaman's Act, approved M[arch 4, 1915. provided for termination of treaties which conflicted with the law. The wording of the Congressional directive was stronger than usually fond in most earlier resolutions advocating the desirability of abrogation of treaties. The Act stated:
That in the judgment of Congress, articles in treaties and
conventions of the United States insofar as they provide for the arrest and imprisonment of officers 'and seamen deserting . and any other treaty provisions in conflict with this Act ought to be terminated, and to this end the President be, and he is hereby, requested and directed, within ninety days after the passage of the Act, to give notice to the several governments respectively that so much as hereinbefore described of all such treaties and conventions between the United States and foreign governments will terminate on the expiration of such periods after notices have been given as may be required
in such treaties and conventions.43
This provision did not, however, attempt to annul treaties directly: rather the President was directed to give the necessary notices. IVithin the stipulated ninety days, notices were duly given to the following states: Austria-Hungary, Belgium, Brazil, China, Colombia. Denmark, France, Great Britain, Greece, Italy, the Netherlands, Rumania, Spain, Sweden, Norway, the Congo, and Tonga.44 Since the Seanen's Act contained provisions conflicting with treaty stipulations to which the United States was party, the President was placed under practical compulsion to give, the required notices. Mathews observes that ii, such instances, when Congress ". . passes legislation in conflict witl a treaty, the President is practically bound in the international sense, and legally bound in the municipal sense, to consider the treaty teriminated and to notify the foreigom governments accordingly." 4 This
episode in treaty termination by the United States was described by Wallace McClure as "perhaps the outstanding example of congressional action looking definitely to the terminaton of treaties by unilateral action of the United States."' 41
An even more far-reaching amendment of treaties was undertaken by Congress in section 34 of the Merchant Marine Act (Jones Act) of 1920:
41 Tiid., Feb. 6. 188.3. p. 329R.
42 U.S. treaties with the Hawaiian Islands were terminated after the cession of the Tslan to the United States was aceented by a joint resolution and approved by the President on July 7, 1898. 30 Stat. 75: 'Malloy, Treaties, v. 1, p. 908. 43 Stat. 1184.
44 For detailed discussion see Hackworth. Green H. Digest of International Law, v. 5, Washington. U.S. Government Printing Office. 1943. pp. 309-317. C, M1athews. Conduct, p. 232.
46 International Executive Agreements, p. 22.
In the judgment of Congress, articles or provisions in
treaties or conventions to which the United States is a party, which restrict the right of the United States to impose discriminating customs duties on imports entering the United States in foreign vessels and in vessels of the United States, and which also restrict the right of the United States to impose discriminatory tonnage dues on foreign vessels and on vessels of the United States entering the United States should be terminated, and the President is hereby authorized and directed within ninety days after this Act becomes law to give notice to the several governments, respectively, parties to such treaties or conventions, that so much thereof as imposes any such restriction on the United States will terminate on the expiration of such periods as may be required for the giving of such notice by the provisions of such treaties or convention.47
President Wilson signed the Jones Act, but declined to give notice of termination as directed; and none of his successors has complied with the directive.
Although the language of Sec. 34 of the Jones Act closely parallels that of Sec. 16 of the Seamen's Act, the circumstances surrounding the two directives are not comparable. Whereas provisions of the Seamen's Act conflicted with treaty obligations, no provisions of the Merchant Marine Act were inconsistent with treaty obligations. The Act merely called upon the President to terminate those obligations which served as a deterrent to future Congressional action of a discriminatory character: it did not specifically indicate Congressional intention to impose discretionary duties, an action which would have conflicted with existing treaties. Since no treaties were violated by federal law, President Wilson, and subsequently President Harding, took the position that Sec. 34 was an unconstitutional interference with the Executive's power to carry on the international relations of the United States, by which the Congress in effect attempted to compel the Executive to reneg rotiate treaties with other countries. Wilson also noted that he did not consider that his approval of the act required him to carry out any provisions which hlie deemed outside the powers of Congress.4
3. ABROGATION BY CONCURRENT RESOLUTION
No precedents were found for the termination of treaties by con(urrent resolution, i.e. by joint action of the Senate and House without Presidential signature. However, such procedure was proposed in the first reservation to the Versailles Treaty and was approved by a nli jority of the Senate. The reservation provided that notice of withd'awal from the League of Nations by the United States could be givenI by a concurrent resolution of the Congress of the United States. As the treaty was never ratified by the Senate, the provisions of the re ITatioI were never put into force.
Debate in the Senate on the reservation centered on the issue of whether a cOlwurrent resolute ion was a proper instrument for convey" 1. Stat,. 1007; for detniled discussion ze Reeves, the Jones Act, 33-38; Ilackworth, 1:)If0r' of I ntrnational Law, v . pp. 322 :,29.
1* tI:wkworth, DiL)gest of International Law. v. 5, p. 3:24.
congressional l Record, v. 5s, part 8, Nov. 7 SM. 1919, pp. 8057-8080, 8121-8140.
in" U.S. notice of withdrawal. Those( Senator 1' j favor of t he res(ervation argued two essential points. First, tiey claimed that no~tice o,-f withdrawal fromr the League would not have the characters' of law and would therefore be exempt from provisions of Article 1, Sec. 't o)f I hce Constitution, which requires Presidential signature on all mnattiis of law. The supporters of the reservation did not attempt to clamni that Cong(_ress had the authority to abrogate any treaty by passage of concurrent resolution. Ra ther, they claimed that withdrawal from thle League would not represent abrogation of the treaty, but would be the, exercise of a right authorized by provision of the treaty and would recogniize the continuing validity of the treaty. Secondly, prop)onent s of the reservation argued that treaty law could be considered as the supreme law of the land, equal, in effect, with thle Constitution. and that therefore provisions of a treaty could establish the method for withdrawal from all or part of that treaty.
Several amendments to the reservation were proposed which would1 either have eliminated reference to the means by which the United States could give a notice of withdrawal-apparently implictly assumning t hat a joint resolution for concurrent resolution in the wording of the reservation. It was argued that the purpose of the concurrent resolution proposal was simply to exclude the President of the United States from participation in a withdrawal decision. The Senators supporting the amendments, and/or including those opposed to the reservation altogether, argued that a U.S. notice of withdrawal would have the character of law. It was pointed out that no precedent existed for terminating a treaty by concurrent resolution. Further, the Executive is the sole channel of communication between the United States and other countries or international groups; if the President chose to dlisregard a concurrent resolution, the Congress would lack even the recourse of overriding his position by a, two-thirds majority, as it could do if a joint resolution were vetoed. Opponents of the concurrent resolution procedure generally agreed that the Executive acting alone
-would lack the necessary authority to give notice of U.S. withdrawal f rom the League, but that without the concurrence of the Execuitiv-e the Congress also lacked necessary authority.
Had the Versailles Treaty and this reservation been ratified. Nlatlhews concludes that the concurrent resolution procedure would have had little effect on the relative powers of the Congress and the Executive:
The President could certainly not thus be stripped, even
with his consent, of any constitutional power that lhe may have of effecting the termination of a treaty, and such a concurrent resolution would have not international validity if lie were opposed to the policy involved. It would mxerelv iiiform him of the wishes of Congress. which hie could not be compelled against his will to carry out. Otherwise, hopele s confusion would result from divergent views of the two authorities upon such questions as the termination of the treaty
or our withdrawal from the League.5
O Mathews, Conduct, p. 229.
Finally. the circumstances of the Senate debate on the entire treaty, namely, the opposition of Republican majority to the Democratic President, must be noted. Holt observes that:
. the constitutional struggle of the Senate against the President was subordinated to politics. Only Republicans entered the battle in defense of the Senate's prerogatives. The Democrats, with the exception of the very few who fought Wilson, saw no invasion of the rights of the Senate. This division proved the supremacy of political considerations. A Republican senator gave evidence to the same effect. In speaking of the first reservation McCumber said, "I am satisfied that if we had a Republican President today we would not be insisting that he should be eliminated from any voice in the matter of any future action that we might take in respect to
staying in or getting out of this league of nations.51
4. ABROGATION BY PRESIDENT FOLLOWING APPROVAL BY SENATE
We found only two instances in which the President terminated a treaty after obtaining the approval of the Senate alone. On December 4, 1854, President Pierce in his annual message to Congress declared it expedient that the required notice for termination of the Treaty of Friendship, Commerce, and Navigation with Denmark 32 of April 26, 1826, be given. The question was discussed at some length in the Senate and a resolution authorizing such action was unanimously passed by the Senate on March 3, 1855.5*
The following year Senator Charles Sumner questioned the legality of the Senate resolution on the following grounds:
First. In the absence of any express words in the Constitution, the power to abrogate treaties should not be attributed to any mere fraction of the Government, as to the President, or to the President and Senate, nor to any branches short of the whole Government embodied in an act of Congress. In view of the magnitude of the power. I am at a loss to see how any
other conclusion can be adopted at this point.
Secondvly. The Constitution has expressly lodged the warmaking power in Congress, and in doing so seems, by implication, to have placed the treaty-abrogating power in the same body: for the latter seems to be an incident of the former.
The abrogation of a treaty may be the prelude of war: indeed.
it may practically amount to a declaration of war. The powers, tlhonih differing in degree, are kindred in charactor, and should go together.
Thirdly, The Constitution has stepped forward, and expressly declared that treaties shall be the "supreme law of the
S lolt. W Stull. Treaties I1foated by the Senate. Balitimore, The Johns Hopkins Press, ....: I)T). "'07, #;
M. lloy Trrat11 v. !. pp. :171 .27f. The treaty provided for most-favored nation treatmn t to d m paynI le by Amnrieanu ships passing through the narrows between the North nil lIlta Sern There wajs mulh disatisfation with the operation of this part of the troate No Mo1Cnro. International Exocutive Agreements, p. 21. For text of the annual tf'o a o of Proe-!Ient Plorce, seon Richardson. Message and Paners. v. 5, p. 279.
I < e Somat JouranT of th 1 Fxcutive Proceedings of the Senate. v. 9. p. 431 : Richard.r Mis~'~~a go ani Papers, v. 5, p. 334.
land;" and I know no way in which these words c:an hiave complete efficacy, unless they are held to iiml)ress upon treaties s the character of law, so that they 11 not only be re-ooqniztd as such by the courts, but also be irreiwalable except by act
In addition to this Senator Suinner introduced a resoliitioii whieh directed the Committee on Foreign Relations to consider enactnenlt of legislation in which both houses of Congress would participate to effectivelyly' abrogate the treaty with Denmark "in conformity with the requirements of the Constitution,, under which every treaty is a part of the 'supreme law of the land,' and in conformity with the practice of the government in such case.s."5
The Senate Committee on Foreign Relations, to which the matter referred, made a full report on April 7, 1956.- 6 The report refused to yield to the precedents of 1798 and IS46 in which termination was effected by joint action of both houses and maintained that the right to give notice of treaty abrogation resides in the treaty-making power that is-the President with the advice and consent of the Senate. -, The report concluded, moreover, that the notice which was given by
-the President of Denmark, pursuant to the Senate resolution:
is sufficient to cause such treaty to terminate and be annulled, to all intents whatsoever, pursuant to the eleventh article thereof; and that no other or further act of legislation is necessary to put an end to said treaty, as part of the law of
The treaty was considered terminated on April 15, 1856, pursuant to notice. The following year, however, the treaty was renewed except for one article.59
The other instance in which the President sent notice of the intention of the United States to terminate a treaty after obtaining the approval of the Senate alone occurred many years later. In 1920 President Wilson requested and later received Senate advice and consent to termination of United States adherence to the International Sanitary' Convention of 1903.60
5. ABROGATION BY PRESIDENT PRE, CEDING CONGRESSIONAL APPROVAL
Apparently the first President to give notice of termination of a treaty without prior congressional endorsement was President Lincoln. On November 23, 1864, he gave notice of the intention of the United States to terminate the agreement of 1817 with Great Britain (Rush-Bagot Convention) concerning naval forces in the Great
U Congressional Globe, v. 2T5, May 8, 1856, p. 1147. 55 U.S. Congress. Senate, Report no. 97. 34th Congress, 1st session April 7, 1856, p. 1. Also reprinted In Congressional Record, v. 58. November 8, 1,919, p. 8126.
i 6 U.S. Congress. Senate. Report no. 97, 34th Congress, 1st session, April 7, 1856. 6'7 Ibid., pp. 6-7.
58 U.S. Congress. Senate. Report no. 97, 34th Congress, 1st session, April 7, 1856, p. 8. 69 Crandall. Treaties, p. 459.
60 Malloy, Treaties, v. 2. p. 2066; for the President's message to the Senate and the text of the Senate Resolution of May 26, 1921 see Congressional Record, v. 61, pt. 2, May 26, 11921, pp. 1793-1794; Redmond, C. F., comp. Treaties, Convention, International Acts, Protocols. and Agreements between the United States of America and Other Powers*, 1910-1923. (v. 3 of Malloy, Treaties), Washington, U.S. Government Printing Office, 1923 ,v3 pp. 2877-2879.
Lakes.c" In the preceding session of Congress, a resolution to that effect had passed the House, but failed in the Senate. After the notice had been communicated to the British government, a joint resolution, approved on February 9. 1865, "adopted and ratified" the notice "as if the same had been authorized by Congress." 6 This congressional action, however. had no effect on the ultimate fate of the treaty: the notice of termination was subsequently withdrawn by the President andl the treaty continued in force.6
Another case in which the President gave notice without prior congressional direction or aI)proval occurred on December 17, 1911. when President Taft gave notice of the intention of the United States to terminate the Treaty of Commerce and Navigation of December 18, 183~2 with Russia.64
The action was taken by Taft to forestall passage by Congress of an "inflammatory" resolution calling for abrogation of the treaty. The preamble to the joint resolution originally submitted to the House stated that:
the people of the United States assert as a fundamental principle that the rights of its citizens shall not be impaired because of race or religion; that the Government of the United States concludes its treaties for the equal protection of all classes of its citizens, without regard to race or religion; that the Government of the United States will not be a party to any treaty which discriminates, or which by one of the parties thereto is so construed as to discriminate, between American
citizens on the ground of race or religion c...
On December 18, 1911 President Taft sent a message to the Senate advising that body "as part of the treaty-making power," of his actions in giving notice "with a view to its ratification and approval." 66 A joint resolution was passed by both houses, and approved December 21. 1911, which adopted and ratified the notice already given by the President, omitting the earlier "offensive" preamble. Wallace McClure contends that the termination would have taken place, however, rerardless of the legislative approval of Congress.7
M Malloy, Treaties, v. 1, pp. 628-630.
*- 13 Stat. 564; Congressional Globe, v. 35, February 9, 1865, p. 6S8; Mathews. Conduct, p. 227.
SMcClure, International Executive Agreements, p. 17: Wright. Quincy. The Control of American Foreign Relations. New York, Macmillan. 1922, p. 258 ; More, Digest. v. 5, p. 323.
Malloy. Treaties, v. 2. pp. 1514-1519 : for discussion of the differences on various provisions of the Treaty see Sinha, Unilateral Denunciation, pp. 133-134.
H.J. Res. 166. 62nd Congress. 2nd session. 1911.
