United States Treaty Research
Lecture Notes by Irene Berkey, Foreign and International Law Librarian for Advanced Legal Research, Spring Semester, 2012.
For questions about this guide, contact ForeignandInternationalLawLibrarian .
This class will focus on treaties and other international agreements
to which the U.S. is a party. We will also look at some resources for treaties to which the U.S. is not necessarily a party.
U.S treaty research involves both U.S. domestic law and international law.
Definition: in international law "an international agreement concluded between States in written
form and governed by international law...whatever its particular designation."
(Vienna Convention of the Law of Treaties (1969), 1155 U.N.T. S. 331.). On the international plane,
doesn't matter whether called agreement, convention, pact, charter, protocol,
treaty, or exchange of notes. United Nations Treaty Reference Guide provides an overview of treaty terminology. But in U.S. usage "treaty" has special meaning,
see below, Treaties vs.
Treaty-making process (international level): basic terminology
Bilateral treaties are between two parties; multilateral treaties are
between more than two parties.
A multilateral treaty is negotiated and drafted, sometimes at a diplomatic
conference. Once the text has been concluded (done), it is signed
by representatives of the countries (States) involved in the negotiation.
The treaty will come into force (enter into force) once the specified
number of States -- having first completed the necessary treaty approval
process at the domestic level -- have deposited their instrument of ratification
(or acceptance or approval) with the necessary depositary.
This is the step by which a State becomes a party to a treaty.
States that were not among the original signatories can later accede
to the treaty. A State’s ratification may be conditioned by reservations.
Bilateral treaties are negotiated and drafted by representatives of the
two parties and enter into force as specified in the treaty.
United States Treaty Practice
Treaties vs. "Executive Agreements"
- "Treaty": by executive branch, with "advice and consent" of Senate.
President has the "[p]ower, by and with the Advice and Consent of the
Senate, to make Treaties, provided two-thirds of the Senators present
concur." (Const., Art.II, Sec. 2, cl. 2). As domestic law, on a par
with statutes ("Supreme law of the Land") (Const., Art. VI,
cl. 2), as long as "self-executing."
- "Executive agreements" don't go through the Senate, but are internationally
binding. Negotiated by a governmental agency with authorization of the
State Department. There are many more executive agreements than treaties.
On international level, U.S. is bound. As domestic law, there might
be question as to whether they are on a par with statutes.
- U.S. Department of State Foreign Affairs Manual, on the negotiation and conclusion of treaties and other international agreements sets out criteria for determining type of agreement. See 11 FAM 723.
Treaty-Making Process (at U.S. level):
- Negotiation is authorized by Secretary of State, treaty is negotiated
by the executive branch, signed by representatives of the countries
("done" or "concluded"); President sends to Senate, with letter of transmittal,
letter of submittal from Secretary of State, along with a report from
the Secretary of State that outlines the negotiating background and
describes the agreement's provisions in detail. Usually includes the
full English text of the treaty. The "transmittal package" is published
as a Senate Treaty Document (the first citable form) once the
injunction of secrecy has been removed. This is the best available working
text of a treaty ("draft treaty"). Senate Treaty Documents, from the
104th Congress (1995-1996) on, are available at the FDsys website and in HeinOnline .
- Sent to the Senate Foreign Relations Committee; hearings; if approved,
a Senate Executive Report is sent to the full Senate recommending
advice and consent; it includes explanatory material, reservations, understandings, declarations (see the "Resolution of Ratification"). This report
is the most important "legislative history" material at the domestic
level. Senate Executive Reports, from the 104th Congress (1995-1996) on, are available
at the FDsys website.
Reservations, etc., are also later printed in the Congressional Record in connection with the Senate vote on advice and consent to ratification. (For negotiating history at international level, see the "travaux préparatoires".)
- If approved by full Senate (requires 2/3 vote), goes back to President
along with a resolution of advice and consent; president sends it to
Secretary of State, who prepares instrument of ratification; President signs instrument of ratification and proclaims the treaty. Treaty
is deposited with the designated depositary. The U.S. is now a party.
The treaty is in force for the United States on the international
plane (assuming requisite number of states have ratified). As domestic
law, usually date of proclamation.
- By judicial doctrine, a treaty may be found to be self-executing or non-self-executing, i.e., requiring implementing legislation to become effective domestically. The implementing legislation becomes the rule of decision for U.S. courts.
