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United States Treaty Research
Lecture Notes by Irene Berkey, Foreign and International Law Librarian (i-berkey@law.northwestern.edu) for Advanced Legal Research Class, February 16, 2009.
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.
At the intersection of U.S. domestic law and international law. Important in "public
international law" and can also have practical applications.
Definition: "an international agreement concluded between States in written
form and governed by international law...whatever its particular designation."
(Vienna Convention On the Law of Treaties). On the international plane,
doesn't matter whether called agreement, convention, pact, charter, protocol,
treaty, or exchange of notes. 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.
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).
- "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.
Treaty-Making Process (at U.S. level):
- Negotiation is authorized by Secretary of State, agreement 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 on, are available at the GPO Access website.
- 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 on, are available
at the GPO Access website
(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.
- Exception to the above process: "fast-track" process for trade agreements.
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)
Publication of U.S. treaties and other international agreements
Official sources:
- 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 Affiars web site’s page Reporting International Agreements to Congress Under Case Act (Text of Agreements)
- Draft treaties are published as Senate Treaty Documents, available
in print. The most recent of these may be accessed at the GPO Access
website
- 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 electronic facsimile in HeinOnline.
New development: The U. S. Dept. of State has started making T.I.A.S pamplets available on its website. (Note: Some categories of agreements are not published in T.I.A.S.)
Call number: 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. Even slower to publish. Available in electronic
facsimile in HeinOnline.
Call number:
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.
Call number: FED
Unofficial sources for recent treaties and international agreements:
Electronic:
- HeinOnline "Treaties and Agreements Library."
In particular, see "KAV Agreements."
- 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
(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; ties in with Hein microfiche (see below) and HeinOnline.
- Oceana Publications, Inc.
Online database of U.S. treaties, by subscription (law school does not
subscribe).
Microfiche:
- Hein's United States Treaties and Other International Agreements
Current Service (1990-) (microfiche), arranged by proprietary "KAV"
number. Reproduces actual documents. These documents are also available
in HeinOnline.
Call number: M,MFC JX 231 .U54 (Library no longer subscribe)
Print:
- Consolidated Treaties & International Agreement (C.T.I.A.). Current
Document Service. Oceana Publications, Inc. (not held by Law Library)
- International Legal Materials, also available on Lexis
, 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
domestic);
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 on Dept. of State website, under
"Treaty Actions" .
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.
Also Note: Treaties in Force now includes links to the depository organization for a treaty and the depository's status chart for the treaty.
- For status of draft treaties:
- Website of U.S. Senate -- Legislation and records -- treaties
- Thomas -- Treaty Status 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
- LexisNexis Congressional
- CIS Index. Use the index volumes (not the legislative history volumes) to find
citations to Senate Treaty Documents, Senate Executive Reports, hearings, etc.
Call number D,REF Z 1223 .Z7C56
(b) Judicial Interpretation of a United States treaty:
- Lexis
and Westlaw used as a citator to find cases.
- West's [federal digests] by subject.
- National Reporter System advance sheets; table of statutes construed.
- United States Code Service, special volumes. Coverage is selective.
Tax Treaties -- some specialized resources:
- Tax Treaties (CCH) and other looseleaf compilations.
- LexisNexis
(e.g., TAWTT file=Tax Analysts Worldwide Tax Treaties combined file and INTTXT
file=Rhodes & Langer U.S. International Taxation and Tax Treaties).
- Westlaw
(FTX-TREATIES database and RIA-TREATIES database)
Judicial Assistance -- Department of State resources:
Additional Resources for U.S. Treaty Research
Resources for Treaty Research (U.S. is not necessarily a party)
Websites and Research Guides
Major Treaty Series
- United Nations Treaty Series (treaties from 1946-). Hard copy,
and on United Nations Treaty Collection website
(by subscription)
Call number: Int 82 U58
- League of Nations Treaty Series (treaties from 1920 to 1946). Hard copy, and online within United Nations Treaty Collection Call number: Int 82 L43
- Consolidated Treaty Series (treaties from 1648 to 1919).
Call number:
Int 82 P26c 1969-
Treaty Status/Text of Reservations
- Multilateral Treaties Deposited with the Secretary-General, Status
as at 31 December... (United Nations, annual). Hard copy, and updated
on United Nations Treaty Collection website. Also, United Nations Office of Legal Affairs Treaty
Section.
Call number:
Int 82 U58sm3
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