domestic or foreign, military or non-military. Those rights enter into force on the effective date of the treaty. They do not terminate.

The above-described rights are not affected by the second paragraph of the amendment, which provides that the United States has no "right of intervention in the internal affairs of Panama". and which prohibits the United States from acting "against the territorial integrity or political independence of Panama." The Committee notes, first, that these provisions prohibit the United States from doing nothing that it is not already prohibited from doing under the United Nations Charter, which proscribes "the threat or use of force against the territorial integrity or political independence of any state" (article 2(4)). The Committee never supposed that the United States, in entering into the Neutrality Treaty, intended to obtain powers that it had previously renounced. The Committee thus does not believe that the provision in question substantively alters existing United States commitments to Panama.

Second, the prohibitions set forth in the second paragraph do not derogate from the rights conferred in the first. The Joint Statement recognizes that the use of Panamanian territory might be required to defend the Canal. But that use would be for the sole purpose of defending the Canal-it would be purely incidental to the Canal's defense; it would be strictly a means to that end, rather than an end in itself; and it would not be carried out for the purpose of taking Panamanian territory. The concepts of the territorial integrity and political independence of Panama are, in short, an integral part of the treaty, so that action directed at preserving the regime of neutrality set forth in the treaty would never be directed against Panama's territorial integrity or political independence.

For these reasons, use of Panamanian territory to defend the Canal would clearly be permissible under the portion of the Joint Statement incorporated in Article IV. This is made clear in an opinion presented to the Committee by the Department of Justice (hearings, part 1, p. 332):

A legitimate exercise of rights under the Neutrality Treaty by the United States would not, either in intent or in fact, be directed against the territorial integrity or political independence of Panama. No question of detaching territory from the sovereignty or jurisdiction of Panama would arise. Nor would the political independence of Panama be violated by measures calculated to uphold a commitment to the maintenance of the Canal's neutrality which Panama has freely assumed. A use of force in these circumstances would not be directed against the form or character or composition of the Government of Panama or any other aspect of its political independence; it would be solely directed and proportionately crafted to maintain the neutrality of the Canal.

Finally, even if a conflict were somehow to arise between the two paragraphs, because the United States has the right to act against 'any... threat directed against the Canal", there is no question that the first would prevail. The rights conferred therein are stated in absolute terms and must therefore be construed as controlling.

The meaning of the recommended amendment to article VI is equally clear. This provision-extracted verbatim from the Joint

Statement-confers upon United States warships and auxiliary vessels the right to go "to the head of the line" in an "emergency." What constitutes an emergency, and when one exists, is for the United States and the United States alone to determine. The provision could hardly be more explicit.

Like the recommended amendment to article IV, this amendment, if adopted by the Senate, will become an integral part of the treaty, of the same force and effect as all other provisions. The Committee is informed by the Department of State that the Government of the Republic of Panama has concluded that no new plebiscite will be required for the approval of the two amendments. Together, they comprise the verbatim text of the Joint Statement, which was read by General Torrijos to the people of Panama live on national television three days before the October 23 plebiscite. (See p. 478 of part 1 of the hearings for a list of Panamanian newspapers in which the Joint Statement appeared prior to the holding of the plebiscite.) It thus is clear that the Panamanian people were fully apprised of the Joint Statement prior to the plebiscite, and were accorded a full opportunity to consider its provisions before approving the treaties. S. Ex. Rept. 12, 95th Cong., 2d sess. (1978), pp. 6–8.

The Government of Panama agreed to the amendments. See Ch. 7, § 7, this Digest.

The Dept. of Justice opinion, referred to, ante, was set out in a letter from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, to Senator John J. Sparkman, Chairman, Committee on Foreign Relations, Nov. 1, 1977; Panama Canal Treaties, Hearings before the Committee on Foreign Relations, U.S. Senate, 95th Cong., 1st sess., pt. 1 (1977), pp. 329-333; see also the 1977 Digest, pp. 397-398, 584–590.

8 4

Invalidity, Termination, and Suspension of
Operation

Presidential Power To Terminate

On December 15, 1978, the United States and the People's Republic of China issued a joint communique, in Washington and Peking, concerning establishment of normal diplomatic relations as of January 1, 1979. The communique also stated that the United States recognized the Government of the People's Republic of China as the sole legal Government of China. The United States issued a separate statement concerning termination of its diplomatic relations with Taiwan and termination of the Mutual Defense Treaty between the United States and the Republic of China, signed December 2, 1954 (TIAS 3178; 6 UST 433; entered into force March 3, 1955). Article X of the Treaty provided, in its first sentence, that the treaty should remain in force indefinitely. The second sentence provided that either party might terminate it one year after notice had been given to the other party.

For the text of the unilateral U.S. statement, Dec. 15, 1978, and of the Notice of Termination of Treaty, Dec. 23, 1978, as well as of the joint communique, see this Digest, Ch. 2, § 3, pp. 71–73.

The Legal Adviser, Herbert J. Hansell, advised Secretary of State Cyrus R. Vance that President Carter had the authority under the Constitution to give notice of the termination of the treaty, in accordance with article X, without congressional or Senate action. (In a statement to the press, December 16, Mr. Hansell observed that all "existing agreements, commercial, cultural, and others," with the [people of] Taiwan would "continue in effect, except for termination of the [Mutual Defense] Treaty." New York Times, Dec. 18, 1978, city ed., p. 1, col. 1. See, further, President Carter's memorandum, December 30, 1978, "Relations with the People on Taiwan," this Digest, Ch. 2, § 3, pp. 74-75.)