Agreement-Making Process (at U.S. level):
- Secretary of State authorizes negotiations
- U.S. representatives negotiate
- Secretary of State authorizes signing
- Agreement enters into force
- President transmits to Congress (Case-Zablocki Act)
- Exception: Trade Promotion Authority, formerly "Fast-Track," process for trade agreements (expired in 2007). Majority vote of both houses, no amendments. A type of 'congressional – executive" agreement.
Publication of U.S. treaties and other international agreements
Unofficial sources for recent treaties and international agreements:
- HeinOnline "Treaties and Agreements Library."
In particular, see "KAV Agreements" for recent documents in PDF.
- LexisNexis U.S. Treaties on Lexis (USTRTY file).
From 1776 through current. "Full-text ratified and unratified treaties and international agreements, where the United
States is a party or signatory."
- Westlaw U.S. Treaties and Other International Agreements (USTREATIES database). From 1778 to present, and Senate Treaty
Documents from 103d Congress, 1993. Full text of international and American
Indian treaties to which the U.S. government is a party. Includes proprietary
- International Legal Materials, also available on LexisNexis , Westlaw
and HeinOnline , includes text of important treaties.
Call number: I,REF JX 68 .I5
Treaty Research: 3 aspects
- Finding an authoritative text (or finding whether a treaty on a certain subject exists, and
then finding the text);
- Determining status: whether it is in force, for what parties, and
with what reservations;
- Interpreting the treaty. This can involve legislative history (possibly both international
level and domestic level) and how construed in the courts (can be both international and
1. Finding the text of a U.S. treaty:
Finding a Citation:
2. Status: Is it in force, for what parties, and with what reservations?
Treaties in Force as updated by the Treaty Actions section of U.S. Dept. of State web site. For the most recent information call Dept. of State Office of Treaty Affairs.
Note: the texts of a country's reservations are printed in Multilateral Treaties Deposited
with the Secretary-General, published annually by the United Nations and updated on the
United Nations Treaty Collection website. For U.S. reservations, see also Senate Executive Report.
Treaties in Force includes URLs for the depository organization and the depository's status chart for the treaty.
- For status of draft treaties:
- Website of U.S. Senate -- Legislation and records -- treaties
- Thomas -- Treaties page
3. Interpreting the treaty
(a) "Legislative History" of United States treaties
- Legislative history (negotiating history) at international level is not the same as
legislative history at U.S. level. (At international level, "travaux préparatoires,"
conference proceedings, etc.)
- Legislative history of the implementing legislation, for non-self-executing
- Senate Executive Report (from the Senate Foreign Relations Committee) is the most
authoritative legislative source
- ProQuest Congressional Search in “Congressional Materials” (not “Legislative Histories”) for citations to Senate Treaty Documents and Senate Executive Reports; some available in full text.
- CIS Index. Use the index volumes (not the legislative history volumes) to find
citations to Senate Treaty Documents, Senate Executive Reports, hearings, etc.
D,REF Z 1223 .Z7C56 (Library no longer subscribes to hard copy)
- Wiktor, Christian L., Treaties Submitted to the United States Senate: Legislative History, 1989-2004 (Martinus Nijhoff Publishers, 2006)
I,MON KF 4989 .W55 2006
(b) Judicial Interpretation of a United States treaty:
- LexisNexis and Westlaw used as a citator to find cases (federal and state).
- United States Code Service, special volumes. selective coverage of major agreements includes interpretive notes and decisions. Available in Lexis.
Tax Treaties -- some specialized resources:
Judicial Assistance -- U.S. Department of State resources:
Additional Resource for U.S. Treaty Research
Resources for Treaty Research (U.S. is not necessarily a party)
Websites and Research Guides
Major Treaty Series
Treaty Status/Text of Reservations
- Multilateral Treaties Deposited with the Secretary-General, Status
as at 31 December... (United Nations, annual). United Nations Treaty Collection website.
Int 82 U58sm3
- International organizations provide status information on treaties for which they are the depositary.
- FLARE Index to Treaties Institute of Advanced Legal Studies, University of London. A " searchable database of basic information on over 2,000 of the most significant multilateral treaties and some bilateral treaties concluded between 1353 and the present, with details of where the full text of each treaty may be obtained in paper and, if available, electronic form on the internet." Bilateral treaties to 1815 only.
- World Treaty Index, ed. Peter Rohn ((2nd ed, 1983). Information on some 44,000 treaties, bilateral and multilateral, registered and unregistered, from 1900 and 1980.
Int 82 ZR73w 1983 vols. 1-5
- World Treaty Index A beta version of the World Treaty Index(above), digitized and updated, under development. When complete the database is projected to include some 75,000 treaties covering the 20th century.