1 Congressional Record, v. 48. pt. 1, December 18. 1911, p. 454: Crandall, Treaties. p. 462; Mathews. Conduct. 226. William H. Taft. Our Chief Magistrate and his Powers, New York. Columbia University Press. 1925, pp. 116-117 explains his own actions thusly :
"The attitude so contrary to our notions of equity and tolerance to all religions naturally irritated our people andl led to the introduction of a resolution in the House of Ropresntatives, during my administration, calling upon the President to annul the treaty In aeordance with its terms hby a year's notice, on the ground that Russia had flagrantly violated its obligations. The resolution was drawn in language which would have riven diplomatict offense to Russia, as doubtless its framers intended to do. With the responsiblity of maintaining as friendly relations as possible with all the world, it seemed to me that if the treaty had to be abrogated, it ought to be d(lone as politely as possible, with the hopn of negotiating a treaty less subject to dispute, and giving a yvar's notice to Russia of the annulment in proper and vourteous expressions, on the ground that we had differed 4o radically 1s to its construction and the treaty was so old that it would be wiser to make a new treaty more definite and satisfactory. I sent notice of this annulment at once to the Senate, and In this way succeeded in having the Senate substitute a resolution approving my action for the resolution which came over from the House. The House was ths induced to approve my action and the incident was closed for the time." International Executive Agreements. p. 17. 13 Stat. 267.
6. ABROGATION BY PRESIDENT ALONE
On March 23, 1899, notice was given to tle Swiss igoverillit 1)v the Secretary of State of the intention of the United States to teIn1iinate Articles VIII-XII of the 1850 Convent ion of Friendship, ColnIierce, and Extradition." This notice a))ears to lIake lwell gi\ ell oil authority of the Executive alone without any (congressional authorization.6" Although the action was in line with the policy of Congress as legislated in the Tariff of 1897.70
The President acted without prior or subsequent congressional approval in terminating the 1925 Convention for the Prevention of Smuggling with Mexico.'; The Secretary of State directed that official notification of termination to be given, and on March 28, 1927. the Convention was terminated.
In 1933 without prior congressional action Franklin Roosevelt gave notice of termination of the newly in force extradition treaty within Greece.72 An understanding was, however, reached with the Greek government and notice of termination was withdrawn.
During the same year the President concluded that the Multilateral Convention for the Abolition of Import and Export Prohibitions and Restrictions of 1927 74 might have a restrictive effect of the National Industrial Recovery Act of 1933. Thus on June 29, 1933 without prior congressional approval he gave notice of immediate withdrawal by the United States from the Convention.75
Again on July 26, 1939 President Roosevelt gave notice to Japan of the termination of the existing Commercial Treaty.76 There were at that time resolutions pending in both houses of Congress expressing the opinion of the government of the United States should give Japan the required six months notice for abrogation of the treaty. Neither House had acted on the resolutions when a formal notice expressing the intention of the U.S. to terminate the treaty was given to Japan.
The International Load Lines Convention 78 was temporarily suspended with respect to the United States by President Roosevelt. Declaring that "it is clear from its general nature that the convention was a peacetime agreement," he suspended it from the duration of World War II by presidential proclamation, August 9, 1941:
Whereas the conditions envisaged by the Convention have
been, for the time being, almost wholly destroyed, and the partial and imperfect enforcement of the Convention can operate only to prejudice the victims of aggression, whom it
"Malloy, Treaties, v. 2, pp. 1763-1768.
Crandall, Treaties, p. 462; Reeves, The Jones Act, p. 36. 70 McClure, International Executive Agreements, p. 17. 71 Edward J. Trenwith, comp. Treaties. Conventions. International Acts. Protocols, and Agreements between the United States of America and Other Powers, 1923-1937, (v. IV of Malloy, Treaties), Washington, U.S. Government Printing Office, 1938, v. 4, p. 4448. Hackworth, Digest, v. 5, p. 329.
72 Trenwith, Treaties, v. 4, p. 4290-4296.
73 McClure, International Executive Agreements, 18: Henkin, Louis. Foreign Affairs and the Constitution, Mineola, New York, The Foundation Press, 1972, p. 168. 7, Trenwith, Treaties. v. 4, pp. 5104-5130.
75 U.S. Department of State, Press Release, July 8, 1933, p. 18. 76 Redmond, Treaties, v. 3, 2712-2718.
,See Department of State Bulletin, v. 1, July 29, 1939. 81 for text of notice. 79 Trenwith, Treaties, v. 4, pp. 5287-T5350.
is the avowed purpose of the United States of America to aid;
Whereas it is an implicit condition to the binding effect of
the Convention that those conditions envisaged by it should continue without such material change as has in fact occurred: and
Whereas under approved principles of international law it
has become, by reason of such changed conditions, the right of the United States of America to declare the Convention suspended and inoperative:
Now. Therefore, I, Franklin D. Roosevelt, President of the
United States of America, exercising in behalf of the United States of America an unquestioned right and privilege under approved principles of international law, do proclaim and declare the aforesaid International Load Lines Convention suspended and inoperative in the ports and waters of the United States of America, and in so far as the United States of America is concerned, for the duration of the present
The President acted on the opinion of his Attorney General that:
It is a well-established principle of international law, rebus
sic sfanfibus, that a treaty ceases to be binding when the basic conditions upon which it was founded have essentially
changed. Suspension of the convention in such circumstance is the unquestioned right of a state adversely affected by such
On November 15, 1965 the United States announced its withdrawal from the Convention for the Unification of Certain Rules Relating to International Transportation by Air 81 (Warsaw Convention). It was indicated that the reason for renunciation was the Convention's low limits on liability and that the notice of denunciation would be
rescinded if before its effective date there was a "reasonable prospect" of an agreement on much higher limits of liability. This action was taken by the Executive before any formal congressional action agreeing to or advising such action.82
SDepartment of State Bulletin. v. 5, Aug. 9, 1941. pp. 114-115; 6 Federal Register 3999 (Aug. 12. 1941) : Hackworth. Digest, v. 5, 355-356. See also the discussion in Hyde, Charles Cheney. International Law Chiefly as Interpreted and Applied by the United States. Boston. Little, Brown, 1945. v. 2, 1526.
Fowler, John T., ed. Official opinion of the Attorney General of the United States advising the Presidents and Heads of Denartments in relation to their official duties. Washington. U.S. Government Printing Office. 1949. v. 40, pp. 121-122.
Herbert Briggs (The Attorney General invokes Rebus Sic Stantibus. American Journal of International Law, v. 36, 1943, p. 90) wrote a scathing attack on the President's action in which he said :
"This surprising, and, indeed. reckless and unnecessary espousal by the United States of a much questioned doctrine by which Germany, Italy, Japan, and Soviet Russia might equally well Justify the suspension, termination or even violation of inconvenient treaties renders desirable an examination of the conditions and legal principles set forth by the Attorney General in his opinion."
ex 49 Stat. 3000. T.S. No. 876. Adhered to by the United States on Oct. 29, 1934.
SS, Res. 256 had been introduced in the Senate directing denunciation of the Convention, but it was ponding in the Senate Committee on Foreign Relations at the time notice was given by the Department of State.
Alko the Report of the Senate Foreign Relations Committee after hearings on the question of ratifincation of the Imgue Protocol to the Convention states in its conclusions that "if insurance legislation similar to that which has been proposed by the administration is not niaeted within a reasonable time (i.e. prior to the adjournment of the 89th Congress). the Department of State should take immediate steps to denounce the Warsaw Convention and the Thanue Protocol." (IU.S. Congress. Senate. Committee on Foreign Relations. Hague Protocol to Warsaw Convention. Washington, U.S. Government Printing Office, 1965, 10 p. I [9th Congress, 1st sess. Senate, Executive Report No. 311 ), p. 7.
One day before the effective date of the denuinciation, tb e Unitd States provisionally withdrew its notice after agremn by th leading international air carriers to the set ting' of a new dainages limit for all international flights originating, terminating or stopping over in the United States."3
The one thing which is clear from the precedents cited above is that no single procedure for treaty abrogation by the United States hias been undisput ably established:
*'*An expression of Congressional will that a treaty be
abrogated and a direction to the President to terminate a treaty would perhaps be the most effective and unquestionable method so far as this Government is concerned of terminating
It would seem to be clear that the power that makes the
treaty can likewise revoke it; in other words, that the President, acting in conjunction with the Senate of the United States. would be authorized to terminate a treaty to which the
United States is aparty...
A third method of terminating a treaty is by notice given
by the President upon his own initiative without either a resolution of the Senate or the joint resolution of the
It is thus seen that there are three methods of terminating a
treaty, so far as the United States is concerned, and that the choice of method would seem to depend either upon the importance of the international question or upon the preference
of the Executive.84
The President, or any other agent acting under the President's orders, transmits notice of treaty termination, because the executive branch is the only one which carries on correspondence with foreign governents. The question which arises, however, is whether the Presi(lent may act entirely on his own initiative and authority in giving such notice, or whether he needs the authorization of the Senate or the whole Congress.
Edward Corwin clearly asserts that "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."1 85 MNost other scholars appear to disagree with this view and contend that it is within the power of the President to terminate treaties by giving notice on his own initiative without previous Congressional or Senatoral action.861 Louis Henkin -unequivocally states that "Isince the Presi83 For further discussion see, Riggs, John H. Termination of Treaties by the Executive without Congressional Approval: the Case of the Warsaw Convention. Journal of Air Law and Commerce. v. 32. 1966: 526-534.
Memorandum of the Solicitor for the Department of State (Scott), June 12, 1909, MS, Department of State, file 20158. cited In Hackworth. Digest, v. 5. P. 319. 85 The President's Control of Foreign Relations. Princeton, Princeton University Press. 1917. p. 115.
sO Reeves. The Jones Act, p. 38: Nelson, Randall. The Tormitnation of Treaties and Executive Agreements by the United States; Theory and Practice. Minnesota Law Review, v. 42, 1958 ; 887 ; Hyde, International Law, v. 2, p. 1519.
dent acts for the United States internationally he can effectively termninate or violate treaties, and the Senate has not established its authority to join or veto him." 8 Randall Nelson argues that because the Constitution does not place express limits upon the President's power to abrogate treaties, no such limitation was mean to be placed upon him.*8
Neither practice nor opinion give the President exclusive power to terminate treaties, however. Most scholars agree that. a strong case can be made in principle for the view that treaties should be terminated by the treaty-making power-that is, the President with the advice and consent of the Senate.89 William Howard Taft was an especially strong spokesman for this method of treaty termination:
The treaty-making power is in the President and two-thirds of the Senate, and not in Congress. The abrogation of a treaty involves the exercise of the same kind of power as the making
In practice, however, this method of treaty termination has been used only twice.
Another strong argument can be made to deny to the President alone the power to abrogate a treaty since the provisions of a treaty are the supreme law of the land. Constitutionally only Congress has the power to repeal federal laws. Thus only Congress would appear to have the power to terminate the municipal law aspect of a treaty.
From the above discussion it is arguable that any of the possible methods for terminating a treaty involve potential constitutional difficulties. There has never been a court decision which clearly held that any one procedure for treaty termination was the only constitutional method for effecting termination of a treaty.
The lack of a settled procedure may occasionally lead to political impasses, but this has been the exception rather than the rule in the case of past treaty abrogations. Where conflict arises between the President and the Senate or Congress over the question of abrogation of a treaty, and the President acts contrary to the wishes of the Senate or Congress, there is no way for these bodies to stop him. He might he impeached. However, once notice of termination has been sent, no other body has the power to recall it, and the other state has no right to question the constitutional validity of the President's action.
Congress has, of course, the power to breach treaties by refusing to pass implementing legislation or by enacting legislation which is inconsistent. with treaty obligations. Moreover, Congress can declare war and terminate or suspend treaty relations with other belligerents. Moreover, various precedents show that Congress, in one instance at least, has claimed to have the power to abrogate treaties for the United States. More often Congress has claimed to have the power to direct the President to give notice. In practice Presidents have usually chosen to comply with congressional desires concerning abrogation of treaties.
SForoten Affairs and the Constitution, p. (169.
i Uolson. Termintt ion p. S.Y7.
SRIt~honlt.. Strffan. The power of Congress and the President in International Relat I'ree re10cent Supreme Court Decisions. California Law Review. v. 25. 1937. v. f 60: IT e 'orh. IHgest., v ,. ::37. notes 3: McDougal. Myers and Asher I ns. Treaties ani 1 C(ogrrssionI Exeutcivv or Presidelntial Agreements Interchangeable Instruments of N' I'nal Pahoy. Yule Law ReVliew, v. 54. 1945 pp). 3:36-337.
e Itunuljd:ari-s between the Exe(utive. the Legislative and the Judicial Branches of th (e G government. Yale lnw Journal, v. 25., 1916, pp. 60 (10.
NORMALIZATION OF RELATIONS WITH THE PEOPLE'S
REPUBLIC OF CHINA: PRACTICAL IMPLICATIONS
Legislative and Legal Problems
WEDNESDAY, SEPTEMBER 21, 1977
HoUSE OF REPRESENTATIVES,
COMMITTEE ON INTERNATIONAL RELATIONS,
SuBcoxmiTTri ON ASIAN AND PAciFIC AFFAIRS,
The subcommittee met at 1:15 p.m. in room 2200, Rayburn House Office Building, Hon. Helen S. Meyner presiding.
Mrs. MEY NFR. The subcommittee will come to order.
Perhaps I should explain that the chairman of the Subcom-ittee on Asian and Pacific Affairs, Congressman Wolff from New York, has asked me to take over in his absence. He has been appointed to the United Nations as the representative from Congress for this session of the General Assembly.
Mr. Wolff has prepared some remarks to open this hearing which I will now read:
OPENING STATEMENT OF SUBCOMMITTEE CHAIRMAN, ION.. LESTER L. WOLIT AS READ BY MRS. MEYNER
I would, like to welcome everyone to the second in the seven-hearing series on the practical implications of normalization with the People's Republic of China being held by the Subcommittee on Asian and Pacific Affairs.
Yesterday afternoon we began the first hearing, entitled "Global Implications of Normalization," and while we intended to spend time discussing the broad questions that title implies, a significant portion of the hearing revolved around the question of Taiwan.
I mention this because I suspect that much as we might wish to dwell upon more esoteric aspects of the normalization question, the Taiwan issue will refuse to go avay-that is, until all parties to the question work out some modus vivendi. Our Government is committed to a policy of normalization, but we as yet have developed no publicly articulated policy of how or when to do so.
Today's hearing, on the legislative and legal aspects of normalization, will, perhaps more than any other hearing in the series, probe new g-round. Certainly insofar as the House is concerned, no indepth examination of the possible effects on our laws land agreements has been undertaken from the standpoint of the working premise that normalization is the intended policy of the U.S. Government.
As an example, at last count, we had some 59 treaties and agreements with Taiwan. I should add that when this point was raised with a visiting delegation from the PRC last summer, the leader of the delegation said, and I quote, that he really didn't care whether we had 50, 500, or 5,000 treaties with Taiwan, the problem was ours and ours alone--Peking's position was clear on that.
Well, I suspect that the question is not so simple as that, as today's distinguished panel of witnesses will no doubt demonstrate for us.
Let me caution at the outset that no one on this subcommittee is an expert on the topics of today's hearing but it has become clear more than once in our history that the details of the law, of business practice, and indeed a knowledge of the Constitution itself, triumph over political intention.
