United States Treaty Research

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

1. Finding an authoritative text (or finding whether a treaty on a certain subject exists, and then finding the text);
2. Determining status: whether it is in force, for what parties, and with what reservations;
3. 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. (Online edition provides link to 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. 2007 edition available in PDF format from Dept. of State website . On Westlaw (USTIF file) (2007 ed.). On Lexis (USTIF file) (2007 ed. updated to Nov. 1, 2007). Call number:
  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. Also included in Westlaw USTIF file, but might not be as current as Dept. of State.
• 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. Ties in with microfiche set and HeinOnline. Available in HeinOnline. Call number:
  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. Ties in with HeinOnline. Call number:
  Int 83 ZK21u4
• The full-text online databases listed above, page 3.

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:

• Bureau of Consular Affairs-- International Judicial Assistance, Notarial Services and Authentication of Documents
• Office of the Legal Advisor-- International Judicial Assistance

Additional Resources for U.S. Treaty Research

• Senate Briefing: Treaties (substantive discussion)
• "Researching U.S. Treaties and Agreements," by Marci Hoffman

Resources for Treaty Research (U.S. is not necessarily a party)

Websites and Research Guides

• Law library website, under "Foreign and International," then "Treaties."
• "Researching Non-U.S. Treaties," by Stephanie Weigmann
• "Guide to Electronic Resources for International Law: Treaties," at the website of the American Society of International Law (ASIL), includes links to major treaty sites
• Electronic Information System for International Law (EISIL)
• United Nations Documentation: Research Guide. Treaties

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