The act of terminating a treaty may initiate an international embroglio or create international arrangements as effectively as the act of entering into a treaty. Although the ramifications of each act may be significant, recent United States commentary has expressed greater concern over the constitutional efficacy of the methods by which the United States has entered international agreements than over the methods by which the United States has removed itself from them. President Carter's unilateral termination of the 1954 Mutual Defense Treaty between the United States and the Republic of China has raised the issue of which branch ought to play the major role in the termination of treaties.
The terms of the defense treaty provide that either party may terminate the treaty after giving one year's notice to the other party. Pursuant to this provision, on December 15, 1978 the President declared that notice of termination would be sent to the Republic of China and that the treaty would terminate on January 1, 1980. At the same time the President informed the American public that full diplomatic recognition would be granted to the People's Republic of China while the Republic of China would forfeit recognition and official government representation. Both decisions came unexpectedly and it is unclear to what degree prior consultation with legislative leaders occurred. Although the termination of the defense treaty will end executory obligations of the United States, the United States must perform obligations owed as a consequence of rights acquired by the Republic of China while the treaty remains in effect.
Ronald P. Cima,
Unilateral Termination of the 1954 Mutual Defense Treaty between the United States and the Republic of China Pursuant to the President's Foreign Relations Power,
12 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol12/iss1/5