So following those remarks let me formally welcome Jerome Cohen, director of East Asian Legal Studies, Harvard Law School; Victor Li. Stanford Law School; Eugene Theroux with Baker & McKenzie; and Francis Valeo, former Secretary of the Senate.
Let me ask you, gentlemen, to feel free to guide us and to bear with us as we attempt to educate ourselves this afternoon.
If the China normalization question is itself frequently incomprehensible, indeed, Byzantine, the legal and legislative aspects of normalization are no doubt doubly so, and with that let us begin to unravel the knot.
Let us just go straight down the table. Mr. Cohen, would you start, please.
STATEMENT OF JEROME A. COHEN, DIRECTOR, EAST ASIAN
LEGAL STUDIES, HARVARD LAW SCHOOL
J erome A. Cohen, who specializes in Chinese law and government, in 1965 became Professor of Law at Harvard Law School. Professor Cohen is the author of several books: "The Criminal Process in the People's Republic of China 19491)%3: An Introduction" (1968) ; "People's China and International Law" (with Hungdah Chiu, 1974) ; "China Today and Her Ancient Treasures" (with three others, 1971). He is the editor of "Contemporary Chinese Law: Research Problems and Perspectives" (1970), "The Dynamics of China's Foreign Relations" (1970), "China's Practice of International Law: Some Case Studies" (1972), and co-editor of "China's Legal Tradition" (1977). He has also contributed over 35 articles and book reviews in professional journals. Born in Elizabeth, New Jersey, in 1930, he received the A.B. degree in 1951 from Yale University. After a year's study at the University of Lyons, France, he attended the Yale Law School and received the LL.B. degree in 1955. He served as a law secretary for the U.S. Supreme Court, under Mr. Chief Justice Warren from 1955 to 1)' and under Mr. Justice Frankfurther from 1956 to 1957.
lDuring 1957-58 he was an associate in the Washington, D.C. law firm of Covington and Burlinig, was Assistant U.S. Attorney for the District of Columbia in 1958-59 and served as a consultant to the U.S. Senate Committee on Foreign Relations. i1e taught law at the University of California at Berkeley before coming to IHarvard in 19 34.
I'rofessor C(ohen is a member of Phi Beta Kappa, Order of the Colf, and the Board of Editors of the American Journal of International Law. He is also Chairman of the China Council of the Asia Society.
Professor ( ohen is married, has three tven-age children and lives in Cambridge, Masuchuset ts.
M!. (Cmlil:. Thmank voUi very nimuch, Mrs. Mevner.
This ing statement will empl)hasize a few basic points concerning
the legal problems of normalizing relations with the People's Republic of China. There are three categories of legal problems to be considered. These relate to international law, domestic legislation and executive branch regulations. Here I will focus on international law, with only brief reference to legislative and administrative problems.
Our principal task with respect to international law is to forecast t he implications of normalization with the PRC for the U.S. treaties wit 11 the Republic of China on Taiwan. Because the United States cannot recognize both of two contending governments as the legitimate government of the state of China, normalization with Peking-that is, the establishment of diplomatic relations at the ambassadorial level-will require Washington to withdraw recognition from. Taipei, thereby severing diplomatic relations with Taipei.
What impact will this have on our mutual defense treaty, our friendship commerce and navigation treaty, and other important bilateral agreements with the ROC? Can they continue in effect? If not. can some substitute arrangements be made in order to avoid unsettling either our contacts with Taiwan or the stability of the island?
My own view has long been that we cannot expect the defense treaty to survive a change in our recognition policy. That treaty was concluded with the state of China. Once we formally acknowledge the PRC to be the government of that state, it will be for Peking, as well as Washington, to determine whether the treaty should be maintained.
The PRC has followed a policy of choosing which of the treaties that it has inherited from the ROC it wishes to continue. There is no likelihood, however, that the PRC will allow the defense treaty to survive because Peking has denounced it as void ever since it was negotiated.
Therefore, although I share many of the views that my friend, Prof. Victor Li, has adopted in the valuable statement that he'has submitted for the record of this hearing, I do not agree that the defense treaty can survive withdrawal of recognition from Taipei and conferral of recognition upon Peking.
It is the latter aspect-the recognition of Peking-that is crucial. Whatever the consequence might be if the United States were simply withdrawing recognition from Taipei and not conferring it upon Peking, that is not the situation we are contemplating. By conferring recognition on Peking, we will confer upon it the mantle of China for legal purposes, thereby enabling it to decide not to continue the treaty.
I do not know of any case in which a country that has transferred recognition from Taipei to Peking h-as been able to maintain its treat ies with Taipei. For example, the 1952 Japan-ROC peace treaty lapsed when Japan recognized the PRC, and Tokyo has had to construct an elaborate web of unofficial agreements to replace the other important treaties that it had previously maintained with the ROC. If international law and practice permitted a country to maintain its treaties with the ROC after recognizing the PRC, surely many countries would have done so.
Let me stress, however, that this does not mean that normalization will deprive the United States of the legal ability to renew its pledge
to defend Taiwan by some means other than a formal treaty. In other words, the United States is free to make a unilateral defense commitminent through a Presidential statement, for example.
Many variations of such a functional substitute for the existing defense treaty are possible, and my article in the October 1976 issue of Foreign Affairs reflects my own preferences.
It would also be legally possible, despite a change in recognition for th United States to announce that, pending subsequent negotiations withll what will thereafter be known as "the authorities on Taiwan," rat her than the Republic of China, the United States will continue to obs-erve its former obligations under the defense treaty, even though the treat- is no longer in existence.
Indleed. withdrawal of recognition would not preclude Washingoton and Taipei from making a new agreement solong as the, -arties make clear that it in no way constitutes diplomatic recognition. Or each side could agree to maintain the substance of the defense treaty through unilateral statements.
The political feasibility of such moves, as with other formulas relating to normalization, would, of course, have to be determined in negotiations with Peking. My point here is to note that there should be no international law obstacles to whatever Washington and Peking agree is politically desirable-and without depriving Taiwan of the substa nce of our security commitment.
Thus. I see no need to resort to Professor Li's proposal, which seems more complicated and uncertain in its implications than the situation re(tuires. This is fortunate, since my own view, unlike his. would permit normalization now-rather than mere recognition of Peking without establishment of diplomatic relations.
My views with respect to the other principal bilateral treaties between the United States and the Republic of China are similar. I do not expect Peking to continue any that were concluded since October 1, 1949, the date of the People's Republic of China's founding, and probably not any concluded after January 10, 1946.
(Certainly, I do not expect the PRC to maintain the Friendship, Con nerce and Navigation Treaty concluded in November 1946, since thle Central Comnittee of the Chiniese Communist Party announced on FeLrIuary 1, 1947, that it would not recognize that treaty as well as a number of others.
Again. I want to emphasize that the lapse of these agreements with the ROC does riot mean that their substance cannot be observed, even after recognition is withdrawn from the ROC. The United States can announce that it will continue to act as though its former treaty obligations still persist and that it expects the authorities on Taiwan to do the same until new arrangements are made.
Fiirthermore, new arrangements can be negotiated with Taiwan Vven, after recofnition has been withdrawn. The PRC will surely appreciate th e legal possibilities of concluding agreements in the absence of recognition. It has done so in many cases, even with the United States.,
In 195. the PIRC and the U united States concluded an agreement on t hel, repeat riat ion of nationals, without recognizing each other, and the Slian ghlai Comunmunique of 1972, is an even clearer illustration. In additiom, thle PRC has tolerated the conclusion of many unofficial agree-
ments between countries that now recognize it and entities representing Taiwan, as the Japanese case demonstrates.
I regret that this brief opening statement does not allow time to consider other international law questions and related problems of legislative and executive promulgations, but I think it important to concentrate here on clarifying the question of normalization's impact on our bilateral treaties with the ROC.
Before concluding, however, I want to urge the Congress to facilitate normalization to the extent that is politically possible by preparing now to enact the legislation that will be necessary immedliately after normalization to avoid damage to our many contacts with Taiwan.
I believe that appropriate bills should be introduced and that the usual congressional processes should, be pursued short of the final step of passage of the proposed legislation. earnings deliberations, and reports by the relevant committees and even floor debates may be desirable so that, once normalization occurs, legislation can be expeditiously enacted in order to prevent an elapse of time that might shake confidence on Taiwan and allow obstacles to impede our contacts with the island.
This is why I especally welcome the concern shown by this subcommittee today, and the detailed study by Professor Li that fosters the subcommittee's efforts.
Mrs. MEYNER. Thank you, Mr. Cohen.
I believe that our procedure today will be that instead of having one speaker and then questions. we will hear the testimony of all four gentlemen. Then after that, Mr. Bielenson and I will have questions.
M1r. Li, Mr. Cohen has referred to your testimony in his statement, we will ask you to proceed at this time.
STATEMENT OF VICTOR H. LI, SHELTON PROFESSOR OF
INTERNATIONAL STUDIES, STANFORD UNIVERSITY
Born September 17, 1941; came to the United States from China January 1947. Since 1974, Professor Li has been Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies at Stanford University. From 1974-76 he was Director of the Center for East Asian Studies at Stanford. He received a B.A. from Columbia College in 1961 J.D., Columbia Law School; LL.M., Harvard Law School, 1965 and S.J.D., Harvard Law School, 1971. He is a member of the New York Bar. He is the author of several books including "Derecognizing Taiwan: The Legal Problems" and the forthcoming "Law and Politics in Chinese Foreign Trade".
Among his recent articles are: "China and the World Economy: An Introduction" 10 Stan. J. International Studies XII-XVII (1975) ; "China and Offshore Oil: The Tiano-yu Tai Dispute," 10 Stan. J. International Studies (1975) ; "Resolving the China Dilemma: Advancing Normalization/Preserving Security," International Security (June 1977).
Mr. Li. Thank you, Mrs. Meyner. It is an honor and privilege to appear before this committee.
The issue for the United States is no longer whether we should normalize relations with the People's Republic of China. We have passed that point. The issue is how.
A major obstacle in this effort has been a fear that normalization would severely disrupt our relations with Taiwan and endanger our security interests. This concern may be mistaken, but it nevertheless has been repeatedly expressed by American political leaders and in public opinion polls. I believe that the following legal analysis suggests a policy option which has not yet been considered: The United States can recognize the People's Republic of China, and thereby take a major step forward toward normalization, while at the same time maintatin existing economic and security ties with Taiwan.
I stress at the outset that normalization-in the broader sense of establishing effective and cooperative relations-is a process requiring much time, rather than a single act of creation. Situations like Taiwan, formed over half a century, cannot and should not be resolved in a single stroke. I believe the PRC agrees with this position.
It would be wonderful at this time to find a complete solution to the entire China problem. Short of that, we should take steps that confirm points of agreement and reduce areas of disagreement. This is not moving by half-measures. This is the way to advance the normalization process.
I have submitted a prepared statement to the committee, and would like now to summarize the principal points.
Let me begin with a practical issue. What are the legal consequences for economic and other relations between the United States and Taiwan if the United States withdraws de jure recognition, although the Taiwan authorities continue to maintain de factor control?
There are very few provisions in American legislation which specify the de jure governments and de facto authorities should be treated differently. In general, the legislative approach has been to treat these two kinds of entities similarly, unless there is a specific provision to the contrary.
However, several problems will arise upon withdrawal of recognition. First, a number of statutes apply only to "friendly countries": these affect military sales and assistance and the Overseas Private Investment Corporation, among others. Interestingly, nowhere in these statutes is the term "friendly" defined, but withdrawal of recognition might be interpreted as a loss of friendliness.
Second, several statutes-for example, the Foreign Assistance Act and the Agricultural Trade Development and Assistance Act-prohibit dealings with countries with whom the United States has "severed diplomatic relations."
Third, other statutes place various restrictions on dealings with "Communist countries." If Taiwan is considered part of a "Communist country" after withdrawal of recognition, then the ExportImport Bank, the generalized system of preferences, tariff rates, and other matters. may be affected.
These three problems are not difficult to resolve. That is, after withdrawal of recognition all domestic legal obstacles to maintaining existing economic, cultural, and other ties with Taiwan can be removed by legislation. Language for this legislation, which is fairly simple, is sug gesed in the written satement. The legislation would affirm the Taiwan authorities' de facto control and "friendly" status, and would make inappl)icahble the restrictions on dealings with "Communist countries" or countries with whom diplomatic relations have been severed.
TREATIES IN FORCE
Let me turn to the 60 treaties and executive agreements p)reseitly in force between the United States and the Republic of China. Of particular importance are: The Mutual Defense Treaty: the Treaty of Friendship, Commerce and Navigation; and agreements concern ing air transport, safeguards for nuclear materials, textile quotas, taxation,.and investments.
It should be noted that all treaties still having operational effet are limited by their terms, subsequent amendments, or clear implication to apply only to the territory actually controlled by the Taiwan aut horities.
AV-hat are the legal effects of withdrawal of recognition on these treaties and agreements? Two views have been proposed, both of which Severely limit our possible policy options by terminating the defense treaty. The first argues that all agreements would automatically lapse, since one of the signatories, the Republic of China. would no longer legally "exist." This would greatly disrupt our economic and other relations with Taiwan, and also would terminate many obligations which we would wish to preserve, such as the ones Taiwan has undertaken concerning safeguards for nuclear materials.
A second view is that treaties of a "political" nature, such as the defense treaty, would be terminated by the political act of withdrawing recognition, but other treaties of a technical or nontechnical nature could continue. This distinction is artificial. The hard-to-draw line between political and nonpolitical matters is, in the end, a fairly arbitrary one.
I would like to present a third view, which I believe to be analyticallv more sound and politically more helpful. As stated earlier,. all operative treaties are limited to the territory actually controlled by the Taiwan authorities. International law does not require that prior treaties entered into with a once-recognized government, the terms of which are limited to the territory actually controlled by that government, must automatically lapse after that government loses de jure recognition while still exerting de factor control. Neither, however, does international law require that such obligations continue. Hence, the choice of what to do with the defense treaty is a political, more than legal, matter.
I would like to turn now to policy implications of the legal analysis. I have stressed two points concerning the withdrawal of recognition from Taiwan:
One. It need not disrupt our economic and other relations; and,
Two. It need not, as a matter of law, automatically terminate the defense treaty. Our policy options, therefore, are quite broad.
In examining policy options, it should be noted that despite its harsh rhetoric, China's conditions for normalization are not nonnegotiable. China has been unyielding on what it considers to be basic principles, but flexible on the means of implementation. Thus, Peking firmly maintains that it is the sole legitimate Government of China, which includes Taiwan. But the means, terms, and time frame for
actual reunification are not fixed. Vice Premier Teng Hsiao-ping's recAent reported statement, that China would take into consideration the special conditions prevailing on Taiwan is another indication that there is room for negotiations.
I believe the United States can anid should immediately recognize Peking as the Government of China. It also should confirm the principles of the Shanghai Communique by reiterating that the United States does "not challenge" the position that "all Chinese on either side of the Taiwan Strait maintain there is but one China, and that Taiwan is part of China," and by withdrawing its remaining military personnel from Taiwan.
The United States should welcome direct Peking-Taipei discussions to resolve in a peaceful manner the issues that divide them. The process may take some time. 'While waiting a final resolution, the United States should maintain direct, though lower than embassy level, relations with Taiwan. Economic ties would continue as before; the legislation proposed above would accomplish this.