A memorandum from Mr. Hansell to Secretary Vance, December 15, 1978, set forth legal authorities and historical precedents for the President to act upon his sole initiative in giving notice to terminate the Mutual Defense Treaty, in accordance with the notice provision in article X thereof. The text follows:

Subject: President's Power to Give Notice of Termination of U.S.R.O.C. Mutual Defense Treaty

This memorandum confirms my advice to you that the President has the authority under the Constitution to decide whether the United States shall give the notice of termination provided for in article X of the U.S.-R.O.C. Mutual Defense Treaty and to give that notice, without Congressional or Senate action.

While treaty termination may be, and sometimes has been, undertaken by the President following Congressional or Senate action, such action is not legally necessary; and numerous authorities recognize the President's power to terminate treaties acting alone. Presidents have exercised that power on several occasions. The following sections of this memorandum note the views of a number of constitutional and international law authorities, and identify previous Presidential treaty terminations undertaken without action by Congress. An Appendix to this memorandum contains detailed histories of past U.S. treaty terminations.

Views of Constitutional and International Law Authorities

The Restatement of the Foreign Relations Law of the United States, by the American Law Institute, states in § 163:

"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... take the action necessary to accomplish under the rule stated in section 155 the termination of the agreement in accordance with provisions included in it for the purpose... p. 493).*

(at

Section 155 of the Restatement provides that "An international agreement may be... terminated in accordance with provisions included for that purpose in the agreement" (at p. 477). The Restatement comment to Section 163 states "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 II, Section 1 of the Constitution. ... 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.”

Professor Louis Henkin, Hamilton Fish Professor of International Law at Columbia University, states in his book Foreign Affairs and the Constitution (1972) that:

"Once the Senate has consented, the President is free to make (or not to make) the treaty and the Senate has no further authority in respect of it. Attempts by the Senate to withdraw, modify or interpret its consent after a treaty is ratified have no legal weight; nor has the Senate any authoritative voice in interpreting a treaty or in terminating it." (at p. 136.)

Dr. Elbert M. Byrd, Jr., of the University of Maryland, has written in his book Treaties and Executive Agreements in the United States (1960) that:

"... from a constitutional view, it is much easier to terminate treaties than to make them. A treaty, by definition in constitutional law, can come into existence only by positive action by the President and two-thirds of the Senate, but a simple majority of both Houses with the President's approval can terminate them, and they may be terminated by the President alone." (at p. 145.) Professor Laurence H. Tribe, of the Harvard Law School, has written in his recently published American Constitutional Law (1978) as follows:

"Although influenced (often decisively) by congressional action or constitutional restraint, the President... has exclusive responsibility for announcing and implementing military policy, for negotiating, administering, and terminating treaties or executive agreements; for establishing and breaking relations with foreign governments; and generally for applying the foreign policy of the United States." (at pp. 164–165.)

Mr. Wallace McClure, in his work entitled International Executive Agreements (1941), wrote:

"It is customary for treaties to carry provisions laying down the steps to be taken if one of the participating governments wishes to divest itself of the obligations which have been assumed; for instance, a year's notice by one party to the other or others. But treaties do not specify the organ of the national government by which such notice is to be given. In the United States the Executive gives the notice. Sometimes he has given it on his own initiative solely.

"In treaty making the Senate may be said to act merely as executive adviser and check against positive action; negative action, not being feared by the constitution makers, was left to the repository of general executive power, that is, to the President." (at pp. 16, 306.)

Professor Myres S. McDougal, William K. Townsend Professor of Law at the Yale Law School, wrote as follows in his study with Asher Lans on "Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy," 54 Yale Law Journal 336 (1945):

"... termination [of treaties] may be effected by executive denunciation, with or without prior Congressional authorization." (at p. 336.)

Professor Randall H. Nelson, of Southern Illinois University, in an article entitled "The Termination of Treaties and Executive Agreements by the United States: Theory and Practice," 42 Minnesota Law Review (1958), wrote that:

"Diplomatic practice coupled with judicial opinion demonstrates that the President, as the chief organ of foreign relations, has the primary responsibility with respect to the termination of treaties. He may perform this function alone or in conjunction with the Congress or the Senate." (at p. 906.)

The late Professor Jesse S. Reeves, of the University of Michigan, in an article entitled "The Jones Act and the Denunciation of Treaties," 15 American Journal of International Law (1921), stated that:

"It seems to be within the power of the President to terminate treaties by giving notice on his own motion without previous Congressional or Senatorial action. It would seem, on the other hand, that the President cannot be forced by Congress or by the Senate to perform the international act of giving notice." (at p. 38.)

Professor Westel Willoughby, late of Johns Hopkins University, wrote in his work The Constitutional Law of the United States (1929) that:

"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 done several times." (Vol. I, at p. 585.)

Previous Presidential Treaty Terminations

The President has taken action in a number of instances to terminate treaties without prior or subsequent action by either house of Congress. Such Presidential action has included giving notice of termination of bilateral treaties and notice of withdrawal or denunciation of multilateral treaties, pursuant to provisions in the treaties, and in a few cases, execution of termination agreements with the other parties to bilateral treaties.