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 Heidi Kuehl, Foreign, Comparative, and International Law Librarian and Coordinator of Educational Programming and Outreach (e-mail | (312) 503-4725) .

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. "Executive Agreements."

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.

For more information see the United Nations Treaty Reference Guide and the United Nations Treaty Handbook I,REF KZ 1301 .T74 2001

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 Available from anywhere to all members of the Northwestern University community.
  • 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

Official sources:

  • Draft treaties are published as Senate Treaty Documents, available in print, and from 104th Congress (1995-96) at the FDsys web site and in HeinOnline Available from anywhere to all members of the Northwestern University community.
  • See Treaty Affairs page of U.S. Department of State for detailed information on the publication of U.S. international agreements
  • The most recent international agreements, in original (non-final) format, are available via the Treaty Affairs web site’s page Reporting International Agreements to Congress Under Case Act (Text of Agreements)
  • Treaties and Other International Acts Series (TIAS), U.S. Department of State. Individual pamphlets. Each is assigned a number. The pamphlets are discarded when bound volume (UST) is received. Very slow to publish. Available in HeinOnline Available from anywhere to all members of the Northwestern University community. The U.S. Dept. of State has started making T.I.A.S. pamphlets available on its web site (at present, 1996-2011).
    Int 83 1952a
  • United States Treaties and Other International Agreements (UST). U.S.G.P.O. Begins 1950. Bound volumes that include many agreements, arranged by TIAS number. Publication is problematic; last volume to appear is 1983-1984. Available in electronic facsimile in HeinOnline. Available from anywhere to all members of the Northwestern University community
    Int 83 1952-
  • Before 1950, when UST started, treaties were published in the US Statutes at Large (Stat.) but now they are in UST only.
    FED

Unofficial sources for recent treaties and international agreements:

Electronic:

  • HeinOnline "Treaties and Agreements Library." Available from anywhere to all members of the Northwestern University community In particular, see "KAV Agreements" for recent documents in PDF.
  • LexisNexis Available from anywhere to members of the NU School of Law community 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 Available from anywhere to members of the NU School of Law community 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 "KAV" numbers.

Print:

  • International Legal Materials, also available on LexisNexis Available from anywhere to members of the NU School of Law community, Westlaw Available from anywhere to members of the NU School of Law community and HeinOnline Available from anywhere to all members of the Northwestern University community, 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 domestic);

1. Finding the text of a U.S. treaty:

Finding a Citation:

  • Treaties in Force. U.S. Dept. of State. Annual. Slow to publish. List treaties, but does not contain texts. Index in front. First part: bilateral treaties, arranged by country and then, within country, by subject. Second part: multilateral treaties, arranged by subject. (Provides URL for depositary organization, which is most authoritative source of status for multilateral treaties.) Citations; place and date signed; when entered in to force; when entered into force for the U.S.; parties; footnotes can refer to reservations. Latest edition available in PDF format from Dept. of State website and earlier years available in PDF in HeinOnline Available from anywhere to all members of the Northwestern University community. Available on LexisNexis Available from anywhere to members of the NU School of Law community but not always most recent edition: check scope notes.
    I,REF JX 231 .T74 and int 83 A22
  • Updated by Dept. of State website, under "Treaty Actions" For the most recent information call Dept. of State Office of Treaty Affairs.
  • A Guide to the United States Treaties in Force. Commercially published. Updated by A Guide to Treaties in Force: Current Treaty Actions Supplement. More access points than TIF. Available in HeinOnline. Available from anywhere to all members of the Northwestern University community
    Int 83 ZG94
  • United States Treaty Index: 1776-1990 Consolidation. Comprehensive index of treaties and agreements entered into by the U.S. (whether or not they are currently in force). Updated by Current Treaty Index.
    Int 83 ZK21u4 and Supplements
  • The full-text online databases listed above.

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 treaties
  • 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 Available from anywhere to members of the NU School of Law community and Westlaw Available from anywhere to members of the NU School of Law community 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.

Treaty Indexes

  • 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.
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