The defense treaty, an item not mentioned in the Shanghai Communique, should remain in force, unless an acceptable substitute is found. As discussed earlier, international law does not require that the treaty lapse. The United States should actively seek a substitute for the treaty. During negotiations, the United States might commit itself to an eventual termination of the defense treaty-an acceptance on one level of the principle of noninterference. The time and manner of termination and the possible alternative U.S. actions to insure security, however, must be negotiated.
This proposal is designed to accomplish several objectives. Recognizing Peking as the Government of China would break the present impasse. The proposal would protect the vital interests while taking into account the constraints on each party. Peking would obtain a formal acknowledgement of the one-China Irinciple, but would have to accept Taiwan's continued separate existence, at least ad interim.
The thrust of this proposal, I believe, would be considered a positive step by Peking. In some recent discussions, Chinese officials called the proposal "useful" and "interesting." Their main concern was whether the United States could cope with the proposal's long time frame and inherent ambiguities.
Meanwhile. Taiwan would retain its present military and economic security, but must confront the rejection of its claim to be the Government of all China. If it wishes to continue this fiction, then it would have ample notice that it mnst face the consequences alone. If it wishes to make a transition to some other status, then it must begin the process.
Iii tle united States, there have been numerous indications of strong p political opposition to abrogating the defense treaty without finding a substitute. At the least, a lengthier national debate appears necessary before a decision can be made. One unfortunate effect of any delay is that the lack of progress may be regarded as a setback or a further obstacle in ITnited States-China relations. This proposal ad-
vances the normalization process a critical step forward, but in a manner acceptable to a broad spectrum of Amnerican political opinions.
In addition, this proposal substantially reduces the existing anoinolies, by eliminating the fiction that Taiwan is the Government of all China, and by showing that normalization of relations with China~ is not tantamount to "ab~andoniing Taiwan. With the clearing a wty of the confusing secondary issues, national attention is clearly focuLsed( on the central question: What will the future American security relations be in Asia? In this regard, it should be noted that the adoption of this proposal does not preclude subsequently following any of the formula for relations with China and Taiwan suggested b~y other anal 'ysts.
The proposal may be an insufficient basis for the immediate establishment of full diplomatic relations-since the, defense treaty might remain in force. Instead, it establishes the foundation for negotiating a mutually satisfactorily and lasting relationship between the United States and China.
Thank you. fr vr
Mrs. MEYNER. Thank you very much, Mr. Li, fra veycomprehensive and interesting statement.
[Mr. Li's prepared statement follows:]
PREPARED STATEMENT OF VICTOR HI. Li, SHELTON PROFESSOR OF INTERNATIONAL LEGAL STUDIES, STA-NFORD UNIVERSITY
LEGAL ISSUES IN UNITED STATES-CHINA RELATIONS
The issue for the United States no longer is whether we should normalize relations with the People's Republic of China. We have passed that point. The Issue is how.
A major obstacle in this effort has been a fear that normalization would severely disrupt our relations with Taiwan and endanger our security interests. This concern may be mistaken, but it nevertheless has been repeatedly expressed by American political leaders and in public opinion polls. I believe-( that the following legal analysis suggests a policy option which has not yet been considered: the United States can recognize the People's Republic of China, and thereby take a major step forward toward normalization, while at the same time maintaining economic and security ties with Taiwan.
I stress at the outset that normalization-in the broader sense of establishIng effective and cooperative relations-is a process requiring much time, rather than a single act of creation. Situations like Taiwan, formed over a half a century, cannot and should not be resolved in a single stroke. I believe the PRC agrees with this position. It would be wonderful to find at this time a complete solution to the entire China problem. Short of that, we should take steps that confirm points of agreement and reduce areas of disagreement. This is not moving by half-measures; this is the way to advance the normalization process.
The legal issQues in United States-China relations are confusing. though not necessarily difficult. I would like to focus on one important aspect: the effects on Taiwan if recognition is withdrawn.
Part of the problem is that we are dealing with an essentially unprecedented situation where rules of law provide only limited guidance. This case involves not the refusal to extend recognition to a new government. but rather the withdrawal of recognition from a government that will continue to exercise effective control over its territory. Moreover, in the past. recognition ivas. deil or diplomatic relations severed because a foreign government w,-s regarde-d as unfriendly. Taiwan will be the first instance of an unrecognized by friendly regime.
Another source of confusion concerns terminology. "Normalization*' i., often a shorthand way of saying the establishment of diplomatic relations. At times. how-
ever. it refers to a general state of friendly relations that is not measured )y the mire exchange of ambassadors. Secondly, while recognition and establishment of diplhimntic relations often occur simultaneously, the two are separate concepts involving separate legal acts. A government can recognize but has no diplomatic relations with another. Finally, depending on whether one uses the traditional international law approach or the American practice regarding recognition, the tn- i -de facto" has different meanings. In this paper "de facto" refers to authorities who effectively control a population and territory and carry out the usual funiiie ns of government, but who are not extended de jure recognition for reasons of policy.
I. Present American legislation
What ar0 the legal consequences for economic and other relations between the United States and Taiwan if the United States withdraws de jure recognition, altlugh the Taiwan authorities continue to maintain de facto control of its territory anid population? Moreover, if the United States wishes to continue some or all of o-ur present dealings with Taiwan, what changes in the existing law would be
'1There are very few provisions in American legislation which specify that de jure g-overnments and de facto authorities should be treated differently. Officials of rite former are exempted from having to register as foreign propaganda agents.' Trans-fers of property by the Federal Reserve Bank from the account of a de jure recognized country to a duly qualified representative of that country is conclusively presumed to be legal.2 Official representatives of de facto recognized entities coming to the Uni-ted States receive a different class of visas, and special provision may have to be made regarding diplomatic immunity.3
Tersi such as "foreign country" or "foreign government" usually apply to both de .-ure and de facto recognized entities.4 An examination of Congressional enactmnnst leads to three conclusions. First, Congress regards governments firmly in control but not recognized de jure as having a definite existence and a certain degree of legitimate authority. Second, Congress contemplates and permits dealing with such entities. Third, for most purposes, the legislative approach has been to treat de jure and de facto recognized entities similarly, unless there is specific pro vision to the contrary.
Fi'r example, in assigning higher rates of customs duties to products of "Communtist countries." the statute refers to "China (any part of which may be under Conmmunist domination or control)" --obviously contemplating trade with the PR(, although at a higher tariff. Other statutes do not refer to the PRO specifirally. lbuit are now being applied to the PRC, such as providing funds for cultural exchanges In addition, the Foreign Claims Settlement Commission is authorized to haindlle claims of American nationals included in claims settlement agreements signed after 1954 between the United States and a "foreign government." If an agreement is concluded concerning claims arising out of American properties expropriated in China and Chinese assets frozen in the United States, it is highly likely that the Conmmission will administer this agreement, whether or not the PRI is recognized de jure by the United States.
The subject matter of some statutes clearly indicates that they should be applied as broadly as possible, including to entities not recognized de jure. For example, there should be control over the transfer of dangerous substances such as plant pests or narcotics whatever their foreign origin or destination." The
O .S.C. 952. 22 U.S.C. A13. Private citizens of recognized and unrecognized countries are tro--ted alike. 22 U.S.C. 611. See also 49 U.S.C. 781 (similar treatment for recognized arol i, re-ogni.zed countries for purposes of seizing contraband).
12 USC. C 6:V2.
71 Strat. 642, 643: U.S.C. 1101(a) (15) (A). (G). Special legislation was needed to extrd diplomatic immunity to members of the PRC Liaison Office, 22 U.S.C. 28(i).
For a detailed discussion of the confusing use of terms in this area, see Victor H. TI1, be-recognizina Taiwan: The Legal Problems (Washington. D.C. and New York: Carnegie Endowment for International Peace, 1977), pp. 12-14. My testimony is based in part on this study.
1 T'S.C. 1202(e).
22 I'.S1.. 2452. See also 22 U.S.C. 2666 (providing guards for visiting dignitaries) : 47 IT..S'. .805(d) (granting permniss'on to the "embassy or legation" of a foreign government to --,ratf a low-Tower radio station).
-22 U S. 1621(u).
7 U.',.C. 150: 21 U.SC. 955. Other examples are: pesticides, 7 U.S.C. 136(o) (a) : uninsq ect.*d nursery stock. 7 U.S.C. 154.
United States should be protected against certain harmful actions taken ahrhad, such as trademark infringement or nationalization of American property wit lout compensation,' whether or not they occur in de jure recognized countries, Similarly, statutes which produce beneficial results for the United States ,,r facilitate the operation of American activities abroad should he interpreted to apply to both de jure and de facto recognized entities."
A. Problems to be resolved
Several problems do arise in dealing with de facto recognized entities. Some Congressional enactments call for a degree of acknowledgement by the United States of the authority and competence of the foreign government, and consquently may conflict with an Executive policy not to extend de jure recognition. Many of these laws concern minor routine matters, often involving private rights, such as authorizations to accept a foreign governmental agency's certification of tonnage measurement of vessels.12 Similarly, some laws requiring reciprocal treatment by a foreign government also concern routine matters, such as protection of plant varieties 13 or commercial privileges for ships.' This group of stat utes does not appear to have any substantial political implications that would be affected by the lack of de jure recognition.
Some statutes affecting American governmental activities, however, have greater political significance and imply a broader acceptance of the legitiniacy of a foreign government. Several laws authorize the United States government or various government-related agencies to enter into agreements with foreign governments and persons on major matters such as textile quotas,& commercial communications satellite links,6 and supply of nuclear materials.17 Other laws having significant political import include the registration of prospectuses and securities issued by a foreign government,8 acceptance of letters rogatory and requests for assistance from foreign courts,9 serving process in a foreign country, and training foreign military personnel.:' In addition, some statutes requiring reciprocal treatment also have important political implications. These include granting privileges to non-diplomatic or consular representatives of a foreign government or to foreign officials in transit22 and providing routine port and airport services for foreign military vessels.'
9 15 U.S.C. 1124.
10 7 U.S.C. 1158(c). Other examples are 15 U.S.C. 72 (dumping) : 22 U.S.C. 1978 (violation of various fishing rules) ; 19 U.S.C. 1338 (discriminatory duties, fees, and other commercial regulations) ; 46 U.S.C. 141 (discriminatory treatment of American shipping).
"For example, issuance of subpoenas to persons in foreign countries, 28 U.S.C. 1753; setting of sugar import quotas, 7 U.S.C. 1116 restrictions on export of tobacco seed, 7 U.S.C. 516: establishing methods for calculating cost of production for foreign goods, 19 U.S.C. 1336(e) (2) ; establishing rules for refunding of taxes for export goods, 7 U.S.C. 617 ; compensation for employees injured in American military bases in foreign country es, 42 U.S.C. 1651. In addition, some statutes deal with matters fairly universal in nature such as smuggling. 19 U.S.C. 1703, 1704; counterfeiting, 49 U.S.C. 781(b) (3) ; and relief for the needy. 7 U.S.C. 1330, 1340.
1246 U.S.C. 81. Other examples are: 21 U.S.C. 143 (certificate of milk Inspection) ; 7 U.S.C. V561 (certificate of seed control) ; 12 U.S.C. 358 and 31 U.S.C. 473 (authorizing the Federal Reserve Bank and the Treasury to set up depositories abroad).
Is7 U.S.C. 2403.
1446 U.S.C. 142. Other examples are: 46 U.S.C. 362 (certificate of ship inspection); 17 U.S.C. 1(e), 9(b) and 35 U.S.C. 119 (extension of patent and copyright protection) 16 U.S.C. 1052(b) (5) (use of the National Aquarium).
'7 U.S.C. 1854.
10 47 U.S.C. 721.
1742 U.S.C. 2074(a). Other examples are: 42 U.S.C. 1862, 1870 (setting up scintific exchanges) ; 7 U.S.C. 57(a) (system of cotton classification) ; 19 U.S.C. 1351(a) (1) (A) (promote trade).
18 15 U.S.C. 77 (g). (j).
19 28 U.S.C. 1781, 1782.
2 Rule 4 (1), Federal Rules of Civil Procedure.
21 10 U.S.C. 7046. Other examples are: 46 U.S.C. 764 (allowing suit In admiralty In United States courts on rights of action granted by the laws of a foreign state for a wrongful death on the high seas) ; Rule 6, Rules of the Supreme Court (allowing attorneys "qualified to practice in the courts of any foreign state" to be specially admitted to the har In the United States) ; 10 U.S.C. 4681 (authorization to sell war surplus materials abroad) 10 U.S.C. 2675 (authorization to lease military bases from foreign governments).
2 8 U.S.C. 1101(a) (15) (A), 1182(d) (8).
23 10 U.S.C. 7227. Other examples are: 8 U.S.C. 1201(c) (determining the length of time for which non-immigrant visas remain valid) ; 47 U.S.C. 305(d) (allowing foreign embassies and legations to operate radio stations) ; 46 U.S.C. 785 (permitting aliens to sue In admiralty) ; 28 U.S.C. 2502 (permitting aliens to sue the United States in certain cases) ; 25 U.S.C. 883 (establishing a system for excluding from gross income certain foreign earnIng of aircrafts and ships).
If the above group of statutes is applied equally to all countries, it may be that the extent of dealings with and acknowledgement of the authority of a de facto recognized entity would contravene the Executive policy not to extend de jure recognition. Consequently, some or all of these statutes might be interpreted to apply more restrictively to de facto recognized entities. Be that as it may, these statutes need not be impediments to full United States-Taiwan relations. That is, if the Executive policy is to withhold de jure recognition but still maintain extensive dealings with Taiwan, nothing in these statutes prevents their being fully applied to Taiwan.
A second problem is that a number of important statutory schemes involving economic and military aid apply only to "friendly countries." These programs include military sales and assistance,2' the Overseas Private Investment Corporation,' sale of American agricultural surplus on credit terms or for foreign currency by the Commodity Credit Corporation," loans to small farmers of predominantly rural countries, and expenditures of funds received pursuant to rle Agricultural Trade Development and Assistance Act of 1954." Interestingly, nowhere in these statutes is the term "friendly" defined, but withdrawal of recognition might be interpreted as a loss of friendliness.
A third problem is that several statutes impose sanctions upon countries with which the United States has severed diplomatic relations. The Foreign Assistance Act. which affects both economic and military aid, includes the blanket prolvisiolns in section 2370(t)."
"No assistance shall be furnished under this chapter or any other Act, and no sales shall 1e made under the Agricultural Trade Development Act of 1954, in or to any country which has severed or hereafter severs diplomatic relations with the United States or with which the United States has severed or hereafter severs diplomatic relations." [Emphasis added]
Finally, some statutes place restrictions on dealings with "Communist countrie." If Taiwan is considered part of a "Communist country" after withdrawal of recognition, then the Export-Import Bank," the generalized system of preferences."' and tariff rates,' among the other things, might be affected.
These four problems are not difficult to resolve. On the conceptual level, the lack of de jure recognition need not indicate a state of unfriendly relations. As discunsed earlier, Taiwan presents a novel situation; after withdrawal of de jure recognition, it still may be treated as a "friendly de facto entity."
