Treaty ResearchPROFESSOR LISA SMITH-BUTLERADVANCED LEGAL RESEARCHFALL 2016

Treaties What is a treaty?

What is a treaty’s effect?

Where do I locate the text of treaties?

How do I determine the status of a treaty?

How do I determine the intent of the treaty?

Am I looking for a multi-lateral or bi-lateral treaty?

Am I looking for a treaty in which the United States is a party?

How do I update treaties?

What is a treaty? “Treaties and conventions are formal agreements between countries and constitute one of the major sources of international law. Treaties are called bilateral when they are made between two countries, and multilateral when more than two parties are involved. Article VI of the United States Constitution states that treaties, like statutes, are the ‘supreme law of the land’ and are binding on all judges….”

◦ From Cohen, Morris L., et. al., How to Find the Law, 9th ed. (West 1989.)

The Law of the Land? According to Chief Justice John Marshall:

◦ ‘‘A treaty is, in its nature, a contract between two nations, ◦ not a legislative act. It does not generally effect, of itself, the ◦ object to be accomplished; especially, so far as its operation is◦ intraterritorial; but is carried into execution by the sovereign ◦ power of the respective parties to the instrument…In the ◦ United States, a different principle is established. Our ◦ constitution declares a treaty to be the law of the land. It is, ◦ consequently, to be regarded in courts of justice as equivalent ◦ to an act of the legislature, whenever it operates of itself, ◦ without the aid of any legislative provision. But when the ◦ terms of the stipulation import a contract—when either ◦ of the parties engages to perform a particular act, the treaty ◦ addresses itself to the political, not the judicial department; ◦ and the legislature must execute the contract, ◦ before it can become a rule for the Court.’’

Foster v. Neilson, 27 U.S. 253, 314 (1827.)

In the U.S. As we see from Article II of the U.S. Constitution, the President negotiates treaties “with the advice and consent of 2/3s of the Senate.”

Thus while the President negotiates a treaty, it must be approved by 2/3s of the Senate.

Once Senate approval is acquired, the President then ratifies and proclaims the treaty to be in force.

Can the President Avoid the Senate?

Yes and No.

While a treaty requires approval of 2/3s of the Senate, the President can evade that requirement by negotiating an Executive Agreement rather than a Treaty.

An Executive Agreement can be negotiated by the President and become effective without the “advice and consent” of the Senate.

The legal effect of an Executive Agreement is that it “…constitute(s) binding international agreements of the United States.” See Barkan, Steve, et. al., International Law, in Fundamentals of Legal Research, 9th ed. 424 (New York: Foundation Press, 2009.)

Process of U.S. Treaty Research According to Cohen (How to Find the Law,) “typical steps in research on a United States treaty include the following:

◦ finding an authoritative text of the treaty;◦ determining whether it is in force and with what parties and reservations;◦ interpreting the treaty, including its legislative history and judicial interpretation; and◦ verifying and updating its current status.”

◦ Cohen, Morris L., How to Find the Law, 9th ed., p.458 (West Pub. 1989.)

Finding an Authoritative Text The first step in the process of U.S. treaty research is locating an authoritative document/text of the treaty.

How does one locate a treaty to which the U.S. is a party?◦ Citation which includes the name of the treaty, the date of its signing, and the signatory parties as well

as the publication;◦ Popular name using the Popular Names tables; or◦ Subject or keyword searching with various finding aids, including:

◦ Indexes; or◦ Digest of International Law.

Publication of U.S. Treaties After WWII

Today, i.e. since 1950, treaties to which the U.S. is a party, are published:◦ initially in a pamphlet in a series, published since 1945, known as Treaties and Other International Act

Series (T.I.A.S.) This is analogous to the slip law form of publication for U.S. public laws which ultimately are published, initially in the Statutes at Large (chronological arrangement of session laws), and then codified in the United States Code. This is the first authoritative publication of a U.S. treaty.

◦ next in a chronological arrangement known as the United States Treaties and Other International Agreements. This is cited as U.S.T. It began publication in 1950. Publication is frequently several years behind.

Department of State: TIAS

HeinOnline Treaty Library

Before it is ratified, where is a treaty published? Before a treaty is ratified and published in TIAS, it is pre-published in:

◦ Senate Treaty Documents◦ Department of State Bulletin (1939-1989)◦ International Legal Materials

Senate Treaty Documents: FDsys

Department of State

HeinOnline: International Legal Materials

Retrospective (Historical) U.S. Treaty Research

U.S. treaty collections that provide for historical treaty research include:◦ Bevans, Treaties and Other International Agreements of the United States of America, 1776-1949

(Department of State.) This series provides access to both bilateral and multi-lateral treaties to which the U.S. was a signatory party between 1776 – 1949.

