FOR THOSE WHO have been seeking an authoritative statement of the president's power to terminate treaties with other nations, the decision of the Court of Appeals here last Friday didn't help much. The court did reject the contention that President Carter exceeded his authority by unilaterally terminating the mutual defense treaty with Taiwan. But it did so in a way that leaves most of the questions about presidential power unanswered.
Four of the seven judges relied heavily on the peculiar circumstances surrounding this particular treaty. The four held that it will terminate on Jan. 1, solely because the president gave Taiwan the required year's notice last December. One judge said the president's action would not legally terminate the treaty unless both houses of Congress concurred in it. Two other judges refused to consider the question at all; they thought the members of Congress who took the question to court had no standing to be heard.
Perhaps it is just as well that the judges were so divided and that the decision was limited to this treaty.The Constitution is silent on how treaties are to be terminated, and there is no single termination procedure that is without flaw. Giving the president absolute power to terminate all of them has obvious dangers. But giving one-third-plus-one of the Senate power to veto a presidential decision could lock the nation into an antiquated foreign policy no longer acceptable to either a president or a majority of the country. And giving the House a formal and required vote in the termination process would increase its role in foreign affairs beyond that assigned to it by the Constitution.
Each of those options for termination has been used in the past and, by dealing with the Taiwan question in its narrowest form, the Court of Appeals has left each of them open for the future. If those who are demanding a judicial resolution of the matter win a hearing from the Supreme Court, it seems likely that the result will not change much. Flexibility, rather than a clear procedure, has its advantages in judicial as well as foreign policy decision-making.