More practically, after withdrawal of recognition all domestic legal obstacles to maintaining existing economic, cultural, and other ties with Taiwan can be removed by legislation such as the following:
"The United States recognizes the People's Republic of China as the government of China, but that government does not presently exercise administrative control over Taiwan. The Taiwan authorities have effective control over the territory and population of Taiwan.
"It is the policy of the United States to continue friendly ties with Taiwan. SIf there were particular relations (for example, military assistance) that Congress wishes to curtail, another clause might be added: 'except for (the designated relations).' ] For purposes of interpreting domestic American legislation, any reduction of official American representation in Taiwan shall not be regarded as severing diplomatic relations."
Le gislative history would make clear that this enactment affirms the Taiwan authorities' de facto control and "friendly" status, and removes possible restrictions on dealings with "Communist countries" or countries with whom diplomatic relations have been severed.
24 22 .S.('. 2311, 2751.
:' 22 V.S.C. 2191.
:4 7 U.S.,. 1701. Up until the mnid-1960s. Talwan had received considerable economic aid under this and related programs. Such aid has since ceased. '722 .S.C. 2175.
2 22 V.SC 1922. Other examples are: 22 U.S.C. 2102 (health research and training); 22 1S.(C. 2219 (family planning) : 50 U.S.C. App. 1878(e) (loan of military vessels); 10 U.S.C. 7227. 31 U.S.C. 521)(J) (routine disbursement of funds and services to military forces of a friendly country) ; 39 U.S.C. 407 (postal agreements).
:o See also 7 I'.S.'. 1703:1(j) (sale of agricultural surplus) : 16 U.S.C. 1052(b) (45) (encourage use of the National Aquiarium by nationals of states with which the United States maintains diplomatic relations).
S12 U.S.C. 635(h) (2).
19 UO 44', 246*2
11 U.S C 1202(e). See also the Foreign Assistance Act, 22 U.S.C. 2370(h), (f) (for liurposes of see. if. the PRW Is specifically' listed as a "Communist country") ; 7 U.S.C. 1703 (d purchase of surplus agricultural products).
It should be noted that severance of diplomaeaion prnsapriularly difficult problem because of the PRC's explicit demand for severance coupled with the clear statutory language regirding the consequences of severance. One solution is to not publicly characterize any reduction in the level of diplomatic dealings with Taiwan as a "'severance of diplomatic relIations." If this proves impossible for political reasons, then the somewhat awkward legislation suggested above would be necessary. In this regard, the use of the ";Japanese formula" (in the narrow sense of having no direct intergovernmental ties, but instead handling intergovernment relations through an ostensibly priv-ate corporation) is likely to be interpreted as severing diplomatic relations. S ince no officers of the United States acting in their official capacities would lbe carrying out diplomatic functions. Moreover, if all diplomatic and consular personnel are withdrawn from Taiwan, amending legislation will be necessary to enable some designated persons to act as notaries and take testimony of witnesses or authenticate documents abroad,' as well as to facilitate the temporary detachment of foreign service officers and other persons to the "private" corporation handling United States government affairs in Taiwan.
Many of the problems in dealing with de facto entities in the past have involved immigration law. Special legislation may be necessary after withdrawal of recognition from Taiwan to deal with the following difficulties.
8 U.S.C. 1152 provides that the number of immigrant visas and conditional entries made available "to natives of any single foreign state" shall not exceed 20,000 a year. "Each independent country, self-governing dominion, mandated territory, and territory under the international trusteeship system of the United Nations * shall be treated as a separate foreign state * when approved by the Secreary of State. All other inhabited lands shall lie attributed to a foreign state specified by the Secretary of State." If an area is found to be a "colony or other component or dependent area" of a foreign state, the quota for that area is 301 of the quota for the foreign state or 600. The Secretary of State appears to have the authority to take "appropriate action" in adjusting quotas if the territorial limits of a foreign state change."
At present, the "China" quota encompasses both Taiwan and the mainland. That- is, an immigrant is counted against this quota if he is born on Taiwan or the mainland.
The law as presently written presents some difficulties after the withdrawal of recognition from Taiwan. There is little room for ambiguities, since all "inhabited lands" are foreign states or are attributed to foreign states. Obviously the PRC would be very unhappy with a designation by the Secretary of State, even for purely internal purposes, that Taiwan is an "independent country or self-governing dominion." This designation also would double the Chinese quota to 40,000. Treating Taiwan and the PRO as a single state so that, in a manner similar to the present arrangement, both can share in the "China" quota may affect the interpretation of other statutes that refer to "Communist countries" or areas "controlled by a Communist government." Moreover, if Taiwan is treated as a "colony of other component or dependent area" of the PRC, then the limit of 600 immigrant visas would apply.
8 U.S.C. 1253(a) establishes rules for deporting aliens to another "country." In order to reduce the number of "undeportables," courts have interpreted "country" very broadly. "Any place possessing a government with authority to accept an alien deported from the United States can qualify as a 'country' under the statute." Chan Uhuen v. Esperdy 285 F. 2d 353, 354 (2d Cir. 1960) (holding that Hong Kong, a colony, is a "country"). Also found to be "countries" were Taiwan, a place whose legal status was "undetermined," Rogers8 V. Oieng Fit A'heng, 280 F. 2d 663 (D.C. Cir. 1960), and the PRC, a country not recognized de jure. Horn Sin v. Esperdy, 209 F. Supp. 3 (S.D.N.Y. 1962).
A procedural problem arises if the designated country has no direct governmental relations with the United States. In such a case, the Attorney General is sometimes unable to inquire whether that country would accept the alien. Wong v. Esperdy, 197 F. Supp. 914 (S.D.N.Y. 1961). Moreover, for deportation purposes, some courts have refused to treat a Chinese alien as "a subject national, or citizen" of the PRO. Ng Kam Fook v. Esperdy, 320 F. 2d 86 (2d Cir. 1963):
S17 U.S.C. 29; 18 U.S.C. 8492, 3493; :22 U.S.C. 1203.
a65 U. S. Code Congressional and Administrative News 3228 ; 8 U. S.C. 1152 (d).
Lee Wei Fang v. Kennedy, 317 F. 2d 180 (D.C. Cir. 1963), cert. den. 375 U.S.-833 (at least where actual allegiance to the PRC was not shown). The reasoning appears to be that the concept of "subject national, or citizen" must involve allegiance to a legitimate national authority; to imply such a status for the PRO would contravenue the Executive policy to withhold de jure recognition. Thus, the inability to deport aliens to countries not recognized de jure may be due not only to the lack of channels of communication but also to an unwillingness to deal with the unrecognized foreign authorities. In Cheng v. INS, 521 F. 2d 1351, 1353 (3d Cir. 1975), which was decided after the establishment of the Liaison Officers in Peking and Washington, a person born on the China mainland was held not to be a citizen of the PRC. The court quoted a Department of State response to a judicial inquiry :
"Normally, the United States does not deport aliens to countries with whose governments we do not have diplomatic relations. At the present time, with respect to persons who come from mainland China and claim to be citizens of People's Republic of China and not the Republic of China, we believe there isno appropriate government with which we have relations for the purpose of directing a request pursuant to section 1253A."
After withdrawal of recognition, there would be no problem of communications with the Taiwan authorities, even under the "Japanese formula." A problem would arise according to the reasoning of Cheng v. INS, however, if Taiwan is not considered a "country" for deportation purposes because it is not recognized de jure.
8 U.S.C. 1253(h) permits the Attorney General to withhold deportation at his discretion for reasons of foreign policy or "to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion." Fear of persecution in one part of the country is not sufficient if the alien would be safe in another part; e.g., Lavdas v. Holland, 235 F. 2d 955 (3d Cir. 1956) (one island in Greece). If Taiwan is treated as a part of China, it may be that a person would have to be persecuted in both places before this exception applies.
8 U.S.C. 1153(a) (7) permits the admission on parole of certain refugees on an emergency basis pending regularization of their status. Under this program, an alien must make application in a non-Communist "country," and satisfy an American immigration officer that the alien has fled from a Communist area because of persecution; in addition, the alien cannot he a "national of the country" where the application is being made. If Taiwan is treated as a part of China, then it appears that a person fleeing persecution by the PRO cannot apply for parole from Taiwan.
A number of Taiwan businessmen now enter the United States under 8 U.S.C. 1101(a) (15) (e) as traders or investors operating pursuant to the Treaty of Friendship, Commerce, and Navigation between the United States and the ROC. If this treaty lapses upon withdrawal of recognition, then no other persons can enter via this channel, and treaty traders and investors presently in the United States may have to return to Taiwan.
II. E.risting treaties and executive agreemnients
Treatie in Force (1977) lists sixty treaties and executive agreements between the United States and the PRepublic of China. While all are technically in force. many in fact have little or no operational consequences. Several treaties concern political relations between the two countries during the earlier part of the century. Others deal with economic and military relations during and after World War II. There are also agreements concerning transfers of naval vessels
Tranty lool ing to the advancement of the cause of general peace (1915). Treaty series
(T) 619. 6o9A : Treaty of arbitration (1932), TS 857; Treaty for the relinquishment of extrterritorial rights in China (1943). TS 984.
"- Afrejmnlnt concerning the United States relief assistance to the Chinese people (1947). T 'atr an(d Other International Agreements 'eiees (TTAS) 1674; Agreement relating to Putv free entry of relief goods (1948). TIAS 2749. 3151. Agreement relating to claims rulline from netivities of United States military forces in China (1948), TIAS 1776; Agreement renting to the presence of the United States armed forces in China (1947), 'IT 1715: Agreement relating to the furnishing of certain materials to China for the (,fe11. of 'Catwan ( 11l1 1. TIAS 2293: Agrreement relating to assurances required l-y the Yt'al Scurity Act of 1951 (1951). TIAS 2604. Preliminary agreement regarding prineiplw wi'lled to mnutuiil al in tlle prosecution of the war against aggression (19412). 56 st 1.4t : .e1minent under Section 3(c) of Lend-Lease Act (1946). TIAS 1746; Agreeot o.. o b 0l. r)"to. or i of lnrd-lease supplies in inventory or procurement in the United
94 6b TIAM 1533.. ..
to Taiwan,m and construction of defense facilities.' Other agreements deal it h matters that are in the process of being phased out, including the status of forces agreement and MAAG.* There are a number of expired agricultural common 1-i(,s agreements.'
Another group of agreements concerns routine or relatively routine matters such as postal service, free entry privileges for personal articles of consul:ar officers, length of validity and fees for non-immigrant visas, and cataloguing."' Still others deal with various kinds of scientific and educational cooperation.' 2
This leaves only a small number of treaties and agreements that are still ojper.ational and concern relatively important matters. The Mutual ]Defense Treaty provides:
"Each Party recognizes that an armed attack in the West Pacific Area directed against the territories of either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes." ,3
VFor purposes of this treaty, "territories" of the ROC are defined as the islands of Taiwan and the Pescadores.
The Treaty of Friendship, Commerce, and Navigation (PON) established the framework for political and commercial relations between the two parties, and is the basis for a broad range of private rights of nationals of each party. This Treaty was signed in 1946, but an exchange of notes in 1950 limited its operation to the territory actually under the control of the Taiwan government.4 Similarly, the air transport agreement signed in 1946 established routes between the China mainland and the United States. The agreement was later amended to suspend the operation of these routes and to establish new routes to and from Taiwan.'
42 U.'S.C. 2153 requires that an agreement for cooperation concerning civil uses of atomic energy be signed before nuclear materials may be transferred to another government. In a 1972 agreement, Taiwan guarantees not to use such materials for military purposes and not to transfer any material or restricted technical data to unauthorized persons or "beyond the jurisdiction of the government of the ROC." The agreement is in force for thirty years, with no provision for earlier denunciation.
'Two short-term agreements set up "voluntary" textile quotas for Taiwan exports to the United States.'7 These are part of the Arrangement Regarding International Trade and Textiles concluded in Geneva on December 20, 1973. Although not a party to the Arrangement, Taiwan has agreed to abide by its provisions,
IFinally, there is an agreement for relief from double taxation on earnings from operation of ships and aircraft, an OPIC-related agreement on guarantees
37 TIAS 2979 (and amendments); TTAS 4180 (and amendments); TIAS 4274; TIAS 4676: TIAS 4828 ; TIAS 6283: TIAS 6623.
38 Agreements were signed to construct defense facilities. TIAS 3713; a scatter wave radio facility, TIAS 5175; a communications facility, TIAS 5176; and a scatter wave control facility, TIAS 5177.
v TIAS 5986; TTAS 2712. See also TIAS 3571 (and amendments) and TIAS 4312 (disposal of surplus military material).
40 TIAS 5010, 5151. 5219. 5589, 5717. 5718. 6395 (all with amendments).
41 Agreement for the exchange of international money orders (1957), TIAS 3995; Parcel post convention (1916), 39 Stat. 1665; Agreement for exchange of insured parcel post (1957). TIAS 3941; 6 Bevans 727; TIAS 3539.
42 Agreement on technological advancement in connection with water resources. land utilization and various fields of irrigated agriculture (1972). TIAS 7374; Agreement for financing certain educational and cultural exchange programs (1964), TIAS 5572; Agreement relating to the establishment in Talpel of a United States Navy Medical Research Unit (19..), TIAS 3493; Agreement concerning the status of the American Embassy School of Chinese Language and Area Studies at Taichung and its personnel and of Chinese Embassy personnel studying in the Washington area (1969). TIAS 6759; Agreement relating to cooperation in science and technology (1969), TIAS 6639: Arrangement for the direct exchange of certain information regarding the traffic in narcotic drugs (1947.), 0 Bevans 797.
,a Article V. TIAS 3178.
TIAS 1871. The texts of the notes are unavailable. but the substance iR mentioned in a footnote to the Treaty of Friendship, Commerce, and Navigation In Treaties in Force. For some unexplained reason that may or may not be significant, that footnote has not been included after the 1974 edition.
45TTAS 1609. 6773.
0 TIAS 7364. 7834 ; see also, Agreement providing for a grant for the acqiiton of nuclear research and training equipment and materials (1959). TIAS 4371. There also Is a companion trilateral agreement among the United States, the ROC, and the Interniational Atomic Energy Agency, TIAS 7228.
'9 TIAS 7821, 8033.
for projects in Taiwan proposed by nationals of the United States,'9 and a series of agreements concerning American-owned Taiwan currency accutnulated through earlier assistance programs.'
It should be noted that all treaties still having operational effect are limited by their terms, subsequent amendments, or clear implication to apply only to the territory actually controlled by the Taiwan authorities.
What are the legal effects of withdrawal of recognition on these treaties and agreements? Two views have been proposed, both of which severely limit our possible policy options by terminating the defense treaty. The first argues that all agreements would automatically lapse, since one of the signatories, the Republic of China, would no longer legally "exist." This would greatly disrupt our economic and other relations with Taiwan and also would terminate many obligations which we would wish to preserve, such as those concerning safeguards for nuclear materials.
A second view attempts to draw a distinction between political and nonpolitical or technical treaties. A political treaty, such as the defense treaty, would be nullified by the political act of withdrawing recognition, while other obligations concerning ongoing matters of trade, investments, and cultural relations could cOntinite.