◦ Statutes at Large (Government Printing Office) Volume 8 of this series contains U.S. treaties between 1778 – 1845. Volume 18 contains the treaties in force in 1873 while volume 64 contains a complete list of the treaties published in Stat.

◦ Kappler, Indian Affairs: Laws and Treaties (Government Printing Office) This has a collection of U.S./Indian treaties between 1778-1842.

◦ Wiktor, Unperfected Treaties of the United States of America, 1776-1976 (Oceana) This series contains treaties that never became effective in the U.S. between 1776-1976.

Bevans

Statutes at Large

Kappler: Indian Affairs

How do I locate U.S. treaties? Treaties can be located with either a citation or finding aid.

With a citation, one can either pull the book off the shelf or key it into an electronic resource to read the text of a treaty.

Without a citation, a researcher must consult a finding aid.

Treaty finding aids include:◦ Current Indexes; & ◦ Retrospective Indexes.

HeinOnline’s Catalog & Guide

Locating a U.S. Treaty in Force (TIF) Treaties are typically arranged in chronological order and indexed both by country and subject.

In order to locate a U.S. treaty that is presently in force, one should consult the U.S. State Department’s Treaties in Force. Published annually in January, this series lists all bilateral and multilateral treaties of the U.S. that are currently in force. It indexes U.S. treaties that have been published in Bevans, U.S.T., Statutes at Large, League of Nations, and United Nations.

Treaties In Force (TIF) are divided into bilateral treaties and multilateral treaties. They are organized both by country and subject.

Department of State: Treaties in Force (TIF)

HeinOnline TIF

Commercial Treaty Indexes Igor Kavass and A. Sprudzs publish GUIDE TO UNITED STATES TREATIES IN FORCE which is the commercial version of the State Department’s Treaties in Force.

It is available via the HeinOnline Treaty library.

Additional Commercial Treaty Indexes

Additional commercial treaty indexes exist that provide subject access to all U.S. treaties whether in force or not.

These indexes include:◦ I. Kavass & M. Michael, United States Treaties and Other International Agreements Cumulative

Index, 1776-1949. This is an index companion to the Bevans series. ◦ I. Kavass & A. Sprudzs, U.S.T. Cumulative Index, 1950 -1970◦ I. Kavass & A. Sprudzs, Current Treaty Index◦ I. Kavass & A. Sprudzs, Unpublished and Unnumbered Treaty Index

U.S. Treaty Located Using either a citation or one of the State or commercial indexes, the researcher locates the treaty.

Once the text of the treaty is located, it is then read.

Examining the text of the document, the researcher ascertains when and where it was signed, the signatory countries included, the date it went into effect, and any other relevant changes.

After locating and verifying, what next?

After the researcher has located an authoritative text for a treaty to which the U.S. is a party, interpretations can be determined by consulting:

◦ legislative history sources used by the Senate when confirming which includes debates (Congressional Record); or

◦ locating and reading any applicable case law; and◦ using Treaties in Force to confirm; and◦ updating with the appropriate Shepards.

The U.S. isn’t a party to the treaty? Check out the depository notifications with the Secretary General of the United Nations.

Treaties can be deposited with the Secretary General and are made available.

The researcher can search by year, country, or treaty title with this resource.

Additional Treaty Series & Collections

Additional treaty collections include:◦ United Nations Treaty Series (U.N.T.S.)◦ League of Nations Treaty Series (1920-1946)◦ Consolidated Treaty Series◦ Council of Europe Treaty Series◦ OAS Treaty Series◦ Hague Conference on Private International Law

United Nations Treaty Series

League of Nations Treaty Series

Consolidated Treaty Series

Council of Europe Treaty Series

Organization of American States (OAS)

Hague Conference on Private International Law

Locate Treaty of Doak’s Stand (1820)

Treaty of Versailles (1919)

Anti-Ballistic Missile Pact (1972)

Tax Convention with Hungry (2010)

Treaty of Doak’s Stand Treaty of Doak’s Stand, 7 STAT. 210 (1821); 2 Kappler 191 (1820.)

Treaty of Versailles Treaty of Versailles, 2 U.S.T. 43 (1919.)

Anti-Ballistic Missile Treaty Limitation of Anti-Ballistic Missile Systems, 23 U.S.T. 3435 (1972.)

Tax Convention with Hungry Tax Convention, Hungry-U.S., Nov. 15, 2010, S. Treaty Doc. No. 111-7 (2010.)

Conclusion Treaty research includes current and retrospective treaties.

Treaty research involves locating multilateral and bilateral treaties.

Treaty research involves locating treaties to which the United States is and is not a party.

Treaty research requires that the researcher verify the status of the treaty.

Treaty research requires that the researcher update the treaty.