This distinction presents several difficulties. First the hard-to-draw line between political and non-political matters is, in the end, a fairly arbitrary one. Is an agreement to supply Taiwan with nuclear materials for the generation of electricity an economic or a political matter? What about an Export-Import Bank loan to build a plant that produces military-related materials? The principal problem arises not with respect to the defense treaty, but with the FCN treaty which specifies a definite political relationship, hut also creates the basis for many economic and cultural ties. If this treaty lapses because of its political character, then economic and cultural relationships would be severely disrupted. If this treaty does not lapse despite its political character, then as a legal matter why should the defense treaty be treated differently?
I would like to present a third view, which I believe to be analytically more sound and politically more helpful. As stated earlier, all operative treaties are limited to the territory actually controlled by the Taiwan authorities. The legal effect of withdrawing recognition in such circumstances is unclear. At the least, international law does not require that prior treaties entered into with a oncerecognized government, the terms of which are limited to the territory actually controlled by that government, must automatically lapse after the government loses de jure recognition while still exerting de facto control. Neither, however, do s international law require that such obligations continue. Hence, the choice of what to do with the defense treaty is a political, more than a legal, matter.
11!. Policy implications of the legal analysis
I have stressed two points concerning the withdrawal of recognition from Taiwan" (1) it need not disrupt our economic and other relations; and (2) it noed not, as a matter of law. automatically terminate the defense treaty. Our policy options, therefore, are quite broad.
In examining policy options, it should be noted that despite its harsh rhetoric, ("hina's conditions for normalization are not non-negotiable. China has been unyielding on what it considers to be basic principles, but flexible on the means of implementation. Thus, Peking firmly maintains that it is the sole legitimate gov-rnment of China, which includes Taiwan. But the means, terms, and time frame ftor actual reunification are not fixed. Teng Hsiao-ping's recent statement about taking into con.sideration the special conditions prevailing on Taiwan is another authoritative indication that there is flexibility in the Chinese position.
I believe the United States can and should immediately recognize Peking as the government of China. It also should confirm the principles of the Shanghai
"TIAS 2657. 5509.
Economic aid agreement (194-) : TIAS 1837, 1923, 3077, 589 ; Acreement establishing a innt commission on rmral reconstruction in China (1948). TTAS 194R. 1975; Agreement eoneernlng dlispositlon of the New Taiwan dollars generated as a consequence of aid furntised to China (1965). TIAS 57,2. 6451. 6906: Agreement regarding the ownership fnd i.s. of local currency repayments made by China through the Development Loan Fund (1955), TIAS 4162: Agreement relating to the deposit by China of 10% of the value oi
-rint military assistance and excess defense articles furnished by the United States (1972), TIA S 732-5.
M A fiji discussion of this proposal is In Victor H. Li. and John W. Lewis. "Resolving flio China Dilemma: Advancing Normalization, Preserving Security," International Securitf, vol. 2, no. 1, p. 11 (Summer 1977).
Communique thy reiterating that the United States "does not challenge" the po.sition that "all Chinese on either side of the Taiwan Strait maitain there is Ibut oneo China and that Taiwan is part of China" anid b y withidrawving its reimiing military personnel from Taiwan. The United States should wel(onie direct PekingTaipei discussions to resolve in a peaceful manner the issues that divide then). This process may take some time. While awaiting a final resolution, the ITUniit ed States should maintain direct. though lower than embassy level, relations with Taiwan. Economic ties would continue as before ; the legislation proposed Il v would accomplish this.
The defense treaty, an item not mentioned in the Shanghai C'ommiunique, should( r emain in force, unless an acceptable substitute is found. As discussed earlier, international law does not require that the treaty lapse. The United States should actively seek a substitute for the treaty. During negotiations, the U.S. might commit itself to an eventual termination of the defense treaty-an acceptance oil one level of the principle of non-interfeirence. The time and manner of termination and the possible alternative U.S. actions to insure security, however, must be negotiated.
This proposal is designed to accomplish several objectives. Recognizing Peking ais the government of China would break the present impasse. The proposal would protect the vital interests while taking into account the constraints on eac-h party. Peking would obtain a formal acknowledgement of the one-China principle, but would have to accept Taiwan's continued separate existence, at least ad interim.
The thrust of this proposal, I believe, would be considered a positive step) ly Peking. In some recent discussions, Chinese officials called the proposal "useful*' and "interesting." Their main concern was whether the United States could cope with the proposal's long time frame and inherent ambiguities.
Meanwhile, Taiwan would retain its present military and economic security, but most confront the rejection of its claim to be the government of all China. If it wishes to continue this fiction, then it would have amnle notice that it must face the consequences alone. It it wishes to make a transition to some other status, then it must begin the process.
In the United States, there have been numerous indications of strong political opposition to abrogating the defense treaty without :finding a substitute. At the, least, a lengthier national 'debate appears necessary before a decision can be made. One unforunate effect of any delay is that the lack of progress may be regarded as a setback or a further obstacle in United States-China relations. This proposal advances the normalization process a critical step forward, but in manner acceptable to a broad spectrum of American political opinion.
In addition, this proposal substantially reduces the existing anomalies by eliinating the fiction that Taiwan is the government of all China, and by showing that normalization of relations with China is not tantamount to "abandoning" Taiwan. With the clearing away of the confusing secondary issues, national attion is clearly focused on the central question: what will be the future American security relations in Asia? In this regard, it should be noted that the adopting of this proposal does not preclude subsequently following any of the formulae of relations with China and Taiwan suggested by other analysis.
The proposal may be an insufficient basis for the immediate establishment of full diplomatic relations (since the defense treaty might remain in force). Instead. it establishes the foundation for negotiating a mutually satisfactory and lasting relationship betwen the United States and China.
Mrs. MEYNER. Mr. Theroux, I think that we will proceed with you, if youl will, please.
STATEMENT OF EUGENE A. THEROUX, ATTORNEY,
BAKER & McKENZIE
Eugene A. Theroux is a Member of the Bar of the District of Columbia and a partner in the international law firm of Baker & McKenzie, Washington, D.C. He has traveled extensively in Asia and, between 1972 and 1977, made 11 visits to the People's Republic of China. On his first visit to Peking, he served as trade and legal aide to the June-July 1972 Congressional mission of Hale Boggs and Gerald Ford, then Majority and Minority Leaders, respectively, of the U.S. House
of Representatives. Mr. Theroux served 2 years, between 1973 and 1975, as VicePresident of the National Council for U.S.-China Trade. He is the author of a number of publications related to the legal aspects of trade with China, and at Chinese invitation has lectured in Peking on American legal subjects before theChina Council for the Promotion of International Trade and China's Foreign Trade Corporations. Mr. Theroux is a former Special Counsel to the Joint Economic Committee of the Congress.
Mr. TiHEROUx. Thank you, Madam Chairman. It is an honor and pleasure to appear before this committee.
My testimony reflects the personal views of a lawyer in the practice of private international law. I speak only for myself, not for my firm or for any client.
Since 1972, I have made 11 visits, aggregating several months, to the People's Republic of China. I have also visited the Republic of China.
Some of my clients trade with the PRC, some of them trade with the ROC, and some with both. Out of admiration and affection for friends in both places, and because I believe that law and trade can contribute to understanding and friendship, I share this committee's concern about the practical and legal implications of normalization of relations between the United States and the People's Republic of China.
Professor Li has rightly said that the proper question is not whether, but how, the United States and the PRC should achieve normal relations.
Nevertheless, the PRC should understand that the issue is not a simple matter of U.S. acceptance of its three announced conditions for normalization. For normalization to be politically possible in theUnited States, a satisfactory answer must be found to two difficult questions:
First, where is the justification for the United States, in effect, aiding in the transformation of a friendly national ally, to which we aretied by treaty, tradition, and trade, unwillingly into a province of a state whose economic and political systems are alien, offensive, and hostile to our own ?
Second, how, if at all, can or should we help preserve, for the 18 million people on Taiwan, a chance to decide their own future in an atmosphere free from coercion or intimidation?
The question of Taiwan, and its relationship to the mainland of China, must be left to the Chinese themselves. To be sure, we are involved in this question. But I believe this country should confine its negotiations with the PRC to the terms on which an exchange of ambas-sadors can occur between Washington and Peking. In this process, neither side should expect the other to make unreciprocated concessions.
It is undeniable that the PRC Government exercises de facto political authority on the Chinese mainland. It is equally a fact that the ROC and the PRC each hold that the United States cannot maintain com plete di plomatic recognition with one without requiring severance. of relations with the other. In these circumstances, we have retained preexisting diplomatic relations with the ROC while also establishing, to the extent possible, diplomatic relations with the PRC. The result is that the United States and the PRC maintain in each other's country diplomatic missions which are embassies in all but name. The ambiguities of this situation are, to some, intolerable; but whether because of
-or in spite of such circumstances, the interests of all three parties have not be-en badly served since 1972.
The burden is, therefore, upon those who favor change in tlhe status quo to make a convincing case that it is in our national interest to make such a change. In deciding the terms and timing of normalization, we should be guided:
First, by an awareness of our limitations, seen against a century of f~ ustration for all concerned, as a participant in Chinese disputes.
Second, by a recognition that our policy can have a profound effect:
ipon the future of 18 million people, and succeeding generations, on Taiwan; and
IUpon the economic and military balances among other Pacific nations.
Third, we must be guided by a paramount commitment to our natio-nal interest, enlightened by a strong faith in the universality of our own values.
The American people are deeply concerned about the bullying of Soviet dissidents, and mistreatment of South African blacks; we are pledged to the existence of an Israeli state, and President Carter has well expressed the national mood and conviction in calling attention to beleaguered political minorities wherever they may be.
In these circumstances, the United States must not be the handmaiden that delivers up the people on Taiwan, against their wishes, to an authority they may consider abhorrent and inimical to their lives, liberty and property. Any U.S. policy which appeared to put in jeopardy the welfare and aspirations of 18 million people would be abhorrent to the American people.
A. CHINESE PROBLEM
I agree with those in the People's Republic of China who have told me that the Taiwan problem is a Chinese problem. Consequently, I lieve the United States should encourage the two Chinese sides to resolve their differences in direct talks. Wherever they reside, the Chinese are resourceful negotiators. They are fully capable of finding peaceful means to define the relationship that is to exist between the island of Taiwan and the Chinese mainland.
The United States-Republic of China Mutual Defense Treaty should not be an obstacle to progress in these regulations, since the People's Republic of China has indicated its intention to resolve the Taiwan question peacefully. The People's Republic of (hina is not so weak or timid that it cannot conduct effective direct talks even though some form of U.S. diplomatic post is maintained in Taipei.
In the meantime, a way must be found to preserve to the greatest extent possible the economic prosperity and physical security of Taiwan, and its active trade, commerce, and friendly intercourse with the United States.
Independent of Chinese negotiations over Taiwan, the United States should seek all reasonable ways of advancing normal relations with the People's Republic of China. These could include relaxation of controls over certain advanced U.S. exports: settlement of the problem of U.S. claims and frozen Chinese assets; pursuit of an expanded program of
scientific, academic and cultural exchanges; facilitation of trade promotion events and activities; selective U.S. reduction or elimination of tariffs over certain imports from the People's Republic of China; conclusion of agreements respecting air transport, shipping and communication systems, currency and banking accords; scientific and technical cooperation agreements; mutual efforts concerning international law enforcement; agreements for protection of intellectual property such as patents and copyrights; mec hanisms for the resolution of commercial disputes; agreements to safeguard certain rights of private citizens traveling in the two countries; establishment of news bureaus in the two countries, and the like.
Now turning to the practical legal problems. First the United StatesRepublic of China agreements, and the Shanghai communique.
Since it was issued in February 1972, the Shanghai Joint Communique has been invoked time and again by People's Republic of China spokesmen as evidence of a commitment on the part of the United States eventually to recognize the People's Republic of China as the sole Government of China. The communique has likewise since been cited by the Ford and Carter administrations as evidence of our desire and intention to normalize relations.
Though important as a joint statement of view, the Shanghai Communique has no more binding legal character than any press release issued by the Nixon party during that 1972 visit. Moreover, by its terms it does not, as some believe, announce U.S. agreement that there is but one China and that Taiwan is a part of China; the United States merely acknowledges and does not challenge the view that Chinese on either side of the Taiwan Strait hold to this position. This significant fact is often overlooked by those who cite the Shanghai Communique as a U.S. pledge to recognize the People's Republic of China as the sole legitimate government of all of China, including Taiwan.
The call for implementation of the nonbinding Shanghai Communique on terms requiring the United States side to abrogate certain legally bindinrg agreements with the Republic of China is ironic. The Mutual D)efense Treaty and the Treaty of Friendship, Commerce and Navigation between the United States and the Republic of China, for example, are legally binding manifestations of the will of the American people as expressed through ratification by the Senate of the I .lted States.
Equally, the large number of other agreements identified by Professor Li in his testimony amount to an intricate fabric of relationships which the people of this country, through their executive andl legislative departments, have seen fit to establish with the Republic of China over a quarter of a century ori more.
There appears to be no principle of international law that withdrawal by one government of political recognition of another ipso facto terminates or continues prior treaties or agreements between them. Any U.S. agr-eement to extend full diplomatic recognition to the People's Repul)lic of China, fltherefore, would leave existing United StIite:;-Republic of Chlina agreements in an ambiguous legal status.
Congress could resolve virtually all such ambiguities by legislation and, consequently, Congress and the Executive cannot fail to exauitine-in advance and with great care-which and to what extent exist ing agreements with the Republic of China may be explicitly terminated, continued or modified, and what changes in U.S. statutes and regulations may be required.
Let me turn briefly to the issue of human rights. Those who press for unconditional normalization do so on the grounds that reunifieation on People's Republic of China terms is inevitable, that rectification of early U.S. foreign policy mistakes is overdue, that the Republic of China must understand that U.S. economic, political and military support cannot be perpetual; and that the Republic of China's claim to be the sole legitimate government of all of China is wishful thinking.
It may be significant that no advocate of recognition of the People's Republic of China, derecognition of the Republic of China and abrogation of the Mutual Defense Treaty, seems to believe that normalization is likely to enhance the human rights or the standard of living of the residents of Taiwan.
Most people appear to believe, on the contrary, that a curtailment of human rights on Taiwan would result from extension of Peoples Republic of China authority over the island. Our policymakers cannot be unmindful of this, nor of the fact that there may be a majority on Taiwan who would prefer to exist independently of the People's Republic of China.
A word should be said about trade, tariffs and the Jackson amendment. Trade between the United States and the Republic of China in 1976 was about 12 times that of United States-Peoples Republic of China trade. Projections for the current year are similar: About $5 billion in total United States-Republic of China trade against $p"50 million in U.S. trade with the People's Republic of China.
Presently the Republic of China benefits from most-favored-nation tariffs on exports to the United States and on GSP treatment on many goods. Under the Trade Act of 1974, MFN is unavailable to the PRC in the absence of a bilateral trade agreement. The "Jackson amendment" to the Trade Act denies certain trade benefits to countries interfering, inter alia, with the riaht of emigration. Former Secretary Kissinger once told the Senate Finance Committee that this law would "present massive difficulties" if it were to be applied to China. In the event of normalization, can trade concessions be continued to Taiwan and denied to the rest of China?
Earlier this week, according to the New York Times of Tuesday, September 20, 1977, an American citizen was stabbed on Chang An Chieh, Peking's main thoroughfare. This points up not only a need for accords providing consular protection with the People's Republic of China, but also the question of the means and extent of legal redress for injury to person or property available to a U.S. national in the People's Republic of China after normalization.
Mrs. MEYNER. Without objection, you may make subsequent submission for the record in the context of your testimony today.
[The following was subsequently submitted by Mr. Theroux.]
IN FORMATION CONCERNING SECURITY OF FOREIGN BUSINESSMEN AND OFFICIALS IN THE PRC
The question of personal security of foreign businessmen and officials in the Chinese People's Republic is the subject of a most interesting chapter, by Professor Cohen, in the book "Law and Politics in China's Foreign Trade," published this year by the University of Washington Press. This volume, by the way, is edited by Professor Li.
Noting that "in view of China's political relations with the rest of the world, even so basic a problem as the personal security of trade personnel cannot be takn for granted, either in China or abroad," Professor Cohen provides the following review of difficulties encountered by foreigners in China:
Shortly before its demise the "Committee of One Million against the Admission of Red China to the UN" brought to the United States one George Watt, a British employee of the Vickers-Zimmer Company. Watt had been released in mid-1970 after serving a three-year sentence in a Chinese prison following an espionage conviction. Although the committee failed in its efforts to have Watt appear before the Committee on Foreign Relations of the United S'tates Senate, whi'h was holding hearings on China policy, it did manage to publicize his views in tIe American press. Watt's message concerning Sino-American relations was a siimple one: "If any American businessmen contemplate profits out of the appriachling detente." he said, "I will give them a fiat prediction: They will encolnlter disaster and will be lucky to escape without imprisonment of their representatives."
Watt's experience was not an isolated one during the Great Proletarian Cultural Revolution of 1966-69. For his participation in the same case another Vicker-Zimmer employee-a West German named Peter Deckart-was lucky enough to have been deported, rather than sentenced to prison. Other business representatives were reported to have been arrested; these included a Belgian banker and twelve Japanese trade representatives, as well as journalists and ship's officers frov Great Britain and other countries.
In addition to those who were actually imprisoned, some personnel of foreign companies were subjected to other forms of harassment during the Cultural Revolution. For example, three British engineers, whose firm had sent them to Peking to supervise the installation of machinery, were kept under virtual house arrest for a number of weeks while the Chinese threatened to treat them as prisoners or hostage until a Chinese claim against their company was satisfactorily settled. Moreover, refusal to grant exit visas was commonplace. British b king personnel in Shanghai, for example, had by mid-1968 waiting a year to lave China. even though their replacements had already arrived.
Si fringement upon the personal security of foreign businessmen did not originate with the Cultural Revolution, of course. During the early 1950's, while China was participating in the Korean War and conducting a series of campaigns to eliminate counterrevolutionary activity at home, some busine.smen were convictud of espionage. In July 1970 the People's Republic provided a tragic remainder of that era by announcing the suicide a few months earlier of Hugh Redmond. an American who had been a businessman in Shangai until he began serving a life sentence following his conviction in 1951. Not only did the newly e tablished Commiunist government imprison certain foreign businessmen during the early 1950s, but it also denied exit permits to a large number of employees of foreign firms, as part of what the United Kingdom charged was a "deliberate poli y of the Chinese Government to render it impossible for most British and foreign firms to remain in China and to force them to surrender their assets "
IHarassment of foreign businessmen was muted from the mid-1950's until the ('niltural Revolution, but still continued, and refusal to grant exit visas rem:Tiied a principal sanction. An extreme case was that of a Belgian bank official in Shanghai. Frans Van Roosbhroeck, whose bank had transferred $30 million to the I'nited States on behalf of Chinese depositors as the Communists were taking over ('hina in 1M19: from 1952 until his arrest in 1968, Van Roosbroeck was refused permission to leave China. In interviews several other representatives of foreign firms have reported that in the early 1960s the Chinese government made it "ea:r that their freedom to leave the country wvas contingent upon their compainvy's satisfactory compliance with its obligations under Chinese law as ex wounded by the local authorities.
While Professor Cohen states that these are "unpleasant but undeniable f;ts," he rightly emphasizes that the risks of business travel to China are
apparently not perceived severe enough to discourage the "tens of thousandtils" of foreign businessmen and company employees who have visited Chinasic 1949. Over the last six years, hundreds of Americans have visited China, some for extended periods, without untoward incidents. Also, while there are presently no American businessmen held in China against their will, there remAn many who are unsuccessfully pressing the Chinese to grant them an ei r visa. Nevertheless, Professor Cohen's research on this subject amounts o)i a disquie ting reminder that, in his words:
"6* * foreign traders ought to be warned: although the risk of detentionl by the police may be small if they visit China during periods of stability, if etions between their country and China are not hostile, and if they avoid intelligence work, the procedures employed in those cases in which businessmen are detained will be nearly as abhorrent to them as earlier Chinese procedures were to their predecessors.
*'If experience is any guide, the detained person will be kept incommunicado for a period that may range from several weeks to several years. In this period the investigation without adequate food and sleep and without even knowing the charges against him and the bases for them. During this time he will be unable to contact his family, friends, or government, nor will the authorities provide him with any independent source of assistance, such as the services of a local lawyer. Eforts of those on the outside to communicate with him will also be unsuccessful.
"Consular access appears rarely to have been granted for foreign missions at the investigation stage. Indeed, in diplomatic correspondence with India in 1963--64, China insisted that international law imposes no obligation to afford consular access to detained aliens who are suspected of crime until after they have been sentenced; and it refused to permit representatives of the Indian government to visit an Indian national held on a charge of rape until all proceedings in the case, including appeal, had been completed. The PRO did not appear to be embarrassed at all the fact that when India had detained Chinese nationals, the PRC had demanded consular access to them from the very beginning of their detention. This background must be taken into account when evaluating the significance of any agreement that the PRO may make witli foreign governments to allow access to their detained nationals 'in accordance with domestic laws and regulations' or 'in accordance with international law."
Mr. Tirnioux. After derecognition, U.S. travelers will also require information about visas for travel to Taiwan.
Although the People's Republic of China maintains arbitration tribunals for the resolution of disputes in trade and maritime matter's, U.S. claimants have, never succeeded in bringing about a formal arbitration of a dispute with a People's Republic of China trade organization. While agreeable by contract to third country situs for arbitration of commercial disputes, no People's Republic of Ch~ina agency has yet allowed, to 'my knowledge, a foreign claimant to institute an arbitration abroad.
I know of no case, either, where a foreigner has been able to initiate a claim in a Chinese People's Court. Law courts and arbitration tribunals are both available and utilized in the Republic of China when commercial disputes arise with foreigners.
American lawyers and businessmen will want to know whether access to such tribunals on Taiwan will survive normalization, anid to what extent the establishment of full United States-People's lepublic of China relations might give them access to China's dispute settlement agencies.
The People's Republic of China provides for registration of foreign trademarks by applicants of countries with which it has a bilateral trademark agreement. Neither patent nor copyright protection exists in the People's Republic of China, and the People's Republic of China is not a member of either the Paris Convention for the Protection of Industrial Property or the Universal Copyright Convention. The Republic of China permits registration of patents and copyrights-but the status of such registration following normalization could become unclear.
Although the Republic of China, like the People's Republic of China, does not belong to any international copyright convention, domestic legislation there does permit application for copyright protection, and Republic of China law protects against the export of unauthorized reprints of copy-righted material.
U.S. businessmen will wish to be advised, in advance of normalization. about the legal status of agreements they have with private firms in the Republic of China. Questions concerning rights, remedies, currency, exchange rates, insurance terms, the likelihood of performance by the Republic of China party, the status of companies, partnerships, jonmt ventures or other business entities formed in the Republic of China. among other issues, could be substantially affected by normalization.
Americans with property in the Republic of China, with investments in Republic of China institutions, or with deposits in Republic of China banks, or creditors of Republic of China entities, will wish early clarification by their government of the implications of normalization.
U.S. natural or legal persons with interests in Republic of China property in the United States are also entitled to information about the implications of normalization for such interests.
Some T.S. firms seeking to continue business with Taiwan after United States-People's Republic of China normalization could discover that People's Republic of China pressure may be brought to seek to cause them to discontinue certain business with Taiwan. If so, would U.S. boycott laws be available to help American firms resist such pressure, or would the U.S. Government regard this as an internal Chinese matter?
What changes, if any, in U.S. immigration laws should be made upon the cessation of recognition of the Republic of China by the Ignited States? This question goes not only to necessary adjustments in t he Immigration and Nationality Act, but also to preparation for possible political refugees from Taiwan.
Inrecognized governments and their nationals are, in certain circinstances, barred from bringing suit in U.S. courts. After United States-People's Republic of China normalization, but during continued Republic of China administration of Taiwan, would plaintiffs f ',,, Taiwan be barred from IT.S. courts? I.S. exporters would need(l to know whether and to what extent norsmalization may resu lt in changes in the status of Taiwan insofar as 1T.S. export control regulations are concerned.
Ilere are many other issues which I am not going to treat here, but w ich I could submit, for the record(. But in conclusion, I think the
central fact of normalization is that the process requires drastic change in fundamental legal obligations the United States and the Republic of China presently have to each other. How these changes are made will not only affect the fate of Taiw,'111 but will reflect our own attitudes toward the place of law in our foreign relations.
Mr. MEYNER. Thank you, Mr. Theroux, that was excellent testimony.
Mr. Valeo, you are next.
STATEMENT OF HON. FRANCIS VALEO, FORMER SECRETARY OF THE SENATE
(onsultant on governmental and Pacific affairs. Previously Secretary of the U.S. Senate-11 years; Consultant to the Senate Foreign Relations Committee ispecializing in Asian affairs)-6 years; Chief of the Division and Senior Specialist in Foreign Affairs, Congressional Research Service, Library of Congress-6 years: Principal staff adviser to Senate Majority Leader (Mike Mansfield)-15 years; Senior staff consultant on numerous Senate missions abroad. including missions to People's Republic of China (1976, 1974, 1972).
Mr. VALEO. Madam Chairman, I may skip a paragraph or two in the interest of brevity, but I would appreciate it if the entire statement would be printed in the record.
Mrs. MEYNER. All the statements will be printed in the record, as well as any additions. Please feel free to read as much of your statement as you care to.
Mr. VALEO. Madam Chairman, members of the subcommittee, and supporting staff. In these hearings on normalization, your subcommittee is performing an exceptional service. Not only are you opening up for legislative discussion an issue of foreign policy which may well be, in one form or another, before the 95th Congress, but you are also focusing public attention on a matter of great importance to the Nation.
I do not think that I use the word "vital" glibly in expressing the conviction that the prompt removal of the roadblock to the normal evolution of Sino-United States relations is in the vital interest of this Nation.
Because I see the China normalization issue in that fashion, I appreciate deeply your invitation to be a participant in these hearings. Any reticences which I may have had in accepting-I must apologize for them--came solely from the limited time which was available for preparation. I have just returned from Asia.
Fortunately, much of the basic research in the legislative-legal problems of normalization has already been done by Dr. Victor II. Li, another participant on this panel, in a study for the Carnegic Endowirent, entitled "De-recogmizirg Taiwan: The Legal Problems." It is an outstanding piece of work.
As Dr. Li makes very clear, the legal-regulatory structure which underlies our present relationship with China. including and largely because of Taiwan, is one of complexity as well as antiquity. To alter the relationship, to go from Taipei to Peking, so to speak, will compel a great deal of unraveling and reweaving of the present fabric. Therein lies a danger, in my judgment, to a rational and long overdue disposition of the question of full normalization. I think Mr. Theroux's statement underscores the point that I am trying to make there.
Complexity is an invitation to avoidance and evasion. It always seems easier to put off until tomorrow what is too nettlesome to deal with today.
It would be well to bear in mind, however, that the peculiarities of our internal legal structure are of no direct relevance to the issue of normalization as an international problem, nor, indeed, are those peculiarities relevant to the vital interest of the United States in the prompt resolution of the issue. The body of laws, regulations, treaties and agreements which involve China should not become the tail that wags the dog.
If foreign relations is not to be left to the generals, then China policy ought not to be left to the legal and other technicians of the executive and legislative branches, of which I was one for many years. The issue of full normalization belongs, as does any vital issue, firmly in the hands of the elected representatives of the people. It belongs in the hands of the President and the Congress.
Before it is a legal problem, normalization is a political problem. Its origins, a quarter of a century ago, were largely political. So, too, must an acceptable solution be found in politics. When that has been done, it would seem too that the legal and other adjustments, complex as they are, will fall into place.
The nature of the political role in resolving the problem can be delineated. I believe, by defining first what consititutes normalization. As a practical matter, most concepts of normalization involve, at least, the establishment of full diplomatic relations with the People's Republic of China; the formal designation of an Embassy in that nation and the establishment of a formal Embassy of the People's Republic in this nation.
THE JAPANESE FORMULA
Some opinion would have us delay indefinitely normalization in those terms. If we intend to continue to play the waiting game as, indeed, we have done for several years, then, what is being discussed here, today, stays largely academic.
If, on the other hand, we mean to proceed to full normalization in the near future, then the position of the People's Republic on this issue must. be confronted. Peking has insisted on the Japanese formula or some stringent modification thereof in all previous initiations of normal relations. A hundred nations have normalized on that basis.
In truth, the United States, alone of the larger powers, has remained outside the ring. The other nonrecognizers are, for the most part, rather obscure nations insofar as international affairs are concerned. Our isolation in this matter should tell us something about our policy of delay.
The Japanese formula as it would apply in Sino-United States relations consists of three basic principles to which Peking points as providing the basis for normalization. If these principles are acknowledge(], the People's Republic has made very clear full diplomatic relations could then be readily established between Peking and Washington. Normalization, as I have previously described it, and I believe Professor Cohen expressed it in those terms also, will have been achieved between the two countries.
The subcommittee, I respectfully suggest, should note thiat ione of the three principles derived from th *aiie formula, with thle pos ible exception of the last, involves dir-ectly any prior actionl by, the Congress. Under the Constitultion, it is excluisively in the province of the President to determine wh-lether to open, maitain, or terminate relations with any country.
If the President, on his own initiative, were to sever formal ties with the Government of the Republic of China and withdraw all military force from Taiwan, which is point 1 derived from the Japanese formula, the United States-Republic of China Mutual Defense Treaty, which is point 2, would end automatically, unless there were some thought of its rights and duties devolving on the successor government, which is hardly the case.
As for the third point, replacing the Embassy in Taipei with an unofficial transactions office to handle residual U.S. affairs for an indefinite period of time, it would requiire, in one form or another, legislation. However, the failure to provide such an office would injure U.S. interests. It would not be a bar, so far as I can see, to normalization. Fom the Chinese point of view a U.S. transactions office in Taiwan is aworkable accommodation to our needs, also perhaps to their own. Indeed, a similar arrangement with Japan has proved such to be the case.
The designation of an Ambassador Extraordinary and Plenipotentiary to the People's Republic again is a Presidential function. His designee would require confirmation, of course, by the Senate. But when, and in what circumstances the Senate chose to act, I believe would not trouble the Chinese so long as their Ambassador to the United States were received by the President, again, a unilateral Presidential function.
In sum, the legal act of normalization, as I can see it for all practical purposes, is the s'o'le responsibility of thle President under the Constitution. Notwithstanding this constitutional reality, however, it would be my hope that there would be a great deal of interchange between the President and the Congress, and especially with the leadership in the relevant committees, of which this is one.
The Senate, after all, does have an advisory function in the matter. The House will have a very substantial role in the subsequent legislative adjustments which might clothe the act of normalization in mutually beneficial garments.
COOPERATING WITH CONGRESS
Actually, there has already been a great deal of cooperation between the branches on this issue. The effort to open the door to Peking may well have begun in the Congress. While, it was President Nixon who made the first~ historic journey to that capital, he had the full support of the congressional leadership in the undertaking.
On his return, the President's initiative in opening the way to normalization which was achieved through the Shanghai Communique, was commended by formal resolution of the Senate. Subsequently, both President Nixon and President Ford encouraged a series of congressional. visits to the People's Republic.
From the point of view of national unity, then, I would hope that the President would invite the continued bipartisan participation of the Congress in the completion of the process of normalization. In that fashion, there may be a good prospect of preventing the damaging excesses of political division which characterized the "denormalization" of relations more than a quarter of a century ago. The national interest in this issue demands cooperation, not confrontation between the parties and between the branches.
I have an addenda at the end of my testimony, Madam Chairman, in which I set forth a draft resolution that might simplify the problem of reordering the legal structure in the event of normalization.
The complexity of adjusting dozens of laws and regulations to the situation which will follow normalization has something in common with the problem of reorganizing the executive branch. These adjustments, moreover, would have to dovetail with the specific arrangements which would emerge as regards Taiwan, on the basis of the President's negotiations with the Chinese. In the circumstances, it would be wise that great flexibility be permitted the executive branch in making these adjustments.
It occurs to me that Presidential initiative coupled with a provision for legislative veto-as in the case of the Reorganization Act-is the indicated procedural device in this instance.
I have roughed out a joint resolution which, I believe, is the sort of legislation which would provide sufficient authority to the President to make adjustments in this unique situation and sufficient check on the pait of the Congress to insure that these adjustments are a bona fide expression of national resolve:
DRAFT JOINT RESOLUTION
Resolved: I. In any existing provision of law or regulation pursuant thereto, the term Republic of China or variations thereon shall be deemed to apply only to the Territory referred to in article 6 of the Mutual Defense Treaty between the United States and the Republic of China.
Resolved further: II. Notwithstanding any other provision of law, laws and regulations referred to in section I of this resolution shall remain in force for the territory referred to in section I regardless of the state of diplomatic relations between the United States and China unless terminated by Presidential declaration and such declaration may be rendered void by an affirmative recorded vote of the House of Representatives and the Senate of the United States.
Explanation of section I. The draft resolution has the effect of limiting any reference to China in current law solely to Taiwan and the 1es6adores, thus insuring against the automatic extension of such provisions to the mainland as the successor government.
The action involved in section I is entirely domestic and hence requires no afirination or approbation on the part of Peking. They could choose to igre it, denounce it, or what ever.
Sect ion IT. The effect would be to leave in force all laws and regoulat ions which presently apply. as "I practical matter, only to Taiwan and thePescadores, (eien though formal relations with the Republic of
China come to an end. Under this provision, however, the President will have flexibility to render inoperative any such law or r(gulation which may be incompatible with the terms of his understan(l jg with Peking on resumption of full diplomatic relations.
This concludes my statement.
[Mr. Valeo's prepared statement follows :]
PREPARED STATEMENT OF lION. FRANCIS R. VALFO, FORMER SECRETARY OF I:!
LEGISLATIVE AND LEGAL PROBLEMS OF NORMALIZATION
Mr. Chairman, members of the subcommittee, in these hearings on normalization, your subcommittee is performing an exceptional service. Not only are you opening up for legislative discussion, an issue of foreign policy which may well be, in one form or another, before the 95th Congress; you are also focusing public attention on a matter of great importance to the nation. The issue has been more or less in limbo for several years. That is regrettable because in China normalization we are confronted, in my judgment, with a vital issue in which delay and drift ought not to be confused with deliberation and decision.
I do not think I use the word glibly in expressing the conviction that the prompt removal of the roadblock to the normal evolution of Sino-U.S. relations is in the vital interests of this nation.
Because I see the China normalization issue in that fashion, I appreciate deeply your invitation to be a participant in these procedures. Any reticences I may have had in accepting, came solely from the limited time which was available for preparation; I have only recently returned from Asia.
Fortunately, much of the basic research in the legislative--legal problems of normalization has already been done by another participant on this panel. I refer to Dr. Victor H. Li's study for the Carnegie Endowment entitled "De-recognizing Taiwan: The Legal Problems." It is an excellent piece of research which ought to be and, I am sure, will be used again and again by this Committee and many others in the months ahead.
In his study, Dr. Li used computer technology to illuminate the legal problems of normalization. He hit the China button, so to speak, and, what can only be described as an embarrassing jackpot of a half-century of laws, treaties anl executive agreements came tumbling out. Many are long-since forgotten but, nevertheless, there they are in the code. Who would have suspected, for example. that it would be necessary to concern ourselves with the Johnson Act in order to proceed to normalization with China? The Johnson Act for those who do not go back that far was designed in the 1930's to help to keep us from getting involved in foreign wars and Dr. Li's reference to it is the first that has come to my attention since Pearl Harbor.
As Dr. Li's study makes very clear, the legal-regulatory structure which underlies our present relationship with China, including and, largely, because of Taiwan is one of complexity as well as antiquity. To alter the relationship--to go from Taipeh to Peking-will compel a great deal of unraveling and reweaving of the present fabric. Therein lies a danger, in my judgment, to a rational and long overdue disposition of the question of full normalization. Complexity is an invitation to avoidance and evasion. It always seems easier to put off until tomorrow what is too nettlesome to deal with today. It would be well to bear in mind, however, that the peculiarities of our internal legal structure are of no direct relevance to the issue of normalization as an international problem, nor, indeed, are those peculiarities relevant to the vital interests of the United States in the prompt resolution of the issue. The body of laws, regulations, treaties, and agreements which involve China should not become the tail that wags the dog. If foreign relations is not to be left to the generals then China policy ought not to be left to the legal and other technicians of the Executive and Legislative Branches-of which I was one for many years. The issue of full normalization belongs, as does any vital issue, firmly in the hands of the elected representative, s of the people. It belongs in the hands of the President and the Congress.
Before it is a legal problem, normalization is a political problem. Its origins, a quarter-of-a-century ago, were largely political; so, too, must an acceptable solution be found in politics.
When that has been done, it would seem to me that the legal and other adjustments, complex as they are, will fall into place.
The nature of the political role in resolving the problem can be delineated, I believe, by defining first what constitutes normalization. In this respect, there are as many views of normal in this country as there are political psychiatrists. They include on the one hand, leaving the situation as it is and, even closing down the Liaison Offices and going back to the status quo ante the Nixon visit to Peking and. on the other to the complete ignoring of the fact of a Taiwan influenced for 25 years separation from the mainland and deep U.S. involvement.
As a practical matter, however, most concepts of normalization involve, at least, the establishment of full diplomatic relations with the People's Republic of China; the formal designation of an Embassy in that nation and the establishment of a formal Embassy of the People's Republic in this nation.
Some opinion would have us put off indefinitely normalization in those terms, It is held to be in our national interest not to normalize unless Peking accepts a variety of prior conditions. Some would insist, first, on Peking recognizing in a formal sense, the existence of a separate country of Taiwan or at least a separate Chinese government on that island.
If we intend to continue to play the waiting game as, indeed, we have done for several years, then, what is being discussed here, today, is largely academic.
If, on the other hand, we mean to proceed to full normalization in the near future, then the position of the People's Republic on this issue must be confronted. Peking has insisted on the Japanese formula or some stringent modification thereof in all previous initiations of normal relations. A hundred nations have normalized on that basis. In truth the United States, alone of the larger powers has remained outside the ring. The other non-recognizers are, for the most, rather obscure nations insofar as international affairs are concerned. Our isolation in this matter should tell us something.
The Japanese formula consists of three basic principles to which Peking points as providing the basis for normalization:
1. Ending diplomatic relations with the Taiwan government;
2. Terminating the U.S.-Republic of China mutual defense treaty; and
3. Continuance of trade and, perhaps, other types of direct but unofficial relations with Taiwan through a private office on the island, staffed with skilled but unofficial personnel.
If these principles are acknowledged, the People's Republic has made very clear that full diplomatic relations could then be readily established between Peking and Washington. Normalization as I have previously described it, in short, will have been achieved between the two countries.
The subcommittee, I respectfully suggest, should note that none of the three principles set forth, in the Japanese formula, with the possible exception of the last, involves directly any prior action by the Congress. Under the Constitution, it is exclusively in the province of the Presidency to determine whether to open, maintain or terminate relations with any country. If the President, on his own initiative, were to sever formal ties with the Republic of China government point one of the Japan formula), the Mutual Defense Treaty, point 2. would end automatically unless there were some thouzhf of its rights and duties devOlvin- on the successor government which is hardly the case. As for the third prInt of the Japan formula, replacing the Embassy of Taipei with an unofficial transactions-office to handle residual U.R. affairs would require, in one form or another, legislation. However. the failure to provide for such an office would injure V.S. interests. It would not be a bar. so far as I can see. to normalization. From the Chinese point of view a U.S. transactions-office in Taiwan is a workable accommodation to our needs. Indeed, a similar arrangement with Japan Ihas moved such to bo the case.
The designation of an Ambanssador extraordinary and plenipotentiary to the People's Republic again, is a Presidential function. His designee would require confirmation, of course, by the Senate. But when and, in what circumstances, the Senate chose to act. I believe, would not trouble the Chinese so long as their Ambassador to the United States were received by the President, again, a unilateral Presidentiial function.
In sum, the legal nact of normalization, as I see it for all practical purposes, is the sole responsibility of the President. Notwithstanding this Constitutional reality, it would he my hope that there would be a great deal of interchange between the President and the Congress. The Senate, after all, does have an :ivir e-function in the matter. The House will have a very substantial role in
the subsequent legislative adjustments which will clothe the act of normalization in mutually-beneficial garments.
Actually, there has already been a great deal of cooperation between the Branches on this issue. The effort to open the door to Peking may well have begun in the Congress. While it was President Nixon who made the first historic journey to that capital, he had the full supl)ort of the Congressional leadership ini the undertaking. Oil his return, the President's initiative in opening the way to normalization which was achieved through the Shangh ai comm uniq ite, was commended by formal resolution in the Senate. Subsequently, both Presidents Nixon and Ford encouraged a series of Congressional visits to the People's Republic.
From the point of view of national unity then, I would hope that the President would invite the continued bi-partisan participation of the Congress in the completion of the process of normalization. In that fashion, there may be a good prospect of preventing the damaging excesses of political division which characterized the "denormalization" of relations more than a quarter of a century ago. The national interest in this issue demands c(ooperation, not confrontation between the parties and between the Branches.
ADDENDA TO TESTIMONY
The complexity of adjusting dozens of laws and regulations to the situation which will follow normalization has something in common with the problem of reorganizing the Executive Branch. These adjustments, moreover, would have to dovetail with the specific arrangements which would emerge as regards Taiwan, on the basis of the President's negotiations with the Chinese. In the circumstances, it would be wise that great flexibility be permitted the Executive Branch in making these adjustments.
It occurs to me that Presidential initiative coupled with a provision for legisTtilve veto--as in the case of the reorganization act-is the indicated procedural device in this instance. I have roughed out a joint resolution which, I believe, is the sort of legislation which would provide sufficient authority to the President
(() make adjustments in this unique situation and sufficient check on the part of the Congress to insure that these adjustments are a bona fide expression of national resolve.
DRAFT JOINT RESOLUTION ON CHINESE RELATIONS Resolved:
I. In any existing provision of law or regulation pursuant thereto, the term Republic of China or variations thereon shall be deemed to apply only to the territory referred to in Article 6 of the Mutual Defense Treaty between the United States and the Republic of China.
II, Notwithstanding any other provision of law, laws and regulations referred to in Section I of this Resolution shall remain in force for the territory referred to in Section I regardless of the state of diplomatic relations between the United States and China unless terminated by Presidential declaration and such declaration may be rendered void by an affirmative recorded vote of the House of Representatives and the Senate of the United States.
EXPLANATION OF THE DRAFT JOINT RESOLUTION OF CHINESE RELATIONS
'Section I. The draft resolution has the effect of limiting any reference to China in current law solely to Taiwan and the Pescadores, thus insuring against the automatic extension of such provisions to the mainland as the successor government.
'The action involved in Section 5 is entirely domestic and hence requires no affirmation or approbation on the part of Peking. They could choose to ignore it, denounce it or whatever.
Section II. The effect would be to leave in force all laws and regulations which presently apply, as a practical matter, only to Taiwan and the Pescadores even though formal relations with the Republic of China come to an e(l. Unier this provision, however, the President will have flexibility to render inoperative any such law or regulation which may be incompatible with the terms of his understanding with Peking on resumption of full diplomatic relations.
Mrs. MEYNER. Thank you, gentlemen, for a very comprehensive and very interesting, and to some of us rather complicated testimony. Certainly, you have added a great deal.
We might just begin by asking some questions, and anybody who wishes to answer may do so. We welcome any ideas that you may have on them.
Professor Li's recent study on "derecognizing," or "denormalization" of relations with Taiwan, argues that the United States, after normalization with the People's Republic of China, could maintain, if I understand it right, all of its current bilateral treaties with the Republic of China, if it so chooses, with the exception, of course, of the United States-Taiwan Defense Treaty which Peking has demanded be abrogated as a condition of normalization.
If I understand Professor Li correctly, he argues that the United States would merely have to state which treaties it considered still in force. This sounds like a good, if not simple solution to a very complicated set of problems.
Do you other gentlemen agree with Professor Li's analysis?
Mr. COHEN. I think that you mischaracterize his analysis.
Mr. LI. My point is that international law does not prevent the United States from maintaining all treaties with Taiwan, including the defense treaty, if we wanted to follow such a policy.
Mrs. MEYNER. And still have an exchange of ambassadorships?
Mr. Li. No. My proposal meets two of the three conditions, but does not satisfy the third one of abrogating the defense treaty. We then would have to begin discussions with the People's Republic of China concerning the time. means and manner by which our direct military commitments in Taiwan would be altered.
Mr. BEILENSON. Would the gentlelady yield?
Mrs. MEYNER. Yes.
Mr. BEILENSON. This is an extremely complex and difficult problem for us as well as many other people, I am sure. Perhaps we can concentrate first on the Defense Treaty, because that is one of the three conditions that Peking, at this point, has set forth.
How does one abrogate such a treaty, if one wanted to do so?
SMrs. A1EYNER. This is a good question.
Mr. COHiE N. The treaty provides for abrogation with 1 year's notice. But that is not what we are talking about here. What we are talking about here is a rather more unusual situation where the United States would be transferring recognition from the original treaty partner, that represented the State of China at the time the treaty was made, to the successor government.
Mr. BEILENSON. Is it your contention that if we followed No. 1 and No. 2 requirements, that is to grant sole recognition to Peking, tlat the treaty by the terms of the other agreement would become invalid ?
Mr. CoTrTEN. That treaty was made with the State of China at the time we made it, and the representative of China, at the time, was Taipei. If we now assume that the representative of China is no longer Taipei, but it is Peking, the treaty would still be with China, but Pekingr would now be China. It would not then be for Taipei to tell 1us that the treaty exists.